Court of Appeals - 2007 Term

The following is a list of cases decided by the Court of Appeals in 2007 of interest to the Association

Ganesh Kisoon (People's Appeal)
Leon Martin III (People's Appeal)
Queens Co ADA Donna Aldea (Kisoon)
Erie Co ADA Donna A. Milling (Martin)
Affirmed, 2/13/07
When deliberating jury sends a note to the court "the trial court's core responsibility ... is both to give meaningful notice to counsel of the specific content of the jurors' request--in order to ensure counsel's opportunity to frame intelligent suggestions for the fairest and least prejudicial response--and to provide a meaningful response to the jury." A court which does not do so, by failing to disclose or "significantly paparhras[ing]" the note, commits "a mode of proceedings error" which is not subject to the requirement of preservation.

Jimmy Tzitzikalakis (People's Appeal)
NY Co ADA Paula-Rose Stark
Affirmed, 2/15/07
In a hearing to determine the amount of restitution which may be ordered under CPL 60.27, "the People bear the burden of proving the victim's out-of-pocket loss -- the amount necessary to make the victim whose -- by a preponderance of the evidence ... To meet that burden, the People must show both components of the restitution equation, the amount taken minus the benefit conferred"

Terrien Williams
Erie Co ADA Susan C. Ministero
Affirmed, 2/15/07
Objections to comments by Assistant District Attorney cross-examining defendant's alibi witnesses, and statements made in the People's summation were inadequate to preserve issue but defendant was not deprived of adequate assistance given counsel's "zealous if not consistent advocacy"

Joseph Grajales
Kings Co ADA Keith Dolan
Affirmed, 2/20/07
In court identification of defendant was not subject to preclusion where street identification was noticed under CPL 710.30 but subsequent identifiation from a photo array was not. Although "the customary and better practice is to give defendant notice of all prior police-arranged identifications made by a witness from whom they intend to elicit in-court identification testimony....CPL 710.30(1)(b)...only mandates preclusion in the absence of timely notice 'specifying' the pretrial identification evidence 'intended to be offered' at trial. Because evidence of a witness's pretrial photographic identification of an accused is not admissible in the prosecution's case in chief ... the People could not intend to offer it at trial, and therefore the CPL 710.30(1)(b) notice in this case was adequate."

Edward Jackson
Bronx Co ADA Dimitri Maisonet
Affirmed, 2/22/07
If testimony of baby sitter that defendant, while in the midst of a sexual assault of her about which defendant was not charged, said that he would have attacked 14 year old complainant was improperly received in evidence at trial on charges that he subsequently did rape the 14 year old, the error was harmless in that "there was no significant probability the jury would have acquitted defendant if not for the error."

Cornell Louree
Kings Co ADA Solomon Neubort
Reversed, 6/5/07
Defendant, who was not advised that his sentence would include post release supervision is entitled to have his plea vacated under People v. Catu, 4 N.Y.3d 242 (2005) even though he did not object when the court sentenced him with the post release supervision included.

Magnus Dallas
Onondaga Co CADA James Maxwell
Affirmed, 3/22/07
In Syracuse City Court prosecution of defendant of criminal possession of marijuana in the fourth degree, finding that entry into defendant's apartment based on emergency doctrine under People v Mitchell, 39 NY2d 173, 177-178 (1976) presented a "mixed question of law and fact" which the Court of Appeals could not review where there was record support for the finding

William Havrish
Schoharie Co ADA Thomas F. Garner
Reversed, 4/3/07
The required surrender of an unlicensed handgun pursuant to an order of protection may not be used against the defendant to support a charge for the possession of the weapon since to do so would violate defendant’s privilege against self-incrimination.

Racky Ramchair
Queens Co ADA Jennifer Hagan
Affirmed, 3/29/07
Defendant's appellate counsel was not ineffective in not arguing that the trial court should have granted a mistrial when it refused to permit defendant's trial counsel to testify to explain his failure to object to the composition of a lineup, because the issue she did raise, that that the court should have allowed defense counsel to testify, was essentially the same one

Jonathan Dean
Washington Co ADA Katherine G. Henley
Modified, 4/3/07
Defendant could not be sentenced to consecutive terms on his guilty plea to three counts of possessing a sexual performance by a child since the indictment "did not include the date and time of each of the allegedly separate acts of downloading the digital images ... [nor were] such facts [part of the] defendant's plea allocution"

Nico LeGrand
NY Co ADA Meredith Boylan
Reversed, 3/27/07
Although Supreme Court properly held a Frye hearing to determine whether defendant could present expert testimony as to the reliability of eyewitness identification and found that the proffered expert's testimony was not generally accepted within the relevant scientific community, "where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror" and since "the defense expert’s testimony contained sufficient evidence to confirm that the principles upon which the expert based his conclusions are generally accepted by social scientists and psychologists working in the field [the] defendant met his burden under Frye."

Orlando Melendez
Monroe Co ADA Arthur G. Weinstein
Affirmed, 3/27/07
Defendant's complaints that his constitutional rights were violated when, during the testimony of a non English-speaking witness, "the trial court required defendant's court-appointed interpreter to stand at the back of the courtroom and interpret for the entire court, rather than solely for defendant" were not preserved.

John Rowland
Saratoga Co Special District Attorney Nicholas E. Tishler
Reversed, 3/29/07
Defendant is entitled to have Alford plea (400 U.S. 25 [1970]) to criminally negligent homicide and a related weapons offense vacated because he was promised that his sentences would run concurrently with those imposed on another conviction on a stolen property charge which was subsequently reversed on appeal.

Davor Gomcin (People's Appeal)
Queens Co DEADA John M. Castellano
Affirmed, 3/27/07
Appellate Division's finding that defendant's statement to undercover asking if she wanted "to take a hit of cocaine" was insufficient to establish probable cause to arrest him as he left social club six hours later presented "a mixed question of law and fact" and thus, while the Appellate Division and hearing court "might have found that the police were reasonable in viewing defendant’s statement differently, as implying that he possessed cocaine and qualifying as an offer to sell a controlled substance, their determination that this was not the case was reasonable and therefore enjoys record support" and not further subject to review byt he Court of Appeals.

Juan Castillo (People's Appeal)
NY Co ADA Michael S. Morgan
Affirmed, 5/3/07
Since first-degree robbery under Penal Law § 160.15(2)is not a lesser included offense of Penal Law § 160.15(4)because each requires proof of an element not present in the other crime, a plea to the crime under subdivision 2 on an indictment which only charges the subdivision 4 offense is jurisdictionally defective even if the facts would have supported an indictment for the uncharged offense.

Alfonso Dukes
Schenectady Co CADA Alfred D. Chapleau
Reversed, 5/1/07
Sworn juror who heard complainant's testimony and then advised trial court that "she and complainant may have worked in the same nursing center and, although she was unsure, she had some recollection that [complainant] was fired for an incident involving a gun...[but that] she was '100 percent sure' she could remain impartial and would not allow this information to influence her decision" was improperly discharged as being grossly unqualified under CPL 270.35 (1).

Arthur Bryant
NY Co ADA Victoria E. Phillips
Reversed, May 3, 2007
In murder case, defendant was entitled to a hearing on Mapp/Dunaway branch of his omnibus motion since he claimed to have been arrested six hours before the VDF said he was and was not advised, despite his request, as to the basis for his arrest.

Jeffrey Kozlow (People's Appeal)
Westchester Co ADA Robert K. Sauer
Reversed, 4/26/07
Internet communications with an undercover police officer who defendant believes to be a minor "depict" sexual conduct within the meaning of Penal Law § 235.22 (1)even where no visual, "sexual images" are communicated

James W. Newton, Jr.
Broome Co ADA Joann R. Parry
Affirmed, 5/1/07
Defendant was not entitled to an intoxication charge as to third- degree sodomy (now "criminal sexual act" in the third degree) since that crime does not require a showing of a subjective mental state, but requires proof that the victim expessed an unwillingness to participate in the act and that a neutral observer would have understood that the victim was not consenting.

Alfonso Washington
Bronx Co
Affirmed, 6/7/07
Evidence of murder conspiracy legally sufficient where defendant and his coconspirators entered into an agreement to kill defendant's rival for a specific price, with the killing to take place after certain contingencies had occurred which defendant expected would take place within a short time, and the fact that defendant insisted the killing be deferred until after their occurrence did nit negate the existence of a conspiracy or establish the defense of renunciation.

Enrigue Hernandez
Kings Co [NYC Corp Counsel]
lv granted, 12/8/06 (Read, J)
AD opinion, 32 A.D.3d 967
Excessive sentence. According to jurisdictional statement filed in Court of Appeals issue is whether appellate review of excessiveness of violation of probation sentence is barred by defendant's waiver of the right to appeal taken at the original guilty plea to the charge underlying the probationary sentence

Charles Stewart
Cortland Co
sua sponte examination whether there is any jurisdictional predicate for an appeal as of right
AD order, -- A.D.3d -- [Nov 30, 2006]
Can defendant whose conviction for sodomy and related crimes was reversed because the trial court did not submit venue issue to the jury, be retried?

Stephen Sedlock
Broome Co ADA Peter N. DeLucia
Reversed, 6/5/07
Information charging defendant with a single incident of forcible touching during a period from "December 2002 through June 2003" but based on "one in a series of incidents that went on for years" did not "delineate a sufficiently narrow time frame for the alleged act [considering that]the complainant here was 16 or 17 years old at the time of the forcible touching, and, by all accounts, intelligent. Exact dates for incidents that occurred years before were provided, yet the People failed to specify a more precise time frame for the conduct at issue, or to demonstrate that they were unable to do so." See also People v Keindl, 68 NY2d 410 (1986).

Juan Nieves-Andino
Bronx Co ADA Allen H. Saperstein
Affirmed, 6/28/07
Murder victim's declaration to the first officer on the scene that he had an argument with defendant (whom he identified by his nickname) and that defendant shot him three times was not "testimonial" under Crawford, 541 US 36 [2004] and hence admissible, since "the primary purpose" of the police questioning was "to meet an ongoing emergency" even though the assailant had, by then, left the scene

Paul Person
NY Co ADA Sheryl Feldman
Affirmed, 5/8/07
Defendant's argument that trial court improperly refused to allow videotaped statements of the two accomplice witnesses contradicting testimony at trial as impeaching their credibility even though each admitted making the prior was unpreserved since the basis upon which defendant wought to have the videotapes received was not to impeach the witnesses but as affirmative proof of the facts recited in the prior statements.

James Chiddick
Bronx Co ADA Leilani Rodriguez
Affirmed, 5/1/07
Evidence of physical injury was established by legally sufficient evidence supporting the conclusion that the victim's bite wound caused "moderate" pain ("in between 'a little' and 'a lot'") over a period of nearly a week

William E. Miller
Monroe Co ADA Stephen X. O'Brien
Affirmed, 4/26/07
Defendant's argument that he did not receive due process in resentencing hearing conducted after he failed to complete drug treatment program was neither preserved nor a "mode of proceedings" error.

Abel Rosas (People's Appeal)
Queens Co ADA Sharon Y. Brodt
Affirmed, 5/8/07
Penal Law §§ 70.25(1) and (2) require that defendant's sentences of life imprisonment without parole be served concurrently following his convictions for murder in the first degree after he broke into the victims' home and fired successive shots at his victims, husband and wife, as they lay sleeping in their bed since "consecutive sentences cannot be imposed where the actus reus is the same for both offenses."

Scott Parilla
Bronx Co ADA Yael V. Levy
Affirmed, 6/12/07
By pleading guilty, knowingly and voluntarily, defendant waived his argument that rape indictment was beyond the statute of limitations and he did not receive ineffectve assistance of counsel because rather than make a baseless argument (the statute was tolled pursuant to CPL 30.10(4)(a)(ii) because defendant's identity, and therefore his whereabouts, was unknown and could not be ascertained by the exercise of reasonable diligence) "counsel secured a favorable plea agreement that produced a considerably lower sentence than the maximum prison term defendant faced."

Larry Bratton
Tompkins Co ADA Sara Kim Keller
Reversed, 6/12/07
Since parole officers arrested defendant for violating a condition of his parole, by refusing to take an unannounced drug test but not for an offense within the meaning of Penal Law section 10.00(1), defendant's arrest was unauthorized under the provisions of Executive Law § 259-i(3)(a)(i) and 9 NYCRR 8004.2 and he could not be convicted for resisting arrest.

Vincent Litto (People's Appeal)
Kings Co ADA Ann Bordley
Affirmed, 6/27/07
The driving while intoxicated provision of the operating under the influence statute applies only to intoxication caused by alcohol.

Duane Charache
Genesee Co ADA William G. Zickl
Affirmed, 6/27/07
Defendant failed to preserve his claim that he was denied due process by the failure of the prosecutor to provide timely notice under Correction Law § 168-n (3) that he would be seeking a risk level determination under SORA which differed from the recommendation of the Board of Examiners of Sex Offenders.

Keith Antwine
Bronx Co ADA Frances Y. Wang
Affirmed, 6/28/07
Defendant who broke free of arresting officer by physically removing restraints to free himself from the control imposed and running away" committed the crime of escape in the second degree under Penal Law § 205.10 (2) even though he did not get very far. " Had defendant pushed off the handcuff but remained within the officer's control, he may have been found guilty of an attempted escape. [At] the point when defendant was no longer under the control of the officer and had removed himself from her custody without authorization -- when she had to give chase, placing herself and the public at risk," the completed crime was committed.

Frank LaPetina
Queens Co DEADA Linda Cantoni
Affirmed, 7/2/07
By not specifically requesting a "choice of evils" charge when he asked for a "self defense" instruction, defendant failed to preserve his claim that he was entitled to a justification charge where he admitted that he entered victim's home without permission, but contended that he had done so only because he believed, albeit erroneously, that a person inside was hurt or in danger.

Cynthia Long
NY Co ADA Tracy L. Conn
Affirmed, SSM, 6/12/07
Defendant's motion for a Mapp/Dunaway hearing was properly denied summarily where defendant "had ample access to relevant information regarding the factual predicate for her arrest, including access to the People's 'write-up' of her conduct which the court (Berkman, J) read to her and her counsel at arraignment [but] failed to specifically challenge the identified informant's basis of knowledge in her suppression motion."

Todd North
Argument,6/5/07
Deputy Solicitor General Andrea Oser
Affirmed, 7/2/07
Reisdent of Jamestown, NY, convicted of federal felonies under 18 USC §§ 2252A(a)(5)(B) and 2256(8)(A) for using a computer to download images of children between the ages of 7 and 17 engaged in sexual acts, is required to register as a sex offender under SORA, Correction Law § 168-a(2)(d)(iii).

Joshua Liner
NY Co ADA Gary S. Snitow
Affirmed, 7/2/07
Since defendant did no object to the People's offer of “trespass notices” executed by defendant when he was caught shoplifting at Duane Reade stores in prior years, under which defendant acknowledged that his “privilege to enter all Duane Reade stores is revoked [and] told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State Penal Law and any other appropriate criminal charges" as being received in evidence in violation of Crawford, 541 US 36 [2004], the issue was not preserved for the Court's review.

Manuel Rivera, a/k/a Angel Rivera
NY Co ADA Frank Glaser
Affirmed,SSM 9/11/07
Trial court's denial of challenge for cause to prospective juror who said "I will certainly try to do that" when asked whether he consider each charge separately was not erroneous as a matter of law, and constitutionality of persistent felony offender was not preserved for review

John Taylor
Queens Co EADA Gary Fidel, DEADA John Castellano, ADA Donna Aldea
Sentence vacated, 10/23/07
Statute under which death penalty was imposed is facially unconstitutional

Rasool Salaam
Schenectady Co CADA Alfred D. Chapleau
Reversed,SSM 9/12/07
Defendant's plea vacated since he was not advised that his sentence would include post release supervision notwithstanding his failure to first move before the trial court

Andre Collier
Rensselaer County Co ADA Anne L. Von Fricken Coonrad
Reversed,SSM 9/12/07
Defendant's plea vacated since he was not advised that his sentence would include post release supervision despite his waiver of the right to appeal and notwithstanding his failure to first move before the trial court

John Mingo
Assistant NYC Corp Counsel Fay Ng
Affirmed,SSM 10/16/07
Though leave to appeal was granted by Judge Jones, Court holds that since AD affirmed without opinion on what the AD described as defendant's appeal "as limited by his motion, from an amended sentence of the Supreme Court, Kings County (Marrus, J.), imposed January 15, 2004, on the ground that the amended sentence is excessive," that Court of Appeals could not review the affirmance since the AD may have done so "on the basis that the sentence imposed was not excessive..."

Anthony Hill
New York County Co ADA David M. Cohn
Reversed, 11/15/07
Defendant is entitled to have his plea vacated since he was not advised prior to pleading guilty that his sentence would include post release supervision

Anthony Porter
Niagara County Co ADA Thomas H. Brandt
Reversed, 11/15/07
Despite Appellate Division's factual finding to the contrary based on defendant's statement to police that "I think I need an attorney" Court finds that defendant invoked his right to counsel because "there is no support in the record for the determination that defendant's request for counsel was equivocal."

Brian Olson
Nassau County Co ADA Lauren Del Giorno
Affirmed, 11/15/07
AD applied correct standard in evaluating weight of the evidence claim and that in a bench trial, the court, having found "that defendant committed an assault, properly considered whether defendant's actions were justified. It concluded they were not and that the People 'shouldered their burden of disproving,beyond a reasonable doubt, the defense of . . . justification.'"

Delores Newton Harris
New York City Assistant Corporation Counsel Julie Steiner
Affirmed, 11/19/07
"due process requires that an innocent co-owner be given an opportunity to demonstrate that his or her present possessory interest in a seized vehicle outweighs [a governmental] interest in continuing impoundment" of a motor vehicle held during the pendency of a civil forfeiture proceeding

Matthew Jones
NY County Co ADA Paula-Rose Stark
Reversed, 11/20/07
Information which charged disorderly conduct against defendant who, as the Court described it "stood in the middle of a sidewalk at 2:01 a.m." and, according to the Information, caused "numerous pedestrians in the area ... to [have to]walk around" him was jurisdictionally defective since "[t]he conduct sought to be deterred under the statute is considerably more serious than the apparently innocent conduct of defendant here...Something more than a mere inconvenience of pedestrians is required to support the charge (id. at 332). Otherwise, any person who happens to stop on a sidewalk -- whether to greet another, to seek directions or simply to regain one's bearings -- would be subject to prosecution under this statute" (internal quotations and citations omitted)

Temel Greene
Bronx County Co ADA Peter D. Coddington
Affirmed, 11/20/07
Violation of a statute [such as the physician-patient privilege at issue in this case] does not, without more, justify suppressing the evidence to which that violation leads" as opposed to violations of constitutional provisions

James Zimmerman (People's Appeal)
Attorney General by Deputy Solicitor General Roseann B. MacKechnie
Affirmed, 12/13/07
NY County does not have geographical jurisdiction over perjury during office hearing under Donnelly Act to investigate potential antitrust violations by department stores because, "awareness of a New York City-centered investigation is not evidence that defendant acted with knowledge that his conduct would impact New York County's governmental and judicial processes, nor can such an inference reasonably be drawn"

Winston Gajadhar
NY County Co ADA Hilary Hassler
Affirmed, 12/18/07
Defendant waived his state constitutional and statutory right to a trial of an indictment by a jury of 12, by not moving for a mistrial and requesting that the remaining 11 jurors return a verdict. A 1938 amendment to the 1846 Constititution, and the current Constitution, enacted in 1939, overruled the bar against an 11 person jury as decided by Cancemi v. People, 18 N.Y. 128 (1858).

William Cuadrado
NY County Co ADA Michael S. Morgan
Affirmed, 12/18/07
Defendant may not argue, in support of a motion to vacate his conviction under CPL section 440.10 that his plea to an SCI should be vacated because the SCI was improper since he failed to challenge the plea during his direct appeal. "Whether or not a defect is properly described by the adjectives 'fundamental' and 'jurisdictional,' it is within the power of the Legislature to make reasonable rules governing when those defects may be complained of. As long as those rules give a defendant a fair opportunity to vindicate his rights, they should be enforced."

Khalil Danielson
Alexander Pasley
Bronx County Co ADA T. Charles Won (Danielson)
NY County Co ADA Vincent Rivellese(Pasley)
Reversed Pasley and affirmed Danielson, 12/13/07
Even where a sufficiency claimed has been inadequately preserved, the Appellate Division must "weigh the conflicting testimony and conflicting inferences in light of the elements as charged at trial" in the exercise of its authority to review the weight of the evidence.

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