Appellate TermFirst DepartmentThe following orders on motion were filed and entered onJanuary 8, 2018.By: Shulman, J.P., Ling-Cohan, Gonzalez, JJ.15-300. THE PEOPLE OF THE STATE OF NEW YORK, res, v. KEITH ADAMS, def-app — Judgment of conviction (Alexander M. Tisch, J.), rendered December 17, 2014, affirmed.Defendant’s guilty plea was knowing, intelligent and voluntary (see People v. Conceicao, 26 NY3d 375, 382 [2015]; People v. Sougou, 26 NY3d 1052, 1054-1055 [2015]). At the plea proceeding defendant, among other things, waived prosecution by information and formal allocution, admitted his guilt, stated that he was pleading guilty freely and voluntarily, and that he understood he was giving up his rights to a trial by jury, to remain silent, to call witnesses and to confront the People’s witnesses. Thus, the record as a whole establishes defendant’s understanding and waiver of his constitutional rights (see Boykin v. Alabama, 395 US 238 [1969]), and nothing in the allocution casts any doubt on the plea’s voluntariness.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201814-412. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JESENIA CRUZ, def-app — Judgment of conviction, (Alexander M. Tisch, J., at plea; Laurie Peterson, J., at sentencing), rendered March 6, 2014, affirmed.Defendant’s contention that her plea was not knowing, voluntary and intelligent is unpreserved for appellate review, since defendant did not make a postallocution motion to withdraw her plea or to set aside the judgment of conviction pursuant to CPL 440.10 (see People v. Conceicao, 26 NY3d 375, 381-382 [2015]; People v. Jackson, 123 AD3d 634 [2014], lv denied 25 NY3d 1202 [2015]) and we decline to review it in the interest of justice. Unlike the situation in People v. Tyrell, 22 NY3d 359 (2013), defendant had ample opportunity to move to withdraw her plea or otherwise raise the issue and the alleged deficiency did not rise to the level of a mode of proceedings error (see People v. Powell, 134 AD3d 647 [2015], lv denied 27 NY3d 1073 [2016]). As an alternative holding, we find that the plea was knowing, intelligent and voluntary, notwithstanding the absence of a full enumeration of all the rights waived during the course of the allocution (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; People v. Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]).In any event, defendant expressly requests that she does not want her plea to be vacated unless we were to dismiss the accusatory instrument based upon her completion of the sentence. Since dismissal is not warranted (see People v. Conceicao, 26 NY3d at 385 n 1 [2015]; People v. Teron, 139 AD3d 450 [2016]), we affirm on this basis as well (see People v. Diaz, 112 AD3d 423 [2013], lv denied 23 NY3d 1036 [2014]; People v. Schweitzer, 83 AD3d 503 [2011], lv denied 17 NY3d 800 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201816-477. THE PEOPLE OF THE STATE OF NEW YORK, res, v. EBONY FELDER, def-app — Judgment of conviction (Tamiko A. Amaker, J. at suppression motion; Kevin B. McGrath, J. at trial), rendered April 7, 2016, affirmed.Defendant’s contention that the court erred in summarily denying her suppression motion is only partially preserved for appellate review (see People v. Bigelow, 68 AD3d 1127, 1128 [2009], lv denied 14 NY3d 797 [2010]). In any event, Department of Motor Vehicle records are not suppressible (see People v. Tolentino, 14 NY3d 382, 385-387 [2010], cert dismissed 563 US 123 [2011]), nor are the police officer’s observations of defendant driving on a public highway (see People v. Weaver, 12 NY3d 433, 440 [2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201817-299. HARRY GOETZ, plf-app, v. NEVILLE WHITE AND CAROL WHITE, def-res — Judgment (Sabrina B. Kraus, J.), entered on or about March 2, 2017, affirmed, without costs.The trial court applied the appropriate rules and principles of substantive law and accomplished “substantial justice” in dismissing plaintiff’s action (see CCA 1804, 1807; Williams v. Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]). A fair interpretation of the evidence supports the trial court’s determination that plaintiff failed to establish any basis to impose liability upon defendants in connection with defendants’ repair and replacement of the damaged fence separating the parties’ abutting properties. The evidence supports a finding that defendants entered onto plaintiff’s property with plaintiff’s permission, that the fence was repaired without cost to plaintiff, and plaintiff failed to prove any permanent damage was done to his shrubbery.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201815-179. THE PEOPLE OF THE STATE OF NEW YORK, res, v. SERGEI KHRAMSTOV, def-app — Judgment of conviction (Alexander M. Tisch, J.), rendered October 23, 2014, affirmed.The accusatory instrument was not jurisdictionally defective. Giving the information “a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000]), we find “as a matter of common sense and reasonable pleading” (People v. Davis, 13 NY3d 17, 31 [2009]) that it was legally sufficient to charge defendant with disruption or disturbance of a religious service (see Penal Law §240.21). The instrument recited that defendant “enter[ed] the Church of the Sacred Heart,” “during [a] church service,” which was attended by “at least forty people” and “disrupted the service” by “walk[ing] up to the altar, screaming loudly, and flailing his arms.” These allegations were sufficient for pleading purposes to establish that defendant made an “unreasonable noise or disturbance while at a lawfully assembled religious service…with intent to cause annoyance or alarm or recklessly creating a risk thereof” (Penal Law §240.21; see People v. Bakolas, 59 NY2d 51, 54 [1983]; People v. McDaniel, 161 Misc 2d 295, 303 [Crim. Ct., NY County 1994], aff’d as modified 172 Misc 2d 854 [App Term, 1st Dept 1997], lv denied 90 NY2d 895 [1997]). Contrary to defendant’s present claim, there is no requirement that there be allegations that a priest or other minister was preaching at the altar, that rituals were being performed or that parishioners were caused to leave (see William C. Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.21; People v. King, 148 Misc 2d 859, 861 [Crim. Ct., NY County 1990]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201817-369. INOCENCIA LUNA, plf-app, v. MARK ANGELI AND CITIBANK, N.A., def-res — Judgment (Joseph E. Capella, J.), entered on or about February 23, 2016, affirmed, without costs.The record establishes that the trial court applied the appropriate rules and principles of substantive law and accomplished “substantial justice” in dismissing plaintiff’s action for “defective services rendered” and breach of contract (see CCA 1804, 1807; Williams v. Roper, 269 AD2d 125, 126 [2000], lv dismissed 95 NY2d 898 [2000]). A fair interpretation of the evidence supports the trial court’s findings that plaintiff failed to establish that defendant Citibank, N.A. owed her any excess funds following plaintiff’s repayment of a loan. The action was also properly dismissed against defendant Mark Angeli, since he was acting solely in his representative capacity as an employee of Citibank and not in his individual capacity in connection with the loan agreement at issue.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201815-193. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JUAN RIVERA, def-app — Judgment of conviction (Linda Poust-Lopez, J.), rendered October 29, 2014, affirmed.The accusatory instrument charging attempted criminal possession of a firearm (see Penal Law §§110/265.01-b[1]), was not jurisdictionally defective. The instrument recites that during the execution of a search warrant of defendant’s apartment, police found a .32 caliber intact, but inoperable, firearm in a fish tank located in defendant’s living room. Defendant’s belief that the firearm was operable can be inferred from allegations that defendant stated to the police that he agreed to hold the gun as a favor for a drug dealer who used the gun for his protection, and that defendant intended to sell the gun if it was not timely retrieved (see Matter of Lavar D., 90 NY2d 963, 965 [1997]; People v. Boyd, 153 AD3d 1608 [2017]).An in camera review of the minutes of the Darden hearing (People v. Darden, 34 NY2d 177 [1974]) reveals that the confidential informant existed, and that the information he or she provided to the police was based on the informant’s personal observations and sufficed to provide probable cause for the issuance of the search warrant (see People v. Raosto, 110 AD3d 524, 526 [2013], lv denied 22 NY3d 1090 [2014]). Defendant’s arguments for disclosure of the warrant application are similar to those he made in an unsuccessful motion before this Court, and we see no reason to revisit our prior ruling (see People v. Lowe, 50 AD3d 516 [2008], affd 12 NY3d 768 [2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 201816-466/467. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MANUEL ROMANO, def-app — Judgments of conviction (Steven M. Statsinger, J.), each rendered February 24, 2016, affirmed.The verdict convicting defendant of attempted criminal contempt in the second degree (see Penal Law §§110.00/215.50[3]) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342, 349 [2007]). There is no basis for disturbing the court’s credibility determinations. There was ample evidence of defendant’s guilt, including the testimony of the complaining witness that was corroborated by a 911 recording, that defendant knocked on the door to complainant’s apartment and requested that she “talk” to him, in violation of a valid order of protection directing defendant to stay away from complainant and/or her home (see People v. Kaplan, 125 AD3d 465 [2015], lv denied 25 NY3d 1203 [2015]). Defendant’s present contention that the People failed to prove that he had knowledge of the contents of the order of protection is unpreserved, and we decline to review this unpreserved claim in the interest of justice. Were we to review his claim, we would find it to be without merit.We agree with defendant that the trial court failed to engage in a minimal inquiry into his seemingly serious request to substitute counsel (see People v. Porto, 16 NY3d 93, 100 [2010]). Nevertheless, the only relief that defendant now requests is dismissal of the accusatory instruments and he expressly requests this Court to affirm his convictions if it does not grant a dismissal. Since it cannot be said that no penological purpose would be served by remanding the matter for a new trial on the underlying charges, which include attempted second-degree criminal contempt, attempted third-degree assault and attempted child endangerment (see People v. Allen, 39 NY2d 916, 918 [1976]), dismissal is not warranted and therefore we affirm.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 16, 2018The following orders on motion were filed and entered onJanuary 16, 2018.By: Shulman, P.J., Ling-Cohan, Cooper, J.J.570012/18. Devonshire Surgical Facility a/a/o Ruiz, R. v. Nationwide Mutual Ins. Co.It is Ordered that the motion of the plaintiffs-appellants seeking a stay of all proceedings is denied.570031/18. 5th and 106th Street Associates L.P. v. Pierre EarlingtonEx-parte application is denied. By: Shulman, P.J.,570138/17. McKenzie, Alfred v. Damazio, AkanniIt is Ordered that the motion for permission to reargue and/or leave to appeal to the Appellate Division, First Department is denied.570611/16. Aguilera, Diego & Cardona, Luz v. Perez, RafaelIt is Ordered that the motion for permission to reargue and/or leave to appeal to the Appellate Division, First Department is denied.570625/16. RSL 121 East 82nd LLC v. Finn, JillianIt is Ordered that the motion for permission to reargue and/or leave to appeal to the Appellate Division, First Department is denied.570427/17. 92 Cooper Assoc., LLC v. Roughton-Hester, PeggyIt is Ordered that the motion and cross motion are consolidated for disposition.It is further Ordered that the motion and cross motion are denied.
