text:
    In the Matter of Sheena Lisette N. and Sonia Liviv N. Little Flower Children’s Services, Respondent; Vivian N., Appellant.
    Submitted April 17, 1989;
    decided June 30, 1989
   Motion for leave to appeal denied. Motion for assigned counsel and poor person relief dismissed as academic. Cross motion to dismiss the appeal granted and the appeal dismissed upon the ground that no substantial constitutional question is directly involved.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v Hardy Renaud, Respondent.
    Submitted March 27, 1989;
    decided June 30, 1989
   Motion to dismiss the appeal granted and the appeal dismissed for mootness.


text:
    Nancy P. Summers et al., Appellants, v County of Monroe et al., Respondents.
    Decided June 30, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground as to defendant Monroe County Human Relations Commission, that no substantial constitutional question is directly involved, and upon the ground as to the remaining defendants, that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    William Muschel, Inc., Respondent, v Mary Anthony, Appellant.
    Submitted June 29, 1989;
    decided June 30, 1989
   Motion for a stay granted pending determination of motion for leave to appeal.


text:
    In the Matter of Greer Woodycrest Children’s Services, Appellant, v Andrea S. Fountain, as Assessor of the Town of Union Vale, et al., Respondents.
    Argued June 1, 1989;
    decided July 6, 1989

      APPEARANCES OF COUNSEL

      Gerald E. Bodell for appellant.

      William G. Crane, Albert P. Roberts and Stacy P. Parsons for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division that petitioner’s real property, now being used as a retirement community for "middle-income” elderly does not qualify for a tax exemption under Real Property Tax Law § 420-a (see, Matter of Presbyterian Residence Center Corp. v Wagner, 66 AD2d 998, affd 48 NY2d 885). A clearer statement of intent by the Legislature would be required for this type of residential facility to be entitled to exemption from the real estate tax.

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

Order affirmed, with costs, in a memorandum.


text:
    William Namad, Appellant, v Salomon Inc., et al., Respondents.
    Decided July 6, 1989

      APPEARANCES OF COUNSEL

      Adam B. Gilbert for appellant.

      Thomas J. Kavaler for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was an employee of defendant Philipp Brothers from February 1966 until December 1986. In February 1983, the parties signed an employment contract that included the following bonus compensation clause: "The amounts of other compensation and entitlements, if any, including regular bonuses, special bonuses and stock awards, shall be at the discretion of the management * * *. Such bonuses as are awarded will be consistent with the customary policy of the company.” Plaintiff sued on the contract alleging he received less compensation in the form of bonuses than was the "customary policy of the company”. The issues on this appeal are whether parol evidence is required to interpret the contract’s bonus clause and whether plaintiff presented evidentiary facts sufficient to defeat defendants’ motion for summary judgment dismissing the complaint.

Parol evidence is inadmissible if a contract is clear on its face and sufficient alone to divine the intent of the parties (see, 4 Williston, Contracts §§ 631, 632A, at 974, 985-986 [3d ed 1961]). Here, the bonus clause unambiguously vests discretion regarding the amount of bonus compensation to be awarded in defendants’ management. To read the second sentence of the bonus clause as binding defendants to pay plaintiff a fixed amount approximating his annual salary — as he alleges was the "customary policy” — would render the previous sentence vesting defendants with complete discretion a nullity. Such a construction is untenable (see, Two Guys v S.F.R. Realty Assocs., 63 NY2d 396, 403; 4 Williston, op. cit., § 601, at 308). Additionally, plaintiff’s argument that the bonus clause entitles him to payments approximately equal to his previous annual salary of $170,000 is unpersuasive as the parties would be expected to make reference to such a large sum of money in the agreement with particularity (cf., Braten v Bankers Trust Co., 60 NY2d 155, 162). Because the bonus clause is reasonably susceptible of only one interpretation, which may be gleaned from the face of the contract, the Appellate Division properly denied the admission of extrinsic evidence and granted defendants’ motion for summary judgment (Chimart Assocs. v Paul, 66 NY2d 570, 572-573).

In any event, plaintiff’s unsupported affidavit failed to present facts in evidentiary form sufficient to raise a triable issue of fact as to defendants’ customary policy in awarding bonus compensation (see, Sutton v East Riv. Sav. Bank, 55 NY2d 550, 553-554). Where, as here, "a written agreement between sophisticated, counseled businessmen is unambiguous on its face,” plaintiff "cannot defeat summary judgment by a conclusory assertion that * * * the writing did not express his own understanding of the oral agreement reached during negotiations” (see, Chimart Assocs. v Paul, supra, at 571).

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

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


text:
    Robert L. Ginter et al., Appellants, v Trans World Airlines, Inc., Respondent.
    Decided July 6, 1989

      APPEARANCES OF COUNSEL

      Frederick J. DeFilippo for appellants.

      John J. Ryan, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (148 AD2d 787).

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


text:
    In the Matter of Richard D. Zwitzer et al., Respondents, v Zoning Board of Appeals of the Town of Canandaigua, Appellant.
    Argued June 6, 1989;
    decided July 6, 1989

      APPEARANCES OF COUNSEL
    A. Paul Britton and Susan A. Roberts for appellant.

      Thomas G. Collins for respondents.
   OPINION OF THE COURT

Memorandum.

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

We agree, for so much of the reasons stated in the majority memorandum of the Appellate Division, that the Board of Zoning Appeals lacked a rational basis for granting only a partial 4% area variance rather than the entreatied 7% one. Petitioner property owner, having established to the satisfaction of the Canandaigua Zoning Board of Appeals that he would suffer significant economic injury by the strict application of the zoning ordinance in this pertinent respect, was entitled to the area variance as sought because, there being no material difference between it and the granted reduced one, the Board’s action was arbitrary and capricious. The annulment of the Board’s determination by the judgment of the Supreme Court, affirmed by the Appellate Division, is within the customary and narrow judicial review function governing such matters.

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

Order affirmed, with costs, in a memorandum.


text:
    Frederick D. Dorfman, as Executor of Rupert J. Smith, Jr., Deceased, et al., Appellants, v Frederic P. Putnam, Respondent.
    Submitted April 10, 1989;

    decided July 6, 1989
   Motion for substitution of party granted. Motion for leave to appeal denied. Cross motion for leave to appeal dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Patricia Kuk, Appellant, v General Electric Company, Respondent. Workers’ Compensation Board, Respondent.
    Submitted April 24, 1989;
    decided July 6, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal to that court from the Workers’ Compensation Board’s February 24, 1987 decision, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Chief Judge Wachtler and Judge Simons taking no part.


text:
    In the Matter of Frank McConnell, Appellant. Warren Harris, as Clinical Director of St. Lawrence Psychiatric Center, Respondent.
    Submitted May 1, 1989;
    decided July 6, 1989
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Residential Board of Managers of Olympic Tower Condominium, Respondent, v AI International Corp., Defendant, and Karen de Kleinman, Appellant. Karen de Kleinman, Appellant, v Residential Board of Managers of Olympic Tower Condominium et al., Respondents.
    Submitted April 24, 1989;
    decided July 6, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied the motion for enlargement of the time within which to perfect the appeal, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    George Sassower, Appellant, v Francis T. Murphy et al., as Justices of the Supreme Court, New York and Westchester Counties, Respondents.
    Submitted April 24, 1989;
    decided July 6, 1989
   On the court’s own motion, appeal dismissed, without costs, upon the ground that, as to the appeal from the March 14, 1989 Appellate Division order, that order does not finally determine the action within the meaning of the Constitution, and upon the ground that, as to the appeal from the March 9, 1989 order, no substantial constitutional question is directly involved. Motion for disqualification of attorneys, etc., dismissed as academic. Motions for summary relief, etc., dismissed upon the ground that the Court of Appeals has no jurisdiction to entertain the motions (NY Const, art VI, § 3). Judge Bellacosa taking no part.


text:
    William Vancour et al., Appellants, v Kirsch Beverages, Inc., Doing Business as Canada Dry Bottling Company of New York, et al., Respondents.
    Submitted April 17, 1989;
    decided July 6, 1989
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order affirming (1) the grant of the motion for a stay pending arbitration and (2) the denial of the motion for summary judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Nicolas Velez et al., Appellants, v Board of Appeals of the City of New Rochelle et al., Respondents.
    Submitted April 17, 1989;
    decided July 6, 1989
   Motion for leave to appeal denied. On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Mary G. Mullen, as Executrix of Leo J. Mullen, Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Submitted May 22, 1989;
    decided July 6, 1989
   Motion for substitution of party granted. Motion for leave to appeal granted.


author: Bellacosa, J.

text:
    In the Matter of Lansdown Entertainment Corporation, Doing Business as The Limelight, Respondent, v New York City Department of Consumer Affairs et al., Appellants.
    Argued June 6, 1989;
    decided July 11, 1989

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Julian L. Kalkstein and Larry A. Sonnenshein of counsel), for appellants.

      James M. Felix and Stephen E. Powers for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner operates the Limelight, a popular discotheque, which is licensed as a "cabaret” by respondent New York City Department of Consumer Affairs pursuant to subchapter 20 of chapter 2 of title 20 of the Administrative Code of the City of New York (the Cabaret Law). The Limelight is also licensed to sell liquor for consumption on its premises pursuant to the New York State Alcoholic Beverage Control Law (Alcoholic Beverage Control Law § 106). The Cabaret Law requires licensed cabarets to close between the hours of 4:00 a.m. and 8:00 a.m. (Administrative Code of City of New York § B32303.0 [renum § 20-367]). The applicable State law prohibits the sale of alcohol after 4:00 A.M., but permits patrons to continue to consume alcoholic beverages upon the premises until 4:30 a.m. (Alcoholic Beverage Control Law § 106 [5] [b]). Although both laws prohibit the sale of alcohol past 4:00 A.M., the State law thus permits patrons to remain on the premises consuming alcohol until 4:30 A.M., while the Cabaret Law does not. Relying on this conflict, petitioner maintains that this provision of the Cabaret Law is preempted by the State law. We agree.

In People v De Jesus (54 NY2d 465) this court held that the Alcoholic Beverage Control Law is preemptive of local law because the regulatory system is both "comprehensive and detailed” (id., at 469). Consequently, we held that a Rochester City ordinance prohibiting persons from patronizing an establishment selling alcoholic beverages after 2:00 a.m. was preempted by the State law because "by prohibiting persons from patronizing such establishments at times when State law would permit them to do so, the local law, in direct opposition to the pre-emptive scheme, would render illegal what is specifically allowed by State law” (id., at 472).

In De Jesus, however, we noted that establishments selling alcoholic beverages are not exempt from local laws of general application. Such laws are principally aimed at legitimate concerns of local government and do not directly affect the field preempted by the State law. For example, laws "requiring smoke alarms in all business premises, or * * * forbidding dumping of refuse on city sidewalks, or * * * prohibiting disorderliness at any 'place of public resort’ ” (People v De Jesus, 54 NY2d 465, 471, supra, citing People v Hardy, 47 NY2d 500), would not be preempted if their enforcement incidentally infringed on the State Alcoholic Beverage Control Law.

Relying on this exception to the preemption rule, respondent argues that section B32-303.0 of the Administrative Code is a statute of general application because it is founded upon a legitimate exercise of local police power in that it seeks to maintain the peace, comfort and decency of residential neighborhoods by controlling noise and traffic. Additionally, respondent maintains that this ordinance is not preempted because it does not explicitly regulate the sale of alcohol as did the regulation in De Jesus. These contentions are without merit.

As Supreme Court concluded, the legislative history of the City ordinance does not "indicate a specific intent * * * to exercise a legitimate local function such as maintaining the peace and quiet of residential neighborhoods.” Rather, "historical analysis indicates that for most of its life, the local law merely mirrored the State law.” (133 Misc 2d 206, 210.) In fact, there is a dearth of legislative history to support respondent’s claim.

Nevertheless, even assuming that this local ordinance was adopted for the claimed purpose, this conclusion would not alone be sufficient to surmount the preemption hurdle. Even where the local goal does not conflict with State legislative objectives, the locality must still tailor its ordinance to ensure that its impact upon the preempted field is merely incidental. Compelling a business licensed by the State Liquor Authority to close at a time at which customers are otherwise permitted to remain on the premises and consume alcoholic beverages directly regulates subject matter within the exclusive jurisdiction of the State (see, People v De Jesus, 54 NY2d 465, 470, n 3, supra). In this regard, there is a head-on collision between the City ordinance as it is applied to establishments also licensed by the State. Since the State has preempted any local regulation concerning the subject matter of hours of operation, distribution, or consumption, local laws which concern the same subject matter must give way to the State law (see, Dougal v County of Suffolk, 102 AD2d 531, 532-533, affd 65 NY2d 668; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350-351).

That the City ordinance is not explicitly directed at the sale or consumption of alcoholic beverages is of no consequence since application of the preemption doctrine does not turn on semantics. Rather, the direct consequences of a local ordinance should be examined to ensure that it does not "render illegal what is specifically allowed by State law” (People v De Jesus, 54 NY2d 465, 472, supra; see, e.g., Wholesale Laundry Bd. of Trade v City of New York, 12 NY2d 998, affg 17 AD2d 327).

The suggestion raised in the dissenting opinion that the State Alcoholic Beverage Control Law preempts only those local laws which pertain to the sale and distribution of alcohol, as opposed to the consumption of alcohol, ignores both the plain wording of the State law at issue (Alcoholic Beverage Control Law § 106 [5] [b] ["Nor shall any person be permitted to consume any alcoholic beverages upon any such premises”; emphasis supplied]), as well as this court’s decision in De Jesus (see, People v De Jesus, supra, at 470, n 3; see also, id., at 472 [Gabrielli, J., dissenting] [the State has preempted the field " 'for the purpose of fostering and promoting temperance in (the public’s) consumption and respect for and obedience to law’ emphasis supplied]). In addition, the argument that the local law is not inconsistent with the State statute (dissenting opn, at 766) is founded on the view that the local law does not prohibit "an act which has been specifically permitted by State law.” (Id., at 767 [emphasis supplied].) To the contrary, the State law specifically allows patrons to remain on the premises consuming alcohol until 4:30 a.m., while the local law does not. This is not a tiny overlap (see, id.), but a direct conflict. Where a State law indicates a purpose to occupy an entire field of regulation, as exists under the Alcoholic Beverage Control Law, local regulations are preempted regardless of whether their terms conflict with provisions of the State statute or only duplicate them (see, Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 106-107; People v De Jesus, 54 NY2d 465, 468-469, supra; Dougal v County of Suffolk, 102 AD2d 531, 532-533, affd 65 NY2d 668, supra). If a local ordinance which merely duplicates a State law is preempted, assuredly a local law which conflicts with the State law must also be preempted.

Bellacosa, J.

(dissenting). I disagree that the City of New York’s local legislative effort to close all cabarets, dance halls and catering establishments for four hours, between 4:00 a.m. and 8:00 a.m., is preempted by the State Alcoholic Beverage Control Law.

No one challenges the New York State Alcoholic Beverage Control Board’s comprehensive authority to regulate the sale and distribution of alcoholic beverages. That State law overrides any local legislation which would purport to regulate the sale and distribution of alcohol. Thus, if the purpose or effect of Administrative Code of the City of New York § B32-303.0 were to regulate the hours of sale of alcoholic beverages, it would be invalid and unenforceable (People v De Jesus, 54 NY2d 465, 472). But that is not what this local law does in the context of local governments’ prerogatives to enact local laws of general application which are aimed at other legitimate concerns of local government so long as they do not intrude essentially on the State’s exclusive control over the sale or distribution of alcohol (People v De Jesus, supra, at 471).

Administrative Code § B32-303.0 (renum § 20-367) provides, without any reference whatsoever to the sale or distribution of alcoholic beverages, that all cabarets, catering establishments and public dance halls in the City of New York must be closed to the public between the hours of 4:00 a.m. and 8:00 a.m. The local law is generally applicable in the City of New York to every establishment, whether it is licensed to sell alcoholic beverages or not. Alcoholic Beverage Control Law § 106 (5) affects only those establishments licensed to sell alcoholic beverages for on-premises consumption and prohibits sale or distribution of alcoholic beverages between 4:00 a.m. and 8:00 a.m. (to noon on Sundays). It further forbids such establishments from permitting customers to continue to consume alcoholic beverages on premises any later than 4:30 a.m.

In a not unrelated development with respect to a similarly directed New York City statute, the United States Supreme Court, on June 22, 1989, said: "It can no longer be doubted that government 'ha[s] a substantial interest in protecting its citizens from unwelcome noise.’ This interest is perhaps at its greatest when government seeks to protect 'the well-being, tranquility, and privacy of the home,’ but it is by no means limited to that context, for the government may act to protect even such traditional public forums as city streets * * * from excessive noise.” (Ward v Rock Against Racism, 491 US —, 109 S Ct 2746, — [citations omitted].) If that New York City quality-of-life noise control law could pass constitutional muster measured against the First Amendment of the United States Constitution, surely the similarly targeted local law under challenge here ought not fall before that hardly comparable paragon, the State Alcoholic Beverage Control Law.

The local law serves the legitimate local government concern of maintaining the peace and quiet of its municipal neighborhoods for a brief and relevant portion of each day. It makes no effort to control the sale of and distribution of alcoholic beverages. To be sure, the local law may incidentally affect the consumption of alcohol for one overlapping half hour in the wee hours when most people are turning over for the last time before getting up to go to work. It is that one-half hour during which the Alcoholic Beverage Control Law itself forbids sale and merely tolerates patrons taking their final gulps to finish "last call” drinks purchased prior to 4:00 a.m. The local law therefore does not clash with the State sale regulation and affects consumption only in the most de minimis fashion and in a manner no greater than is needed to further the general and broader local interest in maintaining tranquility in its neighborhoods for the good of all its citizens and residents. It can legitimately be characterized as not a direct regulatory proposition in the strict legal sense of that word. In any event, the mere fact "that the State and local laws touch upon the same area is insufficient to support a determination that the State has preempted the entire field of regulation in a given area” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 99 [citations omitted]; see also, Frew Run Gravel Prods. v Town of v Carroll, 71 NY2d 126, 131).

As noted, Administrative Code § B32-303.0 is not inconsistent with the Alcoholic Beverage Control Law. A local law will be deemed inconsistent with a State statute if thé local law permits an act which has been specifically prohibited by State law or, conversely, if the local law prohibits an act which has been specifically permitted by State law (New York State Club Assn. v City of New York, 69 NY2d 211, affd 487 US 1, 108 S Ct 2225). Administrative Code § B32-303.0 clearly does not permit an act which has been prohibited by State law because the local law does not authorize anything between the hours of 4:00 a.m. and 8:00 a.m. — except some peace and quiet. Nor does the local law prohibit an act which has been specifically permitted by State law. Alcoholic Beverage Control Law § 106 (5) prohibits establishments with State liquor licenses from selling or distributing alcoholic beverages between 4:00 a.m. and 8:00 a.m. — that part is four-square consistent with the closing hours mandated by the local law. It is only the failure to forbid the customers from finishing their earlier purchased alcoholic beverages until 4:30 a.m. that creates the tiniest overlap (see, Jancyn Mfg. Corp. v County of Suffolk, supra, at 99). That, however, does not qualify as a legal preemption collision. The State law does not specifically authorize any conduct during that period; it rather forebears regulation, tolerates a transition instead of an abrupt ending, and it expressly prescribes the kind of conduct that is unlawful. The State law is actually silent on the precise subject of alleged controversy here and that silence should not be elevated, transformed or implied into a superseding interest (People v Judiz, 38 NY2d 529, 532; People v Cook, 34 NY2d 100).

The majority’s invalidation of this local law creates the anomaly that the City can order nonalcoholic-dispensing establishments to close and be quiet, but it is powerless as to those in which patrons are allowed to down their drinks for an extra half hour. It also strikes me as a bit incongruous to have the regulated licensees defending the honor and power of their regulatory protagonist, the State Liquor Authority— which appears to have little or no interest in defeating this small effort by the City of New York to improve ever so incrementally the quality of life of all its residents.

I dissent and would reverse and declare the local law valid.

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

Order affirmed, with costs, in a memorandum.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Maurice Silverstein, Appellant. The People of the State of New York, Respondent, v Lynn Lynn, Appellant.
    Argued June 7, 1989;
    decided July 11, 1989

      APPEARANCES OF COUNSEL

      Mark M. Baker and Barry Ivan Slotnick for Maurice Silverstein, appellant.

      Linda Fraser for Lynn Lynn, appellant.

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

Memorandum.

The orders of the Appellate Division should be affirmed.

Defendants argue that the nighttime search was invalid under CPL 690.35 (3) and 690.45 (6) and, therefore, that the fruits thereof should have been suppressed. We disagree. The warrant itself expressly authorized the nighttime entry, it was not signed until after 9:00 p.m., and it directed the police to make an immediate search; additionally, an immediate search was reasonably necessary because the whereabouts of the violent-crime suspects were still unknown, the potential loss of evidence was a real concern, and the recovery of that evidence was essential to the continued progress of the investigation. Under these circumstances, it was not fatal to the validity of the warrant, or of the ensuing search, that the application did not explicitly request permission for a nighttime entry (see, People v Arnau, 58 NY2d 27, 38, cert denied 468 US 1217; see also, People v Rose, 31 NY2d 1036).

Defendants’ contention that the search was tainted by the initial warrantless entry must also fail. The undisturbed factual determination of the suppression court that the warrant application was based solely on information obtained prior to and independent of the initial entry is supported in the record by evidence of the victim’s account of the crime and the crime scene (see, People v Arnau, supra, at 27; People v McCray, 51 NY2d 594, 601). We have considered defendants’ other contentions and find them to be without merit.

Titone, J.

(dissenting). I dissent. The issue in this case is not, as the majority suggests, whether an explicit request for such additional relief is required before a Magistrate may include authorization for a nighttime entry in an otherwise validly issued search warrant. Rather, the question is whether such authorization may be given despite the absence of allegations in the warrant application to satisfy the statutory requirements. Since I conclude that it may not, I cannot concur in the majority’s decision to uphold the denial of defendants’ suppression motions and affirm their convictions.

CPL 690.35 (3) (a) provides that an application for a search warrant may contain "[a] request that the * * * warrant be made executable at any time of day or night, upon the ground that there is reasonable cause to believe that (i) it cannot be executed between the hours of 6:00 A.M. and 9:00 P.M., or (ii) the property sought will be removed or destroyed if not seized forthwith”. Under CPL 690.45 (6), a search warrant must contain "[a] direction that the warrant be executed between the hours of 6:00 A.M. and 9:00 P.M., or, where the court has specially so determined, an authorization for execution thereof at any time of the day or night”. Presumably, the Legislature intended that such "any time” authorization be granted only when the "reasonable cause” standard set forth in CPL 690.35 (3) (a) (i)-(ii) is satisfied by the allegations in the warrant application (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 690.35, at 380 ["(i)f the applicant wishes to have either of two exceptions authorized, the application must justify them specially, e.g. a nighttime execution or a no-knock entry”]).

In this case, it is undisputed that the warrant application contained no allegations at all indicating either that the warrant could not be executed between 6:00 a.m. and 9:00 p.m. or that the property sought might be removed or destroyed "if not seized forthwith”. Indeed, the only allegation that even remotely pertained to exigency suggested the contrary.

Despite the absence of any facts before the issuing Magistrate that would support an "any time” authorization, the majority has approved the warrant and the ensuing nighttime search on the grounds that the warrant was not signed until after 9:00 p.m., the whereabouts of the suspects were still unknown, the potential loss of evidence was "a real concern,” and "the recovery of that evidence was essential to the continued progress of the investigation.” However, these facts were not before the Magistrate who issued the warrant and therefore cannot logically be relied upon to validate the Magistrate’s decision. Indeed, by relying on such post hoc rationalization, the majority has, in effect, subverted the principles underlying the warrant requirement itself.

In reviewing the validity of judicially issued warrants, we have always placed great emphasis on the facts that were actually before the Magistrate (e.g., People v P. J. Video, 68 NY2d 296, 305-307; People v Hanlon, 36 NY2d 549). The operative principles are simply stated. To encourage the use of warrants, which involve the interposition of a detached and neutral Magistrate’s judgment, appellate courts are instructed to afford deference to the Magistrate’s determinations (e.g., People v Elwell, 50 NY2d 231; People v Hanlon, supra, at 558-559; see, People v Johnson, 66 NY2d 398, 406). "The duty of an appellate court, reviewing a magistrate’s determination, is to do no more than insure that there was a substantial basis for the magistrate’s conclusion” (People v Johnson, supra, at 405). In this scheme, the requirement that all of the necessary facts actually be placed before the Magistrate serves the twin functions of assuring that the necessary determination is made by a judicial rather than a law enforcement officer and furnishing an "objectively verifiable” basis for review (see, People v P. J. Video, supra, at 307; People v Potwora, 48 NY2d 91, 94; People v Hanlon, supra, at 559; see also, People v Tambe, 71 NY2d 492). By dispensing with that requirement and substituting its speculative theories for the actual motives of the officers, the majority has effectively circumvented the entire warrant application process, thereby defeating its salutary purpose.

In support of its holding, the majority relies principally upon People v Arnau (58 NY2d 27, 38), in which the court upheld "an any time” search authorization despite the absence of a request or specific allegations in the warrant application. In that case, we stated only that "[s]ince the challenged warrant was signed at approximately 8:30 p.m. and defendant’s apartment was approximately a 30-minute drive from the courthouse, the finding below that there was reasonable cause to believe that a 24-hour warrant was necessary is amply supported by evidence in the record” (id.). Arnau is clearly distinguishable from this case, however, since in Arnau there were police officers holding the suspect and his wife handcuffed in their apartment and waiting for their colleagues to bring back a warrant at the time the application was made. While this court’s opinion did not say as much, this circumstance, which may well have been known to the issuing Magistrate, was, in all likelihood, the determinative factor.

In any event, whatever the underpinnings of the brief reference to this issue in Arnau, it cannot seriously be argued that the decision stands for the startling proposition that a warrant containing an "any time” search authorization may be issued even when the warrant application does not establish the requisite "reasonable cause to believe that (i) [the warrant] cannot be executed between the hours of 6:00 A.M. and 9:00 P.M., or (ii) the property sought will be removed or destroyed if not seized forthwith” (CPL 690.35 [3] [a]). Such an interpretation of the holding in Arnau would, quite simply, nullify the statute as well as the underlying legislative policy to impose specific restrictions on nighttime searches, a policy which has been in existence since at least 1881 (see, L 1881, ch 442; cf., People v Taylor, 73 NY2d 683, 689 ["conduct cannot be considered as in 'substantial compliance’ with statutory standards when the legislative purposes in adopting the statute have not been met”]).

Finally, contrary to the People’s argument, the remedy of suppression is appropriate notwithstanding that the flaw in the warrant is derived from a statutory rather than a constitutional command. Clearly, CPL 710.20, which directs suppression when tangible property was obtained "by means of an unlawful search and seizure”, is not, by its terms, limited to constitutional wrongs. Moreover, we have recently held that violations of statutes that exist to implement constitutional guarantees should be remedied by suppression (People v Taylor, supra, at 690-691; see also, People v Crandall, 69 NY2d 459 [directing suppression hearing for violation of CPL 690.40 (3)]). Similarly, I would hold that violations of statutes like CPL 690.35 (3) (a), which could have no other logical purpose than to supplement or elaborate upon the basic constitutional privacy guarantee (see generally, Jones v United States, 357 US 493, 498 ["it is difficult to imagine a more severe invasion of privacy than the nighttime intrusion into a private home”]), should also result in suppression (cf., People v Sampson, 73 NY2d 908 [suppression not available for violations of statute governing out-of-State arrests]; People v Harris, 48 NY2d 208 [suppression not available for violation of CPL 140.50 (3)]).

For all of these reasons, I would reverse the orders of the Appellate Division, direct the suppression of the evidence discovered as a result of the execution of the warrant, vacate defendants’ guilty pleas and, finally, remit for further proceedings on the indictments. Inasmuch as the majority has instead determined that the orders appealed from should be affirmed, I must, respectfully, dissent.

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

Orders affirmed in a memorandum.

      . The officer who applied for the warrant averred that the owner of the building in which the apartment to be searched was located had given investigating police officers a key to the apartment earlier in the day, had since "kept watch over said apartment” and had given assurances that "no one has exited or entered said apartment.”

      . The majority has also cited People v Rose (31 NY2d 1036), in which this court affirmed an Appellate Division order which upheld a search conducted pursuant to special judicial "any time” authorization. Since we affirmed, without opinion, the basis for our decision in Rose cannot be settled with any degree of certainty. Nonetheless, it cannot be ignored that, as the dissenting opinion makes clear, the warrant application, which expressly sought no-knock authority, included at least some allegations indicative of exigency (see, id., at 1037-1039 [Jones, J., dissenting]). Accordingly, Rose is not adequate authority for the holding in this case, where no indicia of exigency at all are present.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Neville Robinson, Appellant.
    Argued May 31, 1989;
    decided July 11, 1989

      APPEARANCES OF COUNSEL

      Amy Donner and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Elizabeth S. Ostrow and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division affirming the judgment of conviction and the denial of suppression should be affirmed.

The Fourth Amendment of the United States Constitution is not violated when a driver is directed to step out briefly from a lawfully stopped and detained vehicle because the inherent and inordinate danger to investigating police officers in completing their authorized official responsibilities in such circumstances justifies that precautionary action (see, Pennsylvania v Mimms, 434 US 106). The United States Supreme Court has reiterated that out of a concern for safety, "officers may, consistent with the Fourth Amendment, exercise their discretion to require a driver who commits a traffic violation to exit the vehicle even though they lack any particularized reason for believing the driver possesses a weapon” (New York v Class, 475 US 106, 115 [emphasis added]).

Defendant was a passenger in a car which unquestionably was lawfully stopped by two officers because it made an unsignalled right turn from the left lane of a New York City street across the flow of right-lane traffic cutting off another car and motorist one and a half car lengths behind it in the right lane (see, People v Ingle, 36 NY2d 413). After pulling the car over, the officers approached one on each side. While one officer spoke with the driver about the traffic infraction, the other directed the defendant passenger to step out onto the sidewalk. With the passenger door open, the butt of a loaded .357 magnum handgun was plainly visible protruding from beneath the seat. The gun was seized and defendant was arrested. A postarrest search disclosed an additional six rounds of ammunition in defendant’s pocket.

We conclude, as to defendant’s Federal constitutional argument, the only one preserved in this case, that precautionary police conduct directed at a passenger in a lawfully stopped vehicle is equally authorized, within Federal constitutional guideposts, as that applied to a driver. Inasmuch as the risks in these police/civilian vehicle encounters are the same whether the occupant is a driver or a passenger, "police may order persons out of an automobile during a stop for a traffic violation” (Michigan v Long, 463 US 1032, 1047-1048, citing Pennsylvania v Mimms, 434 US 106, supra; see also, People v McLaurin, 70 NY2d 779; People v Livigni, 58 NY2d 894, affg on opn below 88 AD2d 386). Brief and uniform precautionary procedures of this kind are not per se unreasonable and unconstitutional.

We declare no evisceration and certainly no "total evisceration”, in the words of the dissent, of the Fourth Amendment’s protections nor do we address, one way or the other, the dissent’s implied importation of the State’s distinct constitutional protection, because that issue is not preserved or before us.

The heavy reliance laid by the dissenting opinion on the facts warrants this brief, though self-evidently not dispositive, reference to the governing principles in that regard. The evidence at the suppression hearing supported the determination that requiring defendant to step from the car was reasonable under the particular facts and under the pertinent Federal guideposts, and inasmuch as the Appellate Division affirmed, leaving the findings undisturbed (see, People v Harrison, 57 NY2d 470, 477; People v De Bour, 40 NY2d 210, 223), the order affirming the conviction and denial of the suppression of the seized evidence should not be overturned by this court.

Defendant’s other arguments are either without merit or unpreserved.

Alexander, J.

(dissenting). Although the Supreme Court has not, to date, pronounced so total an evisceration of the Fourth Amendment’s protections against warrantless searches and seizures, the majority of this court sweeps away entirely those protections in respect to the occupants of a lawfully stopped vehicle, proclaiming that the seizure of such occupants is per se reasonable based upon the risks inherent in "police/civilian vehicle encounters” (majority mem, at 775). Because the citizens of our State are entitled to every bit as much protection under the Fourth Amendment as that mandated by the Supreme Court, I dissent and vote to grant defendant’s suppression motion and to reverse his conviction.

The facts adduced at the suppression hearing reveal that at approximately 1:00 p.m. on January 15, 1985, plain-clothes Police Officers James Reinhold and Jack Travitz, while on anticrime patrol in Brooklyn in an unmarked patrol vehicle, observed an orange automobile driving in a northbound direction on Bedford Avenue. The two occupants of the automobile exchanged glances with the officers who then proceeded to follow the car in their patrol unit. Reinhold testified that he noticed that the driver repeatedly checked his side-view and rear-view mirrors and that both the driver and passenger appeared animated in their conversation and body movements. When the driver made an illegal right turn onto Carroll Street from the left lane of Bedford Avenue the officers signaled for the car to pull over and stop. The officers exited their vehicle and approached the Ford, Travitz from the driver’s side and Reinhold from the passenger’s side. Upon reaching the passenger’s side, Reinhold ordered defendant out of the car. Only after defendant had complied with this direction did Reinhold observe the butt of a handgun protruding from under the right front passenger seat. Both defendant and the driver were then immediately placed under arrest.

In Pennsylvania v Mimms (434 US 106), the Supreme Court held that a police officer, upon stopping an automobile for a traffic infraction, may ask that the driver step out of his car before pursuing an investigation. In that case, the driver was stopped for an expired license plate. He was asked to step out of the car to produce his license and registration and as he exited the vehicle, the police observed a bulge under his jacket. The subsequent frisk uncovered a loaded .38 caliber revolver and the driver was immediately arrested. The court upheld the right of the police to order the driver out of the car based in large part on the perceived "inordinate risk confronting an officer as he approaches a person seated in an automobile” (id., at 110). The legitimate safety concerns of police officers, it was concluded, outweighed the "de minimis” additional intrusion on a lawfully detained driver’s liberty occasioned by a request that he exit his vehicle (id., at 111). As put by the Supreme Court: "The police [had] already lawfully decided that the driver [would] be briefly detained; the only question [was] whether he [would] spend that period sitting in the driver’s seat of his car or standing alongside it” (id., at 111). The Mimms court was careful to emphasize, however, that it was holding only that the driver of a lawfully stopped vehicle may be ordered out of his car and that it was not deciding whether other intrusive police actions could be taken against the passengers of a lawfully stopped automobile (id., at 110-111, nn 5, 6).

Later, in People v Class (475 US 106), the Supreme Court clarified the scope of its holding in Mimms, unambiguously stating that its prior decision was predicated on the following three factors: "the safety of the officers was served by the governmental intrusion; the intrusion was minimal; and the search stemmed from some probable cause focusing suspicion on the individual affected by the search” (id., at 117-118 [emphasis supplied]). In respect to the third factor, the court stressed that in Mimms, "the officers had personally observed the seized individual in the commission of a traffic offense before requesting that he exit his vehicle” (id., at 117).

In the instant case, no such individualized suspicion of wrongdoing existed in respect to this defendant. Indeed, his initial detention was simply the unavoidable by-product of the lawful stop of the vehicle which, in turn, was predicated solely on a traffic infraction committed by the driver. Conspicuously absent from this record is any reasonable "combination of additional factors that warranted apprehension as to the defendant passenger” (People v McLaurin, 70 NY2d 779, 781). The People’s contention that Officer Reinhold was justified in fearing defendant based on his prior observations of conversation and body movements borders on the absurd. It is common for the occupants of automobiles to engage in animated conversation and to gesticulate as a way of emphasizing certain points. It is an equally common experience for occupants to move around in an exaggerated fashion to keep time to music that may be playing on the car radio. Surely such everyday conduct cannot serve as the predicate for intrusive police action. Similarly, the circumstance of a driver repeatedly checking his mirrors, conduct ordinarily associated with the safe and proper operation of a motor vehicle, provides no basis for the subject intrusion on defendant. Indeed, there exists absolutely no justification other than the traffic infraction committed by the driver for Reinhold’s decision to order defendant out of the car. Yet, as should now be clear from the Supreme Court’s analysis in Class, although the safety rationale of Mimms may be applied appropriately to justify the incremental intrusion on the liberty of the driver — a request to step out of the car — such request directed at a passenger is impermissible absent "some probable cause focusing suspicion” on the person seized (475 US, at 118; see, 3 LaFave, Search and Seizure § 9.4 [a], at 514-515 [2d ed 1987]; cf., People v McLaurin, 70 NY2d 779, supra; People v Livigni, 58 NY2d 894, affd for reasons stated below 88 AD2d 386). In affirming defendant’s conviction, the majority has inexplicably ignored this most recent interpretation of Mimms and, indeed, has extended that case so as to render the occupants of a lawfully stopped vehicle vulnerable to what is plainly an unconstitutional intrusion by the police. Accordingly, I would grant defendant’s motion to suppress the handgun discovered after defendant was unlawfully ordered to exit the automobile and reverse the conviction.

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

Order affirmed in a memorandum.

      . The issue in Class was whether the Fourth Amendment permitted a police officer, upon stopping an automobile for a traffic infraction, to reach into the interior of the car and move some papers on the dashboard that were concealing the car’s vehicle identification number. In upholding the police action, the Supreme Court reversed a decision of this court holding such a search to be a violation of both the Federal and State Constitutions (People v Class, 63 NY2d 491). On remand, we adhered to our prior determination, basing our decision on article I, § 12 of the State Constitution (People v Class, 67 NY2d 431).

      . The majority’s recitation of the applicable standard of review in cases such as this is not, as the majority apparently recognizes, dispositive of the issue presented — namely, whether on any reasonable view of the facts adduced at the suppression hearing the action of the police officer in ordering defendant out of the car was justified. It is fundamental that "when an issue arises as to the standard by which [reasonable suspicion] is measured — the minimum showing necessary to establish [reasonable suspicion] — a question of law is presented for review” (People v McRay, 51 NY2d 594, 601; Cohen and Karger, Powers of the New York Court of Appeals § 198, at 742 [rev ed]).


text:
    The People of the State of New York, Respondent, v Charles Glinton, Appellant.
    Decided July 11, 1989
    APPEARANCES OF COUNSEL

      Salvatore D. Ferlazzo for appellant.

      Robert M. Morgenthau, District Attorney (Julie Freudenheim of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Supreme Court should be affirmed.

Supreme Court acted within its discretion in denying defendant’s motion to vacate his 1959 judgment of conviction without an evidentiary hearing. The merits of the "newly discovered evidence” issue raised in this collateral proceeding were previously decided on a prior CPL 440.10 motion (CPL 440.10 [3] [b]).

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.


text:
    In the Matter of Jerome H. Barr et al., Respondents. Hyman Raffe, Respondent. George Sassower, Movant.
    Submitted May 30, 1989;
    decided July 11, 1989
   Motion for summary relief with respect to certain provisions of a judgment of Supreme Court, New York County, dismissed upon the ground that this court has no jurisdiction to entertain the motion (NY Const, art VI, § 3; CPLR 5602 [a] [1] [ii]).

Judge Bellacosa taking no part.


text:
    In the Matter of David Crowley, Appellant, v John O’Keefe, as Superintendent of Ogdensburg Correctional Facility, et al., Respondents.
    Submitted May 30, 1989;
    decided July 11, 1989
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no appeal lies as of right under CPLR 5601 (a) since the dissent at the Appellate Division, pertaining to a claimed error to which no objection was made on administrative appeal, is not on a question of law which would be reviewable in this court (Merrill v Albany Med. Center Hosp., 71 NY2d 990).


text:
    Finesurgic Inc., et al., Appellants, v Gerald E. Davis et al., Respondents.
    Submitted May 8, 1989;
    decided July 11, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s May 27, 1988 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Joshua Wagshall, Appellant, v Marlene E. Wagshall et al., Defendants, and Madeleine Borg Counseling Services et al., Respondents.
    Submitted June 12, 1989;
    decided July 11, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]). Motion for leave to appeal denied.


text:
    In the Matter of Andre Robertson, Appellant, v City of New York, Respondent.
    Decided July 13, 1989

      APPEARANCES OF COUNSEL

      Jeffrey Cylkowski for appellant.

      Peter L. Zimroth, Corporation Counsel (William J. Thom of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. No reversible error was committed by the courts below.

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


text:
    In the Matter of Perlrose Realty Corp., Appellant, v New York City Loft Board et al., Respondents.
    Decided July 13, 1989

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz for appellant.

      Peter L. Zimroth, Corporation Counsel (Pamela Seider Dolgow of counsel), for New York City Loft Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (145 AD2d 159).

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


text:
    Ernest Grandinetti, Appellant, v Metropolitan Transportation Authority, Respondent.
    Argued June 1, 1989;
    decided July 13, 1989

      APPEARANCES OF COUNSEL

      Justin N. Lite for appellant.

      Susan E. Weiner and Lester G. Freundlich for respondent.
   OPINION OF THE COURT

Memorandum.

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

Under EDPL 503 (B), a claim required to be made in the Supreme Court (see, EDPL 501 [B]) for damages arising out of the condemnation of real property must be interposed by filing a written claim, demand or notice of appearance "within the time specified by the court.” Contrary to the conclusion of the Appellate Division (139 AD2d 619, 621), the time specified by the court pursuant to this provision is not a Statute of Limitations. Nor is it a condition precedent compliance with which is ordinarily deemed a necessary element of the claim. Statutes of Limitations and conditions precedent are, in most instances, specific legislatively prescribed restrictions on a party’s ability to recover on a claim. A time period that is variable and involves a discretionary judicial weighing of a number of pertinent factors on a case-by-case basis does not fall within this category. Instead, the filing deadline contemplated by EDPL 503 (B) is merely a procedural direction to be issued by the court in the exercise of its broad discretion to administer the litigation in an orderly and expeditious manner. As such, the court may extend the time fixed by its own prior order "upon such terms as may be just and upon good cause shown” (CPLR 2004).

In this case, no error of law resulted from the Appellate Division’s conclusion that an extension was unwarranted. As that court noted, claimant furnished neither an affidavit of merits nor a reasonable excuse for his failure to meet the filing deadline that was initially fixed by the court. Under these circumstances, the denial of an extension of the time for filing was not an abuse of discretion.

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 Andrew Jackson, Appellant.
    Argued June 7, 1989;
    decided July 13, 1989

      APPEARANCES OF COUNSEL

      Michelle Fox and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (James B. Duggan and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

As the People candidly concede, the lineup testimony of two of the People’s witnesses should have been suppressed. Since a removal order had been issued to secure defendant’s attendance at the pretrial identification procedures, defendant had a right to the presence of counsel during the lineups (People v Coleman, 43 NY2d 222). Inasmuch as defendant did not waive that right, the lineups, which were conducted in the absence of counsel, violated defendant’s constitutional rights.

Further, we conclude that the erroneous admission of the lineup evidence was not harmless beyond a reasonable doubt, as is required in appeals involving constitutional error (see, People v Crimmins, 36 NY2d 230, 237). The only significant issue at defendant’s trial was identification. Of the four witnesses whose testimony connected defendant to the crime, two, a police officer and an informant, were subject to serious impeachment. The People’s strongest evidence came from the other two eyewitnesses, the witnesses who had been exposed to the uncounseled lineups. The People cannot now rely on the in-court identification testimony of these witnesses, however, since, in the absence of a hearing to determine whether that testimony had an independent source, it cannot be assumed that that testimony was not also tainted and subject to exclusion (see, United States v Wade, 388 US 218, 240-241; People v Coates, 74 NY2d 244 [decided herewith]; People v Dodt, 61 NY2d 408). Accordingly, there must be a reversal and a retrial. Should the People elect to seek admission at the new trial of the in-court identification testimony of the two witnesses who viewed the lineup, they will be entitled to a hearing at which they have the opportunity to establish an independent source for that testimony (see, People v Crandall, 69 NY2d 459).

Because there must be further proceedings, we also take note of the errors committed in connection with the informant-witness, whose cooperation was secured by the People only after he was offered eight months’ incarceration on an unrelated robbery charge for which he faced a possible sentence of up to 30 years’ imprisonment. In light of this witness’s obvious interest, the court should have told the jury, as had been requested, that the informant’s testimony should be scrutinized carefully and a determination made as to whether any benefit he received affected the truthfulness of that testimony (see, 1 CJI[NY] 7.24). Such a clarifying instruction was particularly important here because of the imbalance created by the court’s erroneous instruction, to which counsel objected, that the informant’s criminal past could be considered only insofar as it implicated his general credibility, thereby ruling out consideration of the more specific possibilities of bias and motive to falsify (see, People v Bell, 38 NY2d 116, 123).

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

Order reversed, etc.


text:
    William E. McClain Realty, Inc., Respondent, v Beverly Rivers, Appellant. Beverly Rivers, Appellant, v William E. McClain Realty, Inc., Respondent.
    Submitted May 30, 1989;
    decided July 13, 1989
   Motion for leave to appeal, treated as a motion for reargument, dismissed as untimely. Application for imposition of sanctions against movant denied. [See, 73 NY2d 995.]


text:
    In the Matter of George H. Newcomb, Respondent, v Robert J. Fitzpatrick et al., Constituting the Board of Elections of Yates County, Respondents, and R. K. (Kayo) Hull, Appellant. (And Another Proceeding.)
    Submitted August 30, 1989;
    decided August 30, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.

Judge Alexander taking no part.


author: Hancock, Jr., J.

text:
    In the Matter of Gloria Harden et al., Respondents, v Board of Elections in the City of New York et al., Respondents. In the Matter of Joanne Bing, Respondent, v Marshall Berger et al., Respondents. In the Matter of Steven H. Reisberg, Appellant, v Joel H. Serebin et al., Respondents. In the Matter of Walter B. Tolub, Appellant, v Joel H. Serebin et al., Respondents. (And Two Other Titles.)
    Argued August 30, 1989;
    decided August 31, 1989

      APPEARANCES OF COUNSEL

      Robert M. Harding for appellants.

      Theodore S. Steingut for Gloria Harden and another, respondents.

      Douglas A. Kellner for Joel Serebin and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the applications for an order directing the Board of Elections to hold a write-in primary election denied.

The "opportunity to ballot” remedy fashioned in Matter of Hunting v Power (20 NY2d 680) was designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office. It was not intended to be a generally available substitute for the petition process set forth in article 6 of the Election Law. That legislatively prescribed process ensures that there is a sufficient level of support among party members eligible to vote for the office to justify placing a particular candidate’s name on the primary ballot or, in the case of a petition under Election Law § 6-164, that there is sufficient voter interest to justify holding a primary election by write-in ballot.

Thus, courts should invoke the Hunting remedy only where the defects which require invalidation of a designating petition are technical in nature and do not call into serious question the existence of adequate support among eligible voters (see, Matter of Quaglia v Lefever, 143 AD2d 238, lv denied 72 NY2d 805; Matter of Santoro v Kujawa, 133 AD2d 534, lv denied 70 NY2d 724; Matter of Hochberg v D'Apice, 112 AD2d 1067, affd 65 NY2d 960). This case — where a majority of the signatures on the designating petitions of each candidate were invalid because they were obtained from persons who were ineligible to sign the petitions, either because they lived outside the district, were not registered voters or were not members of the Democratic Party — does not qualify for the exceptional equitable remedy of a write-in primary. The number of signatures obtained from eligible persons, even if technical defects are ignored, fell far short of the number required by statute for party designation or to petition for a write-in primary (see, Election Law § 6-164).

Nor may the valid signatures obtained by the two candidates be aggregated to supply a predicate for the relief requested. Inasmuch as we are dealing with the primary designation of a particular party, as opposed to the general election, our holding does not disenfranchise any voters at the general election.

Hancock, Jr., J.

(dissenting). In my view, the lower courts properly directed a write-in ballot, relying upon Matter of Hunting v Power (20 NY2d 680), so as not to disenfranchise the party electorate in a primary election for the office of Civil Court Judge. The majority’s conclusion that the opportunity to ballot remedy can cure only "technical, but fatal defects in designating petitions” (majority mem, at 797) substantially narrows, if not effectively overrules, the rule in Hunting. Indeed, under the rule now adopted, under the facts of Hunting itself, the opportunity to ballot remedy would not have been ordered. In Hunting, not only were 20% of the signatures in the invalidated petition those of out-of-district signatories, but in Hunting, approximately 20% (or at least 210 signatures) were forgeries. Significantly, in Hunting the number of valid signatures to support any candidate was lacking. Thus, there is no support for a conclusion that the deficiencies in Hunting were "technical”. Here, combining the number of valid signatures contained in the two invalidated petitions, a sufficient number of valid signatures exists to support a single petition, or a petition for a write-in ballot under Election Law § 6-164.

In my view, no persuasive policy reason has been shown for substantially eroding the sound rule of Hunting. On the contrary, I believe this decision frustrates the important policy reason underlying the Hunting rule — protecting an interested electorate from disenfranchisement (see generally, Matter of Brown v Ulster County Bd. of Elections, 48 NY2d 614, 616; Matter of Ramos v Alpert, 41 AD2d 1012, 1014; Anderson v Celebrezze, 460 US 780, 786-788). The protection afforded by the Hunting rule should not be lightly cast aside. Here, the intent to "nominate some candidate” is manifest (Matter of Hunting v Powers, 20 NY2d, at 681, supra [emphasis added]), and the reversal of the lower courts’ direction to allow a write-in ballot would operate to disenfranchise the party electorate in this primary election and, thus, prevent the electorate of one of the two major parties from having a candidate on the ballot in the future general election. Accordingly, I respectfully dissent.

Chief Judge Wachtler and Judges Simons, Kaye, Titone and Bellacosa concur in memorandum; Judge Hancock, Jr., dissents and votes to affirm in an opinion; Judge Alexander taking no part.

Order reversed, etc.

       Contrary to the majority view, I find it particularly significant that the aggregate number of valid signatures would be sufficient to place a candidate on the primary ballot. Indeed, the Legislature recognized in Election Law § 6-164 that an intent to nominate some candidate of the party can be sufficiently demonstrated by designating petitions which do not specify the name of any candidate. Hunting relief contemplates exactly what was done here by the lower courts — i.e., granting the party electorate the opportunity to write in any candidate of their choice. Notably, no individual candidate’s name is being placed on the ballot.


text:
    In the Matter of Sandra Love, Respondent, v Board of Elections of the City of New York, Respondent, and Rafael C. Colon, Appellant.
    Argued August 30, 1989;
    decided August 31, 1989

      APPEARANCES OF COUNSEL

      Paul A. Victor and Salvador Collazo for appellant.

      Gary Sinawski for Sandra Love, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the application to invalidate the designating petition of appellant Rafael Colon denied.

In July 1989, Colon filed a designating petition seeking to be placed on the ballot in the New York City Democratic primary, for the office of Council Member in a district which contained portions of different assembly districts. Colon’s designating petition consisted of three volumes, each also containing signatures collected on behalf of other candidates, including candidates for county-wide office and candidates running solely within one of the assembly districts. Colon needed 1,500 signatures; he actually filed 6,940, and recorded that precise number on his cover sheet. On respondent’s challenge to the accuracy of the cover sheet, Supreme Court determined that 1,099 (or 15.8%) of the signatures were invalid, because the signatories were not residents of the council district, but the court sustained Colon’s petition on the ground that Election Law § 6-134 (9) was inapplicable and the 5,841 remaining valid signatures were far more than required. The Appellate Division reversed, holding the inclusion of 1,099 out-of-district signatures rendered Colon’s cover sheet defective, and relying on Election Law § 6-134 (9) as well as its own decision in Matter of Catucci v Marchi (143 AD2d 59, lv denied 72 NY2d 914).

A cover sheet must indicate "the total number of signatures contained in [the designating] petition.” (Election Law § 6-134 [2].) Here, the cover sheet undisputedly satisfied that requirement by correctly recording the total number of signatures actually contained in Colon’s petition. Election Law § 6-134 does not additionally require that a cover sheet separately identify or segregate the number of in- and out-of-district signatures, or the number of valid signatures. Nor can we agree with the Appellate Division that the present case is analogous to Matter of Hargett v Jefferson (63 NY2d 696), where the cover sheet vastly overstated the number of signatures actually contained in the petition. The Appellate Division’s reliance on Catucci (supra) and on Election Law § 6-134 (9) — which is addressed to misstated signature numbers on cover sheets — were therefore erroneous.

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

Order reversed, etc.


text:
    In the Matter of Agustin Alamo, Respondent, v Gertrude Strohm et al., Constituting the Board of Elections of the City of New York, Respondents, and Israel Ruiz, Jr., Appellant.
    Argued August 30, 1989;
    decided August 31, 1989

      APPEARANCES OF COUNSEL

      Martin E. Connor for appellant.

      Dominick A. Fusco for Agustín Alamo, respondent.
   OPINION OF THE COURT

Memorandum.

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

Appellant, elected to the New York State Senate from the 32nd Senatorial District, was convicted of a felony in Federal court for making a false statement on a loan application (18 USC § 1014). Upon his conviction, his public office became vacant by operation of Public Officers Law § 30 (1) (e). The Appellate Division correctly held that appellant was precluded from seeking election to the unexpired term of the very office from which he had been removed by operation of law for his malfeasance.

We reject the argument that the rationale of People v Ahearn (196 NY 221) should not apply to elective as well as appointive public offices. As the court said in that case, "the right to enjoy for a certain period the privileges and profits of a given position is an important element of [that] office”. (Id., at 230 [emphasis added].) Our holding in Ahearn is consistent with the plain intendment of Public Officers Law § 30 (1) (e) that the term of an office should be considered an integral part of the office itself and that a removal effected by operation of that section should result in a bar to an officerholder’s seeking the same office for the duration of the "certain period” or term for which the officer had been elected.

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

Order affirmed, without costs, in a memorandum.


text:
    Cobble Hill Nursing Home, Inc., Appellant, v Henry and Warren Corporation, Respondent. (Action No. 1.) Henry and Warren Corporation, Respondent, v David Axelrod, as Commissioner of the Department of Health of the State of New York, Appellant. (Action No. 2.)
    Submitted August 14, 1989;
    decided August 31, 1989
   Motion by Cobble Hill Nursing Home, Inc., for reargument granted and, upon reargument, motion for leave to appeal granted. Motion by Cobble Hill Nursing, Inc., for a stay granted. Motion by David Axelrod, State Commissioner of Health, for reargument denied. The State Commissioner of Health is granted leave to intervene on the appeal by Cobble Hill Nursing Home, Inc. The case is set down for argument on October 17, 1989. [See, 74 NY2d 791.]

Judge Alexander taking no part.


text:
    Long Island Lighting Company et al., Appellants, v William L. Mack et al., Respondents.
    Submitted August 30, 1989;
    decided August 31, 1989
   Motion for vacatur of the August 4, 1989 order of this court dismissing the appeal and for alternative relief denied. [See, 74 NY2d 804.]

Chief Judge Wachtler and Judge Alexander taking no part.


text:
    Grace Marenghi, Appellant, v New York City Transit Authority, Respondent.
    Decided September 7, 1989

      APPEARANCES OF COUNSEL

      Norman E. Frowley and Sol Zepnick for appellant.

      Albert C. Cosenza, Lawrence Heisler and Anthony J. Bellito for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (151 AD2d 272).

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


text:
    In the Matter of Lutheran Social Services of Upper New York, Inc., et al., Appellants, v State Division of Human Rights, Respondent.
    Decided September 7, 1989

      APPEARANCES OF COUNSEL

      Lawrence A. Schulz for appellants.

      Albert J. Kostelny, Jr., and Lawrence Kunin for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for reasons stated in so much of the memorandum of the Appellate Division as held that the record supports the determination made by the Commissioner as well as the award for compensatory damages for mental anguish (142 AD2d 950).

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


text:
    Mamie Basi, Respondent, v Robert Basi, Appellant.
    Submitted April 24, 1989;
    decided September 7, 1989
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    Jack Mandel, Respondent, v Marie A. Soscie, Appellant.
    Submitted June 5, 1989;
    decided September 7, 1989
   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; CPLR 5602).


text:
    In the Matter of Walter Zbryski, Appellant, v City of New York, Respondent.
    Submitted June 5, 1989;
    decided September 7, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying petitioner’s motion for leave to renew and reargue, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Bri-Mar Corporation, Doing Business as Knox Estates Mobile Home Park, et al., Respondents, v Town Board of the Town of Knox, Appellant, et al., Respondents.
    Decided September 12, 1989

      APPEARANCES OF COUNSEL

      Susan S. Dautel and Lloyd Sokolow, Town Attorney, for appellant.

      Lewis B. Oliver, Jr., and Harriet B. Oliver for Bri-Mar Corporation and others, respondents.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Joan Leary Matthews of counsel), for New York State Department of Environmental Conservation, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the article 78 proceeding dismissed and judgment granted in favor of the Town Board of the Town of Knox declaring section 10 of the Sanitary Code of the Town of Knox valid.

The Legislature has clearly provided that "Local laws, ordinances or regulations which comply with at least the minimum applicable standards set forth in the sanitary code shall be deemed not inconsistent with such code” (Public Health Law § 228 [3]). Thus, Town of Knox Sanitary Code § 10, which provides more stringent standards than State regulations with respect to sewage or effluent disposal on the ground surface, is not impermissibly inconsistent with State regulations (see, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; Public Health Law § 228 [3]). We find no merit to the State Department of Environmental Conservation’s argument that the regulation of such sewage and effluent disposal has been "impliedly pre-empted” by the State pollutant discharge elimination system (SPDES) permit regulation (see, ECL 17-0701 et seq.). SPDES regulation is not "so broad in scope or so detailed as to require a determination that [article 17] has superseded all existing and future local regulation” (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 99).

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.


text:
    Joseph Forti, Appellant, v New York State Ethics Commission, Respondent.
    Submitted August 7, 1989;
    decided September 12, 1989
   Motion to dismiss appeal denied.


text:
    Norman G. Gunther, Appellant, v Harold C. Snyder, Respondent. (Appellate Division
    Appeal No. 2.)
    Submitted June 26, 1989;
    decided September 12, 1989
   Motion, treated as a motion for reargument of a motion for leave to appeal, denied. [See, 74 NY2d 715.]


text:
    Marie R. Jemison, Individually and on Behalf of Marie S. Jemison and Others, et al., Appellants, v Grantley E. Crichlow, Individually, as a Licensed Process Server and as a City Marshal, et al., Respondents.
    Submitted July 31, 1989;
    decided September 12, 1989
   Motion to amend remittitur granted, remittitur recalled and, when returned, it will be amended by deleting the words "with costs” and substituting therefor the words "without costs”. [See, 74 NY2d 726.]


text:
    Solomon Kaplan et al., Respondents, v Heinz J. Lippman et al., Appellants. (Action No. 1.) (And Another Action.)
    Submitted July 24, 1989;
    decided September 12, 1989
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Robert V. Rafter, Appellant, v Liberty Lines Transit, Inc., et al., Respondents, et al., Defendant.
    Decided September 12, 1989
   Appeal from that portion of the Appellate Division order which denied plaintiff time to enlarge his appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Harold Reape, Appellant, v Ross Sandler et al., Respondents. (And Another Proceeding.)
    Submitted June 19, 1989;
    decided September 12, 1989
   On the court’s own motion, appeal No. 1 dismissed and motion to dismiss appeal No. 2 granted and appeal dismissed, each, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    John Ware et al., Appellants, v Valley Stream High School District et al., Respondents.
    Submitted September 7, 1989;
    decided September 12, 1989
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [b] [1]). Motion for a stay denied. Case set down for argument on November 16, 1989.


text:
    Timothy McMorrow, Respondent, v Karen Trimper et al., Appellants, et al., Defendants.
    Decided September 14, 1989

      APPEARANCES OF COUNSEL

      John J. Madden and Michael F. Perley for appellants.

      Lisa Roy Baron for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (149 AD2d 971).

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


text:
    Hospital Underwriters Mutual Insurance Company, Respondent, v National Casualty Company, Appellant.
    Decided September 14, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    The People of the State of New York, Respondent, v Mauricio Osorio, Appellant.
    Submitted August 7, 1989;
    decided September 14, 1989
   Motion to continue stay until determination of the appeal granted.


text:
    Clement J. Pacyna, Appellant, v Lee G. Greenley et al., Respondents.
    Submitted July 17, 1989;
    decided September 14, 1989
   Motion insofar as it seeks reargument denied; otherwise dismissed. [See, 74 NY2d 685.]


text:
    The People of the State of New York, Respondent, v Angela White et al., Appellants.
    Submitted June 19, 1989;
    decided September 14, 1989
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the appellants are not available to obey the mandate of the court in the event of affirmance.


text:
    In the Matter of YMCA of Greater New York, Respondent, v Lucian Rossi, Appellant.
    Submitted July 10, 1989;
    decided September 14, 1989
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (NY Const, art VI, § 3; CPLR 5601). Motion for a stay dismissed as academic.


text:
    In the Matter of Jesse R. Hughes, Respondent, v Suffolk County Department of Civil Service, Respondent, and Town of Riverhead, Appellant.
    Decided September 19, 1989

      APPEARANCES OF COUNSEL

      Pierre G. Lundberg for appellant.

      E. Thomas Boyle, County Attorney (Caroline Levy of counsel), for Suffolk County Department of Civil Service, respondent.

      Reynold A. Mauro for Jesse R. Hughes, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and respondent’s determination reinstated.

An administrative hearing must be conducted by an unbiased Hearing Officer (see, People ex rel. Packwood v Riley, 232 NY 283, 286). To establish Hearing Officer bias as a matter of fact, there must be support in the record for the bias and proof that the outcome flowed from the alleged bias (see, Matter of Warder v Board of Regents, 53 NY2d 186, 197). Here, petitioner’s only "evidence” claiming bias is an unsworn memorandum asserting that the Hearing Officer was allegedly respondent’s employee. This is insufficient under Warder (supra). Lastly, to the extent petitioner now argues that the Hearing Officer’s appointment violated Civil Service Law § 72, as amended, this claim does not provide a basis for relief because it was not raised or relied upon at the agency level (see, Matter of Klapak v Blum, 65 NY2d 670, 672; Matter of Seitelman v Lavine, 36 NY2d 165, 170).

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 reversed, with costs, and respondent’s determination reinstated in a memorandum. [See, 74 NY2d 942.]


text:
    Jodi Horowitz, Appellant, v Incorporated Village of Roslyn et al., Defendants, and County of Nassau et al., Respondents.
    Submitted July 3, 1989;
    decided September 19, 1989
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Court of Appeals Rules of Practice (22 NYCRR 500.11 [d] [iü]).


text:
    Satish Mehtani et al., Appellants, v New York Life Insurance Company et al., Respondents, et al., Defendants. (And Another Action.)
    Submitted June 5, 1989;
    decided September 19, 1989
   Plaintiff Sneh Mehtani’s motion for leave to appeal denied. Plaintiff Satish Mehtani’s motion for leave to appeal from so much of the order of the Appellate Division as dismissed the action as against defendant Lee Buck denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Maria Muresanu, Respondent, v Constantine Nicolau, Appellant.
    Submitted July 10, 1989;
    decided September 19, 1989
   Motion for leave to appeal from so much of the Appellate Division order as denied leave to proceed as a poor person and dismissed an appeal from the Family Court orders in docket Nos. 0-1558-85 and V-1472-1473-85 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for leave to appeal from orders of Family Court, Westchester County, dismissed upon the ground that this court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Paola Vista Clothing, Ltd., Appellant, v V.R.P. Calzaturificio S.P.A., Respondent.
    Decided September 19, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division, absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    Carl Redcross et al., Individually and as Parents and Natural Guardians of Travis Redcross, an Infant, Appellants, v Aetna Casualty and Surety Company, Respondent, and Miriam Solomon et al., Appellants.
    Submitted June 10, 19, 1989;
    decided September 19, 1989
   Motion [by defendants-appellants] 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.

Motion [by plaintiffs] for leave to appeal dismissed for failure to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Court of Appeals Rules of Practice (22 NYCRR 500.11 [d] [1] [iv]).


text:
    William Rose, Appellant, v Joan Green et al., Respondents.
    Submitted June 26, 1989;
    decided September 19, 1989
   Motion for leave to appeal dismissed for failure to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Court of Appeals Rules of Practice (22 NYCRR 500.11 [d] [1] [iv]).


text:
    George A. Rosquist, Appellant, v Cigna Insurance Company et al., Respondents.
    Decided September 19, 1989
   Appeal from the March 7, 1989 Appellate Division order granting an extension of time to file a brief and from the portion of the April 6, 1989 order dismissing the appeal from the Supreme Court order denying reargument dismissed upon the ground that these orders do not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed upon the ground that no substantial constitutional question is directly involved, all without costs, by the Court of Appeals sua sponte.


text:
    The People of the State of New York, Respondent, v Hector Reyes, Appellant.
    Argued September 8, 1989;
    decided September 21, 1989

      APPEARANCES OF COUNSEL

      John Gemmill and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Anne M. Schaible and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The issues relating to defendant’s sentence as a second crime offender are moot, and the remaining issue is not preserved.

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


text:
    Lynne Blake, Appellant, v State of New York, Respondent.
    Submitted June 26, 1989;
    decided September 21, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the December 5, 1988 Court of Claims order denying claimant’s motion to transfer a claim to Supreme Court, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Shirlie Cohen, Respondent, v 440 East 57th Street Company et al., Appellants.
    Submitted July 3, 1989;
    decided September 21, 1989
   Motion dismissed insofar as defendant 440 East 57th Street Company seeks leave to appeal, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution with respect to that defendant; motion for leave to appeal otherwise denied.


text:
    Entelisano Agency, Inc., et al., Appellants, v E. Porter Felt, Respondent.
    Submitted July 17, 1989;
    decided September 21, 1989
   Motion for reargument dismissed as untimely (Rules of Practice of Court of Appeals § 500.11 [g] [3] [22 NYCRR]). [See, 71 NY2d 804.]


text:
    Ramon Gonzalez, Appellant, v Bath Iron Works et al., Respondents. (And a Third-Party Action.)
    Submitted July 17, 1989;
    decided September 21, 1989
   Motion for leave to appeal dismissed as untimely. Recent legislation (L 1989, ch 461) authorizing fax service, effective January 1, 1990, has not been considered with respect to the fax service here involved.


text:
    In the Matter of Frederick M. Leach et al., as Executors of Fred M. Sigman, Deceased, Appellants, v Roderick G. W. Chu et al., Constituting the State Tax Commission, Respondents.
    Submitted July 10, 1989;
    decided September 21, 1989
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Ronald Levandusky, Respondent, v One Fifth Avenue Apartment Corp., Appellant.
    Submitted September 18, 1989;
    decided September 21, 1989
   Motion for leave to appeal denied as unnecessary (see, Holtslander v Whalen & Sons, 69 NY2d 1016).


text:
    The People of the State of New York et al., Appellants, v Queen Mardulana, Also Known as Maria Ramos, Respondent.
    Decided July 3, 1989;
    decided September 21, 1989
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the order entered in this criminal proceeding pursuant to CPL 730.50 (2).


text:
    In the Matter of Phil Caruso, as President of the Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Argued September 13, 1989;
    decided October 12, 1989

      APPEARANCES OF COUNSEL

      Raymond E. Kerno for appellants.

      Peter L. Zimroth, Corporation Counsel (Alfred Weinstein, Leonard Koerner and Ronald Younkins of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion of Justice Arthur E. Blyn at Supreme Court (136 Misc 2d 892).

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


text:
    The People of the State of New York, Appellant, v Vincent DiNicolantonio, Respondent.
    Argued September 7, 1989;
    decided October 12, 1989

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Ivan Vogel and Beverly Kalman of counsel), for appellant.

      John A. Cirando for respondent.
   OPINION OF THE COURT

Order modified by reinstating the convictions and sentences for murder in the second degree and attempted robbery in the first degree and, as so modified, affirmed, for the reasons stated in the concurring in part and dissenting in part opinion by Justice Arthur D. Spatt at the Appellate Division (140 AD2d 44, 51-61).

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


text:
    The People of the State of New York, Appellant, v Grafton Headley, Respondent, et al., Defendants.
    Argued September 13, 1989;
    decided October 12, 1989

      859
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Emil Bricker of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree that the People’s evidence was legally insufficient to establish defendant’s constructive possession of either the narcotics or weapons found in the apartment where defendant was arrested, and that the trial order of dismissal was therefore properly granted (CPL 290.10 [1]). The People presented no evidence of defendant’s dominion and control over the contraband. Proof that the premises were used for drug dealing was not sufficient to establish that defendant himself was guilty of unlawful drug and weapons possession.

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 John Logan, Appellant.
    Argued September 7, 1989;
    decided October 12, 1989

      APPEARANCES OF COUNSEL

      Roger Bennet Adler for appellant.

      Elizabeth Holtzman, District Attorney (Jodi L. Mandel, Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a former New York City detective, was convicted after a jury trial of bribe receiving and official misconduct. Defendant had introduced a known drug dealer to a fellow police officer and was present when the drug dealer gave the officer a bribe in return for his cooperation in ensuring that the dealer’s drug operations would be protected from police investigation.

At this stage of review of a criminal conviction, the evidence must be viewed in the light most favorable to the prosecution. Under that standard, the People’s proof as to each count (insofar as objections have been preserved by defendant) was sufficient. Defendant’s current claim that the People failed to establish a central element of the crime of official misconduct (Penal Law § 195.00) — the duty element — is unpreserved. Defendant argued before the trial court only that there was no evidence that he had received a benefit. This contention was inadequate to alert the trial court that defendant was urging insufficiency based on the entirely distinct claim — that he had no clearly inherent duty but only a discretionary responsibility to arrest the drug dealer during the criminal transaction (see, People v Gomez, 67 NY2d 843).

Defendant’s remaining arguments are either without merit or unpreserved.

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

Order affirmed in a memorandum.


text:
    In the Matter of Ella Ruffino, Respondent, v Isadore Rosen & Sons et al., Respondents, and Special Disability Fund, Appellant. Workers’ Compensation Board, Respondent.
    Argued September 13, 1989;
    decided October 12, 1989

      APPEARANCES OF COUNSEL

      Morris N. Lissauer for appellant.

      Henrietta Frieder and Hugh O’Boyle for Isadore Rosen & Sons and another, respondents.

      Robert Abrams, Attorney-General (Howard B. Friedland, O. Peter Sherwood, Peter H. Schiff, Jane Lauer Barker and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Howard A. Levine at the Appellate Division (142 AD2d 177).

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


text:
    In the Matter of John J. Santucci, Appellant, v Gabriel S. Kohn, as a Justice of the Supreme Court, Queens County, et al., Respondents.
    Argued September 14, 1989;
    decided October 12, 1989

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Andrew Zwerling of counsel), appellant pro se.

      Terrence C. O’Connor for Norman Singleton, respondent.
   OPINION OF THE COURT

Judgment affirmed, without costs. Prohibition does not lie to review the trial order of dismissal granted pursuant to CPL 290.10.

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


text:
    The People of the State of New York, Respondent, v Richard P. Ragone, Appellant.
    Submitted October 2, 1989;
    decided October 12, 1989
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from the order of one Justice of the Appellate Division denying leave to appeal to that court.


text:
    In the Matter of William T. Martin.
    Decided October 13, 1989
   OPINION OF THE COURT

On the court’s own motion, it is determined that this court’s June 30, 1989 order continuing suspension of Honorable William T. Martin from his office of Justice of Supreme Court, Twelfth Judicial District, is further continued, without pay.

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


text:
    In the Matter of Elizabeth Holtzman, Respondent, v Alan Marrus, as a Justice of the Supreme Court, et al., Appellants.
    Argued September 14, 1989;
    decided October 17, 1989

      APPEARANCES OF COUNSEL

      Alan D. Marrus, appellant pro se.

      Robert S. Dean and Philip L. Weinstein for Geraldo Charry, appellant.

      Elizabeth Holtzman, District Attorney (Janet M. Berk, Barbara D. Underwood and Roseann B. MacKechnie of counsel), respondent pro se.

   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed and the petition dismissed.

The court had jurisdiction to try the case and the only question is whether it had the power to issue the preclusion order. Even if prohibition were available to challenge such an order the proceeding would have to be commenced within four months of the date on which the order became final and binding (CPLR 217). Because the order in this case went into effect immediately, the petition served on Justice Marrus more than four months after that date was untimely (see, Siegel, NY Prac § 566, at 793).

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

Judgment reversed, without costs, and petition dismissed in a memorandum.