Category Archives: App. Term 2d Dept.

New Decisions

There are new decisions from nearly every court!

First, the Court of Appeals (summaries of these will be posted later this week):

  • People v. Dreyden (Ct. App. 6/15/2010) (Pigott, J.) (6-1) – accusatory instrument deficient if it does not demonstrate how a knife is a "gravity knife"
  • People v. Mitchell (Ct. App. 6/15/2010) (Read, J.) (7-0) – transfer of case for probation supervision does not transfer authority to decide 440 motion 
  • People v. Ballman (Ct. App. 6/10/2010) (Lippman, C.J.) (7-0) – elevation of DWI for out of state conviction prior to 2006
  • People v. McLean (Ct. App. 6/10/2010) (Smith, J.) (4-3) – preservation of right to counsel violation claim
  • People v. Frederick (Ct. App. 6/10/2010) (7-0) – retrial issues

There are also new decisions from the First, Second, Third, and Fourth Departments, along with the Second Appellate Term.  (LC)

AT2 – New Decisions

There are new decisions from the Second Appellate Term, including an interesting case where the court rejected an Anders brief.

AT2 reverses 30.30 grant

In pre-readiness, discovery periods are typically excludable.  However, since the delay must be "reasonable," CPL § 30.30(4), the People can be charged with the time if they drag their proverbial feet in providing the defense with discovery.  In post-readiness, however, the calculation is different. 

In People v. Cecala (2d App. Term 5/5/2010), the local criminal court dismissed the misdemeanor prosecution on 30.30 grounds after the People failed to meet several discovery deadlines. However, the delay all occurred after the People had made an effective statement of readiness.  Thus, the delay was due to the People's "alleged failure to comply with the defendant's discovery demands and
did not pose an impediment to commencement of the trial itself" and thus "the
[Criminal] Court erred in dismissing the [accusatory instrument] rather
than imposing a less severe sanction" (quoting People v. Caussade, 162 AD2d 4, 11 [1990]).  (LC)

AD1, AD2, AD3, & AT2 – New Decisions

There are new decisions from the First, Second, and Third Departments, as well as the Second Appellate Term.  (LC)

AT2 – New Decision

There is a new decision today from the Second Appellate Term, People v. Dimiceli (2d App. Term 4/12/2010).  It is a reversal.  The defendant was charged with DWAI by prescription drugs.  The Appellate Term held that the People improperly elicited from the defendant's physician that he had discontinued the defendant's prescriptions following his arrest.  The court held, "There was no evidence that the doctor's decision to taper off
defendant's medications, and his recommendation that defendant undergo
"detox," were based on any information other than the fact that
defendant had been charged with driving while ability impaired in the
instant case. The doctor's choice of a course of treatment thus had no
probative value with respect to defendant's actual condition before,
during, or even after the incident. Because it was not relevant to any
issue in the case, the course-of-treatment testimony should not have
been admitted."  Additionally, the court held that the evidence was prejudicial to the defense. (LC)