text:
    [658 NE2d 209, 634 NYS2d 432]
    The People of the State of New York, Respondent, v Robert Young, Appellant.
    Decided September 19, 1995
    APPEARANCES OF COUNSEL

      Fried, Frank, Harris, Shriver & Jacobson, New York City
      (Anthony S. Yoo of counsel), Mark Gimpel and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Robert M. Raciti 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 failed to preserve for this Court’s review his argument based upon People v Bleakley (69 NY2d 490). Defendant’s remaining arguments are without merit.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


source: Caselaw Access Project

license: Public Domain

text:
    [657 NE2d 491, 633 NYS2d 470]
    The People of the State of New York, Respondent, v Blas Gutierez, Appellant.
    Decided September 19, 1995

      APPEARANCES OF COUNSEL

      Jeffrey A. Udell, New York City, Richard M. Greenberg, and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Lisa H. Blitman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered. Defendant was convicted, after a jury trial, of criminal sale of a controlled substance in the third degree. On appeal, defendant challenges the court’s closure of the trial to the public during the undercover officer’s testimony. The trial court erred in excluding defendant’s family members from the courtroom. The record indicates that the trial court’s closure of the courtroom excluding defendant’s close family members was broader than constitutionally tolerable and, thus, constituted a violation of defendant’s overriding right to a public trial (see, People v Martinez, 82 NY2d 436, 444; People v Kin Kan, 78 NY2d 54, 58; see also, Vidal v Williams, 31 F3d 67, 69). Although the undercover officer indicated that he feared his life and ongoing drug investigations would be jeopardized, he never claimed to hold those fears with respect to defendant’s wife and children and did not otherwise advance any valid ground for excluding defendant’s family during the officer’s testimony.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

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


text:
    Continental Building Company, Inc., Respondent, v Town of North Salem et al., Appellants.
    Submitted June 5, 1995;
    decided September 19, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Moshe Marigin, Appellant, v City of New York et al., Respondents.
    Submitted September 5, 1995;
    decided September 19, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Harry Rubin & Sons, Inc., Respondent, v Clay Equipment Corporation, Appellant.
    Submitted September 5, 1995;
    decided September 19, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the filed stipulation is not a valid stipulation for judgment absolute within the meaning of CPLR 5601 (c).

Judge Levine taking no part.


text:
    Linda C. Vogt, Appellant, v John D. Witmeyer et al., Respondents.
    Submitted June 12, 1995;
    decided September 19, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that portion of the Supreme Court order which denied the motion to serve a second amended complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    [658 NE2d 210, 634 NYS2d 433]
    In the Matter of Kinley W. Bowers, Jr.
    Decided September 21, 1995
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Kinley W. Bowers, Jr. is removed, effective September 15, 1995, from his office of Justice of the Philadelphia Town Court and Justice of the Philadelphia Village Court, Jefferson County, pursuant to New York Constitution, article VI, § 22 (f) and Judiciary Law § 44 (8) (b).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine. Taking no part: Judge CiparICK.


text:
    [657 NE2d 492, 633 NYS2d 471]
    Elana J. Saxe, an Infant, by Her Parents and Natural Guardians, Phyllis K. Saxe et al., Respondents, v OB/GYN Associates, P. C., et al., Appellants.
    Decided September 21, 1995

      APPEARANCES OF COUNSEL

      Martin, Clearwater & Bell, New York City (Patricia D'Alvia and Barbara D. Goldberg of counsel), for OB/GYN Associates, P. C., and others, appellants.

      Heidell, Pittoni, Murphy & Bach, P. C, New York City (Mitchell D. Frankel of counsel), for Mirta Veber, appellant.

      Kramer, Dillof, Tessel, Duffy & Moore, New York City (Norman Bard of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, plaintiffs’ motion to transfer the action to Kings County denied, and the matter remitted to Supreme Court, New York County, for further proceedings not inconsistent with this memorandum. The certified question is answered in the negative.

Where one of the parties to the action commenced in New York County is a Supreme Court Justice in that jurisdiction, the Appellate Division did not abuse its discretion in transferring the action out of New York County pursuant to CPLR 510 (2), to avoid concerns about the appearance of impropriety (see, Rothwax v Spicehandler, 161 AD2d 184; De Luca v CBS, Inc., 105 AD2d 770).

In light of the express legislative preference for actions being tried in proper counties (see, CPLR 502, 503, 510 [1]; 511 [b]), however, a court must, whenever possible, transfer an action under CPLR 510 to a county in which the action properly could have been commenced. Kings County, requested by plaintiffs, is an improper county for commencing the action under CPLR 503 (a). Therefore, the court should have transferred the action to Westchester County, the county requested by defendants, or one of the other proper alternative forums in which various defendants resided at the commencement of this action.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

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


text:
    [657 NE2d 493, 633 NYS2d 472]
    The People of the State of New York, Respondent, v Christian Germosen, Appellant.
    Decided September 21, 1995

      APPEARANCES OF COUNSEL

      Joseph A. Zayas, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Gina D'Angelica and Allen H. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The prosecutor’s examination of defendant before the Grand Jury does not warrant dismissal of the charges on the ground that defendant was deprived of a fair opportunity to testify (see, CPL 190.50 [5]; People v Karp, 158 AD2d 378, 388-389 [dissenting opn of Sullivan, J.], revd 76 NY2d 1006). Defendant was permitted to make a full narrative statement of his version of events before the prosecutor examined him. The prosecutor’s questions with respect to defendant’s statement that the Grand Jury "should check the fingerprints” were properly aimed at clarifying that defendant was not aware of any exculpatory fingerprint evidence. The prosecutor’s assertion that defendant "was taking all the responsibility for the gun” may have allowed an inference that defendant accepted blame for the incident. However, the prosecutor’s questions were directed principally at establishing that defendant was not being forced to accept sole responsibility and that the other occupants of the car were likewise appearing in court on charges arising out of the incident. Immediately after the prosecutor’s statement, defendant countered to the Grand Jury that he had been informed by a police officer that he would be forced to take responsibility if the other occupants did not "talk”. Thus, the prosecutor’s isolated statement cannot be said to have denied defendant a full and fair opportunity to testify or to have impaired the integrity of the proceedings (see, People v Gonzalez, 201 AD2d 414, 415, lv denied 83 NY2d 871 [citing People v Darby, 75 NY2d 449, 455]).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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:
    [258 NE2d 211, 634 NYS2d 433]
    The People of the State of New York, Appellant, v Bonnie Clark, Respondent.
    Decided September 21, 1995

      APPEARANCES OF COUNSEL

      Stephen F. Lungen, District Attorney of Sullivan County, Monticello, for appellant.

      Pottle, Danziger & Dobozin, Buffalo (Carl H. Dobozin 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 for the reasons stated in the memorandum of the Appellate Division (213 AD2d 946).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [657 NE2d 494, 633 NYS2d 473]
    In the Matter of Robert M. Morgenthau, as District Attorney of the County of New York, Appellant, v Ernst Rosenberger, as a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, et al., Respondents.
    Decided September 21, 1995

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), appellant pro se.

      Dennis C. Vacco, Attorney-General, New York City (Arnold D. Fleischer of counsel), for Ernst Rosenberger, respondent.

      Stillman, Friedman & Shaw, P. C., New York City (Edward M. Shaw of counsel), for Tupac Shakur, respondent.
   OPINION OF THE COURT

Memorandum.

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

The taking of an appeal is a jurisdictional prerequisite to the consideration of a CPL 460.50 application for bail pending appeal. A Judge to whom a CPL 460.50 application is made has no authority to consider such an application unless the defendant has established that an appeal was taken from the judgment or sentence. A postsentence application is void and of no effect when the prerequisite appeal has not been established. Thus, it cannot be considered an "application” within the meaning of CPL 460.50 (3).

Therefore, the defendant’s February 7, 1995 request to a Justice of the Supreme Court to set bail pending appeal to the Appellate Division, made immediately following his sentencing, was ineffective because it antedated the notice of appeal filed on February 9, 1995. Consequently, the subsequent application to a Justice of the Appellate Division was a first application under CPL 460.50 and was properly entertained.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, without costs, in a memorandum.


text:
    Avon Products, Inc., Respondent, v Sheldon H. Solow, Appellant. (And a Similar Action.)
    Submitted July 3, 1995;
    decided September 21, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the February 25, 1991 judgment confirming the arbitration award and denying appellant’s motion to vacate or modify the award and those portions of the March 11, 1994 order and June 6, 1994 judgment granting respondent’s motion for injunctive and declaratory relief and denying appellant’s motion to compel arbitration, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    Berliner Handels-und Frankfurter Bank, New York Branch, Respondent, v Vincent Coppola et al., Appellants.
    Submitted June 5, 1995;
    decided September 21, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the order of Supreme Court denying appellants’ motion for reargument or renewal, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    John A. Clifford, Appellant, v William Pierce et al., Defendants. Richard L. Farley, Nonparty Respondent.
    Submitted July 3, 1995;
    decided September 21, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Dolgoff Holophase, Inc., Appellant, v E. I. du Pont de Nemours & Company et al., Respondents.
    Submitted June 26, 1995;
    decided September 21, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s September 22, 1993 order denying appellant’s motion for leave to serve a second amended complaint and dismissed plaintiffs appeal from so much of Supreme Court’s September 22, 1993 order as denied reargument, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Glenn Gunn et al., Appellants, v Frank Palmieri et al., Respondents.
    Submitted September 11, 1995;

    decided September 21, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from a decision (see, CPLR 5512 [a]; 5601).


text:
    Brian Maginniss, Respondent, v City of New York, Respondent, and Patrick Rafferty, Appellant, et al., Defendant.
    Submitted July 31, 1995;
    decided September 21, 1995
   Motion, insofar as it seeks leave to appeal as against respondent City of New York denied; motion, insofar as it seeks leave to appeal as against respondent Maginniss dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dennis D. McGuire et al., Appellants, v Mark H. Spires et al., Respondents.
    Submitted September 18, 1995;
    decided September 21, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Charles R. Meurer, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services of the State of New York, et al., Respondents.
    Submitted July 17, 1995;
    decided September 21, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Anthony Stanzoni, Appellant, v Peter J. Lacy, as Superintendent of Bare Hill Correctional Facility, Respondent.
    Submitted July 10, 1995;
    decided September 21, 1995
   Motion, insofar as it seeks leave to appeal from an order of the Appellate Division, Second Department, ordering a hearing before Supreme Court on relator’s application for a writ of habeas corpus, dismissed upon the ground that that order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Posr A. Posr, Appellant, v Franklin Weissberg et al., Respondents.
    Submitted July 10, 1995;
    decided September 21, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Albert Prodell et al., Respondents, v State of New York, Defendant, and Town of Brookhaven, Appellant.
    Submitted September 18, 1995;
    decided September 21, 1995
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third 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:
    [658 NE2d 214, 634 NYS2d 436]
    Ernest Lionarons et al., Appellants, v General Electric Company et al., Respondents.
    Decided September 26, 1995

      APPEARANCES OF COUNSEL

      E. Stewart Jones, Troy, and W. Farley Jones for appellants.

      Michael M. Emminger, Albany, and Kris T. Jackstadt for General Electric Company and another, respondents.

      Buchyn & Buchyn, Schenectady (Steven A. Buchyn of counsel), for Robert A. Boice and others, 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 (215 AD2d 851).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    City of New York, Appellant, v State of New York, Respondent.
    Submitted July 17, 1995;
    decided September 26, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied appellant’s motion for reargument or, in the alternative, leave to appeal to this Court, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Patricia Goldsborough, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted September 18, 1995;
    decided September 26, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Hendrick Hudson Central School District, Appellant, v Joanne Falinski et al., Respondents.
    Submitted June 26, 1995;
    decided September 26, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order dismissing the complaint against respondents Porr and Mazza, denied; motion, insofar as it seeks leave to appeal from the remaining portion of the Appellate Division order, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Raymond Jemzura, Appellant, v New York State Electric and Gas et al., Respondents.
    Submitted August 28, 1995;
    decided September 26, 1995
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third 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]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Barbara Kraebel, Doing Business as Barklee Realty Company, Appellant, v New York City Department of Finance, Respondent.
    Submitted September 18, 1995;
    decided September 26, 1995
   Appeal, insofar as taken from that part of the Appellate Division order which affirmed the order of Supreme Court denying appellant’s motion to vacate or reargue the prior Supreme Court judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Robert L. Schulz, Appellant, v Sheldon Silver et al., Respondents.
    Submitted September 18, 1995;
    decided September 26, 1995
   Appeal, insofar as taken from that portion of the Appellate Division order which affirmed Supreme Court’s order denying appellant’s motion for a preliminary injunction, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order appealed from does not finally determine the action/proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Dorothy Silberman, Respondent, v Herbert Silberman, Appellant.
    Submitted September 18, 1995;
    decided September 26, 1995
   Appeal, insofar as taken from that portion of the Appellate Division order which affirmed the denial of appellant’s cross motion for sanctions, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Y. K., Respondent. Commissioner of Social Services of the City of New York, Appellant.
    Submitted August 28, 1995;
    decided September 26, 1995
   Motion to dismiss appeal denied.


text:
    In the Matter of Robert L. Schulz et al., Appellants, v New York State Board of Elections et al., Respondents.
    Submitted October 4, 1995;
    decided October 6, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a preference dismissed as academic.


text:
    [657 NE2d 495, 633 NYS2d 474]
    In the Matter of Mountain Meadows Campers Association, Inc., Appellant, v Ronald A. Pilkington et al., Respondents.
    Argued September 13, 1995;
    decided October 19, 1995
    APPEARANCES OF COUNSEL

      Hawthorne, Markarian, Siegel, Manz & Burns, Buffalo (Edward J. Markarian of counsel), for appellant.

      DiFilippo, Bennett & Daumen, Holland (Karla M. Corpus and Ronald P. Bennett of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner is the owner of 15 parcels of land in Holland, New York, which have been developed as a recreational park containing small lakes, campsites, hiking trails, playgrounds, roadways and other facilities. The deed to each campsite contains an easement entitling the owner to use the common areas and facilities. The membership of the Association consists of all parties owning campsites in the park.

The Association sought a reduction in the assessment of its real property for the tax year 1992. It claimed that its property is of only nominal value because burdened by easements in favor of the individual campsite owners. Moreover, it asserted that those owners’ assessments had been increased to reflect the value of the owners’ rights in the common areas and that by assessing the Association property at full value, the respondents have engaged in double taxation. It sought relief under the rule stated in People ex rel. Poor v O’Donnel (139 App Div 83, affd 200 NY 518).

Before trial the Association and respondents stipulated that petitioner’s land unencumbered had a value of $130,500 (the present assessment) but that if the restrictions of record left the 15 parcels with only nominal value, the market value of the property was $10 per parcel. This was the only evidence of the value of the Association property submitted. There was no evidence of enhanced assessments to the individual campsites because of the easements. The issue before the court was whether full-value or nominal value should be used to assess the Association’s property.

The court concluded that the property had more than nominal value, the encumbrances notwithstanding, because the Association retained certain rights to the common areas and facilities. Confronted with a choice of either $130,500 or $10 per parcel and no evidence from which it could adjust these values, the court was constrained to adopt the full value of $130,500. Its findings were supported by the record and affirmed by the Appellate Division. We are bound by these findings and the order should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    [657 NE2d 496, 633 NYS2d 475]
    The People of the State of New York, Respondent, v David G. Longshore, Appellant.
    Argued September 19, 1995;
    decided October 19, 1995
    APPEARANCES OF COUNSEL

      Bonnie Burgio, Watertown, for appellant.

      Richard V. Manning, District Attorney of St. Lawrence County, Canton (Donald S. Thomson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be reversed and the informations dismissed.

Defendant has been convicted of five counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [4] [possession of a rifle or shotgun by one having a prior conviction of a felony or serious offense]). He raises several points but the dispositive issue on this appeal is whether the evidence was legally sufficient in the absence of proof that the weapons were operable. Concededly, the People did not establish operability. They contend the statute does not require them to do so.

Although the statute is silent on the point, it is now accepted that to establish criminal possession of a handgun the People must prove that the weapon is operable (see, Penal Law § 265.01 [1]; People v Grillo, 15 AD2d 502, affd 11 NY2d 841; People v Lugo, 161 AD2d 122; People v Actie, 99 AD2d 815; People v Donaldson, 49 AD2d 1004, 1005; and see, People v Saunders, 85 NY2d 339, 342; People v Cavines, 70 NY2d 882, 883). It appears that the courts have assumed the same rule applies to criminal possession of rifles and shotguns under Penal Law § 265.01 (4) (see, Matter of Jermaine M., 188 AD2d 336, 337; People v Padron, 118 AD2d 599; People ex rel. Walker v Hammock, 78 AD2d 369; see also, People v Walston, 147 Misc 2d 679). Requiring proof of operability for the two offenses is reasonable because there is no functional difference between a handgun and a rifle or shotgun, and no principled reason to treat them differently in this respect for purposes of the criminal possession statutes. Both are capable of inflicting serious injury or death only if operable and both are appropriately regulated under those circumstances. The additional element in subdivision (4), a prior felony or serious offense, is not a limitation substituting for operability but, because rifles and shotguns are widely used by hunters and target shooters, it is a provision narrowing the class of offenders to those with a prior serious criminal history who reasonably present a public danger. Accordingly, we hold that to establish a violation of Penal Law § 265.01 (4), the People must establish that the defendant possessed an operable rifle or shotgun after having previously been convicted of a felony.

Respondent’s reliance on People v Shaffer (66 NY2d 663) is misplaced. That case involved a revolver, not a rifle or shotgun, and the court’s inquiry addressed the sufficiency of the proof that the revolver was a "deadly weapon”, i.e., a weapon that was both operable and loaded with live ammunition (see, Penal Law § 10.00 [12]). The focus of the analysis was on whether the ammunition was live; the sufficiency of the proof of the revolver’s operability was not at issue.

In view of our disposition, we do not address defendant’s remaining points.

Chief Judge Kaye and Judges Simons, Titone, Bellacos a, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [657 NE2d 497, 633 NYS2d 476]
    The People of the State of New York, Respondent, v Robert Washington, Appellant.
    Argued September 19, 1995;
    decided October 19, 1995

      APPEARANCES OF COUNSEL

      Richard A. Mastrocola, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Stuart P. Levy, Joseph N Ferdenzi and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

This appeal presents a question left open in People v Singleton (72 NY2d 845, 847): whether service by the prevailing party is necessary under CPL 460.10 in order to commence the time period for the other party to take an appeal. We conclude that it is.

Here, a Grand Jury indicted defendant for the crimes of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). The trial court granted defendant’s motion to dismiss on the ground that the evidence before the Grand Jury was legally insufficient since no evidence was presented concerning defendant’s possession or lack of possession of a license. The Appellate Division reversed, concluding that evidence concerning a license was unnecessary.

The sole issue before us is the timeliness of the People’s appeal to the Appellate Division. The People filed their appeal on March 1, 1993, more than 30 days after the trial court’s order of January 21, 1993. CPL 460.10 (1) (a) states that "[a] party seeking to appeal from * * * an order of a criminal court, not included in a judgment, must * * * within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court * * * in which such order was entered a written notice of appeal”. We construe this provision to require prevailing party service in order to commence the time for filing a notice of appeal. (See, People v Wooley, 40 NY2d 699; Dobess Realty Corp. v City of New York, 79 AD2d 348, 352, appeal dismissed 53 NY2d 1054.) Here no evidence was presented as to the date on which the defendant, the prevailing party in the trial court, served the order on the People and, in fact, no evidence was presented that there was such service.

Since there was no indication of service, the People’s notice of appeal was timely.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    In the Matter of Raymond Dembowski, Respondent, v Louis La Polla, as Mayor and Public Safety Commissioner for the City of Utica, et al., Appellants.
    Submitted July 14, 1995;
    decided October 19, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Arthur H. Kroll, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted October 2, 1995;
    decided October 19, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Mid-State Precast Systems, Inc., Respondent, v Corbetta Construction Company, Inc., Appellant, et al., Defendant. (And a Third-Party Action.)
    Submitted July 17, 1995;
    decided October 19, 1995
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Appellant, v Benedetto Schepis, Respondent.
    Decided October 19, 1995
   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]). Although the Appellate Division stated that its reversal was on the law, it was based on a claimed error which was not preserved and does not present a question of law for review by this Court (People v Dercole, 52 NY2d 956, 957).


text:
    [659 NE2d 760, 635 NYS2d 938]
    In the Matter of Syracuse Community Health Center, Respondent, v Wendi A. M., Complainant, and New York State Division of Human Rights, Appellant.
    Submitted September 20, 1995;
    decided October 24, 1995

      APPEARANCES OF COUNSEL

      Michael K. Swirsky, New York City, and Lawrence Kunin for appellant.

      Devorsetz, Stinziano, Gilberti, Heintz & Smith, P. C., Syracuse (Frank A. Bersani, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs to petitioner-respondent Syracuse Community Health Center as against respondent-appellant New York State Division of Human Rights (see, Matter of North Shore Univ. Hosp. v Rosa, 86 NY2d 413 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    [658 NE2d 1037, 635 NYS2d 164]
    Mark Dugan, Individually and as Representative of the Estate of Kimberly D. Dugan, Deceased, Appellant, v Schering Corporation et al., Respondents.
    Argued September 13, 1995;
    decided October 24, 1995
    APPEARANCES OF COUNSEL

      Ronald R. Benjamin, Binghamton, for appellant.

      Henry R. Simon, White Plains (Linda Trummer-Napolitano of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs decedent was born in Charlotte, North Carolina, in 1956. Decedent’s mother took dienestrol, a synthetic estrogen drug, while she was pregnant with decedent. In 1976, decedent was diagnosed with clear cell adenocarcinoma of the cervix and sustained a radical hysterectomy. No lawsuit was commenced at that time. Decedent moved to New York shortly after the surgery and remained disease-free until 1990, when it was discovered that she had clear cell adenocarcinoma metastatic from the primary cervical cancer, which caused her death in January 1991. Plaintiff husband, individually and as representative of decedent’s estate, commenced this action against defendants manufacturers of dienestrol.

The cause of action accrued in North Carolina, where decedent was exposed in útero to dienestrol in 1955 and diagnosed with cancer related to that exposure in 1976 (see, Fleishman v Lilly & Co., 62 NY2d 888). Because decedent was not a resident of New York at the time the cause of action accrued, CPLR 202, the so-called “borrowing” statute, requires dismissal of this suit unless it is timely under the Statute of Limitations of both New York and North Carolina (see, Antone v General Motors Corp. (64 NY2d 20, 28). The Appellate Division correctly concluded that this action, which was commenced in 1992, is time-barred under both New York and North Carolina law. Plaintiff’s assertion that the cancer diagnosed in 1990 was a separate injury for Statute of Limitations purposes was properly rejected (see, Consorti v Owens-Coming Fiberglas Corp., 86 NY2d 449 [decided today]).

Plaintiff’s remaining contentions were not preserved for review.

Chief Judge Kaye and Judges Simons, Titone, Levine and Ciparick concur; Judges Bellacosa and Smith taking no part.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Joseph M. Dunham, Appellant, v New York State Division of Parole, Respondent.
    Submitted July 31, 1995;
    decided October 24, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the issues presented have become moot. Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of Clarence D. McGann, Also Known as John French, Appellant, v Harold Silverman, Respondent.
    Submitted July 24, 1995;
    decided October 24, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of May Newburger et al., Appellants, v Joseph Cairo et al., Respondents.
    Submitted October 18, 1995;
    decided October 24, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Susan Nickerson, Appellant, v Volt Delta Resources, Inc., et al., Respondents.
    Submitted July 10, 1995;
    decided October 24, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for 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 for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Appellant, v Joseph Jackson, Respondent.
    Submitted October 2, 1995;
    decided October 24, 1995
   Motion to dismiss the appeal herein granted and the appeal dismissed as moot.


text:
    Katherine Venizelos, Respondent, v Nikitis Venizelos, Appellant.
    Submitted August 7, 1995;
    decided October 24, 1995
   Motion for leave to appeal dismissed, with $100 costs and necessary reproduction disbursements 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 incidental relief denied.


text:
    In the Matter of the Estate of Cecilia Zielinski, Deceased. Barbara Moczulski, Appellant; Eugene J. Zielinski, Respondent. Eugene J. Zielinski et al., Respondents, v Barbara Moczulski, Appellant.
    Submitted July 17, 1995;
    decided October 24, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    [658 NE2d 1038, 635 NYS2d 165]
    The People of the State of New York, Appellant, v Gladys Colon, Respondent.
    Argued September 21, 1995;
    decided October 26, 1995

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Dafna Yoran and Alan Gadlin of counsel), for appellant.

      Adrienne Hale, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Based on charges that she sold methadone to an undercover police officer, defendant was indicted for fourth degree criminal sale of a controlled substance and fifth degree criminal possession of a controlled substance. Defendant moved to dismiss the indictment in the interest of justice pursuant to CPL 210.40 (1). In support of this motion, the 39-year-old defendant established that she had an I.Q. of 64, was "mildly retarded,” had a metal plate in her head as the result of being thrown from a fifth-floor fire escape as a child and had been diagnosed with organic brain damage. She was illiterate, could not count past 39 and did not know the number of days in a week or more than one past President of the United States. At no point was a competency determination made in this case (compare, People v Schaffer, 86 NY2d 460 [decided today]). At the time of her arrest, defendant was on probation due to a prior drug sale conviction, and as a result of her violation of probation she served one year in prison.

The People urged in opposition to defendant’s CPL 210.40 motion that she had failed to show compelling circumstances warranting dismissal of the charges. The trial court granted defendant’s motion, weighing the statutory factors enumerated in CPL 210.40 (1) in a written decision. In particular, the court acknowledged the seriousness and circumstances of the offense, the strong evidence of guilt, and the absence of misconduct by law enforcement (see, CPL 210.40 [1] [a], [c], [e]). It found that, notwithstanding the general harm to society resulting from the drug trade, no specific additional harm ensued from defendant’s sale of methadone to the undercover officer (see, CPL 210.40 [1] [b]). Stressing defendant’s personal history, the court concluded that further incarceration would serve no useful purpose. Finally, the court determined that defendant’s release would not endanger society, noting that defendant would still remain under supervision pursuant to her violation of probation (see, CPL 210.40 [1] [d], [f], [g], [h]). The Appellate Division affirmed the dismissal, and a dissenting Justice granted the People leave to appeal to this Court (209 AD2d 254).

This Court’s review of a dismissal of an indictment pursuant to CPL 210.40 (1) is limited to the question whether the dismissal was an abuse of discretion as a matter of law (People v Herman L., 83 NY2d 958, 959-960; People v Rickert, 58 NY2d 122, 128). The trial court here expressly considered the factors set forth in CPL 210.40 (1). Moreover, inasmuch as defendant’s mental retardation was relevant to "the history, character and condition of the defendant” (see, CPL 210.40 [1] [d]), it was not improper for the trial court to deem this a factor among others supporting dismissal. The court did not summarily dismiss the indictment because defendant was mentally retarded, but rather weighed the various statutory criteria. In these circumstances, the court did not abuse its discretion as a matter of law in dismissing the indictment (People v Henriquez, 68 NY2d 679, 681).

Chief Judge Kaye and Judges Simons, Titone, Bellacos a, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [658 NE2d 1040, 635 NYS2d 167]
    The People of the State of New York, Respondent, v David Scott, Appellant.
    Decided October 26, 1995
    APPEARANCES OF COUNSEL

      Bernetta A. Bourcy, Canandaigua, for appellant.

      R. Michael Tantillo, District Attorney of Ontario County, Canandaigua (Brian David Dennis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The Appellate Division’s finding that defendant’s confession was voluntary, a mixed question of law and fact, is supported by evidence in the record and therefore beyond this Court’s further review (see, People v Harrison, 57 NY2d 470, 477; People v Johnson, 40 NY2d 882, 883). The trial court did not abuse its discretion in permitting the four-year-old victim to give unsworn testimony after having conducted an inquiry outside the presence of the jury and determining that the child understood the difference between a truth and a lie and was competent to testify (see, CPL 60.20 [2]; People v Parks, 41 NY2d 36; People v Nisoff, 36 NY2d 560, 566).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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:
    [658 NE2d 1040, 635 NYS2d 167]
    Robert Schultz, Appellant, et al., Plaintiff, v Kathlyn Von Voight, Respondent.
    Decided October 26, 1995

      APPEARANCES OF COUNSEL

      Perry Gary Fish, Brooklyn for appellant.

      Richard J. Inzerillo, Smithtown, and Dennis M. Brown for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant presented sufficient evidence to demonstrate plaintiff did not sustain serious injury within the meaning of Insurance Law § 5102 (d) as a matter of law. Plaintiffs evidence proffered in opposition to defendant’s motion for summary judgment fails to establish a triable issue of fact concerning the permanency of the injuries alleged to constitute serious injury within the scope of Insurance Law § 5102 (d). Plaintiffs sole reliance upon allegations contained in his pleadings and bill of particulars to establish the permanent nature of his injuries is insufficient to defeat the prima facie showing made by defendant (see, Indig v Finkelstein, 23 NY2d 728, 729).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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, in a memorandum.


text:
    In the Matter of the Estate of Beatrice C. Bauer, Conservatee. Herbert C. Silberman, Appellant; Eileen A. Curley et al., Respondents.
    Submitted October 10, 1995;
    decided October 26, 1995
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the order awarding attorneys’ fees to the estate of Goidel, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that part of the order appealed from does not directly involve a substantial constitutional question; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Elizabeth Denoso, Respondent, v Paul I. Freedman, Appellant.
    Submitted August 21, 1995;
    decided October 26, 1995
   Motion for leave to appeal dismissed upon the ground that this Court does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Term of the Supreme Court (NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Edwin L., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted August 7, 1995;
    decided October 26, 1995
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see, CPLR 5601 [b] [1]).


text:
    In the Matter of Firemen’s Fund Insurance Company of Newark, Appellant, v John Hopkins, Jr., Respondent.
    Submitted October 16, 1995;
    decided October 26, 1995
   Motion to dismiss appeal denied.


text:
    J.E. Horan Duffy Realty, Inc., et al., Respondents, v Kenneth Brighton, Appellant and Third-Party Plaintiff, et al., Third-Party Defendants.
    Submitted October 10, 1995;
    decided October 26, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeals lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Joseph A. Kaplan, Appellant, v Jerald Werlin, Respondent.
    Submitted October 16,1995;
    decided October 26, 1995
   Appeal, insofar as taken from that portion of the Appellate Division order that dismissed petitioner’s appeal from that part of Supreme Court’s order dated June 14, 1993 denying petitioner’s motion to annul, cancel or rescind the hearing to ascertain damages and affirmed that portion of Supreme Court’s June 14, 1993 order denying petitioner’s motion to correct the judgment except for the awarding of interest, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Catherine Megna, Appellant, v Becton Dickinson & Company, Respondent.
    Submitted August 14, 1995;
    decided October 26, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal, etc., denied.


text:
    In the Matter of David Proctor, Appellant, v George J. Bartlett, as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted August 14, 1995;
    decided October 26, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Oksana Stasyszn, Appellant, v Sutton East Associates et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted July 31, 1995;
    decided October 26, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed plaintiff’s appeal from that part of Supreme Court’s order that denied her motion to amend the judgment, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Ciparick taking no part.


text:
    [658 NE2d 1041, 635 NYS2d 168]
    The People of the State of New York, Respondent, v Carlos Santos, Appellant.
    Decided October 31, 1995

      APPEARANCES OF COUNSEL

      Susan Epstein, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Robert L. Moore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issue presented on appeal is whether a defendant’s general motion to dismiss for insufficiency after the People have rested in a Bench trial raises a question of law. This Court has held that a specific objection is required to preserve sufficiency of the evidence claims for appellate review in jury trials (People v Gray, 86 NY2d 10; see, People v Bynum, 70 NY2d 858). There is no material difference between jury and nonjury trials in this respect and no practical reason why the Gray-Bynum rule should not apply to both Bench and jury trials. To the extent our holding conflicts with People v Nixon (248 NY 182), that decision is overruled.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

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 Herbert McMillian, Appellant, v Comptroller of the City of New York et al., Respondents.
    Submitted July 31, 1995;
    decided October 31, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see, CPLR 5601). Motion for poor person relief, etc., dismissed as academic.


author: Smith, J.

text:
    [658 NE2d 1042, 635 NYS2d 169]
    In the Matter of Jaclyn P. and Another. Nassau County Department of Social Services, Respondent; Robert P., Appellant.
    Argued September 14, 1995;
    decided November 1, 1995
    APPEARANCES OF COUNSEL

      Schapiro & Reich, Lindenhurst (Perry S. Reich and Steven M. Schapiro of counsel), for appellant.

      Owen B. Walsh, County Attorney of Nassau County, Mineola
      (Bernadine M. Koch and Marilyn L. Olshansky of counsel), for respondent.

      Kenneth J. Munnelly, Delmar, Law Guardian.

      Barbara H. Dildine, New York City, and Jane M. Spinak for Legal Aid Society, Juvenile Rights Division, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

In this child protective proceeding, petitioner Department of Social Services commenced proceedings against respondent father alleging that he had sexually abused and neglected his two young daughters, Melissa and Jaclyn. At a hearing before Family Court, the children’s mother testified that her daughter Melissa had described repeated incidents of respondent’s abuse of both children. Several medical doctors and mental health professionals who had examined one or more of the family members testified that there were no physical signs of abuse and that they were unable to confirm or refute the allegation that Melissa had been abused by her father.

The "validation” testimony (see, Matter of Nicole V., 71 NY2d 112) was provided by Yael Layish, a certified social worker who had interviewed Melissa extensively, using anatomically correct dolls and a technique called the "Sue White protocol.” Layish ultimately obtained detailed descriptions from Melissa of incidents of abuse that had been directed against her and her sister. Based on her professional judgment, Layish concluded that these descriptions were accurate and reliable.

Respondent testified on his own behalf and denied sexually abusing his daughters. His mother, who had supervised the children’s visits with their father, testified that Melissa never complained to her of any problems with respondent. A psychologist and family therapist hired by respondent testified, from two observations of the children and their father, that the allegations of abuse were unfounded.

Family Court dismissed the abuse and neglect petition, declaring simply that "the evidence was absolutely even.” On appeal, however, Family Court’s order was reversed by the Appellate Division which, after evaluating the testimony of each witness (179 AD2d 646), concluded that Layish’s testimany, along with the other evidence, provided a sufficient ground for a finding of abuse. The court found Layish’s testimony "highly reliable” and respondent’s evidence "unpersuasive” (179 AD2d, at 651, 652), and determined that the evidence preponderated in favor of the presentment agency (see, Family Ct Act § 1046; Matter of Tammie Z., 66 NY2d 1, 3). After a dispositional hearing, respondent took the present appeal by permission of this Court.

On the central legal question presented by this appeal, we conclude that the weight of the evidence more closely comports with the Appellate Division’s determination (see, CPLR 5501 [b]; see also, Matter of Shelia G., 61 NY2d 368, 386; Matter of Hime Y., 54 NY2d 282, 286). Layish’s testimony corroborated the child’s out-of-court statements of abuse and, along with the other evidence presented, provided sufficient support for a finding of abuse against respondent, even though the acts charged by their nature did not result in physical injury such as that found in Nicole V. Respondent’s remaining contentions are either without merit or unpreserved.

Smith, J.

(dissenting). Because I believe the majority has not adequately addressed the issues raised in this proceeding, I dissent.

The Nassau County Department of Social Services commenced this child protective proceeding alleging that appellant, Robert P., sexually abused and neglected his two daughters, Jaclyn P. (age 2 at the time of the incidents alleged here) and Melissa P. (age 3 at the time of the incidents alleged here). A preliminary evaluation was conducted of Melissa by Yael Layish, a certified social worker. After three visits, Layish was unable to conclude that Melissa was abused. Layish continued as Melissa’s therapist and after approximately seven or eight visits following the initial evaluation, Melissa stated that she had been sexually abused by her father.

The first issue raised by the appellant concerns the qualifications of the expert. Appellant contends that the qualificatians of Layish to give expert corroborative testimony were never established. Specifically, the appellant argued that Layish could give testimony about Melissa’s out-of-court statements but was not qualified to give an opinion as to whether or not the child had been sexually abused, in part, because she was a social worker and not a psychiatrist or psychologist. The Family Court ruled only "that she is an expert in the area of sex — child sexual abuse”. It did not specifically address the issue of her expertise in a case involving corroboration of alleged sexual abuse where there were no physical findings of sexual abuse.

This case is different from that of Matter of Nicole V. (123 AD2d 97, affd 71 NY2d 121). There, the expert’s qualifications to give corroborative, opinion testimony were not challenged and she "was qualified, without objection, as an expert in counseling sexually abused children” (123 AD2d, at 99). This Court found that the out-of-court statements of the child, Nicole V., were corroborated both by the testimony of the expert and by physical evidence. Where, as here, an expert’s qualifications are challenged, the appropriate course is for the expert’s prior contact with similarly situated children to be considered. In this case such testimony should include the expert’s prior treatment of children of similar age, alleged to have been sexually abused, where there was no physical evidence of sexual abuse. Additionally, testimony should include the expert’s level of specialized training, the procedures utilized and the rationale for using them. Knowledge of methodologies generally accepted in the field is also relevant.

The second issue here involves the procedures used by an expert to determine whether or not a child has been sexually abused. Here appellant challenges the use of dolls by the expert in trying to determine if the child Melissa had been sexually abused. The use of the dolls in this case was challenged in the cross-examination of Layish when the appellant brought out that only the genitals of the dolls used were lifelike while the other features of the body, such as nose, eyes and ears, were painted on the dolls, and there were no fingers or toes. The doll procedure was also challenged in the testimony of a psychologist called by the appellant, Dr. Monty Weinstein, who was specifically asked about, and who challenged, the procedures used by Layish with respect to anatomical dolls. In his summation in the Family Court, the appellant again raised the issue of the use of dolls by Layish. One of the appellant’s points in his brief submitted to the Appellate Division was, "The use of anatomical dolls is not a reliable indicator of sex abuse.” In this Court the appellant has once again raised the issue of the improper use of dolls by Layish.

The literature indicates that the use of dolls with pronounced genitalia may or may not influence a child’s reaction to the dolls and may affect the credibility of the determination that a child has been abused. For these and other reasons, some courts do not permit the use of anatomical dolls in determining sexual abuse. Here, there was no evidence of the acceptance or nonacceptance by the scientific community of the use of dolls in determining sexual abuse of children. The use of these dolls in the determination of sexual abuse is a controversial subject which has been clearly raised in this case and requires this Court’s approval or disapproval after it appropriately weighs the opinions of the scientific community.

For these reasons, I would reverse the order of the Appellate Division and require a reopened hearing at which these issues are specifically addressed.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur; Judge Smith dissents and votes to reverse in an opinion.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.

       Contrary to the dissent, the trial court found Layish qualified as an expert in "child sexual abuse” as well as qualified to corroborate Melissa’s out-of-court statements. The Appellate Division affirmed and we find no error of law. Moreover, in that no objection was made to Layish’s testimony regarding her use of anatomically correct dolls, we cannot and do not pass on that technique. The legal arguments now raised by the dissent and by appellant were not presented at the trial level.

      . See, Levy, Using "Scientific” Testimony to Prove Child Sexual Abuse, 23 Fam LQ 383; Newman, Assessing the Quality of Expert Testimony in Cases Involving Children, 22 J Psychiatry & L 181, 198.

      . Matter of Amber B., 191 Cal App 3d 682, 236 Cal Rptr 623 (1987); Matter of Christie D., 206 Cal App 3d 469, 253 Cal Rptr 619 (1988).


text:
    Francesco Brugnano et al., Appellants, v Merrill Lynch & Co., Inc., et al., Respondents. Olympia & York Tower B Company et al., Third-Party Plaintiffs-Respondents, v Forest Electric Corp., Third-Party Defendant-Respondent. JWP Forest Electric Corp., Fourth-Party Plaintiff-Respondent, v O & Y WFC Tower A Company et al., Fourth-Party Defendants-Respondents.
    Submitted July 24, 1995;
    decided November 1, 1995
   Motion, insofar as it seeks leave to appeál from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied plaintiffs’ motion to amend their bill of particulars, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Alice Clissuras, Appellant, v Concord Village Owners, Inc., et al., Respondents.
    Submitted July 24, 1995;
    decided November 1, 1995
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that denied plaintiff’s motion to vacate four decisions and orders of that Court and denied plaintiff’s motion for oral argument of a motion to vacate, dismissed, without costs, upon the ground that that portion of the order appealed from does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from that part of the Appellate Division order that denied defendants’ cross motion for sanctions, dismissed, without costs, upon the ground that as to that part of the order movant is not a party aggrieved (see, CPLR 5511). Motion for reconsideration of this Court’s June 15, 1995 order dismissing the appeal denied. [See, 85 NY2d 1028.]


text:
    Linus Guillory et al., Respondents, v Nautilus Real Estate, Inc., Defendant and Third-Party Plaintiff-Respondent. Coyne Electrical Contractors, Inc., Third-Party Defendant-Appellant.
    Submitted September 11, 1995;
    decided November 1, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Linus Guillory et al., Respondents, v Nautilus Real Estate, Inc., Defendant and Third-Party Plaintiff-Respondent. Coyne Electrical Contractors, Inc., Third-Party Defendant-Respondent.
    Submitted August 21, 1995;
    decided November 1, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Elisabeth Monaco, Appellant, v New York University Medical Center, Respondent, et al., Defendants.
    Submitted August 7, 1995;
    decided November 1, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied plaintiffs motion to amend her complaint, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Patrick George, Appellant, v Warden, Brooklyn House of Detention for Men, Respondent.
    Submitted October 10, 1995;
    decided November 1, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Jeffrey S. Silverman, Respondent, v J. Shelby Bryan, Appellant.
    Submitted August 14, 1995;
    decided November 1, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s determination denying defendant’s motion for permission to amend his answer, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Helen H. Young, Respondent, v Ray F. Scully et al., Appellants.
    Submitted September 25, 1995;
    decided November 1, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Santo D’Agostino, Appellant, v Victor Chersevani et al., Respondents.
    Submitted August 21, 1995;
    decided November 2, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order dated October 8, 1993 denying plaintiffs motion to vacate and dismissed plaintiffs appeal from that portion of Supreme Court’s March 28, 1994 order denying plaintiffs motion for reargument, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Anna M. Nicit, Respondent, v John J. Nicit, Appellant.
    Submitted August 21, 1995;
    decided November 2, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Christopher Ocera, Appellant, v Joseph Zito et al., Defendants, and Mr. Natural, Inc., Respondent. (And a Third-Party Action.)
    Submitted August 21, 1995;

    decided November 2, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying plaintiff’s motion to strike defendant Mr. Natural’s answer, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York ex rel. Michael D’Acosta, Appellant, v Wayne Barkley, as Superintendent of Riverview Correctional Facility, Respondent.
    Submitted September 11, 1995;
    decided November 2, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


author: Per Curiam.

text:
    [660 NE2d 1104, 637 NYS2d 325]
    In the Matter of Lorraine Backal, a Judge of the New York City Civil Court, Bronx County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Argued October 26,1995;
    decided November 30, 1995

      POINTS OF COUNSEL

      Michael Kennedy, New York City, for petitioner.
    I. Section 47 of the Judiciary Law is unconstitutional and thus may not be used to remove petitioner, a former Judge who has already resigned, from office. (Matter of Krabbe, 208 Misc 197; Rotunno v City of Rochester, 120 AD2d 160, 71 NY2d 995; Matter of Beer Garden v New York State Liq. Auth., 79 NY2d 266; Matter of Fink v Cole, 302 NY 216; Carter v Carter Coal Co., 298 US 238; American Historical Socy. v Glenn, 248 NY 445; Matter of Richardson, 247 NY 401; Cuomo v Long Is. Light. Co., 71 NY2d 349; Matter of Klein [Larner], 309 NY 474.) II. The Federal Government’s investigation of petitioner was unlawful and the Commission on Judicial Conduct’s removal was in violation of petitioner’s civil and constitutional rights. (People v Benitez, 76 AD2d 196; People v Stepps, 31 AD2d 59; Sorrells v United States, 287 US 435; Sherman v United States, 356 US 369; Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Sims, 61 NY2d 349, 62 NY2d 943; Matter of Greenfield, 76 NY2d 293; Matter of Kelso, 61 NY2d 82.) III. The Federal Government violated the 10th Amendment to the United States Constitution by attempting to use a State Judge as a Federal agent against another State Judge. (Taylor & Marshall v Beckham [No. 1], 178 US 548; Coyle v Oklahoma, 221 US 559; United States v Bowman, 636 F2d 1003; James v Bowman, 190 US 127; Matter of Bradley v School Bd., 462 F2d 1058; Wilson v Oklahoma City Council, 347 F Supp 306; New York v United States, 505 US 144; Tafflin v Levitt, 493 US 455; State of Texas v United States, 730 F2d 339; Gregory v Ashcroft, 501 US 452.) IV. The Commission has failed to prove that petitioner engaged in judicial misconduct or judicial misconduct warranting removal. (Matter of Reeves, 63 NY2d 105; Friedman v State of New York, 24 NY2d 528, 397 US 317; Matter of Steinberg, 51 NY2d 74; Matter of Mazzei, 81 NY2d 568; Matter of Shilling, 51 NY2d 397; Matter of Sims, 61 NY2d 349.)

      Gerald Stern, New York City, and Jean M. Savanyu for respondent.
    I. Petitioner engaged in serious misconduct which warrants removal from office. (Matter of Lonschein, 50 NY2d 569; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465; Matter of Steinberg, 51 NY2d 74; Matter of Mazzei, 81 NY2d 568; Matter of Shilling, 51 NY2d 397; Matter of Levine, 74 NY2d 294; Matter of Gelfand, 70 NY2d 211.) II. Petitioner’s resignation did not bar the Commission from rendering a determination of removal from office, (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386; Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807; Matter of Bailey, 67 NY2d 61; Ginsberg v Purcell, 51 NY2d 272; Pfingst v State of New York, 57 AD2d 163; Matter of Scacchetti v State Commn. on Judicial Conduct, 56 NY2d 980.) III. The Federal Government’s investigation has no bearing on petitioner’s removal from office. (People v Dieppa, 176 AD2d 1076, 79 NY2d 855; United States v White, 401 US 745; Lopez v United States, 373 US 427; People v Stepps, 31 AD2d 59; Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807.)
   OPINION OF THE COURT

Per Curiam.

Petitioner, a Civil Court Judge charged with judicial misconduct, resigned from office instead of answering the complaint filed against her. The charges stem from petitioner’s statements to and financial dealings with a third party who was engaged in drug-dealing and money-laundering schemes, and her failure to report a cash gift of $1,500 from that party. Petitioner contends that the Constitution’s grant of authority to the Commission on Judicial Conduct to remove "judges” applies only to those sitting at the time the penalty is imposed, thereby rendering Judiciary Law § 47, which permits the Commission to exercise disciplinary jurisdiction over resigned Judges, unconstitutional. We reject petitioner’s constitutional challenge and conclude that the record fully supports respondent Commission’s determination that petitioner engaged in serious judicial misconduct warranting removal.

Petitioner Lorraine Backal became a Civil Court Judge of the City of New York, Bronx County, on January 1, 1989. The charges against her are, in large part, based on transcripts of conversations between petitioner and Selwyn Wilson, her former driver. These conversations took place in petitioner’s home on three dates in late 1990 and were secretly recorded by Wilson, who was acting as an FBI informant.

During the subject conversations, petitioner told Wilson that he was being sought by the FBI for questioning, that she would advise the FBI, if asked, that she does not know his whereabouts, that she would destroy her telephone book records pertaining to him, and that he should give vague and untruthful answers to FBI questions about information he learned during his tenure as petitioner’s driver. On the tapes, Wilson told petitioner that he was waiting for a shipment of 300 kilos of cocaine and asked petitioner for assistance and advice in "laundering” $700,000 in funds. Petitioner advised Wilson to hide the cash in a "tin box,” to "lay low” until the FBI investigation was over and to tell the FBI, if questioned about his acquisition of such a large amount of cash, that he had always saved money in a shoe box. Petitioner also agreed to safeguard $10,000 in cash for Wilson in her home. Upon returning the money to Wilson, petitioner accepted $1,500 as a gift. Petitioner failed to report this gift to the clerk of her court or to include it on her 1990 financial disclosure statement as required by the Judiciary Law and various other Rules and Codes (see, Judiciary Law § 211; Rules of Chief Administrator of Courts [22 NYCRR] § 100.5 [c] [3] [iii]; § 100.6 [c]; Code of Judicial Conduct, canon 5 [C] [4] [c]; 6 [C]; Rules of Chief Judge [22 NYCRR] § 40.2).

Based on all of the foregoing conduct, the Commission on Judicial Conduct charged petitioner on October 24, 1994 with failing to observe high standards of conduct so as to preserve the integrity and impartiality of the judiciary in violation of section .100.1 of the Rules of the Chief Administrator of the Courts (the Rules) and canon 1 of the Code of Judicial Conduct (the Code), and failing to avoid impropriety and the appearance of impropriety and failing to conduct herself in a manner designed to preserve and promote public confidence in the integrity and impartiality of the judiciary, in violation of section 100.2 of the Rules and canon 2 of the Code. Petitioner was also charged with engaging in conduct prejudicial to the administration of justice, in violation of sections 100.1 and 100.2 of the Rules and canons 1 and 2 of the Code.

On the date that petitioner’s answer to the complaint was due, she did not answer, but instead notified the Commissioner by letter that she was resigning from office. As a consequence, the Commission deemed the petition’s allegations admitted and concluded that petitioner had engaged in "venal conduct * * * inconsistent with the role of a judge and the proper administration of justice.” Because petitioner "departed from the high standards of conduct required of a judge and has damaged public confidence in the integrity of the judiciary,” the Commission determined that removal was the appropriate sanction. The Commission declined to address petitioner’s constitutional challenges, determining that, as an administrative agency, it lacked the power and competence to do so. Petitioner requested this Court’s review of the Commission’s determination and of her constitutional claims pursuant to article VI, § 22 (a) of the New York State Constitution.

Judiciary Law § 47 grants the Commission on Judicial Conduct and this Court jurisdiction to remove a resigned Judge for 120 days from the date of her resignation. Petitioner contends that this provision violates article VI, § 22 of this State’s Constitution, which generally refers to the discipline of "judges.” In petitioner’s view, the Constitution authorizes the Commission to remove only those holding office at the time that penalty is imposed, and provides no basis to exercise removal jurisdiction over former Judges once they have resigned. In effect, petitioner argues that resignation clears the slate and insulates a Judge from such discipline for misconduct in office. Contrary to petitioner’s argument, we conclude that Judiciary Law § 47’s grant of continued jurisdiction over former Judges comports with this State’s Constitution as well as its underlying policy.

We begin our analysis with the general rule that "[a]n independent and honorable Judiciary is indispensable to justice in our society” (Rules of Chief Administrator of Courts [22 NYCRR] § 100.1). Judicial officers must observe "[standards of conduct on a plane much higher than for those of society as a whole” (Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465, 469) because both the public’s perception of each Judge’s ability to serve as an impartial arbiter and the public’s respect for the judiciary as a whole are at stake.

The State Constitution empowers the Commission on Judicial Conduct to "receive, initiate, investigate and hear complaints with respect to the conduct, qualifications, fitness to perform or performance of official duties of any judge or justice of the unified court system, in the manner provided by law” (NY Const, art VI, § 22 [a] [emphasis added]). The Commission may remove a Judge for cause — conduct that includes "misconduct in office, persistent failure to perform his [or her] duties, habitual intemperance, and conduct, on or off the bench, prejudicial to the administration of justice” (id.).

We conclude that this constitutional grant of authority to the Commission to discipline and remove "judges” necessarily and logically covers all acts of misconduct undertaken by a Judge while serving in office. The fact that a particular Judge may no longer hold that office at the time removal is sought or recommended by the Commission, due to the Judge’s postmisconduct resignation, does not preclude the Commission or this Court from exercising their respective disciplinary powers.

That the Constitution was designed to include former Judges within the persons subject to removal for misconduct is apparent from its provisions governing the consequences of removal from judicial office. Article VI, § 22 (h) of our Constitution provides that a Judge "removed by the court of appeals shall be ineligible to hold other judicial office.” The grant of continued jurisdiction over a resigned Judge contained in Judiciary Law § 47 provides the Commission and this Court with an indispensable means to enforce the constitutional "ineligibility” mandate against those Judges who, by resigning, might otherwise attempt to circumvent that bar and seek future office to the public’s detriment. Moreover, petitioner’s position that resignation and a promise not to seek future office clears the slate would encourage Judges to disregard the high standards of conduct they are bound to observe and "avoid the consequences of removal for cause by racing to resign” — a practice rejected by this Court (Matter of Quinn v State Commn. on Judicial Conduct, 54 NY2d 386, 395). Petitioner’s view also ignores the greater institutional goals sought to be achieved by the constitutional provisions governing judicial discipline.

Those constitutional provisions recognize that once a member of the judiciary engages in misconduct, discipline is warranted to maintain the public’s confidence in the integrity of the judiciary as an institution. That goal is served by permitting the Commission to follow through with removal proceedings whenever a Judge engages in serious misconduct while in office and despite a Judge’s resignation or pledge not to seek a future judicial post.

Turning to petitioner’s attack on the sufficiency of the evidence of misconduct, we conclude, after a full review of the record, that each of the charges is established. As an initial matter, the allegations of the complaint were deemed admitted by petitioner’s failure to file an answer (see, 22 NYCRR 7000.6 [b]; Matter of Petrie v State Commn. on Judicial Conduct, 54 NY2d 807). Thus, the only remaining inquiry is whether the admitted allegations establish that petitioner failed to abide by the standards of conduct necessary to preserve the integrity and independence of the judiciary and engaged in conduct prejudicial to the administration of justice justifying her permanent removal from office.

As a member of this State’s judiciary governed by exacting standards of honor and propriety, petitioner was obligated to conduct herself at all times in a manner that reflected her own personal respect for the letter and spirit of the law. Manifestly, advising a known lawbreaker on preserving the fruits of his crime and furnishing a hiding place for those fruits are acts that are antithetical to that obligation. Similarly, accepting a cash gift for participating in the wrongdoer’s concealment efforts and agreeing to mislead law enforcement authorities is behavior that borders on criminal conduct and is certainly inconsistent with a Judge’s pledge to uphold the law. It is an insult to the intelligence of the public to suggest that a Judge who places herself and her associates above the law in this manner does not prejudice the administration of justice or at least create "an appearance of impropriety” by her actions.

The facts that petitioner’s misconduct occurred in her home where she may have had an expectation of privacy and that her statements were made to a person she considered to be a close associate do not mitigate the wrongfulness of her conduct (see, Matter of Mazzei, 81 NY2d 568). Our ethical codes and precedent set forth with no equivocation that Judges are accountable "at all times” for their conduct — including their conversation — both on and off the Bench (Code of Judicial Conduct, canon 2 [A]; Matter of Kuehnel v State Commn. on Judicial Conduct, 49 NY2d 465, 469, supra). Equally clear is that no "family, social, or other relationships” shall carry influence over the Judge’s judicial conduct or judgment (Rules of Chief Administrator of Courts [22 NYCRR] § 100.2 [b]). In words suited to the case before us, we stated in Matter of Steinberg (51 NY2d 74) that "a Judge cannot simply cordon off [her] public role from [her] private life and assume safely that the former will have no impact upon the latter * * *. Wherever [she] travels, a Judge carries the mantle of [her] esteemed office with [her], and, consequently, [she] must always be sensitive to the fact that members of the public, including some of [her] friends, will regard [her] words and actions with heightened deference simply because [she] is a Judge” (id., at 81 [citation omitted] [emphasis added]). Where, as here, a Judge privately conveys the message that she is willing to conspire to flout the law, removal is an appropriate, and perhaps even the only appropriate, remedy (see, Matter of Levine, 74 NY2d 294).

Petitioner’s remaining contentions lack merit.

Accordingly, the determined sanction of removal should be accepted, without costs.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in Per Curiam opinion.

Determined sanction accepted, without costs, and Honorable Lorraine Backal removed from the office of Judge of New York City Civil Court, Bronx County.

       This section provides in relevant part that: "[t]he jurisdiction of the court of appeals and the commission pursuant to this article shall continue notwithstanding that a judge resigns from office after a determination of the commission that the judge be removed from office has been transmitted to the chief judge of the court of appeals, or in any case in which the commission’s determination that a judge should be removed from office shall be transmitted to the chief judge of the court of appeals within one hundred twenty days after receipt by the chief administrator of the courts of the resignation of such judge.”