author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Stephen M. Thiessen, Also Known as Michael Luciano, Appellant.
    Argued June 6,1990;
    decided July 5, 1990

      APPEARANCES OF COUNSEL

      Thomas F. Gleason, Mark T. Walsh and Meave M. Tooher for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting to Albany County Court for resentencing, and, as so modified, affirmed.

Defendant was convicted of first degree sodomy arising out of an incident on a university campus which occurred on February 8, 1986, when he was 16 years old. He was sentenced to an indeterminate term of imprisonment for 3 Vs to 10 years. The sentencing court denied defendant’s request for youthful offender treatment, stating "this Court does not grant Youthful Offender status to persons who get involved in this kind of sexual molestation, sodomy in the first degree or rape in the first degree. The Court’s attitude towards those crimes was the same even before the State Legislature saw fit in Article 700 of the Criminal Procedure Law. It’s not a presumption that YO should not be given where there is rape or sodomy but that it ought not to be given unless the Court makes definite findings as to why this is an exceptional situation. The Court feels, as a matter of fact, there is nothing exceptional about this situation whatsoever.” Thus the court denied youthful offender status because in its view, a person convicted of first degree sodomy was not entitled to such treatment in the absence of "exceptional” circumstances.

This standard, however, as indicated by the court’s reference to article 700 of the Criminal Procedure Law, is the standard applicable pursuant to CPL 720.10, as amended on November 1, 1986. Pursuant to the amended statute, a youth convicted of first degree sodomy is not an "eligible youth” for purposes of youthful offender treatment, and cannot be sentenced as a youthful offender unless the court finds "mitigating circumstances” (CPL 720.10 [2] [a]; [3]). As this statutory amendment was not in effect at the time defendant was alleged to have committed the crime, it was error to sentence him in accordance with the amendment’s more stringent standard.

Rather, defendant should have been sentenced in accordance with the preamendment statute which did not except persons convicted of first degree sodomy from the definition of "eligible youth[s]” for the purposes of youthful offender treatment (see, CPL former 720.10 [2] [a], L 1971, ch 981, § 1, as amended by L 1978, ch 481, § 58). Thus, as defendant is an "eligible youth” under CPL former 720.10 (2) (a) and has not previously been convicted of a crime or adjudicated a youthful offender (see, CPL 720.20 [1] [b]), the court should have considered the individual circumstances of his case to determine whether "the interest of justice would be served by relieving [defendant] from the onus of a criminal record and by not imposing an indeterminate term of imprisonment of more than four years” (CPL 720.20 [1] [a]; see, People v Richard H., 65 AD2d 775; People v Kerr, 43 AD2d 895).

We have considered defendant’s remaining contentions, to the extent preserved for our review, and conclude that they do not warrant reversal.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to affirm the order of the Appellate Division affirming the judgment of conviction and the sentence which denied youthful offender treatment to this defendant.

Defendant, at the time of the crime, was visiting the SUNYAlbany campus for the weekend; he became intoxicated, entered the dorm room of a sleeping coed, climbed into her bed and sodomized her. After a trial, a jury convicted defendant of sodomy in the first degree. The sentencing court denied defendant’s request for youthful offender treatment and imposed a sentence of 316 to 10 years. Among the explanatory remarks uttered by the Trial Judge, prior to imposing sentence as to why youthful offender status was being denied, are these:

"the court:

"I think it’s incumbent, because of the remarks of both sides, for this Court to express some remarks in the middle.
* * *
"The Court has read the pre-sentence report.
* * *
"The Court is mindful of the Victim Impact Statement and I think that the Victim Impact Statement should be heard in its entirety and the Court will read that into the record.
* * *
"The Court has listened to both the District Attorney and to the defense counsel. And the Court is cognizant of all of the purposes of punishment. The Court is also cognizant that the history of sexual molestation laws in the State of New York in the past five to ten years have been such that rape and sodomy and all the sexual crimes have become one of the uppermost crimes in the mind of the State Legislature.
* * *
"[T]he Court has to take into consideration what is necessary to punish this young man for this indiscretion or this crime, however it’s characterized by either side, and to also act as a deterrent to other people similarly situated.
* * *
"The Court is mindful of all of the fine character letters.
"It’s not a presumption that YO should not be given where there is rape or sodomy but that it ought not to be given unless the Court makes definite findings as to why this is an exceptional situation. The Court feels, as a matter of fact, there is nothing exceptional about this situation whatsoever. In most cases the Court does not find anything exceptional in a situation that causes somebody to go out and to sexually molest any of the women of our community” (apdx, at 17, 19, 21, 23 [emphasis added]).

The State Constitution and implementing statutes sharply limit this court’s review power with respect to factual and sentencing matters (NY Const, art VI, § 3 [a]; CPL 450.30). Youthful offender dispensations are purer discretionary determinations even more removed from appellate purview (CPL 720.20; see also, People v Dawn Maria C., 67 NY2d 625, 627). It is thus a truism that this court does not enjoy plenary review power just because it happens to be the State’s highest court. Indeed, there is wisdom in the withholding of some power for that very reason, i.e., this court may be too remote for proper determination of certain kinds of issues. In the distribution of judicial authority, it is Trial Judges, because of their unique vantage point, who are burdened with legislatively prescribed sentencing discretion of the widest latitude (see, People v Day, 73 NY2d 208, 212; People v Felix, 58 NY2d 156, 161; People v Farrar, 52 NY2d 302). A check and balance is exerted by conferral on the Appellate Division of: (1) a specifically defined sentence review menu (CPL 470.15 [2] [c]); (2) an interest of justice discretion authority which is virtually limitless (CPL 470.15 [6] [b]; see, People v Thompson, 60 NY2d 513); and (3) a youthful offender sentence review function which may well be that court’s narrowest (People v Dawn Maria C., 67 NY2d, supra, at 627; People v Barlette, 83 AD2d 695, 696).

Youthful offender is by its very nature an exceptional dispensational sentencing choice for the trial court (see, CPL 720.20 [1] [a]; Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 720.20, at 229). Five Justices of the Appellate Division and three Judges of this court have concluded that reading the cold sentencing record in its entirety, and in full context with its appropriate incorporations by reference, reflects an exercise of sentencing court discretion. Whether any of us would agree with the choice of action or words by the trial court is irrelevant. If reasonable people and Judges could so disagree in this respect, it is hard to understand how it could be said there is error as a matter of law in such a matter as this youthful offender sentencing option.

Despite the long-standing and indisputably governing demarcations, a selective interpretation of the sentencing record now before us upsets and overrides both the County Court and the Appellate Division sentencing determinations. That seems to stray onto the exclusive constitutional and statutory preserve of those courts, because the majority is overemphasizing and extrapolating one portion of the sentencing minutes to show that the Trial Judge erroneously exercised its discretion. It concludes that the trial court sentenced defendant in accordance with the more stringent standard later enacted by the Legislature, which concededly, even by the trial court, is inapplicable in the instant case. But there are other portions of the sentence record which we have noted, and there are counterweights throughout the record, from which one could also reasonably conclude that the Trial Judge acted within the letter and even spirit of the applicable law, not the new stricter law.

The majority agrees that this court, and even the Appellate Division, cannot say under the law applicable at the time of this conviction that the trial court was mandated to give youthful offender status to this defendant. The trial court may not have been artful in the selection of its words or in its emphasis when it denied the youthful offender sentence in this case. Assessment of the entire record and transcript, however, belies the conclusion that discretion was exercised under an erroneous legal standard.

In sum, it is fair to say that the trial court concluded youthful offender treatment was inappropriate based on the individual circumstances of this case. It did not express an absolute ineligibility or unavailability as charged by the majority. The court ultimately qualified the applied rule as to "most cases” and "exceptionability”, and concluded that this case was not an exceptional case, rare as one might be for this Trial Judge. The Appellate Division thought that is how the trial court exercised its discretion and so do we in dissent. Ordinarily, that would end the authorized review here, as it did at the Appellate Division, which expressed its conclusion as follows: "County Court considered relevant factors, including the seriousness of the crime, in denying youthful offender status to defendant and there is no showing that County Court abused its discretion in this matter”. (158 AD2d 737, 739.)

This court should be equally respectful of the Legislature’s grant of youthful offender sentencing discretion uniquely to the trial court. The trial court observed defendant’s demeanor at a full trial, had and reviewed the presentence reports, examined the numerous supportive letters on defendant’s behalf, and considered the particular defendant’s reputation and attitudes toward society and the particular victim. The court also quite properly weighed the consequences of this crime to the young woman victim. Indeed, the court not only considered the victim impact statement as required by statute (CPL 390.30 [3] Pd]), it read the statement into the record and noted the intense emotional trauma suffered by the victim as a result of this most violative personal assaultive act.

In addition, another factor that weighed heavily in the denial of that discretionary sentencing option is still present (though three years have passed): a most serious "B” felony, sodomy first degree, was committed. Indeed, this is a crime so serious that the Legislature has seen fit to remove it from the list of eligible convictions for which the ameliorative youthful offender sentence is generally available (CPL 720.10 [2] [a]; [3], as added by L 1986, ch 416, § 1).

The legislative empowerment of trial and sentencing courts with broad discretion, whether this court agrees with its exercise or its outcome, includes the judicial authority to reject arguments, data and the optional, ultimate dispensation from adult criminal responsibility. That is the essence of the trial court’s burden and of its legislatively conferred responsibility, as it weighs all the factors and interests of all the parties before it. That is what was done here based on a record which should speak for itself on a full and fair reading.

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

Order modified by remitting the case to Albany County Court for resentencing and, as so modified, affirmed in a memorandum.

       Contrary to the assertion of the dissent, our review of the legality of County Court’s sentencing determination does not "stray onto the exclusive constitutional and statutory preserve” of the courts below (dissenting opn, at 821). Unquestionably, this court has jurisdiction to review the propriety of the legal standard employed in sentencing determinations generally (see, e.g., Matter of Roballo v Smith, 63 NY2d 485; People v Morse, 62 NY2d 205) and in youthful offender determinations in particular (People v Cecil Z., 57 NY2d 899). Exercising this jurisdiction, we hold today that County Court applied an incorrect legal standard and therefore the sentence imposed must be vacated. Any discussion of the trial court’s discretionary powers in sentencing matters, much less the extensive discussion of these powers undertaken by the dissent, is wholly irrelevant to this legal issue because the fact that the sentencing court exercised its discretion in its application of this erroneous legal standard does not insulate the issue from our review nor preclude us from taking appropriate corrective action.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Encarnacion Meccico, Appellant, v Frank Meccico, Respondent.
    Decided July 5, 1990

      APPEARANCES OF COUNSEL

      Dana D. Peck and William T. Meconi for appellant.

      Robert A. Goldstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Family Court reinstated.

A separation agreement is a contract subject to the principies of contract construction and interpretation (Rainbow v Swisher, 72 NY2d 106, 109). Where the contract is clear and unambiguous on its face, the courts must determine the intent of the parties from within the four corners of the instrument (id.; Nichols v Nichols, 306 NY 490, 496, reh denied 307 NY 677). The agreement at issue unambiguously created two separate obligations for the husband: the first for $300 per month as child support, and the second for $150 per month to the wife to defray rental costs. Although the agreement provides that child support will terminate when the children reach maturity or emancipation, no similar termination clause was attached to the rent provision. Accordingly, the Family Court order requiring defendant to pay $150 in maintenance, even after all his children reach the age of majority, was correct and should be reinstated.

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

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


text:
    The People of the State of New York, Appellant, v Eddie Guzman, Respondent.
    Argued June 27, 1990;
    decided July 5, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Donald S. Eaton et al., Appellants, v State of New York, Respondent.
    Submitted May 29, 1990;
    decided July 5, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Claimants’ motion for reargument at the Appellate Division did not extend their time to move for leave to appeal to this court.


text:
    Paul E. Noel, Appellant, v Department of Sanitation of the City of New York, Respondent.
    Submitted May 29, 1990;
    decided July 5, 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 a nonfinal 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:
    C. Richard Stafford, Appellant, v Jewelle Bickford et al., Respondents.
    Submitted May 29, 1990;
    decided July 5, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of James R., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued April 24, 1990;
    decided June 14, 1990

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (John Hogrogian, Pamela Seider Dolgow and Jane Tobey Momo of counsel), for appellant.

      Elizabeth B. Emmons and Lenore Gittis for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Initially, we note our disagreement with Family Court’s legal conclusion that these circumstances provided an insufficient predicate for the police officers to exercise their common-law right of inquiry (see, People v De Bour, 40 NY2d 210, 223). The officers observed respondent carrying an apparently heavy, though not full, travel bag through an area known for its narcotics and weapons activities and the subject of a precinct alert that day. Respondent was flanked by three companions, one at each side and one in front, and the four were walking in unison, as if marching in formation. Although this behavior may have been consistent with innocence, it was sufficient to provide the officers with "a founded suspicion that criminal activity is afoot”, justifying the officers’ approach to request explanatory information (People v De Bour, supra, at 223).

Nevertheless, there is support in the record for the alternative rationale resting on an undisturbed factual finding that the officers’ actions amounted to a forcible stop, a level of intrusion requiring a reasonable suspicion that the individual so detained has committed, is committing or is about to commit a crime (CPL 140.10; People v De Bour, supra, at 223). It cannot be said that Family Court erred as a matter of law in concluding that the flight of respondent’s companions as the officers approached did not elevate the officers’ suspicions to the level required for a forcible detention.

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

Order affirmed, without costs, in a memorandum.


author: Memorandum. Kaye, J.

text:
    The People of the State of New York, Respondent, v Steven Mooney, Appellant.
    Argued May 30, 1990;
    decided July 10, 1990
    APPEARANCES OF COUNSEL

      Andrew C. Fine and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney (Mark D. Suben and Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

By pretrial motion, defendant sought to retain an expert witness to testify concerning factors that may influence a witness’s perception and memory and affect the reliability of identification testimony. The object of the proposed testimony was to discredit the testimony of the four robbery victims who had identified defendant as the perpetrator. Supreme Court denied the motion, and the Appellate Division affirmed the ensuing judgment of conviction, entered upon the jury’s guilty verdict as to each of the four robbery counts.

On this appeal, we need not decide whether the expert testimony sought to be presented was of the type that could, as a matter of law, properly be admitted. Here, the trial court based its decision to exclude the testimony in the exercise of its sound discretion to which the admission of such evidence would, if legally admissible at all, be entrusted. Our review powers are limited accordingly (see, People v Cronin, 60 NY2d 430, 433; Selkowitz v County of Nassau, 45 NY2d 97, 101-102).

Kaye, J.

(dissenting). The court’s cursory treatment of defendant’s claim has two effects, both undesirable. First, it signals such a broad hands-off approach to the purported exercise of trial court discretion as to render any right of review virtually meaningless. Second, and perhaps even more damaging, it sanctions an unwillingness to deal realistically with the concerns engendered by the growing body of research concerning the reliability of eyewitness identifications.

The decision whether to admit expert testimony is of course committed primarily to the sound discretion of the trial court, and our power to review an exercise of that discretion is an appropriately limited one (People v Cronin, 60 NY2d 430, 433). We do, however, have the power to review even a trial court’s discretionary decision where the legal claim is made that, through application of an incorrect standard, the court failed to exercise its discretion, or that its decision was so unreasonable as to constitute a clear abuse.

In this case, the trial court had before it extensive submissions from both parties in connection with defendant’s motion for admission of the trial testimony of Dr. Robert Buckhout, a psychologist whose field of expertise is the cognitive factors underlying eyewitness identification. The trial court is said to have exercised its discretion in the limited sense that it received the submissions, heard argument and stated three reasons for disallowing the testimony — none of them indicating an assessment of the facts or equities of this particular case. That surely does not insulate from our review defendant’s contention that the trial court’s rationale was legally insufficient to support the denial of his motion.

The trial court’s error is evident upon review of each of its three unelaborated reasons — set forth in full — for denying defendant’s motion.

1. "The accuracy and reliability of psychological tests regarding perceptual factors in identification have not been acceptfed] by the scientific community. ”

The first stated trial court reason refers to the test for admissibility of scientific evidence and clearly presents an important, fully preserved question of law now disregarded by this court.

Even assuming the Frye standard of "general acceptance in the particular field in which it belongs” (Frye v United States, 293 F 1013, 1014) to be the appropriate one, there is a law issue as to whether the Frye test was met.

To the extent that judicial acceptance is indicative of general scientific acceptance, the emerging trend today is to find expert psychological testimony on eyewitness identification sufficiently reliable to be admitted, and the vast majority of academic commentators have urged its acceptance (see, United States v Downing, 753 F2d 1224 [3d Cir]; People v McDonald, 37 Cal 3d 351, 690 P2d 709; State v Chapple, 660 P2d 1208 [Ariz]; United States v Smith, 736 F2d 1103 [6th Cir]; Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan L Rev 969, 1021-1023 [1977]; Comment, Admission of Expert Testimony on Eyewitness Identification, 73 Cal L Rev 1402 [1985]; Levine & Tapp, The Psychology of Criminal Identification: The Gap from Wade to Kirby, 121 U Pa L Rev 1079 [1973]; McCormick, Evidence § 206 [Cleary 3d ed]). As the cited courts and commentators have found, psychological research data is by now abundant, and the findings based upon it concerning cognitive factors that may affect identification are quite uniform and well documented.

To be sure, there is a differing view, as the People strenuously urge: two psychologists have written articles expressing doubts as to the wisdom of expert testimony on the factors affecting eyewitness identification (see, Egeth & McCloskey, Expert Testimony About Eyewitness Behavior: Is It Safe and Effective, in Eyewitness Testimony: Psychological Perspectives, at 238 [Wells & Loftus eds 1984]; see also, Egeth & McCloskey, Eyewitness Identification: What Can a Psychologist Tell a Jury?, 38 Am Psychologist 550 [1983]). However, as the People do not dispute, theirs was a minority view and indeed, the skepticism of these two dissenters was largely based on their view that more research was necessary — which by now even in their view may well have been done. It is fair to say that there is broad acceptance of the cognitive principles about which Dr. Buckhout proposed to testify; the People, of course, were free to counter his testimony with that of their own witness.

Thus, I profoundly disagree with this court’s treatment of the significant law issue presented.

2. "[SJuch testimony * * * would be cumulative. The defendant states that Dr. Buckhout’s testimony is offered for the purpose of describing the effects of stress and other factors on identification testimony. It stands to reason that Counsel for the defendant will certainly cross-examine the identifying witnesses on factors such as opportunity to observe, stress of the moment, lighting conditions, distance between the observer and defendant, motive to testify, interest in the case and all other factors which could influence the accuracy of identification testimony. Additionally, in his charge to the jury which is rboiler plate’, the trial judge will instruct the jury to take all those factors into consideration and apply common sense in doing so. ”

The second stated trial court reason for denying defendant’s motion was that the proposed testimony would be cumulative, as the same information about the effects of stress and other factors on identification testimony would be presented to the jury in the form of cross-examination of the identifying witnesses and the court’s charge on identification. That conclusion was incorrect as a matter of law.

Dr. Buckhout’s proposed testimony, according to defendant, was intended to provide the jury with a general analytical framework for evaluation of the eyewitness testimony, by presenting scientific data concerning certain factors involved in perception and memory. He did not propose to comment on whether any specific eyewitness identification made in this case was accurate or not. Areas of possible testimony identified in defendant’s motion included the relationship between stress and accurate identification, ways in which eyewitnesses might be particularly prone to suggestion, the phenomenon of "perceptual selectivity,” and the relationship between witness confidence in an identification and its accuracy.

This type of information is plainly not available through cross-examination of the individual identifying witnesses, or through the standard cautionary charge given by the trial court. The pattern jury charge on identification simply lists— without comment — a number of factors for the jury’s consideration relating to the witness’ opportunity to observe the perpetrator, such as the length of time elapsed during the witness’ observation and the witness’ mental state at the time (1 CJI[NY] 10.01). Contrary to the trial court’s conclusion, Dr. Buckhout’s testimony would not have merely duplicated this charge. As defendant urged, such evidence would have shown, for example, that it is common for witnesses under stress to overestimate considerably the length of an event, that high stress may bear an inverse relationship to accuracy of identification, and that there is no positive correlation between confidence in and accuracy of identification.

While a judgment regarding whether testimony would be cumulative in a particular case might well be a discretionary one, in this case there was absolutely nothing in the record to support that conclusion.

3. "Expert testimony must by the very nature, be beyond the ken of jurors whose basic intelligence should not be underestimated. The jury’s function to judge the facts should not be usurped unless expert testimony is required and necessary to assist them. It was stated concisely in People v Valentine 53 A.D.2d 832 (1st Department) that there must be no infringement 'upon a properly instructed jury’s power to determine the reliability of the People’s evidence.’ ”

As the third and final trial court ground for denying the motion, the court opined that the proposed testimony was not beyond the jury’s ken and that its admission would usurp the jury’s function to determine the reliability of the witnesses. As for the claim that the testimony would somehow preempt the jury’s function, that has long been discredited as a test for expert testimony (see, People v Cronin, 60 NY2d 430, 432-433).

The notion that jurors are generally aware from their everyday experience of the factors relevant to the reliability of eyewitness observation and identification has not only been properly condemned as "makeshift reasoning” (see, McCormick, Evidence § 206, at 624 [Cleary 3d ed]), but also has been refuted by research demonstrating a number of common and widely held misconceptions on the subject among laypersons (see, Brigham & Bothwell, The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications, 7 Law & Human Behav 19 [1983]; Deffenbacher & Loftus, Do Jurors Share a Common Understanding Concerning Eyewitness Behavior•?, 6 Law & Human Behav 15 [1982]).

But even if the proposed testimony was not beyond the jury’s ken, we have repeatedly upheld the admission of expert testimony for the purpose of clarifying an area of which the jurors have a general awareness (see, Selkowitz v County of Nassau, 45 NY2d 97, 101-102; De Long v County of Erie, 60 NY2d 296, 307-308). Most recently, we agreed that admission of general psychological evidence about "rape trauma syndrome” was proper, where the testimony was introduced "to dispel misconceptions that jurors might possess” (People v Taylor, 75 NY2d 277, 293). As the proposed testimony was offered for that very purpose, it was in my view error to preclude it on the ground that it touched on matters within the jury’s knowledge, without also considering its potential for clarification.

I do not suggest that a trial court must permit expert testimony on eyewitness identification in every case, or even most cases, in which it is offered. Appellate courts that have found such testimony admissible in theory have nonetheless preserved ample room for trial court exercise of discretion through weighing of such factors as the centrality of the identification issue to the particular facts, the existence of other evidence corroborating the identifications, the relevance of the proposed testimony to specific facts of the case at hand, and of course through the trial court’s power to limit the amount and type of evidence presented. Here, however, the trial court’s preclusion of Dr. Buckhout’s testimony was not the result of such a discretionary assessment of the probative value of the testimony in relation to the facts of this case. Rather, it was based on a mistaken and entirely general legal analysis that this court now erroneously refuses to address.

I therefore dissent.

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

Order affirmed in a memorandum.

      . There is rapidly growing dissatisfaction among courts and commentators with the Frye test itself (see, McCormick, Evidence § 203, at 605-609 [Cleary 3d ed]). Moreover, even if that test is applicable to the results of certain processes such as lie detectors, voiceprints and hypnosis — as defendant argued in his motion before the trial court — it does not necessarily follow that it is the appropriate standard to be applied to the testimony of a qualified psychologist who proposes to explain to the jury how certain factors shown by the record can affect perception and memory, and thus the accuracy of identification testimony. Several courts have concluded that regardless of the general validity of the Frye standard, it should not be used in this context (see, People v McDonald, 37 Cal 3d 351, 690 P2d 709; United States v Downing, 753 F2d 1224 [3d Cir]; Bloodsworth v State, 307 Md 164, 512 A2d 1056; see also, Note, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan L Rev 969, 1021-1023 [1977]; cf., People v Fisher, 53 NY2d 907, 909).

        . As the California Supreme Court noted in People v McDonald (37 Cal 3d 351, 690 P2d 709), the apparent unanimity of earlier appellate decisions holding that it was not an abuse of discretion to exclude the testimony may be misleading, as the issue would normally not arise when the testimony was admitted; the evidence available suggested that even by 1984, such testimony had been admitted in scores of cases.


text:
    The People of the State of New York, Respondent, v Edward W. Stevens, Appellant.
    Argued June 1, 1990;
    decided July 10, 1990

      APPEARANCES OF COUNSEL

      Thomas F. Gleason and Maria A. Lally for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial the defendant was convicted of felony murder and manslaughter. On appeal the Appellate Division dismissed the manslaughter count but affirmed the felony murder conviction by a divided court. By leave of the dissenter at the Appellate Division the defendant appeals from so much of the order as affirmed the felony murder conviction.

We find no merit to the defendant’s contention that the evidence is legally insufficient to sustain this conviction. On the record the jury could find that the defendant actively participated in a robbery during which his brother killed the victim and that he was therefore guilty of felony murder.

The primary point on which the court below was divided relates to certain photographs of the victim taken before and after his death which the trial court permitted the prosecution to introduce over the defendant’s objection.

Photographs of the victim’s corpse are likely to arouse the passions and resentment of the jury and thus should not be admitted unless they tend to prove or disprove some material fact in issue (People v Pobliner, 32 NY2d 356). When relevance is demonstrated, the question as to whether on balance the jury should be permitted to view such photographs is addressed to the sound discretion of the trial court. The fadt that other evidence may be available on the point is a factor but is not dispositive. The court may find it appropriate to admit the photographs to illustrate, elucidate or corroborate other evidence offered or to be offered at the trial (People v Pobliner, supra).

The same basic principles apply to so-called “portraits” or photographs of the victim taken while he or she was alive (People v Winchell, 98 AD2d 838, ajfd 64 NY2d 826; cf., Smith v Lehigh Val. R. R. Co., 177 NY 379). These portraits may also arouse the jury’s emotions, particularly when they are presented in a before-and-after format, and thus should not be admitted unless relevant to a material fact to be proved at trial. In addition, the relevance of the portraits must be independently established; the fact that photographs of the victim after death have been found to be relevant does not necessarily establish the relevance, and hence admissibility, of portraits of the victim while alive.

In this case the majority at the Appellate Division found some relevance for the photographs of the deceased taken at the scene of the crime and later at the autopsy. Although they found no justification for introducing the portrait, they concluded that this error was harmless. We agree.

The photographs of the victim’s body showed the nature of the injury and therefore tended to prove that the assailant acted with intent to inflict serious injury, an essential element of the manslaughter count. The People were not bound to rely entirely on the testimony of the medical expert to prove this point and the photographs were admissible to elucidate and corroborate that testimony. The fact that the defendant was charged as an accessory does not make this evidence irrelevant since the prosecutor was obligated to prove that the defendant shared this intent. Although the Appellate Division concluded that the People ultimately failed to prove that the defendant shared the assailant’s intent, the fact remains that it was an element of the offense and that the photos tended to establish it. With respect to this ruling it cannot be sáid that the court abused its discretion as a matter of law.

This is not true with respect to the portrait of the accused which the court also permitted the prosecutor to introduce at trial over the defendant’s objection. The trial court did not explain its ruling and the only argument the People offer is that the portrait was properly admitted "as a fair and accurate representation of what the victim looked like on that fateful night before the murder.” But, in view of the fact that the victim’s appearance prior to the assault was not relevant to any issue at the trial, this argument is merit-less and the court’s decision to admit the portrait was clearly erroneous. However, like the majority at the Appellate Division, we have concluded that this error alone was not so prejudicial as to require a new trial. Considering all the other evidence properly admitted at the trial, the admission of this portrait, although improper, must be deemed harmless.

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

Order affirmed in a memorandum.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Ellis Centano, Also Known as Ellis Sammy Centano, Also Known as Ellis Centeno, Appellant.
    Argued June 5,1990;
    decided July 10, 1990
    APPEARANCES OF COUNSEL

      Paul Liu and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that he was subjected to a custodial interrogation and that due to the failure to administer Miranda warnings (Miranda v Arizona, 384 US 436), all statements made by him should be suppressed. The issue of whether a suspect is in custody is generally a question of fact (see, People v Morales, 65 NY2d 997, 998). The Appellate Division has left undisturbed Supreme Court’s determination that there was no custodial interrogation, thus this court could overturn that finding only if we were to conclude, as a matter of law, that the proof was insufficient to establish that the interrogation was noncustodial (People v Williamson, 51 NY2d 801, 802). The Appellate Division correctly applied the standard established in People v Yukl (25 NY2d 585, 589) and concluded that a reasonable person, innocent of any crime would not have believed he was in custody under the circumstances. It based its conclusion on evidence in the record that (1) defendant appeared at the precinct voluntarily and presented himself to the police as a friend of Ivory eager to assist in investigating his death, (2) the atmosphere at the precinct was not coercive, (3) the questioning was investigative, not accusatory, (4) the police did not treat defendant as if he were in custody but rather informed him expressly that he was not a suspect, (5) defendant was never handcuffed or physically restrained, (6) the questioning was not continuous but was interrupted frequently, (7) defendant never protested the questioning, (8) defendant was fed and allowed to relax in the station house by watching a baseball game, (9) the police advised defendant that he was not required to take a polygraph test, (10) defendant was asked, not ordered, to return to the precinct after his first polygraph, (11) defendant was allowed to sleep alone in an unlocked room in the station house, and (12) defendant was permitted to go unescorted into a store the following morning. Taken together, these facts are sufficient to establish that the interrogation was noncustodial.

At a minimum, this case is one in which " 'reasonable minds may differ as to the inference[s] to be drawn’ ” from the facts and is therefore beyond the review powers of this court (see, People v Harrison, 57 NY2d 470, 477; People v McRay, 51 NY2d 594, 601).

Titone, J.

(dissenting). I would reverse the Appellate Division order affirming defendant’s conviction and, after suppressing his station house statements, order a new trial. The only issue in this appeal is whether defendant was in custody at the time he made the inculpatory statements. Since the question of custody is ordinarily deemed a factual one, our only task is to determine whether the undisturbed findings and inferences of the courts below were based on the correct legal standard and are supported by the record (see, People v Williamson, 51 NY2d 801). It is on this point that the majority and I differ.

As the majority notes, the courts below correctly invoked the standard dictated by People v Yukl (25 NY2d 585), in which it was held that the determination of custody is to be made from the viewpoint of a reasonable person in the defendant’s position. However, the conclusion those courts reached —that defendant was not in custody at the time he made his statements — seems to me to be beyond all reason and common sense on these facts.

While defendant may have initially appeared at the police station voluntarily and was not treated as a suspect at the outset, the events that occurred over the ensuing 28 hours clearly transformed the encounter into a custodial one. By the time he blurted out his first admission, defendant had "failed” two separate lie detector tests concerning the homicide and had had two separate "stories” he told police about other possible perpetrators exposed as lies. Although he was not physically restrained with handcuffs, defendant was constantly and continuously in the presence of the police and, after he "failed” the first lie detector test, was even escorted by a police officer to the bathroom. Furthermore, when he was forced into admitting that his second "story” was a hoax and he informed the police that he no longer wished to cooperate, he was not told that he was free to leave or otherwise offered the opportunity to opt out of the questioning. To the contrary, he was asked to take a second lie detector test and to stay overnight at the precinct, where he slept on a bench in an unlocked room.

That he was "asked” rather than "ordered” to remain cannot sensibly be relied upon, since the characterization is largely a matter of semantics and, in any event, for most citizens a police officer’s "request” has virtually the same coercive force as a "demand.” Similarly, inasmuch as he was in the midst of a busy, and presumably fully staffed, police station, the fact that defendant was permitted to sleep in an unlocked room could hardly be considered as a factor diminishing the custodial atmosphere of his overnight stay. The additional fact that defendant was reasonably well treated in the sense that he was fed, not browbeaten and permitted to watch television during the extended breaks in the questioning is not persuasive in this context, where the issue is not whether defendant’s statement was the product of coercion but rather whether a reasonable person in defendant’s position would have believed himself free to leave (see, People v Yukl, supra). Finally, although defendant was permitted to go into a candy and cigarette store by himself the next morning, it cannot be inferred from this circumstance that he felt free to come and go as he pleased, since at all times there were police officers waiting for him immediately outside the store and one of the waiting officers went inside himself before defendant had an opportunity to come back out onto the street. In sum, when some 28 hours after he first arrived at the police station defendant was confronted with his second lie detector test "failure,” no sensible person in his shoes could rationally have believed that he could simply have thanked the police for their trouble and walked away. Accordingly, I conclude that, as a matter of law, the record does not support the inference that defendant was not in custody when he made his first inculpatory remarks without benefit of Miranda warnings.

In closing, I would note that my concern, and my primary motivation for writing an extended dissenting opinion in this fact-based case, extends beyond the immediate consequences of the majority’s decision in relation to this defendant. My underlying concern is for the degree to which the "mixed question” doctrine may have impaired our ability as a court of last resort to supervise the lower courts’ enforcement of well-settled constitutional principles. I have no quarrel, in principle, with the "mixed question” doctrine as it has evolved and been applied in People v Harrison (57 NY2d 470, 477) and dozens of other recent cases. This rule, which is fundamentally one of judicial economy, serves the important purpose of insulating this court from a host of essentially fact-specific matters, thereby preserving its resources for the resolution of broader legal questions of State-wide significance. However, as the doctrine has been applied by the majority in this case, it may also serve to send a message that the findings and conclusions of the lower courts on these "mixed” issues are completely insulated from further review, no matter how improbable or contrary to common sense and experience they might be.

In the past, the court has counteracted that potential message by invoking its power to reject the lower courts’ "findings” on "mixed questions” in a limited number of selected cases in which the "findings” below strained credulity and the undisputed record facts supported "no other inference” than one of official misconduct (compare, People v Ferro, 63 NY2d 316, 321, n 2, with People v Bryant, 59 NY2d 786). Such holdings, although rare, are nonetheless salutary, since they increase the public’s confidence in the court’s commitment to the enforcement of the constitutional rights it posits. In light of its egregious undisputed facts, this case presents the court with a similar opportunity.

Accordingly, rather than assuming that we are constrained under the "mixed question” doctrine by the lower courts’ "findings”, I would grasp the opportunity that this case presents to reiterate that the "mixed question” doctrine does not require us to accept labels and ultimate findings that do not, in our own common experience, fit the facts; rather, we are still bound to examine the conclusions of the lower courts from a realistic viewpoint and to overturn those conclusions when they rest on inferences that go beyond the borders of ordinary common sense. Since this is such a case, I must, respectfully, dissent from the court’s decision to affirm the suppression ruling challenged here.

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

Order affirmed in a memorandum.

       Most of the significant facts are set forth in the majority and dissenting opinions at the Appellate Division (153 AD2d 494).


text:
    Tri Town Antlers Foundation, Inc., Respondent, v Fireman’s Fund Insurance Co., Appellant.
    Decided July 10, 1990

      APPEARANCES OF COUNSEL

      James D. Gauthier for appellant.

      Thomas P. Givas for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. We agree with the Appellate Division that "[w]here, as here, the policy is ambiguous, and no extrinsic evidence [was] offered from which the jury could conclude that the policy should be interpreted in favor of the insurer, [the direction of] a verdict in favor of the insured [was warranted]” (Tri Town Antlers Found. v Fireman’s Fund Ins. Co., 158 AD2d 908,909; see, Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 172; City of Albany v Standard Acc. Ins. Co., 7 NY2d 422, 430).

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

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


text:
    In the Matter of American Cyanamid Co. (Lederale Labs), Respondent, v Board of Assessors of the Town of Orangetown et al., Appellants. Nanuet Union Free School District, Intervenor-Appellant.
    Submitted June 4,1990;
    decided July 10, 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 it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Coalition of United Peoples, Inc., Appellant, v Edward Brady et al., Respondents.
    Submitted June 19, 1990;
    decided July 10, 1990
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals has jurisdiction to entertain a motion for leave to appeal from the judgment of Supreme Court dismissing the petition only to review a prior nonfinal order which necessarily affects that judgment pursuant to CPLR 5602 (a) (1) (ii), and no such prior nonfinal order exists here. Motion for a stay dismissed as academic.


text:
    Steven J. Kumble, Plaintiff, v Windsor Plaza Company, Defendant, Harold Herman, as Trustee, et al., Appellants, and Gail Sheehy, Respondent. (Action No. 1.) Harold Herman, as Trustee, Appellant, v Gail Sheehy, Respondent. (Action No. 2.) Gail Sheehy, Respondent, v Harold Herman, as Trustee, Appellant. (Action No. 3.)
    Submitted June 4, 1990;
    decided July 10, 1990
   Motion to dismiss the appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous Appellate Division order absent the direct involvement of a substantial constitutional question. Motion for sanctions denied.


text:
    James Mechta, Appellant, v Edward J. Mack, Doing Business as McCabe & Mack, et al., Respondents.
    Decided July 10, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous orders of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Leonard Schammel, Respondent, v Marilyn Schammel, Appellant.
    Submitted June 25, 1990;
    decided July 10, 1990
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court order of November 21, 1989, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Joseph W. Esworthy.
    Decided August 10, 1990
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Joseph W. Esworthy is suspended, with pay, effective August 13, 1990, from his office of Judge of the Family Court, Broome County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Charles J. Hynes, Respondent, v Norman George et al., Appellants.
    Submitted July 16, 1990;

    decided August 29, 1990
   Motion to dismiss appeal denied.


author: Hancock, Jr., J.

text:
    In the Matter of John M. Plunkett, Appellant-Respondent, v Edward J. Mahoney et al., Constituting the Board of Elections of the County of Erie, Respondents, and Vincent J. Sorrentino, as Chairman of the Erie County Democratic Party, et al., Respondents-Appellants.
    Argued August 29,1990;
    decided August 30, 1990

      APPEARANCES OF COUNSEL

      John M. Plunkett, pro se, and C. Russell Kelleran, Jr., for John M. Plunkett, appellant-respondent.

      Dennis E. Ward for respondents-appellants.

      Patrick F. NeMoyer, County Attorney, for respondents.
   OPINION OF THE COURT

Order modified, without costs, by denying the cross petition for the reasons stated in the dissenting in part memorandum by Justices Boomer and Lowery at the Appellate Division (— AD2d —) and, as so modified, affirmed. We add only that failure to timely file a certificate of authorization, which was required in this instance in order for there to be a valid designating petition (Election Law §6-120 [3]), constituted a "fatal defect” under Election Law § 1-106 (2). Moreover, because the petition is void under the statute, the defect cannot be considered merely "technical” (see, Matter of Harden v Board of Elections, 74 NY2d 796).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa. Judge Hancock, Jr., dissents in part and votes to affirm in a memorandum in which Judge Titone concurs.

Hancock, Jr., J.

(dissenting in part). I would affirm essentially for the reasons stated by the majority at the Appellate Division.

In my view, the three-day delay in filing the certification of authorization (Election Law § 6-120 [3]) is clearly a "technical defect” of the type which falls within the exception established in Matter of Harden v Board of Elections (74 NY2d 796). The result reached by the majority effectively abolishes the equitable remedy fashioned in Matter of Hunting v Power (20 NY2d 680) which the court recently acknowledged was "designed to give effect to the intention manifested by qualified party members to nominate some candidate, where that intention would otherwise be thwarted by the presence of technical, but fatal defects in designating petitions, leaving the political party without a designated candidate for a given office.” (Matter of Harden v Board of Elections, supra, at 797.) It is undisputed here that the electorate has manifested its desire to nominate some candidate. (Cf., Matter of Walker v Salerno, 89 AD2d 1031, affd on opn below 57 NY2d 739.)

Order modified, etc.


text:
    The People of the State of New York, Respondent, v Victor C. Ford, Jr., Appellant.
    Decided September 11, 1990 Decided September 11, 1990

      APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender (Esther Cohen Lee of counsel), for appellant.

      Barry M. Donalty, District Attorney (William M. Weber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Sexual abuse in the first degree (Penal Law § 130.65) is not a lesser included offense of first degree sodomy (Penal Law § 130.50), as it is not impossible to commit the latter crime without concomitantly, by the same conduct, committing the former (see, CPL 1.20 [37]; People v Glover, 57 NY2d 61). The crime of sexual abuse requires sexual contact (Penal Law § 130.65), defined as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying sexual desire of either party” (Penal Law § 130.00 [3]). It is possible to commit the crime of sodomy without the actor having as a purpose the gratification of either party’s sexual desire (see, People v Wheeler, 67 NY2d 960). The trial court thus was not required to submit these charges in the alternative, and the jury could properly convict the defendant of both crimes based on the same conduct (CPL 300.40 [3]).

Defendant’s remaining contention has not 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:
    The People of the State of New York, Appellant, v Michael Nixon, Respondent.
    Decided September 11, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the modification by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification” (CPL 450.90 [2] [a]).


text:
    Sandra Jennings, Also Known as Sandra Cronsberg, Appellant, v William M. Hurt, Respondent.
    Submitted June 4,1990;
    decided September 11, 1990
   Motion for leave to appeal dismissed upon the ground that the movant has failed to show that the order sought to be appealed from is final as required by section 500.11 (d) (1) (iv) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iv]).

Chief Judge Wachtler taking no part.


text:
    In the Matter of Lincoln Storage of Buffalo, Inc., Appellant. Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Submitted June 25,1990;
    decided September 11, 1990
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal granted.


text:
    The People of the State of New York, Appellant, v Bienvenido Taveras, Respondent.
    Decided September 13, 1990
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of Barbara J. Serton, Respondent, v James Serton et al., Respondents, and Stephen C. Effler, Appellant.
    Submitted July 2,1990;
    decided September 13, 1990
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as denied movant’s application to be substituted as a party, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.

Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as granted petitioner’s motion to dismiss respondent Effler’s appeal, dismissed upon the ground that movant is not a party to that proceeding.


text:
    Betty O. Muka, Appellant, v State of New York, Respondent.
    Submitted July 23,1990;
    decided September 13, 1990
   Motion to vacate and reconsider orders of the Court of Appeals dated June 14, 1990 and for other items of relief denied. [See, 76 NY2d 769.]


text:
    The People of the State, of New York, Respondent, v Michael Hopkins, Appellant.
    Decided September 18, 1990
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s claim that he was denied his constitutional and statutory right to a particular jury chosen according to law, in whose selection he had a voice (People v Page, 72 NY2d 69, 73) is not preserved for our review because defendant failed to object to the juror’s dismissal at a time when the trial court could correct the claimed error. (CPL 470.05 [2].) Furthermore, the suppression court did not abuse its discretion in denying defendant’s request for an adjournment (see, People v Singleton, 41 NY2d 402, 405).

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 Delano Taylor, Respondent.
    Decided September 18, 1990

      APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney (Lindsay Brown of counsel), for appellant.

      Ursula Bentele for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Unless the parties consent, it is error to submit verdict sheets that, in addition to listing the charged crimes and the possible verdicts, also list some or all of the crimes’ statutory elements (CPL 310.30; People v Nimmons, 72 NY2d 830). Since such an error creates a risk that the jury’s deliberative process will be unfairly skewed it puts in serious question the reliability of the ultimate guilt determination (see, People v Owens, 69 NY2d 585, 590-591). Accordingly, although the parties dispute whether the retroactivity analysis in People v Pepper (53 NY2d 213) or in Griffith v Kentucky (479 US 314) is controlling here, we need not decide that question because the Appellate Division’s application of the statute as interpreted by Nimmons was proper under either approach.

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 ex rel. Nathaniel Abdullah, Appellant, v Anthony J. Laveglia, as Warden of the Brooklyn House of Detention, Respondent.
    Submitted June 18, 1990;
    decided September 18, 1990
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying petitioner’s application for a writ of habeas corpus, denied. Motion, insofar as it seeks leave to appeal from the Appellate Division order denying petitioner’s motion for reargument, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution. Motion for reconsideration of May 3, 1990 order of dismissal denied. [See, 75 NY2d 990.]


text:
    Joseph Amodei, Appellant, v New York State Chiropractic Association et al., Respondents, et al., Defendants.
    Submitted August 13, 1990;
    decided September 18, 1990
   Motion for reargument granted and, upon reargument, motion for leave to appeal granted. [See, 76 NY2d 704.]

Judge Bellacosa taking no part.


text:
    Jankie Chattergoon, as Administrator of the Estate of Rampatti Chattergoon, Deceased, Appellant, v New York City Housing Authority, Respondent.
    Submitted September 10,1990;
    decided September 18, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    East River Savings Bank, Plaintiff, v Gertrude Steingart, as Executrix of Daniel Steingart, Deceased, et al., Defendants. Movielab, Inc., et al., Respondents, v William Mendez, Jr., as Referee, Appellant.
    Submitted July 2,1990;
    decided September 18, 1990
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for sanctions denied. Cross motion for leave to appeal denied.


text:
    Theodore James et al., as Administrators of the Estate of Martin James, Deceased, Appellants, v Eber Bros. Wine & Liquor Corp., Respondent, et al., Defendants.
    Submitted July 2, 1990;
    decided September 18, 1990
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). /See, 75 NY2d 711.]


text:
    The People of the State of New York ex rel. Kennard R. Strutin, on Behalf of Frank Polk, Appellant, v Roger Phillips, as Sheriff of Orange County, Respondent.
    Submitted July 2, 1990;
    decided September 18, 1990
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648; People ex rel. Dennard v Meloni, 74 NY2d 916.)


text:
    Eleanore Wirth et al., Appellants, v State of New York, Respondent.
    Submitted July 16, 1990;
    decided September 18, 1990
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


author: Kaye, J.

text:
    The People of the State of New York, Respondent, v Ross D’Amico, Appellant.
    Argued May 30, 1990;
    decided September 19, 1990

      APPEARANCES OF COUNSEL

      James K. Weeks for appellant.

      Robert M. Morgenthau, District Attorney (Eleanor J. Ostrow, Ralph Fabrizio and James M. McGuire of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After an incident in which defendant shot and killed one person and assaulted and attempted to kill another, he was indicted for second degree murder, second degree attempted murder, second degree assault and criminal possession of a weapon in the second and third degrees. Thereafter, to facilitate an agreement reached after extensive plea negotiations, a felony complaint was filed charging defendant with first degree criminal use of a firearm in connection with the same incident. Defendant was held for Grand Jury action with respect to the new charge, but waived indictment and consented to be prosecuted by a superior court information (SCI) on that charge. He then pleaded guilty to the SCI charge and to first degree manslaughter in satisfaction of all counts in the indictment.

Though at the time, defendant actively and voluntarily sought to dispose of the charges in this manner, he now seeks vacatur of his plea to the SCI, arguing that his waiver of indictment was invalid and that the SCI was therefore jurisdictionally defective.

CPL 195.10 (1) provides that a defendant may waive indictment and consent to be prosecuted by an SCI when a local criminal court has held the defendant for Grand Jury action, which presupposes that a felony complaint has been filed, defendant has been arraigned on the complaint and, following a preliminary hearing (unless waived by defendant), the local criminal court has found reasonable cause to believe defendant committed a felony (see, CPL 180.10, 180.30, 180.70). The waiver of indictment requires the District Attorney’s consent and is not available where the defendant is charged with a class A felony (CPL 195.10 [1] [b], [c]). The waiver can occur in the local criminal court at the time the order is issued holding the defendant for Grand Jury action or it can occur in the appropriate superior court "at any time prior to the filing of an indictment by the grand jury” (CPL 195.10 [2] [b]).

Contrary to defendant’s contentions, his waiver of indictment satisfied these requirements. That defendant had been indicted for second degree murder, a class A felony, did not prohibit a waiver of indictment on the new charge contained in the felony complaint. The waiver procedure is triggered by the defendant being held for Grand Jury action on charges contained in a felony complaint (CPL 195.10 [1] [a]) and it is in reference to those charges that its availability must be measured. At the time of defendant D’Amico’s waiver, the outstanding second degree murder charge had already been acted upon by the Grand Jury and he was thus being held for Grand Jury action only on the charge of first degree criminal use of a firearm, a class B felony (Penal Law § 265.09) for which the waiver procedure is available.

Nor does the fact that he had already been indicted on related charges vitiate the waiver (compare, People v Boston, 75 NY2d 585). In Boston, defendant purported to waive indictment to attempted depraved indifference murder after he had been indicted for intentional murder and related offenses and without any felony complaint having been filed with respect to the new charge. We held that the waiver was ineffective because CPL 195.10 (2) (b) requires a waiver to be made before the filing of an indictment by the Grand Jury. In those circumstances, where defendant was no longer being held for Grand Jury action, we noted that a waiver would not serve the purposes of the statute — "affording a defendant the opportunity for a speedier disposition of charges as well as eliminating unnecessary Grand Jury proceedings” (People v Boston, supra, at 589).

We did not decide the question presented here, whether after indictment the waiver procedure is available when the defendant is held for Grand Jury action on a new felony complaint. We now conclude that it is. In this situation, in contrast to Boston, there exists the explicit statutory predicate for a waiver — an order holding defendant for Grand Jury action — and the waiver, by eliminating the need for a superseding indictment, serves both of the statutory purposes we identified in Boston.

The filing of the felony complaint and the court order holding defendant for Grand Jury action are not, as the dissent implies, insignificant events. The filing of a felony complaint commences the criminal action (CPL 1.20 [16], [17]) and an order holding the defendant for Grand Jury action requires a judicial determination that probable cause exists to believe that the defendant committed a felony. They are explicit statutory prerequisites for the waiver of indictment procedure which were lacking in Boston but are present here.

It should also be emphasized that the plea in this case was in no way improper. The plea-bargaining restrictions of CPL 220.10 were not violated by defendant’s plea to first degree manslaughter in satisfaction of the indictment. Defendant’s plea to the SCI simply made possible a longer minimum sentence than that available for the manslaughter charge. The same result could have been accomplished, but at additional time and expense, through a superseding indictment. Article 195, which was designed to avoid such unnecessary Grand Jury proceedings, should not be construed so as to require them.

Kaye, J.

(dissenting). Only a few months ago this court unequivocally declared that "[a]fter indictment, a defendant’s waiver of indictment and plea to a count interposed by Supe-

rior Court Information (SCI), rather than Grand Jury action, contravenes the unequivocal direction of CPL 195.10 and therefore must be nullified.” (People v Boston, 75 NY2d 585, 586-587.) That conclusion rested on both the plain language of CPL 195.10 (2) (b) permitting waiver of indictment in a superior court only "prior to the filing of an indictment by the grand jury” (emphasis added) and on the plain legislative purposes of affording defendants the opportunity for speedier disposition of charges and eliminating unnecessary Grand Jury proceedings. As the court wrote: "There is no indication that the Legislature also intended by the statute to authorize waiver of indictment by defendants after a Grand Jury has acted, when those same motivations are no longer present.” (Id., at 589.)

Noting that the 1974 amendment to article I, § 6 of the State Constitution provides the single exception to the constitutional requirement of prosecution by indictment (75 NY2d, at 588; People v Calbud, Inc., 49 NY2d 389, 395, n 3; People v Iannone, 45 NY2d 589, 593, n 4), we rejected the People’s contention that the Legislature intended by the waiver procedure to permit greater flexibility in the plea process generally, inviting revision of the statute if that was indeed the legislative purpose (People v Boston, 75 NY2d, at 589, supra).

Now we are again asked the same question but, remarkably, give the opposite answer, this time upholding defendant’s plea to an SCI after indictment, and sanctioning the facile circumvention of what we have just identified as the plain language and purpose of CPL 195.10 (2) (b).

There is no dispute as to the facts here. As the People recite, defendant was indicted on April 20, 1983 for shooting Richard SanSouci to death with a loaded pistol and attempting to shoot William Toth in the head. On April 27, 1984, while defendant was still being held on charges of murder, attempted murder, assault and criminal possession of a weapon, the following took place: pursuant to the bargain struck by the parties after extensive plea negotiations, the People filed a felony complaint with one new charge — criminal use of the firearm used in the crime; defendant waived indictment; the People filed an SCI; defendant pleaded guilty to both the indictment and the SCI; and the court promised defendant a sentence of concurrent terms of imprisonment. These events all took place on the same day.

In distinguishing Boston and justifying the result it now reaches, the court attributes critical importance to the filing of the felony complaint, several times noting that defendant here was being held for Grand Jury action with respect to the new charge, and that an order was issued holding him for action of a Grand Jury. No such order was issued. It is plain from a recitation of the facts, and undisputed by the parties, that this felony complaint was filed merely to facilitate the plea bargain, not to hold this defendant or submit the charge in the felony complaint to a Grand Jury. Significantly, the People make no pretense that it was.

Our abrupt aboutface cannot engender respect for this court’s holdings. But additionally, by virtue of today’s holding, the waiver process — intended, as we said in Boston, to be only a limited exception to the constitutional right of indictment by Grand Jury — now becomes the rule even in cases where the Grand Jury has already spoken. By the simple expedient of filing a felony complaint, prosecutors can obtain a waiver in any case where the Grand Jury has acted, and thereby secure a plea agreement they could not have had if the defendant were limited to pleading to the indictment.

The practical solution that was devised by the parties here may well be a very desirable one — that is not the issue. The point is that any solution should be effected within the letter and spirit of the law. Moreover, there is a proper course at hand — amendment of CPL 195.10 (2) (b) simply to delete the words "at any time prior to the filing of an indictment by the grand jury” — if that is genuinely what the Legislature intends.

Indeed, despite the court’s holding, the apparent extensive use currently being made of SCI’s to effectuate plea bargains suggests that legislative reexamination of CPL 195.10 (2) (b) would not be inappropriate; that statute was enacted 16 years ago, under quite different circumstances. Legislative reexamination certainly would be preferable to case-by-case review— with the possibility of further inconsistent results — of various efforts by the parties to maneuver around the statute as it is presently worded.

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

Order affirmed in a memorandum.

      . We note that the case was argued at the Appellate Division on the assumption that the second degree weapons possession charge was dismissed from the indictment and replaced by the charge contained in the SCI and that no felony complaint was filed prior to defendant’s waiver of indictment. The record before us, however, includes the felony complaint on which the SCI was based and the plea minutes, which reflect that defendant’s plea to the manslaughter charge was in satisfaction of all the indicted charges, including the second degree weapons possession charge.

      . It remains an open question whether the class A felony restriction of CPL 195.10 (1) (b) would prohibit a waiver to lesser charges when the defendant is held for Grand Jury action for a class A felony, as the Third Department has held (see, People v Sledge, 90 AD2d 588), or whether, instead, it prohibits only a waiver of indictment with respect to the class A felony.


text:
    In the Matter of James J., Appellant.
    Decided September 19, 1990
    APPEARANCES OF COUNSEL

      Judith Waksberg and Lenore Gittis for appellant.

      Victor A. Kovner, Corporation Counsel (Lawrence A. Salvato of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The police officer’s supporting deposition stated: "Deponent observed the [appellant] in possession of a controlled substance, to wit: fifty-two (52) vials of cocaine in crack form. I further observed [appellant] in possession of $70.00 USC.” A laboratory report affixed to the delinquency petition confirmed that the substance in appellant’s possession was in fact cocaine. Assuming, without deciding, that appellant is correct in contending that a juvenile delinquency petition must allege facts of an evidentiary nature, the petition in this casé clearly meets the test.

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:
    Estate of Margaret M. Berwick, Deceased, et al., Respondents, v State of New York, Appellant. Estate of Sebastian T. Pascale, Deceased, Respondent, v State of New York, Appellant. Norman B. Dix, Respondent, v State of New York, Appellant.
    Submitted June 4, 1990;
    decided September 19, 1990
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Matter of Michael P. v Diana G., 75 NY2d 1003).


text:
    The People of the State of New York, Respondent, v Rick Blake, Appellant.
    Submitted September 17,1990;
    decided September 19, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Jean Cadet, Appellant, v Joseph R. Harbeson, as Representative of the Trustees of Columbia University, Respondent.
    Submitted September 10, 1990;
    decided September 19, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Joseph Deubler, Appellant, v David B. Keefe et al., Respondents.
    Submitted September 10, 1990;
    decided September 19, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Federal Insurance Company, Respondent, v Blanca Cata, Appellant.
    Submitted July 30, 1990;
    decided September 19, 1990
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    George Guzman, Jr., Appellant, v Jeffrey Warenda, Respondent.
    Submitted July 23,1990;
    decided September 19, 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:
    In the Matter of Ann Poole, as Executrix of Nancy E. Hogan, Deceased, Respondent. Samuel B. Wallace, IV, Appellant.
    Submitted September 10,1990;
    decided September 19, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Betty O. Muka, Appellant, v Kenneth H. Cohn, Respondent.
    Submitted September 10,1990;
    decided September 19, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    NBT Bancorp, Inc., et al., Appellants, v Fleet/Norstar Financial Group, Inc., et al., Respondents.
    Submitted September 10, 1990;
    decided September 19, 1990


text:
    P.O.K. RSA, Inc., Respondent, v Village of New Paltz, Appellant.
    Submitted September 10,1990;
    decided September 19, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the dissent at the Appellate Division is not by at least two Justices (CPLR 5601 [a]).


text:
    In the Matter of Benjamin F. Raysor, Jr., Appellant, v New York State Division of Housing and Community Renewal et al., Respondents.
    Submitted September 10,1990;
    decided September 19, 1990
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 M [2]).


text:
    In the Matter of Antoine W., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Submitted September 10, 1990;
    decided September 19, 1990
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Sharon Wilder, Appellant, v Richard J. Koehler, as Commissioner of the New York City Department of Correction, et al., Respondents.
    Submitted July 2, 1990;
    decided September 19, 1990
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Thaddeus Zawadzki, Individually and as Administrator of the Estate of Sheila Zawadzki, Deceased, Appellant, v Ovid D. Knight et al., Defendants, and Biozyme Medical Laboratories Associates of MDS Health Group, Inc., Respondent.
    Argued September 5, 1990;
    decided October 11, 1990

      APPEARANCES OF COUNSEL

      Robert B. Nichols, Paul William Beltz and Margaret M. Gibbons for appellant.

      Lynn D. Gates for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly concluded that defendant laboratory made a prima facie showing of its entitlement to summary judgment. As stated by that court, defendant submitted proof to the effect that the blood test was properly performed, that defendant did not interpret the test results, and that the negative test result it obtained could have been correct even though a different laboratory obtained a positive result on a sample of decedent’s blood drawn two months later. In light of that showing, the affidavit of plaintiff’s medical expert was insufficient to raise a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-325; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Indeed, the expert’s conclusory assertion that defendant’s negative result was erroneous simply because of the later positive result raised no issue of fact at all; even if plaintiffs proof were fully credited by a fact finder, defendant has offered proof to the effect that there could be different results without any negligence, and plaintiff has offered nothing further to indicate defendant’s negligence in this case.

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

Order affirmed, with costs, in a memorandum.


text:
    Richard F. Bett, Respondent, v City of Lackawanna et al., Appellants.
    Argued September 11,1990;
    decided October 11, 1990

      APPEARANCES OF COUNSEL

      Norman A. LeBlanc, Jr., for appellants.

      John A. Michalek for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

Plaintiff, disabled while performing his duties as a fireman in 1971, was paid his full salary by the city until he failed to report for light duty in 1979 (see, General Municipal Law § 207-a [3]), at which time his employment was summarily terminated. In plaintiff’s action for damages and a declaratory judgment ordering continuation of his salary, the trial court granted plaintiff’s motion for summary judgment, holding that the city had never made a determination that plaintiff was medically able to perform light duties, as required by the statute. Although we do not subscribe to all of the trial court’s reasoning, it is clear that plaintiff’s moving papers, including pleadings and affidavits, gave notice of his alleged medical inability to work, affording defendant a fair opportunity for response, and making this issue a proper basis for the award of summary judgment. In light of this conclusion, we do not reach plaintiff’s alternative contention that a hearing was required prior to termination of his salary eight years after he became permanently disabled.

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Dexter Thomas, Respondent.
    Argued September 6,1990;
    decided October 11, 1990

      APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney (Seth M. Lieberman and Jay M. Cohen of counsel), for appellant.

      David Crow and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was in custody at Rikers Island on an unrelated charge on which he was represented by counsel. The prosecutor obtained an ex parte order directing defendant’s appearance in a lineup in this case (see, People v Coleman, 43 NY2d 222). There are undisturbed findings sufficient to support the conclusion that defendant requested the presence of his attorney at the lineup on two occasions — once while he was detained at the Kings County courthouse in connection with his arraignment on the unrelated charge, and then later after he was returned to Rikers Island. There is no evidence of any communication between defendant and counsel, or even that counsel was aware of defendant’s request. Under these circumstances, counsel’s statements and actions did not constitute a waiver of defendant’s right to have counsel at the lineup (see, People v Yut Wai Tom, 53 NY2d 44, 53-54).

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

Order affirmed in a memorandum.


text:
    In the Matter of Samuel Huggins, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Argued September 13,1990;
    decided October 16, 1990

      APPEARANCES OF COUNSEL

      Karen L. Murtagh-Monks and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We affirm for the reasons stated at the Appellate Division (155 AD2d 844). We agree with the Appellate Division that in the context of a prison disciplinary proceeding in which the prisoner’s mental state is at issue, a Hearing Officer is required to consider evidence regarding the prisoner’s mental condition (see, e.g., People ex rel. Gittens v Coughlin, 143 Misc 2d 748; People ex rel. Reed v Scully, 140 Misc 2d 379; Matter of Batthany v Scully, 139 Misc 2d 605). It is clear from the record in this case that the Hearing Officer considered the prisoner’s mental condition before deciding the matter.

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

Judgment affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Domingo Velasquez, Also Known as Cano Domingo, Also Known as J. Domingo Velasquez, Respondent.
    Argued September 5, 1990;
    decided October 16, 1990

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for appellant.

      John Nicholas Iannuzzi for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of three counts of murder in the second degree. There was a single witness to the killings and the evidence against defendant came principally from her. Her status as an accomplice was submitted to the jury as a question of fact.

We agree with the Appellate Division that the court’s instruction on the subject was error and requires a new trial. The court charged the jury that an "accomplice means a witness in a criminal action who, according to the evidence adduced at the trial, may reasonably be considered to have participated in the offenses charged in the indictment.” In addition, the court instructed the jury that if it found the witness was in fact "an active participant, an accomplice in the homicides * * * rather than a mere witness” the defendant could not be convicted on her uncorroborated testimony. In a supplemental charge the court instructed the jury that to be considered an accomplice, the witness would have had to have participated "in the events or an offense based upon the same or some of the same facts or conduct which constitute the offense charged, in this case homicide.” Defendant excepted to the inclusion of the phrase "in this case homicide.”

CPL 60.22 (2) (a) states that an accomplice is a witness in a criminal action who "according to evidence adduced in such action, may reasonably be considered to have participated in * * * [t]he offense charged.” A witness may also be an accomplice under paragraph (b) of that section if he or she may reasonably be considered to have participated in "[a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (emphasis added). The provision was intended to broaden the common-law definition of accomplice to provide a more equitable, operable and consistent standard for courts to determine when corroboration is applicable (see, People v Berger, 52 NY2d 214, 219).

The court’s charge did not adequately explain the language of paragraph (b) and thereby limited the scope of the jury’s inquiry. It erroneously permitted the jury to find the witness was not an accomplice even if it believed her a willing participant in a crime such as robbery or criminal facilitation based on "the same or some of the same facts or conduct” (CPL 60.22 [2] [b]).

Defendant also claims error in the court’s instruction permitting conviction if the jury found that the witness was an accomplice, provided they also found other evidence sufficient to corroborate the accomplice testimony. As the Appellate Division observed, and the District Attorney now concedes, there is no corroborating evidence in the record. Any error in this regard is not preserved for our review, however, because defendant failed to request the court to instruct the jury that it could not convict if it found the witness was an accomplice (see, People v James, 75 NY2d 874, 875). In the absence of such a request by defendant, we are unable to examine the basis for the jury’s verdict. Insofar as the Appellate Division decision may be read to hold that this error could not be waived, even in the absence of an exception, we disagree with it.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ollie Jackson, Appellant.
    Argued September 7, 1990;
    decided October 16, 1990
    APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

In instructing the jury, the trial court stated twice that a reasonable doubt was a doubt for which the jurors would, if called upon, be able to give a reason. It also offered an extended illustration to that effect, using jurors’ names. Defense counsel objected that the charge conveyed that a reasonable doubt must be based on a "reason that [the jurors] could articulate.” Counsel argued that such an instruction punished less articulate people on the jury, who might vote guilty "because of the charge * * * which says they should be able to articulate their reason.”

Defendant’s objection to the trial court’s definition of a reasonable doubt as a doubt for which some good reason arising from the evidence can be given does not preserve for our review his present claim — that the court’s definition and illustration diluted the People’s burden of proof by conveying a requirement that the doubting juror must give reasons and must support those reasons with evidence.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John M. Moissett, Jr., Appellant.
    Argued September 7, 1990;
    decided October 16, 1990

      APPEARANCES OF COUNSEL

      John Ferrara and Carl Silverstein for appellant.

      Stephen F. Lungen, District Attorney (Bonnie M. Mitzner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We conclude that there is support in the record for the Appellate Division’s determination that defendant knowingly, voluntarily and intelligently waived his right to appeal and that a waiver of the right to appeal was an integral part of the negotiated plea. Significantly, defendant does not contend that the plea itself was not voluntary, knowing and intelligent. Rather, relying on People v Seaberg (74 NY2d 1), he argues that the waiver of the right to appeal was infirm because the court failed to conduct the type of inquiry discussed in Seaberg and demonstrated its own confusion, when at sentencing, the court advised defendant of his right to appeal.

We have consistently held that trial courts are not required to engage in any particular litany during an allocution in order to obtain a valid guilty plea in which defendant waives a plethora of rights (see, People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; People v Harris, 61 NY2d 9). We have required, however, that for a waiver to be enforceable, it must be voluntary, knowing and intelligent (see, People v Harris, supra; People v Rodriguez, 50 NY2d 553; People v Adams, 38 NY2d 605; People v White, 32 NY2d 393; People v Nixon, supra), and we have specifically approved waivers of the right to appeal, finding that public interest concerns underlying plea bargains generally are served by enforcing such waivers (see, People v Seaberg, 74 NY2d 1, supra).

In Seaberg, we suggested more detailed guidelines for trial courts to follow in assuring that waivers are voluntary, knowing and intelligent (id., at 11) and observed that "the terms and conditions of the agreement and the defendant’s understanding of them [should] be placed upon the record to facilitate appellate review” (id.).

The plea and waiver here was concluded prior to our decision in Seaberg and although the record does not reveal an explicit waiver by defendant of his right to appeal, there is ample evidence in the record supporting the Appellate Division’s determination that defendant understood that he was waiving that right as part of the plea bargain and that his waiver was voluntary, knowing and intelligent. The crime of which defendant was accused was particularly tragic and defendant was in grave risk of a murder conviction and life sentence. His attorney explained at great length, on the record, that he had reviewed and evaluated the strength of the People’s evidence and discussed the case at length with the defendant and defendant’s family. Defense counsel then informed the court that a determination was made to seek and accept the People’s offer of a plea to manslaughter and a shorter sentence.

Counsel made it clear that "by taking of this plea [defendant] certainly would withdraw [the pretrial] motions and * * * certainly waive any right to appeal with regard to any aspects of the case.” The court thereafter questioned defendant as to his understanding of counsel’s statements and whether he had any questions concerning the statements. The court was assured by defendant that he understood and had no questions. Finally, before accepting the guilty plea the court again asked defendant if he had any questions either of his attorney or of the court; defendant had none. Thus here, as in Seaberg, "[t]here can be little doubt that the bargain was reasonable, that defendant knew and understood the terms of it and that he willingly accepted them.” (People v Seaberg, supra, at 12.) A valid waiver of defendant’s right to appeal having been accomplished, the alleged confusion at sentencing could not operate to vitiate it.

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

Order affirmed in a memorandum.