author: Bellacosa, J.

text:
    [665 NE2d 181, 642 NYS2d 611]
    City of New York, Appellant, v State of New York, Respondent.
    Argued February 8, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (A. Orli Spanier and Kristin M. Helmers of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Victor Paladino, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, and the case remitted to the Court of Claims for further proceedings in accordance with this memorandum and, as so modified, affirmed.

The City of New York and the State of New York (acting through the Office of General Services on behalf of the State Division of Housing and Community Renewal) executed an agreement for the Division’s use of approximately 14,400 square feet of office space on the twelfth floor of 2 Lafayette Street in New York City. The fee was $216,000 per year ($15 per square foot) payable in equal monthly installments of $18,000. The term commenced on April 1,1984 and terminated on January 31,1986, but the parties agreed that if the Division chose to remain in possession after January 31, 1986 it could do so for an annual fee of $338,400 ($23.50 per square foot) payable in equal monthly installments of $28,200. The agreement also included a provision which permitted either party to cancel it at any time, without penalty, upon 45 days’ written notice. Oral modification of the agreement was expressly prohibited. The agreement was approved and filed by the State Comptroller in accordance with State Finance Law § 112 (2).

The Division continued to occupy the premises after January 31, 1986, and the fee was increased to $23.50 per square foot as the agreement provided. Some time during the spring of 1987, it vacated approximately one half of the premises and, pursuant to an oral agreement with the City, the monthly fee was reduced to account for the change. In June 1989, the parties agreed orally to further reduce the amount of occupied space and the pro rata fee. The Division vacated the premises completely in August of 1989.

The City maintains that the State owed it more than $240,000 in arrearages when it vacated the premises and the City filed a claim in the Court of Claims to recover that amount. The State asserted, as an affirmative defense, noncompliance with State Finance Law § 112 (2). It contended that the agreement’s express term ended January 31, 1986 and the State was not liable for any charges accruing thereafter. The Court of Claims accepted that argument, believing that the Comptroller could not have intended to approve a potentially limitless obligation, and concluded that the agreement expired on January 31, 1986. Applying the provisions of the Real Property Law, it terminated the State’s obligation by operation of law on October 1, 1986 (see, Real Property Law §§ 232, 232-c). Concluding that any arrearages claimed by the City accrued after that date, the Court of Claims granted summary judgment in favor of the State. The Appellate Division affirmed.

Section 112 (2) of the State Finance Law, as it then read, required that any contract in excess of $5,000 made for or by a State entity be approved and filed by the State Comptroller. The statute’s purpose is to protect the public from governmental misconduct and improvidence (see, Parsa v State of New York, 64 NY2d 143, 147, rearg denied 64 NY2d 885). The statute applied to this agreement, and the Comptroller approved and filed this agreement in accordance with it. The question presented is whether his approval extended beyond January 31, 1986 to include the occupancy after that date.

The agreement approved by the Comptroller included an initial fixed term and the option to continue the occupancy thereafter for so long as the parties mutually desired, terminable by either without penalty on 45 days’ written notice. We know of no authority suggesting that the Comptroller lacked the power or discretion to approve the option to extend the agreement beyond January 31, 1986 on the terms set forth, and neither the State nor the dissent cite any. In the absence of any restriction on the Comptroller’s authority to approve such an agreement, the lower courts erred in applying Real Property Law § 232 — a statute of limited purpose and application — to limit either the Comptroller’s authority or the contract’s terms. Inasmuch as the agreement was executed in compliance with State Finance Law § 112 (2), the purposes of that statute were met — the Comptroller fulfilled his legal obligation to determine that the expenditure was not improvident or extravagant. He had no authority to conditionally approve the contract or change its terms to incorporate an unexpressed limitation provided by section 232 of the Real Property Law, as the dissent suggests. The State Finance Law empowered him only to approve the contract as submitted or reject it. Because State Finance Law § 112 (2) was complied with here, the City is not foreclosed from asserting a claim for the period after the expiration of the fixed term.

Notwithstanding the Comptroller’s approval of the agreement of indefinite duration, however, the State’s liability on this agreement does not extend to the modifications under which the Division occupied a portion of the premises until August of 1989. The Comptroller approved the obligations and liability of the State only as set forth in the agreement — a specific amount of space for a specific fee — which could not be modified orally. When the City and the State attempted to change the agreement by reducing the amount of space and the pro rata fee, they acted outside the original agreement and contrary to the provisions of the approved contract. The oral modification of this agreement constituted a new agreement and because the Comptroller did not approve or file the modified agreement which involved an obligation in excess of $5,000, the City may not maintain an action on it (see, Parsa v State of New York, 64 NY2d, at 147, supra). Inasmuch as oral modification was prohibited, we need not consider whether an authorized modification that only diminishes the State’s obligation requires new compliance with State Finance Law § 112 (2) as a matter of law (compare, e.g., Rosefsky v State of New York, 205 AD2d 120, 123-124; Westgate N. v State Univ., 77 Misc 2d 611, 614-615, affd 47 AD2d 1004, lv denied 36 NY2d 647).

Factual issues regarding the date the initial agreement was terminated by the oral modification and the amount of arrearages due remain to be determined. Accordingly, the case should be remitted to the Court of Claims for further proceedings.

Bellacosa, J.

(dissenting in part). This appeal relates to a premises licensing agreement between the State of New York and the City of New York for the State’s occupation and use of City real property. The question raised is whether the agreement required additional approval by the State Comptroller under State Finance Law § 112 (2) after the expiration of its stated term. We believe that it does, essentially because of the inescapable impact of Real Property Law § 232 and because the purposes behind State Finance Law § 112 (2) would otherwise be frustrated. Thus, we respectfully dissent in part, and vote to affirm the order of the Appellate Division.

Claimant City of New York agreed to rent office space in a building it owned at 2 Lafayette Street in Manhattan to defendant State of New York, for use as a rent administration office by the State Division of Housing and Community Renewal (DHCR). The agreement was to run from April 1, 1984 through January 31,1986, with either party having the option to cancel upon 45 days’ prior written notice to the other party. As required by State Finance Law § 112 (2), the State Comptroller approved the agreement in September 1985. No one questions the Comptroller’s authority or the validity of this approval as far as it goes.

In addition to fixing the end of the term at January 31, 1986, article IV of the agreement contemplated that DHCR might remain in possession of the premises after that date, by providing for an increase in rental payments if DHCR did not vacate. In that event, the payments were to increase from $15 per square foot to $23.50 per square foot, for the 14,400 square feet.

DHCR did not vacate the premises on January 31, 1986, but instead remained and paid the higher rent, which amounted to monthly installments of $28,200, through April 1987, after which it began making sporadic payments. In approximately July 1987, DHCR returned about half of the premises to the City, which then prorated the monthly bill to account for the reduced space. Again in June 1989, DHCR returned an additional portion of the premises to the City, which continued to charge for the space on a prorated basis. Ultimately, DHCR was occupying about one fifth of the originally secured premises.

The State eventually vacated the remaining portion of the premises in August 1989, leaving a substantial portion of its alleged obligations unpaid. The City, as claimant, sought total arrears of $240,040.68. The Court of Claims granted summary judgment to the State and dismissed the City’s claim. It held that after January 31, 1986, the agreement created an indefinite term of occupancy, which terminated by operation of Real Property Law § 232 on October 1, 1986. The court held the State Comptroller’s initial approval of the agreement under State Finance Law § 112 did not extend beyond that date and that further approval by the Comptroller under these circumstances would be required for the City to recover additional amounts for the extended periods. Recoupment by the State of any moneys paid is not in issue or implicated by the resolution of this dispute.

The Appellate Division unanimously affirmed, basically agreeing with the Court of Claims that the contract became one of indefinite duration and that, therefore, it ended by operation of law on October 1, 1986. The Court added that because of Real Property Law § 232, DHCR’s obligation to pay additional amounts after October 1, 1986 required further approval by the State Comptroller under State Finance Law § 112 (2). We agree that the Comptroller’s September 1985 approval of the agreement did not indefinitely extend the State’s liability under the agreement, solely at the discretion and in the control of DHCR. By operation of law, Real Property Law § 232 marks the boundary of such an indefinite agreement. Thus, we would affirm the lower courts’ rulings.

The Constitution and the Legislature have designated the State Comptroller as the unique protector of the State’s pocketbook (see generally, NY Const, art V, § 1; State Finance Law § 8). This role includes the power to approve or disapprove State contracts valued above a statutorily set amount (State Finance Law § 112 [2]). State Finance Law § 112 (2), as it existed at the time of the agreement at issue, provided as follows:

"Before any contract made for or by any state department * * * shall be executed or become effective, whenever such contract exceeds five thousand dollars in amount [$10,000 as of September 1, 1992 (L 1992, ch 319)], it shall first be approved by the comptroller and filed in his office.”

The law is well settled that a failure to comply with the mandate of State Finance Law § 112 (2) affords the State a complete defense to what would otherwise be binding contractual obligations (see, Parsa v State of New York, 64 NY2d 143, 147). The nuance of this case is whether the State Comptroller’s September 1985 approval of the basic agreement itself allowed the State to incur liability for an indefinite holdover period of DHCR’s occupancy, through August 1989, or whether some further approval in the circumstances of this agreement — concededly not obtained in this case — was necessary.

To determine whether the agreement at issue warranted such approval, the examination necessarily begins with the particular governing statute and its purposes (State Finance Law § 112 [2]; see, McKinney’s Cons Laws of NY, Book 1, Statutes § 96, at 202 ["A basic consideration in the interpretation of a statute is the general spirit and purpose underlying its enactment.”]). The statute’s twin purposes are both related to the protection of the public fisc: (1) to prevent State officers and agents from creating liability for which there has been no appropriation of public funds, and (2) to rein in public officials from making improvident contracts that might result in serious financial consequences to the State (1934 Opns Atty Gen 162, 163; see also, Deverho Constr. Co. v State of New York, 94 Misc 2d 1053, 1058).

The statute’s first purpose, to ensure that all public expenditures are backed by appropriated funds, is most noticeably implicated here and is given virtually no moment by the majority’s analysis. That objective is threatened by a contract that purports to extend into an indefinite period with no limiting features, because there could never be certainty that sufficient revenues would be available open endedly and in futuro (see, 1915 Opns Atty Gen 28, 29). Although the agreement expresses an end date of January 31, 1986, article IV of the agreement at the same time purports to allow DHCR to remain in possession with no termination date whatsoever. While the Comptroller was on notice that an indefinite extension of the State’s occupancy was within his initial approval, he was also aware and entitled to rely on a pari materia statutory provision, Real Property Law § 232, that by operation of law placed legislatively fixed definiteness on the agreement and his fiscal superintendence upon it. This is a fine point of our difference with the majority’s summary dispatch of Real Property Law § 232 as merely "a statute of limited purpose and application” (majority mem, at 985).

I believe, instead, that Real Property Law § 232 is unassailably apt and that it circumscribed State liability for this kind of agreement on October 1, 1986, by providing that:

"An agreement for the occupation of real estate in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of October next after the possession commences under the agreement” (Real Property Law § 232).

The statute applies only to agreements of indefinite duration (see, Chester v Niarchos, 12 Misc 2d 325, 328) and is inapplicable if the duration of the term is specified (see, Olson v Schevlovitz, 91 App Div 405, 406-407). Thus, our analysis does not implicate or undermine the validity of the Comptroller’s approvals of contracts containing durational optional renewal clauses. Since, in this case, any period beyond January 1, 1986 had no termination date, the agreement here qualifies as a type of agreement intended to be covered by Real Property Law § 232, because it did "not particularly specify the duration of the occupation.” Because the indefinite period commenced on February 1, 1986, Real Property Law § 232 was triggered and fixes the end point as October 1, 1986. Thus, the Comptroller’s initial approval was valid only up to that date, and any liabilities allegedly incurred thereafter are blocked by failure to obtain the Comptroller’s additional, specific approval under State Finance Law § 112 (2).

We emphasize that this analysis does not extend to all ordinary durational option arrangements in contracts approved by the Comptroller. Nor is the analysis altered, as the City urges, by article III of the agreement, which provides that either party may terminate the agreement upon 45 days’ notice. That provision does not neutralize the indefinite nature of the holdover period of this agreement. In fact, the mutual termination clause is further evidence that after January 31, 1986, the contract was transformed into one of indefinite duration, thus fortifying the application of Real Property Law § 232 (see generally, Garner v Gerrish, 63 NY2d 575).

Moreover, it is not the Comptroller who is authorized under article III to terminate the agreement upon 45 days’ notice, which might, in that case, preserve his unique and nondelegable duty to protect the public fisc. Instead, that termination option is reserved to the two State agencies that contracted with the City in this case, DHCR and the State Office of General Services, both deemed "Licensee” in the agreement. Those agencies, however, are precisely the kinds of entities over which the Comptroller has singular oversight. To vest them with the virtually unfettered discretion and authority as to when to terminate or extend an indefinite agreement like the present one and incur unsupervised liabilities paid for out of unappropriated State revenues would undermine the express protections within State Finance Law § 112 (2) as applied to this agreement (Parsa v State of New York, 64 NY2d 143, 147, supra).

This Court has pointedly emphasized in related circumstances that "any other rule would completely frustrate statutes designed to protect the public from governmental misconduct or improvidence” (id.). Fiscal consequences such as are implicated and claimed here are unauthorized and unprotected, "because contracting parties are better able to protect themselves from State Finance Law § 112 than the people would be to protect themselves without it” (Rosefsky v State of New York, 205 AD2d 120, 125). This is especially so when the disputants are both public entities, quarreling over State funds.

An additional feature of this case, with respect to which we are in full accord with the majority, is that the parties’ bargain changed materially between the time of the Comptroller’s approval in September 1985 and the time when DHCR gave back half the premises to the City in July 1987 at the latest. What was, in effect, created in this respect was a new and different agreement to pay amounts still substantially in excess of the former statutory threshold (State Finance Law § 112 [2]). The Comptroller’s original approval of an agreement so materially changed, thus, cannot be deemed to continue indefinitely. Significantly, article XI of the agreement specifically provided that the agreement could not "be changed, modified, or terminated orally, [except] by an instrument in writing executed by Licensor and Licensee.” The City and DHCR purportedly orally modified this contract by DHCR surrendering large parts of the premises to the City, first in July 1987 and later in June 1989, with no Comptroller notification or approval (see, e.g., Flaherty Corp. v State of New York, 102 Misc 2d 438, 441; see also, Sorrentino v State of New York, 13 AD2d 5, 9 [supplemental agreement modifying an existing contract, not approved by Comptroller, was not effective], affd 11 NY2d 695).

In short, in our view, for comparable statutory construction and policy reasons, the order should be affirmed in toto. After October 1,1986, when the indefinite agreement ended by operation of Real Property Law § 232 (on this the Court is divided), as well as after July 1987, the later date at which the bargain was materially altered (on this the Court is unanimous), the State acquired a statutorily conferred affirmative defense to additional liability under this indefinite, changed agreement. Thus, additional approval from the Comptroller should be required under State Finance Law § 112 (2) and the combined effect of Real Property Law § 232. The Appellate Division was therefore correct in affirming the Court of Claims’ dismissal of the City’s claim, and the order appealed from should be affirmed.

Chief Judge Kaye and Judges Simons, Titone, Smith and Levine concur in memorandum; Judge Bellacosa dissents in part and votes to affirm in an opinion in which Judge Ciparick concurs.

Order modified, etc.

       The dissent identifies another purpose, which it labels as the first purpose; to ensure that all public commitments are backed by appropriated funds (dissenting opn, at 989). But the dissent concedes that the two-year term of this contract was enforceable and there is no way that a Comptroller could project legislative appropriations for multiyear contracts. Nor could he have done so here, except for the unusual circumstance that his approval was not obtained until the second year of the fixed term.


source: Caselaw Access Project

license: Public Domain

text:
    [665 NE2d 186, 642 NYS2d 616]
    The People of the State of New York, Respondent, v Francis Di Donato, Appellant.
    Argued. February 14, 1996;
    decided March 21, 1996
    APPEARANCES OF COUNSEL

      O’Connell & Aronowitz, Saratoga Springs (Dean H. Higgins of counsel), for appellant.

      Robert M. Carney, District Attorney of Schenectady County, Schenectady (Alfred D. Chapleau of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted upon his plea of guilty of two counts of murder in the second degree and one count of burglary in the first degree and sentenced to an indeterminate term in prison. The Appellate Division affirmed the judgment.

Upon this appeal he challenges a ruling of the court which denied his motion to file a late notice of intention to present psychiatric evidence. The motion was made some 15 months after his plea of not guilty to the indictment (see, CPL 250.10). The court denied the motion, concluding defendant had failed to excuse the delay or present sufficient evidence to support the mental defect defense. Defendant maintains that the ruling was erroneous and that he may appeal it notwithstanding his plea of guilty. The ruling is not within that limited group of questions which survive a plea and may subsequently be raised on appeal (see, People v Callahan, 80 NY2d 273, 280; People v Seaberg, 74 NY2d 1, 10; People v Taylor, 65 NY2d 1, 5). It was a discretionary ruling, addressing procedural timeliness, and defendant’s ability to challenge it was forfeited by his plea (see, People v Petgen, 55 NY2d 529, 534).

Nor may defendant raise the issue because his plea was expressly conditioned on his right to appeal the ruling. Generally, conditional pleas are not accepted in New York (see, People v O’Brien, 84 AD2d 567, affd, 56 NY2d 1009; see also, People v Di Raffaele, 55 NY2d 234, 240; People v Thomas, 53 NY2d 338).

Insofar as defendant urges that under the circumstances his plea was not knowing or voluntary, that contention must be addressed in a proceeding pursuant to article 440 of the Criminal Procedure Law.

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

Order affirmed in a memorandum.


text:
    [665 NE2d 656, 642 NYS2d 855]
    Alice Ace, Appellant, v State of New York, Respondent.
    Argued February 7, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Kaufman & Feit, New York City (Matthew A. Kaufman of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Andrea Oser, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (207 AD2d 813).

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


text:
    [665 NE2d 188, 642 NYS2d 618]
    In the Matter of Valerie Van Leer-Greenberg, on Behalf of George Morris, Respondent, v Dominic R. Massaro, as Justice of the Supreme Court, Bronx County, et al., Appellants.
    Argued February 6, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Allen H. Saperstein, Joseph N. Ferdenzi and Peter D. Codding-ton of counsel), appellant pro se.

      Valerie Van Leer-Greenberg, New York City, respondent pro se.

   OPINION OF THE COURT

Memorandum. '

The judgment of the Appellate Division should be reversed, without costs, and the petition dismissed.

The CPLR article 78 prohibition proceeding sought (1) to bar respondent Trial Justice from sua sponte vacating defendant Morris’s guilty plea, and (2) to compel the Trial Justice to impose the promised sentence on a misdemeanor conviction based on the plea.

Defendant was indicted in December 1993 on a class D felony count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]), and a class A misdemeanor count of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). He moved to dismiss the indictment for legal insufficiency of the Grand Jury evidence. Although no formal decision was rendered on the motion, the Trial Justice, on two different pretrial court appearances, announced from the Bench that the felony charge was dismissed.

Based on this premise, the trial court accepted a plea of guilty from defendant on August 1, 1994 to the misdemeanor charge and agreed to impose a sentence of three years’ probation. Sometime thereafter, the Trial Justice filed a written decision, dated July 29, 1994, denying the motion to dismiss and, thus, sustaining the felony count of the indictment. On October 21, 1994, the sentencing date, he also orally advised the parties that the felony count was reinstated and offered defendant the opportunity to withdraw the guilty plea to the misdemeanor count. Defendant refused. On December 6, 1994, defense counsel initiated the instant collateral prohibition proceeding as petitioner on behalf of her client in the criminal proceeding.

The Appellate Division, with two Justices dissenting, granted the petition and remanded the case "for sentence in accordance with the agreement entered upon the record.” As the two-Justice dissent was on a question of law, we need not answer the question certified by the Appellate Division’s grant of leave to appeal from its final judgment (see, CPLR 5601 [a]). We now reverse.

Before sentence is imposed, trial courts in criminal cases have the general inherent authority to correct their own mistakes (see, People v Bartley, 47 NY2d 965, 966; see also, People v Minaya, 54 NY2d 360, 364; compare, Matter of Kisloff v Covington, 73 NY2d 445, 452; Matter of Campbell v Pesce, 60 NY2d 165, 168-169). In a standard application of this principle to the unusual developments here, the Trial Justice cannot be said, as a matter of law for prohibition purposes, to have improperly exercised such authority.

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

Judgment reversed, without costs, petition dismissed and certified question not answered, upon the ground that it is unnecessary, in a memorandum.


text:
    [665 NE2d 189, 642 NYS2d 619]
    Linda C. Vogt, Appellant, v John D. Witmeyer et al., Respondents.
    Argued February 6, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Richard G. Vogt, Rochester, for appellant.

      Nixon, Hargrave, Devans & Doyle, Rochester (William S. Brandt of counsel), respondent pro se, and for John D. Witmeyer and others, respondents.

      Gough, Skipworth, Summers, Eves & Trevett, P. C., Rochester (David A. Gaesser of counsel), for John Albright, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff had been designated as a one-fifth remainder beneficiary in an August 1986 amendment to a revocable trust created by the settlor six years earlier. Unbeknownst to plaintiff, the settlor executed a fourth amendment in December 1988, removing plaintiff as beneficiary, which remained in effect at the settlor’s death three years later. Plaintiff brought this action against the settlor’s trustee, her attorneys and one of the remainder beneficiaries for allegedly depriving her of her remainder interest in the trust, asserting separate causes of action based on theories of tortious interference with prospective inheritance, prima facie tort, conspiracy, ratification and mistake. Supreme Court dismissed all causes of action and the Appellate Division affirmed (212 AD2d 1013).

Plaintiff seeks reinstatement of her cause of action grounded upon tortious interference with prospective inheritance. New York, however, has not recognized a right of action for tortious interference with prospective inheritance (see, Hutchins v Hutchins, 7 Hill 104), and, in any event, such a cause of action would require that the interference be accomplished by some type of independently tortious conduct (see, Restatement [Second] of Torts § 774B). Except for purely conclusory assertions, plaintiff failed to plead any tortious acts by defendants causing the settlor to modify the trust.

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

Order affirmed, with costs, in a memorandum.


text:
    [665 NE2d 190, 642 NYS2d 620]
    The People of the State of New York, Respondent, v Charles Stanley, III, Appellant.
    Argued February 15, 1996;
    decided March 21, 1996
    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 (Elizabeth Clifford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following defendant’s trial for murder in the second degree, the deadlocked jury requested permission to visit the crime scene to aid in their deliberations. The prosecutor, defendant and his counsel all agreed to the postsummation view and accompanied the Trial Judge, court officers and jury to the scene. At the scene, both counsel assented to a request by one juror to walk to a specified corner and run back. When this juror began walking to the corner, escorted by a court officer, another juror joined in without the consent of counsel and defendant, or the permission of the Trial Judge. Although the court officer instructed them not to talk at the scene, the two jurors engaged in some conversation, agreeing to stagger their runs back to the scene and time themselves. Upon their arrival back at the scene, each loudly reported the time to the other. The court officer again admonished the jurors that they could not talk at the scene. Following the return to the courthouse, the jury resumed deliberations and reached its verdict finding defendant guilty. Subsequently, defendant moved, pursuant to CPL 330.30 (2), to set aside the verdict based in part on improper juror conduct. Supreme Court denied the motion, and the Appellate Division affirmed, with two Justices dissenting (see, People v Stanley, 212 AD2d 983).

The jurors’ orchestrated experiment, which exceeded the scope and manner of what counsel consented to, was pointedly aimed at authenticating the eyewitness’s version of the crime as testified to at trial. By simulating the witness’s purported conduct to determine whether, from a particular vantage point, she could have distinguished defendant from the crowd pursuing the victim, the two jurors became unsworn witnesses, incapable of being confronted by defendant, and their experiment created nonrecord evidence, which defendant could not test by cross-examination (see, People v Register, 75 NY2d 832, 833; People v Brown, 48 NY2d 388, 393-394; People v Crimmins, 26 NY2d 319, 324). In this regard, the experiment was not an "application of [the jurors’] everyday perceptions and common sense to the issues presented in the trial” (People v Brown, 48 NY2d, at 393, supra). Whether the jury believed this witness could have observed defendant shooting the victim, as she described, was critical to the prosecution’s case, which hinged on the witness’s credibility and the plausibility of her account of the murder. Furthermore, the conversations between the two experimenting jurors were in violation of the court’s instructions (cf., CPL 270.50 [3]). Notwithstanding defendant’s consent to the postsummation view (cf., People v White, 53 NY2d 721, 723; CPL 270.50 [1]), the risk of prejudice to him from the circumstances of the unauthorized, contrived experiment is manifest.

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

Order reversed, etc.


text:
    Agata Cattano, Respondent, v Nicolo Cattano, Appellant.
    Submitted December 26, 1995;
    decided March 21, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the denial of appellant’s motion for modification of a divorce judgment, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Alice Clissuras, Appellant, v Concord Village Owners, Inc., et al., Respondents.
    Submitted December 18, 1995;
    decided March 21, 1996
   Motion to vacate order dismissing appeal, etc., denied. [See, 86 NY2d 881.]


text:
    In the Matter of National Union Fire Insurance Company of Pittsburgh, Pa., Respondent, v Eland Motor Car Company, Inc., et al., Appellants.
    Submitted November 13, 1995;
    decided March 21, 1996
   Motion for clarification denied. This Court’s decision made clear that the exact amount of the garage owner’s lien was never determined by the courts below and that such a determination must be made upon remand. [See, 85 NY2d 725.]


text:
    Jeffrey S. Rotsko, Appellant, v Donald H. Rice, Respondent.
    Submitted January 8, 1996;
    decided March 21, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Mary E. Washington, Also Known as Mary E. Edwards, Appellant, v Bernard M. Baruch (City University of New York) College, Respondent.
    Submitted January 16, 1996;
    decided March 21, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v John Grossmann, Appellant.
    Submitted February 26, 1996;
    decided March 21, 1996
   Motion for an extension of time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    [665 NE2d 657, 642 NYS2d 856]
    In the Matter of B. Marc Mogil.
    Decided March 26, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable B. Marc Mogil is suspended, with pay, effective immediately, from the office of Judge of the County Court, Nassau County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    [665 NE2d 191, 642 NYS2d 621]
    Franklin W. Lorenz, Appellant, v Division of Taxation of the Department of Taxation and Finance of the State of New York, Respondent.
    Argued February 8, 1996;
    decided March 26, 1996

      APPEARANCES OF COUNSEL

      Albrecht, Maguire, Heffern & Gregg, P. C., Buffalo (Ralph J. Gregg and Alan J. Bozer of counsel), for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Andrew D. Bing, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff conceded that he was "a person required” to collect sales tax and was consequently personally liable for any such tax that was or should have been collected (Tax Law § 1131 [1]; § 1132 [a]; § 1133 [a]). It follows that plaintiff was also subject to Tax Law § 1145, which provides that "[a]ny person failing * * * to pay or pay over any tax * * * shall be subject to a penalty * * * [and] interest” on the amount of unpaid tax. Plaintiffs contention that in this context the "person” referred to in section 1145 is the corporate entity on which the tax obligation was initially imposed is belied by the language and import of subdivision (a) (7). Under that subdivision, penalties and interest are to be "collected and enforced in the same manner as the tax.” Since the obligation to pay the tax may be enforced against plaintiff personally, so too can the assessed penalties and interest.

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

Order affirmed, with costs, in a memorandum.


text:
    [665 NE2d 192, 642 NYS2d 622]
    The People of the State of New York, Respondent, v Rahson Johnson, Appellant.
    Argued February 8, 1996;
    decided March 26, 1996

      APPEARANCES OF COUNSEL

      Earle Giovanniello, Brooklyn, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was tried jointly before a jury with two codefendants, and convicted of robbery in the first degree and three counts of attempted robbery in the first degree. On the second day of deliberations, after being informed that one or more jurors might be encountering personal problems, the court asked the jurors to communicate, in writing, the nature of any problem they might be experiencing. The court received a note from one juror expressing concern for the safety of her family. The courtroom was cleared and the juror questioned in the presence of the court and both counsel.

The juror stated that she felt unable to continue deliberating because she recognized a person in the courtroom and feared reprisals if a verdict unfavorable to the defendants was reached. The juror advised the court that she did not feel she was in danger until after the first day of deliberations had ended. Defendant moved for a mistrial.

After determining from the jury and the foreperson that the jury had reached a verdict on some counts of the indictment at the end of the first day’s deliberations, the court took a partial verdict. The jury found the defendant guilty of one count of robbery in the first degree and guilty of three counts of attempted robbery in the first degree. It did not reach a verdict on one count of robbery in the first degree. The court then discharged the jury. Defendant’s motion for a mistrial was denied. Defendant appealed his convictions and the Appellate Division affirmed.

A juror may be discharged even after jury deliberations have begun if a court finds from facts unknown during the jury selection process that a juror is grossly unqualified (CPL 270.35). "In concluding that a juror is grossly unqualified, the court may not speculate as to possible partiality of the juror based on her equivocal responses. Instead, it must be convinced that the juror’s knowledge will prevent her from rendering an impartial verdict” (People v Buford, 69 NY2d 290, 299).

The juror at issue here stated that she did not feel unable to continue deliberating until after the jury had been discharged on the first day. Consequently, the juror was not grossly unqualified to participate in the first day’s jury deliberations and the partial verdict was reached by a qualified and competent jury. Having determined that the jury would be unable to reach a verdict on all of the counts, the trial court properly terminated the deliberations and ordered the jury to render a partial verdict (CPL 310.70 [1] [a]).

Defendant’s remaining contentions are unpreserved.

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

Order affirmed in a memorandum.


text:
    Barclays Bank of New York, N. A., Respondent, v Heady Electric Co., Inc., et al., Appellants.
    Submitted January 8, 1996;
    decided March 26, 1996
   Motion, insofar as Brian T. Heady seeks leave to appeal purportedly on behalf of Coral A. Heady and Heady Electric Co., Inc., dismissed upon the ground that Brian T. Heady is not the authorized legal representative of either Coral A. Heady or Heady Electric Co., Inc. and upon the further ground that Heady Electric Co., Inc. must appear by attorney (see, CPLR 321 [a]); motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    In the Matter of Linda Hollis, Appellant, v Marriott Hotel, Respondent. Workers’ Compensation Board, Respondent.
    Submitted January 8, 1996;
    decided March 26, 1996
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied. Motion for poor person relief, etc., dismissed as academic. [See, 87 NY2d 859.]


text:
    In the Matter of Yusuf O’Neal, Appellant, v Anthony Schembri et al., Respondents.
    Submitted January 8, 1996;
    decided March 26, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division’s August 3,1995 order, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks reargument of appellant’s prior motion for leave to appeal, denied. [See, 87 NY2d 803.]


text:
    The People of the State of New York, Respondent, v John Wallason, Appellant.
    Submitted February 26, 1996;
    decided March 26, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies to the Court of Appeals from the order entered in this criminal proceeding (CPLR 5602; NY Const, art VI, § 3 [b]).


text:
    In the Matter of Ernest W. Vann, Appellant, v James A. Baker, as Special Prosecutor, et al., Respondents.
    Submitted January 16, 1996;
    decided March 26, 1996
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the order of the individual Justice of the Appellate Division (see, CPLR 5602; NY Const, art VI, § 3 [b]).


text:
    [666 NE2d 171, 643 NYS2d 466]
    In the Matter of Tabitha LL., Alleged to be a Person in Need of Supervision, Appellant. Ralph Corbo, as Principal of Ticonderoga High School, Respondent.
    Argued February 7, 1996;
    decided March 21, 1996

      APPEARANCES OF COUNSEL

      Paul J. Connolly, Albany, for appellant.

      Richard B. Meyer, County Attorney of Essex County, Elizabethtown, for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent was adjudicated a person in need of supervision (PINS) in a Family Court Act article 7 proceeding. At her arraignment, respondent was assigned counsel and initially advised of her right to remain silent, as required by Family Court Act § 741. However, she was not accorded the procedural safeguards embodied in Family Court Act § 321.3, the article governing juvenile delinquency proceedings. She argues on this appeal that Family Court’s failure to follow these procedures before she entered an admission on the charges constitutes reversible error. We disagree.

Article 3 explicitly requires that the Family Court advise a respondent that by making an admission he or she is waiving the right to a fact-finding hearing, and ascertain that respondent is aware of the possible specific dispositional orders (Family Court Act § 321.3 [1]). There is no comparable provision in article 7. There is no legislative history or rule of statutory construction that would permit us to read into article 7 an express provision of article 3. As respondent was sufficiently advised of her rights to the extent required under Family Court Act § 741, she received all the protection required by the statute. Respondent’s constitutional arguments are unpreserved for our review. Under the circumstances, her admissions were not invalid.

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

Order affirmed, without costs, in a memorandum.

       To the extent Matter of Jacqueline P. (149 AD2d 933), Matter of Rickey B. (158 AD2d 1002), and Matter of Christopher W. (154 AD2d 937) are to the contrary, they are not to be followed.


text:
    [666 NE2d 172, 643 NYS2d 467]
    Sandra J. Pay et al., as Guardians of Sherilynn M. Kirisits, an Infant, Respondents, v State of New York, Appellant. (And a Similar Matter.)
    (Appeal No. 1.)
    Argued February 8, 1996;
    decided March 28, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vaeco, Attorney-General, Albany (Michael S. Buskus, Victoria A. Graffeo and Peter H. Schiff of counsel), for appellant.

      Paul William Beltz, P. C., Buffalo (Robert B. Nichols, William A. Quinlan and Anne B. Rimmler of counsel), for respondents.

      Paul A. Crotty, Corporation Counsel of New York City (John Hogrogian and Pamela Seider Dolgow of counsel), for New York City, amicus curiae.

      Schneider, Kleinick, Weitz, Damashek & Shoot, New York City (Brian J. Shoot and Harry Steinberg of counsel), for New York State Trial Lawyers Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be reversed, with costs, and the case remitted to the Court of Claims for further proceedings in accordance with this memorandum.

This is a personal injury action on behalf of infant Sherilynn Kirisits, who in August of 1975 was in útero when her mother, Sheryl Kirisits, was involved in an automobile accident on a State highway. Sheryl Kirisits spent the next several months in a coma and died the day after giving birth. The State was found to have negligently maintained a guardrail, causing her injuries, and her estate was awarded $382,342.32 in damages. When the infant was 10 years old, her legal guardians brought the present suit and sought partial summary judgment on the issue of liability, on the ground of collateral estoppel. The Court of Claims denied claimants summary judgment, but the Appellate Division reversed, granted their motion and remanded for a trial on damages. After trial, the Court of Claims awarded the infant past and future damages of $9,994,741 which was subsequently structured by the court pursuant to CPLR article 50-B.

Originally, the court included in the structured judgment prejudgment interest on all damages except future damages, and it allowed interest from July 13, 1990 (the date of the Appellate Division decision finding liability) to January 28, 1994 (the date of entry of judgment). Claimants, however, objected that the judgment included no interest on future damages. After opposition by the State on the point, the Court of Claims directed amendment of the judgment to add interest on the entire award from July 13, 1990 to January 28, 1994, with future damages discounted to present value as of August 15, 1993. The State appealed from the amended judgment, and the Appellate Division affirmed. The State now argues that the award of future damages should have been discounted back to July 13, 1990. We agree.

CPLR articles 50-A and 50-B are "technical administrative schemes intended to regulate and structure payment, and they should not be construed in such a way as to increase the underlying liability owed by defendants.” (Rohring v City of Niagara Falls, 84 NY2d 60, 67.) CPLR 5001, 5002 and 5003 set forth the interest requirements for three distinct periods: interest prior to verdict (CPLR 5001), interest from verdict to judgment (CPLR 5002) and interest from judgment to payment (CPLR 5003). CPLR 5002, the section applicable to the period at issue, states that interest shall be recovered "upon the total sum awarded * * * from the date the verdict was rendered.”

Love v State of New York (78 NY2d 540, 545) established that "[i]n a bifurcated personal injury action prejudgment interest under CPLR 5002 should be calculated from the date of the liability determination” even though the actual damages are assessed and judgment entered later. Subsequently, in Milbrandt v Green Refractories Co. (79 NY2d 26), a wrongful death action, we recognized that an award of future damages includes an amount equivalent of interest and, unless discounted back to the date from which statutory interest would be added, prejudgment interest on future damages would constitute a windfall (see, Milbrandt, 79 NY2d at 35; accord, Woodling v Garrett Corp., 813 F2d 543, 560).

Similarly in Rohring (84 NY2d at 70) we noted that "the future damages here were properly treated as a debt owed entirely as of the date of the liability verdict, and interest was properly charged against the present value of future damages from that date under CPLR 5002. That result is consistent with Love and Milbrandt and, most importantly, with the plain language of the statute.” Claimants misconstrue our holding in Rohring, which, following Milbrandt, held that interest was properly charged against the present value of future damages from the date of the determination of liability under CPLR 5002. Indeed, claimants have adduced no reason why the avoidance of an interest windfall should not apply equally to personal injury actions and wrongful death actions.

The State’s additional argument, that the Court of Claims improperly allowed a double recovery by admitting evidence of inflation at trial and then imposing the 4% annual adjustment under CPLR 5041 (e), is not preserved for our review.

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

Order, insofar as appealed from, reversed, etc.


text:
    [666 NE2d 174, 643 NYS2d 469]
    The People of the State of New York, Respondent, v Woodrow Williams, Appellant.
    Argued February 15, 1996;
    decided March 28, 1996

      APPEARANCES OF COUNSEL

      Nancy E. Little, New York City, and Daniel L. Greenberg for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

On March 17, 1993 defendant pleaded guilty to burglary in the second degree. He admitted that on June 21, 1991, he entered a dwelling without permission while the occupant was sleeping and removed a CD (compact disc) player and a pocketbook. At the time of the plea, defendant responded affirmatively to the court’s question as to whether he understood "that you are pleading guilty to a C felony and the law gives me the power to impose a sentence of up to 15 years”. On April 9,1993, the defendant was sentenced to an indeterminate term of 3Va years to 7 years in prison. On April 16, 1993, the court, sua sponte, resentenced the defendant to 31/2 to 101/2 years in prison, noting that it had incorrectly sentenced defendant as a predicate rather than as a first felony offender. The Appellate Division affirmed following a motion for an amended sentence.

Here, the trial court had the inherent power to correct an illegal sentence (see, People v Minaya, 54 NY2d 360, cert denied 455 US 1024). Defendant’s claim of double jeopardy must also be rejected. That claim would be colorable only if the defendant’s sentence had been increased beyond his legitimate expectations of what the final sentence should be. In view of the court’s statement during the plea proceedings that the defendant could receive up to 15 years in prison, there could be no expectation of finality on his part with respect to the lesser and illegal sentence (People v Minaya, 54 NY2d, at 365, supra; United States v DiFrancesco, 449 US 117, 139).

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

Order affirmed in a memorandum.


text:
    Board of Managers of Revere Condominium, Respondent, v Shahsultan Jaffer, Appellant.
    Submitted March 4, 1996;
    decided March 28, 1996
   Motion to vacate this Court’s order dated February 15, 1996, etc., denied. [See, 87 NY2d 952.]


text:
    In the Matter of New York State Dormitory Authority, Respondent, v Board of Trustees of Hyde Park Fire & Water District, Appellant.
    Submitted March 4, 1996;
    decided March 28, 1996
   Motion to dismiss appeal granted and appeal herein dismissed. Supreme Court’s order dated December 1, 1995 fully comports with this Court’s June 29, 1995 remittitur. [See, 86 NY2d 72.]

Judge Levine taking no part.


text:
    [666 NE2d 1050, 644 NYS2d 137]
    The People of the State of New York, Respondent, v Santos Ruiz, Appellant.
    Decided April 2, 1996

      APPEARANCES OF COUNSEL

      Susan E. Kriete, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Karin R. Vandevenne and Robert L. Moore of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in so much of the memorandum of the Appellate Division as pertains to charging the lesser included offense (216 AD2d 63).

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


author: Bellacosa, J. Levine, J.

text:
    [666 NE2d 175, 643 NYS2d 470]
    The People of the State of New York, Respondent, v Jose Monclavo, Appellant.
    Argued January 4, 1996;
    decided April 2, 1996

      APPEARANCES OF COUNSEL

      Andrew E. Abraham, New York City, and Daniel L. Green-berg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted to the Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree and sentenced to three to six years in prison. Prior to jury selection, the court and the attorneys referred to "a preliminary informal Sandoval conference” held earlier in the day (People v Sandoval, 34 NY2d 371). It is clear that the earlier conference was a Sandoval hearing at which the court determined what questions the prosecutor would be allowed to ask should the defendant take the stand. The following colloquy occurred:

"mr. o’rourke: Judge, I thought we agreed that she could delve into the questioning of Burglary in the First Degree and two misdemeanors, and—
"the court: That’s going to be my ruling.”

The decision on what could be asked had been determined at an earlier hearing, after a discussion of defendant’s one prior felony conviction and 30 prior misdemeanor convictions. Even if, as the dissent contends, the court "formally” announced its Sandoval decision at the later colloquy in defendant’s presence, the facts surrounding defendant’s extensive felony and misdemeanor history were not discussed at that time. To the contrary, the record of this subsequent conference indicates that the details surrounding defendant’s prior arrests and convictions were discussed only at the earlier, preliminary Sandoval conference. Given "the potential for meaningful participation by the defendant” during this factual discussion, he had a right to be present at the earlier conference (People v Dokes, 79 NY2d 656, 661).

The record does not reflect that defendant was present as required (People v Dokes, supra). Moreover, the discussion held just prior to the jury being selected was not a new Sandoval hearing since there was no opportunity for the defendant to meaningfully participate and no argument about what convictions or bad acts could be brought out by the prosecutor. A mere repetition or recitation in the defendant’s presence of what has already been determined in his absence is insufficient compliance with the Sandoval rule (People v Favor, 82 NY2d 254, 267). Reasonable persons may differ on the meaning of a record and, contrary to the view of the dissent, the entire colloquy regarding Sandoval simply does not lead to the conclusion that the defendant had a meaningful opportunity to participate in a Sandoval hearing.

Accordingly, the case must be remitted for a hearing to determine whether or not defendant was present at that Sandoval proceeding (People v Michalek, 82 NY2d 906). If defendant was not present, a new trial must be held, preceded by a Sandoval hearing at which defendant is present. If it is determined that defendant was present, the judgment of conviction should be amended to reflect that result (.People v Michalek, 82 NY2d, at 907, supra).

APPENDIX

"ms. hart: It’s a one count case, Judge, possession fifth degree.
"Judge, we also had a preliminary informal Sandoval conference earlier today.
"If the defendant were inclined to testify, here, the People would be asking as we stated at the bench, to get in the 1986 felony conviction for Burglary in the Second Degree. The defendant also has approximately thirty misdemeanors and it was unclear as to what the Court had determined that he could be asked regarding that misdemeanor history.
"I’d request to be able to interrogate him on at least ten of those misdemeanors, of those thirty misdemeanors.
"He also has had felony parole revoked two times according to his RAP sheet and I believe that would be fair questioning since that’s a prior bad act. He’s also resentenced to a misdemeanor case which he had failed to do community service on. He also has an extensive bench warrant history, and I believe those factors, especially the patrol [sic] revocations, twice, are indications again of this defendant’s intent to put his own interest above those of society and they are also recent in time and I would request the Court to allow me to question him on those facts.
"the court: Mr. O’Rourke?
"mr. o’rourke: Judge, I thought we agreed that she could delve into the questioning of Burglary in the First Degree and two misdemeanors, and—
"the court: That’s going to be my ruling.
"mr. o’rourke: Okay. That’s fine.
"the court: The people will be allowed to elicit, should the defendant take the stand, the date of the conviction for the burglary charge, as well as the fact that it was a burglary conviction.
"ms. hart: A felony conviction?
"the court: What is the degree?
"ms. hart: Burglary in the Second Degree.
"the court: All right, Burglary in the Second Degree.
"I will also allow the People to elicit the fact that the defendant was convicted of two two [sic] misdemeanors, the two most recent misdemeanors with the date of the conviction without going into the nature or charges of those underlying facts.
"ms. hart: And nothing on the parole revocation?
"the court: No.”

Bellacosa, J.

(dissenting). Because I would affirm the order of the Appellate Division upholding the judgment of conviction after a jury trial, I respectfully dissent. I completely agree with Judge Levine’s dissenting expression that defendant’s Dokes right was not violated in this case, and that the whole of the trial court’s actions comported with existing statutory and precedential prerequisites (see, CPL 260.20; People v Favor, 82 NY2d 254; People v Dokes, 79 NY2d 656). I dissent separately, however, to identify some additional theoretical and precedential divergence from the majority, as well as to provide some practical observations relating to future practice, so that the Bench and Bar may avoid the appellate imposition of the reconstruction remedy.

Defendant claims that he was excluded from "a preliminary informal Sandoval conference” held before trial. He asks the appellate courts to infer absence at that conference solely from the colloquy at the subsequent Sandoval hearing and determination — at which he and his lawyer were present and raised no complaint or claim about the earlier phase. On that basis, he seeks an automatic reversal of his conviction and a new trial. The majority accepts appellant’s new and expanded theory to the extent of granting partial, conditional relief. It reverses and remits for a reconstruction hearing to determine whether he was present at the initial discussion, on the assumption that his absence at that phase constitutes a Dokes violation.

A fair reading of the complete transcript reasonably demonstrates that whatever discussions might have taken place preliminarily, the Trial Judge had not yet formally decided the Sandoval matter. The defendant and his lawyer were ultimately given a plenary opportunity at an effective time to contribute to the Sandoval proceeding and ruling. Remittal for reconstruction of what happened at the initial informal conference on this record is, therefore, legally superfluous.

Stare decisis dictates — and there is no longer room for disagreement — that when a trial court merely recites in defendant’s presence the "gist of its [prior] Sandoval decision,” the right to presence under CPL 260.20 has already been violated on a per se basis (People v Favor, 82 NY2d, at 267, supra). This Court’s overriding concern in this area remains whether the Sandoval ruling was a foregone conclusion by the time defendant was present, rendering subsequent presence a vain gesture, or whether the trial court had only begun the process of formulating its consideration with an eventual full and fair opportunity for the defendant’s personal participation.

The trial court did everything possible to provide what was essentially a first instance, formal consideration with everyone present, expressly so that the Dokes-Sandoval presence protocol could be satisfied. To nullify the trial court effort undertaken at a still meaningful stage in these proceedings to comply with this Court’s rigorous mandates, albeit by statutory construction, does not accord the trial court or the totality of the record the regularity they deserve. This remittal, thus, complicates and adds to the procedural maze and compels the parties to reconstruct an essentially meaningless ingredient.

In my view, the majority fails to sufficiently factor in that (1) the record declares the initial colloquy to be a "preliminary informal Sandoval conference” (emphasis added); (2) the prosecutor argued that "the People would be asking” to question defendant about a prior burglary conviction and 10 out of 30 misdemeanor convictions, and added, "I would request the Court to allow me to question him on those facts” (emphasis added); and (3) the trial court used the future tense in telling defense counsel, "[Tjhat’s going to be my ruling.” Only later, with defendant present and able to object and contribute, and after hearing counsel, did the court render its formal ruling: "the court: The people will be allowed to elicit, should the defendant take the stand,” the defendant’s burglary conviction and two misdemeanor convictions.

I disagree with the majority’s characterization that, at the final rung on the appellate review ladder, all this case stands for is that reasonable minds may disagree concerning the im terpretation of such plain pretrial proceedings. Greater deference is owed to the distributive allocation of the ascending yet complementary roles in the judicial process in connection with the legal, precedential and practical consequences aplenty flowing from this newest Dokes-Odiat permutation (see, People v Odiat, 82 NY2d 872).

Today’s rationale and remittal, in my view, compound the procedural consequences flowing from precedents under which the Court has directed the reconstruction remedy to determine whether a defendant was present at an earlier phase of a San doval hearing (.People v Michalek, 82 NY2d 906; People v Odiat, 82 NY2d 872, supra). The extension of what I had always thought, based on weighty utilitarian and jurisprudential factors, was a rarely desirable remedy of last resort — long-delayed reconstruction proceedings — is significant and problematic.

Moreover, in both Michalek and Odiat, the record was unclear as to the defendants’ presence in circumstances where actual Sandoval rulings were previously rendered by the trial courts with respect to the prior acts subject to the People’s inquiry should defendants choose to testify. Thus, after the hearing in Odiat, "[t]he court ultimately determined that the People would be permitted to inquire” about several prior crimes (People v Odiat, supra, at 873 [emphasis added]). Defendant’s presence at the hearing may have been impossible to ascertain without a reconstruction hearing, but the ruling plainly demonstrated that what was key to the rationale was that a functionally dispositive proceeding, to which the right-to-presence attached, had transpired earlier. That is the critical difference of this case from Odiat and, thus, demonstrates the remedial expansion in this case of Odiat’s precedential reach.

Likewise, in Michalek, two actual Sandoval hearings were held, one pretrial and one shortly before the defendant’s scheduled testimony at the trial. After the first hearing, the court "determined that the People would be permitted to question defendant concerning a prior New York felony conviction” (People v Michalek, supra, at 907 [emphasis added]). After the second hearing, the court "determined that the People would also be permitted to inquire of defendant regarding two recent New Jersey convictions” {id., at 907 [emphasis added]). That the colloquies at issue were actual hearings and discrete determinations was beyond dispute; again, the only ambiguity was in ascertaining the presence of the defendant in that discrete context. These are not mere semantical or interpretive quibbles, but matters of substantive difference, precedential demarcation, and differentiating remedial consequences.

Here, the Trial Judge did not "determine” the matter at the "preliminary informal Sandoval conference.” Rather, the record is unequivocal that the subsequent, formal consideration was the actual Sandoval proceeding and determination. Defendant and his lawyer were unquestionably present at the Sandoval hearing in this case and had a full opportunity for input and participation as part of the trial court’s de nova consideration and its actual resolution. Because the hearing at which defendant was undeniably present produced not merely a recitation of the "gist” of a previous decision or a foregone conclusion, a reconstruction hearing as to defendant’s presence on the earlier occasion is not required by existing precedents or principles, and is superfluous. Put differently, even if defendant’s absence from the first informal conference is conceded, reversal and remittal are not necessary here.

This remittal and reconstruction directive additionally overlooks the clear directive of People v Kinchen (60 NY2d 772). There, the claim on appeal was based on the defendant’s right to counsel, which, like the Dokes claim at issue here, does not have to be preserved in the traditional manner. The Court nevertheless affirmed the conviction, reasoning that the lack of a preservation requirement did not "dispense with the need for a factual record sufficient to permit appellate review” (People v Kinchen, supra, at 774; see also, People v Charleston, 54 NY2d 622, 623; People v De Mauro, 48 NY2d 892, 893). Kinchen is still operative, apt and persuasive and ought to produce an a fortiori affirmance in yet another of these Sandoval pretrial collateral disputes about presence.

I emphasize that the Kinchen requirement is not some side or back door substitute for traditional preservation principles generally needed and customarily operative at the trial level, but which regrettably do not apply in these Sandoval presence cases (People v Favor, 82 NY2d 254, supra; People v Dokes, 79 NY2d 656, supra). Instead, Kinchen represents a straightforward, distinctive responsibility for litigants to provide appellate courts with a proper record on which to base their decisions. Importantly, it does not contemplate multiple opportunities and reconstructions. Kinchen’s key contribution to procedural regularity is lost when appellate proceedings become functional interludes to allow convicted defendants to unravel and then remake records that should and could have been attended to in the first round at the trial court level. The inevitable consequence of this ruling will add inordinate and unnecessary delay to the final adjudication of this and many other criminal proceedings.

Finally, the fact that preliminary, off-the-record conferences automatically qualify as formal, binding, Sandoval proceedings and rulings with per se remedial consequences, necessitating defendant’s presence absent a waiver, is yet another unfortunate development affecting this entire field of pretrial proceedings (see, People v Favor, 82 NY2d 254, 272, supra [Bellacosa, J., dissenting]). Informal explorations, and even false starts, ought not cast arguably procedurally flawed preliminary steps into irretrievably set stone. The ruling today takes the Trial Judge, who tried to follow this Court’s Dokes dictates, to task and forces the trial court to conduct a superfluous, retrospective exercise. Useful preliminary explorations with counsel should not carry such untoward consequences, for they then will correspondingly suffer the counterintuitive disincentive against being undertaken in the first place. This practical boomerang is beyond any realistic purpose of Dokes, Favor, Odiat, Michalek or CPL 260.20.

To ward off some of these problems in the future, Trial Judges who are still willing to risk discussing any aspect of a Sandoval nature informally and preliminarily with counsel should also make certain to place express disclaimers on the record, for example, (1) that no Sandoval decision will be rendered, and (2) that the defendant will be produced for a plenary, de nova Sandoval hearing and determination down the road. In the alternative, trial courts should demand explicit waivers at every step and twist of the pretrial and trial proceedings. By such measures, busy Trial Judges might thus insulate their efforts and actions against unnecessary repetition and untoward prolongation of criminal proceedings.

Levine, J.

(dissenting). I respectfully dissent.

The record in this case indicates that "a preliminary informal Sandoval conference” was held off the record prior to a formal on-the-record hearing at which Sandoval issues were determined. We are unable to discern from the record in this case whether defendant was present at the preliminary informal Sandoval conference. Defendant argues that his right to be present at the Sandoval hearing was violated by his alleged absence from the preliminary conference. The majority agrees, holding that defendant’s right to be present was violated if indeed he was not personally present at the preliminary conference, and the majority has thus ordered a reconstruction hearing to determine whether or not defendant was present at the preliminary conference. The record does not support the majority’s conclusion. Rather, the record shows that defendant was furnished with a full and fair opportunity to give meaningful input into the Sandoval process and determination at the actual Sandoval hearing. Thus, the alleged absence of defendant at the preliminary discussion, at which his lawyer was present, is irrelevant in this circumstance and we need not remit for a reconstruction hearing to determine whether defendant was present at the first informal conference.

As we have repeatedly held, a criminal defendant has the right to be personally present at Sandoval hearings (see, People v Favor, 82 NY2d 254; People v Michalek, 82 NY2d 906) because defendant’s presence at those proceedings is substantially and materially related to the ability to defend. At a Sandoval hearing, the ability of the defendant to participate is manifest because the determination is based on facts surrounding the defendant’s past bad acts about which defendant has unique knowledge (People v Pokes, 79 NY2d 656, 660-662). Thus a court’s recitation of the "gist” of a Sandoval decision made in defendant’s absence will "not ameliorate the error, since [the] recitation [does] not furnish defendant with the opportunity for meaningful participation to which he was entitled” (People v Favor, supra, at 267). However, a defendant’s absence from a Sandoval hearing does not deprive him or her of the opportunity to give meaningful input into a Sandoval determination when the court essentially and functionally conducts a de nova hearing on the same matter at which defendant is present and at which he and his lawyer have a full and fair opportunity to participate (see, People v Feliciano, 88 NY2d 18, 27 [decided today]; People v Favor, supra, at 268).

The parts of the record relied upon by the majority could support the position that what happened here was "[a] mere repetition or recitation in the defendant’s presence of what ha[d] already been determined in his absence” (majority mem, at 1031). However, when read in its entirety, the record in this case demonstrates that defendant was in fact afforded a full and fair opportunity to meaningfully participate in the Sandoval determination at the later proceeding:

"ms. hart [prosecutor]: Judge, we also had a preliminary informal Sandoval earlier today.
"If the defendant were inclined to testify, here, the People would be asking as we stated at the bench, to get in the 1986 felony conviction for Burglary in the Second Degree. The defendant also has approximately thirty misdemeanors and it was unclear as to what the Court had determined that he could be asked regarding that misdemeanor history.
* * *
"He also has had felony parole revoked two times according to the RAP sheet and I believe that would be fair questioning since that’s a prior bad act. He’s also resentenced to a misdemeanor case which he had failed to do community service on. He also has an extensive bench warrant history, and I believe these factors, especially the patrol [sic] revocations, twice, are indications again of this defendant’s intent to put his own interest above those of society and they are also recent in time and I would request the Court to allow me to question him on those facts.
"the court: Mr. O’Rourke?
"mr. o’rourke [defense counsel]: Judge, I thought we agreed that she could delve into the questioning of Burglary in the First Degree and two misdemeanors, and—
"the court: That’s going to be my ruling.
"[defense counsel]: Okay. That’s fine.
"the court: The people will be allowed to elicit, should the defendant take the stand, the date of the conviction for the burglary charge, as well as the fact that it was a burglary conviction.
"[prosecutor]: A felony conviction?
"the court: What is the degree?
"[prosecutor]: Burglary in the Second Degree.
"the court: All right, Burglary in the Second Degree. I will also allow the People to elicit the fact that the defendant was convicted of two * * * misdemeanors, the two most recent misdemeanors with the date of the conviction without going into the nature or charges of those underlying facts.
"[prosecutor]: And nothing on the parole revocation?
"the court: No.” (Emphasis supplied.)

This complete transcript makes clear that whatever preliminary discussions had taken place earlier, the court had not yet definitively considered or conclusively decided any of the Sandoval issues until the time of the formal hearing. Thus, the prosecutor requested that she be allowed ("the People would be asking * * *. I would request”) to question defendant on a long history of prior felony and misdemeanor convictions, as well as other prior bad acts, and argued in support of her position. Defense counsel was then offered the opportunity to respond fully to the prosecutor’s request. He did so urging a far more restricted scope of cross-examination, and the court agreed. Until the Judge made the Sandoval ruling itself later in the colloquy, defendant was free to "point out errors in the DCJS report, to controvert assertions by the prosecutor with respect to uncharged acts and to provide counsel with details about the underlying facts of both charged and uncharged acts” (People v Dokes, 79 NY2d 656, 661, supra). In other words— unlike in People v Favor (supra), People v Odiat (82 NY2d 872) and People v Michalek (82 NY2d 906, supra) in which the Sandoval determinations were finally determined in the absence (or alleged absence) of the respective defendants — defendant here had the opportunity to fully participate in the Sandoval determination at the essentially de nova hearing held in his presence. Defendant’s decision not to further participate did not demonstrate his lack of opportunity to do so.

The majority apparently does not disagree that the test is whether a defendant was present at a hearing in which he or she had the opportunity for meaningful input before the court made its final Sandoval ruling (see, People v Favor, supra; see also, People v Michalek, supra; People v Odiat, 82 NY2d 872, supra). The majority claims that such an opportunity was not had here because "the facts surrounding defendant’s extensive felony and misdemeanor history were not discussed at [the formal hearing when defendant was present].” (Majority mem, at 1031.) However, the record at the hearing when defendant was present reflects that his entire criminal history was reviewed, that is, his "1986 felony conviction for Burglary in the Second Degree [plus] approximately thirty misdemeanors [plus his] felony parole revocation] [plus] extensive bench warrant history”. The record conclusively shows that, in defendant’s presence, his attorney was invited to respond to that entire criminal history which the prosecution requested permission to use in cross-examination ("the court: Mr. O’Rourke?”).

As defendant was given a full and fair opportunity to participate in the formal, on-the-record Sandoval hearing, at which the actual Sandoval determinations were made by the Trial Judge, defendant was afforded everything to which he was entitled by the statutory grant of a right to be present. Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Kaye and Judges Simons, Titone, Smith and Ciparick concur; Judges Bellacosa and Levine dissent and vote to affirm in separate opinions.

Order modified by remitting to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.

       The entire discussion of the Sandoval issue is included in the Appendix.


text:
    In the Matter of Michael Colao, Appellant, v Village of Ellenville et al., Respondents.
    Submitted February 13, 1996;
    decided April 2, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for reargument, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    New York State Dam Limited Partnership, Appellant, v Niagara Mohawk Power Corporation, Respondent.
    Submitted February 5, 1996;
    decided April 2, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying appellant’s motion for renewal or reargument, 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:
    In the Matter of Manojkumar D. Patel (Admitted as Manoj Kumar Dahyabhai Patel), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted February 13, 1996;
    decided April 2, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied appellant’s motion for an order directing an investigation into alleged attorney misconduct, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [666 NE2d 1051, 644 NYS2d 138]
    The People of the State of New York, Appellant, v Wayne Clarke, Respondent.
    Decided April 4, 1996

      APPEARANCES OF COUNSEL

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Raymond C. Herman of counsel), for appellant.

      Wayne Clarke, pro se, and Mary E. Good, Buffalo, and Linda S. Reynolds, for Wayne Clarke, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not considered on the appeal to that court and consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Goss, 87 NY2d 792 [decided today]; People v Avery, 87 NY2d 792 [decided today]).

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


text:
    [666 NE2d 1052, 644 NYS2d 139]
    In the Matter of Robert OO., Respondent-Appellant, v Michael J. Dowling, as Commissioner of the New York State Department of Social Services, et al., Appellants-Respondents.
    Decided April 4, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, Albany (Lew A. Millenbach, Victoria A. Graffeo, Peter H. Schiff and Troy J. Oechsner of counsel), for Michael J. Dowling, appellant-respondent.

      Kevin L. O’Brien, Albany, and Carolyn Guresz for Ross Prinzo, appellant-respondent.

      Roland, Fogel, Koblenz & Carr, Albany (Murray S. Carr of counsel), for respondent-appellant.
   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, without costs (see, Matter of Lee TT. v Dowling, 87 NY2d 699 [decided today]; Matter of Joel P. v Bane, 87 NY2d 699 [decided today]).

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


text:
    [666 NE2d 182, 643 NYS2d 477]
    The People of the State of New York, Respondent, v Sylvester Goode, Appellant.
    Argued February 13, 1996;
    decided April 4, 1996

      APPEARANCES OF COUNSEL

      Michael C. Taglieri, New York City, and Daniel L. Greenberg for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Alyson J. Gill, Roseann B. MacKechnie and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant moved pursuant to CPL 30.30 to dismiss the indictment charging him with unauthorized use of a vehicle in the second and third degrees and criminal possession of stolen property in the third and fourth degrees on speedy trial grounds. Defendant argued that the entire period of time between August 20, 1991 — the date of his indictment — and April 2, 1992 — the date defendant was arraigned and the People declared ready — was chargeable to the People because "[d]clays between the indictment and the arraignment, like other court congestion, do not prevent the People from being ready for trial * * * (People v Correa, 77 NY2d 930).” In response, the People argued, among other things, that defendant’s medical quarantine during the 35-day period between February 27, 1992 and April 2, 1992 rendered him unavailable during that time within the meaning of CPL 30.30 (4) (c) and was also excludable under CPL 30.30 (4) (g) as an "extraordinary circumstance.” Supreme Court denied the motion on the ground that the dispositive 35-day period of defendant’s medical quarantine was excludable as an extraordinary circumstance under CPL 30.30 (4) (g). Citing both CPL 30.30 (4) (c) and (g), the Appellate Division affirmed, concluding that defendant’s quarantine while incarcerated constituted excludable time.

Defendant claims that the motion to dismiss on speedy trial grounds should have been granted because the People’s failure to establish that his medical quarantine "caused” or "occasioned” their delay in declaring readiness precluded reliance on subdivision (4) (c) and (g). As the People contend, this argument has not been preserved for our review.

A defendant seeking a speedy trial dismissal pursuant to CPL 30.30 meets his or her initial burden on the motion simply "by alleging only that the prosecution failed to declare readiness within the statutorily prescribed time period” (People v Luperon, 85 NY2d 71, 77-78). However, once the People identify the statutory "exclusions on which they intend to rely,” the defendant preserves challenges to the People’s reliance on those exclusions for appellate review by "identify[ing] any legal or factual impediments to the use of th[o]se exclusions” (id.). The purpose of adhering to strict rules of preservation in this context is to provide the court with an "opportunity to remedy the problem and thereby avert reversible error” (id.).

Notwithstanding defendant’s quotation of general "causation” principles and citation to People v Correa (supra), defendant never specifically argued that the respective "unavailability” and "exceptional circumstances” exclusions of subdivision (4) (c) and (g) were unavailable to the People unless they established a causal relationship between defendant’s quarantine and their delayed readiness declaration. In fact, to the extent that defendant raised any "causation” argument before the motion court, it referred generally to the entire stretch of time between his indictment and arraignment, and could not have drawn the court’s attention to the "discrete, legally relevant block[ ] of time” representing the period of his medical quarantine (People v Luperon, 85 NY2d, at 80, supra). Thus, defendant did not alert the court to the present claim that the lack of "causation” was an "impediment” to the People’s particular reliance on CPL 30.30 (4) (c) and (g) to exclude that narrow period of confinement (People v Luperon, 85 NY2d 71, 78, supra).

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

Order affirmed in a memorandum.


text:
    [666 NE2d 184, 643 NYS2d 479]
    The People of the State of New York, Appellant, v Adam Jamison, Respondent.
    Decided April 4, 1996
    APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Mark Brisman of counsel), for appellant.

      Nancy E. Little, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The indictment of defendant was dismissed pursuant to CPL 30.30 on the ground that the People were not ready for trial within the statutorily prescribed six-month period, and the Appellate Division affirmed (216 AD2d 168).

Supreme Court concluded that the total period of prereadiness and postreadiness delay chargeable to the People was 216 days. The dispositive issue on appeal is the court’s inclusion of a 49-day postreadiness adjournment from August 7 to September 25, 1992.

On August 7, 1992, Supreme Court dismissed three counts of the indictment, suggesting on the record that the People might choose to re-present those counts, and adjourned the case to September 25, 1992. At that appearance, the prosecutor did not assert the People’s readiness for trial or ask the court for an explanation for the lengthy adjournment. Because the People failed to clarify, on the record, the basis for this adjournment, the period was properly charged to them (People v Liotta, 79 NY2d 841, 843; accord, People v Collins, 82 NY2d 177, 182). The People’s specific contention on appeal to this Court, that the statement of readiness filed four days after the August 7 adjournment served to cut off any further responsibility on their part for the remainder of the adjournment period, is unpreserved for this Court’s review (see, People v Goode, 87 NY2d 1045 [decided today]).

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.


text:
    American Acquisition Company, Appellant, v Kodak Electronic Printing Systems, Inc., et al., Respondents.
    Submitted January 16, 1996;
    decided April 4, 1996
   Motion for leave to appeal dismissed upon the ground that the final order of the Appellate Division, dated October 4,1994, was the final appealable paper from which no appeal or motion for leave to appeal was properly taken (see, CPLR 5611). Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Commissioner of Social Services et al., on Behalf of A. Children, Respondents, v Olu S., Appellant. Little Flower for Children Services, Respondent.
    Submitted February 5, 1995;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion to vacate, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Alma Deering, Appellant, v 860 Fifth Avenue Corporation et al., Respondents.
    Submitted January 8, 1996;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s 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, insofar as it seeks leave to appeal from the Appellate Division order of modification as to all defendants other than defendant George Jaffin, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order of modification as to defendant George Jaffin, denied.


text:
    In the Matter of Gary Farrell, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 25, 1996;
    decided April 4, 1996
   Appeal, insofar as it is taken from that portion of the Appellate Division order that denied that portion of appellant Farrell’s cross motion that sought appointment of a Special Master, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Kaye taking no part.


text:
    15 East 11th Apartment Corp., Appellant, v H. Henry Elghanayan et al., Respondents, et al., Defendants. (And Two Other Actions.)
    Submitted December 4, 1995;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal as against defendant Greater New York Mutual Insurance Company, denied; motion for leave to appeal otherwise dismissed upon the ground that as to the other parties the Appellate Division order sought to be appealed from does not finally determine the consolidated action within the meaning of the Constitution.


text:
    Frank Flores et al., Respondents, v Las Americas Communications, Inc., et al., Defendants and Third-Party Plaintiffs-Appellants. New York National Bank et al., Third-Party Defendants-Respondents.
    Submitted February 5, 1996;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ motion to renew, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Gordon and Jack, a Partnership, Appellant, v Royal Indemnity Co., Respondent, et al., Defendants. (And a Third-Party Action.)
    Submitted March 11, 1996;
    decided April 4, 1996
   Motion for reargument granted [see, 87 NY2d 968] and, upon reargument, motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Gary Kusky, Respondent, v Town of Islip et al., Respondents, and Seaview Association of Fire Island, N. Y., Inc., Appellant.
    Submitted January 29, 1996;
    decided April 4, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Denise J. McNamara, Appellant, v County of Monroe et al., Respondents.
    Submitted January 8, 1996;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying plaintiffs cross motion 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.


text:
    Joan Orlando, Respondent, v Anthony Orlando, Appellant.
    Submitted February 13, 1996;
    decided April 4, 1996
   Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order that affirmed Supreme Court’s order holding defendant in contempt, 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:
    In the Matter of Shia Ostreicher, Appellant, v Ernest Ostreicher, Respondent. (Matter No. 1.) (And Three Similar Matters.)
    Submitted February 5, 1996;
    decided April 4, 1996
   Motion by Isaac and Blima Ostreicher for leave to appeal dismissed for lack of aggrievement. Motion by Shia and Miriam Ostreicher for leave to appeal dismissed as untimely.


text:
    The People of the State of New York ex rel. Charles Smith, Appellant, v Robert Morgenthau, as District Attorney of New York County, et al., Respondents.
    Submitted February 5, 1996;
    decided April 4, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Estate of Helmut T. Rosenhain, Deceased. Gabriele Hammerstein, as Executor of Helmut T. Rosenhain, Deceased, Appellant; Irene Tannen et al., as Executors of Frederic M. Alberti, Deceased, Respondents.
    Submitted February 26, 1996;
    decided April 4, 1996
   Appeal, insofar as it is taken from that portion of the Appellate Division order which affirmed that portion of the Surrogate’s Court order imposing sanctions, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remaining portion of the Appellate Division order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Levine taking no part.


text:
    In the Matter of Olga Weber, Appellant, v County of Nassau, Respondent.
    Submitted February 5, 1996;
    decided April 4, 1996
   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 proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Ann Zientek, Appellant, v State of New York et al., Respondents.
    Submitted February 13, 1996;
    decided April 4, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.