author: Wachtler, J.

text:
    The People of the State of New York, Respondent, v John Lanahan, Appellant.
    Argued October 15, 1981;
    decided November 24, 1981
    APPEARANCES OF COUNSEL

      E. Stewart Jones, Jr., for appellant.

      Sol Greenberg, District Attorney (llene R. Bergman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s plea vacated, his statement suppressed, and the case remitted to Albany County Court for further proceedings on the indictment.

In the face of the finding by both courts below that defendant’s statement was spontaneous, we conclude as a matter of law that it was not spontaneous as that concept is recognized for purposes of delineating an exception to the rule that a defendant is entitled to suppression of inculpatory statements made by him in the absence of his attorney. The police arrested defendant at his home pursuant to an arrest warrant and gave him his constitutional preinterrogation warnings. At the time of his arrest, according to the police testimony, defendant stated that he wanted to know what robbery he was charged with and was told that he would be given an explanation when they reached the police barracks. After arriving at the barracks, defendant was again given his preinterrogation warnings, and Investigator Connelly stated to him:

“I am going to tell you what you are charged with. You are charged with the robbery of the Gasland gas station on Route 7 in the Town of Colonie. You did the job with a kid by the name of Lawless. You used Lawless’s car. You parked the car behind the bank, which is about a block behind the Gasland gas station, walked through the fields, stood behind the wooden fence. When the girl came out with the two moneybags, both of you stepped out from behind the fence. You told her to throw the money over and she threw you the money.

“Then you asked — one of you asked her for the car keys, told her not to do anything stupid, got in behind the fence again, ran back to the car and drove to your house and split the money up.

“I said, that is the robbery that you are charged with.” Whereupon, defendant responded, “I did it.”

In the circumstances in which it was made, this inculpatory statement was not “made without apparent external cause, i.e., self-generating” (People v Stoesser, 53 NY2d 648, 650). As we wrote in that case: “It is not sufficient that the statements were found to have been voluntary and not in response to express questioning by the police. To entitle these statements to receipt in evidence it must at least be shown that they were in no way the product of an ‘interrogation environment’, the result of ‘express questioning or its functional equivalent’ (cf. Rhode Island v Innis, 446 US 291, 300-301). [The test is whether] defendant spoke with genuine spontaneity ‘and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed’ (People v Maerling, 46 NY2d 289, 302-303). (Cf. People v Lucas, 53 NY2d 678.)”

Our holding in People v Lynes (49 NY2d 286) illustrates the delineating contrast. In Lynes the officer to whom the defendant made the statement (there also found by both lower courts to have been spontaneous, a finding which we did not disturb) had no knowledge of or connection with the charge concerning which a warrant had been issued against the defendant. To the defendant’s question as to what the warrant was all about, the officer responded, “You should know, they are looking for you”, whereupon the defendant made the incriminating statement sought to be suppressed. The listening officer had not given the defendant his constitutional preinterrogation warnings. He had not conveyed any suggestion that he had foreknowledge of the details of the charge. Nor had he otherwise said or done anything from which the defendant might reasonably have inferred that the officer had any interest in eliciting a statement from him.

The People argue here that Inspector Connelly’s explanation should be viewed as only a somewhat delayed answer to defendant’s question. Such an analysis cannot be accepted. Connelly’s statement was significantly removed from defendant’s question in both time and space. Coming on the heels of the classic prelude to police interrogation, Connelly’s recital went far beyond mere identification of the robbery with which defendant was charged to describe the criminal transaction with complete particularity as to both the participants and the manner of its achievement. Such a narrative in the circumstances can only be perceived as intended, more effectively perhaps than any forthright interrogation, to convey the message to defendant that, inasmuch as the police were aware in such detail of exactly how the robbery was accomplished, anything but an open admission would be futile and thereby to elicit a confession from him; the question asked by defendant was fully answered in the first two sentences. Defendant’s unvarnished response precisely matched what must have been the hoped-for reaction to this psychological pressure.

Inasmuch as the police had previously been aware that defendant was represented by counsel, his confession, not having been blurted out in genuine spontaneity, should have been suppressed.

Wachtler, J.

(dissenting). I cannot agree with the majority that the defendant’s admission of guilt should be suppressed.

A defendant in custody who immediately admits his guilt when informed of the charge against him cannot be said to have been interrogated. When the police have also provided details of the underlying criminal act, an affirmed finding that the defendant’s admission was spontaneous should be upheld, particularly when the defendant himself requested the additional information. To hold as a matter of law, as the majority now does, that such a statement is not spontaneous, because not literally “self-generating”, unrealistically narrows to the point of extinction, the exception for spontaneous confessions which in the past has been one of the few consistently approved concepts in this otherwise volatile area of the law. It also ignores well-settled principles holding this type of question to be essentially a factual one beyond our review. Indeed it effectively overrules last year’s decision in People v Lynes (49 NY2d 286, 295), in which we expressly rejected the notion that “any police remark, no matter how innocuous, would constitute an interrogation, as long as it was followed by an inculpatory statement.”

The incident at issue occurred on February 9,1978 when the defendant was arrested for robbery by Inspector Connelly of the State Bureau of Criminal Investigation. At the police barracks the defendant, unassisted by counsel, allegedly admitted his guilt to the charge. Prior to trial he moved to suppress this admission on the ground, among others, that it was obtained in violation of his right to the assistance of counsel guaranteed by the State Constitution.

At a hearing on the motion Inspector Connelly testified that on February 9,1978 he applied to the Town Justice for a warrant authorizing defendant’s arrest on a first degree robbery charge. After obtaining the warrant Connelly went to the defendant’s house where he arrested the defendant at approximately 7:30 that evening. The officer testified that he then advised the defendant of his rights in accordance with Miranda v Arizona (384 US 436) after which the defendant stated “He wanted to know *** what robbery he was charged with and I told him I would explain that to him when he got to the barracks.” In the police car the defendant asked the officer “numerous times” what he was “being charged with” and accused the police of making a mistake. However, the officer told him to “sit back. When I get to the barracks I will tell you what robbery.”

When they arrived at the barracks the officer removed the defendant’s handcuffs, again advised him of his rights and said “now, I am going to tell you what you are charged with.”

“You are charged with the robbery of the Gasland gas station on Route 7 in the Town of Colonie. You did the job with a kid by the name of Lawless. You used Lawless’s car. You parked the car behind the bank, which is about a block behind the Gasland gas station, walked through the fields, stood behind the wooden fence. When the girl came out with the two moneybags, both of you stepped out from behind the fence. You told her to throw the money over and she threw you the money.

“Then you asked — one of you asked her for the car keys, told her not to do anything stupid, got in behind the fence again, ran back to the car and drove to your house and split the money up.

“I said, that is the robbery that you are charged with.” At that point the defendant responded, “I did it.” He also agreed to make a written statement. That, however, was not done because another officer informed Connelly that an attorney representing the defendant had just called the barracks and directed that no statement be taken. Connelly confirmed this in a brief discussion with the attorney.

At the hearing the defendant also sought to show that he had retained the attorney prior to his arrest and that the police knew or should have been aware of this. The trial court found it unnecessary to reach that question because it found the defendant’s admission of guilt was spontaneous. Accordingly, the motion to suppress was denied.

The defendant subsequently pleaded guilty to robbery in the third degree. The Appellate Division affirmed holding that “the record amply supports the conclusion of the trial court that the admission was made ‘spontaneously’”.

Initially I note that there is no doubt that the defendant’s right to counsel had indelibly attached at the time he admitted his guilt. Although the trial court left unresolved the question as to whether an attorney had appeared on the defendant’s behalf before he made the statement, it is undisputed and has been found as a fact that an arrest warrant had been issued and, indeed, the defendant was arrested on the warrant. After the hearing had been concluded in this case, our court decided the case of People v Samuels (49 NY2d 218). In the Samuels case we held that the issuance of such a warrant marks the commencement of the criminal action against the defendant, and at that point his right to counsel indelibly attaches under the State Constitution. It is also settled that this holding applies retroactively to cases still in the appellate process (People v Pepper, 53 NY2d 213; see, also, People v Lucas, 53 NY2d 678; People v Cullen, 50 NY2d 168).

Once the defendant’s right to counsel indelibly attached, he could not be questioned or effectively waive his rights without the attorney being present (People v Samuels, 49 NY2d 218, supra). The rule not only prohibits the police from expressly questioning the defendant but also, more broadly, from engaging in conduct which is likely to evoke a response from him (see, e.g., People v Garafolo, 46 NY2d 592, 603; People v Howard, 47 NY2d 988; People v Grimaldi, 52 NY2d 611; cf. People v Lynes, 49 NY2d 286, 295, supra; Rhode Is. v Innis, 446 US 291, 300-301). It does not, however, prohibit him from spontaneously admitting his guilt (People v Lynes, supra; People v Kaye, 25 NY2d 139, 145). On this point the prosecutor has the burden of proof (People v Stoesser, 53 NY2d 648) and the exception for spontaneous statements is concededly a narrow one (People v Grimaldi, supra).

Even when the defendant has initiated an exchange with the police, statements made during the course of police questioning or an informal “long discussion” cannot be said to be spontaneous (see, e.g., People v Townes, 41 NY2d 97; People v Roberson, 41 NY2d 106; People v Tompkins, 45 NY2d 748; People v Maerling, 46 NY2d 289, 301-302; People v Cunningham, 49 NY2d 203, 210, n 2; People v Bell 50 NY2d 869; People v Lucas, 53 NY2d 678). On the other hand, the police are not obligated to “take affirmative steps, by gag or otherwise, to prevent a talkative person in custody from making an incriminating statement” (People v Kaye, supra, p 145). Nor have we ever gone so far as to hold that the police could not inform the defendant of the charge against him or respond to the defendant’s request for details identifying the incident which forms the basis for the charge.

Realistically there is always the risk that a defendant suddenly arrested and informed of a pending charge may be impelled to make some statement potentially damaging to his case. Nevertheless the defendant is entitled to know why he has been arrested (CPL 120.80, subd 2). Indeed to require or even permit the police to deny the defendant such basic information could itself exert a form of psychological pressure, thus perversely contributing to rather than diminishing the coercive atmosphere inherent in the custodial setting. A defendant confronting the isolation of confinement should not also have to face a wall of silence. Notably the Supreme Court which has also broadly defined interrogation for the purposes of the Miranda rule, has nevertheless excluded from the definition words or conduct normally incident to arrest or custody.

The defendant apparently does not dispute these principles. His complaint is that Investigator Connelly did not “simply tell” him what he was charged with; he “exhaustively detailed the investigation information”. This he claims was meant to impress the defendant with the strength of the case against him so as to overwhelm, intimidate or provoke him into making some response.

Although the defendant has persuaded the court to hold as a matter of law that the officer provided too much information he does not suggest what would generally be the proper amount of identifying details or what if any additional details may be appropriately furnished by the police when, as here, the defendant requests more specific information concerning the charge. In my view any question as to the amount of information the police should provide in advising the defendant of the charge against him cannot be reduced to a formula. And, although it is possible that this usually ministerial duty may, in some cases, be used as a means for encouraging the defendant to make damaging admissions, a determination that this has occurred must necessarily depend on the facts of the particular case.

In this case it is important to emphasize that the defendant himself requested additional information specifying the robbery charged. In the officer’s initial encounter with the defendant it appears that he did indeed “simply tell” the defendant that he was being arrested on a warrant relating to a robbery charge. It was only in response to the defendant’s persistent requests for additional information specifically identifying the robbery, coupled with complaints of an erroneous arrest, that the officer revealed the nature of the crime in greater detail. Thus, this is not a case where a police officer had gratuitously disclosed the strength of his case to a defendant who had previously chosen to assert his right to remain silent or consult with counsel (cf. People v Grant, 45 NY2d 366, 376). Nor did the officer furnish provocative information concerning potential witnesses by, for instance, telling the defendant that an accomplice had turned against him. Actually the officer provided only a relatively simple narrative of the crime in conclusory terms not much different from the written statements typically included in felony complaints, and other lower criminal court accusatory instruments, which by statute may be attached to the warrant (CPL 120.40) and furnished to the defendant in custody (CPL 120.80, subd 2). Neither did the officer engage the defendant in questioning or discussion. As noted, he merely responded to the defendant’s inquiry by providing a brief narrative of the crime charged, after which the defendant immediately admitted his guilt.

On essential points this case is indistinguishable from our decision in People v Lynes (49 NY2d 286, supra). In that case the defendant also requested information about a warrant and made an incriminating comment when the police officer responded to "the inquiry. Although the majority now finds that case distinguishable because the officer there had no knowledge or connection with the charge, had not conveyed a contrary impression to the defendant, and had not advised the defendant of his rights, those were not the factors which were considered controlling when the case was decided. On the contrary the opinion simply emphasized that the “defendant himself initiated the conversation”, that there was no extended discussion but only a “brief exchange”, and that by responding to the defendant’s inquiry as he did, the officer may “well have intended to discourage further colloquy” (People v Lynes, supra, pp 294, 295). Focusing on those factors, also present in this case, we held in Lynes that the courts below could properly find that the defendant’s statement was spontaneous.

In sum, there was sufficient basis for the lower courts to conclude that when the defendant immediately admitted his guilt after the crime had been identified with greater specificity, as he requested, he did so spontaneously and not as the result of any obvious or subtle “inducement, provocation, encouragement or acquiescence” by the police (People v Maerling, 46 NY2d 289, 302-303, supra). Of course different fact finders might have emphasized other facts and drawn contrary inferences. But that merely emphasizes the factual nature of the determination which, finding support in the evidence, should not be set aside by this court (People v Lynes, supra, p 294).

Thus I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Jones, Fuchsberg and Meyer concur in memorandum; Judge Wachtler dissents and votes to affirm in an opinion in which Judges Jasen and Gabrielli concur.

Order reversed, etc.

       It is not disputed that prior to defendant’s arrest his attorney had informed the police of his representation of defendant and had requested to be present at every stage of the proceedings against defendant.

      . In the brief memorandum in the Stoesser case we observed that there was no proof that defendant’s statement was spontaneous in the literal sense of being “self-generated”. But the actual holding was that the People had failed to meet their burden of providing specific facts, as opposed to conclusions, showing that the circumstances surrounding the confession would support a finding that it was spontaneous. And, as noted earlier, when we were specifically confronted with the question in People v Lynes, (49 NY2d 286, supra) we held that a statement prompted by a police officer’s remark could nevertheless be held to be spontaneous, although obviously it could not be said to be “self-generated”.

      . In Rhode Is. v Innis (446 US 291, supra) the court stated at page 301, “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response” (emphasis added).

      . Although noted in the recitation of the facts in that case, no particular legal significance was attached to the police officer’s apparent lack of prior connection with the investigation and ignorance of the case. Certainly the officer’s failure to advise the defendant of his rights, which was the basis for the defendant’s motion to suppress, was not also considered a factor in the officer’s favor providing a basis for denying the motion to suppress.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Hector Gonzalez, Appellant.
    Argued October 22, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Howard, B. Comet and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Howard Birnbach and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the contention of defendant that evidence subsequently admitted on trial cannot be used to support the determination of the suppression court denying his motion to suppress his oral confession; the propriety of the denial must be judged on the evidence before the suppression court. We conclude, however, that there was sufficient evidence before the suppression court to sustain the factual determination that defendant was duly given his constitutional preinterrogation warnings. Officer Collins testified that he had read defendant his “rights” from a blank police department arrest report form, a copy of which he did not have with him at the suppression hearing. On cross-examination Officer Collins stated that the “rights” to which he was referring were “Miranda warnings”. In the absence of any proof whatsoever that such reading was or might have been deficient in some particular, the suppression court was warranted in drawing the inference that the constitutional preinterrogation warnings were adequately stated.

Defendant contends that testimony by Officer Collins — that the complainant failed to make any identification of defendant when he and she were conducting a surveillance and again when she viewed the first lineup on September 29 — was inadmissible hearsay and should not have been admitted in evidence. No timely protest sufficient to preserve the issue for appellate review was registered (cf. People v Liccione, 50 NY2d 850). As to the nonidentification at the surveillance, the only objection made, viewed most favorably to defendant, was that it was irrelevant; as to the failure of the complainant to make an identification at the first lineup, no objection was interposed.

We have examined defendant’s other contentions and find them to be without merit.

Meyer, J.

(dissenting). Because I experience with respect to the majority’s conclusion that the admissibility of nonidentification testimony was not preserved the same “vicarious feeling of strain” that Harris Steinberg experienced with respect to this court’s holding in People v Cummins (209 NY 283), I respectfully dissent.

In this rape and robbery case the victim testified that she knew her attackers from two or three previous occasions on which they had been to her apartment. She stated that her assailants had then come to talk with her about possible employment opportunities for her, including a position at the moving and storage company at which they were employed. On one of these occasions she was allegedly given a moving company business card.

In the course of investigating the incident, the police took the victim to the moving company in order to have her identify her attackers. A police officer testified on direct examination that on two occasions the victim viewed company employees at work, not including defendant or his codefendant, and identified no one. Similarly, there was evidence at trial, from both the victim and a police officer on direct examination, that the victim failed to identify anyone in a “blank lineup” — a lineup in which neither the defendant nor his codefendant were included.

Defendant objected to the admission of the negative identification testimony concerning the victim’s observations at the moving company as well as the blank lineup. As to the latter, the following colloquy occurred when the People offered into evidence a photograph of that lineup:

“Mr. Noble [defense counsel]: I would just object to the first line-up being introduced at this time. I think it’s irrelevant to the People’s case.

“Mr. Schepis [prosecutor]: May I be heard?

“The Court: Let me understand, you’re saying it’s irrelevant in the People’s case to show that a witness —

“Mrs. Neale [counsel for codefendant]: Did not —

“The Court: Did not identify anybody and then subsequently did? How is that irrelevant?

“Mrs. Neale: But, none of the same parties — I take it back. Neither of the defendants were in the first line-up. This is a third party, entirely — who is in this line-up and not relevant to the People’s case. The fact that she may have seen fifteen line-ups and not picked out anybody or don’t — through pictures or photographs, is not relevant to the issue of identification.

“The Court: All right.

“Mr. Schepis: Yes. Judge, I think it’s most relevant, most germane that this witness was shown a planned line-up in which the courts have found it’s an appropriate procedure. This is a situation where the witness — witnesses’ identification is shown to be reliable by the fact that she saw a line-up, which didn’t contain these people and didn’t pick anybody out. It’s germane for that issue.

“The Court: Objection overruled.”

Later in the trial the following occurred in the course of the direct examination of the police officer who accompanied the victim to the moving company:

“Q. All right, now, after — so — was there any identification of anyone made at the scene of the New York Moving Company by [the complainant] Mrs. Colon?

“A. No.

“Mr. Noble: Again, Your Honor, I object to the testimony about a prior identification proceeding.

“Mr. Schepis: There is no identification.

“The Court: He said there’s no identification. He’s clarifying the issue. There was no identification.

“Mr. Noble: Your Honor, my objection stands.

“The Court: All right.

“Q. And these defendants were not there, is that correct?

“A. Correct.”

The majority now refuses to consider the propriety of admitting the evidence because defendant’s attorney did not say the magic word “hearsay”. Yet the evidence offered was inadmissible because it was both nonprobative and hearsay. It could become probative and admissible, if at all, only when the defense offered evidence intended to show, for example, that the victim was so eager to avenge the crimes committed upon her that she accused the first persons brought before her for viewing. At that point the moving company visit and blank lineup testimony would become probative and relevant, not because such testimony was any the less hearsay, but because it was hearsay which was admissible because it had become relevant to show consistency on the part of the victim in that she had not previously acted inconsistently as the defense claimed.

The victim’s inability to identify anyone as her assailant from a group which did not include defendant was of even less probative value on the correctness of her ultimate identification of him than was the evidence that defendant had type “A” blood and that semen found in and on the rape victim’s body was from a man with type “A” blood, which in People v Robinson (27 NY2d 864) and People v Macedonio (42 NY2d 944) we held not probative because of the large proportion of the population having type “A” blood. It is less probative because there are more people in the population who are not this defendant than there are who have “A” type blood. No matter how many people the victim looked at who were not defendant, her failure to identify defendant as one of them would be irrelevant to her in-court identification of him. Testimony of nonidentification is admissible, if at all, only on rebuttal and even then is not admitted to prove or disprove any fact involved in the issues on trial, but solely to support the credibility of the witness (People v Jung Hing, 212 NY 393, 402). Yet rule 401 of the Federal Rules of Evidence and rule 401 of the Proposed New York Code of Evidence tell us that “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” (emphasis added), and rule 1(2) of the Uniform Rules of Evidence defines “relevant evidence” as “evidence having any tendency in reason to prove any material fact” (see, also, Richardson, Evidence [10th ed — Prince], § 4; Fisch, New York Evidence, §3). At the time it was offered the evidence was not relevant because not probative of any fact in issue, and as bolstering evidence “strongly calculated to influence a jury of laymen” (People v Jung Hing, supra, at p 401) was clearly prejudicial.

It is, of course, true that defendant’s attorney could have used other and additional words, including “hearsay” in making his objection, but it is also clear that no Trial Judge with the least experience in trying criminal cases would not understand the basis of the objection being made to rest upon the bolstering purpose of the evidence. That it may have been objectionable at the time offered both because it was not relevant and because it was hearsay does not mean that defendant’s attorney in order to preserve any objection had to refer to both grounds. The demands of trial practice are great enough as it is without applying the rule “strictissimi juris” to every objection made. Particularly is this so when, in the First and Second Departments at least, the making of an objection is governed by Appellate Division rule (22 NYCRR 604.1 [d] [4], 700.4 [d]) reading:

“No attorney shall argue in support of or against an objection without permission from the court; nor shall any attorney argue with respect to a ruling of the court on an objection without such permission.

“However, an attorney may make a concise statement of the particular grounds for an objection or exception, not otherwise apparent, where it is necessary to do so in order to call the court’s attention thereto, or to preserve an issue for appellate review” (emphasis supplied).

Fairness to the People or the court did not require that objection to the evidence in question be phrased differently than it was, for it was at least “otherwise apparent” what was intended. Fairness to the defendant requires that, rather than turn aside his contention on the basis of the hairsplitting distinction which the majority makes, we hold it sufficiently preserved and, since it was both improper and prejudicial bolstering, that we reverse and remand for a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Meyer dissents and votes to reverse in an opinion in which Judge Fuchsberg concurs.

Order affirmed.

       Contrary to the inference which may be drawn from the dissent, appellant does not now contend that evidence of either of these occasions of nonidentification should have been excluded on the ground that it was irrelevant, the ground expressly identified in counsel’s colloquies with the court. Quite the opposite. In addition to asserting that it should have been excluded as “inadmissible hearsay” (as to which no protest was registered), he now contends that its relevance and probative worth were such that it should have been excluded as impermissible “bolstering evidence of a prior identification” (again a ground which was not advanced in the trial court).

      . (Counsel on Appeal [Charpentier ed], p 19.)

      . Max Steuer, having sought to put on record the ground for his objection, was told by the Trial Judge that “It is not necessary to state the grounds of the objection. You stated your objection and I overruled it.” Our holding was that the issue was not preserved because “The learned trial judge inadvertently erred in this expression of opinion” (209 NY, at p 298).

      . The conclusion that negative identification testimony is inadmissible on the People’s direct case because irrelevant and immaterial to the guilt or innocence of defendant is apparently shared by the Legislature, for it is not included within CPL 60.25 and 60.30, which authorize use of prior identifications as evidence in chief, nor in the code provisions (CPL 710.20, subd 5; 710.30, subd 1) requiring notice to defendant concerning, and establishing procedures for the suppression of, identification testimony to be offered against defendant.


text:
    Christopher Leonard, Appellant, v Thomas Ickovic et al., Respondents.
    Submitted October 23, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Michael F. Mullen and Leonard Ackerman for appellant.

      Robert B. Armstrong and Peter Sullivan for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (79 AD2d 603). The determination of the trial court that there was no joint venture, having been affirmed at the Appellate Division, is now beyond the scope of our review.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Jack Behlin, Appellant.
    Decided November 24, 1981
    APPEARANCES OF COUNSEL
    A. Irene Elliott for appellant.

      Eugene Gold, District Attorney (Norman S. Heller of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, appeal dismissed on the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90, subd 2, par [a]).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Harari Restaurant Corp., Respondent, v Edward J. McLaughlin et al., Constituting the State Liquor Authority, Appellants.
    Decided November 24, 1981

      APPEARANCES OF COUNSEL

      Robert Conciatori and Warren B. Pesetsky for appellant.

      Jacob A. Salzman for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the determination of the State Liquor Authority reinstated. It cannot be said that the penalty imposed was “‘so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v William Davis, Appellant.
    Argued October 23, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Adrian Spratt and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Billie Manning and Alan D. Marrus of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a hearing on defendant’s motion to suppress his inculpatory statements, the trial court found that proper Miranda warnings were given to defendant while he was in custody, that he understood these rights, that he made no request for an attorney thereafter, that no threats, coercion, pressure or tricks of any nature occurred, that defendant was questioned two or three minutes after the Miranda warnings were given, and that defendant had been arrested on approximately 11 prior occasions. In light of the Appellate Division’s affirmance of these factual determinations we cannot say, as a matter of law, that defendant failed to exercise a knowing and intelligent, albeit implicit, waiver of his Miranda rights to remain silent and to have counsel present during custodial interrogation. No express waiver of these rights was required (North Carolina v Butler, 441 US 369, 373).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Augustus Qualls, Appellant.
    Argued November 18, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Andrew C. Fine and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Howard Birnbach and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s objection at trial was solely on the ground that the evidence constituted improper bolstering. That was insufficient to preserve for our review the contentions now advanced that the evidence constituted inadmissible hearsay and that its introduction violated the defendant’s constitutional right of confrontation (see People v Gonzalez, 55 NY2d 720, decided herewith). The other issues were either not preserved or are found to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of John Stanziale, Appellant, v Executive Department, Office of General Services, et al., Respondents.
    Submitted October 21, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Henry Stanziale for appellant.

      Robert Abrams, Attorney-General (George D. Zuckerman and George C. Mantzoros of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

There is no dispute but that petitioner was a nontenured employee of the Office of General Services at the time of his termination. Because of his nontenured status, in the absence of petitioner’s demonstration that the termination was for constitutionally impermissible reasons or prohibited by statute or policies established by decisional law, OGS was free to effect the termination without reasons and without a hearing (Matter of Holbrook v State Ins. Fund, 54 NY2d 892; James v Board of Educ., 37 NY2d 891, 892). Our review of the record here reveals that such proscriptions were not violated.

Moreover, even if the reason OGS nevertheless elected to give for the termination in this case could be said to have been stigmatizing (see, generally, Board of Regents v Roth, 408 US 564), any hearing to which the petitioner might be entitled under such circumstances was accorded him.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Arthur Lawrence, Appellant, v Police Department of the City of Syracuse et al., Respondents.
    Decided November 24, 1981

      APPEARANCES OF COUNSEL

      Richard D. Priest for appellant.

      David M. Garber, Corporation Counsel (James Gelormini of counsel), for respondents.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (81 AD2d 1006).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Wallbar Realty Co., Appellant, v Conciliation and Appeals Board of the City of New York, Respondent.
    Decided November 24, 1981
    APPEARANCES OF COUNSEL

      Gary M. Rosenberg for appellant.

      Ellis S. Franke and William E. Rosen for respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The determination of respondent Conciliation and Appeals Board of the City of New York, fixing the “fair market rent” pursuant to section YY51-6.0.2 (subd b, par 1) of the Administrative Code of the City of New York by averaging the guidelines of the Rent Guidelines Board with rents generally prevailing in the same area for substantially similar housing accommodations, is not arbitrary, capricious or irrational as a matter of law.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Emery Air Freight Corporation, Appellant, v Harry S. Tishelman, as Finance Commissioner of the City of New York, et al., Respondents.
    Argued October 19, 1981;
    decided November 24, 1981

      APPEARANCES OF COUNSEL

      Jon B. Levison and Myron Beldock for appellant.

      Allen G. Schwartz, Corporation Counsel (Arnold Fox and Gale Zareko of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, Emery Air Freight Corp., challenges the New York City Commercial Rent Tax deficiency assessed against it by respondent City of New York Finance Administration for the period June 1, 1969 to May 31, 1972. Primarily, petitioner challenges as arbitrary, unreasonable and otherwise unlawful the determination that it was not entitled to a rent deduction for “premises used for air transportation purposes” (Administrative Code of City of New York, § L46-4.0).

The term “premises used for air transportation purposes” is defined as “[t]he portion of any premises, located within an airport or within an air transportation terminal shared by more than one air line, of any person actually operating an air line as a common carrier, used by such person for normal or necessary air transportation purposes” (Administrative Code, §L46-1.0, subd 9). There is no dispute that petitioner did not own or actually operate aircraft during the period for which the deficiency was assessed. Indeed, under Civil Aeronautics Board regulations, petitioner was not permitted to do so. Petitioner did offer an air shipment service to the public, delivering cargo to and recovering it from the airlines. Based upon the evidence adduced at the hearing, respondent rationally could conclude that petitioner was not “actually operating an air line as a common carrier” during the audit period. And, in light of the definition of premises entitled to a rent deduction, respondent’s determination cannot be termed unreasonable.

We have examined petitioner’s remaining contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs, in a memorandum.


text:
    Paul J. Amrod, Appellant, v Briarwood Properties, Inc., Defendant, and Sunnycroft Ponderosa, Inc., Respondent.
    Argued October 23, 1981;
    decided November 24, 1981
   Appeal dismissed, without costs, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination at the Appellate Division (see Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599).


text:
    Aetna Business Credit, Inc., Respondent, v J. M. Coppola Corp. et al., Appellants.
    Submitted November 9, 1981;
    decided November 24, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen arid Karger, Powers of the New York Court of Appeals, § 38, pp 155-157).


text:
    In the Matter of Aurora Corporation of Illinois, Appellant, v James H. Tully, Jr., et al., Constituting the State Tax Commission, Respondents.
    Submitted November 9, 1981;
    decided November 24, 1981
   Motion to vacate the Court of Appeals order of October 20, 1981 transferring the appeal herein to the Appellate Division denied. [See 54 NY2d 931.]


text:
    Gerber’s Fast Food Service, Ltd., et al., Appellants-Respondents, et al., Plaintiff, v S & E Realty Co., Respondent-Appellant.
    Submitted November 9, 1981;
    decided November 24, 1981
   Motion for leave to appeal by plaintiff Broadview Capital Corp. denied. Motion to dismiss appeal taken as of right by plaintiff Gerber’s Fast Food Service, Ltd., denied. Motion for leave to appeal by defendant S & E Realty Co. denied.


text:
    Esther McLaughlin et al., Respondents, v Orange and Rockland Utilities, Inc., et al., Appellants.
    Decided November 24, 1981
   Appeal taken by Orange and Rockland Utilities, Inc., dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Appeal taken by Lexow and Jenkins, P. C., and Lawrence W. Thomas dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Wayne T. Nelson, Appellant.
    Decided November 24, 1981
   Appeal dismissed by the Court of Appeals sua sponte. Inasmuch as the certificate granting permission to appeal was issued by an Appellate Division Justice pursuant to an application under CPL 460.20 (subd 2, par [a], cl [ii]) during the pendency of a prior application filed in this court pursuant to CPL 460.20 (subd 2, par [a], cl [ii]), which application has not yet been determined, there was no jurisdiction in the Justice of the Appellate Division to entertain the CPL 460.20 application (see People v McCarthy, 250 NY 358). In view of this sua sponte disposition, the court disregards defendant’s request to withdraw his initial CPL 460.20 application. Said request is marked “withdrawn”.


text:
    Newin Corporation et al., Appellants, v Hartford Accident and Indemnity Company et al., Respondents.
    Submitted October 5, 1981;
    decided November 24, 1981
   Motion for leave to appeal pursuant to CPLR 5602 (subd [a], par 1, cl [ii]) from the final determination of Supreme Court dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the motion does not lie since it would be necessary to review the determination of Supreme Court, contrary to the limitations provided in CPLR 5501 (subd [b]), to dispose of the issues raised. This disposition is without prejudice to any right of movants on a later appeal or motion for leave to appeal pursuant to CPLR 5601 or 5602.


text:
    Pacer Realty Associates, Appellant, v Laurie Lasky et al., Respondents.
    Submitted November 2, 1981;
    decided November 24, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]).


text:
    In the Matter of Public Fuel Service, Inc., et al., Appellants, v City of New York, Respondent. Gassman Coal & Coke Co., Inc., Intervenor-Respondent.

      Submitted November 9, 1981;
    decided November 24, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198, 200-201).


text:
    Queensbury Union Free School Distrist, Appellant, v Jim Walter Corporation et al., Respondents, et al., Defendants.
    Decided November 24, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


text:
    In the Matter of Stanley Roy Root, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted November 9, 1981;
    decided November 24, 1981
   Motion for reargument of motion for leave to appeal or, in the alternative, for amendment of the Court of Appeals order denying leave to appeal, denied in each respect. Motion for a stay denied. [See 54 NY2d 609.]


text:
    Herbert Roth et al., Respondents, v Herbert J. Michelson et al., Defendants, and Lillian R. Michelson et al., Appellants.
    Submitted November 16, 1981;
    decided November 24, 1981
   Motion to dismiss appeal of Lillian Michelson denied, with leave to renew on reargument of the appeal. Motion to strike the record, except as to pages 1-17, granted. The remaining portion of the record (i.e., pages 1-17), together with the copies of the Appellate Division record now on file with this court, shall be deemed to satisfy the requirements for the filing of a record (22 NYCRR 500.3).


text:
    Raymond Rubin, Respondent, v Isabel Rubin, Appellant.
    Decided November 24, 1981
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]).


text:
    In the Matter of Committee of Interns and Residents et al., Respondents, v New York City Health and Hospitals Corporation et al., Appellants.
    Argued November 20, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Mary McCorry and Stephen J. McGrath of counsel), for appellant.

      Irwin Geller for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 807).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Charles Sundheimer et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v Barbara Blum, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued November 16, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Ronald Jay Litchman, Gerald A. Rosenberg and Robert J. Schechter for appellants.

      Robert Abrams, Attorney-General (Lillian Z. Cohen, Shirley Adelson Siegel and Marion R. Buchbinder of counsel), for respondents.
   OPINION OF THE COURT-

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (79 AD2d 512).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Metropolitan Life Insurance Company, Respondent, v State Tax Commission, Appellant. In the Matter of New York Life Insurance Company, Respondent, v State Tax Commission, Appellant.
    Argued November 17, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Shirley Adelson Siegel of counsel), for appellant.

      Arnold B. Panzer and Laurence Goldfein for Metropolitan Life Insurance Company, respondent.

      Paul J. Harriton and Harry J. Hohn for New York Life Insurance Company, respondent.
   OPINION OF THE COURT

Judgments affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 675).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Dorothy Acosta et al., Appellants, v Donald H. Wollett, as Director of the Office of Employee Relations of the State of New York, et al., Respondents.
    Argued November 17, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Marjorie E. Karowe for appellants.

      Robert Abrams, Attorney-General (John Q. Driscoll and Shirley Adelson Siegel of counsel), for respondents.

      James R. Sandner, Susan Bloom Jones and Alan R. Liebowitz for Public Employees Federation, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The record contains substantial evidence to support the finding that petitioners engaged in an unjustified “concerted stoppage of work or slowdown” in violation of subdivision 1 of section 210 of the Civil Service Law. This is not to say that the record would not have supported a contrary conclusion; but judicial review of these matters is limited. Where on the whole record the hearing officer’s determination is supported by substantial evidence our review is at an end.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs, in a memorandum.


text:
    Bushkin Associates, Inc., Appellant, v United States Filter Corporation, Respondent.
    Argued November 16, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Jerold Oshinsky and Robert P. Reichman for appellant.

      Charles G. Mills and Samuel N. Greenspoon for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Samuel J. Silverman at the Appellate Division (79 AD2d 367).

Concur: Chief Judge Cooke and Judges Jasen, Gabri- - elli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Appellant, v Michael Gotthainer, Respondent.
    Argued November 17, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Patrick Henry, District Attorney (Mark D. Cohen and James J. O’Rourke of counsel), for appellant.

      John Joseph Sutter and Ruth C. Balkin for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (80 AD2d 922).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Daniel H. Overmyer, Appellant, v Ralph A. Todd, Respondent.
    Argued November 18, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Irwin M. Echtman and Bruce W. Hesselbach for appellant.

      Gary P. Naftalis, Arthur B. Kramer and Martin J. Auerbach for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (77 AD2d 919).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Forest Hills Gardens Corporation et al., Respondents, v Samuel R. Kowler et al., Defendants, and City of New York, Appellant.
    Argued November 19, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel CMarvin R. Kwartler and Stephen J. McGrath of counsel), for appellant.

      Richard H. Stokes for Forest Hills Gardens Corporation, respondent.

      Paul J. Goodman for R.I.P.C. Corporation, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (80 AD2d 630).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Thomas Little, Appellant.
    Argued November 16, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Shirley Werner and William E. Hellerstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Objection to the question whether the witness had been previously arrested was properly sustained (Richardson, Evidence [10th ed — Prince], § 506; Fisch, New York Law of Evidence [2d ed], § 458). So far as defense counsel sought to question about a charge adjourned in contemplation of dismissal, he did no more than ask for time to find out what the final disposition of the charge was and never followed up on it. Thus, the issue was not preserved for our consideration.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Joseph Jones, Appellant.
    Argued November 17, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Allen E. Burns and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Cynthia Kean of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The objection to the charge concerning reasonable doubt was not preserved (People v Thomas, 50 NY2d 467), nor are the errors considered by the Appellate Division available for our review (People v Cona, 49 NY2d 26; People v Johnson, 47 NY2d 124; People v Williams, 46 NY2d 1070).

Though the claim of ineffective assistance of counsel can be made for the first time before us (People v Baldi, 54 NY2d 137), a reading of the record, without more, does not bear out the claim that defendant did not have meaningful representation (People v Baldi, supra). Though defense counsel’s summation left something to be desired it made clear that the defense was misidentification. The claimed conflict between the backup officer’s description of defendant and that of the undercover turns out on examination of the record to be a typographical error. Counsel did cross-examine when there was something to cross-examine about. Reviewing the record without the benefit of knowing, as might have been developed had an appropriate after-judgment motion been made, what was in defense counsel’s mind, we cannot conclude that defendant’s counsel was ineffective.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.

       The backup officer’s description included “He wore a beard, necklace around his neck which was pretty tight. He had a close cropped afro, clean shaven.” The undercover description was in part “small afro and he had beads around his neck.” Defendant could not both be clean shaven and wearing a beard. That the word should be “bead” is clear from the context and from the inconsistency in the backup officer’s testimony if the word is read as “beard”.


text:
    Timothy S. Garrett, Individually and as Limited Administrator of the Estate of Nancy J. Garrett, Deceased, Appellant, v Town of Greece, Respondent, et al., Defendants.
    Argued November 20, 1981;
    decided December 15, 1981

      APPEARANCES OF COUNSEL

      Angelo G. Farad and William E. Aiken, Jr., for appellant.

      Charles A. Hall for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (78 AD2d 773).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Albert H. Aleschus, Jr., Appellant.
    Argued November 18, 1981;
    decided December 17, 1981

      APPEARANCES OF COUNSEL

      J. Raymond Fisher for appellant.

      Charles J. Wilcox, District Attorney (Robert T. Law, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

With respect to defendant’s sole contention on appeal, the failure of the trial court to instruct the jury as to the consequences in the event it found two witnesses to be accomplices, no request to charge was made and no exception to the court’s charge was taken. The alleged error therefore was not preserved and is beyond the review of this court.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Santiago Rodriguez, Appellant.
    Argued November 19, 1981;
    decided December 17, 1981

      APPEARANCES OF COUNSEL

      Robert S. Dean and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Stuart L. Sanders, Steven R. Kartagener and Timothy J. McGinn of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (79 AD2d 539) insofar as it determined that defendant’s claim of selective and vindictive prosecution was forfeited by his plea of guilty.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Clyde Stephens, Appellant.
    Argued November 18, 1981;
    decided December 17, 1981

      APPEARANCES OF COUNSEL

      David Schoen, Michael J. Obús and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Denise Parillo and William C. Donnino, of counsel), for respondent.
   OPINION OF THE COURT

Appeal dismissed and case remitted to the Appellate Division, Second Department, with directions to dismiss the appeal taken to that court (see People v De Jesus, 54 NY2d 447).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Judge Fuchsberg dissents and votes to reverse in an opinion.

Fuchsberg, J.

(dissenting). In my view, what I regard as the majority’s all too wooden reading of the procedural statutes loses sight of both the spirit and intent of section 60.09 of the Penal Law. Moreover, such an over literal application of the procedural law to as constitutionally consequential a matter as the one before us now runs counter to the jurisprudential elasticity of which we have found ourselves capable in analogous situations.

I begin with CPL 440.20 which provides the mechanism for setting aside a sentence. It was designed to replace the “former recognized but uncodified — and unappealable — ‘motion for resentence’ ” (Denzer, Practice Commentary to CPL 440.20, McKinney’s Cons Laws of NY, Book 11A, p 260; see People ex rel. Emanuel v McMann, 7 NY2d 342; People v Stokrocki, 20 AD2d 551). And, it would appear to be particularly applicable where there has been a retroactive change in law concerning a sentence issue (see CPL 440.20, subd 2). Most relevant, however, is that an appeal to an intermediate appellate court from an order denying a 440.20 motion is authorized by CPL 450.15 (subd 2) providing permission is granted by a Judge of that court (CPL 460.15).

The point is that, while the statutory language does leave something to be desired, where we felt it warranted in other principled circumstances, we have made free to fill an apparent gap in a statutory scheme to harmonize it with legislative intent (People v Rosenberg, 45 NY2d 251, 260 [concurring opn], and cases cited thereat). All the more should we do so here, where, it would be unnatural, when appellate review of discretion, narrow as it may be, is the norm even in criminal matters (see People v Belge, 41 NY2d 60), for the Legislature not to have assumed that the denial of an application for resentence under section 60.09 of the Penal Law would be without the embrace of section 450.15.

True, appellant, Clyde Stephens, who labeled his pro se motion one under CPL 440.20, did not obtain leave to appeal from the Appellate Division. That court, however, nevertheless determined the appeal on the merits. I therefore would deem its action — in contrast to the Appellate Division’s dismissal in People v De Jesus (54 NY2d 447) — as the functional equivalent of a grant of the necessary permission (but cf. People v McCarthy, 250 NY 358, 362). The apposition of Matter of Santangelo v People (38 NY2d 536), where the Appellate Division lacked power to consider an appeal, whether by permission or otherwise, makes the point all the more emphatic. Accordingly, I reach the merits of the appeal.

So doing, I observe that Stephens entered his plea for selling a controlled substance at a time when the draconian “Rockefeller Drug Laws” still held full sway. In accordance with the inexorable mandate of those statutes, the indeterminate sentence he received ran to life.

After some years, during which Stephens appears to have been a model prisoner and had dealt satisfactorily with his drug problem, he moved for retroactive resentencing as permitted by section 60.09 of the Penal Law, a statute enacted for the very purpose of “undo[ing] the harsh sentencing consequences of the tough 1973 drug laws” (Hechtman, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 60.09). As an adjunct to his pursuit of such relief, being without means, he specifically requested that counsel be assigned to represent him in the proceedings. To this application, made in August, 1979, the People’s response, in the form of an affidavit filed by the Chief of the Narcotic Unit of the Nassau County District Attorney’s office, was to state unconditionally that it had no opposition to the appellant receiving such consideration. There then followed a tragedy of errors and delays in the course of which the court misplaced his papers and, by February of the following year, had adjourned the matter 11 times, when, after Stephens had written to express his exasperation, it finally ordered that he be brought down to Nassau from Attica, where he was serving his sentence, so that he could be present before the court for the purpose of possible resentencing on February 14. In fact, however, the authorities did.not do so until February 22, only for him to learn after he arrived in Nassau, that, in his absence and without any recorded findings of any kind, his motion had been denied on February 14 in an order which took the form of a short notation on a scrap of paper. Counsel had never been assigned to him.

Conceding that the relief he sought was discretionary, the appellant nevertheless asserts that this summary denial not only was inconsistent with the remedial intent of section 60.09, but denied him due process under both the Federal and State Constitutions. He points out that potentially at stake in the proceeding he commenced was at least a conditional liberty interest measurable in years and years of imprisonment. He further argues that, whether the process due him under section 60.09 is to be compared with the full panoply of protections inherent in traditional sentencing and resentencing procedures, or, even if somewhat less stringent safeguards suffice here, the deprivation of right to counsel and the right to be present meant that even minimal fairness did not prevail (see, e.g., Wolff v McDonnell, 418 US 539, 555-556; Morrissey v Brewer, 408 US 471, 480-482).

Believing these contentions are not without merit, it follows that I would reverse and remand the case to the County Court for proceedings on appellant’s motion under section 60.09 of the Penal Law in accordance with constitutional notions of due process.

Appeal dismissed, etc.


text:
    Thomas Zarcone, Appellant, v William M. Perry et al., Respondents, et al., Defendants.
    Argued November 19, 1981;
    decided December 17, 1981

      APPEARANCES OF COUNSEL

      Arnold B. Firestone and Adrienne M. Mirro for appellant.

      Edward J. Hart and Wade T. Dempsey for William M. Perry, respondent.

      Mark J. Hanlon and James M. Maloney for Robert J. Anderson and others, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice James D. Hopkins at the Appellate Division (78 AD2d 70), insofar as the result is based upon the principles of res judicata and collateral estoppel. However, we express no view regarding the applicability of the rule prohibiting double recovery, as we conclude that it is unnecessary to reach that issue.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of John T. O’Hagan, Appellant, v Board of Trustees of the New York City Fire Department Pension Fund, Article 1-B, et al., Respondents.
    Decided December 17, 1981

      APPEARANCES OF COUNSEL

      Michael T. Sullivan for appellant.

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen of counsel), for respondents.

      Murray A. Gordon and Norman E. Teitler for Uniformed Firefighters Association and another, amici curiae.

   OPINION OF THE COURT

On summary consideration, order affirmed, with costs, and the certified question answered in the affirmative. It was proper for the Appellate Division to remand the matter to respondent board of trustees for a fair consideration of petitioner’s application, there being no reason to presume that an unbiased board would not properly consider the merits of the application. In view of this disposition, it is unnecessary to reach the question of whether petitioner’s hearing loss, sustained over a period of time, may be considered an accidental injury within the meaning of section B19-7.84 of the Administrative Code of the City of New York.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Charles R. Hladik et al., Appellants, v Town of Malta et al., Respondents, et al., Defendants.
    Argued November 19, 1981;
    decided December 17, 1981

      APPEARANCES OF COUNSEL

      Arnold M. Gordon for appellants.

      Michael M. Emminger and Francis E. Lehner for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to the extent of denying the motion to dismiss the fifth cause of action set forth in the complaint as against defendant August Roerig, individually.

Except as indicated, we agree with the Appellate Division, and for the reasons stated in the decision of Justice Robert C. Williams at Supreme Court, that the complaint fails to state a cause of action against defendants. As to the fifth cause of action, however, although the individual defendant is referred to as building inspector of the Town of Malta, this appears to be a description of his official title rather than a characterization of the capacity in which he is sued. The fair intendment of the pleading is to state a cause of action (for conspiracy to defraud plaintiffs) against Roerig in his individual capacity, beyond the shelter of sovereign immunity.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs to appellants against respondent Roerig and to respondent Town of Malta against appellants, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    John D. Stockdale, Appellant, v State of New York, Respondent.
    (Claim No. 61997.)
    Decided December 17, 1981

      APPEARANCES OF COUNSEL

      Herman E. Gottfried and Vincent A. De lorio for appellant.

      Robert Abrams, Attorney-General (.Dennis Hurley of counsel), for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the judgment of the Court of Claims reinstated. The findings made by the Court of Claims regarding value were supported by evidence in the record and adequately explained (see Matter of City of New York [A & W Realty Corp.], 1 NY2d 428) and affirmed by the Appellate Division. The value assigned to the remaining buildings Upon the subject property before the partial appropriation and the value thereafter were within the range of the expert testimony and yielded, upon calculation, a total of $10,000 in consequential damages. The Appellate Division thus erred, as a matter of law, in holding that there was no range of evidence on this element of damages.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    Manitou Sand & Gravel Co., Inc., Respondent, v Town of Ogden et al., Appellants.
    Decided December 17, 1981

      APPEARANCES OF COUNSEL

      G. Robert Witmer, Jr., for appellants.

      Donald Spadone for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the matter remitted to the Appellate Division, Fourth Department, for a review of the merits. Petitioner’s 1980 permit application encompassed not only the property it had been excavating under the 1979 permit, but also additional contiguous acreage not contemplated for excavation in 1979. This change in factual circumstances thus renders application of the doctrine of collateral estoppel in the 1980 proceeding inappropriate. To be sure there may be instances where the circumstances are so parallel as to call for the application of the doctrine of collateral estoppel; however, the particular change in factual circumstances involved in this instance renders the application of the doctrine in the 1980 proceeding inappropriate. Special Term found that petitioner would be entitled to relief on the merits even if collateral estoppel had not been applied. Because the Appellate Division affirmed solely on collateral estoppel grounds the matter should be remitted to the Appellate Division for a review of the merits of article 78 application to annul the depth limitation condition imposed by the town board in connection with petitioner’s excavation license.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    In the Matter of Dennis T. et al., Respondents, v Joseph C., Appellant.
    Submitted November 30, 1981;
    decided December 17, 1981
   Motion by respondent-appellant Joseph C. for leave to appeal denied. Cross motion by petitioners Dennis T. et al. for an order requiring Joseph C. to return the infant to the natural mother, construed as a motion to vacate stay granted by the Appellate Division in this proceeding and, as so construed, denied as unnecessary since any stay granted will automatically expire pursuant to CPLR 5519 (subd [e]).


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    James V. Welch, Respondent, v Hertel Development Corporation, Appellant, et al., Defendant.
    Submitted November 9, 1981;
    decided December 17, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 16, pp 68-69).


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    In the Matter of R. Thomas Finnegan, as Town Justice of the Town of Moira, Franklin County.
    Decided December 22, 1981
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable R. Thomas Finnegan not be suspended from his office of Town Justice, Town of Moira, Franklin County, New York.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    Irwin R. Gutelle et al., Respondents, v City of New York, Appellant.
    Argued November 19, 1981;
    decided December 22, 1981

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (.Michael Gage, Leonard Koerner and Carolyn E. Demarest of counsel), for appellant.

      Sheldon N. Zinman for respondents.
   OPINION OF THE COURT

Memorandum.

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

A municipality has a legal duty to construct and maintain its highways in a reasonably safe condition, taking into account such factors as the traffic conditions apprehended, the terrain encountered and fiscal practicality (Tomassi v Town of Union, 46 NY2d 91). Weiss v Fote (7 NY2d 579) limited municipal liability for judgmental error in planning highway design, but recognized a continuing obligation to review such a plan in light of its actual operation. It did not, however, exclude all liability even for initial planning, for there we said that “liability for injury arising out of the operation of a duly executed highway safety plan may * * * be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis” (7 NY2d, at p 589).

That a cause of action against a municipality for negligent highway maintenance may succeed upon sufficient evidence was recently reaffirmed by this court in Lattanzi v State of New York (53 NY2d 1045, affg 74 AD2d 378), where we agreed with the Appellate Division’s finding that there was ample proof in the record to support the conclusion that the State did not properly design and test the guardrail system prior to its installation and that the inferior capabilities of the guardrail were the proximate cause of the claimant’s injuries.

That the existence of the allegedly defectively designed abutments did not cause plaintiff’s vehicle to leave the roadway in the first instance is of no moment. As long as it can be demonstrated that the abutments were a substantial factor in aggravating plaintiff’s injuries, a cause of action may be upheld (see Stuart-Bullock v State of New York, 33 NY2d 418, 421). For these reasons, the complaint states a valid cause of action and plaintiff should be permitted the opportunity to submit evidence demonstrating negligent design and placement of the abutments at the time of installation. The Appellate Division therefore properly reversed Special Term’s grant of defendant’s motion for summary judgment dismissing the complaint for failure to state a cause of action.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

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


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    Patricia M. Redmond, an Infant, by Her Father and Natural Guardian, Lawrence G. Redmond, et al., Appellants, v City of New York, Defendant and Third-Party Plaintiff-Respondent. Consolidated Edison Company of New York, Inc., Third-Party Defendant-Respondent.
    Decided December 22, 1981

      APPEARANCES OF COUNSEL

      Louis L. Friedman for appellants.

      Allen G. Schwartz, Corporation Counsel (Alexander J. Wulwick of counsel), for defendant and third-party plaintiff-respondent.

      Ernest J. Williams and Sheila Solomon Rosenrauch for third-party defendant-respondent.
   OPINION OF THE COURT

On summary consideration, order affirmed, with costs. The only issue reviewable in this court concerns the alleged error in the court’s refusal to charge that the plaintiff could not be contributorily negligent because of her age. On this point, however, we agree with the Appellate Division that the question of plaintiff’s contributory negligence was properly submitted to the jury as a question of fact (Camardo v New York State Rys., 247 NY 111), and that this alleged error in the charge therefore provided no basis for setting aside the verdict.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    James F. O’Rorke, Jr., et al., Respondents, v Edmund S. Carpenter, Appellant.
    Decided December 22, 1981

      APPEARANCES OF COUNSEL

      William M. Pinzler for appellant.

      Stanley A. Teitler for respondents.
   OPINION of the court

On summary consideration, order affirmed, with costs, and the question certified answered in the affirmative. Plaintiffs may defeat defendant’s claim of qualified privilege by demonstrating that the alleged defamatory statements were known to be false at the time of publication. As plaintiffs have sufficiently raised a triable issue in this regard, defendant’s motion for summary judgment was properly denied.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


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    In the Matter of Amerada Hess Corporation, Appellant, v Joel Lefkowitz, as Presiding Supervisor of the Town of Brookhaven, et al., Respondents.
    Submitted November 23, 1981;
    decided December 22, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


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    American Home Assurance Co., Appellant, v Employers Mutual of Wausau et al., Respondents.
    Submitted December 7, 1981;
    decided December 22, 1981
   Motion to vacate the Court of Appeals order of affirmance dated October 15, 1981 denied. Motion to vacate stipulation concerning the availability of other insurance coverage denied. [See 54 NY2d 874.]

Judge Fuchsberg taking no part.


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    Karen M. Eades, Respondent, v G. Gregory Eades, Appellant.
    Submitted November 9, 1981;
    decided December 22, 1981
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, §38, p 156).


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    The People of the State of New York, Respondent, v John Hill, Also Known as Dacajeweiah, Appellant.
    Submitted November 30, 1981;
    decided December 22, 1981
   Motion to vacate the Court of Appeals order of dismissal dated June 6,1980 and to reinstate the appeal denied. [See 50 NY2d 894.]

Judge Meyer taking no part.


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    Jerome Karan, Respondent, v Karan Drugs, Inc., Appellant.
    Submitted November 30, 1981;
    decided December 22, 1981
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie (NY Const, art VI, § 3; CPLR 5601).


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    Julia Loomis, Appellant, v Civetta Corinno Construction Corp., Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted November 6, 1981;
    decided December 22, 1981
   Motion for reargument or, in the alternative, to amend the remittitur denied in each respect. Twenty dollars costs and necessary reproduction disbursements to appellant for opposing affidavit only. [See 54 NY2d 18.]


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    Marco Milli, Respondent, v Joann Morreale, Appellant.
    Submitted December 7, 1981;
    decided December 22, 1981
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601, subd [a], par [i]).


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    Valerie Pica, Respondent, v John Pica, Appellant.
    Submitted November 30, 1981;
    decided December 22, 1981
   Cross motion by respondent to dismiss appeal, e£c., granted to the extent that the appeal is dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Cross motion otherwise denied. Motion by appellant to waive strict compliance with certain requirements concerning the record on appeal, etc., dismissed as academic.


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    Daniel H. Roberts et al., Appellants, v Aetna Casualty and Surety Company et al., Respondents, et al., Defendant.
    Submitted November 30, 1981;
    decided December 22, 1981
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements to respondent Aetna, upon the ground that no appeal lies from the order of the Appellate Division insofar as it dismissed the appeal taken from the order authorizing the entry of a default judgment (CPLR 5511) and upon the further ground that the remaining portions of the order do not finally determine the action within the meaning of the Constitution.


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    In the Matter of Jeanne Steinhardt, as Executrix of James McKee, Jr., Deceased, Appellant, v Johns-Manville Corporation et al., Respondents. Stanley Rosenberg et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Jerome Brenner et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Dorothy Cohen, as Administratrix of the Estate of Emanuel Cohen, Deceased, Appellant, v Johns-Manville Products Corporation et al., Respondents. Rose Failla, as Administratrix of the Estate of Vincent Failla, Deceased, Appellant, v Johns-Manville Products Corporation et al., Respondents. Joseph Ferrarese et al., Appellants, v Johns-Manville Sales Corporation et al., Respondents. Rose Weinberg, as Administratrix of the Estate of Albert Weinberg, Deceased, Appellant, v Johns-Manville Products Corporation et al., Respondents.
    Submitted November 16, 1981;
    decided December 22, 1981
   Motion by plaintiff Steinhardt to amend the remittitur granted, return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of .the United States, viz.: Whether the holding that the plaintiff’s causes of action accrued and the Statutes of Limitations commenced when the employment-related exposure to asbestos particles occurred deprived plaintiff of due process of law.

On the court’s own motion, in Rosenberg et al., return of the remittitur requested and, when returned, it will be amended by adding thereto the following: Upon the appeal herein there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: Whether the holding that the plaintiffs’ causes of action accrued and the Statutes of Limitations commenced when the employment-related exposure to asbestos particles occurred deprived plaintiffs of due process of law. [See 54 NY2d 1008.]