text:
    [644 NE2d 1370, 620 NYS2d 814]
    The People of the State of New York, Respondent, v William Heide, Appellant.
    Decided December 1, 1994

      APPEARANCES OF COUNSEL

      Cohen & Lombardo, P. C, Buffalo (Robert N. Convissar of counsel), for appellant.

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Susan D. Nusbaum of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed.

A two-pronged showing is required to establish entitlement to a lesser included offense charge. First, it must be shown that the additional offense is a lesser included offense within the meaning of CPL 1.20 (37). Second, the requesting party must show that there is a reasonable view of the evidence in the particular case that would support a finding that the defendant committed the lesser included offense, but not the greater (CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63).

It is undisputed here that criminally negligent homicide is a lesser included offense of manslaughter in the second degree (see, People v Stanfield, 36 NY2d 467). Moreover, the fact that defendant intentionally stabbed Golofit does not preclude a finding that defendant committed criminally negligent homicide. In criminal negligence, a person acts with the requisite culpable mental state when such person fails to perceive a substantial and unjustifiable risk that the act in question will cause the statutorily described result (Penal Law § 15.05 [4]). In the context of criminally negligent homicide, criminal negligence analysis focuses on the actor’s awareness of the risk that death will result from the act, not whether the underlying act is intentional. Here, a reasonable view of the record evidence supports a finding that defendant was not aware that stabbing Golofit would result in his death.

Defendant’s claim that certain remarks made by the prosecutor during summation were so prejudicial as to deprive him of a fair trial is unpreserved for this Court’s review. Following the Trial Judge’s curative instructions, defense counsel neither objected further, nor requested a mistrial. Under these circumstances, the curative instructions must be deemed to have corrected the error to the defendant’s satisfaction (People v Williams, 46 NY2d 1070, 1071).

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


source: Caselaw Access Project

license: Public Domain

text:
    [644 NE2d 1372, 620 NYS2d 816]
    The People of the State of New York, Respondent, v Kenneth Reed, Appellant.
    Argued October 21, 1994;
    decided December 1, 1994

      APPEARANCES OF COUNSEL

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

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for assault in the first degree in connection with the stabbing of Reginald Thomas on July 3, 1990 in the City of Rochester. After defendant’s arraignment, the People timely served a notice, pursuant to CPL 710.30, of their intention to offer evidence of a written statement obtained from defendant by the City police and, "verbal statements referred to on Inv. Clark’s Investigative Action Report.” Defendant concedes that he was furnished a copy of Investigator Clark’s report referred to in the notice. The report was read into the record by defense counsel at defendant’s trial during argument outside the presence of the jury. In that statement, defendant sought to justify stabbing Thomas in order to prevent being robbed by him and two other perpetrators. He related to Investigator Clark that he had been outside a high-rise apartment building talking to a friend when he was accosted by Thomas demanding a cigarette. When he refused the demand, Thomas struck him and knocked him down. Then two other men held him on the ground and removed his wallet. At that point, defendant stated that he pulled out a knife, stabbed Thomas, attempted unsuccessfully to stab the other two assailants, and then fled the scene.

At the suppression hearing, Investigator Clark’s testimony regarding the contents of defendant’s oral statement coincided in substancé with his investigative report, except that Clark neglected to mention the portion of his report describing defendant’s claim of having unsuccessfully attempted to stab the two other perpetrators of the robbery. When Clark testified at defendant’s trial, however, his description of defendant’s oral statement included the portion left out of his suppression hearing testimony — the unsuccessful attempt to stab the two other robbers. Defense counsel objected to this

discrepancy on the ground of lack of notice. The trial court overruled the objection and the jury convicted defendant of the assault committed against Thomas.

As previously noted, the People in their CPL 710.30 notice referred specifically to oral statements described in Investigator Clark’s report. That report was in turn furnished to defendant, and clearly set forth the sum and substance of defendant’s oral statements that Clark testified to at defendant’s trial, including the portion thereof he omitted at the suppression hearing. Thus, the People’s notice was in full compliance with the requirements of CPL 710.30 regarding a description of the contents of defendant’s oral statements (see, People v Lopez, 84 NY2d 425 [decided today]).

Defendant’s argument before this Court, that Clark should not have been permitted to testify at the trial regarding the portion of defendant’s statement omitted at the suppression hearing because the suppression court never ruled on the voluntariness of that portion, was not preserved and, thus, cannot be considered on this appeal. Defendant’s sole ground for objecting at the trial to the admissibility of that portion of his statement was the absence of notice.

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

Order affirmed in a memorandum.


text:
    Marion Barland, Appellant, v Cryder House, Inc., et al., Respondents.
    Submitted August 29, 1994;
    decided December 1, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied appellant’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    J. Michael Farrell et al., Plaintiffs, v Stafford Machinery Corporation, Defendant. SP&D Transfer et al., Respondents; Norfolk Paper Co., Inc., Appellant.
    Submitted September 26, 1994;
    decided December 1, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying defendant’s motion to set aside the verdict and direct a verdict, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Beulah D. Jones, Appellant. John F. Hudacs, as Commissioner of Labor, Respondent.
    Submitted November 21, 1994;
    decided December 1, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it was not timely taken (CPLR 5513 [a]).


text:
    In the Matter of Alton H. Maddox, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted September 19, 1994;
    decided December 1, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.

Judge Smith taking no part.


text:
    [644 NE2d 1373, 620 NYS2d 817]
    The People of the State of New York, Respondent, v James Watt, Appellant.
    Argued September 22, 1994;
    decided December 6, 1994

      APPEARANCES OF COUNSEL

      Ruberti, Girvin & Ferlazzo, P. C., Albany (Salvatore D. Ferlazzo of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

. Defendant was convicted of various criminal sexual acts involving infants at the day care center where he worked and lived. The Appellate Division dismissed the indictments, with leave to resubmit, concluding the time intervals specified for each criminal act were per se excessive (179 AD2d 697). The People appealed to this Court, limiting the appeal to the four counts of rape and two counts of sodomy committed during the five-month period between August 1, 1984 and December 31, 1984 involving the infant N.B. We held that a per se bar should not be applied (see, 81 NY2d 772), and remitted the matter to the Appellate Division to reconsider its decision under the standard set forth in People v Morris (61 NY2d 290).

In determining whether the Morris standard has been met, the relevant inquiries are whether (1) the People acted diligently to institute the criminal proceedings and (2) the period in the indictment, as particularized by the bill of particulars, provided reasonable notice to defendant. The determination of excessiveness must be made on an ad hoc basis after considering all the factual circumstances, but in Morris we set forth a number of nonexclusive criteria which could be considered. It is clear, however, that if the time period charged is so large that it is "virtually impossible” for the defendant to prepare a defense, the indictment must be dismissed "even though the People have acted diligently and a shorter time period cannot be alleged” (People v Beauchamp, 74 NY2d 639, 641).

Contrary to defendant’s contention on this appeal, the Appellate Division did not confine itself to examining the People’s diligence in bringing the prosecution but also considered whether the defendant received reasonable notice under the circumstances. In considering the second part of the Morris analysis it noted that (1) the indictment charged defendant with 10 criminal acts involving N.B. over a five-month period, (2) although the acts involving N.B. terminated in December 1984, defendant’s unlawful conduct continued with respect to other children until he was arrested on May 3, 1985, (3) the first indictment in this complex and multicount prosecution was handed down two and one-half months after the arrest and (4) the complainant N.B. was unable to further particularize the offenses. In this latter respect, the Court pointed out that N.B. was eight years old at the time of the alleged abuse; the abuse took place in a location where she went on a daily basis, as part of a daily routine interrupted only by school holidays and with the same staff and children present; and that she exhibited serious physical and emotional trauma. The Court concluded that under the circumstances, she could not particularize the exact dates of the allegedly abusive acts (see, People v Morris, supra, at 296).

We agree with the Appellate Division that under the circumstances this five-month period was a reasonable period of time for defendant to address in preparing his defense. Moreover, as the Appellate Division noted, defendant lived and worked in the day care center; he was always there. Thus, any potential alibi defense he might have advanced was far less meaningful.

Two elements in the Appellate Division’s analysis require comment. First, it was established that the older children, including N.B., had been threatened by the defendants and told that their parents would be killed if they revealed the abuse, and that this was a major factor in the children’s not having revealed it sooner. Indeed, the first indication of what was going on at the day care center came from the complaints of a three year old, and the defendants were arrested the next day. The Appellate Division concluded that the threats kept N.B. and the other older children quiet, and that this was a factor to be weighed in determining the reasonableness of the time interval between the dates of the charged crimes and the eventual indictment. The Court then went on to say "[cJLearly, the defendant should not be heard to complain that he was deprived of adequate notice of the charges when his own conduct directly led to the impossibility of the People fulfilling their obligation to provide him with the most precise notice possible under the circumstances.” (192 AD2d, at 71.) Insofar as the Court’s statements can be read as lightening the People’s statutory burden, it is incorrect.

Furthermore, though decisions from foreign jurisdictions could be considered by the Appellate Division, the time frames approved by them are of limited relevance in New York cases.

Defendant also challenges the court’s determination during trial that N.B. was a vulnerable witness and could be allowed to testify via two-way closed circuit television (see, CPL 65.10). Insofar as defendant maintains the court was obligated to hold a hearing and failed to do so, that objection is unpreserved. Insofar as the defendant challenges the ruling, the court’s finding of vulnerability is supported by its questioning and observation of the infant, by the testimony of a social worker and her report to the court.

We have examined defendant’s remaining contention and find it to be without merit.

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

Order affirmed in a memorandum.


text:
    [644 NE2d 1376, 620 NYS2d 820]
    The People of the State of New York, Appellant, v Mark J. Leabo, Respondent.
    Argued October 18, 1994;
    decided December 6, 1994

      APPEARANCES OF COUNSEL

      Richard H. Edwards, District Attorney of Franklin County, Malone, for appellant.

      Richard Rivera, Albany, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Pursuant to a negotiated plea agreement, defendant was sentenced to a one-to-three-year indeterminate term of imprisonment on his conviction for driving while intoxicated as a felony and a one-year determinate sentence on his conviction for fourth degree criminal mischief. As the court below noted, Penal Law § 70.35 is applicable, since the criminal mischief offense was committed before the indeterminate sentence was imposed. That statute, which provides that "service of an indeterminate sentence of imprisonment shall satisfy any definite sentence of imprisonment imposed on a person for an offense committed prior to the time the indeterminate sentence was imposed,” contemplates that the definite and indeterminate sentences will be served concurrently. Accordingly, the Appellate Division correctly modified defendant’s sentence to make the indeterminate and definite terms run concurrently rather than consecutively, as the trial court had directed.

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

Order affirmed in a memorandum.


text:
    [644 NE2d 1377, 620 NYS2d 821]
    The People of the State of New York, Respondent, v Elkanoh Krausz, Appellant.
    Argued October 26, 1994;
    decided December 6, 1994

      APPEARANCES OF COUNSEL

      Laufer & Farkash, New York City (Jacob Laufer, Lawrence Farkash, Edward J. Reich and Patricia M. Karish of counsel), for appellant.

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (John Goldsmith and David R. Huey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was charged with and convicted of separate acts of sexual abuse committed against two women, both former employees. Defendant was represented by retained counsel at pretrial and trial proceedings. At the conclusion of the Peopie’s case, defendant’s counsel asserted, in open court, that, as to an unrelated civil matter, he represented the father of one of the sexual abuse victims. Defense counsel declared that he could not cross-examine the victim’s father if he were called as a People’s witness. He further declared that because of this complication, the People had determined not to call the father as a witness in return for defense counsel’s stipulation on the record that he would not request a missing witness instruction. The trial court failed to conduct a Gomberg inquiry (see, People v Gomberg, 38 NY2d 307) and the trial continued, culminating in the guilty verdict. While the Appellate Division found that the trial court erred, it concluded that reversal of the conviction was not required. A Judge of this Court granted defendant leave to appeal.

The Appellate Division was correct that error occurred because the trial court failed to inquire into whether defendant understood the potential risks involved in the continued, manifestly conflicted representation by his chosen attorney. No basis exists or needs to be pursued under the circumstances presented here to assess whether defendant would knowingly have wished the attorney to continue in the criminal matter representation.

The record is unassailable that defense counsel’s concurrent representation of defendant and the father of one of the victims, in a case such as this, actually created a substantial relation to "the conduct of the defense” (People v Lombardo, 61 NY2d 97, 103). Defense counsel documented the evident conflicting duties by stipulating a dubious quid pro quo with the People, so as to dispense with defense counsel’s cross-examining his own civil client at the criminal trial of his other client, the defendant-appellant here. These circumstances realistically manifest a conclusive and inextricable conflict and detrimental prejudice to the interests of defendant-appellant.

As the Court aptly stated in McDonald, " '[i]t takes no great understanding of human nature to realize that the individuals who had been [assaulted] might be less than happy and might go so far as to remove the attorney from their good graces if th[e] defendant were acquitted or received a light sentence’ ” (People v McDonald, 68 NY2d 1, 10). The father of the victim of sexual abuse committed by her employer could not conceivably have reacted differently if his lawyer in the civil matter had proceeded zealously and possibly successfully in the vindication of the criminal defendant against the interests of the daughter victim. We conclude, therefore, that on this record the error is reversible and merits ordering a new trial (see, People v Wandell, 75 NY2d 951; People v McDonald, 68 NY2d 1, supra; People v Mattison, 67 NY2d 462, cert denied 479 US 984).

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

Order reversed, etc.


text:
    [644 NE2d 1378, 620 NYS2d 822]
    The People of the State of New York, Respondent, v Reginald Johnson, Appellant.
    Argued October 27, 1994;
    decided December 8, 1994

      APPEARANCES OF COUNSEL

      Allen Fallek, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anne C. Feigns, Roseann B. MacKechnie and Richard T. Faughnan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether the police knew or should have known defendant was actually represented by counsel on the matter for which he was in custody (People v Rogers, 48 NY2d 167), as he alleges, the record supported the determination of both lower courts that defendant’s mother and brother were not acting as agents of the police when they spoke to defendant about his killing of his mother’s long-time live-in companion (CPL 60.45 [2] Ob]; People v Ray, 65 NY2d 282). Moreover, a parent-child testimonial privilege (which defendant urges be adopted to preclude his mother’s testimony) would not even arguably apply in that defendant was 28 years old at the time of the conversation with his mother; another family member was present; the mother testified before the Grand Jury hearing evidence against defendant; and the conversation concerned a crime committed against a member of the household.

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

Order affirmed in a memorandum.


text:
    [644 NE2d 1379, 620 NYS2d 823]
    The People of the State of New York, Respondent, v Eustaquio Flores, Appellant.
    Argued October 20,1994;
    decided December 8,1994

      APPEARANCES OF COUNSEL

      Jeffrey I. Richman, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Caroline R. Donhauser and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant gave an undercover police officer more than four ounces of cocaine on March 28, 1990, for the sum of $3,700. On April 5, 1990, and again on May 23, 1990, defendant offered to sell the same undercover officer specific quantities of cocaine for agreed upon amounts of money. However, no money or drugs changed hands as a result of either the April 5th or May 23d agreements. Defendant was indicted on five counts arising from these incidents, including one count of criminal sale in the first degree (Penal Law § 220.43) for the April 5 transaction and one count of criminal sale in the second degree (Penal Law § 220.41) for the May 23 transaction arising out of his offers to sell on those dates (see, Penal Law § 220.00 [1] [defining sale to include an offer or agreement to sell a controlled substance]). Defendant was convicted on two counts of criminal sale of a controlled substance in the first degree (the Mar. 28 and Apr. 5 transactions) and one count of criminal sale of a controlled substance in the second degree (the May 23 transaction). The Appellate Division modified, on the law, reducing the convictions for the April 5 and May 23 transactions to criminal sale in the third degree (Penal Law § 220.39) because there was no independent evidence of the weight of the drugs offered for sale (196 AD2d 882).

On this appeal defendant argues that the convictions arising from the April 5 and May 23 transactions must be reversed and the charges dismissed because the People did not prove that defendant "knowingly” sold cocaine, i.e., there was no evidence that the offers to sell were bona fide. This claim was not a ground for dismissal raised at trial, however. The only argument for dismissal made to the trial court was that the People had presented no evidence of consummated sales, but rather at most attempted sales. That, however, is inconsistent with defendant’s present argument. If, as defendant now asserts, the evidence was insufficient to demonstrate the mens rea element for criminal sale, it also would have been insufficient to sustain a conviction for attempt, which is a specific intent crime (Penal Law § 110.00; see also, People v Bracey, 41 NY2d 296, 300). Because defendant did not call to the trial court’s attention the nature of the error alleged here, it was not preserved and thus, we cannot reach it on this appeal.

Alternatively defendant argues that his conviction for criminal sale in the first degree relating to the consummated sale of March 28 should be reversed and a new trial ordered because the trial court refused to charge the jury on the lesser included offense of criminal sale of a controlled substance in the third degree. The forensic evidence adduced at the trial was that the cocaine sold by defendant on March 28 weighed in excess of four ounces, and this was consistent with the testimony of the experienced undercover officer who purchased the drugs. There is no reasonable view of the evidence which could support a finding that the weight of the drugs was less than two ounces (Penal Law § 220.43) and, hence, defendant was -not entitled to a charge on the lesser included offense (CPL 300.50 [1], [2]).

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

Order affirmed in a memorandum.


text:
    [644 NE2d 1381, 620 NYS2d 825]
    Bryant Avenue Tenants’ Association et al., Appellants, v Edward I. Koch, as Mayor of the City of New York, et al., Respondents. (And Five Related Actions.)
    Argued October 25, 1994;
    decided December 8, 1994

      APPEARANCES OF COUNSEL

      Legal Services for New York City (Andrew Scherer and David Robinson of counsel), Legal Aid Society, New York City (Scott A. Rosenberg, and Helaine M. Barnett of counsel), Harlem Legal Services, New York City (Roland Goff and Cheryll L. Davis of counsel), Robert M. Salzman, Brooklyn, and Brooklyn Legal Services, Corp. A (Robyn Fisher and Martin Needelman of counsel), for appellants.

      Iris J. Korman, Bronx, Dennis J. Saffron and G. Oliver Koppell, Attorney-General, New York City (Jerry Boone of counsel), for New York State Division of Housing and Community Renewal, respondent.

      Strook & Strook & Lavan, New York City (Joseph L. Forstadt and Richard S. Katz of counsel), for Rent Stabilization Association of New York City, Inc. and another, respondents.

      Horing & Welikson, Forest Hills (Marcia P. Hirsch of counsel), for Hyde Park Associates, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum, and, as so modified, affirmed. The certified question should be answered in the negative.

The Division of Housing and Community Renewal’s (DHCR) Rent Stabilization Code (9 NYCRR 2522.4 [a] [8]) permits the collection of temporary retroactive rent increases of up to 6% annually in addition to collection of prospective, permanent rent increases of up to 6% annually for major capital improvements (MCIs). This regulation authorizes landlords to recoup arrears accumulated during the period of administrative delay which occurs in the processing of applications for MCI rent increases, from the filing of the landlord’s MCI application until the issuance of the order granting the permanent MCI increase. However, because the regulation permits the collection of an aggregate increase in rent in excess of 6% in a single year, we now hold that it violates Rent Stabilization Law (Administrative Code of City of NY) §26-511 (c)(6).

Section 26-511 (c) (6) is clear on its face: "[t]he collection of any increase in the stabilized rent for any apartment * * * shall not exceed six percent in any year * * * with collectability of any dollar excess above said sum to be spread forward in similar increments.” Thus the statute unequivocally places a ceiling on the total increased rental amount that may be collected in a given year — spreading the excess forward, thereby protecting tenants from precipitous rent increases. DHCR’s regulatory scheme permits collection of up to a 12% increase in a single year, thus exceeding the statutory ceiling. The regulation would thereby violate one of the primary purposes of the Rent Stabilization Law "to protect tenants from eviction as a result of rapidly spiraling rent increases” (Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal, 75 NY2d 206, 216). Moreover, the regulation leaves little, if any, scope to the statutory directive that collection of any "dollar excess” over 6% is to be spread forward (Rent Stabilization Law § 26-511 [c] [6]). Consequently, the regulation cannot be upheld.

In contrast, the merger of MCI rent increases into the base rent of stabilized tenants pursuant to the Rent Stabilization Code (9 NYCRR 2522.4 [a] [8]), and any resulting compounding effect caused by the application of rent guideline increases to the increased base rent, is proper under Rent Stabilization Law §26-511 (c) and this Court’s decision in Matter of Ansonia Residents Assn. v New York State Div. of Hous. & Community Renewal (supra). The practice of merging the increase into the base rent was implicitly condoned by Ansonia and is, in any event, consistent with the intent of the Rent Stabilization Law because it provides owners with an incentive to make improvements by assuring them an adequate return on their investment including recovery of additional expenses likely to be incurred in maintaining such improvements.

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

Order modified, etc.


text:
    [645 NE2d 1212, 621 NYS2d 512]
    Thomas R. Kennedy, Respondent, v Valley Forge Insurance Company et al., Appellants, and Louis C. Mancuso et al., Respondents.
    Decided December 8, 1994

      APPEARANCES OF COUNSEL

      O’Shea, Reynolds & Cummings, Buffalo (William A. Long, Jr., of counsel), for appellants.

      Harris, Beach & Wilcox, Rochester (Henry L. Jesserer, III, of counsel), for Thomas R. Kennedy, respondent.

      Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Kim S. Murphy of counsel), for Louis C. Mancuso and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (203 AD2d 930).

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


text:
    Hope Berger, Individually and as Administratrix of the Estate of Morton Berger, Deceased, Appellant, v Greg Dykstra et al., Defendants, and Centerline Distributors, Respondent. (And Another Related Action.)
    Submitted September 12, 1994;
    decided December 8, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied plaintiff’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Morris Chaff, Individually and as Executor of Licia Chaff, Deceased, v Parkway Hospital et al., Respondents.
    Submitted September 12, 1994;
    decided December 8, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying plaintiff’s motion for leave to amend the complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Jose R. Costa, as Administrator of the Estate of Jose A. Creio, Deceased, and Another, Respondent, v Colonial Penn Insurance Company, Appellant, et al., Defendants.
    Submitted September 19, 1994;
    decided December 8, 1994
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Dunkin’ Donuts, Incorporated, Respondent, v HWT Associates, Inc., et al., Appellants.
    Submitted September 12, 1994;
    decided December 8, 1994
   Motion, treated in part as a motion for reargument of defendants’ motion for leave to appeal from the Appellate Division order dated March 9, 1992, dismissed as untimely (22 NYCRR 500.11 [g] [3]) [see, 80 NY2d 893]; motion, treated in part as a motion for leave to appeal, pursuant to CPLR 5602 (a) (1) (ii), from the parties’ stipulation, seeking to bring up for review the prior nonfinal Appellate Division order, dismissed upon the ground that the stipulation sought to be appealed from, being conditional, does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 14, at 60-65).


text:
    In the Matter of Geraldine Rose W., a Child Alleged to be Neglected and/or Abandoned. Catholic Child Care Society of the Diocese of Brooklyn, St. Joseph Services for Children and Families, Respondent; Vanessa W., Appellant.
    Submitted September 6, 1994;
    decided December 8, 1994
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the Appellate Division order dismissing the appeal to that Court from the determination entered upon default (CPLR 5511).

Judge Levine taking no part.


text:
    Glendora, Appellant, v Lydia Gallicano et al., Respondents.
    Submitted August 29, 1994;
    decided December 8, 1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s order in action No. 1 denying plaintiff’s motion to amend the complaint and plaintiff’s motion for leave to pay rent into court, dismissed upon the ground that that part of the order does not finally determine action No. 1 within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [646 NE2d 795, 622 NYS2d 493]
    Helen Piacquadio et al., Respondents, v Recine Realty Corp. et al., Appellants.
    Argued October 26, 1994;
    decided December 13, 1994

      APPEARANCES OF COUNSEL

      Kelly Flanagan Hodukavich & Goldberg, New York City (William G. Kelly and Carol R. Finocchio of counsel), for appellants.

      Profeta & Eisenstein, New York City (Fred R. Profeta, Jr., Michael J. Orlofsky and Robert G. Spevack of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Plaintiff Helen Piacquadio slipped and fell in defendants’ restaurant on a terrazzo stair where liquid had accumulated to cover an area approximately 10 inches by 6 inches in size. Nothing in the record establishes that the terrazzo was otherwise dangerous or negligently maintained (see, Kline v Abraham, 178 NY 377). Because a "general awareness” that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition that caused plaintiff’s fall (see, Gordon v American Museum of Natural History, 67 NY2d 836, 838; see also, Madrid v City of New York, 42 NY2d 1039), liability could be predicated only on failure of defendants to remedy the danger presented by the liquid after actual or constructive notice of the condition.

The evidence does not establish that defendants had either actual or constructive notice of the hazardous condition that caused plaintiff to slip and fall, and accordingly the complaint should be dismissed.

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

Order reversed, etc.


text:
    [646 NE2d 796, 622 NYS2d 494]
    Stephanie Murphy et al., Appellants, v A.J. Conner et al., Defendants, and Newman & Doll et al., Respondents. Stephanie Murphy et al., Appellants, v City of Elmira, Respondent.
    Argued October 26, 1994;
    decided December 13, 1994

      APPEARANCES OF COUNSEL

      Learned, Reilly & Learned, Elmira (Scott J. Learned of counsel), for appellants.

      MacKenzie Smith Lewis Michell & Hughes, Syracuse (Barney F. Bilello of counsel), for Newman & Doll and others, respondents.

      Davidson & O’Mara, P. C, Elmira (Thomas F. O’Mara and Ransom P. Reynolds, Jr., of counsel), for City of Elmira, respondent.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed, with costs.

These actions were commenced in April 1990, by Stephanie and Lyndon Murphy, to recover damages for personal injuries sustained on June 15, 1987 by plaintiff Stephanie Murphy when she slipped and fell on the floor of Eastowne Mall, owned by defendant City of Elmira, and, at the time of plaintiff’s incident, operated and maintained by the Elmira Urban Renewal Agency. The issue here is whether the Appellate Division erred in reversing the motion court and granting summary judgment to the defendants. The complaints allege that defendants were negligent in allowing the floor of the mall to exist in a slippery and unsafe condition, in constructing or causing to be constructed a floor surface in a slippery and unsafe condition, and in failing to warn of the condition. In an examination before trial, plaintiff testified that as she walked out into the mall, she fell. Although not exactly sure why she fell, plaintiff stated that she was completely outside of the archway of her employer’s door, at least six feet away from the doorway, walking into the common area of the mall and fell on one of two types of tile.

Defendants Newman & Doll, Cahn Engineering and Greiner, Inc., a firm providing engineering and architectural services in connection with construction of the mall, and its successors in interest, moved for summary judgment dismissing the complaint against them. Defendant City also moved for summary judgment dismissing the complaint upon the ground that the claim of slippery floor tiles was insufficient as a matter of law. Relying upon the opinion of plaintiffs’ expert that the coefficient of friction of the flooring materials in the area where plaintiff fell failed to conform to industry standards, Supreme Court denied the motions.

The Appellate Division reversed and granted defendants’ motions. While noting that summary judgment in favor of the defendants was generally precluded when the opinion of a qualified expert established that a plaintiff’s injuries were caused by a deviation from relevant industry standards, the Court concluded that in this case plaintiffs’ expert’s opinion was essentially that plaintiff fell because the floor was too slippery. Relying on Kline v Abraham (178 NY 377), the Court held that in the absence of evidence of a negligent application of wax or polish, liability would not be imposed as a result of a floor being slippery by reason of smoothness. Two Justices dissented and voted to affirm in each case, maintaining that the expert’s affidavit, providing information as to industry standards, supported plaintiff’s assertion of negligence and raised a question of fact requiring resolution by trial.

On this appeal plaintiffs argue that the surface on which plaintiff Stephanie Murphy fell was inherently dangerous.

Plaintiffs have not established that factual issues preclude summary judgment. Plaintiff offers no evidence of the reason for her fall other than the tiles being smooth. There was no evidence, for example, that the tiles were wet, or that there was dirt or debris from inclement weather, or that the tiles had recently been polished or waxed.

Plaintiff provided an affidavit of an engineering expert. Ordinarily, the opinion of a qualified expert that a plaintiff’s injuries were caused by a deviation from relevant industry standards would preclude a grant of summary judgment in favor of the defendants (see, e.g., Trimarco v Klein, 56 NY2d 98, 106). Here, however, there was no indication by plaintiff of exactly where she fell and the expert’s examination of a part of the general area is insufficient to preclude summary judgment for defendants. Moreover, the expert’s affidavit was conclusory, raised no triable issues of fact and, as such, was properly disregarded by the Appellate Division.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    [646 NE2d 798, 622 NYS2d 496]
    Lige Simmons et al., Appellants, v Metropolitan Life Insurance Company, Defendant and Third-Party Plaintiff-Respondent. National Cleaning Contractors Division of Kinney National Services, Inc., Third-Party Defendant-Respondent.
    Decided December 13, 1994

      APPEARANCES OF COUNSEL

      Seligson, Rothman & Rothman, New York City (Martin S. Rothman of counsel), for appellants.

      Carol R. Finocchio, New York City, for third-party plaintiff-respondent.

      Michael Majewski, Mineóla, for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

The evidence presented at trial, even when considered in a light most favorable to plaintiffs, fails to establish a prima facie case of negligence. Although plaintiffs presented evidence that icy patches had been noticed weeks prior to the accident, no testimony was introduced that defendant was notified of these icy conditions. Additionally, no evidence was introduced as to the origin of the patch of ice on which plaintiff allegedly slipped and whether defendant had sufficient time to remedy the dangerous condition. The testimony that it had snowed a week prior to the accident was insufficient to establish notice because no evidence was introduced that the ice upon which plaintiff allegedly fell was a result of that particular snow accumulation. In light of the record evidence, the Appellate Division properly held that the jury’s conclusion that defendant had constructive notice was irrational and based on pure speculation.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick 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 Anonymous.
    Submitted October 24, 1994;
    decided December 13, 1994
   Motion, insofar as it seeks reargument of motion for leave to appeal, denied; motion, insofar as it seeks clarification of the Court of Appeals order of September 13, 1994, granted. The motion for leave to appeal, insofar as it sought leave to appeal from the Appellate Division order of May 16, 1994 denying reargument, was dismissed upon the ground that that order did not finally determine the action within the meaning of the Constitution. The motion for leave to appeal, insofar as it sought leave to appeal from the Appellate Division order of March 2, 1994, was dismissed for failure to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]). [See, 84 NY2d 844.]


text:
    Richard Becker, Appellant, v Frank Trionfo et al., Respondents.
    Submitted August 22, 1994;
    decided December 13, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court does not have jurisdiction to entertain the appeal from the order of the Appellate Term of the Supreme Court (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of East Thirteenth Street Community Association et al., Appellants, v New York State Urban Development Corporation, Respondent.
    Submitted November 14, 1994;
    decided December 13, 1994
   Motion by appellants to amend the Court of Appeals remittitur dated October 20, 1994 to delete costs denied. Cross motion by respondent to amend this Court’s remittitur dated October 20, 1994 to add an award of costs in all courts denied. [See, 84 NY2d 287.]


text:
    In the Matter of Jamar A., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Submitted October 3, 1994;
    decided December 13, 1994
   Motion to dismiss appeal denied. Cross motion for an extension of time to file a notice of appeal in the court of original instance granted.


text:
    The People of the State of New York, Respondent, v Nathaniel Abdullah, Appellant.
    Submitted October 11, 1994;
    decided December 13, 1994
   Motion, insofar as it is made by Nathaniel Abdullah purportedly on behalf of Garry Williams, dismissed upon the ground that Abdullah is not Williams’ authorized legal representative; motion by Abdullah, on behalf of himself, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied Abdullah’s application for a writ of error coram nobis, dismissed upon the ground that no appeal lies to the Court of Appeals from that portion of the order (CPLR 5601, 5602; CPL 450.90; People v Tramell, 77 NY2d 893); motion by Abdullah, on behalf of himself, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied Abdullah’s habeas corpus application, denied. Motion by Abdullah, on behalf of himself, for reconsideration by the full Court of Appeals of the order of an individual Judge of this Court dismissing Abdullah’s criminal leave application [see, 83 NY2d 1001], dismissed upon the ground that the Court does not have jurisdiction to entertain it (see, 22 NYCRR 500.10 [b]). Motion by Abdullah, on behalf of himself, for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Roberto Castro, Respondent.
    Submitted November 7, 1994;
    decided December 13, 1994
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Ellis, 71 NY2d 1012; People v Parker, 71 NY2d 887; People v Pacheco, 67 NY2d 631; People v Mintz, 20 NY2d 753, 770).


text:
    The People of the State of New York, Appellant, v Joshwyne M. Florence, Respondent.
    Submitted November 7, 1994;
    decided December 13, 1994
   Motion to dismiss the appeal herein granted and the appeal dismissed as moot. [See, 84 NY2d 867.]


text:
    In the Matter of Carl D. Rosel, Appellant, v Patricia Ellison et al., Respondents.
    Submitted October 17, 1994;
    decided December 13, 1994
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief and a preference dismissed as academic.


text:
    Lyndon P. Sharrow, Respondent, v Dick Corporation, Defendant and Third-Party Respondent, and Southern Steel Corporation, Defendant and Third-Party Plaintiff-Respondent-Appellant. G & H Steel Service, Inc., Third-Party Plaintiff-Appellant-Respondent.
    Submitted August 15, 1994;
    decided December 13, 1994
   Motion, insofar as it seeks to dismiss the appeal taken by third-party defendant G & H Steel Service, Inc., denied. Motion, insofar as it seeks to dismiss the appeal taken by defendant Southern Steel Corporation, granted and appeal dismissed, without costs, upon the ground that defendant, having stipulated to the additur at the Appellate Division, is not a party aggrieved (see, CPLR 5511; Sogg v American Airlines, 83 NY2d 846; Gilroy v American Broadcasting Co., 43 NY2d 825; Dudley v Perkins, 235 NY 448, 457).


text:
    [646 NE2d 799, 622 NYS2d 497]
    The People of the State of New York, Respondent, v Manuel Beriguette, Appellant.
    Argued November 30,1994;
    decided December 21,1994

      APPEARANCES OF COUNSEL

      Guido & Skwiersky, White Plains (Barry Jay Skwiersky and Catherine M. Guido of counsel), for appellant.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (John C. Zuroski and Richard E. Weill of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In response to complainant’s report that defendant, her boyfriend, had assaulted her and threatened to kill her with a gun, four Yonkers police officers accompanied complainant to her apartment to arrest defendant and search for the gun. During the search incident to defendant’s arrest, a ring of car keys bearing defendant’s name fell from his clothing. After being advised of his Miranda rights, defendant informed the officers that they were the keys to his car, the red Chevy parked across the street from the apartment.

A search of the apartment, on complainant’s consent, failed to locate the gun. Complainant informed the officers that defendant might have placed the gun in his car, the red Chevy. Shining a flashlight into the driver’s side window, the officer saw a partially open vinyl bag containing a clear plastic bag holding a brown substance resembling heroin. The officer’s supervisor concurred that the item resembled heroin and, after a check of the license plates revealed that they were reported stolen, the officer unlocked first the door and then the trunk of the car, recovering drugs and drug paraphernalia.

Defendant moved to suppress the seized evidence on the ground that he did not consent to the search, and sought suppression of his statements that the keys belonged to him, that his car was the red Chevy parked across the street, and that the officers could search his car, on the ground that they were made involuntarily. County Court denied suppression, finding that defendant’s statements and consent to search had been voluntary. Defendant was convicted of first degree criminal possession of a controlled substance and second degree criminal use of drug paraphernalia, and the Appellate Division affirmed.

We reject defendant’s contention that County Court was obligated to inquire further, after reviewing his motion for reassignment of counsel, into the factual bases for his pro se submission, as defendant failed to show good cause for substitution (see, People v Sawyer, 57 NY2d 12, 18-19). Irrespective of the standard for determining the voluntariness of defendant’s consent (see, People v Gonzalez, 39 NY2d 122), we determine that there is evidence in the record to support the Appellate Division’s conclusion that the heroin was in plain view on the front seat of the car and thus lawfully viewed by the police in response to complainant’s information that the gun might be found there (see, Horton v California, 496 US 128; People v Diaz, 81 NY2d 106, 110-112). Once they observed the plastic bag containing what reasonably appeared to be heroin, the police officers had probable cause to enter the automobile.

Defendant’s remaining contentions are either unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    [647 NE2d 110, 622 NYS2d 905]
    The People of the State of New York, Respondent, v Thomas Hannigan, Appellant.
    Argued November 29, 1994;
    decided December 21, 1994
    APPEARANCES OF COUNSEL

      Robert B. Kenney, Riverhead, George Grun and Robert C. Mitchell for appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed (see, People v Sprowal, 84 NY2d 113).

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


text:
    [647 NE2d 111, 622 NYS2d 905]
    The People of the State of New York, Respondent, v Jon J. Allen, Appellant.
    Argued November 29, 1994;
    decided December 21, 1994
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for appellant.

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

Order affirmed (see, People v Sprowal, 84 NY2d 113). Defendant’s remaining contentions are without merit.

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


text:
    [646 NE2d 801, 622 NYS2d 499]
    The People of the State of New York, Respondent, v Cherie Gallipoli Alzate, Appellant.
    Argued December 1, 1994;
    decided December 21, 1994
    APPEARANCES OF COUNSEL

      Stanley Neustadter, New York City, for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Jane S. Meyers and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Charged with selling a kilogram of cocaine to an undercover police officer, defendant pleaded guilty in Supreme Court, Kings County, to criminal sale of a controlled substance in the first degree (Penal Law § 220.43 [1]). Her sentence was 15 years to life. Defendant made the plea agreement with the understanding that if she provided information that led to a prosecution of a major drug supplier, the prosecutor would be obligated to recommend to the trial court that her plea be withdrawn and recommend further that either dismissal or a plea with a lesser sentence be entertained by the trial court.

Approximately 10 weeks after defendant’s formal guilty plea was entered, the drug supplier "fingered” by defendant was arrested in Florida by United States Customs officials as a result of an unrelated investigation. Defendant concedes that the information she gave to law enforcement authorities in New York had nothing to do with the Florida apprehension. Because of the arrest, the Kings County prosecutor terminated the investigation and declined to certify that appellant had provided "material assistance.”

Defendant nevertheless moved to vacate her guilty plea and sought specific performance of some lesser disposition of the criminal case against her. She maintains that she is entitled to relief because the prosecutor did not exert good faith and breached the plea agreement by failing to mount an expeditious and serious investigation to arrest her targeted drug supplier.

Supreme Court denied defendant’s motion following a hearing. It found no evidence of lack of prosecutorial good faith. The Appellate Division affirmed and a Judge of this Court granted leave to appeal. The undisturbed findings of both prior courts constitute mixed questions of law and fact for which support exists in the record. The determinations of those courts, therefore, leave nothing further for this Court to review and defendant’s remaining contention being unpreserved, we affirm the order of the Appellate Division upholding the denial of vacatur of the guilty plea.

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

Order affirmed in a memorandum.


text:
    [646 NE2d 802, 622 NYS2d 500]
    The People of the State of New York, Respondent, v Donovan Anthony Alvaranga, Appellant.
    Argued November 30, 1994;
    decided December 21, 1994
    APPEARANCES OF COUNSEL

      David Goodman, Public Defender of Dutchess County, Poughkeepsie (David Steinberg of counsel), for appellant.

      William V. Grady, District Attorney of Dutchess County, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Acting on a confirmed tip from a reliable informant that defendant would be going to New York City to buy drugs and returning to Poughkeepsie by train, police investigators entered a train at the Beacon train station when they saw defendant, seated next to an orange bag with the word "Nike” written on it. A police investigator identified himself, and asked the defendant for identification. Defendant identified himself, and then, when asked what was in the bag, disclaimed ownership of the bag. In response to the investigator’s question whether defendant would be willing to get off the train with the officers, defendant stood up, picked up the bag, and exited the train with the officers. Once on the platform, defendant continued to deny ownership of the bag. When asked if the investigator could look in the bag, defendant handed it over and said, "Go ahead.” Among other things, the officer found a shoe-box-sized gift-wrapped package in the bag, which defendant said he was carrying for someone in New York to someone in Poughkeepsie, and that he did not know the contents of the box. The officer opened the box and found what appeared to be cocaine. Defendant was subsequently convicted on a guilty plea of criminal possession of a controlled substance in the second degree (Penal Law § 220.18).

In view of our limited power to review mixed questions of law and fact (see, People v Karabinas, 63 NY2d 871, 872; People v Harrison, 57 NY2d 470, 477-478), we find no basis for setting aside the suppression court’s decision that the evidence seized during the search of defendant’s bag was admissible. There is evidence in the record to support that court’s undisturbed findings that the police inquiry was supported by an adequate factual predicate, and that defendant was not in custody at the time of the search. Moreover, assuming without deciding that defendant had standing to object to the search of the bag, there is evidence to support the lower court’s finding that defendant voluntarily consented to the search. Thus we cannot overturn the hearing court’s denial of the motion to suppress.

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

Order affirmed in a memorandum.


text:
    In the Matter of Gregory Crawford, Individually and on Behalf of All Others Similarly Situated, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted September 19, 1994;
    decided December 21, 1994
   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:
    Gretchen L. Johnston, Appellant, v Oswald L. Johnston, Jr., Respondent. (And Another Action.)
    Submitted September 12, 1994;
    decided December 21, 1994
   Motion, insofar as it seeks leave to appeal from the 1990 Appellate Division order, treated as a motion for reargument of petitioner’s motion for leave to appeal which was dismissed by the Court of Appeals on December 27, 1990 [see, 76 NY2d 1018], dismissed as untimely (22 NYCRR 500.11 [g] [3]); motion, insofar as it seeks leave to appeal from that portion of the 1994 Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for resettlement, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for leave to augment the record on appeal and to strike prejudicial material dismissed as academic.

Judge Smith taking no part.


text:
    Frances Leventritt, Appellant, and Leventritt Lewittes & Bender, Nonparty Appellant, v Carolyn Eckstein et al., Respondents. (And Four Other Actions.)
    Submitted September 6, 1994;
    decided December 21, 1994
   Motion by Leventritt Lewittes & Bender for leave to appeal denied. Motion by Frances Leventritt for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.

Judge Simons taking no part.


text:
    In the Matter of Arthur A. MacKnight et al., Appellants, v F. Sampie Sutton et al., Constituting the Town Board of the Town of Alexandria, et al., Respondents.
    Submitted August 29, 1994;
    decided December 21, 1994
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution and are not nonfinal orders of the type within the meaning of CPLR 5602 (a) (2).


text:
    Delores G. Radloff et al., Appellants, v Merwin Adler et al., Respondents.
    Submitted October 17, 1994;
    decided December 21, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs’ motion for leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Christina L. Wilkerson, Appellant, v Buonomo and Thaler et al., Respondents.
    Submitted October 3, 1994;
    decided December 21,1994
   Motion by appellant for leave to appeal denied. Cross motion by respondents for the imposition of sanctions denied.


text:
    [646 NE2d 803, 622 NYS2d 501]
    The People of the State of New York, Respondent, v Bruce Ortlieb, Appellant.
    Argued November 29, 1994;
    decided December 22, 1994
    APPEARANCES OF COUNSEL

      John A. Orando, Syracuse, Patrick J. Haber and Ivette Iza Zenner for appellant.

      James P. O’Rourke, District Attorney of Lewis County, Low-ville, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On March 29, 1992, at approximately 7:00 a.m., defendant was arrested in connection with the stabbing death of his former girlfriend. Defendant was advised of his Miranda rights upon arrest and again at the station house. At 9:30, defendant agreed to talk to the officers without an attorney present and, at 12:15 p.m., signed a written statement confessing to the crime. Defendant was arraigned at 1:00 p.m. At the Huntley hearing, one of the interrogating officers testified that the reason defendant was not taken for arraignment at 9:30 was that the police "wanted to talk to him.” County Court found that defendant competently and voluntarily waived his Miranda rights and accordingly denied suppression of the statement. Defendant pleaded guilty to second degree murder, and the Appellate Division affirmed.

Defendant contends that he was entitled to suppression on the ground that arraignment was postponed for the sole purpose of depriving him of the right to counsel, a contention not supported by the record. We therefore conclude that there was no "unnecessary delay” (CPL 140.20 [1]), and thus suppression was properly denied (see, People v Wilson, 56 NY2d 692, 694; see also, Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 140.20, at 540).

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

Order affirmed in a memorandum.


text:
    [646 NE2d 804, 622 NYS2d 502]
    The People of the State of New York, Respondent, v William Stephens, Appellant.
    Argued December 1, 1994;
    decided December 22, 1994

      APPEARANCES OF COUNSEL

      Barbara Zolot, New York City, Richard Joselson and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Gregory C. Pavlides and Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s claim that the prosecutor’s use of peremptory challenges to strike African-American women from the jury violated the ruling of Batson v Kentucky (476 US 79) is not preserved for our review.

In 1986, the Supreme Court ruled in Batson that a prosecutor’s use of peremptory challenges to deliberately exclude African-Americans from the jury solely on the basis of their race unconstitutionally discriminated against the excluded jurors. Not until this year did that Court extend the equal protection analysis of Batson to include discriminatory strikes based on the gender of the prospective juror (see, J.E.B. v Alabama ex rel. T.B., 511 US —, 114 S Ct 1419). Thus, at the time of defendant’s 1991 trial, neither this Court nor the Supreme Court had ruled that a Batson claim could be based, in whole or in part, on impermissible gender discrimination.

Defendant’s claim that African-American women, because they have been subjected to a particularized form of discrimination based on the combination of their race with their gender, constitute a separately cognizable group for Batson purposes was not asserted either implicitly or explicitly before the trial court. Although defense counsel alluded on occasion to the gender of the excluded members of the venire, it is clear that his use of gender terms was purely descriptive, not categorical. Defense counsel objected to the prosecutor’s exclusion of "black female jurors” and "black woman jurors”, but objected as well to the exclusion of "black males” and, most frequently, the exclusion of "black jurors”. Moreover, defendant’s motion for a mistrial was based solely on the race of the jurors peremptorily dismissed by the prosecutor. Defendant’s Batson claim was thus never articulated as one based on a combination of race and gender, and never presented to the trial court in those terms. The trial court’s remarks make it clear that the court understood that defendant’s Batson claim was grounded solely in the race of the excluded jurors, and defense counsel did not attempt to clarify for the court that his objection had any gender-based component. The general rule requiring a defendant to preserve his claims for appellate review ordinarily applies to claims of error involving State and Federal constitutional rights, and defendant is accordingly foreclosed from arguing before this Court that African-American women constitute a cognizable group for purposes of the Batson analysis (see, People v Iannelli, 69 NY2d 684, cert denied 482 US 914).

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

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

Order affirmed in a memorandum.


text:
    [646 NE2d 805, 622 NYS2d 503]
    The People of the State of New York, Respondent, v Martin Tankleff, Appellant.
    Argued November 30, 1994;
    decided December 22, 1994

      APPEARANCES OF COUNSEL

      Rogers & Wells, New York City (Mark F. Pomerantz, Warren L. Feldman, Peter M. Hoffman, Shannon R. Clark, David E. McCraw, Robert C. Gottlieb and Craig E. Paries of counsel), for appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Mark D. Cohen, Steven A. Hovani, Michael Miller and Glenn Green of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There is support in the record for the undisturbed finding of the trial court that defendant was not in custody and thus was not entitled to Miranda warnings at any point before he indicated his desire to tell the police what really had happened on the morning his parents were bludgeoned and stabbed to death. Similarly, the record supports the undisturbed finding that defendant’s statements were voluntarily given and that his will had not been overborne by any actions taken by the police. We cannot say as a matter of law that "the deception was so fundamentally unfair as to deny due process” (People v Tarsia, 50 NY2d 1, 11). Moreover, there was no "promise or threat * * * that could induce a false confession” (id.; cf., People v Leyra, 302 NY 353). Accordingly, in view of our limited power to review mixed questions of law and fact (see, People v Harrison, 57 NY2d 470, 477), there is no basis for us to overturn the lower court’s decision not to suppress defendant’s confession (see, People v Centano, 76 NY2d 837; see also, People v Williams, 62 NY2d 285, 289 [voluntariness is determined from the "totality of circumstances”]).

We also reject defendant’s contention that his conviction should be reversed because of the prosecutor’s summation comments about his failure to call several significant witnesses in support of his defensive claim that his relationship with his parents was good and that he therefore had no motive to murder them. Since the defense had elected to come forward with evidence, the comments did not constitute an impermissible effort to shift the burden of proof (see, People v Rodriguez, 38 NY2d 95, 98). Additionally, contrary to defendant’s argument, in these circumstances the People were not obliged to satisfy the burden imposed in People v Gonzalez (68 NY2d 424) for establishing entitlement to a formal "missing witness” charge to be administered by the court. Since the disputed comments were not made in bad faith and were merely efforts to persuade the jury to draw inferences that supported the People’s position, they were not improper even though there may have been some question as to whether all of the uncalled witnesses were within defendant’s "control” (cf., People v De Jesus, 42 NY2d 519). We note that there was no doubt that the witnesses in question, who included defendant’s sister and brother-in-law and other relatives with personal knowledge of defendant’s family, were available and had material, noncumulative information about the case (see, People v Rodriguez, supra). We also note that defense counsel was not deprived of an opportunity to make his own summation comments on the subject.

We have examined defendant’s remaining contentions and find them to be either meritless or unpreserved.

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

Order affirmed in a memorandum.


text:
    [646 NE2d 807, 622 NYS2d 505]
    The People of the State of New York, Appellant, v Aaron Joseph, Respondent.
    Argued November 30, 1994;
    decided December 22, 1994

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Nicoletta J. Caferri and Steven J. Chananie of counsel), for appellant.

      Jeffery I. Richman, New York City, and Philip L. Weinstein for respondent.

      John D. B. Lewis, New York City, for New York State Association of Criminal Defense Lawyers, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We hold that the trial court denied defendant his right to counsel under both the Sixth Amendment of the Federal Constitution and article I, § 6 of the New York State Constitution by forbidding him from discussing his trial testimony with his attorney during a weekend recess.

Defendant and his former wife were arrested after a dispute in which both were burned with acid. Although both were arrested, the charges against defendant’s former wife were dismissed. Each accused the other of initiating the incident. At defendant’s trial, defendant’s direct testimony took place on a Friday afternoon. When the court recessed for the weekend, it directed defendant not to speak with his attorney about his testimony. It did permit defendant to discuss with his attorney matters concerning the case other than his own testimony.

Subsequently, defendant was convicted. The Appellate Division reversed Supreme Court’s judgment. That Court held that defendant’s Sixth Amendment right to counsel was violated and ordered a new trial (198 AD2d 437). A Judge of this Court granted the People’s application for leave to appeal.

Here, the People argue that the trial court’s limitation on defendant’s consultation with his attorney concerning his ongoing testimony during the recess did not violate defendant’s State or Federal constitutional right to counsel. Defendant claims that the trial court’s ruling violated the right to counsel secured by both Constitutions.

The Sixth Amendment to the United States Constitution, as applied to the States by the Fourteenth Amendment, provides an accused the right to the assistance of counsel for his defense (Powell v Alabama, 287 US 45; Gideon v Wainwright, 372 US 335; Argersinger v Hamlin, 407 US 25). Similarly, article I, § 6 of the New York State Constitution secures the right to counsel in criminal cases.

To be meaningful the right to counsel "requires the guiding hand of counsel at every step in the proceedings” (Powell v Alabama, 287 US, at 69, supra). In Geders v United States (425 US 80), the Supreme Court held that an order precluding consultation between defendant and his attorney during a 17-hour overnight recess violated the right to counsel. In doing so the Supreme Court noted the importance for trial preparation of overnight discussions between defendant and client. The Court stated (at 88):

"It is common practice during [overnight] recesses] for an accused and counsel to discuss the events of the day’s trial. Such recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events. Our cases recognize that the role of counsel is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.”

In People v Blount (77 NY2d 888, affg 159 AD2d 579), this Court held that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel.

To be distinguished here are those cases upholding a temporary and limited ban on discussions between defendant and attorney during a brief recess (see, Perry v Leeke, 488 US 272 [trial court has discretion to impose a ban on conversation between a defendant and his lawyer during a brief recess between direct and cross-examination]; People v Enrique, 80 NY2d 869, affg for reasons stated at 165 AD2d 13 [defendant could not confer with counsel during a luncheon recess which occurred in the course of defendant’s cross-examination]). Perry v Leeke emphasized that an overnight prohibition of consultation between attorney and client was impermissible. Citing Geders (supra), the Court stated, "It is the defendant’s right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess * * *. The fact that such discussions will inevitably include some consideration of the defendant’s ongoing testimony does not compromise that basic right” (Perry v Leeke, 488 US 272, 284, supra).

It is clear that the critical factor in determining whether a violation of the right to counsel occurred here is the length of time dividing the defendant’s access to counsel contemplated by the trial court’s ruling. In addition, however, while prejudice need not be shown, it should be noted that defendant’s direct examination had included testimony about the discord between defendant and his wife, discord which allegedly included drug use by his wife and an incident in which she threatened defendant with a knife, leading to defendant’s obtaining an order of protection from the Family Court. Defendant was thus unable to discuss with his attorney testimony that went to the heart of his defense that his wife, not he, was the aggressor.

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

Order affirmed in a memorandum.


text:
    [646 NE2d 809, 622 NYS2d 507]
    The People of the State of New York, Respondent, v Shimel Smith, Appellant.
    Argued December 1, 1994;
    decided December 22, 1994

      APPEARANCES OF COUNSEL

      Susan Horwitz, New York City, and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Alexander H. Gardner and Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the morning of December 17, 1992, at approximately 10:45 a.m. in the vicinity of 148 Street and 106 Avenue in Queens County, defendant was approached by an undercover police officer. Defendant asked the officer if he was "looking to get nice.” The undercover responded affirmatively and was then asked by defendant what he was looking for. When the officer stated "two nickels,” defendant brought him to a different location and asked for money. The officer gave defendant $10 and defendant entered a house and shortly emerged with one yellow vial of alleged "crack” cocaine. The officer, who had requested "two nickels,” asked defendant for his other vial, but she told him that "they only had dimes” and the fact that he wanted nickels was "too bad.” The officer left the area, advised the back-up team, and vouchered the purchased drugs. Subsequently, another police officer responded to the undercover’s advisement and arrested defendant. A search of defendant revealed fairly small quantities of cocaine and marihuana.

Defendant was charged in an indictment with criminal sale of a controlled substance and unlawful possession of marihuana. Defendant moved for court inspection of the Grand Jury minutes and dismissal of the indictment. Supreme Court dismissed the indictment on the grounds that the prosecutor had failed to permit defendant to testify without interference before the Grand Jury, with leave for the District Attorney to re-present the matter to the Grand Jury. The Appellate Division reversed and reinstated the indictment, finding that the prosecutor did not interfere with the defendant’s testimony before the Grand Jury so as to deprive her of "a reasonably fair and uninterrupted opportunity pursuant to CPL 190.50 to first furnish the Grand Jury with [her] own version concerning the matters being investigated” (People v Lerman, 116 AD2d 665, 666).

We reject defendant’s contention that her Grand Jury testimony was unfairly abridged by the prosecutor’s constant interruptions and adoption of an adversarial position, thus impairing the integrity of the proceedings.

CPL 190.50 (5) (b) provides in pertinent part:

"Upon appearing at such time and place, and upon signing and submitting to the grand jury a waiver of immunity pursuant to section 190.45, [the person charged] must be permitted to testify before the grand jury and to give any relevant and competent evidence concerning the case under consideration.”

The prosecutor interrupted defendant on two separate occasions during her Grand Jury testimony in an effort to focus her testimony on matters relevant to the issues before the Grand Jury.

A defendant testifying before the Grand Jury must be given an opportunity to give her version of the events before being examined by the prosecutor (People v Karp, 76 NY2d 1006, revg for reasons stated in dissent 158 AD2d 378, 388; CPL 190.50). The statute specifically states that the testimony in the Grand Jury should be regarding "relevant and competent evidence concerning the case under consideration.” (CPL 190.50 [5] [b].)

Defendant spoke at length about her past and the consequences of her drug addiction. The prosecutor sought to focus her attention on whether she was acting in concert or was acting as agent of the buyer on December 17, 1992. The prosecutor’s interruptions did not deprive defendant of the opportunity to make her statement. Defendant continued with her life story notwithstanding the prosecution’s request that she confine her statements to facts that were relevant to whether or not she sold drugs or was acting as an agent. To request that defendant not continue the narrative about her childhood, or delve into her living situation does not abridge defendant’s right to make a statement about a matter relevant to this case before the Grand Jury.

Therefore, the order of the Appellate Division should be affirmed.

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

Order affirmed in a memorandum.


text:
    [646 NE2d 811, 622 NYS2d 509]
    The People of the State of New York, Respondent, v Glenn Jenkins, Appellant.
    Argued December 1, 1994;
    decided December 22, 1994

      APPEARANCES OF COUNSEL

      Elizabeth B. Emmons, New York City, and. Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Andrew L. Crabtree and Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant in this case did not present a prima facie showing of discrimination at any of the three times he raised a Batson objection. To establish a prima facie case of discrimination in the selection of jurors under Batson v Kentucky (476 US 79), the defendant asserting the claim of unlawful discrimination must show "that the prosecution exercised its peremptory challenges to remove one or more members of a cognizable racial group from the venire and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenges to exclude potential jurors because of their race” (People v Childress, 81 NY2d 263, 266). It is not until that prima facie showing has been made that the burden shifts to the prosecution to come forward with a race-neutral explanation for its peremptory challenges (id.).

Here, defendant relied only on the number of African-Amer-icon jurors challenged to support his request for race-neutral explanations from the prosecution; he offered no showing of facts and circumstances sufficient to raise an inference of a pattern of discrimination. And although a demonstration that the prosecutor has used a "disproportionate number of strikes challenging members of a particular racial group within a venire may be sufficient to create an inference establishing a prima facie claim” (People v Bolling, 79 NY2d 317, 324), the defendant’s bare assertions here that the prosecutor struck the only African-American on the first panel, three of the six potential African-American jurors in the second round, and two of at least four African-American jurors in the third round — leaving six African-Americans on the jury — was insufficient, without more, to create an inference establishing a prima facie case (see, e.g., People v Childress, supra, at 267 [assertion that prosecutor struck two of three African-American jurors insufficient alone to establish a prima facie case of discriminatory jury selection]). The Judge was, therefore, correct in refusing to require the prosecutor to offer a race-neutral explanation for her use of peremptory challenges.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Cipabick concur.

Order affirmed in a memorandum.


text:
    Arie E. David, Appellant, v Miriam Fuchs et al., Respondents.
    Submitted October 24, 1994;
    decided December 22, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the May 1994 Appellate Division order with respect to respondent Miriam Fuchs, dismissed upon the ground that as to respondent Fuchs, that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the May 1994 Appellate Division order with respect to respondent Davar, Ltd., denied.


text:
    In the Matter of Myrick A., Appellant, v Lorna G., Respondent.
    Submitted November 7, 1994;
    decided December 22, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion for poor person relief, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Myrick A., Respondent, v Lorna G., Appellant.
    Submitted December 5, 1994;
    decided December 22, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion for poor person relief, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Gerald Nelson, Appellant, v Board of Collective Bargaining et al., Respondents.
    Submitted December 19, 1994;
    decided December 22, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (CPLR 5601).


text:
    The People of the State of New York, by G. Oliver Koppell, as Attorney-General of the State of New York, Respondent, v Apple Health and Sports Clubs, Ltd., Inc., Respondent, and Thurcon Properties, Ltd., et al., Appellants.
    Submitted September 19, 1994;
    decided December 22, 1994
   Motion for leave to appeal by Thurcon Properties, Ltd., dismissed upon the ground that as to it the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion by Harold Thurman, insofar as it seeks leave to appeal from those parts of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying reargument and affirmed that portion of the Supreme Court’s order denying the motion to join the estate of Patrick J. Consalvas as a party, dismissed upon the ground that those portions of the order do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Appellant, v Richard Heaning, Respondent.
    Decided December 22, 1994
   Appeal dismissed upon the ground that the reversal by the Appellate Term 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:
    The People of the State of New York ex rel. James Harris, Appellant, v Patrick Mahoney, as Sheriff of Suffolk County, Respondent.
    Submitted September 26, 1994;
    decided December 22, 1994
   Motion for reargument of motion for leave to appeal granted [see, 84 NY2d 839] and, upon reargument, motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Mohamed Qayed, Appellant, v New York State Department of Health, Respondent. In the Matter of Mohamed Shaibi, Appellant, v New York State Department of Health, Respondent.
    Submitted November 7, 1994;
    decided December 22, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motion for a stay dismissed as academic.


text:
    Cynthia Scheider, Respondent, v Roy Scheider, Appellant.
    Submitted October 24, 1994;
    decided December 22, 1994
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying defendant’s motion for discovery, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Carla C. S’Dao, Appellant, v National Grange Mutual Insurance Company, Respondent.
    Submitted December 19, 1994;
    decided December 22, 1994
   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:
    Sheldon H. Solow, Doing Business as Solovief Gallery Company, Respondent, v Karl G. Wellner et al., Appellants.
    Submitted November 21, 1994;
    decided December 22, 1994
   Motion to dismiss the appeal herein denied.


text:
    G. W. White & Son, Inc., Respondent, v Richard Gosier, Doing Business as Richard Gosier Construction, Appellant.
    Submitted October 31,1994;
    decided December 22, 1994
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    Richard Becker, Appellant, v New York et al., Respondents.
    Submitted December 27,1994;
    decided January 10, 1995
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second 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:
    Donald L. Heimlich, Appellant, v St. Luke’s Roosevelt Hospital Center et al., Respondents.
    Submitted October 3,1994;
    decided January 10, 1995
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Chief Judge Kaye and Judge Ciparick taking no part.


text:
    Nathaniel Abdullah et al., Appellants, v City of New York et al., Respondents.
    Submitted November 7,1994;
    decided January 12, 1995
   Motion for leave to appeal, insofar as it is made by Nathaniel Abdullah purportedly on behalf of Garry Williams, dismissed upon the ground that Abdullah is not Williams’ authorized legal representative; motion for leave to appeal otherwise denied.


text:
    Nancy Denny et al., Plaintiffs, v Ford Motor Company, Defendant.
    Decided January 12, 1995
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Gary Della Vecchia, Appellant, v Town of North Hempstead, Respondent.
    Submitted October 11,1994;
    decided January 12, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellant’s motion for an order holding respondent in contempt, dismissed upon the ground that that portion of that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of West Branch Conservation Association, Inc., et al., Appellants, v Planning Board of the Town of Clarkstown, Respondent.
    Submitted November 7,1994;
    decided January 12, 1995
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    [646 NE2d 1101, 622 NYS2d 674]
    Harlan Kosson, Appellant, v Joshua "Algaze” et al., Respondents.
    Decided January 17, 1995

      APPEARANCES OF COUNSEL

      Ravi Batra, New York City, for appellant.

      Proskauer Rose Goetz & Mendelsohn, New York City (Edward S. Kornreich and J. Elizabeth Scherl of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In order to defeat defendants’ motion for summary judgment, plaintiff had the burden of showing " ' "facts sufficient to require a trial of any issue of fact” ’ ” (Zuckerman v City of New York, 49 NY2d 557, 562; CPLR 3212 [b]). As applied here, plaintiff had to submit evidentiary facts that he was employed by defendant St. Luke’s/Roosevelt Hospital Center for a fixed duration pursuant to a definite written contract of employment. In his complaint, plaintiff did not allege the existence of a written contract of employment and in a supplemental affidavit he submitted before any responsive pleading, plaintiff only referred to certain noncontractual documents as "confirming] part of the contract” between him and the hospital. The documents referred to were clearly insufficient to satisfy the Statute of Frauds. Only after defendants interposed defenses based in part upon the Statute of Frauds did plaintiff aver the existence of a written contract, his copy of which allegedly had been lost. This averment was made in conclusory fashion and was inconsistent with plaintiffs previous reliance on confirmatory noncontractual documents to establish his agreement. Thus, the Appellate Division correctly found that plaintiff had failed to meet the burden of making a sufficient factual showing.

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

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:
    [646 NE2d 1102, 622 NYS2d 675]
    The People of the State of New York, Respondent, v Wilfredo Hobot, Appellant.
    Argued November 30,1994;
    decided January 17, 1995

      APPEARANCES OF COUNSEL

      Leighton M. Jackson, Brooklyn, for appellant.

      Charles J Hynes, District Attorney of Kings County, Brooklyn (Ruth E. Ross, Jay M. Cohen and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of two counts of rape in the first degree and sexual abuse in the first degree for his encounter with the then nine-year-old daughter of the woman with whom defendant lived. Defendant moved to vacate his conviction pursuant to CPL 440.10 on the ground that he was denied effective assistance of counsel. Defendant asserted that trial counsel’s failure to review a "vital” document "significantly contributed” to his conviction. The trial court conducted a hearing addressed to this issue, and subsequently denied the motion. The Appellate Division affirmed, with two Justices dissenting.

To prevail on his claim that he was denied effective assistance of trial counsel, defendant bears the well-settled, high burden of demonstrating that he was deprived of a fair trial by less than meaningful representation (see, People v Flores, 84 NY2d 184, 186; People v Benn, 68 NY2d 941, 942). There is no precise definition of what constitutes ineffective legal representation, nor is there a particular standard applicable to every case (see, People v Bennett, 29 NY2d 462, 466). Rather, all of the evidence must be weighed in context and as of the time of representation to assess the alleged deficient representation. Where a single, substantial error by counsel so seriously compromises a defendant’s right to a fair trial, it will qualify as ineffective representation (see, People v Flores, 84 NY2d, at 188, supra; People v Baldi, 54 NY2d 137,146-147).

There is no dispute that trial counsel erred in failing to familiarize himself with a document labeled "Medical Office” bearing a Brooklyn address and phone number. This document, a handwritten letter prepared by the general practitioner following her medical examination of the complainant, describes her observation of various contusions on the child’s face and body, as well as a genital rash, which notation is preceded by the words "w[ith] intact hymen.” The letter concludes with a referral of the "patient to proper authorities for evaluation.” Defendant maintains that this document conclusively refutes the medical evidence presented by the prosecution, and trial counsel’s failure to utilize this material mandates a new trial. Defendant’s claim is unsupported by the record before us.

Defendant’s trial counsel vigorously cross-examined the People’s medical, expert, certified by the court as an expert in the field of gynecology, who observed two small tears in the complainant’s hymen after an internal examination of the child’s pelvis. Trial counsel successfully elicited testimony from this doctor that such tears were not conclusive of penetration by a male sex organ, and that it was impossible to pinpoint the specific date the child sustained the tears or the rash. Trial counsel attempted to establish an alibi defense, eliciting testimony from relatives regarding defendant’s absence from the complainant’s home on the dates of the alleged incidents. In addition, trial counsel also tried to show that the complainant had a motive to fabricate the incidents of abuse as a means of gaining her mother’s attention, and offered testimony that the complainant recanted a portion of her allegations to her Family Court Law Guardian. Finally, in his summation, trial counsel argued that the physical condition of complainant’s genitalia was inconsistent with rape.

At the hearing on defendant’s CPL 440.10 motion, the general practitioner testified that she had never before examined a child for evidence of sexual abuse; that other than her medical school rotation in gynecology and obstetrics, she had no specialized training in gynecology; and, that on the date she examined the complainant, she did not perform an internal pelvic examination nor did she possess the proper instrument to perform such an examination on a child. This doctor readily conceded that a proper internal examination might well detect injuries she could not observe with the naked eye, a conclusion buttressed by her referral of the complainant to a trained gynecologist.

After hearing this testimony, the trial court determined that this doctor lacked the qualifications to testify at trial in the field of gynecology and possibly even as a medical expert, and that she certainly would not have been permitted to opine as to sexual abuse. The trial court found this doctor was an equivocal witness, and that her testimony would not have created a reasonable doubt about defendant’s guilt or contradicted any issue regarding the medical findings in this case. While observing that defense counsel erred in not pursuing this witness, the trial court nevertheless concluded that her testimony would have been prejudicial to defendant given her findings of numerous contusions on the child’s face and body, and her conceded lack of expertise.

Under any view of the record in this case, trial counsel’s omission did not prejudice the defense or defendant’s right to a fair trial (see, People v Flores, 84 NY2d, at 188-189, supra; People v Baldi, 54 NY2d, at 147, supra). Defendant has made no showing that he was denied a fair trial because trial counsel failed to utilize the medical notes prepared by the general practitioner or call her as a witness.

We have considered defendant’s remaining contention and find it to be devoid of merit.

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

Order affirmed in a memorandum.