Appellate division : fourth judicial department decisions filed


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KA 14-02215  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
GARY L. CARR, DEFENDANT-APPELLANT.
                          
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KRISTIN M. PREVE OF
COUNSEL), FOR DEFENDANT-APPELLANT.  
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (MICHAEL
J. HILLERY OF COUNSEL), FOR RESPONDENT.                                
                          
Appeal from a judgment of the Supreme Court, Erie County (M.
William Boller, A.J.), rendered November 26, 2014.  The judgment
convicted defendant, upon his plea of guilty, of attempted assault in
the first degree.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him
upon his plea of guilty of attempted assault in the first degree
(Penal Law §§ 110.00, 120.10 [1]).  Contrary to defendant’s
contention, his waiver of the right to appeal “was not rendered
invalid based on [Supreme Court]’s failure to require defendant to
articulate the waiver in his own words” (People v Dozier, 59 AD3d 987,
987, lv denied 12 NY3d 815; cf. People v Ramos, 152 AD2d 209, 211-
212), and defendant’s “responses during the plea colloquy and his
execution of a written waiver of the right to appeal establish that he
intelligently, knowingly, and voluntarily waived his right to appeal”
(People v Rumsey, 105 AD3d 1448, 1449, lv denied 21 NY3d 1019; see
generally People v Sanders, 25 NY3d 337, 340-341).  The valid waiver
of the right to appeal encompasses defendant’s challenge to the
severity of the sentence (see People v Lopez, 6 NY3d 248, 256).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1096    
KA 10-00652  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
DAVID G. COX, DEFENDANT-APPELLANT. 
                         
JEFFREY WICKS, PLLC, ROCHESTER (CHARLES STEINMAN OF COUNSEL), FOR
DEFENDANT-APPELLANT.  
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ROBERT J. SHOEMAKER OF
COUNSEL), FOR RESPONDENT.                                              
                
Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered January 19, 2010.  The judgment
convicted defendant, after a nonjury trial, of criminal sexual act in
the first degree (two counts).  
It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal sexual act in the first degree under the third
count of the indictment and dismissing that count without prejudice to
the People to re-present any appropriate charges under that count of
the indictment to another grand jury, and as modified the judgment is
affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him
following a nonjury trial of two counts of criminal sexual act in the
first degree (Penal Law § 130.50 [1]).  We agree with defendant that
the third count of the indictment, charging defendant with engaging in
anal sexual contact with the complainant by forcible compulsion, was
rendered duplicitous by the complainant’s testimony (see People v
Levandowski, 8 AD3d 898, 899-900; People v Davila, 198 AD2d 371, 373). 
The complainant testified that the acts of anal sexual contact
occurred “more than once” over the course of a two-hour incident, and,
contrary to the People’s contention, such acts did not constitute a
continuous offense (see People v Keindl, 68 NY2d 410, 420-421, rearg
denied 69 NY2d 823), but rather were separate and distinct offenses
(see People v Russell, 116 AD3d 1090, 1091; see also People v Garcia,
141 AD3d 861, 865, lv denied 28 NY3d 929).  We therefore modify the
judgment accordingly (see Keindl, 68 NY2d at 423).
We reject defendant’s contention that Supreme Court erred in
refusing to substitute new appointed counsel, inasmuch as defendant’s
complaints concerning counsel concerned only disagreements over

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KA 10-00652  
strategy (see People v Rupert, 136 AD3d 1311, 1311, lv denied 27 NY3d
1075), or his lack of trust in appointed counsel without a showing of
good cause therefor (see People v Sawyer, 57 NY2d 12, 19, rearg
dismissed 57 NY2d 776, cert denied 459 US 1178).  Viewing the evidence
in light of the elements of criminal sexual act in the first degree
under the second count of the indictment in this nonjury trial (see
People v Danielson, 9 NY3d 342, 349), we conclude that the verdict on
that count is not against the weight of the evidence (see generally
People v Bleakley, 69 NY2d 490, 495).  The court was entitled to
credit the complainant’s testimony that defendant forced her to have
sexual contact and to reject defendant’s testimony that such contact
was consensual (see People v Cooper, 72 AD3d 1552, 1552, lv denied 15
NY3d 803, reconsideration denied 15 NY3d 892).  Finally, contrary to
defendant’s contention, we conclude that the court did not abuse its
discretion in refusing to direct production of the complainant’s
psychiatric records for its in camera review.  There was no showing
that the complainant’s psychiatric history had any bearing on her
ability to perceive or recall the incident (see People v Tirado, 109
AD3d 688, 689, lv denied 22 NY3d 959, reconsideration denied 22 NY3d
1091, cert denied ___ US ___, 135 S Ct 183; People v Duran, 276 AD2d
498, 498), nor was there any other basis for concluding that the
confidentiality of her psychiatric records was significantly
outweighed by the interests of justice (see People v Felong, 283 AD2d
951, 952; Duran, 276 AD2d at 498).  
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1097    
KA 16-00767  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
KURY S. SPENCER, DEFENDANT-APPELLANT.                       
(APPEAL NO. 1.)   
                                          
THE LAW OFFICES OF PETER K. SKIVINGTON, PLLC, GENESEO (PETER R.
CHANDLER OF COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.         
        
Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered July 28, 2011.  The order directed defendant to
pay restitution.  
It is hereby ORDERED that the order so appealed from is
unanimously affirmed. 
Memorandum:  Defendant was convicted upon a jury verdict of,
inter alia, two counts of assault in the second degree (People v
Spencer, 108 AD3d 1081, lv denied 22 NY3d 1159).  After bifurcating
the sentencing proceeding and conducting a separate restitution
hearing (see generally People v Connolly, 100 AD3d 1419, 1419), County
Court ordered defendant to pay $74,491.37 (appeal No. 1).  The order
was mailed by the court to defense counsel and entered with the court
clerk on July 28, 2011.  Defendant filed a notice of appeal dated
August 2, 2011.  By order entered August 17, 2015, the court converted
the order of restitution to a civil judgment (appeal No. 2). 
Defendant now appeals from both orders.
We reject the People’s contention that appeal No. 1 should be
dismissed for failure to perfect the appeal in a timely manner. 
“[S]ervice by the prevailing party is necessary under CPL 460.10 in
order to commence the time period for the other party to take an
appeal” (People v Washington, 86 NY2d 853, 854).  Here, the record
establishes that defendant’s attorneys received a copy of the order in
appeal No. 1 and promptly filed a notice of appeal, but there is no
evidence that the People ever served the order as required by CPL
460.10 (1) (a).  Inasmuch as “the record fails to establish that [the
People] ever served [defendant] with a copy of the order or with
notice of entry . . . , [defendant’s] 30-day period to appeal County
Court’s order never began to run” (People v Aubin, 245 AD2d 805, 806;
see Washington, 86 NY2d at 854-855).  We agree with the People,

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KA 16-00767  
however, that appeal No. 2 should be dismissed inasmuch as no appeal
as of right or by permission lies from that order (see generally CPL
450.10, 450.15; People v Fricchione, 43 AD3d 410, 411).
We reject defendant’s contention that the court erred in ordering
restitution.  “Restitution is ‘the sum necessary to compensate the
victim for out-of-pocket losses’ ” (People v Tzitzikalakis, 8 NY3d
217, 220; see Penal Law § 60.27 [1]).  “[R]estitution serves the dual,
salutary purposes of easing the victim’s financial burden while
reinforcing the offender’s sense of responsibility for the offense and
providing a constructive opportunity for the offender to pay his or
her debt to society” (People v Horne, 97 NY2d 404, 411).  Defendant’s
conviction stemmed from his conduct in operating a motor vehicle and
colliding head-on with another vehicle, causing serious physical
injuries to two victims.  Contrary to defendant’s contention, the
People met their burden of establishing the victims’ out-of-pocket
medical and other costs incurred as a result of defendant’s conduct by
a preponderance of the evidence (see People v Tuper, 125 AD3d 1062,
1062, lv denied 25 NY3d 1078; People v Pugliese, 113 AD3d 1112, 1112-
1113, lv denied 23 NY3d 1066; People v Howell, 46 AD3d 1464, 1465, lv
denied 10 NY3d 841).  
Contrary to defendant’s further contention, the court was not
required to offset the amount of restitution by the settlement
received by the victims in their lawsuit against defendant and his
father, who owned the vehicle that defendant was operating at the time
of the accident.  An award of restitution must take into account any
benefit received by the victim and include appropriate offsets (see
Tzitzikalakis, 8 NY3d at 220-221).  Here, the court credited the
testimony of the victims’ attorney that the settlement was limited to
damages for pain and suffering and did not encompass any out-of-pocket
costs incurred by the victims.  Indeed, on this record we conclude
that to allow an offset, which would effectively eliminate
restitution, would result in defendant avoiding “pay[ing] his . . .
debt to society” (Horne, 97 NY2d at 411).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1098    
KA 16-00823  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
KURY S. SPENCER, DEFENDANT-APPELLANT.                       
(APPEAL NO. 2.) 
                                            
THE LAW OFFICES OF PETER K. SKIVINGTON, PLLC, GENESEO (PETER R.
CHANDLER OF COUNSEL), FOR DEFENDANT-APPELLANT.
ERIC R. SCHIENER, SPECIAL PROSECUTOR, GENESEO, FOR RESPONDENT.         
        
Appeal from an order of the Livingston County Court (Dennis S.
Cohen, J.), entered August 17, 2015.  The order converted an order of
restitution to a civil judgment.  
It is hereby ORDERED that said appeal is unanimously dismissed.
Same memorandum as in People v Spencer ([appeal No. 1] ___ AD3d
___ [Dec. 23, 2016]).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1099    
KA 14-00192  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
BRANDON W. BOX, DEFENDANT-APPELLANT.
                        
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF
COUNSEL), FOR DEFENDANT-APPELLANT.  
BRANDON W. BOX, DEFENDANT-APPELLANT PRO SE.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.                                              
                     
Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered December 11, 2013.  The judgment convicted
defendant, upon a jury verdict, of identity theft in the first degree
and falsifying business records in the first degree.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him,
following a jury trial, of identity theft in the first degree (Penal
Law § 190.80 [1]) and falsifying business records in the first degree
(§ 175.10), based on allegations that he applied for a credit card in
his grandfather’s name and then either he or his accomplice used that
credit card to make over $2,000 in cash withdrawals or gift card
purchases at two different Wal-Mart stores over the course of one
week.  To the extent that defendant contends that the evidence is
legally insufficient to establish that the multiple uses of the credit
card were part of a single, intentional crime as opposed to separate
and distinct lesser crimes, we conclude that defendant failed to
preserve that contention for our review by a timely motion to dismiss
directed at that specific deficiency in the proof (see People v Gray,
86 NY2d 10, 19).  Were we to reach the merits of that contention, we
would conclude that there is sufficient evidence that the repeated use
of the credit card “was governed by a single intent and a general
illegal design” (People v Cox, 286 NY 137, 143, rearg denied 286 NY
706). 
In his pro se supplemental brief, defendant contends that the
evidence is legally insufficient to establish that he assumed his
grandfather’s identity.  That contention is also not preserved for our

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1099    
KA 14-00192  
review (see Gray, 86 NY2d at 19) and, in any event, we conclude that
it lacks merit (see People v Yuson, 133 AD3d 1221, 1222, lv denied 27
NY3d 1157). 
Contrary to defendant’s contention, viewing the evidence in light
of the elements of the crimes as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we conclude that the verdict is not
against the weight of the evidence with respect to defendant’s intent
to defraud, an element of both offenses (see generally People v
Bleakley, 69 NY2d 490, 495).  Although the grandfather did not
testify, the evidence at trial established that defendant lacked the
grandfather’s permission to apply for and use the credit card, thereby
establishing that defendant acted with an intent to defraud. 
Defendant filed the application in the predawn hours of January 18,
2013 and, although he testified that he filed the application in the
presence of and with the permission of his grandfather, defendant’s
sister, with whom the grandfather lived, testified that defendant did
not visit his grandfather during the entire month of January 2013. 
Moreover, the accomplice testified that defendant filed the
application online at his own residence without the grandfather’s
knowledge or consent.  Defendant and the accomplice admitted at trial
that they made over $1,000 in cash withdrawals and that they used that
money to buy crack cocaine.  From documentary exhibits and the
accomplice’s testimony, the People established that defendant and the
accomplice purchased over $1,000 in gift cards, which they traded for
crack cocaine.  In a recorded telephone call with his mother,
defendant attempted to ensure that the grandfather would not testify
at trial, which would be illogical if, in fact, defendant had the
grandfather’s permission to apply for and use the credit card.
Defendant failed to preserve for our review his contention that
Supreme Court improperly limited defense counsel’s summation (see
People v Kimmy, 137 AD3d 1723, 1723-1724, lv denied 27 NY3d 1134;
People v Gong, 30 AD3d 336, 336, lv denied 7 NY3d 812), and we decline
to exercise our power to review that contention as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [a]). 
Moreover, although defendant contends that the prosecutor improperly
shifted the burden of proof during summation, we conclude that
reversal is not warranted because the prosecutor’s “single improper
comment was not so egregious that defendant was thereby deprived of a
fair trial” (People v Willson, 272 AD2d 959, 960, lv denied 95 NY2d
873).  We note that the court “sustained defendant’s objection to the
improper comment and instructed the jury to disregard it, and the jury
is presumed to have followed the court’s instructions” (People v
Smalls, 100 AD3d 1428, 1430, lv denied 21 NY3d 1010).
Defendant contends that the indictment was duplicitous and
multiplicitous and, further, that the testimony at trial rendered the
indictment duplicitous.  The Court of Appeals has unequivocally held
that “issues of non-facial duplicity, like those of facial duplicity,
must be preserved for appellate review,” and defendant failed to do so
by either a motion to dismiss the indictment or an objection at trial
(People v Allen, 24 NY3d 441, 449-450; see People v Rivera, 133 AD3d
1255, 1256, lv denied 27 NY3d 1154).  Defendant likewise failed to

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1099    
KA 14-00192  
preserve for our review his multiplicity contention “inasmuch as [he]
failed to challenge the indictment on that ground” (People v Fulton,
133 AD3d 1194, 1194, lv denied 26 NY3d 1109, reconsideration denied 27
NY3d 997; see People v Morey, 224 AD2d 730, 731, lv denied 87 NY2d
1022).  We decline to exercise our power to review those contentions
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). 
With respect to count two, charging defendant with falsifying
business records in the first degree (Penal Law § 175.10), defendant
contends that this count impermissibly “double counts” defendant’s
single criminal intent in violation of People v Cahill (2 NY3d 14). 
We reject that contention.  Section 175.10 provides that a person is
guilty of falsifying business records in the first degree if he or she
commits the crime of falsifying business records in the second degree
and “his [or her] intent to defraud includes an intent to commit
another crime or to aid or conceal the commission thereof.”  Defendant
thus contends that his intent to defraud in using the credit card was
“not meaningfully independent of his intent to defraud through
commission (or concealment) of the identity theft associated with
gaining the credit card.” 
Defendant’s reliance on Cahill in support of that contention is
misplaced.  In Cahill, the defendant was charged with murder in the
first degree under Penal Law § 125.27 (1) (a) (vii), based on the
aggravating factor that the victim was killed during the commission of
a burglary.  In that case, the crime the defendant intended to commit
for purposes of the underlying burglary was the murder of the victim,
and the Court thus held that, “[i]f the burglar intends only murder,
that intent cannot be used both to define the burglary and at the same
time bootstrap the second degree (intentional) murder to a capital
crime” (id. at 65).  In short, the intent to commit murder could not
serve as both the basis for the crime (intentional murder) as well as
the basis for the aggravating factor (burglary committed with the
intent to commit the crime of murder) for the same murder charge.  To
do so would “double count” the same criminal intent in a single
charge.  Here, however, defendant’s intent to commit a crime, an
element of falsifying business records in the first degree, was the
intent to commit the separate and distinct crime of identity theft. 
We thus conclude that, even if defendant’s intent to defraud was the
same in both charges, the indictment did not impermissibly double-
count that intent in a single charge. 
Also with respect to count two, defendant contends that the
court’s instruction on that charge violated the rule of People v
Gaines (74 NY2d 358) and may have resulted in a lack of unanimity in
the verdict in violation of People v McNab (167 AD2d 858).  Because
defendant failed to object to the charge as given, we conclude that
those contentions are not preserved for our review (see Allen, 24 NY3d
at 449; People v Curella, 296 AD2d 578, 578; People v Nelson, 186 AD2d
1068, 1068, lv denied 81 NY2d 764), and we decline to exercise our
power to review those contentions as a matter of discretion in the
interest of justice (see CPL 470.15 [6] [a]). 

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1099    
KA 14-00192  
Throughout the proceedings in the trial court, defendant
requested a substitution of counsel, contending that defense counsel
was operating under a conflict of interest because another attorney in
the Public Defender’s office had previously represented the accomplice
on unrelated charges.  In both his main and pro se supplemental
briefs, defendant contends that the court erred in refusing to
substitute counsel and in deferring to defense counsel’s conclusion
that there was no conflict of interest.  We reject defendant’s
contentions.  A review of the record establishes that the court made
the requisite minimal inquiry (see People v Porto, 16 NY3d 93, 99-101;
People v Sides, 75 NY2d 822, 824-825), and properly concluded that
there was no basis to substitute counsel where, as here, defendant
failed to “show that the conduct of his defense was in fact affected
by the operation of the conflict of interest” (People v Bones, 309
AD2d 1238, 1240, lv denied 1 NY3d 568 [internal quotation marks
omitted]; see People v Harris, 99 NY2d 202, 210; People v Weeks, 15
AD3d 845, 847, lv denied 4 NY3d 892). 
In both his main and pro se supplemental briefs, defendant
contends that he was denied effective assistance of counsel based on
defense counsel’s failure to make various motions or requests. 
Although defense counsel failed to make certain motions, “[t]here can
be no denial of effective assistance of trial counsel arising from
counsel’s failure to ‘make a motion or argument that has little or no
chance of success’ ” (People v Caban, 5 NY3d 143, 152), and
“[d]efendant . . . failed to demonstrate a lack of strategic or other
legitimate explanations for defense counsel’s alleged ineffectiveness
in . . . failing to request” certain jury instructions, including a
missing witness charge (People v Hicks, 110 AD3d 1488, 1489, lv denied
22 NY3d 1156; see People v Myers, 87 AD3d 826, 828, lv denied 17 NY3d
954; see generally People v Benevento, 91 NY2d 708, 712).  To the
extent that defendant contends in his pro se supplemental brief that
defense counsel lost a video containing exculpatory evidence, that
contention is based on matters outside the record and must be raised
by a motion pursuant to CPL article 440 (see People v Weaver, 118 AD3d
1270, 1272, lv denied 24 NY3d 965).
Defendant contends in his pro se supplemental brief that he was
entitled to dismissal of the indictment based on an alleged
Payton violation; that defense counsel was ineffective in failing to
request a hearing on that alleged violation; and that the court erred
in denying his pro se motions seeking such a hearing.  Defendant’s
contentions are wholly lacking in merit.  Even assuming, arguendo,
that defendant was arrested in his home without a warrant in violation
of Payton, we recognize that the remedy for such a violation would not
be dismissal of the indictment but, rather, suppression of any
evidence obtained from defendant following that violation “unless the
taint resulting from the violation has been attenuated” (People v
Harris, 77 NY2d 434, 437).  Inasmuch as there was no evidence that
could be said to be a “ ‘product of’ the alleged Payton violation,”
there was nothing to suppress and thus no basis to hold a Payton
hearing (People v Jones, 38 AD3d 1272, 1273, lv denied 9 NY3d 866,
quoting New York v Harris, 495 US 14, 19).

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1099    
KA 14-00192  
Although defendant correctly contends in both his main and pro se
supplemental briefs that the court erred in refusing to instruct the
jury on corroboration (see CPL 60.22), “in light of the overwhelming
corroborating proof of defendant’s guilt, the failure to charge the
accomplice rule is harmless error” (People v Kimbrough, 155 AD2d 935,
935, lv denied 75 NY2d 814; see People v Fortino, 61 AD3d 1410, 1411,
lv denied 12 NY3d 925).  Finally, we reject defendant’s contention
that he was not properly sentenced as a second felony offender (see
CPL 400.21).  “The election by defendant to remain silent ‘does not
negate the opportunity accorded him to controvert [the predicate
felony statement]’ . . . , and ‘[u]ncontroverted allegations in the
statement shall be deemed to have been admitted by the defendant’ ”
(People v Neary, 56 AD3d 1224, 1224, lv denied 11 NY3d 928; see CPL
400.21 [3]; People v Woodall, 145 AD2d 921, 921). 
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1100    
KA 15-00432  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,            
                                                            
V
MEMORANDUM AND ORDER
                                                            
FELTON M. OSTEEN, DEFENDANT-APPELLANT. 
                     
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. FLAHERTY, JR., ACTING DISTRICT ATTORNEY, BUFFALO (DANIELLE
E. PHILLIPS OF COUNSEL), FOR RESPONDENT.                               
                                              
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), rendered January 7, 2015.  The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a weapon
in the second degree.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed. 
Memorandum:  Defendant appeals from a judgment convicting him,
upon his plea of guilty, of criminal possession of a weapon in the
second degree (Penal Law § 265.03 [3]).  We reject defendant’s
contention that the gun should have been suppressed as the “fruit of
an illegal stop without probable cause.”  The suppression hearing
testimony demonstrates that the officers were patrolling in the
vicinity of a particular intersection known to them as a high-crime
area when they observed defendant and another man conversing on the
corner adjacent to a vacant lot.  The officers observed the men
looking around them constantly, “their heads on [a] swivel,” until the
men noticed the patrol car, at which point defendant “fixated” on it. 
One of the officers, who recognized defendant from “assisting on a
couple of his previous arrests,” one for narcotics and another for
weapon possession, but who had forgotten defendant’s name, called out
to defendant from the patrol car, asking defendant to provide his
name.  Defendant gave his first name and immediately started walking
toward the patrol car.  At that point, the other officer asked the men
what they were doing, and defendant said, “Nothing.”  Defendant walked
up to and then past the patrol car until he reached its rear bumper,
when he broke out into a run, away from the patrol car.  The second
officer, who had recognized defendant, got out of the patrol car to
see why defendant was running and immediately saw that defendant was
holding a handgun in his right hand.  That officer drew his weapon and
called out for defendant to stop, but defendant did not do so.  That

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1100    
KA 15-00432  
officer gave chase and, right before apprehending defendant in the
backyard of a residence, saw defendant throw the handgun over a fence
into an adjoining yard.  Police subsequently recovered the loaded
handgun from the driveway of that adjoining property.  
We conclude that, in view of their knowledge and observations,
the officers had an “ ‘articulable basis,’ meaning an ‘objective,
credible reason not necessarily indicative of criminality,’ ” to
support their request for information from defendant, including his
name and his purpose for being at that location (People v Valerio, 274
AD2d 950, 951, affd 95 NY2d 924, cert denied 532 US 981, quoting
People v Ocasio, 85 NY2d 982, 985; see generally People v Garcia, 20
NY3d 317, 322; People v De Bour, 40 NY2d 210, 223).  We further
conclude that, when defendant fled from them with a weapon visible in
his hand and disregarded their order to stop, the officers acquired
probable cause, justifying their pursuit, stop, forcible detention,
and arrest of defendant (see People v Martinez, 80 NY2d 444, 447-448;
People v Simmons, 133 AD3d 1275, 1276-1277, lv denied 27 NY3d 1006;
see also People v Sierra, 83 NY2d 928, 929-930).  Because defendant
abandoned the gun during the chase in response to the lawful conduct
of police, he lacks standing to challenge the seizure of the gun from
the adjoining property (see People v Walters, 140 AD3d 1761, 1762, lv
denied 28 NY3d 938; People v Stevenson, 273 AD2d 826, 827; see
generally People v Ramirez-Portoreal, 88 NY2d 99, 110).
Finally, we reject defendant’s contention that the period of
postrelease supervision imposed is unduly harsh and severe.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1101    
KAH 15-00927 
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK EX REL.                 
DEANDRE WILLIAMS, ALSO KNOWN AS DAVID WILLIAMS,             
PETITIONER-APPELLANT,                                       
                                                            
V
MEMORANDUM AND ORDER
                                                            
MICHAEL SHEAHAN, SUPERINTENDENT, FIVE POINTS 
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
                                                            
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.
                   
Appeal from a judgment of the Supreme Court, Seneca County
(Dennis F. Bender, A.J.), entered April 21, 2015 in a habeas corpus
proceeding.  The judgment denied the petition.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum:  Petitioner commenced this proceeding seeking a writ
of habeas corpus on the grounds that the evidence is legally
insufficient to support his conviction of assault in the second degree
(Penal Law § 120.05 [2]), he is actually innocent, and certain errors
were made at trial.  We conclude that Supreme Court properly denied
his petition.  “Habeas corpus relief is not an appropriate remedy for
asserting claims that were or could have been raised on direct appeal
or in a CPL article 440 motion” (People ex rel. Dilbert v Bradt, 117
AD3d 1498, 1498, lv denied 24 NY3d 902 [internal quotation marks
omitted]; see People ex rel. Collins v New York State Dept. of Corr. &
Community Supervision, 132 AD3d 1234, 1235, lv denied 26 NY3d 917). 
Although petitioner contends that he could not raise those grounds on
his direct appeal because he was denied effective assistance of
appellate counsel, we note that this proceeding for a writ of habeas
corpus is not appropriate for raising that contention because his
remedy for ineffective assistance of appellate counsel would be a new
appeal, not immediate release from custody (see People ex rel. Rivera
v Smith, 244 AD2d 944, 944, lv denied 91 NY2d 808).  Rather, that
contention is properly the subject of a motion for a writ of error
coram nobis (see id.).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1102    
KAH 15-01200 
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK EX REL.                 
QUINCY NOLLEY, PETITIONER-APPELLANT,                        
                                                            
V
MEMORANDUM AND ORDER
                                                            
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK 
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 
SUPERVISION, RESPONDENT-RESPONDENT.                                    
            
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF
COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (HEATHER MCKAY OF
COUNSEL), FOR RESPONDENT-RESPONDENT.                                   
                             
Appeal from a judgment of the Supreme Court, Wyoming County
(Michael M. Mohun, A.J.), entered June 23, 2015 in a habeas corpus
proceeding.  The judgment denied and dismissed the petition.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum:  Petitioner appeals from a judgment dismissing his
petition seeking a writ of habeas corpus.  Petitioner failed to
preserve for our review his contention that respondent failed to
discharge his responsibility, pursuant to Correction Law § 601-a, to
notify the sentencing court of the alleged discrepancy between the
sentencing minutes and the sentence and commitment order (see
generally People ex rel. Mitchell v Cully, 63 AD3d 1679, 1679, lv
denied 13 NY3d 708).  In any event, habeas corpus relief is not
available because petitioner would not be entitled to immediate
release based upon respondent’s alleged failure to comply with the
statute (see People ex rel. Shannon v Khahaifa, 74 AD3d 1867, 1867, lv
dismissed 15 NY3d 868).  We decline to exercise our power under CPLR
103 (c) to convert this proceeding into a CPLR article 78 proceeding
to address that unpreserved contention (see Matter of Johnson v
Fischer, 104 AD3d 1004, 1005).  
We likewise reject petitioner’s request that we convert this
proceeding to a CPLR article 78 proceeding and direct that he be
resentenced to correct the alleged discrepancy between the sentencing
minutes and the sentence and commitment order.  Although petitioner
sought that relief in his petition, he failed to join the sentencing
court as a necessary party, and respondent had no authority to alter

-2-
1102    
KAH 15-01200 
the sentence and commitment order (see Matter of Reed v Annucci, 133
AD3d 1334, 1335).  Because respondent is conclusively bound by that
order and his calculation of the sentence is consistent therewith,
petitioner’s remedy, if any, is an appropriate proceeding before the
sentencing court (see Matter of Jackson v Fischer, 132 AD3d 1038,
1039; People ex rel. Davidson v Kelly, 193 AD2d 1140, 1141).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1103    
KAH 16-00167 
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
THE PEOPLE OF THE STATE OF NEW YORK EX REL.                 
RAYMOND CIMINO, PETITIONER-APPELLANT,                       
                                                            
V
ORDER
                                                            
ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK 
STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 
SUPERVISION, RESPONDENT-RESPONDENT.                                    
 
RAYMOND CIMINO, PETITIONER-APPELLANT PRO SE. 
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF
COUNSEL), FOR RESPONDENT-RESPONDENT.                                   
                                               
Appeal from a judgment (denominated order) of the Supreme Court,
Wyoming County (Michael M. Mohun, A.J.), entered January 7, 2016 in a
habeas corpus proceeding.  The judgment denied the petition.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs for reasons stated in the decision
at Supreme Court.
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1105    
CA 16-00547  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
M&T BANK, PLAINTIFF-RESPONDENT,                             
                                                            
V
ORDER
                                                            
RONALD R. BENJAMIN, ALSO KNOWN AS RONALD 
BENJAMIN, ALSO KNOWN AS RONALD R. BENJAMIN, ESQ., 
DEFENDANT-APPELLANT.     
(APPEAL NO. 1.) 
                                            
LAW OFFICE OF RONALD R. BENJAMIN, BINGHAMTON (MARY JANE MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.  
GETMAN & BIRYLA, LLP, BUFFALO (JOSEPH S. MONTAGNOLA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
 
Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered December 23, 2015.  The order, inter alia,
granted the motion of plaintiff for summary judgment.  
It is hereby ORDERED that said appeal is unanimously dismissed
without costs (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988;
Chase Manhattan Bank, N.A. v Roberts & Roberts, 63 AD2d 566, 567; see
also CPLR 5501 [a] [1]).   
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1106    
CA 16-00552  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
M&T BANK, PLAINTIFF-RESPONDENT,                             
                                                            
V
MEMORANDUM AND ORDER
                                                            
RONALD R. BENJAMIN, ALSO KNOWN AS RONALD 
BENJAMIN, ALSO KNOWN AS RONALD R. BENJAMIN, ESQ., 
DEFENDANT-APPELLANT.     
(APPEAL NO. 2.)  
                                           
LAW OFFICE OF RONALD R. BENJAMIN, BINGHAMTON (MARY JANE MURPHY OF
COUNSEL), FOR DEFENDANT-APPELLANT.  
GETMAN & BIRYLA, LLP, BUFFALO (JOSEPH S. MONTAGNOLA OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
 
Appeal from a judgment of the Supreme Court, Erie County (John M.
Curran, J.), entered December 28, 2015.  The judgment awarded
plaintiff money damages.  
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs. 
Memorandum:  In this action by plaintiff lender to collect debts
from defendant borrower, defendant appeals from a statement for
judgment entered in favor of plaintiff.  Upon our review of the
judgment, we conclude that Supreme Court properly granted plaintiff’s
motion for summary judgment on the complaint and dismissal of
defendant’s counterclaim, and denied defendant’s cross motion for,
inter alia, leave to amend his answer and disclosure.  We note with
respect to the cross motion that defendant failed to support the
request for leave to amend the answer with a copy of the “proposed
amended . . . pleading clearly showing the changes or additions to be
made” (CPLR 3025 [b]; see Barry v Niagara Frontier Tr. Sys., 38 AD2d
878, 878).  We further note that, in opposition to the motion and in
support of that part of the cross motion seeking disclosure, defendant
did not demonstrate that “facts essential to justify opposition”
existed but could not then be stated because they were within the
exclusive knowledge and possession of plaintiff (CPLR 3212 [f]; see
HSBC Bank USA, N.A. v Prime, L.L.C., 125 AD3d 1307, 1308).  
With respect to the merits of plaintiff’s motion, we agree with
the court that the Term Note did not evidence a “home loan” within the
meaning of the statute inasmuch as the debt was not “incurred by the
borrower primarily for personal, family, or household purposes” (RPAPL

-2-
1106    
CA 16-00552  
1304 [5] [a] [ii]).  In any event, as noted by the court, this is not
an action for foreclosure of a mortgage.  Thus, the transaction is not
subject to the notice and the judicial conference requirements of
RPAPL 1304 and CPLR 3408 (a).  Finally, we conclude that plaintiff
demonstrated its entitlement to judgment as a matter of law with
regard to defendant’s allegation that he was the victim of predatory
and deceptive lending practices by plaintiff, and defendant failed to
raise a triable issue of fact (see generally Zuckerman v City of New
York, 49 NY2d 557, 562).
Entered:  December 23, 2016
Frances E. Cafarell
Clerk of the Court

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1107    
CA 16-00380  
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.     
                                                            
                                                            
STAMM LAW FIRM AND GREGORY STAMM, ESQ.,                     
PLAINTIFFS-RESPONDENTS,                                     
                                                            
V
MEMORANDUM AND ORDER
                                                            
ROSEMARY LIGOTTI, DEFENDANT-APPELLANT. 
                     
LAW OFFICE OF JOSEPH G. MAKOWSKI, LLC, BUFFALO (JOSEPH G. MAKOWSKI OF
COUNSEL), FOR DEFENDANT-APPELLANT. 
LAW OFFICE OF THOMAS C. PARES, BUFFALO, MAGAVERN MAGAVERN GRIMM LLP
(EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.          
                                                     
Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered May 15, 2015.  The order, inter alia, denied that


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