Second, Eleventh and Thirteenth JudicIal Districts
By: Pesce, P.J., Aliotta, Elliot, JJ.New York City Legal Aid Society, (Joanne Legano Ross of counsel), for appellant.Kings County District Attorney, (Leonard Joblove, Keith Dolan and John C. Carroll of counsel), for respondent.2015-1390 K CR. THE PEOPLE v. TERRY, CORY — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered May 12, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the seventh degree.ORDERED that the appeal is dismissed.Defendant and another individual were arrested and charged in an accusatory instrument with two felonies, criminal possession of a controlled substance in the third degree (Penal Law §220.16 [1]) and criminal sale of a controlled substance in the third degree (Penal Law §220.39 [1]), and one misdemeanor, criminal possession of a controlled substance in the seventh degree (Penal Law §220.03).On May 12, 2015, defendant appeared before Judge Matthew A. Sciarrino, Jr. in Criminal Court, Kings County, and defendant’s counsel told the court that the case had been on for a possible disposition, which included forfeiture of $1,521. Counsel stated that defendant was definitely interested in the offer by the People, “except that we’re having discussions about” the forfeiture. The prosecutor told the court that the offer was a plea to a class A misdemeanor, to “a conditional discharge, 20 days community service, $1,521 in forfeiture.” The prosecutor later agreed to reduce the amount of community service to 15 days.At a second call of the case, defendant’s counsel indicated that he had discussed the case with defendant, and that defendant “does not want to face the risk of indictment because of a battle over the forfeiture of the funds.” Thus, defendant was prepared to accept the People’s offer. The court agreed to the People’s request to dismiss the two felony charges. Defendant then withdrew his plea of not guilty and pleaded guilty to the class A misdemeanor of criminal possession of a controlled substance in the seventh degree (Penal Law §220.03). Defendant agreed with the court that, by entering into the plea, he was giving up his right to a trial, at which the People would have to prove his guilt beyond a reasonable doubt, and all of his trial rights, including the right to remain silent. Defendant admitted that, on March 10, 2015, he had possessed crack cocaine. The court accepted the plea. The court then stated, “[l]et me know when the forfeiture paperwork is done and I’ll sentence your client.” The prosecutor stated, “[w]e’ve received the signed forfeiture paperwork.” The court immediately imposed its sentence, a conditional discharge and 15 days of community service.Although defendant appealed from “each and every part” of the judgment of conviction, in his brief on appeal he raises issues only with respect to the forfeiture of $1,521. He contends that a court can direct a forfeiture only where a defendant pleads guilty to a controlled substance offense which constitutes a felony (see Penal Law §480.05; People v. Sturm, 41 Misc 3d 1203[A], 2013 NY Slip Op 51570[U] [Justice Ct, Village of Red Hook, Dutchess County 2013]), and, even if forfeiture were authorized by statute, defendant did not voluntarily consent to the forfeiture. Defendant’s counsel indicated at the plea and sentence proceeding that defendant “does not want to face the risk of indictment because of a battle over the forfeiture of the funds.” Defendant argues that this was an “equivocal statement” that “casts doubt on whether [defendant] voluntarily consented to the forfeiture as part of his plea.” Consequently, the Criminal Court “should have questioned [defendant] with regard to whether his consent to the forfeiture was voluntary,” and “the court’s reference to the execution of the forfeiture document was not sufficient to establish that [defendant] had knowingly and voluntarily agreed to forfeit the funds.”The People essentially argue that the forfeiture issue is not properly before the Appellate Term, as “the forfeiture was not part of the judgment of conviction, and the [Criminal C]ourt made no forfeiture determination as part of defendant’s sentence. Instead, the forfeiture agreement that defendant executed at the time of his plea and sentencing was a civil contract in which he agreed to settle the People’s potential civil claim for forfeiture, pursuant to” CPLR article 13-A, “and defendant’s execution of the forfeiture agreement was a condition of the People’s consent to the negotiated plea. The Criminal Court was not a party to this agreement between defendant and the People.”The plea allocution indicates that the court did not order any forfeiture, and the forfeiture agreement was not part of the sentence imposed. Thus, the forfeiture was not made part of the judgment of conviction, but, rather, it was a voluntary settlement of a potential civil proceeding pursuant to article 13-A of the CPLR. Under the circumstances, the forfeiture is not reviewable on an appeal from the judgment of conviction (see People v. Anderson, 138 AD3d 876 [2016]; People v. Abruzzese, 30 AD3d 219 [2006]; People v. Sczepankowski, 293 AD2d 212, 214 [2002]; cf. People v. Burgos, 129 AD3d 627 [2015]; People v. Carmichael, 123 AD3d 1053 [2014]).As no issue is raised with respect to the judgment of conviction, the appeal is dismissed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018New York City Legal Aid Society, (Joanne Legano Ross of counsel), for appellant.Kings County District Attorney, (Leonard Joblove and Solomon Neubort of counsel), for respondent.2015-1675 K CR. THE PEOPLE v. IACONO, JOHN — Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Matthew A. Sciarrino, Jr., J.), rendered June 22, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal trespass in the third degree. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018New York City Legal Aid Society, (Steven J. Miraglia of counsel), for appellant.Queens County District Attorney, (John M. Castellano, Johnnette Traill and Anastasia Spanakos of counsel), for respondent.2015-1786 Q CR. THE PEOPLE v. FENTON, KEEN W. — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ernest F. Hart, J.), rendered June 30, 2015. The judgment convicted defendant, after a nonjury trial, of public lewdness.ORDERED that the judgment of conviction is affirmed.Defendant was charged with public lewdness (Penal Law §245.00). At a nonjury trial, a witness testified that, at approximately 4:25 p.m. on April 7, 2014, he had been walking through Rufus King Park in Queens, on his way to work, when he had observed defendant rubbing his exposed penis. Defendant was about five feet away from where the witness was walking. Defendant was sitting on a bench near a handball court and was wearing a blue jacket, gray pants, and a military-style camouflage hat. There were about six teenage girls dancing in front of defendant at the time. The witness also saw a woman with a stroller and three small children, and he tried to warn the woman in Spanish about defendant, but she kept walking. After one or two minutes, the witness, who was then about 15 steps away from defendant, took out his cell phone and began recording. Defendant’s hands were in his crotch area, “right in his zipper,” making “a rapid motion under his jacket.” The witness called 911 and told the operator that he saw a man with his hands inside his zipper masturbating. The witness noticed that defendant’s cell phone case was orange in color. The witness then observed defendant walk toward a basketball court, near a young teenage couple. Defendant “was standing with his hands in his crotch area playing with himself while he was standing” about 20 to 30 feet from the couple.The arresting officer testified, among other things, that he had “a very accurate description” of the perpetrator, that had been relayed over the radio from the 911 caller, of a man wearing gray sweat pants, a navy blue jacket, and a military-style fatigue hat. The man also had a cell phone with an orange case. The officer saw “someone fitting that exact description” sitting on a park bench with his hand in his lap and holding an orange cell phone. The officer identified that person in court as defendant. As the officer and his partner walked toward defendant, defendant placed his hands behind his back and turned around. Defendant was handcuffed and arrested.The defense rested without presenting any evidence. Following the trial, the Criminal Court found defendant guilty of public lewdness. On appeal, defendant contends that his guilt was not established beyond a reasonable doubt and that, in any event, the guilty verdict was against the weight of the evidence.A person is guilty of public lewdness when, among other things, “he intentionally exposes the private or intimate parts of his body in a lewd manner or commits any other lewd act (a) in a public place” (Penal Law §245.00). Viewing the evidence in the light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that the evidence was legally sufficient to establish defendant’s guilt of public lewdness beyond a reasonable doubt. The eyewitness provided a detailed account of defendant’s actions. The officer confirmed the detailed description of defendant’s clothing and cell phone. Moreover, upon a review of the record, we find that the guilty verdict was not against the weight of the evidence (see People v. Chang-Correa, 53 Misc 3d 126[A], 2016 NY Slip Op 51311[U] [App Term, 1st Dept 2016]).Accordingly, the judgment of conviction is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Appellate Advocates, (Michael Arthus of counsel), for appellant.Kings County District Attorney, (Leonard Joblove and Amy Appelbaum of counsel), for respondent.2015-2095 K CR. THE PEOPLE v. LEWIS, SHAMAR — Appeal by defendant, as limited by the brief, from so much of a sentence of the Criminal Court of the City of New York, Kings County (John T. Hecht, J.), imposed August 12, 2015, upon his conviction, upon his plea of guilty, of common-law driving while intoxicated, as imposed a $500 fine.ORDERED that the sentence, insofar as appealed from, is reversed, on the law, so much of the sentence as imposed a $500 fine on the conviction of common-law driving while intoxicated is vacated, and the matter is remitted to the Criminal Court, Kings County, for further proceedings in accordance herewith.Defendant pleaded guilty to common-law driving while intoxicated (Vehicle and Traffic Law §1192 [3]) and attempted assault in the third degree (Penal Law §§110.00, 120.00 [1]). At the plea proceeding, the Criminal Court stated, among other things, that a “fine and surcharge are mandatory.” Defendant’s counsel responded, “I don’t think the fine is mandatory, fine or jail time.” The court then imposed a sentence that included, with respect to the conviction of common-law driving while intoxicated, a term of incarceration and a $500 fine.We find that the Criminal Court improperly determined that a fine was mandatory (see Vehicle and Traffic Law §§1192 [3]; 1193 [1] [b] [I]). Accordingly, the sentence, insofar as appealed from, is reversed, so much of the sentence as imposed a $500 fine on the conviction of common-law driving while intoxicated is vacated, and the matter is remitted to the Criminal Court, Kings County, to exercise its discretion as to whether a fine should be imposed (see People v. York, 123 AD3d 1155 [2014]; People v. Olmstead, 111 AD3d 1063, 1064 [2013]; People v. Thomas, 245 AD2d 1136, 1137 [1997]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Appellate Advocates, (Dina Zloczower of counsel), for appellant.Queens County District Attorney, (John M. Castellano, Johnnette Traill and Kayonia Whetstone of counsel), for respondent.2015-2767 Q CR. THE PEOPLE v. MOLINA, AQUILNO — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), rendered November 17, 2015. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Appellate Advocates, (Bryan D. Kreykes of counsel), for appellant.Queens County District Attorney, (John M. Castellano, Johnnette Traill and Anastasia Spanakos of counsel), for respondent.2015-2772 Q CR. THE PEOPLE v. HINDS, ROMAINE K. — Appeal from a judgment of the Criminal Court of the City of New York, Queens County (David M. Hawkins, J. at plea; Ernest F. Hart, J. at sentencing), rendered November 13, 2015. The judgment convicted defendant, upon his plea of guilty, of disorderly conduct. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Appellate Advocates, (Benjamin S. Litman of counsel), for appellant.Richmond County District Attorney, (Morrie I. Kleinbart of counsel), for respondent.2016-134 RI CR. THE PEOPLE v. CELESTINO, FAUSTO — Appeal from a judgment of the Criminal Court of the City of New York, Richmond County (Raymond Rodriguez, J.), rendered December 17, 2015. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated (common law). Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738 [1967]), seeking leave to withdraw as counsel.ORDERED that the judgment of conviction is affirmed.We are satisfied with the sufficiency of the brief filed by defendant’s assigned counsel pursuant to Anders v. California (386 US 738 [1967]), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252 [2011]; People v. Paige, 54 AD2d 631 [1976]; cf. People v. Gonzalez, 47 NY2d 606 [1979]).PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Jeremy S. Goldman, appellant pro se.Philip E. Hirschkorn, respondent pro se.2016-2159 K C. HIRSCHKORN v. GOLDMAN — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Adam Silvera, J.), entered May 19, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,850 and dismissed defendant’s counterclaim.ORDERED that the judgment is affirmed, without costs.Plaintiff commenced this small claims action to recover a $4,850 deposit he had given defendant in connection with an agreement to sublease defendant’s cooperative apartment for one year. Defendant counterclaimed to retain the deposit and to recover an additional $1,003.70 for alleged damages exceeding the amount of the deposit. After a nonjury trial, the Civil Court awarded plaintiff the sum of $3,850 and dismissed the counterclaim.In a small claims action, this court’s 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” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v. State of New York, 184 AD2d 564 [1992]; Kincade v. Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v. Roper, 269 AD2d at 126). Upon a review of the record, we find that the judgment rendered substantial justice between the parties (see CCA 1804, 1807; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]).Accordingly, the judgment is affirmed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Glinkenhouse, Floumanhaft & Queen by Glinkenhouse Queen (Alan Queen of counsel), for appellant.Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.2016-2412 Q C. HILLSIDE COMPREHENSIVE PAIN MGT., P.C. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered June 10, 2016. The order, insofar as appealed from, upon denying a motion by defendant to vacate a default judgment of that court entered March 5, 2007 and to dismiss the complaint, sua sponte, modified the judgment by tolling the accrual of interest from March 5, 2007 through March 1, 2016.ORDERED that the appeal is dismissed.Plaintiff commenced this action in 2001 to recover assigned first-party no-fault benefits. Defendant served an answer, but failed to appear for trial on March 5, 2007. An inquest was conducted on the trial date, and a default judgment awarding plaintiff the principal sum of $6,930.43 and interest in the amount of $14,801.32 was entered on March 1, 2016. Shortly thereafter, defendant moved to vacate the default judgment, stay enforcement of the judgment, stay the restraint of any of its bank accounts or release any bank accounts that may have been restrained, and to dismiss the complaint. Plaintiff opposed defendant’s motion. By order entered June 10, 2016, the Civil Court denied defendant’s motion but, sua sponte, modified the judgment by tolling the accrual of interest from March 5, 2007 through March 1, 2016 on the ground that an “inordinate amount of time” had passed, without explanation, between the inquest in 2007 and the entry of the judgment in 2016. Plaintiff appeals only from the part of the order which, sua sponte, modified the judgment by tolling the accrual of interest from March 5, 2007 through March 1, 2016.The portion of the order which tolled the accrual of interest did not address a demand for relief made on notice to plaintiff and was, therefore, sua sponte. Thus, that portion of the order is not appealable as of right (see CCA 1702 [a] [2]; Sholes v. Meagher, 100 NY2d 333 [2003]; Active Care Med. Supply Corp. v. Delos Ins. Co., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and we decline to grant leave to appeal. Plaintiff “could properly have moved to vacate the order and appealed as of right” to this court in the event that the motion was denied (Sholes, 100 NY2d at 335; Active Care Med. Supply Corp., 55 Misc 3d 144[A], 2017 NY Slip Op 50650[U]; see CCA 1702 [a] [3]), but plaintiff failed to make such a motion.Accordingly, the appeal is dismissed.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018Josephine Anzaldi, appellant pro se.Jerry Fink Real Estate, Inc., respondent pro se (no brief filed).2016-2790 Q C. ANZALDI v. JERRY FINK REAL ESTATE, INC. — Appeal, on the ground of inadequacy, from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered June 2, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of only $1,190.ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for a new trial.Plaintiff commenced this small claims action to recover the balance of real estate commissions allegedly due on sales that closed on August 28, 2014 and September 19, 2014, respectively.1 At a nonjury trial, plaintiff testified, insofar as is relevant to this appeal, that Jerry Fink Real Estate, Inc. (defendant) had sent her a check in the sum of $1,980 for the August 28, 2014 closing, but that she was entitled to $2,310, and that defendant had sent her a check in the sum of $2,380 for the September 19, 2014 closing, but that she was entitled to $3,570. After the trial, the Civil Court awarded plaintiff the principal sum of $1,190 based on its finding that plaintiff was entitled to collect further commission for the August 28, 2014 closing, but not for the September 19, 2014 closing. Plaintiff appeals on the ground of inadequacy.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” (CCA 1807; see CCA 1804; Ross v. Friedman, 269 AD2d 584 [2000]; Williams v. Roper, 269 AD2d 125 [2000]). Since the court found that plaintiff was entitled to recover further commission on the first sale, but not the second, but awarded plaintiff judgment based upon the difference in the amount of the check defendant sent to plaintiff and the amount plaintiff alleges she is owed on the second sale, we find that the judgment failed to provide the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807).Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.May 4, 2018
