text:
    The People of the State of New York, Respondent, v Henry Johnson, Appellant.
    Decided November 12, 1987

      APPEARANCES OF COUNSEL

      Linda A. Stagno and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Randi Fleishman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged with robbery in the first degree (Penal Law § 160.15 [3]) on the theory that he forcibly stole the complainant’s motor scooter and, in the course of that act, used or threatened the use of a knife. He was also charged with related offenses including criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) for possessing a knife. In its instructions, the trial court instructed that to convict defendant of first degree robbery the jury had to find that the People had proved that defendant forcibly stole property and used or threatened the immediate use of a knife. The court further instructed the jury that to convict defendant of fourth degree weapon possession, it had to find that the People had proved that defendant knowingly and unlawfully possessed a knife with the intent to use it unlawfully against another. Following deliberations, the jury convicted defendant of the robbery count and acquitted him of the weapon possession count.

Examined against the elements of the crimes as charged by the trial court and without regard to the particular facts of the case, the jury’s verdict was not repugnant (see, People v Hampton, 61 NY2d 963; People v Tucker, 55 NY2d 1, rearg denied 55 NY2d 1039). By convicting defendant of robbery, the jury of necessity found that he either used or threatened the immediate use of a knife. The finding that defendant threatened immediate use of a knife, however, is not repugnant to a finding that defendant himself did not actually possess a knife. Applying the law as it was charged in this case, the jury was entitled to find that defendant may not have possessed a knife, and yet did threaten to use one.

Defendant’s remaining contention has not been preserved.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, 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 in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Stephen Barr, Respondent, v Department of Consumer Affairs of the City of New York et al., Appellants.
    Argued October 8, 1987;
    decided November 12, 1987

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Fay Ng, Larry A. Sonnenshein and Noreen M. Giusti of counsel), for appellants.

      Albert Kostrinsky for respondent.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter Bienstock, Stephen Mindell, Herbert Israel and Sean Delany of counsel), amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Department of Consumer Affairs reinstated.

After a hearing, petitioner, a licensed process server since 1971, was found guilty of failing to comply with the rules and regulations of the licensing agency, the Department of Consumer Affairs. Specifically, petitioner was found guilty of several counts of failing to keep records in the form mandated by law because of his maintenance of illegible records, his omission of necessary information about process served and his failure to record the type of service effectuated. Additionally, he had filed affidavits of service averring service at a time different from the time recorded in his log and had log notations purporting to record service at different locations at times too close to be true. The Department assessed a fine of $4,900, representing $350 per violation, and revoked petitioner’s license. Petitioner then brought this article 78 proceeding to review the penalty imposed (CPLR 7803 [3]). The Supreme Court held that although the fine was justified, the revocation of petitioner’s license was too severe. The Appellate Division affirmed.

The record-keeping provisions petitioner violated were designed to combat a continuing and pervasive problem of unscrupulous service practices by licensed process servers. These practices deprive defendants of their day in court and lead to fraudulent default judgments. Often associated with consumer debt collection and landlord-tenant litigation, questionable service practices have their greatest impact on those who are poor and least capable of obtaining relief from the consequences of an improperly imposed default judgment. Accordingly, the Department of Consumer Affairs must depend on the accurate record-keeping practices of its licensees as a means of monitoring the industry and uncovering wrongful practices. Petitioner’s repeated disregard for the strictures of the agency’s record-keeping provisions was a direct violation of the terms of his license and, further, was antithetical to the regulatory goal of assuring honest service practices.

Furthermore, civil litigants must depend on the accuracy of process servers’ records to prove that proper service was or was not made (see, Siegel, NY Prac § 79). A process server whose records were illegible, inaccurate and otherwise plainly unreliable lacks credibility. The likely result is that many of the clients of such process servers will be unfairly penalized when they are called upon to prove proper service in traverse hearings. Finally, any attempt by petitioner to suggest that his violation of the licensing agency’s rules was insignificant or a mere "technical” infraction must be deemed unpersuasive in light of the clear regulatory mandate that "[t]he licensee shall at all times strictly and promptly conform to all laws, rules, regulations and requirements * * * relating to the conduct of licensees and the service of process in the State of New York” (New York City Department of Consumer Affairs, reg IV). Petitioner’s inaccurate and evidently false records plainly contravened this rule of strict compliance.

Under this analysis, the penalty of license revocation was not so disproportionate to the offense as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222, 237). Hence, the determination of the Department of Consumer Affairs imposing that penalty should not have been disturbed.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Jafers Thomas, Respondent.
    Argued October 5. 1987;
    decided November 12, 1987

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for appellant.

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was involved in an automobile accident which resulted in the death of an occupant of one of the other vehicles. He was convicted of manslaughter in the second degree, vehicular manslaughter, criminally negligent homicide, driving while under the influence of alcohol, and other charges in connection with the accidents. The Appellate Division reversed defendant’s conviction on the law and ordered a new trial.

We agree with the Appellate Division that the trial court erred in admitting evidence, over defendant’s objection, that he was arrested "based on the results” of an Aleo-Sensor test. The stated purpose of this proof was to permit the prosecution to establish that the arresting officer had "reasonable grounds” to give defendant a breathalyzer test (see, Vehicle and Traffic Law § 1194 [1] [1]). The evidence should have been excluded as irrelevant since reasonable cause is not an element of the crime charged (see, Vehicle and Traffic Law § 1192 [2]) and defendant, at no time, raised an issue with regard to the existence of reasonable cause to give the breathalyzer test.

The trial court excluded as irrelevant defendant’s proof of subsequent design modifications to his automobile offered in support of his defense that the accident was caused, not by his drinking, but by defects in his motor vehicle. We agree with the Appellate Division that such evidence should have been permitted. We reject the People’s argument that such evidence was inadmissible under the rule stated in Cover v Cohen (61 NY2d 261) and Caprara v Chrysler Corp. (52 NY2d 114). Evidence of postaccident design changes is irrelevant in strict liability or negligence cases when offered to prove negligent design (see, Cover v Cohen, supra, at 270; Rainbow v Elia Bldg. Co., 79 AD2d 287, 292 [Simons, J.], affd on opn below 56 NY2d 550; cf., Caprara v Chrysler Corp., supra, at 122-126). Here, however, the conduct of the manufacturer or seller in designing the vehicle was not at issue. Rather, consistent with his explanation at the scene of the accident, defendant sought only to prove the existence of a "defect” in his automobile, as part of his defense. Moreover, the policy reasons for not allowing evidence of postaccident repairs or improvements in the civil cases (see, Caprara v Chrysler Corp., supra, at 122; see also, Cover v Cohen, supra) do not apply.

The People’s other contention is without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Julius Reedy, Appellant.
    Argued October 12, 1987;
    decided November 12, 1987
    APPEARANCES OF COUNSEL

      Michael J. Hutter for appellant.

      Robert M. Morgenthau, District Attorney (Susan Corkery and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant, convicted after a jury trial of two counts of attempted rape in the first degree and sentenced as a persistent felony offender, seeks reversal and a new trial based on "fairness” and "a right sense of justice”.

These two altruistic goals do not support defendant’s claim that he was entitled to the personal version of the attack written by the victim, a free-lance writer, two days after the attack in Central Park. Defendant correctly concedes that this personal victim account constituted neither Rosario (9 NY2d 286) nor Brady (373 US 83) material. Moreover, no foundation was presented that it was discoverable or potentially relevant in relation to evidence adduced at trial. Accordingly, the People bear no burden in this procedural and factual context to supply this material at all inasmuch as it was not in their possession or control and the victim objected to turning it over based on personal privacy rights.

Although there was no legally cognizable authority or foundation, the court nevertheless ordered the victim to redact private matters and to turn over to the defense at least a redacted version, instructing her to eliminate only those portions of her three-page writing not related directly to the incident. She complied and this was done. In this case, we have no reason to approve or disapprove of the manner in which the Trial Justice handled this matter because we conclude that the defendant’s claim of entitlement to the entire private writing, or to an in camera inspection of the unredacted item by the trial court, must fail.

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

Order affirmed in a memorandum.


text:
    Denis Blinderman, Doing Business as Rita B. Stable, Appellant, v New York State Racing Association, Respondent, and Royal Guard Fence Co. et al., Defendants.
    Submitted September 8, 1987;
    decided November 12, 1987
   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 (Cohen and Karger, Powers of the New York Court of Appeals § 20, at 84).


text:
    The People of the State of New York, Respondent, v Joseph Burger, Appellant.
    Submitted October 12, 1987;
    decided November 12, 1987
   Motion by the People to dismiss appeal granted and appeal dismissed upon the ground that defendant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see, Matter of Robert E., 68 NY2d 980; People ex rel. Martinez v Walters, 63 NY2d 727; People v Casiel, 33 NY2d 791; People v Sullivan, 28 NY2d 900; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).

Judge Titone taking no part.


text:
    Jerry B. Wilson Roofing and Painting, Inc., et al., Respondents, v Jobco — E. R. Kelly Associates, Inc., et al., Appellants.
    Submitted September 8, 1987;
    decided November 12, 1987
   Motion for leave to appeal from so much of the order of the Appellate Division as pertains to respondent Jerry B. Wilson Roofing and Painting, Inc. denied. Motion for leave to appeal from so much of the order of the Appellate Division as pertains to respondent Wilson Roofing Co. dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    Feinberg Bros. Agency, Inc., Appellant, v Berted Realty Co., Inc., Respondent.
    Argued October 7, 1987;
    decided November 17, 1987

      APPEARANCES OF COUNSEL

      Robert Konove for appellant.

      Charles K. McGoey for respondent.

      John T. DeGraff, Jr., Michael T. Wallender and James T. Potter for New York State Association of Realtors, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, by denying defendant’s motion for summary judgment, and, as so modified, affirmed.

Plaintiff, Feinberg Bros. Agency, Inc., a licensed real estate broker, instituted this action to recover commissions due it from defendant Berted Realty Co., Inc. It is alleged in the complaint that on May 24, 1983 plaintiff orally agreed with defendant to find a purchaser for defendant’s premises in New Rochelle, New York. Pursuant to the terms of the brokerage agreement, plaintiff’s commission for finding a purchaser would equal 6% of the property’s purchase price. The asking price for the realty was originally $640,000, but was subsequently raised to $675,000.

On August 22, 1983, plaintiff found a prospective purchaser willing to pay $675,000 for the premises, but defendant’s principals rejected the offer noting it had received a $750,000 offer through another broker. Two days later plaintiff’s buyer offered to pay $800,000 for the property and tendered a $15,000 check to the seller along with a letter from plaintiff indicating the offer was “based on” plaintiff receiving a commission of 6% of the selling price “due and payable in full upon closing.”

Despite the $800,000 purchase offer and the delivery of a $15,000 binder check — which defendant kept and did not return for two months — defendant refused to enter into a contract with the buyer produced by plaintiff. The seller eventually withdrew the property from the market.

Plaintiff commenced this action seeking its unpaid commission of $48,000. Defendant denied liability and moved for summary judgment contending no commission was owed because the letter sent by plaintiff with the purchase offer conditioned payment of the commission upon closing and title had not closed. Plaintiff cross-moved for summary judgment maintaining it had earned its commission by obtaining a ready, willing and able buyer. Special Term denied both motions. The Appellate Division, relying on Graff v Billet (64 NY2d 899), concluded that plaintiff had agreed that its commission was not earned until title passed and it therefore modified the order of Special Term and granted defendant summary judgment dismissing the complaint.

The general rule is that a broker who "produces a person ready and willing to enter into a contract upon his employer’s terms * * * has earned his commissions” (Tanenbaum v Boehm, 202 NY 293, 299). However, "parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement, including a condition that the contract of sale actually be consummated before the broker is deemed to have earned his commission” (Levy v Lacey, 22 NY2d 271, 274). In Graff v Billet (supra), we found that the parties had agreed upon such a condition by stipulating that the commission would be due and payable absent willful default by the seller, “as, if and when title passed.” Because there had been no willful default and the language of the agreement was plainly conditional, we held the broker had not earned his commission by merely presenting a willing purchaser: payment was conditioned on closing.

This case cannot be similarly resolved. The broker, having allegedly earned its commission pursuant to the oral agreement, cannot be charged, as a matter of law, with intending by its letter to modify the oral agreement. The statement, because of its ambiguity, presents an issue of fact. A trial is necessary, therefore, to determine whether the broker and the seller intended to render the commission contingent upon closing or whether they agreed that the commission was already earned but that payment was only deferred until the time of closing.

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

Order modified, etc.


text:
    Alliance Property Management and Development, Inc., Respondent, v Andrews Avenue Equities, Inc., Defendant, and City of New York, Appellant.
    Argued November 9, 1987;
    decided November 17, 1987

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Fay S. Ng, Pamela Seider Dolgow and Angelo Aiosa of counsel), for appellant.

      Stuart M. Fischman, Michael Stepper and Paul Beck for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this mortgage foreclosure action brought by plaintiff (to which the City was a party, and filed a notice of appearance and waiver), the City moved to vacate the judgment of foreclosure and sale dated January 12, 1983, in favor of plaintiff, as mortgagee, involving a parcel of land in The Bronx. The City in its motion to vacate urged that in July 1984 it had acquired a tax deed to that same parcel. While the City’s motion initially was granted on default, upon reargument Special Term reinstated plaintiff’s judgment, concluding that the City’s tax foreclosure judgment came later; that plaintiff had not received adequate notice of the City’s proceeding; that plaintiff had a pending application to redeem; and that the City would suffer no prejudice if its motion were denied, since plaintiff’s sale of the parcel would in any event be subject to the City’s tax liens. A divided Appellate Division affirmed, noting particularly that the City failed to show that it will be prejudiced if the foreclosure sale goes forward, given that this sale is subject to the City’s tax liens, and that the City had established no ground warranting relief from the foreclosure judgment under CPLR 5015 (a). Recognizing that relief from a judgment is necessarily discretionary under CPLR 5015 (a), the City urges that its motion to vacate was instead premised on Supreme Court’s inherent power to vacate a judgment in the interest of justice, or its broad equity powers. Whether under CPLR 5015 (a), or as a matter of interest of justice or equity jurisdiction, it is plain from the decisions below that both lower courts rested their conclusions on an exercise of discretion.

The Appellate Division is, of course, vested with the same power and discretion as Special Term, and can review a determination for abuse of discretion or substitute its own discretion, which is then reviewable by us only for abuse of discretion as a matter of law (Brady v Ottaway Newspapers, 63 NY2d 1031). No abuse of discretion is claimed by the City.

Thus, the only issue presented by the question certified to us was whether the Appellate Division had the power to award the relief it did. We conclude that the Appellate Division had that power, we answer the certified question in the affirmative, and we pass on no other issue (see, Serenity Homes v Town Bd., 37 NY2d 841).

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

Order affirmed, with costs, and certified question answered in the affirmative in a memorandum.


text:
    The People of the State of New York, Respondent, v Julio Hernandez, Appellant.
    Argued October 8, 1987;
    decided November 17, 1987

      APPEARANCES OF COUNSEL

      Michael B. Powers for appellant.

      Mario Merola, District Attorney (Susan Valle and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted upon a plea of guilty of attempted robbery in the first degree of-a grocery store. Two days after the robbery, three witnesses went to the station house to view drawers of photographs in an effort to identify the perpetrator. None selected any photograph and it was later established that defendant’s picture was not among the photographs viewed by the witnesses.

Approximately three months later, one of the witnesses, Rodriguez, went to the station house claiming that, while at a restaurant, he saw the man who had robbed him. Rodriguez was shown additional photos and, while looking through the second drawer, he picked out defendant’s photo and identified defendant as the man who robbed the store.

That same day, the police brought defendant’s photo along with five other photographs of men with similar features to Bolanos, one of the other witnesses. Prior to showing the array, the officer said, "I got photos. I want you to look at the photos. We got the guy who hold [sic] you up.” Bolanos then viewed the array and identified defendant as the robber. Sometime later, the five "filler” photos used in this array were misplaced.

Based on the two positive identifications, a "Wanted” card was prepared and a police officer with the Criminal Apprehension Unit saw the notice and connected the photo to a defendant who was scheduled to make a court appearance on an unrelated charge. The officer went to court on the scheduled date, waited until the proceeding was completed, and then took defendant into custody as he was leaving the courtroom.

Several hours later, a lineup was conducted and Bolanos made a positive identification of defendant. At the conclusion of the Wade hearing (388 US 218), the court ruled that none of the pretrial photo identifications were tainted or suggestive. The court also concluded that the failure to preserve the five "filler” photos wás inadvertent and excusable. The court also found that each complainant had a sufficient independent basis to support an in-court identification of defendant.

Defendant pleaded guilty and the Appellate Division affirmed (121 AD2d 849).

Defendant’s claim that the identification procedures were unconstitutionally suggestive as a matter of law is without merit. The police officer’s statements to the witness Bolanos upon handing him the photos provide record support for the undisturbed factual finding of lack of taint or of suggestiveness. Moreover, there was no suggestion to the witness that defendant’s photo was in the array (People v Rodriguez, 64 NY2d 738, 740). In view of the undisturbed findings of nonsuggestive pretrial identification procedures and of independent source, any theoretical prejudice that may have resulted from the accidental loss of the "filler” array photos is irrelevant.

The argument that defendant was improperly denied his right to counsel when the police, with knowledge that defendant had an unrelated pending case, arrested him and placed him into a lineup without his attorney being present also fails. There is no Federal or State constitutional right to counsel for an accused at a preindictment lineup (Kirby v Illinois, 406 US 682; People v Hawkins, 55 NY2d 474, cert denied 459 US 846; see also, People v Lucarano, 61 NY2d 138).

We have considered defendant’s other assertions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Robert L. Cucin, Appellant, v Dorothea Weitzner, Respondent.
    Submitted September 14, 1987;
    decided November 17, 1987
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a] [1]).


text:
    The People of the State of New York, Respondent, v Jose Garcia, Appellant.
    Submitted September 21, 1987;
    decided November 17, 1987
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Darden, 52 NY2d 1015; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).


text:
    Mark R. Hedgepeth, Appellant, v George L. Merz, Respondent.
    Decided November 17, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation filed by plaintiff is not an effective stipulation for judgment absolute within the meaning of CPLR 5601 (c) (see, Cohen and Karger, Powers of the New York Court of Appeals § 62, at 279-280).


text:
    The People of the State of New York, Appellant, v Anatol Kozlowski, Respondent.
    Submitted October 5, 1987;
    decided November 17, 1987
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Darden, 52 NY2d 1015; People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).


text:
    The People of the State of New York, Appellant, v Willie Lee Kirby, Respondent.
    Decided November 17, 1987
   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 Herman Sanders, Appellant.
    Decided November 19, 1987

      APPEARANCES OF COUNSEL

      Paul L. Gruner, Public Defender (Denise Y. Dourdeville of counsel), for appellant.

      Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant, who was convicted of second degree assault, as a second felony offender, complains that it was error for the trial court, after its charge in the assault trial, to furnish the jury, on its request and over defense counsel’s objection, with a copy of the actual text of a pertinent statute. The Appellate Division found this to be error, as the District Attorney concedes, but held it harmless and affirmed defendant’s conviction. We disagree.

The consent of defense counsel is an "absolute precondition” to furnishing the jury with the text of a statute (People v Owens, 69 NY2d 585, 590; CPL 310.30), because "questions may arise concerning which sections of pertinent statutory material should be given to the jury” (Mem of Office of Court Administration, 1980 McKinney’s Session Laws of NY, at 1967; People v Owens, supra). That is precisely defendant’s point on this appeal, i.e., the statute submitted, section 137 (5) of the Correction Law referred only to the permissible use of force by correction officers without considering his defense of justification.

The distribution of the statute to the jury without counsel’s consent is prohibited by CPL 310.30 and, like the distribution of written excerpts of a jury charge considered in Owens (supra), the error cannot be deemed harmless (accord, People v Owens, supra, at 591-592).

Defendant also claims error because the minutes of the victim’s testimony, after he was recalled by the Grand Jury, were lost and had to be reconstructed. The lost testimony did not relate to the incident itself but to defendant’s claim of his on-going harassment by correction officers. Reconstruction was undertaken by having a grand juror recall the victim’s testimony but because the testimony was given in defendant’s absence, he was not able to challenge her recollection of it. The testimony was limited and general, however, and any potential prejudice can be mitigated at the retrial by a limiting instruction cautioning the petit jurors on the use of the disputed testimony.

We have considered defendant’s remaining points and find them without merit.

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


author: Alexander, J.

text:
    Martin Gordon, Appellant, v City of New York, Respondent.
    Argued October 15, 1987;
    decided November 19, 1987

      APPEARANCES OF COUNSEL

      Alan C. Rassner for appellant.

      Peter L. Zimroth, Corporation Counsel (Pamela Seider Dolgow and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The central question on this appeal is whether the City satisfied its duty of care to plaintiff, while in custody, to protect him from self-inflicted harm. Both parties acknowledge that a duty of care is owed by prison authorities with respect to the health and safety of their charges (see, e.g., O’Grady v City of Fulton, 4 NY2d 717, affg 4 AD2d 743). When prison authorities know or should know that a prisoner has suicidal tendencies or that a prisoner might physically harm himself, a duty arises to provide reasonable care to assure that such harm does not occur. Neither the requisite knowledge nor the lack of proper supervision was shown here. Although plaintiff exhibited boisterous, irrational and delusional behavior — and consequently was placed alone in a bare cell, without belt or shoelaces, with a correction officer seated directly outside his cell monitoring him — neither the City’s information nor the plaintiff’s actions prior to the moment he suddenly scaled the bars of his cell and plunged head first into the toilet bowl gave notice to the City that he might harm himself in any such fashion.

Whether a breach of duty has occurred depends upon whether the resulting harm was a reasonably foreseeable consequence of the defendant’s acts or omissions (Danielenko v Kinney Rent A Car, 57 NY2d 198, 204). If no inquiry could have been reasonably foreseen, or if defendant’s conduct was reasonable in light of what could have been anticipated, there is no breach of duty, no negligence and no liability (Prosser and Keeton, Torts § 43 at 280 [5th ed]). "Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful”. (Danielenko v Kinney Rent A Car, supra, at 204.) Plaintiff failed to establish that the injury could have been reasonably foreseen, or that the City’s conduct was not reasonable in light of what could have been anticipated, and he therefore failed to make out a prima facie case of negligence against the City.

We have no quarrel with the statement of applicable law set forth by the dissent, but reach the opposite conclusion when that law is applied in this case. We agree with the Appellate Division that, as a matter of law, the actions taken with regard to plaintiff were reasonable under the circumstances and that every possible precaution had been taken to guard against what was reasonably foreseeable. The dissent concludes that the jury could reasonably have found that, in the moments in which the relevant events unfolded, this plaintiff should have been physically immobilized or restrained until he received medical attention. However, the undisputed evidence that boisterous, irrational behavior (including climbing the bars of the cell) is not uncommon in holding pens and would not itself warrant medical attention, together with the other undisputed evidence — for example, plaintiff’s stated intention to feign insanity, his apparent normality shortly before the incident, the absence of any knowledge on the part of the City of a suicidal history, the routine removal of belts and shoelaces, the confinement of plaintiff alone in a bare cell monitored by a correction officer — lead us to affirm the conclusion below that there was no prima facie case of negligence against the City.

Finally, we address the additional argument made by the City. The City notes the unfortunate reality that many persons in custody may exhibit bizarre behavior, rendering it difficult for prison authorities to guard them from each other as well as to protect them from harm to themselves. As we wrote in another connection in Hirsh v State of New York (8 NY2d 125, 127): "If institutions for the mentally ill are required to take all of the precautions contended for in this case, and are to be held liable for such delicate mistakes in judgment, patients would be kept in strait jackets or some other form of strict confinement which would hardly be conducive to recovery * * * Reasonable care is required to protect such patients against themselves * * * but no evidence of lack of it has been shown in his case.” The use of restraints and medications to immobilize inmates obviously engenders other problems and points up the dilemma faced by the City, which may well be confronted by major damages litigation whatever course it chooses. In the present case, no more is required of the City than the exercise of reasonable care in the light of what might reasonably have been anticipated; no evidence of the lack of it has been shown here.

Alexander, J.

(dissenting). This is a negligence action to recover damages for self-inflicted injuries sustained by plaintiff on October 21, 1977 while in the custody of the New York City Department of Corrections. Defendant, the City of New York, is charged with failing to take proper precautions to ensure plaintiff’s safety and in failing to obtain medical treatment for him during the 36 hours he remained incarcerated awaiting arraignment. A jury trial resulted in a judgment for plaintiff. The Appellate Division reversed the judgment and dismissed the complaint, holding that plaintiff had failed to set forth a prima facie case. A majority of this court affirms that order. Because I believe that the evidence at trial, when viewed in the light most favorable to plaintiff, as we are bound to do, supports a prima facie case, I respectfully dissent.

On October 19, 1977, plaintiff, then age 19, was arrested and charged with attempted grand larceny and criminal possession of burglar’s tools, having been observed by police officers attempting to break into an automobile. At trial it was established that at the time of his arrest, plaintiff had a two-year history of severe psychiatric problems; he had been diagnosed variously as "acute psychotic episode catalytic” and "schizophrenia paranoid type”, and had been institutionalized on more than one occasion. One episode resulted in his commitment to Brooklyn State Hospital, where he stayed for over two weeks and was released on November 16, 1976 with prescriptions for several medications, including thorazine. About a month after his discharge, the supply was exhausted and plaintiff stopped taking the medication.

Plaintiff’s mother testified that in the two months preceding his arrest, plaintiff had again become "very loud and aggressive”, acting "crazy” and "hard to handle”. On the night he was arrested, the police confined him to a holding pen in Kings County Criminal Court pending arraignment and telephoned his mother to notify her of her son’s arrest. Calling her attention to the noise in the background, they asked: "Is he always this noisy and crazy? Does he have any mental problems?”. She responded: "Yes, he has been in Kings County Psychiatric Hospital”.

For reasons not apparent from the record, defendant was not arraigned the next day, but was moved to the basement pens of the courthouse and held for a second night. The following morning, when Correction Officer Moore came on duty, plaintiff had been segregated from the other inmates and placed in a separation pen — a 10-foot square, 15-foot high cell, with bars on three sides and a steel wall comprising the fourth side, containing a toilet bowl, a sink, a steel bench and a ceiling light — because he had been "rejected by the other prisoners” in the main holding pen. The record reveals that plaintiff was loud, acting irrationally, hallucinating and continuously yelling out "I am God”, "Jesus Christ Superstar”, and that he would like to fly. Correction Officer Moore was advised by the officer he relieved "that is the psycho * * * [tjhis guy is a nut, watch out for him”. Plaintiff’s shoelaces and belt had been taken away from him when he was moved to the separation pen, because, as Moore testified, "when we think that the individual is a psycho, as we call [it] in our terms, we take the shoelaces and belts from him * * * because it’s a possible suicide”. Testimony established that it is not the usual practice to confine prisoners to a separation pen.

Correction Officer Moore was assigned, as was the custom, to a station where he could monitor the three holding pens in the area simultaneously — including plaintiff’s separation pen. Officer Moore testified that when he came on duty, plaintiff was making loud noises, pacing about, repeatedly flushing the toilet and pushing the button on the sink and hallucinating— as he had been doing earlier — about being "Jesus Christ Superstar” and how he would like to fly. Officer Moore testified that plaintiff was irrational, "just wasn’t coherent”, and that he considered him a "psycho”. Some 15 minutes later, plaintiff started climbing the bars of his cell, ignoring orders from Correction Officer Moore to get down. Moore began climbing the bars after plaintiff and called for assistance shouting "I got a possible hang up” (suicide attempt). Before assistance could arrive, plaintiff either fell or dove head first in the direction of the toilet bowl and hit his head. Moore testified that he had seen prisoners climb the bars of the pens numerous times in the past.

Plaintiff’s theory at trial was that defendant was negligent in failing to take proper precautions to prevent him from harming himself. In particular, he argued that defendant was negligent in not restraining or immobilizing him to ensure that he was not capable of hurting himself, and further was negligent in failing to seek the assistance of medical personnel at any time during the 36 hours he was in custody. Expert medical testimony established that the correction officer, who observed the plaintiff’s conduct and his hallucinations, should have realized that he needed medical attention — that "it would not have taken any huge skill to see that the lad was ill at that time”, and that, under these circumstances, plaintiff should not have been left alone and should have been restrained either physically or by medication. A former warden of a correctional facility also testified for plaintiff and explained that the proper procedure when a correction officer is confronted with a prisoner acting irrationally is to ensure that the inmate is not capable of hurting himself, or any other person, by immobilizing him, perhaps handcuffing him to a particular object, and then calling a supervisor for medical assistance. He testified further that even if the correction officer believes the prisoner is feigning illness, proper procedure would require that the evaluation be made by medical personnel because the correction officer could be mistaken. Plaintiff also relied on regulation 7.10.020 of the Rules and Regulations of the Department of Corrections, in effect at the time, which provided: "Whenever an inmate appears to be injured or sick, prompt action shall be taken to ensure that the inmate concerned is examined by a physician. In instances where there is no physician on duty within the institution an ambulance shall be summoned.”

Defendant offered evidence to establish that its actions were reasonable and consistent with the policies of the Department of Corrections. The Special Counsel to the New York City Commissioner of Corrections, who was responsible for writing rules and regulations for the Department, testified that Department policy prohibited the use of restraints without the specific authorization of a physician, except in an emergency situation such as to prevent injury to the inmate or others or to prevent an escape, and that Department policy disfavored using metal handcuffs as restraints because somebody who is distraught could easily injure himself while restrained in that manner. He conceded, however, that a correction officer was authorized to "apply temporarily metal cuffs” in an emergency but is required in such circumstances to "simultaneously * * * contact a superior officer so that * * * a physician [can be summoned to the] scene”. Finally Special Counsel testified that, in his opinion, the actions taken by Correction Officer Moore were proper and in accordance with Department procedures, that physicians are not summoned whenever an inmate says irrational things, and plaintiff’s behavior — prior to the moment he began climbing the bars — did not warrant medical attention.

The jury returned a verdict in favor of plaintiff. The Appellate Division reversed the judgment and dismissed the complaint, holding that "as a matter of law, the actions taken with regard to the plaintiff were entirely reasonable under the circumstances” in that plaintiff was constantly monitored and there was nothing in the cell with which he could hurt himself (120 AD2d, at 564).

As the majority recognizes, prison authorities owe a duty of care to provide for the health and care of inmates, including the duty to protect a prisoner from harming himself (see, O’Grady v City of Fulton, 4 NY2d 717, affg 4 AD2d 743; Wilson v Sponable, 81 AD2d 1, 5; Lavigne v Allen, 36 AD2d 981). If prison authorities know or have reason to know that the prisoner might do harm to himself or to others, reasonable care must be used to assure that such harm does not occur, and certain factors, such as the prisoner’s mental state, are to be considered in determining how to prevent the harm (see generally, Annotation, Civil Liability of Prison or Jail Authorities for Self-Inflicted Injury or Death of Prisoner, 79 ALR3d 1210).

Of course, even where a duty exists, liability in a particular case may not be imposed if injury is not foreseeable (Pulka v Edelman, 40 NY2d 781, 786). "Whether a breach of duty has occurred, * * * depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendant’s conduct. 'If the defendant could not reasonably foresee any injury as the result of his act, or if his conduct was reasonable in the light of what he could anticipate, there is no negligence and no liability’ (Prosser, Torts [4th ed], § 43, p 250)” (Danielenko v Kinney Rent A Car, 57 NY2d 198, 204 [emphasis added]). It has never been the case, however, as the majority holds, that a plaintiff is required to demonstrate that the defendant could have anticipated the precise manner in which the injury in fact occurred. Rather the settled law holds that it is sufficient that the evidence establish that it was foreseeable that plaintiff would harm himself and that his injuries could have been prevented if the defendant had not been negligent (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Questions concerning what is foreseeable and what is reasonable conduct under the circumstances are generally for the fact finder and not for the court to resolve (see, Derdiarian v Felix Contr. Corp., 51 NY2d, at 315, supra; Akins v Glens Falls City School Dist., 53 NY2d 325, 332; Andre v Pomeroy, 35 NY2d 361, 364 [whether defendant acted reasonably under the circumstances can rarely be decided as a matter of law]; see generally, Restatement [Second] of Torts § 328B, comment g, at 154; § 328C, comment b, at 155).

For a court to conclude as a matter of law that a jury verdict is not supported by sufficient evidence it must be determined "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499; see, Randolph v City of New York, 69 NY2d 844, 847; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 517). In analogizing this assessment to a Trial Judge asked to direct a verdict, we remarked that "in any case in which it can be said that the evidence is such that it would not be utterly irrational for a jury to reach the result it has determined upon, and thus a valid question of fact does exist, the court may not conclude that the verdict is as a matter of law not supported by the evidence” (Cohen v Hallmark Cards, 45 NY2d 493, 499, supra; Middleton v Whitridge, 213 NY 499, 507-508). The standard is strict, and appropriately so, in order to preserve the role of the jury and to avoid the propensity, on appellate review, to sit as a "thirteenth juror’’. Moreover, because plaintiff has prevailed on the liability issue at trial, and the sole issue on this appeal is whether the evidence was insufficient as a matter of law to support a finding of breach of duty, we are bound to view the evidence in the light most favorable to the plaintiff (see, Hill v St. Clare’s Hosp., 67 NY2d 72, 82; Alexander v Eldred, 63 NY2d 460, 464; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312, n 1, supra; Cohen v Hallmark Cards, 45 NY2d 493, 499, supra; Dunham v Village of Canisteo, 303 NY 498, 503).

Applying this standard of review, the evidence was clearly sufficient for the jury to have rationally concluded that defendant acted negligently in failing to seek medical attention for plaintiff at any time during his 36 hours of confinement. Defendant was on notice that plaintiff may have been suffering from mental illness. Not only did plaintiff’s mother inform the arresting officer of prior hospitalization for mental illness, but plaintiff had acted irrationally throughout his confinement. Indeed, he had been placed in a separation pen precisely because he was acting in an abnormally irrational manner, and hallucinating to such an extent, that he was considered a "psycho”, suicidal. The correction officer in charge of plaintiff — before Correction Officer Moore came on duty — thought that plaintiff was sufficiently mentally ill and posed a sufficient threat of physical harm to himself and to others, that he should be segregated and treated as "suicidal”. Moreover, his shoelaces and belt were taken from him because of the belief that he may harm himself. The undisputed evidence is that plaintiff was treated differently from those exhibiting the type of irrational behavior that may be common in court pens. Yet it was undisputed that no medical attention had been sought for plaintiff at any time while he was in custody despite the fact that expert testimony established that he was in need of medical care and that the Department regulations require that "prompt action shall be taken” when an inmate is sick to ensure he receives medical attention. The jury could have rationally concluded that defendant, with knowledge of the danger that plaintiff might harm himself because of his delusional behavior, acted unreasonably in failing to obtain medical attention for plaintiff, not only on the morning of the accident, but during the preceding hours as well.

Furthermore, the jury could have reasonably concluded from the evidence that plaintiff should have been restrained, if not by metal cuffs then by other approved methods, until medical personnel could determine whether plaintiff was in need of care. Although defendant’s expert testified that restraints were disfavored unless authorized by a physician, he also testified that restraints may be used to prevent the prisoner from injuring himself as long as a physician is summoned to assess the medical necessity for the restraints. The jury could have reasonably inferred that since Correction Officer Moore had seen prisoners climbing cell bars many times in the past, it was a common occurrence, and that defendant could have reasonably foreseen that plaintiff, in a state of mental instability, might climb the bars and injure himself.

Accordingly, there is a "valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury” (Cohen v Hallmark Cards, 45 NY2d, at 499, supra) that defendant’s conduct under the circumstances of this case was not reasonable such that defendant breached a duty of care owed to plaintiff either by failing to render the appropriate medical treatment, or by failing to restrain him. That there was conflicting evidence as to the appropriate response to an inmate in plaintiff’s condition, does not justify dismissing the complaint on the ground that the jury’s verdict was not based on legally sufficient evidence (Randolph v City of New York, 69 NY2d 844, 847, supra).

"[I]n deciding as a matter of law exactly what steps by [the Department of Corrections] will constitute reasonable care under the circumstances”, the majority "engages in an unfortunate exercise in judicial rule making in an area that should be left to the jury” and fails to accord the plaintiff the benefit of favorable evidence and reasonable inferences (Akins v Glenn Falls City School Dist., 53 NY2d 325, 333-334 [Cooke, Ch. J., dissenting], supra). It has long been the "general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised” (Dolan v Delaware & Hudson Canal Co., 71 NY 285, 288, quoted in Akins v Glens Falls City School Dist., 53 NY2d 325, 335 [Cooke, Ch. J., dissenting], supra). Plaintiff carried his burden of demonstrating that the defendant’s negligence was a proximate cause of the events which produced the injury (see, Derdiarian v Felix Contr. Co., 51 NY2d 308, 315, supra; Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520, supra). I would, therefore, reverse the order of the Appellate Division and remit the case to the Appellate Division for that court to consider the facts and the issues not reached on the appeal to that court.

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

Order affirmed, with costs, in a memorandum.

         The Department memorandum from which defendant’s expert testified defines "anklets and wristlets” as medically approved types of restraints which are "generally made of heavy leather with sponge rubber lining” and are "useful in mildly delirious patients” because they provide firm restraint but permit some freedom of motion and are not uncomfortable or painful for the prisoner.


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    Yvonne Scruggs-Leftwich, as Commissioner of the New York State Division of Housing and Community Renewal, Appellant, v Rivercross Tenants’ Corp. et al., Respondents.
    Argued October 15, 1987;
    decided November 19, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Judith T. Kramer, O. Peter Sherwood and Harvey M. Berman of counsel), for appellant.

      Judah Gribetz, Paul G. Burns and Brian T. Fitzpatrick for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of the Supreme Court reinstated.

Respondent Rivercross Tenants’ Corp. (Rivercross) operates a residential apartment cooperative facility located on Roosevelt Island in New York City. Rivercross was incorporated in the mid-1970’s by the Urban Development Corporation (UDC) pursuant to article II of the Private Housing Finance Law, and. was, therefore, subject to the supervisory power of the UDC, as well as the mandates of the . Private Housing Finance Law and the regulations promulgated under that law. Cooperatives such as Rivercross are commonly known as Mitchell-Lama housing. The regulations governing Mitchell-Lama cooperatives provide that owners may resell their apartments only to prospective purchasers who are on a waiting list maintained by the housing company (9 NYCRR 1727-1.1, 1727-1.3).

Despite this regulation, the prospectus disseminated by the UDC provided that Rivercross shareholders could sell their apartments to anyone they so desired and that, unlike other cooperatives organized under the Private Housing Finance Law, Rivercross "does not have the right of first refusal to purchase an Apartment from a Tenant-Shareholder who proposes to sell his Apartment”. Statements to this effect appeared throughout the prospectus. Although the prospectus did state that the resale price was subject to strict statutory limitations, it also expressly provided that tenant-shareholders could negotiate with prospective purchasers for the sale of any improvements made to the apartments. Finally, the prospectus stated that to the extent there was any ambiguity in the terms of the offering plan or any conflict with the laws and regulations governing Rivercross, such conflicts were to be resolved in favor of the applicable laws and regulations.

In 1981, the petitioner, the New York State Division of Housing and Community Renewal (DHCR) became UDC’s successor in interest when it assumed all of the UDC’s rights and obligations for the various Roosevelt Island agreements to which the UDC was a party, including regulatory power over Rivercross. Subsequently, in 1984, the Commissioner of DHCR ordered Rivercross to establish a waiting list and implement an affirmative fair housing plan as required by 9 NYCRR part 1727. Rivercross refused to comply and the DHCR instituted this action seeking a judgment pursuant to Private Housing Finance Law § 32 (7) directing the respondents to establish a waiting list, enjoining Rivercross shareholders from selling their shares to any prospective purchaser not on the waiting list and directing that Rivercross implement a fair housing marketing plan. Rivercross interposed affirmative defenses based upon estoppel and unconstitutional impairment of contracts and sought to have the Commissioner’s order annulled. DHCR moved for summary judgment and the Supreme Court held that Rivercross was required to comply in all respects with the Commissioner’s order. The Appellate Division reversed, holding that DHCR was estopped from enforcing the regulations governing housing companies against Rivercross because of the representations in the prospectus. We now reverse.

In exercising its regulatory powers over Rivercross, DHCR was acting in a governmental — not proprietary — capacity (see, NY Const art XVIII; Matter of Vinson v Greenburgh Hous. Auth., 27 NY2d 675, affg 29 AD2d 338, 340-342). Generally, estoppel may not be invoked against a municipal agency to prevent it from discharging its statutory duties (Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33; Matter of City of New York v City Civ. Serv. Commn., 60 NY2d 436, 449; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 93) and the factual setting presented on this appeal does not warrant an exception to this doctrine.

The agreement between the shareholders and the housing company is a product of all the relevant documents, including the prospectus (Brennan v Breezy Point Coop., 63 NY2d 1022). Here, while the prospectus stated that owners could resell apartments on the open market, it also provided that to the extent there was any conflict between the terms of the offering plan and the statutes and regulations governing Mitchell-Lama housing, such conflicts were to be reconciled in favor of the Private Housing Finance Law and the regulations promulgated pursuant to that law. The proprietary leases and the purchase agreements also contained this express proviso. Thus, Rivercross shareholders were on notice that they might be subject to the waiting list and other regulatory requirements applicable to Mitchell-Lama housing companies. In addition, shareholders were aware from the language contained in the contract documents that the regulations governing Rivercross were always subject to future changes and restrictions that could destroy the right to sell their apartments on the open market.

As further basis for the inapplicability of estoppel here, we are mindful of the various policy considerations urged by appellant. First, appellant points out that the goal of providing affordable housing for persons of all income groups on a nondiscriminatory basis (see, 9 NYCRR 1727-1.1) may be frustrated by privately arranged sales, which give no assurance that a proper demographic tenant balance will be maintained. Second, appellant notes that costs in the form of improvements to the purchase price of a cooperative apartment may result in pricing low-end purchasers out of the market. Third, appellant contends that the sale of units on the open market may lead to the exaction of illegal payments from prospective buyers, pointing out that Rivercross was created to serve the public purpose of providing adequate, safe and sanitary housing with the aid of private enterprise (Private Housing Finance Law §§ 11, 13 [13]).

Finally, we note that DHCR does not seek to prevent shareholders from selling their improvements. Even though the bargaining position of the shareholder may not be as strong as it was before enforcement of the regulations, the right to sell improvements still exists.

Thus, we conclude that there is no basis for the extraordinary application of the estoppel doctrine here (see, Matter of Daleview Nursing Home v Axelrod, supra; Matter of Hamptons Hosp. & Med. Center v Moore, supra).

Rivercross’ constitutional contract clause challenge is also unpersuasive. The express terms of the contract between the shareholders and the cooperative corporation provided that the right to resell an apartment was subordinated to the applicable statutory and regulatory scheme. Inasmuch as the regulatory scheme provided that apartments must be resold to persons on a waiting list, there has been no impairment of the shareholders’ contractual rights.

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

Order reversed, etc.


text:
    Civil Service Employees Association, Inc., et al., Appellants, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Submitted September 8, 1987;
    decided November 19, 1987
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    Salvatore D. Rao, Respondent, v David Gunn, as President of New York City Transit Authority, et al., Appellants.
    Submitted September 28, 1987;
    decided November 19, 1987
   Motion for leave to appeal denied upon the ground that an appeal lies as of right pursuant to CPLR 5601 (d).


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    The People of the State of New York, Respondent, v William Boughton, Appellant.
    Argued October 7, 1987;
    decided November 24, 1987
    APPEARANCES OF COUNSEL

      J. Raymond Fisher for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The defendant, indicted for sale of a controlled substance, received written notice of the prosecutor’s intent to use at trial an oral statement made by the defendant to a police officer. However, when the defendant moved to suppress the statement the prosecutor withdrew the notice on the ground that it had been issued in error because no such statement existed. Nevertheless, on the day jury selection began the prosecutor informed the defendant that an oral statement had been made and that the prior notice had been erroneously withdrawn due to confusion in the prosecutor’s office.

The defendant moved to exclude the statement on the ground that the notice was untimely. The court denied the motion, immediately held a suppression hearing, held the statement admissible and later admitted it at the trial.

We have held that the prosecutor’s notice of intent to introduce a statement must be made within the time prescribed in the statute, unless good cause is shown for the delay and that mere neglect is no excuse (People v O’Doherty, 70 NY2d 479; People v McMullin, 70 NY2d 855). In this case the defendant did not receive effective notice until after the time had run. The prior notice, although timely served, had been withdrawn and thus was ineffective. Accordingly, the statement should have been excluded.

The error in admitting this statement cannot be said to be harmless because absent the defendant’s oral admission the proof that the defendant was a seller, rather than an agent of the buyer, was not overwhelming.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, 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 Richard J. McMullin, Appellant.
    Argued October 7, 1987;
    decided November 24, 1987

      APPEARANCES OF COUNSEL

      Dirk A. Galbraith for appellant.

      Benjamin J. Bucko, District Attorney (William A. Lange, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

When a witness identifies a defendant out of court, CPL 710.30 requires that if the People intend to have the witness identify the defendant at trial, they must serve upon the defendant a notice of their intention to use identification testimony within 15 days of arraignment. That section also states that the People must establish good cause for delay if they seek to serve this notice after the 15-day period.

In the case before us, the People failed to serve within 15 days of arraignment a notice of their intention to offer at trial the testimony of two witnesses, both of whom observed defendant inside their home and thereafter identified defendant at the police station. Nevertheless, the witnesses were allowed to identify defendant at trial.

On this appeal the People contend that they were properly allowed to serve a late notice because the delay did not prejudice defendant. However, the "[l]ack of prejudice to the defendant resulting from the delay does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice.” (People v O’Doherty, 70 NY2d 479, 481.) Thus, the identification testimony at issue was erroneously admitted into evidence at trial.

Moreover, under the circumstances of this case the error was not harmless. Here defendant was convicted of burglary in the second degree, and the erroneously admitted in-court identifications were the only direct evidence placing him inside the victims’ home.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, 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 Christopher Brown, Appellant.
    Argued October 15, 1987;
    decided November 24, 1987

      APPEARANCES OF COUNSEL

      Karen M. Kalikow, Philip L. Weinstein and Andrew C. Fine for appellant.

      Robert M. Morgenthau, District Attorney (Gino A. Zonghetti and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals his conviction after a jury trial of two counts of robbery in the first degree (Penal Law § 160.15 [2], [4]) and one count of robbery in the second degree (Penal Law § 160.10 [1]), claiming the trial court erred in denying his request for a charge of criminal possession of stolen property in the third degree (Penal Law former § 165.40 [now § 165.50]) as a lesser included offense of robbery. Criminal possession of stolen property in the third degree requires the possession, or the exercise of dominion or control, over tangible property (Penal Law § 10.00 [8]); the definitions of robbery in the first and second degrees are not so limited. Because the "theoretical impossibility” test in the definition of a lesser included offense cannot be met, the trial court properly refused defendant’s request (People v Glover, 57 NY2d 61; see, People v Wheeler, 67 NY2d 960). There is, therefore, no need to consider whether a reasonable view of the evidence would support a finding that the defendant committed criminal possession of stolen property in the third degree but not robbery in the first or second degree (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63, supra).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Gregory Bynum, Appellant.
    Argued October 14, 1987;
    decided November 24, 1987

      APPEARANCES OF COUNSEL

      Marsha Taubenhaus and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Gregory H. Mansfield and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of robbery in the second degree (Penal Law § 160.10 [2] [b]). The only issue defendant urges on this appeal — that the People failed to establish that the object he displayed to the victim appeared to be a lethal weapon— was not asserted at trial, and therefore has not been preserved for our review.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Val Thomas, Appellant.
    Argued October 14, 1987;
    decided November 24, 1987

      APPEARANCES OF COUNSEL

      Stephen P. Younger, Gregory L. Diskant, Craig A. Stewart and Douglass Maynard for appellant.

      Malcolm C. Hughes, District Attorney (Robert G. Davis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered. The trial court was without authority to condition its approval of defendant’s request for substitution of his retained counsel on retained counsel’s stipulation that if substituted, he would not move for a continuance. As contrasted with People v Arroyave (49 NY2d 264), defendant’s retained counsel here, just before jury selection was to commence, stated unequivocally to the court that if his motion for a continuance were denied he would proceed to trial.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Leonard Greene, Appellant. The People of the State of New York, Appellant, v Alex Bogan, Respondent.
    Argued November 10, 1987;
    decided November 24, 1987
    APPEARANCES OF COUNSEL

      Monroe A. Semble and John F. Middlemiss for appellant in the first above-entitled action.

      Elizabeth Holtzman, District Attorney (Linda Starr and Barbara D. Underwood of counsel), for appellant in the second above-entitled action.

      Patrick Henry, District Attorney (Michael J. Miller of counsel), for respondent in the first above-entitled action.

      John Gemmill and Philip L. Weinstein for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in People v Greene should be affirmed. The order of the Appellate Division in People v Bogan should be reversed and the case remitted to the Appellate Division for a determination of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).

In People v Greene, defendant appeals from an order affirming his conviction of assault in the second degree (Penal Law § 120.05). In People v Bogan, the People appeal from an order which modified defendant’s judgment of conviction, on the law, by reducing the conviction for robbery in the second degree (Penal Law § 160.10 [2] [a]) to robbery in the third degree (Penal Law § 160.05). The common issue in these appeals is whether the defendants’ motions for dismissal should have been granted because the People failed to prove that the victim suffered "physical injury” (Penal Law § 10.00 [9]). Penal Law § 10.00 (9) defines physical injury as "impairment of physical condition or substantial pain”.

In Greene, there was proof that defendant tripped the victim, sat on him, kicked him in the ribs, and cut him over the eye and on the hand with a knife. The victim testified that he was "in terrible pains” and had "a lot” of pain from his injuries. Although the victim did not go to the hospital, he bled "all over” and he had to wear bandages on the lacerations for three weeks. At the time of trial he had "permanent spots” left from the cuts on his hand.

In Bogan, there was proof that defendant grabbed the victim around the neck, pushed him to the floor, and choked him. As a result, the victim stopped breathing momentarily and lost consciousness temporarily. Shortly after the incident, he was taken to the hospital, diagnosed as having sustained contusions on his neck, and given medication. The victim stated that he suffered from pain and had difficulty swallowing for two days after the incident.

We conclude in both cases that there is sufficient evidence for the jury to have found that injuries received by the victim constituted "physical injury” within the meaning of Penal Law § 10.00 (9) (see, People v Rojas, 61 NY2d 726, 727; People v Jimenez, 55 NY2d 895, 896; Matter of Philip A., 49 NY2d 198, 200).

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

In People v Greene: Order affirmed in a memorandum.

In People v Bogan: Order reversed and case remitted to the Appellate Division, Second Department, for determination of the facts in a memorandum.


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    In the Matter of James R. Lenney, as a Justice of the Herkimer Village Court, Herkimer County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Decided November 24, 1987
   Request for review dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the court does not have jurisdiction to entertain a request for review of an order denying reconsideration of the Commission on Judicial Conduct’s determination of removal (NY Const, art VI, § 22; Judiciary Law § 44).


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    The People of the State of New York, Respondent, v Augustus Qualls, Appellant.
    Argued October 12, 1987;
    decided November 25, 1987

      APPEARANCES OF COUNSEL

      Andrew C. Fine and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Allen M. Hecht and Kevin D. McLoone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to the trial court for a hearing on defendant’s motion to vacate his judgment of conviction.

Defendant’s conviction by jury for murder in the second degree and criminal possession of a weapon in the second degree having been affirmed (People v Qualls, 55 NY2d 733), defendant moved pursuant to CPL 440.10 to set aside the judgment of conviction on the ground of prosecutorial misconduct. Specifically, defendant argued that the District Attorney knowingly used perjured testimony and failed to disclose the existence of an express agreement between the prosecutor and the witness that the People would recommend the minimum sentence on the witness’s unrelated pending charge in exchange for favorable testimony in this and another homicide case (see, People v Cwikla, 46 NY2d 434; People v Mangi, 10 NY2d 86; People v Zimmerman, 10 NY2d 430; People v Savvides, 1 NY2d 554). Supreme Court denied defendant’s motion without a hearing on the ground that "[although facts in support of the ground * * * raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review * * * upon [direct] appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence” as is required by CPL 440.10 (3) (a) (People v Friedgood, 58 NY2d 467, 471). The Appellate Division affirmed.

We conclude, however, that the trial court abused its discretion in denying defendant’s motion without a hearing (People v Friedgood, 58 NY2d 467, 470, supra; People v Brown, 56 NY2d 242). At defendant’s trial, the People relied on the testimony of one Eugene Rambert who had been previously convicted of several offenses and was awaiting sentence on another charge. After Rambert’s direct examination, defense counsel requested a side bar at which time he asked the prosecutor "what deal or what arrangements if any or what promises if any were made by either counsel or anyone in his office or anyone in the prosecutor’s staff * * * [or] copies of any transcript, letters or anything that was done on behalf of [Rambert] that might have induced him to testify [falsely]”. The prosecutor responded that the "People will at [the] time of [Rambert’s] sentence recommend that this be taken into consideration. No other promises have been made * * * We made no promises.” Rambert’s testimony also reflected these to be the terms of the agreement, and during summation, the prosecutor argued to the jury that "[t]he only promise made to [Rambert] was that the People would, at the time he was sentenced, tell the court the full extent of his cooperation”. Defense counsel was entitled to rely on the representation of the prosecutor — an officer of the court — that there were no other or specific promises made. When this was confirmed by the witness’s testimony and reaffirmed by the prosecutor himself in summation, there was no reason for defense counsel to question the veracity of the prosecutor’s representation to the court.

Moreover, it appears defendant could not have discovered with due diligence before his sentencing that the terms of the People’s agreement with Rambert may have been otherwise. The Legal Aid Society was assigned to prosecute defendant’s appeal and the appeal of one Raymond Tinsley — the other homicide case in which Rambert testified on behalf of the People. Only when Legal Aid received Tinsley’s trial transcripts — long after defendant had been sentenced — was it discovered that Rambert had testified at that trial that he had been promised that the District Attorney’s office would do whatever it could to have Rambert’s pending sentence reduced from the bargained-for term of 5 Vz to 11 years to a term of IV2 to 3 years in exchange for his testimony at the Tinsley trial and against this defendant. In opposition to the instant motion, the People submitted an affirmation from the trial assistant, who had been in charge of the Rambert prosecution and who, prior to the Tinsley trial, had made the purported agreement with Rambert. That affirmation set forth the following: "The undersigned made a verbal agreement with Eugene Rambert that if he cooperated with the prosecution it would innure [sic] to his benefit and reduce his sentence. The undersigned did not make a specific promise to Eugene Rambert in terms of his final sentence”. Significantly, it appears from defendant’s submissions on this motion that prior to defendant’s trial, the trial assistant in charge of Rambert’s case, in consultation with the trial assistant in charge of this defendant’s case, arranged for Rambert’s parole pending sentence, and at Rambert’s sentencing recommended a IV2- to 3-year period of incarceration — the precise sentence that Rambert testified, at the Tinsley trial, had been promised.

Thus, on these submissions it appears that defendant’s failure to bring to light the underlying facts of the alleged prosecutorial misconduct before his sentencing was not through lack of due diligence, and that issues of fact were raised as to whether there was indeed a specific promise made to Rambert to secure a further reduction of his sentence to 1 Vi to 3 years, and whether the facts in respect thereto were incompletely represented at trial (see, People v Mangi, 10 NY2d 86, supra; People v Savvides, 1 NY2d 554, supra). The trial court therefore erred in denying defendant’s motion without a hearing.

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

Order reversed and matter remitted to Supreme Court, Bronx County, for a hearing in a memorandum.


text:
    In the Matter of Albert Hartje et al., Appellants, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Decided November 25, 1987

      APPEARANCES OF COUNSEL

      Lee A. Davis and David C. Leven for appellants.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Frank K. Walsh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by deleting so much of that order as remitted the matters to respondent for new hearings, directing that all references to the proceedings be expunged and otherwise affirmed.

Upon respondent’s concession that the challenged disciplinary determinations were not supported by substantial evidence, but that there was additional evidence that would support them, the Appellate Division annulled the determination and remitted the misbehavior charges to the Department of Correctional Services for new hearings. We hold that remittitur was improper under these circumstances. The Department had a full opportunity to present the cases against petitioners when the first hearings on the misbehavior charges were conducted. The Department cannot now be permitted to hold new hearings so that it can present additional evidence that was available but unaccountably withheld at the first hearing (cf., Matter of Shipman v Coughlin, 98 AD2d 823, 824 [rehearing permitted following appellate reversal for procedural impropriety]).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacos a concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Felix Cortijo, Appellant.
    Argued October 8, 1987;
    decided November 25, 1987

      APPEARANCES OF COUNSEL

      Abigail Everett and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Phyllis A. Monroe and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of attempted murder in the second degree and criminal possession of a weapon in the third degree for shooting a neighbor during an altercation. Prior to trial, defendant demanded that the prosecution disclose all Brady material. During the People’s case-in-chief, defendant discovered that the People were aware of two eyewitnesses to the incident whom they had not called as witnesses at trial and whose identity had not been revealed to defendant. Pursuant to the trial court’s order, the People produced one eyewitness along with a statement he had given to the police. After interviewing the eyewitness in private, defendant decided not to call him as a defense witness. In addition, after examining the statement, defense counsel declined the court’s offer to reopen the People’s case and to have the prosecution’s witnesses recalled so that he could use the statement for additional cross-examination.

Defendant argues that the statement given by the eyewitness was exculpatory and that the People’s failure to disclose it prior to trial requires a reversal. Whether the information contained in the statement meets the Brady requirement that it be exculpatory is problematic. We need not, however, decide that issue for defendant would not be entitled to a new trial, even assuming the material to be exculpatory. We have previously held that "[w]hile the People unquestionably have a duty to disclose exculpatory material in their control,” a defendant’s constitutional right to a fair trial is not violated when, as here, he is given a meaningful opportunity to use the allegedly exculpatory material to cross-examine the People’s witnesses or as evidence during his case (see, People v Brown, 67 NY2d 555, 559; People v Smith, 63 NY2d 41, 68; People v Stridiron, 33 NY2d 287, 292-293).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Jerry Lee Knox, Appellant, v Walter Kelly, as Superintendent, Attica Correctional Facility, et al., Respondents.
    Argued November 17, 1987;
    decided November 25, 1987
   Appeal dismissed, without costs, upon the ground that relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    The People of the State of New York Appellant, v George Corbett, Respondent.
    Decided November 25, 1987
   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 Appellate Division’s determination of modification 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 * * * modification” (CPL 450.90 [2] [a]).


text:
    In the Matter of Jimmie L. Allen, Appellant, v J. J. Strojnowski et al., Respondents.
    Submitted November 9, 1987;
    decided November 25, 1987
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division, absent direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Florence Gross, Respondent, v Board of Education of the Elmsford Union Free School District, Appellant, and Alice Moffatt et al., Respondents.
    Submitted October 19, 1987;
    decided November 25, 1987
   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 it is not a nonfinal order of the type which is within the meaning of CPLR 5602 (a) (2).


text:
    Karin F. DeCabrera, Respondent, v Jorge A. Cabrera-Rosete, Appellant.
    Argued November 11, 1987;
    decided December 15, 1987

      APPEARANCES OF COUNSEL

      Gerald Zuckerman and Jack Minoff for appellant.

      William D. London and A. Albert Buonamici for respondent.
   OPINION OF THE COURT

Memorandum.

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

As found by Trial Term and affirmed by the Appellate Division, approximately one year after their marriage, plaintiff wife and defendant husband in May 1979 purchased a cooperative apartment on East 72nd Street in Manhattan. The entire purchase price — $182,000—was paid from money in plaintiff’s account in a German bank, which she had opened prior to marriage with a $200,000 gift from her father. Before and after the purchase, the parties agreed that defendant would transfer all of his right, title and interest in the apartment to plaintiff upon her request. The stock certificate representing ownership of the apartment was registered in the names of both spouses to satisfy income requirements of the cooperative. However, on May 4, 1979, defendant signed a statement confirming that the apartment was paid for by plaintiff, and that upon plaintiff’s request he would transfer his rights in it to her. In June 1982, defendant moved out of the apartment, having committed various cruel and inhuman acts which endangered plaintiff’s physical and mental well-being, rendering it unsafe and improper for her to continue living with him. Prior and subsequent to moving out, defendant refused and neglected to provide for the support of plaintiff. On a number of occasions, plaintiff requested that he endorse to her the stock certificate representing ownership of the apartment, but defendant refused. Financial statements of both parties were before the trial court. Defendant acknowledges that he is (and was at the time of the marriage) owner of a home in Darien, Connecticut, as his financial statement revealed.

Following trial of plaintiff’s action for divorce and related relief, judgment was granted dissolving the marriage. Relying on Kobylack v Kobylack (110 Misc 2d 402, mod 96 AD2d 831, revd 62 NY2d 399) and Barnes v Barnes (106 AD2d 535), which the trial court found closely akin to the facts of this case, the court declined to award defendant any equitable share in the apartment, and additionally ordered defendant to pay $10,000 in counsel fees and $24,591.31 for "legal necessities” consisting of apartment maintenance fees and utilities. The Appellate Division affirmed. Before us defendant now urges that the courts below erred in three respects — first, in failing to grant him a share of the appreciated value of the apartment; second, in awarding plaintiff counsel fees; and third, in compelling him to reimburse plaintiff for her expenditures for apartment maintenance and utilities. Based on this record and the affirmed findings that defendant’s contributions were minimal or nonexistent, we conclude that it was not an abuse of discretion for the trial court to deny defendant any share in the appreciated value of the apartment. We need not reach defendant’s contention that in some manner the appreciation became marital property.

Nor can it be said that there was an abuse of discretion in awarding counsel fees to plaintiff without a showing that she was in need. Pursuant to Domestic Relations Law § 237 (a), a court in a divorce action may award counsel fees to a spouse "to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and the respective parties.” Section 237 replaced section 1169 of the Civil Practice Act, and — significantly—omitted the word "necessary” which had preceded the phrase "to enable the wife to carry on or defend the action.” This omission left the courts with flexibility when considering applications for counsel fees (see, Report on Joint Legislative Comm on Matrimonial & Family Laws, 1961 NY Legis Doc No. 19, at 80-83, 98; Rothenberg, Matrimonial Allowances in New York § 30, at 51 [1976 Supp]). Indigency is not a prerequisite to an award of counsel fees (see, Walsh v Walsh, 92 AD2d 345). Rather, in exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions. By like token, the trial court’s discretionary award to plaintiff of reimbursement for apartment maintenance and utilities may not be disturbed.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, 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, Respondent, v Felton Cavines, Appellant.
    Argued November 13, 1987;
    decided December 15, 1987
    APPEARANCES OF COUNSEL

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

      John J. Santucci, District Attorney (Alexander P. Schlinger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On December 12, 1982, defendant pointed a gun at Ron Humphrey. Humphrey threw himself to the ground, put his hands over his face, and heard two clicks, but the gun did not fire. Humphrey fled. After defendant and the gun were seized, Humphrey identified both. The gun was examined and found to be loaded with live ammunition but jammed. A member of the Police Emergency Services Unit (ESU) examined the gun and determined that the bullet had to be removed because "it’s possible the thing could go off again.” He dismantled the gun and removed the jammed round of ammunition; the gun was reassembled. The officer observed that the bullet had a small dent, indicating that it had been struck by the gun’s firing pin when the trigger was pulled. A member of the Police Ballistics Squad then test-fired the gun and the ammunition; both worked. Following a jury trial, defendant was acquitted of attempted murder and criminal use of a firearm, but convicted of criminal possession of a weapon in the second degree (Penal Law § 265.03). On appeal, defendant contends that his conviction should be reversed on the ground that the prosecution failed to sustain its burden of proving that the firearm was operable when he possessed it, and the People urge that they satisfied this burden.

Viewing the evidence most favorably for the prosecution, the evidence was sufficient to support the jury’s finding that the gun and the ammunition were operable. The jury was entitled to conclude from the evidence that the ESU officer did not materially alter the gun when he removed the jammed bullet, and that the gun could readily have discharged. Moreover, the fact that the gun malfunctioned, standing alone, does not defeat the overwhelming inference that immediately prior to the pulling of the trigger, the gun was capable of discharging the ammunition, particularly in view of the uncontradicted evidence that when subsequently test-fired, the gun and the bullets were found to be operable (compare, People v Shaffer, 66 NY2d 663, 664 [evidence of operability insufficient where gun misfired and ammunition was not test-fired to establish that it was live]).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Anthony Jackson, Also Known as Tony Williams, Appellant.
    Argued November 17, 1987;
    decided December 15, 1987
    APPEARANCES OF COUNSEL

      Susan H. Salomon and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Mary Agnes Lynch and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this single eyewitness identification case, defendant appeals his conviction, after a jury trial, of first degree robbery (Penal Law § 160.15 [4]) and third degree grand larceny (Penal Law former § 155.30 [5]), claiming he was denied a fair trial, in that the People were permitted, over objection, to refer to defendant during their opening statement and during the testimony of the arresting officer, as having become a "suspect” in the "investigation” soon after the incident based upon a description the victim had provided of his assailant. Defendant assigns error to such references, arguing that they were irrelevant, that they raised the impermissible inference that the victim had identified him during the three months between the incident and the lineup, and that they, in effect, served to implicitly bolster the victim’s identification. Even if we were to conclude that these references constituted legal error, under the facts of this case such error would be harmless in view of the evidence that the victim unhesitatingly and unequivocally identified defendant at the lineup.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Ronald Gamble, Respondent.
    Argued November 9, 1987;
    decided December 15, 1987

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Kathleen E. Fay and Mark Dwyer of counsel), for appellant.

      Robert S. Dean and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed.

We agree with the majority at the Appellate Division that defendant’s written confession and portions of his oral statement were obtained in violation of his right to counsel, which he invoked by his negative response when asked whether he was "willing to answer questions without an attorney present” (see, People v Carmine A., 53 NY2d 816, 818; People v Cunningham, 49 NY2d 203). Accordingly, the Appellate Division properly ruled that such oral and written statements should have been suppressed.

The Appellate Division’s determination that defendant’s remaining statements were admissible because they were made spontaneously is not before us on this appeal inasmuch as defendant, the party aggrieved by that ruling, is not an appellant here.

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

Order insofar as appealed from affirmed in a memorandum.


text:
    Leo Blank, Individually and as a Shareholder of Premium Gas Service, Inc., Appellant, v Jay Schafrann et al., Respondents, et al., Defendant.
    Argued November 18, 1987;
    decided December 15, 1987

      APPEARANCES OF COUNSEL

      Stephen L. Oppenheim for appellant.

      Barry Golomb, respondent pro se, and for Robert Blank, respondent.

      Michael M. Platzman, respondent pro se, and for Martin Rosenblum and others, respondents.

      Jay H. Schafrann, respondent pro se.

   OPINION OF THE COURT

Order reversed, with costs, and the motion to dismiss the complaint as against defendants Schafrann, Platzman, Rosenblum, McBride and Golomb denied for the reasons stated in the dissenting memorandum by Justice Howard A. Levine at the Appellate Division (129 AD2d 830, 831-833).

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


text:
    Guardian Life Insurance Company of America, Inc., Appellant, v Merlin C. Schaefer, Respondent.
    Argued November 11, 1987;
    decided December 15, 1987

      APPEARANCES OF COUNSEL

      Robert D. Meade for appellant.

      Michael B. Golden for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, Guardian Life Ins. Co. of America (Guardian), contracted with defendant, Merlin Schaefer, on December 18, 1981 to sell him disability insurance. The policy was ’’backdated” to expressly indicate that its ’’date of issue” was December 4, 1981. According to Guardian, such back-dating accorded with its customary practices and enabled Schaefer to take advantage of a reduced premium rate. The policy also provided that its ’’effective date” was February 25, 1982. The policy’s incontestability clause, part of the contract pursuant to statutory mandate, recited that after the policy was "in force” for two years, Guardian would be barred from voiding it because of material misstatements by the insured.

Schaefer became disabled on May 19, 1983 and on February 23, 1984, Guardian commenced this action to void the policy on the ground that it would not have been issued but for Schaefer’s false statements. Schaefer counterclaimed, seeking a declaration that the policy was in full force and an order compelling Guardian to fulfill its obligations under the insurance contract. Schaefer argued that the two-year incontestability clause began to run on December 4, 1981, the "date of issue”, and that, therefore, Guardian was now prevented from voiding the policy for misstatements. On Schaefer’s motion for summary judgment, the Supreme Court granted the relief he sought. The Appellate Division subsequently affirmed, without opinion.

Resolution of this dispute depends on whether the term "in force,” as used in the incontestability clause, means the "date of issue” or the "effective date” of the policy. Nowhere does the policy itself or the applicable statute governing incontestability clauses in accident and health policies (Insurance Law § 3216 [d] [1] [B] [i]) define the term "in force.” That phrase arguably could apply to either the date of issue or the effective date. Thus, the term "in force” is ambiguous and the rule of construction that ambiguities in contracts must be construed against the drafter (Killian v Metropolitan Life Ins. Co., 251 NY 44), is applicable.

Here, the insured is entitled to the inference that the term "in force,” as used in the incontestability clause, refers to the date of issuance, December 4, 1981. Accordingly, the insurer’s time to void the policy on grounds of material misstatements ended on December 3, 1983 and its obligations to the insured became fixed at that time.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Patrick Hamilton, Appellant.
    Submitted November 2, 1987;
    decided December 15, 1987
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely (CPL 460.30 [1]).