18-029. ALLSTATE INSURANCE COMPANY, pet-app, v. LONGEVITY MEDICAL SUPPLY, INC., A/A/O TESSA BARTON, res-res — Order and judgment (Erika M. Edwards, J.), entered on or about December 14, 2016, affirmed, with $25 costs.Petitioner-insurer failed to demonstrate a ground pursuant to CPLR 7511 to vacate the master arbitrator’s award. There was a rational basis, based on the no-fault regulations, for the master arbitrator’s finding that respondent-medical provider’s proof was sufficient to establish that (1) it responded to the verification demands sent by petitioner, and (2) that petitioner was therefore required, but failed, to rebut the presumption of receipt of the verification, or show that it timely acted upon receipt by paying or denying the claim, or seeking further verification. The master arbitrator’s legal analysis of the arbitrator’s determination was well within the scope of her authority to review and correct an error of law made by the arbitrator (see 11 NYCRR 65-4.10[a][4]; Matter of Smith [Firemen's Ins. Co.], 55 NY2d 224, 231 [1982]; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]). Applying the law to a given set of facts is well within the province of a master arbitrator, even if the master arbitrator’s conclusion differs from that of the arbitrator (see Martinez v. Metropolitan Prop. & Liab. Ins. Co., 146 AD2d 610 [1989]).We have considered petitioner’s remaining arguments and find them to be without merit.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 201813-359. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MIGUEL GARCIA, def-app — Judgment of conviction (William McGuire, J.), rendered December 4, 2012, affirmed.Defendant’s guilty plea was knowing, intelligent and voluntary. At the plea proceeding, defendant pleaded guilty to a single count of second-degree harassment, a violation, in full satisfaction of an accusatory instrument charging, inter alia, misdemeanor offenses of third-degree assault and third-degree menacing. Defendant, with the assistance of a Spanish interpreter, personally confirmed that he was pleading guilty voluntarily, that he had “discussed this matter fully” with counsel and that he understood he was waiving the right to a trial, the right to testify on his own behalf, and the right to confront the witnesses against him. Thus, the record as a whole establishes defendant’s understanding and waiver of his constitutional rights (see Boykin v. Alabama, 395 US 238 [1969]), despite the absence of a full enumeration of all the rights waived (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; People v. Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]). Furthermore, defendant’s responses to the questions propounded during his allocution belie the claim of difficulty in understanding his interpreter (see People v. Curet, 176 AD2d 160 [1991], lv denied 78 NY2d 1127 [1991])THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 201818-014. IN THE MATTER OF WINSTON GREGORY HALL, FOR LEAVE TO ASSUME THE NAME OF SAGE-EL , pet-app — Appeal from order (Carol R. Sharpe, J.), entered August 28, 2017, deemed an application by petitioner for review pursuant to CPLR 5704(b), and so considered, order affirmed.Upon the grant of petitioner’s application to change his name (see Civil Rights Law §63), Civil Court properly denied the additional relief sought by petitioner with respect to his race and nationality. Such relief is not authorized by article 6 of the Civil Rights Law and is beyond the scope of Civil Court’s limited jurisdiction (see CCA 201 et seq.).Although petitioner has appealed from an ex parte order which is not appealable as of right (see CPLR 5701[1], [2]), we treat the appeal as an application by petitioner for review pursuant to CPLR 5704(b) (see Matter of Washington, 216 AD2d 781, 781 [1995]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 201816-011. THE PEOPLE OF THE STATE OF NEW YORK, res, v. AKHTAR SHEIKH, def-app — Judgment of conviction, (John Cataldo, J.H.O.), rendered October 27, 2014, affirmed.The accusatory instrument charging disorderly conduct pursuant to Penal Law §240.20(5) was not jurisdictionally defective. Defendant’s intent to cause public inconvenience, annoyance or alarm, or recklessness in creating such a risk, is fairly inferable from police allegations that at a specified date and time, and in front of 168 Delancey Street, defendant “le[ft] his parked vehicle in the middle of traffic with the doors open and keys in the ignition, obstructing vehicles and cyclists,” and that defendant stated in the officer’s presence “I don’t care, I could leave it there…it’s covered by insurance” (see People v. Hickson, 50 Misc 3d 127[A], 2015 NY Slip Op 51865[U][App Term, 1st Dept 2015]; see also People v. Moye, 90 AD3d 472 [2011], lv denied 18 NY3d 926 [2012]).The court properly permitted defendant to represent himself, since his request was unequivocal and he was advised of the perils and disadvantages of his chosen course (see People v. Stone, 22 NY3d 520, 525 [2014]; People v. Arroyo, 98 NY2d 101, 103-104 [2002]; People v. McMath, 54 AD3d 566, 568 [2008], lv denied 11 NY3d 927 [2009]). Moreover, the court permitted defense counsel to remain as legal adviser throughout the trial (see People v. Collins, 77 AD3d 404, 405 [2010], lv denied 16 NY3d 797 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 201816-012. THE PEOPLE OF THE STATE OF NEW YORK, res, v. AKHTAR SHEIKH, def-app — Judgment of conviction, (John Cataldo, J.H.O.), rendered September 18, 2014, affirmed.The verdict convicting defendant of disorderly conduct (see Penal Law §240.20[7]) was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the court’s determinations concerning credibility.Defendant’s present contention that he was denied the effective assistance of counsel is not reviewable on direct appeal because it involves matters outside the record regarding counsel’s strategy (see People v. Rivera, 71 NY2d 705, 709 [1988]). On the existing record, to the extent it permits review, we find that defendant received effective assistance. In any event, dismissal of the accusatory instrument, the only relief defendant requests on appeal, would not be the appropriate corrective action in this particular case.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 201814-069. THE PEOPLE OF THE STATE OF NEW YORK, res, v. DWIGHT VARLACK, def-app — Judgment of conviction, (Raymond L. Bruce, J.), rendered February 1, 2013, affirmed.The court properly granted the People’s pretrial motion to amend the information to add the charge of second-degree harassment (see CPL 100.45[3]; People v. Harper, 37 NY2d 96, 99-100 [1975]). The newly added charge is sufficiently supported by the facts alleged in the original instrument, namely, that defendant “intentionally place[d] or “attempt[ed] to place another person in reasonable fear of physical injury by “point[ing] a black hand gun at” the victim and stating “GET THE F*** OUT OF HERE.” Contrary to defendant’s contention, the requisite intent to harass, annoy or alarm and the reasonable threat of harmful physical contact (see Penal Law §240.26[1]) may be inferred from his conduct and the surrounding circumstances (see People v. Bracey, 41 NY2d 296 [1977]; People v. Collins, 178 AD2d 789 [1991]; see also Matter of Shane EE., 48 AD3d 946, 947-948 [2008]; People v. Sylla, 7 Misc 3d 8, 10 [2005], lv denied 4 NY3d 857 [2005]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.February 22, 2018The following orders on motion were filed and entered onFebruary 22nd, 2018.By: Shulman, P.J., Ling-Cohan, Cooper, J.J.570022/18. Cameron, Amber v. Mahadeo, HardyIt is Ordered that the motion of the plaintiff-respondent seeking the dismissal of the appeal is granted without opposition. It is further Ordered that plaintiff-respondent’s application seeking the release of funds is denied on the papers submitted, without prejudice to its renewal upon proof of funds on deposit with the Finance Administrator of the City of New York.570088/18. Fletcher, Lenita v. Goss, RaymondIt is Ordered that the motion of the plaintiff-respondent to dismiss the instant appeal is granted, without opposition, unless the defendant-appellant perfects his appeal by the May 2018 term –the deadline for which is March 13, 2018. In the event of defendant-appellant’s failure to timely perfect his appeal, plaintiff-respondent may move on five days notice for an order dismissing the appeal. 570055/18. 121 Retail Lease Owner LLC v. XYZ Corps., et al.,It is Ordered that the motion of the respondents-appellants seeking an order staying enforcement of the final judgment and warrant of eviction is denied.570113/18. Anikwa, Obyageli v. Biempkpa, Catherine570114/18. Moran, Eusebio v. Nerys, Yadira570112/18. Advance Magazine Publishers Inc., v. Corporate Suites 825 LLCEx-parte applications are declined.By: Shulman, P.J., Ling-Cohan, Cooper, J.J.570070/18. People v. Wilson, Joseph570036/18. People v. Rivera, William570057/18. People v. Cundiff, Robert570068/18. People v. Brunache, HarvensOrdered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James Jr., Esq. of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, Tel # 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. See Order.570056/18. People v. Dozier, Karl570071/18. People v. Castillo, Miguel570073/18. People v. Gladden, TravisOrdered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Robert S. Dean, Esq. of the Center for Appellate Litigation, (120 Wall Street, 28th Floor, New York, NY 10005, Tel # 212-577-2523 ) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. See Order.570091/18. People v. McKenzie, Nyoka570067/18. People v. Taite, MauriceOrdered that the motion is granted to the extent of granting appellant leave to file a late notice of appeal. The Criminal Court Appeals Clerk is directed to file a notice of appeal on behalf of the defendant. Upon filing said notice of appeal, that branch of the motion seeking to appeal as a poor person and the assignment of counsel is granted. Robert S. Dean, Esq. of the Center for Appellate Litigation (120 Wall Street, 28th Floor, NY, NY 10038, Tel # 212-577-2523) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. See Order.570072/18. People v. Mercado, MiguelOrdered that the motion is granted to the extent of granting appellant leave to file a late notice of appeal. The Criminal Court Appeals Clerk is directed to file a notice of appeal on behalf of the defendant. Upon filing said notice of appeal, that branch of the motion seeking to appeal as a poor person and the assignment of counsel is granted. Seymour W. James Jr., Esq. of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, Tel # 212-577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. See Order.570765/17. People v. Quinlan, RyanOrdered that the motion is granted to the extent of relieving Seymour W. James Jr., Esq. of the Legal Aid Society and assigning Robert S. Dean of the Center for Appellate Litigation (120 Wall Street, 28th Floor, New York, New York 10005 Tel # 212-577-2523) as counsel for the appellant to continue with the prosecution of the appeal pursuant to Section 722 of the County law. See Order.570718/17. People v. Brown, TavonOrdered that the motion is granted to the extent of relieving Robert S. Dean, Esq. of the Center for Appellate Litigation and assigning Seymour W. James, Jr. Esq. Of the Legal Aid Society Criminal Appeals Bureau (199 Water Street, 3rd Floor New York, NY 10038 Tel # 212-577-3688) as counsel for the appellant to continue with the prosecution of the appeal pursuant to Section 722 of the County Law. See Order. 570473/16. People v. Rinaldi, JohnStipulation “So Ordered”: Appeal restored to the April 2018 Term of the Court.570056/13. People v. Allen, Brian570984/14. People v. Coker, Travis570356/14. People v. Onatolu, Adekunle571015/14. People v. Nelson, Edward570151/14. People v. Ortiz, Ervin571150/15. People v. Richards, Uzziah570676/16. People v Chalen, JamesStipulations “So Ordered”: Appeals adjourned to the October 2018 Term of the Court.
