[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Ashcroft 2024 NY Slip Op 06077 [233 AD3d 1080] December 5, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] (December 5, 2024) The People of the State of New York, Respondent, v Eschell Ashcroft, Appellant. Craig S. Leeds, Albany, for appellant. Emmanuel C. Nneji, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent. Egan Jr., J.P. Appeal from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered June 1, 2018, upon a verdict convicting defendant of the crime of aggravated harassment of an employee by an incarcerated individual. On November 26, 2016, defendant was serving a prison sentence at the Eastern NY Correctional Facility in the Town of Wawarsing, Ulster County and was housed alone in a cell in the Special Housing Unit. That morning, defendant papered over the window to his cell and a feed-up hatch used to provide food to him and refused to respond to correction officers, preventing them from checking in on him and ensuring his safety. At approximately 10:36 a.m., three officers went to the door of defendant's cell, with one knocking on the door and the others crouching near the leg iron hatch on the door in an effort to open it and try and see what was going on inside. While the officers were crouching near the hatch, a liquid was ejected from it and hit the left side of one of them. The officers all believed, and testing later confirmed, that the liquid was urine. As a result of the incident, defendant was charged in an indictment with aggravated harassment of an employee by an incarcerated individual ( see Penal Law former § 240.32). [FN1] Defendant thereafter engaged in motion practice that included unsuccessful applications to dismiss the indictment and for suppression and/or preclusion of statements he made after the incident occurred. The matter then proceeded to a jury trial, at the conclusion of which defendant was found guilty as charged. County Court sentenced defendant, as a second felony offender, to a prison term of 2 1/2 to 5 years that would run consecutively to the prison sentence he was already serving. Defendant appeals. We affirm. At the outset, defendant's contentions that the verdict is not supported by the evidence are meritless. The three correction officers who were outside of the cell solely occupied by defendant when the incident occurred all testified. Their testimony, which was fully corroborated by video footage from nearby security cameras, reflected that a liquid was thrown out of the cell and hit one of the officers crouching near the leg iron hatch. The testimony and video footage indicated that a loud bang was heard from inside the cell around the time that the liquid was thrown out, and the video footage shows both the officers' reaction to the liquid being tossed and the liquid itself on the floor outside of the cell. The video footage and testimony showed that the officers walked away to obtain care for the officer who had been struck, while defendant then began screaming "a lot of obscenities." The witnesses also included a correction sergeant who was in the area about two hours after the incident and testified to overhearing defendant talking to another incarcerated individual through his cell window about "thr[owing] piss on th[e] bitch ass" officer who had been looking through the hatch earlier. The three [*2] officers present for the incident all testified that they believed that the officer had been hit by urine based upon its odor, and a forensic scientist testified that she tested clippings from that officer's shirt and obtained positive results for the presence of urine. We have no difficulty concluding that, to the extent that the issue is preserved, the foregoing proof is legally sufficient to establish that defendant threw urine onto the officer with the requisite "intent to harass, annoy, threaten or alarm a person in a [correctional] facility whom he . . . knows or reasonably should know to be an employee of such facility" (Penal Law § 240.32; see People v Banch , 198 AD3d 1186 , 1189 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]). The jury credited that extensive evidence of guilt over defendant's denials of having thrown any liquid and the lack of proof definitively tying him to DNA on the officer's urine-soaked shirt. [FN2] Viewing the evidence in a neutral light and deferring to the jury's assessment of credibility, we are further satisfied that the verdict is supported by the weight of the evidence in all respects ( see People v Banch , 198 AD3d at 1189; People v Smith , 96 AD3d 1088 , 1088-1089 [3d Dept 2012], lv denied 20 NY3d 936 [2012]). Next, we reject defendant's claim that the indictment was legally insufficient on its face. As County Court noted, the indictment did not explicitly state all of the elements of the charged offense because it failed to allege that defendant was "[a]n inmate" when he engaged in the charged conduct (Penal Law former § 240.32). The indictment did explicitly name Penal Law § 240.32 as the crime charged, however, and that incorporation by reference to the statute sufficiently apprised defendant of the charge to render the indictment jurisdictionally valid ( see People v D'Angelo , 98 NY2d 733, 734-735 [2002]; People v Wheeler , 216 AD3d 1314 , 1316 [3d Dept 2023], lv denied 40 NY3d 1082 [2023]). County Court therefore acted properly in denying defendant's motion to dismiss the indictment on jurisdictional grounds and granting the People leave to amend the indictment to correct the omission ( see CPL 200.70 [1]). Turning to the Sandoval compromise rendered by County Court, it barred the People from questioning defendant about 1991 and 2001 convictions should he testify. County Court did permit cross-examination regarding some of defendant's other prior convictions, however, upon the ground that they called his credibility into question by showing his willingness to place his own interests above those of society. The court specifically allowed inquiry regarding the existence, but not the details, of an unnamed 2005 felony conviction, and broader inquiry regarding the existence and underlying facts of a 2003 conviction for criminal sale of a controlled substance in the third degree, a 2002 conviction for intent to obtain transportation without paying, and a 1993 conviction for attempted robbery in the second degree. County [*3] Court properly balanced the probative value of the 2005 conviction against the serious potential for undue prejudice—caused by the fact that the conviction was for the same offense charged here and arose out of similar conduct—by precluding the People from referencing the name of the offense or the underlying facts. County Court was further free to, and did, reject defendant's contention that the 1993, 2002, 2003 and 2005 convictions were too remote in time for the simple reason that "defendant was incarcerated for substantial periods" throughout the 1990s and 2000s and had been imprisoned continuously since 2002 ( People v Kirton , 36 AD3d 1011 , 1013 [3d Dept 2007], lv denied 8 NY3d 947 [2007]). Under those circumstances, we are satisfied that "the court's compromise was a provident exercise of the court's discretion inasmuch as it reflected a measured balance of the probative value and limited the potential prejudicial effect of the evidence in question" ( People v Lloyd , 118 AD3d 1117 , 1122 [3d Dept 2014], lv denied 25 NY3d 951 [2015]; see People v Gilliam , 36 AD3d 1151 , 1153 [3d Dept 2007], lv denied 8 NY3d 946 [2007]). Defendant further suggests that County Court erred in declining to suppress oral statements he made around the time of the incident that were captured on surveillance video footage of the hall outside of his cell and in failing to preclude the later statements he made to another incarcerated individual that were overheard by a correction sergeant. With regard to the recorded statements, County Court credited testimony at the suppression hearing that defendant and other incarcerated individuals in the Special Housing Unit were notified that they were under "constant surveillance" and that security cameras were "record[ing] essentially, everything" on the unit. As defendant had been warned that the area was "being monitored and recorded," County Court properly determined that he had no reasonable expectation of privacy in any communications that might be picked up by nearby security cameras so as to implicate the protections of the Fourth Amendment ( People v Diaz , 33 NY3d 92 , 99-100 [2019], cert denied 589 US &mdash, 140 S Ct 394 [2019]; see Telesford v Annucci , 693 Fed Appx 1, 2-3 [2d Cir 2017]; People v Russ , 162 AD3d 1306 , 1306-1307 [3d Dept 2018]). Defendant's related contention that the recording and disclosure of his statements separately constituted a due process violation is without merit ( see e.g. People v Quinn , 210 AD3d 1284 , 1286-1287 [3d Dept 2022], lv denied 39 NY3d 1079 [2023]). Defendant similarly had no reasonable expectation of privacy with regard to statements he made through his cell window to another incarcerated individual, and County Court correctly concluded that the People were not obliged to give notice of their intent to use that statement pursuant to CPL 710.30 because it was only overheard by a passing correction sergeant and "was not made 'to a public servant' " ( People v Cole , 24 AD3d 1021 , 1025 [3d [*4] Dept 2005], lv denied 6 NY3d 832 [2006], quoting CPL 710.30 [1] [a]; see People v Phoenix , 115 AD3d 1058 , 1062-1063 [3d Dept 2014], lv denied 23 NY3d 1024 [2014]). Defendant's contentions relating to the conduct of the trial do not demand extended discussion. County Court appropriately directed that defendant be restrained during the trial—which the People demonstrated was necessary in this case because of defendant's extensive disciplinary history and penchant for assaultive and disruptive behavior while imprisoned—while minimizing the potential for prejudice to defendant by placing skirts around the courtroom tables to obscure his restraints and giving a cautionary instruction to the jury ( see People v Alexander , 127 AD3d 1429 , 1432 [3d Dept 2015], lv denied 25 NY3d 1197 [2015]; People v Stokes , 290 AD2d 71, 74 [3d Dept 2002], lv denied 97 NY2d 762 [2002], cert denied 537 US 859 [2002]). Defendant's claims of prosecutorial misconduct arising out of comments made by the People during summation are unpreserved given his failure to lodge a timely objection to them ( see People v Paige , 211 AD3d 1333 , 1337 [3d Dept 2022], lv denied 39 NY3d 1143 [2023]; People v Morton , 198 AD3d 1176 , 1180 [3d Dept 2021], lv denied 37 NY3d 1163 [2022]). In any event, while some of the People's remarks in summation would have been better left unsaid, we cannot say that they were part of "a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive defendant of a fair trial" and require reversal ( People v Lewis , 224 AD3d 1143 , 1153 [3d Dept 2024], lv denied 42 NY3d 939 [2024]). Defendant's various contentions regarding the jury charge and the handling of notes from the jury are similarly unpreserved and are, in any event, without merit ( see People v Abussalam , 196 AD3d 1000 , 1009 [3d Dept 2021], lv denied 37 NY3d 1144 [2021]; People v Smith , 193 AD3d 1260 , 1267 [3d Dept 2021], lv denied 37 NY3d 968 [2021]). As for defendant's remaining complaints, although he cites an impressive array of perceived flaws in the performance of trial counsel, we cannot say that he received the ineffective assistance of counsel in any respect. To the contrary, our review of the record as a whole confirms that counsel provided meaningful representation in a difficult case where there was overwhelming testimonial, video and forensic evidence of defendant's guilt ( see People v Rashid , 166 AD3d 1382 , 1385 [3d Dept 2018], lv denied 32 NY3d 1208 [2019]). Finally, assuming, without deciding, that defendant's challenge to the sentence remains live despite his release from prison due to the apparent expiration of that sentence ( but see People v Cotto , 218 AD3d 1021 , 1026 [3d Dept 2023], lv denied 40 NY3d 1039 [2023]), we are unpersuaded that the sentence was unduly harsh or severe ( see People v Banch , 198 AD3d at 1190). Clark, Ceresia, Powers and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: The offense originally referenced inmates as opposed to incarcerated individuals but, during the pendency of this appeal, was renamed aggravated harassment of an employee by an incarcerated individual ( see Penal Law § 240.32, as amended by L 2021, ch 322, § 106). Footnote 2: The forensic scientist who testified for the People stated that she did not test clippings from the officer's shirt for DNA because urine is generally not a good source for DNA, but defendant's expert was able to recover genetic material from the officer's shirt and conduct DNA testing. She could not identify the major contributor to DNA found on the shirt clippings—an unsurprising development since she did not have a DNA sample from the officer who had been wearing the shirt—and her testing to identify a second, minor contributor of DNA material on the shirt was inconclusive.

[Assistant]
Indictment charging defendant with Aggravated Harassment of an
Employee by an Incarcerated Individual did not allege that defendant was
an inmate, Although the indictment did not allege that defendant was an
inmate, it did explicitly state defendant's conduct violated Penal Law §
240.32. That incorporation by reference adequately informed defendant of
the charge and rendered the indictment jurisdictionally sufficient.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Moore 2024 NY Slip Op 03234 [228 AD3d 491] June 13, 2024 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] The People of the State of New York, Respondent, v Robert Moore, Appellant. Caprice R. Jenerson, Office of the Appellate Defender, New York (Samuel Steinbock-Pratt of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Christian Rose of counsel), for respondent. Judgment, Supreme Court, New York County (Juan Merchan, J.), rendered January 7, 2020, as amended February 26, 2020, convicting defendant, after a jury trial, of persistent sexual abuse, and sentencing him, as a persistent violent felony offender, to a term of 4 years to life, unanimously modified, on the law, to vacate the sentence and to remand for further sentencing proceedings, and otherwise affirmed. The indictment was jurisdictionally valid because it unmistakably specified the precise underlying misdemeanor offense on which the charge of persistent sexual abuse (Penal Law § 130.53) was predicated "by stating the definition of the offense" ( People v Saenger , 39 NY3d 433 , 440 [2023]). Specifically, the second count of the indictment, in charging defendant with persistent sexual abuse, states that he "subjected a person known to the Grand Jury to sexual contact, to wit , placing his hand on said person's buttocks, without her consent." Of the three misdemeanors eligible to support a felony charge of persistent sexual abuse—forcible touching (Penal Law § 130.52), sexual abuse in the third degree (Penal Law § 130.55), and sexual abuse in the second degree (Penal Law § 130.60)—only sexual abuse in the third degree fits the conduct described by the indictment ("subject[ing] a person . . . to sexual contact . . . without her consent"). Penal Law § 130.55 defines sexual abuse in the third degree as "subject[ing] another person to sexual contact without the latter's consent," and this is precisely the conduct with which the indictment charges defendant. Although the other two potentially qualifying misdemeanors include unconsented sexual contact as an element, each of those offenses has additional elements not mentioned in the indictment. Forcible touching is defined, in pertinent part, as "forcibly touch[ing] the sexual or other intimate parts of another person for the purpose of degrading or abusing such person, or for the purpose of gratifying the actor's sexual desire" (Penal Law § 130.52 [1]) or "subject[ing] another person to sexual contact for the purpose of gratifying the actor's sexual desire and with intent to degrade or abuse such other person while such other person is a passenger on a bus, train, or subway car" (Penal Law § 130.52 [2]). Sexual abuse in the second degree is defined as "subject[ing] another person to sexual contact . . . when such other person is . . . [i]ncapable of consent by reason of some factor other than being less than seventeen years old; or . . . [l]ess than fourteen years old" (Penal Law § 130.60). Accordingly, the indictment specifically accused defendant of committing one of the three qualifying offenses for persistent sexual abuse, namely, sexual abuse in the third degree. In Saenger , the Court of Appeals approved the manner in which the instant indictment identifies the underlying misdemeanor offense supporting the felony charge. Saenger , like this case, involved a felony charge (aggravated family offense [Penal [*2] Law § 240.75]) based on a misdemeanor offense committed by a defendant who, at the time of the commission of the offense, had a specified criminal record. While the Court of Appeals found that the Saenger indictment fell short because it alleged only that the defendant had "committed an offense specified in subdivision two of section 240.75 of the Penal Law" (39 NY3d at 436 [internal quotation marks omitted]), the Court noted: "The People may ensure the facial validity of an indictment charging a defendant with aggravated family offense simply by specifying the alleged underlying misdemeanor offense, either by incorporating the underlying offense by section number or by stating the definition of the offense " ( id. at 440 [emphasis added]). Immediately after the above-quoted statement, the Court of Appeals cited with approval a number of decisions by this Court in which we affirmed convictions based on indictments containing charging language similar to the indictment in this case ( see People v Rosa , 164 AD3d 1182 , 1183-1184 [1st Dept 2018] [the indictment "unmistakably identified the specified offense . . . defendant was alleged to have committed by stating its definition, albeit without identifying it by section number" (internal quotation marks omitted)], lv denied 32 NY3d 1114 [2018]; People v Brooks , 159 AD3d 401 , 401 [1st Dept 2018] [same], lv denied 31 NY3d 1079 [2018]; People v Parrilla , 145 AD3d 629, 629-630 [1st Dept 2016] [same], lv denied 29 NY3d 951 [2017]). What emerges from Saenger and the precedents cited with approval therein is that, in a case where the defendant's prior convictions elevate a misdemeanor charge to a felony, there is no requirement that the indictment identify the underlying misdemeanor offense by section or by the title in the caption of the section. Rather, it suffices for the indictment to use charging language that tracks the statutory definition of the underlying misdemeanor offense. This is precisely what the indictment before us has done. Accordingly, the indictment complied with the requirement to provide defendant with "notice of which of the qualifying misdemeanor offenses [referred to in the persistent sexual abuse statute] he was alleged to have committed" ( Saenger , 39 NY3d at 440). [FN*] Finally, because the People concede that defendant was improperly adjudicated as a mandatory persistent violent offender, we vacate the sentence and remand to Supreme Court for further proceedings. Concur—Webber, J.P., Friedman, González, Rosado, Michael, JJ. Footnotes Footnote *: Saenger calls into question our decision in People v Lacy (216 AD3d 439 [1st Dept 2023], lv denied 40 NY3d 1081 [2023]), which was decided two weeks before Saenger .

[Assistant]
"The
indictment was jurisdictionally valid because it unmistakably specified the
precise underlying misdemeanor offense on which the charge of persistent
sexual abuse (Penal Law § 130.53) was predicated 'by stating the
definition of the offense' (People v Saenger, 39 NY3d 433, 440 [2023]).
"
That count of the indictment charged defendant as having "subjected a
person known to the Grand Jury to sexual contact, to wit, placing his hand
on said person's buttocks, without her consent"
— conduct defined by
Penal Law § 130.55 as sexual abuse in the third degree, one of the 3
misdemeanors which can properly elevate a charge to persistent sexual
abuse.


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Ford 2024 NY Slip Op 05002 [231 AD3d 1241] October 10, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Lynette R. Ford, Appellant. Donnial K. Hinds, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nathan M. Bloom of counsel), for respondent. Fisher, J. Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered August 15, 2022, convicting defendant upon her plea of guilty of the crime of driving while ability impaired by drugs. In January 2022, defendant was indicted on a charge of driving while ability impaired by drugs, as a felony, based upon two prior convictions of driving while intoxicated in the previous 10-year period. At defendant's arraignment, the People moved to amend the indictment to reflect that it occurred on September 3, 2021, and not on that date in 2022 as stated therein. Defense counsel stated that defendant had no objection to that amendment. Defendant thereafter pleaded guilty to the charge without a sentencing promise, admitting that she drove under the influence of methamphetamines on September 3, 2021, and was involved in an accident with a truck. County Court sentenced defendant to a prison term of 1 to 3 years. Defendant appeals. We affirm. Defendant argues that County Court committed reversible error in allowing the People to amend the year in the indictment. However, "by pleading guilty . . . , defendant waived any alleged error in permitting the amendment" ( People v Thompson , 287 AD2d 794, 796 [3d Dept 2001] [internal quotation marks, brackets and citation omitted], lv denied 97 NY2d 688 [2001]; see People v Mathis , 185 AD3d 1094 , 1097 [3d Dept 2020]; People v Martinez , 52 AD3d 68 , 71 [1st Dept 2008], lv denied 11 NY3d 791 [2008]). [FN1] Neither did defendant move to withdraw her guilty plea on this basis and, instead, she declined to object to the amendment and did not oppose the People's motion to amend, thereby failing to preserve any argument that the court erred in permitting the amendment of the indictment ( see People v Mathis , 185 AD3d at 1097; see also People v Kelly , 221 AD3d 1265 , 1266 [3d Dept 2023]; People v Houze , 177 AD3d 1184 , 1187 [3d Dept 2019], lv denied 34 NY3d 1159 [2020]). Defendant further contends that her sentence is unduly harsh and severe. Her argument that she should have been permitted to participate in a judicial diversion program was not preserved for our review, [FN2] and the record does not reflect that she qualified for or followed the requisite statutory procedures for participation in the program ( see CPL 216.00 [1]; 216.05 [1]; People v Vezequ , 205 AD3d 1138 , 1138 [3d Dept 2022], lv denied 38 NY3d 1154 [2022]). Moreover, defendant received the minimum indeterminate prison term for this crime ( see Penal Law § 70.00 [2] [d]; [3] [b]; Vehicle and Traffic Law §§ 1192 [4-a]; 1193 [1] [c] [ii]) and County Court justifiably rejected a one-year jail term ( see Penal Law § 70.00 [4]), given her failure to accept responsibility for her actions, her extensive criminal history that included three prior convictions for driving while intoxicated and her poor performance on probation. Accordingly, we decline her invitation to reduce the sentence in the interest of justice ( see CPL 470.15 [3] [c]; [6] [b]; People v Atutis [*2] , 214 AD3d 1264, 1265 [3d Dept 2023]). Garry, P.J., Pritzker, Lynch and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: The indictment effectively charged defendant with a crime notwithstanding the error and, thus, the motion to correct the date was directed at a waivable, non-jurisdictional defect in the indictment that did not survive defendant's guilty plea and is subject to preservation rules ( compare People v Hardy , 35 NY3d 466 , 475-476 [2020]; People v Solomon , 203 AD3d 1468 , 1470 [3d Dept 2022], affd 39 NY3d 1114 [2023]). Footnote 2: Prior to defendant's guilty plea, defense counsel looked into defendant's eligibility for drug court treatment in Pennsylvania where she then resided and was on probation, but she moved to New York; County Court thereafter rejected counsel's request to refer her in-state, apparently based upon her repeated failure to appear in court on scheduled dates. Judicial diversion was not discussed as part of the plea agreement and was not mentioned at sentencing.

[Assistant]
At
defendant's 2021 arraignment, the People moved to amend the indictment
to reflect that the crime was committed on September 3, 2021, rather than
September 3, 2023, as stated in the Indictment. Defense counsel had no
objection. Defendant later pled guilty to the Indictment. Since the
Indictment charged a crime, the date on which the crime was committed
was a waivable, non-jurisdictional defect that was waived when defendant
pleaded guilty. The Appellate Division noted that defendant did not oppose
the motion to amend and therefore did not preserve a challenge to the
propriety of the amendment.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Robles 2024 NY Slip Op 05819 [42 NY3d 694] November 21, 2024 Garcia, J. Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 5, 2025 [*1] The People of the State of New York, Respondent, v Eddie Robles, Appellant. Argued October 16, 2024; decided November 21, 2024 People v Robles , 211 AD3d 1516 , reversed. {**42 NY3d at 695} OPINION OF THE COURT Garcia, J. Defendant was charged with criminal possession of a weapon. The trial court denied his motion to suppress the gun and a post-arrest admission he made to police, and defendant pleaded guilty. On appeal, the Appellate Division held that defendant's statement should have been suppressed, but that, because the gun would still have been admissible at trial, the error was harmless as there was no reasonable possibility that it contributed to defendant's decision to plead guilty. On this record, however, we cannot say with certainty that the erroneous ruling played no part in that decision, and therefore we reverse. {**42 NY3d at 696} In response to a report of shots fired, two officers approached defendant and, after a struggle, recovered a handgun from him. Prior to any Miranda warnings being administered, an officer asked defendant, "Hey, Eddie, man, what's going on? Are you all right? Are you okay?" Defendant responded, "Bro, you saw what I had on me. I was going to do what I had to do." Defendant was indicted on various charges, including second-degree criminal possession of weapon (Penal Law § 265.03 [3]). After Supreme Court denied defendant's motion to suppress both the handgun and his statement, defendant accepted the People's offer of a plea to attempted second-degree criminal possession of a weapon. During the plea colloquy, defendant, who was proceeding pro se, stated, "I just want to make sure that I can appeal my suppression [*2] hearing." In response to the court's question of whether he was pleading guilty because he was guilty and was doing so freely and voluntarily, defendant answered, "I'm pleading guilty because it's a good deal." The court accepted the plea and imposed the agreed-upon sentence. The Appellate Division, with one Justice dissenting, agreed with defendant that his statement should have been suppressed, [FN*] but held that the error was harmless (211 AD3d 1516 [4th Dept 2022]). The Court concluded that "[b]ecause [the gun] would have been admissible at trial . . . there is no reasonable possibility that the [trial] court's error in failing to suppress defendant's statement admitting possession of the firearm contributed to his decision to plead guilty" ( id. at 1518). The dissenting Justice, who would have held the record insufficient to support a determination that defendant "would have pleaded guilty without regard to the error" ( id. at 1520 [Lindley, J., dissenting]), granted leave to appeal, and we now reverse. Applying a harmless error analysis to guilty pleas is a challenging exercise because a guilty plea "simply reflects the fact that for some reason, sufficient to the defendant," that defendant decided to waive his or her trial rights ( People v Grant , 45 NY2d 366, 379 [1978]). As a result, convictions based on guilty pleas "generally are not amenable to harmless error review" ( People v Wells , 21 NY3d 716 , 719 [2013]). This "general" rule, however, is not absolute ( id. ). Where, as here, the error is of constitutional dimension, we have held that, in addition to evaluating whether the People's remaining proof in the case {**42 NY3d at 697} constitutes "overwhelming proof of defendant's guilt" ( People v Crimmins , 36 NY2d 230, 237 [1975]), harmless error review must also analyze "whether there is a reasonable possibility that the error contributed to the" defendant's decision to plead guilty ( Grant , 45 NY2d at 378-379). Where there is any " 'reasonable possibility that the error contributed to the plea,' " the conviction must be reversed ( Wells , 21 NY3d at 719, quoting Grant , 45 NY2d at 379). With the framework for assessing harmlessness in mind, we conclude that this is not one of the rare situations where the record "leave[s] no question regarding [the defendant's] independent motivation to plead guilty" ( People v Lloyd , 66 NY2d 964, 965 [1985] [defendant pleaded guilty before the suppression hearing, was permitted to withdraw his plea when the court determined that, because of his criminal record, it could not keep its sentencing promise, and later pleaded guilty following the denial of suppression, with the understanding that he would not be sentenced as a persistent or violent felony offender]). A plea before trial leaves "little if any evidence in the record" to support a court's evaluation of the quantum and nature of the prosecution's remaining proof ( Grant , 45 NY2d at 378). Here, in determining that the error was harmless, the Appellate Division was able to point to the gun recovered from defendant. But even when there are facts in the record that make possible that part of the analysis, a court must still determine that there is no reasonable possibility that the error contributed to the defendant's decision to plead guilty for harmless error to apply ( see id. at 378-379). That latter inquiry is especially important when, as in the present case, a defendant unsuccessfully sought to suppress a confession and that ruling is reversed on appeal ( id. at 380). The record here is ambiguous at best as to defendant's motivation in pleading guilty. Although defendant asserted during the plea colloquy that he was "pleading guilty because it's a good deal," he may only have believed that "in the face of all the evidence" admissible at the time, including his highly incriminating post-arrest statement "you saw what I had on me" ( id. at 379). Moreover, when entering his plea, defendant affirmatively sought assurances from the court that he could appeal the suppression determination, indicating the importance he placed on that adverse ruling ( see id. ["Notably, at the time of plea (the defendant) did not waive his right to appeal"]). The People's argument that defendant may only have been {**42 NY3d at 698} concerned with the court's suppression of the physical evidence is speculative and insufficient to overcome the high bar for establishing defendant's independent motivation for the plea. On this record, we cannot say that defendant's decision to plead guilty was unaffected by the court's erroneous suppression ruling, and therefore his guilty plea must be vacated. Finally, we reject defendant's request to dismiss the felony indictment ( see People v Bush , 38 NY3d 66 , 72 n 2 [2022]). Accordingly, the order of the Appellate Division should be reversed, defendant's guilty plea vacated and the case remitted to Supreme Court for further proceedings on the indictment. Chief Judge Wilson and Judges Rivera, Singas, Cannataro, Troutman and Halligan concur. Order reversed, defendant's guilty plea vacated and case remitted to Supreme Court, Onondaga County, for further proceedings on the indictment. Footnotes Footnote *: The outcome of the suppression decision is not before us.

[Assistant]
Court vacated plea because it could not be said that this was one of the
exceedingly rare cases where there was no reasonable possibility that trial
court's erroneous denial of motion to suppress statements did not
contribute to defendant’s decision to plead guilty.
"Although defendant
asserted during the plea colloquy that he was 'pleading guilty because it's a
good deal,
' he may only have believed that 'in the face of all the evidence'
admissible at the time, including his highly incriminating post-arrest
statement.
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Lipka 2024 NY Slip Op 05153 [231 AD3d 1283] October 17, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] The People of the State of New York, Respondent, v Cody Lipka, Appellant. Matthew C. Hug, Albany, for appellant. Weeden A. Wetmore, District Attorney, Elmira (Nicholas S. Line of counsel), for respondent. Ceresia, J. Appeal from a judgment of the County Court of Chemung County (Richard W. Rich Jr., J.), rendered November 16, 2018, convicting defendant upon his plea of guilty of the crime of burglary in the first degree. In December 2017, defendant was arrested following an incident wherein he allegedly hid in the backseat of the victim's car while she was driving, then forced her at knifepoint to return to her residence, at which point he choked her and repeatedly threatened to kill her. Subsequently, defendant was charged by indictment with kidnapping in the second degree, burglary in the first degree and strangulation in the second degree. Following a Huntley hearing, County Court denied defendant's motion to suppress statements that he made to law enforcement. At the ensuing trial, after a jury was empaneled, defendant accepted a plea offer requiring him to serve 14 years in prison, to be followed by five years of postrelease supervision, in exchange for pleading guilty to burglary in the first degree. Defendant did not, however, waive his right to appeal. The court subsequently sentenced defendant as negotiated. Defendant appeals. Defendant's sole argument is that his statements to the police should have been suppressed because, while in custody, he invoked his right to counsel on four separate occasions. "The right to counsel indelibly attaches as soon as a defendant in custody unequivocally requests the assistance of counsel. Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request, including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant" ( People v Bowman , 194 AD3d 1123 , 1127-1128 [3d Dept 2021] [internal quotation marks, brackets and citations omitted], lv denied 37 NY3d 963 [2021]). With regard to the first purported invocation of the right to counsel, shortly after the incident in question, defendant was involved in a vehicle chase with the police, resulting in a collision whereby defendant was injured and taken to the hospital for treatment. State Police investigators spoke to him in his hospital room. When they told defendant that they wanted to discuss the incident involving the victim, defendant responded that he did not know if he should talk without a lawyer. This statement by defendant, however, did not mandate suppression, as the mere suggestion that one might consult a lawyer or expression of uncertainty as to whether an attorney is needed does not constitute an unequivocal invocation ( see People v Mitchell , 2 NY3d 272 , 276 [2004]; People v Rowell , 59 NY2d 727, 730 [1983]; People v Hurd , 279 AD2d 892, 893 [3d Dept 2001]). As for defendant's second supposed invocation, a statement that he made once he had been brought to an interview room at the State Police barracks and was being questioned by investigators—to the effect that he was unsure what to do and was [*2] "very hesitant about playing the lawyer card" because he did not know the particular charges he was facing—also was not an unequivocal request for counsel. At most, this could be viewed as "a mere forewarning of a possible, contingent desire to confer with counsel as opposed to a present desire to do so" ( People v Bowman , 194 AD3d at 1129; see People v Whiting , 170 AD3d 1654 , 1655 [4th Dept 2019], lv denied 33 NY3d 1036 [2019]). As such, suppression on the basis of this statement was properly denied. We next consider defendant's third claimed invocation of his right to counsel. In the course of the investigators' questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began focusing on how he had first encountered the victim earlier that morning, defendant expressed that he did not wish to discuss that subject. After the investigators continued with a couple of follow-up questions on this topic, defendant stated, "that's what I want a lawyer for." He then went on to say that he was scared to talk and noted that he could still cooperate with the District Attorney at a later time. Under these circumstances, we conclude that defendant clearly invoked his right to counsel. Although the first two alleged invocations described above did not constitute requests for an attorney, they nevertheless serve to indicate that the subject of obtaining a lawyer was on defendant's mind while he was being questioned. With that said, once the interrogation moved to the underlying incident, defendant "articulated his desire to have counsel present such that a reasonable police officer should have understood that he was requesting an attorney" ( People v Jones , 21 AD3d 429 , 429 [2d Dept 2005], lv denied 6 NY3d 755 [2005]; see People v Harris , 177 AD3d 1199 , 1203-1204 [3d Dept 2019], lv denied 35 NY3d 970 [2020]). Accordingly, any statements made by defendant thereafter should have been suppressed. [FN*] Further, contrary to the People's contention, this erroneous suppression ruling was not harmless. "It is unusual for a conviction rendered after a guilty plea to be amenable to harmless error analysis for the simple reason that 'an appellate court is rarely in a position to determine whether denial of a suppression motion played any part in a defendant's decision to plead' " ( People v Henry , 133 AD3d 1085 , 1087 [3d Dept 2015], quoting People v Lloyd , 66 NY2d 964, 965 [1985]; see People v Teixeira-Ingram , 199 AD3d 1240 , 1242 [3d Dept 2021]). That being the case, the record does not establish that defendant's decision to plead guilty was entirely independent of the ruling ( see People v Wells , 21 NY3d 716 , 719 [2013]). Garry, P.J., Egan Jr., Reynolds Fitzgerald and Powers, JJ., concur. Ordered that the judgment is reversed, on the law, plea vacated and matter remitted to the County Court of Chemung County for further proceedings not inconsistent with this Court's [*3] decision. Footnotes Footnote *: Given this ruling, we need not address defendant's fourth claimed invocation.

[Assistant]
Defendant aborted his trial and entered a plea of guilty with a bargained-
for sentence. On appeal, the App. Div. agreed with defendant that certain
post-arrest statements should have been suppressed because he had
unequivocally invoked his right to counsel. The erroneous suppression
ruling could not be deemed harmless error, for the record did not establish
that defendant's decision to plead guilty was entirely independent of the
suppression ruling. See People v Lloyd, 66 NY2d 964, 965 [1985].


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Melissa OO. 2024 NY Slip Op 05920 [234 AD3d 101] November 27, 2024 Powers, J. Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 5, 2025 [*1] The People of the State of New York, Respondent, v Melissa OO., Appellant. Third Department, November 27, 2024 APPEARANCES OF COUNSEL John R. Trice , Elmira, for appellant. Michael D. Ferrarese, District Attorney , Norwich, and New York Prosecutors Training Institute, Inc. , Albany ( Karen Fisher McGee of counsel), for respondent. {**234 AD3d at 102} OPINION OF THE COURT Powers, J. Appeal from an order of the County Court of Chenango County (Frank B. Revoir Jr., J.), entered May 26, 2023, which dismissed defendant's application for resentencing pursuant to CPL 440.47, without a hearing. In 2016, defendant was charged by indictment with two counts of murder in the second degree, robbery in the first degree and two counts of assault in the first degree. The charges stemmed from her participation in a robbery that resulted in the violent death of the victim and theft of his personal property. In full satisfaction of the indictment, and in exchange for her cooperation and truthful testimony in the prosecution of her codefendant, defendant pleaded guilty to robbery in the first degree. Following her cooperation in that prosecution, defendant was sentenced to a prison term of 15 years, to be followed by five years of postrelease supervision, consistent with the terms of the plea agreement. In 2022, defendant requested permission to apply for resentencing pursuant to the Domestic Violence Survivors Justice Act (hereinafter DVSJA) ( see CPL 440.47 [1] [c]; Penal Law § 60.12, as amended by L 2019, ch 31, § 1; L 2019, ch 55, § 1, part WW, § 1) and was assigned counsel. [FN1] Initially, County Court found that defendant met the threshold statutory eligibility requirements, granted {**234 AD3d at 103} permission and defendant applied for resentencing. However, in May 2023, the court dismissed the application without prejudice finding that, although she met the step one eligibility criteria for an alternative sentence, "there [was] no [corroborating] evidence nor even allegations presented that [d]efendant was, at the time of the offense, a victim of domestic violence subjected to substantial abuse inflicted by a member of her family or household" as required by CPL 440.47 (2) (c) ( see CPL 440.47 [1] [a]; [2] [d]; see also Penal Law § 60.12 [1]). Defendant appeals. [FN2] As an initial matter, the People contend that there is no statutory authority by which defendant can appeal from the May 2023 order dismissing her application for resentencing under the DVJSA without prejudice. We agree and, therefore, must dismiss this appeal. It is well settled that "a defendant's right to appeal within the criminal procedure universe is purely statutory" ( People v Nieves , 2 NY3d 310 , 314 [2004] [internal quotation marks and citation omitted]; accord People v Smith , 15 NY3d 669 , 673 [2010]; see CPL 450.10 [1], [2]; 450.30 [1], [3]; People v Callahan , 80 NY2d 273, 284 [1992]). Thus, under established law, "no appeal lies from a determination made in a criminal proceeding unless one is provided by the CPL" and, absent express statutory authority for an appeal in a criminal case, there is no right to appeal ( People v Stevens , 91 NY2d 270, 277 [1998] [internal quotation marks and citation omitted]; see People v Smith , 27 NY3d 643 , 647 [2016]; People v De Jesus , 54 NY2d 447, 449 [1981]; People v Johnson , 203 AD3d 1396 , 1397 [3d Dept 2022]; People v Overbaugh , 175 AD3d 1621 , 1622-1623 [3d Dept [*2] 2019]). The order here dismissing defendant's application for resentencing without prejudice is not appealable to this Court as of right under the general statutory provisions authorizing appeals to intermediate appellate courts under CPL 450.10 nor is the order of dismissal one for which defendant could seek permission to appeal to this Court under CPL 450.15. Consequently, defendant's right to appeal is strictly limited to whether CPL 440.47 granted such a right. As background, the DVSJA amended Penal Law § 60.12 by authorizing the imposition of alternative sentences for {**234 AD3d at 104} survivors of domestic violence and added CPL 440.47, which provides a three-step procedure for survivors of domestic violence who are currently serving their sentences to apply for resentencing ( see generally People v Liz L. , 221 AD3d 1288 , 1289 [3d Dept 2023]). As a first step, CPL 440.47 requires that a defendant "submit . . . a request to apply for resentencing in accordance with [Penal Law §] 60.12" (CPL 440.47 [1] [a]; see [1] [b]). Such request must demonstrate that he or she is "serving a sentence with a minimum or determinate term of eight years or more for an offense committed prior to [August 12, 2019] and that she or he is serving such sentence for any offense eligible for an alternative sentence under [Penal Law §] 60.12" (CPL 440.47 [1] [a]; see People v Wendy B.-S. , 229 AD3d 1317 , 1318 [4th Dept 2024], lv denied 42 NY3d 1022 [2024]). "If the court finds that such person has not met the requirements to apply for resentencing . . . , the court shall notify such person and dismiss his or her request without prejudice " (CPL 440.47 [1] [d] [emphasis added]). However, "[i]f the court finds that the defendant has met the requirements to apply for resentencing, the court must notify the defendant that they may submit an application for resentencing" ( People v Wendy B.-S. , 229 AD3d at 1318, citing CPL 440.47 [1] [c]). [FN3] As a second step, upon being notified that he or she may submit an application for resentencing, CPL 440.47 (2) (c) requires the defendant's application to include "at least two pieces of evidence corroborating the applicant's claim that he or she was, at the time of the offense, a victim of domestic violence subjected to substantial physical, sexual or psychological abuse inflicted by a member of the same family or household" (CPL 440.47 [2] [c]). This evidentiary requirement mandates that "[a]t least one piece of evidence must be either a court record, pre-sentence report, social services record, hospital record, sworn statement from a witness to the domestic violence, law enforcement record, domestic incident report, or order of protection" (CPL 440.47 [2] [c]). In addition, the statute provides a non-exhaustive list of the types of evidence that could satisfy the evidentiary requirement for the second piece of corroborating evidence ( see CPL 440.47 [2] [c]). If the trial court finds that the applicant has not satisfied this evidentiary [*3] requirement, it must " dismiss the application without {**234 AD3d at 105} prejudice " (CPL 440.47 [2] [d] [emphasis added]). Whereas, if the trial court determines that the applicant has satisfied the evidentiary requirements of step two, it must then, as a third step, conduct a hearing and determine whether resentencing is warranted and, if so, vacate the original sentence and impose a new sentence ( see CPL 440.47 [2] [e], [g]). CPL 440.47 then provides, as is relevant here, that "[a]n appeal may be taken as of right . . . from an order denying resentencing . . . or . . . from a new sentence imposed [there]under" (CPL 440.47 [3] [emphasis added]). Therefore, by the express statutory terms of CPL 440.47, an order either denying resentencing after a hearing or imposing a new sentence is appealable as of right ( see CPL 440.47 [3]). However, no provision is made for the right to appeal from the dismissal of an application without prejudice under step one or, like here, step two based on the failure to submit the evidentiary proof required ( compare CPL 440.47 [1] [d]; [2] [d], with [2] [f]). While the Legislature did not amend the general provisions in CPL article 450 authorizing appeals to intermediate appellate courts, it did amend CPL 450.90 to permit, so long as a certificate granting leave to appeal is issued, an appeal to the Court of Appeals "by either the defendant or the [P]eople from any adverse or partially adverse order of an intermediate appellate court . . . entered pursuant to . . . [CPL] 440.47" (CPL 450.90 [1]). Thus, in enacting the DVSJA, the Legislature expressly authorized appeals as of right to an intermediate appellate court from orders denying resentencing or granting resentencing and imposing a new sentence while providing no express statutory right to appeal from an order dismissing an application for resentencing prior to a hearing ( see CPL 440.47 [2] [f], [g]; [3]; People v James QQ. , 232 AD3d 1137 , 1138 [3d Dept 2024] [decided herewith]). [FN4] {**234 AD3d at 106} Where, as here, the Legislature specifically provides for appealability of certain orders but not others, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded" ( Town of Aurora v Village of E. Aurora , 32 NY3d 366 , 372-373 [2018] [internal quotation marks and citations omitted]; see McKinney's Cons Laws of NY, Book 1, Statutes § 240). "[S]ince the Legislature failed to provide for an appeal from the [dismissal] of an application for resentencing pursuant to [Penal Law § 60.12 and CPL 440.47 (2) (c)], no appeal was intended" ( People v De Jesus , 54 NY2d at 449). "Where the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used" ( Matter of Spence v State Univ. of N.Y. , 195 AD3d 1270 , 1273 [3d Dept 2021] [internal quotation marks, brackets and citation omitted]). Here, the Legislature intended a different result as to the appealability of orders dismissing without prejudice [*4] under step one or step two and an order denying an application on the merits after a hearing under step three, and this Court must give effect to that intention ( compare CPL 440.47 [1] [d]; [2] [d], with [2] [f]). Had an appeal from a dismissal without prejudice been intended under step one or step two of the DVSJA, "the [L]egislature could easily have so stated" ( Town of Aurora v Village of E. Aurora , 32 NY3d at 373; see People v De Jesus , 54 NY2d at 449). Rather, the language utilized by the Legislature—specifically that dismissal is without prejudice—mandates that the appropriate remedy in this situation is for a defendant to file a new application satisfying the evidentiary requirements of CPL 440.47. Thus, as "[a]ppeals in criminal cases are strictly limited to those authorized by statute," this appeal is not properly before this Court and must be dismissed ( People v Bautista , 7 NY3d 838 , 838-839 [2006]). [FN5] Garry, P.J., Lynch, Reynolds Fitzgerald and Fisher, JJ., concur. {**234 AD3d at 107} Ordered that the appeal is dismissed. Footnotes Footnote 1: Defendant had previously requested permission to apply for resentencing in August 2019 and, although counsel was appointed, no further submissions in support of defendant's application were made. Footnote 2: During the pendency of this appeal, the People moved to dismiss the appeal, contending that there is no statutory authority for a defendant to appeal from an order dismissing an application for resentencing without prejudice. This Court denied the People's motion without prejudice to the issues being raised upon the argument of the appeal (2024 NY Slip Op 65407[U] [3d Dept, Apr. 4, 2024]). Footnote 3: There is no dispute that defendant met the statutory requirements under step one to be permitted to apply for resentencing ( see CPL 440.47 [1] [a]). Footnote 4: We must note that, although this Court has not previously addressed the appealability of a dismissal under steps one or two of the DVSJA, we have reviewed the merits of such a dismissal ( see generally People v James NN. , 224 AD3d 1014 , 1014-1015 [3d Dept 2024], lv denied 42 NY3d 927 [2024]). In People v James NN. , this Court addressed the merits of an appeal from an order dismissing, without a hearing, an application for resentencing pursuant to CPL 440.47, where the dismissal was due to defendant's failure to make the requisite evidentiary showing under CPL 440.47 (2) (c). Similarly, the Second and Fourth Departments have addressed the merits of appeals involving step one or two dismissals ( see People v White , 226 AD3d 1054 , 1055-1056 [2d Dept 2024], lv denied 42 NY3d 931 [2024]; People v Shawn G.G. , 225 AD3d 1246 , 1246-1247 [4th Dept 2024], lv denied 42 NY3d 940 [2024]; People v Coles , 202 AD3d 706 , 706-707 [2d Dept 2022]). However, appealability was not raised or decided in the prior appeal before this Court and does not appear to have been raised in those before the Second or Fourth Departments. Footnote 5: We are mindful that the failure to provide for the statutory right to appeal from an order dismissing a defendant's DVSJA resentencing application without prejudice could insulate from appellate review certain trial court determinations where a defendant has exhausted his or her potential universe of evidentiary submissions. Nonetheless, it is entirely within the province of the Legislature to provide a remedy to permit appeals in these circumstances and not for this Court "to legislate under the guise of interpretation" ( People v Boothe , 16 NY3d 195 , 198 [2011] [internal quotation marks and citations omitted]).

[Assistant]
App. Div. agreed with the People that the CPL confers the right to appeal
only upon defendants whose CPL 440.47 motions were decided after a
hearing. Consequently, it dismissed the appeal brought by a defendant
whose DVSJA motion for resentencing was found insufficient at stage 2.
CPL 440.47 (1) (d) and (2) (d) require the sentencing court to dismiss the
request/application without prejudice if the defendant does not meet the
threshold requirements.
"[T]he language utilized by the Legislature —
specifically that dismissal is without prejudice [emphasis in original] —
mandates that the appropriate remedy in this situation is for a defendant to
file a new application....
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Harris 2024 NY Slip Op 03518 [228 AD3d 1186] June 27, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] The People of the State of New York, Respondent, v Robert Harris, Appellant. Angela Kelley, East Greenbush, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent. Mackey, J. Appeal from an order of the County Court of Schenectady County (Matthew J. Sypniewski, J.), entered September 18, 2018, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act. In 2012, defendant pleaded guilty to sexual abuse in the first degree stemming from his sexual abuse of a six-year-old relative, and was sentenced to 7 1/2 years in prison followed by 20 years of postrelease supervision. In anticipation of his release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument and recommended that he be classified as a risk level three sex offender pursuant to the Sex Offender Registration Act ( see Correction Law art 6-c [hereinafter SORA]), with a sexually violent offender designation, based upon the override factor that he had a prior felony conviction for a sex offense, namely, attempted sodomy in the first degree ( see Penal Law former § 130.50 [3]; Correction Law § 168-a [3] [a]). At the hearing, County Court advised defendant, who was represented by counsel, that he had a right to a hearing to challenge the Board's recommendation and the presumptive override, and to contest the evidence and present a defense. Defendant then waived a hearing and, on defendant's consent, County Court classified him as a risk level three sex offender and designated him a sexually violent offender, and defendant appeals. It is well established that SORA risk level classification proceedings are civil in nature and not part of the criminal action ( see People v Watts , — NY3d &mdash, &mdash, 2024 NY Slip Op 00926, *2-3 [2024]; People v Perez , 35 NY3d 85 , 94 [2020]; People v Stevens , 91 NY2d 270, 277 [1998]) and, as such, SORA risk determinations are "subject to a civil appeal process" ( People v Buyund , 37 NY3d 532 , 540 [2021]). By statute, appeals as of right to the Appellate Division from SORA risk classification orders are pursuant to CPLR articles 55 and 57 ( see Correction Law § 168-n [3]). However, a party who consents to an order, including a SORA order, in a civil proceeding is not aggrieved by the order within the meaning of CPLR 5511 and, accordingly, defendant's appeal must be dismissed ( see People v White , 39 AD3d 979 , 979 [3d Dept 2007]; see also People v Jennings , 146 AD3d 823 , 824 [2d Dept 2017]; People v Johnson , 142 AD3d 1061 , 1061 [2d Dept 2016], lv dismissed 28 NY3d 1104 [2016]; Matter of O'Sullivan v Schebilski , 138 AD3d 1170 , 1172 [3d Dept 2016]; People v Brown , 125 AD3d 1380 , 1380-1381 [4th Dept 2015]; People v Welch , 30 AD3d 392 , 393 [2d Dept 2006]; cf. People v Motta , 215 AD3d 771 , 772 [2d Dept 2023]). Defendant's argument that his consent was not voluntary due, in part, to the ineffective assistance of counsel may be addressed to County Court in a motion to vacate the order, "at which time he can present evidence in support of his allegations, proof of which is otherwise absent from this record" ( People v Johnson , 142 AD3d at 1061; see Matter of O'Sullivan v Schebilski , 138 [*2] AD3d at 1172; Matter of Commissioner of Social Servs. v Karcher , 129 AD3d 1351 , 1351 [3d Dept 2015]; People v Brown , 125 AD3d at 1381; see also People v Eiss , 158 AD3d 905 , 907 [3d Dept 2018], lv denied 31 NY3d 907 [2018]). Aarons, J.P., Pritzker, Lynch and Ceresia, JJ., concur. Ordered that the appeal is dismissed, without costs.

[Assistant]
An
appeal from a SORA Risk Level determination is a civil appeal. Where a
defendant consents to a SORA order, the defendant is not an aggrieved
party and has no right to appeal under the CPLR.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Holland 2024 NY Slip Op 05001 [231 AD3d 1240] October 10, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2023 [*1] (October 10, 2024) The People of the State of New York, Respondent, v Gregory S. Holland, Appellant. Lisa A. Burgess, Indian Lake, for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Kurt C. Reh of counsel), for respondent. Ceresia, J. Appeal from a decision of the County Court of Clinton County (Keith M. Bruno, J.), entered June 17, 2021, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act. In 2009, in full satisfaction of a multicount indictment, defendant pleaded guilty to rape in the first degree and was sentenced to a prison term of 15 years, to be followed by five years of postrelease supervision. In anticipation of defendant's release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level three sex offender (110 points) pursuant to the Sex Offender Registration Act ( see Correction Law art 6-C). Following a hearing, County Court classified defendant as a risk level three sex offender with a sexually violent offender designation. This appeal ensued. "County Court is statutorily required to 'render an order setting forth its determinations and the findings of fact and conclusions of law on which the determinations are based' " ( People v West , 193 AD3d 1127 , 1128 [3d Dept 2021] [citations omitted], quoting Correction Law § 168-n [3]; accord People v Lane , 202 AD3d 32 , 35 [3d Dept 2021]). Although County Court indeed issued a written decision setting forth its findings of fact and conclusions of law, "the decision contains no language indicating that it is an order or judgment, and it does not appear that a written order was entered and filed" ( People v Porter , 178 AD3d 1159 , 1160 [3d Dept 2019]; see People v Wassilie , 193 AD3d 1193 , 1194 [3d Dept 2021]). Similarly, the final risk level determination signed by County Court "does not contain [any] 'so ordered' language so as to constitute an appealable order" ( People v Johnson , 179 AD3d 1159 , 1160 [3d Dept 2020]; see People v Wassilie , 193 AD3d at 1194). Absent an order from County Court, the appeal is not properly before us and must be dismissed ( see People v Wassilie , 193 AD3d at 1194; People v Johnson , 179 AD3d at 1160). Aarons, J.P., Lynch, McShan and Mackey, JJ., concur. Ordered that the appeal is dismissed, without costs.

[Assistant]
At
the conclusion of a SORA Hearing, the County Court issued a decision,
making findings of fact and conclusions of law, but there was no language
indicating the document was an Order or judgment. The Risk Level
determination signed by the court also did not contain "So Ordered"
language. Since there was no Order from the County Court in existence,
the appeal was dismissed.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Williams 2024 NY Slip Op 06450 [233 AD3d 1463] December 20, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Charles Williams, Appellant. Banasiak Law Office, PLLC, Syracuse (Piotr Banasiak of counsel), for defendant-appellant. William J. Fitzpatrick, District Attorney, Syracuse (Elisabeth Dannan of counsel), for respondent. Appeal from a judgment of the Onondaga County Court (Gordon J. Cuffy, A.J.), rendered December 15, 2021. The judgment convicted defendant upon a jury verdict of murder in the second degree and criminal possession of a weapon in the second degree (two counts). It is hereby ordered that the judgment so appealed from is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) in connection with the shooting death of the victim. Defendant contends that he was denied a fair and impartial jury. During voir dire, a prospective juror suggested that she may have known of defendant due to her position as a correction officer. Defendant's request to "strike the entire panel" was denied. In this context, defendant's request constituted a for-cause challenge to each of the prospective jurors that had been assembled for voir dire in the same group ( see People v Doherty , 37 AD3d 859 , 860 [3d Dept 2007], lv denied 9 NY3d 843 [2007]; see generally People v Chavys , 263 AD2d 964, 964 [4th Dept 1999], lv denied 94 NY2d 821 [1999]). In other words, defendant was not attempting to strike the entire panel of prospective jurors on the basis that the selection process was unconstitutional or otherwise improper, but was rather attempting to strike multiple prospective jurors, for cause, that allegedly had been individually prejudiced such that each had "a state of mind that [was] likely to preclude" the rendering of an impartial verdict (CPL 270.20 [1] [b]). Even assuming, arguendo, that County Court erred in refusing to excuse for cause the prospective jurors in question, we conclude that "such an error would not constitute reversible error 'unless . . . defendant ha[d] exhausted his peremptory challenges at the time or, if he ha[d] not, he peremptorily challenge[d] such prospective juror[s] and his peremptory challenges [were] exhausted before the selection of the jury [was] complete,' " and neither scenario is applicable here ( People v Osman , 174 AD3d 1477 , 1480 [4th Dept 2019], lv denied 34 NY3d 1080 [2019], quoting CPL 270.20 [2]; see People v LaValle , 3 NY3d 88 , 102 [2004]; People v Case , 197 AD3d 985 , 987 [4th Dept 2021], lv denied 37 NY3d 1160 [2022]; Doherty , 37 AD3d at 860). Defendant contends that the verdict is against the weight of the evidence because, although the evidence established that he was near the scene at the time of the shooting, it did not establish that he entered the apartment in which the shooting occurred. Viewing the evidence in light of the elements of the crimes as charged to the jury ( see People v Danielson , 9 NY3d 342 , 349 [2007]), we conclude that the verdict is not against the weight of the evidence ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]). Here, "the element of identity was established by a compelling chain of circumstantial evidence that had no reasonable explanation except that defendant was [the shooter]" ( People v Jackson , 140 AD3d 1771 , 1771 [4th Dept 2016], lv denied 28 NY3d 931 [2016]), despite the fact that no one witnessed, and no video showed, [*2] defendant firing the shots that struck the victim ( see People v Scott , 198 AD3d 1325 , 1326 [4th Dept 2021], lv denied 37 NY3d 1164 [2022]; People v Clark , 142 AD3d 1339 , 1341 [4th Dept 2016], lv denied 28 NY3d 1143 [2017]; see generally People v Malone , 196 AD3d 1054 , 1055 [4th Dept 2021], lv denied 37 NY3d 1028 [2021]). Defendant further contends that he was denied a fair trial by prosecutorial misconduct on summation, but we note that he failed to object to any of the comments he now raises on appeal, and thus his contention is not preserved for our review ( see People v Smith , 150 AD3d 1664 , 1666 [4th Dept 2017], lv denied 30 NY3d 953 [2017]). In any event, defendant's contention is without merit. We conclude that any improper remarks made by the prosecutor did not deny defendant a fair trial ( see id. at 1666-1667; see also People v Freeman , 206 AD3d 1694 , 1695 [4th Dept 2022]). Contrary to defendant's contention, the sentence is not unduly harsh or severe. We note, however, that the uniform sentence and commitment form erroneously states that defendant was sentenced to five years of imprisonment on each count of criminal possession of a weapon in the second degree, and it must therefore be amended to reflect that he was sentenced to seven years of imprisonment on each of those counts. Finally, we agree with defendant that, as the People correctly concede, the presentence report (PSR) has not been amended as the court directed during sentencing and, therefore, all copies of the PSR must be amended in accordance with the court's directive ( see e.g. People v Lovines , 208 AD3d 1639 , 1639-1640 [4th Dept 2022]; People v Bubis , 204 AD3d 1492 , 1495 [4th Dept 2022], lv denied 38 NY3d 1149 [2022]; People v Barbuto , 126 AD3d 1501 , 1505 [4th Dept 2015], lv denied 25 NY3d 1159 [2015]). Present—Smith, J.P., Bannister, Montour, Greenwood and Keane, JJ.

[Assistant]
Even if trial court erred in refusing to excuse prospective for cause, such
an error will not give rise to reversal "unless . . . defendant ha[d] exhausted
his peremptory challenges at the time or, if he ha[d] not, he peremptorily
challenge[d] such prospective juror[s] and his peremptory challenges
[were] exhausted before the selection of the jury [was] complete.
" CPL
270.20 (2). Neither scenario presented here.


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Luna 2024 NY Slip Op 03201 [228 AD3d 1061] June 13, 2024 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 31, 2024 [*1] (June 13, 2024) The People of the State of New York, Respondent, v Joevany Luna, Appellant. Danielle Neroni Reilly, Albany, for appellant. Robert M. Carney, District Attorney, Schenectady (Peter H. Willis of counsel), for respondent. Ceresia, J. Appeal from a judgment of the County Court of Schenectady County (Matthew J. Sypniewski, J.), rendered July 30, 2018, upon a verdict convicting defendant of the crimes of murder in the first degree, conspiracy in second degree and criminal possession of a weapon in the second degree (two counts). In the early morning hours of November 19, 2016, Charles Dembrosky (hereinafter the victim) was shot once in the neck outside his apartment in the City of Schenectady, resulting in his near-instant death. Nine months later, defendant, Tarchand Lall and Kyshaan Moore were charged by way of indictment with murder in the first degree, conspiracy in the second degree and two counts of criminal possession of a weapon in the second degree. [FN1] Lall's trial was severed, and defendant and Moore were tried together. Defendant was convicted as charged and was thereafter sentenced to a prison term of life without the possibility of parole on the murder count. As for the remaining counts, defendant was sentenced, as a second felony offender, to a concurrent prison term of 12 1/2 to 25 years on the conspiracy charge, and, as a second violent felony offender, to 15 years in prison plus five years of postrelease supervision on each of the weapon possession charges, ordered to run concurrently with each other and consecutively to the murder and conspiracy charges. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to sustain his convictions and that the verdict is against the weight of the evidence. "In conducting a legal sufficiency analysis, this Court views the evidence in the light most favorable to the People and evaluates whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" ( People v Warner , 194 AD3d 1098 , 1099 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 37 NY3d 1030 [2021]; see People v Agan , 207 AD3d 861 , 862 [3d Dept 2022], lvs denied 38 NY3d 1186 [2022], 39 NY3d 939 [2022]). Conversely, "[w]hen undertaking a weight of the evidence review, we must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" ( People v Agan , 207 AD3d at 862-863 [internal quotation marks and citations omitted]; see People v Rivera , 212 AD3d 942 , 944 [3d Dept 2023], lv denied 39 NY3d 1113 [2023]). As relevant here, "[a] person is guilty of murder in the first degree when . . . the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than [*2] the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement" (Penal Law § 125.27 [1] [a] [vi]). Further, "[a] person is guilty of conspiracy in the second degree when, with intent that conduct constituting a class A felony be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct" (Penal Law § 105.15). Additionally, "[a] person is guilty of criminal possession of a weapon in the second degree when . . . with intent to use the same unlawfully against another, such person . . . possesses a loaded firearm" (Penal Law § 265.03 [1] [b]) or when "such person possesses any loaded firearm" outside "such person's home or place of business" (Penal Law § 265.03 [3]). Defendant's girlfriend at the time of the charged crimes (hereinafter the girlfriend) testified as follows. In November 2016, she was living in Delaware with her children and dating defendant, who also lived in Delaware. Around that time, defendant told her that he had to go to New York to handle some business, which he subsequently clarified to mean he was going to kill someone. She understood that he would be paid $10,000 to do this. Defendant asked her to go to Walmart and pick up a "[m]oney [g]ram" which was being sent by his associates in New York to cover the cost of a car rental. On November 16, 2016, defendant and the girlfriend went to Walmart, where she retrieved cash in the amount of $700 and gave it to defendant. Days later, defendant went to the girlfriend's house and dropped off his car, asking her to take it out and use it that evening. She saw him walk outside toward a red sedan with at least one other person inside. That night, she talked to defendant multiple times on the phone, with him telling her at one point that he was in upstate New York. She later tried calling him, but the call went straight to voicemail and she was unable to reach him at that number at any point thereafter. The next morning, defendant arrived back at the girlfriend's house. She asked him what happened, and he responded, "[t]he less you know, the better you are." When she continued to press him, defendant told her that he "killed someone." During that same day, she saw him disassemble a handgun and soak the components in bleach. She told defendant that she wanted the gun out of the house and he eventually got rid of it. In addition, at defendant's request, the girlfriend reported that defendant's cell phone had been stolen. An insurance agent testified that, in May 2016, Lall obtained a life insurance policy in the amount of $150,000, for which the victim was the insured party and Lall was the beneficiary. At that time, Lall claimed that the victim was his domestic partner. Lall contacted the agent three times in the ensuing months to verify that the policy was [*3] still in effect. In the days leading up to the shooting, Lall made two cash withdrawals from his bank account, each totaling $5,000. Two days after the shooting, Lall again contacted the insurance agent and indicated that he wanted to collect the death benefit, resulting in an investigation that revealed that Lall and the victim were not, in actuality, domestic partners. The police reviewed the victim's phone records and determined that the last three calls received by the victim on the morning of his death were from someone using a number with an area code covering a part of Pennsylvania that is close to Delaware (hereinafter the Pennsylvania number). Shortly after the victim was killed, the phone connected to the Pennsylvania number was turned off and never used again. Although the Pennsylvania number was associated with a prepaid cell phone that did not have a named subscriber, there was evidence that the girlfriend contacted defendant at this number and, indeed, defendant told both the police and his probation officer that the number was his. The Pennsylvania number also had numerous contacts with Lall, including over 100 calls in the month before the shooting, but none afterward. On November 16, 2016, the date that defendant and the girlfriend went to Walmart to pick up cash, Lall received a text message from the Pennsylvania number consisting of the girlfriend's full name. Cell site location data indicated that the phone using the Pennsylvania number traveled north from Delaware and followed the New York State Thruway to Schenectady in the hours leading up to the shooting, before it was turned off and never used again. The police used the state's license plate reader system to determine that the only vehicle to make this roundtrip during the relevant time period was a red sedan registered to Moore's girlfriend, who testified and confirmed that it was her vehicle that had been captured by the license plate reader. She stated that Moore had access to her car and later told her that he was in New York for a dice game during the relevant weekend. Through their investigation, the police learned the number for Moore's cell phone and determined that this phone, too, had traveled from Delaware to Schenectady at the same time as the Pennsylvania number on the night in question, and had also traveled back to Delaware later that night. There were numerous calls between Moore's number and the Pennsylvania number on the day of the shooting—but, notably, no calls between the two numbers during the time period that they were both tracked traveling to New York. Surveillance cameras positioned at various points in Schenectady captured the movements of a red sedan on the night in issue. The car could be seen approaching Lall's residence shortly before the shooting, with what appeared to be two people inside, and an individual, identified at trial as Lall, was observed walking between the car and the residence. The car then drove toward the victim's home [*4] , coming within a few blocks before it was no longer visible due to a lack of surveillance cameras in that area. The car passed Lall's residence again approximately one hour later, before departing the area. The police also obtained eavesdropping warrants for various phone numbers and intercepted a number of calls between defendant and Moore. In one call, a voice identified as defendant's asks a person identified as Moore whether the police have "any [pictures] of us," and Moore responds that the police have video "of us driving." In another call, Moore tells a third party that the "[m]otherf***er shot his a** as soon as he came out." In addition, during a subsequent police interview, defendant stated that even if he named other individuals, he was still going to jail. The foregoing evidence, viewed in the light most favorable to the People, is legally sufficient to support each of defendant's convictions ( see People v Jones , 215 AD3d 1123 , 1129 [3d Dept 2023], lv denied 40 NY3d 935 [2023]; People v Warner , 194 AD3d 1098 , 1103 [3d Dept 2021], lv denied 37 NY3d 1030 [2021]). As for defendant's argument that the People's proof fell short because it rested on the testimony of a purported accomplice—the girlfriend—whose testimony was not sufficiently corroborated, we disagree. While a defendant may not be convicted of an offense solely upon the testimony of an accomplice, the necessary corroborative evidence " 'need not show that the defendant was connected with the commission of the crime; it . . . is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth' " ( People v Reome , 15 NY3d 188 , 192 [2010], quoting People v Dixon , 231 NY 111, 116 [1921]; accord People v Ashe , 208 AD3d 1500 , 1502 [3d Dept 2022], lv denied 39 NY3d 961 [2022]). That said, even assuming that the jury concluded that the girlfriend was an accomplice, [FN2] the additional trial evidence amply corroborated her testimony. The above-described proof, including the evidence obtained by means of cell phone records, cell site location data, license plate readers, surveillance cameras and eavesdropping warrants, provided far more than the "slim corroborative linkage" necessary to sustain the People's burden of providing legally sufficient evidence to support each element of the charged crimes ( People v Breland , 83 NY2d 286, 294 [1994]; accord People v Malak , 117 AD3d 1170 , 1174 [3d Dept 2014], lv denied 24 NY3d 1086 [2014]; see People v Jones , 215 AD3d at 1129; People v Davis , 200 AD3d 1200 , 1203 [3d Dept 2021]; People v Heimroth , 181 AD3d 967 , 969 [3d Dept 2020], lv denied 35 NY3d 1027 [2020]). Turning to the weight of the evidence, a different verdict would not have been unreasonable had the jury chosen to disbelieve the testimony of the girlfriend, who admitted that, in exchange for testifying, the District Attorney had paid her relocation expenses of approximately $1,000 and [*5] promised not to prosecute her for any role she played in the crimes. Nevertheless, deferring to the jury's credibility determinations, we conclude that the verdict is supported by the weight of the evidence ( see People v Slivienski , 204 AD3d 1228 , 1235 [3d Dept 2022], lv denied 38 NY3d 1136 [2022]; People v Davis , 200 AD3d at 1203; People v Heimroth , 181 AD3d at 969). Defendant's contention that a circumstantial evidence charge was warranted is unpreserved for appellate review ( see People v Drumgold , 206 AD3d 1044 , 1047-1048 [3d Dept 2022], lv denied 38 NY3d 1150 [2022]) and, in any event, lacks merit. His statements to the girlfriend could reasonably be interpreted as admissions of guilt, such that they constitute direct evidence, thereby obviating the need for a circumstantial evidence instruction ( see People v Rosner , 67 NY2d 290, 295 [1986]; People v Ash , 162 AD3d 1318 , 1322 [3d Dept 2018], lv denied 32 NY3d 1002 [2018]; People v Barnes , 162 AD2d 1039, 1040 [4th Dept 1990], lv denied 76 NY2d 890 [1990]; People v Emery , 159 AD2d 992, 992 [4th Dept 1990], lv denied 76 NY2d 787 [1990]). Furthermore, even accepting for argument's sake defendant's claim that his statements to the girlfriend should be characterized as circumstantial because he did not specifically identify the victim, we note that any error in not giving the circumstantial evidence charge would be harmless given that the trial evidence "was overwhelming and there simply was no reasonable possibility, let alone significant probability[,] that the jury would have acquitted here if the circumstantial evidence charge had been given" ( People v Hilton , 185 AD3d 1147 , 1151 [3d Dept 2020] [internal quotation marks, brackets and citation omitted], lv denied 35 NY3d 1095 [2020]). Defendant's related argument that he received ineffective assistance of counsel by virtue of his trial attorney neglecting to request a circumstantial evidence charge is unpersuasive, as counsel will not be faulted for failing to make an application that has little or no chance of success ( see People v Bonaparte , 196 AD3d 866 , 870 [3d Dept 2021], lv denied 37 NY3d 1025 [2021]; People v Sabines , 121 AD3d 1409 , 1412 [3d Dept 2014], lv denied 25 NY3d 1171 [2015]). Regarding defendant's remaining contentions, including his other claims of ineffective assistance as well as his claim centering on hearsay, we have reviewed them and find them to be without merit. Pritzker, J.P., Reynolds Fitzgerald, McShan and Mackey, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote 1: Lall was also charged with life settlement fraud in the second degree. Footnote 2: In its final jury charge, County Court gave the jury an accomplice in fact instruction ( see CPL 60.22).

[Assistant]
Defendant's girlfriend who testified against him at the Murder 1 trial
deemed by trial court to be an accomplice as a matter of law. App. Div.
rejected his argument that her testimony was not adequately corroborated.
Accomplice corroboration evidence is sufficient if it "tends to connect the
defendant with the commission of the crime in such a way as to reasonably
satisfy the jury that the accomplice is telling the truth" (citations omitted)
Here, even though the jury could have found the girlfriend to be an
accomplice, evidence obtained from "cell phone records, cell site location
data, license plate readers, surveillance cameras and eavesdropping
warrants provided sufficient corroboration.
"


[User]
Summarize the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dyce 2024 NY Slip Op 06356 [233 AD3d 890] December 18, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Tajah Dyce, Appellant. Twyla Carter, New York, NY (Jody Ratner of counsel), and Kramer Levin Naftalis & Frankel LLP, New York, NY (Brian Hilburn of counsel), for appellant (one motion filed). Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Michael Bierce of counsel; Ruth Reid on the memorandum), for respondent. Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Kings County (Dena E. Douglas, J.), imposed October 27, 2022, upon his plea of guilty, on the ground that the sentence was excessive. Ordered that the sentence is affirmed. The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal ( see People v Thomas , 34 NY3d 545 [2019]; People v Lopez , 6 NY3d 248 [2006]). Contrary to the defendant's contention, the Supreme Court neither mischaracterized the finality of the appeal waiver nor failed to explain the nature of an appeal. The court's colloquy followed, almost verbatim, the model colloquy for the waiver of the right to appeal drafted by the Unified Court System's Criminal Jury Instructions and Model Colloquy Committee, the use of which has been endorsed by this Court in People v Batista (167 AD3d 69 , 76-78 [2018]) and by the Court of Appeals in People v Thomas (34 NY3d at 566-567). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive ( see People v Lopez , 6 NY3d at 255). Barros, J.P., Miller, Voutsinas and Love, JJ., concur.

[Assistant]
In upholding the validity of the waiver, App. Div. noted that "[t]he trial
court's colloquy followed, almost verbatim, the model colloquy for the
waiver of the right to appeal drafted by the Unified Court System's
Criminal Jury Instructions and Model Colloquy Committee....
"


[User]
Create a takeaway summary for the following court decision. The summary should be a 'takeaway' and include relevant citations to cases or statutes in the correct legal format when applicable.

People v Dixon 2024 NY Slip Op 06605 [233 AD3d 1026] December 24, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 12, 2025 [*1] The People of the State of New York, Respondent, v Tysean Dixon, Appellant. Margaret M. Walker, Poughkeepsie, NY (Seth J. Gallagher of counsel), for appellant. Anthony P. Parisi, District Attorney, Poughkeepsie, NY (Amie M. Johnson of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered November 28, 2022, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. The record does not reflect that the defendant knowingly, voluntarily, and intelligently waived his right to appeal, as the County Court did not discuss the appeal waiver with the defendant until after he had already fully admitted his guilt as part of the plea agreement ( see People v Frank , 223 AD3d 683 , 683 [2024]; People v Adyl K. , 187 AD3d 1208 [2020]). In light of this failure, and considering the defendant's young age and lack of criminal history, the record does not establish that the defendant understood the nature of the appellate rights he was waiving at the time he entered his plea of guilty ( see People v Frank , 223 AD3d at 683; People v Adyl K. , 187 AD3d at 1209). Thus, the purported waiver does not preclude appellate review of the defendant's claim that the court improvidently exercised its discretion in denying him youthful offender status ( see People v Green , 205 AD3d 1051 , 1052 [2022]; People v McEachern , 163 AD3d 850 , 850-851 [2018]). "The determination of whether to grant or deny youthful offender status rests within the sound discretion of the court and depends upon all the attending facts and circumstances of the case" ( People v Green , 205 AD3d at 1052; see People v Kostyk , 222 AD3d 880 , 880 [2023]). " 'In making such a determination, factors to be considered by the court include the gravity of the crime and manner in which it was committed, mitigating circumstances, defendant's prior criminal record, prior acts of violence, recommendations in the presentence reports, defendant's reputation, the level of cooperation with authorities, defendant's attitude toward society and respect for the law, and the prospects for rehabilitation and hope for a future constructive life' " ( People v Kostyk , 222 AD3d at 880, quoting People v Sutton , 184 AD3d 236 , 246 [2020]; see People v Johnson , 217 AD3d 682 , 683 [2023]). Here, contrary to the defendant's contention, the County Court providently exercised its discretion in denying the defendant youthful offender status ( see CPL 720.20 [1]; People v Kostyk , 222 AD3d at 880; People v Johnson , 217 AD3d at 683). Inasmuch as the defendant's purported waiver of the right to appeal was invalid, it [*2] does not preclude appellate review of his excessive sentence claim. However, the sentence imposed was not excessive ( see People v Suitte , 90 AD2d 80 [1982]). Miller, J.P., Christopher, Voutsinas and Ventura, JJ., concur.

[Assistant]
County Court did
not discuss the waiver of appeal with defendant until after he had already
fully admitted his guilt as part of the plea agreement [see, e.g., People v
Frank, 223 AD3d 683]. In light of this failure, and considering the
defendant's young age and lack of criminal history, the record does not
establish that the defendant understood the nature of the appellate rights he
was waiving at the time he entered his plea of guilty.