People v. Kaplan

• Decision Date: 29 March 1993
• Citation: 191 A.D.2d 712,596 N.Y.S.2d 719
• Parties: The PEOPLE, etc., Appellant, v. Philip KAPLAN, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 719

596 N.Y.S.2d 719

191 A.D.2d 712

The PEOPLE, etc., Appellant, v. Philip KAPLAN, Respondent.

Supreme Court of New York, Appellate Division Second Department.

March 29, 1993

Francis D. Phillips II, Dist. Atty., Goshen (David R. Huey, of counsel), for appellant. Alan L. Joseph, Goshen, for respondent.

Appeals by the People (1) as limited by their brief, from so much of an order of the County Court, Orange County (Berry, J.), dated July 28, 1992, as granted that branch of the defendant's omnibus motion which was to dismiss the first two counts of the indictment, and (2) from so much of an order of the same court, dated September 14, 1992, as, upon reargument, adhered to the original determination. ORDERED that the appeal from the order dated July 28, 1992, is dismissed, as that order was superseded by the order dated September 14, 1992, made upon reargument; it is further, ORDERED that the order dated September 14, 1992, is reversed insofar as appealed from, so much of the order dated July 28, 1992, as granted that branch of the defendant's omnibus motion which was to dismiss the first two counts of the indictment is vacated, that branch of the defendant's omnibus motion is denied, those counts of the indictment are reinstated, and the matter is remitted to the County Court, Orange County, for further proceedings consistent herewith. We agree with the People that the County Court erred in dismissing the first two counts of the indictment, which charged the defendant with attempted rape in the first degree (see, e.g., People v. Acosta, 80 N.Y.2d 665, 593 N.Y.S.2d 978, 609 N.E.2d 518; People v. Wheeler, 109 A.D.2d 169, 491 N.Y.S.2d 206, affd.67 N.Y.2d 960, 502 N.Y.S.2d 983, 494 N.E.2d 88; People v. Glover, 107 A.D.2d 821, 484 N.Y.S.2d 659, affd. 66 N.Y.2d 931, 498 N.Y.S.2d 796, 489 N.E.2d 765; People v. Pereau, 99 A.D.2d 591, 471 N.Y.S.2d 416, affd. 64 N.Y.2d 1055, 489 N.Y.S.2d 872, 479 N.E.2d 217; People v. Haims, 171 A.D.2d 878, 567 N.Y.S.2d 805). The defendant's alternative argument for affirmance is not reviewable at this point (see, People v. Karp, 76 N.Y.2d 1006, 565 N.Y.S.2d 751, 566 N.E.2d 1156; People v. Goodfriend, 64 N.Y.2d 695, 698, 485 N.Y.S.2d 519, 474 N.E.2d 1187), and is meritless in any event (see, e.g., People v. Mitchell, 183 A.D.2d 503, 583 N.Y.S.2d 432; People v. Smalls, 111 A.D.2d 38, 488 N.Y.S.2d 712). Whether proper application of the rule announced in People v. Moquin, 77 N.Y.2d 449, 568 N.Y.S.2d 710, 570 N.E.2d 1059,...