New York City Legal Aid Society, (Denise Fabiano), for appellant.Queens County District Attorney (John M. Castellano, Johnnette Traill, Merri Turk Lasky of counsel), for respondent.2015-2314 Q CR. THE PEOPLE v. BENJAMIN, VONTIA JASMINE — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered September 10, 2015. The judgment convicted defendant, upon her plea of guilty, of falsely reporting an incident in the third degree. The appeal from the judgment of conviction brings up for review an order of that court (Donna Marie Golia, J.) dated July 16, 2014 denying defendant’s motion to dismiss the accusatory instrument.ORDERED that the judgment of conviction is affirmed.Defendant was charged with falsely reporting an incident in the third degree (Penal Law §240.50 [3]). The accusatory instrument alleged the following:“Police Officer Crystal Zelada of the 113th Precinct…being duly sworn, deposes and says that on or about January 19, 2014, between 3:05 p.m. and 3:15 p.m., in front of 110-08 172 Street, County of Queens, State of New York, the defendant committed the [offense] of [Penal Law §] 215.50-3 [sic] falsely reporting an incident in the third degree…knowing the information reported, conveyed or circulated to be false or baseless, [the defendant] gratuitously report[ed] to a law enforcement officer or agency the alleged occurrence of an offense or incident which did not in fact occur.***Deponent states that she has reviewed a 911 call maintained in the ordinary course of business by the NYPD within a reasonable time of the event or occurrence reflected therein, and that said records reflect that on January 19, 2014 at approximately 3:09 PM, a 911 call was received from a female caller stating in sum and substance ‘I see a female and a guy and the guy keeps hitting on her. I see him smacking her. They are right in front of the location.’Deponent further states that the female 911 caller gives a description of the suspect and the location of [the] occurrence as 110-08 172 Street and that said 911 call originated from [a specified telephone number].Deponent further states that she has reviewed and listened to the 911 call simultaneously with the complainants. Deponent further states that she is informed by the complainants…that the voice on the 911 call is the defendant’s voice.Deponent further states that she is further informed by [one of the complainants] that the [specified phone number] is a number belonging to the defendant, Vontia Benjamin, as the defendant has left this number as a form of contact on her cell phone and [that] complainant has spoken to the defendant on this number on numerous occasions.Deponent states that at the above mentioned date, time, and place of occurrence, she received a radio run from the above mentioned 911 call of an assault in progress at 3:10 p.m. and arrived at the above mentioned location in approximately four (4) minutes at 3:14 PM.Deponent states that upon arriving at the above mentioned location, she observed that the street was vacant and that there was no assault in progress in front of the above mentioned location.Deponent states that she has reviewed the records of the New York City Police Department, and that said records are kept and maintained in the ordinary course of business within a reasonable time of the event or occurrence reflected therein and that the Sprint Report detailed the GPS coordinates of the above mentioned 911 call, which registered the nearest location as 1821 Marmion Avenue in The Bronx.Deponent states that upon reviewing the police paperwork, the defendant listed her pedigree information, particularly her home address as 857 Crotona Park North in The Bronx, located 0.1 miles from the above mentioned GPS coordinates in the Sprint Report.”Each complainant provided a supporting deposition dated March 27, 2014 which indicated that they had read “the accusatory instrument in the above-entitled action and that the facts therein stated to be on information furnished by me are true upon my personal knowledge.”By motion dated May 22, 2014, defendant sought to dismiss the accusatory instrument on the ground of facial insufficiency because, among other things, “the allegations…are based on a mere conclusory statement on an element of an offense.” The People opposed the motion. By order dated July 16, 2014, the Criminal Court (Donna Marie Golia, J.) denied the motion.On January 30, 2015, the People filed a prosecutor’s information charging defendant with falsely reporting an incident in the third degree, in that defendant, “on or about January 19, 2014, did when, knowing the information reported, conveyed or circulated to be false or baseless, gratuitously report to a law enforcement officer or agency the alleged occurrence of an offense or incident in the [C]ounty of Queens which did not in fact occur.”A nonjury trial began on July 9, 2015, but, after the testimony of several of the People’s witnesses, defendant pleaded guilty to falsely reporting an incident in the third degree. Defendant, among other things, agreed that, “on or about January 19th, 2014, while in the Bronx [she had] made a 911 call indicating that there was an assault in progress at 110-08 172nd Street…and there was no assault and [she] knew that was false.” Through counsel, defendant waived prosecution by information.Defendant was sentenced on September 10, 2015 to three years of probation, together with mental health treatment to be determined by the Department of Probation. The court imposed a total of $250 in surcharges and fees, and issued two five-year orders of protection in favor of the complainants and against defendant.On appeal, defendant argues that the accusatory instrument, upon which the prosecutor’s information was based, contained “insufficient facts of an evidentiary character to allow the conclusion that the reported assault did not in fact occur.” The officer did not arrive at the location until five minutes after the crime had been reported, and the accusatory instrument alleges only that there was no assault going on at that time. Thus, it is possible that an assault did, in fact, occur at 3:09 as reported, but had concluded by the time the officer arrived at 3:14.Defendant’s motion to dismiss the accusatory instrument was based on a claim that it was jurisdictionally defective. Thus, her claim survives both her plea of guilty and her waiver of the right to appeal (see People v. Dreyden, 15 NY3d 100 [2010]; People v. Konieczny, 2 NY3d 569, 573 [2004]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Nieves, 73 AD3d 1087, 1088 [2010]; People v. O’Connor, 36 Misc 3d 159[A], 2012 NY Slip Op 51813[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]). As defendant expressly waived her right to prosecution by information, the accusatory instrument must be evaluated as a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 522 [2014]). “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Dreyden, 15 NY3d at 103). A misdemeanor complaint must set forth facts providing reasonable cause to believe that the defendant committed the charged offense (see CPL 100.40 [4] [b]; People v. Kalin, 12 NY3d 225, 228 [2009]; People v. Dumas, 68 NY2d 729, 731 [1986]) and allege facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3]; People v. Vasquez, 39 Misc 3d 126[A], 2013 NY Slip Op 50407[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).Penal Law §240.50 (3) (a) provides that “[a] person is guilty of falsely reporting an incident in the third degree when, knowing the information reported, conveyed or circulated to be false or baseless, he or she…[g]ratuitously reports to a law enforcement officer or agency…the alleged occurrence of an offense or incident which did not in fact occur.” The crime is committed when a defendant provides false information without being compelled to do so by a law enforcement officer or an agency (see People v. Ellis, 77 AD3d 496 [2010]).Here, the accusatory instrument met the statutory requirements for a misdemeanor complaint charging the offense of falsely reporting an incident in the third degree. It alleged that defendant knew that the information she reported was false; that she reported it to a law enforcement officer; and that the offense did not occur. The factual part of the accusatory instrument provided detailed information that the report was made at approximately 3:09 or 3:10 p.m. on January 19, 2014; that the caller stated that she was observing a man hitting a woman at 110-08 172nd Street in Queens; that the call came from a phone number belonging to defendant; that it came from a location in the Bronx, as established by the Sprint report (see People v. Gillard, 215 AD2d 216, 217 [1995]), which was 1/10 of one mile from defendant’s home address; and that, when the police responded to the location in Queens at 3:14 p.m., the street was vacant and there was no assault in progress in front of the location in question. As defendant was in the Bronx when she called the police at 3:09 p.m., she could not have observed that a man was hitting a woman at that time in Queens. Thus, the accusatory instrument sufficiently alleged that the report was false.Accordingly, the judgment of conviction is affirmed.ELLIOT, J.P., PESCE and ALIOTTA, JJ., concur.February 16, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Law Office of David G. Goldbas (David G. Goldbas of counsel), for appellant.Rose Marie Joseph, respondent pro se.2016-809 K C. JOSEPH v. LYU — Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 4, 2014. The final judgment, after a nonjury trial, awarded landlord possession and the sum of $23,000, and dismissed tenant’s counterclaims, in a nonpayment summary proceeding.ORDERED that the final judgment is modified by deleting therefrom the provision awarding landlord possession and the sum of $23,000, and by substituting therefor a provision dismissing the petition; as so modified, the final judgment is affirmed, without costs.In this commercial nonpayment proceeding, landlord served a rent demand upon tenant by conspicuous-place service at the premises sought to be recovered, after landlord had made two unsuccessful attempts to serve tenant at the premises. Tenant appeared and answered, asserting, among other things, that the service of the rent demand was defective. Tenant also interposed counterclaims totaling $15,750. Following a nonjury trial, landlord was awarded a final judgment of possession and the sum of $23,000, and tenant’s counterclaims were dismissed.When a rent demand is made by service of a written notice, RPAPL 711 (2) requires that the notice be served upon the tenant in the manner prescribed in RPAPL 735. RPAPL 735 permits conspicuous-place service only when the petitioner has attempted personal or substituted service and failed after having made a “reasonable application,” which means that there must be “at least a ‘reasonable expectation of success’ in finding a person on the premises to whom delivery may be made” (809-811 Kings Highway, LLC v. Pulse Laser Skin Care, 25 Misc 3d 130[A], 2009 NY Slip Op 52121[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009], quoting Naman v. Sylveen Realty Co., 222 AD2d 564, 565 [1995]; see also Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148[A], 2016 NY Slip Op 50792[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; ZOT, LLC v. Crown Assoc., 22 Misc 3d 133[A], 2009 NY Slip Op 50215[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). In the case at bar, landlord’s affidavit of service for the rent notice lists two attempts to serve tenant at the premises. Since, at the time of service of the rent notice, landlord was aware that tenant had never opened a restaurant, or any other business, at the premises, landlord’s attempts at service at the vacant commercial premises did not constitute a “reasonable application” (RPAPL 735) prior to resorting to conspicuous-place service, and the service was defective (see Doji Bak, LLC v. Alta Plastics, 51 Misc 3d 148[A], 2016 NY Slip Op 50792[U]; ZOT, LLC v. Crown Assoc., 22 Misc 3d 133[A], 2009 NY Slip Op 50215[U], *1). Consequently, the petition should have been dismissed.Furthermore, inasmuch as paragraph 19 of the lease states, in pertinent part, that it is “mutually agreed that in the event Landlord commences any summary proceeding, Tenant will not interpose any counterclaim of whatever nature or description in any such proceeding,” the Civil Court, based thereon, properly dismissed tenant’s counterclaims.Accordingly, the final judgment is modified by deleting therefrom the provision awarding landlord possession and the sum of $23,000, and by substituting therefor a provision dismissing the petition.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 16, 2018By: Weston, J.P., Aliotta, Elliot, JJ.Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).2016-1617 K C. MOTIONPRO PHYSICAL THERAPY v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 8, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied and the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action is granted; as so modified, the order is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.Defendant correctly argues on appeal that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).Defendant acknowledged that it had received the claim underlying plaintiff’s first cause of action on July 9, 2014 and the claim underlying plaintiff’s second cause of action on August 6, 2014, and established the mailing of independent medical examination (IME) scheduling letters to the assignor (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]), which scheduled plaintiff’s assignor’s IME for August 29, 2014. Thus, contrary to defendant’s further argument, defendant did not demonstrate that it was entitled to summary judgment dismissing plaintiff’s first cause of action because the IME had not been scheduled to be held within 30 calendar days after defendant had received the claim underlying the first cause of action (see 11 NYCRR 65-3.5 [d]).With respect to the second cause of action, however, the IME was scheduled to be timely held. In addition to establishing that the IME scheduling letters had been mailed to the assignor, defendant established that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that defendant had timely denied the claim underlying the second cause of action on that ground. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (Stephen Fogel Psychological, P.C., 35 AD3d at 722), and as plaintiff failed to raise a triable issue of fact in opposition, the branch of defendant’s cross motion seeking summary judgment dismissing the second cause of action should have been granted.Defendant’s remaining contentions lack merit.Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied and the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s second cause of action is granted.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 16, 2018Rubin, Fiorella & Friedman, LLP (Harlan R. Schreiber, Esq.), for appellant.Law Office of Marina Josovic, P.C., for respondent (no brief filed).2016-1744 K C. THOMAS J. TESI, M.S., D.C., P.C. v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered April 8, 2016. The order granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and implicitly denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).Defendant correctly argues that plaintiff failed to make a prima facie showing of its entitlement to summary judgment, as plaintiff failed to establish that its claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).However, contrary to defendant’s further argument, defendant did not demonstrate that it is entitled to summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for IMEs, as the initial IME had not been scheduled to be held within 30 calendar days after defendant’s receipt of plaintiff’s claims (see 11 NYCRR 65-3.5 [d]).Defendant’s remaining contentions lack merit.Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.WESTON, J.P., ALIOTTA and ELLIOT, JJ., concur.February 16, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.Benjamin Messinger, appellant pro se.Rose Waldorf, PLLC (Mark W. Skanes of counsel), for respondent.2016-1892 Q C. MESSINGER v. FCA US, LLC — Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered May 12, 2016. The order denied plaintiff’s motion to vacate an order of that court entered April 20, 2016 granting, upon plaintiff’s failure to appear on the return date of the motion, defendant’s motion to dismiss the complaint for spoliation of evidence or, in the alternative, for summary judgment dismissing the complaint.ORDERED that the order entered May 12, 2016 is reversed, without costs, plaintiff’s motion to vacate the order entered April 20, 2016 is granted, and the matter is remitted to the Civil Court for a new determination of defendant’s motion to dismiss the complaint for spoliation of evidence or, in the alternative, for summary judgment dismissing the complaint.Plaintiff commenced this action to recover for breach of warranty, defective repairs and the breach of an agreement to reimburse plaintiff for the cost of a rental vehicle with respect to a vehicle that plaintiff had purchased from defendant. Upon plaintiff’s failure to appear on the return date of a motion by defendant to dismiss the complaint for spoliation of evidence or, in the alternative, for summary judgment dismissing the complaint, the Civil Court entered an order on April 20, 2016 dismissing the complaint. Thereafter, by order entered May 12, 2016, the Civil Court denied plaintiff’s motion to vacate the April 20, 2016 order.Upon a review of the record, we find that the Civil Court improvidently exercised its discretion in denying plaintiff’s motion, since plaintiff demonstrated that he had a reasonable excuse for his default in appearing, a potentially meritorious cause of action and a potentially meritorious opposition to defendant’s underlying motion to dismiss for spoliation of evidence, or, in the alternative, for summary judgment (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]).Accordingly, the order entered May 12, 2016 is reversed, plaintiff’s motion to vacate the order entered April 20, 2016 is granted, and the matter is remitted to the Civil Court for a new determination of defendant’s motion to dismiss the complaint for spoliation of evidence or, in the alternative, for summary judgment dismissing the complaint.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.February 16, 2018By: Pesce, P.J., Weston, Aliotta, JJ.Frank Hosein, Jr., Esq. (Frank Hosein, Jr. and Stephen J. Riegel of counsel), for appellant.Law Offices of Jaime Lathrop, P.C. (Jaime Lathrop of counsel), for respondent.2016-2721 K C. ESTATE OF WILLIAMS v. GLOBAL SQUARE, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), dated June 3, 2016. The order, insofar as appealed from, implicitly denied the branches of occupant’s motion seeking to, among other things, vacate a default final judgment of that court entered February 25, 2016 upon occupant’s failure to appear and answer the petition, dismiss the petition, and restore occupant to possession in a licensee summary proceeding.ORDERED that the order, insofar as appealed from, is reversed, without costs, and the branches of occupant’s motion seeking to vacate the default final judgment, to dismiss the petition and to restore occupant to possession are granted.Insofar as is relevant to this appeal in a commercial licensee summary proceeding (see RPAPL 713 [7]), occupant moved to, among other things, vacate a default final judgment that had been entered against it on February 25, 2016, to dismiss the petition and to be restored to possession, asserting, among other things, that service was improper, and that occupant was in possession pursuant to a lease and was not a licensee. Occupant appeals from so much of an order of the Civil Court entered June 3, 2016 as implicitly denied those branches of occupant’s motion.At the outset, we note that an estate is not a legal entity, and any action on behalf of or against the estate must be by or against the executor or administrator of the estate in his or her representative capacity (see Grosso v. Estate of Gershenson, 33 AD3d 587 [2006]; Greenpoint Ave. Realty, LLC v. Estate of Galasso, 18 Misc 3d 135[A], 2008 NY Slip Op 50208[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, the petition is defective because it names an estate as the petitioner. However, as the petition was verified by a co-executor of the estate, the defect is not jurisdictional and we deem the co-executor, Patricia Williams, to be the petitioner (see Greenpoint Ave. Realty, LLC v. Estate of Galasso, 18 Misc 3d 135[A], 2008 NY Slip Op 50208[U]; see also McDonough v. Bonnie Hgts. Realty Corp., 249 AD2d 520 [1998]).In our view, occupant’s affidavit in support of its motion was insufficient to establish occupant’s claim that petitioner knew or should have known that the premises was unoccupied at the time that service was effected at the premises, and thus that service was improper.However, occupant established an excusable default and a meritorious defense (see CPLR 5015 [a] [1]). Occupant established that it was not in occupancy at the time service was effected and that it had no notice of the proceeding until it received a copy of an April 2016 notice of motion in a parallel Supreme Court action. Occupant also showed that it was in possession pursuant to a lease executed by Gregg Williams and that Gregg Williams is one of the deed owners of the premises. Moreover, even if, as petitioner claims, occupant’s lease is invalid, occupant had been placed into exclusive possession by Gregg Williams, a tenant in common in the property, and was not petitioner’s licensee. Thus, this licensee proceeding does not lie.Accordingly, the order, insofar as appealed from, is reversed, and the branches of occupant’s motion seeking to vacate the default final judgment, to dismiss the petition and to restore occupant to possession are granted.PESCE, P.J., WESTON and ALIOTTA, JJ., concur.February 16, 2018By: Pesce, P.J., Aliotta, Siegal, JJ.2016-1666 Q C. 133 PLUS 24 SANFORD AVE. REALTY CORP. v. XIU LAN NI — Motion by respondent for leave to appeal to the Appellate Division from a decision and order of this court dated December 1, 2017, which determined an appeal from a final judgment of the Civil Court of the City of New York, Queens County, dated February 11, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied.February 16, 2018By: Pesce, P.J., Aliotta, Elliot, JJ.2017-1679 K C. CHAROITE CHIROPRACTIC, P.C. v. STATE FARM MUT. AUTO INS. CO. — Motion by respondent to dismiss as untimely an appeal from an order of the Civil Court of the City of New York, Kings County, entered May 5, 2014.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted and the appeal is dismissed (see CPLR 5513).February 16, 20182017-1869 Q C. OREGON REALTY CO. v. RINCON — Motion by appellant, in effect, to vacate an order of this court dated January 22, 2018, which dismissed an appeal from an order of the Civil Court of the City of New York, Queens County, entered April 11, 2017.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is denied.February 16, 2018Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Garguilo, Brands, JJ.2017-01272 S CR. THE PEOPLE v. HERNANDEZ, JOSE A. — Motion by respondent to enlarge the time to serve and file a respondent’s brief on an appeal from a judgment of conviction of the District Court of Suffolk County, Traffic And Parking Violations Agency District, rendered November 10, 2016.Upon the papers filed in support of the motion and the papers having been filed in opposition thereto, it isORDERED that the motion is granted and respondent shall serve and file its brief on or before February 26, 2018, and it is furtherORDERED that the appellant, if he be so advised, may serve and file a reply brief within 5 days from the service of respondent’s brief.February 16, 2018By: Marano, P.J., Tolbert, Garguilo, JJ.2017-2001 W CR. THE PEOPLE v. SANCHEZ, VICTORIA — Appeal from an order of the Justice Court of the Town of Yorktown, Westchester County, entered September 17, 2017. The order, among other things, determined, pursuant to CPL 730, that appellant lacked the capacity to understand the proceedings against her. By order to show cause dated November 22, 2017, the parties were was directed to show cause why the appeal should not be dismissed on the ground that no appeal lies from the order entered September 17, 2017.Upon the order to show cause and no papers having been filed in response thereto, it isORDERED that the appeal is dismissed, as no appeal lies from the order sought to be appealed (see CPL 450.10, 450.15).February 16, 20182017-2047 W CR. THE PEOPLE v. MALASQUEZ SANCHEZ, RENE A. — Motion by appellant for leave to prosecute an appeal from judgments of conviction of the Justice Court of the Village of Port Chester, Westchester County, rendered February 17, 2017, as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it isORDERED that the motion is granted and the Legal Aid Society of Westchester County is assigned as counsel; and it is further,ORDERED, on the court’s own motion, that the appeal shall be perfected expeditiously; and it is further,ORDERED that the court stenographer or a certified transcriber, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further,ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report, if any, prepared in connection with defendant’s sentencing, including the recommendation sheet and any prior reports on defendant which are incorporated or referred to in the report.February 16, 2018
