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D57457_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D57457
O/htr
AD3d
Submitted - October 12, 2018
ALAN D. SCHEINKMAN, P.J. WILLIAM F. MASTRO JOSEPH J. MALTESE BETSY BARROS, JJ.
2017-07801 2017-07802
In the Matter of Jennifer S. Loggia, respondent, v Michael P. Verardo, appellant.
(Docket No. V-29-15)
Gary E. Eisenberg, New City, NY, for appellant.
Petito & Petito, LLP, Poughkeepsie, NY (Joseph Petito of counsel), for respondent.
William E. Horowitz, Briarcliff Manor, NY, attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the father appeals from a custody order of the Supreme Court, Dutchess County (IDV Part) (Joan S. Posner, J.), dated July 5, 2017, and an order of protection of the same court, also dated July 5, 2017. The custody order granted, without a hearing, the mother's petition to modify the custody provisions of a prior order of the Family Court, Greene County (George J. Pulver, J.), dated October 31, 2011, so as to award her sole legal and physical custody of the child, and to suspend the father's contact with the child until further order of the court. The order of protection directed the father, inter alia, to stay away from the mother and the child for a period up to and including July 5, 2025.
ORDERED that the custody order and the order of protection are affirmed, without costs or disbursements.
In an order of the Family Court, Greene County, dated October 31, 2011, the mother and the father were granted joint custody of the parties' child. In 2015, following the father's arrest in connection with an incident of domestic violence, the mother commenced this proceeding in the Family Court, Dutchess County, to modify the custody provisions of the 2011 order so as to award her sole legal and physical custody of the parties' child and to suspend the father's contact with the child. On December 15, 2015, the matter was transferred to the Supreme Court, Dutchess County (IDV Part). Over the next two years, the parties and the attorney for the child made numerous court appearances at which they provided the court with sworn evidence. The father exercised virtually
December 5, 2018
DECISION & ORDER
no visitation with the child during this period, and in 2016 the Supreme Court suspended the father's authorization for therapeutic visitation after his arrest for criminal contempt in the second degree arising from a campaign of harassment he conducted against the mother in violation of an existing order of protection. A jury in the criminal proceeding subsequently convicted the father of eight counts of criminal contempt in the second degree, and he was sentenced to one year in jail. The father remained incarcerated at the time the Supreme Court issued an order dated July 5, 2017. The court found a significant change of circumstances warranting a modification of custody in the best interests of the child, expressly relying upon the father's criminal convictions, his documented acts of domestic violence against the mother, and his incarceration. Accordingly, the court granted the mother's petition, awarded sole legal and physical custody of the child to the mother, and suspended the father's contact with the child until further order of the court. On the same date, the court issued an order of protection directing the father to stay away from the mother and the child through July 5, 2025. The father appeals, and we affirm.
Contrary to the father's contention, reversal is not warranted on the ground that the Supreme Court failed to conduct a plenary hearing on the mother's petition. While 'custody determinations should '[g]enerally' be made 'only after a full and plenary hearing and inquiry'' ( S.L. v J.R. , 27 NY3d 558, 563, quoting Obey v Degling , 37 NY2d 768, 770; see Matter of Jeannette V. [Marina L.] , 152 AD3d 706, 707), this general right is not an absolute ( see S.L. v. J.R. , 27 NY3d at 563). A hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody ( see Matter of Strobel v Danielson , 159 AD3d 1287, 1289).
Here, the Supreme Court, which had detailed knowledge of the extensive history of the case, clearly articulated the undisputed evidence that supported its determination ( see generally Matter of Theresa B. v Clarence D.P. , 148 AD3d 1144, 1144; cf. Matter of Lemon v Faison , 150 AD3d 1003, 1005). At the time of its determination, the relationship between the mother and father had deteriorated to such an extent that continuation of a formal order of joint custody was not appropriate ( see Matter of Smith v O'Donnell , 107 AD3d 1311), a fact documented by the criminal conviction of the father arising from his harassment of the mother. The child had been residing with the mother for years and the father's access to the child had been supervised and then suspended, as documented by prior, unappealed court orders. Further, the father only requested a hearing with respect to custody and access arrangements to be effectuated after the father's release from incarceration. Since the father was still incarcerated, the request was premature.
Given the father's established history of domestic violence and criminal conduct against the mother, as documented by his criminal conviction after a jury trial, there is no basis in the record to disturb the order of protection.
We express no opinion on the issue of whether the father's release from incarceration may constitute a change of circumstances sufficient to warrant a future hearing with respect to custody or access.
SCHEINKMAN, P.J., MASTRO, MALTESE and BARROS, JJ., concur.
ENTER:
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D61254_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D61254 L/htr
AD3d
Submitted - September 9, 2019
RUTH C. BALKIN, J.P. CHERYL E. CHAMBERS JEFFREY A. COHEN BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2017-03322
DECISION & ORDER
The People, etc., respondent, v Ricardo Isaacs, appellant.
(Ind. No. 4015/16)
Paul Skip Laisure, New York, NY (Benjamin Welikson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Victor Barall of counsel; Anna Arena on the memorandum), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (William Miller, J.), rendered February 27, 2017, convicting him of attempted assault in the second degree and criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing, which, inter alia, directed the defendant to stay away from the protected person until and including February 27, 2027.
ORDERED that upon the appeal from the judgment, the order of protection is modified, on the law, by deleting the provision thereof directing that it shall remain in effect until and including February 27, 2027, and substituting therefor a provision directing that it shall remain in effect until and including February 27, 2025; and it is further,
ORDERED that the judgment is affirmed.
The defendant pleaded guilty to attempted assault in the second degree and criminal mischief in the fourth degree. In accordance with the plea agreement, the defendant was sentenced to two consecutive terms of imprisonment of 364 days. During the sentencing proceeding on
February 27, 2017, the Supreme Court issued a final order of protection with a duration of 10 years.
As the People concede, the duration of the order of protection exceeded the maximum period permissible under CPL 530.13(4)(A)(i), which, under the circumstances, is eight years. The defendant requests, and the People concede, that the order of protection should be modified accordingly. We therefore modify the order of protection by providing that it shall remain in effect until and including February 27, 2025 ( see People v Kalb , 91 AD3d 1359, 1360).
BALKIN, J.P., CHAMBERS, COHEN, BARROS and CONNOLLY, JJ., concur.
ENTER:
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Aprilanne Agostino Clerk of the Court
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D75624_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D75624
W/htr
AD3d
Argued - October 24, 2022
LARA J. GENOVESI, J.P. VALERIE BRATHWAITE NELSON DEBORAH A. DOWLING HELEN VOUTSINAS, JJ.
2019-09461
DECISION & ORDER
The People, etc., respondent, v Leon Howell, also known as Jase Daniells, appellant.
(Ind. No. 801/17)
Patricia Pazner, New York, NY (Kathleen Whooley of counsel; Marissa Cohen and Ned Schefer on the brief), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Sholom J. Twersky, and Marie John-Drigo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Ruth Shillingford, J.), rendered July 22, 2019, convicting him of strangulation in the second degree, criminal possession of stolen property in the fourth degree, and false personation, upon a jury verdict, and imposing sentence. By decision and order dated December 28, 2022, this Court remitted the matter to the Supreme Court, Kings County, for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination, and held the appeal in abeyance in the interim ( see People v Howell , 211 AD3d 1038). The Supreme Court, Kings County (Jane C. Tully, J.), has now filed its report.
ORDERED that the judgment is modified, on the law, by vacating the conviction of criminal possession of stolen property in the fourth degree and the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent herewith.
In 2019, the defendant was convicted of strangulation in the second degree as to a first
complainant and criminal possession of stolen property in the fourth degree, based on the recovery of property belonging to a second complainant, which was found in a jacket upon the defendant's arrest for strangulation. The defendant was also convicted of false personation in relation to statements that he made at the police precinct station house following his arrest. Prior to trial, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence, determining that the police had probable cause for his arrest and that the search of the jacket was incident to his lawful arrest. In a prior decision and order, this Court held the defendant's appeal in abeyance and remitted the matter to the Supreme Court for a new hearing and determination of that branch of the defendant's omnibus motion which was to suppress physical evidence, and thereafter a report to this Court advising it of the new determination ( see People v Howell , 211 AD3d 1038). After conducting a new suppression hearing, the Supreme Court filed a report, upon consideration and review of all arguments raised by the parties at the hearing, which did not disturb its determination concerning probable cause for the arrest, but which determined, inter alia, that the People failed to meet their burden of demonstrating that the search of the jacket was justified as a search incident to the defendant's arrest.
Since the Supreme Court decided the issue of the legality of the search of the jacket in the defendant's favor on remittitur, this Court is precluded from reviewing that issue on the defendant's appeal ( see CPL 470.15[1]; People v Ingram , 18 NY3d 948, 949; People v Concepcion , 17 NY3d 192, 196; People v LaFontaine , 92 NY2d 470, 474; People v Chazbani , 153 AD3d 930, 932). Accordingly, the defendant's conviction of criminal possession of stolen property in the fourth degree, premised upon recovery of the stolen property from the jacket, must be vacated ( see People v Tates , 189 AD3d 1088, 1088; People v Chazbani , 153 AD3d at 931; People v Thompson , 118 AD3d 922, 922).
''Whether an error in the proceedings relating to one count requires reversal of convictions on other jointly tried counts is a question that can only be resolved on a case-by-case basis'' ( People v Thomas , 146 AD3d 991, 993, quoting People v Baghai-Kermani , 84 NY2d 525, 532). Here, contrary to the defendant's contention, there is no reasonable possibility that the jury's decision to convict on the count of criminal possession of stolen property in the fourth degree influenced its verdict of guilty on the remaining counts in a meaningful way, as the evidence in support of the defendant's convictions for strangulation in the second degree and false personation was strong and was not ''factually related' in any meaningful way' to the items recovered from the defendant's jacket ( People v Baghai-Kermani , 84 NY2d at 533).
The Supreme Court properly determined that the police had probable cause to arrest the defendant for the strangulation of the first complainant based on the 'fellow officer rule' ( People v Ketcham , 93 NY2d 416, 419; see People v Henderson , 83 AD3d 864; People v Green , 13 AD3d 646). The arresting officer lawfully arrested the defendant as she was acting upon the direction of an officer in possession of information sufficient to constitute probable cause for the arrest ( see People v Ketcham , 93 NY2d at 419).
The defendant's challenge to the legal sufficiency of the evidence supporting his convictions of strangulation in the second degree and false personation is only partially preserved for appellate review ( see CPL 470.05[2]; People v Hawkins , 11 NY3d 484). In any event, viewing
the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of strangulation in the second degree and false personation beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt as to those counts was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
Accordingly, we modify the judgment by vacating the conviction of criminal possession of stolen property in the fourth degree and the sentence imposed thereon and remit the matter to the Supreme Court, Kings County, for the entry of an order granting that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered from the jacket ( see People v Chazbani , 153 AD3d at 932).
GENOVESI, J.P., BRATHWAITE NELSON, DOWLING and VOUTSINAS, JJ., concur.
ENTER:
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D75733_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D75733
W/htr
AD3d
Argued - October 7, 2024
FRANCESCA E. CONNOLLY, J.P. WILLIAM G. FORD HELEN VOUTSINAS PHILLIP HOM, JJ.
2018-01714
DECISION & ORDER
The People, etc., respondent, v Milton Simon, appellant.
(Ind. No. 2512/16)
Patricia Pazner, New York, NY (Alice R.B. Cullina of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Kaley Hanenkrat of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (ShawnDya L. Simpson, J.), rendered December 12, 2017, convicting him of robbery in the first degree, attempted robbery in the first degree, criminal use of a firearm in the second degree, criminal possession of a weapon in the second degree, grand larceny in the fourth degree, and criminal possession of stolen property in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Suzanne Mondo, J.), of that branch of the defendant's omnibus motion which was to suppress identification evidence.
ORDERED that the judgment is reversed, on the law and the facts, count 1 of the indictment charging the defendant with robbery in the first degree, count 4 of the indictment charging the defendant with grand larceny in the fourth degree, and count 10 of the indictment charging the defendant with criminal possession of stolen property in the fourth degree are dismissed, that branch of the defendant's omnibus motion which was to suppress identification evidence is granted, and the matter is remitted to the Supreme Court, Kings County, for a new trial on count 12 of the indictment charging the defendant with attempted robbery in the first degree, count 23 of the indictment charging the defendant with criminal use of a firearm in the second degree, and count 25 of the indictment charging the defendant with criminal possession of a weapon in the second degree.
'Under CPL 270.35, once the jury has commenced deliberations an alternate juror may not be substituted for a regular juror unless the defendant consents to the replacement . . . in writing . . . signed by the defendant in person in open court in the presence of the court' ( People v Page , 88 NY2d 1, 3 [internal quotation marks omitted]). Here, as conceded by the People, a new trial is required because the Supreme Court failed to obtain the defendant's written and signed consent to replace a regular juror with an alternate juror after the jury began its deliberations ( see CPL 270.35[1]; People v Page , 88 NY2d at 3; People v Martin , 44 AD3d 794, 795; People v Whitley , 24 AD3d 473, 474).
The defendant was charged with committing two separate robberies in the early morning of March 22, 2016. The defendant challenges a showup identification by the complainant of the first robbery as unreasonable and unduly suggestive. As that complainant did not make an incourt identification of the defendant, the showup identification was the only evidence identifying the defendant as the perpetrator of the first robbery.
'Under New York law, showup identifications are strongly disfavored but are permissible if exigent circumstances require immediate identification, or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately' ( People v Ward , 116 AD3d 989, 991 [citation, alterations, and internal quotation marks omitted]; see People v Johnson , 81 NY2d 828, 831). 'While the defendant bears the ultimate burden of proving that a showup procedure is unduly suggestive and subject to suppression, 'the People have the initial burden of going forward to establish the reasonableness of the police conduct and the lack of any undue suggestiveness in a pretrial identification procedure'' ( People v Benn , 177 AD3d 759, 760, quoting People v Chipp , 75 NY2d 327, 335). 'The People's burden consists of two elements. First, the People must demonstrate that the showup was reasonable under the circumstances. Proof that the showup was conducted in close geographic and temporal proximity to the crime will generally satisfy this element of the People's burden' ( People v Ward , 116 AD3d at 991 [internal quotation marks omitted]; see People v Ortiz , 90 NY2d 533, 537). 'Second, the People must produce 'some evidence relating to the showup itself, in order to demonstrate that the procedure was not unduly suggestive'' ( People v Benn , 177 AD3d at 760, quoting People v Ortiz , 90 NY2d at 537). Showup identifications 'must be scrutinized very carefully for unacceptable suggestiveness and unreliability' ( People v Duuvon , 77 NY2d 541, 543; see People v Ortiz , 90 NY2d at 537).
Here, the testimony at a suppression hearing established that the showup identification was conducted 1½ hours after police officers first learned of the first robbery from one of the complainant's coworkers. However, there was no testimony at the hearing as to when the first robbery occurred. Thus, the People failed to establish that the showup identification was conducted in close temporal proximity to the crime ( see People v Johnson , 81 NY2d at 829-831; People v Knox , 170 AD3d 1648, 1650). Further, there was no unbroken chain of events or exigent circumstances that justified the showup identification, as the defendant was already under arrest for the second robbery ( see People v Ward , 116 AD3d at 992; People v Johnson , 274 AD2d 402).
Moreover, as the defendant asserts, the People failed to establish that the showup identification was not unduly suggestive. Here, prior to the showup identification, the complainant was informed by the police officers that they had someone in custody who matched the description
provided by the complainant. During the showup identification, the defendant was handcuffed with his hands behind his back and there were one to two police officers near the defendant as he was treated by emergency medical service providers. While these factors alone do not necessarily render a showup identification unduly suggestive, when viewed cumulatively with other factors, including that the officers informed the complainant that the defendant committed another crime around the corner, that the defendant's face was severely bruised and bleeding, and that it was 'an active crime scene' with several surrounding officers dealing with witnesses '[y]elling and screaming,' the showup identification was unduly suggestive ( see People v Cruz , 129 AD3d 119, 126; Matter of James T. , 81 AD3d 838, 839; People v Johnson , 274 AD2d at 402).
Under these circumstances, the Supreme Court should have granted that branch of the defendant's motion which was to suppress identification evidence, based upon the showup identification. Furthermore, as the showup identification was the only evidence that identified the defendant as the perpetrator of the first robbery, we are constrained to dismiss the counts in the indictment related to the first robbery ( see People v Rossi , 80 NY2d 952, 954; People v Ridley , 307 AD2d 269, 270; People v Hargroves , 303 AD2d 766).
The defendant's remaining contentions either need not be reached in light of our determination or are without merit.
CONNOLLY, J.P., FORD, VOUTSINAS and HOM, JJ., concur.
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D75929_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D75929 C/htr
AD3d
Argued - October 1, 2024
HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS JANICE A. TAYLOR DONNA-MARIE E. GOLIA, JJ.
2022-05295
DECISION & ORDER
The People, etc., appellant, v Brandon Creary, respondent.
(Ind. No. 1365/20)
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, Andrew Z. Wu, and Jonathan E. Maseng of counsel), for appellant.
Camille O. Russell, Westbury, NY, for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (David J. Kirschner, J.), dated May 5, 2022. The order, insofar as appealed from, after a hearing, granted that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the order is affirmed insofar as appealed from.
On December 21, 2020, around 9:20 a.m., police officers responded to a residence in Queens. The investigation related to a report that a resident of the property (hereinafter the complainant) had been threatened by her ex-boyfriend with a gun at approximately 4:20 a.m. earlier that morning. Upon arrival, the officers spoke with the complainant, who identified the defendant as her ex-boyfriend and roommate. The complainant also stated that, although the defendant had initially fled their apartment in his car after threatening her, she now suspected that he was back inside his bedroom because the door was closed and his cellphone could be heard ringing from inside the bedroom.
Later on during the course of the investigation, at about 9:50 a.m., the complainant pointed out the defendant's car to the officers. The car was parked across the street and several car
lengths away from the residence. Further, the complainant informed the officers that the defendant's friend, later identified as Dylan Hamilton, was inside the car. Officers then approached the parked car and observed Hamilton, apparently asleep, in the driver's seat. The officers attempted to open the driver's side doors and, finding them locked, asked Hamilton to open the door. When Hamilton then opened the door, the officers observed and recovered a gun from the door's pocket.
The defendant was later arrested and both the defendant and Hamilton were subsequently indicted, inter alia, for criminal possession of a weapon in the second degree. The defendant moved, among other things, to suppress the gun recovered from the car.
At a suppression hearing, a police officer testified that when she approached the car during the investigation she observed Hamilton, who appeared to be asleep, in the front driver's seat. The officer also testified that she did not observe anyone else in the car, although she was not able to see into the back of the car because the windows were tinted.
The officer's body worn camera video was admitted into evidence at the hearing. The video depicts, among other things, the officer approaching the car and, upon reaching the front driver's side door, immediately attempting to open that door. After finding the door apparently locked, the video depicts the officer knocking on the front driver's side door window and twice, in a matter of seconds, asking Hamilton to open the door. The officer testified at the hearing that she had asked Hamilton to open the door for safety reasons and in particular because the alleged firearm had not been located. On cross-examination, however, the officer acknowledged that Hamilton was not suspected of any criminality, nor did the officer have any information that the car contained evidence of a crime.
After the hearing, the Supreme Court, inter alia, granted that branch of the defendant's omnibus motion which was to suppress the gun. The People appeal.
'A police officer may approach a parked car for an objective, credible reason, not necessarily indicative of criminality' ( People v Contreras , 194 AD3d 835, 836; see People v Potter , 208 AD3d 802, 804; People v Eugenio , 185 AD3d 1050, 1051). However, '[w]here . . . a vehicle is lawfully parked on the street and neither it nor its occupant is under any restraint, and the police have no grounds to suspect the occupant of criminality at that point, requesting the occupant to step out of the vehicle creates a new, unauthorized restraint' ( People v Eugenio , 185 AD3d at 1051; see People v Contreras , 194 AD3d at 837; People v Thomas , 275 AD2d 276, 278). In other words, an officer's directive to a person to exit a lawfully parked car must be based upon a reasonable belief that the person has committed, is committing, or is about to commit a felony or misdemeanor, or that the person posed some danger to the officer ( see People v Contreras , 194 AD3d at 837; People v Creary , 61 AD3d 887, 889).
Here, the investigating officers had an objective, credible reason, not necessarily indicative of criminality, for initially approaching the defendant's car, authorizing them to request information from Hamilton ( see People v Eugenio , 185 AD3d at 1051). The officers did not, however, request any information; rather, they immediately and unsuccessfully attempted to open the car's doors and then twice asked Hamilton to open the door. Significantly, when this interaction
occurred, more than five hours had elapsed from the reported crime involving the defendant, Hamilton was not considered a suspect, and no testimony was elicited that the officers suspected that the car contained evidence of a crime. Under the circumstances of this case, the officers did not have a lawful basis to subject Hamilton to the additional restraint by effectively directing him to open the car's door ( see People v Contreras , 194 AD3d at 837; People v Eugenio , 185 AD3d at 1051).
The People's remaining contention is without merit.
Accordingly, the Supreme Court properly granted that branch of the defendant's omnibus motion which was to suppress physical evidence ( see People v Dubuisson , 206 AD3d 757, 759; People v Pearson , 59 AD3d 743, 744).
LASALLE, P.J., CHAMBERS, TAYLOR and GOLIA, JJ., concur.
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D76084_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76084 Q/htr
AD3d
Submitted - November 8, 2024
MARK C. DILLON, J.P. PAUL WOOTEN BARRY E. WARHIT LILLIAN WAN, JJ.
2022-06829
DECISION & ORDER
The People, etc., respondent, v Jerry Etienne, appellant.
(Ind. No. 72761/21)
Patricia Pazner, New York, NY (Anna Jouravleva of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jordan Cerruti, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heidi C. Cesare, J.), rendered August 8, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of those branches of the defendant's omnibus motion which were to controvert a search warrant and to suppress physical evidence obtained in the execution thereof.
ORDERED that the judgment is affirmed.
The defendant was charged with, inter alia, criminal possession of a firearm based upon the recovery by the police of a revolver during the execution of a search warrant. The defendant filed an omnibus motion, among other things, to controvert the search warrant and to suppress the physical evidence seized in the execution thereof. The Supreme Court denied those branches of the defendant's omnibus motion. The defendant thereafter pleaded guilty to criminal possession of a firearm.
We decline to grant the defendant's request to direct the disclosure of the unredacted search warrant application and minutes of an examination pursuant to CPL 690.40(1) because the Supreme Court properly determined that 'the redactions to the search warrant application and . . .
minutes were necessary to protect the anonymity of the confidential informant and to protect him or her from danger' ( People v Hedrington , 186 AD3d 1245, 1245-1246; see People v Fraser , 210 AD3d 697, 698).
Further, upon a review of the unredacted search warrant application and hearing minutes, we conclude that the Supreme Court properly denied those branches of the defendant's omnibus motion which were to controvert the search warrant and to suppress the physical evidence seized in the execution thereof ( see People v Fraser , 210 AD3d at 698). 'To establish probable cause, a search warrant application must provide sufficient information to support a reasonable belief that evidence of a crime may be found in a certain place' ( People v Murray , 136 AD3d 714, 714 [internal quotation marks omitted]; see People v Boothe , 188 AD3d 1242, 1243). Here, there was probable cause to issue the subject search warrant ( see People v Fraser , 210 AD3d at 698; People v Rose , 207 AD3d 664, 665; People v Bryant , 195 AD3d 744, 745). Moreover, the information provided to the judge who issued the warrant was sufficient to justify a no-knock provision in the warrant ( see CPL 690.35[4][b]; People v Rose , 207 AD3d at 665; People v Israel , 161 AD2d 730, 731; People v Garzia , 56 AD2d 635).
Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel ( see Strickland v Washington , 466 US 668; People v Benevento , 91 NY2d 708, 712; People v Baldi , 54 NY2d 137, 147).
The defendant's remaining contention is unpreserved for appellate review, and we decline to reach it in the exercise of our interest of justice jurisdiction.
DILLON, J.P., WOOTEN, WARHIT and WAN, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
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D76146_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76146 Z/id
AD3d
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS LILLIAN WAN, JJ.
2024-06595
In the Matter of Erin Kenny Connelly, an attorney and counselor-at-law.
Grievance Committee for the Ninth Judicial District, petitioner; Erin Kenny Connelly, respondent.
(Attorney Registration No. 2962272)
Motion by the Grievance Committee for the Ninth Judicial District, inter alia, to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), based upon her conviction of a felony. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on June 23, 1999.
Courtny Osterling, White Plains, NY, for petitioner.
PER CURIAM. On June 12, 2019, the respondent was convicted by a plea of guilty in North Carolina Superior Court, Craven County, Criminal Session, before the Honorable John E. Nobles, of maintaining a vehicle (to sell or deliver a controlled substance), in violation of North Carolina General Statutes § 90-108(a)(7), and was sentenced to a term of 12 months supervised probation and ordered to pay court costs and attorney's fees. The respondent failed to timely notify this Court or the Grievance Committee of her conviction, in violation of
OPINION & ORDER
Judiciary Law § 90 and 22 NYCRR 1240.12.
The Grievance Committee for the Ninth Judicial District now moves to strike the respondent's name from the roll of attorneys and counselors-at-law pursuant to Judiciary Law § 90(4) based upon her conviction of a felony or, in the alternative, to suspend her from the practice of law based upon her conviction of a serious crime pursuant to Judiciary Law § 90(4)(d) and (f). The respondent has not submitted a response to the Grievance Committee's motion.
Pursuant to Judiciary Law § 90(4)(a), '[a]ny person being an attorney and counselor-at-law who shall be convicted of a felony as defined in paragraph e of this subdivision, shall upon such conviction, cease to be an attorney and counselor-at-law.' Judiciary Law § 90(4)(e) provides that:
'[f]or purposes of this subdivision, the term felony shall mean any criminal offense classified as a felony under the laws of this state or any criminal offense committed in any other state, district, or territory of the United States and classified as a felony therein which if committed within this state, would constitute a felony in this state.'
A felony committed in another jurisdiction need not be a mirror image of a New York felony, but it must have 'essential similarity' ( Matter of Margiotta , 60 NY2d 147, 150). In making the determination that a felony is essentially similar, this Court may consider other factors including the plea allocution and/or trial record ( see Matter of Rosenfeld , 205 AD3d 147, 149; Matter of Anile , 205 AD3d 94, 95; Matter of Trimarco , 201 AD3d 139; Matter of Woghin , 64 AD3d 5).
During her plea, the respondent admitted that she agreed to drive her husband to facilitate his sale of five pills of oxycodone to someone who turned out to be a confidential informant involved in a controlled buy. The Grievance Committee asserts, inter alia, that the conduct underlying the respondent's conviction of maintaining a vehicle (to sell or deliver a controlled substance), in violation of North Carolina General Statutes §90-108(a)(7) is essentially similar to the New York State felony of conspiracy in the fourth degree, in violation of Penal Law §105.10(1), a class E felony. The Grievance Committee asserts that the respondent's husband's conduct, sale of five oxycodone pills, satisfies the elements of criminal sale of a controlled substance in the third degree. The Grievance Committee asserts that by agreeing to and driving her husband to facilitate his sale of oxycodone, a controlled substance, the respondent's conduct satisfies the elements of conspiracy in the fourth degree.
degree:
'when, with intent that conduct constituting . . . a class B or class C felony be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct.'
The sale of oxycodone pills constitutes the criminal sale of a controlled substance in the third degree, a class B felony, in violation of Penal Law § 220.39(1), which states:
'A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells . . . a narcotic drug.'
New York Penal Law § 220.00(7) defines a narcotic drug, in relevant part, as any controlled substance listed in schedule I(b), I(c), II(b), or II(c). According to New York Public Health Law, oxycodone is a controlled substance ( see Public Health Law § 3306, Schedule II[b][1][14]).
Under the circumstances of this case, we conclude that the criminal conduct underlying the respondent's conviction of maintaining a vehicle (to sell or deliver a controlled substance), in violation of North Carolina General Statutes § 90-108(a)(7) is essentially similar to the New York felony of conspiracy in the fourth degree, in violation of Penal Law § 105.10(1), a class E felony. By virtue of her felony conviction, the respondent was automatically disbarred and ceased to be an attorney pursuant to Judiciary Law § 90(4)(a).
Accordingly, that branch of the Grievance Committee's unopposed motion which is to strike the respondent's name from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), is granted to reflect the respondent's disbarment as of June 12, 2019, and the motion is otherwise denied as academic.
## LASALLE, P.J., DILLON, DUFFY, BARROS and WAN, JJ., concur.
ORDERED that the branch of the Grievance Committee's motion which is to strike the name of the respondent, Erin Kenny Connelly, from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4), is granted, and the motion is otherwise denied as academic; and it is further,
ORDERED that pursuant to Judiciary Law § 90(4)(a), the respondent, Erin Kenny Connelly, is disbarred, effective June 12, 2019, and her name is stricken from the roll of attorneys and counselors-at-law, pursuant to Judiciary Law § 90(4)(b); and it is further,
Under New York Penal Law § 105.10(1), a person is guilty of conspiracy in the fourth
ORDERED that the respondent, Erin Kenny Connelly, shall comply with the rules governing the conduct of disbarred or suspended attorneys ( see 22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, the respondent, Erin Kenny Connelly, is commanded to desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that if the respondent, Erin Kenny Connelly, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 1240.15(f).
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ENTER:
Darrell M. Joseph Clerk of the Court
| 6 |
D76164_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76164
W/sa
AD3d
Argued - September 19, 2024
CHERYL E. CHAMBERS, J.P. PAUL WOOTEN LOURDES M. VENTURA LAURENCE L. LOVE, JJ.
2023-00436
DECISION & ORDER
The People, etc., respondent, v Gerard Darby, appellant.
(Ind. No. 1758/19)
Patricia Pazner, New York, NY (Sean H. Murray of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle M. O'Boyle of counsel; Christopher Moore on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel Lewis, J.), rendered December 23, 2022, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
In June 2019, a police officer arrested the defendant in Queens after locating a loaded handgun in his waistband. The defendant was thereafter indicted on charges of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. In an omnibus motion, the defendant moved, among other things, to suppress the firearm and certain statements he made to law enforcement officials after his arrest. By order dated November 10, 2021, the Supreme Court, inter alia, denied those branches of the defendant's omnibus motion. In December 2022, following a nonjury trial, the court convicted the defendant of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. The defendant appeals.
In People v De Bour (40 NY2d 210), the Court of Appeals 'established a four-tiered framework for evaluating the propriety of police-initiated encounters with civilians' ( People v Johnson , 40 NY3d 172, 174). '[L]evel one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two, the common-law right of inquiry, permits a somewhat greater intrusion and requires a founded suspicion that criminal activity is afoot; level three authorizes an officer to forcibly stop and detain an individual, and requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor; level four, arrest, requires probable cause to believe that the person to be arrested has committed a crime' ( People v Moore , 6 NY3d 496, 498-499). In circumstances justifying a level two encounter, the officer may request an individual's consent to conduct a search, so long as the request is 'reasonably related in scope to the circumstances that justified the interference in the first place' ( People v Mercado , 120 AD3d 441, 443, affd 25 NY3d 936; see People v Dunbar , 5 NY3d 834, 835; People v Irizarry , 79 NY2d 890, 892).
Here, at a suppression hearing, the arresting officer testified that he and his partner responded to a 911 call shortly after midnight on the night of the arrest. The 911 caller believed that a male wearing specified types of clothing was in possession of a firearm on the right side of his body and provided the basis for this belief. Upon arrival at the scene, the arresting officer observed a group of approximately 10 to 15 people, including the defendant, who was the only person in the group who matched the precise description provided by the 911 caller. The arresting officer testified that he started a conversation with the defendant, who was making 'furtive movements,' including by backing away and 'blading' his body in a manner that kept his right hip away from the arresting officer. The arresting officer asked the defendant for identification and, when the defendant then reached to his right side, the arresting officer requested the defendant's consent to 'check him out.' Upon receiving the defendant's consent, the arresting officer testified that he frisked the defendant's right hip area, felt the handle of a firearm, and pulled a handgun from the defendant's waistband.
Under the circumstances presented, the Supreme Court properly denied that branch of the defendant's omnibus motion which was to suppress the firearm. At the time he sought consent to 'check [the defendant] out,' the arresting officer, among other things, had information indicating that the defendant was armed on his right side and had observed the defendant 'blad[ing] his body' in an apparent attempt to conceal that same side, an action which, at a minimum, 'suggest[ed] criminal activity afoot' and 'g[a]ve [the] officer reason to proceed with caution' ( People v Hernandez , 223 AD3d 751, 754; see People v Torres , 232 AD3d 146). Considering the information provided by the 911 caller in conjunction with the arresting officer's observations of and interactions with the defendant at the scene, 'the officer at the very least had a founded suspicion that criminal activity was afoot so as to authorize [him] . . . to request the defendant's consent to a search of' his person ( People v Leiva , 33 AD3d 1021, 1023; see People v Medina , 40 NY3d 1022, 1023; People v Alston , 193 AD2d 883, 884-885). The defendant does not contend that the arresting officer's request was improper and, in fact, concedes that he freely consented to a pat-down of his waist area. The defendant nonetheless asserts that, through his bodily movements, he withdrew his consent before the arresting officer located the firearm ( see generally United States v Sanders , 424 F3d 768, 773-776). However, this contention is unpreserved for appellate review ( see CPL 470.05[2]), and we decline to reach it in the exercise of our interest of justice jurisdiction ( see id. § 470.15[3][c];
People v Biggs , 208 AD3d 1340, 1342).
Since the arresting officer's discovery of the firearm provided probable cause for arrest, the Supreme Court correctly denied that branch of the defendant's omnibus motion which was to suppress, as the fruits of the poisonous tree, the custodial statements he made following his arrest ( see People v Bermudez-Cedillos , 228 AD3d 681, 682; People v Welch , 192 AD2d 566, 566).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, need not be reached in light of our determination.
CHAMBERS, J.P., WOOTEN, VENTURA and LOVE, JJ., concur.
ENTER:
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D76168_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76168
G/sa
AD3d
Argued - December 9, 2024
CHERYL E. CHAMBERS, J.P. WILLIAM G. FORD JANICE A. TAYLOR LAURENCE L. LOVE, JJ.
2022-00636
DECISION & ORDER
In the Matter of Shenyu Z. (Anonymous), appellant.
(Docket No. D-3622-21)
Barry J. Fisher, Williston Park, NY, for appellant.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Ian Bergström of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Shenyu Z. appeals from an order of disposition of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated January 14, 2022. The order of disposition, upon an order of fact-finding of the same court dated October 22, 2021, finding that Shenyu Z. committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the third degree, sexual misconduct, and sexual abuse in the third degree, adjudicated him a juvenile delinquent and placed him on probation for a period of 12 months.
ORDERED that the appeal from so much of the order of disposition as placed Shenyu Z. on probation for a period of 12 months is dismissed as academic, without costs or disbursements, as the period of probation has expired; and it is further,
ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.
In this juvenile delinquency proceeding, the Family Court found, after a fact-finding hearing, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the third degree, sexual misconduct, and sexual abuse in the third
degree, adjudicated him a juvenile delinquent, and placed him on probation for a period of 12 months.
The appeal from so much of the order of disposition as placed the appellant on probation for a period of 12 months must be dismissed as academic, as the period of probation has expired ( see Matter of Tyzay P.-B. , 229 AD3d 632, 632). However, the appeal from so much of the order of disposition as adjudicated the appellant a juvenile delinquent has not been rendered academic, as there may be collateral consequences resulting from the adjudication of delinquency ( see Matter of Jean Daniel F. , 200 AD3d 996, 997).
Viewing the evidence in the light most favorable to the presentment agency ( see Matter of David H. , 69 NY2d 792; Matter of Edwin B. , 223 AD3d 903), we find that it was legally sufficient to establish beyond a reasonable doubt that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the third degree (Penal Law former § 130.40[3]), sexual misconduct ( id. § 130.20[2]), and sexual abuse in the third degree ( id. § 130.55).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Ernest S.C. , 196 AD3d 565). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determination that the appellant committed acts which, if committed by an adult, would have constituted the crimes of crimes of criminal sexual act in the third degree, sexual misconduct, and sexual abuse in the third degree was not against the weight of the evidence. Contrary to the appellant's contention, the complainant clearly testified that she told the appellant on multiple occasions that she did not want to engage in the complained-of sexual acts with the appellant ( see Penal Law § 130.05[2][c], [d]).
The appellant's remaining contentions are either academic or without merit ( see Matter of Maximo M. , 184 AD3d 780, 782; Matter of Justin D. , 114 AD3d 941, 943).
CHAMBERS, J.P., FORD, TAYLOR and LOVE, JJ., concur.
ENTER:
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D76205_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76205
A/sa
AD3d
Submitted - October 28, 2024
ROBERT J. MILLER, J.P. WILLIAM G. FORD LAURENCE L. LOVE DONNA-MARIE E. GOLIA, JJ.
2023-07137
DECISION & ORDER
In the Matter of Moquease M. (Anonymous), appellant.
(Docket No. D-13722-22)
Diana Kelly, Jamaica, NY, for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Devin Slack and Philip W. Wong of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Moquease M. appeals from an order of disposition of the Family Court, Queens County (Dean T. Kusakabe, J.), dated June 7, 2023. The order of disposition, insofar as appealed from, upon an order of fact-finding of the same court dated March 1, 2023, made upon the admission of Moquease M., finding that he committed an act which, if committed by an adult, would have constituted the crime of criminal possession of a weapon on school grounds, after a dispositional hearing, and upon adjudicating him a juvenile delinquent, placed him in the custody of the Commissioner of Social Services of the City of New York for placement in a limited secure facility for a period of up to 18 months with no credit for time served.
ORDERED that the appeal is dismissed as academic, without costs or disbursements.
The only issues raised by the appellant concern his placement in the custody of the Commissioner of Social Services of the City of New York for placement in a limited secure facility for a period of up to 18 months with no credit for time served. Since the placement has expired, the appeal must be dismissed as academic ( see Matter of Mark E.D. , 228 AD3d 935; Matter of Norris
R. , 145 AD3d 728).
MILLER, J.P., FORD, LOVE and GOLIA, JJ., concur.
ENTER:
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D76235_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76235 M/sa
AD3d
Argued - December 17, 2024
CHERYL E. CHAMBERS, J.P. LINDA CHRISTOPHER LAURENCE L. LOVE PHILLIP HOM, JJ.
2022-02647
DECISION & ORDER
The People, etc., respondent, v Kaeshawn Kerr, appellant.
(Ind. No. 14/21)
Rosenberg Law Firm, Brooklyn, NY (Jonathan Rosenberg of counsel), for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered March 3, 2022, convicting him of criminal possession of a weapon in the second degree and criminal possession of a forged instrument in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
Nevertheless, the defendant is entitled to a new trial because the County Court improperly conducted the trial in the defendant's absence. 'Before proceeding in [a] defendant's absence, the court [must make an] inquiry and recite[ ] on the record the facts and reasons it relied upon in determining that [the] defendant's absence was deliberate' ( People v Brooks , 75 NY2d 898,
899; see People v Amato , 172 AD2d 545, 545). Here, the court failed to provide an adequate statement of reasons or bases for its determination that the defendant's absence from the trial was deliberate. Although the court stated that it was basing its determination on the defendant's 'history' and 'conduct within the last few days,' it failed to detail the history and conduct upon which its determination was based ( see People v Johnson , 154 AD3d 777, 778-780; People v Callahan , 134 AD3d 1432, 1433). Accordingly, we reverse the judgment and order a new trial.
Since there must be a new trial, we note that, although the issue is unpreserved for appellate review ( see CPL 470.05[2]), the defendant correctly contends that the County Court should have instructed the jury on the home or place of business exception with regard to the count of criminal possession of a weapon in the second degree ( see People v Reid , 212 AD3d 845, 847-848; People v Martin , 36 AD3d 717, 718).
The defendant's remaining contention need not be reached in light of our determination.
CHAMBERS, J.P., CHRISTOPHER, LOVE and HOM, JJ., concur.
ENTER:
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D76263_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76263 Q/htr
AD3d
Submitted - December 17, 2024
CHERYL E. CHAMBERS, J.P. LINDA CHRISTOPHER LAURENCE L. LOVE PHILLIP HOM, JJ.
2023-01639
DECISION & ORDER
The People, etc., respondent, v Shanilka Smith, appellant.
(Ind. No. 71948/21)
Patricia Pazner, New York, NY (Robert C. Langdon of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel; Ali Fazal on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered September 8, 2022, convicting her of attempted criminal possession of a weapon in the second degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived her right to appeal ( see People v Thomas , 34 NY3d 545; People v Lopez , 6 NY3d 248). The defendant's valid waiver of her right to appeal precludes appellate review of her contention that her conviction pursuant to Penal Law § 265.03(3) is unconstitutional under New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1) ( see People v Johnson , 225 AD3d 453, 453-455; People v Miller , 166 AD3d 812, 813; People v Fisher , 121 AD3d 1013, 1013). The defendant's valid waiver of her right to appeal also precludes appellate review of her contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255; People v Lawrence , 184 AD3d 587, 587).
In light of our determination, we need not reach the defendant's remaining
contentions.
CHAMBERS, J.P., CHRISTOPHER, LOVE and HOM, JJ., concur.
ENTER:
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D76270_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76270
M/sa
AD3d
Submitted - December 13, 2024
ANGELA G. IANNACCI, J.P. PAUL WOOTEN BARRY E. WARHIT CARL J. LANDICINO, JJ.
2022-06652
DECISION & ORDER
The People, etc., respondent, v Anderson Jimenez Lora, appellant.
(Ind. No. 873/21)
Twyla Carter, New York, NY (Robin Richardson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Noah Wilpon on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered August 9, 2022, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
## ORDERED that the judgment is affirmed.
Contrary to the People's contention, the record does not demonstrate that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. The Supreme Court's colloquy improperly suggested that appellate review would not remain for certain issues, including the voluntariness of the plea and the jurisdiction of the court ( see People v Thomas , 34 NY3d 545, 566; People v Baptiste , 181 AD3d 696). Moreover, during the appeal waiver colloquy, the court did not explain that if the defendant could not afford the costs of an appeal or of an attorney to represent him on appeal, the State would bear those costs ( see People v Alexander , 225 AD3d 890, 891). Further, given the court's failure to ascertain whether the defendant understood the contents of a written waiver of the right to appeal, and the fact that this was the defendant's first felony conviction, the defendant's execution of a written waiver of the right to appeal did not cure the court's deficient oral colloquy ( see People v Haughton , 229 AD3d 467, 468; People v Hopkins , 227 AD3d 734).
Thus, the appeal waiver does not preclude appellate review of the defendant's claim that the sentence imposed was excessive ( see People v Haughton , 229 AD3d at 468).
Nevertheless, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d
80).
IANNACCI, J.P., WOOTEN, WARHIT and LANDICINO, JJ., concur.
ENTER:
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| 12 |
D76287_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76287
W/htr
AD3d
Submitted - October 31, 2024
COLLEEN D. DUFFY, J.P. PAUL WOOTEN JANICE A. TAYLOR PHILLIP HOM, JJ.
2022-08783
DECISION & ORDER
The People, etc., respondent, v Rodarie Stewart, appellant.
(Ind. No. 70688/21)
Patricia Pazner, New York, NY (Robert C. Langdon of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered October 17, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03[3]), criminal possession of a firearm ( id. § 265.01-b[1]), and criminal possession of a weapon in the fourth degree ( id. § 265.01[1]). The defendant subsequently entered a plea of guilty to criminal possession of a firearm and was sentenced to a term of incarceration of 364 days pursuant to a plea agreement.
Since the defendant abandoned his contentions before the Supreme Court that the offenses underlying the indictment are unconstitutional in light of the decision of the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1), these contentions are unpreserved for appellate review ( see People v Morales , 199 AD2d 284, 284; see also People v Cabrera , 41 NY3d 35, 42-51; People v Chase , 223 AD3d 913, 913). In any event, the defendant's contentions are without merit, as the ruling in New York State Rifle & Pistol Assn., Inc. v Bruen (597
US 1) 'had no impact on the constitutionality of New York State's criminal possession of a weapon statutes' ( People v Manners , 217 AD3d 683, 686).
In light of our determination, we need not consider the parties' remaining contentions.
DUFFY, J.P., WOOTEN, TAYLOR and HOM, JJ., concur.
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D76324_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76324
Y/htr
AD3d
Submitted - January 2, 2025
HECTOR D. LASALLE, P.J. LARA J. GENOVESI JANICE A. TAYLOR PHILLIP HOM, JJ.
2023-01412
DECISION & ORDER
The People, etc., respondent, v Amiyn White, appellant.
(Ind. No. 71086/22)
Patricia Pazner, New York, NY (Joshua M. Levine of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Eugene M. Guarino, J.), rendered January 24, 2023, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, his waiver of the right to appeal was valid. Although much of the discussion of the waiver of the right to appeal took place after the defendant had admitted his guilt, the defendant acknowledged that an appeal waiver was a condition of the plea agreement prior to his plea of guilty and admission of guilt. Thus, it cannot be said that the defendant 'received no material benefit from his appeal waiver,' or that the appeal waiver 'was a gratuitous, after-the-fact additional demand asserted after the bargain had already been struck' ( People v Sutton, 184 AD3d 236, 245; see People v Bryant , 28 NY3d 1094, 1095-1096; People v Williams , 227 AD3d 480, 481). Under the totality of the circumstances, including the exemplary explanation of the right to appeal provided to the defendant and the defendant's age, experience, and background, the waiver was knowing, voluntary, and intelligent ( see People v Sanders , 25 NY3d 337, 340; People v Bradshaw , 18 NY3d 257, 264).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that his conviction is unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1) ( see People v Johnson , 225 AD3d 453, 453-454; People v Fisher , 121 AD3d 1013; but see People v Benjamin , 216 AD3d 1457), as well as his contention that the period of postrelease supervision imposed as part of his sentence was excessive ( see People v Lopez , 6 NY3d 248, 256).
LASALLE, P.J., GENOVESI, TAYLOR and HOM, JJ., concur.
ENTER:
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PEOPLE v WHITE, AMIYN
| 14 |
D76345_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76345
Y/sa
AD3d
Argued - December 6, 2024
COLLEEN D. DUFFY, J.P. PAUL WOOTEN CARL J. LANDICINO JAMES P. MCCORMACK, JJ.
2018-07456
DECISION & ORDER
The People, etc., respondent, v Lamont Wright, appellant.
(Ind. No. 7685/16)
Patricia Pazner, New York, NY (Russ Altman-Merino and Yaniv Kot of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Solomon Neubort, and Simcha Engelen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (John T. Hecht, J.), rendered March 23, 2018, convicting him of murder in the second degree, criminal possession of a weapon in the second degree, and stalking in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that he was deprived of a fair trial when the Supreme Court admitted into evidence a photograph of the victim taken after the subject crime is without merit. 'Photographic evidence 'should be excluded only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant'' ( People v Branch , 224 AD3d 919, 921, quoting People v Pobliner , 32 NY2d 356, 370). 'When an inflammatory photograph is relevant to a material issue at trial, the court has broad discretion to determine whether the probative value of the photograph outweighs any prejudice to the defendant' ( People v Abellard , 212 AD3d 842, 843; see People v Oliver , 193 AD3d 1081, 1083). Here, the photograph was relevant to material issues in the case, and the photograph was ''not so inflammatory as to deprive [the defendant] of a fair trial'' ( People v Branch , 224 AD3d at 921, quoting People v Abellard , 212 AD3d at 843). Thus, the court did not
improvidently exercise its discretion in admitting the photograph.
Furthermore, contrary to the defendant's contention, he was not deprived of the effective assistance of counsel under the New York Constitution because, viewed in totality, the record reflects that defense counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712; People v Baldi , 54 NY2d 137, 146-147). The defendant also was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v Washington , 466 US 668).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
In light of our determination, we need not reach the parties' remaining contentions.
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76378
M/htr
AD3d
Argued - December 3, 2024
FRANCESCA E. CONNOLLY, J.P. ROBERT J. MILLER LOURDES M. VENTURA PHILLIP HOM, JJ.
2023-03666
DECISION & ORDER
The People, etc., respondent, v Tyler Anderson, appellant.
(Ind. No. 72234/21)
Andrea S. Ferrante, Staten Island, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ruth E. Ross, and Jeffrey Eng of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered March 15, 2023, convicting him of criminal possession of a weapon in the second degree, criminal possession of a controlled substance in the seventh degree, and reckless driving, upon a jury verdict, and imposing sentence.
## ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in permitting the admission into evidence of certain surveillance videos, ballistics evidence, and two 911 calls. This evidence was 'relevant to the very same crime for which the defendant [was] on trial' ( People v Duchi , 176 AD3d 968, 968 [internal quotation marks omitted]; see People v Frumusa , 29 NY3d 364, 370) and provided a complete 'narrative of the events charged in the indictment' as well as 'necessary background information' ( People v Jones , 206 AD3d 671, 673 [internal quotation marks omitted]; see People v Bonich , 208 AD3d 679, 680; People v Martinez , 201 AD3d 658, 659). Moreover, any prejudice to the defendant was minimized by the court's limiting instructions ( see People v Blackwell , 219 AD3d 619, 621; People v Taylor , 210 AD3d 807, 808; People v Sterling , 162 AD3d 914, 914).
The defendant's contention that he was deprived of his right to a fair trial due to improper remarks made by the prosecutor during summation is without merit. The challenged remarks were fair response to arguments made by defense counsel in summation ( see People v Bethea , 159 AD3d 710, 712; People v Nanand , 137 AD3d 945, 947; People v Roscher , 114 AD3d 812, 813).
The defendant's contention that the Supreme Court violated his Sixth Amendment right of confrontation by limiting defense counsel's cross-examination of a certain witness is without merit. Although a criminal defendant is guaranteed the right to confront adverse witnesses through cross-examination ( see US Const 6th Amend; NY Const, art I, § 6), 'these rights do not guarantee unfettered cross-examination' ( People v Delgado , 221 AD3d 909, 911; see People v Agosto , 203 AD3d 841, 842) and do not give criminal defendants 'carte blanche to circumvent the rules of evidence' ( People v Hayes , 17 NY3d 46, 53 [internal quotation marks omitted]). 'The trial court has broad discretion to limit the scope of cross-examination when the questions are irrelevant or only marginally relevant, concern collateral issues, or pose a danger of misleading the jury' ( People v Wingate , 184 AD3d 738, 739 [internal quotation marks omitted]; seePeople v Jones , 184 AD3d 751, 753; People v Herrera-Machuca , 181 AD3d 901, 902). Here, the court did not limit defense counsel's line of questioning, and instead, defense counsel voluntarily withdrew the questions. In any event, the limiting of the defense counsel's questioning of a certain witness would have been provident to avoid inquiry into a speculative and remote matter ( see People v Jones , 184 AD3d at 753).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
CONNOLLY, J.P., MILLER, VENTURA and HOM, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
| 16 |
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76409 C/htr
AD3d
Submitted - January 7, 2025
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER LILLIAN WAN LAURENCE L. LOVE, JJ.
2021-07003
DECISION & ORDER
The People, etc., respondent, v Travis Kopach, appellant.
(Ind. No. 8681/18)
Patricia Pazner, New York, NY (David P. Greenberg of counsel; Elijah Giuliano on the brief), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Claibourne Henry of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered September 22, 2021, convicting him of criminal mischief in the second degree and bail jumping in the second degree, upon a jury verdict, and imposing sentence.
## ORDERED that the judgment is affirmed.
The defendant was indicted, inter alia, on one count of criminal mischief in the second degree in connection with damage done to a leased premises. After a jury trial, the defendant was convicted on that charge, as well as on the charge of bail jumping in the second degree.
Contrary to the defendant's contention, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish the intent element of criminal mischief in the second degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 495).
Upon reviewing the record here, we are satisfied that the verdict of guilt on that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633). In particular, the evidence supported the conclusion that, in connection with filming music videos in the subject property, the defendant intentionally demolished significant portions of the interior of the premises, including removing sheetrock, metal studs, fireproofing, and sound insulation from the walls and ceiling, ripping out electrical cables from the walls and ceiling and leaving them exposed, destroying kitchen and office cabinets, and removing and discarding kitchen appliances. While the defendant contends that the evidence demonstrated that his intent was to renovate or improve the premises, in light of the nature of the damage done by the defendant, we conclude that the People satisfied their burden of proving beyond a reasonable doubt that the defendant, in fact, acted with the intent to damage the complainant's property ( see Penal Law § 145.10; People v Misevis , 76 NY2d 777, 779, affg 155 AD2d 729).
Contrary to the defendant's further contention, the prosecutor's unsupported statement to the jury during summation that, relevant to the charge of bail jumping in the second degree, the defendant had picked the adjourned court date at which he failed to appear, did not rise to the level of depriving him of a fair trial, particularly since the jury was subsequently told that the defendant's counsel picked the date ( see People v Taylor , 224 AD3d 930). The defendant's contention that he was deprived of a fair trial by other remarks made by the prosecutor during summation is unpreserved for appellate review ( see CPL 470.05[2]; People v Ison , 226 AD3d 1048, 1049), and we decline to review the unpreserved contention in the exercise of our interest of justice jurisdiction.
IANNACCI, J.P., CHRISTOPHER, WAN and LOVE, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76423 C/htr
AD3d
Submitted - January 2, 2025
HECTOR D. LASALLE, P.J. LARA J. GENOVESI JANICE A. TAYLOR PHILLIP HOM, JJ.
2022-08218
DECISION & ORDER
The People, etc., respondent, v Eric Victor, appellant.
(S.C.I. No. 73711/22)
Patricia Pazner, New York, NY (Russ Altman-Merino of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Michael D. Kitsis, J.), rendered September 9, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, his waiver of the right to appeal was valid. Although much of the discussion of the waiver of the right to appeal took place after the defendant had admitted his guilt, the appeal waiver was mentioned as being a condition of the plea bargain prior to the defendant's plea of guilty and admission of guilt. Thus, it cannot be said that the defendant 'received no material benefit from his appeal waiver,' or that the appeal waiver 'was a gratuitous, after-the-fact additional demand asserted after the bargain had already been struck' ( People v Sutton, 184 AD3d 236, 245; see People v Bryant , 28 NY3d 1094, 1095-1096; People v Williams , 227 AD3d 480, 481). Under the totality of the circumstances, including the exemplary explanation of the right to appeal provided to the defendant and the defendant's age, experience, and background, the waiver was knowing, voluntary, and intelligent ( see People v Sanders , 25 NY3d 337, 340; People v Bradshaw , 18 NY3d 257, 264).
The defendant's valid waiver of his right to appeal precludes appellate review of his contention that Penal Law § 265.01-b is unconstitutional in light of New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1) ( see People v Johnson , 225 AD3d 453, 453-454; People v Fisher , 121 AD3d 1013; but see People v Benjamin , 216 AD3d 1457), as well as his contention that his sentence was excessive ( see People v Lopez , 6 NY3d 248, 256).
LASALLE, P.J., GENOVESI, TAYLOR and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76435 G/htr
AD3d
Submitted - January 22, 2025
ANGELA G. IANNACCI, J.P. LARA J. GENOVESI DEBORAH A. DOWLING CARL J. LANDICINO PHILLIP HOM, JJ.
2023-01633
DECISION & ORDER
The People, etc., respondent, v Andre Velazquez, appellant.
(Ind. No. 72580/21)
Patricia Pazner, New York, NY (Elijah Giuliano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Solomon Neubort of counsel; Jordan Najah on the memorandum), for respondent.
Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Heidi Cesare, J.), imposed September 6, 2022, upon his plea of guilty, on the ground that the sentence was excessive.
## ORDERED that the sentence is affirmed.
Under the totality of the circumstances, the record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal. Although it would have been better practice for the Supreme Court to discuss with the defendant the waiver of his appellate rights before obtaining an admission of guilt ( see People v Downing , \_\_\_\_\_ AD3d \_\_\_\_\_, 2024 NY Slip Op 06581 [2d Dept]; People v Powell , \_\_\_\_\_ AD3d \_\_\_\_\_, 2024 NY Slip Op 06363 [2d Dept]), the record reflects that the defendant was aware of the People's demand for an appeal waiver before agreeing to plead guilty, as, among other things, the defendant acknowledged that he had discussed the appeal waiver with his attorney. The record further reflects that the defendant had prior experience with the criminal justice system and had pleaded guilty to a prior offense. Contrary to the defendant's contentions, under the circumstances presented, the court's delay in explaining the appeal waiver until after the defendant's factual allocution of the crime did not render the appeal
waiver invalid ( see People v Bryant , 28 NY3d 1094, 1096; People v Downing , \_\_\_\_\_ AD3d \_\_\_\_\_, 2024 NY Slip Op 06581). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d 248, 253; People v Florio , 179 AD3d 834, 835).
IANNACCI, J.P., GENOVESI, DOWLING, LANDICINO and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76444
C/sa
AD3d
Submitted - January 2, 2025
HECTOR D. LASALLE, P.J. LARA J. GENOVESI JANICE A. TAYLOR PHILLIP HOM, JJ.
2022-05000
DECISION & ORDER
The People, etc., respondent, v Jamal Rogers, appellant.
(Ind. No. 73088/21)
Patricia Pazner, New York, NY (Elijah Giuliano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Michael Bierce, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Laura R. Johnson, J.), rendered June 6, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In exchange for his plea of guilty to criminal possession of a firearm, the defendant was sentenced to three years of probation. One of the conditions of probation (hereinafter Condition 28) required the defendant to consent to the search by a probation officer of his person, vehicle, and place of abode and the seizure of any illegal drugs, drug paraphernalia, gun/firearm, or other weapon or contraband found. On appeal, the defendant contends that Condition 28 was improperly imposed and that his sentence was excessive.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545; People v Lopez , 6 NY3d 248). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255).
However, as the defendant correctly contends, and the People do not dispute, the issue of whether Condition 28 was improperly imposed was not required to be preserved for appellate review, and appellate review is not precluded by the defendant's waiver of his right to appeal ( see People v Dranchuk , 203 AD3d 741, 742; People v Acuna , 195 AD3d 854, 855).
As a general matter, Penal Law § 65.10(1) establishes that the conditions of probation 'shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him [or her] to do so' ( People v Mensah , 221 AD3d 732, 733 [internal quotation marks omitted]; see People v Hakes , 32 NY3d 624, 628). 'The statute quite clearly restricts probation conditions to those reasonably related to a defendant's rehabilitation' ( People v Mensah , 221 AD3d at 733 [internal quotation marks omitted]). Thus, a 'consent to search condition of probation' should be 'individually tailored in relation to the [underlying] offense' ( id. ; see People v Mendoza , 231 AD3d 1170, 1170).
Here, under the circumstances, the consent to search condition of the defendant's probation was properly imposed, as it was individually tailored in relation to the underlying offense of criminal possession of a firearm and was, therefore, reasonably related to the defendant's rehabilitation or necessary to ensure that the defendant will lead a law-abiding life ( see People v Mendoza , 231 AD3d at 1170). In other words, one way to encourage the defendant to lead a lawabiding life and refrain from possessing unlawful weapons was 'to hold out the possibility that he would be checked up on' ( People v Hale , 93 NY2d 454, 462). Moreover, the part of Condition 28 that purported to allow a probation officer, incident to a search of the defendant's person, vehicle, or place of abode, to seize illegal drugs or other contraband was not unlawful. As the People note, a probation officer otherwise conducting a lawful search would be entitled to seize any contraband found regardless of Condition 28 being in place ( see generally People v Brown , 96 NY2d 80, 89).
LASALLE, P.J., GENOVESI, TAYLOR and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76445 O/htr
AD3d
Argued - January 13, 2025
CHERYL E. CHAMBERS, J.P. WILLIAM G. FORD JANICE A. TAYLOR JAMES P. MCCORMACK, JJ.
2023-08710 2023-08711
DECISION & ORDER
In the Matter of Lissete Nunez, appellant-respondent, v Brian A. Spellen, respondent-appellant.
(Docket No. O-23467-19)
Schulte Roth & Zabel LLP, New York, NY (Taleah E. Jennings, Frances D. Rodriguez, and Priyadarshini Das of counsel), for appellant-respondent.
Heath J. Goldstein, Jamaica, NY, for respondent-appellant.
Angella S. Hull, Jamaica, NY, attorney for the children.
In a family offense proceeding pursuant to Family Court Act article 8, Lissete Nunez appeals, and Brian A. Spellen cross-appeals, from (1) an order of fact-finding and disposition of the Family Court, Queens County (Mildred T. Negron, J.), dated August 3, 2023, and (2) an order of protection of the same court, also dated August 3, 2023. The order of fact-finding and disposition, insofar as appealed from, after a hearing, did not find that aggravating circumstances existed permitting a final order of protection to be issued for a period of five years and directed Brian A. Spellen to comply with the terms of an order of protection only for a period not to exceed two years. The order of fact-finding and disposition, insofar as cross-appealed from, after a hearing, found that Brian A. Spellen committed the family offenses of disorderly conduct, harassment in the second degree, assault in the third degree, attempted assault in the third degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, menacing in the third degree, and strangulation in the second degree and directed Brian A. Spellen to comply with the terms of an order of protection for a period not to exceed two years. The order of protection, insofar as appealed from, directed Brian A. Spellen to stay away from Lissete Nunez and the parties' children for a period of only two years, until and including August 3, 2025. The order of protection, insofar as
cross-appealed from, directed Brian A. Spellen to stay away from Lissete Nunez and the parties' children for a period of two years, until and including August 3, 2025.
ORDERED that the order of fact-finding and disposition is modified, on the facts, (1) by deleting the words 'for a period not in excess of two years' from the second decretal paragraph, and substituting therefor the words 'for a period not in excess of five years,' and (2) by adding thereto a decretal paragraph finding that aggravating circumstances exist; as so modified, the order of fact-finding and disposition is affirmed insofar as cross-appealed from, without costs or disbursements; and it is further,
ORDERED that the order of protection is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing that the order of protection shall remain in effect until and including August 3, 2025, and substituting therefor a provision directing that the order of protection shall remain in effect until and including August 3, 2028; as so modified, the order of protection is affirmed insofar as cross-appealed from, without costs or disbursements.
The parties were never married, but resided together between 2014 and 2019, and have three children together, born in 2015, 2018, and 2019. Lissete Nunez commenced this family offense proceeding in November 2019, alleging, inter alia, incidents of violence perpetrated by Brian A. Spellen against her between 2015 and 2019. Nunez sought a five-year order of protection. After a fact-finding hearing, the Family Court found that Spellen committed the family offenses of disorderly conduct, harassment in the second degree, assault in the third degree, attempted assault in the third degree, criminal obstruction of breathing or blood circulation, menacing in the second degree, menacing in the third degree, and strangulation in the second degree and directed Spellen to comply with the terms of an order of protection for a period not to exceed two years. The court declined to make a finding that aggravating circumstances existed such that an order of protection could be issued for a period of five years. The court issued an order of protection, directing Spellen to stay away from the petitioner and the parties' children for a period of two years, until and including August 3, 2025. Nunez appeals, and Spellen cross-appeals, from the order of fact-finding and disposition and the order of protection.
In a family offense proceeding, the petitioner has the burden of establishing the family offense by a fair preponderance of the evidence ( see Matter of Cassie v Cassie , 109 AD3d 337, 340). The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court's determination regarding the credibility of the witnesses is entitled to great weight on appeal ( see Matter of Diaz v Rodriguez , 164 AD3d 1340, 1340). 'The determination of whether a family offense was committed is a factual issue to be resolved by the hearing court' ( Matter of Lederman v Lederman , 208 AD3d 483, 484 [internal quotation marks omitted]). ''The Family Court's determination as to the credibility of witnesses is entitled to great weight and, if supported by the record, will not be disturbed on appeal'' ( id. , quoting Matter of Mansour v Mahgoub , 202 AD3d 961, 962). Where, as here, ''the court was presented with sharply conflicting accounts by the parties regarding the subject events, and chose to credit the testimony of one party over that of the other, its determination will not be disturbed unless clearly unsupported by the record'' ( Matter of Mattis v Walcott-Graham , 231 AD3d 1156, 1156, quoting Matter of Mohammed v Mohammed , 174 AD3d 615, 615-616; see Matter of Wiley v Wiley , 231 AD3d 841).
Here, contrary to Spellen's contention, the Family Court's finding that he committed the family offenses was based upon its credibility assessments and is supported by the record ( see Matter of Adeshina v Adeshina , 228 AD3d 755, 756; Matter of Royal v Royal , 187 AD3d 1195, 1195; Matter of Lopez de Salmon v Salmon , 150 AD3d 1121, 1122). Accordingly, there is no basis to disturb those portions of the order of fact-finding and disposition that made those findings and directed Spellen to comply with the terms of the order of protection ( see Matter of Mattis v Walcott-Graham , 231 AD3d 1156; Matter of Breier v Breier , 202 AD3d 1083, 1084).
Additionally, contrary to Spellen's contention, the Family Court properly included the children as protected persons in the order of protection, as the evidence demonstrated that doing so was reasonably necessary to provide meaningful protection to Nunez and to eradicate the root of the family disturbance ( see Family Ct Act § 842; Matter of Fortunato v Dappio , 223 AD3d 800, 801; Matter of Lynch v Jimenez , 230 AD3d 496, 498; Matter of Cook v Berehowsky , 211 AD3d 727, 728; Matter of Lengiewicz v Lengiewicz , 167 AD3d 608, 609).
The Family Court, however, should have found that aggravating circumstances existed. The evidence at the fact-finding hearing demonstrated that Nunez sustained physical injuries as a result of the family offenses committed by Spellen against her and that the children were present during the commission of several of the family offenses ( see Family Ct Act §§ 827[a][vii]; 842; Matter of Dandu v Jatamoni , 228 AD3d 861, 862; Goikhman v Biton , 183 AD3d 704, 705-706; Matter of Liu v Yip , 127 AD3d 1196, 1197; Matter of Margary v Martinez , 118 AD3d 1004, 1006).
Spellen's remaining contention is without merit.
CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76457
O/htr
AD3d
Argued - January 23, 2025
LARA J. GENOVESI, J.P. VALERIE BRATHWAITE NELSON LOURDES M. VENTURA JAMES P. MCCORMACK, JJ.
2022-09670
DECISION & ORDER
The People, etc., respondent, v Tyheem Williams, appellant.
(Ind. No. 71458/21)
Patricia Pazner, New York, NY (Rebekah J. Pazmiño of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Julian Joiris, and Isaac Rounseville of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Raymond L. Rodriguez, J.), rendered November 7, 2022, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545, 558564; People v Lopez , 6 NY3d 248, 255-257; People v Williams , 180 AD3d 814, 814). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the Supreme court's denial of his motion to suppress physical evidence ( see People v Hightower-Castro , 219 AD3d 504, 505; People v Camacho , 179 AD3d 831, 831-832; People v Kornegay , 60 AD3d 696, 696).
GENOVESI, J.P., BRATHWAITE NELSON, VENTURA and MCCORMACK, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76459 C/htr
AD3d
Submitted - January 7, 2025
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER LILLIAN WAN LAURENCE L. LOVE, JJ.
2022-09783
DECISION & ORDER
The People, etc., respondent, v Anthony Sorino, appellant.
(Ind. No. 70296/22)
Kenyon C. Trachte, Newburgh, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Cynthia Dolan and Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Hyun Chin Kim, J.), rendered October 19, 2022, convicting him of burglary in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545; People v Lopez , 6 NY3d 248). Contrary to the defendant's contention, the County Court did not improperly suggest that the waiver of his right to appeal was mandatory, and moreover, the appeal waiver was the result of a negotiated plea agreement between the People and the defendant ( see People v Mahoney , 226 AD3d 1050; People v Chuan Mu Fu , 186 AD3d 620, 621; People v Sutton , 184 AD3d 236, 240-241, 243). The court's colloquy followed, almost verbatim, the model colloquy for the waiver of the right to appeal drafted by the Unified Court System's Criminal Jury Instructions and Model Colloquy Committee, the use of which has been endorsed by this Court in People v Batista (167 AD3d 69, 76-78), and by the Court of Appeals in People v Thomas (34 NY3d at 566-567). The defendant's valid waiver of
his right to appeal precludes appellate review of his contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255).
IANNACCI, J.P., CHRISTOPHER, WAN and LOVE, JJ., concur.
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Darrell M. Joseph Clerk of the Court
| 23 |
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76466 Q/htr
AD3d
Submitted - January 21, 2025
MARK C. DILLON, J.P. FRANCESCA E. CONNOLLY LINDA CHRISTOPHER BARRY E. WARHIT, JJ.
2024-02289
DECISION & ORDER
In the Matter of Sara Poli, respondent, v Aleksey Titov, appellant.
(Docket Nos. O-454-24, O-454-24/24A)
Del Atwell, East Hampton, NY, for appellant.
Thorsen Law Offices, New City, NY (Ilene K. Graff of counsel), for respondent.
In a proceeding pursuant to Family Court Act article 8, Aleksey Titov appeals from an order of commitment of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated March 4, 2024. The order of commitment, made after a hearing, found that Aleksey Titov violated a temporary order of protection eight separate times and committed him to the custody of the Rockland County Jail for a period of 48 months.
ORDERED that the order of commitment is affirmed, without costs or disbursements.
Aleksey Titov and Sara Poli were involved in an intimate relationship that ended in July 2023. Poli commenced a family offense proceeding on February 14, 2024, after, among other things, Titov allegedly attempted to gain entry to her apartment with an axe while disguised as a maintenance worker. The Family Court issued a temporary order of protection, inter alia, prohibiting Titov from contacting Poli by any means. Poli thereafter filed a violation petition, alleging that Titov had violated the temporary order of protection. After a hearing, the court found that Titov had violated the temporary order of protection eight separate times. The court imposed the maximum penalty pursuant to Family Court Act § 846-a of 6 months' incarceration for each violation of the temporary order of protection, to run consecutively, for a total period of 48 months in the Rockland County Jail. Titov appeals.
Where 'an individual is incarcerated as a punitive remedy for violating an order of protection issued under Family Court Act article 8, the proceeding is one involving criminal contempt' ( Matter of Rubackin v Rubackin , 62 AD3d 11, 21; see Matter of Lobb v Nanetti , 192 AD3d 1034, 1035). Therefore, although the eight consecutive penalties imposed are legally permissible under the Family Court's statutory authority pursuant to Family Court Act § 846-a ( see Matter of Walker v Walker , 86 NY2d 624, 627), the aggregate term of incarceration violates the statutory maximum ( see Penal Law § 70.30[2][b]). However, since the aggregate term of incarceration is deemed to be equal to the legally authorized limit, there is no reason to modify the order of commitment ( see People v Moore , 61 NY2d 575, 578; People v Rose , 297 AD2d 646, 647).
Under the circumstances of this case, the sentence imposed was not excessive.
DILLON, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76476
M/htr
AD3d
Argued - January 21, 2025
HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS JANICE A. TAYLOR CARL J. LANDICINO, JJ.
2019-07489
DECISION & ORDER
The People, etc., respondent, v Benito Abreu, appellant.
(Ind. No. 1952/18)
Patricia Pazner, New York, NY (William G. Kastin and Joshua M. Levine of counsel; Elijah Giuliano on the brief), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Lucy E. Pannes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Charles S. Lopresto, J.), rendered June 11, 2019, convicting him of attempted murder in the second degree, burglary in the first degree (two counts), assault in the second degree, criminal possession of a weapon in the third degree, and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
For his actions of entering the complainant's home without permission, stabbing her in the back in front of children, and causing her life-threatening injuries, the defendant was convicted of attempted murder in the second degree, two counts of burglary in the first degree, and related offenses.
The defendant's contention that the People failed to prove his guilt by legally sufficient evidence because his intoxication rendered him incapable of forming the requisite intent is without merit. The general rule is that 'an intoxicated person can form the requisite criminal intent to commit a crime, and it is for the trier of fact to decide if the extent of the intoxication acted
to negate the element of intent' ( People v Zapata , 98 AD3d 539, 540 [internal quotation marks omitted]; see People v Fenelon , 148 AD3d 1051, 1052). Viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish beyond a reasonable doubt that the defendant manifested the requisite criminal intent to support all of the crimes charged ( see People v Price , 174 AD3d 741, 741-742; People v Alston , 77 AD3d 762, 763).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the jury's conclusion that the defendant was not so intoxicated as to be unable to form the requisite intent was supported by the weight of the evidence ( see People v Romero , 7 NY3d 633; People v Alvardo , 203 AD3d 941; People v Fulgencio , 168 AD3d 1094, 1095).
LASALLE, P.J., CHAMBERS, TAYLOR and LANDICINO, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76481
C/sa
AD3d
Argued - January 7, 2025
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER LILLIAN WAN LAURENCE L. LOVE, JJ.
2022-08241
DECISION & ORDER
The People, etc., respondent, v Jennifer F., appellant.
(Ind. No. 5525/02)
Patricia Pazner, New York, NY (Tammy E. Linn and Alexis A. Ascher of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Jean M. Joyce, and Shlomit Heering of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Laura R. Johnson, J.), dated September 21, 2022, which, after a hearing, denied her motion pursuant to CPL 440.47 to vacate her sentence and to be resentenced in accordance with Penal Law § 60.12.
## ORDERED that the order is affirmed.
On July 22, 2002, the defendant shot and killed a victim during the commission of a robbery. Thereafter, the defendant pleaded guilty to, among other crimes, three counts of murder in the second degree. She was sentenced to, inter alia, concurrent terms of imprisonment of 18 years to life on each of the three murder counts. Her judgment of conviction was subsequently affirmed by this Court.
In 2020, the defendant moved pursuant to CPL 440.47 to vacate her sentence and to be resentenced in accordance with Penal Law § 60.12, which was amended by the Domestic Violence Survivors Justice Act (L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1 [eff May 14, 2019] [hereinafter the DVSJA]). Following a hearing, the Supreme Court, in an order, denied the motion. We affirm.
PEOPLE v F., JENNIFER
The DVSJA permits a court to impose alternative, less severe sentences in certain cases involving defendants who are the victims of domestic violence ( see People v Rivera , 230 AD3d 517, 518-519; People v Fisher , 221 AD3d 1195, 1196; People v Heft , 220 AD3d 806, 806). 'The DVSJA sets forth three factors for a court to consider, namely: (1) whether the defendant was a victim of domestic violence inflicted by a member of the same family or household at the time of the offense; (2) whether the abuse was a significant contributing factor to the defendant's criminal behavior; and (3) whether, having regard for the nature and circumstances of the crime and the history, character, and condition of the defendant, a sentence in accordance with the customary sentencing guidelines would be unduly harsh' ( People v Burns , 207 AD3d 646, 648; see Penal Law § 60.12[1]; People v Addimando , 197 AD3d 106, 112). 'The preponderance of the evidence standard applies' ( People v Rivera , 230 AD3d at 519; see People v Addimando , 197 AD3d at 112).
Here, as the Supreme Court held, the defendant's evidence at the hearing did not establish that, at the time of the offenses, the defendant was a victim of domestic violence subjected to substantial psychological abuse at the hands of the defendant's accomplice ( see People v Rivera , 230 AD3d at 519; People v Fisher , 221 AD3d at 1196-1197; People v Williams , 198 AD3d 466, 466-467). Accordingly, the court did not err in denying the defendant's motion for resentencing.
In light of our determination, the defendant's remaining contentions need not be reached.
IANNACCI, J.P., CHRISTOPHER, WAN and LOVE, JJ., concur.
ENTER:
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PEOPLE v F., JENNIFER
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## Supreme Court of the State of New York
## Appellate Division: Second Judicial Department
D76487 C/htr
AD3d
Argued - October 24, 2024
VALERIE BRATHWAITE NELSON, J.P. LINDA CHRISTOPHER HELEN VOUTSINAS PHILLIP HOM, JJ.
2023-04750
DECISION & ORDER
The People, etc., appellant, v Ivanyeli Meraluna, respondent.
(Ind. No. 71009/22)
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, Jaedon J. Huie, and Ronald Eniclerico of counsel), for appellant.
Garnett H. Sullivan, South Hempstead, NY, for respondent.
Appeal by the People from an order of the Supreme Court, Queens County (Frances Y. Wang, J.), dated January 30, 2023. The order, insofar as appealed from, upon reargument, adhered to the original determination in an order of the same court dated December 15, 2022, granting, after a hearing, that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the order dated January 30, 2023, is affirmed insofar as appealed from.
The defendant was indicted on various charges, including criminal possession of a weapon in the second degree and criminal possession of a weapon in the fourth degree after police officers recovered a loaded firearm and a knife during an inventory search of a vehicle that the defendant was driving at the time of her arrest. The defendant moved, inter alia, to suppress the physical evidence. At a suppression hearing, a police officer testified that on February 11, 2022, he and his partner went to a residence in Queens in response to a radio transmission of a possible burglary in progress after a neighbor reported seeing two male individuals entering the rear of the residence. The officers arrived within two minutes of receiving the radio transmission and parked on the street in front of the residence. A white Ford Explorer with tinted windows was parked on the street behind them, approximately 15 feet away from the driveway to the residence. As soon as the officers exited their vehicle, the Ford Explorer backed out and drove away. The officers got into their vehicle and pursued the Ford Explorer with their lights and sirens activated, believing that it
was connected to the reported burglary. Eventually, police officers stopped the vehicle and arrested its sole occupant, the defendant. Pursuant to an inventory search of the vehicle, officers recovered a knife and a loaded firearm.
In opposition to that branch of the defendant's omnibus motion which was to suppress the physical evidence, the People contended that the initial pursuit of the Ford Explorer was justified because the police officers had reasonable suspicion to believe that it was involved with the reported burglary as it had 'fled' the scene. In an order dated December 15, 2022, the Supreme Court granted that branch of the defendant's omnibus motion which was to suppress the physical evidence, finding that the police officers lacked reasonable suspicion to stop the defendant's vehicle. The People moved for leave to reargue their opposition to that branch of the defendant's omnibus motion. In an order dated January 30, 2023, the court granted reargument and adhered to its original determination. The People appeal.
On a motion to suppress physical evidence, the People have the burden of establishing that the police conduct was legal in the first instance ( see People v Messano , 41 NY3d 228, 233; People v Walls , 37 NY3d 987, 988). 'It is fundamental that in order to stop a vehicle the police must have a reasonable suspicion, based on objective evidence, that the occupants were involved in a felony or misdemeanor' ( People v Ahmad , 193 AD3d 961, 962 [internal quotation marks omitted]; see People v Harrison , 57 NY2d 470, 476; People v Walls , 37 NY3d at 988). Reasonable suspicion has been defined as 'that quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe criminal activity is at hand' ( People v Martinez , 80 NY2d 444, 448 [alterations and internal quotation marks omitted]; see People v Messano , 41 NY3d at 232). 'It may not rest on equivocal or innocuous behavior that is susceptible of an innocent as well as a culpable interpretation' ( People v Messano , 41 NY3d at 232 [internal quotation marks omitted]). A suspect's '[f]light alone, . . . or even in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit' ( People v Holmes , 81 NY2d 1056, 1058 [internal citations omitted]; see People v Rhames , 196 AD3d 510, 512).
Here, the People failed to establish that the officers had reasonable suspicion to believe that the defendant was engaged in or about to engage in criminal activity at the time that she drove away from the scene of the reported burglary. The radio transmission described two males entering the rear of the residence and did not describe any vehicle or a third person being involved. The surrounding circumstances, including the officers' general knowledge of burglaries in the area, were insufficient to establish that the police had a reasonable suspicion that the occupant of the Ford Explorer was involved in a crime ( see People v Ahmad , 193 AD3d at 962; People v Bailey , 164 AD3d 815, 817).
The People's remaining contention was improperly raised for the first time on reargument.
BRATHWAITE NELSON, J.P., CHRISTOPHER, VOUTSINAS and HOM, JJ., concur.
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PEOPLE v MERALUNA, IVANYELI
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76495
C/htr
AD3d
Submitted - January 21, 2025
HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS JANICE A. TAYLOR CARL J. LANDICINO, JJ.
2021-02929
DECISION & ORDER
The People, etc., respondent, v Carlos Forero, appellant.
(Ind. No. 1557/19)
Patricia Pazner, New York, NY (Robert C. Langdon of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Ellen C. Abbot of counsel; Damian Jhagroo on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (John F. Zoll, J.), rendered March 16, 2020, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.
## ORDERED that the judgment is affirmed.
'Upon conviction of an eligible youth, the court must order a pre-sentence investigation of the defendant. After receipt of a written report of the investigation and at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender' (CPL 720.20[1]). ''In making such a determination, factors to be considered by the court include the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life'' ( People v Battle , 209 AD3d 758, 759, quoting People v Sutton , 184 AD3d 236, 246). Here, despite the defendant's lack of a criminal record and other mitigating factors, the Supreme Court did not improvidently exercise its discretion in declining to grant the defendant youthful offender status in light of the nature and circumstances of his offense, which included the stabbing of a victim on the
street before stealing money and other valuables ( see id. ; People v Jearel , 175 AD3d 565, 567).
The defendant contends that the mandatory surcharge and fees that were levied at sentencing ( see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2-a). CPL 420.35(2-a) authorizes a court, upon certain enumerated grounds ( see id. § 420.35[2-a][a]-[c]), to waive the otherwise 'mandatory' surcharge and fees imposed by statute (Penal Law § 60.35[1][a]; see generally People v Jones , 26 NY3d 730, 733-737), where an individual was 'under the age of twenty-one at the time the offense was committed' (CPL 420.35[2-a]). Here, although it is undisputed that the defendant was 17 years old at the time the underlying offense was committed, the record does not also demonstrate that a waiver of the mandatory surcharge and fees was warranted under any of the grounds enumerated in the statute ( see id. § 420.35[2-a][a]-[c]; People v Attah , 203 AD3d 1063, 1064). Under the circumstances, and in the absence of the People's consent, we decline to waive the surcharge and fees levied at sentencing in the interest of justice ( see People v Acevedo , 210 AD3d 1106, 1107; People v Attah , 203 AD3d at 1064).
LASALLE, P.J., CHAMBERS, TAYLOR and LANDICINO, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76506 C/htr
AD3d
Argued - January 17, 2025
BETSY BARROS, J.P. PAUL WOOTEN LAURENCE L. LOVE PHILLIP HOM, JJ.
2018-11573
DECISION & ORDER
The People, etc., respondent, v Harry Roland, appellant.
(Ind. No. 6383/16)
Patricia Pazner, New York, NY (Mark W. Vorkink and Patterson Belknap Webb & Tyler, LLP [Lauren Schorr Potter, Hannah Brudney, and Shelley Attadgie], of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dena E. Douglas, J.), rendered July 10, 2018, convicting him of burglary in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support his conviction of burglary in the first degree is unpreserved for appellate review ( see CPL 470.05[2]; People v Hawkins , 11 NY3d 484, 492). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of that count beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342, 348), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the count of burglary in the first degree was not against
the weight of the evidence ( see People v Romero , 7 NY3d 633, 645).
Contrary to the defendant's contention, the record as a whole establishes that he knowingly, voluntarily, and intelligently waived his right to be represented by counsel ( see People v Ison , 226 AD3d 1048, 1049; People v Cucchiara , 174 AD3d 816, 816). The Supreme Court adequately and repeatedly warned the defendant of the inherent risks in proceeding pro se and 'apprised him of the benefits and the singular importance of representation by counsel in the adversarial system of adjudication' ( People v Cucchiara , 174 AD3d at 817). In response, the defendant steadfastly maintained his desire and ability to proceed pro se ( see People v Ison , 226 AD3d at 1049; People v Cucchiara , 174 AD3d at 817).
The defendant waived his contention that the Supreme Court violated CPL 270.35 and his due process rights by failing to replace two sworn jurors with sworn alternate jurors, as he consented to the procedure employed by the court to replace the two sworn jurors ( see People v Driver , 154 AD3d 958, 959; People v Adonis , 119 AD3d 700).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
The defendant's remaining contention is unpreserved for appellate review and, in any event, without merit.
BARROS, J.P., WOOTEN, LOVE and HOM, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76522
C/sa
AD3d
Submitted - January 13, 2025
CHERYL E. CHAMBERS, J.P. WILLIAM G. FORD JANICE A. TAYLOR JAMES P. MCCORMACK, JJ.
2018-11825
DECISION & ORDER
The People, etc., respondent, v Jean Carlo Gonzales, appellant.
(S.C.I. No. 10162/17)
Patricia Pazner, New York, NY (Anders Nelson of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Danielle M. O'Boyle, and Michael Tadros of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered October 31, 2017, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fees; as so modified, the judgment is affirmed.
'Criminal Procedure Law § 420.35(2-a) permits the waiver of surcharges and fees for individuals, like the defendant, who were less than 21 years old at the time of the subject crime' ( People v Cabrera , 222 AD3d 878, 879). 'This provision applies retroactively to cases, such as this one, that were pending on direct appeal on the effective date of the legislation' ( People v Torres , 225 AD3d 632, 632; see People v Dyshawn B. , 196 AD3d 638, 641).
Pursuant to the exercise of our interest of justice jurisdiction, and as consented to by the People, we modify the judgment by vacating the mandatory surcharge and fees imposed upon
the defendant at sentencing ( see CPL 420.35[2-a][c]; People v Dillon H. , 229 AD3d 722, 723).
CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76523
C/sa
AD3d
Submitted - January 16, 2025
ROBERT J. MILLER, J.P. DEBORAH A. DOWLING LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
2022-05414
DECISION & ORDER
The People, etc., respondent, v Ashantee Lawson, appellant.
(Ind. No. 73108/21)
Patricia Pazner, New York, NY (Elisabeth R. Calcaterra of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rhonda Tomlinson, J.), rendered June 22, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that Penal Law §§ 265.01-b(1) and 265.01(1) are unconstitutional in light of the decision of the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1), and that the indictment was thus defective, is unpreserved for appellate review, since he failed to raise a constitutional challenge before the Supreme Court ( see People v Cabrera , 41 NY3d 35, 42, 50-51; People v Sirleaf , 231 AD3d 969). In any event, the defendant's contention is without merit. The Bruen decision had no impact on the constitutionality of New York State's criminal possession of a weapon statutes ( see People v Wilson , 222 AD3d 1006, 1009; People v Joyce , 219 AD3d 627, 627-628; People v Manners , 217 AD3d 683).
The defendant's remaining contention is unpreserved for appellate review and, in any
event, without merit.
MILLER, J.P., DOWLING, WAN and GOLIA, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76538
C/htr
AD3d
Submitted - December 10, 2024
MARK C. DILLON, J.P. ROBERT J. MILLER LILLIAN WAN PHILLIP HOM, JJ.
2019-10105
DECISION & ORDER
The People, etc., respondent, v Jose H. (Anonymous), appellant.
(Ind. No. 6754/17)
Patricia Pazner, New York, NY (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Amy Appelbaum of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered July 8, 2019, adjudicating him a youthful offender, upon his plea of guilty to robbery in the third degree, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fee; as so modified, the judgment is affirmed.
'Criminal Procedure Law § 420.35(2-a) permits the waiver of surcharges and fees for individuals, like the defendant, who were less than 21 years old at the time of the subject crime' ( People v Dillon H. , 229 AD3d 722, 723 [internal quotation marks omitted]). 'This provision applies retroactively to cases, such as this one, that were pending on direct appeal on the effective date of the legislation' ( People v Torres , 225 AD3d 632, 632; see People v Dyshawn B. , 196 AD3d 638, 641).
Pursuant to the exercise of our interest of justice jurisdiction, and as consented to by
the People, we modify the judgment by vacating the mandatory surcharge and fee imposed upon the defendant at sentencing ( see CPL 420.35[2-a][c]; People v Dillon H. , 229 AD3d at 723).
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Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76539 C/htr
AD3d
Submitted - December 6, 2024
COLLEEN D. DUFFY, J.P. PAUL WOOTEN CARL J. LANDICINO JAMES P. MCCORMACK, JJ.
2022-05843
DECISION & ORDER
The People, etc., respondent, v Reges L. Bellamy, appellant.
(Ind. No. 61/21)
Salvatore C. Adamo, New York, NY, for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered March 30, 2022, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In February 2022, the defendant was convicted of criminal possession of a weapon in the second degree (Penal Law § 265.03[1][b]), upon his plea of guilty, and was thereafter sentenced to a determinate term of imprisonment of eight years, to be followed by five years of postrelease supervision. To the extent that the defendant contends that his plea of guilty was involuntary, this contention survives his valid waiver of the right to appeal, but is unpreserved for appellate review as the defendant did not move to withdraw his plea on this ground or otherwise raise this issue before the County Court ( see CPL 470.05[2]; People v Gang , 225 AD3d 625, 626). In any event, the record establishes that the defendant's plea was made knowingly, voluntarily, and intelligently ( see People v Tyrell , 22 NY3d 359, 365; People v Fiumefreddo , 82 NY2d 536, 543).
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Hendricks , 224 AD3d 705,
705-706; People v Batista , 167 AD3d 69, 73-74), thereby precluding appellate review of his contention that the sentence imposed was excessive ( see People v Batista , 167 AD3d at 75; People v Hallums , 158 AD3d 819, 819).
The defendant's valid waiver of his right to appeal also precludes appellate review of his claim of ineffective assistance of counsel, except to the extent that the defendant alleges that his plea was involuntary due to ineffective assistance of counsel ( see People v Chacon-Diaz , 203 AD3d 846, 846; People v Brown , 170 AD3d 878, 879). However, that contention is without merit. '[T]he record demonstrates that the defendant received an advantageous plea, and nothing in the record casts doubt on the apparent effectiveness of counsel' ( People v McIntyre , 208 AD3d 1365, 1366 [internal quotation marks omitted]).
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76551
Q/sa
AD3d
Submitted - January 30, 2025
LARA J. GENOVESI, J.P. VALERIE BRATHWAITE NELSON BARRY E. WARHIT JAMES P. MCCORMACK, JJ.
2024-00085
DECISION & ORDER
The People, etc., respondent, v Tommy Rivera, appellant.
(Ind. No. 70304/22)
Abissi Law PLLC, Beacon, NY (Heather M. Abissi of counsel), for appellant.
Susan Cacace, District Attorney, White Plains, NY (William C. Milaccio and Steven A. Bender of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Westchester County (Helen M. Blackwood, J.), rendered November 29, 2023, convicting him of manslaughter in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Westchester County, for further proceedings consistent herewith.
Initially, we note that the defendant's waiver of his right to appeal was valid ( see People v Esson , 225 AD3d 786; People v Coplin , 194 AD3d 739; cf. People v D.A. , 184 AD3d 581, 582-583). However, the defendant's contention that the County Court failed to properly consider youthful offender treatment is not barred by a general waiver of the right to appeal ( see People v Dhillon , 143 AD3d 734, 735; People v Stevens , 127 AD3d 791, 791-792).
CPL 720.20(1) requires a court to make a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it ( see People v Rudolph , 21 NY3d 497, 501). The first step in making a youthful offender determination requires determining whether the defendant is an 'eligible youth' (CPL 720.10[2]). The second step in
PEOPLE v RIVERA, TOMMY
making a youthful offender determination requires determining whether 'the interest of justice would be served by relieving the eligible youth from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years' (CPL 720.20[1][a]; see People v Cruickshank , 105 AD2d 325, 334).
Here, the defendant is eligible for youthful offender status because he was 16 years old at the time of the subject offense and had no prior criminal convictions ( see CPL 720.10[1], [2]; People v Rudolph , 21 NY3d at 500). Although a youth convicted of an armed felony is eligible for youthful offender status only where the court determines that there are mitigating circumstances bearing directly upon the manner in which the crime was committed or that the defendant's participation in the crime was relatively minor ( see CPL 720.10[3]; People v Middlebrooks , 25 NY3d 516, 524-526), the defendant was convicted of manslaughter in the first degree, which is not an armed felony ( see CPL 1.20[41]; People v Dhillon , 143 AD3d at 735; People v Mercer , 121 AD2d 476). Since the defendant was not convicted of an armed felony, the County Court erred in determining that the defendant was not an eligible youth pursuant to CPL 720.10(3) because there were no mitigating circumstances bearing directly upon the manner in which the crime was committed and erred in failing to determine whether the interest of justice would be served by adjudicating the defendant a youthful offender ( see People v Dhillon , 143 AD3d at 735-736; People v Crimm , 140 AD3d 1672, 1673).
Accordingly, the defendant's sentence must be vacated and the matter remitted to the County Court, Westchester County, for resentencing after a determination as to whether the defendant should be afforded youthful offender status. We express no opinion as to whether the court should afford youthful offender status to the defendant.
In light of our determination, we need not reach the defendant's contention that the sentence imposed was excessive.
GENOVESI, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76552 Q/sa
AD3d
Argued - December 5, 2024
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER BARRY E. WARHIT DONNA-MARIE E. GOLIA, JJ.
2019-14609
DECISION & ORDER
The People, etc., respondent, v Anthony Joseph, appellant.
(Ind. No. 2388/18)
Patricia Pazner, New York, NY (Victoria L. Benton and Alexa Askari of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Tess Mariel O'Leary of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ushir Pandit-Durant, J.), rendered November 20, 2019, convicting him of assault in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
## ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the fact that the jury acquitted him of criminal possession of a weapon in the third degree and the count of assault in the second degree based on causing physical injury to a person by means of a dangerous instrument does not undermine the weight of the evidence supporting the jury's verdict convicting him of the count of assault in the second degree based on causing physical injury to a person who is 65 years of age or older where the actor is more than 10 years younger than the victim ( see People v Rayam , 94 NY2d 557, 561-563; People v Zamfino , 160 AD3d 779, 780; People v Choi , 137 AD3d 808, 809). An intermediate appellate court conducting a weight of the evidence review of a mixed jury verdict may take into account ''the possibility that the jury has not necessarily acted irrationally, but instead has exercised mercy'' ( People v Rayam , 94 NY2d at 562 [emphasis omitted], quoting People v Tucker , 55 NY2d 1, 7; see People v Zamfino , 160 AD3d at 780; People v Choi , 137 AD3d at 809) and need not
'assume the basis for any implied inconsistencies in mixed jury verdicts' ( People v Rayam , 94 NY2d at 563; see People v Zamfino , 160 AD3d at 780; People v Choi , 137 AD3d at 809). Upon fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we are satisfied that the verdict convicting the defendant of assault in the second degree was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
A prospective juror may be challenged for cause on the ground that '[h]e [or she] has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial' (CPL 270.20[1][b]). ''[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial'' ( People v Molina , 188 AD3d 920, 921, quoting People v Warrington , 28 NY3d 1116, 1119-1120).
Here, although a particular prospective juror initially raised a concern regarding her ability to be impartial, upon further inquiry, she unequivocally stated that she would be impartial ( see People v Warrington , 28 NY3d at 1120-1121; People v Molina , 188 AD3d at 921). Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's for-cause challenge to that prospective juror.
The defendant's remaining contention is without merit.
IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76610
C/sa
AD3d
Submitted - February 6, 2025
BETSY BARROS, J.P. LINDA CHRISTOPHER BARRY E. WARHIT JAMES P. MCCORMACK, JJ.
2022-02191
DECISION & ORDER
The People, etc., respondent, v Vanessa Rubio, appellant.
(Ind. No. 446/20)
Twyla Carter, New York, NY (Naila S. Siddiqui of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, William H. Branigan, and Lucy E. Pannes of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni M. Cimino, J.), rendered February 15, 2022, convicting her of criminal possession of a weapon in the fourth degree, upon her plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fees; as so modified, the judgment is affirmed.
'Criminal Procedure Law § 420.35(2-a) permits the waiver of surcharges and fees for individuals, like the defendant, who were less than 21 years old at the time of the subject crime' ( People v Cabrera , 222 AD3d 878, 879). Pursuant to the exercise of our interest of justice jurisdiction, and as consented to by the People, we modify the judgment by vacating the mandatory surcharge and fees imposed upon the defendant at sentencing ( see CPL 420.35[2-a][c]; People v Dillon H. , 229 AD3d 722, 723).
BARROS, J.P., CHRISTOPHER, WARHIT and MCCORMACK, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76626
C/sa
AD3d
Submitted - February 7, 2025
MARK C. DILLON, J.P. PAUL WOOTEN HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
2022-08005
DECISION & ORDER
The People, etc., respondent, v Jerry Harrison, appellant.
(Ind. No. 70091/20)
Salvatore C. Adamo, New York, NY, for appellant, and appellant pro se.
Thomas E. Walsh II, District Attorney, New City, NY (Kerianne Morrissey of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Rockland County (Larry J. Schwartz, J.), rendered September 1, 2022, convicting him of robbery in the first degree (two counts), assault in the first degree (two counts), and criminal possession of a weapon in the third degree (two counts), upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant entered a plea of guilty to two counts of robbery in the first degree, two counts of assault in the first degree, and two counts of criminal possession of a weapon in the third degree. Prior to sentencing, the defendant moved, pro se, to withdraw his plea of guilty. The County Court denied the defendant's motion, without a hearing, and imposed sentence.
'A motion to withdraw a plea of guilty rests within the sound discretion of the court, and generally the court's determination will not be disturbed absent an improvident exercise of the court's discretion' ( People v Roberts , 210 AD3d 1014, 1014 [internal quotation marks omitted]; see CPL 220.60[3]; People v Alexander , 97 NY2d 482, 485). ''In general, such a motion must be premised upon some evidence of possible innocence or of fraud, mistake, coercion or involuntariness in the taking of the plea'' ( People v Spring , 222 AD3d 665, 666, quoting People v Hollmond , 191 AD3d 120, 136 [internal quotation marks omitted]). 'When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry 'rest[s] largely in the discretion of the Judge to whom the motion is made' and a hearing will be granted only in rare instances' ( People v Brown ,
14 NY3d 113, 116, quoting People v Tinsley , 35 NY2d 926, 927; see People v Kazimer , 210 AD3d 1109, 1110).
Here, the County Court providently exercised its discretion in denying, without a hearing, the defendant's motion to withdraw his plea of guilty. Reviewing the record as a whole and the circumstances surrounding the entry of the plea ( see People v Sougou , 26 NY3d 1052, 1055), we conclude that the defendant's plea of guilty was knowingly, voluntarily, and intelligently made ( see People v Kazimer , 210 AD3d at 1110; People v Hollman , 197 AD3d 484, 484-485). The defendant's assertions in support of his motion to withdraw his plea of guilty were unsubstantiated and contradicted by the record of the plea proceeding ( see People v Haffiz , 19 NY3d 883, 884; People v Kazimer , 210 AD3d at 1110).
Further, contrary to the defendant's contention, he was not deprived of the right to conflict-free representation. 'It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea' ( People v Mitchell , 21 NY3d 964, 966; see People v Pointer , 218 AD3d 499, 500). Where defense counsel 'take[s] a position on the motion that is adverse to the defendant,' 'a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion' ( People v Mitchell , 21 NY3d at 967 [citation omitted]; see People v Sarner , 167 AD3d 663). 'Counsel 'takes a position adverse to his [or her] client,' depriving him or her of meaningful representation, 'when stating that the defendant's motion lacks merit'' ( People v Fellows , 192 AD3d 701, 701-702, quoting People v Washington , 25 NY3d 1091, 1095). Here, while defense counsel advised the court that she was not adopting the defendant's pro se motion to withdraw his plea of guilty, defense counsel did not adversely express an opinion as to the merits of the defendant's motion, and therefore, the appointment of a new attorney to represent the defendant on that motion was not required ( see People v Edwards , 223 AD3d 840, 841; People v Pointer , 218 AD3d at 500).
Furthermore, contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545; People v Lopez , 6 NY3d 248). The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that the County Court should have granted his motion to dismiss the indictment on the ground that he was deprived of his statutory right to a speedy trial pursuant to CPL 30.30 ( see People v Gore , 224 AD3d 848, 849), and that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255-256; People v Esson , 225 AD3d 786, 787).
The parties' remaining contentions are without merit .
DILLON, J.P., WOOTEN, VOUTSINAS and VENTURA, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76627 C/htr
AD3d
Submitted - February 7, 2025
MARK C. DILLON, J.P. PAUL WOOTEN HELEN VOUTSINAS LOURDES M. VENTURA, JJ.
2022-06845
The People, etc., respondent, v Uzziel Phillips, appellant.
(Ind. No. 70844/21)
Patricia Pazner, New York, NY (Russ Altman-Merino of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Ann Bordley of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Claudia Daniels-DePeyster, J.), rendered August 11, 2022, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
## ORDERED that the judgment is affirmed.
The defendant's contention that Penal Law §§ 265.01-b(1), 265.01(1), and 265.03(3) are unconstitutional in light of the decision of the United States Supreme Court in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1), and that the indictment was thus defective, is unpreserved for appellate review, since he failed to raise a constitutional challenge before the Supreme Court ( see People v Cabrera , 41 NY3d 35, 42, 50-51; People v Sirleaf , 231 AD3d 969). In any event, the defendant's contention is without merit. The Bruen decision had no impact on the constitutionality of New York State's criminal possession of a weapon statutes ( see People v Wilson , 222 AD3d 1006, 1009; People v Joyce , 219 AD3d 627, 627-628; People v Manners , 217 AD3d 683).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
The defendant's remaining contentions are unpreserved for appellate review and, in
DECISION & ORDER
any event, without merit.
DILLON, J.P., WOOTEN, VOUTSINAS and VENTURA, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76638 C/htr
AD3d
Submitted - December 6, 2024
COLLEEN D. DUFFY, J.P. PAUL WOOTEN CARL J. LANDICINO JAMES P. MCCORMACK, JJ.
2023-01079
DECISION & ORDER
The People, etc., respondent, v Jawan Lee, appellant.
(S.C.I. No. 73399/22)
Patricia Pazner, New York, NY (Elisabeth R. Calcaterra of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Danielle M. O'Boyle, and Christopher Moore of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Mary L. Bejarano, J.), rendered January 5, 2023, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted of attempted criminal possession of a weapon in the second degree pursuant to Penal Law §§ 110.00 and 265.03, upon his plea of guilty, as a result of an incident in which he was found in possession of a loaded handgun after the car in which he was a passenger was stopped by police.
The defendant contends that Penal Law § 265.03 is unconstitutional in light of the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1). However, this argument is unpreserved for appellate review, as the defendant failed to raise a constitutional challenge before the Supreme Court ( see People v Cabrera , 41 NY3d 35; People v Sargeant , 230 AD3d 1341; People v Manners , 217 AD3d 683). In Bruen , the United States Supreme Court concluded that because the State of New York issued public-carry licenses only when an applicant demonstrated a special need for self-defense, the state's licensing regime violated the Second and Fourteenth Amendments ( see
New York State Rifle & Pistol Assn., Inc. v Bruen , 597 US at 11). The court determined that the 'proper cause' requirement of Penal Law former § 400.00(2)(f) violated these amendments in that it prevented law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms ( see New York State Rifle & Pistol Assn., Inc. v Bruen , 597 US at 70-71).
In any event, the defendant's contention is without merit. The ruling in Bruen had no impact on the constitutionality of New York State's criminal possession of a weapon statutes ( see People v Manners , 217 AD3d 683).
The defendant's contention that the mandatory surcharge and fees imposed at sentencing ( see Penal Law § 60.35[1][a]) should be waived pursuant to CPL 420.35(2-a) is unpreserved for appellate review ( see id. § 470.05[2]). In any event, as the record does not establish any of the grounds enumerated in the statute to waive such fees and charges, the defendant's contention is without merit ( see id. § 420.35[2-a][a]-[c]; People v Attah , 203 AD3d 1063, 1064).
DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76645 C/htr
<!-- image -->
AD3d
Submitted - February 10, 2025
FRANCESCA E. CONNOLLY, J.P. VALERIE BRATHWAITE NELSON CARL J. LANDICINO DONNA-MARIE E. GOLIA, JJ.
2022-05435
DECISION & ORDER
The People, etc., respondent, v Clinton James, appellant.
(Ind. No. 81/13)
Patricia Pazner, New York, NY (Sam Feldman of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and Timothy Pezzoli of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), rendered May 25, 2022, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's challenge to the constitutionality of his conviction of criminal possession of a weapon in the second degree, in light of the decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 US 1), is unpreserved for appellate review, since he did not raise a constitutional challenge before the Supreme Court ( see People v Cabrera , 41 NY3d 35, 41-51; People v Sargeant , 230 AD3d 1341, 1354-1355). We decline to review the defendant's contention pursuant to our interest of justice jurisdiction.
The defendant's contention that the Supreme Court violated CPL 245.25(2) by conditioning its plea offer on the defendant's waiver of further discovery is unpreserved for appellate review ( see id. § 470.05[2]), and we decline to review that contention in the interest of justice.
CONNOLLY, J.P., BRATHWAITE NELSON, LANDICINO and GOLIA, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
PEOPLE v JAMES, CLINTON
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76646 C/htr
AD3d
Submitted - February 10, 2025
FRANCESCA E. CONNOLLY, J.P. VALERIE BRATHWAITE NELSON CARL J. LANDICINO DONNA-MARIE E. GOLIA, JJ.
2020-01038
DECISION & ORDER
The People, etc., respondent, v Alex Tlatelpo, appellant.
(S.C.I. No. 2295/19)
Twyla Carter, New York, NY (Harold V. Ferguson, Jr., of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Danielle S. Fenn of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Joanne B. Watters, J., at plea; Bruna L. DiBiase, J., at sentence), rendered December 17, 2019, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the imposition of a mandatory surcharge and fees; as so modified, the judgment is affirmed.
''Criminal Procedure Law § 420.35(2-a) permits the waiver of surcharges and fees for individuals, like the defendant, who were less than 21 years old at the time of the subject crime'' ( People v Dillon H. , 229 AD3d 722, 723, quoting People v Cabrera , 222 AD3d 878, 879; see People v Odesanya , 225 AD3d 631, 631-632). Pursuant to the exercise of our interest of justice jurisdiction, and as consented to by the People, we modify the judgment by vacating the mandatory surcharge and fees imposed upon the defendant at sentencing ( see CPL 420.35[2-a][c]; People v Thompson , 225 AD3d 713, 714; People v Torres , 225 AD3d 632, 632).
CONNOLLY, J.P., BRATHWAITE NELSON, LANDICINO and GOLIA, JJ., concur.
ENTER:
Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76650
C/htr
AD3d
Submitted - February 10, 2025
FRANCESCA E. CONNOLLY, J.P. VALERIE BRATHWAITE NELSON CARL J. LANDICINO DONNA-MARIE E. GOLIA, JJ.
2018-01846
DECISION & ORDER
2018-01847
2018-01848
2018-01849
2018-02085
2018-02086
2018-02087
The People, etc., respondent, v Michael J. Sanfilippo, appellant.
(Ind. No. 126/17; S.C.I. Nos. 291/17, 292/17, 293/17, 294/17, 295/17, 296/17)
Margaret M. Walker, Poughkeepsie, NY (Steven Levine of counsel), for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
Appeals by the defendant from seven judgments of the County Court, Dutchess County (Edward T. McLoughlin, J.), all rendered January 19, 2018, convicting him of robbery in the first degree (three counts) under Indictment No. 126/17, burglary in the third degree under Superior Court Information No. 291/17, criminal possession of stolen property in the third degree under Superior Court Information No. 292/17, burglary in the third degree under Superior Court Information No. 293/17, grand larceny in the third degree under Superior Court Information No. 294/17, burglary in the third degree under Superior Court Information No. 295/17, and burglary in the third degree under Superior Court Information No. 296/17, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
The defendant's contention that his pleas of guilty were not entered voluntarily because the County Court did not accurately advise him of his maximum potential sentencing exposure is unpreserved for appellate review ( see CPL 470.05[2]; People v Davis , 186 AD3d 852; People v Leasure , 177 AD3d 770, 772). In any event, this contention is without merit. The court accurately advised the defendant of his maximum sentencing exposure were he to have been convicted after trial on every count, and if the court were to have imposed consecutive sentences. Penal Law § 70.30(1) governs the calculation of multiple determinate and indeterminate sentences. 'The statute does not affect the authority of the courts to impose multiple sentences or govern the lengths of individual sentences but instead it provides direction to the correctional authorities as to how to compute the time which must be served under the sentences' ( People ex rel. Ryan v Cheverko , 22 NY3d 132, 136 [internal quotation marks omitted]). That the court did not advise the defendant as to how correctional authorities would compute multiple maximum consecutive sentences did not render the defendant's pleas involuntary ( see People v Leasure , 177 AD3d at 772; People v DePerno , 148 AD3d 1463, 1464-1465).
CONNOLLY, J.P., BRATHWAITE NELSON, LANDICINO and GOLIA, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76660 KS/jr
AD3d
Argued - February 18, 2025
FRANCESCA E. CONNOLLY, J.P. CHERYL E. CHAMBERS CARL J. LANDICINO DONNA-MARIE E. GOLIA, JJ.
2025-01458
DECISION, ORDER & JUDGMENT
The People, etc., ex rel. Lagarthucin LeGrand, petitioner, v Lynelle Maginley-Liddie, etc., et al., respondents.
Christopher Renfroe, Forest Hills, NY, for petitioner.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, Jonathan E. Maseng, and Danielle Catinella of counsel), for respondents.
Writ of habeas corpus in the nature of an application to release Lagarthucin LeGrand upon his own recognizance or, in the alternative, to set reasonable bail upon Queens County Indictment No. 70219/2025.
ADJUDGED that the writ is sustained, without costs or disbursements, to the extent that bail upon Queens County Indictment No. 70219/2025 is set in the sum of $50,000 posted in the form of an insurance company bail bond, the sum of $100,000 posted in the form of a partially secured bond, with the requirement of 10% down, or the sum of $25,000 deposited as a cash bail alternative, on condition that, in addition to posting a bond or depositing the cash alternative set forth above, Lagarthucin LeGrand shall (1) wear an electronic monitoring bracelet, with monitoring services to be provided by a qualified entity pursuant to CPL 510.40(4)(c), and any violations of the conditions set forth herein relating to the electronic monitoring shall be reported by the electronic monitoring service provider to the Office of the District Attorney of Queens County, and further proceedings pursuant to CPL 510.40(4)(d), if any, shall be conducted in the criminal court in Queens County; (2) remain within and shall not travel beyond the geographical limits of the City of New York; (3) surrender all passports, if any, he may have to the Office of the District Attorney of Queens County, or, if he does not possess a passport, he shall provide to the Office of the District Attorney of Queens County an affidavit or affirmation, in a form approved by the Office of the District
Attorney of Queens County, in which he attests that he does not possess a passport, and shall not apply for any new or replacement passports; and (4) provide to the Office of the District Attorney of Queens County an affidavit or affirmation, in a form approved by the Office of the District Attorney of Queens County, in which he attests that if he leaves the jurisdiction he agrees to waive the right to oppose extradition from any foreign jurisdiction; and it is further,
ORDERED that upon receipt of a copy of this decision, order and judgment together with proof that Lagarthucin LeGrand (1) has given an insurance company bail bond in the sum of $50,000, has given a partially secured bond in the sum of $100,000, with the requirement of 10% down, or has deposited the sum of $25,000 as a cash bail alternative; (2) has arranged for electronic monitoring with a qualified entity pursuant to CPL 510.40(4)(c); (3) has surrendered all passports, if any, he may have to the Office of the District Attorney of Queens County, or, if he does not possess a passport, has provided to the Office of the District Attorney of Queens County an affidavit or affirmation, in a form approved by the Office of the District Attorney of Queens County, in which he attests that he does not possess a passport, and shall not apply for any new or replacement passports; and (4) has provided to the Office of the District Attorney of Queens County an affidavit or affirmation, in a form approved by the Office of the District Attorney of Queens County, in which he attests that if he leaves the jurisdiction he agrees to waive the right to oppose extradition from any foreign jurisdiction, the Warden of the facility at which Lagarthucin LeGrand is incarcerated, or his or her agent, is directed to immediately release Lagarthucin LeGrand from incarceration.
CONNOLLY, J.P., CHAMBERS, LANDICINO and GOLIA, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76668
C/sa
AD3d
Submitted - February 11, 2025
CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER LILLIAN WAN PHILLIP HOM, JJ.
2023-01658
DECISION & ORDER
The People, etc., respondent, v Rodney Grandstand, appellant.
(Ind. No. 70792/21)
Patricia Pazner, New York, NY (Elijah Giuliano of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Michael Bierce, and Daniel Berman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered February 3, 2023, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In exchange for his plea of guilty to criminal possession of a firearm, the defendant was sentenced to two years of probation. One of the conditions of probation (hereinafter Condition 28) required the defendant to consent to the search by a probation officer of his person, vehicle, and place of abode, and the seizure of any illegal drugs, drug paraphernalia, gun/firearm, or other weapon or contraband found. On appeal, the defendant contends that Condition 28 was improperly imposed and that his sentence was excessive.
Penal Law § 65.10(1) establishes that the conditions of probation 'shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so' ( People v Mensah , 221 AD3d 732, 733 [internal quotation marks omitted]; see People v Hakes , 32 NY3d 624, 628). 'The statute quite clearly restricts probation conditions to those reasonably related to a defendant's rehabilitation' ( People v Mensah ,
221 AD3d at 733 [internal quotation marks omitted]).
Here, under the circumstances, Condition 28 of the defendant's probation was properly imposed, as it was individually tailored in relation to the underlying offense of criminal possession of a firearm, and was, therefore, reasonably related to the defendant's rehabilitation or necessary to ensure that the defendant will lead a law-abiding life ( see People v Rogers , \_\_\_\_\_ AD3d \_\_\_\_\_, 2025 NY Slip Op 00884; People v Mendoza , 231 AD3d 1170, 1170). Moreover, the part of Condition 28 that purported to allow a probation officer, incident to a search of the defendant's person, vehicle, or place of abode, to seize illegal drugs or drug paraphernalia was not unlawful. As the People note, a probation officer otherwise conducting a lawful search would be entitled to seize any contraband found regardless of Condition 28 being in place ( see People v Rogers , \_\_\_\_\_ AD3d
\_\_\_\_\_, 2025 NY Slip Op 00884; see generally People v Brown , 96 NY2d 80, 89).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
CHAMBERS, J.P., MILLER, WAN and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76670
C/sa
AD3d
Argued - February 11, 2025
CHERYL E. CHAMBERS, J.P. ROBERT J. MILLER LILLIAN WAN PHILLIP HOM, JJ.
2019-09024
DECISION & ORDER
The People, etc., respondent, v Gil Palacio Salomon, appellant.
(S.C.I. No. 580/18)
Patricia Pazner, New York, NY (Angad Singh of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Tess Mariel O'Leary of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Suzanne J. Melendez, J.), rendered September 17, 2018, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant waived his right to be prosecuted by indictment and, under a superior court information (hereinafter SCI), entered a conditional plea of guilty to, inter alia, attempted assault in the second degree. After the defendant failed to comply with certain plea conditions, he was sentenced, as promised, on his conviction of attempted assault in the second degree.
The defendant's contention that the SCI was jurisdictionally defective because the two counts thereof violate Criminal Procedure Law § 195.20 is not forfeited by his plea of guilty to offenses charged in the SCI ( see People v Hodges , 199 AD3d 1015).
A defendant may waive indictment by a grand jury and consent to prosecution by SCI ( see NY Const, art I, § 6; CPL 195.10[1]; People v Milton , 21 NY3d 133, 135; People v Hodges , 199 AD3d at 1016). 'Waivers of indictment allow a defendant to obtain a speedier disposition of the
charges against him [or her] and the State is spared the time and expense of unnecessary Grand Jury proceedings' ( People v Milton , 21 NY3d at 135-136 [internal quotation marks omitted]).
The SCI 'may include any offense for which the defendant was held for action of a grand jury and any offense or offenses properly joinable therewith pursuant to sections 200.20 and 200.40' of the Criminal Procedure Law (CPL 195.20; see People v Pierce , 14 NY3d 564, 568). '[W]here the waiver of indictment and the [SCI] include at least one offense for which the defendant was charged in the felony complaint, Criminal Procedure Law § 195.20 permits a waiver of indictment and [the SCI] to also include 'any offense' that is 'properly joinable' pursuant to Criminal Procedure Law §§ 200.20 and 200.40' ( People v Hodges , 199 AD3d at 1016; see People v Pierce , 14 NY3d at 568; People v Zanghi , 79 NY2d 815, 818).
Here, the felony complaint charged the defendant with a top count of assault in the second degree, a class D felony ( see Penal Law § 120.05[2]), and various other crimes. The SCI contained one count of attempted assault in the second degree, a class E felony ( see id. §§ 110.00, 110.05[6], 120.05[1]), and one count of assault in the third degree, a misdemeanor ( see id. § 120.00[1]). It is undisputed that the count of assault in the third degree was charged in the related felony complaint ( see generally People v Griffin , 173 AD3d 1203, 1206). Thus, pursuant to Criminal Procedure Law § 195.20, the People were permitted to include in the waiver of indictment and the SCI any offense joinable with that count pursuant to Criminal Procedure Law § 200.20 ( see People v Pierce , 14 NY3d at 572). Under the circumstances present here, the count of attempted assault in the second degree was joinable with the count of assault in the third degree because both counts were 'based upon the same act or upon the same criminal transaction' (CPL 200.20[2][a]; see id. § 40.10[2]; People v Perkins , 230 AD3d 977, 982-983). Thus, the SCI properly contained a triggering offense for which the defendant was charged in the felony complaint and a joinable offense ( see People v Hodges , 199 AD3d at 1016; People v Griffin , 173 AD3d at 1205-1206; see generally People v Milton , 21 NY3d at 135). The defendant's assertion that the count of attempted assault in the second degree was not a lesser included offense of a charge included in the felony complaint is irrelevant to the analysis because the triggering offense, assault in the third degree, was contained in the felony complaint ( see People v Milton , 21 NY3d at 136 ['an SCI may include any offense for which the defendant was charged in a felony complaint']). Further, contrary to the defendant's contention, the SCI did not become defective merely because the Supreme Court, pursuant to the terms of the conditional plea, dismissed the count containing the triggering offense and sentenced the defendant on a joinable count, attempted assault in the second degree ( see People v Perkins , 230 AD3d at 980-983).
CHAMBERS, J.P., MILLER, WAN and HOM, JJ., concur.
ENTER:
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D76678_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76678
C/sa
AD3d
Argued - February 13, 2025
LARA J. GENOVESI, J.P. LINDA CHRISTOPHER DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2016-09972
DECISION & ORDER
The People, etc., respondent, v Joseph McCrimmon, appellant.
(Ind. No. 5469/14)
Patricia Pazner, New York, NY (Robert C. Langdon of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Jason Eldridge of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Cassandra M. Mullen, J.), rendered September 8, 2016, convicting him of rape in the first degree, sexual abuse in the first degree, criminal possession of a firearm, criminal contempt in the first degree, and assault in the third degree, upon a jury verdict, and imposing sentence.
## ORDERED that the judgment is affirmed.
The defendant's contention that the Supreme Court deprived him of the right to present a defense by denying his request to call a witness is without merit. 'A criminal defendant has a fundamental right to produce witnesses, and 'absent a showing of bad faith, an application to produce witnesses whose testimony would be relevant to the defense should not be denied'' ( People v Bryant , 211 AD3d 848, 849, quoting People v Murray , 79 AD2d 993, 994). 'However, a trial court may, in its discretion, exclude evidence that is of slight or remote significance, speculative, lacking a good-faith factual basis, or solely based on hearsay' ( id. ; see People v Strzelecki , 108 AD3d 644, 645).
Here, the proposed testimony of the defendant's girlfriend regarding the complainant's knowledge of the relationship between the defendant and the defendant's girlfriend
consisted largely of hearsay, was cumulative to other evidence, and was collateral to the issues at trial. Consequently, the Supreme Court did not improvidently exercise its discretion in precluding that testimony, and that ruling did not deprive the defendant of the right to present a defense ( see People v Bryant , 211 AD3d at 849; People v Wilson , 163 AD3d 881, 882; People v Strzelecki , 108 AD3d at 645).
Contrary to the defendant's contention, the Supreme Court did not err in admitting evidence of three prior uncharged incidents involving the defendant striking the complainant about the body. 'In domestic violence cases such as this one, evidence of the prior incidents is admissible because the aggression and bad acts are focused on one particular person, demonstrating the defendant's intent, motive, identity and absence of mistake or accident, and provides the necessary background as to the relationship between the defendant and the complainant' ( People v Smith , 186 AD3d 1269, 1270 [internal quotation marks omitted]; see People v Graham , 159 AD3d 1022, 1023). Moreover, any potential for prejudice was offset by the court's limiting instructions ( see People v Smith , 186 AD3d at 1270; People v Lugo , 218 AD2d 711, 711).
Contrary to the defendant's further contention, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621), we find that it was legally sufficient to establish beyond a reasonable doubt the physical injury element of assault in the third degree pursuant to Penal Law § 120.00 ( see People v Chiddick , 8 NY3d 445, 447; People v Williams , 146 AD3d 906, 909; People v Monserrate , 90 AD3d 785, 787). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v Danielson , 9 NY3d 342), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410; People v Bleakley , 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.
ENTER:
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D76682_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76682
C/sa
AD3d
Submitted - February 13, 2025
ANGELA G. IANNACCI, J.P. WILLIAM G. FORD JANICE A. TAYLOR JAMES P. MCCORMACK, JJ.
2023-05305
DECISION & ORDER
The People, etc., respondent, v Edson Mejia, appellant.
(S.C.I. No. 70586/22)
Judah Maltz, Kew Gardens, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley of counsel; Matthew C. Frankel on the brief), for respondent.
Appeal by the defendant from a judgment of the County Court, Nassau County (Francis Ricigliano, J.), rendered May 17, 2022, convicting him of criminal possession of a controlled substance in the fifth degree, criminal possession of a firearm, and reckless endangerment in the first degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted ( see id. ; People v Murray , 169 AD3d 227; Matter of Giovanni S. [Jasmin A.] , 89 AD3d 252).
IANNACCI, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.
ENTER:
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PEOPLE v MEJIA, EDSON
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D76702_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76702
C/sa
AD3d
Argued - February 18, 2025
FRANCESCA E. CONNOLLY, J.P. CHERYL E. CHAMBERS CARL J. LANDICINO DONNA-MARIE E. GOLIA, JJ.
2020-01562
DECISION & ORDER
The People, etc., respondent, v Robert Flippen, appellant.
(Ind. No. 3516/18)
Patricia Pazner, New York, NY (Chelsea Lopez and White & Case LLP [Pablo Aabir Das, Alexander Schwennicke, Vatsala Sahay, David Hille, and Clara Petch], of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Mogan J. Dennehy, and Melissa Owen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Jill Konviser, J.), rendered January 8, 2020, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Joanne D. Quinones, J.), of that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The Supreme Court properly denied, after a hearing, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials at the precinct station house. Although the statements were made after the defendant's indelible right to counsel had attached and outside of the presence of his counsel, the statements were voluntary, spontaneous, and not the result of any police conduct or questioning which reasonably could have been expected to elicit an inculpatory response from the defendant ( see People v Caro , 177 AD3d 995; People v Velez-Garriga , 159 AD3d 928; People v Adams , 157 AD3d 897, 898; People v Matos , 133 AD3d 885, 889).
The defendant's contention that certain remarks made by the prosecutor during his opening statement and summation, and questions posed by the prosecutor during cross-examination, deprived him of a fair trial is unpreserved for appellate review, as the defendant either failed to object or made only general objections and failed to request curative instructions, and the comments now complained of were not the basis for the defendant's motion for a mistrial ( see CPL 470.05[2]; People v Broderick , 199 AD3d 696). In any event, the challenged comments and questions either were fair comment on the evidence ( see People v Ashwal , 39 NY2d 105) or, to the extent they were improper, were not so pervasive or egregious as to have deprived the defendant of a fair trial ( see People v Bensabeur , 225 AD3d 891).
The defendant's challenge to the verdict sheet is unpreserved for appellate review ( see People v Anderson , 76 AD3d 980, 982) and, in any event, without merit.
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
CONNOLLY, J.P., CHAMBERS, LANDICINO and GOLIA, JJ., concur.
ENTER:
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D76709_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76709
C/htr
AD3d
Argued - January 21, 2025
HECTOR D. LASALLE, P.J. CHERYL E. CHAMBERS JANICE A. TAYLOR CARL J. LANDICINO, JJ.
2023-12170
DECISION & ORDER
The People, etc., respondent, v Michael Sheard, appellant.
(Ind. No. 70640/22)
Jeremy M. Iandolo, Brooklyn, NY, for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and Rhys Johnson of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered October 27, 2023, convicting him of criminal sale of a controlled substance in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant and a codefendant were indicted on August 3, 2022, and charged with various felonies. The codefendant was arrested on August 9, 2022, and the police recovered a cell phone from the codefendant. The defendant was arrested and arraigned on September 12, 2022. On November 3, 2022, the People filed a certificate of compliance with discovery pursuant to CPL 245.50(1), along with a certificate of trial readiness pursuant to CPL 30.30(5). On January 20, 2023, the police applied for and obtained a search warrant to extract the contents of the codefendant's cell phone. On January 27, 2023, the People disclosed the search warrant and search warrant application to the defendant, and on January 30, 2023, the People filed a supplemental certificate of compliance noting this disclosure and also filed a new certificate of trial readiness. On March 29, 2023, the People filed a second supplemental certificate of compliance indicating that they had disclosed the information they obtained from the cell phone to the defendant, along with a new certificate of trial readiness.
By notice of motion dated April 6, 2023, the defendant moved pursuant to CPL 30.30(1)(a), 210.20, and article 245 to dismiss the indictment, contending that the certificate of compliance and the certificate of trial readiness filed on November 3, 2022, were illusory, because the People were in possession of the codefendant's cell phone at that time and knew or should have known that the cell phone contained material information. The defendant contended that the speedy trial clock therefore did not stop at that time, and 198 days had elapsed between September 12, 2022 and March 29, 2023. The Supreme Court denied the motion. The defendant was subsequently convicted, upon his plea of guilty, of one count of criminal sale of a controlled substance in the second degree.
Contrary to the defendant's contention, the Supreme Court properly denied his motion to dismiss the indictment. In opposition to the motion, the People established that the 111-day period between October 12, 2022 and January 31, 2023 should be excluded from the speedy trial period because it comprised reasonable periods of delay resulting from pretrial motions made or intended to be made by the defendant and the codefendant and the periods during which such matters were under consideration by the court ( see CPL 30.30[4][a], [d]; People v Brown , 99 NY2d 488, 492; People v Gonzalez , 266 AD2d 562, 563; People v Durette , 222 AD2d 692; People v Inswood , 180 AD2d 649, 649-650). Thus, even assuming that all of the certificates of trial readiness filed by the People were illusory and insufficient to stop the running of the speedy trial clock ( see CPL 30.30[5]; 245.50[3]), taking into account the exclusion of this 111-day period, significantly less than six months had elapsed between the commencement of the criminal action and the time that the defendant moved to dismiss the indictment ( see id. § 30.30[1][a]; People v Brown , 28 NY3d 392, 403-404).
To the extent that the defendant contends that the indictment should have been dismissed as a sanction for the People's failure to comply with their discovery obligations, this contention is without merit. Even assuming that the People failed to comply with their discovery obligations, the defendant failed to identify any prejudice that he suffered by virtue of such failures ( see CPL 245.80[1][a]; [2]).
LASALLE, P.J., CHAMBERS, TAYLOR and LANDICINO, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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D76710_pdf.md
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76710 C/htr
AD3d
Argued - January 2, 2025
HECTOR D. LASALLE, P.J. LARA J. GENOVESI JANICE A. TAYLOR PHILLIP HOM, JJ.
2022-03543
DECISION & ORDER
The People, etc., respondent, v Tahir Naqvi, appellant.
(Ind. No. 2848/06)
Patricia Pazner, New York, NY (Alexis A. Ascher of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Charles T. Pollak, and Corey Reisman of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Kenneth C. Holder, J.), dated April 27, 2022, which denied, without a hearing, his motion pursuant to CPL 440.47 to vacate his sentence and to be resentenced in accordance with Penal Law § 60.12.
## ORDERED that the order is affirmed.
In 2009, the defendant was convicted of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The murder victim was the defendant's cousin. On September 24, 2009, the defendant was sentenced to an indeterminate term of imprisonment of 25 years to life on the conviction of murder in the second degree, a determinate term of imprisonment of 15 years plus 5 years of postrelease supervision on the conviction of criminal possession of a weapon in the second degree, and a determinate term of imprisonment of 7 years plus 3 years of postrelease supervision on the conviction of criminal possession of a weapon in the third degree, with the sentences imposed to run concurrently with each other. On the defendant's direct appeal, this Court modified the judgment of conviction by reducing the sentence imposed on the conviction of murder in the second degree to an indeterminate term of imprisonment of 18 years to life ( see People v Naqvi , 132 AD3d 779).
In May 2021, the defendant moved pursuant to CPL 440.47 to vacate his sentence and to be resentenced in accordance with Penal Law § 60.12. The defendant alleged that his cousin, the murder victim, was having an affair with his wife and that he suffered substantial psychological
abuse by listening to certain phone conversations, which he had secretly recorded, between the victim and his wife during the affair. The defendant asserted that this abuse was a significant contributing factor to the offenses. The Supreme Court denied the defendant's motion without a hearing, finding that the defendant failed to submit evidence corroborating his allegations as required by CPL 440.47(2)(c). The defendant appeals.
Provided that the defendant meets certain threshold eligibility requirements pertaining to, inter alia, the length of incarceration and the type of offense ( see id. § 440.47[1][a]), a defendant may move for resentencing in accordance with Penal Law § 60.12 ( see CPL 440.47[1][c]). The motion itself, however, must make a preliminary evidentiary showing consisting of 'at least two pieces of evidence corroborating the applicant's claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household as the applicant as such term is defined in [CPL 530.11(1)]' ( id. § 440.47[2][c]). Furthermore, '[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection' ( id. ).
Here, in support of his motion, the defendant submitted, among other things, his trial testimony, a letter he sent to his wife in 2002, and a forensic-psychiatric evaluation conducted in 2012. Contrary to the defendant's contentions, this evidence failed to demonstrate that the victim subjected him to substantial psychological abuse. Rather, this evidence demonstrated that the defendant recorded and listened to private phone conversations between his wife and the victim, during which the defendant learned that his wife and the victim were having an affair and heard the victim make insulting comments about him. There was no indication that the victim knew that the defendant was listening to these phone conversations or that the victim directed these comments at the defendant. Moreover, this evidence demonstrated that the affair between the defendant's wife and the victim, rather than any comments made by the victim, led the defendant to commit the underlying offenses. Collectively, this evidence failed to corroborate the defendant's allegations that, at the time of the offenses, he was a victim of domestic violence subjected to substantial psychological abuse ( see People v Fisher , 221 AD3d 1195; People v Williams , 198 AD3d 466, 466) or that the alleged abuse was a significant contributing factor to the offenses ( see People v Rivera , 230 AD3d 517, 519; People v White , 226 AD3d 1054, 1055).
As the defendant failed to meet his burden pursuant to CPL 440.47(2)(c), the Supreme Court was not required to hold a hearing before denying the motion. Accordingly, the court properly denied the defendant's motion.
LASALLE, P.J., GENOVESI, TAYLOR and HOM, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
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