The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review. People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13
In finding defendant’s conviction for possession with intent to sell was against the weight of the evidence, the Second Department (with a dissent) wrote:
…[T]he amount of cocaine recovered from the defendant was relatively small and not inconsistent with personal use. Indeed, convictions for criminal possession of a controlled substance involving intent to sell generally stem from situations where a significantly greater quantity of drugs is recovered from the defendant’s person…. Even more important, the defendant was found to be in possession of no drug paraphernalia or weapons, and he had only $20 in cash … .Although there was testimony that street drug sales often involve bags of drugs costing $20 each, the mere fact that the defendant was in possession of a single $20 bill cannot be considered indicative of an intent to sell. People v McFadden, 2013 NY Slip Op 03690, 2nd Dept, 5-22-12
In a breach of contract action that had been remitted to Supreme Court, the Second Department determined Supreme Court failed adhere to the terms of the remittitur by failing to calculate interest and express the amount due and owing in accordance with the remittitur. In sending the case back to Supreme Court, the Second Department wrote:
“A trial court, upon remittitur, lacks the power to deviate from the mandate of the higher court” …. “An order or judgment entered by the lower court on a remittitur must conform strictly to the remittitur'” …. Berry v Williams, 2013 NY Slip Op 03625, 2nd Dept, 5-22-13
Where money has been paid into the court in conjunction with a stay pending appeal, interest accrues on it until prevailing party is paid. The First Department explained:
Contrary to respondents’ claim, their payment of $1,763,080.64 into court on February 18, 2011 to stay the judgment pending appeal did not stop interest from accruing …. This is so even though respondents no longer had the use of the money after paying it into court …. Petitioner is entitled to simple interest until the date he was paid …. Weiderhorn v Merkin, 2013 NY Slip Op 03166, 1st Dept, 5-2-13
In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient:
Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable doubt, that the complainant sustained a “physical injury” within the meaning of Penal Law § 10.00(9). Physical injury is defined as “impairment of physical condition or substantial pain” (Penal Law § 10.00[9]). The complainant testified that he sustained bruising and scraping to his right arm, neck, and back, but he did not seek any medical treatment or miss any work. The complainant also provided no details that would corroborate his subjective description of pain, nor did he take any pain medication. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury”…, and the judgment must be reversed and the indictment dismissed. People v Boley, 2013 NY Slip Op 03109, 2nd Dept, 5-1-13
In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30. Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” were violated (requiring reversal), the matter was sent back for a reconstruction hearing (over two dissents). The Fourth Department explained the “jury-note” requirements and procedures as follows:
In People v O’Rama (78 NY2d 270)…, the Court of Appeals provided … detailed instructions for the handling of jury notes. The Court advised that, “whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses . . . [T]he trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made” .
In subsequent cases, the Court made clear that not all O’Rama violations constitute mode of proceedings errors [requiring reversal in the absence of preservation].The only errors that require reversal in the absence of preservation are those that go to the trial court’s “core responsibilities” under CPL 310.30, such as giving notice to defense counsel and the prosecutor of the contents of a jury note … . People v Kahley, KA 08-02494, 74, 4th Dept, 4-26-13
On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted. The Fourth Department wrote:
“It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective assistance of appellate counsel” … . In addition, “defendants have important interests at stake on a People’s appeal” … . “Given the consequences of a reversal and the possible resumption of criminal proceedings, the defendant certainly has an interest in being informed that the People’s appeal is pending and continuing” (id. at 684-685). “Moreover, . . . other rights requiring protection upon the People’s appeal include the right to appellate counsel of the defendant’s own choice, the right to appear [pro se] on the appeal, and the right to seek appointment of counsel upon proof of indigency” … . However, due process does not require that a defendant be personally served with the People’s appellate briefs …. There is no showing on this record that the court upon dismissing the indictment complied with 22 NYCRR 200.40 (a) (1) through (3) by advising defendant that the People had the right to take an appeal; that defendant had the right to counsel on the appeal or to appear pro se; and that defendant had the right to assigned counsel on the appeal if he was financially unable to retain counsel … . Nor is there any showing that the People or defense counsel advised defendant of those rights. People v Forsythe, KA 10-01359, 368, 4th Dept, 4-26-13
Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal. The Fourth Department wrote:
We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court has in the past relied on the illegal sentence exception to the preservation requirement of CPL 470.05 (2) when reviewing that issue …, more recent decisions from the Court of Appeals have established that issues regarding restitution require preservation …. In addition, the Court of Appeals has held that the mandatory surcharge set forth in Penal Law § 60.35
(1) is not part of a sentence ….Those cases compel us to conclude that an issue regarding a surcharge imposed on restitution pursuant to Penal Law § 60.27 (8) must be preserved for our review and that we cannot rely on the illegal sentence exception to the preservation requirement. People v Kirkland, KA 11-01835, 147, 4th Dept, 4-26-13
In a full-fledged opinion by Justice Acosta (with a dissent), the First Department held that payment, by the respondent investment fund, of an arbitral award in stocks as opposed to cash required a hearing to determine the value of the stocks. The First Department outlined its role where the satisfaction of an arbitral award which has been confirmed in a judgment is before them:
As a threshold matter, we begin by observing that a party may oppose an arbitral award either by motion pursuant to CPLR 7511(a) to vacate or modify the award within 90 days after delivery of the award or by objecting to the award in opposition to an application to confirm the award notwithstanding the expiration of the 90-day period … . Here, respondent did neither. Indeed, it was petitioner who appealed the lower court’s refusal to enforce the judgment. Under such circumstances, contrary to our dissenting colleague, we do not have the authority to grant a non-appealing party relief that it did not seek by vacating a judgment entered against it …. Moreover, we are not empowered to remit the matter to the arbitrator for clarification ….
Where a dispute exists as to the meaning of an arbitration award that has been confirmed in a judgment, it becomes “the Court’s function to determine and declare the meaning and intent of the arbitrator []” …. To that end, a court may review the text of the arbitrator’s award in conjunction with whatever findings, if any, the arbitrator has made …. In so doing, a court should adopt the most reasonable meaning of the text by avoiding any potential interpretations of the award that would render any part of its language superfluous or lead to an absurd result .. . Furthermore, the award must be interpreted in the light most favorable to the prevailing party … . Matter of Pine St Assoc, LP v Southridge Partners, LP, 2013 NY Slip Op 02854, 1st Dept, 4-25-13
The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement. The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 2nd Dept, 4-24-13
Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy