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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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## 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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## 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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## 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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## 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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## 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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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76712 C/htr
AD3d
Argued - January 10, 2025
COLLEEN D. DUFFY, J.P. PAUL WOOTEN BARRY E. WARHIT PHILLIP HOM, JJ.
2014-00573
DECISION & ORDER
The People, etc., respondent, v Dexter Bostic, appellant.
(Ind. No. 2224/10)
Twyla Carter, New York, NY (Arthur H. Hopkirk of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, Mariana Zelig, and Corey Reisman of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gregory L. Lasak, J.), rendered January 15, 2014, convicting him of attempted murder in the second degree, assault in the first degree (two counts), robbery in the first degree (two counts), and criminal possession of a weapon in the second degree (two counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the convictions of assault in the first degree under count 3 of the indictment and criminal possession of a weapon in the second degree under count 9 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
Following a jury trial, the defendant was convicted of one count of attempted murder in the second degree, two counts of assault in the first degree, two counts of robbery in the first degree, and two counts of criminal possession of a weapon in the second degree, arising from a robbery and shooting that took place in Queens on July 8, 2007.
At trial, testimony was elicited that Krystal Henry, for purposes of engaging in prostitution, entered a Porsche operated by Robert Ellis. Henry testified that as they drove, Ellis
displayed a gray or silver firearm to her. Henry indicated that the firearm displayed by Ellis appeared to be the same firearm depicted in a photograph of the firearm used during the shooting, a .45 caliber semi-automatic pistol. According to Henry, she and Ellis were subsequently joined by Ellis' roommate, the defendant, and while they drove, the defendant displayed a different firearm to her, a black firearm with a 'nozzle on the end.' Henry indicated that the black firearm displayed to her by the defendant appeared to be the same firearm depicted in a photograph of a firearm recovered the day after the shooting, an Intratec 9 millimeter semi-automatic pistol (hereinafter the Intratec firearm). Henry stated that she was dropped off near the location of the shooting, which she did not witness.
Carl Field testified that at approximately 4:50 a.m. on July 8, 2007, he was standing outside when a Porsche pulled up, and the defendant got out of the vehicle and fired several shots in his direction, striking him in the left leg. Field indicated that after he fell to the ground, the defendant stole various items from him, and then got back into the vehicle and drove away.
Further, testimony was elicited that at approximately 2:17 a.m. on July 9, 2007, a police officer on patrol in Brooklyn attempted to stop a BMW operating with a license plate belonging to a different vehicle, and the BMW drove away at a high rate of speed. As captured by security footage from a building in the vicinity, the BMW then drove the wrong way down a one-way street at approximately 2:30 a.m., followed by three individuals getting out of the BMW and running away. Thereafter, during a police search of the surrounding area where the BMW had been left, a detective recovered both the Intratec firearm and the firearm used during the shooting from inside a plastic bag in a garage. At that time, the Intratec firearm was loaded with 25 rounds of ammunition, and the firearm used during the shooting was not loaded. Testing revealed the presence of the defendant's DNA on both the Intratec firearm and the firearm used during the shooting. The defendant was subsequently apprehended and arrested on July 11, 2007.
Initially, as the People correctly concede, the counts of assault in the first degree under count 3 of the indictment (Penal Law § 120.10 [4]) and robbery in the first degree under count 4 of the indictment ( id. § 160.15[1]) were multiplicitous ( see People v Alonzo , 16 NY3d 267, 269; People v Lopes , 204 AD3d 699, 700). Accordingly, we vacate the defendant's conviction of assault in the first degree under count 3 of the indictment, vacate the sentence imposed thereon, and dismiss that count of the indictment.
Furthermore, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620), we find that it was legally insufficient to establish, beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment, which pertained to the Intratec firearm. A person is guilty of criminal possession of a weapon in the second degree when, inter alia, with intent to use the same unlawfully against another, such person possesses a loaded firearm ( see Penal Law § 265.03[1][b]). Here, the evidence presented by the People, including Henry's testimony, was legally sufficient to establish that the defendant possessed the Intratec firearm in Queens on July 8, 2007. However, the People did not present any evidence that the Intratec firearm was loaded at the time that it was in the defendant's possession in Queens on July 8, 2007, as charged under count 9 of the indictment ( see People v Santiago , 195 AD3d 1460). Rather, the People merely presented evidence that the Intratec
firearm was loaded at the time that it was found by the police in a garage in Brooklyn approximately one day later on July 9, 2007. Under these circumstances, the evidence was legally insufficient to establish, beyond a reasonable doubt, the defendant's guilt of criminal possession of a weapon in the second degree as charged under count 9 of the indictment ( see People v McFadden , 94 AD3d 1150, 1151). Accordingly, the defendant's conviction of criminal possession of a weapon in the second degree under count 9 of the indictment and the sentence imposed thereon must be vacated, and count 9 of the indictment must be dismissed. In light of our determination that the verdict of guilt of criminal possession of a weapon in the second degree under count 9 of the indictment was not supported by legally sufficient evidence, we need not consider the defendant's contention that the verdict as to that count is against the weight of the evidence ( see People v Acevedo , 187 AD3d 1030, 1033).
The defendant's contention that the Supreme Court violated his Sixth Amendment right to confrontation by admitting into evidence records of a DNA analysis performed by the Office of the Chief Medical Examiner of the City of New York is unpreserved for appellate review, since defense counsel did not object to the admission of either the records or the accompanying testimony from a supervising criminalist on the basis that their admission violated the Confrontation Clause ( see CPL 470.05[2]; People v Espinosa , 207 AD3d 655, 656; People v Kinard , 187 AD3d 936). In any event, while the admission of a nontestifying analyst's DNA report violated the defendant's Confrontation Clause rights ( see People v Cartagena , 126 AD3d 913, 914; People v Gonzalez , 120 AD3d 832, 833), that error was harmless beyond a reasonable doubt ( see People v Martinez , 165 AD3d 1288, 1289; People v Cartagena , 126 AD3d at 914). The testimony of the supervising criminalist that she performed her own independent analysis and reached her own conclusions demonstrated that she was not functioning merely as 'a conduit for the conclusions of others' ( People v Austin , 30 NY3d 98, 105 [internal quotation marks omitted]; see People v Lebron , 171 AD3d 1092, 1093). Thus, the erroneously admitted report was cumulative, as the supervising criminalist reached the same conclusions after analyzing the raw data ( see People v Rawlins , 10 NY3d 136, 156; People v Martinez , 165 AD3d at 1289; People v Gonzalez , 120 AD3d at 833).
Contrary to the defendant's contention, the Supreme Court properly denied his request to charge the jury that a prosecution witness, Henry, was an accomplice whose testimony required corroboration. 'Where differing inferences may reasonably be drawn as to whether a witness participated in the offenses, an accomplice-in-fact instruction must be given' ( People v Dotsenko , 150 AD3d 1146, 1146-1147). However, a person's ''mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with a perpetrator of a crime, is not enough for accessorial liability'' ( People v Lopez , 137 AD3d 1166, 1167, quoting Matter of Tatiana N. , 73 AD3d 186, 190-191). Here, no evidence was elicited from which it could be reasonably inferred that Henry was a participant in the subject crimes ( see People v Tucker , 72 NY2d 849, 850; People v Dotsenko , 150 AD3d at 1147; People v Pelsey , 60 AD3d 1088).
The defendant's contention that the Supreme Court, in response to a jury note requesting to see all video evidence, improperly failed to direct that the videos be shown to the jurors in the jury deliberation room, rather than in the courtroom, is unpreserved for appellate review ( see CPL 470.05[2]; People v McGuire , 196 AD3d 1155). In any event, the defendant's contention is without merit ( see CPL 310.20[1]; People v Grant , 127 AD3d 990, 991).
Further, the defendant's contention that he was improperly deprived of his right to be present at all material stages of the trial due to his exclusion from a sidebar conference is without merit. A defendant's presence at the trial is required ''only where his [or her] absence would have a substantial effect on his [or her] ability to defend'' ( People v Robinson , 203 AD2d 491, 492, quoting People v Mullen , 44 NY2d 1, 5). Here, the record demonstrates that the sidebar conference at issue did not involve ''factual matters about which the defendant might have peculiar knowledge that would be useful in advancing the defendant's or countering the People's position'' ( People v White , 41 AD3d 621, 622 [alteration omitted], quoting People v Dokes , 79 NY2d 656, 660), and that there was no ''potential for the defendant to meaningfully participate in the subject discussions'' ( People v Crowe , 167 AD3d 1036, 1037, quoting People v Fabricio , 3 NY3d 402, 406; see People v Page , 240 AD2d 765, 766).
The defendant's remaining contentions are without merit.
DUFFY, J.P., WOOTEN, WARHIT 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
D76734
A/sa
AD3d
Submitted - January 24, 2025
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER HELEN VOUTSINAS DONNA-MARIE E. GOLIA, JJ.
2023-05102
DECISION & ORDER
In the Matter of Marco F. (Anonymous), appellant.
(Docket No. E-1727-23)
Geanine Towers, Brooklyn, NY, for appellant.
Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Marco F. appeals from an order of disposition of the Family Court, Nassau County (Ellen R. Greenberg, J.), dated May 23, 2023. The order of disposition, upon an order of fact-finding of the same court dated April 5, 2023, finding that Marco F. committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, kidnapping in the second degree, rape in the third degree, criminal mischief in the third degree, and assault in the third degree (two counts), and after a dispositional hearing, 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 Marco F. on probation for a period of 12 months is dismissed as academic, without costs or disbursements; and it is further,
ORDERED that the order of disposition is modified, on the facts and in the exercise of discretion, by deleting the provision thereof adjudicating Marco F. a juvenile delinquent based upon the finding that he committed acts which, if committed by an adult, would have constituted the crime of kidnapping in the second degree, and substituting therefor a provision dismissing that count of the petition; as so modified, the order of disposition is affirmed insofar as reviewed, without costs or disbursements, and the order of fact-finding is modified accordingly.
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 Ahmand T. , 233 AD3d 693, 693). 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 id. at 693-694; Matter of Jaron D. , 204 AD3d 999, 1000).
Viewing the evidence in the light most favorable to the presentment agency ( see Matter of Dzahiah W. , 152 AD3d 612, 613), 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 criminal sexual act in the first degree ( see Matter of Justin D. , 114 AD3d 941, 942; see also People v Simmons , 135 AD3d 1193, 1195-1196).
Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we accord great deference to the opportunity of the trier of fact to view the witnesses, hear the testimony, and observe demeanor ( see Matter of Ernest S.C. , 196 AD3d 565, 566; Matter of Maximus G. , 165 AD3d 660, 662). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determinations that the appellant committed acts which, if committed by an adult, would have constituted the crimes of criminal sexual act in the first degree, rape in the third degree, criminal mischief in the third degree, and assault in the third degree were not against the weight of the evidence ( see Matter of Ernest S.C. , 196 AD3d at 566; Matter of Justin D. , 114 AD3d at 943).
However, the Family Court's determination that the appellant committed acts which, if committed by an adult, would have constituted the crime of kidnapping in the second degree was against the weight of the evidence. 'A person is guilty of kidnapping in the second degree when he [or she] abducts another person' (Penal Law § 135.20; see People v Leonard , 19 NY3d 323, 326). As relevant here, abduction 'means to restrain a person with intent to prevent his [or her] liberation by either secreting or holding him [or her] in a place where he [or she] is not likely to be found' (Penal Law § 135.00[2][a]). 'Restrain means to restrict a person's movements intentionally and unlawfully in such manner as to interfere substantially with his [or her] liberty by moving him [or her] from one place to another, or by confining him [or her] . . . without consent and with knowledge that the restriction is unlawful' ( id. § 135.00[1]; see People v Leonard , 19 NY3d at 326). Here, the presentment agency's evidence demonstrated that the appellant restrained the complainant for a very short time while the two were in the midst of a physical altercation. Although the complainant testified that the appellant pulled her partway into a vehicle, at least one door of the vehicle remained open and the vehicle traveled only a very short distance before stopping again within a matter of mere seconds. The evidence established only that the appellant restrained the complainant, without the requisite 'secreting or holding [her] in a place where [she] is not likely to be found' (Penal Law § 135.00[2][a]). Accordingly, the determination of the Family Court with respect to kidnapping in the second degree was against the weight of the evidence, and the order of disposition must be modified accordingly ( see generally Matter of Justin M. , 152 AD3d 602, 603-604).
DUFFY, J.P., MILLER, VOUTSINAS and GOLIA, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76735
M/htr
Argued - February 21, 2025
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AD3d
Argued - February 21, 2025
BETSY BARROS, J.P. VALERIE BRATHWAITE NELSON JANICE A. TAYLOR LOURDES M. VENTURA, JJ.
2022-05638
DECISION & ORDER
The People, etc., respondent, v Rahshon Leach, appellant.
(Ind. No. 556/18)
Twyla Carter, New York, NY (Dalourny Nemorin of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Nancy Fitzpatrick Talcott, and Nicholas Isaacson of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Evelyn L. Braun, J.), rendered June 30, 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; People v Lopez , 6 NY3d 248). The defendant's valid waiver of his right to appeal precludes appellate review of his challenge to the Supreme Court's suppression determination ( see People v Hightower-Castro , 219 AD3d 504, 505; People v Oneal , 202 AD3d 710).
BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, 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
D76742 C/htr
AD3d
Argued - February 24, 2025
LARA J. GENOVESI, J.P. WILLIAM G. FORD LILLIAN WAN JAMES P. MCCORMACK, JJ.
2015-03817
DECISION & ORDER
The People, etc., respondent, v Ray Vassell, appellant.
(Ind. No. 9998/12)
Patricia Pazner, New York, NY (Erica Horwitz of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Anthea H. Bruffee, and David E. Mehl of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Dineen Riviezzo, J.), rendered April 17, 2015, convicting him of criminal sexual act in the first degree (6 counts), sexual abuse in the first degree (16 counts), incest in the first degree (6 counts), endangering the welfare of a child (2 counts), tampering with a witness in the fourth degree, and criminal contempt in the second degree, upon a jury verdict, and sentencing him, as a second felony offender, inter alia, to determinate terms of imprisonment of 15 years, to be followed by 20 years of postrelease supervision on the convictions on counts 1, 2, 4, 5, 7, 8, 10, 11, 13, 14, 16, and 17, with the sentences imposed on counts 1, 2, 4, and 5 to run concurrently with each other; the sentences imposed on counts 7 and 8 to run concurrently with each other but consecutively to the sentences imposed on counts 1, 2, 4, and 5; the sentences imposed on counts 10 and 11 to run concurrently with each other but consecutively to the sentences imposed on counts 1, 2, 4, 5, 7, and 8; the sentences imposed on counts 13 and 14 to run concurrently with each other but consecutively to the sentences imposed on counts 1, 2, 4, 5, 7, 8, 10, and 11; and the sentences imposed on counts 16 and 17 to run concurrently with each other but consecutively to the sentences imposed on counts 1, 2, 4, 5, 7, 8, 10, 11, 13, and 14.
ORDERED that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentences imposed on counts 1, 2, 4, 5, 7, 8, 10, 11, 13, 14, 16, and 17 from
determinate terms of imprisonment of 15 years, to be followed by 20 years of postrelease supervision to determinate terms of imprisonment of 8 years, to be followed by 20 years of postrelease supervision; as so modified, the judgment is affirmed.
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 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 was not against the weight of the evidence ( see People v Romero , 7 NY3d 633, 636).
The defendant's contention that he was deprived of a fair trial by virtue of certain remarks made by the prosecutor during the People's summation is largely unpreserved for appellate review, since the defendant failed to object to a majority of the remarks at issue ( see CPL 470.05[2]; People v Morales , 201 AD3d 819). In any event, most of the challenged remarks were within the broad bounds of rhetorical comment permissible in closing arguments or constituted fair comment on the evidence ( see People v Anderson , 197 AD3d 713). To the extent that certain remarks were improper, they were not so flagrant or pervasive as to have deprived the defendant of a fair trial ( see People v Morales , 201 AD3d at 820; People v Rodriguez , 199 AD3d 838).
The sentence imposed was excessive to the extent indicated herein.
The defendant's remaining contentions are without merit.
GENOVESI, J.P., FORD, WAN 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
D76743 C/htr
AD3d
Submitted - February 24, 2025
LARA J. GENOVESI, J.P. WILLIAM G. FORD LILLIAN WAN JAMES P. MCCORMACK, JJ.
2022-02116
DECISION & ORDER
The People, etc., respondent, v Keanu Suckoo, appellant.
(Ind. No. 655/19)
Patricia Pazner, New York, NY (Maisha Kamal of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Kenneth Koo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered October 25, 2021, 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 Supreme Court, Queens County, for further proceedings consistent herewith.
'Criminal Procedure Law § 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, or agrees to forego it as part of a plea bargain' ( People v Carranza , 216 AD3d 814, 814 [internal quotation marks omitted]; see People v Rudolph , 21 NY3d 497, 501). 'Where a defendant is an eligible youth, the determination of whether to afford him or her youthful offender treatment must be explicitly made on the record' ( People v Kimble , 228 AD3d 886, 886 [internal quotation marks omitted]). Here, even though the defendant was an eligible youth, the record does not demonstrate that the Supreme Court made such a determination. Accordingly, the defendant's sentence must be vacated and the matter remitted to the Supreme Court, Queens County, for resentencing after a determination as to whether the defendant should be afforded youthful offender treatment ( see id. ;
People v Carranza , 216 AD3d at 815). We express no opinion as to whether the court should afford youthful offender treatment to the defendant.
Further, upon determination of the defendant's youthful offender status and resentencing, the Supreme Court must reconsider the imposition of mandatory surcharges and fees ( see People v Carranza , 216 AD3d at 815; People v Dyshawn B. , 196 AD3d 638, 641).
In light of our determination, we need not reach the defendant's remaining contention.
GENOVESI, J.P., FORD, WAN and MCCORMACK, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76744
C/sa
AD3d
Submitted - February 25, 2025
ROBERT J. MILLER, J.P. LINDA CHRISTOPHER CARL J. LANDICINO PHILLIP HOM, JJ.
2023-05777
DECISION & ORDER
The People, etc., respondent, v Carlos Forero, appellant.
(Ind. No. 73814/22)
Patricia Pazner, New York, NY (Robert C. Langdon of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel; Brendan Ransom on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Toni M. Cimino, J.), rendered June 9, 2023, convicting him of criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
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]; People v Frazier , 211 AD3d 1033; People v Taylor , 209 AD3d 772, 773). In any event, the defendant's contention is without merit. 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[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 under the age of 21 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 imposed at sentencing in the interest of justice ( see People v Acevedo , 210 AD3d 1106, 1107; People v Attah , 203 AD3d at 1064).
MILLER, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76745
C/sa
AD3d
Submitted - February 25, 2025
ROBERT J. MILLER, J.P. LINDA CHRISTOPHER CARL J. LANDICINO PHILLIP HOM, JJ.
2023-03044
DECISION & ORDER
The People, etc., respondent, v Kane M. Mantilla, also known as Kane Michael Mantilla, also known as Kane Mantillo, appellant.
(Ind. No. 70227/22)
Patricia Pazner, New York, NY (Elijah Giuliano and Lisa Napoli of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Thomas B. Litsky and James Joseph Gandia of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered February 6, 2023, convicting him of aggravated criminal contempt, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was sentenced to a five-year term of probation, following his plea of guilty to aggravated criminal contempt. The Supreme Court imposed a condition of probation (hereinafter Condition No. 28) requiring the defendant to consent to searches by a probation officer of his person, vehicle, and place of abode, and the seizure of any weapons or other contraband discovered during those searches. The defendant appeals.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Bryant , 28 NY3d 1094, 1096; People v Lopez , 6 NY3d 248, 256). 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 255-256; People v Lowe , 216 AD3d 670, 671). However, the defendant's challenge to Condition No. 28 survives his waiver of the right to appeal ( see People v Brazeal , \_\_\_\_\_ AD3d
March 19, 2025
Page 1.
\_\_\_\_\_, 2025 NY Slip Op 00976; People v Dranchuk , 203 AD3d 741, 742).
'Pursuant to Penal Law § 65.10(1), 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). 'In Penal Law § 65.10(2), the Legislature set forth a list of conditions intended as rehabilitative' ( People v Joseph D. , 226 AD3d 922, 923), including 'a catchall provision which allow[s] . . . courts to set 'any other conditions reasonably related to [the defendant's] rehabilitation'' ( People v Hakes , 32 NY3d 624, 629, quoting Penal Law § 65.10[2][l]). Sentencing courts may also impose conditions 'requir[ing] that the defendant comply with any other reasonable condition . . . necessary or appropriate to ameliorate the conduct which gave rise to the offense or to prevent the incarceration of the defendant' (Penal Law § 65.10[5]; see People v Hannah , 65 AD3d 1378, 1379). Therefore, sentencing courts may require a defendant to consent to searches by his or her probation officer for weapons or other contraband, so long as the condition is 'reasonably related to the defendant's rehabilitation, or necessary to ensure that the defendant will lead a law-abiding life' ( People v Mensah , 221 AD3d at 733; see People v Hale , 93 NY2d 454, 461). To satisfy this standard, courts must ensure that the condition is 'individually tailored in relation to the offense' ( People v Dranchuk , 203 AD3d at 743) and the defendant's particular circumstances, including his or her 'background, history, and proclivities' ( People v Hale , 93 NY2d at 461; see People v Acuna , 195 AD3d 854, 855).
Here, the Supreme Court properly imposed Condition No. 28 upon the defendant. Given that the defendant allegedly used a dangerous instrument ( see Penal Law § 10.00[13]; see also People v Vega , 33 NY3d 1002, 1004) in the commission of several of the underlying charged offenses, along with his history of violence directed towards the victim, the imposition of this condition was 'reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so' (Penal Law § 65.10[1]; see People v Brazeal , \_\_\_\_\_ AD3d \_\_\_\_\_, 2025 NY Slip Op 00976; People v Scott , 226 AD3d 443, 443-444). To the extent that the defendant contends that the imposition of this condition was improper because it was not part of his plea agreement, his contention is without merit ( see CPL 410.10[1]; People v Gravino , 14 NY3d 546, 559; People v Bermudez , 171 AD3d 777, 778).
MILLER, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.
2023-03044
DECISION & ORDER ON MOTION
The People, etc., respondent, v Kane M. Mantilla, also known as Kane Michael Mantilla, also known as Kane Mantillo, appellant.
(Ind. No. 70227/22)
Appeal from a judgment of the Supreme Court, Richmond County, rendered February 6, 2023. Motion by the respondent, inter alia, to strike stated portions of the appellant's brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court
March 19, 2025
dated November 6, 2024, that branch of the motion which is to strike stated portions of the appellant's brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the branch of the motion which is to strike stated portions of the appellant's brief is denied.
MILLER, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76779 C/htr
AD3d
Argued - January 27, 2025
BETSY BARROS, J.P. WILLIAM G. FORD LILLIAN WAN LAURENCE L. LOVE, JJ.
2018-03416
DECISION & ORDER
The People, etc., respondent, v Anthony D. Steward, appellant.
(Ind. No. 10492/14)
Patricia Pazner, New York, NY (Steven C. Kuza of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Joseph M. DiPietro of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Daniel M. Lewis, J.), rendered January 8, 2018, as amended January 17, 2018, convicting him of criminal possession of a controlled substance in the fourth degree and unlawful possession of marihuana, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial (Barry A. Schwartz, J.), after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana is dismissed as academic; and it is further,
ORDERED that the judgment, as amended, is reversed insofar as reviewed, on the law, and the matter is remitted to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with criminal possession of a controlled substance in the fourth degree.
The defendant was convicted, after a nonjury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1]) and unlawful possession of marihuana ( id. former § 221.05, repealed by L 2021, ch 92, § 15). The evidence adduced at trial
established that, on the evening of July 8, 2014, police officers stopped a vehicle in which the defendant was a passenger for alleged traffic infractions involving tinted windows and a broken rear taillight. A police officer testified that, during the subject stop, he smelled marihuana and saw a bag of marihuana inside the vehicle. Another officer searched the defendant and recovered, among other things, six bags of crack cocaine, a marihuana cigarette, and a bag of marihuana from the defendant's person.
The defendant's conviction of unlawful possession of marihuana became a nullity by operation of law, independently of any appeal, and without requiring any action by this Court ( see CPL 160.50[5]; People v Bensabeur , 225 AD3d 891, 892). Consequently, the appeal from so much of the judgment, as amended, as convicted the defendant of unlawful possession of marihuana must be dismissed as academic ( see People v Bensabeur , 225 AD3d at 892).
The defendant's contention that the Supreme Court erred in denying suppression of all physical evidence because the stop of the vehicle was improper is unpreserved for appellate review ( see CPL 470.05[2]; see People v West , 218 AD3d 798, 799), and in any event, without merit. Although the Court of Appeals recently concluded that testimony that a vehicle's windows were 'excessively tinted' was insufficient to establish a basis for a stop based upon a traffic infraction ( People v Nektalov , 42 NY3d 363, 366 [internal quotation marks omitted]), in this case, a police officer further testified that one of the vehicle's rear taillights was broken with the light from a white bulb emitting light through the crack, indicative of a 'defective or inoperable brake light' ( People v John , 119 AD3d 709, 710), which was a sufficient basis for the stop. Moreover, the court properly concluded that the subsequent search of the defendant's person was supported by probable cause ( see People v Clements , 221 AD3d 1023, 1025; People v Henderson , 197 AD3d 663, 664).
Viewing the evidence adduced at the trial 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 criminal possession of a controlled substance in the fourth 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 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, 494). Upon reviewing the record here, we are satisfied that the verdict of guilt as to that count was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
However, the Supreme Court, in rendering its verdict, impermissibly shifted the burden of proof to the defendant. The defendant asserted at trial that he had been framed by the police. In delivering its verdict, the court ruled that 'the credible testimony before me does not persuade this Court beyond a reasonable doubt that [the] defendant was in fact framed. And that being so . . . I find [the] defendant guilty.' The court's finding 'reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant's guilt' ( People v Antommarchi , 80 NY2d 247, 252; see People v David , 41 NY3d 90, 97). Accordingly, the judgment, as amended, must be reversed insofar as reviewed, and we remit the matter to the Supreme Court, Queens County, for a new trial on the count of the indictment charging the defendant with
criminal possession of a controlled substance in the fourth degree.
In light of our determination, we need not reach the parties' remaining contentions.
BARROS, J.P., FORD, WAN and LOVE, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76791 Y/htr
AD3d
BETSY BARROS, J.P. VALERIE BRATHWAITE NELSON JANICE A. TAYLOR LOURDES M. VENTURA, JJ.
2024-03578
The People, etc., respondent, v Charles L. Stoll, appellant.
(Ind. No. 701707/23)
Steven N. Feinman, White Plains, NY, for appellant.
Robert V. Tendy, District Attorney, Carmel, NY, for respondent.
Appeal by the defendant from a judgment of the County Court, Putnam County (Joseph J. Spofford, Jr.), rendered May 7, 2024, convicting him of burglary in the third degree, grand larceny in the fourth degree, and possession of burglar's tools, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
In light of the defendant's extensive criminal record, which involves felony convictions, the County Court providently exercised its discretion in denying the defendant's application to participate in a judicial diversion program ( see People v O'Keefe , 112 AD3d 524; People v Powell , 110 AD3d 1383; People v Williams , 105 AD3d 1428).
BARROS, J.P., BRATHWAITE NELSON, TAYLOR and VENTURA, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
Submitted - February 21, 2025
DECISION & ORDER
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76822 O/jr
AD3d
COLLEEN D. DUFFY, J.P. BARRY E. WARHIT JANICE A. TAYLOR PHILLIP HOM, JJ.
2024-13562
DECISION & JUDGMENT
In the Matter of Eric Gonzalez, etc., petitioner, v John T. Hecht, etc., et al., respondents.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Ann Bordley, and Avshalom Yotam of counsel), petitioner pro se.
Proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent John T. Hecht, a Justice of the Supreme Court, Kings County, from enforcing an order of the Supreme Court, Kings County, dated September 9, 2024, issued in an action entitled People v Kamenev , pending in that court under Indictment No. 9122/11, disqualifying Joshua Charlton from serving as an assistant district attorney in that case.
ADJUDGED that the petition is granted, without costs or disbursements, and the respondent John T. Hecht, a Justice of the Supreme Court, Kings County, is prohibited from enforcing the order dated September 9, 2024, issued in the action entitled People v Kamenev , pending in the Supreme Court, Kings County, under Indictment No. 9122/11, disqualifying Joshua Charlton from serving as an assistant district attorney in that case.
The petitioner, Eric Gonzalez, the Kings County District Attorney, commenced this proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the enforcement of an order dated September 9, 2024, issued by the respondent John T. Hecht, a Justice of the Supreme Court, Kings County, disqualifying Joshua Charlton from serving as an assistant district attorney in an action entitled People v Kamenev in the Supreme Court, Kings County, under Indictment No. 9122/11 (hereinafter the underlying criminal matter) on the ground that Justice Hecht exceeded his judicial authority in doing so.
'A writ of prohibition is an extraordinary remedy available only where there is a clear legal right to such relief and only when a court (if a court is involved) acts or threatens to act without
jurisdiction or, as relevant here, exceeds its authorized powers in a proceeding over which it has jurisdiction' ( Matter of Maria S. v Tully , 214 AD3d 988, 989 [internal quotation marks omitted]; see Matter of Holtzman v Goldman , 71 NY2d 564, 569). Prohibition does not lie to correct a mere error of law, however egregious the error and however cleverly it may be characterized as an excess of jurisdiction or power ( see Matter of Rush v Mordue , 68 NY2d 348, 353). Thus, when a petitioner seeks relief in the nature of prohibition, 'the court must make a two-tiered analysis. It must first determine whether the issue presented is the type for which the remedy may be granted and, if it is, whether prohibition is warranted on the merits of the claim' ( Matter of Holtzman v Goldman , 71 NY2d at 568).
The order disqualifying Charlton from prosecuting the underlying criminal matter is subject to prohibition for exceeding the Supreme Court's authorized powers ( see Matter of Sedore v Epstein , 56 AD3d 60, 63; Matter of Dillon v Kowtna , 270 AD2d 219; Matter of Morgenthau v Altman , 207 AD2d 685).
Further, the record before us demonstrates that the petitioner duly appointed Charlton as an assistant district attorney to prosecute the retrial of the underlying criminal matter pursuant to County Law § 702 ( see People v Ramos , 34 Misc 3d 914 [Sup Ct, Kings County]). While the petitioner's letter of appointment for Charlton used the title 'special assistant district attorney,' Charlton was clearly not a 'special district attorney' within the meaning of County Law § 701, since he was appointed to work for the petitioner in the same manner as his fellow assistant district attorneys, as also indicated by his oath of office card, under the direct supervision of a designated bureau chief ( see id. cf. People v Del Col ; , 88 AD3d 737). Additionally, there is no suggestion in the record of any appearance of impropriety or a conflict of interest that would otherwise support disqualifying Charlton from serving as an assistant district attorney in the underlying criminal matter ( see generally Matter of Shumer v Holtzman , 60 NY2d 46, 54-55).
Accordingly, we conclude that the Supreme Court exceeded its authority by disqualifying Charlton from serving as an assistant district attorney in the underlying criminal matter and therefore, grant the petition.
DUFFY, J.P., WARHIT, TAYLOR 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
D76831 M/htr
AD3d
Argued - November 19, 2024
BETSY BARROS, J.P. LINDA CHRISTOPHER JANICE A. TAYLOR JAMES P. MCCORMACK, JJ.
2023-02654
The People, etc., plaintiff, v Wayne Isaacs, appellant; New York City Civilian Complaint Review Board, nonparty-respondent.
(Ind. No. 5873/16)
APPEAL by the defendant from an order of the Supreme Court (Danny K. Chun, J.), entered March 8, 2023, in Kings County, which granted the motion of nonparty New York City Civilian Complaint Review Board to unseal the record of this criminal action.
Worth, London & Martinez, LLP, New York, NY (Stuart Gold of counsel), for appellant.
Muriel Goode-Trufant, Corporation Counsel, New York, NY (Claude S. Platton and Hannah J. Sarokin of counsel), for nonparty-respondent.
## MCCORMACK, J.
On this appeal, we are called upon to decide whether nonparty New York City Civilian Complaint Review Board (hereinafter the CCRB) should be granted access to the sealed criminal record of the defendant pursuant to CPL 160.50. We conclude that it should not.
## I. Relevant Facts
The CCRB was established by the New York City Charter 'as a body comprised solely of members of the public with the authority to investigate allegations of police misconduct'
OPINION & ORDER
(NY City Charter § 440[a]). It has 'the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public or complaints initiated by the [CCRB] against members of the police department that allege misconduct,' including 'excessive use of force' ( id. § 440[c][1]). Following an investigation, the CCRB's Administrative Prosecution Unit may, under a delegation of authority from the New York City Police Department (hereinafter the NYPD), prosecute officers on disciplinary charges, subject to the Police Commissioner's approval ( see 38-A RCNY 1-41, 1-42).
According to the CCRB, in May 2018, it received a civilian complaint regarding an alleged road-rage incident that had taken place between the defendant and Delrawn Small (hereinafter the decedent) on July 4, 2016. According to the CCRB, the civilian complaint alleged that the decedent was driving in his vehicle on Atlantic Avenue in Brooklyn with his girlfriend, their five-month-old son, and the girlfriend's 14-year-old daughter when the defendant cut him off. When both vehicles stopped at a red light, the decedent, who was unarmed, exited his vehicle and approached the defendant's vehicle. The defendant, an off-duty police officer employed by the NYPD, drew his weapon and shot the decedent three times. The defendant then exited his vehicle and called 911. According to the defendant, he gave the dispatcher his location, and upon the arrival of responding units, he flagged down a supervisor and reported what had transpired. The decedent was pronounced dead at the scene of the incident.
After the incident, the New York State Attorney General and the NYPD's Force Investigation Division investigated the incident. The defendant was indicted by a grand jury and charged with murder in the second degree and manslaughter in the first degree. On September 27, 2016, the NYPD served the defendant with charges and specifications. At his criminal trial, the defendant presented a justification defense, and in November 2017, the jury acquitted him of all charges. As a result, the records pertaining to the defendant's arrest and criminal prosecution were sealed ( see CPL 160.50).
After the defendant's acquittal, the NYPD interviewed the defendant. The NYPD's Use of Force Review Board found no violation of the NYPD's policy and recommended that the defendant not be subject to disciplinary action. In December 2018, the defendant was restored to full duty as a police officer.
According to the CCRB, when it received the civilian complaint in May 2018, it
investigated the matter as a possible use of excessive force. The CCRB requested records from the NYPD but contends that the NYPD's ability to comply was limited due to the records being sealed pursuant to CPL 160.50. The CCRB interviewed the defendant in December 2019.
According to the CCRB, in October 2020, following its review of the CCRB's investigation, the Board of the CCRB found cause to believe that the defendant had committed misconduct and recommended that the defendant face charges and specifications. The Police Commissioner authorized the CCRB's administrative prosecution of the defendant. The CCRB charged the defendant with three counts of intentionally using force without police necessity, rising to the level of assault in the second degree, in violation of the NYPD's Patrol Guide.
In March 2021, the defendant commenced a proceeding pursuant to CPLR article 78 against the CCRB, the NYPD, and the Police Commissioner, among others, in the Supreme Court, New York County, entitled Matter of Isaacs v New York City Complaint Review Bd. , under Index No. 152754/21, alleging, inter alia, that the disciplinary charges were untimely and that the CCRB's investigation and the Police Commissioner's actions were arbitrary and capricious. In a judgment dated January 24, 2022, the court denied the petition and dismissed the proceeding as premature, based on the defendant's failure to exhaust his administrative remedies ( see Matter of Isaacs v New York City Civilian Complaint Review Bd. , 2022 NY Slip Op 30303[U] [Sup Ct, NY County]).
In October 2021, while the CPLR article 78 proceeding was pending, the CCRB moved herein to unseal the record of this criminal action pursuant to New York City Charter §§ 440 and 1120 and Judiciary Law § 2-b(3) in order to conduct its disciplinary trial, contending that the CCRB has a compelling interest in obtaining the records relating to the defendant's criminal prosecution and that, in any event, the defendant waived the protections of CPL 160.50 by commencing the CPLR article 78 proceeding. The defendant opposed the motion, arguing, among other things, that he had not waived the protections of CPL 160.50, the CCRB had no authority to investigate off-duty police misconduct, and the CCRB is not entitled to unseal the record pursuant to CPL 160.50.
In an order entered March 8, 2023, the Supreme Court granted the CCRB's motion, determining that the CCRB 'met its burden by showing that without an unsealing of the criminal records, it could not accomplish protecting the public through investigating and possibly disciplining a police officer' and that 'relevant information cannot be obtained from sources other than the grand
jury minutes and other sealed records.' The defendant appeals.
## II. Right to Unseal Records Under CPL 160.50
Generally, when a criminal action or proceeding is terminated in favor of an accused, 'all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency' (CPL 160.50[1][c]; see Matter of City of Elmira v Doe , 39 AD3d 942, 943, affd , 11 NY3d 799). 'The statute serves the laudable goal of insuring that one who is charged but not convicted of an offense suffers no stigma as a result of his [or her] having once been the object of an unsustained accusation' ( Matter of Hynes v Karassik , 47 NY2d 659, 662).
'However, 'a former defendant's interest in preventing the disclosure of official records and papers . . . is not absolute'' ( Matter of New York State Commn. on Jud. Conduct v Rubenstein , 23 NY3d 570, 580, quoting Matter of Harper v Angiolillo , 89 NY2d 761, 767). ''[T]he Legislature has acknowledged the existence of countervailing considerations to the sealing of such records and papers' as reflected in express statutory exceptions set forth in CPL 160.50(1)(d)' ( id. , quoting Matter of Harper v Angiolillo , 89 NY2d at 766).
'In addition to the accused and the accused's designated agent, a court may make sealed records available only: to (1) a 'prosecutor in any proceeding in which the accused' has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade (CPL 160.50[1][d][i]); (2) 'a law enforcement agency upon ex parte motion in any superior court, if such agency demonstrates to the satisfaction of the court that justice requires' release (CPL 160.50[1][d][ii]); (3) state or local gun licensing agencies when the accused applies for a gun license ( see CPL 160.50 [1][d][iii]); (4) the Division of Parole when the arrest occurred while the accused was under parole supervision ( see CPL 160.50[1][d][iv]); (5) the prospective employer of a police officer or peace officer, so long as the applicant is provided with a copy of all records and given an opportunity to explain ( see CPL 160.50[1][d][v]); and (6) any probation department responsible for the accused's supervision at the time of his or her arrest ( see CPL 160.50[1][d][vi])' ( id. ).
None of these exceptions apply to the CCRB. Although a bill was sponsored to amend CPL 160.50 to authorize the CCRB 'to review the records of a criminal action settled in favor of the accused in furtherance of an open investigation or disciplinary proceeding under [the CCRB's]
review' (2023 NY Senate Bill S7034), it remains that the Legislature has not amended the statute to create a seventh exception for the CCRB ( see People v Anonymous , 34 NY3d 631, 643-644 [discussing the Legislature's rejection of an attempt to amend CPL 160.50 to include a seventh exception to permit a party in a criminal proceeding to move for unsealing upon notice to the adverse party if it 'demonstrates to the satisfaction of the court that justice requires that the records be made available to [it] in connection with the criminal proceeding' (2011 NY Assembly Bill A7389)]; Matter of Joseph M. [New York City Bd. of Educ.] , 82 NY2d 128, 133 [if the Legislature had intended to create an exception for teacher disciplinary proceedings it would have done so]).
Despite not being authorized by CPL 160.50 to request the release of the records, the CCRB contends that it is entitled to access since there are extraordinary circumstances and disclosure is necessary. According to the CCRB, in Matter of James v Donovan (130 AD3d 1032), this Court explained that 'the list of parties permitted to seek the unsealing of records under CPL 160.50(1)(d) has been expanded in extraordinary circumstances, upon a showing of a compelling demonstration that disclosure was necessary' ( id. at 1036 [citations and internal quotation marks omitted]). Matter of James v Donovan , however, did not involve a motion to unseal records pursuant to CPL 160.50, but rather, involved proceedings to unseal and release grand jury minutes and evidence arising out of the death of Eric Garner pursuant to CPL 190.25(4)(a). Therein, the District Attorney had argued that certain parties lacked standing to seek disclosure of the grand jury materials since they were not among the individuals and agencies specifically enumerated in CPL 160.50(1)(d). In addressing this argument, this Court, while noting that CPL 160.50 was inapplicable to the case, also noted that the list had been expanded in extraordinary circumstances ( see Matter of James v Donovan , 130 AD3d at 1036). The language relied on by the CCRB was not intended by this Court, however, to expand access to the extent requested by the CCRB, such as to make 'unsealing of records the rule rather than a narrowly confined exception' ( Matter of New York State Commn. on Jud. Conduct v Rubenstein , 23 NY3d at 581).
The Court of Appeals has made it clear that 'absent extraordinary circumstances, a specific grant of power, or the existence of a legal mandate the nature of which would be impossible to fulfill without unsealing criminal records, sealed criminal records may only be accessed by individuals and agencies specifically enumerated, and narrowly defined in CPL 160.50(1)(d)' ( id. [citations and internal quotation marks omitted]). Here, the CCRB has failed to establish that any
of these conditions exist to support its argument that it has authority to obtain the sealed records ( cf. id. at 579 [New York State Commission on Judicial Conduct is authorized pursuant to Judiciary Law § 42(3) and its constitutional mandate to investigate judicial misconduct to request and receive records sealed under CPL 160.50 for use in its investigations]).
Although the New York City Charter authorizes the CCRB to compel the attendance of witnesses and to require the production of such records and other materials as are necessary for its investigations of police misconduct, and further requires the NYPD, inter alia, to provide records and other materials that are necessary for the CCRB's investigations, the Charter specifically exempts from such disclosure 'such records or materials that cannot be disclosed by law' (NY City Charter § 440[d][1]). As such, it cannot be said that the CCRB has been given a specific grant of power that would allow it to access the sealed records ( cf. Matter of Dondi , 63 NY2d 331, 338).
Moreover, given that the CCRB was able to conclude its investigation and recommend that the defendant be subject to discipline, it was not 'impossible' for the CCRB to fulfill its legal mandate without unsealing the defendant's records ( Matter of New York State Commn. on Jud. Conduct v Rubenstein , 23 NY3d at 581).
Nor does the Supreme Court's inherent authority over its proceedings provide it with the power to unseal the records under the circumstances of this case, 'because that 'would subvert the plain intendment of the statutory scheme-to establish, in unequivocal mandatory language, a general proscription against releasing sealed records and materials, subject only to a few narrow exceptions'' ( People v Anonymous , 34 NY3d at 642, quoting Matter of Joseph M. [New York City Bd. of Educ.] , 82 NY2d at 134). 'Such discretionary power may be invoked . . . only upon a compelling demonstration, by affirmation, that without an unsealing of criminal records, the ends of protecting the public through investigation and possible discipline . . . cannot be accomplished' ( Matter of Dondi , 63 NY2d at 338). Here, the CCRB has failed to establish the existence of extraordinary circumstances that would warrant a court to issue an order unsealing the records ( see id. ).
In support of its motion, the CCRB merely contended that the records were vital and necessary to its administrative prosecution of the defendant. The CCRB did not specify which records were vital or necessary, although in its brief it contends for the first time that such evidence includes, among other things, records from the crime scene unit, since they 'likely contain
photographs and forensic evidence.' The CCRB did not contend in support of its motion that 'other avenues of investigation had been exhausted or thwarted or that it was probable that the record[s] contained information that was . . . not otherwise available by conventional investigative means' ( id. at 339). The CCRB does not contend that witnesses, such as the decedent's girlfriend and her daughter, are unavailable to testify at the disciplinary trial, and it acknowledges that it received some documents from the NYPD. Although the CCRB contends that the NYPD's ability to comply was limited because the records were sealed pursuant to CPL 160.50, the CCRB was able to conduct its investigation, determine that the defendant had committed misconduct, and recommend that he face charges before it moved to unseal the records. In addition, the CCRB concedes that it will be able to conduct the disciplinary trial whether or not it obtains the records. 'The statute's provisions strongly suggest that its primary focus is the unsealing of records for investigatory purposes' ( Matter of Katherine B. v Cataldo , 5 NY3d 196, 205), not cases where it appears that the evidence is sought primarily for impeachment purposes ( see Matter of New York State Police v Charles Q. , 192 AD2d 142, 146). The CCRB's conclusory allegations that the records are vital and necessary for use in the defendant's disciplinary trial are insufficient to justify unsealing the records ( see Matter of Dondi , 63 NY2d at 338; Matter of New York State Police v Charles Q. , 192 AD2d at 146). Convenience alone will not justify an unsealing ( see Matter of Dondi , 63 NY2d at 338).
## III. Waiver
Alternatively, the CCRB contends that the order should be affirmed since the defendant waived any privacy interest he had in the records by commencing the CPLR article 78 proceeding. We disagree.
'Where a party puts into issue in a civil action elements common both to the civil action and to a criminal prosecution, that party waives the privilege conferred by CPL 160.50' ( Lundell v Ford Motor Co. , 120 AD2d 575, 576). Generally, such waiver occurs when a successful criminal defendant affirmatively places the underlying conduct at issue by commencing a civil suit against the State or a law enforcement agency ( see Wright v Snow , 175 AD2d 451, 452; Taylor v New York City Tr. Auth. , 131 AD2d 460, 462). Here, although the defendant's petition in the CPLR article 78 proceeding described some of the evidence presented at his criminal trial, that proceeding challenged only the timeliness of the CCRB's investigation and the determination of the CCRB and the NYPD to proceed with disciplinary charges despite the NYPD's prior determination not to
discipline the defendant. The defendant did not place at issue his underlying conduct with respect to the criminal charges, and the respondents in the CPLR article 78 proceeding were able to answer the petition without using the materials under seal. As such, it cannot be said that the defendant 'affirmatively place[d] the underlying conduct at issue by bringing a civil suit' ( Best v 2170 5th Ave. Corp. , 60 AD3d 405, 405).
## IV. Miscellaneous
The parties' remaining contentions are without merit.
In light of the foregoing, the order is reversed, on the law, and the CCRB's motion to unseal the record of this criminal action is denied.
BARROS, J.P., CHRISTOPHER and TAYLOR, JJ., concur.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the motion of nonparty New York City Civilian Complaint Review Board to unseal the record of this criminal action is denied.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76835
C/htr
AD3d
Argued - February 28, 2025
COLLEEN D. DUFFY, J.P. VALERIE BRATHWAITE NELSON BARRY E. WARHIT JANICE A. TAYLOR, JJ.
2023-02973
DECISION & ORDER
The People, etc., respondent, v Roger Alleyne, appellant.
(Ind. No. 70295/22)
Law Offices of Joseph S. Gulino, Jr., Esq., PLLC, White Plains, 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 (Craig S. Brown, J.), rendered March 2, 2023, convicting him of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree (two counts), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
The defendant was convicted, upon his plea of guilty, of one count of criminal possession of a weapon in the second degree (Penal Law § 265.03[3]) and two counts of criminal possession of a weapon in the third degree ( id. § 265.02[1], [3]). The defendant contends that the County Court should have suppressed the gun found in his possession when he was frisked by police officers for lack of reasonable suspicion.
Pursuant to People v De Bour (40 NY2d 210), there is 'a graduated four-level test for evaluating the propriety of police encounters when a police officer is acting in a law enforcement capacity' ( People v Benbow , 193 AD3d 869, 871 [internal quotation marks omitted]). 'The first level 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' ( id. [internal quotation marks omitted]). 'The second level, known as the common-law right of inquiry, requires a founded suspicion that criminal activity is afoot, and permits a somewhat greater
intrusion' ( id. [internal quotation marks omitted]). 'Based upon a founded suspicion that criminal activity is afoot, the subject may be asked to produce identification, may be asked whether he [or she] has weapons, and may be asked to remove his [or her] hands from his [or her] pockets' ( Matter of Shakir J. , 119 AD3d 792, 794-795 [citation omitted]; see People v Muhammed , 196 AD3d 1151, 1152-1153). 'The third level permits a police officer to forcibly stop and detain an individual' ( People v Benbow , 193 AD3d at 871 [internal quotation marks omitted]). 'Such a detention, however, is not permitted unless there is a reasonable suspicion that an individual is committing, has committed, or is about to commit a crime' ( id. [internal quotation marks omitted]). 'A corollary of the statutory right to temporarily detain for questioning is the authority to frisk if the officer reasonably suspects that he [or she] is in danger of physical injury by virtue of the detainee being armed' ( People v De Bour , 40 NY2d at 223). 'The fourth level authorizes an arrest based on probable cause to believe that a person has committed a crime' ( People v Benbow , 193 AD3d at 871 [internal quotation marks omitted]).
Here, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence. Contrary to the defendant's contention, under the circumstances, the officers had a founded suspicion that criminal activity was afoot, supporting a level-two inquiry at the outset of the encounter ( see People v King , 164 AD3d 915, 915; People v Abdul-Mateen , 126 AD3d 986, 987-988). Under the facts of this case, the officers' repeated requests to the defendant to show his hands and to step down from the elevated surface on which he was standing were reasonable ( see People v Abdul-Mateen , 126 AD3d at 988). The defendant's failure to comply with these requests, combined with his action in positioning his body to hide his right hand and right side from the officers' view, escalated the encounter such that the officer was then justified in briefly detaining the defendant and frisking him for self-protection ( see People v Baker , 205 AD3d 815, 817; People v Alston , 23 AD3d 487, 488).
Accordingly, the evidence at the suppression hearing established that, although the encounter began as a level-two inquiry, the defendant, through his actions, escalated the encounter into a level-three stop, and the officer recovered the gun as part of a justifiable frisk of the defendant during the level-three stop ( see People v Baker , 205 AD3d at 817; People v South , 200 AD3d 812, 813).
Therefore, the County Court properly denied that branch of the defendant's omnibus motion which was to suppress the gun recovered as a result of the frisk.
Contrary to the defendant's contention, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
DUFFY, J.P., BRATHWAITE NELSON, WARHIT and TAYLOR, 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
D76839
C/htr
AD3d
Submitted - March 6, 2025
FRANCESCA E. CONNOLLY, J.P. LARA J. GENOVESI DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2022-05317 2022-05318 2025-02206
DECISION & ORDER
The People, etc., respondent, v Theodore Latimore, appellant.
(Ind. Nos. 3/21, 50/21, 71/21)
Kelley M. Enderley, Poughkeepsie, NY, for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Anna K. Diehn of counsel), for respondent.
Appeals by the defendant from three judgments of the County Court, Dutchess County (Edward T. McLoughlin, J.), all rendered March 4, 2022, convicting him of criminal possession of stolen property in the fourth degree under Indictment No. 3/21, grand larceny in the fourth degree under Indictment No. 50/21, and grand larceny in the fourth degree under Indictment No. 71/21, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are 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 pleas of guilty and admissions of guilt ( see People v Victor , \_\_\_\_\_ AD3d \_\_\_\_\_, 2025 NY Slip Op 00887; People v White , 234 AD3d 884). 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 appeal waiver was knowing, voluntary, and intelligent ( see People v Sanders , 25 NY3d 337, 340; People v Bradshaw , 18 NY3d 257, 264;
People v Victor , \_\_\_\_\_ AD3d \_\_\_\_\_, 2025 NY Slip Op 00887; People v White , 234 AD3d 884).
Under the circumstances of this case, the defendant's valid waiver of his right to appeal encompasses his claim that the enhanced sentences were excessive ( see People v Delcid , 234 AD3d 871, 871; People v Florio , 179 AD3d 834, 835; People v Mickens , 151 AD3d 984, 984; People v Thompson , 148 AD3d 1187).
CONNOLLY, J.P., GENOVESI, DOWLING and LOVE, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76858 O/sa
AD3d
Submitted - March 7, 2025
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER JANICE A. TAYLOR PHILLIP HOM, JJ.
2019-11273
DECISION & ORDER
The People, etc., respondent, v Devon Trent, appellant.
(Ind. No. 114/19)
Richard L. Herzfeld, New York, NY, for appellant.
Raymond A. Tierney, Riverhead, NY (Kathleen Becker Langlan and Marion Tang of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (William J. Condon, J.), rendered September 5, 2019, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The sentence imposed was not excessive ( see generally People v Brisman , \_\_\_\_\_ NY3d \_\_\_\_\_, \_\_\_\_\_, 2025 NY Slip Op 00123, *1).
The People's remaining contention is without merit.
DUFFY, J.P., MILLER, TAYLOR and HOM, JJ., concur.
ENTER:
Darrell M. Joseph
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PEOPLE v TRENT, DEVON
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76863
C/sa
AD3d
Argued - March 7, 2025
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER JANICE A. TAYLOR PHILLIP HOM, JJ.
2018-05290
DECISION & ORDER
The People, etc., respondent, v Cheyenne Wright, appellant.
(Ind. No. 5394/16)
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant, and appellant pro se.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Avshalom Yotam, and David Cao of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Danny K. Chun, J.), rendered February 28, 2018, convicting her of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree.
The defendant's contention that the evidence was legally insufficient to support her convictions of murder in the second degree (Penal Law § 125.25[2]) and reckless endangerment in the first degree ( id. § 120.25) 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, 621), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt of murder in the second degree and reckless endangerment in the first degree ( see People v Danielson , 9 NY3d 342, 349). The evidence
at trial demonstrated that the defendant acted with depraved indifference to human life when she shot indiscriminately at a crowd of people, including children ( see People v Feingold , 7 NY3d 288, 294; People v Nikc , 52 AD3d 740, 740). 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 at 348), 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 as to murder in the second degree and reckless endangerment in the first degree was not against the weight of the evidence ( see People v Romero , 7 NY3d 633).
The defendant's contention that she was deprived of the effective assistance of counsel is without merit. The evidence, the law, and the circumstances of this case, viewed in totality and as of the time of the representation, reveal that the defendant's trial counsel provided meaningful representation ( see People v Benevento , 91 NY2d 708, 712; People v Baldi , 54 NY2d 137, 147), and the defendant was not deprived of the effective assistance of counsel under the United States Constitution ( see Strickland v Washington , 466 US 668). The defendant's trial counsel presented a reasonable defense, interposed appropriate objections, and effectively cross-examined the People's witnesses. The defendant failed to demonstrate a lack of a strategic reason or other legitimate explanation for trial counsel's alleged shortcomings ( see People v Jeffriesel , 209 AD3d 1034, 1036; People v Salas , 208 AD3d 1368, 1369). Moreover, the defendant's trial counsel was not ineffective for failing to advance arguments that had little or no chance of success under the circumstances ( see People v Ennis , 11 NY3d 403, 415; People v Jeffriesel , 209 AD3d at 1036).
The sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80).
The defendant's remaining contentions, including those raised in her pro se supplemental brief, are without merit.
DUFFY, J.P., MILLER, TAYLOR and HOM, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76865
C/sa
AD3d
Argued - March 10, 2025
HECTOR D. LASALLE, P.J. WILLIAM G. FORD HELEN VOUTSINAS CARL J. LANDICINO, JJ.
2020-02098
DECISION & ORDER
The People, etc., respondent, v Joseph Petty, appellant.
(Ind. No. 2135/18)
Patricia Pazner, New York, NY (Cynthia Colt of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, Michael Tadros, and Jonathan Maseng of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gia L. Morris, J.), rendered February 11, 2020, convicting him of course of sexual conduct against a child in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the matter is remitted to the Supreme Court, Queens County, to conduct a reconstruction hearing to determine whether the defendant was competent to stand trial in light of the evidence available on or before February 7, 2019, and thereafter report to this Court as to its determination, and the appeal is held in abeyance in the interim; the Supreme Court, Queens County, shall file its report with all convenient speed.
The defendant was arrested and charged with course of sexual conduct against a child in the first degree (Penal Law § 130.75[1][a]). In December 2018, during preliminary proceedings, the Supreme Court questioned the defendant's competence to proceed and sua sponte ordered examinations pursuant to CPL article 730. Two examiners determined that the defendant was competent while one examiner determined that the defendant was not competent. Although a competency hearing was scheduled for February 7, 2019, the defendant was not produced and no competency hearing was held. Rather, the court ordered 'an updated 730 report.' In April 2019, after the initial trial judge recused himself, the Supreme Court received two updated examination
reports, both of which determined that the defendant was competent at that time. The court allowed the defendant to confirm his fitness, and concluded that the defendant was fit to proceed to trial. After a jury trial, the defendant was convicted of course of sexual conduct against a child in the first degree.
'Article 730 of the Criminal Procedure Law sets out the procedures courts of this State must follow in order to prevent the criminal trial of [an incompetent] defendant' ( People v Tortorici , 92 NY2d 757, 759, cert denied 528 US 834). The CPL expressly provides that '[w]hen the examination reports submitted to the court show that the psychiatric examiners are not unanimous in their opinion as to whether the defendant is or is not an incapacitated person . . . the court must conduct a hearing to determine the issue of capacity' (CPL 730.30[4]; see People v Vandegrift , 170 AD3d 1327, 1328). 'That section is mandatory and not discretionary' ( People v McCabe , 87 AD2d 852, 852).
Here, once the Supreme Court made a threshold determination that the defendant's conduct warranted an examination, it should have followed the procedures mandated by CPL article 730. The failure to comply with the statute deprived the defendant of the right to a full and fair determination of his mental capacity to stand trial ( see People v Hussari , 5 AD3d 697, 697-698; People v Torres , 162 AD2d 482, 483). We find, however, that the requirements of CPL article 730 can be satisfied by a reconstruction hearing, as the trial records indicate that a meaningful inquiry into the defendant's competence can be made ( see People v Hussari , 5 AD3d at 698). We note that, after two examiners determined that the defendant was competent and one examiner determined that the defendant was not competent in December 2018, the court should not have ordered updated examination reports, since that is not permissible under CPL article 730. The court was required to proceed to a competency hearing based on the December 2018 examination reports ( see CPL 730.30[4]). As such, any reports or evidence regarding the defendant's competence that were received after February 7, 2019, the date on which the competency hearing was scheduled to be held, should not be considered. Accordingly, we necessarily hold the appeal in abeyance, remit the matter to the Supreme Court, Queens County, to conduct a reconstruction hearing to determine the defendant's competence to stand trial based on the evidence available on or before February 7, 2019, and thereafter report its determination to this Court.
We decide no other issues raised by the defendant at this time.
LASALLE, P.J., FORD, VOUTSINAS and LANDICINO, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76866
C/sa
AD3d
Submitted - March 10, 2025
HECTOR D. LASALLE, P.J. WILLIAM G. FORD HELEN VOUTSINAS CARL J. LANDICINO, JJ.
2024-00850
DECISION & ORDER
The People, etc., respondent, v Steven Williamson, appellant.
(Ind. No. 70471/21)
Alex Smith, Middletown, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Winter A. Vega 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 December 19, 2023, convicting him of assault in the second degree and criminal possession of stolen property in the fourth degree, upon his plea of guilty, and imposing sentence.
## ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the County Court providently exercised its discretion in denying his motion pursuant to CPL 220.60(3) to withdraw his plea of guilty, made after he had violated his plea agreement. To the extent that the defendant contends that his plea of guilty was coerced by his mother, the Court of Appeals 'has never recognized coercion by family members as a reason for withdrawing a guilty plea' ( People v Manor , 27 NY3d 1012, 1014 [internal quotation marks omitted]; see People v Lewis , 46 NY2d 825, 826). To the extent that the defendant contends that he pleaded guilty based on his attorney's misstatement to him that he faced a charge of attempted murder instead of robbery in the first degree, any such misstatement did not prejudice the defendant because both attempted murder and robbery in the first degree are class B violent felonies that carry the same possible sentences ( see Penal Law § 70.02[1][a]; [3][a]). The defendant's assertion of innocence was wholly unsubstantiated ( see People v Corines , 204 AD3d
827, 828; People v Prunesti , 193 AD3d 984, 985).
The County Court properly imposed an enhanced sentence upon the defendant after he violated his plea agreement by not cooperating with the Probation Department, not being truthful during an interview with the Probation Department, and getting rearrested for another offense ( see People v Valencia , 3 NY3d 714, 715; People v Hicks , 98 NY2d 185, 189; People v Outley , 80 NY2d 702, 713). Contrary to the defendant's contention, there was a legitimate basis for his rearrest ( see People v Outley , 80 NY2d at 713).
The defendant's waiver of his right to appeal is valid and precludes appellate review of his contentions that the sentence imposed was excessive and constituted cruel and unusual punishment ( see People v Lopez , 6 NY3d 248, 256-257; People v Myke , 232 AD3d 913).
The defendant's remaining contentions are unpreserved for appellate review and, in any event, without merit.
LASALLE, P.J., FORD, VOUTSINAS and LANDICINO, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76882
C/sa
AD3d
Submitted - March 12, 2025
MARK C. DILLON, J.P. BARRY E. WARHIT LOURDES M. VENTURA JAMES P. MCCORMACK, JJ.
2022-08945
DECISION & ORDER
The People, etc., respondent, v Mark Taylor, appellant.
(Ind. No. 703/19)
Gary E. Eisenberg, New City, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Winter A. Vega and Andrew R. Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Robert J. Prisco, J., at plea; Craig S. Brown, J., at sentence), rendered February 8, 2022, 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 affirmed.
The defendant's contention that his plea of guilty was not knowing, intelligent, and voluntary is unpreserved for appellate review, as he did not move to withdraw his plea or otherwise raise the issue before the County Court ( see People v Argueta , 233 AD3d 703, 703-704; People v Pray , 183 AD3d 842, 842). In any event, the defendant's contention cannot be reviewed on direct appeal, as it is based on matter dehors the record ( see People v Walker , 189 AD3d 1619, 1619; People v Thomas , 150 AD3d 770, 771; People v Wornell , 112 AD3d 656). The defendant's related contention that the alleged ineffective assistance of counsel rendered his plea unknowing, unintelligent, and involuntary is also based on matter dehors the record and, thus, likewise is not reviewable on direct appeal ( see People v Chavis , 218 AD3d 1368, 1370; People v Wornell , 112 AD3d at 656).
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 Vantassell , 205 AD3d 739, 740). 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, 255-256).
DILLON, J.P., WARHIT, VENTURA and MCCORMACK, JJ., concur.
ENTER:
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76895
O/htr
AD3d
Submitted - March 13, 2025
ANGELA G. IANNACCI, J.P. PAUL WOOTEN DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2023-07463 2023-07473
DECISION & ORDER
The People, etc., respondent, v Rafael A. Hernandez, appellant.
(Ind. Nos. 70718/22, 70305/23)
Margaret M. Walker, Poughkeepsie, NY (Seth J. Gallagher of counsel), for appellant.
Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Jason Richland of counsel), for respondent.
Appeals by the defendant from two judgments of the County Court, Dutchess County (Jessica Segal, J.), both rendered June 20, 2023, convicting him of criminal possession of a controlled substance in the third degree under Indictment No. 70718/22, and criminal possession of a firearm under Superior Court Information No. 70305/23, upon his pleas of guilty, and imposing sentences.
ORDERED that the judgments are affirmed.
Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Victor , \_\_\_\_\_ AD3d \_\_\_\_\_, 2025 NY Slip Op 00887; People v Young , 225 AD3d 903; People v Sutton , 184 AD3d 236, 245; see also People v Williams , 227 AD3d 480, 481). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentences imposed were excessive ( see People v Lopez , 6 NY3d 248, 256).
IANNACCI, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76899 C/htr
AD3d
Argued - March 13, 2025
ANGELA G. IANNACCI, J.P. PAUL WOOTEN DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2022-00613
DECISION & ORDER
The People, etc., respondent, v Pedro Domingo Gutierrez, appellant.
(Ind. No. 143/20)
Steven A. Feldman, Manhasset, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley and Liora M. Ben-Sorek of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Robert G. Bogle, J.), rendered December 21, 2021, convicting him of sexual abuse in the first degree and rape in the third 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). The Supreme 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 ( see e.g. People v Batista , 167 AD3d 69, 76-78) and by the Court of Appeals ( see People v Thomas , 34 NY3d at 566-567). The defendant's valid waiver of his right to appeal precludes appellate review of his contentions that the sentence imposed was excessive and that it violated the Eighth Amendment of the United States Constitution ( see People v Myke , 232 AD3d 913; People v Esson , 225 AD3d 786, 787).
The defendant contends that a final order of protection issued in favor of the victim should be vacated because the Supreme Court failed to state on the record its reasons for issuing the
order. While this contention is not barred by the appeal waiver ( see People v Cordero , 233 AD3d 1056, 1056), it is unpreserved for appellate review, as it was not raised before the Supreme Court ( see People v Beaubrun , 234 AD3d 869, 870; People v Newman , 234 AD3d 877, 878; People v Demilio , 227 AD3d 1098, 1100).
In any event, the contention is without merit. CPL 530.13(4) requires that, where, as here, a temporary order of protection has been issued, the Supreme Court must state on the record 'the reasons for issuing or not issuing' a final order of protection. However, the statute does not specify a remedy for the failure to comply with this provision. The legislative history of CPL 530.13(4) reveals that the subject requirement was intended to protect victims from the 'grave danger' that could result if, by 'oversight,' the court failed to consider whether a final order of protection should be issued in place of a temporary order of protection, as it had been held that such temporary orders became null by operation of law upon disposition of the criminal proceeding (Senate Introducer's Mem in Support, Bill Jacket, L 2001, ch. 384 at 3; see People v Bleau , 276 AD2d 131, 133). Thus, in a case, such as the present one, in which the court considered whether or not to issue a final order of protection on behalf of the victim of the offense, and determined to issue the order, it would be antithetical to the legislative intent to vacate the final order of protection on the ground that the court failed to state the reasoning therefor. Granting such relief would subject the victim to the exposure that the Legislature sought to avoid in the first place by requiring a statement of reasoning. Moreover, even if that requirement had been for the defendant's benefit, where courts have violated requirements in other statutes to state the grounds for a certain finding or determination ( see Family Ct Act § 1051[a]; CPL 710.60[6]), this Court has, at most, remitted the matters to the issuing courts to permit compliance with these requirements ( see e.g. People v Harris , 175 AD3d 1555, 1557-1558; Matter of Fanelli v Orticelli , 170 AD3d 831, 833). Here, the defendant does not challenge the final order of protection on any basis other than the court's failure to state its reasoning, and the only remedy he seeks for this sole error-vacatur of the order-is not an appropriate remedy. We therefore affirm the judgment ( cf. People v Moncrieft , 168 AD3d 982, 985 [vacating order of protection where, in addition to failing to state the reasoning therefor, the Supreme Court failed to fix the duration of the order]).
IANNACCI, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76900 C/htr
AD3d
Argued - March 13, 2025
ANGELA G. IANNACCI, J.P. PAUL WOOTEN DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2021-03403
DECISION & ORDER
The People, etc., respondent, v Dennis Ryan, appellant.
(Ind. No. 1854/19)
Laurette D. Mulry, Riverhead, NY (Felice B. Milani of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Kim Marie Carson and Glenn Green of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Anthony Senft, Jr., J.), rendered April 30, 2021, convicting him of criminal possession of a weapon in the second degree (three counts) and criminal possession of a weapon in the third degree (four counts), upon a jury verdict, 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, and the denial, without a hearing, of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial.
ORDERED that the matter is remitted to the County Court, Suffolk County, for a new determination of the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial in accordance herewith, and thereafter a report to this Court advising of the new determination, and the appeal is held in abeyance in the interim. The County Court, Suffolk County, shall file its report with all convenient speed.
On March 23, 2021, the defendant moved pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial. In support of the motion, the defendant asserted, among other things, that the People were not ready for trial within six months of the commencement of the criminal action and that the People's filing of a certificate of compliance and certificate of readiness for trial was illusory due to subsequent disclosures. At a conference on March 24, 2021, the People requested an opportunity to order transcripts and to
respond to the defendant's motion in writing. Without first affording the People an opportunity to submit opposition papers to the motion or conducting a hearing, the County Court denied the defendant's motion on the record.
In felony cases, the People are required to be ready for trial within six months after the commencement of the criminal action ( see CPL 30.30[1][a]; People v Allard , 113 AD3d 624). ''A defendant seeking dismissal of the indictment on speedy trial grounds under CPL 30.30 meets his or her initial burden on the motion simply by alleging that the People failed to declare readiness within the statutorily prescribed period'' ( People v Brown , 214 AD3d 823, 824, quoting People v Perkins , 175 AD3d 1327, 1327; see People v Beasley , 16 NY3d 289, 292). 'Once a defendant has alleged that more than the statutorily prescribed time has elapsed without a declaration of readiness by the People, the People bear the burden of establishing sufficient excludable delay' ( People ex rel. Nieves v Molina , 207 AD3d 797, 798; see People v Berkowitz , 50 NY2d 333, 348-349). Moreover, '[t]he burden is on the People 'to ensure, in the first instance, that the record of the proceedings . . . is sufficiently clear to enable the court considering the . . . CPL 30.30 motion to make an informed decision as to whether the People should be charged' with any delay' ( People ex rel. Nieves v Molina , 207 AD3d at 798, quoting People v Cortes , 80 NY2d 201, 215-216).
Here, the defendant sustained his initial burden on the motion by alleging that a period of unexcused delay in excess of six months had elapsed since his arraignment on the felony complaint on April 7, 2019 ( see CPL 30.30[1][a]). Thus, the People had the burden of establishing excusable delay for any elapsed period of time beyond the statutorily prescribed time. However, the County Court failed to afford the People an opportunity to submit opposition papers to the defendant's motion to satisfy that burden ( see People v Hancock , 161 AD2d 108; People v Torres [Andres] , 63 Misc 3d 154[A], 2019 NY Slip Op 50811[U] [App Term, 2d Dept, 11th & 13th Jud Dists]). Moreover, as the People correctly concede, the record before this Court is inadequate to enable appellate review of the denial of the defendant's motion.
Accordingly, we remit the matter to the County Court, Suffolk County, to afford the People an opportunity to submit opposition papers to the defendant's motion pursuant to CPL 30.30 to dismiss the indictment on the ground that he was denied the statutory right to a speedy trial, for a hearing, if necessary ( see CPL 210.45), for a new determination of the defendant's motion thereafter, and for a report on the new determination. We hold the appeal in abeyance pending receipt of the County Court's report.
In light of our determination, we do not address the defendant's remaining contentions at this time.
IANNACCI, J.P., WOOTEN, DOWLING and LOVE, JJ., concur.
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PEOPLE v RYAN, DENNIS
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
D76901 C/htr
AD3d
Argued - March 13, 2025
ANGELA G. IANNACCI, J.P. PAUL WOOTEN DEBORAH A. DOWLING LAURENCE L. LOVE, JJ.
2022-09678
DECISION & ORDER
The People, etc., respondent, v Daniel Black, appellant.
(Ind. No. 72407/21)
Patricia Pazner, New York, NY (Elijah Giuliano and Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Amy Appelbaum, and Allison Marculitis of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Donald Leo, J.), rendered October 31, 2022, convicting him of attempted criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (E. Niki Warin, J.), of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is reversed, on the facts, the defendant's plea of guilty is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
According to testimony elicited at a suppression hearing, on July 20, 2021, at approximately 9:55 p.m., Officer Andrew Tofalli was a passenger seated behind the driver in an unmarked vehicle traveling westbound on Sterling Place in Brooklyn when he observed a group of three individuals walking down the sidewalk in the opposite direction. Tofalli testified that two of the individuals were wearing white T-shirts and walking ahead of the defendant, who was wearing a black T-shirt. Tofalli allegedly observed one of the individuals in white (hereinafter the initial
target) adjusting his waistband. Tofalli exited the vehicle and approached the group. Upon approaching the group, the initial target lifted his T-shirt, showing his waistband to Tofalli. Tofalli touched both sides of the initial target's waist. During this interaction, Tofalli allegedly observed the defendant, who was standing approximately two feet directly behind the initial target, pull up his pants, causing his shirt to be pulled tight and revealing an L-shaped outline in his waistband. Tofalli testified that he stated, 'come over here,' and the defendant turned around and ran. Tofalli and his fellow officers pursued the defendant on foot, caught the defendant, and searched him, resulting in the discovery of a firearm beneath the defendant's pants. Tofalli's entire interaction, beginning with his exit from the vehicle through the defendant's capture, was not audible on a recording obtained from Tofalli's body-worn camera, which was admitted into evidence at the hearing, as Tofalli failed to activate his body-worn camera in accordance with police protocol.
Following the suppression hearing, the Supreme Court denied that branch of the defendant's omnibus motion which was to suppress physical evidence. The defendant subsequently entered a plea of guilty to attempted criminal possession of a weapon in the second degree.
'On a motion to suppress, the People bear the burden of going forward to establish the legality of police conduct in the first instance' ( People v Brown , 198 AD3d 803, 805). 'While great weight must be accorded the credibility findings of the hearing court, this Court has also observed 'that in assessing credibility we should not discard common sense and common knowledge'' ( People v Harris , 192 AD3d 151, 163, quoting Matter of Carl W. , 174 AD2d 678, 679 [internal quotation marks omitted]). ''The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value, even though it is not contradicted by other testimony or evidence introduced in the case'' ( id. , quoting People v Maiwandi , 170 AD3d 750, 751). 'Furthermore, this Court has consistently held that it 'will not hesitate to refuse to credit testimony which has all appearances of having been patently tailored to nullify constitutional objections'' ( id. , quoting People v Lebron , 184 AD2d 784, 784).
''In order to justify police pursuit, the officers must have reasonable suspicion that a crime has been, is being, or is about to be committed'' ( People v Ravenell , 175 AD3d 1437, 1438 [internal quotation marks omitted], quoting People v Furrs , 149 AD3d 1098, 1099; see People v Holmes , 81 NY2d 1056, 1058). Reasonable suspicion exists where there is a 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [or woman] under the circumstances to believe criminal activity is at hand' ( People v Cantor , 36 NY2d 106, 112-113; see People v Dantzler , 208 AD3d 590, 591). 'A suspect's flight alone or in conjunction with equivocal circumstances that might suggest a police request for information is insufficient to justify pursuit,' and '[p]ursuit is only authorized when flight is combined with circumstances indicating that the suspect might be engaged in criminal activity' ( People v Rhames , 218 AD3d 610, 612; see People v Holmes , 81 NY2d at 1058; People v Ravenell , 175 AD3d at 1439).
Here, the People failed to establish the legality of the police conduct in the first instance, as Tofalli's testimony was incredible as a matter of law and patently tailored to meet constitutional objections ( see People v Leon , 222 AD3d 998; People v Harris , 192 AD3d at 164-165;
People v Lebron , 184 AD2d at 787). Tofalli's testimony that when the defendant pulled up his pants he was able to see an 'L-shape' outline in the defendant's waistband while the initial target was standing two feet in front of the defendant directly between Tofalli and the defendant defies common sense and strains credulity. Moreover, Tofalli's testimony was inconsistent with the notes he made in his memo book, arrest reports generated after the incident, and his testimony before the grand jury, none of which made any mention of the initial target ( see People v Rhames , 196 AD3d 510, 513), and was further inconsistent with the recording obtained from Tofalli's body-worn camera, which revealed that prior to his interaction with the initial target, the defendant was not touching his pants, and does not depict the defendant's T-shirt tightening around an 'L-shape' object. Accordingly, under the circumstances presented, we find Tofalli's testimony unworthy of belief ( see People v Leon , 222 AD3d at 1000; People v Harris , 192 AD3d at 164).
Accordingly, the Supreme Court should have granted that branch of the defendant's omnibus motion which was to suppress physical evidence. Therefore, the indictment must be dismissed, and the matter remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50 ( see People v Rhames , 196 AD3d at 515).
In light of our determination, we need not reach the defendant's remaining contention.
IANNACCI, J.P., WOOTEN, DOWLING and LOVE, 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
D76920 C/jr
AD3d
Submitted - March 14, 2025
LARA J. GENOVESI, J.P. CHERYL E. CHAMBERS JANICE A. TAYLOR PHILLIP HOM, JJ.
2022-10526
DECISION & ORDER
The People, etc., respondent, v Robert Lavaud, appellant.
(Ind. No. 8576/18)
Patricia Pazner, New York, NY (Russ Altman-Merino of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J. Dennehy, and Isaac Rounseville of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew J. D'Emic, J.), rendered December 6, 2022, convicting him of criminal mischief in the fourth degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant's contention that the order of protection issued at the time of sentencing should be vacated because the Supreme Court failed to state on the record the reasons for issuing it ( see CPL 530.13[4]) is unpreserved for appellate review, since the defendant failed to object to the order of protection at sentencing or otherwise raise the issue before the court ( see id. § 470.05[2]; People v Nieves , 2 NY3d 310, 316-317; People v Beaubrun , 234 AD3d 869, 869). Under the circumstances, we decline to exercise our interest of justice jurisdiction to review this contention ( see People v Villan , 234 AD3d 717, 717; People v Person , 233 AD3d 804, 804). '[T]he better practice-and best use of judicial resources-is for a defendant seeking adjustment of [final orders of protection] to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary' ( People v Nieves , 2 NY3d at 317; see People v Person , 233 AD3d
at 804).
GENOVESI, J.P., CHAMBERS, TAYLOR and HOM, JJ., concur.
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M301868
AFA/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2024-13371
The People, etc., respondent, v Reuben Hernandez, appellant.
DECISION & ORDER ON MOTION
(Docket No. CR-02288-2022RI)
Appeal from a judgment of the Criminal Court of the City of New York, Richmond County, rendered August 4, 2023.
On the Court's own motion, it is
ORDERED that the appeal is transferred to the Appellate Term of the Supreme Court, Second, Eleventh, and Thirteenth Judicial Districts, for determination ( see 22 NYCRR 730.1[b]); and it is further,
ORDERED that all further proceedings in connection with the appeal shall be conducted pursuant to the rules of the Appellate Term of the Supreme Court, Second, Eleventh, and Thirteenth Judicial Districts.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, 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
M302325 ID/
ROBERT J. MILLER, J.P. DEBORAH A. DOWLING LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
2024-03335
The People, etc., respondent, v Tonya Best, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 70357/2022)
Appeal from a judgment of the County Court, Orange County, rendered March 29, 2024. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. Pursuant to Criminal Procedure Law § 380.55(2), the appellant was granted leave to prosecute the appeal as a poor person, and by decision and order on motion dated July 3, 2024, the following named attorney was assigned as counsel to prosecute the appeal:
Christopher Brennar Sevier P.O. Box 75 Montgomery, NY 12549
Upon the papers filed in support of the motion and the papers file in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Paul N. Weber PO Box 330 Cornwall, NY 12518
and it is further,
January 22, 2025
PEOPLE v BEST, TONYA
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
MILLER, J.P., DOWLING, WAN and GOLIA, JJ., concur.
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Appellant's Address: 24-G-0211 Taconic Correctional Facility 250 Harris Road Bedford Hills, NY 10507-2400
PEOPLE v BEST, TONYA
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M302373
ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00068, 2025-00069
The People, etc., respondent, v Larry Mann, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 72932/2022, 74407/2022)
Appeals by Larry Mann from two judgments of the Supreme Court, Kings County, both rendered December 16, 2024, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Alexandra Ferlise, dated January 2, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeals to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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Appellant's address: 24-R-3307 Ulster C.F 750 Berme Rd P.O. Box 800 Napanoch, NY 12458
January 24, 2025
PEOPLE v MANN, LARRY
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER DEBORAH A. DOWLING PHILLIP HOM, JJ.
2023-00717
The People, etc., respondent, v Sotico Vargas, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 2265/2019)
Appeal from a judgment of the Supreme Court, Queens County, rendered January 9, 2023. Motion by the appellant to be furnished with the transcripts of certain proceedings, in effect, to enlarge the judgment roll to include the transcripts of those proceedings, and to extend the time to perfect the appeal.
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the branch of the motion which is to be furnished with the transcripts of certain proceedings is granted; and it is further,
ORDERED that the decision and order on motion of this Court dated March 17, 2023, which granted waiver of costs, fees, and expenses to the appellant, is amended to include a direction to the court reporter to make, certify and file two transcripts of the stenographic minutes of the proceedings which occurred in the Criminal Court, Queens County, under Queens County Criminal Court Docket No. CR-029576-2019QN on September 20, 2019, September 25, 2019, October 17, 2019, November 13, 2019, and December 9, 2019, and which occurred in the Supreme Court, Queens County, under Ind. No. 2265/2019 on December 18, 2019, March 12, 2020, March 18, 2020, April 8, 2020, July 17, 2020, August 19, 2020, September 21, 2020, October 15, 2020, December 1, 2020. January 26, 2021, February 10, 2021, March 10, 2021, April 16, 2021, June 15, 2021, August 10, 2021, September 22, 2021, October 19, 2021, November 16, 2021, January 6, 2022, January 28, 2022 (Part TAP-A), January 28, 2022 (Part K-15), May 5, 2022, June 28, 2022, August 4, 2022, September 13, 2022, and October 17, 2022, in the above-entitled matter, if available; and it is further,
M302517
AFA/
ORDERED that the stenographer of the trial court is directed to certify and file two copies of such transcripts within 45 days of the date of this decision and order on motion and the clerk of the trial court shall furnish one certified transcript of the subject proceedings to the appellant's counsel, Patricia Pazner, Appellate Advocates, 111 John Street - 9th Floor, New York, New York 10038, without charge ( see CPL 460.70); assigned counsel is directed to turn over the transcript to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of such transcript for a codefendant, then the clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that the branch of the motion which is to, in effect, enlarge the judgment roll is denied as unnecessary as the transcripts are properly part of the judgment roll; and it is further
ORDERED that the branch of the motion which is to extend the time to perfect the appeal is granted, the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
IANNACCI, J.P., CHRISTOPHER, DOWLING 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
M302545
ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00405
The People, etc., respondent, v Kaleaf Aparicio, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. No. 71309/2024)
Appeal by Kaleaf Aparicio from a judgment of the County Court, Nassau County, rendered January 7, 2025, upon a plea of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Anne J. D'Elia, dated January 7, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Leon H. Tracy 1225 Franklin Ave., Ste. 325 Garden City, NY 11530
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the
stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
Appellant's address: 25-R-0139 Ulster Correctional Facility 750 Berme Road, P.O. Box 800 Napanoch, NY 12458-0800
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2022-06838, 2022-07050
The People, etc., respondent, v Erron Alexander, appellant.
DECISION & ORDER ON MOTION Motion for Waiver of Costs, Fees, and Expenses and to Assign Counsel
(Ind. Nos. 71666/2021, 1521/2020)
Appeals by Erron Alexander from two judgments of the Supreme Court, Kings County, both rendered August 1, 2022, upon pleas of guilty. Motion by the appellant pro se for waiver of costs, fees, and expenses and for the assignment of counsel. Application by Lawrence Fredella on behalf of the defendant for waiver of costs, fees, and expenses and for the assignment of counsel pursuant to Criminal Procedure Law § 380.55(2).
Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application pursuant to Criminal Procedure Law § 380.55(2) is granted; and it is further,
ORDERED that the motion is denied as unnecessary in light of the application pursuant to Criminal Procedure Law § 380.55(2); and it is further,
ORDERED that on the Court's own motion, the appeals are consolidated; and it is further
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
M302558
AFA/
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's address: 22-B-3529 Buffalo Fed. Detention Ctr.
354 Hunter St. Ossining, NY 10562
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|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
LARA J. GENOVESI, J.P. VALERIE BRATHWAITE NELSON BARRY E. WARHIT JAMES P. MCCORMACK, JJ.
2024-07794
The People, etc., respondent, v Ryan P. Nagle, appellant.
DECISION & ORDER ON MOTION Motion for Waiver of Costs, Fees and Expenses and to Assign Counsel
(Ind. Nos. 70231/20, 41/2020)
Appeal from a resentence of the County Court, Orange County, imposed June 14, 2024. Motion by the appellant pro se for waiver of costs, fees, and expenses and for the assignment of counsel. By order to show cause dated December 13, 2024, the appellant was directed to show cause before this Court why the appeal should not be dismissed on the ground that the notice of appeal from the resentence was untimely, counsel was assigned to respond to the order to show cause, and the appellant's motion was held in abeyance in the interim. Application by James W. Winslow on behalf of the defendant for waiver of costs, fees, and expenses and for the assignment of counsel pursuant to Criminal Procedure Law § 380.55(2). Application by the appellant pursuant to CPL 460.30 to deem the notice of appeal timely filed.
Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motion and the papers filed in relation thereto, and upon the papers filed in support of the appellant's applications and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion to dismiss the appeal is denied; and it is further,
ORDERED that the application to deem the notice of appeal timely filed is granted; and it is further,
ORDERED that the application pursuant to Criminal Procedure Law § 380.55(2) is granted; and it is further,
ORDERED that the motion for waiver of costs, fees, and expenses is denied as unnecessary in light of the application pursuant to Criminal Procedure Law § 380.55(2); and it is further,
February 5, 2025
M302616
AFA/
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Gary E. Eisenberg 10 Esquire Road, Ste. 10 New City, NY 10956
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of the imposition of resentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's resentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the resentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 February 5, 2025 Page 2.
NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
GENOVESI, J.P., BRATHWAITE NELSON, WARHIT and MCCORMACK, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's Address : 128 Atwood Lake Road
Cold Brook, NY 13324
| 80 |
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|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M302714 ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00405
The People, etc., respondent, v Kaleaf Aparicio, appellant.
(Ind. No. 71309/2024)
On the Court's own motion, it is
ORDERED that the decision and order on motion of this Court dated February 3, 2025, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:
Appeal by Kaleaf Aparicio from a judgment of the Supreme Court, Queens County, rendered January 7, 2025, upon a plea of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Anne J. D'Elia, dated January 7, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the
DECISION & ORDER ON MOTION
appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
<!-- image -->
Appellant's address: 25-R-0139 Ulster Correctional Facility 750 Berme Road, P.O. Box 800 Napanoch, NY 12458-0800
| 81 |
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|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M302767
AFA/
ROBERT J. MILLER, J.P. DEBORAH A. DOWLING LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
2024-03335
The People, etc., respondent, v Tonya Best, appellant.
(Ind. Nos. 70357/2022, 126/2022)
On the Court's own motion, it is
ORDERED that the decision and order on motion of this Court dated January 22, 2025, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:
Appeal from a judgment of the County Court, Orange County, rendered March 29, 2024. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. Pursuant to Criminal Procedure Law § 380.55(2), the appellant was granted waiver of costs, fees, and expenses, and by decision and order on motion dated July 3, 2024, the following named attorney was assigned as counsel to prosecute the appeal:
Christopher Brennar Sevier P.O. Box 75 Montgomery, NY 12549
Upon the papers filed in support of the motion and the papers file in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
February 10, 2025
DECISION & ORDER ON MOTION
Kenyon C. Trachte 1662 Route 300 Mailbox #12 Newburgh, NY 12550
and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
MILLER, J.P., DOWLING, WAN and GOLIA, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's Address: 24-G-0211 Taconic Correctional Facility 250 Harris Road Bedford Hills, NY 10507-2400
PEOPLE v BEST, TONYA
| 82 |
M302889_pdf.md
|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M302889 ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00688, 2025-00689, 2025-00690, 2025-00691
The People, etc., respondent, v Mieshawn Moore, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 76303/2022, 74917/2022, 74043/2023, 76792/2022)
Appeals by Mieshawn Moore from four judgments of the Supreme Court, Kings County, all rendered December 9, 2024, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Lisa A. Packard, dated January 7, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]);
PEOPLE v MOORE, MIESHAWN
additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeals to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order
on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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Appellant's address: 24-R-1472 Groveland Correctional Facility 7000 Sonyea Rd. POB 50 Sonyea, NY 14556-0050
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00776, 2025-00795, 2025-00797
The People, etc., respondent, v Key Lugo, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 71155/2024, 73074/2024, 72114/2024)
Appeals by Key Lugo from three judgments of the Supreme Court, Kings County, all rendered December 10, 2024, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Alexandra Ferlise, dated January 2, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
M302950
AFA/
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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Appellant's address : 25-R-0071 Ulster Corr. Fac. P.O. Box 800 Napanboch, NY 12458-0800 February 19, 2025
PEOPLE v LUGO, KEY
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00721, 2025-00789
The People, etc., respondent, v Hansel Ramirez, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 71130/2024, 71258/2024)
Appeals by Hansel Ramirez from two judgments of the Supreme Court, Queens County, both rendered January 6, 2025, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Lisa A. Packard, dated January 16, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
M302964
AFA/
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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Appellant's address : 25-B-0180 Sing Sing Corr. Fac. 354 Hunter St. Ossining, NY 10562 February 19, 2025
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00902
The People, etc., respondent, v Lionel Jackson, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. No. 70454//2022)
Appeal by Lionel Jackson from a judgment of the Supreme Court, Queens County, rendered January 16, 2025, following a trial. By order dated January 15, 2025, the Supreme Court, Queens County, granted an application pursuant to Criminal Procedure Law § 380.55(1) for poor person relief.
Now, upon the order dated January 15, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the
M302981
ID/
Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order
on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ENTER:
<!-- image -->
Appellant's Address : 25-B-0295 Elmira Correctional Facility 1879 Davis St, P.O. Box 500 Elmira, NY 14901-0500
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M302983
ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00903, 2025-00906
The People, etc., respondent, v Sayda Diaz, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. No. 72778/2024)
Appeals by Sayda Diaz from two judgments of the Supreme Court, Queens County, both rendered January 7, 2025, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Justyna Mielczarek, dated January 16, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeals to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
Appellant's address:
94-03 40th Road Flushing, NY 11373
PEOPLE v DIAZ, SAYDA
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303262 ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-01230
The People, etc., respondent, v Kadeem A. Lewis, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. No. 70324/2020)
Appeal by Kadeem A. Lewis from a judgment of the Supreme Court, Nassau County, rendered January 23, 2025, following a trial. By order dated January 28, 2025, the Supreme Court, Nassau County, granted an application pursuant to Criminal Procedure Law § 380.55(1) for poor person relief.
Now, upon the order dated January 28, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Paul Skip Leisure 1225 Franklin Avenue, Ste. 325 Garden City, NY 11530
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
Appellant's Address :
Nassau County Corr. Fac 100 Carman Avenue East Meadow, NY 11554
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2024-08850
The People, etc., respondent, v Stanley C. Robinson, Jr., appellant.
DECISION & ORDER ON MOTION Motion for Waiver of Costs, Fees, and Expenses and to Assign Counsel
(Ind. No. 70371/2022)
Appeal by Stanley C. Robinson, Jr. from a judgment of the County Court, Dutchess County, rendered April 18, 2024, upon a plea of guilty. Motion by the appellant pro se for waiver of costs, fees, and expenses and for the assignment of counsel. Application by Steven Levine on behalf of the defendant for waiver of costs, fees, and expenses and for the assignment of counsel pursuant to Criminal Procedure Law § 380.55(2).
Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application pursuant to Criminal Procedure Law § 380.55(2) is granted; and it is further,
ORDERED that the motion is denied as unnecessary in light of the application pursuant to Criminal Procedure Law § 380.55(2); and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Salvatore C. Adamo 1345 Avenue of the Americas, 2nd Floor New York, NY 10105
and it is further,
March 3, 2025
M303265
ID/
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the
limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's address: 24-B-1921 Elmira Correctional Facility 1879 Davis St, P.O. Box 500 Elmira, NY 14901-0500
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303293
ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2024-08887
The People, etc., respondent, v Christopher Garcia, appellant.
DECISION & ORDER ON MOTION Motion for Waiver of Costs, Fees, and Expenses and to Assign Counsel
(Ind. No. 3313/2018)
Appeal by Christopher Garcia from a judgment of the Supreme Court, Kings County, rendered September 4, 2024, following a trial. Motion by the appellant pro se for waiver of costs, fees, and expenses and for the assignment of counsel. Application by Michael Sheinberg on behalf of the defendant for waiver of costs, fees, and expenses and for the assignment of counsel pursuant to Criminal Procedure Law § 380.55(2).
Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application pursuant to Criminal Procedure Law § 380.55(2) is granted; and it is further,
ORDERED that the motion is denied as unnecessary in light of the application pursuant to Criminal Procedure Law § 380.55(2); and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
March 5, 2025
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the
limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ENTER:
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Appellant's address: 24-B-3912 Clinton Correctional Facility 1156 Rt. 374, PO Box 2001 Dannemora, NY 12929
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303449
AFA/
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER BARRY E. WARHIT DONNA-MARIE E. GOLIA, JJ.
2022-08207
The People, etc., respondent, v Justin Lugo, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 329/2021)
Appeal from a judgment of the Supreme Court, Queens County, rendered April 25, 2022. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. The appellant was granted waiver of costs, fees, and expenses and assigned counsel on November 21, 2022, pursuant to Criminal Procedure Law § 380.55(2), and the following named attorney was assigned as counsel to prosecute the appeal:
Twyla Carter The Legal Aid Society 199 Water Street - 5th Floor New York, NY 10038
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Steven A. Feldman 1129 Northern Blvd., Ste. 404 Manhasset, NY 11030
and it is further,
March 10, 2025
PEOPLE v LUGO, JUSTIN
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
IANNACCI, J.P., CHRISTOPHER, WARHIT and GOLIA, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's Address : 300 Palmetto St., Apt. 1L Brooklyn, NY 11237
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303451
ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-01245, 2025-01249
The People, etc., respondent, v Evan Person, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 73018/2024, 73194/2024)
Appeals by Evan Person from two judgments of the Supreme Court, Queens County, both rendered January 6, 2025, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Andrew Zahnd, dated January 29, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeals to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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Appellant's address: 25-B-0361 Elmira Correctional Facility 1879 Davis St, P.O. Box 500
Elmira, NY 14901-0500
March 10, 2025
PEOPLE v PERSON, EVAN
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303500 ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-01209
The People, etc., respondent, v Quasharn D. McIver, appellant.
(Ind. Nos. 70460/2021, 23/2021)
On the Court's own motion, it is
ORDERED that the decision and order on motion of this Court dated March 3, 2025, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:
Appeal by Quasharn D. McIver from a judgment of the County Court, Dutchess County, rendered December 17, 2024, upon a plea of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Steven Levine, dated January 3, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Carol Kahn 157 East 86th Street, Suite 266 New York, NY 10028
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the
DECISION & ORDER ON MOTION
appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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Appellant's address:
Please make inquiry to the State Inmate Locator New York State Department of Correctional Services Telephone: (518) 457-0043
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303502 ID/
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-00401
The People, etc., respondent, v Cregory Cole, appellant.
DECISION & ORDER ON MOTION Motion for Waiver of Costs, Fees, and Expenses and to Assign Counsel
(Ind. No. 71352/2023)
Appeal by Cregory Cole from a judgment of the County Court, Nassau County, rendered November 19, 2024, upon a plea of guilty. Motion by the appellant pro se for waiver of costs, fees, and expenses and for the assignment of counsel. Application by Brian J. Carmody on behalf of the defendant for waiver of costs, fees, and expenses and for the assignment of counsel pursuant to Criminal Procedure Law § 380.55(2).
Upon the papers filed in support of the motion and the papers filed in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application pursuant to Criminal Procedure Law § 380.55(2) is granted; and it is further,
ORDERED that the motion is denied as unnecessary in light of the application pursuant to Criminal Procedure Law § 380.55(2); and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Matthew Brissenden 666 Old Country Road, Suite 501 Garden City, NY 11530
and it is further,
March 12, 2025
PEOPLE v COLE, CREGORY
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the
limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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ENTER:
Darrell M. Joseph Clerk of the Court
Appellant's address:
Nassau County Corr. Fac. 100 Carman Avenue East Meadow, NY 11554
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-01439, 2025-01441, 2025-01442
The People, etc., respondent, v Antoine Knight, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. Nos. 77095/2023, 77155/2023, 77281/2023)
Appeals by Antoine Knight from three judgments of the Supreme Court, Kings County, all rendered December 15, 2024, upon pleas of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Lisa A. Packard, dated January 14, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
M303536
AFA/
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeals; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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Appellant's address :
Please make inquiry to the State Inmate Locator New York State Department of Correctional Services Telephone: (518) 457-0043
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303558
ID/
HECTOR D. LASALLE, P.J. WILLIAM G. FORD HELEN VOUTSINAS CARL J. LANDICINO, JJ.
2024-07481
The People, etc., respondent, v Chet Dileo, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 71135/2021)
Appeal from a judgment of the County Court, Nassau County, rendered July 30, 2024. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. The appellant was granted waiver of costs, fees, and expenses and was assigned counsel on September 11, 2024, pursuant to Criminal Procedure Law § 380.55(2), and the following named attorney was assigned as counsel to prosecute the appeal:
Steven Feinman One North Broadway, Ste. 412 White Plains, NY 10601
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Martin Goldberg 672 Dogwood Ave. # 183 Franklin Square, NY 11010
and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it,
March 14, 2025
the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., FORD, VOUTSINAS and LANDICINO, JJ., concur.
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ENTER:
Darrell M. Joseph
Clerk of the Court
Appellant's Address :
Nassau County Jail 100 Carmen Avenue East Meadow, NY 11554
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303582
ID/
VALERIE BRATHWAITE NELSON, J.P. LINDA CHRISTOPHER LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
2023-09937
The People, etc., respondent, v Julian Primofox, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 71909/2023)
Appeal from a judgment of the Supreme Court, Kings County, rendered October 11, 2023. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. The appellant was granted waiver of costs, fees, and expenses and was assigned counsel on December 11, 2023, pursuant to Criminal Procedure Law § 380.55(2), and the following named attorney was assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Twyla Carter The Legal Aid Society 199 Water Street - 5th Floor New York, NY 10038
and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.
ENTER:
<!-- image -->
Appellant's Address : 23-R-2760 Franklin Correctional Facility 62 Bare Hill Road P.O. Box 10 Malone, NY 12953-0010
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|
## Supreme Court of the State of New York Appellate Division: Second Judicial Department
M303584 ID/
VALERIE BRATHWAITE NELSON, J.P. LINDA CHRISTOPHER LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
2024-05653
The People, etc., respondent, v Ragene Powell, appellant.
DECISION & ORDER ON MOTION
(Ind. No. 10308/2010)
Appeal from a judgment of the Supreme Court, Kings County, rendered May 30, 2024. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel. The appellant was granted waiver of costs, fees, and expenses and was assigned counsel on August 9, 2024, pursuant to Criminal Procedure Law § 380.55(2), and the following named attorney was assigned as counsel to prosecute the appeal:
Twyla Carter The Legal Aid Society 199 Water Street - 5th Floor New York, NY 10038
Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that assigned counsel shall serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
BRATHWAITE NELSON, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur.
ENTER:
<!-- image -->
Appellant's Address : 13-A-4141 Clinton Correctional Facility 1156 Rt. 374, P.O. Box 2001 Dannemora, NY 12929-2000
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## Supreme Court of the State of New York Appellate Division: Second Judicial Department
HECTOR D. LASALLE, P.J. MARK C. DILLON COLLEEN D. DUFFY BETSY BARROS FRANCESCA E. CONNOLLY, JJ.
2025-01602
The People, etc., respondent, v Steven Bell, appellant.
DECISION & ORDER ON MOTION Assignment of Counsel
(Ind. No. 70134/2024)
Appeal by Steven Bell from a judgment of the Supreme Court, Kings County, rendered January 8, 2025, upon a plea of guilty. Pursuant to Criminal Procedure Law § 380.55(2) and upon the affirmation of Lisa A. Packard, dated January 29, 2025, it is
ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Patricia Pazner Appellate Advocates 111 John Street - 9th Floor New York, New York 10038
and it is further,
ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the appellant and the respondent are directed to upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (22 NYCRR 670.9[a]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); and it is further,
ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified ( see 22 NYCRR 671.9); and it is further,
PEOPLE v BELL, STEVEN
M303628 AFA/
ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,
ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's counsel, without charge ( see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,
ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the trial court is directed to reproduce a copy thereof for assigned counsel; and it is further,
ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the appellant's sentencing, including the recommendation sheet and any prior reports on the appellant which are incorporated in or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the Court and the District Attorney's office prior to the filing of such brief or motion; and it is further,
ORDERED that the appellant's time to perfect the appeal is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules ( see 22 NYCRR 1250.9) and written directions; and it is further,
ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his or her representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,
ORDERED that assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
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Appellant's address : 106 Nicholas Ave. Staten Island, NY 10302
PEOPLE v BELL, STEVEN
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