text:
    The People of the State of New York, Respondent, v Tarone Brooks, Appellant.
    Argued February 9, 1990;
    decided March 29, 1990
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender, for appellant.

      Howard R. Relin, District Attorney (Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

Defendant has been convicted of robbery, second degree, resulting from an incident in which he struck a laundromat attendant in the nose and stole a $5 bill from the attendant’s hand. Before trial commenced, the court informed defendant of his trial date, that he had a right to be present at trial and that the trial would proceed even if he was absent. Defendant was present during jury selection and during the first two days when evidence was submitted. At the end of the second day, the court announced that the trial would resume on the following day at 9:30 a.m. Defendant did not appear at the scheduled time, however, and at 10:07 a.m. the court proceeded in his absence. Counsel completed their summations and approximately 43 minutes after the trial resumed, during the court’s charge to the jury, defendant returned to the courtroom. The jury found defendant guilty as charged.

In People v Sanchez (65 NY2d 436), we considered five cases in which defendants failed to appear for trial. We held that defendants who deliberately absent themselves from the courtroom after trial has begun forfeit their right to be present regardless of whether they know the trial will continue in their absence. In each case we considered in Sanchez, the court had inquired into the surrounding circumstances and determined that the defendant’s absence was deliberate (see, People v Sanchez, supra; Taylor v United States, 414 US 17, 20). The record does not demonstrate the court did so here. Before proceeding in defendant’s absence, the court should have made inquiry and recited on the record the facts and reasons it relied upon in determining that defendant’s absence was deliberate (cf., People v Page, 72 NY2d 69, 73). By failing to do so and proceeding with summations and instructions to the jury in defendant’s absence, the court committed reversible error (see, People v Mehmedi, 69 NY2d 759).

Inasmuch as defendant has completed the sentence imposed upon him, the indictment is dismissed.

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

Order reversed, etc. [See, 76 NY2d 746.]


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of John J. Callahan et al., Appellants, v City of New York, Respondent.
    Decided March 29, 1990

      APPEARANCES OF COUNSEL

      Stephen C. Glasser for appellants.

      Victor A. Kovner, Corporation Counsel (Timothy J. O’Shaughnessy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and petitioners’ application reinstated.

On November 17, 1986, John Callahan, a New York City firefighter, was injured when he stepped through an uncovered catch-basin of a city sewer after alighting from a fire truck. Initially, Callahan’s physician diagnosed a sprained ankle. After expiration of the 90-day period to file a notice of claim against the City, however, Callahan allegedly learned his injuries were more serious, perhaps permanent. Accordingly, prior to the expiration of the one-year-and-90-day limitations period applicable to the underlying cause of action (General Municipal Law § 50-i), Callahan and his wife sought leave to serve a late notice of claim, and sent a copy of that application to the Corporation Counsel by ordinary mail. The application consisted of a notice of motion with supporting affidavits. Although it received the notice, the City challenged the application on the ground that Supreme Court lacked jurisdiction because petitioners’ papers were not personally served upon the Corporation Counsel. Supreme Court agreed with the City and denied petitioners’ application, and the Appellate Division affirmed.

We do not agree that Supreme Court was without jurisdiction to entertain petitioners’ application. Prior to 1976, former subdivision (5) of section 50-e of the General Municipal Law required that service of a notice of application for leave to serve a late notice of claim be made in the same manner as a notice of claim. General Municipal Law § 50-e (3) at that time required that a notice of claim be served either personally or by registered mail.

To address the problem of technical dismissals of potentially meritorious claims, the Legislature in 1976 "loosened” the "tightly woven” provisions that govern applications for permission to serve late notice of claim, "keeping in mind the functional purpose of the notice * * * and the need to balance the interests of the public and of the injured person.” (14th Ann Judicial Conference Report on the CPLR, 1976 McKinney’s Session Laws of NY, at 2072, 2077-2078.) To this end, General Municipal Law § 50-e (3) was amended to authorize a claimant to cure a timely filed but defective notice of claim in certain circumstances. The Legislature also substantially amended section 50-e (5), replacing it with the current version, which generally provides courts with broader discretion to permit claimants to serve late notice of claim (see, Matter of Beary v City of Rye, 44 NY2d 398, 407-408). The amended version of section 50-e (5), unlike its predecessor, is silent as to the manner of serving an application for permission to file a late notice of claim.

The express service requirements governing service of a notice of claim (General Municipal Law § 50-e [3] [a]), coupled with the deletion of service requirements for applications for permission to serve late notice of claim, evince the Legislature’s intent that courts have broad discretion in entertaining such applications. Failure to specify service requirements must be deemed an intentional omission designed to mitigate the harsh consequences of rigid application of the statutory provisions as they existed before the amendment. In that respondent here received actual notice of petitioners’ application, it was error for Supreme Court to deny it for want of jurisdiction. A contrary conclusion only restores rigidity to the statute and frustrates the Legislature’s plain intention in its amendments.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Ronnie Green, Appellant.
    Argued February 9, 1990;
    decided March 29, 1990

      APPEARANCES OF COUNSEL

      Kristin M. Preve, Linda S. Reynolds and Barbara Davies Eberl for appellant.

      Kevin M. Dillon, District Attorney (Susan D. Nusbaum and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed essentially for the reasons stated by Justice John F. Lawton at the Appellate Division (146 AD2d 281) and in People v Prescott (66 NY2d 216, cert denied 475 US 1150), People v Taylor (65 NY2d 1) and People v Siciliano (40 NY2d 996).

"A guilty plea generally represents a compromise or bargain struck after negotiation between defendant and the People. As such, it marks the end of a criminal case, not a gateway to further litigation.” (People v Taylor, 65 NY2d 1, 5, supra.) Exceptions to this principle have been limited (People v Prescott, 66 NY2d 216, 219-220, supra; People v Taylor, supra [and cases cited in each]).

We all agree completely with the policy considerations that warrant remedying and ending Batson violations in the selection of trial juries (Batson v Kentucky, 476 US 79; see also, People v Kern, 75 NY2d 638 [decided today]; People v Jenkins, 75 NY2d 550 [decided today]; People v Hernandez, 75 NY2d 350; People v Scott, 70 NY2d 420). Those important considerations would not be served by a reversal of the order of the Appellate Division in this guilty plea case or by an abandonment of the precedents providing guidance in this area of the law.

The assertion of a Batson violation based on the prosecutor’s exercise of peremptory challenges in this case, followed by a guilty plea, does not fit into any of the accepted exceptions and does not qualify as a new one. By pleading guilty instead of going to trial, the defendant waived all of his trial rights and thus necessarily surrendered his right to challenge on appeal any alleged trial errors. The claimed Batson violation is a trial matter which is part of the jury trial right itself. Inasmuch as we have held that the whole jury trial right may be waived (People v Dwight S., 29 NY2d 172, 175-176), . there is no basis in law or logic for permitting one component of the plenary right to survive a guilty plea.

The proffered rationale for reversal in the dissent, on the other hand, would erect a test based on what may be deemed "important,” "fundamental” or "fair” at a given time. This would not provide a reasoned basis for distinction as to which exceptional and limited issues survive a guilty plea.

The order affirming the judgment of conviction of attempted rape in the first degree must be affirmed.

Hancock, Jr., J.

(dissenting). The only question on this appeal is whether racial discrimination in the prosecutor’s exercise of peremptory challenges affects the fundamental fairness of a trial or implicates societal interests in the integrity of the criminal process; if so, then under our prior decisions (see, e.g., People v Pelchat, 62 NY2d 97, 108; People v Blakley, 34 NY2d 311, 314; see also, People v Seaberg, 74 NY2d 1, 9; People v Taylor, 65 NY2d 1, 5), a defendant’s claim of such discrimination survives his guilty plea and may be raised on appeal. Because in my view it does, I dissent.

Defendant in this case is black; the complainant white. During jury selection, one black venireman was excused by the court with the consent of both counsel; the four remaining black prospective jurors were peremptorily challenged by the prosecutor. Defendant moved for a mistrial on the ground that the prosecutor had systematically excluded blacks from the jury. The trial court denied the motion after a hearing, and defendant, who protested his innocence throughout the proceedings, entered an Alford plea rather than proceed to trial with an all-white jury.

At sentencing, defendant moved to withdraw his guilty plea. He argued that he was under stress when he entered his plea and believed then that he could withdraw it at any time prior to sentencing. The court denied defendant’s motion and sentenced him in accordance with the plea bargain.

At the Appellate Division, defendant argued that the trial court erred in denying his motion for a mistrial. The Appellate Division acknowledged that defendant made out a prima facie case of discrimination but declined to rule further on the merits of the claim, holding, instead, that defendant had waived that claim when he pleaded guilty and waived his trial rights (146 AD2d 281, 284). The court reasoned that, "[b]y pleading guilty, a defendant * * * surrenders his constitutional rights to confrontation and trial by jury and his privilege against self-incrimination”. Because "[defendant's Bat-son’s rights are no greater than his right to a jury trial itself’, the court continued, they are "subsumed within the waiver of his right to a trial and [do] not survive his guilty plea” (id.).

The rule applied by the Appellate Division ignores the critical difference between those rights which are necessarily waived in a guilty plea and those which are not; and it conflicts with the guidelines established in our prior decisions. When a defendant enters a plea of guilty, he necessarily relinquishes his rights to a jury trial, to confront adverse witnesses and to avoid self-incrimination. The knowing and voluntary waiver of those rights is inherent in a constitutionally valid guilty plea. The very essence of pleading guilty is to forego the exercise of those three rights and to consent, instead, to a finding of guilt without a trial (see, People v Harris, 61 NY2d 9, 18-19; North Carolina v Alford, 400 US 25, 37; Boykin v Alabama, 395 US 238, 243). Put otherwise, it is simply impossible to plead guilty and, at the same time, to invoke those rights.

But a decision to plead guilty is certainly not a decision to relinquish the right to equal racial protection in the conduct of the criminal proceeding — regardless of the stage in the process. Unlike the rights to a jury trial, to confront adverse witnesses and to avoid self-incrimination, the right to equal protection need not be surrendered in order to enter a plea of guilty. The guilty plea in no sense represents a choice to forego the right to equal protection or to consent to a violation of that right earlier in the proceeding. Indeed, a decision to plead guilty may well reflect the belief that some violation has made a fair trial impossible.

Nor can it be denied that a racially neutral trial — including, specifically, the racially neutral selection of a petit jury — is essential to the fundamental fairness of the criminal process. Racial discrimination in the exercise of peremptory challenges is hardly one of those "technical defects in the proceedings” that are waived by a guilty plea (see, People v Pelchat, supra, at 108); nor is it an "issue of factual guilt” rendered irrelevant by the plea (see, People v Taylor, supra, at 5). Surely, it is a fundamental flaw that implicates both the individual defendant’s entitlement to basic fairness and society’s interests in the integrity of the criminal process itself (cf., People v Seaberg, supra, at 9; People v Taylor, supra, at 5; People v Pelchat, supra, at 109; People v Blakley, supra, at 315). And, if there is any clear rule emerging from our pertinent decisions, it is that just such a "fundamental matter” (People v Taylor, supra, at 5) does survive a guilty plea.

The line we have drawn to differentiate those claims that survive a guilty plea from those that do not reflects the critical distinction between jurisdictional or constitutional defects which implicate the integrity of the process and other less fundamental flaws — e.g., evidentiary or technical matters. The test, in short, is whether the claimed defect is a matter of basic fairness affecting societal interests in our criminal justice system. Hence, the claims which this court has held are forfeited by a guilty plea include the failure to provide statutorily required notice of evidence to be introduced (People v Taylor, supra), nonjurisdictional defects in an accusatory instrument (People v Levin, 57 NY2d 1008), statutory double jeopardy (People v Prescott, 66 NY2d 216), insufficiency of the factual basis for a plea (People v Foster, 19 NY2d 150), and insufficiency of the evidence presented to a Grand Jury (People v Kazmarick, 52 NY2d 322). By contrast, the claims which we have held do survive a guilty plea include jurisdictional defects in an accusatory instrument (People v Case, 42 NY2d 98), speedy trial violations (People v Blakley, supra), constitutional double jeopardy (People v Prescott, supra), incompetency to stand trial (People v Armlin, 37 NY2d 167), illegality of a sentence (People v Francabandera, 33 NY2d 429, 434, n 2), and a prosecutor’s knowing use of an accusatory instrument dependent on false evidence (People v Pelchat, supra). A brief review of some of these decisions is instructive.

In People v Blakley (supra), our court held that a speedy trial claim always survives a guilty plea because there are " 'societal interests]’ ” in providing a speedy trial apart from the interests of the individual accused (34 NY2d, at 314 [emphasis added], quoting Barker v Bingo, 407 US 514, 519). We explained that the "[d]epravation of the right to a speedy trial may affect the fundamental fairness of a trial” (id., at 314 [emphasis added]). An unreasonable delay in commencing a trial may weaken the defendant’s case through the loss of witnesses or dulling of memories and, in that event, even an innocent defendant might negotiate a plea bargain rather than risk a trial under such circumstances. To avoid such basic unfairness in the criminal process and, thereby, ensure society’s interests in speedy trials, we decided that a defendant could raise a speedy trial challenge on appeal regardless of his plea of guilty or his plea bargain to the contrary (id., at 315).

Likewise, in People v Pelchat (supra), our decision was based on the overriding societal interests in the fundamental fairness of the process itself. We held that a guilty plea does not forfeit a defendant’s claim that the prosecutor had proceeded on an indictment after learning that it rested on false evidence. We explained that, while a guilty plea forfeits the right to challenge a "latent weakness” or "infirmity” in the evidence presented to a Grand Jury (id., at 107 [emphasis added]), the rule is the opposite where the prosecutor knowingly proceeds on a defective indictment and, thus, the "integrity of the criminal justice system [is] impaired” (id., at 108). It is this concern for "integrity” in the process, not the "infirmity” itself, that is dispositive.

Our court applied a similar analysis in People v Taylor (supra), where we held that a guilty plea does forfeit a claim of prosecutorial failure to provide timely notice of evidence to be introduced at trial. We emphasized that such a claim "bears directly on defendant’s factual guilt” (65 NY2d, at 7), not on any "fundamental matter” "affect[ing] the court’s jurisdiction [or] imping[ing] on rights of constitutional dimension” (id., at 5, 6).

Finally, last year in People v Seaberg (supra), where this court enforced a defendant’s plea-bargained waiver of the right to appeal his legal sentence, we reviewed the critical differences between those claims which survive a guilty plea, such as speedy trial violations, and those which do not, such as the one at issue in that case. We said: "Society has a recognized interest in speedy trials because trial delay may result in the loss of evidence or an accused’s inability to respond to criminal charges, thereby compelling innocent persons to plead guilty out of necessity. Because of this societal interest, a defendant may not waive such claims. Similarly, a defendant may not waive the right to challenge the legality of a sentence or his competency to stand trial. These rights are recognized as a matter of fairness to the accused but they also embrace the reality of fairness in the process itself and, therefore, a defendant may not waive them. The right to appeal a validly imposed sentence does not similarly implicate society’s interest in the integrity of criminal process.” (74 NY2d, at 9 [emphasis added] [citations omitted].)

Hence, as stated at the outset, the only issue on this appeal is whether a prosecutor’s racially discriminatory exercise of peremptory challenges is a "fundamental matter” (People v Taylor, supra, at 5) — i.e., whether such discrimination affects the basic fairness of a criminal trial or implicates society’s interests in the integrity of the process itself. Both the Supreme Court and this court have been absolutely clear that it is. Hence, under our own decisional law, a defendant’s claim of such discrimination should survive his guilty plea and be reviewable on appeal.

In Batson v Kentucky (476 US 79), the Supreme Court left no doubt that, in its view, racial discrimination in the exercise of peremptory challenges contravenes the most fundamental protections afforded by the rights to a jury trial and to equal protection, and that such discrimination affronts society’s, as well as the defendant’s, interests in the basic fairness of the criminal justice system. As the court said: "Purposeful racial discrimination in selection of the venire violates a defendant’s rights to equal protection because it denies him the protection that a trial by jury is intended to secure. 'The very idea of a jury as a body * * * composed of the peers or equals of the persons whose rights it is selected or summoned to determine’ * * * The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is 'a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.’ ” (476 US, at 86-88 [emphasis added] [citations omitted].) The court went on to stress that: "The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of * * * assumptions * * * aris[ing] solely from the jurors’ race. * * * By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.” (Id., at 97-99 [emphasis added].)

The Supreme Court emphasized the same points in Ballard v United States (329 US 187). There it held that the systematic exclusion of women from jury panels, like the exclusion of a racial group, requires the reversal of a conviction despite the absence of any prejudice to the defendant in the case. The court explained that: "The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.” (Id., at 195 [emphasis added].)

For like reasons, we have held today, in People v Kern (75 NY2d 638 [decided herewith]), that the prohibition against racially discriminatory peremptory challenges applies to the defendant as well as to the prosecutor. Racial discrimination in the selection of a jury, whether it be by the People or the accused, injures the excluded juror, is repugnant to our citizens, and undermines their respect for judicial proceedings. As we unanimously and emphatically have recognized in Kern, what is at stake is no less than the "integrity of the criminal trial process” (id., at 652 [emphasis added]; see also, People v Kern, 149 AD2d 187, 235; People v McCray, 57 NY2d 542, 553 [Meyer, J., dissenting]).

The discrimination thus condemned and described in the foregoing decisions is precisely the kind of constitutional violation that we have repeatedly held to be reviewable on appeal from a guilty plea. Racial discrimination in jury selection is so anathema to the mandate of fundamental fairness in our criminal process that no conviction infected by it— whether that conviction be by verdict or guilty plea — should be permitted to stand (cf., People v Crimmins, 36 NY2d 230, 238; Batson v Kentucky, supra, at 100; Ballard v United States, supra, at 195). As this court, speaking through Judge Jones, said in People v Crimmins (supra): "Not only the individual defendant but the public at large is entitled to assurance that there shall be full observance and enforcement of the cardinal right of a defendant to a fair trial. The appellate courts have an overriding responsibility, never to be eschewed or lightly to be laid aside, to give that assurance. So, if in any instance, an appellate court concludes that there has been such error of a trial court, such misconduct of a prosecutor, such inadequacy of defense counsel, or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction” (36 NY2d, at 238 [emphasis added]).

There can be no question that a prosecutor’s racially discriminatory exercise of peremptory challenges is just such a "wrong” as operates to deprive a defendant of his "cardinal right” to a fair trial and, thus, requires reversal of his conviction. And it should make no difference that the defendant’s conviction, as is the case here, was based on his plea of guilty. If a defendant’s claim of racial discrimination in the selection of a jury is true, then he has certainly not been afforded the right to a fair trial. Indeed, as we have said in our decisions on speedy trial claims, a defendant may plead guilty precisely because he would otherwise be subjected to a fundamentally unfair trial.

Although the majority suggests that giving defendant the right to challenge the Batson violation would amount to "an abandonment of the precedents providing guidance in this area of the law” (majority mem, at 904), it fails to identify the precedents which guide us or to make known the guiding rule. Rather, the majority’s sole answer to the dissent is that the claimed Batson violation involves a trial right and that because "we have held that the whole jury trial right may be waived * * * there is no basis in law or logic for permitting one component of the plenary right to survive a guilty plea.” (Majority mem, at 905 [citation omitted].) The proposition that by a guilty plea a defendant relinquishes his right to object to matters within the trial process necessarily presupposes the validity of the basic process. In such case the choice given the defendant is reasonable — a plea or a fair trial. But the same cannot be said when the defendant is forced to elect between a guilty plea and running the substantial risk of improper conviction at the hands of a racially unbalanced jury in a criminal process which is fundamentally flawed. Then the defendant has not had true freedom of choice. To hold that his guilty plea deprives him of the right to challenge the core illegality which destroys the validity of the basic process is neither reasonable nor just. A choice between a guilty plea and an inherently unfair trial is no choice at all.

Accordingly, I would reverse the order of the Appellate Division and remit the case to that court for a de novo consideration of defendant’s claim.

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

Order affirmed in a memorandum.

      . (See, North Carolina v Alford, 400 US 25.) A defendant may voluntarily, knowingly and understandingly enter a plea of guilty even though unwilling or unable to admit participation in the acts constituting the crime, as long as the State demonstrates a strong factual basis for the plea. (See, 2 LaFave & Israel, Criminal Procedure § 20.4 [f], at 653-655.)

      . The Federal test for determining whether a claim must survive a guilty plea is subject to various interpretations (see, Saltzburg, Pleas of Guilty and the Loss of Constitutional Rights: The Current Price of Pleading Guilty, 76 Mich L Rev 1265; Westen, Forfeiture by Guilty Plea—A Reply, 76 Mich L Rev 1308; 2 LaFave & Israel, Criminal Procedure § 20.6, at 676-682). But, in a long series of decisions, the Supreme Court has made clear that the racially discriminatory exercise of peremptory challenges requires the reversal of a conviction, regardless of how validly or strongly a defendant’s factual guilt has otherwise been established (see, e.g., Batson v Kentucky, 476 US 79, 100; Whitus v Georgia, 385 US 545, 549-550; Eubanks v Louisiana, 356 US 584, 589; Hernandez v Texas, 347 US 475, 477, 482; Patton v Mississippi, 332 US 463, 469; Hill v Texas, 316 US 400, 406). Indeed, the court explicitly held, in Hill v Texas (supra), that factual guilt is irrelevant where there is racial discrimination in the selection of a jury: "no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty.” (316 US, at 406.)

      . The Supreme Court had expressed similar views in Carter v Jury Commit. (396 US 320). There it said: "Defendants in criminal proceedings do not have the only cognizable legal interest in nondiscriminatory jury selection. People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion. * * * The exclusion of Negroes from jury service because of their race is 'practically a brand upon them * * * an assertion of their inferiority * * That kind of discrimination contravenes the very idea of a jury” (id., at 329-330 [emphasis added] [nn omitted]).


text:
    In the Matter of Emily Fine, Claimant, v S.M.C. Microsystems Corporation et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued February 13, 1990;
    decided March 29, 1990

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Theresa E. Wolinski, O. Peter Sherwood, Peter H. Schiff and Jane Lauer Barker of counsel), for appellant.

      Alan R. Com for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the decision of the Workers’ Compensation Board reinstated.

Claimant sought workers’ compensation benefits in connection with the death of her husband. The employer contested the claim on the ground that the off-employment-site injury was not incurred in the course of employment. Decedent was an engineer laboratory technician whose duties included drawing up schematics to specifications and ordering and repairing components needed by other engineers. He had suffered two heart attacks in the year prior to the accident and, as a consequence, had set up a separate work area at home. Testimony was adduced before the Board that he sometimes worked at home on weekends to complete assignments in a timely fashion. On the Saturday of the accident, the employee drove to his regular employment place and then telephoned his wife to inform her he was returning home to complete his work. On his way home, he was in a car accident and died two days later from the resultant injuries. Significantly, the employee’s supervisor testified that work done by the employee at home inured to the benefit of the employer and that he had permitted the employee to work at home in the past.

The Workers’ Compensation Board accepted the premise that the employee had a known and ratified second workplace in his dwelling, so that the injuries sustained while traveling home from the primary workplace were compensable. The Appellate Division reversed and dismissed the claim, concluding that although the employee performed work at home with his employer’s knowledge and permission on four occasions following the previous heart attacks, there was no proof in the record that he "regularly performed work at home with the employer’s permission and to its benefit.” (147 AD2d, at 751.) Two Justices dissented and, on the Board’s appeal as of right (CPLR 5601 [a]), we reverse because the Board’s decision was supported by substantial evidence within the framework of the well-settled rule of Matter of Hille v Gerald Records (23 NY2d 135).

The risk of travel to and from the workplace is not usually in the course of the employment itself, and injuries sustained in accidents occurring during such commuting are generally not compensable (Matter of Greene v City of New York Dept. of Social Servs., 44 NY2d 322). At-home work and commuting between home and employment may, however, qualify when it is "either a specific work assignment for the employer’s benefit at the end of the particular homeward trip or so regular a pattern of work at home that the home achieves the status of a place of employment.” (Matter of Hille v Gerald Records, 23 NY2d, supra, at 138.)

There was substantial evidence before the Board for it to exercise its exclusive fact-finding function, based on the facts adduced and inferences drawn from them, and to conclude that here the injuries arose out of or in the course of employment (id.; Matter of Axel v Duffy-Mott Co., 47 NY2d 1, 6).

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

Order reversed, etc.


text:
    Congregation Gates of Prayer of Far Rockaway, Appellant, v Peninsula Improvement Corporation et al., Respondents. John Miller, Intervenor-Respondent.
    Submitted February 26, 1990;
    decided March 29, 1990
   Motion for a stay dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion because no appeal or motion for leave to appeal is pending before the Court of Appeals (CPLR 5519).

Judge Bellacosa taking no part.


text:
    Thomas G. Dignan, Plaintiff, v Jean C. Dignan, Appellant. Nixon, Hargrave, Devans & Doyle, Nonparty Respondent.
    Submitted February 20, 1990;
    decided March 29, 1990
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals §46, at 202-203).


text:
    The People of the State of New York, Respondent, v Elias Barrientos Sirno, Appellant.
    Submitted February 5, 1990;
    decided March 29, 1990
   Motion to vacate January 9, 1990 order dismissing the appeal herein granted. [See, 75 NY2d 809.]


text:
    Terry Quinn, Appellant, v City of New York et al., Respondents.
    Submitted February 26, 1990;
    decided March 29, 1990
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of David T., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued February 15, 1990;
    decided April 3, 1990
    APPEARANCES OF COUNSEL

      Marcia Egger and Lenore Gittis for appellant.

      Victor A. Kovner, Corporation Counsel (Jane S. Earle and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the adjudication set aside and the Family Court petition dismissed.

On April 14, 1988, a juvenile delinquency petition was filed alleging that the appellant, David T., committed acts which if done by an adult, would constitute criminal mischief in the fourth degree (Penal Law § 145.00 [1]) and reckless endangerment in the second degree (Penal Law § 120.20) in that he intentionally damaged a motor vehicle belonging to another and operated the vehicle in an erratic manner at an excessive speed, creating a substantial risk of serious physical injury to others. The police officer’s supporting deposition states: "On information and belief the [appellant] was driving in an apparently stolen vehicle — 1984 white Trans Am — License Plate Number QFN 288 — driving in an erratic manner at an excessive speed creating a substantial risk of serious physical injury to others. I observed the [appellant] * * * fleeing from a 1984 white Trans Am — License plate number QFN 288. I observed that the steering column was broken and that there were no keys in the ignition. I observed that the passenger door key lock was broken and that the right front tire was gone. The value of the car is over $3,000.”

After a hearing the Family Court sustained the charges and the Appellate Division affirmed. The juvenile has appealed claiming that the petition is jurisdictionally defective because it fails to meet the requirements of Family Court Act § 311.2 (3).

The statute provides that the petition is sufficient when the "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof’ (Family Ct Act § 311.2 [3]). Here the nonhearsay portion of the officer’s deposition establishes only that he saw the appellant walk away from the car and observed that the car was damaged. Although the petition further alleges that the appellant was seen driving the vehicle in a dangerous manner, these allegations are supported only by hearsay, which is inadequate under the statute.

We held in People v Alejandro (70 NY2d 133) that an omission of this nature in a criminal information renders the accusatory instrument jurisdictionally defective. There we noted that the applicable statute (CPL 100.15 [3]) explicitly required that "every element of the offense charged and the defendant’s commission thereof must be supported by non-hearsay allegations”, and that the information served a "unique function” because it was the "sole instrument upon which the defendant could be prosecuted” (People v Alejandro, supra, at 137, 138).

That decision is applicable here. Although respondent notes that CPL 100.15 (3) also requires that the factual allegations be of an evidentiary nature and that the Family Court Act expressly provides that this is not necessary (Family Ct Act § 311.1 [3] [h]), the Family Court Act still requires that the petition be supported by facts of a nonhearsay character (Family Ct Act § 311.2 [3]). Because this requirement is found in both CPL 100.15 (3) and Family Court Act § 311.2 (3), and both the criminal information and the Family Court petition serve the same purpose as the sole instrument of prosecution or adjudication, the failure to comply with the statutory requirement here must be deemed a nonwaivable jurisdictional effect.

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

Order reversed, without costs, adjudication set aside and petition dismissed in a memorandum.


author: Alexander, J.

text:
    The People of the State of New York, Respondent, v Stephen Rice, Appellant.
    Argued February 9, 1990;
    decided April 3, 1990

      APPEARANCES OF COUNSEL

      Kerry Elgarten and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Lisa M. Loscalzo and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

According to the complainant, on a bright, sunny afternoon in August 1986, she left her Manhattan apartment to visit her grandson and, after waiting a short time for a bus, decided to walk. She was proceeding down a ramp when she was approached from behind by defendant, who placed his hands on her shoulders and turned her around to face him; his trousers were open and he told her, "I’m going to have sex with you.” After threatening to beat her, defendant led the complainant down an embankment and raped her, repeatedly reminding her not to look at him. Defendant then returned to the top of the embankment, where he waited for the complainant and spoke with her. He fled after picking up his blue-green knapsack, from which he removed a tattered manila envelope. During the incident, which took 20-25 minutes, the complainant kept her eyes focused on defendant.

When she later encountered a patrol car, the complainant reported that she had been raped and fully described her assailant, including the knapsack, to the police. Two weeks later, she immediately picked the defendant out of a lineup; he was at that time in possession of both the blue-green knapsack and the manila envelope, which the complainant identified. She also identified the defendant at trial; at trial, additionally, three police officers related the description the complainant had given them, adding nothing to her account.

The major contention advanced by defendant on this appeal is that it was reversible error to admit the testimony of the complainant and police officers concerning a description of the perpetrator given by the complainant to the police immediately after the rape. Defendant argues that this testimony was inadmissible hearsay and improper bolstering through introduction of prior consistent statements.

We do not agree with defendant that such testimony is never admissible under any theory (see, People v Huertas, 75 NY2d 487 [decided today]). We do agree, however, that it was not properly received as evidence of the victim’s prompt outcry — the ground advanced by the People at trial. Evidence that the victim of a sexual attack promptly complained of the crime has long been deemed admissible as an exception to the hearsay rule, the premise being that prompt complaint was "natural” conduct on the part of an "outraged female,” and failure to complain therefore cast doubt on the complainant’s veracity; outcry evidence was considered necessary to rebut the adverse inference a jury would inevitably draw if not presented with proof of a timely complaint (Richardson, Evidence § 292 [Prince 10th ed]; see also, Note, A Matter of Time: Evidence of a Victim’s Prompt Complaint in New York, 53 Brooklyn L Rev 1087 [1988]).

Most of the evidence admitted on the theory of prompt outcry was, as defendant objected, clearly beyond the scope of the exception. As is apparent from its rationale, the exception permits evidence that a timely complaint was made. It does not allow the further testimony concerning details of the incident that was given here. Such testimony goes beyond the limited purpose of the exception, which is simply to show that a complaint was made (People v Deitsch, 237 NY 300; Baccio v People, 41 NY 265).

We conclude, however, that although it was error to admit the description testimony under the prompt outcry exception, the error does not warrant reversal. The complainant’s identification of defendant was strong, and consistent with her trial testimony concerning the rapist’s appearance. The rape took place in broad daylight and lasted almost half an hour. The complainant and the defendant were face-to-face during that time, and she again viewed him in broad daylight when he waited for her and spoke to her. When defendant was later arrested, he was carrying the knapsack containing the tattered manila envelope, which the complainant immediately recognized after identifying defendant in a lineup.

Given this overwhelming evidence of defendant’s guilt, there was no significant probability that the erroneously admitted testimony contributed to the jury’s verdict (People v Crimmins, 36 NY2d 230, 242). We are similarly unpersuaded that the verdict was affected by the fact that the complainant testified — over defendant’s objection — that when she saw defendant’s knapsack and the manila envelope, she told a detective that she recognized them, rather than giving that very same testimony in nonhearsay form.

Defendant’s remaining claims are without merit. It was not an abuse of discretion for the trial court to rule that evidence of defendant’s height would be limited to permitting defendant to stand for the jury to observe. Since the complainant had testified about the rapist’s height relative to her own, this form of evidence on the point was probative of the issue. Defendant’s allegations of prejudice resulting from the delayed disclosure of certain Rosario material relate primarily to its effect on the introduction of the "prompt outcry” testimony discussed above, and we have already concluded that this evidence does not require reversal. Finally, the only remedy requested — indeed demanded — by defense counsel for the inadvertent destruction of a police tape containing a radio transmission of the rapist’s description was an immediate mistrial, and the court did not abuse its discretion in denying that drastic remedy (see, People v Kelly, 62 NY2d 516).

Alexander, J.

(dissenting). I cannot agree that the improperly admitted hearsay testimony of three police officers who repeated the description given to them by the complainant can be considered harmless error in this one-witness identification case. Accordingly, I respectfully dissent and vote to reverse and remit for a new trial.

The trial evidence established that sometime after she left her home at 2:00 p.m. on August 14, 1986, the complainant walked down a ramp from a crosswalk over the Major Degan Expressway and was grabbed from behind by a man. The man forced her down an embankment into some bushes near the ramp and raped her there. The entire attack lasted approximately 20-25 minutes, after which the complainant climbed back up the embankment where she saw the man leave with a blue-green knapsack and a tattered manila envelope.

The People’s case against defendant consisted of the testimony of four police officers as well as that of the complainant. It was only the complainant, however, who allegedly saw defendant at the scene of the crime and thus it was only the complainant who could identify him. Yet before she testified, the People improperly introduced hearsay testimony through three police officers that on the date in question, the complainant reported that she had been raped and described her attacker to them. The officers were further permitted to testify, over repeated defense objections, to the details of the descriptions. Thus, Officer Frank Bettis testified that while he was on patrol with his partner, Officer Iris Ballester, they responded to a radio run and observed the complainant in the back seat of a patrol car. Bettis testified that the complainant told him that she had been raped and that the complainant told both Bettis and Ballester that the perpetrator was a black male in his early twenties, taller than she was, approximately 150 pounds, with a light beard, wearing a blue shirt and black pants and with a bluish green knapsack and a manila envelope. Bettis was also permitted to testify to the complainant’s description of the scene of the crime.

The prosecution’s next witness was Officer Ballester, who was permitted, again over defense objection, to repeat the same description that the complainant had given both Bettis and Ballester.

The third witness permitted to testify to the complainant’s description of her attacker was Police Officer Bruce Jackson. Jackson testified that at 4:20 p.m. on the date of the incident the complainant ran up to his car crying for help and saying that she had been raped. As with Officers Bettis and Ballester, Jackson was also permitted to testify, over defense objection, to the description given to him by complainant. According to Jackson, the complainant described her attacker as wearing black pants and a short-sleeved blue shirt and that he had a beard and carried a blue-green knapsack.

It was only after the admission of all this testimony that the complainant was called to testify. She testified that although the attack occurred in mid-afternoon on a bright day and lasted for a 20-to-25-minute period, her assailant repeatedly ordered her not to look at him and that she could not take her eyes off the man’s eyes throughout the attack. She then described her attacker as a black man, approximately 20 or 22 years old, who had short hair, a moustache, and a "beard-like” and was well-groomed. The complainant further testified that he wore a blue T-shirt, black khaki pants and burgundy, brief-style underwear. Additionally, the complainant testified that she had previously identified the defendant in a lineup and also made an in-court identification. On cross-examination, defense counsel established that the complainant was extremely upset as a result of the incident, that she became hysterical when reporting the rape and describing her attacker and when she viewed the lineup more than two weeks later. Defense counsel also sought to establish the unreliability of her identification by demonstrating inconsistencies in her statements as to the assailant’s height and his beard.

As this review of the trial evidence makes clear, the People’s case hinged upon the complainant’s ability to identify the defendant as her attacker. Indeed, defendant was not arrested at the scene or even on the day of the crime. It was only the complainant’s testimony that could link him to the crime. The complainant’s trial testimony as to her attacker’s description was not particularly detailed, but, whatever its weaknesses, by the time the jury heard the complainant’s testimony, its reliability had been established by the prior repetition of her description by three police officers. As we recognized in People v Trowbridge (305 NY 471, 477), "[nothing need be said here to emphasize the nature of a conviction based only upon identification testimony such as present here —especially where identity is based upon brief observation by a single witness and where there is no proof of the [crime] except the testimony of the same single witness. We would be reluctant to say in such a case that any error which is apt improperly to enhance the weight of such testimony is a technical one which may be disregarded.” Here, it is inconceivable that description evidence, which the majority concedes was erroneously admitted, did not bolster the complainant’s own identification testimony and therefore contribute to the verdict.

Accordingly, I dissent and vote to reverse. The defendant is entitled to a new trial.

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

Order affirmed in a memorandum.

       Our recognition that such testimony may be admissible of course does not constitute a holding that four witnesses may give this identical evidence (see, People v Ventimiglia, 52 NY2d 350, 356; People v Fogel, 97 AD2d 445, 446).


text:
    The People of the State of New York, Respondent, v Wayne Falciglia, Appellant.
    Decided April 3, 1990

      APPEARANCES OF COUNSEL

      Barbara F. Branch and Alvin L. Spitzer for appellant.

      Robert T. Johnson, District Attorney (Terence J. Sweeney of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As the Appellate Division properly concluded, defendant was not entitled to a missing witness charge (see, People v Gonzalez, 68 NY2d 424). The issue of reasonable suspicion is a mixed question of law and fact and, inasmuch as there is evidence in the record to support the lower courts’ determination, this court’s review is at an end (see, People v Castro, 70 NY2d 943, 945). Defendant’s remaining arguments are unpreserved.

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

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


text:
    The People of the State of New York, Appellant, v Leslie Lubanski, Respondent.
    Argued March 20, 1990;
    decided April 3, 1990
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Richard F. Bett, Respondent, v City of Lackawanna et al., Appellants.
    Submitted February 13, 1990;
    decided April 3, 1990
   Motion for leave to appeal granted. Cross motion for sanctions denied.


text:
    Robert Boasberg, Doing Business as Buffalo Industrial Park, Respondent, v Weyerhaeuser Company, Appellant.
    Submitted January 16, 1990;
    decided April 3, 1990
   Motion insofar as it seeks leave to appeal from the order of the Appellate Division dismissing the appeal from the order of Supreme Court of March 17, 1989 settling the record on appeal, dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    J.R.S., Appellant, v P.J.S., Respondent.
    Submitted February 13, 1990;
    decided April 3, 1990
   Motion insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the grant of summary judgment awarding defendant a divorce denied; motion otherwise dismissed upon the ground that the remainder of the order of the Appellate Division does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Patrick Marino et al., Appellants, v Pearle Appelman, as a Justice of the Supreme Court, et al., Respondents.
    Submitted February 13, 1990;
    decided April 3, 1990
   Motion of petitioners Patrick Marino and Paul McDonald for leave to appeal dismissed as moot. Motion of remaining petitioners for leave to appeal denied.


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Domingo Gonzales, Appellant.
    Argued February 15, 1990;
    decided April 5, 1990

      APPEARANCES OF COUNSEL

      William J. McClusky for appellant.

      Gary W. Miles, District Attorney (Cindy F. Intschert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested for the fatal stabbing of a fellow inmate at the Watertown Correctional Facility. Before arraignment, a local Spanish teacher was appointed to act as interpreter for defendant, whose English is limited, and she translated the Miranda warnings, which defendant indicated he understood. Defendant was not questioned by anyone. At some point during the arraignment proceedings, after the Town Justice had spoken, defendant inquired in Spanish if he could ask her something. Believing that defendant had a question about the Justice’s last statement, the translator said yes without consulting the court. To her surprise, defendant then said, in Spanish, that he had a nervous condition, that he did not realize he had killed the man, and that he was guilty. The translator immediately informed the court of defendant’s statement.

Defendant’s right to counsel had attached at his arraignment, and any statement he made was inadmissible unless he had waived his right to counsel in the presence of counsel (People v Samuels, 49 NY2d 218) or, as the lower courts found in this case, the statement was spontaneously volunteered and not the result of “inducement, provocation, encouragement or acquiescence” (People v Maerling, 46 NY2d 289, 302-303).

Defendant has not established his contention — required in order for him to succeed on this appeal — that the statement he made was not spontaneous as a matter of law. Rather, there is support in the record for the undisturbed finding that defendant’s statement was spontaneous, wholly self-generated, and not the result of any inducement (People v Anderson, 42 NY2d 35, 38-39). Defendant initiated the exchange, and the translator’s response, based on the reasonable belief that defendant merely wanted clarification of what she had just said, was neither intended nor objectively likely to elicit an inculpatory statement from defendant, who had been fully advised of his Miranda rights. Indeed, we have found sufficient support for a determination of spontaneity in circumstances where a police officer engaged in a far more extensive dialogue with the defendant than the bare permission to speak given by the translator here (see, People v Lynes, 49 NY2d 286 [following arraignment, defendant asked police officer if he could speak to him]).

This case is by no means the first time that a defendant has been found to have made a spontaneous inculpatory statement after the indelible right to counsel has attached (as only a few of many examples see, People v Lynes, supra; People v Roucchio, 52 NY2d 759; People v Rivers, 56 NY2d 476; People v Ellis, 58 NY2d 748). We tread no new ground at all in today’s decision, and we in no way retreat from our recognition of the important rights accorded to a defendant upon the filing of formal criminal charges.

The novel rule is the one urged by defendant and the dissenter, requiring that we turn a deaf ear to admissions made by a defendant upon passing into the "authoritarian yet sanctuarial enclave of a court” (dissenting opn, at 943) though such admissions have been found by two courts to have met our already stringent requirements for spontaneous statements. This we decline to do. We have not previously established a requirement that a defendant affirmatively be stopped from making an inculpatory statement, and we see no reason to depart from our precedents to do so on these unusual facts.

Bellacosa, J.

(dissenting). The accused was an uncounseled incarcerated State felon unable to understand or speak English. As he was formally arraigned before a Judge in a State correctional facility on a new criminal charge committed in prison, he was "authorized” by an agent of the State — an ad hoc Spanish interpreter — to make an inculpatory statement in open court and on the record. After a suppression hearing, that statement was held admissible in evidence and a guilty plea followed. This person, facing the formal initiation of a criminal prosecution, was entitled to and needed all the protection our Constitutions, statutes and cases so assiduously confer on him. Yet the violation of this accused’s right to counsel with respect to the use of his statement is being excused, because this otherwise inadmissible evidence is characterized as a spontaneous, voluntary utterance.

I respectfully dissent and vote to reverse and suppress.

The spontaneous utterance exception (see, e.g., People v Lynes, 49 NY2d 286) is a gossamer sliver in the formidable counsel wall. It has never before been applied to an utterance made in a threshold judicial setting where a primary responsibility is the judicial advisement of rights, especially the central counsel right itself (CPL 180.10 [3]). The embellishment of the scene in this case is the agent of the State telling the uncomprehending accused to go right ahead and speak. If this accused had spontaneously uttered his question in English in this setting, there cannot be the slightest doubt of the arraigning Judge’s required response: "Do not say anything without your counsel present, to which, by the way, you have an absolute right at this accusatory/arraignment stage of this criminal proceeding and which I have an additional obligation to provide to you.” (See, CPL 180.10 [4], [5]; People v White, 56 NY2d 110, 112.)

Therefore, I conclude that this accused in these circumstances was legally incapable of providing a voluntary uncounseled statement. The invocation of the spontaneous utterance exception in such a setting converts the sliver in the counsel wall into a significant aperture. This is a difference in kind, not in degree, from the few exceptional applications of this subsidiary rule. It is, as I see it, the rule of law itself which is transformed. The undisturbed findings rationale cannot insulate this violation of the accused’s desperately needed and perfectly appropriate right not to have statements used against him without his counsel having been present or provided at his arraignment.

I agree that an accused may blurt out a statement in any language in a court or anywhere else which may rightly qualify as an admissible spontaneous utterance under our existing rules. However, no matter in what language a question is posed by any accused, that accused who asks permission to speak up in court at an arraignment, as here, should receive an equal response before the law: "No. Not without your counsel present.” If before or after that warning an accused nevertheless unilaterally chooses to make an admission, we shall have to confront and decide that quite different case when it arises (see, People v White, 56 NY2d, supra, at 112).

A major flaw, as I understand it, in this case is that the majority, in order to allow the spontaneous utterance justification, necessarily concludes that the translator neither intended nor anticipated the accused’s inculpatory remarks when she authorized him to speak. This reasoning relaxes the rigors of the spontaneity exception for uncounseled statements made by accuseds incapable of direct communication with a court and disadvantages those charged and compelled to rely on nonlawyer intermediaries when "directly confronted with the awesome law enforcement machinery possessed by the State” (People v Cunningham, 49 NY2d 203, 207). The interposition of a translator even giving an accused only "bare permission” (majority mem, at 940) to speak in a courtroom cannot lessen the court’s responsibility for safeguarding the rights of the accused in the unique, initial confrontation between the accused and the judicial system itself (see, e.g., CPL 180.10 [4], [5]). Rather, I see that responsibility as heightened.

Moreover, inasmuch as the Sixth Amendment right to counsel is implicated here, the Miranda case and its warnings having to do with only Fifth Amendment violations are irrelevant. The custodial and formal accusatory categories are quite distinct (Brewer v Williams, 430 US 387, 397-398) and, in any event, would suffer the same inconsequentiality here because Miranda warnings have no bearing on spontaneous utterances, and even with them there can be no cognizable waiver without counsel being present (People v Hobson, 39 NY2d 479, 484).

However, this aspect of the discussion is academic as we all agree that the accused could not and did not waive his right to counsel. That right indelibly attached since a criminal prosecution was begun against him. Inasmuch as we have held that waiver in such circumstance is a legal impossibility (see, People v Samuels, 49 NY2d 218), the rationale of this case for the first time applies the spontaneous utterance exception to the indelibly attached counsel right in a courtroom, where the express statutory safeguards tug in the opposite conclusion (CPL 180.10). As to whether it should apply in this case, we differ. I do not consider my approach "novel” by proposing that the neutral courtroom setting and judicial process should guarantee full and equal protection under the pertinent right to counsel rules. Indeed, the majority agrees with me in that respect, but the special protection regrettably failed to materialize in this case. Instead, the majority’s nuanced change in the application of the exception inappropriately extends the law enforcement investigatory room into the courtroom for the accused’s judicial arraignment and provides the prosecution with an evidence-gathering bonus.

People v Lynes (49 NY2d 286, supra) must be contrasted with the Samuels line of cases and the instant case, as they are sharply different. In Lynes, an inculpatory statement was deemed spontaneous because "[t]he defendant himself initiated the conversation and the [police] officer’s response [in a correctional custodial setting, not a court arraignment] need not have been viewed as one designed to elicit some further reply by the defendant.” (Id., at 294.) Here, an accused in the preserve of the court itself asked to speak through the State’s agent. The translator’s direct permission to the accused — instead of asking the court for instructions as to how to respond —must be chargeable to the State and not to the accused in this situation. There can be no doubt in this circumstance that the accused’s statement after the translator’s authorization— necessarily "designed to elicit some further reply by the defendant” — is forbidden under two of the four categories of People v Maerling; it was "the result of * * * encouragement or acquiescence” (46 NY2d 289, 302-303 [emphasis added]).

The majority of law-abiding citizens usually are content with the mere words of their constitutional protections, especially the counsel right, because most rarely find themselves in critical situations where counsel is needed. On the hard specific application, however, this accused’s status as an incarcerated felon, being newly charged, cries out for action, not words. The authoritarian yet sanctuarial enclave of a court should warrant heightened vigilance, not the expansion of an exception to so fundamental a right.

The statement should have been suppressed and the prosecution’s case put to its proof without the evidentiary acquisition at the arraignment.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Paul V. S., Appellant.
    Argued March 28, 1990;
    decided April 5, 1990
    APPEARANCES OF COUNSEL

      Charles F. Crimi, Jr., and Joseph P. Crimi for appellant.

      Robert C. Noonan, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The evidence at trial, when viewed in the light most favorable to the People (see, People v Malizia, 62 NY2d 755, cert denied 469 US 932), is sufficient to support the jury’s verdict finding defendant guilty of criminally negligent homicide for failing to perceive a substantial and unjustifiable risk that death would result from his operation of a motor vehicle when that failure was a gross deviation from the ordinary standard of care (see, Penal Law §§ 125.10, 15.05 [4]; People v Ricardo B., 73 NY2d 228, 236). Defendant was driving at least 90 miles per hour in a 55 miles per hour speed zone and was aware that he was traveling through a police radar area. He saw "a line of traffic backed up ahead in the Thruway” with cars halted on the side of the road. Although warned by his passenger to slow down, he accelerated his vehicle and ultimately struck and killed a State Trooper. Unlike People v Boutin (75 NY2d 692 [decided today]), there is ample evidence in this case that defendant engaged in "criminally culpable risk-creating conduct” (People v Boutin, at 697).

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

Order affirmed in a memorandum.


text:
    In the Matter of Jeffrey M. Duban, Appellant, v State Board of Law Examiners et al., Respondents.
    Submitted March 19, 1990;
    decided April 5, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Donald D. Goldberg et al., Appellants, v James P. Corcoran, Respondent.
    Submitted January 29, 1990;
    decided April 5, 1990
   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:
    The People of the State of New York, Appellant, v Dwayne Rowe, Respondent.
    Argued March 23, 1990;
    decided April 26, 1990

      APPEARANCES OF COUNSEL

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

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

Order affirmed for reasons stated in the memorandum at the Appellate Division (152 AD2d 907).

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


text:
    In the Matter of the Claim of Helen Collier, Claimant, v Brightwater Beer & Soda Distributor et al., Respondents, and Special Fund for Reopened Cases, Appellant. Workers’ Compensation Board, Respondent.
    Argued March 29, 1990;
    decided April 26, 1990

      APPEARANCES OF COUNSEL

      Morris N Lissauer for appellant.

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

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (147 AD2d 868; see also, Matter of De Mayo v Rensselaer Polytech Inst., 74 NY2d 459).

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


text:
    The People of the State of New York, Respondent, v Luke Wandell, Appellant.
    Argued March 23, 1990;
    decided April 26, 1990

      APPEARANCES OF COUNSEL

      Thomas E. Reilly for appellant.

      James T. Hayden, District Attorney (Weeden A. Wetmore and Margaret C. Drake of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant argues that, in the absence of a knowing waiver, he was denied effective assistance of counsel due to his defense counsel’s concurrent representation of the prosecution’s primary witness on an unrelated civil matter (see, People v Gomberg, 38 NY2d 307; People v Macerola, 47 NY2d 257). Under the unique circumstances presented we conclude that there should be a reversal.

As a threshold, the principles of People v Gomberg (supra) and People v Macerola (supra) apply to the potential conflicts that arise from a defense counsel’s representation of an important prosecution witness, as well as to counsel’s representation of a codefendant (see, e.g., People v Lombardo, 61 NY2d 97, 102 [representing defendant and People’s chief witness]; People v McDonald, 68 NY2d 1 [representing defendant and victim]). Additionally, both the prosecution and defense counsel are under a mandatory affirmative obligation both to recognize the existence of a potential conflict and to alert the court to the facts and circumstances surrounding that potential conflict (see, People v McDonald, supra, at 8), so that the Trial Judge can conduct a record inquiry and be satisfied that the defendant "has an awareness of the potential risks involved in that course and has knowingly chosen it” (People v Gomberg, supra, at 313-314; see, People v Macerola, supra, at 262-263; People v McDonald, supra, at 8-9). This inquiry is vital "because defendants may not always sense when a conflict exists or perceive how it might undermine effective representation” (People v Mattison, 67 NY2d 462, 468). None of these things were done in this case.

Here, both defense counsel and the prosecution were acutely aware that a conflict existed by virtue of defense counsel’s representation of the prosecution’s chief witness (see, e.g., People v Lombardo, supra). Their failure to bring the underlying facts to the court’s attention is inexcusable. Having previously been personally responsible for a reversal because of a similar omission, both the District Attorney and defense counsel were undoubtedly aware of their duty to alert the court to the need for a Gomberg inquiry (see, People v Mattison, 67 NY2d 462, supra). Under these circumstances, a reversal and new trial are required.

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

Order reversed, etc.


text:
    In the Matter of King Service, Inc., Doing Business as King Fuels, Appellant, v Town Board, Town of Malta, Respondent.
    Argued March 20, 1990;
    decided April 26, 1990

      APPEARANCES OF COUNSEL

      Richard P. Walsh, Jr., and Mary Elizabeth Slevin for appellant.

      Earl Steenburg for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (149 AD2d 806).

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


text:
    Maria Wojcicki, Appellant, v Elbert Enterprises et al., Defendants, and Finkelstein Realty Inc., Respondent.
    Submitted March 22, 1990;
    decided April 26, 1990

      APPEARANCES OF COUNSEL

      Edward P. Dunphy for appellant.

      William E. Fay, III, for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (153 AD2d 481).

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


text:
    Daniel H. Siroty, Appellant, v Richard Nelson et al., Defendants, Dry Dock Savings Bank, Respondent, and United States Fidelity and Guaranty Company, Appellant. (And a Third-Party Action.) (And Another Action.)
    Argued February 13, 1990;
    decided April 3, 1990

      APPEARANCES OF COUNSEL

      Frank C. McLaughlin, Jr., and Thomas Pietrantonio for United States Fidelity and Guaranty Company, appellant.

      Michael F. Close for Daniel H. Siroty, appellant.

      Regina M. Sarnese for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the motion of USF&G for summary judgment on its cross claim against Dry Dock granted, the motion of plaintiff Siroty for summary judgment against Dry Dock granted, and Dry Dock’s cross motion for summary judgment dismissing Siroty’s complaint and the cross complaint of USF&G against Dry Dock denied.

Appellants Daniel Siroty and United States Fidelity and Guaranty Company (USF&G) maintain that respondent Dry Dock Savings Bank’s (Dry Dock) failure to comply with Supreme Court’s order discharging Dry Dock as a stakeholder in a dispute between Siroty and Joseph Flaum resulted in the misappropriation of the disputed funds by Richard F. Nelson, Esq., the court-appointed fiduciary. Pursuant to the court-ordered discharge, Nelson received a check from Dry Dock which he deposited in his escrow account. However, Nelson subsequently withdrew the funds and lost them gambling. We agree with appellants’ contention that Dry Dock’s failure to comply with Supreme Court’s discharge order renders Dry Dock jointly and severally liable for Nelson’s misappropriation of the funds.

The discharge order provided the conditions under which Dry Dock would be removed from its position as stakeholder and absolved from liability to both Siroty and Flaum for the disputed funds (see, CPLR 1006 [f]). Specifically, the order required Dry Dock to execute a check in the amount of $70,000 payable to Richard F. Nelson, Esq. Additionally, the second paragraph of the order further required that the funds were to be deposited in an interest-bearing account "subject to the further order or judgment of this Court”. Finally, the third paragraph of the order made clear that Dry Dock would be absolved from liability only upon the happening of the contingency specified in the third paragraph of the discharge order. As found by the Surrogate’s Court, the requirements in the second paragraph were not satisfied.

First, Dry Dock issued a check to Nelson in the amount of $75,984.71 knowing that Nelson had been bonded by USF&G for only $70,000, and choosing to ignore the inadequacy of the bond. Second, Dry Dock simply mailed the check to Nelson, and never ascertained whether the funds had been properly placed in an interest-bearing account as required by the order. Finally, in direct violation of the discharge order, Dry Dock failed to state on the face of the check that the funds had been paid to Nelson "subject to the further order or judgment of this Court” (emphasis supplied). In this regard, we disagree with both Dry Dock’s and the dissent’s interpretation of the order, and the contention that the language contained in the second paragraph of the order was merely a direction to Nelson in his capacity as fiduciary as opposed to the imposition of a further obligation on Dry Dock.

Because of Dry Dock’s complete failure to perform the conditions precedent imposed by the discharge order, pursuant to the third paragraph of the order, Dry Dock was never relieved of its liability to Siroty and, consequently, under the circumstances presented, is liable for Nelson’s defalcation. By failing to comply with the order, Dry Dock released the funds to Nelson at its own peril.

Finally, the dissent’s reliance on Matter of Knox (64 NY2d 434) and Brown v Flushing Fed. Sav. & Loan Assn. (112 AD2d 185) is misplaced. Unlike the instant case, neither of those cases involved the failure of the defendant bank to properly perform a court-imposed condition precedent in order to qualify for its discharge from liability. In addition, unlike the depository bank in Knox which was unaware of the court-imposed limitations on the fiduciary’s power to withdraw the funds, Dry Dock had actual knowledge of Nelson’s limitations but still drew a check to Nelson’s order in such a way that Nelson could easily treat the proceeds as his own (see, Bradford Trust Co. v Citibank, 60 NY2d 868; UCC 3-117, 3-304).

Alexander, J.

(dissenting). I cannot agree with the majority’s holding that Dry Dock is liable for the defalcations of Nelson. In my view, the order entered by Supreme Court on Dry Dock’s CPLR 1006 (f) application did not in fact, nor did it purport to, impose any duty on Dry Dock to assure that the funds comprising the stake be deposited in an interest-bearing account subject to the further order or judgment of the court. Rather, these directives imposed conditions on Richard Nelson, the attorney to whom Dry Dock was directed to pay the funds and whose defalcation caused the loss of the funds. Because I see no principled distinction between this case and our recent decision in Matter of Knox (64 NY2d 434), I dissent.

Dry Dock, as depositary of a joint account that had become the subject of litigation between appellant Daniel Siroty and Joseph Flaum, petitioned Supreme Court, pursuant to CPLR 1006 (f), to be discharged as stakeholder. The court granted the petition and directed that an order be settled. Dry Dock submitted an order providing that it pay into the court $70,000 with accumulated interest. The order further provided that payment of the money be made "to the Treasurer of the County of Nassau, to be disposed of in accordance with the further order or final judgment of this Court”. On signing the order, the court substituted Richard Nelson, Esq., for the Treasurer of the County of Nassau as the person to whom the money was to be paid by providing "that said payment shall be made to richard f. nelson, Esq., as attorney, 189 Sunrise .Highway, Rockville Centre, New York 11570 to be deposited in an interest bearing account subject to the further order or judgment of this Court and the filing of a bond in the said amount by richard f. nelson, Esq. with the Clerk of Nassau County.” Dry Dock issued its check to Richard Nelson for $75,984.71, representing the balance in the account plus accrued interest. Nelson deposited the money in his escrow account; he subsequently withdrew the money and lost it gambling.

Initially, I note that the majority’s assertion that Dry Dock failed to comply with the court’s order by paying Nelson $75,984.71, instead of only $70,000, ignores the fact that the court’s order obligated Dry Dock to pay any interest that had accumulated on the funds. Because there is no indication that the amount paid in excess of $70,000 represented anything other than interest, Dry Dock’s payment of this sum complied with its obligations under the court’s order.

It has been long settled that a bank has a right to presume that the fiduciary will apply to its proper purpose funds received in his or her fiduciary capacity (Clarke v Public Natl. Bank & Trust Co., 259 NY 285, 289). A bank is responsible for the fiduciary’s misuse of such funds only when the bank has notice or knowledge "not only that the moneys were received for a trust purpose but also that they were diverted from that purpose” (id.). Thus, we recently held that when dealing with a fiduciary, a bank has no duty to ensure that the fiduciary applies the funds to their proper purposes, unless the bank has independent notice or knowledge that a diversion is intended or is being executed (Matter of Knox, 64 NY2d 434, 437, supra). Because there is no indication that Dry Dock had reason to suspect the court-appointed fiduciary would be untrue to his trust, it was entitled to presume that he would apply the funds to the proper purposes of the trust.

The majority’s imposition of liability on Dry Dock is bottomed on its conclusion that the court’s order imposed a duty on Dry Dock to indicate on the check issued to Nelson that his use of the funds was limited by that court order. The directions of the order addressed to Dry Dock, however, were simply to make "payment * * * to richard f. nelson, Esq., as attorney”. The provisions of the order directing that the money was "to be deposited in an interest bearing account subject to the further order or judgment of this Court and the filing of a bond in the said amount by richard f. nelson” were addressed to Nelson and pertained to his obligations as fiduciary. The depositing of the money in the appropriate account and providing of a bond in the required amount were actions required of Nelson, not Dry Dock. Since the order authorized Dry Dock to pay the stake to Nelson, which it did, it was not liable for Nelson’s subsequent misuse of the money.

Contrary to the majority’s conclusion, Matter of Knox (64 NY2d 434, supra) and Brown v Flushing Fed. Sav. & Loan Assn. (112 AD2d 185) are clearly controlling in this case. The majority purports to distinguish those cases on the premise that those banks did not fail to perform a court-imposed condition precedent, such as the majority discerns from the terms of this order. This analysis is flawed, however, because not only is no condition that Dry Dock place restrictive language on the check imposed by this order, but the bank in Knox was under a statutorily imposed duty to obtain from the fiduciary, a guardian ad litem, his letters of guardianship (Banking Law § 237) which would have apprised the bank of the limited scope of his authority. Notwithstanding the bank’s negligent failure in Knox to comply with its statutory duty, we absolved the bank of liability, concluding that "the bank is not the fiduciary’s guarantor” (Matter of Knox, 64 NY2d 434, 439, supra). No different result is warranted here.

Accordingly, I would affirm the order of the Appellate Division.

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

Order, insofar as appealed from, reversed, etc.

      . Upon Flaum’s death, the dispute was transferred to the Surrogate’s Court and has been pursued by Flaum’s estate.

      . The order provided in pertinent part:
      "ordered that said payment shall be made to richard f. nelson, Esq. as attorney, 189 Sunrise Highway, Rockville Centre, New York 11570 to be deposited in an interest bearing account subject to the further order or judgment of this Court and the filing of a bond in the said amount by richard f. nelson, Esq. with the Clerk of Nassau County * * *
      "ordered, that upon the deposit being made as aforesaid, the defendant dry dock savings bank, shall be absolved of any further liability.”


text:
    The People of the State of New York ex rel. Richard Graham, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, et al., Respondents.
    Submitted February 13, 1990;
    decided April 26, 1990
   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 poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Yesher Israel, Appellant.
    Argued March 27, 1990;
    decided May 1, 1990

      APPEARANCES OF COUNSEL

      Patrick Michael McKenna and Alan Schneier for appellant.

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

Order affirmed for reasons stated in the memorandum at the Appellate Division (148 AD2d 637).

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


text:
    The People of the State of New York, Respondent, v Adrober Garcia, Also Known as Androbar Garcia, Also Known as Androber Garcia, Appellant.
    Decided May 1, 1990

      APPEARANCES OF COUNSEL

      Barry Stendig and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

After a trial by jury, defendant was convicted of murder in the second degree (Penal Law § 125.25). He argues on this appeal that he was denied effective assistance of counsel because his counsel did not challenge the warrantless arrest, notwithstanding that the arrest was not premised on probable cause and was made in his place of residence absent exigent circumstances.

To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate the absence of strategic or other legitimate explanations for counsel’s failure to pursue "colorable” claims (People v Rivera, 71 NY2d 705, 709). At a CPL 440.10 hearing, defendant’s trial attorney offered sound reasons for not challenging the arrest. He testified he did not argue to suppress defendant’s statements as the fruits of an arrest without probable cause because, after investigation, he concluded the police had probable cause to take defendant into custody. In addition, trial counsel believed, because of personal knowledge to the contrary, that a claim that the brothel where the arrest occurred was defendant’s home was not viable or ethical. Finally, trial counsel vigorously pursued the defense, reasonable under the circumstances, that defendant’s statements were coerced.

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

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


text:
    In the Matter of Beverly E. Hickman, as Administratrix of the Estate of Christopher A. Cummings, Deceased, Appellant. Motor Vehicle Accident Indemnification Corporation, Respondent.
    Decided May 1, 1990
    APPEARANCES OF COUNSEL

      James F. Foley and Paul T. Rubery for appellant.

      Elizabeth S. Riker for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated. We hold that petitioner was entitled to a toll of the limitations period to commence her wrongful death action against the Motor Vehicle Accident Indemnification Corporation (MVAIC) during the period the court was considering her application for leave to file a late notice of claim (Insurance Law § 5208 [c]) and that the tolling period began upon petitioner’s service by mail of the notice of motion to file a late notice of claim.

On October 7, 1985, Christopher Cummings was killed in a "hit and run” automobile accident. Petitioner was appointed administratrix of his estate on April 8, 1986. On November 21, 1986, she served MVAIC by mail with a notice of motion to file a late notice of claim (Insurance Law § 5208). On December 3, 1986, she personally served MVAIC with the same notice. By order entered December 18, 1986 — 27 days after the mail service and 15 days after the personal service of the motion — Supreme Court granted petitioner’s motion to file a late notice of claim. Thereafter, on October 29, 1987 (two years and 22 days from the death), petitioner moved for leave to commence an action against MVAIC pursuant to Insurance Law § 5218.

MVAIC opposed the motion on the ground that the wrongful death action was time barred under the two-year Statute of Limitations (EPTL 5-4.1). Petitioner countered that the limitations period was tolled during the 27-day period when the court was considering her application to file a late notice under Insurance Law § 5208. Supreme Court agreed with petitioner and granted petitioner’s application for an order permitting an action against MVAIC (Insurance Law § 5218). The Appellate Division reversed, holding "[t]he prior application seeking leave to serve a late notice of claim did not toll the Statute of Limitations because petitioner could have moved for leave to sue before the expiration of the two-year limitations period” (148 AD2d, at 1005). We disagree.

The first issue is whether the underlying limitations period is tolled during the pendency of petitioner’s prior application to file a late notice of claim. We conclude that it was. Before granting an application for leave to commence an action (see, Insurance Law § 5218 [b] [1]), the court must be satisfied that petitioner has complied with the notice of claim provisions of Insurance Law § 5208. Here, petitioner failed to file a notice of claim during the statutory 90-day period and, thus, was required to seek leave of Supreme Court to file a late notice (see, Insurance Law § 5208 [c]) as a condition precedent to making a section 5218 application. During the time the court had the section 5208 (c) application under advisement, petitioner was effectively precluded from taking any steps in furtherance of the section 5218 application. Thus, she was entitled to have the limitations period tolled while the court was considering her section 5208 application (see, Barchet v New York City Tr. Auth., 20 NY2d 1, 6; CPLR 204 [a]; see also, Matter of Schultz v Motor Vehicle Acc. Indemnification Corp., 84 Misc 2d 640, 641-642). That petitioner could have filed the section 5218 application at any time between December 18, 1986 (when the section 5208 [c] application was granted) and October 7, 1987 (two years from the death) does not compel a different result. Petitioner was entitled to the benefit of tolling for the 27-day duration of her preclusion from proceeding under section 5218 (see, CPLR 204 [a]; see, e.g., Giblin v Nassau County Med. Center, 61 NY2d 67).

Having decided that the limitations period was tolled during the pendency of the section 5208 application, we must fix the date when this application was effectively served in order to determine when the period of tolling began. If petitioner’s section 5208 application was properly commenced by service by mail on November 21, 1986, then her action was timely. However, if petitioner’s section 5208 application was not commenced until December 3, 1986, the date of personal service, the action was time barred. We conclude that service by mail was sufficient under section 5208 (c). We agree with the reasoning in Matter of Coppola v MVAIC (59 AD2d 1023, 1024 [interpreting Insurance Law former § 608]) that a section 5208 (c) application is analogous to a motion on notice which may be served by mail (see also, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C403:l, at 494-495 [1972]; Matter of Callahan v City of New York, 75 NY2d 899). Permitting service by mail of a section 5208 application is consistent with our recognition that the uninsured motorist statutes were enacted to "ensure that innocent victims of motor vehicle accidents be recompensed for their injuries and losses” and the principle that "the interpretation of statutes relating to uninsured motorist coverage must not be caught up in narrow and technical analysis” (see, Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818, 819, 820).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.

       Former section 608 was renumbered as section 5208 in 1982, with no change relating to the required service thereunder and the bill jacket reflects no suggestion that former section 608 was improperly construed to permit service by mail (see, Bill Jacket, L 1982, ch 686).


text:
    In the Matter of Lewiston-Porter Central School District, Appellant, v Thomas Sobol, as Commissioner of Education, et al., Respondents.
    Submitted March 26, 1990;
    decided May 1, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Lincoln Plaza Associates, Respondent, v R. Alexander Alba et al., Appellants, et al., Respondents.
    Submitted April 2, 1990;
    decided May 1, 1990
   Cross motion to dismiss appeal granted and the appeal dismissed, without costs, upon the ground that the March 2, 1990 order of Civil Court of the City of New York appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for a stay dismissed as academic.


text:
    In the Matter of the Claim of Vernon L. Phillips, Appellant. Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Submitted March 19, 1990;
    decided May 1, 1990
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying claimant’s motion for leave to appeal, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Skyview Acres Cooperative, Inc., Respondent, v Public Service Commission of the State of New York et al., Respondents. Hilda W. Striker et al., Proposed Intervenors-Appellants.
    Submitted February 26, 1990;
    decided May 1, 1990
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    The People of the State of New York, Appellant, v Delano Taylor, Respondent.
    Submitted February 26, 1990;
    decided May 1, 1990
   Motion to dismiss appeal denied.


text:
    The People of the State of New York, Respondent, v Matthew Alexander, Appellant.
    Decided May 3, 1990

      APPEARANCES OF COUNSEL

      Bernard D’Orazio for appellant.

      Robert T. Johnson, District Attorney (Raymond Vallejo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Viewing the evidence in the light most favorable to the People and indulging all reasonable inferences in the People’s favor (see, People v Ford, 66 NY2d 428, 437; People v Benzinger, 36 NY2d 29, 32), we conclude that the evidence is legally sufficient to support defendant’s conviction for first degree robbery (Penal Law § 160.15 [1]) and second degree murder (Penal Law § 125.25 [3]) beyond a reasonable doubt. No other issue has been preserved for our review.

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

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


text:
    Greek Peak, Inc., et al., Appellants, v Bruce M. Grodner et al., Respondents, et al., Defendants.
    Decided May 3, 1990

      APPEARANCES OF COUNSEL

      Frank R. Monfredo for appellants.

      John Alden Stevens for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (155 AD2d 827). We add only that a party seeking to enforce a restriction on land use must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction (see, Willow Tex v Dimacopoulos, 68 NY2d 963; Huggins v Castle Estates, 36 NY2d 427; Premium Point Park Assn. v Polar Bar, 306 NY 507). Plaintiffs failed to do so in this case.

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


text:
    78 South First Street Housing Development Fund Corporation et al., on Behalf of Themselves and Others Similarly Situated, Respondents, v Paul A. Crotty, as Commissioner of the New York City Department of Housing Preservation and Development, et al., Appellants.
    Argued March 27, 1990;
    decided May 3, 1990

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Judith R. Greenwald, Edith I. Spivak and Joseph I. Lauer of counsel), for appellants.

      Gerald A. Rosenberg, Janet Ellis Meiman and Kenneth C. Brown for respondents.

   OPINION OF THE COURT

Order reversed, with costs, defendants’ motion to dismiss the complaint granted and certified question answered in the negative for reasons stated in the dissenting memorandum by Justice E. Leo Milonas at the Appellate Division (150 AD2d 218, 220-222).

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


text:
    The People of the State of New York, Respondent, v Anthony Peterkin, Appellant.
    Argued March 23, 1990;
    decided May 1, 1990

      APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Contrary to defendant’s contention, the hearing court did not abuse its discretion in denying defendant’s request to call the complainant at the Wade hearing (United States v Wade, 388 US 218). A defendant does not have an absolute right to call a complainant at the Wade hearing absent some indicia of the suggestiveness of the identification procedure employed (People v Chipp, 75 NY2d 327, 336-338). Defendant argues, however, that he has a right to call the complainant where there has been a showup, an inherently suggestive identification procedure (see, People v Riley, 70 NY2d 523). This argument has no application where, as here, the defendant does not dispute that the showup was made promptly and at the scene of the crime (see, People v Love, 57 NY2d 1023). Nor has he claimed that the complainant’s testimony would have differed in any respect from that offered by the People’s witnesses. In these circumstances, defendant is not entitled to call the complainant at the hearing (People v Chipp, supra).

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

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

Order affirmed in a memorandum.