court of appeals update: cases waiting to be scheduled
III. Cases Waiting to be Scheduled
Matter of Firetog v. Rivera
AD2 order dated October 23, 2007, granting Article 78 petition to prohibit retrial on double jeopardy grounds. Decision below: 44 A.D.3d 957, 844 N.Y.S.2d 116. The Court of Appeals granted leave February 19, 2008.
ISSUE PRESENTED: Whether double jeopardy barred retrial on the top count of second-degree murder after a hung jury, where (a) the trial court had submitted lesser included offenses, (b) the jury had evidently acquitted of the top count since it had started deliberating on the lesser counts, and (c) when the jury reported itself hung, the trial court refused the defense request to inquire into whether a partial verdict had been reached.
People v. William Kalin
AT 2 & 11 order dated October 5, 2007, reversing judgment of conviction and dismissing the accusatory instrument. Decision below: 17 Misc.3d 131(A), 851 N.Y.S.2d 65. Smith, J., granted leave to People May 13, 2008.
ISSUE PRESENTED: Whether the People’s failure to attach a lab report to an information charging the defendant with 7th-degree drug possession constitutes a jurisdictional defect requiring reversal and dismissal on appeal despite the failure to preserve the issue prior to a guilty plea.
People v. Joyce Hawkes
AD4 order dated February 1, 2008, affirming judgment of conviction. Decision below: 48 A.D.3d 1075, 849 N.Y.S.2d 839. Kaye, Ch. J., granted leave May 16, 2008.
ISSUES PRESENTED: (1) Whether the last act of the instant crime, a continuing offense, was committed within 10 years of the date sentence was imposed on the predicate felony conviction. (2) Whether the issue fits within the illegal sentence exception to the preservation requirement.
People v. Dwight Furet
AD1 order dated January 8, 2008, affirming judgment of conviction. Decision below: 47 A.D.3d 430, 851 N.Y.S.2d 396. Smith, J., granted leave May 20, 2008. (SSM.)
ISSUE PRESENTED: Whether the mandatory surcharge and fees pursuant to C.P.L. §60.35 must be imposed orally by the sentencing judge as part of the defendant’s sentence. (Assigned counsel: William A. Loeb and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Christopher Harris
AD1 order dated December 27, 2007, affirming judgment of conviction. Decision below: 46 A.D.3d 470, 847 N.Y.S.2d 853. Smith, J., granted leave May 20, 2008. (SSM.)
ISSUE PRESENTED: Whether the mandatory surcharge and fees pursuant to C.P.L. §60.35 must be imposed orally by the sentencing judge as part of the defendant’s sentence. (Assigned counsel: William A. Loeb and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Lorraine Washington
AD1 order dated May 15, 2008, affirming judgment of conviction. Decision below: 51 A.D.3d 521, 856 N.Y.S.2d 485. Ciparick, J., granted leave July 24, 2008. (SSM.)
ISSUE PRESENTED: Whether the mandatory surcharge and fees pursuant to C.P.L. §60.35 must be imposed orally by the sentencing judge as part of the defendant’s sentence. (Assigned counsel: William A. Loeb and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Amber Bauman
People v. Charles Edward Lafler
AD4 order dated May 2, 2008, affirming dismissal of indictment. Decision below: 51 A.D.3d 316, 856 N.Y.S.2d 801. Fahey, J., (AD dissenter), granted leave to People June 4, 2008.
ISSUE PRESENTED: Whether the indictment’s count charging depraved indifference assault, based upon an 8-month course of conduct, was duplicitous. (Assigned counsel: Gary Muldoon, c/o Muldoon & Getz, 144 Exchange Blvd., Suite 402, Rochester NY 14614.)
People v. Walkins Contreras
AD1 order dated January 3, 2008, affirming judgment of conviction. Decision below: 47 A.D.3d 411, 848 N.Y.S.2d 650. Pigott, J., granted leave June 10, 2008.
ISSUES PRESENTED: (1) Defendant’s right to be present during trial judge’s ex parte interview of the victim about a note she wrote. (2) The trial judge’s ban on defense counsel’s disclosing the note to defendant. (3) The admissibility of the note on defendant’ case. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, N.Y., N.Y. 10038.)
People v. Jose Fuentes
AD2 order dated February 5, 2008, affirming judgment of conviction. Decision below: 48 A.D.3d 479, 851 N.Y.S.2d 628. Pigott, J., granted leave June 26, 2008.
ISSUE PRESENTED: Whether the People’s failure to disclose Brady material, pretrial, prejudiced defendant, since it was turned over during trial. (Assigned counsel: Charles T. Glaws, 61 Broadway, Suite 2715, NY, NY 10006.)
People v. Tyrone Mingo
AD2 order dated January 8, 2008, affirming level two SORA adjudication. Decision below: 49 A.D.3d 148, 850 N.Y.S.2d 151. Court of Appeals granted leave June 26, 2008.
ISSUE PRESENTED: Whether documents generated by the District Attorney’s Office (ECAB Data Sheet, Grand Jury Synopsis, and Data Analysis Form) constitute “reliable hearsay” under Correction Law §168-n (3) and “clear and convincing” evidence of the use of a “dangerous instrument” so as to support risk-level determination. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Richard Lowe
AD1 order dated April 24, 2008, affirming judgment of conviction. Decision below: 50 A.D.3d 516, 856 N.Y.S.2d 90. McGuire, J. (AD dissenter), granted leave June 27, 2008.
ISSUES PRESENTED: (1) The adequacy of the probable cause showing at the Darden hearing. (2) The non-disclosure of the hearing minutes to defense counsel. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Tyrone Maye
AD3 order dated August 9, 2007, affirming judgment of conviction. Decision below: 43 A.D.3d. 556, 840 N.Y.S.2d 490. Kaye, Ch. J., granted leave July 18, 2008.
ISSUE PRESENTED: The reasonableness of the strip search and body cavity search at the police station, resulting in the recovery of a packet of cocaine “readily observed between the cheeks of [defendant’s] buttocks.”
People v. Scott Weaver
AD3 order dated June 5, 2008, affirming judgment of conviction. Decision below: 52 A.D.3d. 138, 860 N.Y.S.2d 223. Stein, J. (AD dissenter), granted leave July 22, 2008.
ISSUES PRESENTED: (1) Whether the placement of a GPS tracking device on the bumper of defendant’s car constituted a “search”for which a warrant is necessary. (2) Whether the defendant’s girlfriend was an accomplice either as a matter of law or fact. (3) The admissibility of “consciousness of guilt” evidence.
People v. Dale Leeson
AD4 order dated February 8, 2008, affirming judgment of conviction, with dissents. Decision below: 48 A.D.3d 1294, 850 N.Y.S.2d 815. Jones, J., granted leave July 31, 2008.
ISSUE PRESENTED: Evidence of uncharged sex crimes under Molineux to establish a common scheme or plan.
People v. Juan Carlos Aleman
AD1 order dated February 19, 2008, affirming judgment of conviction. Decision below: 48 A.D.3d 1294, 850 N.Y.S.2d 815. Pigott, J., granted leave August 5, 2008.
ISSUE PRESENTED: Whether the trial court’s “own impromptu Allen charge” prejudiced defendant, where the jury continued deliberating for several days thereafter, and came to a split verdict. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Dionis Collado
AD1 order dated January 29, 2008, affirming judgment of conviction. Decision below: 47 A.D.3d 547, 849 N.Y.S.2d 558. Jones, J., granted leave September 10, 2008.
ISSUE PRESENTED: Probable cause to arrest based upon the on-the-scene accusation of a citizen informant; does the immediate disappearance of the unidentified informant at the scene convert the accuser into an "anonymous" informant? (Assigned counsel: Bruce D. Austern and Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Paul Boyd
AD1 order dated April 17, 2008, reversing judgment of conviction. Decision below: 51 A.D.3d 325, 856 N.Y.S.2d 71. McGuire, J., (AD1 dissenter), granted leave June 10, 2008.
ISSUE PRESENTED: Whether a plea of guilty is involuntary under People v. Catu, 4 N.Y.3d 242, where the judge at the plea advised the defendant that there was a mandatory post-release supervision period, but did not advise him what the length of that period would be, or the range available. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
