AD1 order dated February 5, 2009, affirming judgment of conviction, after PRS resentence. Decision below: 871 N.Y.S.2d 908. Read, J., granted leave April 3, 2009.
ISSUE PRESENTED: Whether a trial court is authorized to correct a prior failure to impose PRS by resentencing a defendant to PRS after his originally-imposed determinate sentence has been fully served. (Guilty plea case; defendant advised at the plea about PRS.) (Assigned counsel: Mark W. Zeno & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Efrain Hernandez
AD1 order dated February 5, 2009, affirming judgment of conviction, after PRS resentence. Decision below: 59 A.D.3d 180, 872 N.Y.S.2d 455. Lippman, Ch. J., granted leave April 16, 2009.
ISSUE PRESENTED: Whether a trial court is authorized to correct a prior failure to impose PRS by resentencing a defendant to PRS after his originally-imposed determinate sentence has been fully served. (Guilty plea case; defendant not advised at the plea about PRS.) (Assigned counsel: Barbara Zolot & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Craig Lewis
AD1 order dated March 5, 2009, affirming judgment of conviction, after PRS resentence. Decision below: 873 N.Y.S.2d 489. Graffeo, J., granted leave April 15, 2009.
ISSUE PRESENTED: Whether a trial court is authorized to correct a prior failure to impose PRS by resentencing a defendant to PRS after his originally-imposed determinate sentence has been fully served. (Trial case.) (Assigned counsel: Carl S. Kaplan & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Michael Figueroa
AD1 order dated February 21, 2008, affirming judgment of conviction. Decision below: 48 N.Y.S.3d 324, 851 N.Y.S.2d 521. Jones, J., granted leave April 2, 2009.
ISSUE PRESENTED: 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 defense counsel. (See also case of co-defendant Mark Ochoa) (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Everton D. Simms
AD2 order dated September 2, 2008, reversing judgment of conviction and ordering a new trial. Decision below: 54 A.D.3d 691, 863 N.Y.S.2d 250. Smith, J., granted leave to People March 9, 2009.
ISSUE PRESENTED: Whether the trial court erred in accepting the verdict once, during polling, a juror reported she had been “pressured” by the other jurors to vote guilty, and further explained outside the presence of the other jurors that they had browbeaten her into voting guilty. (Assigned counsel: Warren Landau and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. George Konstantinides
AD2 order dated October 14, 2008, affirming judgment of conviction. Decision below: 55 A.D.3d 752, 864 N.Y.S.2d 775. Smith, J., granted leave February 27, 2009.
ISSUES PRESENTED: (1) Whether defendant was deprived of the effective assistance of counsel based upon a conflict of interest. (2) Whether defendant was entitled to a hearing pursuant to C.P.L. 400.21(5) prior to being adjudicated a predicate felony offender. (Assigned counsel: DeNice Powell and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.)
People v. Phillip Riback
AD3 order dated December 24, 2008, modifying a judgment of conviction. Decision below: 57 A.D.3d 1209, 870 N.Y.S.2d 517. Malone, J. (AD dissenter), granted leave March 2, 2009.
ISSUE PRESENTED: Whether the prosecutor deprived defendant charged with child sexual abuse of a fair trial by opining that he was a “pedophile” who had abused many more children than the victims in this case.
People v. William Hilts
AD3 order dated December 6, 2007, affirming judgment of conviction. Decision below: 46 A.D.3d 947, 846 N.Y.S.2d 750. Jones, J., granted leave May 12, 2008.
ISSUES PRESENTED: (1) Whether the People exercised due diligence in locating the confidential informant for the retrial (C.P.L. 670.10). (2) Whether the trial court’s instructions to standby counsel, that she was to assist defendant only upon his request and not give unsolicited advice, were improper. (Assigned counsel: David Lazer, Melville Law Center, 225 Old Country Road, Melville, NY 11742).
People v. Collier Gillyard
AD1 order dated October 2, 2008, affirming judgment of conviction. Decision below: 55 A.D.3d 310, 866 N.Y.S.2d 9. Smith, J., granted leave February 6, 2009.
ISSUE PRESENTED: Where the defendant was on trial for two incidents of criminal impersonation of a police officer, whether the court properly allowed into evidence the recovery of a “universal” handcuff key from appellant’s person during his pretrial incarceration well after the second incident. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v. Danny Colon
People v. Anthony Ortiz
AD1 order and decision dated October 28, 2008, affirming judgments of conviction. Decision below: 55 A.D.3d 444, 865 N.Y.S.2d 601. Pigott, J., granted leave March 20, 2009.
ISSUES PRESENTED: Whether Brady violations (non disclosure of a benefit given to a key witness; and interviews with two witnesses who possessed exculpatory information) were harmless error. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Raheem Mayo
AD1 order dated February 19, 2009, reversing order dismissing two counts of an indictment. Decision below: 59 A.D.3d 250, 873 N.Y.S.2d 584. Acosta, J. (AD dissenter), granted leave April 14, 2009. (SSM.)
ISSUE PRESENTED: The sufficiency of the grand jury evidence that defendant constructively possessed drugs hidden in an apartment not belonging to him. (Assigned counsel: Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11th Floor, NYC 10006.)
People v. Daivery Taylor
AD2 order dated October 17, 2008, reversing a judgment of conviction and dismissing an indictment. Decision below: 55 A.D.3d 640, 865 N.Y.S.2d 266. Pigott, J., granted leave to
People February 26, 2009.
ISSUE PRESENTED: The sufficiency of the evidence of offering a false instrument for filing; whether it was necessary to prove that a state agency (OCA) “check[ed], verif[ied], or rel[ied] upon” allegedly false information contained in retainer agreements.
People v. Gregory Allen
AD2 order dated February 15, 2008, affirming judgment of conviction. Decision below: 53 A.D.3d 582, 861 N.Y.S.2d 775. Graffeo, J., granted leave March 23, 2009.
ISSUE PRESENTED: Whether the trial court erred in barring the defense from calling an expert on eyewitness identification testimony. The Second Department essentially limited the LeGrand holding (8 N.Y.3d 449) to the facts of that case. (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
People v. Miguel Alemany
AD1 order dated November 16, 2008, modifying a SORA risk-level adjudication down to a level one sex offender. Decision below: 56 A.D.3d 251, 867 N.Y.S.2d 61. Court of Appeals granted leave to People March 26, 2009.
ISSUE PRESENTED: Whether defendant, who was paroled and advised to report to a homeless shelter, should have been assessed 10 points under risk factor 15 (inappropriate living or employment situation). (Assigned counsel: Steven Banks, Criminal Appeals Bureau, Legal Aid Society, 199 Water Street, N.Y., N.Y. 10038.)
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, N.Y., N.Y. 10038.)
