text:
    Central National Bank, Canajoharie, Respondent, v Scottys Auto Sales, Inc., Defendant, and Elaine Amidon, Appellant.
    Submitted December 19, 2016;
    decided February 14, 2017
   Motion for reargument of motion for leave to appeal denied [see 28 NY3d 1044 (2016)].

Judge Wilson taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Anderson Davis, Appellant, v Orva Omega Davis, Also Known as Orva Omega Alexander, Respondent.
    Submitted December 19, 2016;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Wilson taking no part.


text:
    Andrew Kolchins, Respondent, v Evolution Markets, Inc., Appellant.
    Submitted December 27, 2016;
    decided February 14, 2017
   Motion to dismiss appeal denied.

Judge Wilson taking no part.


text:
    Jose R. Lagos, Appellant, v Patsy S. Fucale et al., Respondents.
    Submitted December 12, 2016;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution (see Cuadrado v New York City Tr. Auth., 65 AD3d 434 [2009], Iv dismissed 14 NY3d 748 [2010]).

Judge Wilson taking no part.


text:
    Law Offices of Thomas F. Liotti, LLC, et al., Appellants, v State of New York et al., Respondents, et al., Defendant.
    Submitted January 9, 2017;
    decided February 14, 2017
   Motion for reargument of motion for leave to appeal denied [see 28 NY3d 908 (2016)].

Judge Wilson taking no part.


text:
    In the Matter of New York City Asbestos Litigation. Charles D. North, as Executor of Ralph P. North, Respondent, v Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc., et al., Defendants, National Grid Generation, LLC, Respondent, and O’Connor Constructors, Inc., Appellant.
    Submitted January 9, 2017;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Wilson taking no part.


text:
    In the Matter of Arif Nizamuddeen, Appellant, v New York City Transit Authority, Also Known as MTA New York City Transit, Respondent.
    Submitted December 19, 2016;
    decided February 14, 2017
   Motion for reargument of motion for leave to appeal dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 28 NY3d 905 (2016)].

Judge Wilson taking no part.


text:
    The People of the State of New York, Respondent, v Malcolm Anderson, Appellant.
    Submitted December 19, 2016;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]). Motion for poor person relief dismissed as academic.

Judge Wilson taking no part.


text:
    In the Matter of Justo Richards, Appellant, v New York State Division of Parole, Respondent.
    Submitted December 27, 2016;
    decided February 14, 2017
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.

Judge Wilson taking no part.


text:
    In the Matter of Yahaira Rivera, Appellant, v Elizabeth R. Berlin, Respondent, et al., Respondents.
    Submitted December 5, 2016;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Wilson taking no part.


text:
    In the Matter of Yahaira Rivera, Appellant, v Elizabeth R. Berlin, Respondent, et al., Respondents.
    Submitted December 12, 2016;
    decided February 14, 2017
   Motion by The Legal Aid Society et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Wilson taking no part.


text:
    In the Matter of Walter J. Roache, Appellant, v Ann Marie T. Sullivan, as Commissioner of Mental Health, Respondent.
    Submitted December 19, 2016;
    decided February 14, 2017
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Wilson taking no part.


text:
    Gasper A. Tirone et al., Cotrustees of Gasper A. Tirone and Elaine E. Tirone Trust, Respondents, v Deborah A. Buczek, Appellant, et al., Defendants.
    Submitted December 12, 2016;
    decided February 14, 2017
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Wilson taking no part.


text:
    Anthony Trimble, Sr., Appellant, et al., Claimant, v State of New York, Respondent.
    Submitted December 19, 2016;
    decided February 14, 2017
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Judge Wilson taking no part.


text:
    (February 1, 2017 through
    February 28, 2017)
    People v Ackerman
   3d Dept: 141 AD3d 948 (Albany)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Ahrens (Larry)
   3d Dept: 145 AD3d 1322 (Schenectady)

denied 2/15/17 (Garcia, J.)


text:
    People v Ahrens (Lawrence)
   3d Dept: 145 AD3d 1322 (Schenectady)

denied 2/15/17 (Garcia, J.)


text:
    People v Alexis
   1st Dept: 144 AD3d 584 (NY)

denied 2/21/17 (Garcia, J.)


text:
    People v Alphonso
   2d Dept: 144 AD3d 1168 (Kings)

denied 2/21/17 (Garcia, J.)


text:
    People v Anderson (Darryl)
   4th Dept: 144 AD3d 1657 (Erie)

denied 2/21/17 (Garcia, J.)


text:
    People v Anderson (Jon)
   4th Dept: 144 AD3d 1614 (Erie)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Atkinson
   App Div, 3d Dept: 2016 NY Slip Op 89825(U) (Tompkins)

denied 2/16/17 (Rivera, J.)


text:
    People v Ayala
   App Div, 2d Dept: 2016 NY Slip Op 86567(U) (Kings)

denied reconsideration 2/16/17 (Rivera, J.)


text:
    People v Bailey
   2d Dept: 142 AD3d 1096 (Kings)

denied 2/24/17 (Rivera, J.)


text:
    People v Baker
   2d Dept: 139 AD3d 1078 (Westchester)

denied reconsideration 2/24/17 (Rivera, J.)


text:
    People v Barrientos
   1st Dept: 145 AD3d 529 (NY)

denied 2/15/17 (Garcia, J.)


text:
    People v Beardsley
   4th Dept: 142 AD3d 1285 (Chautauqua)

denied 2/16/17 (Stein, J.)


text:
    People v Bello
   1st Dept: 143 AD3d 650 (NY)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Berridge
   2d Dept: 144 AD3d 935 (Kings)

denied 2/23/17 (Stein, J.)


text:
    People v Black
   2d Dept: 144 AD3d 935 (Queens)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Blond
   3d Dept: 146 AD3d 1033 (Schenectady)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Bonilla
   App Div, 2d Dept: 2016 NY Slip Op 86570(U) (Suffolk)

denied reconsideration 2/28/17 (DiFiore, Ch. J.)


text:
    People v Bouknight
   App Div, 2d Dept: 2016 NY Slip Op 88037(U) (Kings)

denied reconsideration 2/16/17 (Rivera, J.)


text:
    People v Brazil
   4th Dept: 144 AD3d 1616 (Oneida)

denied 2/21/17 (Garcia, J.)


text:
    People v Bruno
   1st Dept: 144 AD3d 413 (Bronx)

denied 2/24/17 (Rivera, J.)


text:
    People v Brunson (Hakim)
   1st Dept: 144 AD3d 586 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Brunson (Shakim)
   1st Dept: 144 AD3d 586 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Cajigas
   2d Dept: 144 AD3d 699 (Westchester)

denied 2/24/17 (Rivera, J.)


text:
    People v Cartagena
   2d Dept: 126 AD3d 913 (Kings)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Casimay
   1st Dept: 143 AD3d 586 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Castillo
   1st Dept: 144 AD3d 594 (NY)

denied 2/24/17 (Rivera, J.)


text:
    People v Copes
   4th Dept: 145 AD3d 1639 (Cayuga)

denied 2/15/17 (Garcia, J.)


text:
    People v Crawford
   1st Dept: 143 AD3d 607 (Bronx)

denied 2/15/17 (Abdus-Salaam, J.)


text:
    People v Creel
   County Ct, 11/14/16 (Ontario)

denied 2/16/17 (Rivera, J.)


text:
    People v Crispin
   1st Dept: 145 AD3d 498 (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Crosby
   App Div, 4th Dept: 2016 NY Slip Op 83582(U) (Erie)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Cruz
   2d Dept: 144 AD3d 937 (Rockland)

denied 2/13/17 (Stein, J.)


text:
    People v Cushman (Sarah)
   4th Dept: 142 AD3d 1286 (Monroe)

denied 2/16/17 (Rivera, J.) (Appeal No. 1)


text:
    People v Cushman (Sarah)
   4th Dept: 142 AD3d 1287 (Monroe)

denied 2/16/17 (Rivera, J.) (Appeal No. 2)


text:
    People v Cushman (Sarah)
   4th Dept: 142 AD3d 1287 (Monroe)

denied 2/16/17 (Rivera, J.) (Appeal No. 3)


text:
    People v Dailey
   4th Dept: 144 AD3d 1590 (Niagara)

denied 2/16/17 (Rivera, J.)


text:
    People v Daniels
   3d Dept: 139 AD3d 1256 (Albany)

denied 2/16/17 (Rivera, J.)


text:
    People v Davis (Kenneth)
   1st Dept: 145 AD3d 623 (NY)

denied 2/24/17 (Rivera, J.)


text:
    People v Davis (Marc)
   4th Dept: 144 AD3d 1682 (Niagara)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Davis (Sean)
   1st Dept: 144 AD3d 486 (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Degraffenreid
   2d Dept: 144 AD3d 1051 (Orange)

denied 2/23/17 (Stein, J.)


text:
    People v Diaz
   1st Dept: 143 AD3d 559 (NY)

denied 2/2/17 (Abdus-Salaam, J.)


text:
    People v Dickson
   1st Dept: 143 AD3d 494 (NY)

denied 2/13/17 (Stein, J.)


text:
    People v Doe
   1st Dept: 145 AD3d 529 (NY)

denied 2/15/17 (Garcia, J.)


text:
    People v Drake
   App Div, 4th Dept: 2016 NY Slip Op 89799(U) (Erie)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Edwards
   1st Dept: 144 AD3d 563 (NY)

denied 2/23/17 (Fahey, J.)


text:
    People v Eightcho
   3d Dept: 141 AD3d 1013 (Schenectady)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Elliot
   1st Dept: 144 AD3d 611 (Bronx)

denied 2/9/17 (DiFiore, Ch. J.)


text:
    People v Eriksen
   3d Dept: 145 AD3d 1110 (Ulster)

denied 2/21/17 (Fahey, J.)


text:
    People v Espejo
   2d Dept: 145 AD3d 1031 (Queens)

denied 2/21/17 (Stein, J.)


text:
    People v Espinal
   2d Dept: 143 AD3d 999 (Queens)

denied 2/13/17 (Stein, J.)


text:
    People v Everett
   2d Dept: 142 AD3d 717 (Dutchess)

denied 2/24/17 (Rivera, J.)


text:
    People v Femminella
   1st Dept: 145 AD3d 441 (NY)

denied 2/7/17 (DiFiore, Ch. J.)


text:
    People v Fernandez
   2d Dept: 144 AD3d 840 (Nassau)

denied 2/16/17 (Rivera, J.)


text:
    People v Ferreira
   1st Dept: 144 AD3d 612 (Bronx)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Flores
   1st Dept: 144 AD3d 540 (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Ford
   4th Dept: 144 AD3d 1682 (Monroe)

denied 2/7/17 (DiFiore, Ch. J.)


text:
    People v Fowler
   1st Dept: 145 AD3d 437 (Bronx)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Freeman
   4th Dept: 144 AD3d 1581 (Ontario)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Friedman
   App Div, 2d Dept: 2016 NY Slip Op 95317(U) (Queens)

dismissed 2/24/17 (Rivera, J.)


text:
    People v Fuller (Jeffrey)
   2d Dept: 145 AD3d 1086 (Rockland)

denied 2/14/17 (Stein, J.)


text:
    People v Fuller (Paris)
   1st Dept: 145 AD3d 641 (NY)

denied 2/24/17 (Rivera, J.)


text:
    People v Fulton
   App Div, 4th Dept, 11/29/16 (Monroe)

dismissed 2/14/17 (DiFiore, Ch. J.)


text:
    People v Galarza
   1st Dept: 127 AD3d 407 (Bronx)

denied 2/23/17 (Fahey, J.)


text:
    People v Garcia
   4th Dept: 143 AD3d 1283 (Monroe)

denied 2/15/17 (Abdus-Salaam, J.)


text:
    People v German
   4th Dept: 145 AD3d 1550 (Cayuga)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Giammichele
   3d Dept: 144 AD3d 1320 (Ulster)

denied 2/9/17 (DiFiore, Ch. J.)


text:
    People v Gilbert
   3d Dept: 145 AD3d 1196 (Albany)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Gilette
   2d Dept: 145 AD3d 796 (Queens)

denied 2/9/17 (DiFiore, Ch. J.)


text:
    People v Golgoski
   3d Dept: 145 AD3d 1195 (Ulster)

denied 2/23/17 (Fahey, J.)


text:
    People v Gomez
   2d Dept: 137 AD3d 1161 (Dutchess)

denied 2/23/17 (Fahey, J.)


text:
    People v Gonsalez
   2d Dept: 144 AD3d 841 (Nassau)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Gonyeau
   4th Dept: 144 AD3d 1574 (Wayne)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Gonzalez
   1st Dept: 145 AD3d 586 (NY)

denied 2/15/17 (Garcia, J.)


text:
    People v Goodwine
   App Div, 2d Dept: 2016 NY Slip Op 83569(U) (Westchester)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Green
   1st Dept: 144 AD3d 589 (NY)

denied 2/15/17 (Garcia, J.)


text:
    People v Griffith
   3d Dept: 136 AD3d 1114 (Albany)

denied 2/21/17 (Fahey, J.)


text:
    People v Grohoske (Calvin)
   App Div, 1st Dept: 148 AD3d 97 (NY)

denied 2/16/17 (Stein, J.)


text:
    People v Grohoske (Diann)
   App Div, 1st Dept: 148 AD3d 97 (NY)

denied 2/16/17 (Stein, J.)


text:
    People v Gurnsey
   App Div, 4th Dept: 2016 NY Slip Op 92912(U) (Steuben)

dismissed 2/15/17 (Garcia, J.)


text:
    People v Hernandez (Jared)
   County Ct, 9/20/16 (Montgomery)

denied 2/16/17 (Stein, J.)


text:
    People v Hernandez (Luis)
   1st Dept: 144 AD3d 540 (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Hewitt
   4th Dept: 144 AD3d 1607 (Niagara)

denied 2/13/17 (Stein, J.)


text:
    People v Hidalgo
   2d Dept: 144 AD3d 704 (Westchester)

denied 2/15/17 (Garcia, J.)


text:
    People v Hindus
   App Term, 1st Dept: 53 Misc 3d 128(A) (Bronx)

denied 2/16/17 (DiFiore, Ch. J.)


text:
    People v Ho
   3d Dept: 141 AD3d 1013 (Schenectady)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Hoey
   1st Dept: 145 AD3d 118 (NY)

denied 2/21/17 (Fahey, J.)


text:
    People v Hughes
   App Div, 3d Dept, 11/28/16 (Albany)

dismissed 2/21/17 (Garcia, J.)


text:
    People v Hunter
   4th Dept: 145 AD3d 1546 (Cayuga)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Jackson (Artie)
   2d Dept: 144 AD3d 945 (Nassau)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Jackson (Robert)
   App Term, 1st Dept: 53 Misc 3d 151(A) (Bronx)

denied 2/15/17 (Garcia, J.)


text:
    People v Jalloh
   App Term, 1st Dept: 53 Misc 3d 148(A) (NY)

denied 2/21/17 (DiFiore, Ch. J.)


text:
    People v James
   1st Dept: 144 AD3d 596 (NY)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Jenkins
   App Term, 1st Dept: 53 Misc 3d 151(A) (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Johnson (Andre)
   4th Dept: 145 AD3d 1527 (Erie)

denied 2/24/17 (Rivera, J.)


text:
    People v Johnson (Michael)
   1st Dept: 143 AD3d 600 (NY)

denied 2/15/17 (DiFiore, Ch. J.)


text:
    People v Jones
   App Div, 1st Dept: 2016 NY Slip Op 73176(U) (NY)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Kappen
   2d Dept: 142 AD3d 1106 (Nassau)

denied 2/8/17 (Fahey, J.)


text:
    People v Kennedy
   4th Dept: 145 AD3d 1577 (Monroe)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v King
   2d Dept: 144 AD3d 1176 (Queens)

denied 2/21/17 (Stein, J.)


text:
    People v Kitt
   1st Dept: 145 AD3d 528 (NY)

denied 2/9/17 (Stein, J.)


text:
    People v Kwabena
   2d Dept: 145 AD3d 1034 (Kings)

denied 2/23/17 (Fahey, J.)


text:
    People v Lamont
   3d Dept: 144 AD3d 1330 (Rensselaer)

denied 2/23/17 (Fahey, J.)


text:
    People v Lester
   3d Dept: 141 AD3d 951 (St. Lawrence)

denied 2/24/17 (Fahey, J.)


text:
    People v Letizia
   4th Dept: 141 AD3d 1129 (Erie)

denied reconsideration 2/16/17 (Garcia, J.)


text:
    People v Lewis
   3d Dept: 145 AD3d 1110 (Ulster)

denied 2/21/17 (Fahey, J.)


text:
    People v Liggins
   1st Dept: 145 AD3d 444 (Bronx)

denied 2/10/17 (Stein, J.)


text:
    People v Louis
   App Term, 2d Dept, 2d, 11th & 13th Jud Dists: 53 Misc 3d 153(A) (Queens)

denied 2/16/17 (Rivera, J.)


text:
    People v Lynn
   4th Dept: 144 AD3d 1491 (Ontario)

denied 2/23/17 (Stein, J.)


text:
    People v Macaluso
   2d Dept: 144 AD3d 947 (Suffolk)

denied 2/15/17 (Garcia, J.)


text:
    People v Magliocco
   4th Dept: 144 AD3d 1545 (Genesee)

denied 2/21/17 (Garcia, J.)


text:
    People v Maldonado
   2d Dept: 144 AD3d 706 (Kings)

denied 2/21/17 (DiFiore, Ch. J.)


text:
    People v Martinez
   3d Dept: 144 AD3d 1326 (Essex)

denied 2/21/17 (DiFiore, Ch. J.)


text:
    People v Mason (Arthur)
   4th Dept: 144 AD3d 1589 (Jefferson)

denied 2/21/17 (Garcia, J.) (Appeal No. 1)


text:
    People v Mason (Arthur)
   4th Dept: 144 AD3d 1590 (Jefferson)

denied 2/21/17 (Garcia, J.) (Appeal No. 2)


text:
    People v Mayrant
   1st Dept: 144 AD3d 572 (NY)

denied 2/15/17 (Stein, J.)


text:
    People v McClain
   3d Dept: 145 AD3d 1192 (Albany)

denied 2/23/17 (Fahey, J.)


text:
    People v McCray
   2d Dept: 145 AD3d 740 (Kings)

denied 2/23/17 (Fahey, J.)


text:
    People v McCullars
   4th Dept: 144 AD3d 1616 (Onondaga)

denied 2/15/17 (Garcia, J.)


text:
    People v McGowan
   App Div, 3d Dept: 2016 NY Slip Op 93219(U) (Albany)

dismissed 2/14/17 (DiFiore, Ch. J.)


text:
    People v McKeon
   App Div, 4th Dept, 11/26/16 (Orleans)

dismissed 2/2/17 (Abdus-Salaam, J.)


text:
    People v Mena-Lopez
   1st Dept: 144 AD3d 569 (Bronx)

denied 2/21/17 (Garcia, J.)


text:
    People v Michaux
   2d Dept: 144 AD3d 843 (Westchester)

denied 2/16/17 (Rivera, J.)


text:
    People v Mills
   4th Dept: 144 AD3d 1617 (Erie)

denied 2/15/17 (Garcia, J.)


text:
    People v Moncrieffe
   1st Dept: 144 AD3d 496 (Bronx)

denied 2/16/17 (Rivera, J.)


text:
    People v Montanez
   1st Dept: 144 AD3d 596 (NY)

denied 2/10/17 (Stein, J.)


text:
    People v Moody
   1st Dept: 145 AD3d 572 (NY)

denied 2/28/17 (DiFiore, Ch. J.)


text:
    People v Moore
   4th Dept: 144 AD3d 1616 (Monroe)

denied 2/15/17 (Garcia, J.)


text:
    People v Morgado
   2d Dept: 144 AD3d 709 (Westchester)

denied 2/8/17 (Garcia, J.)


text:
    People v Morgan
   App Div, 3d Dept: 2016 NY Slip Op 93222(U) (Columbia)

dismissed 2/23/17 (Fahey, J.)


text:
    People v Mould
   3d Dept: 143 AD3d 1186 (Saratoga)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Myles
   App Div, 4th Dept, 11/17/16 (Onondaga)

dismissed 2/16/17 (Rivera, J.)


text:
    People v Nesmith
   4th Dept: 144 AD3d 1508 (Monroe)

denied 2/23/17 (Stein, J.)


text:
    People v Newton
   4th Dept: 144 AD3d 1617 (Monroe)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Nova
   App Div, 1st Dept: 2016 NY Slip Op 79482(U) (NY)

denied 2/21/17 (Stein, J.)


text:
    People v Nwogu
   App Div, 4th Dept, 11/28/16 (Erie)

dismissed 2/24/17 (Abdus-Salaam, J.)


text:
    People v Orta
   1st Dept: 145 AD3d 634 (NY)

denied 2/10/17 (Stein, J.)


text:
    People v Ortiz
   App Div, 1st Dept: 2016 NY Slip Op 82792(U) (NY)

dismissed 2/14/17 (DiFiore, Ch. J.)


text:
    People v Otunyo
   1st Dept: 142 AD3d 865 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Pendleton
   4th Dept: 144 AD3d 1521 (Niagara)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Perez
   1st Dept: 144 AD3d 488 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Peterson
   3d Dept: 145 AD3d 1322 (Schenectady)

denied 2/15/17 (Garcia, J.)


text:
    People v Pierre-Louis
   App Term, 2d Dept, 9th & 10th Jud Dists: 53 Misc 3d 130(A) (Nassau)

denied 2/16/17 (Rivera, J.)


text:
    People v Pretty
   3d Dept: 145 AD3d 1196 (Albany)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Ragguete
   2d Dept: 144 AD3d 710 (Kings)

denied 2/22/17 (Abdus-Salaam, I.)


text:
    People v Ramos
   1st Dept: 144 AD3d 554 (Bronx)

denied 2/16/17 (Rivera, J.)


text:
    People v Redfield
   4th Dept: 144 AD3d 1548 (Monroe)

denied 2/23/17 (Stein, J.)


text:
    People v Richards
   2d Dept: 144 AD3d 844 (Suffolk)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Ritorto
   2d Dept: 144 AD3d 949 (Kings)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Rivera (Erick)
   1st Dept: 144 AD3d 483 (NY)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Rivera (Jesus)
   App Term, 1st Dept: 53 Misc 3d 150(A) (NY)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Rizzo
   1st Dept: 144 AD3d 489 (NY)

denied 2/28/17 (Stein, J.)


text:
    People v Roberts (Cypress)
   2d Dept: 145 AD3d 742 (Suffolk)

denied 2/23/17 (Stein, J.)


text:
    People v Roberts (Derrick)
   2d Dept: 145 AD3d 742 (Suffolk)

denied 2/23/17 (Stein, J.)


text:
    People v Rodriguez (Edwin)
   2d Dept: 144 AD3d 950 (Suffolk)

denied 2/16/17 (Rivera, J.)


text:
    People v Rodriguez (Edwin)
   1st Dept: 144 AD3d 498 (NY)

denied 2/21/17 (Garcia, J.)


text:
    People v Rodriguez (Gabriel)
   County Ct, 7/18/16 (Albany)

denied 2/21/17 (Garcia, J.)


text:
    People v Rodriguez (Jose)
   1st Dept: 144 AD3d 554 (Bronx)

denied 2/16/17 (Rivera, J.)


text:
    People v Rodriguez (Ricardo)
   1st Dept: 145 AD3d 529 (NY)

denied 2/21/17 (Garcia, J.)


text:
    People v Rolle
   App Div, 1st Dept: 2016 NY Slip Op 90957(U) (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Ross
   App Term, 1st Dept: 53 Misc 3d 143(A) (NY)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Ruiz (Randy)
   1st Dept: 146 AD3d 417 (Bronx)

denied 2/21/17 (Stein, J.)


text:
    People v Ruiz (Vladimir)
   1st Dept: 146 AD3d 417 (Bronx)

denied 2/21/17 (Stein, J.)


text:
    People v Rush (Basheem)
   App Div, 2d Dept: 2016 NY Slip Op 84156(U) (Kings)

denied reconsideration 2/28/17 (DiFiore, Ch. J.)


text:
    People v Rush (Biggie)
   App Div, 2d Dept: 2016 NY Slip Op 84156(U) (Kings)

denied reconsideration 2/28/17 (DiFiore, Ch. J.)


text:
    People v Sabater
   2d Dept: 144 AD3d 950 (Westchester)

denied 2/23/17 (Fahey, J.)


text:
    People v Saddler (Jerry)
   4th Dept: 144 AD3d 1520 (Cayuga)

denied 2/15/17 (Abdus-Salaam, J.) (Appeal No. 1)


text:
    People v Saddler (Jerry)
   4th Dept: 144 AD3d 1526 (Cayuga)

denied 2/15/17 (Abdus-Salaam, J.) (Appeal No. 2)


text:
    People v Scott
   2d Dept: 144 AD3d 846 (Kings)

denied 2/15/17 (Garcia, J.)


text:
    People v Sears
   2d Dept: 144 AD3d 1056 (Richmond)

denied 2/16/17 (Rivera, J.)


text:
    People v Simmons
   1st Dept: 145 AD3d 501 (NY)

denied 2/24/17 (DiFiore, Ch. J.)


text:
    People v Simpson
   App Term, 1st Dept: 53 Misc 3d 148(A) (NY)

denied 2/23/17 (Fahey, J.)


text:
    People v Smith
   2d Dept: 143 AD3d 1005 (Nassau)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Spragion
   App Div, 2d Dept: 2016 NY Slip Op 91144(U) (Kings)

dismissed 2/21/17 (Fahey, J.)


text:
    People v Steiniger
   4th Dept: 142 AD3d 1320 (Steuben)

denied 2/3/17 (Fahey, J.)


text:
    People v Stevens
   County Ct, 11/17/16 (Cortland)

denied 2/9/17 (DiFiore, Ch. J.)


text:
    People v Stroud
   2d Dept: 144 AD3d 1056 (Kings)

denied 2/21/17 (DiFiore, Ch. J.)


text:
    People v Suazo
   1st Dept: 144 AD3d 405 (NY)

denied 2/14/17 (DiFiore, Ch. J.)


text:
    People v Sumter
   2d Dept: 145 AD3d 803 (Queens)

denied 2/21/17 (Fahey, J.)


text:
    People v Suruy
   2d Dept: 144 AD3d 951 (Suffolk)

denied 2/22/17 (Abdus-Salaam, J.)


text:
    People v Telfair
   2d Dept: 144 AD3d 712 (Kings)

denied 2/24/17 (Rivera, J.)


text:
    People v Terrance
   4th Dept: 144 AD3d 1548 (Monroe)

denied 2/23/17 (Stein, J.)


text:
    People v Thompson
   2d Dept: 143 AD3d 1007 (Suffolk)

denied 2/23/17 (Stein, J.)


text:
    People v Townsend
   3d Dept: 144 AD3d 1196 (Broome)

denied 2/1/17 (Abdus-Salaam, J.)


text:
    People v Turner
   2d Dept: 145 AD3d 745 (Kings)

denied 2/15/17 (Garcia, J.)


text:
    People v Tweedy
   County Ct, 12/9/16 (Onondaga)

dismissed 2/24/17 (Rivera, J.)


text:
    People v Tyson
   1st Dept: 144 AD3d 441 (NY)

denied 2/21/17 (Stein, J.)


text:
    People v Van Kleeck
   App Div, 3d Dept: 2016 NY Slip Op 94546(U) (Sullivan)

dismissed 2/28/17 (DiFiore, Ch. J.)


text:
    People v Vasquez
   App Div, 4th Dept, 12/12/16 (Ontario)

dismissed 2/21/17 (Stein, J.)


text:
    People v Velazquez
   1st Dept: 143 AD3d 126 (NY)

denied 2/15/17 (Abdus-Salaam, J.)


text:
    People v Washington
   4th Dept: 144 AD3d 1562 (Onondaga)

denied 2/13/17 (Stein, J.)


text:
    People v Watson
   1st Dept: 144 AD3d 401 (NY)

denied 2/16/17 (Rivera, J.)


text:
    People v Wells
   3d Dept: 141 AD3d 1013 (Schenectady)

denied 2/23/17 (DiFiore, Ch. J.)


text:
    People v Williams (Larry)
   App Div, 4th Dept: 2016 NY Slip Op 92943(U) (Onondaga)

dismissed 2/15/17 (Stein, J.)


text:
    People v Williams (Mario)
   4th Dept: 144 AD3d 1616 (Oneida)

denied 2/21/17 (Garcia, J.)


text:
    People v Wilson
   App Div, 4th Dept, 11/27/16 (Niagara)

dismissed 2/24/17 (Abdus-Salaam, J.)


text:
    People v Zil
   4th Dept: 144 AD3d 1616 (Oneida)

denied 2/21/17 (Garcia, J.)


text:
    (February 1, 2017 through
    February 28, 2017)
    People v Kuzdzal
   4th Dept: 144 AD3d 1618 (Erie)

granted 2/16/17 (Peradotto, J.)

       Includes only applications that were granted.


author: Abdus-Salaam, J.

text:
    [73 NE3d 344, 51 NYS3d 4]
    The People of the State of New York, Respondent, v Richard M. Leonard, Appellant. The People of the State of New York, Respondent, v Richard M. Leonard, Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Argued February 8, 2017;
    decided March 28, 2017

      POINTS OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Brian Shif-frin of counsel), for appellant in the first and second above-entitled actions.

      Sandra Doorley, District Attorney, Rochester (Robert J. Shoemaker of counsel), for respondent in the first and second above-entitled actions.
   OPINION OF THE COURT

Abdus-Salaam, J.

Defendant was convicted of sexual abuse in the first degree (Penal Law § 130.65 [2]) and unlawfully dealing with a child in the first degree (Penal Law § 260.20) for serving alcohol to an underage relative (hereinafter the victim) and then sexually abusing her while she was intoxicated. Defendant appealed, and moved to vacate his conviction pursuant to Criminal Procedure Law § 440.10. On defendant’s direct appeal, we hold that the trial court erred in permitting the People to introduce testimony from the victim about a prior incident in which defendant allegedly sexually assaulted her in a similar manner, because the evidence was not permissible for the People’s proffered Molineux purposes and, to the extent it was probative for a limited purpose, the prejudicial nature of that evidence far outweighed any probative value. Therefore, we reverse the Appellate Division order affirming the judgment and remit for a new trial. However, we affirm the Appellate Division’s denial of defendant’s Criminal Procedure Law § 440.10 motion. We therefore affirm that Appellate Division order.

L

In October 2007, defendant was assaulted by the victim’s boyfriend. Following his arrest, the boyfriend was interviewed by a police officer, to whom he explained that he assaulted defendant because he suspected that defendant had acted in a sexually inappropriate manner with the victim. During questioning by the police officer, the victim stated that her boyfriend attacked defendant because he thought that she had been raped by defendant earlier that day, “but ... it was not true.” The officer created an incident report in which he stated that the boyfriend said he had assaulted defendant because while he was at defendant’s home earlier that day, he “believed that [defendant] was doing something inappropriate to [the victim],” but he “didn’t see anything specific.” In the boyfriend’s voluntary statement, he explained that while he and the victim were at defendant’s home, he was in the basement playing video games, while the victim, who was intoxicated, lay passed out on an upstairs couch. The boyfriend said that he saw defendant standing over the victim, and suspected that he was doing something inappropriate to her. After the boyfriend and the victim left defendant’s house, the boyfriend stated that the victim informed him that defendant had raped her on a prior occasion.

Defendant was indicted for sexual abuse in the first degree and unlawfully dealing with a child in the first degree for giving the victim alcohol. Prior to trial the prosecutor filed a “Mo-lineux Proffer” seeking to elicit testimony regarding an alleged 2005 sexual abuse incident involving the same victim. According to the victim, she fell asleep on a couch in her home where defendant had been living after drinking alcohol provided to her by defendant. When she woke up, her pants were down and defendant’s fingers were inside her vagina. The prosecutor argued that this evidence was relevant to show intent, absence of mistake, background, and common scheme or plan. Over defendant’s objection, the court ruled that the People could elicit testimony regarding the 2005 incident in their direct case. The court did not specify for which Molineux purpose the evidence was admissible or if it weighed the probative value of the evidence against any potential prejudice to defendant.

During trial, the boyfriend testified that in October 2007, he and the victim went to defendant’s home where they all drank alcoholic beverages. Some time later, the victim passed out in the bathroom and he and defendant carried her upstairs and placed her on a couch. The boyfriend and defendant then went downstairs to play video games in the basement. At some point, defendant went upstairs while the boyfriend remained in the basement. The boyfriend testified that, from where he sat, he could see defendant kneeling between the coffee table and couch on which the victim was passed out. He questioned defendant, who responded that he was checking on the victim because he thought she was going to vomit. A few minutes later, he once again observed defendant kneeling down in front of the victim, touching her, after which, he ran upstairs where he saw defendant touching the victim’s vagina. He shook the victim awake and they left.

The victim also testified at trial. Although she could not remember the assault, she recalled her boyfriend waking her up and noticed that her knees were open and her pants and underwear were below her knees. Pursuant to the court’s Mo-lineux ruling, the victim testified that in 2005, she was drinking alcohol provided by defendant and, when she later woke up on a couch, defendant was touching her vagina. She admitted that, prior to the present case, she never told anyone of this alleged sexual assault from 2005.

Defendant testified on his own behalf, denying that he supplied the victim and her boyfriend with alcohol. He explained that after the victim passed out in the bathroom, he and her boyfriend put her on the couch, and the victim started vomiting in the area between the sofa and coffee table. Defendant testified that he got a bowl in case she got sick again, which she did. The victim and her boyfriend left at about 4:00 a.m. Defendant denied inappropriately touching the victim.

The jury convicted defendant of sexual abuse in the first degree and unlawfully dealing with a child in the first degree, and he was sentenced to a term of three years and six months in prison, with seven years of postrelease supervision.

Defendant moved pro se to set aside his conviction pursuant to Criminal Procedure Law § 440.10, raising ineffective assistance of counsel and prosecutorial misconduct claims. County Court denied the motion without a hearing, holding that defendant’s claims lacked merit.

The Appellate Division considered both appeals together, and affirmed both orders (129 AD3d 1592 [4th Dept 2015]). With respect to the direct appeal, the Court rejected defendant’s contention that the trial court erred in admitting the Molineux evidence, concluding that the evidence of uncharged crimes was admissible to establish intent and motive, and was also admissible to provide necessary background information on the nature of the relationship between defendant and the victim. We disagree with the Court’s conclusion that the Molineux evidence was permissible.

IL

Under our well-established Molineux rule, “evidence of a defendant’s uncharged crimes or prior misconduct is not admissible if it cannot logically be connected to some specific material issue in the case, and tends only to demonstrate the defendant’s propensity to commit the crime charged” (People v Cass, 18 NY3d 553, 559 [2012]). Evidence of such crimes or prior bad acts may be permissible for certain limited reasons; however, the court may admit such evidence only after making the discretionary determination that the probative value of the evidence outweighs the potential for prejudice to the defendant (see People v Alvino, 71 NY2d 233, 241-242 [1987]; People v Molineux, 168 NY 264 [1901]). In People v Molineux, we identified a non-exhaustive list of five exceptions or purposes, for which uncharged crimes might be relevant, to show: (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant. Additionally, in People v Dorm, we explained that prior uncharged crimes may also be used to “provide [ ] necessary background information on the nature of the relationship and placet ] the charged conduct in context” (12 NY3d 16, 19 [2009]). “[E]ven if [the evidence is] technically relevant for one of these or some other legitimate purpose, Molineux evidence will not be admitted if it ‘is actually of slight value when compared to the possible prejudice to the accused’ ” (People v Arafet, 13 NY3d 460, 465 [2009]). As stated, evidence may not be admitted to show that a defendant has a propensity to commit a certain type of crime, as such evidence has no legitimate basis for admission (see Alvino, 71 NY2d at 253).

The victim’s testimony here that defendant had previously sexually assaulted her by getting her drunk is propensity evidence, tending to show that defendant committed the charged crime because he had done it before. Contrary to the People’s argument and the lower courts’ decisions, this evidence was not necessary background information. Background evidence is admissible to show (1) the nature of the relationship and (2) to provide context for the charged conduct (see Dorm, 12 NY3d at 19). This exception is generally applicable where there is some need to explain the victim’s conduct or actions in relation to defendant by illuminating the nature of their relationship, or some need to flesh out the narrative so that there are no gaps in the story line provided to the jury (see People v Frankline, 27 NY3d 1113, 1115 [2016]; People v Leeson, 12 NY3d 823, 827 [2009]), or where the relationship itself provides a motive for the defendant’s criminal conduct (see Frankline, 27 NY3d at 1115; People v Gamble, 18 NY3d 386, 398 [2012]; People v Till, 87 NY2d 835, 837 [1995]). Here, however, the victim’s testimony as to the alleged prior sexual abuse was not necessary to show the nature of the relationship between her and defendant or to “sort out ambiguous but material facts” (People v Resek, 3 NY3d 385, 390 [2004]). The victim testified as to her relationship with defendant, stating that they are relatives who lived, at certain times, in the same home and that on the night of the indicted sexual assault, she and her boyfriend went to defendant’s home to spend time together and drink alcohol. The introduction of the prior alleged assault was not necessary to clarify their relationship or to establish a narrative of the relevant events.

Further, the evidence of the uncharged crime was not admissible to show intent. The intent here — sexual gratification— can be inferred from the act. “Evidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself” (People v Alvino, 71 NY2d at 242). Such is the case here, where defendant’s alleged action of touching the victim’s vagina was plainly for sexual gratification and not an “equivocal” act capable of being understood as “innocently or inadvertently committed” (id. at 242-243).

To the extent the evidence was admissible to show defendant’s motive in getting the victim drunk, the evidence was highly prejudicial, as it showed that defendant had allegedly engaged in the exact same behavior on a prior occasion with the same victim — classic propensity evidence. The prejudicial nature of the Molineux evidence far outweighed any probative value that may be attributed to it. Thus, to the extent the trial court permitted this evidence to show motive, it abused its discretion. The error in admitting this evidence was not harmless, as the evidence of defendant’s guilt was based principally on the boyfriend’s testimony and was not overwhelming; additionally, no limiting instruction was provided regarding the permissible purposes for which the Molineux evidence could be considered.

Our reversal of defendant’s conviction and remittal for a new trial renders his ineffective assistance of counsel arguments in his Criminal Procedure Law § 440.10 motion academic. The remainder of his motion addressing his claim that the prosecutor engaged in misconduct requiring dismissal of the indictment was properly denied without a hearing.

III.

Accordingly, on defendant s direct appeal, the Appellate Division order should be reversed and a new trial ordered, and the Appellate Division order affirming the denial of defendant’s Criminal Procedure Law § 440.10 motion should be affirmed.

In People v Leonard (Appeal No. 1): Order reversed and a new trial ordered.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

In People v Leonard (Appeal No. 2): Order affirmed.

Opinion by Judge Abdus-Salaam. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.


author: Stein, J.

text:
    [73 NE3d 349, 51 NYS3d 9]
    The People of the State of New York, Respondent, v Ryan P. Brahney, Appellant.
    Argued February 9, 2017;
    decided March 30, 2017

      POINTS OF COUNSEL

      Kathryn Friedman, Buffalo, for appellant.

      Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

On this appeal, we are asked to determine whether consecutive sentences were authorized under Penal Law § 70.25 (2) for defendant’s burglary and intentional murder convictions. Inasmuch as the People identified evidence in the record to support their view that the crimes were committed through separate and distinct acts, consecutive sentences were permissible.

L

Defendant was charged in an indictment with numerous crimes, including two counts of murder in the second degree and two counts of burglary in the first degree, after he killed his former girlfriend in her home by stabbing her with a butcher knife. At the ensuing nonjury trial, defendant stipulated in writing that he “caused the death of” the victim “by stabbing her with a knife,” but proffered an affirmative defense of extreme emotional disturbance. Defendant’s uncle testified that defendant appeared at the uncle’s home at approximately 1:00 a.m. on the night of the murder. Defendant was covered in blood, asked that his mother be called to pick up his son, and stated that he had stabbed and killed the victim. The uncle called the police. At the station, defendant made statements to police that he had killed the victim; he was subsequently recorded on a telephone call with his mother, admitting that he went to the victim’s apartment, “dragged her down the stairs and murdered her.”

Police responding to the victim’s apartment determined that defendant had gained entraP.ce by smashing a window and tearing a screen. They observed signs of a struggle in the upstairs master bedroom, as well as a small smear of blood on a wall outside the bedroom, a smear of blood on a half wall at the top of the staircase landing, and a few drops of blood on the floor upstairs and on the stairs. Testing later revealed this to be the victim’s blood. The victim was found downstairs, on the floor of her living room, with a knife sticking out of her chest. The photographs depicting her body and wounds corroborate the police testimony at trial that there were large quantities of blood in the living room, including next to the victim’s body.

The Chief Medical Examiner testified that he found 38 slash or stab wounds on the victim’s body, all of which were consistent with the murder weapon. He explained that several of the wounds, individually, could have been fatal — specifically, those that penetrated the chest cavity, caused lung collapse, injured the heart, sliced a major vein in the neck and penetrated the liver — but did not identify a particular wound that clearly caused death immediately.

As relevant here, defendant was found guilty of intentional murder, as well as two counts of burglary in the first degree, based on (1) causing physical injury and (2) using or threatening to use a dangerous instrument. At sentencing, the People argued that consecutive sentences were appropriate because the evidence showed that defendant pulled the victim out of bed and inflicted minor injuries on her while she was upstairs, before dragging her down the stairs and inflicting mortal wounds in the living room. Defendant argued that consecutive sentences were not permissible because the crimes were part of a continuing course of criminal conduct that was formulated, according to the People, before he entered the victim’s apartment. The court, upon resentencing, sentenced defendant to a term of imprisonment of 54 years to life, with the concurrent sentences on the two burglary convictions imposed consecutively to his sentence on the intentional murder conviction.

Upon defendant’s appeals from the judgment of conviction and resentence, the Appellate Division affirmed, with two Justices dissenting (126 AD3d 1286 [4th Dept 2015]). While stating that “the actus reus elements of the burglary counts and the murder count overlap under the facts presented here,” the Court “nevertheless conclude [d] that the People ‘establish [ed] the legality of consecutive sentencing by showing that the “acts or omissions” committed by defendant were separate and distinct acts’ ” (id. at 1289, quoting People v Laureano, 87 NY2d 640, 643 [1996]). In contrast, the dissenting Justices concluded that “the People failed to meet their burden of establishing that the burglary and murder offenses were committed by separate and distinct acts,” based upon their view that “it is possible” that the wound or wounds that the victim sustained while upstairs may have ultimately caused her death (id. at 1291-1292). One of the dissenting Justices granted defendant leave to appeal.

I — I HH

Penal Law § 70.25 authorizes a trial judge to direct that sentences run either concurrently or consecutively except that

“[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently” (Penal Law § 70.25 [2]).

In other words, under section 70.25 (2), “sentences imposed for two or more offenses may not run consecutively: (1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element of the other” (Laureano, 87 NY2d at 643).

In determining whether consecutive sentences are authorized, “a court must first look to the statutory definitions of the crimes at issue to discern whether the actus reus elements overlap” (People v Rodriguez, 25 NY3d 238, 244 [2015] [internal quotation marks and citation omitted]; see People v Couser, 28 NY3d 368, 375 [2016]). “Reference to the fact-specific circumstances and proof of a crime to determine whether, under the second statutory prong, one offense is a material element of a second is not the test for consecutive sentencing purposes” (People v Day, 73 NY2d 208, 211 [1989]). Rather, “the commission of one offense is a material element of a second for restrictive sentencing purposes if, by comparative examination, the statutory definition of the second crime provides that the first crime is also a necessary component in the legislative classification and definitional sense” {id.).

Moreover, even “[i]f the statutory elements do overlap under either prong of the statute, the People may yet establish the legality of consecutive sentencing by showing that the ‘acts or omissions’ committed by defendant were separate and distinct acts” (Laureano, 87 NY2d at 643; accord People v McKnight, 16 NY3d 43, 48 [2010]). That rule applies even though the separate and distinct acts “are part of a single transaction” (Couser, 28 NY3d at 376 [internal quotation marks and citation omitted]), because “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent” (McKnight, 16 NY3d at 49 [internal quotation marks and citations omitted]). In short, “consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct” (People v Ramirez, 89 NY2d 444, 451 [1996]); “[c]onversely, where the actus reus is a single inseparable act that violates more than one statute, [a] single punishment must be imposed” (Rodriguez, 25 NY3d at 244 [internal quotation marks and citation omitted]).

This Court has repeatedly explained that “[t]he People have the burden of establishing the legality of consecutive sentences” (People v Rosas, 8 NY3d 493, 496 [2007]). In Laureano, the Court stated that the People may meet their burden of demonstrating that the facts underlying the crimes are separate and distinct “by identifying the facts which support their view . . . from the . . . record” (Laureano, 87 NY2d at 644; accord Rodriguez, 25 NY3d at 244). In contrast, where “the People are unable to point to any testimony or evidence which would support the view that the offenses of which defendant stands convicted involved disparate or separate acts, the sentences must run concurrently” (People v Underwood, 52 NY2d 882, 883 [1981]).

III.

“when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime: . . .
“[clauses physical injury to any person who is not a participant in the crime; or . . .
“[u]ses or threatens the immediate use of a dangerous instrument” (Penal Law § 140.30 [2], [3]).

The actus reus element of the burglary charge predicated upon the use or threatened use of a dangerous instrument does not, by definition, overlap with the actus reus of murder in the second degree. In contrast, defendant correctly argues that there is an overlap in the actus reus elements of murder in the second degree and the burglary count in which the aggravating factor was causing physical injury. “By definition, the act of causing death is subsumed within the element of causing . . . physical injury” (Laureano, 87 NY2d at 644; see Penal Law § 10.00 [9], [10]) and, thus, the act constituting murder here was a material element of that burglary count. The People therefore concede that, with respect to the latter burglary charge, they were required to identify facts establishing that defendant committed this offense and murder through separate and distinct acts. Because “the People offer[ed] evidence of the existence of . . . separate and distinct act[s]” with respect to that count of burglary in the first degree — indeed, with respect to both counts — “the trial court ha[d] discretion to order consecutive sentences” (Couser, 28 NY3d at 377).

Specifically, the evidence of a small amount of blood upstairs, as compared with the large amount downstairs, supports the determination of the courts below that defendant used a dangerous instrument to cause physical injury to the victim upstairs, and then — as he admitted — “dragged her down the stairs and murdered her” in a separate and distinct act (see People v Brown, 80 NY2d 361, 365 [1992]). The scenario posited by defendant would have required that the victim barely bled in the location where she sustained a stab wound that sliced or punctured one of her internal organs, but that she bled profusely in a different location. Under these circumstances, we cannot say as a matter of law that the conduct resulting in defendant’s conviction of intentional murder and the conduct underlying the elements of the burglary convictions was a single act for consecutive sentencing purposes (see People v Salcedo, 92 NY2d 1019, 1022 [1998]).

Defendant’s argument that he received the ineffective assistance of counsel has been considered and found to be lacking in merit. His remaining claim was not preserved for our review. Accordingly, the orders of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Fahey, Garcia and Wilson concur.

Orders affirmed.


author: Rivera, J. Fahey, J.

text:
    [74 NE3d 302, 52 NYS3d 63]
    The People of the State of New York, Respondent, v Thomas Jackson, Appellant.
    Argued February 8, 2017;
    decided March 28, 2017

      POINTS OF COUNSEL

      Mitch Kessler, Cohoes, for appellant.

      Robert M. Carney, District Attorney, Schenectady {Peter H. Willis of counsel), for respondent.
   OPINION OF THE COURT

Rivera, J.

Defendant Thomas Jackson alleges that his conviction should be reversed because the trial court issued an erroneous Sandoval ruling and denied his right to be present at a sidebar conference during jury selection. Defendant’s first challenge is unpre-served and his second ground for reversal is unreviewable as he validly waived the right he now seeks to assert.

Defendant was prosecuted on charges arising from unrelated sexual attacks on two female acquaintances. Before trial, the People moved for permission to question defendant, if he testified, about his prior convictions and bad acts pursuant to People v Sandoval (34 NY2d 371 [1974]), or for an appropriate Sandoval compromise. As relevant to this appeal, the People sought to ask about a juvenile delinquency adjudication for offenses, which, if committed by an adult, constituted robbery in the second and third degrees.

At a combined Sandoval/Molineux hearing, defendant opposed the request “simply because they are juvenile offenses” and a young offender’s mind and sense of values are not well formed. Although the People only sought to question defendant regarding the underlying facts of the adjudications, the court ruled that, as to one of the offenses, the People could elicit the fact that defendant was adjudicated a juvenile delinquent and received one year of probation, but not the facts underlying the adjudication. Defendant did not object to the compromise ruling.

At a subsequent hearing held pursuant to People v Antommarchi (80 NY2d 247 [1992]), the court informed defendant that he had a right to be present during sidebar conversations, but that he would be accompanied by court officers since he was in custody, and this would reveal his custodial status to the jury. The court further informed defendant that he could waive the right to be present during sidebar conversations to avoid this consequence and explained the nature of such a waiver. The court assured him that, “even if you sign the waiver, you can come up at any time” and “you can revoke the waiver at any time.” The record establishes that defendant and his attorney had two off-the-record conversations regarding the waiver. Defendant then signed the written waiver, attesting that, “having been informed of his right to be present during sidebar discussions with prospective jurors and/or discussions of law, and after consulting with his attorney,” defendant “gives up his right to be present.”

Defendant was convicted of predatory sexual assault and criminal sexual act in the first degree. Thereafter, the court imposed a sentence of 25 years to life upon his predatory sexual assault conviction to run concurrently with a sentence of 25 years upon his criminal sexual act conviction, and 25 years postrelease supervision, an order of protection, and fines.

The Appellate Division affirmed the judgment concluding, inter alia, that the Sandoval ruling on the juvenile delinquency adjudication was harmless error and the defendant validly waived his right to be present at sidebar conferences (128 AD3d 1181 [2015]). A Judge of this Court granted leave to appeal (26 NY3d 1089 [2015]) and we now affirm.

Defendant claims that the trial court erroneously ruled that the People could elicit on cross-examination the existence of his juvenile delinquency adjudication, and that such error is not harmless. He also asserts that the court failed to secure a valid waiver of his right to be present at a sidebar conference during which he was excluded from the questioning of a prospective juror regarding her potential bias.

As with other questions of law concerning a ruling or instruction, a challenge based on a Sandoval error must be preserved for appellate review by a specific, timely objection (People v Cantave, 21 NY3d 374, 378 [2013]; People v Gray, 86 NY2d 10, 20-21 [1995]; CPL 470.05 [2]). “To preserve an issue for review, counsel must register an objection and apprise the court of grounds upon which the objection is based ‘at the time’ of the allegedly erroneous ruling ‘or at any subsequent time when the court had an opportunity of effectively changing the same’ ” (Cantave, 21 NY3d at 378, quoting CPL 470.05 [2]). The salutary goal of this well-established preservation requirement is to avoid the need for an appeal and “provide the opportunity for cure before a verdict is reached and a cure is no longer possible” (People v Gray, 86 NY2d 10, 20-21 [1995]; see People v Michael, 48 NY2d 1, 6 [1979] [the requirement is “grounded in large part in the need to preserve limited judicial resources and avoid untoward delay in the resolution of criminal proceedings”]).

Under the unique factual circumstances of this case and based on the trial court’s colloquy with counsel, we conclude that defendant’s challenge to the Sandoval ruling is unpre-served. Defendant did not make the argument he now asserts at the time of the alleged erroneous ruling, or at any time at all. Instead, he argued, against the People’s initial proffer, that the court should deny the request because defendant’s actions should not be judged based on a young offender’s undeveloped mind and sense of values. Defendant failed to argue that it would be legal error to permit the People to elicit that defendant was adjudicated a juvenile delinquent (see People v Greer, 42 NY2d 170, 176 [1977]; People v Gray, 84 NY2d 709, 712 [1995]). Defendant did not make that argument before or after the compromise ruling, or at any point during the proceedings “when the court had the ‘opportunity of effectively changing’ its ruling” (Cantave, 21 NY3d at 379) and avoiding the error of which defendant now complains.

Nor, as defendant contends, is the specific issue preserved under CPL 470.05 (2) because the trial court ruled on the legal merits of his claim in response to a protest. Under CPL 470.05 (2), an issue is preserved “if in re[s]ponse to a protest by a party, the court expressly decided the question raised on appeal.” At the colloquy, defendant objected not on grounds of a legal prohibition, but on the basis that juveniles have not achieved the equivalent mental and social development of adults. The People consistently requested permission to inquire as to the underlying facts, and neither the defendant nor the People ever registered a complaint to the court’s ruling. Without defendant’s objection the court had no way of knowing that defendant believed the court’s ultimate decision was erroneous. The trial judge, therefore, had no opportunity to “specifically confront [ ] and resolve [ ]” the issue defendant raises on appeal (People v Feingold, 7 NY3d 288, 290 [2006]). Given these circumstances, we cannot say that the trial court “expressly decided,” meaning that it considered, whether its Sandoval compromise was objectionable to the parties (see People v Graham, 25 NY3d 994, 997 [2015] [finding the trial court’s decision was not “focused” on the issue raised on appeal and therefore that issue was not “expressly decided”]; People v Smith, 22 NY3d 462, 465 [2013]).

It would be a different case if defendant specifically objected to points raised in the proffer and the court ruled in the People’s favor, on the precise grounds cited by the People. In such case defendant’s argument might fit within the language of CPL 470.05 (2), rendering it unnecessary for a defendant to register an objection after the ruling (see People v Finch, 23 NY3d 408, 416 [2014]). However, where, as here, the ruling is not at all what the People requested, defendant must make the court aware of an objection to that ruling.

Defendant’s additional claim that he was denied his right to be present at a sidebar conference regarding the potential bias of a prospective juror is not reviewable as he waived his right. Under section 260.20 of the CPL, “[a] defendant must be personally present during the trial of an indictment.” In People v Antommarchi, this Court held that a court cannot “explore prospective jurors’ backgrounds and their ability to weigh the evidence objectively unless defendant is present” (80 NY2d at 250). However, a defendant may waive the right to be present at sidebar (People v Vargas, 88 NY2d 363, 375-376 [1996]).

Here, the court informed defendant of his right to be present at sidebar conferences, defendant consulted with his attorney regarding the waiver of this right, his attorney indicated that defendant understood the waiver and would sign it, and defendant signed a clearly worded waiver form. During the court’s discussion with defendant regarding the waiver, the court went so far as to inform defendant that “even if you sign the waiver, you can come up at any time.” Under these circumstances, defendant validly waived his rights.

To the extent defendant argues that his off-the-record conversations with counsel did not sufficiently apprise him of his rights, he relies on matters dehors the record and beyond review by this Court on direct appeal. Such claims are more appropriately considered on a CPL 440.10 motion (People v Brown, 17 NY3d 863, 866 [2011]).

The Appellate Division order should be affirmed.

Fahey, J.

(concurring). I agree with the majority that defendant’s waiver of his Antommarchi rights was valid. I respectfully disagree, however, with the conclusion that defendant’s challenge to the trial court’s Sandoval ruling is not preserved for appellate review.

Before trial, the People requested permission to impeach defendant’s credibility if he chose to testify with, among other things, the facts underlying two juvenile delinquency adjudications. Defense counsel objected during the Sandoval hearing, arguing that the court should “exclude them simply because they are juvenile offenses,” and because “an individual’s mind and sense of values . . . are not well formed as a juvenile.” In response, the prosecutor informed the court that “the Court of Appeals has said that the court can allow inquiry not necessarily into the fact that somebody was adjudicated a delinquent but can go into the . . . facts and circumstances surrounding the actions of the defendant.”

Despite this explanation from the People, with respect to the first adjudication, the court ruled that the prosecutor could question defendant about the fact that he was adjudicated a juvenile delinquent in response to the charge of robbery in the second degree and that the adjudication resulted in a year of probation. Defense counsel said nothing further with respect to the court’s ruling on that adjudication.

Defendant now contends that the court’s Sandoval ruling was erroneous insofar as the court held that the People could question defendant about the fact that he was adjudicated a juvenile delinquent (see People v Gray, 84 NY2d 709, 712 [1995]; People v Greer, 42 NY2d 170, 176 [1977]). The Appellate Division concluded that the trial court erred, but that the error is harmless (see People v Jackson, 128 AD3d 1181, 1182-1183 [3d Dept 2015]).

Although defense counsel’s initial objection alone was not sufficiently specific to preserve his contention for appellate review, the prosecutor thereafter correctly informed the court that defendant’s juvenile delinquency adjudication could not be used for impeachment purposes and that only the facts and circumstances underlying the offense were the proper subject of impeachment. The court nevertheless held essentially the opposite: that the prosecutor could question defendant, if he testified, about the fact that he was adjudicated a juvenile delinquent, but not the facts and circumstances underlying the offense. Although defendant’s initial protest was general, the trial court “expressly decided the question raised on appeal” (CPL 470.05 [2]; see People v Smith, 22 NY3d 462, 465 [2013]; People v Prado, 4 NY3d 725, 726 [2004], rearg denied 4 NY3d 795 [2005]). Defendant’s contention is therefore preserved for appellate review.

The People correctly concede that the trial court’s Sandoval ruling was erroneous (see Gray, 84 NY2d at 712). Under the circumstances of this case, however, I agree with the Appellate Division that the trial court’s Sandoval ruling is harmless error (see People v Grant, 7 NY3d 421, 424-426 [2006]). I therefore concur in the result.

Chief Judge DiFiore and Judges Stein, Garcia and Wilson concur; Judge Fahey concurs in result in a separate concurring opinion in which Judge Abdus-Salaam concurs.

Order affirmed.

      . In order to “strik[e] a balance between the probative value of the prior convictions and the risk of prejudice” a trial court may “permit cross-examination only as to the existence of prior convictions, not their Penal Law names (‘nature’) or underlying circumstances. . . . This balancing has long been called the ‘Sandoval compromise’ ” (People v Smith, 18 NY3d 588, 597 [2012, Pigott, J., concurring]).

      . The trial court also ruled that the People could not elicit any testimony regarding another juvenile delinquency adjudication and rendered compromise rulings regarding several prior adult convictions. Defendant does not challenge any of these Sandoval rulings.

      . Defendant is incorrect when he claims that the People forfeited their preservation argument by not raising it in the Appellate Division. This Court may consider any question of law “regardless of whether such question was raised, considered or determined upon the appeal to the intermediate appellate court” (CPL 470.35 [1]; 470.05 [2]; see People v Baumann & Sons Buses, Inc., 6 NY3d 404, 406-407 [2006]).