Court of Appeals - Pending and Recent Cases

2009 Term

NOTE: The Court is now televising its oral arguments "live" (meaning, in real time) on its web site

Michael J. Brown
Queens Co. ADA William Branigan
Order Affirmed, 11/19/09

Anthony Gill (Article 78 against DOCS)
Solicitor General Barbara D. Underwood
Reversed, 2/12/09
Penal Law § 70.25(2-a) requires a sentence imposed on a repeat felon runs consecutively to any prior sentence as a matter of law and it is not necessary for the court specifically to so state that it does.

Juan Taveras
NY Co ADA Sheryl Feldman
Affirmed, 2/11/09
Penal Law § 70.25(2) does not require a sentence imposed for criminal sexual act in the third degree to run concurrently with those imposed for falsifying business records where defendant made false entries in records of the summer Youth Employment Program in the school where he was principal to conceal his sex crimes since the portion of the falsifying business records statute which elevates the second-degree misdemeanor to a felony is "an enhanced intent requirement -- 'an intent to commit another crime or to aid or conceal the commission thereof' -- not any additional actus reus element" and that the actus reus of the two offenses to which defendant pled guilty are otherwise different as well.

Fritz Elysee
Kings Co ADA Diane R. Eisner
Affirmed, 2/17/09
Defendant is not entitled to suppression of vials of blood taken from him at hospital after he drove through a red light and hit another vehicle killing its occupants, on the ground that the search warrant issued violated the patient-physician privilege, CPLR 4504.

Anthony Romeo (People's Appeal)
Suffolk Co ADA Michael Blakey
Affirmed, 2/11/09
Defendant entitled to dismissal of murder indictment for violation of constitutional right to a speedy trial after People consented to defendant's extradition from Massachusetts to New Brunswick to stand trial for the murder of a constable and did not seek his return until the U.S.-Canadian extradition treaty was amended to permit the temporary surrender of a Canadian inmate to stand trial in the United States.

Michelle Rouse
Bronx Co ADA Jennifer Marinaccio
Reversed, 2/11/09
Defendant entitled to dismissal of indictment under 30.30 despite her request that she not be represented by the same attorney who represented her husband and co-defendant since, in granting her request, the court immediately appointed new counsel, rendering inapplicable the 30.30 exception for a "period during which the defendant is without counsel through no fault of the court."

Judy Knox
Eliezer Cintron
Francis Jackson
NY Co ADA Dana Poole (Knox), Bronx Co ADA Noah J. Chamoy (Cintron, Jackson)
Affirmed, 2/17/09
Statutory requirement that defendants register and report as "sex offenders" does not violate constitutional rights to due process and equal protection when defendant is convicted of non-parental kidnapping and unlawful imprisonment of a minor even though no proof of sexual misconduct or motive is required for conviction.

Felix Soriano Guerrero
NY Co ADA Richard Nahas
Affirmed, 2/19/09
Defendant convicted of second degree murder under plea agreement which called for a 19 years to life sentence, also required to pay a mandatory surcharge of $150 and crime victim assistance fee of $2, even though court did not so specify when defendant was sentenced to promised prison term, beacuse unlike terms of post release supervision, the surcharge and crime victim assistance fee required by law are not "an additional punishment component" of a sentence.

Bajro Hoti
NY Co ADA Richard Nahas
Affirmed, SSM, 2/19/09
Since DNA databank fee, surcharge and crime victim assistance fees required by law are not "an additional punishment component" of a sentence, "the court's failure to pronounce the surcharge and fees at sentencing did not deprive the defendant of the opportunity to knowingly, voluntarily and intelligently choose among alternative courses of action" as under Catu, 4 NY3d 242, 245.

Christopher Harris
NY Co ADA Richard Nahas
Affirmed, SSM, 2/19/09
Guerrero controls.

Lorraine Washington
NY Co ADA Richard Nahas
Affirmed, SSM, 2/19/09
Guerrero controls.

Dwight Furet, a/k/a Ira Morsby
NY Co ADA Dana Poole
Affirmed, SSM, 2/19/09
Since DNA databank fee, surcharge and crime victim assistance fees required by law are not "an additional punishment component" of a sentence, they need be pronounced when sentence is imposed and determinations regarding reasonable suspicion and probable cause,are mixed questions of law and fact, and have support in the record and are thus beyond the Court's authority to review

George Quinones
Kings Co ADA Thomas S. Burka
Affirmed,2/24/09
Persistent felony offender sentencing still does not violate Apprendi, 530 U.S. 466 (2000) and other claims include mixed question of law and fact, not disturbed by the Appellate Division and supported by the record and hence beyond Court's review.

Chris Dorm
NY Co ADA Britta Gilmore
Affirmed, 2/12/09
During trial for assault in the second degree and unlawful imprisonment in the first degree, evidence of conflicts between defendant and the victim before and after the incident at issue, including evidence of defendant's aggressive and controlling behavior properly received in evidence since it "was not propensity evidence, but was probative of [defendant's] motive and intent to assault his victim; it provided necessary background information on the nature of the relationship and placed the charged conduct in context."

Andrew C. Small
Monroe Co ADA Wendy Evans Lehmann
Affirmed, 2/12/09
During trial for criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and unlawful possession of marihuana (§ 221.05) evidence of uncharged bad acts properly received to rebut defendant's agency defense since People v Ventimiglia, 52 NY2d 350, 362 (1981), simply requires that any hearing with respect to the admissibility should occur "either before trial or, at the latest, 'just before the witness testifies' " and "there is no requirement that such inquiry or ruling occur before trial commences."

Elvis Silvestry (People's Appeal)
Queens County ADA Edward D. Saslaw
Affirmed,SSM, 1/13/09
Mixed question raised by AD holding that "police officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime to justify a stop and frisk the defendant" is not subject to review in the Court of Appeals, even as to whether officer's belief that defendant was carrying a weapon was sufficient in the absence of evidence that defendant had or was about to commit a crime, where "record evidence supports the lower courts’ determination that the police lacked such suspicion"

Riley Williams
Kings Co ADA Maria Park
Affirmed, 2/11/09
Since the extent to which the prosecution may use prior convictions to impeach a defendant's testimony "is 'largely, if not completely' a discretionary determination for the trial courts and fact-reviewing intermediate appellate courts, People v Mattiace, 77 NY2d 269, 274 [1990], quoting People v Shields, 46 NY2d 764, 765 [1978]," there is "no legal reason" to reverse based on the so-called Sandoval compromise, even if "the trial court might have been more discriminating."

Tyrone Maye
Warren Co DA Kathleen B. Hogan
Reversed in part and otherwise affirmed, SSM, 2/12/09
Although officer saw baggie protruding from defendant's rectum, cocaine found in baggie after the officer removed it suppressed "[s]ince no exigent circumstances prevented the police from seeking prior judicial authorization for the search"

Rickey J. Ryan
Monroe Co ADA Wendy Evans Lehmann
Modified, and remitted for further proceedings, 2/12/09
Thirteen minute detention of defendant on less than probable cause by police investigating a carjacking was not "justified" absent a "special law enforcement need" but further proceedings required to determine if defendant's subsequent confession was "acquired by means sufficiently independent of his initial detention

William Kalin (People's Appeal)
Queens Co ADA William H. Branigan
Reversed, 3/31/09
Accusatory instrument where affiant based allegation on "assert[ion] that his 'experience as a police officer as well as [his] training in the identification and packaging of controlled substances and marijuana'" but did not attach any laboratory report establishing the nature of the substances recovered was not jurisdictionally defective.

Jose Fuentes
Kings Co ADA Anne C. Feigus
Argument, February 12, 2009
Affirmed, 4/7/09
Brady v. Maryland, 373 US 83 (1963) not violated when, during pretrial discovery, a single page of medical records concerning the defendant was withheld as "privileged" since the document was "not material" and even though non-disclosure was "ill advised."

Walkins Contreras
NY Co ADA Sheila O'Shea
Affirmed, 4/7/09
In rape and kidnapping case, defendant's right to be present at a "material stage" of his trial, and to effective assistance of counsel was not violated when he was barred from hearing outside presence of the jury into whether a note found in the victim's apartment at the time of the crime, involving graphic sexual matters which victim identified as having been written a month before the alleged crime and having nothing to do with defendant, her former husband, were either Rosario or Brady material even when trial court also prohibited counsel from disclosing the contents of the note to defendant.

Amber Bauman
Charles Edward Lafler (People's Appeal)
Monroe Co ADA Kelly Christine Wolford
Affirmed, 3/26/09
Counts of an indictment charging assault in the first degree for intentional assault and, in a separate count, depraved indifference assault were duplicitous in listing various acts which could constitute the crime over a period of from "on or about and between August 1, 2004 and April 7, 2005."

Richard Lowe
NY Co ADA Marc Krupnick
Affirmed, 3/26/09
"Determinations of probable cause, a mixed question of law and fact ... supported by the minutes of the in camera {Darden] hearing are beyond the Court's power to review.

Dwayne Middleton
Kings Co ADA Maria Park
Affirmed, SSM, 2/17/09
Constitutional arguments concerning SORA were unpreserved and record supports the determination that defendant is a level 3 sex offender.

Ronald Moye (People's Appeal)
NY Co ADA Mark Dwyer
Affirmed, 2/19/09
Prosecutor became an unsworn witness during summation by, as the AD held, "vouch[ing] for the witness with the most favorable testimony for the prosecution by reference to his own pretrial conduct . . . and credibility by virtue of his position in the District Attorney's office" and those "vouching remarks ... may not be excused as fair response to defense provocation [and] were prejudicial to defendant [while] trial court's limiting instruction failed to eliminate the prejudicial effect."

Kristerfer Passino
Washington Co ADA Michael R. Stern
Affirmed, SSM, 2/24/09
Issues defendant seeks to raise were not before County Court and hence not preserved

Scott C. Weaver
Albany Co ADA Christopher D. Horn
Reversed,5/12/09
The New York Constitution requires that a search warrant is required before law enforcement may attach a global positioning system (GPS) device on a motor vehicle even if it is parked on a public street.

Elvin G.
NYC Assistant Corporation Counsel Edward F.X. Hart
Reversed,5/7/09
Elvin G's motion to suppress a hunting knife confiscated by a middle school dean subject may only be decided after a hearing to determine whether "school dean ordered all of the students in the classroom to stand and empty their pockets in an attempt to discover a cell phone or electronic device that had disrupted the class [or if, instead,]the dean had asked the students to put their bookbags on their desks and Elvin had voluntarily removed a knife from his pocket" which was then in plain view.

Jonathan Mattocks
NY Co ADA Gina Mignola
Affirmed, 4/30/09
Bending a crease into the magnetic strip of a MetroCard, making it unreadable to turnstile scanners, so that the MTA computer system, programmed to give the card user the benefit of the doubt one time, grants entry, constitutes criminal possession of a forged instrument in the second degree (Penal Law § 170.25) as the alteration of a "written instrument" and the fact that another statute provides for a misdemeanor for the same conduct does not prevent prosecution for the felony under, among other cases, People v. Walsh, 67 NY2d 747, 749 (1986).

Julio Borrell (People's appeal)
Queens Co ADA Edward D. Saslaw
Reversed, 5/6/09
Defendant received effective assistance of appellate counsel even his attorney failed to argue that his sentence for a robbery while armed with a deadly weapon must run concurrently with that for causing serious physical injury to a non-participant while fleeing from the crime since that "argument [was] by no means so 'clear-cut' that it 'should have been apparent to any reasonable appellate counsel' " under People v Turner, 5 NY3d 476, 483 [2005].

Paul Boyd (People's Appeal)
NY Co ADA David M. Cohn
Remitted to Sup Ct for further argument, 5/7/09
Defendant entitled to have his plea vacated when trial court told him only that "there is postrelease supervision that's mandatory," but did not explain that the period of postrelease supervision could range from 2½ to 5 years, at the court's discretion, nor did it say what period of supervision it would impose but Penal Law section 70.85 may apply and, if so, and the People consent, he could be resentenced as promised in which case his plea need not be vacated

Donald France
NY County ADA Susan Axelrod
Affirmed,SSM, 4/2/09
Defendant not entitled to hearing on suppression motion since "[d]espite having sufficient information from the felony complaint and the voluntary disclosure form concerning the factual predicate for his arrest, defendant failed to dispute that the victim told the police that he had been robbed by defendant, that the victim identified him to the police and that defendant admitted possessing a pawnshop receipt for the stolen goods."

Joseph Goldstein
Sullivan Co ADA Bonnie Mitzner
Affirmed, 4/30/09
Trial court was not required to permit defendant to withdraw his guilty plea when, prior to being sentenced, he claimed that his plea was not voluntary, that his allocution failed to establish the mental culpability element of depraved indifference as to the reckless endangerment counts, that he was coerced by the court's statement that he could receive consecutive sentences if convicted after a trial and that his counsel was ineffective in advising him to accept the proposed disposition which included agreed upon concurrent sentences. Though the allocution may not have made out the crime (or it may have) "an allocution based on a negotiated plea need not elicit from a defendant specific admissions as to each element of the charged crime."

Juan Carlos Aleman
NY Co ADA Alice Wiseman
Reversed, 4/30/09
After jury's note during deliberations saying "Judge, we're hopelessly deadlocked" trial court's instruction "fail[ed] to appropriately [and] created a significant risk that jurors would interpret his remonstrations about 'following the rules' as a direction that the jury must reach a verdict at all costs otherwise it would be breaking the rules [and t]hese repeated, strident statements by the court were not balanced by an instruction that jurors must not surrender their conscientiously held beliefs."

Dale F. Leeson
Ontario Co ADA Jeffrey L. Taylor
Affirmed, 5/5/09
Testimony about about two similar, but uncharged, crimes in an adjoining county was admissible in defendant's trial on a 32-count indictment charging defendant with sexually abusing a 12-year-old girl during a two-month period in 2003 since it was "relevant for a purpose other than defendant's criminal propensity."

Jeremy Almeter
Greene Co ADA Robert R. Zickl
Argument, 4/28/2009
Greene County Court opinion affirming conviction not publicly reported, 3/25/08, lv granted, 11 N.Y.3d 784, 9/16/08 (Pigott, J)
In local criminal court trial on information charging defendant with misdemeanor assault and trespass, a violation, was it proper for judge to decide violation and only submit the misdemeanor to the jury or does CPL § 340.40(3) require the jury to consider both charges?

Wayne Davis
Kings Co ADA Lori Glachman
Affirmed, 6/11/09
Statute permitting Judicial Hearing Officers to try B misdemeanors with consent of parties is constitutionally permissible and information which alleges that defendant was observed in a park at 2:06 A.M. on December 15, 2005 despite a sign indicating it closes after 9 P.M. sufficient to allege a violation of local park rules which say that "No person shall fail to comply with or obey any instruction, direction, regulation, warning, or prohibition, written or printed, displayed or appearing on any park sign, except such sign may be disregarded upon order by a Police Officer or designated Department employee."

Tyrone Mingo (SORA)
Dzemil Balic (SORA)
Kings Co ADA Anthea H. Bruffee (Mingo), NY Co ADA Dana Poole (Balic)
Mingo reversed, Balic affirmed, 6/9/09
A "victim's statement included in a criminal court complaint prepared by a police officer under oath" and documents generated by the District Attorney's office in prosecuting the defendant on the underlying indictment may constitute "reliable hearsay" within the meaning of the Sex Offender Registration Act, "SORA," Correction Law article 6-C, but the DA's office documents require "[s]ome explanation of how these documents are generated, the personnel who prepared them, the sources typically relied upon for the information contained therein, and the function they served..." to be deemed reliable under the statute

Noel Marte
Kings Co ADA Camille O'Hara Gillespie
Argument, 5/6/2009
A.D. opinion, 52 A.D.3d 737
Defendant's motion to suppress testimony as to "an identification in which the police are not involved."

Eric Bailey
NY Co ADA Olivia Sohmer
forged instrument conviction reversed, 6/11/09
Defendant's carrying counterfeit bills in a shopping district was not legally sufficient to establish defendant's "intent to defraud, deceive, or injure another" required to establish crime of criminal possession of a forged instrument.

Ingvue Buchanan
Chautauqua Co ADA Lynn S. Hodgens
Argument, 5/7/2009
A.D. opinion, 53 A.D.3d 46
Did trial court violate defendant's right to due process by requiring him to wear a stun belt under his clothing during his murder trial?

Wayne Decker
Richmond Co ADA Anne Grady
Affirmed, 6/9/09
Defendant not entitled to dismissal of his murder indictment because of pre-indictment delay since People "deferred prosecution for several reasons, including the witnesses' fear of testifying against defendant[,]to conduct further investigation, given the condition of the witnesses and the lack of physical evidence against defendant [and there was no] abuse of the significant amount of discretion that the People must of necessity have, and ... no indication that the decision was made in anything other than good faith."

Salih Sevencan (CLA)
Kings Co ADA Phyllis Mintz
CLA dismissed, Smith, J., 5/7/09
Since the right to appeal from the denial of an application to be sentenced under the 2004 Drug Law Reform Act is set forth in the Act and is not among those for which leave to appeal may be sought, defendant's criminal leave application must be dismissed.

Jesus Cano
Orange Co ADA Andrew R. Kass
Affirmed, SSM, 6/11/09
Legally sufficient evidence of an attempted crime was established in showing that "defendant came 'dangerously near' the commission of crimes when he arrived at the location of what he thought would be a sexual rendevous with an underage boy."

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