text:
    Bayridge Air Rights, Inc., Appellant, v Blitman Construction Corp. et al., Respondents and Third-Party Plaintiffs-Respondents. Serge Elevator Co., Inc., et al., Third-Party Defendants-Respondents.
    Argued April 30,1992;
    decided June 4, 1992

      APPEARANCES OF COUNSEL

      David L. Berkey, Gerald M. Levine, Didi M. Skaff and Stewart E. Wurtzel for appellant.

      Arthur S. Friedman, Laurie R. Josephs and Joan R. Salzman for respondents and third-party plaintiffs-respondents.

      Kevin J. O’Neill for DiStasio & VanBuren, Inc., third-party defendant-respondent.

      Denis B. Frind and Frank Napolitano for AFGO Engineering Corp. and another, third-party defendants-respondents.

      Michael K. Stanton for Atlantic Hardware & Supply Corp., third-party defendant-respondent.

      Stuart F. Gruskin, Kenneth G. Schwarz and Deborah J. Locitzer for Kenvil Newcrete Products, Inc., third-party defendant-respondent.

      Theodore H. Rosenblatt for Prince Carpentry, Inc., third-party defendant-respondent.

      Jeffrey A. Aronson and James M. Dennis for Underhill Construction Corp., third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff, a developer, contracted with defendant Blitman Construction Corporation to construct a cooperative apartment complex in Brooklyn. Physical construction of the complex was substantially completed in April 1972.

Four years later, in 1976, plaintiff, Blitman and the building’s shareholders entered into an agreement to transfer management control to the tenants. Under the terms of the agreement, the Statute of Limitations governing plaintiff’s claims against Blitman, which would have expired in April 1978, was extended so as to commence upon final payment to Blitman from an escrow account. The escrow payment was contingent on final approval from the Division of Housing and Community Renewal.

In 1981, five years after the contract was signed, plaintiff commenced the present action against Blitman and its surety, Traveler’s Indemnity Company, alleging breach of the construction contract. As the original Statute of Limitations would have expired in 1978, plaintiff’s action was untimely unless the agreement validly extended the limitations period. Plaintiff does not argue that the limitations period was extended to 1985 — six years from the final payment from the escrow account — as specified in the parties’ contract. Rather, plaintiff would read General Obligations Law § 17-103 as extending the applicable limitations period to six years from the date of the agreement, in this case 1982, regardless of the actual terms of the agreement. We agree with Supreme Court and the Appellate Division that the extension agreement is void and unenforceable.

General Obligations Law § 17-103 (1) provides that a promise to extend the Statute of Limitations is effective "according to its terms, to prevent interposition of the defense of the statute of limitation[s] in an action or proceeding commenced within the time that would be applicable if the cause of action had arisen at the date of the promise, or within such shorter time as may be provided in the promise”. (Emphasis supplied.) As the present agreement purported to extend the limitations period to an indefinite date in the future in contravention of the six-year maximum provided by the statute, it cannot be enforced "according to its terms.”

Plaintiff urges us to rewrite the agreement so that, instead of the explicit but unlawful extension of six years from final payment, the contract would extend the limitations period only for a lawful six years from the date of the agreement. This we cannot do. Such a construction would require courts to ignore the legislative direction that a promise to extend the Statute of Limitations be enforced "according to its terms,” and either to speculate on the parties’ intent as to the length of the extension they would have desired or to impose a blanket six-year extension irrespective of their intent.

In proposing the legislation that became General Obligations Law § 17-103, the Law Revision Commission noted that extensions "should not be indefinite and subject merely to tests of reasonableness, and that the parties should not be permitted to create periods between themselves in excess of the periods set by the Legislature.” (1961 Report of NY Law Rev Commn, reprinted in 1961 McKinney’s Session Laws of NY, at 1869, 1872.) Plaintiff’s reading of General Obligations Law § 17-103 would ignore the objectives in enacting that statute and again place courts in the position of construing loosely drafted extensions. Given the intent behind General Obligations Law § 17-103 as well as the public policy concerns related to the Statute of Limitations and agreements to extend it, an agreement that cannot be enforced "according to its terms” is ineffective to extend the limitations period.

Finally, we agree with the Appellate Division that plaintiff’s equitable estoppel claim is without merit (see, State of New York Higher Educ. Servs. Corp. v Zamore, 59 NY2d 933).

Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Chief Judge Wachtler taking no part.

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Esteban Delgado, Appellant. The People of the State of New York, Respondent, v Julio Diaz, Appellant. The People of the State of New York, Respondent, v Darryl Ramsey, Appellant.
    Decided June 4, 1992

      APPEARANCES OF COUNSEL

      Tamara Detloff and Ira Mickenberg for appellant in the first above-entitled case.

      Robert T. Johnson, District Attorney, Bronx County (Eve E. Miller of counsel), for respondent in the first above-entitled case.

      Caroline Rule and Ira Mickenberg for appellant in the second above-entitled case.

      Robert M. Morgenthau, District Attorney, New York County

      (Hilary Hassler of counsel), for respondent in the second above-entitled case.

      Natalie Rea and Philip L. Weinstein for appellant in the third above-entitled case.

      Robert T. Johnson, District Attorney, Bronx County (Y. Gail Goode of counsel), for respondent in the third above-entitled case.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed.

An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range (CPL 470.15 [6] [b]; People v Thompson, 60 NY2d 513, 519). This sentence-review power may be exercised, if the interest of justice warrants, without deference to the sentencing court. Contrary to defendants’ assertions, the Appellate Division did not misapprehend its power in these cases. We read the Appellate Division’s statements that the sentencing courts did not abuse their discretion to mean that the Appellate Division did not find the sentences unduly harsh or severe under the circumstances.

Defendants’ remaining contentions are either unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

In each case: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed in a memorandum.


text:
    In the Matter of Cornelia Kransteuber, Appellant, v Richard I. Scheyer, as Chairman of the Zoning Board of Appeals of the Town of Islip, et al., Respondents.
    Argued May 6, 1992;
    decided June 4, 1992

      APPEARANCES OF COUNSEL

      Adolph H. Siegel for appellant.

      Robert Webster Oliver and Ernest J. Cannava for respondents.

      Steven M. Schapiro for Long Island Builders Institute, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

This case involves petitioner-appellant’s application for area variances to allow construction of a single-family dwelling on a 5,000 square foot lot (50 by 100 feet) located in Oakdale, Town of Islip. Her husband purchased the property in 1934 and built a single-family dwelling on it. In 1942, petitioner acquired the property from her husband. The dwelling was destroyed eight years later due to termite damage, and the land remains vacant.

In 1937, the Town of Islip enacted its first comprehensive zoning ordinance, pursuant to which petitioner’s property was classified as Residence AA — a classification primarily structured for single-family residential development. That zoning district requires a minimum 20,000-square-foot building lot area for a single-family dwelling, 100-foot lot width, 18-foot side yards totaling at least 36 feet, and a 40-foot front yard.

In 1987, petitioner contracted to sell her property to a builder, expressly contingent on petitioner garnering a variance to build a single-family dwelling on the property. Petitioner consequently applied to respondent Zoning Board of Appeals of the Town of Islip (Board) for the appropriate variances. Due to the size of the proposed dwelling, variances from the lot area, lot width, side yard and total side yard requirements were necessary. The Board denied the application after a public hearing, and petitioner brought this CPLR article 78 proceeding to challenge the denial.

Petitioner asserted that she was entitled to the variances as a matter of right due to the single and separate ownership status of the property; that she had proven practical difficulties and the Board determination was therefore arbitrary and capricious; and that strict application of the zoning ordinance constituted an unconstitutional taking of her property without compensation. Supreme Court, Suffolk County, held that petitioner was entitled to the variances only under her unconstitutional-taking theory. The Appellate Division disagreed, confirmed the Board’s determination and dismissed the proceeding (176 AD2d 724).

We agree with the Appellate Division for the reasons expressed in that court’s memorandum decision (176 AD2d 724, 725-726, supra) that petitioner failed to prove her entitlement to the variances under the ordinance’s single and separate ownership exception, and failed to establish that the Board’s determination was arbitrary and capricious. We also agree with the Appellate Division’s conclusion that petitioner’s unconstitutional-taking argument fails for lack of proof.

Zoning ordinances are "invested with an exceedingly strong presumption of constitutionality” (Town of Huntington v Park Shore Country Day Camp, 47 NY2d 61, 65 [citation omitted]; see also, McGowan v Cohalan, 41 NY2d 434, 436). A landowner who challenges the constitutionality of a zoning ordinance as applied to a particular parcel of property bears a heavy burden of demonstrating beyond a reasonable doubt, with "dollars and cents” proof, that "under no use permitted by the [ordinance] * * * would the property] be capable of producing a reasonable return” (de St. Aubin v Flacke, 68 NY2d 66, 77 [emphasis added]; see also, Spears v Berle, 48 NY2d 254, 263; Matter of National Merritt v Weist, 41 NY2d 438, 445). On the present record, petitioner has not satisfied this heavy burden.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    Stanley Akivis et al., Appellants, v Norman Drucker et al., Respondents.
    Submitted March 23,1992;
    decided June 4, 1992
   On the Court’s own motion, appeal insofar as taken by Stanley Akivis dismissed, without costs, and motion for leave to appeal insofar as taken by Stanley Akivis dismissed, without costs, each upon the ground that timely substitution has not been made (CPLR 1021).

On the Court’s own motion, appeal by Ethel Akivis from the Appellate Division order which denied plaintiffs’ motion for renewal and reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed, without costs, upon the ground that that order does not finally determine the action within the meaning of the Constitution; appeal by Ethel Akivis from the Appellate Division order which affirmed the grant of the motions for summary judgment dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Motion by Ethel Akivis for leave to appeal from the Appellate Division order which denied plaintiffs’ motion for renewal and reargument, or in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion by Ethel Akivis for leave to appeal otherwise denied.


text:
    The People of the State of New York ex rel. Lawrence Dixon, Also Known as Lawrence Billings, Appellant, v Warden, Sullivan Correctional Facility, Respondent.
    Submitted April 13,1992;
    decided June 4, 1992
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which denied relator’s motion for leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order dated February 3, 1992 that dismissed relator’s appeal from Supreme Court’s order denying reargument, dismissed upon the ground that that part of that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Mark Hampton, Inc., Plaintiff, v Morris H. Bergreen et al., Appellants, and Mark Hampton, Respondent.
    Submitted December 30, 1991;
    decided June 4, 1992
   Motion for leave to appeal denied. Cross motion for imposition of sanctions denied.


text:
    Rent Stabilization Association of New York City, Inc., et al., Appellants, and Small Property Owners of New York, Intervenor-Appellant, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, Respondent, et al., Intervenors-Defendants.
    Submitted May 18, 1992;
    decided June 4, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    Kenneth W. Goewey et al., Appellants, v Delta D & I Corporation, Respondent.
    Argued May 6,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Francis J. Smith and Kenneth L. Gellhaus for appellants.

      E. Guy Roemer for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (175 AD2d 299).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Appellant, v Anton Cosme, Respondent.
    Argued May 6, 1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Stanley R. Kaplan and Peter D. Coddington of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted on nine separate counts, and was convicted of two — burglary in the second degree and resisting arrest. Defendant’s motion to vacate his conviction under CPL 440.10 for ineffective assistance of counsel was granted. Thereafter, over objection by the People, the trial court accepted defendant’s plea of guilty to burglary in the second degree and resisting arrest.

The District Attorney moved for a writ of prohibition to prohibit the enforcement of the plea agreement, claiming that it violated CPL 220.10 (4) (a), which provides that the People must consent to a plea to less than the full indictment. The Appellate Division denied the District Attorney’s application for a writ of prohibition and granted the Attorney-General’s cross motion to dismiss the petition. The District Attorney appealed to this Court, but his appeal was dismissed as moot since the defendant had already been sentenced in accordance with the plea agreement (Matter of Gentile v Cohen, 73 NY2d 917).

The People then brought an appeal to the Appellate Division, ostensibly from the sentence imposed. The court agreed that vacatur of the defendant’s conviction had revived all of the counts in the indictment and that the District Attorney was therefore required to consent to a plea of guilty to less than the entire indictment. The Appellate Division dismissed the appeal, however, stating that "the thrust of [the] appeal [was to] the validity of the underlying conviction, not the legality of the sentence” (169 AD2d 467).

While CPL 450.30 (2) authorizes the People to appeal from a sentence that is invalid as a matter of law, it does not similarly entitle the People to appeal from a conviction. The People do not allege that the defendant’s indeterminate sentence of four to eight years’ imprisonment, which was to run concurrently with a three-to-six-year term of imprisonment on a separate conviction, is an illegal one for second degree burglary and resisting arrest. Their challenge instead focuses upon the legality of the Trial Judge’s decision to accept the defendant’s plea over the prosecutor’s objection. Thus, in the guise of challenging the sentence imposed, the People are in essence attacking the validity of the defendant’s underlying conviction. This the statute does not permit them to do.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    In the Matter of Dwight M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 28,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Ardeth L. Houde, Law Guardian, for appellant.

      Charles S. Turner, County Attorney (Ronald A. Case of counsel), for respondent.

      O. Peter Sherwood, Corporation Counsel (Stephen J. Mc-Grath and Kathleen Alberton of counsel), for Corporation Counsel of the City of New York, a Presentment Agency, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Appellant contends that it was improper for the Family Court to base his juvenile delinquency adjudication upon a finding that he had committed a lesser included crime (assault in the third degree) of the only crime charged in the petition (assault in the second degree). We disagree.

The Family Court has long been recognized as possessing the authority to adjudicate a youth a juvenile delinquent based upon a finding that a lesser included crime, not specifically charged in the petition, has been committed (see, Matter of Raymond O., 31 NY2d 730, 731). Appellant’s contention that section 345.1 (2) of the Family Court Act dictates that a contrary result obtain today is unfounded. That section’s requirement that a juvenile delinquency petition be dismissed if its allegations have not been established has been part of the Family Court Act since it was first adopted in 1962 (L 1962, ch 686, § 751). It, however, has never before been construed as precluding Family Court Judges from considering whether a respondent in a juvenile delinquency proceeding has committed a lesser included crime (see, Matter of Raymond O., supra [decided 10 years after the enactment of former section 751 of the Family Court Act]), and we can discern no reason why it should be so construed today.

Moreover, appellant’s position is difficult to reconcile with section 321.2 of the Family Court Act. That provision specifically empowers Family Court Judges to accept admissions to lesser included crimes. As the Appellate Division aptly noted in its memorandum below, the Legislature could not have intended that Family Court Judges would lack the authority to base juvenile delinquency adjudications upon a finding that a lesser included crime, not charged in the petition, had been committed when it had specifically authorized Family Court Judges to accept admissions to such crimes.

We have examined appellant’s remaining contention and find it to be unpreserved for our review.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, without costs, in a memorandum.


text:
    Consolidated Edison Company of New York, Inc., Appellant, v City of New York et al., Respondents.
    Argued April 30,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Gary Schuller and Frederick J. Hunziker, Jr., for appellant.

      O. Peter Sherwood, Corporation Counsel (Edith I. Spivack and Reed G. Schneider of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Prior to 1990, all Consolidated Edison’s real property used in connection with its utility business was designated as "utility real property” (RPTL 1801 [c]), and classified as "class three” property for tax purposes (RPTL 1802 [1]). In 1989, however, the Legislature narrowed the definition of "utility real property” by providing that it would no longer include those types of property described in RPTL 102 (12) (a) and (b) (L 1989, ch 143, § 2, eff Jan. 1, 1990). The effect of this change was to shift such property from "class three” to "class four” (RPTL 1802 [1]), thereby effectively reducing the tax burden on it. On this appeal, Con Edison contends that the City of New York too narrowly construed the scope of the 1989 amendment when it declined to reclassify certain of its generation, transmission, distribution and storage equipment as "class four” property. We disagree.

Nothing in the language or legislative history of the 1989 amendment indicates that the Legislature ever contemplated that the utility-related equipment that Con Edison argues should have been reclassified by the City would be regarded as falling within the scope of RPTL 102 (12) (a) or (b). Rather, by all indications, it appears that the City correctly viewed that property as coming within the ambit of RPTL 102 (12) (e) or (f), and therefore as remaining unaffected by the 1989 amendment (see, Mem of Senate Rules Comm, Bill Jacket, L 1989, ch 143 [noting that under the proposed legislation "lands and buildings owned by utilities in * * * New York City (would) be taxed as class four * * * property while other utility property (would) remain in class three” (emphasis added)]; Assembly Mem in Support, Bill Jacket, L 1989, ch 143 [same]).

Con Edison’s contention that our decision in Matter of Consolidated Edison Co. v City of New York (44 NY2d 536) dictates a contrary result is unpersuasive. As the courts below aptly observed, that case — which concerned only whether certain utility-related property could be taxed as real property —was decided more than three years prior to the adoption of the presently controlling statutory classification scheme for the taxation of real property in New York City (L 1981, ch 1057 [adding article 18 to the RPTL]), and therefore cannot be said to be dispositive of the question presented here.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Marvin Harris, Appellant.
    Argued April 28,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Harold V. Ferguson, Jr., and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (William M. Harrington and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of robbery in the first degree for his participation in the knife-point mugging of an elderly victim as she approached and entered her Brooklyn home. At trial, the victim testified regarding her lineup identification of defendant. Admission of this testimony, which should have been suppressed because of the suggestive nature of the lineup, was erroneous. Despite this trial error, the Appellate Division affirmed under the harmless error doctrine. It concluded that strong independent source evidence supporting the victim’s in-court identification of defendant was established and explicitly found by the hearing court, and that this evidence was sufficient to satisfy the harmless error test.

While the Appellate Division was correct that the existence of an independent source for an in-court identification is relevant to harmless error determinations, in this case the strength of the independent source evidence, standing alone, does not establish harmless error. A traditional and more thorough harmless error analysis is required.

We nevertheless agree that the order affirming the judgment of conviction should be affirmed. The mugging victim’s strong, independently evolved, nonsuggestive, in-court identification was buttressed by her sister’s testimony and by other surrounding evidentiary inferences and circumstances. Taken together, there is no reasonable possibility that the error might have contributed to defendant’s conviction; thus, it was harmless beyond a reasonable doubt (see, People v Owens, 74 NY2d 677; see also, People v Crimmins, 36 NY2d 230, 237; compare, People v Johnson, 80 NY2d 798 [decided today]; contrast, People v Coates, 74 NY2d 244; and People v Dodt, 61 NY2d 408).

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Patrick Johnson, Appellant.
    Argued April 28,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      William A. Loeb and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (William M. Harrington, Roseann B. MacKechnie and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Defendant and a codefendant were convicted after a jury trial of two counts of murder in the second degree and additional, related criminal counts.

We agree with the Appellate Division that the eyewitness’s testimony regarding the lineup identification of defendant should have been suppressed and, therefore, was erroneously received in evidence at trial. However, we conclude, as did the dissenting Justice below, that the error in this case cannot be deemed harmless (People v Johnson, 176 AD2d 818, 820; compare, People v Harris, 80 NY2d 796 [decided today]; see, People v Crimmins, 36 NY2d 230).

The eyewitness, the sole witness who inculpated defendant in the commission of these crimes, gave testimony which was internally contradictory and inconsistent in nature. Significantly, the trial prosecutor pointedly relied on the erroneously admitted lineup evidence in the People’s opening statement and summation, thus exacerbating the prejudicial impact. Under these circumstances, the educement before and finding by the suppression court of an independent source for the witness’s in-court identification does not, standing alone, satisfy the harmless error standard. We cannot conclude on this record that there was "no reasonable possibility that the error might have contributed to defendant’s conviction and that it was thus harmless beyond a reasonable doubt.” (Id., at 237.)

We have considered defendant-appellant’s other arguments and conclude that they lack merit.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    Carmen Baez, as Executrix of Rosa J. Caraballo, Deceased, and as Testamentary Guardian of Lisa R. Caraballo and Another, Infants, Appellant, v New York City Health and Hospitals Corporation et al., Respondents, et al., Defendants.
    Submitted April 20, 1992;
    decided June 9, 1992
   Motion to vacate this Court’s February 28, 1992 order dismissing plaintiffs appeal pursuant to section 500.9 of the Rules of the Court of Appeals (22 NYCRR 500.9) granted. [See, 79 NY2d 916.]


text:
    In the Matter of Hempstead General Hospital, Respondent, v National Grange Mutual Insurance Co., Appellant.
    Submitted April 13, 1992;
    decided June 9, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 5611).


text:
    The People of the State of New York, Appellant, v Ira L. McCullars, Respondent.
    Decided June 9, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Reform Educational Financing Inequities Today (R.E.F.I.T.) et al., Appellants v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted June 1,1992;
    decided June 9, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Channing Reuschenberg et al., Appellants, v Town of Huntington, Respondent.
    Submitted April 6,1992;
    decided June 9, 1992
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    The People of the State of New York, Respondent, v Vincent Alexander, Appellant.
    Argued May 5,1992;
    decided June 11, 1992

      APPEARANCES OF COUNSEL

      Vincent Alexander, pro se, and Edward J. Nowak, Public Defender (James Eckert of counsel), for Vincent Alexander, appellant.

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and a new trial ordered (see, People v Dokes, 79 NY2d 656 [decided today]).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Appellant, v Samuel Rose, Respondent.
    Argued May 5,1992;
    decided June 11, 1992

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Jonathan R. Walsh and Peter D. Coddington of counsel), for appellant.

      Stephen R. Scarborough and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Order affirmed (see, People v Dokes, 79 NY2d 656 [decided today]).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Apple Health and Sports Clubs, Ltd., Inc., Respondent, and Thurcon Properties, Ltd., et al., Appellants.
    Argued April 29,1992;
    decided June 11, 1992

      APPEARANCES OF COUNSEL

      Charles Haydon, Paul A. Victor and Mark Frey for appellants.

      Robert Abrams, Attorney-General (Jane M. Azia, John W. Corwin and Jerry Boone of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

The Attorney-General commenced this special proceeding, pursuant to Executive Law § 63 (12), alleging that, in violation of General Business Law § 622-a, respondent Apple Health and Sports Clubs, Ltd. was operating four health clubs without posting a bond, letter of credit or certificate of deposit with the Secretary of State. The Attorney-General sought (1) to enjoin Apple Health from entering into any new contracts with consumers until it had complied with the requirements of General Business Law § 622-a, and (2) to impose substantial fines and costs. Apple Health thereafter ceased operations and closed down its health clubs.

The Attorney-General amended his petition to include Thur-con Properties, Ltd., the alleged owner of Apple Health, and Harold Thurman, the president and 50% shareholder of both companies. In addition to the relief sought in the first petition, the Attorney-General sought a direction for respondents to pay restitution and damages to club members who had not received the services they had paid for. The trial court granted temporary injunctive relief against all respondents, freezing bank accounts in the name of Apple Health or Thurcon Properties until a trial could be held on the merits and directing respondents to file a $500,000 bond in order to insure the availability of funds owed to health club members and for the payment of civil fines. The Appellate Division affirmed.

Respondents Harold Thurman and Thurcon Properties appeal, contending that they were denied due process by the imposition of the court’s order in the absence of proper notice and a hearing, and that they were improperly joined in the petition and included in the court’s order notwithstanding an absence of evidence establishing that they exercised control over or acted as agents of Apple Health.

The Supreme Court has stated that due process requires an opportunity to be heard "at a meaningful time and in a meaningful manner” (Armstrong v Manzo, 380 US 545, 552). The opportunity must be appropriate to the nature of the case (Mulleme v Central Hanover Trust Co., 339 US 306, 313). The concept of due process is flexible, however, and calls for the procedural protection the particular situation demands (Mathews v Eldridge, 424 US 319, 334).

In the case before us, the dispute between the State and respondents over their lack of compliance with the provisions of the General Business Law had proceeded for some months. Thus, the litigation, once instituted, came as no surprise to the respondents. The prior negotiations with the Attorney-General and the petition clearly apprised respondents of the underlying facts alleged by the Attorney-General and afforded them ample opportunity to raise their opposing contentions on the merits of the petition. They restated these contentions in their answering papers and Supreme Court heard oral argument before issuing its order.

Under the circumstances, this procedure was constitutionally sufficient and there was adequate support in the record to warrant the temporary relief awarded by the trial court. Moreover, we find no merit to respondents’ contention that the court was without a basis to freeze their bank accounts or impose the bond requirement on them because Apple Health was a completely separate and distinct corporation which was not controlled by Thurman or connected to Thurcon Properties.

Executive Law § 63 (12) authorizes the Attorney-General to prosecute "any person” who engages in "repeated fraudulent or illegal acts or otherwise demonstrate[s] persistent fraud or illegality in * * * conducting * * * business.” The statute defines "fraud” broadly as including "any device, scheme or artifice to defraud and any deception, misrepresentation [or] concealment”. There is abundant evidence that Apple Health was guilty of fraud and persistent illegality in the way in which it conducted business.

Officers and directors of a corporation may be held liable for fraud if they participate in it or have actual knowledge of it (see, Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 44). Not only is it sufficiently likely to be shown at trial that Thurman, as the 50% owner and eventual sole director of Apple Health, had actual knowledge of Apple Health’s fraudulent activities, but there is also evidence in the record that it was Thurman himself who concluded that General Business Law § 622-a did not apply to Apple Health and decided that Apple Health would operate without complying with the statute. As an officer and director with actual knowledge of and participation in Apple Health’s fraudulent and illegal business dealings, Thurman may be held liable for any money owed to club members and any civil fines owed the State. Based on the record, a substantial likelihood existed that the grounds for holding Thurman liable would be established.

There was also a sufficient showing that Apple Health was not separate and distinct from Thurcon Properties. Thur-con Properties had the same two shareholders as did Apple Health and it owned and operated the buildings in which Apple Health operated its health clubs. Moreover, there was evidence that, during negotiations with the Attorney-General, representations were made that Apple Health should be given a waiver from compliance with the General Business Law § 622-a because it was owned by Thurcon Properties, a corporation with substantial assets, and that Thurcon Properties would stand behind Apple Health’s debts. Additionally, there was evidence in the record that membership fees for Apple Health were mailed to Thurcon Properties and that membership cards for Apple Health were issued by Thurcon Properties. Thus, there was a substantial likelihood that petitioner could prove at trial that Thurcon Properties and Apple Health were interlocking corporations and acted in concert in operating the Apple Health clubs, subjecting Thurcon Properties to liability for the fraudulent and illegal activities pursued by Apple Health.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order affirmed, etc.

      . [1] Contrary to the assertion of the Attorney-General, respondents’ arguments are not rendered moot by Supreme Court’s decision, issued while this appeal was under advisement, granting his motion for summary judgment against Apple Health and Thurman (People v Apple Health & Sports Clubs, NY County, index No. 40973/91). The motion resolved only the issue of liability. Because the issue of damages persists, as does the issue of liability with respect to Thurman Properties, the order freezing bank accounts and requiring the filing of a $500,000 bond continues to ensure availability of funds while the remaining issues are resolved. Therefore, the propriety of issuing that order remains an issue meriting our review.

      . In fact, Supreme Court thereafter granted petitioner summary judgment against Thurman, finding that Thurman, "chief executive officer controlled every aspect of the operation” (People v Apple Health & Sports Clubs, slip opn, at 10 [NY County, index No. 40973/91]).


text:
    Susan McCormack, as Administratrix of the Estate of Joseph McCormack, Deceased, Appellant, v City of New York, Respondent.
    Argued April 29,1992;
    decided June 9, 1992

      APPEARANCES OF COUNSEL

      Harvey A. Levine and Richard A. Gilbert for appellant.

      O. Peter Sherwood, Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff’s wrongful death claim against New York City arose out of an incident in which an Emergency Services Unit (ESU) police officer was shot and killed when an apparently emotionally disturbed individual who had barricaded himself inside a house emerged and fired a shotgun directly at him. Plaintiff’s claim was premised on two distinct theories. First, plaintiff alleged that the City was negligent in supplying the decedent with a bullet-proof vest called a "Davis vest” that was not fit for use in situations involving barricaded, armed individuals, because, unlike some newer body armor equipment, the Davis vest left the wearer’s sides exposed. Second, plaintiff contended that a negligently issued order from one of the commanding officers directing the ESU team members not to fire at the barricaded individual even if he discharged his weapon was the proximate cause of the decedent’s death. Although the jury returned a verdict for plaintiff on both theories of liability, the Appellate Division correctly reversed the judgment and dismissed the complaint, since neither theory was legally supportable on this record.

With regard to her claim based on the alleged inadequacy of the bullet-proof vest, plaintiff’s proof established nothing more than that the Davis vest may not have been "state of the art” equipment and that there existed other devices that might have been safer for use in situations such as that in which the decedent was killed. In general, the law only requires employers to furnish equipment that is reasonably safe, in good repair and suitable for its intended use (Cleary v Dietz Co., 222 NY 126, 133). "An employer does not owe [an] employee the legal duty of furnishing the best-known appliances * * * to protect such employee against injury” (id., at 133).

Although plaintiff demonstrated that there were other, more protective equipment on the market, it cannot be denied that the Davis vest, which covers large areas of the upper torso, provides a measure of protection from gunfire and is therefore suitable for use in situations in which hostile gunfire is anticipated (cf., MacClave v City of New York, 24 AD2d 230, affd 19 NY2d 892). Further, as the evidence at trial showed, the more protective devices available on the market afford reduced mobility, a disadvantage that might well lead City officials to choose the Davis vest over the alternatives notwithstanding the latter’s expanded coverage. The relative wisdom of such a choice may not be reviewed in a personal injury action founded on negligence, at least where the choice is not an irrational one. As we have previously stated, "when official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a municipal defendant generally is not answerable in damages for the injurious consequences of that action” (Haddock v City of New York, 75 NY2d 478, 484; see, Mon v City of New York, 78 NY2d 309, 313; Tango v Tulevech, 61 NY2d 34).

As to plaintiff’s claim based on a commanding officer’s no-shoot order, we conclude that the Appellate Division properly rejected it. In Kenavan v City of New York (70 NY2d 558, 569), we held that liability for injuries occasioned by a colleague’s decision will not be imposed "where the * * * conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions that, in retrospect show poor judgment.” Although plaintiff’s proof established that orders not to shoot even if fired upon are unusual and that ESU officers generally do not need their commanding officer’s express permission to shoot if they are immediately vulnerable to hostile gunfire, those circumstances alone are not sufficient to render the discretionary no-shoot order in this case actionable. Indeed, as the City argues, the presence of an unarmed negotiator at the scene provided a rational ground for the alleged directive. Thus, even if the jury accepted the testimony that the disputed "no-shoot” order had been issued and that it was the proximate cause of the decedent’s death, the City could not be held liable in tort as a result of that order.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Terry Hasenstab, Appellant, v Robert J. McGuire, as Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Decided June 11, 1992

      APPEARANCES OF COUNSEL

      David Jalosky for appellant.

      O. Peter Sherwood, Corporation Counsel (Deborah R. Douglas of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (178 AD2d 217).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Appellant, v Billy J. Snyder, Respondent.
    Decided June 11, 1992

      APPEARANCES OF COUNSEL

      Gerald F. Mollen, District Attorney (Carol A. Cocchiola of counsel), for appellant.

      Robert M. O’Leary, Public Defender (Kenneth S. Kagan and Charlene A. Russell of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. Defendant’s conviction for assault in the second degree was properly reversed. In light of the fact that there is support in the record for the lower courts’ determination that the police lacked probable cause to believe that defendant’s vehicle contained a weapon or evidence of a crime, they had no basis for subjecting it to a search (see, People v Torres, 74 NY2d 224; cf., People v Coutin, 78 NY2d 930).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    William Bommer, Appellant, et al., Plaintiff, v County of Erie, Respondent.
    Decided June 11, 1992

      APPEARANCES OF COUNSEL

      Samuel J. Capizzi for appellant.

      Patrick H. NeMoyer, County Attorney (Charles L. Sawyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs.

At trial, plaintiff offered no proof that Erie County’s failure to install the sign in concrete caused the sign to fall or proximately caused his injuries. Viewing the proof adduced at trial in a light most favorable to the plaintiff and giving the plaintiff the benefit of every favorable inference, we conclude that no valid line of reasoning and permissible inferences could possibly lead rational jurors to conclude that Erie County’s failure to install the sign in concrete caused plaintiffs injuries (see, Cohen v Hallmark Cards, 45 NY2d 493, 499). Accordingly, the Appellate Division correctly granted defendant’s motion to set aside the jury verdict.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Darryl Jeter, Appellant.
    Argued May 6,1992;

    decided June 11, 1992

      APPEARANCES OF COUNSEL

      Alan S. Axelrod and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Linda Breen and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree for the shooting death of Transit Police Officer Irma Lozada. On September 21, 1984, defendant snatched a gold rope chain from the neck of a subway passenger at the Wilson Avenue subway station in Brooklyn. Officers Lozada and Giambalvo chased defendant from the subway station and pursued him at street level. Lozada caught up with defendant in a nearby vacant lot, but was overpowered as she tried to apprehend him. Defendant then allegedly shot Lozada twice in the head with her revolver. Geraldine McGirt, who lived in an apartment overlooking the vacant lot, saw a man whom she identified as defendant hovering over a white woman on the ground. When McGirt turned away from the window she heard the two gun shots. Defendant sold the gold chain to a local store owner who recognized defendant as a frequent patron. Both McGirt and the purchaser of the chain identified defendant in court.

At trial, two tape-recorded statements by defendant were admitted into evidence and played for the jury. Defendant does not contest their admissibility on this appeal. In the first of the two statements, defendant admitted stealing the chain, but denied having any role in the shooting. Defendant claimed that he saw an acquaintance, Eric, shoot a white woman after she pulled a gun on him. Upon further questioning, defendant admitted that the gun was hidden underneath the bureau in his bedroom. In the second taped statement, defendant again admitted stealing the chain but added that after Eric had shot the woman, Eric handed the gun to defendant and that he fired a shot at the woman. Defendant claimed that he did not know whether that shot struck the woman.

As part of his defense that he had been framed by the police, defendant denied that the voice on the tapes was his. On rebuttal, the People offered the testimony of a voice analysis expert who stated that by comparing spectrographs of the two statements and the voice sample, it was her opinion that it was defendant’s voice in both of the taped statements. Although defendant had moved for a hearing on the scientific reliability of voice spectrographs, the court declined to hold a hearing and stated that defendant would be permitted to cross-examine the People’s expert on the reliability of the evidence. On appeal, the Appellate Division concluded that it was error to admit the spectrographie evidence without a hearing on its reliability, but that the error was harmless.

Defendant’s principal argument is that there should be a reversal because the court erred in permitting expert testimony regarding the voice spectrographie analysis. Defendant, however, does not contend that spectrographie evidence is inadmissible under New York law. Indeed, the parties agree that no appellate court in this State has previously addressed this question and that the three trial court decisions are not in accord (see, People v Bein, 114 Misc 2d 1021 [admissible]; People v Collins, 94 Misc 2d 704 [not admissible]; People v Rogers, 86 Misc 2d 868 [admissible]). Defendant argues, rather, that because New York has not yet held that spectrographie evidence has gained general acceptance in the scientific community as reliable, it was reversible error for the trial court to admit such evidence without first having a hearing on its reliability. The People contend that: (1) a trial court may rule on the general acceptance of a scientific technique as reliable without a hearing based on other judicial opinions or legal authorities; and (2) any error in failing to inquire preliminarily into reliability was harmless.

We do not agree that the court could properly have determined that voice spectrography is generally accepted as reliable based on the case law and existing literature on the subject (see, e.g., Matter of Lahey v Kelly, 71 NY2d 135, 144; People v Middleton, 54 NY2d 42, 49-50). In this instance, there is marked conflict in the judicial and legal authorities as to the reliability of the procedure. New York courts are split on the issue of admissibility (see, People v Bein, supra; People v Collins, supra; People v Rogers, supra). Moreover, while several jurisdictions have held that voice spectrography evidence is sufficiently reliable to be admissible (see, e.g., United States v Williams, 583 F2d 1194 [2d Cir]; Commonwealth v Lykus, 367 Mass 191, 327 NE2d 671; State v Williams, 388 A2d 500 [Me]; State ex rel. Trimble v Hedman, 291 Minn 442, 192 NW2d 432), others have reached just the opposite conclusion (see, e.g., Windmere, Inc. v International Ins. Co., 105 NJ 373, 522 Ai2d 405 [1987 decision surveying judicial writings on voice spectrography]; State v Gortarez, 141 Ariz 254, 686 P2d 1224; People v Kelly, 17 Cal 3d 24, 549 P2d 1240, 130 Cal Rptr 144; Commonwealth v Topa, 471 Pa 223, 369 A2d 1277). The legal scholarship on the admissibility of voice spectrography is likewise conflicting (see, e.g., Decker and Handler, Voiceprint Identification Evidence — Out of the Frye Pan and Into Admissibility, 26 Am U L Rev 314 [1977] [admissible]; Note, Voice Spectrography — Reliability of Voiceprints Not Established, Therefore Inadmissible, 18 Seton Hall L Rev 405 [1988]; Greene, Voiceprint Identification: The Case In Favor of Admissibility, 13 Am Crim L Rev 171 [1975]; Jones, Danger — Voice-prints Ahead, 11 Am Crim L Rev 549 [1973] [inadmissible]). We conclude that the trial court lacked a proper basis to admit the voice spectrographie evidence without a preliminary inquiry into reliability.

We agree with the People, however, that the error was harmless (see, People v Crimmins, 36 NY2d 230, 241). The voice spectrographie evidence did not affect the admissibility of the taped statements which, together with other testimony linking defendant to the shooting, the murder weapon found in defendant’s bedroom and defendant’s admitted commission of the chain snatching constitute overwhelming proof of guilt.

Defendant’s remaining contention as to the constitutionality of CPL 450.10 and 450.15 is not properly before the court on this appeal from the Appellate Division order modifying the judgment of conviction.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    Board of Education of the Cold Spring Harbor Central School District et al., Respondents, v Antonia Rettaliata, as Supervisor of the Town of Huntington, et al., Appellants. (Action No. 1.) Board of Education of the Commack Union Free School District, Respondent, v Antonia Rettaliata, as Supervisor of the Town of Huntington, et al., Appellants. (Action No. 7.)
    Submitted April 27,1992;
    decided June 11, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and no motion lies pursuant to CPLR 5602 (a) (1) (ii) from a nonfinal Appellate Division order.


text:
    Charles J. Brocco et al., Respondents, v Gerard W. Mileo et al., Appellants, et al., Defendants.
    Submitted May 26,1992;
    decided June 11, 1992
   Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 78 NY2d 853.]


text:
    Bozidar Franov et al., Appellants, v Exxon Company, USA, et al., Respondents, et al., Defendant.
    Submitted April 27, 1992;
    decided June 11, 1992
   Motion for leave to appeal by the plaintiffs Franov dismissed upon the ground that said movants have failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]). Motion for leave to appeal by plaintiff Sango denied.


text:
    In the Matter of Genesis of Mount Vernon, N. Y., Inc., Respondent, v Zoning Board of Appeals of the City of Mount Vernon et al., Appellants.
    Submitted May 18,1992;
    decided June 11, 1992
   Motion for reconsideration of April 2, 1992 order of dismissal denied. [See, 79 NY2d 977.] Motion for leave to appeal granted. Motion for a stay denied as unnecessary (CPLR 5519 [a] [1]).


text:
    Board of Education of the Sachem Central School District at Holbrook et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. (Action No. 2.) Board of Education of the Bayport-Blue Point Union Free School District, Respondent, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. (Action No. 3.) Board of Education of the Hauppauge Union Free School District, Respondent, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. (Action No. 6.) Board of Education of the Connetquot Central School District et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. (Action No. 8.) Board of Education of the Bay Shore Union Free School District et al., Respondents, v Frank Jones, as Supervisor of the Town of Islip, et al., Appellants. (Action No. 10.)
    Submitted April 27,1992;
    decided June 11, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and no motion lies pursuant to CPLR 5602 (a) (1) (ii) from a nonfinal Appellate Division order.


text:
    Board of Education of the Sachem Central School District at Holbrook, Respondent, v Patrick R. Vecchio, as Supervisor of the Town of Smithtown, et al., Appellants. (Action No. 4.) Board of Education of the Commack Union Free School District et al., Respondents, v Patrick R. Vecchio, as Supervisor of the Town of Smithtown, et al., Appellants. (Action No. 5.) Cora Crimmins, Individually and as a Member of the Board of Education of the Smithtown Central School District, et al., Respondents, v Patrick R. Vecchio, as Supervisor of the Town of Smithtown, et al., Appellants. (Action No. 9.) Board of Education of the Three Village Central School District, Respondent, v Patrick R. Vecchio, as Supervisor of the Town of Smithtown, et al., Appellants. (Action No. 11.)
    Submitted April 20,1992;
    decided June 11, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and no motion lies pursuant to CPLR 5602 (a) (1) (ii) from a nonfinal Appellate Division order.


text:
    1776 Associates Corp., Appellant, v Broadway West 57th Street Associates, Respondent.
    Submitted May 11,1992;
    decided June 11, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Henry Soto, Appellant.
    Submitted May 26,1992;
    decided June 11, 1992
   Motion for leave to appeal dismissed upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).


text:
    In the Matter of Susan R. Syquia, Respondent, v Board of Education of the Harpursville Central School District, Appellant, et al., Respondents.
    Submitted April 6,1992;
    decided June 11, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal granted.


text:
    The People of the State of New York, Appellant, v John F. Beattie, Respondent.
    Argued June 5,1992;
    decided July 1, 1992

      APPEARANCES OF COUNSEL

      Larry M. Himelein, District Attorney, for appellant.

      J. Michael Shane for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed and the judgment of the Town Justice Court reinstated.

On October 2, 1990, defendant was issued three uniform traffic tickets charging him with failure to keep right (Vehicle and Traffic Law § 1120 [a]) and two counts of driving while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]). A uniform traffic ticket meets the CPL requirements for a simplified traffic information (CPL 100.10 [2] [a]). Pursuant to CPL 100.25 (2), defendant requested a supporting deposition, which was provided to him. In this deposition, Deputy L.C. Johnson of the Cattaraugus County Sheriff’s Department alleged that defendant had been travelling at 71 miles per hour and was more than 50% in the officer’s lane of traffic. Deputy Johnson further stated that after he pulled the defendant’s car over and approached and addressed the defendant, he detected the smell of an alcoholic beverage.

By notice of motion dated November 1, 1990 and accompanying affidavit, defendant moved to dismiss the charges of driving while intoxicated. He argued that, in violation of CPL 100.25 (2), there was no factual evidence in the supporting deposition to provide reasonable cause to believe that he had committed the offenses charged. The motion to dismiss was denied, and on May 15, 1991, defendant pleaded guilty to Vehicle and Traffic Law § 1192 (2).

Defendant appealed to County Court, Cattaraugus County, arguing that the supporting deposition was jurisdictionally defective. County Court agreed that the factual allegations contained in the supporting deposition were insufficient to provide reasonable cause to believe that the defendant had been operating a motor vehicle while he had .10 of one percentum or more by weight of alcohol in his blood, as required by Vehicle and Traffic Law § 1192 (2), the statute to which the defendant pleaded guilty. Further, County Court also agreed with defendant that this defect was jurisdictional in nature and was not waived by the defendant’s guilty plea. Consequently, the simplified information and supporting deposition were dismissed and the conviction vacated. A Judge of this Court granted leave to appeal.

We need not determine whether the factual allegations in the supporting deposition provided reasonable cause to believe that the defendant committed the offenses with which he was charged, because we find that defendant waived the right to raise this claim when he pleaded guilty to Vehicle and Traffic Law § 1192 (2).

"A guilty plea not only constitutes an actual waiver of certain rights associated with a trial, but also effects a forfeiture of the right to renew many arguments made before the plea” (People v Taylor, 65 NY2d 1, 5). Among these is a claimed deficiency in a jurisdictionally sufficient accusatory instrument (id., citing People v Levin, 57 NY2d 1008; People v Cohen, 52 NY2d 584). Conversely, it is clear that a defendant who pleads guilty does not waive the right to argue that an accusatory instrument is jurisdictionally defective (People v Taylor, supra, at 5).

Our decision in People v Key (45 NY2d 111) warrants a conclusion that the defect alleged by the defendant is not jurisdictional in nature. In Key, the defendant was charged, in a simplified traffic information, with operating a vehicle while under the influence of alcohol. As in the present appeal, the defendant in that case argued that the supporting deposition was insufficient because it did not contain a factual allegation necessary to establish commission of the crime. Observing that a simplified traffic information can proceed to trial without a supporting deposition if the defendant fails to request one, we held that absence of a factual allegation in the deposition can be waived (id., at 116-117). We stated explicitly that "[e]yen if, despite the CPL provisions, there be some defects in accusatory instruments that may never be waived, the defect in this case is not of that class” (id., at 116). This language is determinative of the appeal now before us. Consequently, we hold that the defendant waived his present sufficiency claim when he pleaded guilty to Vehicle and Traffic Law § 1192 (2).

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    Gjelosh Dedvukaj, Doing Business as Hoti Realty Management, Respondent, v Allstate Insurance Company et al., Appellants, and Public Service Mutual Insurance Company, Respondent, et al., Defendant.
    Argued June 4,1992;
    decided July 1, 1992

      APPEARANCES OF COUNSEL

      Michael Majewski and Peter F. Broderick for appellants.

      Joshua L. Mallin, Barbara A. Matarazzo and Dennis T. D Antonio for Gjelosh Dedvukaj, respondent.

      Nathan Cyperstein and Barbara M. Berk for Public Service Mutual Insurance Company, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the cross motion by defendants Allstate Insurance Company and Jim Bandelli for summary judgment granted, and the certified question answered in the negative.

Plaintiff’s premises, a garden apartment complex in Brooklyn, were insured by Public Service Mutual Insurance Company for the period from January 1984 through January 1985. This policy was automatically renewed for 1985, effective through January 1986. Plaintiff had been negotiating for alternative coverage with defendant Jim Bandelli, as agent for defendant Allstate, and in February 1985 an Alstate policy was issued to plaintiff covering the period from March 1, 1985 to March 1, 1986. On March 21, 1985 — three weeks after the effective date of the Allstate policy, as shown on the face of the document — plaintiff requested cancellation of the Public Service policy retroactive to January 1, 1985. Public Service refunded to plaintiff all premiums paid through the date of cancellation. In June 1986, plaintiff was served with a summons and complaint by a person claiming to have fallen on the subject premises on January 22,1985.

In the present action, plaintiff seeks a declaration that Allstate has a duty to defend him in the personal injury action, based on coverage he negotiated with defendant Bandelli effective December 26, 1984. We agree with the dissenter at the Appellate Division that defendants were entitled to summary judgment. On this record, plaintiff’s assertion that Bandelli promised to provide some type of coverage effective December 26, 1985 is insufficient to overcome defendants’ motion for summary judgment.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order, insofar as appealed from, reversed, etc.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Reginald Knight, Appellant.
    Argued June 1,1992;
    decided July 1, 1992

      APPEARANCES OF COUNSEL

      Steven M. Statsinger and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Amy S. Griffin and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Having been charged with participating in a gunpoint robbery, defendant claimed that he had been mistakenly identified and presented an alibi defense at trial. During the prosecutor’s cross-examination, two of defendant’s alibi witnesses stated that they had told the police their stories when the police came to their home to arrest him. The People were then permitted, over a defense objection, to call the arresting officer and elicit from him that neither of the witnesses had, in fact, come forward at the time of the arrest. Defendant was subsequently convicted, and the Appellate Division affirmed, holding that the trial court had not erred in permitting the use of extrinsic evidence to rebut the alibi witnesses’ claims that they had promptly reported defendant’s alibi to the police.

On this appeal, defendant argues that the admission of the police officer’s rebuttal testimony violated the rule prohibiting the use of extrinsic evidence to impeach a witness on a matter that is merely collateral (see, e.g., People v Pavao, 59 NY2d 282; People v Schwartzman, 24 NY2d 241, cert denied 396 US 846). However, the rule, whose purpose is to avoid undue confusion and unfair surprise on matters of minimal probative worth (People v Pavao, supra, at 289), has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide (People v Wise, 46 NY2d 321, 328).

In People v Dawson (50 NY2d 311), this Court recognized that, in a proper case, an alibi witness’s failure promptly to come forward with his or her story may have probative worth in that such silence bears directly on the truthfulness of the alibi. Thus, in trials involving an alibi defense, an alibi witness’s prompt report, or failure promptly to report, is clearly relevant to a material issue that the jury is obligated to resolve, provided, of course, that the threshold requirements set forth in Dawson have been satisfied.

Indeed, the use of extrinsic evidence in this context is analogous to the use of such evidence in People v Cade (73 NY2d 904), in which the People were permitted to introduce rebuttal evidence that the alibi witness had earlier told law enforcement authorities that the defendant could have committed the charged crime. The rebuttal evidence in Cade squarely contradicted the alibi witness’s direct testimony, while the rebuttal evidence here merely undermined the believability of the alibi witnesses’ story. In both instances, however, the extrinsic evidence was used to challenge the validity of the alibi, a material issue in the case, and was therefore not limited to collateral significance.

Accordingly, the trial court in this case did not err in permitting the People to rebut the alibi witnesses’ testimony about their postarrest statements to police by calling the police officer to testify that such statements were never made. Contrary to defendant’s contention, it makes no difference that the testimony to be impeached was elicited by the prosecutor rather than the defense, since, regardless of who elicited the evidence, the subject of that testimony was directly pertinent to the truthfulness of defendant’s alibi and, consequently, was relevant to a "material” issue.

Hancock, Jr., J.

(concurring). I cannot agree that the

People were properly permitted to adduce extrinsic evidence contradicting the witnesses’ statements on cross-examination that they had told the police about defendant’s alibi. It is basic that a cross-examiner is bound by a witness’s answers to questions on collateral matters asked solely for the purpose affecting credibility. Extrinsic proof to rebut the witness’s answers is not admissible (see, e.g., Richardson, Evidence § 491 [Prince 10th ed]). The general rule is that facts are not collateral if they are relevant to a material issue or if they are independently admissible to impeach the witness (see, People v Schwartzman, 24 NY2d 241, 245; 3A Wigmore, Evidence §§ 1003, 1004 [Chadbourn rev 1970]). Facts bearing on some testimonial quality or capacity of the witness — e.g., a witness’s bias, interest or hostility or that the witness was ill or intoxicated — are independently admissible on an issue other than credibility (see, Badr v Hogan, 75 NY2d 629, 634-635; 3A Wigmore, op. cit., § 1005; Richardson, op. cit., § 503). Thus, such facts may be established despite the witness’s denial on cross-examination (see, e.g., People v Webster, 139 NY 73, 85; see also, Hoag v Wright, 174 NY 36, 45-46 [facts disputing competency of a handwriting expert held independently admissible and not collateral]).

Here — unlike questions concerning bias, interest or competency which relate to some specific testimonial quality— whether the witnesses gave the police information concerning the defendant’s alibi had no independent probative value and was relevant solely on the issue of whether the witnesses were telling the truth. Thus, the fact inquired about was collateral and not independently admissible. That the subject matter of the witness’s direct testimony concerned a central factual issue — whether defendant was present at the scene of the crime — is beside the point. It is the relevance of the fact inquired about on cross-examination — not the importance or materiality of the fact to which the witness has testified — that governs.

People v Dawson (50 NY2d 311), cited by the court (majority opn, at 847, and n), pertains to what may be asked on cross-examination to affect the witness’s credibility, not to the admission of extrinsic evidence under Schwartzman. In Dawson we held only that the trial court may, in its discretion, permit the prosecutor to cross-examine a defense alibi witness "concerning his failure to come forward at an earlier date” because "the information elicited during this type of questioning might well aid the trier of fact in its effort to determine whether the testimony of a defense witness is an accurate reflection of the truth or is, instead, a 'recent fabrication’ ” (id., at 321 [emphasis added]). Cross-examination, if allowed under Dawson, is solely for the purpose of undermining the validity of the fact asserted by attacking the truthfulness of the witness asserting that fact. Nothing in Dawson suggests that the subject matter of the cross-examination (i.e., whether the alibi witness came forward and, if so, when) would be independently admissible and, hence, not purely collateral. Making the test of whether a fact is collateral for purposes of the Schwartzman rule depend on the materiality or centrality of the witness’s testimony is a concept which, to my knowledge, is not supported in case law and one which beclouds an established rule of evidence.

People v Cade (73 NY2d 904) does not support the Court’s reasoning. In Cade, the rebuttal testimony was independently admissible as relevant to the central issue — whether defendant could have been present at the crime scene. We reasoned that because the contradiction in the alibi witness’s statements "goes to a material, core issue in the case” (id., at 905) and not just to credibility, the evidence was not collateral. Here, the extrinsic evidence does not contradict the material fact in issue but only one collateral to it — i.e., the witnesses’ prompt reporting of evidence bearing on the disputed material fact.

In sum, the extrinsic evidence was improperly received under well-established case law. The Court, in sanctioning its admission, substantially weakens — in my view, without good reason — what has been a clear-cut and easily applied rule under Schwartzman against the admission of extrinsic proof to contradict collateral facts. I would, nevertheless, affirm inasmuch as the error was harmless (see, People v Crimmins, 36 NY2d 230, 241-242).

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Bellacosa concur; Judge Hancock, Jr., concurs in result in an opinion.

Order affirmed in a memorandum.

       The concurrence is based on a fundamental misconstruction of the Court’s holding in Dawson. The concurrer assumes that evidence as to whether the alibi witnesses promptly told their story to the police is admissible solely on the issue of credibility (concurring opn, at 848). In fact, the Dawson Court stated that "it would be improper for a District Attorney to suggest through [this line of] questioning that a witness * * * is generally unworthy of belief solely because he or she failed to come forward prior to the trial” (50 NY2d, at 318, supra [emphasis supplied]). On the other hand, evidence of a witness’s prior failure to come forward is permissible under Dawson to the extent that it could "aid the trier of fact in its effort to determine whether the [witness’s] testimony * * * is an accurate reflection of the truth” (id., at 321). In other words, Dawson held that evidence of the witness’s prior silence is not admissible if offered solely on the issue of the witness’s general credibility but may be admitted to the extent that it bears on the truth of the alibi — an issue that is unquestionably material.


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    In the Matter of Alphonse Leone, Claimant, v Oneida County Sheriff’s Department, Appellant. Workers’ Compensation Board, Respondent.
    Argued June 3,1992;
    decided July 1, 1992

      APPEARANCES OF COUNSEL

      John F. McDonough, Jr., for appellant.

      Robert Abrams, Attorney-General (Iris A. Steel, Theresa E. Wolinski, Jane Lauer Barker, Peter H. Schiff and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Claimant, a Deputy Sheriff, was injured in a line-of-duty accident during his employment with appellant Oneida County Sheriffs Department (County). As required by General Municipal Law § 207-c (1), the County paid claimant his full wages for the 4.8 weeks he was totally disabled and unable to work, plus $241.58 in necessary medical expenses.

The County had opted to cover its police officers under a workers’ compensation plan and was self-insured for that purpose. Claimant filed a claim with the respondent State Workers’ Compensation Board (Board) and was awarded partial wage replacement benefits for the period of his temporary total disability. He was also granted a schedule award pursuant to Workers’ Compensation Law § 15 (3) for permanent partial loss of use of his left leg. The Board gave the appellant County a credit for the wages it had paid to claimant under General Municipal Law § 207-c, but disallowed any credit for the medical expenses the County had paid on claimant’s behalf under that section. The County appealed the Board’s decision in the latter respect, arguing that Workers’ Compensation Law § 30 (3) authorized the County to receive a further credit for the medical expense payments, chargeable against claimant’s schedule award. The Appellate Division rejected the County’s argument and unanimously affirmed the Board’s decision (166 AD2d 74).

County police officers injured in the performance of their duties are entitled to receive the "full amount of [their] regular salary or wages until [their] disability * * * has ceased, and, in addition * * * medical treatment and hospital care necessitated by reason of such injury or illness” (General Municipal Law § 207-c [1]). In addition to General Municipal Law § 207-c (1) benefits, police officers employed by a county which also elects to cover such employees under a workers’ compensation program are entitled to “compensation” in the form of medical benefits (Workers’ Compensation Law § 13) and partial wage replacement benefits (Workers’ Compensation Law § 15). To avoid duplication of benefits, Workers’ Compensation Law § 30 provides that “(3) * * * any salary or wages paid to, or the cost of any medical treatment or hospital care provided * * * pursuant to [General Municipal Law § 207-c] shall be credited against any award of compensation * * * under this chapter” (emphasis added). This provision was added to “avoid duplication of benefits to an injured police [officer], the combined total of which might exceed the salary [the officer] would have received for the period” had the injury not occurred (Mem of Indus Commr, Bill Jacket, L 1963, ch 280, § 2).

Appellant argues that the plain language of Workers’ Compensation Law § 30 (3) compels crediting of General Municipal Law § 207-c medical expense payments even against Workers’ Compensation Law § 15 (3) schedule awards because a schedule award is an “award of compensation”. The literal implementation urged by the County, however, does not further the Legislature’s expressed purpose in enacting Workers’ Compensation Law § 30 (3) and would lead to an incongruous result, at least in circumstances such as are presented here. Paying a Workers’ Compensation Law § 15 (3) schedule award to an injured County police officer and separately paying General Municipal Law § 207-c medical expenses for that officer does not constitute the duplication of salary benefits the statute was designed to prevent. Indeed, it would be anomalous to disadvantage employees in claimant’s position, relative to other public employees, by allowing a credit against a schedule award for General Municipal Law § 207-c medical expense payments when such a credit is not allowed for Workers’ Compensation Law § 13 payments. The Board and the Appellate Division found no basis to impute such an anomaly to the Legislature. On our review, we discern no reason to disagree with their rulings.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed, with costs, in a memorandum.


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    The People of the State of New York, Appellant, v Lamont Powell, Respondent.
    Decided July 1, 1992

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Kathryn Neville Browne of counsel), for appellant.

      Jo Jo Annobil and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (179 AD2d 599).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    Fifth and Bergen Tenants Associates, Inc., et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents.
    Submitted March 23,1992;
    decided July 1, 1992
   Motion for leave to appeal dismissed upon the ground that movants have failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Hertz Corporation, Plaintiff, v City of New York et al., Defendants.
    Decided July 1, 1992
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    Catherine A. Mallare et al., Appellants, v James P. Sub-jack, Respondent.
    Submitted April 27,1992;
    decided July 1, 1992
   Motion by plaintiff Catherine Mallare for leave to appeal dismissed upon the ground that as to her the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion by plaintiff Frank Hallare for leave to appeal denied.


text:
    Wayne Myers, Respondent, v W. Kane Weeks, For the Benefit of Ann S. Weeks, et al., Appellants. (Two Appeals.)
    Submitted April 27,1992;
    decided July 1, 1992
   Motion for leave to appeal dismissed upon the ground that movants have failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    The People of the State of New York, Appellant, v Russell Brockington, Respondent.
    Decided July 1, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Nelson Cortez, Appellant.
    Argued June 2,1992;
    decided July 2, 1992

      APPEARANCES OF COUNSEL

      Randall D. Unger for appellant.

      Charles J. Hynes, District Attorney (Nancy F. Talcott, Linda Cantoni and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (172 AD2d 766).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v James Moss, Appellant.
    Argued June 1,1992;
    decided July 2, 1992
    APPEARANCES OF COUNSEL

      Richard A. Mastrocola and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Moira E. Casey and Jay M. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

A Brooklyn grocery store was robbed on July 8, 1988 while the owner and his clerk, Nasser Saleh, were working. At that time, both witnesses provided police with a description of the perpetrator. Four days after the robbery, the store’s owner observed defendant on the street and summoned a nearby police officer. Saleh, from inside the store, observed the police chasing defendant down the block just prior to his arrest. The next day, the police showed Saleh a photograph of defendant taken shortly after his arrest, and Saleh identified him as the robber.

The People failed to provide timely notice of the photographic identification (CPL 710.30). As a result, the trial court suppressed Saleh’s in-court identification testimony but permitted him to say that the person he observed being chased down the block on July 12 participated in the July 8 robbery. We agree with defendant that this was reversible error as, without the improper identification testimony, the case was based entirely on the testimony of the store owner (see, People v Green, 78 NY2d 1029). Moreover, on a second related robbery charge, as to which only the owner testified, the jury acquitted defendant.

While the witness was properly allowed to testify concerning his description of the robber given to the police prior to the potentially tainted identification procedure, there is no evidence in this record that the witness ever communicated to the police — prior to that identification — his perception that the person he saw being arrested on July 12 was the same person he saw commit the robbery on July 8 (see, People v Myrick, 66 NY2d 903; People v Sanders, 66 NY2d 906). Thus, there is nothing in the record to demonstrate that the perception testimony was untainted by the improper photo identification procedure.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


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    The People of the State of New York, Respondent, v Juan "Johnny” Nunez, Appellant.
    Decided July 2, 1992

      APPEARANCES OF COUNSEL

      David Seth Michaels for appellant.

      Paul Czajka, District Attorney (Henry Neal Conolly of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The determination that a defendant validly waived the constitutional right to remain silent resolves a mixed question of law and fact, and is not subject to further review in this Court where, as here, it is supported by evidence in the record (see, People v Harrison, 57 NY2d 470).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


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    The People of the State of New York, Appellant, v Edwin Godfrey, Respondent.
    Argued June 3,1992;
    decided July 2, 1992

      APPEARANCES OF COUNSEL

      Matthew J. Murphy, III, District Attorney (Thomas H. Brandt of counsel), for appellant.

      William Sims for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

In November 1982, defendant was charged with second degree murder (Penal Law § 125.25 [1]) in connection with the shooting death of Rodney Marsh — an acquaintance of his— during a violent altercation between the two in defendant’s home.

At trial, defendant took the stand in his own defense and admitted having fired the fatal shots, but claimed that his conduct had been justified under the circumstances (see, Penal Law art 35). He testified that, on the evening in question, he and Marsh became involved in a heated argument, and eventually agreed to physically settle their dispute at defendant’s home. Upon arriving there, defendant — at Marsh’s urging— immediately went to his bedroom to get his gun. Before he could return, however, Marsh entered the room and began approaching him. A violent struggle thereafter ensued. When it finally subsided, defendant demanded that Marsh leave his house. Marsh, however, refused, and began walking toward defendant. As he did, he told defendant: "You got your gun, use it, if you don’t, I will.” Marsh then attempted to take defendant’s gun from him, but defendant was able to "shove him off.” Undeterred, Marsh again approached defendant. This time, however, defendant responded by shooting him.

Based on this account of the events leading up to Marsh’s death, the trial court instructed the jury on the justifiable use of deadly physical force to defend oneself (see, Penal Law § 35.15), but refused to charge the jury on the justifiable use of deadly physical force to terminate the commission of a burglary (see, Penal Law § 35.20 [3]). Defendant was subsequently convicted. On appeal, however, a divided Appellate Division reversed, concluding that the trial court had erred in refusing to instruct the jury on the justifiable use of deadly physical force under section 35.20 (3). We conclude otherwise, and accordingly reverse.

Section 35.20 (3) of the Penal Law authorizes a person to use deadly physical force against another person if he or she reasonably believes that such force is necessary to terminate a burglary of his or her home (see, Penal Law § 35.20 [3]; Seventh Interim Report of Temp St Commn on Rev of Penal Law and Crim Code, 1968 NY Legis Doc No. 29, at 8-9; Legislative Mem, at 2, Bill Jacket, L 1968, ch 73; cf., Model Penal Code § 3.06 [3] [d]). The People contend that even if Marsh could "technically” be considered to have been committing a burglary when he was killed, defendant should nevertheless not be permitted to rely on section 35.20 (3) as authorizing his use of deadly physical force. Specifically, they maintain that an individual who — like defendant — invites another onto his or her premises and then actively and willingly joins in that person’s criminal conduct should not be permitted to kill that person merely because he or she does not promptly cease pursuing the criminal endeavor upon being ordered to leave the premises. We agree.

Section 35.20 (3) — as its legislative history makes clear — was intended to protect those individuals who suddenly find themselves the victim of an intrusion upon their premises by one bent on a criminal end (see, Legislative Mem, at 2, Bill Jacket, L 1968, ch 73). There is, however, nothing in that provision’s legislative history or otherwise which suggests that it was also meant to protect one who — like defendant — invites another person into his home, fully aware that such person intends to commit a crime once inside. Such an individual is no less responsible for any ensuing invasion of his or her own security than the would-be burglar, and therefore cannot claim the protections of section 35.20 (3).

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


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    In the Matter of Gissette Angela P., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided July 2, 1992

      APPEARANCES OF COUNSEL

      Carol Goldstein and Lenore Gittis for appellant.

      O. Peter Sherwood, Corporation Counsel (Lawrence A. Salvato of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. The certified question should not be answered as unnecessary.

The courts below determined that a police officer possessed a founded suspicion that criminal activity was afoot sufficient to sanction the common-law inquiry into the contents of a bulge under appellant’s coat and that appellant voluntarily consented to open her coat, thereby revealing a plastic bag containing cocaine. These determinations involve mixed questions of law and fact, and because there is evidence in the record to support the hearing court’s findings, undisturbed by the Appellate Division, our review process is at an end (see, People v Jones, 69 NY2d 853, 855; People v Harrison, 57 NY2d 470, 477-478). Accordingly, we do not reach respondent’s alternative argument that appellant could have been detained pursuant to Family Court Act § 718.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum. The certified question should not be answered as unnecessary.


text:
    The People of the State of New York, Respondent, v John Halbert, Appellant.
    Argued June 5,1992;
    decided July 2, 1992

      APPEARANCES OF COUNSEL

      Tina L. Mazza and E. Joshua Rosenkranz for appellant.

      Robert T. Johnson, District Attorney (Adrienne Brewington and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed (People v Halbert, 175 AD2d 88). We agree with the Appellate Division that in the circumstances of this case, in which the trial court allowed evidence of a relationship between the minor complainant and her male friend to be presented to the jury, the court did not err in its related discretionary evidentiary ruling precluding cross-examination of the complainant with respect to the sexual aspect of that relationship (CPL 60.42 [5]).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa.


text:
    Joel M. Aurnou, Respondent, v Leon J. Greenspan et al., Appellants, et al., Defendants.
    Submitted May 11,1992;
    decided July 2, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Gannett Co., Inc., Appellant, v W. Patrick Falvey, as Judge of the Seneca County Court, et al., Respondents.
    Submitted June 29,1992;
    decided July 2, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the issue presented is moot.


text:
    In the Matter of Gannett Co., Inc., Appellant, v John M. Regan, as Judge of the Rochester City Court, et al., Respondents.
    Submitted May 11,1992;
    decided July 2, 1992
   Motion to dismiss the appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the issue presented is moot. Cross motion for leave to appeal dismissed upon the ground that the issue presented is moot.


text:
    The People of the State of New York, Respondent, v Angelo Barnes, Appellant.
    Argued June 3,1992;
    decided July 7, 1992

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Raymond Vallejo and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not abuse its discretion in allowing a demonstration in which court officers portrayed the defendant and the victim for the limited purpose of illustrating their relative positions, according to the witness’ testimony, at the time of the shooting (see, People v Acevedo, 40 NY2d 701, 704; Uss v Town of Oyster Bay, 37 NY2d 639, 641). The prosecutor’s attempts to carry the demonstration further were curtailed by the court in response to defendant’s objections and appropriate limiting instructions were given. Under the circumstances, we agree with the courts below that no undue prejudice resulted.

Similarly, to the extent that the prosecutor misstated the law of justification or made other improper comments, the trial court’s instructions for the jury to follow only the court’s instructions on the law and its other curative instructions were sufficient to ensure defendant a fair trial.

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Juan Jose Enrique, Appellant.
    Argued June 1,1992;
    decided July 7, 1992

      APPEARANCES OF COUNSEL

      Joseph V DiBlasi for appellant.

      Robert M. Morgenthau, District Attorney (Jeanne A. Olivo and James D. Gibbons of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. We agree with the Appellate Division, for the reasons stated by Justice Sullivan (see, 165 AD2d 13), that the defendant’s Sixth Amendment rights under the United States Constitution were not abridged by the court’s ruling that defense counsel could not confer with his client during a luncheon recess. Nor do we perceive any basis for a different result under the State Constitution.

Kaye, J.

(dissenting). I disagree that this case, involving a two-hour luncheon recess during which defendant was denied all access to counsel, is controlled by Perry v Leeke (488 US 272). I would rule that the trial court abused its discretion and violated defendant’s Federal right to counsel. Moreover, the trial court’s action clearly ran afoul of the greater protections afforded by New York’s right to counsel clause (NY Const, art I, §6).

Accordingly, I would reverse the conviction and order a new trial.

Chief Judge Wachtler and Judges Simons, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.


text:
    Kevin R. Hackett, Respondent, v Milbank, Tweed, Hadley & McCloy, Appellant.
    Decided July 7, 1992

      APPEARANCES OF COUNSEL

      Russell E. Brooks for appellant.

      Gerald E. Ross for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order insofar as appealed from should be reversed, with costs, and the petition to stay arbitration denied.

This controversy over petitioner’s right to receive supplemental payments upon his withdrawal from respondent law firm should be decided in these circumstances by an arbitrator in the first instance. That is especially so given the broad arbitration clause in the parties’ partnership agreement and the existence of factual disputes between the parties, including which amendment of the agreement applies and whether the supplemental payments were intended to constitute approximation of the withdrawing partner’s share of undistributed earned income. Petitioner’s claim that an arbitrator’s award denying him benefits would be contrary to public policy is insufficient to preemptively stay arbitration and may be addressed subsequently on a motion to vacate or confirm the award, if such an award is in fact made (see, Matter of Port Wash. Union Free School Dist. v Port Wash. Teachers Assn., 45 NY2d 411, 417-418; see also, Maross Constr. v Central N. Y. Regional Transp. Auth., 66 NY2d 341, 346).

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Hancock, Jr., concur in memorandum; Judge Bellacosa taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.