[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 Hussain 2024 NY Slip Op 05513 [234 AD3d 23] November 7, 2024 Garry, P.J. Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 19, 2025 [*1] The People of the State of New York, Respondent, v Nauman Hussain, Also Known as Shawn Hussain and Arslan Hussain, Appellant. Third Department, November 7, 2024 APPEARANCES OF COUNSEL Law Office of Steven Sharp , Albany ( Steven M. Sharp of counsel), for appellant. Susan J. Mallery , District Attorney , Howes Caves ( Karen F. McGee , New York Prosecutors Training Institute, Inc. , Albany, of counsel), for respondent. {**234 AD3d at 25} OPINION OF THE COURT Garry, P.J. Appeal from a judgment of the Supreme Court (Peter A. {**234 AD3d at 26} Lynch, J.), rendered May 31, 2023 in Schoharie County, upon a verdict convicting defendant of the crime of manslaughter in the second degree (20 counts). In October 2018, a stretch limousine for hire crashed at the bottom of a hill in Schoharie County, killing all 17 of its passengers, two pedestrians and the driver of the vehicle. An investigation revealed that the limousine had experienced catastrophic brake failure, attributable to protracted neglect of proper inspection, maintenance and repairs. During the relevant period, defendant was handling the day-to-day affairs of the business that rented out the limousine, including putting the vehicle into service on the day of the accident. Defendant was subsequently indicted on 20 counts of manslaughter in the second degree and 20 counts of criminally negligent homicide. Following his guilty plea to the lesser counts and later withdrawal of that plea, the matter proceeded to trial. A jury found defendant guilty of the manslaughter counts, and Supreme Court sentenced him to 20 concurrent prison terms of 5 to 15 years. Defendant appeals. Defendant first argues that his convictions are legally insufficient and against the weight of the evidence, maintaining that the People failed to establish both the requisite mens rea and causation. We address each aspect of his challenge in turn. As charged here, "[a] person is guilty of manslaughter in the second degree when . . . [h]e [or she] recklessly causes the death of another person" (Penal Law § 125.15 [1]). In this context, a defendant acts recklessly if he or she "is aware of and consciously disregards a substantial and unjustifiable risk" that death will occur (Penal Law § 15.05 [3]; see People v Gaworecki , 37 NY3d 225 , 230 [2021]). "The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation" (Penal Law § 15.05 [3]), and the defendant must "engage in some blameworthy conduct contributing to that risk" ( People v Asaro , 21 NY3d 677 , 684 [2013]; see People v Li , 34 NY3d 357 , 364 [2019]; People v Boutin , 75 NY2d 692, 696 [1990]). Viewing the facts in a light most favorable to the People ( see People v Danielson , 9 NY3d 342 , 349 [2007]), the proof at trial established that, during the time that defendant oversaw the operations of the subject limousine rental business, owned by his father, the company had no systems in place for the routine inspection and maintenance of its vehicles, in contravention of {**234 AD3d at 27} both industry practice and regulation. The business' limousines were observed to have expired inspection stickers and registrations, and at least one driver ultimately elected to stop working for the business because he was "uncomfortable" with its vehicles. That driver specifically refused to drive the subject limousine—a 2001 XLT Ford Excursion that had been stretched after market. [*2] Defendant was directly involved in the 2016 purchase of that limousine, and he was personally advised by its seller of the need to comply with the regulations of, among others, the Department of Transportation (hereinafter DOT), given the vehicle's 18-person seating capacity. Defendant's former driver testified that he similarly brought relevant DOT regulations to defendant's attention, but defendant assured him that he did not need to comply with those regulations because the limousine had been registered as a personal vehicle. The limousine, however, had been repeatedly registered with the Department of Motor Vehicles (hereinafter DMV), by either defendant or the business generally, as a vehicle for hire. Beginning in June 2017 and up until the date of the accident, defendant was advised on numerous occasions by DOT officials of the need to obtain a DOT certificate of authority to transport passengers for compensation in any vehicle with a seating capacity of more than 10 passengers and that, before such certificate would be granted, any such vehicle would need to undergo a DOT bus inspection. Online listings seeking to sell the limousine began to emerge in November 2017, under a phone number attributable to defendant, in which the vehicle was marketed as "DOT [r]eady." In January 2018, due to his continued noncompliance with DOT's admonitions, defendant was expressly advised to cease such operations. Subsequent roadside inspections of the limousine—which DOT officials made clear to defendant were not the requisite bus inspection—resulted in a number of violations being issued to defendant. At the first such inspection in March 2018, an out-of-service sticker was placed on the vehicle for, among other issues, a constricted hydraulic brake hose going to the left rear wheel—intentionally impinged by what appeared to be a vice grip—that resulted in defective braking. At the end of April 2018, defendant brought the vehicle to a location of Mavis Discount Tire for repairs, after transmission fluid had been erroneously added to the limousine's braking system. Defendant reported that the brake pedal was low and that the right rear brake was grinding. Notwithstanding their prior advice to defendant {**234 AD3d at 28} to have the brake system promptly flushed to address the contaminated brake fluid, Mavis discovered that transmission fluid had worked its way through the braking system. The vehicle's brake pads were also worn down to the metal. Mavis made certain comprehensive repair recommendations at that time, but defendant—who was still actively trying to sell the limousine—instructed them to perform only the minimum repairs needed to get the vehicle back on the road in time for prom season. Ultimately, Mavis replaced the left rear hydraulic brake hose, left rear caliper and the vehicle's brake pads and bled the system. When defendant retrieved the vehicle in May 2018, he requested that Mavis inspect it, and Mavis issued defendant a DMV inspection sticker, [*3] although it was unauthorized to do so for such a large vehicle. Despite the fact that several other out-of-service violations identified in the March 2018 roadside inspection were not addressed, DOT's out-of-service sticker was removed from the limousine sometime after these repairs. Defendant brought the limousine back to Mavis again in June and July 2018, having personally experienced that its brake pedal was still not holding pressure predictably. Mavis again advised defendant as to what needed to be done to fix the braking system correctly following its contamination, making clear that there would be "[r]epercussions" from the transmission fluid, meaning that "internal components could fail," and that defendant was "fighting the inevitable" in that respect. Mavis specifically recommended replacing all four calipers, among other parts, but defendant again directed that the minimum repair be performed to get the vehicle back on the road, which this time amounted to only brake pads. Defendant requested assurances from Mavis that these minimum repairs would be adequate, assurances that Mavis would not provide. Defendant then continued to rent out the limousine for hire, while also continuing to advertise it for sale as "full[y] serviced." In September 2018, at a second DOT roadside inspection, defendant received many of the same violations, as well as a violation for failing to correct previously-identified defects. An out-of-service sticker was again applied to the limousine, and defendant was again expressly informed that the out-of-service violations had to be corrected before the vehicle could be used on the roadways in this state. He was also reminded that the limousine required a DOT bus inspection before it could be {**234 AD3d at 29} operated legally. Defendant never obtained such inspection, and a vehicle autopsy conducted following the subject accident revealed that none of the identified defects had been remedied. DOT's most recent out-of-service sticker was discovered crumpled up in defendant's personal vehicle. [1] The foregoing proof was sufficient for the jury to conclude beyond a reasonable doubt that defendant was aware of and consciously disregarded the state of disrepair of the limousine's braking system—including by avoiding proper inspection, neglecting appropriate maintenance and affirmatively rejecting necessary repairs. Given the circumstances, including the age of this oversized vehicle transporting passengers, the jury could find that defendant disregarded a substantial and unjustifiable risk of death. As the proof also made clear that such disregard was a gross deviation from the standard of conduct of reasonable persons in defendant's situation, the People proffered legally sufficient evidence to establish the required mental state for second degree manslaughter ( see People v Phippen , 232 AD2d 790, 790-791 [3d Dept 1996]; cf. People v Congregational Khal Chaisidei Skwere , 232 AD2d 919, 921 [3d Dept 1996], lv denied 89 NY2d 984 [1997]). [*4] [2] As for causation, a person causes the death of another when that person's conduct is a "sufficiently direct cause" of that death ( People v Kibbe , 35 NY2d 407, 412 [1974]; see People v Hernandez , 82 NY2d 309, 314, 317 [1993]). Conduct is a sufficiently direct cause of death for the purpose of criminal liability when (1) the conduct is "an actual contributory cause of death" ( People v Matos , 83 NY2d 509, 511 [1994]) and (2) the death was a "reasonably foreseeable" result of that conduct ( People v Hernandez , 82 NY2d at 314; see People v Davis , 28 NY3d 294 , 300 [2016]). Conduct is an actual contributory cause of death when that conduct "forged a link in the chain of causes which actually brought about the death" ( People v Stewart , 40 NY2d 692, 697 [1976]; see People v Li , 34 NY3d at 369)—in other words, when the conduct "sets in motion," or continued in motion, the events that ultimately resulted in the death ( People v Matos , 83 NY2d at 511; see People v DaCosta , 6 NY3d 181 , 184 [2006]; Matter of Anthony M. , 63 NY2d 270, 280 [1984]). Death is a reasonably foreseeable result of a person's conduct when the death "is something which should have been foreseen as being reasonably related to the acts of the accused" ( People v Kibbe , 35 NY2d at 412; see People v Davis , 28 NY3d at 300). The People's uncontroverted expert testimony established that the cause of the accident was catastrophic brake failure. {**234 AD3d at 30} More specifically, the expert explained that, as the limousine descended the subject hill, the driver would have been forced to progressively increase the amount of brake pedal pressure to slow the vehicle's momentum due to the preexisting condition of its rear brakes; the right rear brake was already inoperable because both caliper pistons were seized within their bores, and the left rear brake had reduced braking force due to excessive wear of its components, consistent with recurrent metal-to-metal contact. The expert estimated that those conditions existed for at least six months preceding the accident. At some point descending that steep gradient, the braking force, and thus the pressure of the fluid in the braking system, caused a steel transverse brake line, which was also corroded, to fracture. Once that occurred, the rear brakes were rendered completely inoperable. Although the dual circuit master cylinder continued to enable front braking, the sheer kinetic energy of the limousine quickly caused the brake fluid to far surpass its boiling point, introducing air into the liquid and permitting it to compress, which in turn caused a loss of hydraulic pressure in the braking system altogether. Defendant argues that the People were required to show that it was foreseeable that the accident, and thus the death of the victims, "would occur in the manner that it did" ( People v Roth , 80 NY2d 239, 244 [1992]), which, according to defendant, is that a corroded steel brake line would fracture and cause a cascading loss of hydraulic pressure. First, this is an [*5] oversimplification of the expert's testimony, which made clear that the preexisting condition of the limousine's rear brakes—as a result of the aforementioned lack of inspection, maintenance and repairs—was a crucial factor in what caused the transverse brake line to fracture in the first instance ( compare People v Bonaventura , 271 App Div 900, 900 [2d Dept 1946]). As explained above, the condition of the rear brakes was directly attributable to defendant's conduct ( compare People v Phippen , 232 AD2d at 791-792). Second, we are not persuaded that this case is akin to manufacturing liability cases where there can be countless, disparate hazards on a jobsite, necessitating that the People prove that one among many hazards actually caused the death(s) at issue, and thus whether that precise cause of death was foreseeable ( compare People v Roth , 80 NY2d at 243-244; People v Warner-Lambert Co. , 51 NY2d 295, 307 [1980], cert denied 450 US 1031 [1981]). The highly specific showing that defendant urges regarding the mechanisms of {**234 AD3d at 31} this interconnected hydraulic braking system was not required to establish causation under these circumstances. There is thus "a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v Danielson , 9 NY3d at 349 [internal quotation marks and citations omitted]; cf. People v Congregational Khal Chaisidei Skwere , 232 AD2d at 920-921). Given, among other things, that the jury was asked to credit the testimony of Mavis employees who admitted to performing certain unauthorized/fraudulent acts, another verdict would not have been unreasonable ( see People v Danielson , 9 NY3d at 348). However, weighing the relative probative force of the testimony and the relative strength of conflicting inferences that may be drawn from the testimony ( see id .), we further find that the verdict is supported by the weight of the evidence ( see Penal Law § 125.15 [1]). [3] Defendant relatedly argues that he was deprived of his right to a fair trial by Supreme Court's jury instruction on causation. Supreme Court read the jury the expanded pattern instruction on cause of death but denied defendant's requests to (1) tailor its explanation of foreseeability to brake failure and (2) include the optional pattern language for intervening acts ( see CJI2d[NY] Expanded Charge on Cause of Death, https://www.nycourts.gov/judges/cji/1-General/CJI2d.Causation-Death.pdf [last accessed Nov. 1, 2024]). As for foreseeability, although the People proffered an abundance of proof illustrating the depth of defendant's recklessness, and his extraordinarily cavalier approach to running a highly regulated business more generally, there was no evidence upon which the jury could have reasonably concluded that anything other than catastrophic brake failure was the actual, immediate cause of the subject accident ( compare People v Roth , 80 NY2d at 239). For example, although the People [*6] elicited proof that defendant permitted the limousine's driver to operate the vehicle on the day of the accident knowing that the driver lacked the requisite passenger endorsement on his commercial driver's license, the expert proof at trial conclusively established that no driver error was to blame for the actual crash. Thus, reading the pattern charge against the evidence adduced at trial ( see People v Walker , 26 NY3d 170 , 174-175 [2015]), we do not share defendant's concerns over juror unanimity. Defendant was also not entitled to an intervening cause instruction based upon Mavis' allegedly fraudulent work. The {**234 AD3d at 32} testimony at trial established that Mavis erroneously billed defendant in May 2018 for certain repairs that had not in fact been performed—replacing the brake master cylinder and flushing the brake system to remove any remaining transmission fluid. However, the evidence further established that those two repairs were ultimately unnecessary at the time; it was undisputed that the master cylinder was functional at the time of the accident and that the limousine's brake fluid ran clear after the lines were bled. In any event, the proof also showed that defendant was repeatedly cautioned by Mavis that the minimal work that he authorized them to perform was temporary and/or partial and that components of the braking system would continue to fail. As for Mavis' inspection, it first bears noting that, even if a DMV inspection had been permissible for this commercial vehicle and duly performed, the evidence at trial was that Mavis did not have the authority to fail a vehicle from a DMV inspection for facial corrosion on a brake line. Significantly, the evidence uniformly demonstrated that defendant was fully aware that a DOT bus inspection was the safety inspection required for the limousine when he asked Mavis to perform an inspection. "[A]n intervening, independent agency will not exonerate [a] defendant unless the death is solely attributable to the secondary agency, and not at all induced by the primary one" ( People v Li , 34 NY3d at 370 [internal quotation marks and citations omitted]). As there is no view of the trial evidence that would support a finding that the victims' deaths are solely attributable to Mavis, the pattern charge provided was adequate. [4] Defendant next argues that Supreme Court violated his right to the effective assistance of counsel when it refused to grant him additional time to confer with counsel prior to withdrawing his guilty plea. [FN*] "A granting of an adjournment for any purpose is a matter of discretion for the trial court" ( People v Singleton , 41 NY2d 402, 405 [1977]; see People v Oskroba , 305 NY 113, 117 [1953]), although, "when the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed" ( People v Spears , 64 NY2d 698, 700 [1984]; see People v Danaher , 115 AD2d 905, 906-907 [3d Dept 1985]). In September 2021, the People and defendant [*7] entered into a plea agreement, pursuant to which defendant agreed to plead {**234 AD3d at 33} guilty to the 20 counts of criminally negligent homicide in satisfaction of the indictment and in exchange for a term of probation. County Court (Bartlett III, J.) accepted defendant's guilty plea and placed him on interim probation in accordance with the agreement. Judge Bartlett later retired, and the case was reassigned in July 2022. The matter was scheduled for sentencing during a subsequent appearance before Supreme Court. On the date of the anticipated sentencing in August 2022, the court advised defendant that it would not abide by the plea agreement and intended to sentence him, that day, to the maximum allowable term of imprisonment—1 1/3 to 4 years—for each count to which he had pleaded guilty, which would be required to run concurrently ( see Penal Law §§ 70.00 [2] [e]; [3] [b]; 70.25 [2]; 125.10). The court then afforded defendant just 15 minutes to confer with counsel to decide whether he wished to move forward or withdraw his plea. When the proceedings resumed approximately 20 minutes later, the court denied defendant's request for additional time and demanded an answer. Counsel responded that "[i]n light of the [c]ourt's position, [defendant was] impelled" to seek vacatur of the plea, and the court granted that request. This haste was improvident. We cannot condone the impatience demonstrated by Supreme Court when, surely, a longer period of adjournment was appropriate in light of the circumstances. Nonetheless, we do not conclude that this abuse necessitates reversal. "[A] defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea" ( People v Mitchell , 21 NY3d 964 , 966 [2013]; see People v Rozzell , 20 NY2d 712, 713 [1967]), but this is not an appeal from a conviction following a guilty plea where the right to counsel has arguably been infringed upon with respect to such a motion. Ultimately, unlike the right to a fair trial, a defendant does not have the right to a plea bargain ( see People v Bank , 28 NY3d 131 , 137 [2016]; People v Britt , 198 AD3d 1326 , 1328 [4th Dept 2021], lv denied 37 NY3d 1095 [2021]). [5] Defendant lastly challenges the severity of the sentence imposed, which was the maximum allowable prison sentence ( see Penal Law §§ 70.00 [2] [c]; [3] [b]; 70.25 [2]; 125.15 [1]). Initially, defendant's claim of vindictive sentencing is unpreserved for our review ( see People v Paul , 202 AD3d 1203 , 1212 [3d Dept 2022], lv denied 38 NY3d 1034 [2022]; People v Kabia , 197 AD3d 788 , 792 [3d Dept 2021], lv denied 37 NY3d 1162 [2022]). Additionally, because defendant withdrew his guilty {**234 AD3d at 34} plea and was ultimately convicted of the higher counts of this indictment, we are unpersuaded by any suggestion that his time on interim probation transforms this maximum permissible sentence into an illegal one. Finally, we decline defendant's request to reduce his sentence as a matter of discretion in the interest of justice ( see [*8] CPL 470.15 [6] [b]). Although we are cognizant of defendant's limited criminal history and his general compliance with probation, the underlying tragedy cannot be discounted. Twenty people lost their lives because defendant did not wish to inspect, maintain or repair the subject limousine. The sentence imposed is not unduly harsh or severe but instead reflects the grievous harm caused by defendant's recklessness, and his callousness. Defendant's remaining claim is unavailing. Egan Jr., Reynolds Fitzgerald, Ceresia and Powers, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: We reject the People's assertion that this argument is not preserved, as well as their claims of preclusion premised upon Matter of Hussain v Lynch (215 AD3d 121 [3d Dept 2023]).

[Assistant]
Manslaughter 2 convictions upheld in case arising out of the crash,
resulting in the deaths of 20 people, of a stretch limousine that was part of
defendant's livery fleet; defendant was not the driver of the limo that
crashed, according to expert testimony, due to catastrophic brake failure.


[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 Shaw 2024 NY Slip Op 04214 [230 AD3d 599] August 14, 2024 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, October 2, 2024 [*1] The People of the State of New York, Respondent, v Kenneth Shaw, Appellant. Mischel & Horn, P.C., New York, NY (Richard E. Mischel of counsel), for appellant. Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent. Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kenneth C. Holder, J.), rendered December 2, 2019, convicting him of manslaughter in the first degree, upon a jury verdict, and sentencing him to a determinate term of imprisonment of 20 years, to be followed by 5 years of postrelease supervision. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed from a determinate term of imprisonment of 20 years, to be followed by 5 years of postrelease supervision, to a determinate term of imprisonment of 10 years, to be followed by 5 years of postrelease supervision; as so modified, the judgment is affirmed. The defendant was convicted of manslaughter in the first degree in connection with the July 2017 stabbing of John Savillo in Cookie's Lounge (hereinafter Cookie's), a bar in Queens. At trial, Diane Colucciello, an eyewitness, testified on behalf of the People that the defendant and Savillo were both regular customers at Cookie's. On the night in question, Savillo was at Cookie's with a woman named Casandra. Savillo suddenly became angry when the defendant and his girlfriend were admiring Casandra's tattoo. Savillo pushed the defendant and knocked him to the floor. According to Colucciello, the defendant got up and the two began to fight, at which point Colucciello backed away. Colucciello's son Tommy, who had been banned from Cookie's for aggressive behavior, was waiting outside of the bar and came in once the fighting began. Colucciello testified that she told Tommy to get out, pushed him out, and locked the door to the bar. Colucciello then turned her attention back to the fight and saw that Savillo had been stabbed. Colucciello, who had a felony conviction for possession of a forged instrument, admitted that she lied to the police and told them that her son was not at Cookie's that night because she wanted to protect him. Colucciello testified that Tommy ran into the bar when Savillo started the fight in order to assist Savillo. Upon turning her attention back to the fight, Colucciello testified that she saw the defendant with a knife, that he was "in tears," and that he told Savillo that he was sorry and "didn't mean it." Paramedics arrived and found Savillo bleeding from the abdomen, with an evisceration, meaning his intestine was sticking out from a stab wound. Savillo was taken to the hospital, where he was found to be bleeding profusely from two stab wounds, one of which had such force that it lacerated his liver. Medical personnel were able to stabilize Savillo for a period of time, [*2] but he began to bleed again and eventually died from excessive bleeding. A toxicology report disclosed that Savillo had in his system, among other things, alcohol, Xanax, and cocaine, which a People's witness testified can elevate blood pressure. Savillo also told emergency medical services personnel that he had taken blood thinners and cocaine earlier that day. The police did not recover any weapons from the scene of the incident. The defense presented the testimony of Christine DeFilippis, who had been the bartender at Cookie's on the night of the incident. DeFilippis testified that Savillo was a very good friend, but he would become angry "for silly reason[s]" and had been in a fight in Cookie's before. She also testified that she previously had never seen the defendant act aggressively, yell, or engage in any altercation. DeFilippis confirmed Colucciello's testimony that Tommy had been banned from Cookie's because he was a "troublemaker" who "usually [wound] up fighting." DeFilippis also confirmed that the subject altercation had begun when Savillo "went a little bit out of his mind" and "got very angry and started to yell at [the defendant]." According to DeFilippis, the defendant "backed off" and apologized, at which point Tommy came running into the bar. DeFilippis began to head back to her seat behind the bar when she heard a commotion, turned, and saw Savillo shove the defendant, who stumbled to the floor. DeFilippis looked out the window for someone to help break up the fight. DeFilippis then turned her attention back to the fight, where she saw "a huddle of people" surrounding the defendant on the floor, and it appeared that Savillo was kicking the defendant. DeFilippis testified that the defendant "was getting beat up pretty bad" and that Savillo threw a bar stool at him, but that she thereafter "kind of blanked out" and did not recall much about the fight or see anyone with a knife. DeFilippis called 911 and requested an ambulance, and she testified that it was at this time that Colucciello locked the door to the bar to keep Tommy out. The defendant contends that the People failed to establish that he intended to cause serious physical injury ( see Penal Law § 125.20 [1]) and failed to disprove his justification defense ( see id. § 35.15). The defendant's challenge to the legal sufficiency of the evidence disproving his justification defense beyond a reasonable doubt is unpreserved for appellate review ( see CPL 470.05 [2]; People v Hawkins , 11 NY3d 484 , 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution ( see People v Contes , 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt ( see People v Irving , 226 AD3d 703 , 703 [2024]; People v Green , 223 AD3d 914 , 914-915 [2024]). Furthermore, the defendant does not dispute that he is the person who stabbed Savillo, and the defendant's intent to cause serious physical injury ( see Penal Law § 10.00 [10]) may be inferred from the medical evidence regarding the nature and severity of the stab wounds ( see People v Steinberg , 79 NY2d 673, 682 [1992]; People v Crocker , 186 AD3d 500 , 501 [2020]). In fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15 [5]; People v Danielson , 9 NY3d 342 , 348 [2007]), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v Mateo , 2 NY3d 383, 410 [2004]; People v Bleakley , 69 NY2d 490, 495 [1987]). Here, while an acquittal would not have been unreasonable, the verdict of guilt was not against the weight of the credible evidence ( see People v Danielson , 9 NY3d at 348-349). The sentence imposed was excessive to the extent indicated herein ( see CPL 470.15 [6] [b]; People v Suitte , 90 AD2d 80 [1982]). Brathwaite Nelson, J.P., Chambers, Wan and Landicino, JJ., concur.

[Assistant]
Manslaughter 1 conviction, for stabbing the victim during a bar fight,
affirmed. In addition to his admission that he stabbed the victim,
defendant's intent to cause serious physical injury (Penal Law §
10.00[10]) may be inferred from the medical evidence regarding the nature
and severity of the stab wounds.


[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 White 2024 NY Slip Op 05372 [231 AD3d 1429] October 31, 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 31, 2024) The People of the State of New York, Respondent, v Shaquille White, Appellant. Mitchell Kessler, Cohoes, for appellant. P. David Soares, District Attorney, Albany (Daniel J. Young of counsel), for respondent. Mackey, J. Appeal from a judgment of the County Court of Albany County (Andra Ackerman, J.), rendered July 16, 2021, upon a verdict convicting defendant of the crimes of kidnapping in the second degree, assault in the second degree, strangulation in the second degree, rape in the first degree, criminal sexual act in the first degree and tampering with a witness in the fourth degree. In 2020, defendant was charged by indictment with kidnapping in the second degree, assault in the second degree, strangulation in the second degree, rape in the first degree, criminal sexual act in the first degree and tampering with a witness in the fourth degree. After a jury trial, he was convicted as charged. At sentencing, County Court found defendant to be a second violent felony offender, and it sentenced him to a prison term of 25 years, to be followed by 15 years of postrelease supervision, on the rape in the first degree conviction, a consecutive prison term of 20 years on the kidnapping in the second degree conviction, to be followed by five years of postrelease supervision, and to lesser concurrent terms of incarceration on the remaining convictions. Defendant appeals. Initially, defendant contends that the evidence is legally insufficient to support his conviction for kidnapping in the second degree and that all of the convictions are against the weight of the evidence. "When assessing the legal sufficiency of a jury verdict, [this Court] view[s] the facts in the light most favorable to the People and examine[s] whether there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt" ( People v Bridges , 220 AD3d 1107 , 1108 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 1091 [2024]). "[W]hen conducting a weight of the evidence review, [this Court] must view the evidence in a neutral light and determine first whether a different verdict would have been unreasonable and, if not, 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 Jenkins , 215 AD3d 1118 , 1119 [3d Dept 2023] [internal quotation marks and citations omitted], lv denied 40 NY3d 997 [2023]). Deference is afforded to the jury's credibility determinations when this Court conducts a weight of the evidence review ( see People v Mansfield , 223 AD3d 1111 , 1115 [3d Dept 2024], lv denied 42 NY3d 928 [2024]; People v Karnes , 223 AD3d 1119 , 1122 [3d Dept 2024], lv denied 42 NY3d 928 [2024]). As relevant here, "[a] person is guilty of kidnapping in the second degree when he [or she] abducts another person" (Penal Law § 135.20). "A person is guilty of assault in the second degree when . . . [w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third [*2] person" (Penal Law § 120.05 [1]). A person is guilty of strangulation in the second degree when he or she "applies pressure on the throat or neck of such person" (Penal Law § 121.11 [a]) and it results in the "loss of consciousness for any period of time" (Penal Law § 121.12). "A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person . . . [b]y forcible compulsion" (Penal Law former § 130.35 [1]), which means compelling the act by using "physical force" (Penal Law § 130.00 [8] [a]). "A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct . . . with another person . . . [b]y forcible compulsion" (Penal Law former § 130.50 [1]). Finally, "[a] person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, . . . he [or she] wrongfully induces or attempts to induce such person to absent himself [or herself] from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding" (Penal Law § 215.10 [a]). At trial, the victim testified that in May 2020, she met defendant at a "weed spot." Over the next few days, they became intimate and spent time together at an unfinished apartment the victim and her mother had rented in the Village of Waterford, Saratoga County. Five days into their relationship, which the victim considered to be casual, she called it off while she was with defendant in her Jeep at a gas station in the City of Cohoes, Albany County. After initially storming off, defendant returned and punched the victim in the face, breaking her jaw and dislodging several teeth. He threatened that he "was [not] going back to jail," that she was "fu**ing with his gangster" and that he would kill her. He then ordered her to get into her Jeep's passenger seat and drove them to the apartment, where he took her car keys and cell phone. At the apartment, defendant repeatedly punched the victim in the face, knocking her unconscious several times, forcibly performed oral sex on her, strangled her to the point that she lost consciousness, and had sexual intercourse with her by force. Defendant threatened to kill her several times throughout this ordeal and repeatedly ignored her pleas for medical assistance. Eventually, defendant agreed to let the victim leave, with him, but only after she promised not to tell anyone what had happened. The victim's mother testified that on the date of the incident, the victim was with defendant, whom she had met "a couple of times." At some point during the day, she called the victim on her cell phone and "heard her screaming and crying" that she wanted to come home, then the call ended abruptly. After there was no answer when she tried again, she called the police. At the mother's request, the police went to the apartment but, by the time they arrived, the victim and defendant were no longer there. An hour or two later [*3] , they appeared at the mother's residence in Cohoes, at which time the victim's "face was all bloody," her teeth were broken and she could not stand up straight. The mother testified that she immediately asked the victim and defendant what had happened, and defendant told her that the victim had been "jumped" by his ex-girlfriend. Defendant eventually drove the mother and the victim to and from the hospital. After they returned from the hospital, the victim told her mother what defendant had done to her, but neither of them immediately called the police out of fear that defendant would retaliate. A neighbor testified that he saw the victim and defendant leave the apartment on the day of the incident and that the victim "did not look good." A physician at Albany Medical Center testified that he treated the victim when she arrived at the hospital. He testified that "she had bruising to her face, throat and her jaw was throbbing" and had neck bruising that was consistent with strangulation. Testing revealed that her jaw was fractured. The physician recalled that the victim told him "her boyfriend choked her during the assault" and "knocked [her] out" but she refused to allow him to call the police. Another physician testified that there were visible fractures on the victim's face, which resulted from "significant trauma." The victim testified that she called the police four days after the incident and, in the days after that, observed one of defendant's brothers in an SUV "sitting outside of [her] apartment for hours." A friend of defendant also called the victim; he said that he was "calling for" defendant, told her not to testify, and promised "whatever [she] needed, money or weed" in exchange for her silence. Regarding the issue of legal sufficiency concerning the kidnapping conviction, defendant argues that the evidence does not support a finding that he abducted the victim. As relevant here, the term "[a]bduct" is defined as "restrain[ing] a person with intent to prevent his [or her] liberation by either (a) secreting or holding him [or her] in a place where he [or she] is not likely to be found, or (b) using or threatening to use deadly physical force" (Penal Law § 135.00 [2]). Here, there was significant evidence to support a finding that the victim was secreted in a place in which she was unlikely to be found, both when she was riding in the Jeep and when she was in the unfinished apartment ( see People v Delp , 156 AD3d 1450 , 1452 [4th Dept 2017], lv denied 31 NY3d 983 [2018]; People v Manning , 151 AD3d 1936 , 1937-1938 [4th Dept 2017], lv denied 30 NY3d 951 [2017]). Additionally, the victim testified that defendant accomplished his restraint by threatening to kill her. Certainly, viewed in the light most favorable to the People ( see People v Contes , 60 NY2d 620, 621 [1983]), the evidence is legally sufficient to support the kidnapping conviction. Likewise, we find no merit to defendant's assertion that the verdict is against the weight of [*4] the evidence. Although a different verdict might not have been unreasonable, as the victim gave varying accounts of the incident, the issue of her credibility was fully explored at trial. There was nothing incredible or inherently unbelievable about the victim's testimony and she explained that her initial reluctance to identify defendant as the perpetrator stemmed from her fear of retaliation, which testimony the jury was free to credit. The victim's testimony as to the attack itself was certainly supported by physical evidence—she suffered a broken jaw, a concussion, several missing teeth and bruises all over her body. According due deference to the jury's resolution of credibility issues, we find no basis to disturb the verdict ( see People v Cummings , 188 AD3d 1449 , 1453 [3d Dept 2020], lv denied 36 NY3d 1096 [2021]; People v Hadfield , 119 AD3d 1217 , 1220 [3d Dept 2014], lv denied 25 NY3d 989 [2015]; People v Reynolds , 81 AD3d 1166 , 1167 [3d Dept 2011], lv denied 16 NY3d 898 [2011]). [FN*] Defendant's contention that his conviction for kidnapping in the second degree is precluded under the merger doctrine is unpreserved and we decline to exercise our interest of justice jurisdiction to modify the judgment on that basis ( see People v Bonilla , 229 AD3d 850 , 853-854 [3d Dept 2024]). As an explanation for such determination, defendant's reliance on the merger doctrine is unavailing, given that his hours-long abduction and restraint of the victim was not "simultaneous and inseparable" from the other crimes but, rather, was "a crime in itself" ( People v Gonzalez , 80 NY2d 146, 153 [1992]; see People v Place , 152 AD3d 976 , 980 [3d Dept 2017], lv denied 30 NY3d 1063 [2017]; People v Thorpe , 141 AD3d 927 , 932 [3d Dept 2016], lv denied 28 NY3d 1031 [2016]). To be sure, the evidence at trial demonstrated that defendant forcibly prevented the victim from leaving her Jeep by threatening her life and then transported her to the unfinished apartment, where he assaulted her to the point of unconsciousness, sodomized, raped and strangled her. Finally, we reject defendant's contention that his sentence is unduly harsh and severe. Initially, defendant's argument that County Court punished him for invoking his constitutional right to testify at trial is unpreserved for this Court's review, as it was not raised at sentencing ( see People v Martinez , 144 AD3d 1326 , 1326 [3d Dept 2016], lv denied 28 NY3d 1186 [2017]). In any event, we have carefully reviewed the court's comments made during the sentencing proceeding and do not find that the court considered any inappropriate factors in imposing the sentence. A review of the record also reveals that County Court specifically considered defendant's traumatic childhood in imposing the sentence, while also giving due regard to his past criminal history and the brutality of his attack on the victim. Given the seriousness of defendant's conduct and the fact that the sentence imposed was less than the maximum allowable, we do [*5] not find that the sentence was unduly harsh or severe so as to warrant invoking our intent of justice jurisdiction to reduce it ( see CPL 470.15 [6] [b]; People v King , 225 AD3d 937 , 938 [3d Dept 2024]). Accordingly, the judgment of conviction is in all respects affirmed. Clark, J.P., Pritzker, Ceresia and Fisher, JJ., concur. Ordered that the judgment is affirmed. Footnotes Footnote *: Specific to the witness tampering conviction, the victim testified that an associate of defendant, who told her that he was "calling for" defendant, attempted to dissuade her from testifying by offering her financial rewards. Viewing the evidence in a neutral light, this conviction is also supported by the weight of the evidence ( see People v Rahaman , 189 AD3d 1709 , 1712 [3d Dept 2020], lv denied 36 NY3d 1059 [2021]).

[Assistant]
The
kidnapping merger doctrine does not apply where, as here, defendant
abducted and restrained his victim for hours before he sexually assaulted
her. The kidnapping was not simultaneous and inseparable from the other
crimes; it was a crime in and of itself.


[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 Maraj 2024 NY Slip Op 03497 [228 AD3d 958] June 26, 2024 Appellate Division, Second 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 Jelani Maraj, Appellant. Metcalf & Metcalf, P.C., New York, NY (Steven A. Metcalf II of counsel), for appellant. Anne T. Donnelly, District Attorney, Mineola, NY (Judith R. Sternberg, Hilda Mortensen, and Sarah S. Rabinowitz of counsel), for respondent. Appeal by the defendant from a judgment of the County Court, Nassau County (Robert A. McDonald, J.), rendered January 27, 2020, convicting him of predatory sexual assault against a child and endangering the welfare of a child, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant contends that he was deprived of his rights to due process and equal protection because he was prosecuted for predatory sexual assault against a child, a class A-II felony (Penal Law § 130.96), even though the same conduct also constituted the offense of course of sexual conduct against a child in the first degree, a class B felony (Penal Law § 130.75). This contention is without merit. "The law 'provides the prosecutor with broad discretion to decide what crimes to charge' and 'overlapping' criminal statutes [without more] do not violate the defendant's constitutional rights" ( People v Greene , 57 AD3d 1004 , 1005 [2008], quoting People v Eboli , 34 NY2d 281, 287 [1974]; see People v Urbaez , 10 NY3d 773 , 775 [2008]; People v Eboli , 34 NY2d 281, 287 [1974]; People v Lawrence , 81 AD3d 1326 , 1326-1327 [2011]). Contrary to the defendant's contention, the County Court did not improvidently exercise its discretion in precluding evidence concerning the victim's alleged sexual history under the Rape Shield Law ( see CPL 60.42). "A trial court's rape-shield ruling will be upheld unless it was an improvident exercise of the court's discretion, and deprived the defendant of his [or her] right of confrontation" ( People v Tohom , 109 AD3d 253 , 274 [2013]). Here, the defendant's offer of proof as to whether the victim had engaged in sexual conduct with other individuals that might have explained certain physical injuries she sustained to her genital area was purely based upon rumor and speculation. This offer of proof was therefore insufficient to overcome the presumption that such evidence should be precluded pursuant to the Rape Shield Law ( see id. ; People v Wieners , 33 AD3d 637 , 638 [2006]). Contrary to the defendant's additional contention, the County Court did not err in denying his motion pursuant to CPL 330.30 (2) to set aside the verdict based upon juror misconduct. "Under CPL 330.30 (2), a motion to set aside a verdict may be granted when it is shown that improper conduct by a juror 'may have affected a substantial right of the defendant' " ( People v Clark , 81 NY2d 913, 914 [1993]). "Generally, a jury verdict may not be impeached by proof of the tenor [*2] of its deliberations, but it may be upon a showing of improper influence" ( People v Brown , 48 NY2d 388, 393 [1979]; see People v Maragh , 94 NY2d 569, 573 [2000]; People v Veliz , 222 AD3d 785 , 786 [2023]); that is, "where the jury has been improperly influenced by matters going beyond the scope of the trial evidence" ( People v Lehrman , 155 AD2d 693, 694 [1989]; see People v Brown , 48 NY2d at 393; People v Veliz , 222 AD3d at 786). However, "not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically" ( People v Brown , 48 NY2d at 394; see People v Clark , 81 NY2d at 914). "Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered" ( People v Clark , 81 NY2d at 914). Here, in support of his motion to set aside the verdict, the defendant submitted, among other things, an affidavit from an alternate juror, who did not deliberate, averring that certain improper comments were made by the jurors prior to deliberations. The defendant also submitted an affirmation from defense counsel relating statements made to defense counsel by a courtroom observer who had spoken to some of the jurors after the trial and was allegedly told of certain juror misconduct. The County Court thereafter held a lengthy hearing on the motion, at which the testimony of the deliberating jurors was taken, and that testimony contradicted the averments and the hearing testimony of the alternate juror, as well as the hearing testimony of the courtroom observer. The deliberating jurors who testified denied that the improper comments were made and confirmed that their verdict was based upon the trial evidence and was not affected by outside influences. Under the circumstances, the court, crediting the testimony of the deliberating jurors, properly determined that the defendant failed to demonstrate a likelihood of prejudice to a substantial right so as to warrant setting aside the verdict ( see People v Samandarov , 13 NY3d 433 , 437-438 [2009]; People v Veliz , 222 AD3d at 787; People v Murphy , 218 AD3d 795 [2023]; People v Mack , 224 AD2d 448, 449 [1996]; People v Lehrman , 155 AD2d at 694). The defendant's remaining contentions are without merit. Iannacci, J.P., Chambers, Wooten and Wan, JJ., concur.

[Assistant]
Not
improper to prosecute defendant for predatory sexual assault against a
child, a class A-II felony (Penal Law § 130.96), even though the same
conduct also constituted the offense of course of sexual conduct against a
child in the first degree, a class B felony (Penal Law § 130.75).
"The law
'provides the prosecutor with broad discretion to decide what crimes to
charge' and 'overlapping' criminal statutes [without more] do not violate
the defendant's constitutional rights [citations omitted].
"


[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.

[*1] People v Muller (Victoria) 2024 NY Slip Op 51425(U) Decided on October 18, 2024 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on October 18, 2024 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT PRESENT: Tisch, J.P., James, Perez, JJ. 570071/20 The People of the State of New York, Respondent, against Victoria Muller, Defendant-Appellant. Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Jeffrey M. Zimmerman, J.), rendered January 13, 2020, after a jury trial, convicting her of obstructing governmental administration in the second degree and resisting arrest, and imposing sentence. Per Curiam. Judgment of conviction (Jeffrey M. Zimmerman, J.), rendered January 13, 2020, affirmed. The information charging obstructing governmental administration in the second degree ( see Penal Law § 195.05), was not jurisdictionally defective. Nonhearsay allegations established every element of the offense and defendant's commission thereof ( see CPL 100.40[1][c]; People v Middleton , 35 NY3d 952 , 954 [2020]). The instrument recited that inside 265 East 161st Street, Bronx County, at 10:20 a.m., the deponent court officer, while conducting security scans by the magnetometers, "instructed defendant numerous times to remove her hat so she could put it through the machine, which defendant repeatedly refused to do"; and that when instructed "to step to the side or she would have to leave," defendant "again refused to follow" the officer's instructions. These allegations and the reasonable inferences to be drawn from them were sufficient for pleading purposes to establish that defendant physically interfered with and disrupted the official function performed by the court officers ( see Penal Law § 195.05). Contrary to defendant's present claims, the allegations that she repeatedly refused to remove her hat and put it through the magnetometer, and then refused to step aside or leave, satisfied the requirement that the interference must be "in part at least, physical in nature" ( People v Dumay , 23 NY3d 518 , 524 [2014], quoting People v Case , 42 NY2d 98, 102 [1977]; see People v Romeo, 9 AD3d 744 , 745 [2004][interference sufficient to establish the crime of obstructing governmental administration in the second degree includes inappropriate and disruptive conduct at the scene of the performance of an official function]; People v Barrett , 179 Misc 2d 261 [1998] [refusal to move through the magnetometer impeding others from entering [*2] the courthouse constituted second-degree obstruction of governmental administration]). Nor was the accusatory instrument rendered infirm by the absence of an additional allegation that the underlying magnetometer duties performed by the court officer were "authorized" ( see People v Pappalardo , 180 Misc 2d 707 [App Term, 1st Dept 1999]; People v Contino , 26 Misc 3d 141 [A], 2010 NY Slip Op 50343[U] [App Term, 1st Dept 2010], lv denied 15 NY3d 803 [2010]). Since defendant's arrest for second degree obstructing governmental administration was authorized, her struggle to avoid being handcuffed constituted resisting arrest ( see Matter of Miguel R. , 74 AD3d 548 [2010]). The court properly denied defendant's application pursuant to Batson v Kentucky , 476 US 79, 93—96 (1986). As defendant concedes, the People provided race neutral reasons for their challenges, and record supports the court's finding that the nondiscriminatory reasons provided by the People for the challenges in question were not pretextual, including that one panelist arrived "a number of minutes late" ( see People v Duncan , 177 AD2d 187, 193 [1992], lv denied 79 NY2d 1048 [1992]), and another was flippant on voir dire ( see People v Cruz , 228 AD3d 1019 [2024]; see also United States v Biaggi , 853 F 2d 89, 96 [2d Cir 1988], cert den 489 US 1052 [1989]). Given the great deference afforded the fact-finding court due to its ability to assess the credibility of the attorney and the demeanor of the panelists, we find no basis to conclude the court erred in this determination ( see People v Wright , — NY3d &mdash, 2024 NY Slip Op 03320 [2024]; People v Hecker , 15 NY3d 625 , 663-665 [2010]; People v Hernandez , 75 NY2d 350, 356 [1990], affd 500 US 352 [1991]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: October 18, 2024

[Assistant]
Repeatedly refusing to remove hat and put it through the magnetometer,
and then refusing to step aside or leave, satisfied the requirement that the
interference must be "in part at least, physical in nature" and such interference includes inappropriate and disruptive conduct at the scene of
the performance of an official function.


[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 Blackwood 2024 NY Slip Op 05353 [231 AD3d 1165] October 30, 2024 Appellate Division, Second 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, Appellant, v Phillip Blackwood, Respondent. Miriam E. Rocah, District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for appellant. Clare J. Degnan, White Plains, NY (Marquetta Christy of counsel), for respondent. Appeal by the People from an order of the Supreme Court, Westchester County (Susan M. Capeci, J.), entered September 29, 2023. The order, insofar as appealed from, in effect, upon reargument, adhered to the original determination in an order of the same court entered July 19, 2023, granting that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment. Ordered that the order entered September 29, 2023, is reversed insofar as appealed from, on the law, and, upon reargument, so much of the order entered July 19, 2023, as granted that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment is vacated, and thereupon, that branch of the defendant's omnibus motion is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on the indictment. On March 7, 2023, an indictment was filed charging the defendant with criminal contempt in the first degree (Penal Law § 215.51 [c]), and on March 9, 2023, the defendant was arraigned on that charge. In May 2023, in an omnibus motion, the defendant moved, inter alia, pursuant to CPL 210.20 and 210.30 to dismiss the indictment on the grounds that the proof submitted to the grand jury was legally insufficient and that the grand jury proceeding was defective. The People opposed. By order entered July 19, 2023, the Supreme Court granted that branch of the defendant's omnibus motion. The People then moved for leave to reargue their opposition to that branch of the defendant's omnibus motion. By order entered September 29, 2023, the court, in effect, granted reargument and, upon reargument, adhered to its original determination. The People appeal. "[T]he denial of a motion for leave to reargue is not appealable" ( Matter of Lillian G. [Steven G.—Gary G.] , 208 AD3d 871 , 874 [2022]; see Brilliantine v East Hampton Fuel Oil Corp. , 221 AD3d 951 , 952 [2023]; Bank of N.Y. Mellon v Lewis , 200 AD3d 969 , 970 [2021]). Contrary to the defendant's contention, the Supreme Court, in the order entered September 29, 2023, in fact reconsidered the People's opposition to the subject branch of the defendant's omnibus motion. Therefore, the court, in effect, granted reargument, but adhered to its original determination. As such, an appeal properly lies from that order ( see People v Taback , 216 AD3d 673 , 674 [2023]; People v Sturges , 164 AD3d 616 , [*2] 617-618 [2018]; People v Sadowski , 173 AD2d 873, 873 [1991]). " 'To dismiss an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury' " ( People v Jessup , 90 AD3d 782 , 783 [2011], quoting People v Bello , 92 NY2d 523, 525 [1998]). "Legally sufficient evidence is defined as 'competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof' " ( id. , quoting CPL 70.10 [1]; see People v Deitsch , 97 AD2d 327, 329 [1983]). " 'In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt' " ( People v Jessup , 90 AD3d at 783, quoting People v Bello , 92 NY2d at 526). "Thus, '[t]he reviewing court's inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference' " ( id .). A defendant had actual knowledge of the contents of a subject order of protection where "the evidence established that the defendant was present at the proceeding where the order of protection was issued, [his or her] attention was drawn to the issuance of the order by the court, and a copy of the order was provided to [him or her]" ( People v James , 135 AD3d 787 , 788 [2016]; see People v Clark , 95 NY2d 773, 775 [2000]; People v Aveni , 100 AD3d 228 , 241 [2012]). Here, the evidence viewed in the light most favorable to the People, if uncontradicted, established, prima facie, that the defendant had knowledge of the prohibited conduct and nevertheless violated the order of protection by not staying away from the protected party ( see People v Bello , 92 NY2d at 525; People v Jessup , 90 AD3d at 783). The order of protection established that the defendant was personally served with the order of protection in court and that he was advised in court of the issuance and contents of the order, and the order of protection contains the defendant's signature ( see People v Clark , 95 NY2d at 775; People v James , 135 AD3d at 788). Although the box alongside "Stay away from" was not checked, the protected party's name was typed in the space following that check box and all six subcategories of that section were checked ( cf. People v Hopkins , 275 AD2d 667 [2000]). As such, the defendant was not entitled to dismissal of the indictment on the ground that the evidence submitted to the grand jury was legally insufficient. Pursuant to CPL 210.35 (5), "[a]n indictment should be dismissed where the grand jury proceeding is defective such that it 'fails to conform to the requirements of article one hundred ninety [of the Criminal Procedure Law] to such degree that the integrity thereof is impaired and prejudice to the defendant may result' " ( People v Nicholson , 210 AD3d 1009 , 1010 [2022]; see CPL 210.20 [1] [c]; 210.35 [5]; People v Thompson , 22 NY3d 687 , 699 [2014]). " 'The exceptional remedy of dismissal . . . under CPL 210.35 (5) should . . . be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice the ultimate decision reached by the Grand Jury' " ( People v Miles , 76 AD3d 645 , 645 [2010], quoting People v Huston , 88 NY2d 400, 409 [1996]). Here, it would not be impossible for the People to obtain a conviction against the defendant ( see People v Gordon , 88 NY2d 92, 97-98 [1996]; People v Swamp , 84 NY2d 725, 732 [1995]). Furthermore, the People's presentation of evidence to the grand jury was proper ( see CPL 210.20 [1] [c]; 210.35 [5]; People v Thompson , 22 NY3d at 699; People v Nicholson , 210 AD3d at 1010; People v Miles , 76 AD3d at 645). Accordingly, upon reargument, the Supreme Court should have denied that branch of the defendant's omnibus motion which was pursuant to CPL 210.20 and 210.30 to dismiss the indictment. Connolly, J.P., Ford, Love and McCormack, JJ., concur.

[Assistant]
App. Div. reinstated indictment dismissed by trial court. Viewed in the
light most favorable to the People, the evidence, if uncontradicted,
established, prima facie, that the defendant had knowledge of the
prohibited conduct and nevertheless violated the order of protection by not
staying away from the protected party. The order of protection established
that the defendant was personally served with the order of protection in
court and that he was advised in court of the issuance and contents of the order, and the order of protection contains the defendant's signature.
Although the box alongside "Stay away from" was not checked, the
protected party's name was typed in the space following that check box
and all six subcategories of that section were checked. Hence, the evidence
before the grand jury was legally 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 Rock 2024 NY Slip Op 05162 [231 AD3d 1315] 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 Donald Rock, Appellant. LaMarche Safranko Law PLLC, Cohoes (Joshua R. Friedman of counsel), for appellant. Andrew J. Wylie, District Attorney, Plattsburgh (Jennifer C. Manning of counsel), for respondent. Aarons, J. Appeal from a judgment of the County Court of Clinton County (Keith M. Bruno, J.), rendered July 23, 2021, upon a verdict convicting defendant of the crimes of falsifying business records in the first degree and attempted criminal purchase of a weapon. In June 2019, defendant tried to buy a shotgun at a store in Clinton County, a transaction that requires a purchaser to complete Form 4473 published by the Bureau of Alcohol, Tobacco, Firearms and Explosives (hereinafter the ATF form) for the purpose of conducting a background check on the National Instant Criminal Background Check System (hereinafter NICS). Question 11.h of the ATF form asks, "Are you subject to a court order restraining you from harassing, stalking or threatening your child or an intimate partner or child of such partner?" In conformity with 18 USC § 922, the instructions for question 11.h specify that a person must answer "yes" if the court order "was issued after a hearing which the person received actual notice of and had an opportunity to participate in." Defendant checked the box indicating "[n]o." Defendant did not pass the NICS background check, and the store did not sell him the shotgun. Investigation of the denied purchase revealed an August 19, 1993 restraining order, without an expiration date, issued against defendant by a New Jersey court in favor of defendant's former spouse. Alleging that defendant knew he was barred from possessing a firearm because of an existing order of protection and lied on his ATF form to unlawfully buy one anyway, the People charged him by indictment with falsifying business records in the first degree and attempted criminal purchase of a weapon ( see Penal Law §§ 110.00, 175.10, 265.17 [1]). Following a jury trial, defendant was found guilty as charged and sentenced to probation. Defendant appeals. We reverse. Initially, defendant's motion for a trial order of dismissal "was not premised on the specific grounds upon which defendant now relies and, as such, his challenge to the legal sufficiency of the evidence is unpreserved" ( People v Gentry , 218 AD3d 919 , 921 [3d Dept 2023] [internal quotation marks and citation omitted], lv denied 40 NY3d 1012 [2023]). Defendant also contends that the verdict is against the weight of the evidence, which necessarily requires us to assess whether the People proved all elements of the charged crimes beyond a reasonable doubt ( see People v Ashe , 208 AD3d 1500 , 1501 [3d Dept 2022], lv denied 39 NY3d 961 [2022]). As to attempted criminal purchase of a weapon, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he [or she] engages in conduct which tends to effect the commission of such crime" (Penal Law § 110.00; see People v Hiedeman , 189 AD3d 1902 , 1903-1904 [3d Dept 2020], lv denied 36 NY3d 1120 [2021]). "A person is guilty of criminal purchase . . . of a weapon when . . . [, k]nowing that he or she is prohibited by law from possessing a firearm, rifle or shotgun because [*2] of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state . . . , such person purchases or otherwise acquires a firearm, rifle or shotgun from another person" (Penal Law § 265.17 [1]). As to which law disables defendant from possessing a shotgun, 18 USC § 922 (g) (8) prohibits the possession of a firearm by a person "who is subject to a court order that . . . was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate" and "restrains such person from . . . engaging in . . . conduct that would place an intimate partner in reasonable fear of bodily injury to the partner." Further, "[a] person is guilty of falsifying business records in the first degree when he [or she] commits the crime of falsifying business records in the second degree, and when his [or her] intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof" (Penal Law § 175.10; accord People v Park , 163 AD3d 1060 , 1062 [3d Dept 2018]). "A person is guilty of falsifying business records in the second degree when, with intent to defraud, he [or she] . . . [m]akes or causes a false entry in the business records of an enterprise" (Penal Law § 175.05 [1]). To start, the People never produced for trial the August 19, 1993 restraining order, nor could any witness testify to the conditions under which it was issued. Therefore, an acquittal would not have been unreasonable, requiring us to "view the evidence in a neutral light and weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v Houghtaling , 82 AD3d 1493 , 1494 [3d Dept 2011] [internal quotation marks and citations omitted], lv denied 17 NY3d 806 [2011]; see People v Gibson , 118 AD3d 1157 , 1159 [3d Dept 2014], lv denied 23 NY3d 1062 [2014]). The trial record includes a temporary restraining order dated August 14, 1993, (hereinafter the TRO) issued ex parte against defendant in favor of his former wife. The TRO directs the parties to appear for a final hearing on August 19, 1993. Although the NICS verification report indicated one restraining order issued on August 19, 1993, the State Police investigator who looked into defendant's 2019 denial could not find an order from that date and never attempted to obtain it. Another State Police investigator testified that defendant attempted to purchase a firearm in 2010 and was denied based upon the same purported August 19, 1993 restraining order. The 2010 investigator testified that he, too, did not obtain the purported August 19, 1993 order, but he "believe[d]" he saw a copy in an ATF agent's file when they interviewed defendant and verified its existence with the agent. The People also produced for trial a final restraining order dated October 31, 1994, and a modification of [*3] a restraining order dated June 12, 1995, both issued by New Jersey courts against defendant in favor of his former wife. Both orders are in connection with a complaint filed August 17, 1993, and lack expiration dates. Those two orders note that defendant was present in court when they were issued, and that the "restraints continued." Neither of those orders appeared during defendant's background checks in 2010 and 2019, nor were investigators aware of their existence. For his part, defendant testified that he did not believe there was an active order of protection against him when he submitted his ATF form in July 2019. Sitting as the proverbial thirteenth juror and "weigh[ing] the evidence in light of the elements as charged to the other jurors" ( People v Rogers , 94 AD3d 1246 , 1250 [3d Dept 2012] [internal quotations marks and citation omitted], lv denied 19 NY3d 977 [2012]), the People failed to prove beyond a reasonable doubt that defendant attempted to buy a shotgun knowing his possession of same was "prohibited by law" (Penal Law § 265.17 [1]). The TRO and 1994 and 1995 orders do not permit an inference that the purported August 19, 1993 restraining order was issued after a hearing where defendant had an opportunity to meaningfully participate or that he forfeited that opportunity by not appearing ( see 18 USC § 922 [g] [8]; United States v Kaspereit , 994 F3d 1202, 1212 [10th Cir 2021]; United States v Bramer , 956 F3d 91, 97-99 [2d Cir 2020]). To the extent the 1994 and 1995 orders could be the bases for defendant's conviction, the fact that those orders were issued after the purported August 19, 1993 restraining order but did not appear on defendant's 2010 and 2019 background checks means the absence of expiration dates on those orders is not proof beyond a reasonable doubt that those orders never expired and defendant knew they were active in 2019. In light of this conclusion, the jury was also not justified in finding that defendant falsified his ATF form by answering "[n]o" to question 11.h or that he did so with the requisite fraudulent intent ( see Penal Law §§ 175.05 [1]; 175.10; People v Parks , 53 AD3d 688 , 691 [3d Dept 2008]). Accordingly, defendant's convictions cannot stand, and his remaining contentions are academic. Egan Jr., J.P., Clark, Reynolds Fitzgerald and Fisher, JJ., concur. Ordered that the judgment is reversed, on the facts, and indictment dismissed.

[Assistant]
In June
2019, defendant completed an ATF form and answered "No,
" to the
question: "Are you subject to an Order restraining you from harassing,
stalking or threatening your child, your intimate partner or the child of
such intimate partner?" There was information that on August 19, 1993, a
restraining order without expiration date was issued by a New Jersey court
in favor of defendant's former spouse. The verdict of guilty of Attempted
Criminal Purchase of a Firearm and Falsifying Business Records was set
aside because there was no evidence that the August 19, 1993, Order was
issued after a hearing at which the defendant had a meaningful opportunity
to participate or that he forfeited his opportunity to appear.


[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 Morris 2024 NY Slip Op 05676 [232 AD3d 1239] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Respondent, v Damien Morris, Appellant. Paul G. Dell, Buffalo, for defendant-appellant. Michael J. Keane, Acting District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent. Appeal from a judgment of the Erie County Court (Susan M. Eagan, J.), rendered May 1, 2023. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and criminal possession of a weapon in the second degree. It is hereby ordered that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of criminal possession of a weapon in the second degree and dismissing count 2 of the indictment, and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the first degree (Penal Law § 120.10 [1]) and criminal possession of a weapon in the second degree (§ 265.03 [1] [b]). We reject defendant's contention that County Court erred in permitting him to proceed pro se at trial. "[A]n application to proceed pro se must be denied unless [the] defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel . . . To this end, trial courts must conduct a 'searching inquiry' to clarify that [the] defendant understands the ramifications of such a decision" ( People v Stone , 22 NY3d 520 , 525 [2014]; see People v Abdullah , 194 AD3d 1346 , 1346 [4th Dept 2021], lv denied 37 NY3d 990 [2021]). "In other words, a searching inquiry is required to warn [the] defendant of the risks inherent in [proceeding pro se] and to apprise [the defendant] of the value of counsel" ( Abdullah , 194 AD3d at 1346 [internal quotation marks omitted]). We conclude that the court conducted an adequate searching inquiry before determining that defendant's waiver of the right to counsel was knowing, voluntary, and intelligent. Defendant relatedly contends that the waiver colloquy was inadequate because the court failed to inquire whether defendant was under the influence of medication. We reject that contention. We note that the court inquired whether defendant had "ever received any treatment for a mental illness" and whether defendant had "received any treatment for a physical condition that ha[d] affected [his] ability to understand," and defendant responded in the negative to both inquiries. It is within the trial court's discretion to determine whether its searching inquiry should include "a particularized assessment of [the] defendant's mental capacity when resolving [a] request to proceed pro se" ( Stone , 22 NY3d at 529). In view of the whole record ( see People v Providence , 2 NY3d 579 , 583 [2004]), we conclude that the court did not abuse its discretion in declining to undertake further assessment of whether defendant suffered from any mental impairment as a result of medication. Defendant contends that he was denied a fair trial because the prosecutor, inter alia, made improper comments during the opening statement, elicited improper testimony in regard to defendant's selective silence, and made improper comments during summation on the court's denial of a justification charge. As defendant correctly concedes, that contention is unpreserved [*2] for appellate review, and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]; People v Miller , 204 AD3d 1438 , 1438 [4th Dept 2022], lv denied 40 NY3d 935 [2023]; see generally People v Pavone , 26 NY3d 629 , 638 [2015]). Finally, defendant contends that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second degree because the People presented undisputed evidence that he had a valid firearm license, and thus the People necessarily failed to disprove beyond a reasonable doubt the defense that defendant was exempt from prosecution pursuant to Penal Law § 265.20 (a) (3). Although defendant failed to preserve that contention for our review ( see CPL 470.05 [2]; see generally People v Britton , 213 AD3d 1326 , 1328 [4th Dept 2023], lv denied 39 NY3d 1140 [2023]), under the circumstances of this case, including that the People do not oppose dismissal of the subject count, we exercise our power to address the unpreserved contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]). Inasmuch as the evidence presented at trial established that defendant was exempt from prosecution for criminal possession of a weapon pursuant to Penal Law § 265.20 (a) (3), we modify the judgment by reversing that part convicting defendant of criminal possession of a weapon in the second degree in violation of Penal Law § 265.03 and dismissing count 2 of the indictment ( see generally People v Parker , 52 NY2d 935, 936 [1981], revg on dissent below 70 AD2d 387, 391-394 [1st Dept 1979, Birns, J., dissenting]; People v Davis , 193 AD2d 954, 955-956 [3d Dept 1993]). Present—Smith, J.P., Bannister, Montour, DelConte and Hannah, JJ.

[Assistant]
Evidence was legally insufficient to support the conviction of criminal
possession of a weapon in the second degree because the People presented
undisputed evidence that he had a valid firearm license, and thus the
People necessarily failed to disprove beyond a reasonable doubt the
defense that defendant was exempt from prosecution pursuant to Penal
Law § 265.20 (a) (3). Judgment modified by reversing that part convicting
defendant of criminal possession of a weapon in the second degree in
violation of Penal Law § 265.03 and dismissing count 2 of the indictment.


[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 Walker 2024 NY Slip Op 05662 [232 AD3d 1214] November 15, 2024 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 8, 2025 [*1] The People of the State of New York, Appellant, v Chase Walker, Respondent. John J. Flynn, District Attorney, Buffalo (Daniel J. Punch of counsel), for appellant. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan Hutchison of counsel), for defendant-respondent. Appeal from an order of the Supreme Court, Erie County (Paul Wojtaszek, J.), dated June 16, 2023. The order granted the motion of defendant to dismiss the indictment and dismissed the indictment. It is hereby ordered that the order so appealed from is reversed on the law, the motion dated March 13, 2023, is denied, the indictment is reinstated and the matter is remitted to Supreme Court, Erie County, for further proceedings on the indictment. Memorandum: In this prosecution arising from defendant's alleged assault of his parole officer, Supreme Court, by decision and order dated June 16, 2023 (original order), granted defendant's motion dated March 13, 2023, seeking, in effect, dismissal of the indictment on the ground that the People failed to provide all discovery required by CPL 245.20, which rendered any certificate of compliance improper, and thereby rendered any statement of trial readiness pursuant to CPL 30.30 illusory and resulted in a violation of defendant's statutory right to a speedy trial. The court subsequently issued an amended decision and order dated August 31, 2023 (amended order), which merely corrected a typographical error in the indictment number and added another tracking number, but was otherwise identical to the original order. While expressly noting in their notice of appeal, filed September 1, 2023, that the amended order made only typographical corrections to the original order, the People now purport to appeal from the amended order. We reject defendant's assertion that the People's appeal is untimely. The appeal properly lies from the original order because the amended order made only typographical corrections and thus "did not effect a 'material or substantial change' to the [original] order" ( People v Perez , 130 AD3d 1496 , 1496 [4th Dept 2015], quoting Matter of Kolasz v Levitt , 63 AD2d 777, 779 [3d Dept 1978]; see People v Nellons , 133 AD3d 1259 , 1260 [4th Dept 2015]). Under the circumstances of this case, we exercise our discretion in the interest of justice to treat the appeal as validly taken from the original order ( see CPL 460.10 [6]; People v Collins , 197 AD3d 904 , 905 [4th Dept 2021], lv denied 37 NY3d 1059 [2021]; People v McDowell , 255 AD2d 976, 976-977 [4th Dept 1998], lv denied 93 NY2d 855 [1999]). CPL 460.10 (1) (a) provides, in relevant part, that "[a] party seeking to appeal . . . from an order of a criminal court not included in a judgment . . . must, . . . within [30] days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court . . . in which such order was entered a written notice of appeal, in duplicate, stating that such party appeals therefrom to a designated appellate court." The Court of Appeals has "interpreted CPL 460.10 (1) (a) 'to require prevailing party service'—not just the handing out of an order by the court—'to commence the time for filing a notice of appeal' " ( People v Jones , 22 NY3d 53 , 57 [2013], quoting People v Washington , 86 NY2d 853, 854 [1995]). Here, the record establishes that the People received a copy of the original order, but there is "no evidence that [defendant] ever served the order as required by CPL 460.10 (1) (a)" ( People v Spencer , 145 AD3d 1508 , 1509 [*2] [4th Dept 2016], lv denied 29 NY3d 1037 [2017]). Inasmuch as the record fails to establish that defendant ever served the People with a copy of the original order, the People's 30-day period to appeal never began to run and the People's appeal is therefore timely ( see Jones , 22 NY3d at 56-57; Washington , 86 NY2d at 854-855; Spencer , 145 AD3d at 1509). On the merits, the People contend that the court erred in determining that they violated their initial discovery obligations by failing to disclose the disciplinary records for the parole officer possessed by the Department of Corrections and Community Supervision (DOCCS). We agree. CPL article 245 initially requires the prosecution to automatically disclose to the defendant—i.e., without obligating the defendant to demand such discovery—"all items and information that relate to the subject matter of the case and are in the possession, custody or control of the prosecution or persons under the prosecution's direction or control" (CPL 245.20 [1]; see People v Bay , 41 NY3d 200 , 208 [2023]; William C. Donnino, Prac Commentaries, McKinney's Cons Laws of NY, CPL 245.10). The prosecution's initial discovery obligations are thus defined by a relevancy prong and a possessory prong ( see CPL 245.20 [1]). To meet the relevancy prong, the items and information must "relate to the subject matter of the case" ( id .). To meet the possessory prong, the items and information must be (A) "in the possession, custody or control of the prosecution" or (B) "in the possession, custody or control of . . . persons under the prosecution's direction or control" ( id .). For purposes of the possessory prong, "all items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency shall be deemed to be in the possession of the prosecution" (CPL 245.20 [2]). As relevant here, the categories of material subject to disclosure include "[a]ll evidence and information, including that which is known to police or other law enforcement agencies acting on the government's behalf in the case, that tends to . . . impeach the credibility of a testifying prosecution witness" (CPL 245.20 [1] [k] [iv]). Subject to certain delineated caveats, "the prosecution shall perform its initial discovery obligations under [CPL 245.20 (1)] as soon as practicable but not later than the time periods specified" in the statute (CPL 245.10 [1] [a]; see Bay , 41 NY3d at 209). "CPL 245.50 (1) creates a . . . compliance mechanism" ( Bay , 41 NY3d at 209). That provision directs the prosecution to "serve upon the defendant and file with the court a certificate of compliance" when the prosecution, with several narrow exceptions, "has provided the discovery required by [CPL 245.20 (1)]" (CPL 245.50 [1]; see Bay , 41 NY3d at 209). "The certificate of compliance shall state that, after exercising due diligence and making reasonable inquiries to ascertain the existence of material and information subject to discovery, the prosecutor has disclosed and made available all known material and information subject to discovery" (CPL 245.50 [1]). "CPL 245.60 imposes a continuing duty to disclose, and when the [prosecution] provide[s] discovery after a [certificate of compliance] has been filed, [it] must file a supplemental [certificate of compliance]" ( Bay , 41 NY3d at 209; see CPL 245.50 [1]). The statutory scheme "tether[s] the [prosecution's] CPL article 245 discovery obligations to CPL 30.30's speedy trial requirements" ( Bay , 41 NY3d at 209). With respect to trial readiness, the statute provides that "[n]otwithstanding the provisions of any other law" and "absent an individualized finding of special circumstances in the instant case by the court before which the charge is pending, the prosecution shall not be deemed ready for trial for purposes of [CPL 30.30] until it has filed a proper certificate pursuant to [CPL 245.50 (1)]" (CPL 245.50 [3]; see CPL 30.30 [5]; Bay , 41 NY3d at 210). "Under the terms of the statute, the key question in determining if a proper [certificate of compliance] has been filed is whether the prosecution has 'exercis[ed] due diligence and ma[de] reasonable inquiries to ascertain the existence of material and information subject to discovery ' " ( Bay , 41 NY3d at 211, quoting CPL 245.50 [1] [emphasis added]; see also CPL 245.20 [2]). Here, even assuming, arguendo, that the parole officer's disciplinary records from DOCCS met the relevancy prong as being related to the subject matter of the case, we conclude that the People established that those records did not meet the possessory prong required to prompt their initial discovery obligation with respect thereto ( see CPL 245.20 [1]; People v Walker , 228 AD3d 1318 , 1320 [4th Dept 2024]). "[F]or the purposes of discovery, DOCCS is not a 'law enforcement' agency" and is " 'outside of the legal or practical control of local prosecutors' and, therefore, the People cannot be deemed to be in constructive possession of that [*3] which DOCCS possesses" ( People v Jenne , 224 AD3d 953 , 957 [3d Dept 2024], lv denied 42 NY3d 927 [2024], quoting People v Kelly , 88 NY2d 248, 253 [1996]; see People v Howard , 87 NY2d 940, 941 [1996]). Inasmuch as the records were neither "in the possession, custody or control of the prosecution," nor "in the possession, custody or control of . . . persons under the prosecution's direction or control" (CPL 245.20 [1]), nor "deemed to be in the possession of the prosecution" as "items and information related to the prosecution of a charge in the possession of any New York state or local police or law enforcement agency" (CPL 245.20 [2]), the records were not part of the "discovery required by [CPL 245.20 (1)]" to be provided by the People as a predicate for filing a proper certificate of compliance (CPL 245.50 [1]). Consequently, the People's failure to provide the records at the time they served and filed their original and supplemental certificates of compliance does not render those certificates of compliance improper, and thus the People's statement of trial readiness pursuant to CPL 30.30 was not illusory and defendant's statutory right to a speedy trial was not violated on that ground. We note that, in resolving this appeal, we express no opinion regarding the concurrence's interpretation of the relevant statutory provisions regarding the availability or unavailability of the speedy trial remedy in any other context than the one presented in the case before us. Finally, defendant failed to preserve for our review his alternative ground for affirmance ( see CPL 470.05 [2]) and, in any event, we are precluded from reviewing it on the People's appeal inasmuch as the court did not make a finding adverse to the People on that distinct issue ( see CPL 470.15 [1]; People v Garrett , 23 NY3d 878 , 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]; People v Rafferty , 155 AD3d 1520 , 1522 [4th Dept 2017]). All concur except Curran, J., who concurs in the following memorandum. Curran, J. (concurring). I concur with the majority's memorandum in its entirety. I write separately to emphasize my view that, based on the structure of the relevant statutory provisions, and their cross-references to one another ( see e.g. CPL 245.20 [1]; 245.50 [1], [3]), the remedy of dismissal of the indictment under CPL 30.30 for the violation of a defendant's statutory right to a speedy trial—which is available when, inter alia, the People are deemed not ready for trial due to an invalid certificate of compliance and have exceeded the applicable statutory speedy trial time ( see CPL 245.50 [3])—is directly tied, and only directly tied, to the People's failure to comply with their "[i]nitial discovery" obligations as set forth in CPL 245.20 (1), which include any attendant due diligence obligations with respect to the items and information discoverable under that provision ( see CPL 245.20 [2]). Thus, inasmuch as the majority and I agree that the records at issue on appeal do not fall within the possessory prong of CPL 245.20 (1), I likewise agree that the remedy of dismissal under CPL 30.30 and 245.50 (3) is simply unavailable to defendant under the circumstances here. Present—Smith, J.P., Curran, Montour, Nowak and DelConte, JJ.

[Assistant]
County
Ct erred in holding that the People violated their initial discovery
obligations by failing to disclose the disciplinary records for the parole
officer possessed by the Department of Corrections and Community
Supervision (DOCCS). The People established that those records did not
meet the possessory prong required to prompt their initial discovery
obligation. Reversed, Indictment reinstated.