Rosario v. Ercole

ORDER

Following disposition of this appeal on April 12, 2010, petitioner-appellant Richard Rosario filed a petition for rehearing and rehearing in banc. Upon consideration by the panel that decided the appeal, the petition for rehearing is DENIED. An active judge requested a poll on whether to rehear the case in banc. A poll *684having been conducted and there being no majority favoring in banc review, rehearing in banc is hereby DENIED.

Judge Wesley concurs in an opinion joined by Judges Cabranes, Raggi, Hall, and Livingston; Judge Katzmann concurs in a separate opinion; Chief Judge Jacobs…