text:
    In the Matter of the Estate of Pauline Oberstein, Deceased. Barbara Rosenblum et al., Appellants; Kathleen Oberstein et al., Respondents.
    Submitted September 25, 1989;
    decided January 4, 1990
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Dyson v Dyson, 65 NY2d 741; Cohen and Karger, Powers of the New York Court of Appeals §43). Motion for a stay dismissed as academic.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Brownstone Publishers, Inc., Respondent, v New York City Department of Finance, Appellant, and New York State Board of Equalization and Assessment, Respondent.
    Submitted October 30, 1989;
    decided January 9, 1990
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; New York Pub. Interest Research Group v Governor’s Advisory Commn., 71 NY2d 964).


text:
    Diane D. Buxbaum, Respondent, v Howard H. Buxbaum, Appellant.
    Submitted November 6, 1989;
    decided January 9, 1990
   Treating defendant’s papers as seeking leave to appeal from the Appellate Division order entered April 24, 1989, motion for leave to appeal dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (2) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [2] [iii]); treating defendant’s papers as seeking leave to appeal from the Appellate Division order entered September 13, 1989, motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Department of Housing Preservation and Development of the City of New York, Respondent, v 941 St. Nicholas Avenue Realty Corp. et al., Respondents, and Adonis Morfesis, Appellant.
    Submitted November 27, 1989;
    decided January 9, 1990
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    O.P.S. Con-Tec Corp., Plaintiff, and Patrick Chieu, Appellant, v York King Kong et al., Respondents.
    Submitted November 6, 1989;
    decided January 9, 1990
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in Civil Court of the City of New York (NY Const, art IV, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Louis J. Petrizzo et al., Respondents, v Steven G. Pinks et al., Appellants.
    Decided January 9, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Greasy Spoon Inc., Doing Business as West Side Storey, Respondent, v Jefferson Towers, Inc., Appellant, et al., Defendants.
    Decided January 11, 1990

      APPEARANCES OF COUNSEL

      Stuart M. Herz and Nathan Cyperstein for appellant.

      Gerald Kahn and Bernard S. Meyer for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1979, plaintiff leased commercial space from defendant-appellant with the intention of operating a restaurant on the premises. Under the parties’ lease, plaintiff was licensed to construct and operate a sidewalk cafe adjacent to the leased premises, provided that its use of the licensed space conformed to local and State legal requirements, as well as to the requirements of the lease. Soon after plaintiff’s occupancy began, a dispute between the parties arose concerning plaintiff’s alleged violation of the lease provisions prohibiting the generation of offensive odor and noise. The dispute spawned litigation, which was terminated, at least provisionally, by a stipulation and a "supplementary stipulation” requiring plaintiff to take certain specific steps to eliminate any odor or noise problem.

The present dispute concerns defendant’s refusal to execute the documents necessary to enable plaintiff to obtain the municipal licenses and permits required for its planned sidewalk cafe. After numerous efforts by plaintiff to obtain defendant’s cooperation proved unsuccessful, plaintiff commenced this action for, among other things, injunctive relief and lost profit damages. The gist of plaintiff’s claim was that by its obstructionist conduct defendant had breached its obligations under the lease provisions licensing plaintiff to construct a sidewalk cafe. Defendant sought dismissal of plaintiff’s breach of contract cause of action, contending that it had no obligations under those lease provisions as long as plaintiff was not in compliance with the lease’s noise and odor provisions and the terms of the subsequent stipulations.

Following a trial, the court rejected defendant’s contention, concluding instead that the lease provisions licensing plaintiff to construct a sidewalk cafe were not dependent, either under the lease or under the stipulations, upon plaintiff’s compliance with the provisions governing the generation of noise and odors. Accordingly, defendant could not avoid its obligation to execute whatever documents were necessary for plaintiff’s sidewalk cafe, notwithstanding its ongoing complaints about offensive noises and odors emanating from the plaintiff’s existing restaurant. The question of plaintiff’s alleged lost profits was submitted to the jury, which returned a verdict in favor of plaintiff awarding $1,571,385 in damages. The Appellate Division affirmed, without opinion, and granted defendant leave to appeal to this court.

The courts below correctly rejected defendant’s contention that its lease obligation to cooperate with plaintiff in the construction of its sidewalk cafe was dependent upon plaintiffs correction of the alleged noise and odor problem. Whether the nonrent covenants of a lease are mutually dependent upon or independent of each other is a question to be determined "by the intention and meaning of the parties, as expressed by them, and by the application of common sense to each case submitted for adjudication.” (Rosenthal Paper Co. v National Folding Box & Paper Co., 226 NY 313, 320; see, e.g., Broad Props. v Wheels Inc., 43 AD2d 276, affd 35 NY2d 821.)

Here, there was nothing in the lease to suggest that plaintiffs right to construct a sidewalk cafe was dependent upon its compliance with the lease’s antinoise and odor provisions. Indeed, the conclusion that no such condition was intended is reinforced by the fact that the lease expressly conditioned the use of the licensed sidewalk cafe premises upon plaintiffs compliance with the other lease provisions. Moreover, it is apparent from an analysis of the lease as a whole that the only intended remedies for violations of the noise and odor provisions were lease termination and/or a lawsuit for damages and injunctive relief.

Nor did either of the two stipulations on which defendant relied alter the basic relationship among the various lease covenants or otherwise render defendant’s obligations with respect to plaintiff’s planned sidewalk cafe dependent upon plaintiffs compliance with other lease clauses. To the conr trary, the stipulations, which were principally concerned with imposing a timetable for plaintiff to take certain noise and odor abatement measures, made express reference to the continuing validity of the lease, and the "supplementary stipulation” specifically reiterated defendant’s obligation to cooperate in the construction of the sidewalk cafe. Defendant’s remaining arguments on this point are unpreserved and therefore cannot be considered on this appeal.

Finally, defendant’s contention that plaintiffs claim for lost profits was too speculative to permit a damage award (see, Kenford Co. v County of Erie, 67 NY2d 257; see also, 73 NY2d 312) must fail. Plaintiff established at trial that it was already operating a successful restaurant business at a commercially desirable site. Further, plaintiffs witnesses gave evidence, based upon experience, as to the level of profits that could reasonably be anticipated from the addition of a sidewalk cafe. Unlike in Kenford, where lost profits from a municipality’s decision not to construct a stadium were denied in part because there were too many undetermined variables, in this case most of the variables that would affect the success of the thwarted business venture, i.e., location, capitalization and existing or potential clientele, were established through competent proof. Thus, the evidence at trial was sufficient to remove plaintiff’s lost profit claim from the realm of impermissible speculation.

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, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v George Coons, Appellant.
    Argued November 17, 1989;
    decided January 11, 1990
    APPEARANCES OF COUNSEL

      John B. Garrity, Jr., Public Defender (Terry D. Horner of counsel), for appellant.

      William V. Grady, District Attorney (Matthew G. Tice of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

During the course of the jury deliberations, the trial court permitted the jurors to go to their homes for dinner, separately and unsupervised. CPL 310.10 provides that a deliberating jury "must be continuously kept together under the supervision of a court officer” (emphasis supplied). This section mandates the jury’s seclusion during deliberations (see, People v Bouton, 50 NY2d 130, 138). The trial court erred in failing to keep the deliberating jury continuously together under supervision as required by the statute.

We reject the People’s argument that this error cannot be reviewed because of defendant’s failure to object at trial. Errors which " 'affect the organization of the court or the mode of proceedings prescribed by law’ ” need not be preserved and, even if acceded to, still present a question of law for this court to review (see, People v Ahmed, 66 NY2d 307, 310 [quoting People v Patterson, 39 NY2d 288, 295, affd 432 US 197]). The trial court’s violation of CPL 310.10 in this case constitutes such error.

We reject defendant’s argument that the People’s proof of sexual abuse in the second degree was insufficient. Because the CPL 310.10 error requires reversal, we need not reach defendant’s remaining contentions.

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

Order reversed, etc.


text:
    William L. Brown, Respondent, v Leila F. Brown, Individually and as a Partner of Instrument Associates, Inc., and as Executrix of William V. Brown, Deceased, et al., Appellants. (Matter No. 1.) Leila F. Brown, as Trustee, Appellant, v Instrument Associates, Inc., Respondent. (Matter No. 2.)
    Submitted October 30, 1989;
    decided January 11, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of matter No. 2, denied; motion for leave to appeal otherwise dismissed, without costs, upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael G. O’Connor, Respondent, v Antonia D’Apice et al., Respondents, and Francis X. Lynett, Appellant. (And Another Proceeding.)
    Submitted January 8, 1990;
    decided January 11, 1990
   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. Motion for a stay dismissed as academic.


text:
    Norma Merced, as Administratrix of the Estate of Denise L. B. Merced, Deceased, Respondent, v City of New York, Appellant.
    Decided January 18, 1990

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (John Hogrogian of counsel), for appellant.

      Martin S. Rothman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion for judgment notwithstanding the verdict granted and judgment entered in defendant’s favor dismissing the complaint.

A municipality may not be held liable for injuries resulting from the failure to provide police protection to an individual absent a "special relationship” between the municipality and the individual (Kircher v City of Jamestown, 74 NY2d 251, 255; Cuffy v City of New York, 69 NY2d 255, 260). Such a relationship cannot be established without proof that the injured party had direct contact with the municipality’s agents and justifiably relied to his or her detriment on the municipality’s assurances that it would act on that party’s behalf (Kircher v City of Jamestown, supra, at 259; Cuffy v City of New York, supra, at 260).

Here, there was no evidence that the decedent contacted the municipality’s agents or relied on any assurances of assistance, and the involvement of third parties did not satisfy these requirements. On this record, we cannot conclude that the municipality’s conduct deprived decedent of assistance that reasonably could have been expected from another source (cf., Sorichetti v City of New York, 65 NY2d 461; Florence v Goldberg, 44 NY2d 189).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Judge Bellacosa concurs on constraint of Kircher v City of Jamestown (74 NY2d 251), noting that this "911” domestic violence case represents another troublesome application of the special duty municipal liability immunity rule and that the court itself recognized in Kircher (id., at 259) that change would have to come from the Legislature.

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, defendant’s motion for judgment notwithstanding the verdict granted, and judgment granted in defendant’s favor dismissing the complaint, in a memorandum.


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    In the Matter of Bowery Savings Bank, Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motions to consolidate appeals dismissed as academic.


text:
    In the Matter of Chasco Company et al., Respondents, v Gary F. Musiello, as Receiver of Taxes of the Town of Oyster Bay, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as reinstated the petition against the county respondents, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).

Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of the petition as against respondent school district, dismissed upon the ground that movants are not aggrieved by the dismissal against the school district. Motion to consolidate appeals dismissed as academic.


text:
    Coliseum Hotel Associates, Respondent-Appellant, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of the County of Nassau et al., Appellants-Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motion and cross motion for consolidation and for notice to the Attorney-General dismissed as academic.


text:
    In the Matter of Coliseum Towers Associates, Respondent, v Robert D. Livingston, as Receiver of Taxes of the Town of Hempstead, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as reinstated the petition against the county respondents, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).

Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of the petition as against respondent school district, dismissed upon the ground that movants are not aggrieved by the dismissal against the school district. Motion to consolidate appeals dismissed as academic.


text:
    Corporate Property Investors et al., Respondents-Appellants, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of Nassau County, Appellant-Respondent.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses petitioners’ claims against the county does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as affirmed Supreme Court’s dismissal of the petition against the school district (CPLR 5511). Motion for consolidation dismissed as academic. Cross motion for leave to appeal denied. Cross motions for consolidation and for notice to the Attorney-General dismissed as academic.


text:
    Corporate Property Investors et al., Respondents-Appellants, v Board of Assessors of the County of Nassau et al., Appellants-Respondents, and Garden City Union Free School District No. 18 et al., Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses plaintiffs’ claims against movants does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as dismissed the complaint against the school districts (CPLR 5511). Motion for consolidation dismissed as academic. Cross motion for leave to appeal (1) from so much of the Appellate Division order as denied plaintiffs summary judgment against the county defendants, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), (2) as joined in by American Plan (875 Merrick Associates) and County Federal Savings and Loan Association dismissed upon the ground that they are not parties aggrieved (CPLR 5511), and (3) cross motion for leave to appeal otherwise denied. Cross motions for consolidation and for notice to the Attorney-General dismissed as academic.


text:
    In the Matter of Equitable Life Assurance Society of the United States, Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents, and Valley Stream Union Free School District No. 30, Respondent.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses petitioner’s claims against the county does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as dismissed the complaint against the school district (CPLR 5511). Motion for consolidation dismissed as academic.

Cross motion for leave to appeal from so much of the Appellate Division order as denied petitioner summary judgment against the county respondents, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2); cross motion for leave to appeal otherwise denied. Cross motions for consolidation and for notice to the Attorney-General dismissed as academic.


text:
    Garden City Center Associates et al., Respondents, v Board of Assessors of the County of Nassau et al., Appellants, and Tax Receiver of the Town of Hempstead et al., Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses plaintiffs’ claims against movants does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as pertains to the school districts. Motion for consolidation dismissed as academic.


text:
    In the Matter of Jericho Properties No. 1, Respondent, v Gary Musiello, as Receiver of Taxes of the Town of Oyster Bay, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as reinstated the petition against the county respondents, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).

Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of the petition as against respondent school district, dismissed upon the ground that movants are not aggrieved by the dismissal against the school district. Motion to consolidate appeals dismissed as academic.


text:
    In the Matter of Jericho Quadrangle One Company, Respondent, v Gary F. Musiello, as Receiver of Taxes of the Town of Oyster Bay, et al., Respondents, and Board of Supervisors of the County of Nassau et al., Appellants.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as reinstated the petition against the county respondents, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).

Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the dismissal of the petition as against respondent school district, dismissed upon the ground that movants are not aggrieved by the dismissal against the school district. Motion to consolidate appeals dismissed as academic.


text:
    In the Matter of Jericho-Westbury Indoor Tennis, Inc., Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents, and Jericho Union Free School District No. 15, Proposed Respondent.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motions to consolidate appeals dismissed as academic.


text:
    In the Matter of Robert Johnson, as District Attorney of Bronx County, Appellant, v Phylis S. Bamberger, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted December 26, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Net Realty Investment Trust et al., Respondents, v Board of Assessors of the County of Nassau et al., Appellants, and Garden City Union Free School District No. 13 et al., Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses plaintiffs’ claims against movants does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as pertains to the school districts. Motion for consolidation dismissed as academic.


text:
    In the Matter of Newbany Corporation, Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motions to consolidate appeals dismissed as academic.


text:
    In the Matter of Phoenix Capital and Management Corp., Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents, and Valley Stream Union Free School District No. 24, Respondent.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion and cross motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motions to consolidate appeals dismissed as academic.


text:
    Reckson Associates, Respondent-Appellant, v Uniondale Union Free School District No. 2, Respondent, and Board of Assessors of the County of Nassau et al., Appellants-Respondents.
    Submitted October 16, 1989;
    decided January 18, 1990
   Motion for leave to appeal dismissed upon the grounds that (1) so much of the order sought to be appealed from as addresses plaintiff’s claims against movants does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2), and (2) movants are not aggrieved by so much of the order sought to be appealed from as dismissed the complaint against the school district (CPLR 5511). Motion for consolidation dismissed as academic. Cross motion for leave to appeal from so much of the Appellate Division order as denied plaintiff summary judgment against the county defendants dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2); cross motion for leave to appeal otherwise denied. Cross motions for consolidation and for notice to the Attorney-General dismissed as academic.


text:
    Benjamin I. Wechsler, Appellant, v The People of the State of New York, Respondent.
    Submitted November 13, 1989;
    decided January 18, 1990
   Motion to dismiss appeal granted and appeal dismissed upon the ground that plaintiff’s appeal from the same order of the Appellate Division was previously dismissed for failure to prosecute. [See, 74 NY2d 793.]


text:
    The People of the State of New York, Respondent, v Moses Padro, Appellant.
    Argued January 4, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

      Myron Beldock and Lee F. Bantle for appellant.

      Robert M. Morgenthau, District Attorney (Patrick J. Hynes and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. A postverdict motion made pursuant to CPL 330.30 is not, by itself, ordinarily sufficient to preserve a "question of law” within the meaning of CPL 470.05 (2) and inasmuch as defendant failed to make appropriate objections during trial, the points presented by defendant are not preserved for review in this court.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Alexander.


text:
    The People of the State of New York, Respondent, v Manny Dennis, Appellant.
    Argued January 5, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

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

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

Order affirmed for the reasons stated in so much of the memorandum at the Appellate Division as addressed the issue of sufficiency of the evidence to support defendant’s conviction of robbery in the second degree (146 AD2d 708).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Alexander.


text:
    The People of the State of New York, Respondent, v Earl L. Sides, Jr., Appellant.
    Argued January 9, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

      John A. Schuppenhauer and Bruce A. Rosekrans for appellant.

      James R. Harvey, District Attorney (Brian D. Dennis of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the plea of guilty and judgment vacated, and the case remitted to County Court for further proceedings on the indictments.

On May 1, 1985, defendant was arraigned in County Court on various counts including sodomy, sexual abuse, endangering the welfare of a child and unauthorized use of a motor vehicle. As defendant had requested, John Gilbert was assigned to represent him, and on May 15, 1985 Gilbert appeared with defendant when he entered a plea of not guilty. Defendant was later offered a plea bargain and the case was adjourned until July 31, 1985 for defendant’s response. At a hearing on that date defendant announced that he wanted to dismiss Gilbert and have new counsel assigned. Gilbert, in turn, stated that "[defendant] also indicated to me * * * that he is not satisfied with my representation of him. As my discussions with him progressed it became apparent that any type of meaningful communication between us is probably dissolved at this point. I don’t think he trusts me. I am not sure I do the same with respect to him. I don’t see that I can continue to represent [defendant] in the way he wants but also in an effective capacity if in fact — because of the breakdown and inability to communicate with each other.”

The court then told defendant it was "not going to let you pick and choose between lawyers but I will relieve you of counsel which will mean that you will either have to hire a lawyer or try the case yourself.” Defendant answered that he had no money to hire a lawyer. Asserting that "[t]hat is too bad * * * [yjou’re not going to pick and choose between lawyers,” County Court ruled that if defendant did not plead guilty the plea offer would be revoked. Defendant then stated that he would plead guilty "if John Gilbert would still want to represent me, but I don’t want to go to trial without an attorney.” After conferring with Gilbert, defendant ultimately accepted the plea bargain and was sentenced accordingly. On appeal defendant contends that County Court’s failure to conduct any inquiry after he complained about the adequacy of counsel violated his State and Federal constitutional right to counsel.

The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant’s option (see, People v Sawyer, 57 NY2d 12, 18-19). Nevertheless, the right to be represented by counsel of one’s own choosing is a valued one, and a defendant may be entitled to new assigned counsel upon showing "good cause for a substitution,” such as a conflict of interest or other irreconcilable conflict with counsel (People v Medina, 44 NY2d 199, 207). Such requests may not be used merely to delay the orderly administration of justice, and while they are not to be granted casually the trial court in exercising its discretion to grant or deny must carefully evaluate seemingly serious requests in order to ascertain whether there is indeed good cause for substitution.

On this record, we conclude that defendant’s right to counsel was not adequately protected. Defendant’s request on its face Suggested a serious possibility of irreconcilable conflict with his lawyer, as evidenced by the acknowledgement of counsel that a complete breakdown of communication and lack of trust had developed in their relationship. That being so, the trial court was obliged to make some minimal inquiry and it erred by failing to ask even a single question about the nature of the disagreement or its potential for resolution. The court might well have found upon limited inquiry that defendant’s request was without genuine basis, but it could not so .summarily dismiss this request (compare, People v Medina, 44 NY2d, at 205-207, supra).

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

Order reversed, plea of guilty and judgment vacated and case remitted to Ontario County Court for further proceedings on the indictments in a memorandum.


text:
    Stanley Ross, Appellant, v Medical Liability Mutual Insurance Company, Respondent.
    Decided February 8, 1990

      APPEARANCES OF COUNSEL

      Frank A. Weg for appellant.

      Michael A. Ellenberg 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 at the Appellate Division (150 AD2d 187). To the extent that appellant has preserved his argument for our review, we add only that preclusive effect may be given to issues that were actually litigated, squarely addressed and specifically decided (compare, Malloy v Trombley, 50 NY2d 46, 50-53, with O’Connor v G & R Packing Co., 53 NY2d 278, 282-284).

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 Roosevelt Hall, Appellant.
    Decided February 8, 1990

      APPEARANCES OF COUNSEL

      Culver K. Barr for appellant.

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

On review of submissions, pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The finding by the courts below that the.initial approach of defendant by the police was justified presents a mixed question of law and fact which is beyond the review powers of this court because the evidence at the hearing was legally sufficient to support the determination made by the lower courts (People v Harrison, 57 NY2d 470, 477; People v Wharton, 46 NY2d 924, 925). We have considered defendant’s additional arguments and consider them to be without merit or not preserved.

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 James Yarrell, Appellant.
    Argued January 5, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

      Kevin F. Casey and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Beth B. Propper, Barbara D. Underwood and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and the indictment dismissed for the reasons stated in the dissenting memorandum by Justice Richard A. Brown at the Appellate Division (146 AD2d 819, 821-822).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Alexander.


text:
    Creative Trading Company, Inc., et al., Respondents, v Larkin-Pluznick-Larkin, Inc., Doing Business as National Fashion & Boutique Show, et al., Appellants.
    Argued January 11, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

      Robert G. Sugarman, Lawrence E. Elder and Cheryl L. Davis for appellants.

      Whitney North Seymour, Jr., and Craig A. Landy for respondents.

      Robert Abrams, Attorney-General (Lloyd Constantine, Alan Pfeifer and Susan Beth Farmer of counsel), amicus curiae.

      Sheldon I. London for National Association of Exposition Managers, amicus curiae.

   OPINION OF THE COURT

Order reversed, with costs, defendants’ motion to dismiss the third and fourth causes of action of the repleaded complaint granted, and the certified question answered in the negative for the reasons stated in the dissenting memorandum by Justice Joseph P. Sullivan at the Appellate Division (148 AD2d 352, 354-357).

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 Pedro Legister, Appellant.
    Argued January 3, 1990;
    decided February 8, 1990
    APPEARANCES OF COUNSEL

      Jonathan Heller and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney (Linda Cantoni 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.

At the trial of this case, a primary issue was the extent to which the victim was able to see the face of her attacker in the darkened bedroom where the crime occurred. After two days of deliberations, the jurors had not yet reached a verdict. During the overnight sequestration one juror adjusted the lighting conditions and opened the curtains in her hotel room to simulate what she believed to be the conditions of the crime scene, based on the victim’s testimony. She then asked another juror to walk in and out of the room, wearing clothing similar in color to that worn by the attacker, so that she could determine whether the victim would have been able to make a reliable identification. When deliberations resumed the next morning, the juror discussed the test with some of her associates. The jury soon returned a guilty verdict.

As in People v Brown (48 NY2d 388, 394), the juror’s conduct was conscious, contrived experimentation, directly material to a critical point at issue in the trial. In addition, the risk of prejudice to defendant is apparent. The victim’s identification of the defendant was crucial to the prosecution’s case and the juror’s experiment bolstered the identification with nonrecord evidence not subject to challenge by the defendant.

Moreover, there are in this case sufficient guarantees that the juror’s report of her conduct was genuine and not the product of posttrial harassment or intimidation. She discussed the experiment with some of her fellow jurors just before the final vote and she recounted the story almost immediately after the verdict in a conversation that included both defense counsel and the prosecutor.

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

Order reversed, etc.


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    The People of the State of New York, Respondent, v Dudley Dixon, Appellant.
    Argued January 5, 1990;
    decided February 8, 1990

      APPEARANCES OF COUNSEL

      Marshall Nadan for appellant.

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

Order reversed and the indictment dismissed for the reasons stated in the dissenting memorandum by Presiding Justice A. Franklin Mahoney at the Appellate Division (147 AD2d 769, 773, 774).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Alexander.


text:
    In the Matter of Tap Electrical Contracting Service, Inc., Respondent, v Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Appellant.
    Submitted January 22, 1990;
    decided February 8, 1990
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Motion for leave to appeal granted.

Judge Kaye taking no part.


text:
    In the Matter of Tap Electrical Contracting Service, Inc., Appellant, v Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Respondent.
    Submitted January 16, 1990;
    decided February 8, 1990
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Motion for leave to appeal granted.

Motion for a stay denied.

Judge Kaye taking no part.


text:
    New York State Commission on Government Integrity, Respondent, v Robert J. Congel et al., Appellants.
    Submitted January 22, 1990;
    decided February 8, 1990
   Motion to dismiss the appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Motion to vacate stay granted.


text:
    The People of the State of New York, Respondent, v Stephen Autry, Appellant. The People of the State of New York, Respondent, v Domingo Lara, Appellant. The People of the State of New York, Respondent, v James Brown, Also Known as Brian Brooks, Appellant. The People of the State of New York, Appellant, v George Fehr, Respondent.
    Argued January 10, 1990;
    decided February 13, 1990

      APPEARANCES OF COUNSEL

      Francis A. Brady, III, and Philip L. Weinstein for appellants in the first and second above-entitled actions.

      Francis A. Brady, III, Philip L. Weinstein and Sara Bennett for appellant in the third above-entitled action.

      John J. Santucci, District Attorney, Queens County (Seymour Roth of counsel), for appellant in the fourth above-entitled action.

      Robert M. Morgenthau, District Attorney, New York County (Susan Corkery, Hilary Hassler and Laurie Sapakoff of counsel), for respondent in the first and third above-entitled actions.

      Robert T. Johnson, District Attorney, Bronx County (Joseph M. Sise and Billie Manning of counsel), for respondent in the second above-entitled action.

      Freda S. Nisnewitz for respondent in the fourth above-entitled action.
   OPINION OF THE COURT

Memorandum.

In People v Autry, People v Lara and People v Brown, the order of the Appellate Division should be affirmed. In People v Fehr, the order of the Appellate Division should be reversed.

Each of these four cases involves a claim by the defendant that the trial court’s instructions to the jurors concerning their duty to draw no adverse inference from the defendant’s failure to testify should have been confined to the bare words of the statute (CPL 300.10 [2]) requiring the court to give such a charge upon defense request, and that the more expansive charge delivered in each case violated the defendant’s right against self-incrimination by unduly emphasizing the defendant’s silence. (See, by contrast, the instruction recommended by the Committee on Criminal Jury Instructions of the State of New York in 1 CJI[NY] 7.05.) In none of the cases did the defendant request the court, before the charge, to limit its instruction to the statutory language, nor was there any objection after the charge to alert the court to the contention now raised on appeal. As a result, the alleged errors are not preserved for our review.

Contrary to the defendants’ contentions, the error, if there was any error, in the instructions does not fall within the narrow exception to the rule enunciated in People v McLucas (15 NY2d 167, 170-171) that objections to the charge must be made at trial. An objection is required to preserve a point of law for appellate review except in a very small class of cases where the error results in a trial "at basic variance with the mandate of law prescribed by Constitution or statute”. (People v Thomas, 50 NY2d 467, 471.) In the case of a charge error implicating defendant’s right against self-incrimination, the exception to the preservation requirement may be invoked only where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified (see, People v Thomas, 50 NY2d, at 472, supra; People v McLucas, 15 NY2d 167, supra; cf., People v Burke, 72 NY2d 833, 836).

The errors alleged in the cases before us were not of that character. The defendants concede that the challenged instructions were facially correct statements of law. They complain only about possible nuances and inferences. Indeed, in contrast to the charge given in McLucas, it is entirely possible that the failure to object represents counsel’s reasonable trial-level determination that an extended instruction to the jury would benefit these defendants.

Accordingly, in the absence of objection at trial, the defendants’ appellate challenges to the charge present no reviewable question of law. For that reason, the orders of the Appellate Division in People v Autry, People v Lara and People v Brown must be affirmed. In People v Fehr, the Appellate Division reversed the defendant’s conviction on the law despite defendant’s failure to raise a timely objection to the charge. It is clear from the Appellate Division writing, including citation of its previous cases addressing the point, that the court concluded that no objection was required to preserve the legal issue for review. Since that was error, the Appellate Division order must be reversed, and the case remitted to that court to permit it to exercise its fact review and interest of justice jurisdiction (CPL 470.15 [5], [6]; People v Cona, 49 NY2d 26, 33-34).

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

In People v Autry, Lara and Brown: Order affirmed in a memorandum.

In People v Fehr: Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Federal Deposit Insurance Corporation, Appellant, v Daniel A. Porco et al., Respondents, et al., Defendant.
    Argued January 4, 1990;
    decided February 13, 1990

      APPEARANCES OF COUNSEL

      Ira L. Hyams for appellant.

      Carol M. Roberts for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff, the receiver of an insolvent bank, obtained a $6,000,000 money judgment in Federal court against a director of the bank’s parent corporation, for losses suffered by the bank as a result of the director’s involvement in the bank’s financial affairs. Several years thereafter, plaintiff brought this action alleging that, during the pendency of the Federal suit, defendants, two officials of the bank, had assisted the director in transferring certain moneys, in which the director had a beneficial interest, to an account in Switzerland. Plaintiff does not claim that defendants were the recipients of the funds or that they benefited in any way from the transfer. Plaintiff alleges only that defendants helped the director make the transfer and, thereby, fraudulently deprive plaintiff of moneys to which it should be entitled as a result of the Federal judgment.

Supreme Court denied defendants’ motion to dismiss the complaint for failure to state a cause of action. The Appellate Division, however, reversed on the ground that, under longstanding New York law, a creditor has no cause of action against a party who merely assists a debtor in transferring assets where, as here, there was neither a lien on those assets nor a judgment on the debt. We agree with the Appellate Division.

On this appeal, plaintiff concedes that the traditional rule in this State rejects any cause of action for mere participation in the transfer of a debtor’s property prior to the creditor’s obtaining a judgment or a lien on that property (see, Braem v Merchants’ Natl. Bank, 127 NY 508, 515). Plaintiff argues, however, that the rule was changed with the enactment of sections 278 and 279 of the Debtor and Creditor Law (L 1925, ch 254, § 1). But, as the courts of this State have consistently held since the adoption of those provisions (see, e.g., Hearn 45th St. Corp. v Jano, 283 NY 139, 143; Marine Midland Bank v Murkoff, 120 AD2d 122, 131; Northville Dock Corp. v Aller, 15 AD2d 947, affd 15 NY2d 498), a creditor’s remedy for the transfer of its debtor’s assets, where undertaken prior to a judgment on the debt, is still to obtain a nullification of the conveyance (see, § 279) and, where undertaken after judgment, additionally to secure the assets in satisfaction of the debt (see, § 278). Those sections did not, either explicitly or implicitly, create a creditor’s remedy for money damages against parties who, like defendants here, were neither transferees of the assets nor beneficiaries of the conveyance.

Nor is there merit to plaintiff’s argument that section 273-a of the Debtor and Creditor Law (L 1962, ch 310, § 103) created a creditor’s cause of action in conspiracy, assertable against nontransferees or nonbeneficiaries solely for assisting in the conveyance of a debtor’s assets. Rather, that section simply defines a fraudulent conveyance as one made without fair consideration, by a debtor, who is defending an action for money damages or against whom a judgment has been rendered, where the debtor ultimately fails to satisfy the judgment. Nevertheless, plaintiff contends that section 273-a, when read together with section 279, provides prejudgment creditors with an interest in the debtor’s assets sufficient to obtain an order to prevent the debtor, or the debtor’s transferees, from disposing of the assets. Even if that be so, the statute still cannot fairly be read as creating a remedy against nontransferees who, like defendants here, are not alleged to have dominion or control over those assets or to have benefited in any way from the conveyance. It is not for us to write such a remedy into the statute by judicial construction.

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

Order affirmed, etc.


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    Elfie Knecht, Respondent, v Dusica Radulovic et al., Respondents, and Miladin Gasic, Appellant.
    Submitted December 26, 1989;
    decided February 13, 1990
   Motion for leave to appeal dismissed upon the ground that movant is not aggrieved by the Appellate Division order affirming the dismissal of the action as against defendant Sweater Bee by Banff, Ltd.


text:
    Eliahu Lipkis et al., Appellants, v Edward Epstein et al., Respondents.
    Submitted December 4, 1989;
    decided February 13, 1990
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Edwin Frank et al., Respondents, v McKenna Development Group, Inc., Appellant.
    Submitted December 18, 1989;
    decided February 13, 1990
   Motion for leave to appeal denied. Cross motion for sanctions denied.


text:
    The People of the State of New York, Respondent, v Robert Buckley, Appellant.
    Argued January 3, 1990;
    decided February 15, 1990

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Jeffrey Wicks of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted, after a jury trial, of criminal possession of stolen property in the second degree (Penal Law § 165.45 [1]). On this appeal he challenges the first count of the indictment which charges that he and the codefendants knowingly possessed stolen radar detectors belonging to four separate owners which, considered in the aggregate, exceeded $250 in value. Defendant contends that the count is duplicitous because possession of stolen property belonging to separate owners constitutes discrete offenses committed against each property owner individually and, similar to multiple larcenies, may be charged as a single offense only if the property is possessed in furtherance of a common scheme or plan or received at the same time and place. He contends that because the People do not allege in the indictment or bill of particulars that the four instruments were had as part of a common plan, it was error to aggregate the value of the separately stolen property to charge one count of criminal possession of stolen property in the second degree rather than four separate counts of criminal possession of stolen property in a lesser degree. Supreme Court rejected defendant’s contention and denied his pretrial motion to dismiss the first count and the Appellate Division affirmed relying on its decision in People v Loret (136 AD2d 316). We agree with those courts.

As defendant acknowledges, the indictment does not allege that any one of the stolen instruments is valued in excess of $250 or as such that possession of any single instrument would by itself constitute the offense. Rather it charges that simultaneous possession of all the stolen instruments constitutes the offense because when aggregated their value exceeds $250. Thus, he does not claim, nor could he, that the first count is duplicitous because it subjects him to multiple convictions for criminal possession of stolen property in the second degree for each stolen instrument he possessed, or that he could be convicted for possession of any one instrument should the District Attorney waive prosecution for possession of another (see, People v Klipfel, 160 NY 371; People v James, 98 AD2d 863; see, CPL 200.30 [1]). He claims instead that the offense, by definition, entails possession of stolen property belonging to a single owner and that the People may not aggregate the value of stolen property belonging to four separate individuals in the absence of a common scheme or plan.

Defendant’s argument rests principally upon a narrow interpretation of the statutory phrase "an owner”. Penal Law § 165.45 provides that one is guilty of the offense when he knowingly possesses stolen property "with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof’ (Penal Law § 165.45 [emphasis added]). The General Construction Law provides, however, that "[w]ords in the singular number include the plural, and in the plural number include the singular” (General Construction Law § 35). This rule of construction "is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended” (General Construction Law § 110). The legislative history and context of the language used in Penal Law § 165.45 demonstrate that the gravamen of the offense is the knowing possession of stolen property and the character of the act is not affected by the fact that the property may have belonged to several owners rather than one (see, People v Loret, supra, at 318-319 [including discussion of legislative history]).

Thus, unlike separate and unrelated thefts from different persons, which cannot be combined to form grand larceny (see, People v Thiel, 26 AD2d 897) unless committed pursuant to a single intent and common plan (see, People v Cox, 286 NY 137; People v Perlstein, 97 AD2d 482, 484), simultaneous possession of stolen property belonging to different persons can be considered one offense and the value of the property aggregated to constitute an aggravated charge of criminal possession of stolen property.

Defendant also contends that the court erred by refusing to instruct the jury on criminal possession of stolen property, third degree, as a lesser included offense. Counsel failed to request such a charge, however, and therefore the claim is unpreserved. Defendant cannot rely on the request of a codefendant to preserve the claimed charge error notwithstanding the recent amendment to CPL 470.05 (2) (L 1986, ch 798) or the agreement of counsel made early at trial that "exceptions” by counsel of one defendant would apply to all codefendants. For tactical reasons codefendants might take different positions on the desirability of various instructions to the jury and each must specify his or her objection to preserve legal error with respect to lesser included offenses.

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

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

Order affirmed in a memorandum.

       Penal Law § 165.45 (1) has since been amended to define the crime as criminal possession of stolen property in the fourth degree and increase the required value to $1,000 (see, L 1986, ch 515, § 5).


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    Karen S. Besser, Appellant, v E. R. Squibb & Sons, Inc., et al., Respondents.
    Argued January 11, 1990;
    decided February 15, 1990

      APPEARANCES OF COUNSEL

      William D. Fireman and Stuart A. Schlesinger for appellant.

      David J. Fleming, Robert M. Dato, Nancy Lucas Haniotis, Barry M. Epstein, Marc S. Klein and William B. Korman for E. R. Squibb & Sons, Inc., respondent.

      Russel H. Beatie, Jr., Samuel J. Abate, Jr., Susan E. Kelty and Chama L. Gerstenhaber for Eli Lilly & Company, respondent.

      Jay P. Mayesh and William A. Rome for Upjohn Company, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (146 AD2d 107).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Judge Bellacosa.


text:
    In the Matter of Peter J. Corines, Appellant, v Catholic Medical Center of Brooklyn and Queens, Inc., Respondent.
    Submitted December 4, 1989;
    decided February 15, 1990
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    In the Matter of Richard Flowers et al., Appellants, v James Sullivan et al., Respondents. (Proceeding No. 1.) In the Matter of Richard Flowers et al., Appellants, v James Sullivan et al., Respondents. (Proceeding No. 2.)
    Submitted October 2, 1989;
    decided February 15, 1990
   On the court’s own motion, appeal, insofar as taken by petitioners Flowers and Jefferson, dismissed, without costs, upon the ground that the issues raised on the appeal have become moot as to them. Motion for assignment of new counsel granted only to the extent that present counsel is relieved of her assignment.


text:
    Shane Venkatesan, Appellant, v Stellmack Air Conditioning and Refrigeration Corp., Respondent.
    Submitted December 11, 1989;
    decided February 15, 1990
   Motion, treated as one for leave to appeal, denied.


text:
    Yessenia Lugo, an Infant, by Her Mother and Natural Guardian, Mildred Lopez, et al., Respondents, v LJN Toys, Ltd., Appellant.
    Argued January 10, 1990;
    decided February 20, 1990

      APPEARANCES OF COUNSEL

      Joseph M. Buderwitz, Anthony Caputo and Joseph J. Buderwitz, Jr., for appellant.

      John E. Fitzgerald and Robert C. Agee for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs instituted this action to recover for personal injuries sustained when the infant plaintiff was struck in the eye by part of a toy manufactured by defendant and thrown by a playmate. They claim that the toy, a doll known as "VoltronDefender of the Universe”, was a replica of a well-known television cartoon character who overcame enemies by hurling his shield at them. The part of the doll that struck the infant plaintiff was detachable and described variously as a spinning "shield”, "blade” or "star” with eight points around its circumference. Plaintiffs allege the product, marketed as suitable for children age four and older, was defective because improperly designed and because marketed without adequate warnings.

A manufacturer who sells a product in a defective condition is liable for injury which results to another when the product is used for its intended purpose or for an unintended but reasonably foreseeable purpose (see, Micallef v Miehle Co., 39 NY2d 376, 385-386; Biss v Tenneco, Inc., 64 AD2d 204, 206). Plaintiff has submitted expert evidence that, based upon customs and standards in the toy safety community, the part was defective because detachable from the doll and that throwing it was foreseeable because of the extensive television exposure in which Voltron did so. This was sufficient response to defendant’s motion for summary judgment to establish questions for the jury of whether the product was defective and reasonably safe for its intended use or a reasonably foreseeable unintended use.

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

Order affirmed, etc.


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    In the Matter of McGraw-Hill, Inc., Respondent, v State Tax Commission, Appellant.
    Argued January 11, 1990;
    decided February 20, 1990

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter H. Schiff, O. Peter Sherwood and Francis V. Dow of counsel), for appellant.

      John L. Cady for respondent.

      Richard J. Tofel, Charles F Feldman and Robert D. Sack for Dow Jones & Company, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed for the reasons stated in the opinion of Justice T. Paul Kane (146 AD2d 371), with costs. On this appeal the State contends, for the first time, that even if the taxpayer prevails in its claim that the tax levied on it for tax years 1976 through 1979 is unconstitutional, the court’s decision, based upon a 1978 amendment to the Commission’s rules and a 1981 statutory amendment (L 1981, ch 103, § 1, amending Tax Law § 210 [3] [a] [2] [B]), should not be applied retroactively because the methodology for assessing the tax had been approved in 1976 in Matter of Conde Nast Pubis, v State Tax Commn. (51 AD2d 17, mot to dismiss appeal granted 39 NY2d 942). Acceptance of that position would leave the petitioner virtually remediless after payment of $1,731,617.30 in taxes, interest and penalties. After the rule was changed by statute in 1981, petitioner had little reason to pursue this lengthy and expensive litigation except to recover the sums improperly charged against it. Inasmuch as respondent has not established that requiring repayment would impose any undue burden, we reject the respondent’s claim of nonretroactivity (cf., Foss v City of Rochester, 65 NY2d 247, 260).

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

Judgment affirmed, with costs, in a memorandum.


text:
    John B. Bell, Appellant, v State of New York et al., Respondents.
    Submitted December 26, 1989;
    decided February 20, 1990
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of November 28, 1989, 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.


text:
    In the Matter of Michael Brumer et al., Appellants, v Thomas Sobol, as Commissioner of Education, et al., Respondents. In the Matter of Lawrence Klein et al., Appellants, v Thomas Sobol, as Commissioner of Education, et al., Respondents.
    Submitted December 26, 1989;
    decided February 20, 1990
   Motions for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution and they are not nonfinal orders of the type within the meaning of CPLR 5602 (a) (2). Motions for stay dismissed as academic.


text:
    In the Matter of Lincoln Plaza Associates, Respondent, v R. Alexander Alba, Also Known as R. A. Alba, et al., Appellants, et al., Respondents.
    Decided February 20, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    The People of the State of New York, Appellant, v Michael Johnson, Respondent.
    Argued January 11, 1990;
    decided February 22, 1990

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Donald J. Siewert and Mark Dwyer of counsel), for appellant.

      John S. Beckerman, Philip L. Weinstein and Barry D. Lei-want for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by remitting the case to Supreme Court, New York County, for further proceedings on the indictment.

Defendant was convicted of assault in the first degree based upon his alleged shooting of a taxi driver. On appeal, the Appellate Division reversed his conviction concluding that the trial court erred in admitting the complainant’s out-of-court identification of defendant since the complainant failed to make an in-court identification, not because of deficient recollection, but rather out "of a fear of reprisal against him and his family” (144 AD2d 239, 241; see, CPL 60.25 [1] [a] [in]). Applying our decision in People v Bayron (66 NY2d 77), the Appellate Division concluded that under such circumstances the complainant’s out-of-court identification should not have been admitted under CPL 60.25.

On appeal to this court, the People argue that the complainant identified the defendant in court and that his out-of-court identification testimony was, therefore, admissible under CPL 60.30. Contrary to the People’s contention, both Supreme Court and the Appellate Division properly concluded that the complainant did not make an in-court identification of the defendant. Since the complainant’s failure to identify the defendant in court was not due to deficient recollection, his out-of-court identification should not have been admitted (People v Bayron, supra).

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

Order modified by remitting the case to Supreme Court, New York County, for further proceedings on the indictment and, as so modified, affirmed in a memorandum.

       Supreme Court apparently operated under the mistaken assumption that complainant’s out-of-court identification was admissible even though the complainant refused to identify the defendant at trial because of fear. This conclusion by Supreme Court, which predated our decision in People v Bayron (66 NY2d 77), was incorrect.


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    The People of the State of New York, Respondent, v Keith Williams, Appellant.
    Argued January 5, 1990;
    decided February 22, 1990

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (James Eckert of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant did not challenge the admission of proof that the victim promptly complained of being raped. Nor did he object to the substance of the trial court’s instruction to the jury that a prompt complaint lends "some measure of reliability to the alleged victim’s story * * * [but] is not proof of the facts and circumstances * * * for [which] you must seek other proof.” Accordingly, we do not address the propriety of the prompt complaint evidence as admitted or of the charge as given in this case.

In the context of this case, defendant does not challenge the existing law. His only argument is that the trial court committed reversible error by giving its instruction over his objection that the instruction would unduly draw the jury’s attention to the prompt complaint evidence. But if, as defendant concedes, proof that the victim promptly complained of being raped is admissible, under existing law, to show the reliability of that complaint (see, Boecio v People, 41 NY 265; People v Deitsch, 237 NY 300; Richardson, Evidence § 292 [Prince 10th ed]), it cannot be said that the trial court abused its discretion by advising the jurors of the legal principles which, defendant does not dispute, govern the use of that evidence in their deliberations (see, CPL 300.10 [2]).

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

Order affirmed in a memorandum.


text:
    Aetna Insurance Company et al., Appellants, v Nancy Capasso, Respondent and Third-Party Plaintiff, et al., Third-Party Defendant.
    Argued January 11, 1990;
    decided February 22, 1990

      APPEARANCES OF COUNSEL

      Joseph DiBenedetto, Anthony J. D'Auria and Thomas J. Quigley for appellants.

      Steven J. Hyman and Paul H. Levinson for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, First Department, should be affirmed and the question certified, "Was the order of the Supreme Court, as affirmed by this Court, properly made?”, should be answered in the affirmative. The sole issue presented for our review is whether the trial court, as affirmed "on the law” by the Appellate Division, abused its discretion as a matter of law in denying plaintiffs’ request for a preliminary injunction (see, CPLR 6301; cf., CPLR art 62 [attachment]). We find no such abuse here.

The trial court properly noted that in order to be entitled to a preliminary injunction, plaintiffs had to show a probability of success, danger of irreparable injury in the absence of an injunction, and a balance of the equities in their favor (see, Grant Co. v Srogi, 52 NY2d 496, 517). Weighing these factors, the trial court denied the requested relief. The Appellate Division gave no reason for its affirmance (see, 490 Ocean Assocs. v Abrams, 71 NY2d 975, 976-977). We can find nothing in the Appellate Division’s summary affirmance which would warrant a reversal by this court as a matter of law (see, James v Board of Educ., 42 NY2d 357, 363).

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

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


text:
    Cobble Hill Nursing Home, Inc., Appellant, v Henry and Warren Corporation, Respondent. David Axelrod, as Commissioner of the State of New York Department of Health, Intervenor.
    Submitted January 8, 1990;
    decided February 22, 1990
   Motion for reargument and for amendment of remittitur denied. [See, 74 NY2d 475.]


text:
    Marshall R. Fine, Appellant, v Commissioner of the Department of Consumer Affairs of the City of New York et al., Respondents.
    Decided February 22, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Thomas F. Hartnett, as Commissioner of Labor of the State of New York, Respondent, v Village of Ballston Spa, Appellant.
    Decided February 22, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Zoran Jordan (Jordan Zoran), Appellant, v G. Montenegro et al., Respondents.
    Submitted January 16, 1990;
    decided February 22, 1990
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain the motion for leave to appeal from the determination of the Court of Claims absent the existence of an order of the Appellate Division made on a prior appeal in the action which necessarily affects the final determination sought to be appealed from (CPLR 5602 [a] [1] [ii]).


text:
    In the Matter of Theodore Little, Appellant, v Anthony Savarese, as a Justice of the Supreme Court, et al., Respondents.
    Submitted February 5, 1990;
    decided February 22, 1990
   Motion for leave to appeal dismissed for mootness. Motion for a stay dismissed as academic.


text:
    Norah Maroulis et al., Respondents, v David Berg et al., Appellants, et al., Defendants.
    Submitted February 13, 1990;
    decided February 22, 1990
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. [See, 75 NY2d 808.]

Cross motion for sanctions denied.


text:
    In the Matter of Raquel Marie X., an Infant. Mr. and Mrs. C. et al., Respondents; Mr. T., Appellant.
    Submitted January 29, 1990;
    decided February 22, 1990
   Motion and cross motion insofar as they seek visitation rights dismissed upon the ground that this court does not have jurisdiction to entertain motions for such original relief. Motion by Mr. T., insofar as it seeks poor person relief, denied. Remainder of cross motion by Mrs. T., treated as a motion for leave to appeal, dismissed as untimely.


text:
    In the Matter of Jose Serrano, Respondent, and Jose L. Ithier, Petitioner, v Vincent J. Cuttita et al., Constituting the Board of Elections of the City of New York, Respondents, and Ismael Betancourt, Jr., et al., Appellants.
    Decided March 19, 1990
   Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Papers on appeal treated as a motion for leave to appeal and motion denied.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa. Taking no part: Judges Alexander and Titone.


text:
    In the Matter of Ismael Betancourt, Jr., Appellant, v Vincent J. Cuttita et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Decided March 19, 1990
   Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Papers on appeal treated as a motion for leave to appeal ánd motion denied.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa. Taking no part: Judges Alexander and Titone.


text:
    In the Matter of Ismael Betancourt, Jr., Appellant, v Gertrude Strohm et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Decided March 19, 1990
   Appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Papers on appeal treated as a motion for leave to appeal and motion denied.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa. Taking no part: Judges Alexander and Titone.


text:
    The People of the State of New York, Respondent, v Dwight James, Appellant.
    Argued February 6, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      Jeffrey Dellheim and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

At trial the defendant moved to dismiss the indictment on the ground that the prosecution had failed to corroborate accomplice testimony. This argument was based on the contention that a prosecution witness, Melvin Rogers, was an accomplice as a matter of law. This contention was rejected by the trial court and has been abandoned by the defendant on the appeal. The defendant now contends that Melvin Rogers’ testimony was insufficient to corroborate the accomplice. Alternatively it is contended that the court, in effect, should have charged the jury that it must acquit the defendant if it found that he was an accomplice, as a matter of fact, because there was no other evidence sufficient to corroborate the accomplice testimony.

Because neither of these points was presented to the trial court, they have not been preserved for our review. The defendant’s argument that the latter point need not be preserved by such a request, is based on the dissenting opinion in People v Doyle (304 NY 120), which is not a binding interpretation of the majority’s holding. This issue is not so extraordinary that it should be exempted from the preservation requirement (see, e.g., People v Ahmed, 66 NY2d 307). A simple and clear request to have the court charge to acquit the defendant if the jury finds that Melvin Rogers was an accomplice, would have alerted the court to the precise point, and would have led to a correction of the error at trial, or preservation of the point for appellate review.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Joe Greene, Appellant.
    Argued February 8, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      Ellen L. Schutz and Philip L. Weinstein for appellant.

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

Memorandum.

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

Defendant was tried for first degree manslaughter upon an indictment which alleged, in part, that the defendant caused the death of the victim, Dana Oliver, "by shooting him.” The medical evidence at trial, however, was equivocal as to whether the victim’s head wound was caused by a bullet or by some other instrumentality.

After the close of the evidence, defendant asked the court to charge the jury that they must acquit defendant if the victim’s injury was not caused by a shooting, contending that the People were so bound by the language in the indictment. The court initially agreed, stating that it would charge that the People had to prove beyond a reasonable doubt that defendant shot the victim.

Based on this, assurance, defense counsel in his closing argument emphasized the equivocal nature of the proof that a shooting occurred and told the jury that they should acquit defendant if there was a reasonable doubt that the victim’s wound was caused by a gunshot. The People’s objection to this argument was overruled. The court’s charge to the jury was, as promised, in accord with defendant’s contention that the shooting was a necessary element of the People’s proof.

During jury deliberations, however, the court reversed its ruling in response to a note from the jury asking: "If Dana Oliver was killed by other than a gun, can we find not guilty?” The court responded, contrary to its earlier position, that the jury could find defendant guilty if he caused the victim’s death by means other than a gun. The jury returned a guilty verdict.

On this record, we need not determine whether, in the abstract, defendant properly could have been convicted if the jury concluded that no shooting had occurred (cf., People v Grega, 72 NY2d 489, 496-499), for it was error, prejudicial to defendant, for the court to reverse its stance after assuring defendant that it would charge as he requested and after defendant had premised his summation on that theory.

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Gary H. Vollick, Respondent.
    Argued February 9, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for appellant.

      J. Michael Jones and Peter K. Skivington for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (148 AD2d 950).

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 Menthorn W. Robinson, III, Respondent.
    Argued February 8, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

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

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

Order affirmed for the reasons stated in the opinion by Presiding Justice Michael F. Dillon at the Appellate Division (145 AD2d 184).

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


text:
    Carol A. Hughes et al., Appellants, v Robert Jahoda et al., Defendants, and Town of Huntington, Respondent.
    Decided March 22, 1990
    APPEARANCES OF COUNSEL

      Leonard L. Finz, Jerrold S. Parker and Steven DiJoseph for appellants.

      Kenneth J. Klein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the Town’s cross motion for summary judgment dismissing the complaint denied, the plaintiffs’ motion to dismiss the Town’s fourth, fifth and sixth affirmative defenses granted and the matter remitted to Supreme Court, Suffolk County, to pass on the remainder of plaintiffs’ motion.

Plaintiff, Carol Ann Hughes, was injured when a vehicle in which she was a passenger struck a utility pole placed near the pavement of Cove Road in the Town of Huntington. She commenced this action against defendant Town alleging negligence for (1) failure to post proper warnings, reflective devices or signs, (2) failure to maintain adequate lighting, fencing, curbing and/or impact absorbing materials at the site and (3) for permitting the pole to remain in a position which caused an unreasonable risk of harm to users of Cove Road. After the plaintiffs moved to dismiss certain affirmative defenses contained in the Town’s answer, the Town cross-moved for summary judgment dismissing the complaint, and all cross claims asserted against it, because no prior written notice of the allegedly unsafe or dangerous condition existing on the highway had been given. Section 173-18 (A) of the Town Code provides that no civil action shall be maintained against the Town as a result of an accident caused by a highway "being defective, out of repair, unsafe, dangerous or obstructed” unless the Town Clerk had received written notice of the condition prior to the occurrence of the accident, and the Town failed to correct the condition within a reasonable period. The courts below dismissed the complaint, holding that the placement of the pole in an allegedly dangerous manner was a defect within the Town’s prior notice statute, and the Town had received no written notice of that condition, as required, before plaintiff’s accident.

In Alexander v Eldred (63 NY2d 460) and Doremus v Incorporated Vil. of Lynbrook (18 NY2d 362), we emphasized that prior written notice statutes, "read strictly, as [they] should be read, refer[ ] to physical conditions in the streets or sidewalks * * * which do not immediately come to the attention of the village officers unless they are given actual notice thereof.” (Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366, supra; see, Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 918.) Defendant maintains that our decisions in Alexander and Doremus holding that no prior written notice was required were limited to the "defect” language in the statute and do not apply here where the complaint, alleging that the placement of the utility pole created an "unsafe” and "dangerous” obstruction in the highway, falls under other language in the notice statute (see, Code of Town of Huntington § 173-18 [A]; Freeman v County of Nassau, 95 AD2d 363, 365 [distinguishing Doremus, which dealt with the "defect” language in the notice statute, from the claim before it concerning "obstructions”]). Contrary to defendant’s contention, the Doremus court was analyzing the entire notice statute (i.e., "defective, unsafe, dangerous or obstructed condition”) when it concluded that it was meant to apply in situations where the physical condition of the street did not "immediately come to the attention of the village officers” unless they were given "actual notice.”

Plaintiffs’ complaint here alleges that the Town was negligent in designing the roadway with the utility pole positioned in a dangerous manner without any guard, barricade or warning. This allegation of a failure to construct proper barricades and warnings is more akin to the failure to construct a traffic control device as alleged in Alexander (63 NY2d 460, 467, supra). The Town was aware of the "condition” when it designed and constructed the roadway and positioned the utility pole, thus it was not the type of physical condition which would not ordinarily come to the attention of the Town officers unless they were given notice thereof (compare, Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 919, supra [prior notice statute applies where low-lying branch from tree creates condition which would not immediately come to attention of village officers unless they were given actual notice]). Therefore, the prior notice statute does not apply.

Chief Judge Wachtlek 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:
    The People of the State of New York, Respondent, v Donald Nickerson, Appellant.
    Argued February 7, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      Alani Golanski and Philip L. Weinstein for appellant.

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

Order affirmed. Defendant’s sole argument with respect to the People’s alleged failure to comply with CPL 710.30 is not preserved for our review (see, CPL 470.05 [2]).

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


text:
    In the Matter of Ricky AA., an Infant. Leon AA. et al., Respondents; Giselle BB., Appellant. (Proceeding No. 1.) In the Matter of Giselle BB., Appellant, v Leon AA. et al., Respondents. (Proceeding No. 2.)
    Argued February 14, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      John J. La Boda, Jr., and Robert M. Cohen for appellant.

      Jessica C. Brynteson for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, and certified question answered in the negative for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (146 AD2d 433).

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 Grady Hurley, Appellant.
    Argued February 6, 1990;
    decided March 22, 1990
    APPEARANCES OF COUNSEL

      Joseph A. Zayas and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Hildy B. Levine and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sentence claim now advanced is unpreserved for our review (People v Ruz, 70 NY2d 942, 943; People v Ingram, 67 NY2d 897, 899). Defendant argues that the trial court’s 2-to-4-year sentence improperly penalized him for exercising his right to a jury trial. At sentencing, he asserted that the People had earlier offered him a sentence of lVá to 4 years if he pleaded guilty and that he had been advised by his lawyer that he would receive the same sentence if he went to trial. The sentencing court clarified the record by noting that defendant had been offered a reduced sentence if he pleaded guilty or if he waived a jury and was convicted after a bench trial. The defendant and his attorney made no protest or objection as the 2-to-4-year predicate felony offender sentence was imposed, with the sentencing Judge adding this was not being done as a penalty but on all the usual sentencing factors. •

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 Martin Thomas, Appellant.
    Argued February 7, 1990;
    decided March 22, 1990

      APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

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

Order affirmed. Defendant’s request for the plea and sentence minutes of his accomplice as Rosario material (People v Rosario, 9 NY2d 286, cert denied 368 US 866), asserted for the first time on appeal under CPL 380.70, is unpreserved because it was made to the trial court on a bare claim of entitlement with no specific response to the court’s request for a relevant legal predicate. The other claimed errors in the prosecutor’s summation are also either unpreserved or without merit.

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


text:
    In the Matter of Alderic Vaillancourt, Appellant, v New York State Liquor Authority et al., Respondents.
    Decided March 27, 1990

      APPEARANCES OF COUNSEL

      William P. Seamon and Richard E. Casagrande for appellant.

      Robert Abrams, Attorney-General (Nancy Miller Lerner of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (153 AD2d 531).

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 Jerome Hickman, Respondent.
    Argued February 8, 1990;
    decided March 27, 1990

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Wendy Evans Lehmann of counsel), for appellant.

      Dana M. Ragsdale for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (148 AD2d 937; see also, People v Saez, 69 NY2d 802).

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


text:
    In the Matter of Jamal C., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 15, 1990;
    decided March 27, 1990

      APPEARANCES OF COUNSEL

      Carol Goldstein and Lenore Gittis for appellant.

      Victor A. Kovner, Corporation Counsel (John Hogrogian and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following an allocution in which he admitted his participation, respondent was adjudicated a juvenile delinquent on the basis of acts which, if committed by an adult, would constitute the crime of fourth degree grand larceny (Penal Law § 155.30). On this appeal from the Appellate Division order affirming the dispositional order of the Family Court, respondent contends that the courts below erred in refusing to suppress evidence of a pretrial identification procedure that was conducted in the absence of his attorney. We reject respondent’s argument.

The July 1, 1987 identification procedure in question was initiated by an investigating officer, who learned that respondent, already a suspect, was expected to appear in court that day on an unrelated charge. Acting on this information, the officer brought the complaining witness to the courthouse’s "crowded” third-floor waiting room and asked him whether his alleged assailant was among the individuals present. The complainant picked respondent from the assortment of people who were in the waiting room at the time.

Although it is undisputed that the officer knew or should have known that respondent was represented on the unrelated charge and that his attorney was probably in the courthouse at the time, the officer had no obligation to seek out the attorney or offer the attorney an opportunity to be present during the identification procedure. Since the investigation of respondent’s involvement in the crime had not yet ripened into the commencement of formal proceedings, respondent had no constitutional right to the presence of counsel (see, People v Hawkins, 55 NY2d 474). Moreover, since respondent was not in custody at the time the procedure was conducted, it is immaterial that respondent’s attorney might have been contacted and offered an opportunity to attend without occasioning any unreasonable delay, significant inconvenience to the identifying witness or disadvantage to law enforcement efforts (cf., People v Coates, 74 NY2d 244; People v Hawkins, supra, at 487).

Inasmuch as respondent has not argued before our court that the waiting room identification procedure was unduly suggestive, we do not consider whether the procedure could properly be deemed "confirmatory” in nature and therefore not subject to suppression on grounds of suggestiveness (see, People v Gissendanner, 48 NY2d 543, 551-553; cf., People v Wharton, 74 NY2d 921).

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

Order affirmed, without costs, in a memorandum.


text:
    Hosan Binyard, Appellant, v City of New York et al., Respondents.
    Submitted January 29, 1990;
    decided March 27, 1990
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of the Arbitration between Rand Condell, as President of the New York State Public Employees Federation, AFL-CIO, et al., Appellants, and Albert Shanker, as President of the American Federation of Teachers, AFL-CIO, et al., Respondents. (Proceeding No. 1.) (And Another Proceeding.)
    Submitted January 22, 1990;
    decided March 27, 1990
   Motion, insofar as it seeks leave to appeal from the December 1, 1989 Appellate Division order, dismissed upon the ground that that order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Marie A. Condro et al., Appellants, v Vibha A. Jhaveri et al., Respondents.
    Submitted February 5, 1990;
    decided March 27, 1990
   Motion for leave to appeal dismissed and cross motion to dismiss the appeal taken as of right granted and the appeal dismissed, each upon the ground that the order of the Appellate Division does not finally determine the action within the meaning of the Constitution (see, Paglia v Agrawal, 69 NY2d 946). Four hundred dollars costs and $100 costs of motion are awarded to respondent Lorenzo M. Netti.


text:
    David S. Hall, Appellant, v United Parcel Service of America, Inc., et al., Respondents. (And Another Title.)
    (Appeal No. 1.) (Appeal No. 2.)
    Submitted March 5, 1990;
    decided March 27, 1990
   Motion to dismiss appeal denied.


text:
    The People of the State of New York, Respondent, v Rojelio Ortiz, Appellant.
    Submitted February 20, 1990;
    decided March 27, 1990
   Motion, pursuant to CPL 460.60 (3), for an extension of the stay granted and the stay continued pending the determination of the appeal.


text:
    In the Matter of Marshall Rattner et al., Respondents, v Planning Commission of the Village of Pleasantville et al., Appellants. (Matter No. 1.) Village Board of the Village of Pleasantville et al., Appellants, v Planning Commission of the Village of Pleasantville et al., Appellants, and Marshall Rattner et al., Respondents. (Matter No. 2.)
    Submitted February 5, 1990;
    decided March 27, 1990
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution, and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York ex rel. Ralph Valvano, Appellant, v District Attorney, Queens County, Respondent.
    Submitted February 13, 1990;
    decided March 27, 1990
   Motion for leave to appeal from the September 13, 1989 order of the Appellate Division 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 from the May 12, 1989 order of the Appellate Division denied.