text:
    John Prozeralik, Respondent, v Capital Cities Communications, Inc., Appellant.
    Submitted February 20, 1996;
    decided April 30, 1996
   Motion to dismiss appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion upon the ground that no substantial constitutional question is directly involved and upon the further ground that the two-Justice dissent is not on a question of law.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Robert L. Schulz et al., Appellants, v Rush-Henrietta Central School District Board of Education et al., Respondents. State of New York, Intervenor.
    Submitted February 20, 1996;
    decided April 30, 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:
    [666 NE2d 1357, 644 NYS2d 484]
    The People of the State of New York, Respondent, v George Vargas, Appellant.
    Argued March 21, 1996;
    decided May 2, 1996

      APPEARANCES OF COUNSEL

      Lynn W. L. Fahey, Brooklyn, for appellant.

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

Memorandum.

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

Complainant, a 33-year-old woman, claimed that on February 22, 1992 she entered an elevator in her Queens apartment building, followed by defendant, who pinned her in the corner, threatened to kill her, blindfolded her and dragged her to the roof landing where he raped and sodomized her. She stated that after the attack, and in an effort to trap defendant and deliver him to the police, she exchanged phone numbers with him and arranged a meeting for the following day, at which time she had consensual sex with him at his apartment.

In a statement to police, defendant claimed that he met complainant outside a neighborhood store, talked at length with her there and then in her apartment lobby, was invited by her to the roof landing where they had a consensual sexual encounter, exchanged phone numbers and made a date for the next day. The next day, the statement continued, defendant met complainant outside her apartment building and then traveled with her to his apartment in Brooklyn where they had consensual sex. Defendant was charged with rape and sodomy, two counts of attempted robbery, sexual abuse and two counts of assault.

In light of defendant’s proposed consent defense, as well as the admittedly consensual sexual encounter after the alleged attack, the People sought to introduce evidence of defendant’s prior sexual misconduct related to his 1983 burglary convictians. Specifically, the People sought to offer the testimony of several women that defendant had accosted them and demanded sex, fondled them or engaged in other sexually deviant behavior. The People claimed that such evidence was necessary to show his intent during the alleged attack on complainant. In accepting the People’s argument, the trial court noted that the prior misconduct evidence was necessitated by the "extraordinary” fact that, after the alleged rape, complainant "engaged in consensual sex” with appellant.

After the trial court ruled that the People could call four of the women to testify as to defendant’s prior sexual misconduct, defendant announced that he would abandon his consent defense. Defendant was convicted of one count each of rape, sodomy, sexual abuse and attempted robbery, and the Appellate Division affirmed. Defendant now urges that the trial court’s ruling, which led him to give up his consent defense, denied him a fair trial. In the unusual factual circumstances presented, we agree.

Evidence of uncharged crimes and offenses is "inadmissible if offered for no purpose other than to raise an inference that a defendant is of a criminal disposition and, therefore, likely to have committed the crime charged” (People v McKinney, 24 NY2d 180, 184; see also, People v Molineux, 168 NY 264, 291-294). Although intent is one of the elements of a crime for which prior misconduct evidence may be admitted, evidence of prior misconduct to prove intent is unnecessary where intent may be easily inferred from the commission of the act itself (see, People v Alvino, 71 NY2d 233, 242; see also, People v Ingram, 71 NY2d 474). In People v Hudy (73 NY2d 40, 56), we concluded that evidence of prior sexual misconduct was erroneously introduced when it tended to show only that " 'if defendant did it once * * * he would do it again; therefore, he probably abused the other children.’ ”

Here, two starkly contrasting scenarios were presented, with only credibility in issue. If the trier of fact believed defendant’s version of events, complainant consented to a sexual encounter with him on the night of February 22, 1992. If the trier of fact found complainant more credible, defendant used force and threats to rape her, with intent readily inferable from the acts alleged. As in Hudy (73 NY2d at 56), the prior misconduct evidence was relevant only to lend credibility to complainant by suggesting that, because defendant had engaged in sexual misconduct with others, he was likely to have committed the acts charged. The evidence therefore was improperly ruled admissible (see, id.; People v Lewis, 69 NY2d 321, 325).

In view of this holding, we need not reach appellant’s additional arguments on this appeal.

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

Order reversed, etc.


text:
    [666 NE2d 1359, 644 NYS2d 486]
    James MacFawn, Jr., Appellant, v Keri A. Kresler et al., Respondents.
    Argued March 20, 1996;
    decided May 2, 1996
    APPEARANCES OF COUNSEL

      Eugene R. Spada, Albany, for appellant.

      Cravath, Swaine & Moore, New York City (Timothy J. Coleman, Rowan D. Wilson and Robert P. Pongetti of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff in this malicious prosecution action bears the burden of establishing that the underlying criminal action terminated favorably to him (Ward v Silverberg, 85 NY2d 993; Hollender v Trump Vil. Coop., 58 NY2d 420; Martin v City of Albany, 42 NY2d 13, 16). A criminal proceeding terminates favorably to the accused, for purposes of a malicious prosecution claim, when the final disposition of the proceeding involves the merits and indicates the accused’s innocence (see, Hollender v Trump Vil. Coop., supra; Halberstadt v New York Life Ins. Co., 194 NY 1).

In this case the information charging plaintiff with attempted grand larceny in the fourth degree, theft of a credit card (Penal Law § 155.30 [4]; § 110.00), was dismissed by the court because it concluded that the facts alleged by the People were not legally sufficient to support the charge (CPL 170.30 [1] [a]; 170.35 [1] [a]). The People were at liberty to amend the information to correct the deficiency but did not do so. Neither did they refile the charge as they could have (see, People v Nuccio, 78 NY2d 102, 104).

Manifestly, the criminal action was disposed of on procedural grounds. The court did not reach the merits and the question of plaintiff’s guilt or innocence remained unanswered after the court dismissed the information. Accordingly, plaintiff’s complaint in the civil action failed to state a cause of action for malicious prosecution and it was properly dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    [666 NE2d 1360, 644 NYS2d 487]
    In the Matter of Stephen F. Lungen, as District Attorney of Sullivan County, Appellant, v Anthony T. Kane, as Judge of the Sullivan County Court, et al., Respondents.
    Argued March 27, 1996;
    decided May 2, 1996
    APPEARANCES OF COUNSEL

      Stephen F. Lungen, District Attorney of Sullivan County, Monticello (Bonnie M. Mitzner of counsel), appellant pro se.

      Gary Greenwald, Goshen, and Jacqueline Ricciani for George McMahon, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Sullivan County District Attorney seeks prohibition, pursuant to CPLR article 78, against enforcement of a County Court order requiring limited disclosure of Grand Jury minutes. Underlying this controversy is the direction for disclosure of the testimony of specified witnesses before a Sullivan County Grand Jury to a County Court Judge of Orange County. The limited in camera transfer was ordered pursuant to CPL 190.25 (4) (a) (see also, Matter of District Attorney of Suffolk County, 58 NY2d 436, 444; People v Di Napoli, 27 NY2d 229, 234).

The Appellate Division dismissed the District Attorney’s prohibition petition, ultimately concluding that the disclosure was proper. We granted leave to appeal and now affirm solely on the ground that the extraordinary prohibition remedy does not lie in the procedural setting and circumstances of this case.

This dispute concerns criminal charges lodged in the neighboring counties of Sullivan and Orange against two defendants for multiple counts of burglary, larceny and other offenses. Evidence was acquired from defendants’ premises in Sullivan County pursuant to a search warrant. One defendant moved for release of the Sullivan County Grand Jury minutes for use in a suppression hearing under the Orange County indictment. County Court in Sullivan County granted the motion and directed that the Grand Jury testimony of two witnesses be disclosed to the County Court in Orange County. The Sullivan County District Attorney seeks to protect the confidentiality of the Grand Jury evidence from any disclosure by collaterally moving for a writ of prohibition.

Prohibition, however, because of its extraordinary nature, "is available only where there is a clear legal right, and then only when a court — in cases where judicial authority is challenged — acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v Goldman, 71 NY2d 564, 569). In this case, the trial court acted within its prescribed powers under CPL 190.25 (4) (a), "upon written order” to direct disclosure of the Grand Jury minutes. In determining whether this statutorily authorized disclosure is appropriate, we require trial courts to evaluate whether the party seeking disclosure has shown a compelling and particularized need for the Grand Jury testimony. When that threshold is met, the trial court must weigh factors to assess the competing public policies of disclosure versus secrecy blanketing Grand Jury proceedings (see, Matter of District Attorney of Suffolk County, 58 NY2d 436, 444, supra; People v Di Napoli, 27 NY2d 229, 235, supra; compare, CPL 210.30 [3]).

In this, case, the Sullivan County Court rendered a ruling within its statutorily invested power and in accordance with this Court’s precedential protocols. Because the trial court order is plainly within the conferred power and jurisdiction under the statute and cannot be said in this case, as a matter of law, to be "in excess of its authorized powers,” that order is not subject to collateral challenge in a prohibition proceeding (Matter of Holtzman v Goldman, 71 NY2d 564, 569, supra; see also, Matter of State of New York v King, 36 NY2d 59, 62; Matter of Steingut v Gold, 42 NY2d 311, 315; contrast, Matter of Jaffe v Scheinman, 47 NY2d 188, 192-193; and Matter of Proskin v County Ct., 30 NY2d 15, 18-19).

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

Judgment affirmed, without costs, in a memorandum.


text:
    [666 NE2d 1362, 644 NYS2d 489]
    In the Matter of Jose R., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.
    Argued March 26, 1996;
    decided May 2, 1996

      APPEARANCES OF COUNSEL

      Kenneth Rabb, New York City, and Jane M. Spinak for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth S. Natrella and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On July 18, 1993, appellant was arrested by Officer Gogarty and his partner, Officer Fallon, after Officer Fallon recovered a gun from the waistband of appellant’s pants. Respondent presentment agency filed a petition in Family Court charging appellant, then 13 years old, with the commission of acts which would have constituted the crimes of criminal possession of a weapon in the second, third, and fourth degrees if committed by an adult. Appellant made a motion to suppress the gun and a pretrial suppression hearing was held.

At the hearing, Officer Gogarty testified that he and Officer Fallon were on routine patrol in their car when they heard the radio dispatcher announce that a Hispanic male, wearing a sun visor, red shirt and black pants had a gun in his waist. Officer Fallon drove to the specified location and was slowing the car to a stop when Officer Gogarty remarked that a person fitting the description just broadcast (later identified as appellant) was standing in front of the building. Both officers exited from their vehicle and approached appellant from opposite sides.

Officer Gogarty was approximately 15 to 20 feet away from appellant when he saw a bulge at the waistband of appellant’s pants. He continued to walk briskly toward defendant, as did Officer Fallon. When Officer Fallon reached appellant, approximately one foot ahead of Officer Gogarty, he reached directly into appellant’s waistband and pulled out a gun. Officer Gogarty did not tell his partner that he had seen a bulge at appellant’s waist before Officer Fallon recovered the gun, and Officer Fallon did not testify at the suppression hearing.

Appellant’s motion to suppress the gun was denied and after a fact-finding hearing, Family Court adjudicated appellant a juvenile delinquent, concluding that appellant committed an act which would constitute criminal possession of a weapon in fourth degree if he were an adult. Appellant was placed under the supervision of the Department of Probation for one year.

Appellant argues that the Appellate Division erred by inferring that Officer Fallon observed a bulge at appellant’s waist because Officer Gogarty did not communicate to his partner that he had seen a bulge, and Officer Fallon did not testify at the suppression hearing. We disagree. Since Officer Fallon heard the same radio dispatch as Officer Gogarty and was in the same position to observe what Officer Gogarty perceived, an inference that Officer Fallon saw the same bulge which Officer Gogarty testified he had observed was reasonable as a matter of law (compare, People v Mims, 88 NY2d 99 [decided today]).

As the record supports the Appellate Division’s determination that Officer Fallon acted reasonably in seizing the gun, the Appellate Division order should be affirmed.

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

Order affirmed, without costs, in a memorandum.


text:
    Nathaniel Abdullah et al., Appellants, v City of New York et al., Respondents.
    Submitted February 26, 1996;
    decided May 2, 1996
   Motion for leave to appeal and motion for reargument, insofar as the motions are made by Nathaniel Abdullah purportedly on behalf of Garry Williams, dismissed upon the ground that Abdullah is not Williams’ authorized legal representative; motion for leave to appeal otherwise dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for reargument otherwise dismissed as untimely. [See, 84 NY2d 1018; 85 NY2d 954.]


text:
    In the Matter of Deposit Central School District, Appellant-Respondent, v Public Employment Relations Board, Respondent-Appellant, and Pauline R. Kinsella et al., Respondents.
    Submitted March 18, 1996;
    decided May 2, 1996
   Motion for leave to appeal by Deposit Central School District denied. Cross motion for leave to appeal by the Public Employment Relations Board dismissed upon the ground that cross movant is not a party aggrieved (see, CPLR 5511).


text:
    Italian-American Civic Association of Mineola, Inc., Respondent, v Salvatore A. Cataldo, Appellant.
    Submitted March 4, 1996;
    decided May 2, 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 action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Joan C. Lipin, Appellant, v Robert M. Bender, Jr., et al., Respondents.
    Submitted February 26, 1996;
    decided May 2, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division’s September 14, 1995 order, 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 so much of the Appellate Division’s June 20, 1995 order as affirmed Supreme Court’s August 31, 1994 judgment, dismissed upon the ground that that portion of the June 20, 1995 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.

Judge Ciparick taking no part.


text:
    Tim Makas, Appellant, v Robert Every, Respondent.
    Submitted April 29, 1996;
    decided May 2, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Francis A. Nicolai et al., Respondents, v Matthew T. Crosson, as Chief Administrator of the Courts, et al., Appellants, et al., Defendant.
    Submitted February 13, 1996;
    decided May 2, 1996
   Motion for reconsideration granted and, upon reconsideration, order dismissing appeal upon the ground that the order appealed from did not finally determine the action vacated. [See, 87 NY2d 896.] Cross motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that no substantial constitutional question is directly involved.

Chief Judge Kaye taking no part.


text:
    Peckham Road Corporation, Appellant, v Town of Putnam Valley et al., Respondents, et al., Defendants.
    Submitted March 4, 1996;
    decided May 2, 1996
   Motion for leave to appeal, insofar as it is made with respect to defendants Town of Putnam Valley, Town of Putnam Valley officials, Wagon Productions, Inc. and Larry and Mark Tarnofsky, dismissed upon the ground that, as to those defendants, 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. Motion for clarification of this Court’s January 11, 1996 order denied. [See, 87 NY2d 912.]


text:
    Elya Peker, Appellant, v Arthur A. Kaplan et al., Respondents.
    Submitted February 20, 1996;
    decided May 2, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed appellant’s appeal to that Court from an order of Supreme Court denying plaintiff’s discovery requests, 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:
    Alice Saguid, Individually and as Administratrix of the Estate of Renee L. Saguid, Deceased, et al., Appellants, v Kingston Hospital et al., Respondents.
    Submitted February 20, 1996;
    decided May 2, 1996
   Motion for leave to appeal by appellant Alice Saguid dismissed upon the ground that as to her the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal by appellant Stephen Saguid denied. Motion by appellants for poor person relief dismissed as academic.


text:
    Leonard C. Spano, Appellant, v Love & Balducci, P. C., et al., Respondents.
    Submitted March 4, 1996;
    decided May 2, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division orders denying reargument and leave to appeal to the Court of Appeals, dismissed upon the ground that those orders do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [667 NE2d 922, 644 NYS2d 912]
    Frank L. Bordell, Appellant, v General Electric Company et al., Respondents.
    Argued March 21, 1996;
    decided May 7, 1996

      APPEARANCES OF COUNSEL

      Gleason, Dunn, Walsh & O’Shea, Albany (Ronald G. Dunn of counsel), for appellant.

      Robinson Silverman Pearce Aronsohn & Berman, L. L. P., New York City (Vincent Alfieri, Andrew Irving and Mary Ellen Donnelly of counsel), for respondents.

      Wayne N. Outten, New York City, and Anne Golden for National Employment Lawyers Association/New York, amicus curiae.

      Joel Shufro, New York City, for New York Committee on Occupational Safety and Health, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Plaintiff was employed by General Electric Company as a health physicist at the Knolls Atomic Power Company when he reported to his superiors that, in his opinion, as many as seven employees might have been exposed to radiation levels sufficient to trigger Department of Energy (DOE) mandatory reporting requirements. Dissatisfied with the response of his supervisors, plaintiff reported his findings directly to DOE. Three weeks after contacting DOE, plaintiff was suspended from his job; he was fired eight days later. Thereafter, plaintiff commenced this action claiming that he was discharged in retaliation for his report to DOE. He seeks a declaration that General Electric’s acts constituted a violation of Labor Law § 740, the "whistleblowers’ statute.”

Labor Law § 740 (2) (a) provides: "An employer shall not take any retaliatory personnel action against an employee because such employee * * * discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and represents a substantial and specific danger to the public health or safety” (emphasis supplied). Plaintiff seeks protection of the statute although he concedes that GE was not actually in violation of law, rule or regulation. He urges that section 740 protects employees who make statements upon a reasonable belief that a law, rule or regulation affecting public health and safety has been violated.

Supreme Court rejected plaintiff’s argument and dismissed the causes of action based upon Labor Law § 740, and the Appellate Division affirmed (208 AD2d 219). Because we agree with the courts below that a cause of action predicated on Labor Law § 740 requires proof of an actual violation, we also affirm.

■ As explained by Justice Mercure in the Appellate Division decision (208 AD2d, at 221-222), the language and legislative history of Labor Law § 740 militate in favor of a construction of that section requiring proof of an actual violation of law to sustain a cause of action, and the legislative history of the parallel public sector whistleblowers’ statute (Civil Service Law § 75-b) also supports that conclusion. Civil Service Law § 75-b was amended in 1986 to "widen[ ] the protection for a public employee” (Governor’s Mem Approving L 1986, ch 899, 1986 McKinney’s Session Laws of NY, at 3215) by providing protection for disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action” (L 1986, ch 899, § 1 [emphasis supplied]). There was no similar amendment to Labor Law § 740. Here, there were allegations that plaintiff had a reasonable belief of a possible violation, but no proof of an actual violation. Thus, plaintiff’s Labor Law § 740 claims are untenable and were properly dismissed.

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

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


text:
    In the Matter of Bruno Brigandi, Appellant, v Finance Administrator et al., Respondents.
    Submitted March 25, 1996;
    decided May 7, 1996
   Motion for leave to appeal, treated as a motion for reargument of appellant’s motion for leave to appeal which was dismissed by the Court of Appeals on July 6,1995, dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 86 NY2d 773.]


text:
    Parma Tile Mosaic & Marble Co., Inc., Respondent, v Estate of Fred Short, Doing Business as Sime Construction Co., Defendant, and MRLS Construction Corp., Appellant.
    Submitted April 15, 1996;
    decided May 7, 1996
   Motion to amend remittitur to delete award of costs denied. [See, 87 NY2d 524.]


text:
    The People of the State of New York, Appellant, v Anthony McClenton, Respondent.
    Decided May 7, 1996
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York ex rel. Patrick George, Appellant, v Warden, Brooklyn House of Detention for Men, Respondent.
    Submitted April 8, 1996;
    decided May 7, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie (see, NY Const, art VI, § 3; CPLR 5601). Motion for leave to appeal dismissed upon the ground that the Court does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    SCP (Bermuda), Inc., Respondent, v Bermudatel, Ltd., et al., Appellants.
    Submitted April 22, 1996;
    decided May 7, 1996
   Motion for leave to appeal from the March 12, 1996 judgment of Supreme Court dismissed upon the ground that the judgment does not finally determine the action within the meaning of the Constitution. Items of relief within a single cause of action cannot be expressly or impliedly severed (see, Burke v Crosson, 85 NY2d 10, 18, n 5; Sontag v Sontag, 66 NY2d 554, 555). Moreover, movant has not demonstrated that the counterclaims have been finally determined. Motion for re-argument of motion for leave to appeal denied. [See, 87 NY2d 1056.] Motion for a stay dismissed as academic.


text:
    In the Matter of Victoria Woods Village, Respondent, v Carol A. Niznik, Appellant.
    Submitted April 29, 1996;
    decided May 7, 1996
   On the Court’s own motion, appeal dismissed, without costs, and motion for leave to appeal dismissed, without costs, upon the ground that no appeal lies to the Court of Appeals from the order of the individual Justice of the Appellate Division. Motion for a stay dismissed as academic.


text:
    In the Matter of Larry F. Whitehurst, Appellant, v Michael Kavanagh, as District Attorney of Ulster County, Respondent.
    Submitted April 29, 1996;
    decided May 7, 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 reconsideration, 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. Motions for a stay and a preference dismissed as academic.


text:
    [667 NE2d 923, 644 NYS2d 913]
    The People of the State of New York, Respondent, v George Scott, Appellant.
    Argued April 24, 1996;
    decided June 5, 1996

      APPEARANCES OF COUNSEL

      Ursula Bentele, Brooklyn, Mary C.R. Davis, Mary R. Falk, Robert M. Pitler and Marius Wesser for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Camille O’Hara Gillespie and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of first degree manslaughter and criminal possession of a weapon in the second and third degree. At trial Glenn Shaw, the only eyewitness, testified that after hearing what sounded like a gunshot, he saw the defendant holding a handgun, a woman named Jacqueline Lewis, an unidentified man, and a fourth person running away from the victim’s house. Shaw testified that he could not tell whether the fourth person was a man or a woman.

Defendant moved to vacate his conviction pursuant to CPL 440.10, claiming the People failed to produce Brady material (see, Brady v Maryland, 373 US 83) in the form of a "scratch” sheet dated November 18, 1985, which alluded to a polygraph examination of Shaw. Defense counsel had made a discovery request for "a copy of the report of the polygraph exam(s) given to the confidential informant showing date(s) of exam and all results.” The sheet in question, which was not produced, is entitled "homicide bureau information sheet" and reads:

"Facts:
"The deceased was found by his father lying in the foyer of his apartment with a gunshot wound to the eye.
"Action taken:
"The witness, Glenn Shaw submitted to a polygraph test conducted on 11/4/85 at 3:00 P.M. by Mr. Joe Ponzi, Senior Investigator for the purposes of verifying the statement given to A.D.A. S. Miller on 9/23/85. Mr. Ponzi determined that the witness was withholding pertinent information. When confronted with this conclusion, the witness stated that he knew the identity of the second male but was unwilling to disclose the name.”

The trial court granted defendant’s motion and ordered a new trial, finding that the request was a specific one and that there was a "reasonable possibility” that the document, had it been made available, would have aifected the outcome of the trial. Although agreeing with the trial court that the document in question was Brady material and had not been produced to the defense, the Appellate Division reversed on the basis that defendant’s request was not specific and consequently the more stringent "reasonable probability” standard of materiality applied, which was not satisfied.

A defendant has the right, guaranteed by the Due Process Clauses of the Federal and State Constitutions, to discover favorable evidence in the People’s possession which is material to guilt or punishment (Brady v Maryland, supra; People v Vilardi, 76 NY2d 67, 73). Where the prosecutor has been made aware by a specific discovery request that defendant considered certain material important to the defense, the failure to disclose such evidence is governed by a "reasonable possibility” standard of prejudice — i.e., a reasonable possibility that the outcome of the trial would have differed had the evidence been produced (People v Vilardi, 76 NY2d at 77). Where the defense has provided specific notice of its interest in particular material, heightened prosecutorial attention is appropriate.

We agree with the trial court that defense counsel’s request was a specific one. It provided specific notice of the defense’s desire for the witness’s polygraph test results. That the defense did not know the precise form of the document does not alter the fact that the request provided particularized notice of the information sought. Because the request was specific the "reasonable possibility” test of materiality applied.

Even under this standard, however, denial of defendant’s motion was required. A polygrapher’s opinions regarding the witness’s veracity are not admissible evidence (see, People v Angelo, 88 NY2d 217). Furthermore, at the hearing on defendant’s motion, the Assistant District Attorney who prepared the document testified that she had no recollection of the source of the information. The trial prosecutor testified that Detective Ponzi told her Shaw had been "one hundred percent” truthful. Detective Ponzi himself submitted an affidavit stating that the examination showed Shaw to have been truthful and that he never determined that Shaw was withholding information. Under these circumstances, there is no reasonable possibility that the outcome of the trial would have differed had the document been produced.

Defendant’s remaining contentions lack merit.

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

Order affirmed in a memorandum.


text:
    [667 NE2d 925, 644 NYS2d 915]
    The People of the State of New York, Respondent, v. Wilfredo Lebron, Appellant.
    Argued April 24, 1996;
    decided June 5, 1996

      APPEARANCES OF COUNSEL

      Robert S. Dean, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Nancy Strohmeyer and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was arrested October 11, 1989, in New York County for robbery and sexual abuse. A trial date was set for April 3, 1990, on which the People answered ready. Defendant thereupon requested a CPL 730.30 competency examination.

Before the results of the competency examination were obtained by the court, defendant pleaded guilty to pending charges on a separate Kings County indictment and was sentenced on that plea to a one and a half to three-year prison term. Pursuant to the Kings County sentencing order, defendant was transferred to the Elmira Reception Center of the New York State corrections system.

Thereafter, on August 21, 1990, the court in the instant New York County case received the results of defendant’s psychological exam which concluded that defendant was not fit to proceed on the indictment. The court therefore entered an order of commitment directed to New York City corrections authorities. By that time, however, defendant was in custody of the State Department of Correctional Services serving his sentence on the Kings County conviction and was thus never placed in the custody of the Commissioner of Mental Hygiene as required by CPL 730.50. The commitment order issued by the court in this case expired on October 1, 1991, while defendant was still in the custody of the State Department of Correctional Services under the Kings County sentence.

Defendant moved to dismiss the indictment in this case on speedy trial grounds on October 1, 1992. Supreme Court granted his motion holding that the People were obligated to monitor defendant’s status during the pendency of the order of commitment and that such an effort would have revealed that the commitment order had not been carried out. The Appellate Division reversed (211 AD2d 208) holding, inter alla, that CPL article 730 contemplated no role for the District Attorney once a defendant was found unfit to stand trial and an order committing defendant to the custody of the Commissioner of Mental Hygiene had been issued. At that point, the Court held, until a defendant is found fit to proceed, the prosecution ceases and no time is chargeable to the People. We now affirm.

Defendant argues that the People had an obligation to monitor his competency status and that the People should be charged under CPL 30.30 with the period from October 2, 1991, when the order of commitment expired, to January 6, 1993 (the date on which defendant was brought to court in New York County). We hold that the People have no such obligation.

CPL 30.30 (4) (a) specifically excludes from the time within which the People must be ready for trial periods of time during "proceedings for determinations of competency and the period[s] during which defendant is incompetent to stand trial.” There is no express statutory duty to monitor the progress of a defendant who has been declared incompetent in the speedy trial statute. In contrast, when the defendant is absent or unavailable, the People are not required to be ready for trial but must make "diligent” and "reasonable” efforts or exercise "due diligence” to bring the defendant before the court (CPL 30.30 [4] [c], [e]).

Similarly, the District Attorney is given no duty to monitor a defendant who has been ordered committed to the custody of the Commissioner of Mental Hygiene under the other statutory provisions that delegate duties regarding those defendants found unfit to proceed, and imposing such a duty under CPL 30.30 would be inconsistent with the detailed statutory scheme. When a defendant is found unfit to stand trial on a felony indictment after a hearing conducted pursuant to CPL 730.30, the court must "issue an order of commitment committing the defendant to the custody of the commissioner [of Mental Hygiene] for care and treatment in an appropriate institution for a period not to exceed one year from the date of such order” (CPL 730.50 [1]). Upon such an order of commitment "the criminal action pending against the defendant in the court that issued [the] order is suspended until the superintendent of the institution in which the defendant is confined determines that he is no longer an incapacitated person” (CPL 730.60 [2]) except in statutorily prescribed circumstances not applicable here. In the event that a defendant is found no longer incapacitated, the superintendent must give notice in writing to the appropriate District Attorney (id.). However, if the superintendent of the institution in which the defendant is confined determines prior to the expiration of the order of commitment that the defendant continues to be incapacitated, the superintendent must apply to the court for an order of continued custody (see, CPL 730.50 [2]). The statute requires that written notice of the application for continued custody be given to the defendant and to mental hygiene legal services, but not to the District Attorney (see, id.). If custody is continued, it is by court order and likewise without notice to the District Attorney. It is only if "the court is satisfied that the defendant is no longer an incapacitated person [that] the criminal action against him must proceed” (id.).

The foregoing statutes expressly suspend the criminal action after the order of commitment is issued thereby temporarily discontinuing the involvement of the District Attorney with the defendant. The District Attorney thus has no duty of inquiry until the defendant is declared competent by the court or the superintendent of the facility in which the defendant is confined. It is the determination that the defendant is no longer incapacitated that brings the District Attorney back into the proceedings and revives the People’s trial readiness obligations under GPL 30.30. Hence, the period between an order of commitment and a finding that a defendant is no longer incapacitated, i.e., ”period[s] during which [a] defendant is incompetent to stand trial” (CPL 30.30 [4] [a]), may not be charged against the People.

In this case, defendant was declared unfit to proceed and ordered committed to the custody of the Commissioner of Mental Hygiene. He has never been found competent. Albeit attributable in part to his placement with the Department of Correctional Services upon conviction and sentence in an unrelated case, rather than with the Department of Mental Hygiene, the time period following defendant’s order of commitment may not be charged to the People.

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

Order affirmed in a memorandum.


text:
    In the Matter of Robert Festa, Respondent, v Board of Education of the South Orangetown Central School District et al., Appellants, and Sandra Kop, Respondent.
    Submitted March 11, 1996;
    decided June 5, 1996
   Motion for leave to appeal dismissed upon the ground that movants have failed to demonstrate that the nonfinal order sought to be appealed from is appealable pursuant to CPLR 5602 (a) (2).


text:
    Richard Becker, Appellant, v Alan Kasper et al., Respondents.
    Submitted March 25, 1996;
    decided June 6, 1996
   Motion to vacate this Court’s February 28, 1996 order of dismissal denied. [See, 87 NY2d 969.]


text:
    James Callahan et al., Plaintiffs, v P.J. Carlin Construction Company et al., Defendants and Third-Party Plaintiffs. S & A Concrete Co., Inc., Third-Party Defendant-Appellant; Hannibal Construction Co., Third-Party Defendant-Respondent.
    Submitted April 8, 1996;
    decided June 6, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying the motion to vacate, 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.


text:
    Jose Carrion, Appellant, v Lewmara Realty Corporation, Respondent.
    Submitted March 25, 1996;
    decided June 6, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiff’s motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Alice Claudio, Petitioner, v Michael Dowling, as Commissioner of the New York State Department of Social Services, et al., Respondents. (And Two Other Proceedings.) In the Matter of Elba Vera et al., Appellants, v Michael Dowling, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted March 4, 1996;
    decided June 6, 1996
   Motion, insofar as it seeks leave to appeal with respect to respondents Sabol, Little, the New York City Department of Social Services, and the Child Welfare Administration, dismissed as untimely; motion for leave to appeal otherwise granted.


text:
    In the Matter of Ulfride Fanor, Appellant, v State of New York, Respondent.
    Submitted April 1, 1996;
    decided June 6, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of New York City Housing Authority, Respondent, v Joseph Quinones, Appellant.
    Submitted February 13, 1996;
    decided June 6, 1996
   On the Court’s own motion, appeal dismissed upon the ground that it does not lie (see, NY Const, art VI, § 3; CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    Ashish Sirohi, Appellant, v Jessica Lee et al., Defendants, and Trustees of Columbia University et al., Respondents.
    Submitted April 1, 1996;
    decided June 6, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of the motion to amend the complaint, 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. Motion for poor person relief dismissed as academic.


text:
    [669 NE2d 813, 646 NYS2d 655]
    Village of Savona, Appellant, v Knight Settlement Sand & Gravel, Inc., Respondent.
    Decided June 11, 1996

      APPEARANCES OF COUNSEL

      Brian C. Flynn, Hammondsport, for appellant.

      Robert H. Plaskov, Bath, for respondent.
   OPINION OF THE COURT

Memorandum.

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

As this Court recently held in Matter of Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668), the Mined Land Reclamation Law does not preempt a municipality’s authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations. Thus, the Appellate Division improperly dismissed the complaint on that ground.

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 reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    [669 NE2d 814, 646 NYS2d 656]
    Key Bank of New York, Appellant, v David Becker et al., Respondents.
    Decided June 11, 1996

      APPEARANCES OF COUNSEL

      Hiscock & Barclay, L. L. P., Buffalo (Drew V. Tidwell and Sandra S. O’Loughlin of counsel), for appellant.

      James A. Huber, Williamsville, for respondents.

      David L. Glass, New York City, for New York Bankers Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

In 1987, petitioner Key Bank made a loan to Robert J. Bradley, the owner of property, which included a skilled nursing facility leased to respondent Manor Oak Skilled Nursing Facilities, Inc. and managed by respondent Becker. The loan was secured by a note and mortgages on the leased property. As additional security for the loan, Bradley assigned the rents and leases to the Bank. In the assignment, the owner also appointed it as his lawful attorney with full power to use all measures necessary to enforce the assignment.

Bradley defaulted on the loan in October 1990. Subsequently, Key Bank sought, by way of summary proceeding pursuant to RPAPL 721, a judgment awarding it possession of the property, rent and fair rental value for the use and occupancy of the premises, and real property taxes. The courts below determined, among other things, that the Bank was not a party authorized to maintain the summary proceeding. This Court granted it leave to appeal from that portion of the Appellate Division order affirming the denial of its standing to bring a summary eviction proceeding pursuant to RPAPL article 7.

The courts below correctly determined that, on these facts, petitioner does not have standing to bring a summary proceeding pursuant to RPAPL article 7. Petitioner, as assignee and attorney-in-fact, does not have standing to bring the proceeding under the plain language of RPAPL 721 as amended in 1977.

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

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


text:
    [669 NE2d 815, 646 NYS2d 657]
    The People of the State of New York, Respondent, v James F. Bradley, Appellant.
    Argued March 20, 1996;
    decided June 11, 1996

      APPEARANCES OF COUNSEL

      Connors & Vilordo, Buffalo (Terrence M. Connors and Mark R. Uba of counsel), for appellant.

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Donna A. Milling and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed, without prejudice to an application by the People for leave to resubmit.

In this prosecution for second degree murder, the trial court erred in submitting the affirmative defense of extreme emotional disturbance over objection by the defense. As we held in People v DeGina (72 NY2d 768, 776), "a defendant * * * has the right to chart his own defense.” That right is infringed when an affirmative defense is submitted over defense objection and the defendant is thereby prejudiced (id., at 776-777).

Here, defendant asserted the defense of not responsible by reason of a mental disease or defect (see, Penal Law former § 30.05 [now Penal Law § 40.15, an affirmative defense]). The specific defense theory was that defendant suffered from a progressive mental illness which had worsened in the months preceding the shooting. Defendant took the position that by the time of the shooting his condition had deteriorated to the point where his paranoid thought processes prevented him from appreciating the moral and legal import of his actions. This position was plainly incompatible with the affirmative defense of extreme emotional disturbance, which on these facts would have necessarily involved a temporary loss of control by a person who was otherwise capable of appreciating the nature and consequences of his actions.

At the close of the proof, the prosecutor asked the court to submit first degree manslaughter, as intentional homicide while acting under the influence of extreme emotional disturbance. Over defense objection the court responded by advising the jury that it should find defendant guilty of manslaughter in the first degree rather than second degree murder if it found that he was legally sane and intentionally caused the death of another, but that he did so while acting under the influence of extreme emotional disturbance, and that this affirmative defense must be established by a preponderance of the evidence (see, Penal Law § 125.25 [1] [a]). The jury found defendant guilty of first degree manslaughter and a divided Appellate Division affirmed the conviction (211 AD2d 388). A dissenting Justice of that Court granted leave to appeal to this Court.

In People v DeGina (72 NY2d 768, supra), a narcotics-sale prosecution, the defendant was prejudiced in part because the affirmative defense that the court introduced — the entrapment defense — was inconsistent with the defense’s position — that the defendant had not, in fact, sold any drugs. As the Court noted in DeGina, the interposition of inconsistent defenses is "a hazardous tactic” because it creates a risk of juror confusion and "may well taint a defendant’s credibility in the eyes of the jury” (id., at 777). Such a strategic risk is not one that the court may foist on an unwilling defendant (id.). Moreover, when the defensive theory that the court interjects constitutes an affirmative defense there is an increased danger of prejudice because of the resulting shift in the burden of proof from the prosecution to the defense and the attendant risk that the jury will believe that the defendant has assumed a burden beyond the defense.

Although defendant was entitled to present inconsistent defenses (see, People v Padgett, 60 NY2d 142, 146; People v Steele, 26 NY2d 526, 529), the risk attendant upon such a choice should not have been foisted on him against his will (see, People v DeGina, supra). The imposition of an affirmative burden of proof over defense objection and the involuntary undermining of the defendant’s chosen defense strategy resulted in serious prejudice that requires reversal in this case.

Because defendant was convicted of the lesser included offense of first degree manslaughter, the dismissal is without prejudice to an application by the People to resubmit that crime to a new Grand Jury (People v Mayo, 48 NY2d 245).

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

Order reversed, etc.


text:
    [669 NE2d 817, 646 NYS2d 659]
    Winston Cox et al., Appellants, v Kingsboro Medical Group et al., Defendants, and Brookdale Surgical Associates et al., Respondents.
    Argued April 30, 1996;
    decided June 11, 1996

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J Isaac and Allen H. Isaac of counsel), for appellants.

      Aaronson Rappoport Feinstein & Deutsch, L. L. P., New York City (Steven C. Mandell of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Respondents satisfied that burden by demonstrating that they were served with the complaint after the expiration of the two-year-and-six-month Statute of Limitations period for the medical malpractice claims at issue here (see, CPLR 214-a). Consequently, appellants bore the burden of demonstrating the existence of triable issues of fact when they argued that the doctrine of continuous treatment tolled the Statute of Limitations for those claims.

The continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Borgia v City of New York, 12 NY2d 151, 155). Where there is a direct physician-patient relationship, continuous treatment exists only "when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past” (Richardson v Orentreich, 64 NY2d 896, 898-899).

Appellants have failed to show that both Levowitz and appellant Winston Cox (the patient) "explicitly anticipated” that Levowitz would continue to treat Cox. Instead, the record demonstrates, at best, that Cox possessed an amorphous expectation that he would undergo further diagnostic testing. Consequently, the record reflects that Levowitz’s treatment of Cox ended on April 6, 1988, and appellants failed to raise any triable issues pertaining to continuous treatment from Levowitz’s relationship with Cox.

Appellants also contend that medical treatment rendered by the Kingsboro Medical Group (where Cox’s primary care physician is a partner) should be imputed to Levowitz (a member of Brookdale Surgical Group) because a Kingsboro physician referred Cox to Brookdale and a "consulting” relationship existed between Kingsboro and Brookdale. Assuming the truth of appellants’ allegations, as we must, the most they have demonstrated is the existence of an unwritten practice that Brook-dale will perform noninvasive tests upon receipt of a referral from Kingsboro for a venogram (an invasive X-ray diagnostic procedure involving injection of a dye that highlights the veins in the X-ray film). Although the parties have completed discovery in this case, the record does not contain any evidence which could demonstrate a relevant relationship between Kingsboro and Brookdale sufficient to impute treatment by Kingsboro physicians to Levowitz.

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

Order affirmed, etc.

       The issue whether treatment rendered by any Kingsboro physician generally may be imputed to any Brookdale physician, and vice versa, is unpreserved and we do not consider it here.


text:
    [669 NE2d 819, 646 NYS2d 661]
    Kenneth Mixon et al., on Behalf of Themselves and All Others Similarly Situated, et al., Respondents, and Wayne Phillips et al., on Behalf of Themselves and All Others Similarly Situated, Intervenors-Respondents, v William Grinker, as Commissioner of the New York City Human Resources Administration, et al., Appellants.
    Argued April 23, 1996;
    decided June 11, 1996

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Timothy J. O’Shaughnessy and Kristin M. Helmers of counsel), for William Grinker, appellant.

      Dennis C. Vacco, Attorney-General, New York City (Judith T. Kramer, Barbara G. Billet and Victoria A. Graffeo of counsel), for Cesar A. Perales, appellant.

      Komstein Veisz & Wexler, L. L. P., New York City (Lawrence C. Fox and Virginia Shubert of counsel), for respondents and intervenors-respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the complaint dismissed and the certified question answered in the negative.

Plaintiffs commenced this action on behalf of homeless persons who suffer from HIV-related illness as defined by the AIDS Institute of the New York State Department of Health. Plaintiffs sought, among other things, a judgment declaring that they were entitled by Constitution or statute to the same shelter benefits from the City and State of New York as persons diagnosed with AIDS as defined by the Federal Centers for Disease Control (CDC) and an injunction requiring the City to provide them with medically appropriate housing.

The focus of the bench trial was the adequacy of the City’s program, developed after the institution of this lawsuit, to provide shelter housing for homeless persons with HIV-illness. This program includes the Comprehensive Care Plan (CCP), developed by the City Human Resources Administration in consultation with, among other entities, the State Department of Social Services (DSS), the City Department of Health and the AIDS Institute of the State Department of Health as a special housing plan that provides a variety of services to the medically frail homeless population, including those individuals with HIV-illness who are able to conduct their activities of daily living.

Before the implementation of the CCP, homeless individuals with HIV-related illness were housed in barracks-style shelters among the general homeless population. Under the CCP, by contrast, segregated spaces in municipal shelters are used to house up to 12 individuals with HIV-illness or other medically frail individuals in a dormitory-style room. Those housed in the CCP space share common eating and bathroom facilities with other shelter residents, but are provided enhanced nutrition and special social services. The plan calls for each CCP to have daily on-site medical coverage and TB screening and control mechanisms, by a team of physicians, registered nurses, nurse practitioners, and physician’s assistants.

Although Supreme Court concluded that plaintiffs are not constitutionally or statutorily entitled to the same shelter and benefits the City provides to persons with CDC-defined AIDS, it ruled that the CCP constituted unsuitable housing insofar as it permitted the housing of up to 12 persons in a room (see, Mixon v Grinker, 157 Misc 2d 68, 74). The Appellate Division agreed with Supreme Court that plaintiffs have no constitutional or statutory right to the same benefits provided to persons with AIDS and concluded, with one Justice dissenting, that the CCP "does not meet 'minimum standards of sanitation, safety and decency’ * * * for housing the plaintiff class as it fails to sufficiently protect them against the dangers of tuberculosis” (Mixon v Grinker, 212 AD2d 183, 192-193, quoting McCain v Koch, 70 NY2d 109, 113-114). The Appellate Division remanded the case to Supreme Court to fashion a judgment that provided plaintiffs with "minimally habitable” housing (id., at 193). This appeal is before us on the certified question, "Was the order of this Court, which modified the order of the Supreme Court, properly made?”

The lower courts’ reliance on McCain v Koch (70 NY2d 109, supra) as authority for their judicial scrutiny of the CCP was misplaced. In McCain, this Court ruled that in the "absence of any departmental regulation” (id., at 120), Supreme Court had the equitable power to issue a preliminary injunction requiring the City, once it undertook to provide housing to the homeless, to furnish housing that "satisfies minimum standards of sanitation, safety and decency” (id., at 113-114). In explaining its holding, the Court was careful to differentiate between Supreme Court’s equitable authority to craft standards of minimal habitability, which is an extraordinary judicial task reserved for a situation when no departmental guidelines exist, and Supreme Court’s authority to ensure compliance with the governing standards, which would always be proper. The Court emphasized that "[i]t was because of the absence of any departmental regulation that it was necessary for the court to establish its own minimum standards” (id., at 120). Moreover, the Court in McCain explained that once DSS adopted regulations establishing standards of minimal habitability, "so long as the regulations are in effect, no question can exist concerning the minimum standards for the accommodations to be provided” (id., at 118). Thus, there was no issue "as to the minimum quality of the accommodations presently required by prevailing standards; what remains are questions of compliance and enforcement” (id., at 120).

In this case, by contrast to McCain, the City has implemented a comprehensive program, formulated with input from public health experts including the director of the AIDS Institute, for housing HIV-ill and other medically frail individuals. Under these circumstances, McCain does not confer upon plaintiffs the right to plenary judicial review of the merits of this special medical needs housing program embodied in departmental guidelines (cf., Matter of New York State Socy. of Surgeons v Axelrod, 77 NY2d 677).

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

Order reversed, etc.

      . Effective January 1, 1993, pulmonary tuberculosis (TB) and a lymphocyte count of less than 200, among other things, were added to the CDC’s list of conditions constituting AIDS. Although accurate statistics are not available, the parties agree that the amended definition has resulted in a significant decrease in the number of individuals who are classified as HIV-ill.

      . Plaintiffs do not challenge this conclusion on appeal. We note that the rent subsidy provided pursuant to 18 NYCRR 397.11 is granted to both persons with AIDS and persons with HIV-related illness.


text:
    [669 NE2d 821, 646 NYS2d 663]
    In the Matter of Gary D. Goldberg, Appellant, v Andrew M. Harwood et al., Respondents.
    Argued May 1, 1996;
    decided June 11, 1996

      APPEARANCES OF COUNSEL

      Jaffe, Segal & Ross, New York City (Steven R. Miller of counsel), for appellant.

      Andrew M. Harwood, New York City, respondent pro se.

      Jeffrey D. Taub, New York City, for J.W. Realty Co., landlord / creditor.
   OPINION OF THE COURT

Memorandum.

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

Subsequent to arbitration, a judgment of dissolution was issued for the corporate respondent which provided for a public sale of the corporate assets. The "Terms of Sale” identified the lease of the premises where the corporation conducted business as one of the assets. At the time of the sale, the corporate tenant had defaulted in the payment of rent due under the lease. Prior to the sale, the landlord advised the Referee appointed to conduct the sale that it was a creditor of the corporation for the balance due under the lease. Respondent Harwood, the highest bidder at the auction, purchased all of the corporate assets. Petitioner, formerly a 50% shareholder in the corporation, moved to vacate the sale and declare Harwood an assignee of the lease. Thereafter, the landlord filed a motion, pursuant to Business Corporation Law § 1007, asserting a claim for the balance due under the lease. The courts below denied petitioner’s motion to vacate the sale, declined to find Harwood an assignee of the lease, and granted the landlord’s motion directing the Referee to pay the landlord $209,846.80 out of the sale proceeds in settlement of its claim.

Under the circumstances, the landlord was entitled to enforce its claim as creditor against the assets of the dissolved corporation, and the Referee properly ordered satisfaction of this claim from the sale proceeds.

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

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


text:
    Israella Mayeri, Respondent, v Harold Mayeri, Appellant.
    Submitted April 15, 1996;
    decided June 11, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which modified Supreme Court’s judgment of divorce and remitted the matter to Supreme Court for further proceedings, 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:
    Pontos Renovation, Inc., Appellant, v Kitano Arms Corporation, Respondent, et al., Defendants.
    Submitted April 8, 1996;
    decided June 11, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order compelling discovery and Supreme Court’s order denying plaintiff’s motion to extend the notice of pendency, 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. Cross motion for imposition of sanctions denied.


text:
    In the Matter of Doris L. Sassower, a Suspended Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted April 15, 1996;
    decided June 11, 1996
   Judges Levine and Ciparick taking no part.


text:
    In the Matter of Ashley R. and Another, Children Alleged to be Abused. Jeffrey R., Appellant; Jefferson County Department of Social Services, Respondent.
    Submitted May 20, 1996;
    decided June 13, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Board of Managers of the Revere Condominium, Respondent, v Shahsultan Jaffer, Appellant.
    Submitted May 20, 1996;
    decided June 13, 1996
   Motion to amend and resettle May 2, 1996 order of the Court of Appeals, etc., denied. [See, 88 NY2d 874.]


text:
    Board of Managers of the Revere Condominium, Respondent, v Shahsultan Jaffer, Appellant.
    Submitted April 22, 1996;
    decided June 13, 1996
   Motion to resettle February 15, 1996 and March 28, 1996 orders of the Court of Appeals denied. [See, 87 NY2d 952, 1016.]


text:
    In the Matter of Commissioner of Social Services of the City of New York, on Behalf of Nancy C., Respondent, v Roman U., Appellant.
    Submitted April 22, 1996;
    decided June 13, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for leave to prosecute his appeal to the Appellate Division as a poor person and the Appellate Division order denying appellant’s motion to renew his motion for poor person relief, dismissed upon the ground that these orders do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gary Farrell, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted May 20, 1996;
    decided June 13, 1996
   Chief Judge Kaye taking no part.


text:
    Patrick Kelly, Appellant, v Brian Wing, Individually and as Acting Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted May 13, 1996;
    decided June 13, 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:
    Hedy L. McSparron, Appellant, v James G. McSparron, Respondent.
    Submitted April 22, 1996;
    decided June 13, 1996
   Judge Levine taking no part.


text:
    Madelyn Miller, Appellant, v Joseph Kelner et al., Respondents.
    Submitted May 6, 1996;
    decided June 13, 1996
   Appeal, insofar as taken from the September 19, 1995 Appellate Division order that denied appellant’s motion to vacate the prior order of dismissal and that portion of the October 12, 1994 Appellate Division order that dismissed appellant’s appeal from that portion of Supreme Court’s September 8, 1993 order denying appellant’s motion to replead, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the September 19, 1995 Appellate Division order and the above-specified portion of the October 12, 1994 Appellate Division order do not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the remaining portion of the October 12, 1994 Appellate Division order dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that part of the October 12, 1994 Appellate Division order does not directly involve a substantial constitutional question.


text:
    The People of the State of New York, Appellant, v Series Daniels, Respondent.
    Decided June 13, 1996
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Aniel Rodriguez, Also Known as Anibal Rodriguez, Respondent.
    Decided June 13, 1996
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Samuel Plotkin, as Public Administrator of Kings County, as Administrator of the Estate of Beverly V. Stevens, et al., Respondents, v New York City Health and Hospitals Corporation, Appellant.
    Submitted April 22, 1996;
    decided June 13, 1996
   Motion for leave to appeal dismissed upon the ground that defendant, having stipulated to an increase in damages at Supreme Court, is not a party aggrieved (see, CPLR 5511; Sharrow v Dick Corp., 84 NY2d 976, 977).


text:
    In the Matter of Harold Scott, Appellant, v New York City Police Department, Respondent.
    Submitted April 22, 1996;
    decided June 13, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s dismissal of petitioner’s motion to file a supplemental petition, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    [670 NE2d 224, 646 NYS2d 983]
    In the Matter of Leo P. Menard.
    Decided June 18, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Leo P. Menard is suspended, with pay, effective immediately, from his office of Justice of the Beekmantown Town Court, Clinton County, pursuant to New York State Constitution, article VI, § 22 and Judiciary Law § 44 (8).

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


text:
    [669 NE2d 1109, 646 NYS2d 787]
    Daniel St. Jacques et al., Appellants, v City of New York, Respondent. Larry J. Wiltbank et al., Appellants, v City of New York, Respondent.
    Argued May 2, 1996;
    decided June 6, 1996

      APPEARANCES OF COUNSEL

      Lysaght, Lysaght & Kramer, P. C., Lake Success (Joseph L. Decolator, John V. Decolator and Michael Majewski of counsel), for appellants.

      Paul A. Crotty, Corporation Counsel of New York City (Barry P. Schwartz, Leonard Koerner, Stephen J. McGrath and Mordecai Newman of counsel), for respondent.

      Sullivan & Liapakis, P. C., New York City (Michael N. Block, Marshall M. Kolba and Stephen C. Glasser of counsel), for Uniformed Firefighters’ Association and another, amici curiae.

      Edward D. Peace, Corporation Counsel of City of Buffalo (Susan P. Wheatley of counsel), for State of New York and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

In support of their General Municipal Law § 205-e causes of action against New York City, plaintiffs relied solely on section 2904 of the New York City Charter and section 19-152 of the Administrative Code of the City of New York. Those provisions, however, concern only the duty of adjacent landowners to repair defective sidewalks or flagstones and the procedures that the City may use to enforce that duty. Neither provision imposes an affirmative duty on the City to keep its sidewalks in good repair.

To the extent that the cited provisions authorize the City to act, the authority is couched in permissive rather than mandatory terms. Administrative Code § 19-152, for example, states that the Commissioner of Transportation "may” enter the property to perform sidewalk repairs and "may” place a lien against the property to recoup the cost of its work. Thus, the cited provisions cannot form a basis for a cause of action under General Municipal Law § 205-e (see also, Desmond v City of New York, 88 NY2d 455 [decided today]).

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

Order affirmed, with costs, in a memorandum.


text:
    [669 NE2d 1110, 646 NYS2d 788]
    Sedat Kuci, Appellant, v Manhattan and Bronx Surface Transit Operating Authority, Respondent.
    Argued June 4, 1996;
    decided June 28, 1996
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, New York City (Brian J. Isaac and Eliot H. Taub of counsel), for appellant.

      Lawrence Heisler, Brooklyn, and Wallace D. Gossett for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and judgment absolute ordered against appellant on the stipulation.

In this personal injury action, plaintiff was a passenger on a bus owned by defendant and driven by defendant’s employee. At trial, plaintiff testified that he was thrown across the aisle and hit his head against a metal pole when the moving bus came to an abrupt halt. According to the driver, he was leaving a designated bus stop when a car suddenly appeared on his left and turned right in front of the moving bus. The driver testified that he immediately applied his brakes to avoid hitting the car but was unable to avoid collision.

The jury found defendant liable for plaintiff’s injuries and awarded damages in his favor. Defendant subsequently moved to set aside the verdict pursuant to CPLR 4404 (a), arguing that it was error for the trial court to refuse its instructions on the emergency doctrine. The court denied the motion, concluding that the driver’s familiarity with the intersection and knowledge that cars frequently turned right from the left lane in front of buses in this area rendered the charge inappropriate. The Appellate Division reversed, vacated the judgment and ordered a new trial.

Viewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury (see, Rivera v New York City Tr. Auth., 77 NY2d 322, 326), we agree with the Appellate Division that it was error to deny defendant’s request. Where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor’s own making, then the reasonableness of the conduct in the face of the emergency is for the jury (id., at 327). Here, the bus driver’s testimony indicated that the car on his left suddenly and unexpectedly pulled in front of the moving bus. That a driver was aware that cars often made right turns in front of buses would not preclude a jury from deciding that, as to the events in issue in this case, the driver did not anticipate being suddenly cut off by this particular car.

In that we agree with the Appellate Division that the trial court’s erroneous refusal of the requested emergency doctrine instruction warranted a new trial, plaintiffs remaining claims become academic.

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

Order affirmed, etc.


text:
    [669 NE2d 1111, 646 NYS2d 789]
    The People of the State of New York, Respondent, v John A. Ceresoli, Appellant.
    Argued June 6, 1996;
    decided June 28, 1996
    APPEARANCES OF COUNSEL

      Frank Policelli, Utica, for appellant.

      Michael A. Arcuri, District Attorney of Oneida County, Utica (Timothy P. Fitzgerald of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged with criminal possession of a forged instrument and with the theft of $3,500 from the Toccolana Club, a private social club in Rome, New York. After his conviction for grand larceny in the fourth degree (Penal Law § 155.30), defendant moved pursuant to CPL 330.30 to set aside the verdict on the ground of juror misconduct involving a single seated juror. During voir dire, the juror, a resident of Rome, was asked whether he was "familiar with members of the Toccolano Club.” The juror responded: "I just know where it is, not really, no.” It was subsequently established that the juror had decades earlier himself been a nominal member of the club, and two of his relatives were or had been members.

After a hearing on defendant’s motion, the trial court found there was no improper conduct on the part of the juror, and further that the juror’s conduct had not "affected a substantial right of the defendant” (CPL 330.30 [2]). The Appellate Division affirmed. The trial court’s undisturbed factual finding has support in the record and, like the alleged excessiveness of defendant’s sentence, is beyond the scope of our review.

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

Order affirmed in a memorandum.


text:
    [670 NE2d 446, 647 NYS2d 162]
    The People of the State of New York, Respondent, v James Montgomery, Appellant.
    Argued June 6, 1996;
    decided June 28, 1996

      APPEARANCES OF COUNSEL

      Yasmin Daley Duncan, Brooklyn, for appellant.

      Michael E. Bongiorno, District Attorney of Rockland County, New City (Lisa B. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for reasons stated in the memorandum at the Appellate Division (213 AD2d 563).

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


text:
    [669 NE2d 1112, 646 NYS2d 790]
    The People of the State of New York, Appellant, v Jose Torres, Respondent.
    Argued June 6, 1996;
    decided June 28, 1996

      APPEARANCES OF COUNSEL

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

      Judah Maltz, Kew Gardens, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the matter remitted to the Appellate Division for further proceedings in accordance with the memorandum herein, including consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b).

Defendant was arrested on March 27, 1989, and indicted for criminal possession of a controlled substance in the first and second degrees. On June 13, 1989, Supreme Court issued a bench warrant when defendant, who had been released on his own recognizance, failed to appear for arraignment on the indictment. The warrant was assigned to a detective on July 5, 1989.

Between July 5 and October 6, 1989, the detective periodically checked the computer for additional information on the defendant, including whether the warrant remained active. On July 24, 1989, the detective received a photograph of the defendant. On October 6, 1989, the detective went to the address which defendant had given as his home address and discovered that defendant had never resided in the building. The detective subsequently learned that the defendant had provided another address where he could be reached. Upon further investigation, the detective discovered that the second address was nonexistent.

On June 27, 1990, defendant was arrested when he went to the airport to assist a coconspirator who was attempting to smuggle cocaine into the United States. Defendant ultimately pleaded guilty to a Federal indictment. While incarcerated in a Federal penitentiary for the June 27 incident, defendant filed a motion to dismiss this action on speedy trial grounds. Supreme Court denied the motion and defendant proceeded to trial on charges arising out of the March 27, 1989 arrest. The jury convicted defendant of criminal possession of a controlled substance in the first degree.

Defendant appealed his conviction, arguing that he had been deprived of his ready trial right under CPL 30.30 and that he received ineffective assistance of counsel. The Appellate Division held the appeal in abeyance and remitted the matter to Supreme Court for a de nova hearing on the ready trial motion because Supreme Court had relied on an Appellate Division case which had been reversed on appeal (see, People v Bolden, 174 AD2d 111, revd 81 NY2d 146) (People v Torres, 210 AD2d 270). On remand, Supreme Court determined that defendant’s ready trial rights had not been violated because defendant had been attempting to avoid apprehension and prosecution, and the People had exercised due diligence in attempting to locate defendant. The Appellate Division reversed, finding that the People had failed to exercise due diligence in locating the defendant, and granted defendant’s motion to dismiss the indictment on ready trial grounds. A Justice of the Appellate Division granted leave to the People to appeal to this Court.

The sole issue determined on this appeal is whether the 73-day period from July 24, 1989 to October 6, 1989 should be chargeable to the People in calculating the ready trial period because the People allegedly failed to exercise due diligence in locating the defendant. CPL 30.30 (4) (c) provides that a period of delay resulting from the absence of the defendant may be excluded from time chargeable to the People when a defendant’s location is unknown and the defendant attempts to avoid apprehension or prosecution. The People need not exercise due diligence in attempting to locate a defendant who is attempting to avoid apprehension or prosecution (People v Luperon, 85 NY2d 71, 80, n 3). Accordingly, the Appellate Division erred in imposing a due diligence requirement under these circumstances and must now review Supreme Court’s finding that defendant attempted to avoid apprehension or prosecution in addition to any other relevant factual issues which may arise on remittal.

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Bruce M. Kaplan, as Judge of the Family Court, New York County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted June 17, 1996;
    decided June 28, 1996
   Motion to seal denied. Motion by petitioner to stay consideration of his request for review under Judiciary Law § 44 denied.


text:
    The People of the State of New York, Respondent, v Edriz Marin, Appellant.
    Submitted June 24, 1996;
    decided June 28, 1996
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Castro, 84 NY2d 976; People v Ellis, 71 NY2d 1012; People v Mintz, 20 NY2d 753, 770).


text:
    Robert W. Pfohl et al., Appellants, v Amax, Inc., Defendant, and American Standard, Inc., et al., Respondents.
    Submitted April 15, 1996;
    decided June 28, 1996
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    In the Matter of Michele E. Sheehan, Appellant, v Michael J. Sheehan, Respondent.
    Submitted April 22, 1996;
    decided June 28, 1996
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    [670 NE2d 440, 647 NYS2d 156]
    The People of the State of New York, Appellant, v Lorraine Brown, Respondent.
    Decided July 2, 1996

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw of counsel), for appellant.

      Schwed & Zucker, Kew Gardens (David G. Zucker 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 reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b). The trial court did not place defendant on illegal "interim probation” by postponing defendant’s sentence after her plea of guilty and placing her with a private drug treatment program (see, People v Avery, 85 NY2d 503; People v Smith, 85 NY2d 919).

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


text:
    [670 NE2d 1339, 647 NYS2d 708]
    Ryszard Jastrzebski, Appellant, v North Shore School District, Respondent. (And Two Third-Party Actions.)
    Decided July 2, 1996

      APPEARANCES OF COUNSEL

      Thomas J. Stock, Mineola, for appellant.

      Ann K. Kandel, Hauppauge, for respondent.

      Goddard, Ronan & Dineen, New York City (Joseph P. Dineen of counsel), for A-1 Environmental Service, Inc., third-party defendant-respondent.

      White, Quinlan, Staley & Ledwith, Garden City (Peter K. Ledwith of counsel), for Kaselaan & D’Angelo Associates, Inc., third-party defendant-respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (223 AD2d 677).

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


text:
    [670 NE2d 441, 647 NYS2d 157]
    The People of the State of New York, Respondent, v Bobby Jenkins, Appellant.
    Argued June 5, 1996;
    decided July 2, 1996

      APPEARANCES OF COUNSEL

      Zeb Landsman, New York City, and Daniel L. Greenberg for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of robbery in the first degree following a jury trial. During trial, the prosecutor sought to cross-examine defendant’s alibi witness as to the fact that he knew the defendant, his nephew, had been in jail since the date of arrest, had information that would tend to exculpate the defendant, and had failed to come forward with this information earlier. The court held a conference to determine whether the prosecutor could question the alibi witness regarding his failure to come forward (see, People v Dawson, 50 NY2d 311), and concluded that such questioning was proper.

In response to the prosecutor’s questions, the alibi witness, with whom defendant resided, indicated that he had known defendant had been in jail since his arrest and had spoken with defendant while he was in jail. The court subsequently gave a curative instruction to the effect that there is no general duty to come forward with exculpatory evidence but that the failure to do so may bear on credibility (see, id., at 322-323). Defendant nonetheless moved for a mistrial on the ground that the testimony regarding his incarcerated status was not relevant and was prejudicial. The court denied the mistrial motion, but instructed the prosecutor not to mention defendant’s incarceration during summation and offered an additional curative instruction, which defense counsel refused. The Appellate Division affirmed (220 AD2d 533), and a Judge of this Court granted defendant leave to appeal.

The Dawson principle was applicable to this case because a close relative or friend’s knowledge that defendant is incarcerated pending trial may be reasonably found to be inconsistent with the witness’ failure to come forward with exculpatory evidence which might result in the accused’s being freed (see, People v Dawson, 50 NY2d, at 318, supra), and clearly, the procedural requirements set forth in that case were met (see, id., at 321-323).

Nor can it be said on the facts of this case that the trial court abused its discretion in finding that the probative value of the evidence outweighed the potential for prejudice (see, United States v Villabona-Garnica, 63 F3d 1051, 1058, cert denied sub nom. Munoz v United States, — US —, 116 S Ct 1341, 1366; People v Pelt, 161 AD2d 284, appeal denied 76 NY2d 862; cf., People v Moore, 148 AD2d 754, 755 [any prejudice from witness’ brief reference to defendant’s prior incarceration was alleviated by the trial court’s curative instruction], appeal denied 74 NY2d 667).

Likewise, we find no constitutional error. Defendant, relying essentially on Estelle v Williams (425 US 501, reh denied 426 US 954), and other cases in which the defendant was forced to wear prison garb throughout trial (see, e.g., People v Roman, 35 NY2d 978), contends that his constitutional right to a fair trial was violated because the prosecutor’s eliciting of testimony regarding his incarcerated status impermissibly compromised the presumption of innocence. As was pointed out in Estelle v Williams (supra), however, forcing a defendant to wear prison clothing throughout trial creates a "constant reminder of the accused’s condition” which constitutes a "continuing influence throughout the trial” (id., at 504, 505). Moreover, it is a practice which serves no legitimate State purpose (id., at 505; cf., Holbrook v Flynn, 475 US 560, 572 [presence of uniformed officers during trial is related to State’s legitimate interest in maintaining custody during proceedings]; Illinois v Allen, 397 US 337, 359 [use of shackles and gags during trial may be constitutional when necessary to control a contumacious defendant], reh denied 398 US 915).

Contrastingly here, cross-examination of the alibi witness regarding his knowledge of defendant’s incarcerated status pending trial served a legitimate State interest — the evidence was clearly probative on the issue of the credibility of the witness’ exculpatory in-court testimony. Additionally, the references to defendant’s incarcerated status were temporary and brief, an initial curative instruction was given, a second, more specific instruction was offered, and the prosecutor was prohibited from mentioning defendant’s incarceration during summation. These circumstances distinguish this case from Estelle v Williams and similar cases in which an unconstitutional impingement on the presumption of innocence occurred. Accordingly, there is no basis for finding a constitutional error in this case (cf., People v Vasquez, 88 NY2d 561, 578 [decided today]).

Nevertheless, trial courts and prosecutors should remain sensitive to the risk of impairment of the presumption of innocence and our holding should not be taken as condoning invariable resort to this form of impeachment of alibi witnesses. Thus, as a general matter, questioning regarding the defense witness’ knowledge of defendant’s incarceration should be limited to instances where, as here, the relationship between the defendant and the witness, or other circumstances, indicates that the witness would have had a strong incentive to come forward with exculpatory evidence, and no reason was revealed that would have impelled the witness not to make such disclosure.

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

Order affirmed in a memorandum.


text:
    Cushman & Wakefield, Inc., Appellant, v 214 East 49th Street Corp., Respondent.
    Submitted June 10, 1996;
    decided July 2, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Angel Gonzalez, Respondent, v Phylis S. Bamberger, as Justice of the Supreme Court, Bronx County, Appellant, et al., Respondent.
    Submitted May 28, 1996;
    decided July 2, 1996
   On the Court’s own motion, appeal brought by District Attorney Johnson dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal by Justice Bamberger denied.


text:
    Mike Kaplan, Appellant, v Mel Sachs, Respondent.
    Submitted May 6, 1996;
    decided July 2, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that pertains to the seventh and eighth causes of action of the complaint, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Dorothy Wolosin, Appellant, v Mary Campo et al., Respondents.
    Submitted May 6, 1996;
    decided July 2, 1996
   Motion, insofar as it seeks leave to appeal with respect to defendants Campo and Campo-Sabella, 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 for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    [670 NE2d 1340, 647 NYS2d 709]
    In the Matter of Leo P. Menard.
    Decided July 9, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that this Court’s June 18, 1996 suspension of Honorable Leo P. Menard from his office of Justice of the Beekmantown Town Court, Clinton County, is continued, with pay.

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


text:
    [670 NE2d 1340, 647 NYS2d 709]
    In the Matter of William L. Beyette, Respondent, v City of Watertown et al., Appellants.
    Decided July 9, 1996

      APPEARANCES OF COUNSEL

      Slye & Burrows, Watertown (Christina E. Stone and Robert J. Slye of counsel), for appellants.

      Conboy, McKay, Bachman & Kendall, Watertown (David B. Geurtsen 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 reversed, with costs, and petition dismissed (see, Matter of Cook v City of Utica, 88 NY2d 833).

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


text:
    [670 NE2d 443, 647 NYS2d 159]
    Raymond Mercer et al., Appellants, v City of New York, Respondent.
    Decided July 9, 1996

      APPEARANCES OF COUNSEL

      Rosenthal & Druyan, Bronx (Alan Jay Binger of counsel), for appellants.

      Paul A. Crotty, Corporation Counsel of New York City (Deborah R. Douglas and Kristin M. Helmers of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The evidence presented at trial, considered in the light most favorable to plaintiffs, fails to establish a prima facie case of negligence. Nothing in the record suggests that defendant either affirmatively created the particular pool of grease or oil alleged to have caused plaintiffs fall, or had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249, affd for reasons stated below 64 NY2d 670). Thus, the Appellate Division properly reversed the judgment in plaintiffs’ favor and dismissed the complaint.

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

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