Opinion
2011-15 K CR 2010CK001782 2010CK001564
04-25-2016
The People of the State of New York, Respondent, v. Shaday Sabino, Appellant.
MICHAEL L. PESCE
MARTIN M. SOLOMON, JJ.
DECISION & ORDER ON MOTION
Motion by appellant for leave to reargue so much of an appeal as was from two judgments of conviction of the Criminal Court of the City of New York, Kings County, rendered November 29, 2010 (Criminal Court docket Nos. 2009CK001928 and 2010CK001564), which was determined by decision and order of this court dated February 7, 2014 (42 Misc 3d 141[A], 2014 NY Slip Op 50214[U]), and, in effect, to vacate so much of this court's decision and order dated February 7, 2014 as dismissed so much of the appeal as was from the judgments of conviction rendered under Criminal Court docket Nos. 2009KN002641 and 2010CK001782.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted and, upon reargument and vacatur, the decision and order of this court dated February 7, 2014 are recalled and vacated, and a new decision and order substituted therefor (see appeal No. 2011-15 K CR, decided simultaneously herewith).
We note that appellant's claim that the record fails to affirmatively demonstrate his understanding, or waiver, of his constitutional rights presents a proper basis for granting his reargument and, in effect, vacatur motion, as, on the date People v Tyrell (22 NY3d 359, 364 [2013]) was decided, appellant's case was pending on direct appeal, and his judgments of conviction had not become final (see People v McQueen, 18 NY2d 332, 341-347 [1966]; People v McCoy, 109 AD3d 708 [2013]; People v Breazil, 31 AD3d 461 [2006]).
Aliotta, J.P., Pesce and Solomon, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk