Appellant Nirun Honghirun was convicted of sexual conduct against a child in the first degree. On appeal to the Appellate Division, Second Department, Appellate Advocates argued that testimony from three witnesses did not fall within the scope of the "prompt outcry" exception to the hearsay rule, but the Second Department affirmed the conviction. Appellate Advocates asked the Court of Appeals to grant leave to determine whether defense counsel was ineffective for, inter alia, failing to argue that certain testimony introduced at trial did not constitute "prompt outcry" evidence. Associate Judge Eugene M. Fahey granted the application.
Patricia Pazner of Appellate Advocates represented Mr. Honghirun in the Second Department, filed his leave application, and will continue to represent him in the Court of Appeals.
In December of 2012, appellant Lanze Mason was convicted of assault in the second degree and criminal possession of a weapon in the fourth degree. The Appellate Division, Second Department, unanimously affirmed his conviction in October of 2015.
In an application to Associate Judge Eugene M. Fahey of the Court of Appeals, Appellate Advocates asked the Court to grant leave for two reasons: (1) to decide whether a court commits a mode of proceedings error when it provides false information to potential jurors, designed to dissuade them from disclosing that they may be unqualified to serve on the jury; and (2) to clarify whether the determination of the level of force used in a justification defense (ordinary physical force or deadly physical force) should be decided by the court as a matter of law, or relegated to the jury’s consideration as a question of fact. On February 24, 2016, Judge Fahey granted the leave application.
Shanda Sibley of Appellate Advocates represented Mr. Mason in the Second Department, filed the leave application on his behalf, and will continue to represent him in the Court of Appeals.
The police entered what appeared to be a single family home, went to the second floor, and arrested appellant Sean Garvin in a doorway. The building was a two-family home, and the doorway where appellant was arrested was at the threshold of his apartment, but the People did not introduce evidence at the suppression hearing establishing that the police knew the building was a two-family home at the time of the arrest. The trial court denied Mr. Garvin's motion to suppress the evidence, and he was convicted of robbery in the third degree (four counts) and attempted robbery in the third degree.
The Second Department affirmed the denial of the suppression motion, but Justice Hall dissented because “the People failed to show that the police entry into the building where the defendant lived was lawful” and subsequently granted Mr. Garvin's application for leave to appeal to the Court of Appeals.
Tammy Linn, who briefed and argued Mr. Garvin's case in the Appellate Division, will continue to represent him in the Court of Appeals.
On December 2, 2015, Judge Stein of the Court of Appeals granted a leave application in People v. Everett McMillan. The issue on which leave was granted concerns the Fourth Amendment rights of parolees, a question last addressed at length in People v. Huntley, 43 N.Y.2d 175 (1977).
Alex Donn is representing Mr. McMillan in the Court of Appeals.
Appellate Advocates client Francisco Saaverda had been sentenced to 15 years of incarceration after pleading guilty to second-degree burglary in Queens. On October 7, 2015, the Second Department reduced his sentence to 8 years.
Lynn W. L. Fahey briefed and argued the case.
The defendant was charged with first-degree criminal sexual act, first-degree sex abuse, and endangering the welfare of a child based on accusations made by a young girl's parents. The trial court ruled that the girl was qualified to give unsworn testimony, even though she never uttered a single complete sentence or even a coherent fragment. The jury acquitted appellant of criminal sexual act, but convicted him of sex abuse and endangering the welfare of a child. The Second Department affirmed the conviction, holding that the child’s statements “were not erroneously admitted into evidence under the excited utterance” exception.
In her leave application to the Court of Appeals, Anna Pervukhin asked the Court to determine whether, if a very young child lacks the capacity to give even unsworn testimony, a witness can testify as to her out-of-court words or describe and interpret her out-of-court gestures. Judge Pigott granted leave on August 14, 2015.
Ms. Pervukhin will continue to represent the defendant in the Court of Appeals.
For the first day of jury selection, Appellate Advocates client Rafael Then appeared in orange prison-issued pants in front of the entire voir dire panel. The Appellate Division held that this was “not an error so egregious as to deprive the defendant of his right to a fair trial” and affirmed Mr. Then's conviction of robbery in the first and second degrees. Appellate Advocates asked the Court of Appeals to determine whether harmless error analysis should apply to a defendant’s forced appearance before the jury in prison-issued clothing. Judge Eugene M. Fahey granted the leave application.
Allegra Glashausser of Appellate Advocates represented Mr. Then in the Appellate Division.
At the jury trial of Appellate Advocates client Chris Price, defense counsel objected to the admission of a photo found on a social media website that showed Mr. Price holding a gun. Counsel contended that the People had not laid a proper foundation for the admission of the photo. The photo was allowed into evidence, Mr. Price was convicted of robbery in the first and second degrees, and the Appellate Division, Second Department, affirmed the conviction.
Appellate Advocates asked the Court of Appeals to hear the case in order to address, inter alia, the authentication requirements for photographs on social networking websites. Judge Eugene M. Fahey granted the leave application.
Tammy Linn of Appellate Advocates represented Mr. Price in the Appellate Division and will continue to represent him in the Court of Appeals.
Two days after a knifepoint subway robbery in Queens, the complainant saw appellant Anthony Romero in Brooklyn and, believing he was the robber, called 911. After a show-up identification, Mr. Romero was arrested. At the precinct, a detective improperly elicited a statement from Mr. Romero in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and he was convicted of first-degree robbery. The Appellate Division agreed that the statement should have been suppressed, but held that the error was harmless. Its decision did not identify any factors that it considered in making its harmlessness determination.
In our application for leave to appeal to the Court of Appeals, Appellate Advocates asked the Court to announce the factors that the Appellate Division must consider when deeming improperly-admitted confessions harmless.
Patty Pazner of Appellate Advocates represented Mr. Romero in the Appellate Division and will continue to represent him in the Court of Appeals.
On April 29, 2015, the Appellate Division affirmed the conviction of Appellate Advocates client Prince Clark in a 3-2 decision. On June 29, 2015, dissenting Justice Robert J. Miller granted leave to appeal to the Court of Appeals.
De Nice Powell briefed the case in the Appellate Division and will continue to represent Mr. Clark in the Court of Appeals.
People v. Wiggs: Appellant’s conviction for second-degree robbery was reversed because, before taking the jury's verdict, the court failed to give counsel notice of a jury note requesting a readback of alibi testimony.READ MORE >
People v. Buckery: The defendant’s robbery conviction was reversed and remanded for a new trial because the pre-trial showup identification was unduly suggestive.READ MORE >
On June 8, 2012, Omar Smalling was convicted of criminal possession of a weapon in the second and third degrees and tampering with physical evidence. The Appellate Division, Second Department, affirmed the conviction on March 11, 2015. Appellate Advocates filed an application for leave to appeal the case to the Court of Appeals, asking the Court to consider whether it was error for the trial court to provide a supplemental charge on constructive possession, specifically instructing the jury that “two or more individuals can jointly have property in their possession,” where the People’s exclusive theory of the case was that appellant alone physically possessed and fired the gun. Judge Eugene M. Fahey granted the leave application.
Kathleen Whooley represented Mr. Smalling in the Appellate Division.