2016-571 K CR. THE PEOPLE v. RODRIGUEZ, RICARDO — Motion by Lynn W. L. Fahey, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered February 16, 2016, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated August 16, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.January 25, 20182016-1582 K CR. THE PEOPLE v. CARPENTER, JOHN — Motion by Lynn W. L. Fahey, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered May 27, 2016, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated August 18, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.January 25, 20182016-1795 K C. M & F E C CORP. v. M & R BRIGHTON LAND CORP. — On the court’s own motion, it isORDERED that this appeal from a judgment of the Civil Court of the City of New York, Kings County, entered January 25, 2016, is stricken from the general calendar and the appeals calendar, as the minutes of the trial have not been made part of the record on appeal.January 25, 20182016-1835 K CR. THE PEOPLE v. DIEM, DAVID — Motion by Paul Skip Laisure, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered June 17, 2016, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that appellant is directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he has abandoned the appeal, by filing an affirmation or an affidavit on that issue in the office of the Clerk of this court on or before February 16, 2018; and it is further,ORDERED that the motion by assigned counsel is held in abeyance in the interim; and it is further,ORDERED that the Clerk of this court or his designee is directed to serve a copy of this order to show cause upon appellant at his last known place of residence, and upon the attorney who last appeared for him, and upon the District Attorney, by ordinary mail pursuant to CPL 470.60 (2).January 25, 20182016-1844 K CR. THE PEOPLE v. CASTRO, JOSEPH — Motion by Lynn W. L. Fahey, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered July 7, 2016, in effect, to be relieved as counsel on the ground that appellant has abandoned the appeal by failing to respond to correspondence sent to him by assigned counsel. By order to show cause dated August 4, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel, in effect, to be relieved is granted.January 25, 20182016-2073 K C. OLEG’S ACUPUNCTURE, P.C. v. STATE FARM MUT. AUTO. INS. CO. — Motion by appellant for a stay of all proceedings, including trial, pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, entered June 9, 2016.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted.January 25, 20182017-2250 K CR. THE PEOPLE v. SANCHEZ-CASTILLO, EDGAR — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered November 4, 2016.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 defendant’s moving papers are deemed to constitute a timely notice of appeal.January 25, 20182017-2397 RI CR. THE PEOPLE v. BRISSETT, WESLEY — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from a judgment of conviction of the Criminal Court of the City of New York, Richmond County, rendered October 3, 2017, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking an extension of time to take an appeal is granted and defendant’s moving papers are deemed to constitute a timely notice of appeal; and it is further,ORDERED that the branches of the motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and Appellate Advocates 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, 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.January 25, 20182017-2457 RI CR. THE PEOPLE v. BENNETT, LEE — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from a judgment of conviction of the Criminal Court of the City of New York, Richmond County, rendered June 27, 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 granted and defendant’s moving papers are deemed to constitute a timely notice of appeal.January 25, 20182017-2458 RI CR. THE PEOPLE v. BENNETT, LEE — Motion by defendant, pursuant to CPL 460.30, for an extension of time to take an appeal from a judgment of conviction of the Criminal Court of the City of New York, Richmond County, rendered June 27, 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 granted and defendant’s moving papers are deemed to constitute a timely notice of appeal.January 25, 20182018-64 K C. GORDON v. ROSS — Appeals from orders of the Civil Court of the City of New York, Kings County, entered May 24, 2017 and July 7, 2017, respectively, and from a final judgment of that court entered July 21, 2017.On the court’s own motion, it isORDERED that the appeals are dismissed.The appeal from the final judgment entered July 21, 2017 is dismissed, as that final judgment was vacated by an order of the Civil Court dated August 9, 2017. The appeals from the orders entered May 24, 2017 and July 7, 2017, respectively, are dismissed, as the right of direct appeal from the intermediate orders terminated with the entry of a final judgment on December 19, 2017.January 25, 20182018-87 Q C. 30 RD. REALTY CO., LLC v. SCARAMELL — Appeal from an order of the Civil Court of the City of New York, Queens County, entered June 13, 2016.On the court’s own motion, it isORDERED that the appeal is dismissed, as the right of direct appeal from the intermediate order terminated with the entry of a final judgment on November 28, 2017 (see Matter of Aho, 39 NY2d 241, 248 [1976]).January 25, 2018By: Pesce, P.J., Weston, Elliot, JJ.2018-91 K C. HOUSE ON MACON, LLC v. LAMOUNT — Motion by appellant for a stay pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, dated December 15, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is denied as unnecessary, as a separate motion by appellant for a stay has been granted.January 25, 20182018-91 K C. HOUSE ON MACON, LLC v. LAMOUNT — Motion by appellant to be restored to possession of the subject apartment pending the determination of an appeal from an order of the Civil Court of the City of New York, Kings County, dated December 15, 2017, for a stay pending the determination of the appeal, and for related relief.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the branch of the motion seeking to be restored to possession of the subject apartment pending the determination of the appeal is granted and respondent is directed to restore appellant to possession forthwith; and it is further,ORDERED that the branch of the motion seeking a stay pending the determination of the appeal is granted on condition that within 10 days of the date of this decision and order on motion appellant pay respondent any and all arrears in rent and/or use and occupancy at the rate previously payable as rent and continue to pay respondent use and occupancy at a like rate as it becomes due, and on the further condition that appellant perfect the appeal on or before April 6, 2018; and it is further,ORDERED that in the event that any of the above conditions are not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days’ notice; and it is further,ORDERED that the remainder of the motion is denied.January 25, 2018Ninth and TenthJudical DisTRICTSBy: Marano, P.J., Tolbert, Garguilo, JJ.Joyce Kwiecinski, appellant pro se.Nassau County Attorney (Carnell T. Foskey, Esq.), for respondent.2015-2604 N C. THE PEOPLE v. KWIECINSKI — Appeal from a judgment of the District Court of Nassau County, Nassau County Traffic and Parking Violations Agency (Joseph C. Calabrese, J.H.O.), entered August 4, 2015. The judgment, after a nonjury trial, imposed a $50 civil liability upon defendant for speeding in a school zone, plus a $30 administrative fee.ORDERED that the judgment is reversed, without costs, the notice of liability is dismissed, and the $50 civil liability and administrative fee, if paid, are remitted.This action was commenced on November 10, 2014 to impose a civil liability upon defendant as the “owner” (Vehicle and Traffic Law §1111-b [4] [j]) of a vehicle she had rented that had been recorded by a photo speed violation monitoring system device failing to comply with the posted maximum speed limit in a school speed zone in violation of Nassau County Local Law No. 9-2014.After a nonjury trial conducted on August 4, 2015, the District Court found defendant liable and imposed a civil liability upon her in the sum of $50, plus a $30 administrative fee.While this action commenced prior to the repeal of Local Law 9-2014, the trial was held after the local law had been repealed. For the reasons stated in People v. Confino (___ Misc 3d __, 2017 NY Slip Op 27354[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]), the judgment is reversed and the notice of liability is dismissed.MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.January 25, 2018By: Marano, P.J., Brands, Ruderman, JJ.Martin Geoffrey Goldberg, Esq, for appellant.Nassau County District Attorney (Daniel Bresnahan and Pamela Kelly-Pincus of counsel), for respondent.2016-962 N CR. THE PEOPLE v. REINHARDT, FRANCES — Appeal from a judgment of the District Court of Nassau County, First District (Erica L. Prager, J.), rendered February 23, 2016. The judgment convicted defendant, upon her plea of guilty, of harassment in the second degree.ORDERED that the judgment of conviction is affirmed.Defendant was charged in a felony complaint with endangering the welfare of an incompetent or physically disabled person in the first degree (Penal Law §260.25). The People subsequently moved, pursuant to CPL 180.50, to reduce the felony charge to the class A misdemeanor charge of endangering the welfare of an incompetent or physically disabled person in the second degree (Penal Law §260.24), and, upon the consent of defense counsel, the court granted the application. Defendant then pleaded guilty to harassment in the second degree (Penal Law §240.26 [1]), a violation not charged in the complaint, in exchange for a sentence of 15 days in jail, a conditional discharge, and the issuance of an order of protection. On appeal, defendant contends that her plea was insufficient and should be vacated.Generally, a defendant must move to withdraw the plea or to vacate the judgment of conviction to preserve a claim that a guilty plea is invalid (see People v. Conceicao, 26 NY3d 375, 381 [2015]). However, a narrow exception exists “where the particular circumstances of a case reveal that a defendant had no actual or practical ability to object to an alleged error in the taking of a plea that was clear from the face of the record” (Conceicao, 26 NY3d at 381; People v. Louree, 8 NY3d 541, 546 [2007]). Here, defendant’s claims are reviewable on direct appeal, despite the fact that she did not move to withdraw her plea or to vacate the judgment of conviction, as she faced a practical inability to move to withdraw the plea because she was sentenced on the same date as the plea proceeding (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; Conceicao, 26 NY3d at 382).With respect to the validity of the plea, the record establishes that defendant was aware that she had the right to a trial, had the benefit of her counsel’s efforts and guidance, spoke with counsel, and chose to forgo trial in favor of entering a guilty plea (see People v. Sosa, 28 NY3d 965 [2016]). Therefore, while the plea allocution could have been more detailed, the totality of the circumstances establishes a knowing, intelligent, and voluntary plea (see Sosa, 28 NY3d at 966; Conceicao, 26 NY3d at 384; People v. Rosa, 135 AD3d 434 [2016]).Accordingly, the judgment of conviction is affirmed.MARANO, P.J., BRANDS and RUDERMAN, JJ., concur.January 25, 2018Rosenberg, Calica & Birney LLP (William J. Birney, Esq.), for appellant.Madeline Joan Lavender, respondent pro se (no brief filed).2016-2585 N C. LAVENDER v. KAPLAN — Appeal from a judgment of the District of Nassau County, Fourth District (Darlene D. Harris, J.), entered August 2, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,250.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the District Court for a new trial.Plaintiff commenced this small claims action to recover the principal sum of $3,800, alleging that defendant unlawfully removed three maple trees from her property. At a nonjury trial, the parties presented conflicting evidence with respect to the removal of the trees. Plaintiff presented two estimates, one for $4,040 and one for $3,800, of the cost of removing and grinding the stumps, and supplying and planting three new maple trees. Following the trial, the District Court awarded plaintiff the principal sum of $1,250.In a small claims action, our review is limited to a determination of whether “substantial justice has…been done between the parties according to the rules and principles of substantive law” (UDCA 1807; see UDCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]).Upon the review of the record, this court cannot ascertain how the District Court arrived at an award in favor of plaintiff in the principal sum of $1,250. Consequently, it cannot be determined whether the District Court’s judgment rendered substantial justice between the parties (see UDCA 1807).Accordingly, the judgment is reversed and the matter is remitted to the District Court for a new trial.MARANO, P.J., BRANDS and RUDERMAN, JJ., concur.January 25, 2018By: Marano, P.J., Tolbert, Garguilo, JJ.2015-1881 N CR. THE PEOPLE v. LARA-FLORES, JESUS — Motion by N. Scott Banks, Esq., counsel assigned to represent appellant on an appeal from a judgment of conviction of the District Court of Nassau County, First District, rendered July 29, 2015, to be relieved as counsel on the ground that appellant has abandoned the appeal as counsel is unable to locate or contact appellant. By order to show cause dated September 14, 2017, appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that he had abandoned the appeal, and the motion by assigned counsel to be relieved was held in abeyance in the interim.Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion by assigned counsel and no papers having been filed in response thereto, it isORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed; and it is further,ORDERED that the motion by assigned counsel to be relieved is granted.January 25, 20182015-2597 S CR. THE PEOPLE v. PEKICH, PETER — Application by appellant for a writ of error coram nobis for an extension of time to file an affidavit of errors on an appeal from a judgment of conviction of the District Court of Suffolk County, Second District, rendered September 11, 2015. By order to show cause dated August 1, 2017, the parties were directed to show cause before this court why the appeal should or should not be dismissed on the ground that the appeal was not properly taken in that the trial proceedings were recorded electronically and no affidavit of errors was filed.Upon the papers filed in support of the application and the papers filed in opposition thereto, and upon the order to show cause and the papers filed by appellant in response thereto, it isORDERED that the application is granted and appellant’s time to file an affidavit of errors is extended 30 days from the date of this decision and order on application (see People v. Smith, 2016 NY Slip Op 83072[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]); and it is further,ORDERED that the motion to dismiss the appeal is denied.January 25, 20182016-405 N CR. THE PEOPLE v. HAKIM, DENNIS — Appeal from a judgment of conviction of the Justice Court of the Village of Great Neck Estates, Nassau County, rendered February 2, 2016. By order to show cause dated November 16, 2017, appellant was directed to show cause before this court why the appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, or, if so advised, to move in this court for a writ of error coram nobis for an extension of time to file an affidavit of errors (see People v. Smith, 52 Misc 3d 143[A], 2016 NY Slip Op 51218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]). Appellant has now, in effect, applied for a writ of error coram nobis extending his time to file an affidavit of errors.Upon the order to show cause, and upon the papers filed in support of appellant’s application, in effect, for a writ of error coram nobis and no papers having been filed in opposition thereto, it isORDERED that appellant’s application and the motion to dismiss are consolidated for the purposes of disposition; and it is further,ORDERED that the application is granted and appellant’s time to file an affidavit of errors is extended 30 days from the date of this decision and order on motion (see People v. Smith, 2016 NY Slip Op 83072[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]); and it is further,ORDERED that the motion to dismiss the appeal is denied.January 25, 20182016-2216 S CR. THE PEOPLE v. CASTANZA, CHRISTOPHER — Motion by appellant on an appeal from a judgment of conviction of the District Court of Suffolk County, First District, rendered September 9, 2016, to continue a stay of execution of the judgment, which was granted by the Supreme Court, Suffolk County, on September 12, 2016, and reinstated and extended by decision and order on motion of this court dated September 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 granted and the stay of execution of the judgment is extended pending the determination of the appeal on condition that the appeal be perfected by April 6, 2018; and it is further,ORDERED that in the event that the above condition is not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days’ notice.January 25, 20182017-1622 D CR. THE PEOPLE v. MAHMOOD, TARIQ — Motion by appellant on an appeal from a judgment of conviction of the City Court of Beacon, Dutchess County, rendered July 19, 1995, to direct the City Court to file a return on appellant’s affidavit of errors, and for an enlargement of time to perfect the appeal.Upon the papers filed in support of the motion and the papers filed in response thereto, it isORDERED that the branch of the motion seeking to direct the City Court to file a return on appellant’s affidavit of errors is granted and a judge of the City Court shall, within 21 days of service by appellant upon the City Court of copies of the affidavit of errors and this decision and order on motion, file with the clerk of this court the affidavit of errors and the court’s return (CPL 460.10 [3] [d], [e]); and it is further,ORDERED that the branch of the motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected by April 6, 2018; and it is further,ORDERED that in the event that the above condition is not met, the court, on its own motion, may dismiss the appeal, or respondent may move to dismiss the appeal on three days’ notice.January 25, 2018By: Marano, P.J.2017-1977 W CR. THE PEOPLE v. NUWESRA, LEE — Motion by appellant, pursuant to CPL 460.50 and Vehicle and Traffic Law §1808, to stay the execution of a judgment of conviction of the City Court of Peekskill, Westchester County, rendered September 18, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted only to the extent of staying the revocation of appellant’s driver’s license; and it is further,ORDERED that appellant shall serve a certified copy of this decision and order on motion by mail upon the Commissioner of Motor Vehicles pursuant to Vehicle and Traffic Law Section 1808 (a) within 10 days of the date of this decision and order on motion; and it is further,ORDERED that the stay of the revocation of appellant’s motor vehicle operator’s license shall terminate and be of no further effect 90 days from the date of this decision and order on motion unless this court shall have extended this order.January 25, 20182017-2235 N CR. THE PEOPLE v. JIANJUN LI — Motion by appellants, pursuant to CPL 460.50, for a stay of execution of a judgment of conviction of the Justice Court of the Village of Saddle Rock, Nassau County, rendered November 1, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted; and it is further,ORDERED that this stay shall terminate and be of no further effect 120 days from the date of this decision and order on motion unless the appeal shall have been brought to argument or submitted to this court, or unless this court shall have extended this order; and it is further,ORDERED that appellants shall serve a copy of this decision and order on motion, by mail, on the clerk of the court from which the appeal is taken.January 25, 2018
