court of appeals update: cases waiting to be scheduled
III. Cases Waiting to be Scheduled
People v. Desirie Wilson
AD1 order dated February 3, 2009, affirming judgment of conviction. Decision below: 872 N.Y.S.2d 124. Freedman, J. (AD dissenter), granted leave March 17, 2009.
ISSUES PRESENTED: (1) Whether the merged “Criminal Division of Supreme Court in Bronx County” possesses jurisdiction under the State Constitution over a criminal case absent the filing of an indictment or SCI. (2) The sufficiency of the trial evidence of harassment. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Steven Acevedo
AD2 order dated April 7, 2009, affirming amended judgment on DLRA resentence. Decision below: 61 AD3d 692, 876 N.Y.S.2d 159. Graffeo, J., granted leave June 25, 2009.
ISSUE PRESENTED: When a court resentences a defendant under the Drug Law Reform Act, does it have the authority to direct that a resentence for the felony drug offense run concurrently with a non-drug-related felony, where the sentences were originally order to run consecutively. Resentencing court’s decision is at 9 Misc.3d 736. (Assigned counsel: David L. Steinberg, 4419 Albany Post Road, Hyde Park, NY 12538.)
People v. Kezine Murray
AD1 order dated December 23, 2008, affirming judgment of conviction. Decision below: 57 AD3d 921, 869 N.Y.S.2d 344. Read, J., granted leave May 26, 2009.
ISSUE PRESENTED: Whether defendant’s guilty plea was knowingly and voluntarily entered in light of the judge’s imposition of 3 years’ post-release supervision (PRS) rather than the 2 years PRS discussed at the time of the plea. (Assigned counsel: Mark Diamond, Box 287356, Yorkville Station, N.Y. 10128.)
People v. Damien Devone
AD3 order dated December 24, 2008, reversing grant of defendant’s motion to suppress evidence. Decision below: 57 AD3d 1240, 870 N.Y.S.2d 513. Read, J., granted leave May 26, 2009.
ISSUE PRESENTED: Whether reasonable suspicion of drug-related conduct is a minimum prerequisite to a canine sniff of the exterior of a car that has been stopped for a traffic violation.
People v. Alex Rivera
AD2 order dated March 3, 2009, modifying judgment of conviction. Decision below: 60 AD3d 788, 875 N.Y.S.2d 173. Lippman, Ch.J., granted leave June 10, 2009.
ISSUES PRESENTED: (1) The propriety under C.P.L. §310.70 of the court’s refusal to accept a partial verdict that the jury had announced pursuant to the court’s request. (2) The adjudication of defendant as a persistent violent felony offender. (3) Ineffective assistance of trial counsel. (Assigned counsel: Lisa Napoli and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Joshua M. Zona
AD4 order dated March 20, 2009, reversing as judgment of conviction and granting a new trial. Decision below: 60 AD3d 1279, 875 N.Y.S.2d 357. Graffeo, J., granted leave to People June 10, 2009.
ISSUE PRESENTED: Whether there was a reasonable view of the evidence entitling the defendant to a charge on a claim-of-right defense to petit larceny.
People v. Norman McBride
AD1 order dated February 3, 2009, affirming judgment of conviction. Decision below: 59 AD3d 151, 872 N.Y.S.2d 109. Ciparick, J., granted leave June 12, 2009.
ISSUE PRESENTED: Whether the warrantless entry into the defendant’s apartment was justified by “exigent circumstances.” (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Trevor Frederick
AD1 order dated May 28, 2009, affirming judgment of conviction. Decision below: 62 AD3d 612, 881 N.Y.S.2d 395. Ciparick, J., granted leave July 29, 2009.
ISSUE PRESENTED: Whether, where the court dismissed the indictment pursuant to C.P.L. §200.80 as superceded by a new indictment, and subsequently dismissed the superceding indictment as procedurally defective, it had the inherent authority to reinstate the previously dismissed indictment in the absence of any statutory authority to do so. (Assigned counsel: David Klem and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Juan Rivera
AD1 order dated March 26, 2009, denying coram nobis petition based upon ineffective assistance of counsel on appeal. Graffeo, J., granted leave June 1, 2009. (SSM.)
ISSUE PRESENTED: Whether appellate counsel was ineffective for failing to brief a Catu issue on appeal in 2006 in the First Department (30 AD3d 171) (Appellant is proceeding on the appeal pro se; in a notice to the bar dated August 12, 2009, the Court of Appeals invited the submission of amicus briefs.)
People v. Charles Frazier
AD1 order dated January 13, 2009, modifying judgment of conviction. Decision below: 58 AD3d 468, 870 N.Y.S.2d 342. Read, J., granted leave to People August 11, 2009. (See cross-appeal below.)
ISSUE PRESENTED: Whether it was legal for the sentencing court to impose consecutive sentences for the burglary and the underlying larceny. (Assigned counsel: Jody Ratner & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Charles Frazier
AD1 order dated January 13, 2009, modifying judgment of conviction. Decision below: 58 AD3d 468, 870 N.Y.S.2d 342. Read, J., granted leave to defendant August 11, 2009. (See cross-appeal above.)
ISSUE PRESENTED: Whether the People failed to prove defendant’s competency to stand trial. (Assigned counsel: Jody Ratner & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Daniel J. Ballman
AD4 order dated April 24, 2009, reversing judgment of conviction. Decision below: 64 AD3d 9, 877 N.Y.S.2d 771. Lippman, Ch.J., granted leave July 10, 2009.
ISSUES PRESENTED: (1) Whether a pre-November 1, 2006 out-of-state DUI conviction could be used to elevate defendant’s DWI to a felony. (2) Whether the police were permitted to detain defendant to investigate whether he had been driving while intoxicated. (Assigned counsel: Shirley A. Gorman, 12 East Bank Street, Albion, NY 14411.)
People v. Rance Scully
AD4 order dated April 24, 2009, modifying judgment of conviction. Decision below: 61 AD3d 1364, 877 N.Y.S.2d 782. Lippman, Ch.J., granted leave July 10, 2009.
ISSUE PRESENTED: Whether defendant had standing to challenge the issuance of the search warrant as to an apartment he leased, in the absence of an allegation that he had an expectation of privacy in it. (Assigned counsel: Frank J. Nebush, Jr., Oneida County Public Defender, Union Station, 321 Main Street, Utica, NY 13501.)
People v. Tara Gravino
AD4 order dated May 1, 2009, affirming judgment of conviction. Decision below: 62 AD3d 1259, 877 N.Y.S.2d 725. Ciparick, J., granted leave July 22, 2009.
ISSUE PRESENTED: Whether defendant’s lack of awareness at the time she pleaded guilty that she would be required to register as a sex offender affected the voluntariness of her plea.(Assigned counsel: Kathleen P. Reardon, 40 Humboldt Street, Rochester, NY 14609.)
People v. Brian S. King
Genesee County Court order dated March 27, 2009, affirming judgment of conviction. Ciparick, J., granted leave July 13, 2009.
ISSUE PRESENTED: Suppression of the results of a sobriety test given to defendant when his motorcycle was stopped in connection with the stop of another biker who had a burned out taillight and appeared intoxicated.
People v. Jerry Francois
AD1 order dated April 16, 2009, affirming judgment of conviction. Decision below: 61 AD3d 524, 877 N.Y.S.2d 54. Catterson, J. (AD dissenter), granted leave July 21, 2009.
ISSUE PRESENTED: Whether the officer’s “grabbing” of defendant’s elbow and putting him against a wall converted a level two stop into a level three requiring reasonable suspicion. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Scott Mitchell
AD3 order dated May 7, 2009, affirming judgment of conviction. Decision below: 62 AD3d 1045, 878 N.Y.S.2d 817. Ciparick, J., granted leave July 22, 2009.
ISSUE PRESENTED: Whether, once defendant’s probation supervision for an Essex County conviction was transferred to Franklin County, the Essex County court was divested of jurisdiction under C.P.L. 410.80(2) to consider defendant’s 440 motion. (Assigned counsel: Livingston L. Hatch, Essex County Public Defender, 7551 Court Street, P.O. Box 217, Elizabethtown, NY 12932.)
People v. James Dreyden
AT2, 11, & 13 order dated March 9, 2009, affirming judgment of conviction. Decision below: 23 Misc.3d 34, 879 N.Y.S.2d 283. Read, J., granted leave July 22, 2009.
ISSUE PRESENTED: Whether a misdemeanor complaint charging defendant with fourth-degree weapon possession, P.L. 265.01(1), was legally sufficient where it simply alleged that defendant possessed a “gravity knife.” (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Robert W. Ellsworth
AD4 order dated February 6, 2009, affirming judgment of conviction. Decision below: 59 AD3d 989, 872 N.Y.S.2d 320. Lippman, Ch.J., granted leave July 24, 2009.
ISSUE PRESENTED: Whether defendant’s plea was unknowing and involuntary where he was not advised at the time of his guilty plea that a condition of his 10-year probationary term was that he could have no contact with any minor children (including his own minor children living in his household), where the victim was not a member of his household. (Assigned counsel: R. Thomas Rankin, 617 Washington St., Jamestown, NY 14701.)
People v. Anthony Guardino
AD1 order dated May 21, 2009, affirming judgment of conviction. Decision below: 62 AD3d 544, 880 N.Y.S.2d 244. Catterson, J. (AD dissenter), granted leave July 28, 2009.
ISSUE PRESENTED: Whether defense trial counsel’s Batson claim, that the People struck four of the six black female jurors, made out a prima facie case.
People v. Teofilo Diaz
AD2 order dated March 17, 2009, affirming judgment of conviction. Decision below: 62 AD3d 157, 876 N.Y.S.2d 69. Smith, J., granted leave July 29, 2009.
ISSUE PRESENTED: Whether a defendant who intends to rely on his own testimony to support an EED defense must give notice to the prosecution under C.P.L. 250.10 and submit to examination by a prosecution psychiatrist. (Assigned counsel: Erica Horwitz and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Nayshawn Perkins
AD2 order dated April 14, 2009, affirming judgment of conviction. Decision below: 61 AD3d 780, 876 N.Y.S.2d 517. Pigott, J., granted leave August 3, 2009.
ISSUE PRESENTED: The admissibility of a pretrial photo array identification procedure where the defendant refused to participate in a lineup. (Assigned counsel: Joshua Levine and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Samuel McLean
AD3 order dated February 26, 2009, affirming judgment of conviction. Decision below: 59 AD3d 859, 873 N.Y.S.2d 383. Lippman, Ch. J., granted leave July 23, 2009.
ISSUE PRESENTED: Whether defendant’s 2006 statements to detectives investigating a murder were taken in violation of his right to counsel where a lawyer represented defendant during 2003 questioning about that same murder. (Assigned counsel: Danielle Neroni Reilly, P.O. Box 8446, Albany, NY 12208.)
People v. Donald McKinnon
AD1 order dated June 2, 2009, affirming judgment of conviction. Decision below: 63 AD3d 426, 883 N.Y.S.2d 2. Lippman, Ch. J., granted leave August 12, 2009.
ISSUE PRESENTED: The sufficiency of the evidence of “permanent disfigurement” under P.L. §120.10(2) (first-degree assault) where the victim displayed her arm to the jury, but the record gives no indication of what the jury saw. (Assigned counsel: Stanley E. Neustadter, Cardozo Law School, Criminal Appeals Clinic, 55 Fifth Ave., NYC 10003.)
People v. Rahjeem Williams
AD1 order dated April 14, 2009, affirming judgment of conviction. Decision below: 61 AD3d 470, 877 N.Y.S.2d 39. Pigott, J., granted leave August 13, 2009.
ISSUE PRESENTED: The adequacy of the Antommarchi waiver, where defendant never stated on the record that he was waiving his right to be present at a side-bar voir dire. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Nathan Reome
AD4 order dated July 10, 2009, modifying judgment by reducing the sentence as excessive and otherwise affirming the conviction. Decision below: 64 AD3d 1201, 883 N.Y.S.2d 419. Hurlbutt, J. (AD dissenter), granted leave August 13, 2009.
ISSUE PRESENTED: Whether, in a prosecution for gang rape by four perpetrators, where no identification or forensic evidence linked defendant to the crime, the testimony of an accomplice was sufficiently corroborated by the consistency between the testimony of the non-identifying victim and the accomplice with respect to the details of the crime. (Assigned counsel: Phillip Rothschild, Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, NY 13202.)
People v. Gregory Taylor
AD1 order dated May 28, 2009, affirming judgment of conviction for depraved-indifference murder. Decision below: 62 AD3d 605, 882 N.Y.S.2d 1. McGuire, J. (AD dissenter), granted leave on August 25, 2009.
ISSUES PRESENTED: (1) Whether the evidence was insufficient to establish the “brutal” killing of a “particularly vulnerable” victim over a prolonged period, as opposed to a single intentional act. (2) The extent to which the defense lawyer’s citation to People v. Suarez, 6 N.Y.3d 202, preserved the issue for appellate review. (Assigned counsel: Stanley E. Neustadter, Cardozo Law School, Criminal Appeals Clinic, 55 Fifth Ave., NYC 10003.)
People v. Oldalys Ortega
AD1 order dated July 2, 2009, affirming judgment of conviction. Decision below: 64 AD3d 422, 881 N.Y.S.2d 292. Pigott, J., granted leave October 5, 2009.
ISSUE PRESENTED: Whether, where the complainant’s medical records were generally admissible under the business records exception to the hearsay rule, the court’s refusal, over defense objection, to redact a key accusatory statement within those records which did not meet the “necessary for treatment and diagnosis” requirement of that exception was harmless error. (Assigned counsel: Jan Hoth & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Paris Simmons
AD1 order dated August 4, 2009, affirming judgment of conviction, with two dissents. Decision below: 884 N.Y.S.2d 9. Moskowitz, J. (AD dissenter), granted leave September 24, 2009.
ISSUE PRESENTED: Whether the trial court erred in responding to a deliberating jury’s note, asking whether a spur-of-the-moment action could constitute intent, by telling them, “yes, depending on the peculiar circumstances of the situation. In this instance my answer is yes.” (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
