court of appeals update: cases waiting to be scheduled
III. Cases Waiting to be Scheduled
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. 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. Dwayne Middleton
AD1 order dated April 29, 2008, affirming judgment of SORA risk-level designation. Decision below: 50 A.D.3d 1114, 857 N.Y.S.2d 617. Court of Appeals granted leave September 9, 2008.
ISSUES PRESENTED: (1) Whether the defendant was properly assessed 20 points for multiple victims and 30 points for the age of the younger victim; (2) whether the People properly presented a new risk assessment instrument upon an appellate remand for a new SORA hearing. (Assigned counsel: Steven Banks, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, N.Y., N.Y. 10038.)
People v. Michael Brown
AD2 order dated April 29, 2008, affirming judgment of conviction. Decision below: 50 A.D.3d 1154, 856 N.Y.S.2d 672. Graffeo, J., granted leave October 3, 2008.
ISSUES PRESENTED: (1) Whether the prosecution met the statute of limitations (C.P.L. § 30.10[4][a][ii], where the sex assault occurred in 1993, the DNA matchup occurred in 2002, and the indictment was in 2003. (2) Whether a DNA test by a private lab was properly admitted (Crawford v. Washington) through the testimony of an employee of the Medical Examiner’s Office. (Assigned counsel: Steven Bernhard and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Troy E. Swan
AD4 order dated April 25, 2008, affirming judgment of conviction. Decision below: 50 A.D.3d 1566, 855 N.Y.S.2d 796. Smith, J., granted leave September 15, 2008.
ISSUES PRESENTED: (1) Whether a garden area on the grounds outside a jail constitutes a “detention facility” for the purposes of the second-degree escape statute (P.L. §205.10[1]; (2) the sufficiency of the plea allocution.
People v. Nasin Arafet
AD3 order dated August 21, 2008, affirming judgment of conviction, with dissents. Decision below: 54 A.D.3d. 517, 863 N.Y.S.2d 512. Rose (AD dissenter), J. , granted leave November 06, 2008.
ISSUE PRESENTED: The admissibility under the modus operandi exception to the Molineux rule of the prior uncharged tractor-trailer hijackings.
People v. Guiseppe D’Alessandro
AD1 order dated August 19, 2008, denying motion for reargument of denial of writ of error coram nobis. Graffeo, J., granted leave November 26, 2008.
ISSUE PRESENTED: The treatment of successive petitions for a writ of error coram nobis claiming ineffective assistance of appellate counsel.
People v. J.W. Hardy, Jr.
AD4 order dated March 14, 2008, affirming judgment of conviction. Decision below: 43 A.D.3d 1232, 856 N.Y.S.2d 324. Kaye, Ch. J., granted leave December 4, 2008.
ISSUE PRESENTED: Sufficiency of the evidence of second-degree escape (P.L. §205.10[2]); i.e., whether defendant was in “custody” when he fled from the courthouse even though a securing order had not yet been signed by the court. (Assigned counsel: James S. Hinman, 16 East Main St., Suite 260, Rochester, NY 14614.)
People v. James Kadarko
AD1 order dated October 9, 2008, reversing judgment of conviction, with dissent. Decision below: 56 A.D.3d 102, 867 N.Y.S.2d 32. McGuire, J., granted leave to People on December 9, 2008.
ISSUE PRESENTED: Whether the trial court’s merely summarizing, but not reading, a deliberating jury’s note, requires reversal on the absence of an objection. (Assigned counsel for respondent: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Lynette Caban
AD1 order dated May 6, 2008, reversing judgment of conviction. Decision below: 51 A.D.3d 455, 857 N.Y.S.2d 118. Ciparick, J., granted leave to People December 18, 2008.
ISSUE PRESENTED: Whether the admission of proof of a driver’s suspended license is reversible error in a trial for criminally negligent homicide based on a traffic accident. (Assigned counsel for respondent: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Quentin Abney
AD1 order dated October 14, 2008, affirming judgment of conviction, with dissents. Decision below: 57 A.D.3d 35, 867 N.Y.S.2d 1. Moskowitz, J., (AD dissenter), granted leave December 23, 2008.
ISSUES PRESENTED: Whether the trial court abused its discretion in barring the defense from calling an expert to testify about factors that affect the reliability of eyewitness testimony; whether the Court’s Legrand holding should be limited to the facts of that case; and what constitutes “corroborating” testimony which would obviate the need for expert identification testimony. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. George Davis
AD1 order dated September 9, 2008, affirming judgment of conviction. Decision below: 54 A.D.3d 575, 863 N.Y.S.2d 212. Jones, J., granted leave on January 22, 2009.
ISSUE PRESENTED: Whether criminal possession of a controlled substance in the seventh degree (simple possession) is a lesser included offense of third-degree sale or third-degree possession (intent to sell), where the defendant has raised an agency defense. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Brian Henderson
AD1 order dated April 15, 2008, affirming judgment of conviction, with dissent. Decision below: 50 A.D.3d 439, 855 N.Y.S.2d 490. Catterson, J., (AD dissenter), granted leave January 22, 2009.
ISSUES PRESENTED: Whether the prosecutor committed misconduct by insinuating, without evidence, on cross-examination of the inmate-victim and again on summation, that the defendant had intimidated the victim into testifying on his behalf. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Rashad McNair
AD1 order dated October 7, 2008, affirming judgment of conviction. Decision below: 55 A.D.3d 332, 864 N.Y.S.2d 308. Smith, J., granted leave January 29, 2009.
ISSUE PRESENTED: The sufficiency of the plea allocution; whether the case comes within the Lopez preservation requirement. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Mark Ochoa
AD1 order dated December 18, 2008, affirming judgment of conviction, with dissent. Decision below: 57 A.D.3d 342, 869 N.Y.S.2d 461. Freedman, J. (AD dissenter), granted leave February 24, 2009.
ISSUES PRESENTED: (1) The admission into evidence of numerous prior consistent statements of prosecution witnesses despite the lack of any allegation of recent fabrication, as well as the admission of evidence of defendant’s post-arrest silence. (2) The trial court’s conducting an ex parte conference with a deliberating juror, in response to the juror’s note, in the absence of the defendant and without providing prior notice of the note to counsel. (Assigned counsel: Carol A. Zeldin & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Simon Samandarov
AD2 order dated November 12, 2008, affirming judgment of conviction and denial of C.P.L.440.10 motion. Decision below: 56 A.D.3d 575, 867 N.Y.S.2d 497. Pigott, J., granted leave February 2, 2009.
ISSUE PRESENTED: Whether the 440 motion court erred in denying defendant’s Rosario 440.10 motion without a hearing.
People v. Matthew Sanchez
AD1 order dated October 23, 2008, modifying judgment of conviction. Decision below: 57 A.D.3d 1, 866 N.Y.S.2d 78. Smith, J., granted leave February 3, 2009.
ISSUE PRESENTED: Whether, under second-degree gang assault (P.L. §120.06), “two or more persons” must share defendant’s intent to cause “serious physical injury” in order to have “aided” defendant in committing gang assault.
People v. Juwanna Wrotten
AD1 order dated December 30, 2008, reversing judgment of conviction and remanding for a new trial. Decision below: 871 N.Y.S.2d 28. Friedman (AD dissenter), J., granted leave to People February 19, 2009.
ISSUE PRESENTED: Whether the trial court lacked authority to allow a prosecution witness, allegedly unable to travel to New York for health reasons, to testify via live, two-way television. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
