By: Lowe, III, P.J., Ling-Cohan, Gonzalez, JJ.17-448. 237 REALTY LLC, plf-res, v. ANITA CRAWFORD, def-app — Judgment (Jose A. Padilla, Jr., J.), entered on or about March 7, 2017, affirmed, without costs.The record establishes that the trial court applied the appropriate rules and principles of substantive law and accomplished “substantial justice” in awarding judgment in favor of plaintiff-landlord in an action for unpaid rent (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 finding that defendant-tenant failed to pay the rent arrears and late fees owed. The court correctly interpreted the parties’ so-ordered stipulation settling a prior Housing Court proceeding as preserving and severing the underlying claim for a plenary action. Despite being given ample opportunity, defendant failed to submit any proof that she made the rent payments at issue, nor did she establish any other defense to the claim.We have considered defendant’s remaining arguments and find them unavailing.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201716-484. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RONALD DAVENPORT, def-app — Judgment of conviction (Guy H. Mitchell, J.), rendered May 5, 2016, affirmed.The accusatory instrument charging defendant with criminal possession of marijuana in the fifth degree (see Penal Law §221.10[1]) was not jurisdictionally defective. The deponent police officer’s allegations that he observed the defendant “on a sidewalk,” at “the north east corner of Crosby Street and Broome Street,” holding “one cigarette containing marijuana,” and that the officer took the cigarette “from the defendant’s right hand,” were sufficient for pleading purposes to establish the public place element of the charged offense (see Penal Law §240.00; People v. Afilal, 26 NY3d 1050 [2015]) and that the marijuana was “open to public view” (Penal Law §221.10; see People v. Jackson, 18 NY3d 738 [2012]; Matter of Kawon W., 127 AD3d 668 [2015]; Matter of Michael I., 309 AD2d 598 [2003], lv denied 1 NY3d 508 [2004]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201717-244. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ANTWAUN GILLARD, def-app — Judgment of conviction (Alfred D. Cooper, J.H.O.) rendered, February 8, 2017, reversed, on the law, accusatory instrument dismissed, and fine, if paid, remitted.As the People concede, defendant’s conviction must be vacated since the plea record lacks the requisite “affirmative showing” that defendant understood and waived his Boykin rights (Boykin v. Alabama, 395 US 238, 242 [1969]; People v. Tyrell, 22 NY3d 359, 365 [2013]). The People also agree that dismissal of the accusatory instrument is the appropriate corrective action in this particular case (cf. People v. Conceicao, 26 NY3d 375, n 1 [2015]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201717-188. THE PEOPLE OF THE STATE OF NEW YORK, res, v. COREY HARLEY, def-app — Judgment of conviction (Louis L. Nock, J.), rendered November 14, 2016, affirmed.The accusatory instrument was not jurisdictionally defective. Sworn police allegations that defendant was “behind the wheel” of a vehicle, while “the key was in the ignition [and] the engine was running,” satisfied the operation element of the charged Vehicle and Traffic Law offenses, both misdemeanor and traffic infractions (see People v. Alamo, 34 NY2d 453, 458-459 [1974]; People v. Almanzar, 113 AD3d 527 [2014], lv denied 23 NY3d 1059 [2014]). The court thus had jurisdiction over defendant and was authorized to accept defendant’s plea to the charged offense of driving while impaired (see Vehicle and traffic Law §1192[1]), and facilitating aggravated unlicensed operation of a motor vehicle in the third degree (see Vehicle and Traffic Law §511-a[1]), a traffic infraction not charged in the accusatory instrument (see People v. Keizer, 100 NY2d 114, 119 [2003]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201717-447. MYUNG-JA MELTON, pet-ten-app, v. MALCOLM SHABAZZ, LP, res-lan-res — Appeal from order (Peter M. Wendt, J.), dated November 4, 2016, dismissed, without costs.Petitioner-tenant is not aggrieved by the November 4, 2016 order from which she appeals, since she was afforded the full relief that she requested, namely, to restore the HP proceeding to the calendar and to direct respondent-landlord to correct the remaining violation by replacing the defective kitchen cabinet drawer. To the extent that petitioner’s motion papers raised the issue of a sewage backup, a matter not referenced in the violation report, petitioner informed the court on the return date of the motion that the sewage condition was no longer at issue, and did not request any further relief with regard to any such condition. Accordingly, the appeal is dismissed (see CPLR 5511; Parochial Bus Sys. v. Board of Educ. of City of N.Y., 60 NY2d 539 [1983]). Petitioner’s remaining contentions are unpreserved for appellate review or involve matters dehors the record.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201717-420. ORLANDO SANCHEZ AND CARMEN LORENZO, pet-res, v. NGOYI NGOYI, res-app — Order (Evon M. Asforis, J.), entered March 30, 2017, reversed, without costs, motion granted, stipulation and final judgment vacated, and matter remanded to Civil Court for further proceedings.While a stipulation is essentially a contract and should not be lightly set aside, the court possesses the discretionary power to relieve parties from the consequences of a stipulation “if it appears that the stipulation was entered into inadvisedly or that it would be inequitable to hold the parties to it” (1420 Concourse Corp. v. Cruz, 135 AD2d 371, 373 [1987], appeal dismissed 73 NY2d 868 [1989], citing Matter of Frutiger, 29 NY2d 143, 150 [1971]). In view of respondent’s unchallenged submissions alleging that petitioners, the rent stabilized tenants of the subject apartment, commercialized the premises and overcharged respondent, who rented the “second bedroom” for $200 per week, we favorably exercise our discretion to grant respondent’s unopposed motion to vacate the pro se stipulation of settlement (see 2722 8th LLC v. Watson, 10 Misc 3d 140[A], 2006 NY Slip Op 50038[U] [App Term, 1st Dept 2006]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 201716-562. THE PEOPLE OF THE STATE OF NEW YORK, res, v. TING RUAN, def-app — Judgment of conviction (Robert M. Mandelbaum.) rendered, October 2, 2015, affirmed.The verdict convicting the defendant of attempted forcible touching (Penal Law §§110/130.52) and sexual abuse in the third degree (Penal Law §130.55) was not against the weight of the evidence (see People v. Danielson, 9 NY3d 342 [2007]). There is no basis for disturbing the trial court’s determinations concerning credibility, including its evaluation of minor inconsistencies in the testimony of the eyewitness police officers. Nor was the officers’ account of the subway incident so implausible as to be incredible as a matter of law (see People v. Garafolo, 44 AD2d 86, 88 [1974]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.December 12, 2017By: Schoenfeld, J.P., Shulman, Ling-Cohan, J.J.570944/15. Emerald 115 Mosholu LLC v. Hazleann Smith and NYCHAIt is Ordered that said application, pursuant to CPLR § 5704(b), is granted to the extent of vacating the stay of the enforcement of the warrant of eviction, contained in the Order to Show Cause returnable on December 22, 2017, and striking the Order to Show Cause from the Civil Court calendar. The warrant of eviction may be executed after personal service of a copy of this order upon third-party respondent Sathiyaaruban Ramasamy, 115 East Mosholu Parkway, Apartment 15D, Bronx, New York, 10467, and filing proof thereof with the Clerk of the Civil Court.570766/17. 553 West 144th LLC v. Fernandez, FaustoIt is Ordered that the respondent-appellant’s motion for a stay is denied. The appellant’s failure to timely serve the notice of appeal deprives this Court of jurisdiction to entertain this application (see CPLR 5513[a]).570767/17. 1199 Housing Corp., v. Gonzalez, FelixIt is Ordered that the respondent-appellant’s motion seeking to stay the enforcement of the final judgment and warrant of eviction is denied. Appellant is permitted to prosecute the appeal on the original record of the trial court.570560/17. 2 Rector Street ( NY ) LLC v. Cullen & Troia et al.,Stipulation “So Ordered”: Appeal is hereby withdrawn.570784/17. Ragoschke, Jade v. Meng, AlexEx-parte application is denied.By: Schoenfeld, J.P., Shulman, Ling-Cohan, J.J.570744/17. People v. Quezada, RichardOrdered that the motion is granted to the extent of granting appellant leave to file an untimely 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.570698/17. People v. Selph, ChadOrdered 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.570695/17. People v. Deer, Keisha570725/17. People v. Mfula, MutaleOrdered 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, NY, NY 10005, Tel # 212 577-2523) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. See Order.570600/17. People v. Bermeo, SegundoIt is Ordered that the motion is granted an that this Court’s order of assignment dated October 26, 2017 is amended to the extent of granting defendant-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. See Order.570527/15. People v. Sistachs-Hernandez, EduardoStipulation: “So Ordered”; adjourned to the March 2018 Term of this Court571092/12. People v. Need, Deon570108/15. People v. Fish, Calin570691/15. People v. McCain, Malik570669/14. People v. Jackson, ScottStipulation: “So Ordered”; adjourned to the June 2018 Term of this Court570134/17. People v. Mohamed, Hamdy570182/17. People v. Duran, HugoStipulation: “So Ordered”; adjourned to the September 2018 Term of this Court.
