Decisions

Conviction Reversed Because of Miranda Violation

06/22/2016
People v. Cleverin: The People failed to establish that the defendant's Miranda waiver was knowing, intelligent, and voluntary.     READ MORE >
Court of Appeals Leave Grants

Leave Granted to Examine Use of Youthful Offender Adjudications in SORA Context

06/09/2016
People v. Francis: The SORA hearing court ruled that the defendant's youthful offender adjudication could serve as the basis for the assessment of points for a "prior felony conviction."    READ MORE >
Decisions

Suppression Ruling Reversed

06/08/2016
People v. Avinger: The Second Department held that the People had failed to identify any exigency justifying a warrantless entry.     READ MORE >
Decisions

Second Department Reverses Conviction Because of Trial Attorney's Ineffectiveness

06/01/2016
People v. McCray: Citing trial counsel's elicitation of damaging testimony from the complainant, the court ordered a new trial.     READ MORE >
Decisions

Second Department Rejects People's Appeal

05/18/2016
People v. McElroy: The court affirmed a post-verdict ruling that reduced the defendant's conviction of second-degree assault to third-degree assault.     READ MORE >
Decisions

Second Department Reverses Conviction, Dismisses Indictment

05/18/2016
People v. Chavez: The court held that the jury's verdict convicting the defendant of second-degree gang assault was against the weight of the evidence.     READ MORE >
Decisions

Conviction Reversed Because of Batson Violation

05/11/2016
People v. Jones: The Court ordered a new trial on the top count of second-degree assault.    READ MORE >
Decisions

Second Department Finds Burglary Sentence Excessive, Orders New Trial on Lesser Counts

05/11/2016
People v. Jackson: The Court reduced the defendant's sentence from 15 to 10 years.     READ MORE >
Decisions

Court of Appeals Orders New Trial in Gang Assault Case

03/29/2016
People v. Cedeno: The Court reversed the defendant's conviction because of a Bruton error.     READ MORE >
Court of Appeals Leave Grants

Leave Granted to Address "Prompt Outcry" Issue

03/08/2016

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.  

 

 
Court of Appeals Leave Grants

Court of Appeals Grants Leave in Assault Case

02/24/2016

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.   

 

 
Decisions

Court of Appeals Reverses Conviction, Suppresses Evidence

02/23/2016
People v. Sanders: The Court of Appeals reversed the defendant's conviction of criminal possession of a weapon in the second and third degrees.     READ MORE >
Decisions

Court of Appeals Reverses Predicate Felony Adjudication

02/11/2016
People v. Thompson:  The Court of Appeals held that appellant had been improperly adjudicated a second violent felony offender.   READ MORE >
Decisions

Case Remanded for Youthful Offender Consideration

01/20/2016
People v. Eric P.: The lower court erred in failing to make a record as to why it did not adjudicate appellant a youthful offender.    READ MORE >
Decisions

Court Orders New Trial Because of Improper Miranda Preamble

01/20/2016
People v. Marino: The Second Department held that the lower court should have suppressed the defendant's videotaped statement.     READ MORE >
Decisions

Relief Granted for Client in Robbery Case

12/29/2015
People v. Rose: The Appellate Division, Second Department, modified appellant's conviction, vacated his sentence, and remanded the case for resentencing.     READ MORE >
Decisions

Second Department: Robbery Sentence Was Exessive

12/22/2015
People v. Stevens: The Second Department reduced appellant's sentence by 5 years.     READ MORE >
Decisions

Second Department Dismisses Indictment Because of Illegal Search

12/22/2015
People v. Graham: The gun and drugs recovered from the defendant should have been suppressed.     READ MORE >
Court of Appeals Leave Grants

Court of Appeals Grants Leave on Search Issue

12/16/2015

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.  

 
Decisions

Case Remanded for Youthful Offender Determination

12/16/2015
People v. Lormil: The trial court erred in failing to make a determination regarding whether the defendant should have been granted a youthful offender adjudication.     READ MORE >
Decisions

Trial Court Erred Regarding Appellant's Predicate Status

12/16/2015
People v. Mitchell: The Appellate Division, Second Department, remanded the case so that the defendant can be sentenced as a first-time felony offender.     READ MORE >
Decisions

New Trial Ordered in Manslaughter Case

12/09/2015
People v. Austin: The trial court erred in refusing to instruct the jury regarding justification.     READ MORE >
Court of Appeals Leave Grants

Leave Granted on Parolee Search Issue

12/02/2015

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.  

 
Decisions

Court Holds That Sentence Was Improperly Enhanced

11/19/2015
People v. Carrasquillo:  The Second Department remanded the case for imposition of the sentence that had been originally promised.     READ MORE >
Decisions

Second Department Holds Search Unlawful

11/19/2015
People v. Scott: The Second Department dismissed appellant's conviction of criminal possession of a controlled substance in the seventh degree and criminal possession of marijuana in the fifth degree.     READ MORE >
Decisions

Second Department Dismisses Gun and Drug Charges

11/19/2015
People v. Brown: The Second Department held that the People failed to prove that appellant constructively possessed the contraband that was found inside an apartment where he was arrested.     READ MORE >
Decisions

Second Department: Court Erred in Denying Intoxication Charge Request

11/12/2015
People v. Goldring:  The Second Department reversed appellant's conviction and ordered a new trial.     READ MORE >
Decisions

Indictment Dismissed in Gun Case

11/09/2015
People v. Clermont: The Appellate Division, Second Department, held that the police lacked reasonable suspicion to chase the defendant.     READ MORE >
Decisions

Second Department Halves Client's Sentence

10/27/2015
People v. Gordon: The Second Department reduced Mr. Gordon's aggregate sentence from 24 to 12 years.     READ MORE >
Decisions

New Trial Ordered in Burglary Case

10/27/2015
People v. Velez: The trial court erred in refusing to deliver an intoxication charge.     READ MORE >
Decisions

Second Department Reduces Sentence

10/07/2015

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.  

 
Decisions

Disorderly Conduct Conviction Dismissed

09/17/2015
People v. Welch: The Appellate Term held that the evidence was insufficient to meet the People's burden.     READ MORE >
Decisions

Client's Sentence Reduced by 7 Years

08/26/2015
People v. Adamson: The Second Department held the the sentences for assault should run concurrently with each other.     READ MORE >
Decisions

Second Department Reverses Conviction After Reargument

08/26/2015
People v. Pena:  The Appellate Division, Second Department, granted appellant's reargument motion, reversed his assault and robbery convictions, and remanded the case for a new trial to be preceded by an independent source hearing.     READ MORE >
Court of Appeals Leave Grants

Leave to Appeal Granted to Address Hearsay Issue

08/25/2015

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.  

 
Decisions

Sentence Reduced by Second Department

07/29/2015
People v. Johnakin: The Second Department held that the initial sentence was excessive.     READ MORE >
Decisions

Second Department Reverses Sentence

08/07/2015
People v. Dawkins: The Second Department vacated the defendant's sentence and remitted the case for a new sentencing determination.     READ MORE >
Court of Appeals Leave Grants

Court of Appeals Grants Leave on Prison Garb Issue

08/05/2015

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.  

 
Decisions

Court of Appeals Grants Leave on Social Media Question

08/05/2015

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.  

 
Decisions

Appellate Division Dismisses Robbery and Assault Charges

07/29/2015
People v. Torres:  The Second Department held that there was insufficient evidence of a forcible taking.     READ MORE >
Court of Appeals Leave Grants

Court of Appeals to Hear Case on Harmless Error Analysis

07/24/2015

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.  

 
Court of Appeals Leave Grants

Dissenting Appellate Division Justice Grants Leave in Murder Case

07/16/2015

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.  

 

 
Decisions

New Trial Ordered in Murder Case

07/16/2015
People v. Irving:  The Second Department held that the lower court erred in refusing to charge a justification charge.     READ MORE >
Decisions

Second Department Dismisses Assault and Burglary Convictions

07/16/2015
People v. Samuels:  The Court held that appellant's assault convictions were against the weight of the evidence and that the People failed to prove the elements of burglary that were charged to the jury.     READ MORE >
Decisions

New Trial in Robbery Case Because of Jury Note Error

07/02/2015

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 >
Decisions

Robbery Conviction Reversed Because of Suggestive Showup

07/02/2015

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 >
Decisions

Resentencing Reversed Because of Post-Release Supervision Error

06/25/2015
People v. Battee: The Second Department remanded the case to the trial court for a PRS determination.     READ MORE >
Decisions

Second Department: Robbery Sentence Was Excessive

06/25/15
People v. Boone: The Appellate Division, Second Department, reduced appellant's aggregate sentence from 25 years to 15.    READ MORE >
Decisions

Leave Granted on Charge Issue

06/24/2015

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.

 
View More