Court Filings

The Appellate Division, Fourth Department affirmed defendant William Giambelluca's convictions for second-degree felony murder and first-degree robbery arising from an incident in which he followed a victim from a bar, struck him with a wooden baluster, stole his wallet, and the victim later died from blunt head injuries. The court rejected challenges to the legal sufficiency and weight of the evidence on causation, upheld denial of suppression of defendant's stationhouse statements, found an evidentiary error in impeachment of a defense expert harmless given overwhelming proof, and rejected claims of prosecutorial misconduct and excessive sentence.

The Appellate Division, Fourth Department affirmed a Supreme Court (Niagara County) order classifying defendant David W. Free, Jr. as a level two risk under New York's Sex Offender Registration Act (SORA). The defendant appealed the risk-level determination. The appellate court unanimously affirmed the lower court's order, agreeing with the trial court's evaluation and application of SORA factors and finding no reversible error in the risk-assessment determination.

The Fourth Department affirmed defendant George Everson’s conviction for second-degree attempted murder after he pleaded guilty mid-trial. The court held that Everson validly waived his right to appeal, which bars review of his speedy-trial and sentence-length claims. His challenge that the plea was not knowing and voluntary survives the waiver but is unpreserved because he never moved to withdraw the plea or vacate the judgment. Other claims — inadequate grand jury notice, denial of mistrial, and ineffective assistance — were forfeited by the plea, procedurally barred, or must be raised in postconviction proceedings.

The Appellate Division, Fourth Department affirmed defendant Austin R. Deal's conviction for aggravated criminal contempt entered after a guilty plea in Cayuga County Court. The court issued a short, unanimous order affirming the judgment and adopting the same memorandum issued in a related appeal (People v Deal, Appeal No. 1). No new factual findings or legal analysis are included in this slip opinion beyond affirmance of the conviction entered April 18, 2024.

The Appellate Division, Fourth Department unanimously affirmed two Cayuga County Court judgments convicting defendant Austin R. Deal after guilty pleas: one for aggravated family offense and the other for aggravated criminal contempt. The court rejected defendant's challenges to the issuance of an order of protection, holding the court did not abuse its discretion and was not required to obtain consent from the protected person, and noted the order can be modified by motion if circumstances change. The court also found the sentences were not unduly harsh or severe and therefore affirmed both convictions and sentences.

The Appellate Division, Fourth Department affirmed a Monroe County Court order that classified Anthony Colbert as a level three risk under New York's Sex Offender Registration Act. The court reviewed the county court's refusal to grant a downward departure from the presumptive risk level and found no abuse of discretion. Applying the three-step departure analysis and weighing aggravating and mitigating factors, the court concluded the totality of circumstances did not justify lowering Colbert's presumptive risk level, relying on precedent including People v Gillotti.

The Appellate Division affirmed defendant Theodore E. Coffie’s conviction for first-degree reckless endangerment arising from nine shots fired toward a street outside a house. The court dismissed the portion of the appeal challenging sentence and rejected Coffie’s claims that the evidence was insufficient, that grand jury and jury-note procedures were flawed, that prosecutorial misconduct occurred, and that trial counsel was ineffective. The court found the girlfriend’s identification, the parked vehicle with a passenger during the shooting, and a recovered bullet near the scene provided a valid basis for the jury’s verdict and that any preserved errors did not deprive defendant of a fair trial.

The Appellate Division, Fourth Department affirmed defendant Trevor E. Clarke's convictions for multiple sexual offenses but reduced his aggregate prison exposure. The court rejected Clarke's argument that the guilty verdicts were against the weight of the evidence, finding credibility determinations for the jury. It declined to review an unpreserved constitutional claim about excluded defense questioning. The court found the original aggregate sentence of 52 years to life unduly harsh and, in the interest of justice, ordered two specified counts to run concurrently, reducing the aggregate sentence to 37 years to life while otherwise affirming the judgment.

The Appellate Division, Fourth Department affirmed the conviction of Frank Bredt for two counts of second-degree murder arising from evidence that he doused his girlfriend with gasoline and set her on fire. The court rejected claims that the trial court abused its discretion by denying substitution of counsel, improperly excluded defense testimony suggesting the victim started the fire, and permitted prosecutorial misconduct or untimely disclosure of trial-created photographs. It held the evidence—largely circumstantial including motive, threatening texts, behavior after the fire, and forensic findings—was legally sufficient and the verdict was not against the weight of the evidence. Claims of ineffective assistance of counsel were denied as speculative or without merit, and the sentence was affirmed as not unduly harsh.

The Appellate Division, Fourth Department affirmed defendant Brian Baxter Jr.'s conviction for second-degree murder. The court rejected Baxter's challenges to the weight of the evidence, evidentiary rulings, and claims of ineffective assistance of counsel. The court found eyewitness identification, surveillance showing a person matching Baxter traveling to and from the scene near the time of the shooting, matching descriptions from multiple witnesses, and evidence of a dispute over a defective gun provided sufficient support for the verdict. Preservation rules prevented review of several evidentiary objections, and the court found counsel's performance constitutionally adequate. The sentence was upheld as not unduly harsh.

The Appellate Division, Fourth Department affirmed defendant Joseph D. Ayer’s convictions for second-degree burglary and petit larceny following a jury trial and appeal from a Genesee County conviction. The court held that officers properly initiated and escalated their encounter with defendant based on proximity to the scene and matching description, that defendant voluntarily consented to a search of a lunch box, and that there was sufficient evidence (including codefendant admissions and property possession) to support the convictions. The court also rejected claims of conflict waiver error, ineffective assistance, most prosecutorial misconduct claims, and sentencing excessiveness.

The Appellate Division, Fourth Department affirmed defendant Dvontea Alexander’s convictions (including second-degree murder, two counts of attempted second-degree murder, and several assault and weapons charges) after a jury trial. The court rejected defendant’s challenges to jury selection, the admission of GPS-based video files and certain still images, and claims of prosecutorial misconduct—mostly finding those arguments were either without merit or not preserved for appeal. The court applied established standards for juror impartiality, lay witness identification, and preservation of evidentiary and summation objections in reaching its decision.

The Appellate Division, Fourth Department affirmed a Wyoming County Supreme Court judgment denying Richard F. Mills' petition for a writ of habeas corpus challenging his confinement at Attica Correctional Facility. The appellate court unanimously affirmed without costs, adopting the reasons stated by the trial court (Justice Terrence M. Parker). No new factual findings or legal analysis appear in the short appellate disposition; the judgment below denying relief therefore stands.

The Appellate Division, Fourth Department affirmed a Supreme Court (Erie County) order granting summary judgment to defendants in a dispute brought by plaintiff-appellant Colleen Pandy, as executor and individually, against Teachers Insurance and Annuity Association of America and individual defendants. The appellate court agreed with the lower court that the moving defendants were entitled to judgment as a matter of law, resolving the appeal against the plaintiff. The decision is brief and affirms the dismissal of the plaintiff’s remaining claims without further comment or costs awarded to the appellant.

The Appellate Division, Fourth Department affirmed a Supreme Court order granting summary judgment to two third-party defendants and denying NYAC summary judgment on its indemnification claim. Plaintiff sued for injuries from a scaffold fall. The court held that Next Level was not contractually obligated to indemnify NYAC because the indemnity language covered only claims arising from Next Level's work and there was no evidence plaintiff’s injury related to Next Level’s work. The court also held that an indemnity agreement between NYAC and Anderson, signed after the accident, could not be applied retroactively because NYAC failed to show the parties intended an earlier effective date.

The Appellate Division, Fourth Department, denied a CPLR article 78 petition by Leon Thomas challenging a prison disciplinary determination after a tier III hearing. The court confirmed the determination that Thomas violated certain incarcerated individual rules, noting Thomas pleaded guilty to two violations which barred review of the substantial-evidence claim as to those offenses, and it rejected his remaining challenges. The petition was dismissed and the determination confirmed without costs.

The Appellate Division, Fourth Department affirmed Family Court's order continuing custody of the child with Monroe County Department of Human Services. The mother had sought return of her child under Family Court Act § 1028 after a temporary removal. The court found petitioner proved that returning the child would present an imminent risk to the child's life or health because the mother suffers from untreated, severe mental health conditions, experiences frequent violent visions that sometimes include the child, lacks insight, does not take medication or seek therapy, and engages in unsafe behavior tied to those visions. The appellate court found a sound and substantial basis in the record for that determination.

The Appellate Division affirmed a Supreme Court judgment granting a mandamus petition that required the Buffalo Comptroller to issue and sell bonds authorized by the Buffalo Common Council. The court held that the comptroller has no discretion to refuse issuance where the Common Council has validly authorized borrowing under the City Charter and the Local Finance Law. Although the comptroller has duties to advise and report on fiscal capacity and certain procedural roles, those responsibilities do not permit vetoing or declining to execute bond issuances lawfully authorized by the council.

The Appellate Division, Fourth Department affirmed Supreme Court’s denial of the Assembly’s CPLR article 78 petition seeking to stop the New York State Division of Human Rights (DHR) from pursuing a discrimination and harassment complaint filed by employee Nicole Golias. DHR had found probable cause and added the Assembly as a respondent. The court held that prohibition is an extraordinary remedy limited to lack or excess of jurisdiction and may not be used to bypass administrative review. The Assembly must first pursue DHR’s administrative process and, if necessary, judicial review under Executive Law § 298.

The Appellate Division, Fourth Department affirmed the Town of Floyd Zoning Board of Appeals' denial of three variances sought by petitioner Jeffrey Kotary to incorporate two shipping containers into a new barn and to exceed height and setback limits. Kotary sought judicial review under CPLR article 78 after the ZBA granted only a height variance and denied the other variances. The court held the ZBA properly applied the statutory balancing test, relied on safety concerns, feasible alternatives, and the largely self-created nature of petitioner’s need, and concluded there was a rational basis for denying the variances.

The Appellate Division affirmed Surrogate's Court's order dismissing petitioner Barrett Hess's petition to probate the will of Janet Hess. The court reviewed the surrogate's dismissal of the probate petition following respondents' motion to dismiss and agreed with the surrogate's reasoning. The appellate court concluded there was no reversible error in the surrogate's disposition and therefore upheld dismissal, awarding costs to respondents.

The Appellate Division, Fourth Department accepted Attorney Franklin William Heller's application to resign for non-disciplinary reasons and ordered his name removed from the roll of attorneys. The court treated the submission as a voluntary resignation not prompted by disciplinary charges and granted the request, ending his authority to practice law in New York. There is no indication of misconduct findings or ongoing disciplinary proceedings in this decision; the court's action was procedural and limited to removing Heller's name from the attorney list.

The Appellate Division, Fourth Department affirmed a Family Court order that granted the petitioner's written objection to a support magistrate's October 7, 2024 order in a Family Court child support proceeding. The appeal was taken by the respondent from the Family Court's November 27, 2024 order. The appellate court unanimously affirmed without costs, signaling it found no reversible error in the Family Court's disposition of the objection to the support magistrate's ruling.

The Appellate Division confirmed a referee's findings that attorney Diana G. Cunningham neglected two client matters, failed to communicate with clients and a court referee, and did not timely comply with attorney registration rules. The court found multiple violations of the Rules of Professional Conduct and registration statutes. Because Cunningham has a substantial disciplinary history with similar prior misconduct, the Court suspended her for three years and until further order, but it stayed the suspension on conditions including compliance with registration rules, participation in mental health monitoring and an attorney mentoring program, quarterly reporting, and limits on active cases.

The Appellate Division affirmed Supreme Court's denial of petitioner Karen Anthone's motion for summary judgment in a proceeding to enforce a judgment lien against real property owned by George Carlo and the Carlo Family Trust. The court held that the trust is a self-settled trust and therefore its assets are available to satisfy the settlor's creditors, so petitioner did not need to prove a fraudulent conveyance. However, the court found a triable issue whether the homestead exemption applies to the property sale, so summary judgment was improper and the matter remains for further fact-finding on that exemption issue.

The Appellate Division, Fourth Department affirmed Family Court's March 17, 2025 order in a child-protective proceeding under Family Court Act article 10, which had found that respondent Thomas M. neglected the child Aleena M. The appeal challenged that neglect determination; the appellate court issued a short per curiam affirmance, adopting the reasoning set out in its separate memorandum in Matter of Akeem M. (Thomas M.). The court thus left undisturbed the Family Court's findings and disposition holding Thomas M. neglectful.

The Appellate Division, Fourth Department affirmed a Family Court order that found Thomas M. neglected the child Ahmilia M. This appeal challenged the Family Court’s neglect determination in a proceeding brought by the Onondaga County Department of Children and Family Services under Family Court Act article 10. The appellate court relied on the same reasoning and memorandum it used in a companion case (Matter of Akeem M. (Thomas M.)) and concluded there were no reversible errors, so the Family Court’s ruling stands and costs were denied.

The Appellate Division, Fourth Department affirmed Family Court's order finding Heather H. neglected her child and placing her under the supervision of the Wayne County Department of Social Services. The appeal challenged the fact-finding that the mother's mental illness and illicit drug use caused neglect, but the appellate court held petitioner proved neglect by a preponderance of the evidence. The court relied on testimony and records showing the mother experienced delusions and paranoid behavior that placed the child's physical, mental, or emotional condition in imminent danger of impairment, and affirmed the dispositional supervision order.

The Appellate Division, Fourth Department affirmed a Supreme Court order in a medical malpractice and wrongful death case that compelled defendants TLC Health Network and Lake Shore Health Care Center to produce electronic medical record audit trails and related discovery. The court concluded the trial court did not abuse its broad discretion because new deposition evidence—developed after an earlier appeal—suggested audit-trail data might exist, had not been fully disclosed, and that defendants' representatives lacked knowledge about retention policies. The appellate court held the new evidence justified additional discovery and found no conflict with its prior decision.

The Appellate Division affirmed a trial court order that, after reargument, denied plaintiff’s challenge to defendant’s motion (converted to summary judgment) dismissing certain claims and awarding defendant unpaid alternative rent. The dispute arose from a lease cotenancy clause requiring a single anchor tenant; when the anchor space was filled by two tenants, the landlord sought full rent while the tenant claimed entitlement to an offset under the cotenancy provision. The court held the tenant could enforce the alternative rent under the lease amendments and that the landlord could not rely on an estoppel certificate to negate that rent offset obligation.