AD2 order dated October 27, 2009, affirming judgment of conviction. Decision below: 66 AD3d 1047, 888 NYS2d 544. Smith, J., granted leave March 19, 2010.
ISSUES PRESENTED: (1) The court’s refusal to charge intoxication. (2) The admissibility of a 911 call. (3) Sufficiency of the evidence.
People v. Michael Brunner
AD1 order dated November 10, 2009, affirming judgment of conviction. Decision below: 67 AD3d 464, 890 NYS2d 3. Lippman, Ch. J., granted leave April 21, 2010.
ISSUES PRESENTED: (1) Whether trial counsel was ineffective for failing to move to dismiss pursuant to C.P.L. §30.30. (2) Denial of defendant’s request for a missing witness charge. (3) the court’s Sandoval ruling. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Luis Feliciano
AD3 order dated November 19, 2009, denying writ of error coram nobis. Pigott, J., granted leave April 9, 2010.
ISSUE PRESENTED: Whether appellate counsel was ineffective for failing to argue on direct appeal that counsel at the VOP hearing was ineffective. (Assigned counsel: Joseph Lee Matalon, c/o Matalon, Shweky, Elman, PLLC, 450 7th Avenue, 33rd Floor, NYC 10123.)
People v. Lamont Beasley
AD2 order dated January 12, 2010, affirming judgment of conviction. Decision below: 69 A.D.3d 741, 893 N.Y.S.2d 201. Eng, J., (AD dissenter) granted leave May 4, 2010.
ISSUE PRESENTED: Criminal Procedure Law §30.30: Whether the People’s two-week unexplained post-readiness delay in producing the grand jury minutes to the court, so that it could decide the sufficiency of the evidence before the grand jury, constituted excludable time since it was not clear, in retrospect, that this delay affected the timing of the court’s ultimate decision.
People v. David M. Harnett
AD3 order dated February 25, 2010, affirming judgment of conviction. Decision below: 72 A.D.3d 232, 894 N.Y.S.2d 614. Stein, J. (AD dissenter), granted leave May 5, 2010.
ISSUE PRESENTED: Whether defendant’s plea was unknowing and involuntary where the court did not advise defendant that his plea to a sex offense subjects him to the provisions of the Sex Offender Management and Treatment Act (Mental Hygiene Law, article 10), which could result in confinement beyond the expiration of the sentence. (Assigned counsel: Brian M. Callahan, 4886 Western Turnpike, P.O. Box 100, Duanesburg, NY 12056.)
People v. Terrell Gilford
AD1 order dated September 1, 2009, reducing the sentence and otherwise affirming judgment of conviction. Decision below: 65 AD3d 840, 884 NYS2d 731. Read, J., granted leave May 17, 2010.
ISSUE PRESENTED: The admissibility of the show-up ID. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Michael Duhs
AD2 order dated August 25, 2009, affirming judgment of conviction. Decision below: 65 AD3d 699, 884 NYS2d 479. Jones, J., granted leave May 19, 2010.
ISSUE PRESENTED: Whether the statement the child-victim made to an emergency room physician, implicating the defendant, was properly admitted as a hearsay exception, in that it was relevant to the child’s treatment; whether the statement was “testimonial” under Crawford. (Assigned counsel: Erin Collins & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Kenneth Stepter
AD1 order dated November 12, 2009, affirming judgment of conviction. Decision below: 67 A.D.3d 497, 887 N.Y.S.2d 844. Jones, J., granted leave May 19, 2010.
ISSUES PRESENTED: (1) Whether appellant’s sentence as a second felony offender is illegal as a matter of law because the prior North Carolina conviction is not “an offense for which a sentence to a term of imprisonment in excess of one year . . . was authorized,” as required by P.L. §70.06(1)(b)(i). (2) Whether the Appellate Division erred in holding that appellant’s challenge to this illegal sentence required preservation; the Appellate Division cited only People v. Samms, 95 N.Y.2d 52 (2000) – a case where the Court of Appeals reached the merits because the appellate record demonstrated, despite the lack of preservation, that the prior crime was not “a predicate felony conviction.” Here, too, the record permits appellate review – a proposition that the Appellate Division implicitly recognized by its alternative holding, on the merits, that the “out of state conviction qualified as a predicate felony conviction.” The Appellate Division thereby considered the issue as a “question of law,” which is reviewable by the Court of Appeals. C.P.L. §470.35(1). (3) Whether defense counsel was ineffective at sentencing for failing to challenge the allegation that appellant was a predicate felony based on a prior North Carolina conviction which, on its face, failed to meet the requirements of P.L. §70.06(1)(b)(i) because it was not a conviction for which a sentence in excess of one year was authorized. (4) Whether, on appellant’s conviction for criminal possession of a controlled substance in the second degree (P.L. § 220.18), his sentencing violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because P.L. §70.06 raised the permissible sentence range to a maximum of 14 years (P.L. § 70.71) without having a jury determine that appellant was a second felony offender. (Assigned counsel: Abby Everett & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Steven Scott
AD3 order dated November 5, 2009, affirming judgment of conviction. Decision below: 67 AD3d 1052, 889 NYS2d 279. Jones, J., granted leave May 19, 2010.
ISSUES PRESENTED: (1) Whether the court erred in sua sponte and summarily discharging a sworn juror during jury selection, after the juror advised the court that the People should use DNA evidence to support its rape prosecution. (2) Whether the court erred in denying counsel’s challenge for cause to a juror who reported that one of the prosecutors had represented her son 13-14 years earlier. (3) The court’s refusal to apply the interest of justice exception to the Rape Shield Law (C.P.L. §60.42[5]). (Assigned counsel: Paul J. Connolly, 2 Wedge Road, Delmar, NY 12207.)
People v. Carlos Ventura
AD2 order dated September 10, 2009, dismissing appeal. Lippman, Ch. J., granted leave May 21, 2010.
ISSUE PRESENTED: Whether, where defendant was involuntarily deported during the pendency of his appeal, which argued solely that the evidence of guilt was legally insufficient, the Appellate Division properly dismissed the appeal because defendant “was no longer available to obey the mandate of the court.” (Assigned counsel: Erin Collins & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Reynaldo Concepcion
AD2 order dated January 26, 2010, affirming judgment of conviction. Decision below: 69 AD3d 956, 893 NYS2d 283. Pigott, J., granted leave May 25, 2010.
ISSUE PRESENTED: Scope of Appellate Division’s review of suppression hearing order adverse to defendant. The suppression court ruled that defendant did not consent to the search of the vehicle, but that the evidence was admissible on the ground of inevitable discovery. The Appellate Division held that the doctrine of inevitable discovery did not apply, but that defendant had consented to the search. Since the consent issue was not decided adversely to the defendant by the suppression court, did the Appellate Division have the power, pursuant to C.P.L. §470.15(1), to reach the issue? (Assigned counsel: John Gemmill & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Raymond B. Grimm
AD3 order dated January 28, 2010, vacating judgment of conviction. Decision below: 69 AD3d 1231, 895 NYS2d 220. Pigott, J., granted leave to People May 26, 2010.
ISSUE PRESENTED: Whether the defendant’s plea was defective under People v. Catu (4 NY3d 242), where the court mentioned PRS at the plea, but not the specific term or permissible range. (Assigned counsel: Jan Perlin, P.O. Box 134, Oak Hill, NY 12460.)
People v. Alicia Lewie
AD3 order dated November 5, 2009, modifying the judgment of conviction. Decision below: 67 AD3d 1056, 889 NYS2d 265. Lippman, Ch. J., granted leave May 28, 2010.
ISSUES PRESENTED: (1) Whether, once defendant was assigned counsel in the Family Court proceeding generated by the abuse of the child-victim, she should not thereafter have been questioned without counsel on the criminal homicide charges. (2) The sufficiency of the evidence of second-degree manslaughter and reckless endangerment. (3) Juror misconduct during deliberations.
People v. Allen Albergotti
AD1 order dated April 1, 2010, modifying judgment of conviction. Decision below: 72 AD3d 401, 898 NYS2d 38. Pigott, J., granted leave June 10, 2010.
ISSUE PRESENTED: Whether the due process obligation of a sentencing court to assure itself that the sentence is based on reliable and accurate information, when a defendant asks for specific performance of the plea promise or objects to an enhanced sentence, is subject to the preservation requirement, i.e., whether the defendant must object on “due process” grounds and additionally protest that the court had made an insufficient inquiry. (Assigned counsel: Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Bruce Sweeper
AD1 order dated March 4, 2010, affirming judgment of conviction. Decision below: 71 AD3d 439,
897 NYS2d 41. Pigott, J., granted leave June 15, 2010. (SSM.)
ISSUES PRESENTED: (1) Under Batson, whether African-American females and other, similar, gender-race groups, deserve recognition as “cognizable groups.” (2) Whether the exercise of peremptory challenges against the only two African-American females constitutes a “prima facie” case of discrimination. (Assigned counsel: Susan H. Salomon & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Jose Fernandez
AD1 order dated March 24, 2009, affirming judgment of conviction. Decision below: 60 AD3d 549, 875 NYS2d 472. Read, J., granted leave June 15, 2010.
ISSUES PRESENTED: (1) Whether the police officer’s observation of a clip attached to the outside of appellant’s pocket and the protruding top of a knife justified a stop and frisk. (2) Whether P.L. §265.01 violates due process because it contains no mens rea requirement that individuals must know that the knife they are carrying is a “gravity knife,” the ban is so broad that it criminalizes the innocent possession of household objects; and is so vague that it enables biased police harassment or harsh and discriminatory enforcement. (Assigned counsel: Barbara Zolot & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Jose Rivera
AD1 order dated April 27, 2010, affirming judgment of conviction, with two dissents. Decision below: 72 AD3d 576, 900 NYS2d 31. Acosta, J. (AD dissenter), granted leave June 22, 2010. (SSM.)
ISSUES PRESENTED: (1) Whether the trial court’s refusal to submit 4th degree weapon possession as a lesser included offense of 2nd degree possession constituted reversible error where, contrary to the court’s determination, a reasonable view supported the finding that appellant – who claimed justification with respect to the homicide and was acquitted of it – possessed the weapon (a loaded gun) only during the homicide and otherwise lacked the intent to use it unlawfully. (2) Whether, where appellant presented a justification defense, and was acquitted of the homicide charges, but the jury convicted him of 2nd degree weapon possession (of a gun), requiring unlawful intent, as to which the court did not mention justification, trial counsel was ineffective for not requesting the explicit CJI instruction that, based on People v. Pons, 68 N.Y.2d 264 (1986), charges that the intent to use a weapon against another justifiably is not the intent to use it unlawfully. (Assigned counsel: Susan H. Salomon & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Roy Martin
AD2 order dated March 16, 2010, affirming judgment of conviction. Decision below: 71 AD3d 917, 895 NYS2d 874. Graffeo, J., granted leave June 15, 2010.
ISSUE PRESENTED: Whether the exclusion of defendant’s father from the courtroom during voir dire, due to limited seating in the courtroom, violated the defendant’s right to a public trial under Presley v. Georgia, 130 S. Ct. 721 (2010). (Assigned counsel: Kate Levine & Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Raymond Clyde
AD4 orders dated April 30, 2010, affirming trial court’s setting aside of verdict as to attempted rape count and reversing and ordering a new trial as to the remaining counts based on trial error. Decision below: 72 AD3d 1538, 899 NYS2d 757. (See also 72 A.D.3d 1543, 898 N.Y.S.2d 906.) Scudder, J. (AD dissenter), granted leave to People on June 3, 2010.
ISSUES PRESENTED: (1) Whether the concededly erroneous and prejudicial shackling of the defendant during trial is subject to harmless error analysis in light of the strength of the People’s case, and in light of the fact that the jury already knew that defendant was in prison at the time of the crime. (2) The sufficiency of the evidence that the defendant intended to rape his assault victim.
People v. Robert Alonso & Emilia Alonso
AD2 order dated February 16, 2010, dismissing Attorney General’s appeal from dismissal of indictments with prejudice. Decision below: 70 AD3d 957, 894 NYS2d 757. Smith, J., granted leave to AG June 10, 2010.
ISSUE PRESENTED: Whether the People have the right to appeal, pursuant to CPL § 450.20, the court’s mid-trial dismissal of the indictments pursuant to CPL § 240.70(1) as a sanction for a Brady violation.
People v. Maurice Benston
AD1 order dated February 16, 2010, affirming judgment of conviction. Decision below: 70 AD3d 479, 895 NYS2d 370. Lippman, Ch. J., granted leave June 9, 2010.
ISSUES PRESENTED: (1) Whether the trial court erred, after redacting portions of the complainant’s hospital records, in leaving in references to “domestic violence” as part of the “diagnosis”, under the medical records exception to the rule against hearsay. (2) Whether the court unduly limited defense counsel’s cross-examination, as repetitive (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Ernest Brannon
AD1 order dated March 17, 2009, affirming judgment of conviction. Decision below: 60 AD3d 498, 875 NYS2d 62. Read, J., granted leave June 15, 2010.
ISSUE PRESENTED: Whether the police lacked reasonable suspicion to stop and frisk the defendant, based upon the outline of a large knife in defendant’s pocket. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, NYC 10038.)
People v. Pedro Melendez
AD1 order dated March 18, 2010, affirming judgment of conviction. Decision below: 71 AD3d 530, 896 NYS2d 354. Pigott, J., granted leave June 10, 2010.
ISSUE PRESENTED: The court’s refusal to charge that defendant’s alibi defense had to be disproven beyond a reasonable doubt. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
