text:
    [678 NE2d 469, 655 NYS2d 857]
    Sydelle C. Coopersmith, Appellant, v Richard L. Gold et al., Respondents.
    Argued January 9, 1997;
    decided February 11, 1997

      APPEARANCES OF COUNSEL

      Kaye, Scholer, Fierman, Hays & Handler, L.L.P., New York City (James D. Herschlein and Sheila S. Boston of counsel), for appellant.

      Callan, Regenstreich, Koster & Brady, New York City (Michael I. Braverman and Bruce M. Brady), for respondents.

      Anastasia Rockas, New York City, and Lea Haber Kuck for National Organization for Women and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Plaintiff instituted this medical malpractice action against defendant alleging that defendant engaged in a sexual relationship with her during the course of their psychiatrist-patient relationship. Plaintiff charged that rather than providing therapy consistent with the accepted standards of psychiatric care, defendant sexualized their relationship to the detriment of her emotional and mental health. Defendant has consistently denied that he engaged in a sexual relationship with plaintiff, which conduct, he acknowledged, would transgress accepted standards of psychiatric practice. Defendant testified at trial that plaintiff fabricated the existence of an intimate sexual relationship between them. Thus, the critical issue for the jury was whose version of the psychiatrist-patient relationship was truthful, which set the stage for a credibility contest between the parties.

By pretrial in limine motion, plaintiff sought permission to call four of defendant’s former patients, who also claimed to have been sexually involved with defendant, in an attempt to establish that defendant repeatedly formed sexual liaisons with his patients and that each relationship followed the same pattern. The trial court properly denied this motion based on the settled rule that evidence of prior, similar acts is inadmissible to prove that defendant perpetrated the same act on a later, unrelated occasion (see, Matter of Brandon, 55 NY2d 206, 210-211; see also, People v Vargas, 88 NY2d 856, 858; People v Alvino, 71 NY2d 233, 241).

Similarly, the trial court correctly denied plaintiffs oral applications at trial to call these former patients. Rejecting plaintiffs contention that defendant "opened the door” to evidence regarding his character, the court properly ruled that the proffered testimony was "much too collateral” to the issue at trial, and highly prejudicial (see, People v Pavao, 59 NY2d 282, 289; 1 McCormick, Evidence § 49 [4th ed]). However, the court did allow plaintiff to testify in rebuttal in an attempt to rehabilitate her credibility.

By formal motion made after both parties had rested, plaintiff once again renewed her request to introduce the testimony of two of defendant’s former patients, this time seeking to call these individuals as additional rebuttal. Plaintiff argued that once the trial court permitted defendant, on his direct case, to display to the jury the surgical scars on his torso to refute plaintiffs contention that they had a multiyear sexual relationship, she was entitled to then demonstrate why she did not observe the scars. It was plaintiff’s contention, which defendant’s former patients might confirm in their proffered testimony, that defendant’s peculiar sexual practices and failure to completely disrobe prevented her from observing any scars. The trial court denied the application, ruling that the proffered testimony related to a collateral matter and would be highly prejudicial since such testimony would be admitted solely for impeachment purposes.

After the jury’s verdict for defendant, the trial court adhered to this determination in an order denying plaintiffs motion to set aside the verdict. The Appellate Division affirmed the judgment dismissing the complaint (see, Coopersmith v Gold, 223 AD2d 572).

A trial court is invested with broad discretion to restrict inquiry into collateral matters (see, Feldsberg v Nitschke, 49 NY2d 636, 643 [citations omitted], rearg denied 50 NY2d 1059). The primary reason plaintiff sought to introduce the proffered testimony was to challenge defendant’s credibility and rehabilitate her own, which are collateral matters by their very essence. Therefore, we cannot say as a matter of law that the trial court abused its discretion by denying plaintiff’s applications to call defendant’s former patients as rebuttal witnesses, especially where the obvious purpose of such rebuttal was simply to bolster her case and counter defendant’s (see, People v Pavao, 59 NY2d, at 288-289, supra; People v Schwartzman, 24 NY2d 241, 245, cert denied 396 US 846).

The remaining contentions raised on appeal are without merit.

Chief Judge Kaye and Judges Bellacosa, Smith, Ciparick and Wesley concur; Judges Titone and Levine taking no part. Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [678 NE2d 471, 655 NYS2d 859]
    The People of the State of New York, Respondent, v Harley H. Earel, Appellant.
    Argued January 9, 1997;
    decided February 11, 1997
    APPEARANCES OF COUNSEL

      James A. Sacco, Binghamton, and Remy R. Perot for appellant.

      Gerald F. Mollen, District Attorney of Broome County, Binghamton (Kevin P. Dooley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following a jury trial, defendant was convicted of rape in the first degree (Penal Law § 130.35). Prior to trial, defendant moved to compel the complainant to submit to a psychiatric examination. In support of the motion, defendant’s attorney submitted an affidavit premised only on the assertion that, at the time of the rape, the victim had been taking the psychotropic medications Prolixin and Lithium. Supreme Court denied the motion, holding that defendant had not demonstrated a compelling need justifying a psychiatric examination of the victim. The Appellate Division affirmed on the basis that the trial court had no authority to order a psychiatric examination of the complaining witness.

We do not reach the question whether a trial court has the power to order a complaining witness to submit to a psychiatric examination. Assuming without deciding that the trial court has such power, the defendant here failed to show record support for his claim that such an examination is compelled to ensure a fair trial (see, People v Passenger, 175 AD2d 944; see generally, Note, Compulsory Psychological Examination In Sexual Offense Cases: Invasion Of Privacy Or Defendant’s Right% 58 Fordham L Rev 1257 [1990]). Moreover, defendant’s psychiatrist, utilizing complainant’s psychiatric records, testified at length concerning complainant’s history of mental illness, including her propensity to become delusional when not taking her medications. The psychiatrist also indicated that he was able to render an opinion concerning complainant’s mental condition without having examined her.

We have considered defendant’s remaining contention and conclude it is without merit.

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

Order affirmed in a memorandum.


text:
    Ethel Bernstein et al., Respondents, v Red Apple Supermarkets, Appellant.
    Submitted December 2, 1996;
    decided February 11, 1997
   Motion, insofar as it seeks leave to appeal from the May 21, 1996 Appellate Division order, dismissed as untimely upon the ground that the prior motion for leave to appeal from the May 21, 1996 order, made to the Appellate Division, was untimely (see, Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution.


text:
    Board of Managers of the Revere Condominium, Respondent, v Shahsultan Jaffer, Appellant.
    Submitted December 2, 1996;
    decided February 11, 1997
   Motion to vacate September 19, 1996 order of dismissal denied. [See, 88 NY2d 1018.]


text:
    Buffalo Airport Center Associates, Respondent, v Niagara Frontier Transportation Authority, Appellant.
    Submitted December 23, 1996;
    decided February 11, 1997
   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 is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    John R. Duffy, Appellant, v John E. Holt-Harris, Jr., as Chairman of the New York State Board of Law Examiners, et al., Respondents.
    Submitted December 23, 1996;
    decided February 11, 1997
   Motion for leave to appeal dismissed upon the ground that no motion for leave to appeal lies from the November 13, 1996 Supreme Court judgment. The March 12, 1990 Appellate Division order was the final appealable paper (see, CPLR 5611). Plaintiff’s appeal from that order was dismissed by the Court of Appeals June 12, 1990 order, and no motion for leave to appeal from the March 12, 1990 Appellate Division order has been made (see, CPLR 5514 [a]). [See, 76 NY2d 772.]


text:
    David Golden, Respondent, v Shirley Golden, Appellant.
    Submitted December 30, 1996;
    decided February 11, 1997
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellant reimbursement for medical payments on the ground that appellant failed to comply with agreed-upon notice provisions, denied her request for escrowed funds, and denied her request for a security bond, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Lillian Gonzalez et al., Appellants, v First National Supermarket, Inc., Doing Business as Finast Supermarket, Respondent.
    Submitted December 16, 1996;
    decided February 11, 1997
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the nonfinal Appellate Division order in this action where the appeal to that Court was from an order entered on an appeal from an order of the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    Frances Greifenberger et al., Appellants, v George Pav et al., Respondents, et al., Defendants.
    Submitted December 2, 1996;
    decided February 11, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellants’ motion for leave to serve a late notice of claim, denied; motion for leave to appeal otherwise 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:
    In the Matter of Merle D. Hover, Appellant, v Debra Shear, Respondent. (And Two Other Related Proceedings.)
    Submitted November 25, 1996;
    decided February 11, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s order denying appellant’s motion for access to Family Court files, dismissed upon the ground that that portion of the order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gerald D. Jennings, as Mayor of the City of Albany, Respondent, v New York State Office of Mental Health et al., Appellants.
    Submitted January 30, 1997;
    decided February 11, 1997
   Motion for a stay and preference denied.


text:
    Park Slope Jewish Center, Appellant-Respondent, v Congregation B’nai Jacob, Respondent-Appellant.
    Submitted January 27, 1997;
    decided February 11, 1997
   Cross appeal by Congregation B’nai Jacob dismissed upon the ground that it is not a party aggrieved (see, CPLR 5511; Parochial Bus Sys. v Board of Educ., 60 NY2d 539, 544-545).


text:
    The People of the State of New York, Respondent, v Travis Foy, Appellant.
    Submitted January 13, 1997;
    decided February 11, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see, NY Const, art VI, § 3; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v Victor Townes, Appellant.
    Submitted December 30, 1996;
    decided February 11, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the Court of Appeals has no jurisdiction to entertain it (see, NY Const, art VI, § 3; CPLR 5601; CPL 450.90). Motion for poor person relief dismissed as academic.


text:
    Michael H. Vartanian, Appellant, v Research Foundation of State University of New York et al., Respondents.
    Submitted December 30, 1996;
    decided February 11, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s cross motion for a subpoena duces tecum, dismissed upon the ground that that portion of the order does not finally determine that action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [678 NE2d 496, 655 NYS2d 884]
    In the Matter of Leo P. Menard.
    Decided February 13,1997
   OPINION OF THE COURT

On the Court’s own motion, it is determined that this Court’s suspension of Honorable Leo P. Menard from his office of Justice of the Beekmantown Town Court, Clinton County, is continued, without pay.

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


text:
    [678 NE2d 497, 655 NYS2d 884]
    Cesar Tuesca, Respondent, v Rando Machine Corp., Defendant and Third-Party Plaintiff-Appellant, et al., Defendant. American White Cross Laboratories, Third-Party Defendant-Appellant.
    Decided February 13, 1997

      APPEARANCES OF COUNSEL

      Fiedelman & Hoefling, Jericho (William D. Buckley of counsel), for Rando Machine Corp., defendant and third-party plaintiff-appellant.

      Quirk & Bakalor, P. C., New York City (Richard H. Bakalor of counsel), for American White Cross Laboratories, third-party defendant-appellant.

      Rosenberg, Mine & Armstrong, New York City (Steven C. Falkoff of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the memorandum at the Appellate Division (226 AD2d 157).

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


text:
    [678 NE2d 497, 655 NYS2d 885]
    Blanche Scheib, Individually and as Executrix of the Estate of Helvetia Scheib, Respondent, v Kathleen M. Curran et al., Defendants, and Montefiore Medical Center, Appellant.
    Decided February 13, 1997

      APPEARANCES OF COUNSEL

      Bartlett, McDonough, Bastone & Monaghan, L.L.P., White Plains (Edward J. Guardaro, Jr.), for appellant.

      John E. Lawler, Yonkers, 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, and certified question answered in the affirmative. The Appellate Division’s conclusions that the corporation evaded service and that plaintiffs counsel’s attempts to serve process were reasonable and diligent find support in the record.

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


text:
    [678 NE2d 473, 655 NYS2d 861]
    The People of the State of New York, Appellant, v Jose Rossey, Respondent.
    Argued January 9, 1997;
    decided February 13, 1997

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Johnnette Traill and John M. Castellano of counsel), for appellant.

      Carlos G. Manalansan, New York City, and Daniel L. Green-berg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts and other issues raised but not considered on the appeal to that Court.

Defendant was convicted of murder in the second degree (Penal Law § 125.25 [1]) and criminal possession of a weapon in the second and third degrees (Penal Law § 265.02 [4]; § 265.03). The Appellate Division reversed the conviction and dismissed the indictment, concluding that the evidence "when viewed in the light most favorable to the People, fails to establish beyond a reasonable doubt that the defendant acted in concert with Ocasio to intentionally cause Guerra’s death” (222 AD2d 710, 712). The Court further noted that the evidence did not prove beyond a reasonable doubt or to a moral certainty that the defendant shared the intent to kill Guerra and that the evidence does not exclude the " 'fair inference’ ” that the defendant did not share in Ocasio’s intention to kill Guerra (People v Rossey, supra, at 711). This standard was erroneous.

Generally, including a circumstantial evidence case, "the standard of [appellate] review in determining whether the evidence before the jury was legally sufficient to support a finding of guilt beyond a reasonable doubt is whether the evidence, viewed in the light most favorable to the People, could lead a rational trier of fact to conclude that the elements of the crime had been proven beyond a reasonable doubt” (People v Cabey, 85 NY2d 417, 420; see also, People v Norman, 85 NY2d 609, 620). Although the evidence that defendant shared Ocasio’s intention to kill was circumstantial, the test for appellate review on the issue of the legal sufficiency of the evidence is the same for both direct and circumstantial evidence (People v Cabey, supra, at 421).

Viewed in a light most favorable to the People, the evidence indicated that the defendant drove the actual shooter and another person to the area of the crime, drove around apparently looking for the victim, engaged the victim in a heated verbal conversation on the street, and turned and waved his arms as though giving a signal. At that point the shooter got out of the car and killed the victim. The defendant then drove the shooter away from the crime scene. This evidence allows a rational trier of facts to conclude that the defendant was acting in concert with the shooter. Therefore, under the correct appellate standard of review, the evidence is legally sufficient to sustain the conviction beyond a reasonable doubt.

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

Order reversed, etc.


text:
    Glendora Buell, Appellant, v Michael Gelman, Respondent.
    Submitted December 23, 1996;
    decided February 13, 1997
   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 the nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    In the Matter of the Claim of Donna M. De Maria, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
    Decided February 13, 1997
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (see, CPLR 5601 [a]; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990, 991).


text:
    In the Matter of the Estate of Marie Goggins, Also Known as Marie V. Goggins, Deceased. Martin Moran, Respondent; Mark J. Levy, Appellant.
    Submitted December 9, 1996;
    decided February 13, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Scott Pollicino, Appellant, v New York City Transit Authority, Respondent.
    Submitted November 25, 1996;
    decided February 13, 1997
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s denial of appellant’s motion to amend the notice of claim, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Troy M. Tenace, Appellant, v Larry J. Rosen, as Judge of the County Court of Albany County, Respondent. In the Matter of Troy M. Tenace, Appellant, v James Campbell, as Sheriff of the County of Albany, et al., Respondents.
    Submitted December 23, 1996;
    decided February 13, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine either proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine either proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


author: Wesley, J.

text:
    [678 NE2d 489, 655 NYS2d 877]
    Dorothy A. Basile, Appellant, v Town of Southampton, Respondent.
    Argued January 7, 1997;
    decided February 18, 1997
    APPEARANCES OF COUNSEL

      Goldstein, Goldstein & Rikon, P. C., New York City (Michael J. Goldstein of counsel), for appellant.

      Wayne D. Bruyn, Deputy Town Attorney of Town of Southampton, for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1980, claimant’s family acquired 12 acres of property situated near Moriches Bay in the Town of Southampton. At that time, the land was zoned for residential development and subject to further regulation because of its location within the Tidal Wetlands and Ocean Beach Overlay District and the Tidal Floodplain Overlay District. In fact, over 95% of the parcel consists of tidal wetlands as inventoried pursuant to the Tidal Wetlands Act (ECL 25-0201).

The 1980 purchase was made subject to certain covenants which had been filed by the former owner in the Suffolk County Clerk’s office. These covenants stated that the parcel "may consist of wetlands and may not be suitable for erection of a dwelling thereon.” The covenants further stated that "no building or structure shall be erected on [the parcel] unless and until said [parcel] is approved as a building lot by the Planning Board of the Town of Southampton.”

In 1990, respondent Town of Southampton acquired from claimant Basile, by condemnation, the fee title ownership to the parcel. The Town’s appraiser initially valued the land at $128,000 and an advance payment was made in that amount to claimant (EDPL 304). The Town later revised its appraisal to $117,500 and claimant submitted a counter appraisal listing the property value at $960,000. The wide disparity between the valuations submitted by the parties stems primarily from the fact that only the respondent’s estimate reflects the property value as restricted under the wetlands regulations. Supreme Court awarded claimant $117,500.

Claimant argues that the wetlands regulations which decreased the market value of her property effect an unconstitutional taking (US Const 5th Amend; NY Const, art I, § 7), and the formal condemnation proceeding requires just compensation of the preregulatory property value. Respondent counters that it is the property value, as restricted, which must dictate the amount of compensation in a condemnation proceeding.

Generally, upon condemnation, property value should be calculated with due consideration paid to the applicable restrictions upon use (cf., Matter of Town of Islip [Mascioli], 49 NY2d 354, 360 ["Ordinarily the potential uses the court may consider in determining value are limited to those uses permitted by the zoning regulations at the time of taking”]). Here, the valuation of claimant’s property should reflect the applicable environmental restrictions. Whatever taking claim the prior landowner may have had against the environmental regulation of the subject parcel, any property interest that might serve as the foundation for such a claim was not owned by claimant here who took title after the redefinition of the relevant property interests. Moreover, as the concurrence notes, "[t]he wetlands regulations at issue in this case did not deprive claimant of any interest in the property that had not already been encumbered” by virtue of the covenants entered into by the former owner in exchange for the right to subdivide and develop what was then a larger parcel.

Enactments which are legitimate exercises of police power, such as the wetlands regulations here, do not effect a taking when a purchaser acquires property subject to such regulations. "The relevant property interests owned by [a purchaser] are defined by those State laws enacted and in effect at the time [title is taken] and they are not dependent on the timing of State action pursuant to such laws” (Matter of Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603, 616 [decided today]). Since claimant took title to her property subject to wetlands regulations and the encumbrances of certain covenants, she cannot claim the value of the property without such restrictions.

Wesley, J.

(concurring). For the reasons set forth in my dissenting opinion in Matter of Anello v Zoning Bd. of Appeals (89 NY2d 535 [decided today]), I cannot agree that claimant is prevented from claiming the value of her property without the wetlands regulations solely because she took title after the enactment of those regulations. Nevertheless, I concur in the result reached by the majority, because claimant took title subject to the covenants filed by the former owner of the property, which substantially restrict the value and use of the property.

Even if we were to accept claimant’s argument that the property must be valued as if it could be developed for one or more single-family residences because the alternative use for recreational or aesthetic purposes is not an economic use (cf., Lucas v South Carolina Coastal Council, 505 US 1003, 1044 [Blackmun, J., dissenting]), that is a consequence of the covenants entered into by the former owner in exchange for the right to subdivide and develop what was then a larger parcel. The wetlands regulations at issue in this case did not deprive claimant of any interest in the property that had not already been encumbered by the former owner by virtue of the covenants. As such, an unrestricted right to develop the parcel no longer remained in the "bundle” of rights that claimant acquired through the former owner, and Supreme Court properly determined that the Town need not compensate claimant as if she retained that right.

Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Ciparick concur; Judge Wesley concurs in result in an opinion; Judge Titone taking no part.

Order affirmed, with costs, in a memorandum.

       Respondent has not sought the difference between the advance payment and the award by Supreme Court. Claimant retains those funds.


text:
    In the Matter of Beverly Tower Association, Respondent, v Robert Sherman, Appellant, et al., Respondent.
    Submitted February 10, 1997;
    decided February 18, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Thomas Fitzgerald, Appellant, v Jean Matthews, Respondent.
    Submitted February 10, 1997;
    decided February 18, 1997
   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:
    Josef Fried, Appellant, v Guillermo Bolanos et al., Respondent.
    Submitted January 13, 1997;
    decided February 18, 1997
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 2103 [b] [2]). Cross motion for the imposition of sanctions denied.


text:
    Gloria Linares et al., Respondents, v Fairfield Views, Inc., Defendant, and The Maintenance Company, Inc., Doing Business as Mainco, Co., Appellant.
    Submitted December 30, 1996;
    decided February 18, 1997
   Motion, insofar as it seeks leave to appeal from the two Appellate Division orders, dismissed upon the ground that neither order finally determines the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the modified and amended judgment of Supreme Court to bring up for review the prior nonfinal Appellate Division order pursuant to CPLR 5602 (a) (1) (ii), denied.


text:
    In the Matter of Michelle H. St. Mary’s Children and Family Services et al., Respondents; Anna H., Appellant.
    Submitted December 30, 1996;
    decided February 18, 1997
   Motion for leave to appeal dismissed as untimely (CPLR 5513, 5514).


text:
    Carol A. Niznik, Appellant, v Becker Movers, Respondent.
    Submitted December 30, 1996;
    decided February 18, 1997
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth 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]). Motions for stays and other relief dismissed as academic.

Judge Wesley taking no part.


text:
    Carol A. Niznik, Formerly Known as Carol A. Walter, Appellant, v Christine Galas et al., Respondents.
    Submitted December 30, 1996;
    decided February 18, 1997
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for a stay dismissed as academic.

Judge Wesley taking no part.


text:
    David Shotten, Respondent, v Richard Becker, Appellant.
    Submitted February 10, 1997;
    decided February 18, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see, NY Const, VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of M. Robert Steel, as Surviving Trustee of the Trust for Anna E. Steel et al. In the Matter of Julius J. Epstein, as Executor of the Estate of Anna E. Steel, Deceased, et al., Respondents. In the Matter of John A. Steel, Appellant.
    Submitted February 3, 1997;
    decided February 18, 1997
   Motion for reargument and clarification of this Court’s December 19, 1996 order denied. [See, 89 NY2d 889.]


text:
    William A. Stuart et al., Respondents, v County of Chautauqua, Defendant and Third-Party Plaintiff-Appellant. Steven Nichols et al., Third-Party Defendants-Appellants, et al., Third-Party Defendant. James Evans et al., Respondents, v County of Chautauqua, Defendant and Third-Party Plaintiff-Appellant. Steven Nichols et al., Third-Party Defendants-Appellants, et al., Third-Party Defendant. Linda Duffy, as Administratrix of John P. Duffy, Deceased, et al., Respondents, v County of Chautauqua, Defendant and Third-Party Plaintiff-Appellant. Steven Nichols et al., Third-Party Defendants-Appellants, et al., Third-Party Defendant. Linda Duffy, as Administratrix of John P. Duffy, Deceased, Respondent, v County of Chautauqua, Defendant and Third-Party Plaintiff-Appellant. Steven Nichols et al., Third-Party Defendants-Appellants, et al., Third-Party Defendant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    (Appeal No. 3.)
    (Appeal No. 4.)
    Submitted December 30, 1996;
    decided February 18, 1997
   Motions by County of Chautauqua and by Nichols and G & J Construction Corporation, insofar as they seek leave to appeal from the Appellate Division orders in Duffy v County of Chautauqua, dismissed upon the ground that those orders do not finally determine that action within the meaning of the Constitution; motions, insofar as they otherwise seek leave to appeal, denied.

Judge Wesley taking no part.


text:
    Cameron K. Wehringer, Appellant, v John D. Brannigan, Respondent.
    Submitted December 30, 1996;
    decided February 18, 1997
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that dismissed appellant’s appeal to that Court from Supreme Court’s order denying reargument, dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from that portion of the Appellate Division order that modified and otherwise affirmed Supreme Court’s October 6, 1994 order, dismissed, without costs, upon the ground that no appeal lies as of right to the Court of Appeals from an Appellate Division order absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    [679 NE2d 629, 657 NYS2d 390]
    ZKZ Associates LP, Respondent, v CNA Insurance Company, Appellant, et al., Defendants.
    Argued February 4, 1997;
    decided March 20, 1997
    APPEARANCES OF COUNSEL

      Quirk & Bakalor, P. C, New York City (Alice J. Jaffe of counsel), for appellant.

      Cyperstein & Gerstner, New York City (Mendel White and Fredda Siegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

As an additional insured under the policy issued to Guardian Pearl Street Garage Corp., plaintiff building owner was covered "only for liability arising out of the ownership, maintenance and use of that part of the described premises which is leased to [Guardian].” Although Guardian’s use of the plaintiff’s premises was governed by a "management agreement” rather than a "lease,” the ambiguous "additional insured” endorsement should be construed to encompass the actual contractual relationship between plaintiff and Guardian, since any other interpretation would render the extra coverage Guardian purchased nugatory.

So construed, the endorsement gave plaintiff at least a right to an insurer-sponsored defense in the action that was brought against it for injuries sustained by a pedestrian who allegedly tripped and fell on the sidewalk outside its building. The part of the sidewalk where the alleged accident occurred was necessarily used for access in and out of the garage Guardian operated and was thus, by implication, "part of the * * * premises” that Guardian was licensed to use under the parties’ agreement. Consequently, the claim arose out of "the ownership, maintenance [or] use of’ the garage. Accordingly, the allegations in the complaint fell within the risk covered by the policy and defendant insurer was obligated to defend plaintiff in the pending action.

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

Order affirmed, etc.


text:
    [679 NE2d 638, 657 NYS2d 399]
    Akija Elezaj, Also Known as Sadro A. Elezaj, Respondent-Appellant, v P.J. Carlin Construction Company et al., Defendants, and F & V Mechanical Plumbing & Heating Corp., Respondent, and Todino Sewer & Water Service, Inc., Appellant-Respondent. (And Third-Party Actions.)
    Argued February 6, 1997;
    decided March 20, 1997

      APPEARANCES OF COUNSEL

      John J. Wrenn, Brooklyn, for Fred Todino & Sons, Inc., appellant-respondent.

      Coen & Geoghan, P. G, Brooklyn (Sean J. Geoghan of counsel), for Todino Sewer &Water Service, Inc., appellant-respondent.

      Klar, Piergrossi & Nunez, New York City (Martin S. Roth-man, Lawrence A. Piergrossi and Alyne I. Diamond), for respondent-appellant.

      Kelly & McGlynn, New York City (Martin M. McGlynn of counsel), for F & V Mechanical Plumbing & Heating Corp., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, and the certified question answered in the affirmative. The central argument urged on this appeal — that the Industrial Code provisions relied upon by plaintiff are too general to support a cause of action under Labor Law § 241 (6) (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 502-505) — was not preserved for our review. Although the Appellate Division properly could reach the argument in the exercise of its discretion, "[t]his Court has no power to review either the unpreserved error or the Appellate Division’s exercise of discretion in reaching that issue” (Feinberg v Saks & Co., 56 NY2d 206, 210-211). The remaining arguments of the parties are without merit.

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

Order affirmed, etc.


text:
    Anna I. Seal, Appellant, v Spencer J. Marks et al., Respondents.
    Submitted January 21, 1997;
    decided March 20, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.


text:
    [679 NE2d 630, 657 NYS2d 391]
    In the Matter of Brian D. Premo, Appellant, v Thomas A. Breslin, as Judge of the County Court of Albany County, Respondent.
    Argued February 6, 1997;
    decided March 25, 1997

      APPEARANCES OF COUNSEL

      MacKrell, Rowlands, Premo & Pierro, P. C., Albany (Charles B. Dumas and Brian D. Premo, pro se, of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Peter G. Crary, Peter H. Schiff and Barbara G. Billet of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the petition granted in its entirety and respondent prohibited from imposing sanctions on petitioner pursuant to 22 NYCRR part 130.

This is a proceeding pursuant to CPLR article 78 which was initiated in the Appellate Division pursuant to CPLR 506 (b) (1) to prohibit the respondent Judge from imposing a sanction on the petitioner pursuant to 22 NYCRR part 130.

Petitioner is an attorney whose firm was retained to represent a defendant in a criminal matter on October 19, 1995. The defendant had been charged with various sex offenses including the rape and sodomy of a 14-year-old girl. Prior to the retention of the law firm, the defendant had been represented by other counsel.

On October 30,1995, petitioner was informed by respondent’s secretary that a hearing would take place in the criminal matter on Thursday, November 2, 1995, at 1:00 p.m. On the day before the hearing, petitioner requested an adjournment, indicating that he had thought the Judge’s chambers would get back to him if the hearing was still scheduled. An adjournment was denied. When he appeared on the day of the hearing, petitioner stated that he had not had sufficient time, but was prepared to go forward. The Judge concluded that the petitioner was unprepared to go forward, adjourned the matter and imposed a sanction of $250 for his unpreparedness.

An attorney is subject to sanction only if there is legislation or a court rule authorizing the sanction (Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1). Here there is no legislation or court rule authorizing the sanction. While 22 NYCRR 130-2.1 allows sanctions for a failure of an attorney to appear in certain scheduled matters, the rule does not include a sanction for unpreparedness. We do not equate unpreparedness with a failure to appear.

We reject the respondent’s contention that prohibition does not lie in this case. Prohibition is appropriate here where the Judge clearly exceeded his authority, there is a clear legal right to the relief and the harm in imposing the sanction is great (Matter of Pirro v Angiolillo, 89 NY2d 351).

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

Judgment reversed, etc.


text:
    [679 NE2d 631, 657 NYS2d 392]
    The People of the State of New York, Respondent, v Pooran Maharaj, Appellant.
    Argued February 5, 1997;
    decided March 25, 1997

      APPEARANCES OF COUNSEL

      Anita Khashu, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Gliner 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 on count two of the indictment.

Defendant was indicted for driving on a public highway with a blood alcohol level of .10 of one percentum or greater in contravention of the per se limit set forth in Vehicle and Traffic Law § 1192 (2) (count one or the per se statutory count) and driving on a public highway while intoxicated, as that term has been defined in the common law, in violation of Vehicle and Traffic Law § 1192 (3) (count two or the common-law count), and proceeded to trial before a Judge, having waived his right to a jury trial. After summations, defendant’s counsel requested that the court consider driving while impaired (Vehicle and Traffic Law § 1192 [1]) as a lesser included offense of driving while intoxicated as charged under the common-law count. The People objected on the mistaken belief that driving while impaired would be a lesser included offense of the per se statutory count, not the common-law count. The court adopted the People’s misguided position and considered driving while impaired as a lesser included offense under count one, not count two, as defendant requested.

The court found defendant not guilty of per se statutory intoxication but guilty of the lesser included offense of driving while impaired under count one of the indictment and guilty of the common-law count as a felony. Defendant moved by formal motion to set aside the verdict, arguing that the trial court erred in considering driving while impaired as a lesser included offense under the per se statutory count (Vehicle and Traffic Law § 1192 [2]), rather than under common-law intoxication (Vehicle and Traffic Law § 1192 [3]).

On the sentencing date, the court heard argument on the motion. The People conceded that the court erroneously considered driving while impaired as the lesser included offense under the per se statutory count, but nonetheless argued that since the case was nonjury, defendant suffered no prejudice. The court then dismissed defendant’s conviction for driving while impaired under count one and upheld the guilty verdict under count two, stating that defendant was not prejudiced by its error in considering the lesser included offense of per se statutory intoxication because the conviction stemmed from a nonjury trial. The Appellate Division affirmed, rejecting defendant’s claim of prejudice arising from the trial court’s failure to consider the lesser included offense under the common-law intoxication count since the court corrected its error at sentencing (see, People v Maharaj, 226 AD2d 171).

Defendant was entitled to the court’s consideration of the lesser included offense under the common-law count as he requested, and the court’s misapprehension and failure to do so constitutes reversible error (see, People v Glover, 57 NY2d 61, 63-64). Simply because the court was acting as both fact finder and Judge of the law does not allow for a result different from that dictated when a court presiding over a jury trial erroneously refuses to submit a lesser included offense to the jury.

The court’s attempt to rectify this kind of error at sentencing comes too late and exceeds the scope of its authority (see, CPL 320.20 [4]; People v Carter, 63 NY2d 530, 538; People v Colon, 65 NY2d 888, 890; People v Ford, 62 NY2d 275; cf., People v Boettcher, 69 NY2d 174, 180). After formal rendition of a verdict at a bench trial, a trial court lacks authority to reweigh the factual evidence and reconsider the verdict (see, People v Carter, supra, 63 NY2d, at 538-539; People v Goodfriend, 64 NY2d 695, 697; People v Ventura, 66 NY2d 693, 694-695; cf., CPL 330.30 [1], People v Alfaro, 66 NY2d 985, 987).

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

Order reversed, etc.


text:
    [679 NE2d 633, 657 NYS2d 394]
    The People of the State of New York, Respondent, v Kelvin Shannon, Appellant.
    Argued February 13, 1997;
    decided March 25, 1997
    APPEARANCES OF COUNSEL

      Mary Kay Yanik, LeRoy, for appellant.

      Robert C. Noonan, District Attorney of Genesee County, Batavia (David E. Gann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was sentenced, as a second felony offender, to a prison term of from two to four years after he pleaded guilty to criminal sale of a controlled substance in the fifth degree. On appeal, defendant argues that he was improperly sentenced as a second felony offender on the ground that non-Penal Law felonies cannot be considered predicate felonies for sentencing purposes under Penal Law § 70.06 (1) (b) (i). Defendant contends that the lower courts violated his equal protection rights by treating his two prior Vehicle and Traffic Law felony convictions as predicate felonies, which subjected him to harsher punishment based solely on the order the crimes were committed.

Contrary to defendant’s interpretation, the express language of Penal Law § 70.06 (1) (b) (i) does not require that the prior felony be one defined by the Penal Law for defendant to be classified as a second felony offender at sentencing. Rather, the specific omission of any restrictive language preceding the definition of what constitutes a "predicate felony conviction” for sentencing purposes indicates that the Legislature intended to include any prior felony conviction, including a Vehicle and Traffic Law felony, as a predicate felony to enhance the severity of punishment. This subdivision stands in sharp contrast to the preceding subdivision which explicitly limits second felony offender status to individuals who commit a "felony defined in this chapter” (Penal Law § 70.06 [1] [a]). The Legislature designed Penal Law § 70.06 (1) (b) (i) to punish a Penal Law felony offender more harshly based on both the nature of the second felony and the commission of any prior felony. The statute serves an important deterrent purpose that is neither irrational nor unconstitutional (accord, People v Clearwater, 98 AD2d 912, 913; Haag v Ward, 632 F2d 206, 208; Dillard v La Vallee, 559 F2d 873, 875, cert denied 434 US 999).

Defendant’s remaining contention is devoid of merit.

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

Order affirmed in a memorandum.


text:
    Behrooz Bassim, Appellant, v Robert Halliday et al., Respondents.
    Submitted March 17, 1997;
    decided March 25, 1997
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the denial of the motion to amend the complaint, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order appealed from does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Robert Burns, Appellant, v New York State Office of Vocational and Educational Services for Individuals with Disabilities et al., Respondents.
    Submitted February 10, 1997;
    decided March 25, 1997
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Kim M. Klinger, Respondent, v State of New York, Respondent, and Delaware County Department of Social Services, Appellant.
    Submitted March 17, 1997;
    decided March 25, 1997
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that it has been rendered moot.


text:
    Silvia Merkle, Respondent, v David Merkle, Appellant.
    Submitted February 18, 1997;
    decided March 25, 1997
   Motion for reargument of motion for leave to appeal denied. Cross motion for sanctions denied. [See, 89 NY2d 917.]


text:
    The People of the State of New York ex rel. Bruce F. Murray, Appellant, v George Bartlett, as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted February 18, 1997;
    decided March 25, 1997
   Motion for leave to appeal dismissed upon the ground that relator has been released on parole and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648).


text:
    Matthew F. Scarpa et al., Appellants, v Transboro Trucking, Also Known as Sardo Motor Transport, et al., Respondents.
    Submitted February 10, 1997;
    decided March 25, 1997
   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 the nonfinal order of the Appellate Division entered in this action commenced in Civil Court (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    [679 NE2d 634, 657 NYS2d 395]
    The People of the State of New York, Respondent, v John Curtis, Appellant.
    Argued February 13, 1997;
    decided March 27, 1997

      APPEARANCES OF COUNSEL

      Shearman & Sterling, New York City (Stephen M. Cowherd of counsel) and Paul Skip Laisure, Daniel A. Warshawsky and Richard M. Greenberg, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Richard Nahas and Morrie I. Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of two counts of assault in the second degree. The Appellate Division affirmed the judgment and a Judge of this Court granted leave to appeal. We now affirm. The courts below correctly concluded that no reasonable view of the evidence supported the requested charge-down to third degree assault under all the circumstances of the evidence adduced in this case, including the nature, manner and use of the belt (see, CPL 300.50). The trial court’s unchallenged instruction to the jury concerning its fact-finding responsibility with respect to the dangerous instrumentality element was necessary to satisfy the requirement that the People prove all elements of the crime beyond a reasonable doubt. The instruction did not create a defense entitlement to a charge-down to assault in the third degree (see, People v Butler, 84 NY2d 627, 630).

We have considered the other issues tendered to this Court and are satisfied that they are meritless.

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

Order affirmed in a memorandum.


text:
    [679 NE2d 635, 657 NYS2d 396]
    The People of the State of New York, Respondent, v Trevis Funches, Also Known as Eric Williams, Appellant.
    Argued February 13, 1997;
    decided March 27, 1997

      APPEARANCES OF COUNSEL

      Pamela Peters, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Tami J. Aisenson and Carol A. RemerSmith), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On March 25, 1990, Officer Calderin and his partner received a radio transmission that two males were involved in a dispute, possibly about drugs, in a second floor apartment at 174 West 141st Street in Manhattan. As Calderin arrived at the specified building, he observed defendant, whom he recognized as a resident from prior encounters, climb out of a second story window and onto the fire escape. Calderin then heard a metallic noise of an object hitting the fire escape just before defendant began climbing up.

Calderin informed the other officers at the scene of what he had seen and then obtained permission to access the fire escape from the occupants of the third floor apartment situated above the window from which defendant had emerged. When Calderin descended to the second floor landing of the fire escape, he observed a .22 caliber handgun outside a window of the second floor apartment. The gun contained six rounds of live ammunition.

Calderin then looked through the open, uncurtained window and observed, in plain view, a white powder-like substance, later identified as cocaine, on a mirror, in plastic bags and in vials. He also observed empty vials and two scales. Accompanied by another officer, Calderin entered the apartment through the open window to search for armed individuals since at least two disputants had been reported. As the officers moved through the premises, they noted that the television and the videocassette recorder were on, signaling potential occupants, and Calderin noticed photographs of the defendant and his girlfriend taped to a mirror. The photographs, contraband and drug paraphernalia were seized.

Defendant’s pretrial motion to suppress the items seized from the apartment was properly denied. The record supports the finding of the trial court that Officer Calderin had reasonable suspicion to investigate the fire escape when, upon hearing a radio report of a dispute between two men, possibly over drugs, he observed the defendant exit his apartment through a window and flee up the fire escape, and heard a metallic thud of an object falling to the fire escape landing.

The record also supports the finding that defendant had a diminished expectation of privacy in the fire escape outside of his window, an open area subject to the common use of the tenants in the building. Given defendant’s lack of exclusive control over the use of the fire escape and the trial court’s finding that no effort had been made by the defendant to maintain any privacy on the area of the fire escape outside of his apartment window (see, People v Rodriguez, 69 NY2d 159, 162; United States v Arboleda, 633 F2d 985, 990-992, cert denied 450 US 917) the officer’s descent from the third to second floor level via the fire escape to conduct an investigation, supported by reasonable suspicion, did not violate the Fourth Amendment.

The record further supports the finding that the officer had reason to make an investigation of the scene and, given the facts, probable cause to enter the apartment once he discovered a loaded handgun on the fire escape and observed in plain view, through the open uncurtained window, what appeared to be contraband and drug paraphernalia. Given the discovery of the loaded handgun and the radio report of two men involved in a dispute, the trial court’s determination that exigent circumstances justified a warrantless entry into the apartment, in order to avert the threat of danger to the police officers on the scene, was also supported by the record.

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

Order affirmed in a memorandum.


text:
    In the Matter of John E. Heisler et al., Respondents, v Michael L. Gingras et al., Appellants.
    Submitted February 18, 1997;
    decided March 27, 1997
   Motion by appellant E. Guy Roemer for leave to appeal granted. Motion by appellants Michael L. Gingras et al. for leave to appeal granted. Cross motion by respondents to vacate stay denied.


text:
    In the Matter of Lawrence Kalkstein et al., Respondents, v Thomas DiNapoli, as Chair of the New York State Assembly Standing Committee on Governmental Operations, et al., Appellants.
    Submitted February 24, 1997;
    decided March 27, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a preference dismissed as academic.

Judge Wesley taking no part.


text:
    Frank P. Raquet et al., Plaintiffs, v Carol Braun et al., Respondents, and W.N.Y. Carpet Factory Outlet, Inc., et al., Appellants. Frank P. Raquet et al., Plaintiffs, v Clifford A. Zane et al., Defendants, and Leonard J. Zane, Appellant. Carol J. Braun et al., Third-Party Plaintiffs-Respondents, v Clifford A. Zane et al., Third-Party Defendants, and Leonard J. Zane, Third-Party Defendant-Appellant.
    Submitted February 18, 1997;
    decided March 27, 1997
   Motions by respondent Olivieri and respondents Carol Braun, John Braun and J.M. Braun Builders, Inc., to dismiss the appeal by appellants W.N.Y. Carpet Factory Outlet, Inc., Kenny Carpets, Inc. and Kenny Enterprises, Inc., and to strike the brief of those appellants and the brief of appellant Zane denied.

Judge Wesley taking no part.


text:
    [680 NE2d 612, 658 NYS2d 239]
    In the Matter of Leo P. Menard.
    Decided April 1, 1997
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Leo P. Menard is removed, effective immediately, from his offices of Justice of the Beekmantown Town Court and Acting Village Justice for the Village of Champlain, Clinton County, pursuant to NY Constitution, art VI, § 22 and Judiciary Law § 44 (8).

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


text:
    [679 NE2d 1071, 657 NYS2d 591]
    The People of the State of New York, Respondent, v Paul St. John, Appellant.
    Argued February 11, 1997;
    decided April 1, 1997

      APPEARANCES OF COUNSEL

      Leslie B. Green, Valhalla, for appellant.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Gregory Babikian and Maryanne Luciano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this appeal from an order affirming defendant’s conviction of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first and third degrees, and the denial of his motion to vacate those convictions pursuant to CPL 440.10, the sole issue raised is whether the People failed to disclose, as Brady material (Brady v Maryland, 373 US 83), the full terms of a cooperation agreement between the District Attorney and a codefendant, who had been permitted to plead guilty to two A-II felonies and was a People’s witness at defendant’s trial. Defendant asserts that the agreement required the codefendant to testify against him in exchange for a recommendation of lifetime probation, and that this obligation was omitted from the prosecution’s pretrial disclosure of the agreement.

Following an evidentiary hearing on defendant’s motion to vacate, County Court found that no agreement or understanding of an obligation to testify against defendant was part of the cooperation agreement, or a necessary condition precedent to favorable consideration at sentencing. The Appellate Division affirmed, also concluding that the claim of a mutual understanding regarding the codefendant’s obligation to testify against defendant was without merit (221 AD2d 575). Because our own examination of the record reveals factual support for the findings of the lower courts, the denial of defendant’s motion to vacate is beyond this Court’s further review (see, People v Blim, 46 NY2d 934, 935; People v Gruttola, 43 NY2d 116, 122). We also conclude that the Appellate Division correctly determined that the evidence was legally sufficient to establish defendant’s guilt beyond a reasonable doubt.

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

Order affirmed in a memorandum.


text:
    [679 NE2d 1072, 657 NYS2d 592]
    In the Matter of Siemens Corporation, Formerly Siemens Capital Corporation, Respondent, v Tax Appeals Tribunal, Respondent, and Commissioner of Taxation and Finance, Appellant.
    Argued February 5, 1997;
    decided April 1, 1997
    APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Lisa LeCours, Andrea Oser, Peter H. Schiff, Nancy A. Spiegel and Barbara G. Billet of counsel), for appellant.

      Richard S. Payne, Larchmont, for Siemens Corporation, respondent.

      Paul A. Crotty, Corporation Counsel of New York City (Edward F. X. Hart and Amy F. Nogid of counsel), for City of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner Siemens Corp. (Siemens), a Delaware corporation with its principal place of business in New York, is a wholly owned subsidiary of Siemens Aktiengesellschaft (Siemens AG.), a German corporation. Siemens acts as a financial conduit between Siemens AG. and its other affiliates throughout the United States, borrowing money in commercial markets and relending it to the Siemens affiliates. After an audit, the Department of Taxation and Finance determined that Siemens had improperly failed to include interest on such loans in its New York receipts factor in 1980, 1981, 1983, 1984, 1985 and 1986, resulting in an under reporting of New York income. The Tax Department accordingly issued notices of deficiency covering those years, which Siemens promptly protested.

After a hearing, the ALJ determined that, contrary to the Department’s argument, the income was not properly allocable to New York as "other business receipts” under Tax Law § 210 (3) (a) (2) (D). The Tax Appeals Tribunal reversed the ALJ, holding that the interest income was properly allocable to New York as income from "services performed within the state” under Tax Law § 210 (3) (a) (2) (B). The Appellate Division granted the petition and annulled the Tribunal’s determination, holding that the Tribunal erred by classifying Siemens’ activities as "services performed within the state,” and agreeing with the ALJ that the interest income did not constitute "other business receipts” under Tax Law § 210 (3) (a) (2) (D).

Under Tax Law article 9-A, New York imposes a franchise tax on New York corporations and foreign corporations doing business in New York. The tax generally is imposed on one of four different bases, the one at issue here being net income allocable to New York (Tax Law § 210 [1] [a] [1]). As part of this allocation process, the taxpayer must determine its receipts factor, which is arrived at by calculating a fraction, the denominator of which is all of the company’s receipts, and the numerator of which is the amount of those receipts allocable to New York (Tax Law § 210 [3] [a] [2]).

Under Tax Law § 210 (3) (a) (2) (D), "business receipts earned” in New York must be included in the numerator of the receipts factor. The Tax Department has long interpreted this section as requiring a corporation to include in its New York receipts factor interest income on loans to the extent that the work done to establish and maintain such loans is done in New York, without regard to the situs of the obligor (see, Opns State Dept of Taxation & Fin No. TSB-A-88 [2] C; No. TSB-A-83 [7] C). As this interpretation is not irrational or contrary to the plain meaning of the statute, it is entitled to deference (Matter of Industrial Indem. Co. v Cooper, 81 NY2d 50, 54).

We reject petitioner’s contention that this case is controlled by our decision in Matter of American Tel. & Tel. Co v State Tax Commn. (61 NY2d 393). That case involved Tax Law § 184, which imposes a special franchise tax on transportation and transmission companies. Section 184 taxes income which has its "source” in New York. Clearly the "source” of interest income is the obligor, and where the obligor is located out of State, the "source” of the income must be deemed to be outside New York.

Section 210, by contrast, is a separate and distinct taxing provision which speaks in terms of where income is "earned” as opposed to its "source.” To the extent that interest income, whatever its source, results from work performed in New York, the income may fairly be characterized as "earned in New York.” Here, the Tax Tribunal made factual findings that all of the activities performed in connection with these loans were performed in New York. These activities included financing, accounting, calculating foreign exchange rates, and general support and stewardship services for affiliates and customers of Siemens AG. Thus, the interest income was earned in New York within the meaning of Tax Law § 210 (3) (a) (2) (D).

Petitioner’s remaining contentions are unpreserved or without merit.

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

Judgment reversed, etc.


text:
    Nadine Bray et al., Appellants, v David C. Gluck et al., Respondents.
    Submitted February 24, 1997;
    decided April 1, 1997
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Richard Cion, Appellant, v Annie Gruenberger, Respondent. (And Another Action.)
    Submitted January 27, 1997;
    decided April 1, 1997
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order granting respondent’s application for upward modification of child support to the extent of referring the matter to a Special Referee, dismissed upon the ground that that portion of that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Patricia Gaudette, Respondent, Donald Gaudette, Appellant.
    Submitted March 27, 1997;
    decided April 1, 1997
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the judgment of divorce and the award of support arrears, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from a unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601); appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining part of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Alan J. Goldstein, Doing Business as Spencerport Village Plaza, Respondent, v John Warburton, Appellant, et al., Defendants.
    Submitted January 27, 1997;
    decided April 1, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see, NY Const, art VI, § 3 [b] [2]; CPLR 5601). Motion for poor person relief, etc., dismissed as academic.


text:
    In the Matter of Burton Herman, Appellant, v Dennis C. Vacco, as Attorney-General of the State of New York, et al., Respondents.
    Submitted March 24, 1997;
    decided April 1, 1997
   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:
    Hilton Apothecary, Inc., Doing Business as Hilton Pharmacy, et al., Appellants, v State of New York, Respondent.
    Submitted February 24, 1997;
    decided April 1, 1997
   Motion, insofar as Debra Loorie seeks leave to appeal on behalf of Hilton Apothecary, Inc., dismissed upon the ground that Hilton Apothecary, Inc. must appear by attorney (see, CPLR 321 [a]); motion, insofar as Debra Loorie seeks leave to appear on her own behalf, dismissed as untimely (CPLR 5513 M).


text:
    In the Matter of Tracy E. Hoff, a Suspended Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted February 24, 1997;
    decided April 1, 1997
   Appeal, insofar as taken from the Appellate Division order denying appellant’s motion to vacate, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order of suspension, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Seth Kohl et al., Respondents, v Richard H. Green et al., Appellants.
    Submitted February 18, 1997;
    decided April 1, 1997
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from a judgment or order entered in an appeal from another court (NY Const, art VI, § 3 [b] [7j; CPLR 5602).


text:
    Roy Lowrance, Respondent-Appellant, v Lee Lowrance, Appellant-Respondent.
    Submitted January 27, 1997;
    decided April 1, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying defendant’s motion to modify the stipulation of settlement, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Cross motion for leave to appeal denied.


text:
    Joseph A. Mancini et al., Respondents, v XTL Transport, Inc., et al., Appellants.
    Submitted February 24, 1997;
    decided April 1, 1997
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).

Judge Wesley taking no part.


text:
    In the Matter of William R. McPhee, III, Appellant, v Philip Coombe, Jr., as Acting Commissioner of the New York State Department of Correctional Services, Respondent.
    Submitted February 10, 1997;
    decided April 1, 1997
   Motion for leave to appeal dismissed for failure to establish 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]).

Judge Wesley taking no part.


text:
    Carol A. Niznik, Appellant, v David Conkey et al., Respondents.
    Submitted March 17, 1997;
    decided April 1, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from the order of County Court affirming the Rochester City Court judgment (see, NY Const, art VI, § 3 [b]; CPLR 5601).

Judge Wesley taking no part.


text:
    Carlton O’Brien, Individually and as Natural Guardian of Kerwin O’Brien, et al., Appellants, v City of New York et al., Respondents.
    Submitted January 27, 1997;
    decided April 1, 1997
   Motion, insofar as it seeks to leave to appeal as against respondent Williams, dismissed upon the ground that as to that respondent, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Robert L. Rohr, Respondent, v Anita Rohr, Appellant.
    Submitted March 24, 1997;
    decided April 1, 1997
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth 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:
    Robert Schultz, Respondent, v Harrison Radiator Division General Motors Corporation, Appellant. (And a Third-Party Action.)
    Decided April 1, 1997
   Reargument ordered and case set down for argument on April 29, 1997.


text:
    Toby Spiselman, Respondent, v Empire State Dental Group, P. C., et al., Appellants.
    Submitted January 13, 1997;
    decided April 1, 1997
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed appellants’ appeal from the Supreme Court order denying their motion to vacate the judgment, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gerald Starr, Respondent, v Town of Southampton, Appellant.
    Submitted February 24, 1997;
    decided April 1, 1997
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Vedic Heritage, Inc., Respondent, v Manoj K. Patel, Appellant.
    Submitted February 18, 1997;
    decided April 1, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution; motion for further relief denied.


text:
    Donald H. Walter, Respondent, v Carol A. Walter, Also Known as Carol A. Niznik, Appellant.
    Submitted March 17, 1997;
    decided April 1, 1997
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth 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]).

Judge Wesley taking no part.


text:
    James Wyatt, Respondent, v State of New York, Appellant. Gerard Plunkett, Respondent, v State of New York, Appellant.
    Submitted January 13, 1997;
    decided April 1, 1997
   Motion, insofar as it seeks leave to appeal in the Plunkett action from the October 10, 1996 Appellate Division order, dismissed upon the ground that that order has been vacated; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Smith taking no part.


text:
    [681 NE2d 1271, 659 NYS2d 825]
    In the Matter of Manuel R., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.
    Argued March 18, 1997;
    decided May 1, 1997

      APPEARANCES OF COUNSEL

      Raymond E. Rogers, New York City, and Jane M. Spinak for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (George Gutwirth and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Based on various drug-related transactions on February 5, 1995, Family Court found appellant, then 15, to have committed acts that, if done by an adult, would have constituted felonies under the Penal Law. Relying on findings that appellant on April 27 and July 20, 1994 had previously committed acts that would have constituted felonies, Family Court further found that appellant had committed a "designated felony act” and sentenced him accordingly. Appellant urges that, because both 1994 felony findings were consolidated in a single Family Court order and he was sentenced for both offenses on the same day — August 18, 1994 — the requirements of Family Court Act § 301.2 (8) (vi) were not satisfied. Like Family Court and the Appellate Division we reject appellant’s argument.

Appellant’s argument rests largely on People v Morse (62 NY2d 205), where this Court read into Penal Law § 70.08 a requirement of "sequentiality” for enhanced punishment of persistent violent felony offenders, meaning that a defendant must be separately sentenced on each earlier conviction before commission of the latest offense. The Court drew that conclusion from reading the relevant Penal Law sentencing provisions in pari materia. Appellant asks us also to read a sequentiality requirement into Family Court Act § 301.2 (8) (vi).

Although the Family Court Act permits us to look to criminal law decisions (see, Family Ct Act § 303.1 [2]), appellant’s analogy is flawed. Unlike Penal Law § 70.08, Family Court Act § 301.2 (8) (vi) explicitly requires only two findings of prior felonies, a requirement that was fully satisfied here. Family Court Act § 301.2 (8) (vi) is not part of the single "system of related general provisions indicative of a settled policy” we encountered in Morse (see, 62 NY2d at 224). Illustrative of the difference is the fact that under the Family Court Act, Family Court is afforded considerable discretion to determine whether a restrictive placement is necessary for a designated felony offender (Family Ct Act § 353.5). There is no similar discretion under the Penal Law recidivist statutes, which serve to punish offenders who have shown that they cannot or will not be rehabilitated.

Finally, because juveniles are only subject to the Family Court Act until age 16, it would undermine the obvious remedial and rehabilitative purposes of the Family Court Act to require full disposition of the prior findings before they could count toward a designated felony act. As evidenced by the present case, the time it would take for a juvenile to have such findings reach disposition could limit the effectiveness of any recidivist measures.

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ceparick and Wesley concur.

Order affirmed, without costs, in a memorandum.

       A "designated felony act” is an act which, if done by an adult, would be a crime "other than a misdemeanor committed by a person at least seven but less than sixteen years of age, but only where there has been two prior findings by the court that such person has committed a prior felony” (Family Ct Act § 301.2 [8] [vi] [emphasis added]). Juveniles found to have committed a designated felony act are subject to the possibility of a restrictive placement (Family Ct Act § 353.5).


text:
    [681 NE2d 1292, 659 NYS2d 846]
    In the Matter of Kathleen McMeekin, Appellant. Orange County Department of Social Services, Respondent; John E. Sweeney, as Commissioner of Labor, Respondent.
    Argued March 25, 1997;
    decided May 1, 1997

      APPEARANCES OF COUNSEL

      McNamee, Lochner, Titus & Williams, P. C., Albany (David J. Wukitsch of counsel), for appellant.

      Richard B. Golden, County Attorney of Orange County, Gos-hen (David L. Darwin of counsel), for Orange County Department of Social Services, respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (227 AD2d 876).

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


text:
    [681 NE2d 1272, 659 NYS2d 826]
    The People of the State of New York, Respondent, v Luis Naranjo, Appellant.
    Argued March 19, 1997;
    decided May 1, 1997

      APPEARANCES OF COUNSEL

      Pamela Peters, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mary C. Farrington and Eleanor J. Os-trow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence and remitting the case to Supreme Court for resentencing before the same court and, as so modified, affirmed.

Defendant was convicted of two counts of attempted assault in the second degree, five counts of robbery in the first degree and criminal possession of a weapon in the second degree.

At sentencing, the court offered both the prosecution and the defendant an opportunity to speak "on the issue of what the sentence should be.” During its oral submission, the People noted that, just prior to defendant’s trial, "a car pulled up to the * * * deli some time after midnight and a masked gunman walked into the deli and pointed and fired a gun several times into the chest of an employee who was standing behind that counter and left.” The prosecutor observed that this incident and the incident leading to one of defendant’s convictions both occurred at the same deli; the victims in each bore a "striking resemblance”; and the masked attacker was described as a black male — the same as defendant’s unapprehended accomplice.

Despite the prosecutor’s suspicions, he conceded that he could not prove "that those bullets were meant for [someone who] was one of the identifying witnesses in this case” or that "the masked gun man was likely the defendant’s accomplice.” Defense counsel objected to consideration of this incident.

The Trial Judge stated that he had heard of, but not seen, the videotape evidence of the crime. However, the court accepted the prosecutor’s speculation that there was no "explanation why the hard working Korean immigrant should be the victim of an [assassination] attempt” other than the fact that "he looked like somebody who might testify against [defendant].” In imposing sentence, the court stated that, along with other factors, it was "definitely considering the shooting incident.” The Appellate Division affirmed, holding that "the sentence was not unduly influenced by the court’s consideration of an uncharged crime.”

As this Court noted in People v Day (73 NY2d 208, 212), sentencing courts "are wisely allocated wide latitude as they are recognized to be in a superior position to dispense proportionate and fair punishment.” Under its discretionary sentencing power, a court may properly consider evidence of prior crimes (see, e.g., Williams v New York, 337 US 241). However, a court’s discretion in sentencing is not without limits. Generally, as a matter of due process, an offender may not be sentenced on the basis of " 'materially untrue’ assumptions or 'misinformation’ ” (United States v Pugliese, 805 F2d 1117, 1123, quoting Townsend v Burke, 334 US 736, 741). Rather, "[t]o comply with due process * * * the sentencing court must assure itself that the information upon which it bases the sentence is reliable and accurate” (People v Outley, 80 NY2d 702, 712).

Here, the prosecutor’s assertion that defendant was involved in the shooting incident was based on pure speculation and, thus, the court’s consideration of the incident in imposing defendant’s sentence was improper.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [681 NE2d 1292, 659 NYS2d 846]
    The People of the State of New York, Appellant, v Herman Chevalier, Respondent.
    Argued March 25, 1997;
    decided May 1, 1997

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (James P. Kane and Norman Barclay of counsel), for appellant.

      Ellen Dille, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by Presiding Justice Francis T. Murphy at the Appellate Division (220 AD2d 114).

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


text:
    [681 NE2d 1292, 659 NYS2d 846]
    In the Matter of the Arbitration between State Insurance Fund, Appellant, and Aetna Casualty and Surety Company, Respondent.
    Argued March 19, 1997;
    decided May 1, 1997

      APPEARANCES OF COUNSEL

      Jean S. Kneiss, Liverpool, and James P. O’Connor for appellant.

      Hiscock & Barclay, L. L. P., Syracuse (Marcia J Sanchack of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see, Matter of Motor Vehicle Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214).

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


text:
    In the Matter of Mary A. Allender, Appellant, v Edward Mercado, as Commissioner of the New York State Division of Human Rights, Respondent, and American Home Products Corporation, Appellant.
    Submitted February 3, 1997;
    decided May 1, 1997
   On the Court’s own motion, appeal by complainant Allender dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion by American Home Products Corporation for leave to appeal denied. Motion by American Home Products Corporation for a stay dismissed as academic.


text:
    Norcon Power Partners, L. P., Plaintiff, v Niagara Mohawk Power Corp., Defendant.
    Decided May 1, 1997
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Gregory Richardson, Appellant, v Rena K. Uviller, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted February 24, 1997;
    decided May 1, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of John Warburton, Appellant, v Department of Correctional Services et al., Respondents.
    Submitted February 24, 1997;
    decided May 1, 1997
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Victor Woodard, Appellant, v Anne Feldman et al., Respondents.
    Submitted March 24, 1997;
    decided May 1, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied in part the application for poor person relief and assignment of counsel, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [681 NE2d 1274, 659 NYS2d 828]
    Basil Development Corporation et al., Appellants, v General Accident Insurance Company, Respondent.
    Argued March 18, 1997;
    decided May 6, 1997

      APPEARANCES OF COUNSEL

      Friedman & Manning, P. C., Delmar 0Stephen L. Molinsek of counsel), for appellants.

      Pemberton & Briggs, Schenectady (Paul Briggs of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff developer has been sued by 30 of the 35 homeowners who bought houses in its Orchard Park development, which is located in the Town of New Scotland. The homeowners have alleged that plaintiff "failed to erect [their] home[s] in a workmanlike manner” by furnishing dwellings without a safe water supply. According to the bill of particulars, the homes, which do not have access to a public water supply system, are connected to ground water wells with water that is contaminated by "iron, iron bacteria, sodium, chloride and dangerously high levels of methane gas.” These contaminants, the homeowners allege, pose a hazard to their household fixtures and appliances as well as to their families’ health.

We agree with the conclusion of the Appellate Division that defendant, plaintiff’s comprehensive liability insurer, is not obligated to defend and indemnify plaintiff in the homeowners’ action. The insurance policy contains an exclusion for "property damage * * * arising out of [the insured’s] products” or out of the "work performed by or on behalf of the named insured.” That exclusion, commonly termed a "work product” exclusion, exists to exclude coverage for business risks, including claims that the insured’s "product or completed work [was] not that for which the damaged person bargained” (Henderson, Insurance Protection for Products Liability and Completed Operations — What Every Lawyer Should Know, 50 Neb L Rev 415, 441; see, Commerce Ins. Co. v Betty Caplette Bldrs., 420 Mass 87, 647 NE2d 1211).

The "work product” of a residential land developer such as plaintiff includes not only the mortar, bricks, wiring and pipes that comprise its houses, but also the numerous discretionary choices that must be made in the course of erecting those houses. The builder’s site choice, a choice that necessarily includes consideration of its access to a water supply, is clearly part of that work product (see, Gene & Harvey Bldrs. v Pennsylvania Mfrs. Assn. Ins. Co., 512 Pa 420, 427, 517 A2d 910, 913-914; Garneau v Curtis & Bedell, 158 Vt 363, 368, 610 A2d 132, 134).

Thus, under the terms of plaintiff’s insurance policy, liability arising from siting this development so as to be dependent upon a contaminated water supply is excluded from coverage.

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

Order affirmed, with costs, in a memorandum.


text:
    [681 NE2d 1276, 659 NYS2d 830]
    The People of the State of New York, Respondent, v Jose Carracedo, Appellant.
    Argued March 24, 1997;
    decided May 6, 1997

      APPEARANCES OF COUNSEL

      Andrew C. Fine, New York City, Daniel L. Greenberg and Barbara Zolot for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During a pretrial suppression hearing, the trial court directed defendant not to communicate with his counsel about "the case” during an overnight recess that commenced in the middle of defendant’s testimony on cross-examination. Defendant was subsequently convicted of murder in the second degree. Relying on Geders v United States (425 US 80) and People v Enrique (165 AD2d 13, affd 80 NY2d 869), the Appellate Division ruled that the ban placed on defendant’s communication with his attorney violated defendant’s Sixth Amendment right to counsel. To remedy that violation, the Court held the appeal from the judgment of conviction in abeyance and remitted to Supreme Court for a new suppression hearing to be held. Two Justices dissented from that ruling on the ground that the proper remedy would have been to grant a new trial. The new hearing was subsequently held, and the suppression court determined that the subject evidence should not be suppressed. The Appellate Division, with the same two Justices dissenting, then affirmed the judgment of conviction and sentence. One of the dissenting Justices granted defendant permission to appeal to this Court.

As a threshold matter, given that the People are not the appealing party in this matter, we are unable to review the propriety of the Appellate Division’s determination that the ban on communication during the overnight recess constituted a Sixth Amendment violation as the People request (see, CPL 470.35 [2] [b]). That is true because if the People were to prevail here on the merits of that claim, this Court "would in essence be affording affirmative relief to a nonappealing party, [which] we are not empowered to do” (People v Carpenito, 80 NY2d 65, 68). Accordingly, proceeding as we must from the position that a right to counsel violation occurred during the suppression hearing, we direct our attention to the appropriate remedy for that transgression.

We reject defendant’s contention that he was entitled to a reversal of his conviction and a new trial. The overnight ban on consultation between defendant and his attorney occurred during the course of the suppression hearing and the de novo suppression hearing adequately remedied any constitutional deprivations that defendant may have suffered at the original hearing. However, given that the communication ban lasted one night and predated the trial by a full year, we cannot further conclude that the pretrial violation here was "so serious that [it] operate[d] to deny defendant’s fundamental right to a fair trial,” thereby obviating the need to conduct a prejudice analysis (cf., People v Hilliard, 73 NY2d 584, 586-587 [emphasis supplied] [30-day pretrial bar on communication with counsel denied fundamental right to fair trial]; People v Felder, 47 NY2d 287 [representation at trial by layman masquerading as an attorney]).

Additionally, defendant has not established that the hearing violation created even a potential for prejudice at the subsequent trial. Defendant contends that "the court’s error could have affected trial strategy,” because it created a missed opportunity to discuss possible plea options or to assess the testimony of hearing witnesses who would also be called at trial. However, defendant does not claim that any such real opportunities were completely foreclosed or even impeded by the court’s ruling, and he otherwise fails to supply record support for these hypothetical assertions of prejudice. Thus, defendant’s prejudice arguments are simply too speculative to form the basis for the requested relief. Accordingly, on this record, we agree with the Appellate Division majority that a new suppression hearing was an appropriate remedy for the violation of defendant’s right to counsel at the suppression hearing stage.

Defendant also contends that reversal is warranted because the court failed to impose a sanction on the People for the loss of notes prepared by the trainer of a bloodhound used to track defendant’s scent at the crime scene. Where Rosario material is lost or destroyed, the court is required to impose an appropriate sanction that is designed to eliminate resulting prejudice to the defendant (People v Martinez, 71 NY2d 937, 940; People v Kelly, 62 NY2d 516, 520-521). Although the trial court here denied defendant’s request to impose a sanction, under the particular facts and circumstances of this case, any risk of prejudice to defendant resulting from the destroyed notes was overcome by the court’s instruction to the jury that it was to view the bloodhound evidence "with utmost caution” and that it was of "slight probative value” (People v Martinez, 71 NY2d, at 940, supra).

Defendant’s remaining contention lacks merit.

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

Order affirmed in a memorandum.


text:
    [681 NE2d 1278, 659 NYS2d 832]
    The People of the State of New York, Respondent, v Tyrone Powell, Appellant.
    Argued March 24, 1997;
    decided May 6, 1997
    APPEARANCES OF COUNSEL

      Bonnie B. Goldburg, New York City, and Daniel L. Green-berg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Elizabeth F. Bernhardt and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In People v Hollman (79 NY2d 181, 191), we reaffirmed that police officers, acting upon an articulable reason, may approach an individual to request information concerning the individual’s identity, destination or reason for being in an area and, "[i]f the individual is carrying something that would appear to a trained police officer to be unusual, the police officer can ask about that object.” Defendant was observed by two Department of Sanitation peace officers in an area known for illegal dumping, with a 50-gallon cardboard barrel protruding from his car trunk. After defendant passed the officers twice, turned off his car’s héadlights, and backed the wrong way up a one-way street to a spot where there was a hole in a fence, the officers reasonably inquired of defendant whether he intended to dump the barrel, and what was in the barrel. Thus, there is support in the record for the Appellate Division’s determination that the officers’ request for information was justified. Defendant’s motion to suppress his response (that he had killed his girlfriend, and her body was in the barrel) and the physical evidence was properly denied.

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

Order affirmed in a memorandum.


text:
    Stephen Anest et al., Appellants, v Louis Scheinberg et al., Defendants, and Michael Lavyne, Respondent.
    Submitted March 10, 1997;
    decided May 6, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion to vacate, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Herzfeld & Stern, Inc., Plaintiff, v Warren Beck, Defendant. Warren Beck, Appellant, v Herzfeld & Stern, Inc., Respondent.
    Submitted February 24, 1997;
    decided May 6, 1997
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).

Judge Smith taking no part.


text:
    William Lubliner, Appellant, v Helmsley-Spear, Inc., et al., Respondents.
    Submitted March 3, 1997;
    decided May 6, 1997
   Motion for leave to appeal from the judgment entered upon the Appellate Division order dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought (see, CPLR 5611).