court of appeals update: cases waiting to be scheduled
II. Cases Waiting to be Scheduled
People v. Calvin Battles
AD2 order dated September 15, 2009, modifying judgment of conviction. Decision below: 65 AD3d 1161, 886 NYS2d 170. Graffeo, J., granted leave December 15, 2009.
ISSUES PRESENTED: (1) The constitutionality of the discretionary persistent felony offender statute under Apprendi. (2) Whether concurrent sentences were required under P.L. §70.25(2) in that defendant’s pouring of gasoline on four individuals was a “single act.” (3) Whether the court was required to submit lesser included offenses to depraved indifference murder based on defendant’s cocaine intoxication negating the mens rea of depraved indifference. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Peter Wells
AD2 order dated June 16, 2009, modifying judgment of conviction. Decision below: 63 AD3d 967, 882 NYS2d 150. Pigott, J., granted leave November 9, 2009.
ISSUES PRESENTED: (1) Whether the trial court erred in discharging a sworn juror prior to the completion of jury selection based on expressed concerns about his ability to concentrate on the trial due to job-related commitments. (2) Whether the trial court properly determined that defendant was not entitled to a charge on the affirmative defense to 1st-degree robbery. (3) Whether the discretionary persistent felony offender statute violates Apprendi. (Assigned counsel: Kendra L. Hutchinson & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. William Porto
AD1 order dated October 6, 2009, affirming judgment of conviction. Decision below: 66 AD3d 430, 886 NYS2d 163. Pigott, J., granted leave February 5, 2010.
ISSUES PRESENTED: (1) Whether defendant’s right to counsel was violated when the trial court summarily denied defendant’s request for reassignment of counsel without conducting an inquiry regarding the grounds for his pro se oral motion or giving him an opportunity to elaborate upon his underlying standard-form pro se motion papers for the same relief. (2) The constitutionality of the persistent violent felony offender statute under Apprendi. (Assigned counsel: Carl S. Kaplan & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Jamel Bell
AD1 order dated December 15, 2009, affirming judgment of conviction. Decision below: 68 AD3d 545, 889 NYS2d 460. Ciparick, J., granted leave April 8, 2010.
ISSUE PRESENTED: Whether the persistent violent felony offender law violates Apprendi. (Assigned counsel: Peter Theis & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Robert Kelly
AD2 order dated December 8, 2009, affirming judgment of conviction. Decision below: 68 AD3d 895, 889 NYS2d 491. Ciparick, J., granted leave March 2, 2010.
ISSUES PRESENTED: (1) Whether there was a mode of proceedings error when court officers temporarily removed one juror from the jury room without directing the remaining jurors to refrain from deliberating until all jurors were present. (2) Whether the persistent violent felony offender statute violates Apprendi. (Assigned counsel: Warren Landau and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Charles Frazier
AD1 order dated January 13, 2009, modifying judgment of conviction. Decision below: 58 AD3d 468, 870 NYS2d 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 NYS2d 342. Read, J., granted leave to defendant August 11, 2009. (See cross-appeal above.)
ISSUES PRESENTED: (1) Whether the People failed to prove defendant’s competency to stand trial. (2) Whether the persistent violent felony offender statute violates Apprendi. (Assigned counsel: Jody Ratner & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Anthony Guardino
AD1 order dated May 21, 2009, affirming judgment of conviction. Decision below: 62 AD3d 544, 880 NYS2d 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. Gregory Taylor
AD1 order dated May 28, 2009, affirming judgment of conviction for depraved-indifference murder. Decision below: 62 AD3d 605, 882 NYS2d 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 NYS2d 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 1000.)
People v. Eric Hollis
AD1 order dated June 2, 2009, affirming judgment of conviction. Decision below: 63 AD3d 409, 879 NYS2d 458. Smith, J., granted leave November 6, 2009.
ISSUE PRESENTED: Whether the trial court erroneously denied a defense Batson motion, at step one, based upon the People’s use of peremptory challenges to remove the only two African-American panel members. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Joseph Hecker
AD1 order dated December 3, 2009, affirming judgment of conviction. Decision below: 68 AD3d 429, 889 NYS2d 44. Graffeo, J., granted leave March 9, 2010.
ISSUES PRESENTED: (1) Whether the Court of Appeals should clarify its holding in People v. Payne, 88 N.Y.2d 172 (1996), to explicitly allow the appellate court, in reviewing the correctness of the trial court’s step three Batson ruling, to factor in the strength of the prima facie showing. (2) Whether, under the Supreme Court’s recent ruling in Presley v. Georgia, 130 S. Ct. 721 (2010), a trial court deciding to close the courtroom must adopt the least restrictive reasonable alternative to closure. (Assigned counsel: Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Mujahid Muhammed
AD1 order dated October 6, 2009, affirming judgment of conviction. Decision below: 66 AD3d 424, 886 NYS2d 394. Graffeo, J., granted leave December 28, 2009.
ISSUE PRESENTED: Whether P.L. §170.25, second-degree criminal possession of a forged instrument, which does not provide explicitly that the possession must be “knowing and aware,” requires a trial judge to expressly charge the jury on that implied element. (Assigned counsel: Peter Theis & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Tashiem Bayard
AD1 order dated June 9, 2009, affirming judgment of conviction. Decision below: 63 AD3d 481, 881 NYS2d 58. Pigott, J., granted leave November 20, 2009.
ISSUE PRESENTED: Whether the People committed a Brady/Rosario violation by failing to memorialize the source of information, contained in a police report, gleaned collectively from eyewitnesses – only one of whom testified – which contained a “slightly different narrative of the crime” from the way it was described at trial. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Michael Edward Prindle
AD4 order dated June 5, 2009, affirming judgment of conviction. Decision below: 63 AD3d 1597, 880 NYS2d 428. Lippman, Ch.J., granted leave November 24, 2009.
ISSUES PRESENTED: (1) The sufficiency of the evidence of depraved indifference murder, where defendant drove a van at a high rate of speed on city streets. (2) Refusal of the trial court to admit evidence that a third party may have committed the crime. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)
People v. Terence G. Gordon
AD1 order dated August 4, 2009, affirming judgment of conviction upon PRS resentence. Decision below: 65 AD3d 428, 883 NYS2d 514. Graffeo, J., granted leave December 1, 2009.
ISSUES PRESENTED: (1) Whether the Appellate Division improperly construed C.P.L. 450.30(3) to deny a criminal defendant any appellate remedy when a PRS re-sentencing court imposes PRS without the defendant having been advised of PRS at the time of the plea. (2) Whether the PRS resentencing court, confronted with a defendant who was never advised of PRS at the time of the plea, must afford the defendant the option of plea withdrawal. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Elijah Cummings
AD1 order dated October 22, 2009, affirming judgment of conviction. Decision below: 66 AD3d 571; 887 NYS2d 89. Graffeo, J., granted leave January 28, 2010.
ISSUE PRESENTED: Whether trial counsel was ineffective for failing to move for dismissal of the second-degree burglary count based on the argument that a police station (containing a dorm room) does not constitute a “dwelling” under P.L. §140.25(2). (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Dragan Boscic
Sullivan County Court order dated July 30, 2009, reversing judgement of conviction and dismissing all charges. Decision below: 24 Misc.3d 1227(A); 2009 WL 2340690. Pigott, J., granted People leave to appeal January 22, 2010.
ISSUE PRESENTED: Whether, in a prosecution for driving while impaired, the People must produce evidence that the Breathalyzer was calibrated within 6 months prior to its use, before the results of the breathalyser test can be admitted into evidence.
People v. Herbert Aponte
AT 2,11, and 13, order dated June 29, 2009, affirming judgment of conviction. Decision below: 24 Misc.3d 118, 886 NYS2d 547. Read, J., granted leave January 19, 2010.
ISSUE PRESENTED: Whether attempted stalking in the third degree (P.L. §§110.00/120.50[3]) is a legally cognizable offense. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Robert Kelly
AD2 order dated December 8, 2009, affirming judgment of conviction. Decision below: 68 AD3d 895, 889 NYS2d 491. Ciparick, J., granted leave March 2, 2010.
ISSUE PRESENTED: Whether the trial court committed a mode-of-proceedings error when it had a court officer remove a juror from the jury room during deliberations, to discuss a child care issue, without instructing the jury that it should cease deliberations during the absence of that juror. (Assigned counsel: Warren Landau and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Jair Williams
AD2 order dated July 21, 2009, affirming judgment of conviction. Decision below: 64 AD3d 734, 883 NYS2d 566. Lippman, Ch. J., granted leave February 5, 2010.
ISSUES PRESENTED: (1) Whether the trial court must consult with counsel in advance of its telling the jurors why it was rejecting the verdict as repugnant and resubmitting the case to the jurors. (2) Whether the court erred, over objection, by having the jury finish deliberations by completing an incomplete verdict sheet in open court. (Assigned counsel: Warren Landau and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Ronald Mack
AD2 order dated August 4, 2009, denying writ of error coram nobis based upon alleged ineffective assistance of appellate counsel. Decision below: 65 AD3d 558, 882 NYS2d 912. Lippman, Ch. J., granted leave December 8, 2009.
ISSUE PRESENTED: Whether appellate counsel was ineffective for failing to raise, on direct appeal, the ineffectiveness of trial counsel in failing to object to a non-unanimous verdict. (Assigned counsel: Gary Muldoon, Muldoon & Getz, 144 Exchange Blvd., Ste. 402, Rochester, NY 14614.)
People v. Mordekhay Levy
AD2 order dated September 8, 2009, affirming judgment of conviction. Decision below: 65 AD3d 1057, 884 NYS2d 881. Ciparick, J., granted leave December 14, 2009.
ISSUES PRESENTED: (1) In a prosecution for trademark counterfeiting (P.L. §165.72), whether a trademark must be registered for the goods on which they appear; and (2) whether the court erred in refusing to charge the jury that the defendant must know the trademark is counterfeit. (3) Whether probable cause supported the search warrant.
People v. Ollman Lopez
AD2 order dated September 15, 2009, affirming judgment of conviction. Decision below: 65 AD3d 1166, 885 NYS2d 514. Pigott, J., granted leave December 16, 2009.
ISSUE PRESENTED: Whether defendant effectively waived his right to counsel during an interrogation by a New York detective in a detention facility in Pennsylvania, where defendant was being held on unrelated charges. Defendant was represented by counsel on the Pennsylvania matter but the New York detective was unaware of that fact. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Omar Montes
AD1 order dated November 24, 2009, affirming judgment of conviction. Decision below: 67 AD3d 586, 893 NYS2d 515. Abdus-Salaam, J. (AD dissenter), granted leave December 22, 2009.
ISSUE PRESENTED: Whether the trial court abused its discretion in failing to strike a prosecution witness’ entire testimony where, after that witness had testified, she admitted to the trial assistant that she had lied about at least a portion of her testimony, but the witness was not available to be recalled to the stand. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Jamel Black
AD2 order dated September 29, 2009, affirming judgment of conviction. Decision below: 65 AD3d 1370, 886 NYS2d 460. Graffeo, J., granted leave January 6, 2010.
ISSUE PRESENTED: Under Batson, whether a prospective juror’s employment, lack of employment, residence, and/or level of education, are valid reasons for peremptorily striking a juror only if they relate to the particular case and the prospective jurors’ qualifications to serve. (Assigned counsel: William Kastin & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Steven Mason
People v. Reginald Rabb
AD1 orders dated October 13, 2009, affirming judgments of conviction for two co-defendants. Decision below: 66 AD3d 487, 887 NYS2d 42. Read, J., granted leave to Rabb January 19, 2010. Graffeo, J., granted leave to Mason January 21, 2010.
ISSUE PRESENTED: Whether the People satisfied the “exhaustion” requirement of C.P.L. §700.15(4), and showed “that normal investigative procedures have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or to be too dangerous to employ.” The allegations that “normal investigative procedures” had been unsuccessfully tried pertained to a different investigation involving different suspects and crimes. (Assigned counsel for Mason: Barbara Zolot & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006; assigned counsel for Rabb: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Jose Alonzo
AD2 order dated May 5, 2009, affirming dismissal of two counts of the indictment. Decision below: 62 AD3d 720, 877 NYS2d 695. Read, J., granted leave January 9, 2010.
ISSUE PRESENTED: Whether the court properly dismissed counts as multiplicitous (C.P.L. §210.20) because the groping of two body parts of the same victim constituted a single continuous act.
People v. John Lingle
AD1 order dated October 27, 2009, affirming judgment of PRS resentence. Decision below: 66 AD3d 582, 886 NYS2d 601. Graffeo, J., granted leave to March 29, 2010. (SSM.)
ISSUES PRESENTED: (1) Whether a defendant still unreleased from prison enjoys double jeopardy or due process protection against the imposition of PRS post-Williams. (2) Whether, on appeal from a PRS resentence, the Appellate Division has the power under CPL §470.15 to modify the determinate portion of the sentence as harsh and excessive, in the interests of justice. (Assigned counsel: Jonathan Kirshbaum & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. William Campbell
AD1 order of affirmance dated October 29, 2009. Decision below: 66 AD3d 590, 888 NYS2d 472. Pigott, J., granted leave February 5, 2010.
ISSUE PRESENTED: Whether the trial court properly excluded two members of defendant’s family during the testimony of an undercover narcotics police officer, on the ground that they lived within the area of the undercover operation. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Shahid Muhammad
AD4 order of affirmance dated October 2, 2009. Decision below: 66 AD3d 1332, 885 NYS2d 793. Lippman, Ch.J., granted leave January 27, 2010.
ISSUES PRESENTED: (1) Whether the jury verdict finding defendant guilty of first-degree assault (P.L. §120.10), yet acquitting him of second-degree weapon possession (P.L. §265.03 [former subd. 2]), was repugnant. (2) Whether the court abused its discretion by barring expert testimony on identification, since the sole eyewitness testified that he had known the defendant for years. (Assigned counsel: Thomas J. Eoannou, 484 Delaware Avenue, Buffalo, NY 14202.)
Matter of Leroy M.
AD1 order dated August 25, 2009, reversing juvenile delinquency adjudication. Decision below: 65 AD3d 500, 884 NYS2d 231. Court of Appeals granted leave January 19, 2010 to the Presentment Agency.
ISSUE PRESENTED: Whether, where five police officers entered the defendant’s home without a warrant or exigency, to arrest him for a stolen laptop, the consent subsequently given for the entry by defendant’s sister was sufficiently attenuated from the initial illegality. (Assigned counsel: Tamara Steckler, Juvenile Rights Division of the Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Isidore Farkas
AD2 order dated August 25, 2009, reversing trial court’s order dismissing certain counts of the indictment. Decision below: 65 AD3d 700, 885 NYS2d 311. Smith, J., granted leave February 23, 2010.
ISSUE PRESENTED: Statutory speedy trial (CPL 30.30): Whether theft-related charges contained in an indictment filed over one year after the commencement of the criminal action were time-barred as unrelated to the initial assault charges in the misdemeanor complaint.
People v. Andre Stewart
AD1 order dated November 19, 2009, affirming denial of CPL 440.10 motion. Decision below: 67 AD3d 553, 889 NYS2d 173. Ciparick, J., granted leave March 1, 2010.
ISSUES PRESENTED: (1) Whether the defendant could properly raise a Catu (4 NY3d 242) issue via 440.10, since his failure to raise this issue on direct appeal was “not unjustifiable” because his time to take an appeal expired before Catu was decided. (2) Whether the court’s statement at plea that defendant would receive the “maximum” period of PRS was sufficient advisal that he would be receiving 5 years PRS, so as render his plea knowing and voluntary. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Remy Smith
AD1 order dated April 28, 2009, affirming judgment of conviction. Decision below: 61 AD3d 579, 877 NYS2d 316. Jones, J., granted leave March 2, 2010.
ISSUE PRESENTED: Whether the trial court erred in charging the jury: “If you find [the victim] was truthful and accurate in her testimony to you, her testimony without any other eyewitness to what happened inside the car, under the law satisfies proof beyond a reasonable doubt.”
People v. Hadji S. Hill
AD4 order dated October 2, 2009, affirming judgment of conviction. Decision below: 66 AD3d 1471, 885 NYS2d 835. Jones, J., granted leave March 2, 2010.
ISSUE PRESENTED: The sufficiency of the plea allocution, in that it negated the element of intent. (Assigned counsel: Timothy P. Donaher, Monroe County Public Defender, 10 N. Fitzhugh St., Rochester, NY 14614.)
People v. Michael Spicola
AD4 order dated April 24, 2009, affirming judgment of conviction. Decision below: 61 AD3d 1434, 887 NYS2d 591. Jones, J., granted leave March 12, 2010.
ISSUES PRESENTED: (1) The admissibility of a clinical social worker’s expert testimony concerning child sex abuse accommodation syndrome. (2) The admissibility of the victim’s statements to a nurse practitioner that came in as relevant to diagnosis and treatment. (3) Preclusion of the testimony of defense witnesses who would testify as to defendant’s reputation for truth and veracity.
People v. Tony Weaver
AD4 order dated December 30, 2009, affirming judgment of conviction. Decision below: 68 AD2d 1781, 890 NYS2d 857. Jones, J., granted leave March 16, 2010.
ISSUE PRESENTED: The sufficiency of the evidence of disorderly conduct, consistent with People v. Munafo (50 NY2d 326). (Assigned counsel: Ronald C. Valentine, Wayne County PD, 26 Church St., Lyons, NY 14489.)
People v. Zufer Cecunjamin
AD3 order dated November 5, 2009, affirming judgment of conviction. Decision below: 67 AD3d 1072, 889 NYS2d 691. Smith, J., granted leave March 16, 2010.
ISSUES PRESENTED: (1) The sufficiency of the evidence of attempted first-degree sexual abuse (PL 130.65[2]); i.e., whether the inebriated victim was “incapable of consent by reason of being physically helpless.” (2) The sufficiency of the court’s inquiries into allegations of juror misconduct. (3) Ineffective assistance of counsel.
People v. Sean Smith
AD1 order dated January 12, 2010, affirming judgment of conviction. Decision below: 69 AD3d 450, 892 NYS2d 393. Ciparick, J., granted leave April 8, 2010.
ISSUES PRESENTED: (1) Whether a determination under the New York City Gun Offender Registration Act (GORA) can be reviewed on the direct appeal from the criminal judgment. (2) Whether GORA is preempted by Executive Law §259-a(2), giving the New York State Division of Parole the responsibility for supervising ex-offenders. (Assigned counsel: Bruce D. Austern and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Shareef Evans
AD2 order dated January 5, 2010, affirming judgment of conviction. Decision below: 69 AD3d 649, 891 NYS2d 290. Ciparick, J., granted leave April 8, 2010.
ISSUE PRESENTED: Whether trial counsel was ineffective for (a) failing to raise the statute of limitations as a defense to first-degree manslaughter, and (b) not seeking to reopen the suppression hearing. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. James O. Boothe
AD1 order dated December 1, 2009, modifying lower court’s order dismissing certain counts of the indictment. Decision below: 68 AD3d 402, 890 NYS2d 484. Read, J., granted leave to People April 1, 2010.
ISSUE PRESENTED: Whether insurance fraud in the first-degree (PL §176.30) applies to fraudulent health care insurance acts defined in PL §176.05(2).
People v. Freddy Rodriguez
AD1 order dated February 16, 2010, reversing judgment of conviction. Decision below: 72 AD3d 238, 895 NYS2d 58. McGuire (AD dissenter), J., granted leave to People April 15, 2010.
ISSUE PRESENTED: Whether the trial facts required the trial court to charge justification (PL §35.05[2][“choice of evils’]).
People v. James Phillips
AD1 order dated December 15, 2009, affirming judgment of conviction. Decision below: 68 AD3d 541, 889 NYS2d 456. Pigott, J., granted leave April 8, 2010.
ISSUE PRESENTED: Competency of brain-damaged defendant to proceed to trial; the applicability of the protocols established in People v. Francobandera, 33 NY2d 429 (1974). (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
