Court of Appeals - Pending and Recent Cases

2010 Term

(The following is a partial listing of recent and currently pending cases before the Court of Appeals of interest to the Association)

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

Daivery Taylor (People's Appeal)
Attorney General (Nassau Co) by Assistant Solicitor General Monica Wagner
AD opinion, 55 A.D.3d 640
Argument, 1/5/2010
Was psychiatrist's testimony that treatment received by accident victims was excessive sufficient to prove that defendants, including a law firm, committed the crime of Scheme to Defraud in the First Degree, and did People establish "intent to defraud" element of Offering a False Instrument for Foiling in the First Degree by evidence that Office of Court Administration filed retainer agreements but, as described by the Appellate Division, they were "not to be acted upon in any way, not even checked for accuracy" ?

Stephen Price(People's Appeal)
Suffolk Co Thomas C. Costello
AD opinion, 61 A.D.3d 127
Argument, 1/6/2010
Does the "exceptional circumstances" provision in CPL 30.30(4)(g) exclude from section 30.30 calculation the period during which an appeal is pending in an unrelated prosecution involving similar legal issues?

Darrell Williams
New York County ADA David M. Cohn
AD opinion, 59 A.D.3d 172
Argument, 1/7/2010
Do the double jeopardy provisions of state and federal law prevent defendant, who was sentenced illegally without a post release supervision component, prohibit his being legally resentenced?

Efrain Hernandez
New York County ADA Barbara Zolot
AD opinion, 59 A.D.3d 180
Argument, 1/7/2010
Do the double jeopardy provisions of state and federal law prevent defendant, who was sentenced illegally without a post release supervision component, prohibit his being legally resentenced or did defendant have a legitimate expectation of finality with respect to a determinate seven-year sentence without the post release supervision required by law?

Craig Lewis
New York County ADA Martin J. Foncello
AD opinion, 60 A.D.3d 425
Argument, 1/7/2010
Do the double jeopardy provisions of state and federal law prevent defendant, who was sentenced illegally without a post release supervision component, prohibit his being legally resentenced?

Edwin Rodriguez
New York County ADA Mark W. Zeno
AD opinion, 60 A.D.3d 452
Argument, 1/7/2010
Do the double jeopardy provisions of state and federal law prevent defendant, who was sentenced illegally without a post release supervision component, prohibit his being legally resentenced and does a court imposing a resentence under those circumstances have discretion to omit PRS without the prosecutor's consent?

Vincent Fiammegta
Kings County ADA Morgan J. Dennehy
AD opinion, 57 A.D.3d 1003
Argument, 1/12/2010
Was court's inquiry regarding the circumstances concerning the defendant's discharge from a drug treatment program sufficient to determine that the defendant violated plea agreement?

Mark Ochoa, Miguel Figueroa Bronx County
ADA Jason S. Whitehead
AD opinions, 57 A.D.3d 342 (Ochoa), 48 A.D.3d 324 (Figueroa, sub nom Michael Figueroa)
Argument, 1/13/2010
Were prior consistent statements of two People's witnesses improperly received as evidence to to buttress their testimony, or harmless error under the circumstances and was trial court's ex parte inquiry of jury foreperson about a note expressing the juror's not feeling "comfortable" about reading the verdict and conclusion that the foreperson's comment was not about the verdict itself but about being uneasy about having to read the verdict out loud in some sort of narrative form sufficient to accept the verdict and was defendant or his attorney entitled to be present during the court's inquiry?

Tatyana Kisina
Attorney General (Queens County), by Hannah Stith Long
AD opinion, 60 A.D.3d 695
Argument, 1/14/2010
Was evidence legally sufficient to establish defendant's commission of Falsifying Business Records in the First Degree or did evidence relating to counts of which she was acquitted have a prejudicial spillover effect with respect to counts of which she was convicted?

Marcellus Pierce
Erie County ADA Michael J. Hillery
AD opinion, 57 A.D.3d 1397
Argument, 1/14/2010
Was Superior Court Information to which defendant pled guilty jurisdictionally defective?

Homer Brown, Jr
Monroe County ADA Nicole M. Fantigrossi
AD opinion, 59 A.D.3d 937
Argument, 1/14/2010
Could trial court summarily deny defendant's motion to withdraw his guilty plea where his allegations of duress and coercion were, in the Appellate Division's words "belied by the statements of defendant during the plea colloquy, wherein he knowingly and voluntarily admitted that he committed the crimes to which he was pleading guilty"?

Leonard A. Leopold
Erie County ADA Matthew B. Powers
Reversed, SSM, 1/14/10
Failure of either Appellate Division or Supreme Court to set forth statutorily required "findings of fact and conclusions of law" for SORA risk determination required remitting case back to Supreme Court for that purpose.

Roland Ramos
Queens County ADA Daniel Bresnahan
Reversed, SSM, 1/12/10
Trial court improperly received document in evidence as business record where "[n]othing on its face indicate[d] that it 'was made in the regular course of business and that it was the regular course of business to make it'(CPLR 4518[a])"

Howard Glenn Blake, alleged to be Larry Wayne Barnett
Suffolk Co ADA Michael Blakey
Affirmed, 1/12/10
In habeas proceeding, relator who was convicted of a crime in South Carolina and escaped from incarceration must make equitable arguments in that state and Supreme Court, accordingly, should not have granted habeas but instead execute Governor's warrant for extradition.

Court of Appeals

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