text:
    The People of the State of New York, Respondent, v Edward Mapp, Appellant.
    Argued June 6, 1979;
    decided June 28, 1979
    APPEARANCES OF COUNSEL

      Julia Pamela Heit for appellant.

      Robert M. Morgenthau, District Attorney (Phyllis M. Gershon and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We conclude that the evidence in this case was not such as to entitle defendant to a charge with respect to either the agency defense or the affirmative defense of entrapment. Accordingly it was not error for the trial court to deny defense counsel’s requests for such charges.

Nor is there substance to defendant’s claim that he was denied effective assistance of counsel in consequence of what he characterizes as a failure "to tender a meaningful summation in his behalf’. Faced with overwhelming proof of defendant’s guilt, including his own trial testimony admitting participation in the transaction on which the charge was based, counsel’s strategy had been predicated on the defenses of agency and entrapment. When the trial court ruled out these defenses as a matter of law, defense counsel was placed in a most difficult position — a "dilemma”, as defendant concedes. That counsel then chose in a forthright though brief statement to submit his client to the mercy and fair-mindedness of the jury does not warrant a finding that defendant was denied his right to effective assistance of counsel.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Clifford Thompson, Jr., Appellant.
    Argued June 6, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Elliott A. Taikeff for appellant.

      Patrick D. Monserrate, District Attorney (Patrick H. Mathews of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims only that there was "some evidence” of inducement or encouragement and of police methods which created a substantial risk that the offense would be committed by a person not otherwise disposed to commit the crime. At the very most this would constitute a form of "but for” causation, insufficient to entitle defendant to a charge with respect to the affirmative defense of entrapment. Our examination of the record, however, discloses no proof of inducement or encouragement, either "active” or otherwise, or that the activities of the police constituted more than "[cjonduct merely affording [defendant] an opportunity to commit an offense”. (Penal Law, § 40.05.)

Chief Judge Cóoke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed in a memorandum.


text:
    Joseph B. Bruto, Appellant, v George Herman and Associates, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. William Higgins & Sons, Inc., Third-Party Defendant-Respondent.
    Argued June 7, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Paul William Beltz for appellant.

      Richard K. Schoepperle for George Herman and Associates, Inc., defendant and third-party plaintiff-respondent.

      Arthur J. Maloney for Dyna Crete Corporation, defendant and third-party plaintiff-respondent.

      Herbert J. Lustig for third-party defendant-respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 844).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    Richard D. (Anonymous), Respondent, v Wendy P. (Anonymous), Appellant.
    Argued June 6, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Robert G. Schneider for appellant.

      Perry Satz for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Family Court, after hearing testimony from both parents and other witnesses and considering psychological reports submitted by a forensic team appointed by the court, concluded that it would be in the child’s best interests for custody to be awarded to the child’s father. On the record we find no basis for setting aside that determination.

The question as to whether additional inquiry by other experts would be helpful was essentially a matter within the discretion of the court and in this case it cannot be said that this discretion was not properly exercised. Nor did the court err in failing to appoint a Law Guardian sua sponte. There is no requirement that the court invariably appoint a Law Guardian for the child in every case where parents who are unmarried, divorced or separated, seek a judicial determination of child custody and there is no indication that the child’s interests were prejudiced in any way.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.


text:
    In the Matter of Adrena F. Spruils, Respondent, v New York City Transit Authority et al., Appellants.
    Argued June 7, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      John A. Murray, Alphonse E. D’Ambrose, Helen R. Cassidy and Eugene Freidus for appellants.

      Eric D. Balber and Deborah M. Greenberg for respondent.
   OPINION OF THE COURT

Judgment appealed from and the order of the Appellate Division brought up for review reversed, with costs, and the petition dismissed (see New York City Tr. Auth. v Beazer, 440 US 568; Matter of Pell v Board of Educ., 34 NY2d 222).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    National Bank of North America, Respondent, v Edward Chu, Appellant, et al., Defendants.
    Argued June 8, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Lester Nelson and Jeffrey W. Herrman for appellant.

      Edward N Meyer for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and plaintiff’s motion for summary judgment denied for reasons stated in the dissenting memorandum by Mr. Justice Leonard H. Sandler at the Appellate Division (64 AD2d 573, 575-577).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer; Judge Fuchsberg taking no part.


text:
    Zeiderman & Edelstein, P. C., Respondent, v Buddy Rich, Appellant.
    Submitted June 5, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Oswald Silvera and Derrick Arjune for appellant.

      John F. Triggs for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (61 AD2d 922).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of the Estate of Dario Shindell, Deceased. Betty S. Hone, Respondent; Spencer Barefoot et al., Appellants.
    Argued June 7, 1979;
    decided June 28, 1979
   Appeal dismissed, without costs, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination by the Appellate Division.


text:
    Doris B. Moskin, Respondent, v John R. Moskin, Appellant.
    Argued June 7, 1979;
    decided June 28, 1979
   Appeal dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a respect which is within the power of the Court of Appeals to review (CPLR 5601, subd [a], par [iii]; Patron v Patron, 40 NY2d 582).


text:
    The People of the State of New York, Respondent, v Angelo Luis O’Neall, Also Known as Louis Cabrera, Appellant.
    Argued May 29, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      Erica Horwitz and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Barbara L. Linzer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The witness was permitted to testify, over objection, that after observing the defendant, his companion and the victim walk past him and engage in a scuffle, he heard a popping noise. The witness further testified that as he approached the victim he heard him say, "I just been shot.” "They was trying to rob me.” The witness asked "Who?” and the decedent related "Two Spanish guys.”

We find no error in the introduction of the decedent’s statements to the witness as a spontaneous declaration or excited utterance (People v Caviness, 38 NY2d 227, 230-231; People v Del Vermo, 192 NY 470). The circumstances surrounding the declaration sprang instinctively from the stress and excitement caused by the shooting and followed so closely after that event as to preclude the opportunity for deliberation, fabrication or design (see People v Marks, 6 NY2d 67, cert den 362 US 912). The simple fact that the decedent’s identification of his attackers was prompted by the inquiry of the witness does not detract from the spontaneity of the utterance under the circumstances presented here (see People v Edwards, 47 NY2d 493).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    Oneida County Mobile Home Sales, Inc., et al., Respondents, v Niagara Mohawk Power Corporation, Appellant, and John J. Auer et al., Respondents.
    Argued May 31, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      Evalyn G. Basloe for appellant.

      Stewart D. Pratt for plaintiffs-respondents.

      Stephen L. Walthall for defendants-respondents.

      Ruth B. Rosenberg, Paula M. Connelly and Gregory C. Staple for Rochester Telephone Corporation and another, amici curiae.

      Alfred E. Froh and Lawrence W. Thomas for Orange and Rockland Utilities, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs against plaintiffs to defendants Auer only, by reversing that portion of the order which affirmed the grant of summary judgment dismissing the counterclaim of Niagara Mohawk Power Corp. against plaintiffs and remitting the action to Supreme Court, Oneida County, for further proceedings in accordance with this memorandum. Since there is no appeal by plaintiffs to this court, we may not consider their request for affirmative relief.

While we express no opinion on the question of whether the placement of mobile homes under Niagara Mohawk’s power lines would constitute interference with its easements or whether Niagara Mohawk is entitled to recover ón its counterclaim, we agree with the Appellate Division that the counterclaim seeks damages for interference with a negative easement by implication (63 AD2d 385, 390-392; see Trustees of Columbia Coll. v Lynch, 70 NY 440, 447-448). Subdivision 1 of section 2001 of the Real Property Actions and Proceedings Law provides that its terms apply "to actions to enforce a covenant or agreement restricting the use of land or to recover damages for breach thereof, including an action predicated on infringement of an easement or other interest created by the covenant or agreement, to the extent that the restriction relates to structures that may be erected” (emphasis added).

Accordingly, the counterclaim is subject to the two-year period of limitation of subdivision 2 of section 2001 of the Real Property Actions and Proceedings Law. An issue of fact, however, remains with respect to the time the mobile homes were placed under the power lines. This issue may not be resolved in the context of a motion for summary judgment solely by reference to the conclusory attorneys’ affidavits which appear in this record.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, with costs against plaintiffs to defendants Auer only, and the case remitted to Supreme Court, Oneida County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Richard Buono et al., Appellants, v Victor S. Bahou et al., Constituting the New York State Civil Service Commission, et al., Respondents.
    Argued May 29, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      Peter R. Kehoe for appellants.

      Robert Abrams, Attorney-General (William J. Kogan and Jeremiah Jochnowitz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, Albany County, with directions to remand to the State Civil Service Commission for a hearing.

While we are in agreement with the Appellate Division that respondent State Civil Service Commission could act, pursuant to section 25 of the Civil Service Law, to rescind the appointments of petitioners as police officers in the City of Rensselaer, we are of the opinion that petitioners are entitled to a hearing on the issue whether they had submitted to physical examinations prior to their appointments and satisfied the visual acuity standards established by law. Inasmuch as. petitioners made timely requests for such hearings and in light of the drastic consequences which may befall petitioners by the rescission of their appointments, petitioners must be accorded the opportunity to present proof at a plenary hearing to substantiate their allegations that they had satisfied the visual acuity standard, as verified by duly performed medical examinations, prior to their appointment. (Cf. Matter of Canarelli v New York State Dept. of Civ. Serv., 44 AD2d 645; Matter of McShane v City Civ. Serv. Comm., 51 AD2d 521.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Deborah Genin, Appellant, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Argued May 30, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      E. Anne Hayes and John C. Gray, Jr., for appellant.

      Robert Abrams, Attorney-General (Gerald Slotnik and Herbert J. Wallenstein of counsel), for Philip L. Toia, as Commissioner of the State Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and supplementary grant of public assistance in the category of aid to dependent children to petitioner should be reinstated.

The Commissioner of the State Department of Social Services erred in prorating household expenses between petitioner and her nine-year-old child, a recipient of Social Security survivors’ benefits. A child’s Social Security benefits may not be deemed available income for the purpose of determining eligibility for aid to dependent children when such benefits are sufficient to satisfy the needs of the child and the representative payee does not choose to include the child within the AFDC assistance unit. (See Johnson v Harder, 383 F Supp 174, affd 512 F2d 1188, cert den 423 US 876; Howard v Madigan, 363 F Supp 351; Matter of Nelson v Toia, 92 Misc 2d 575, affd 60 AD2d 796, mot for lv to app den 44 NY2d 646; Matter of Snowberger v Toia, 60 AD2d 783, affd 46 NY2d 803.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


text:
    Whitmyer Bros., Inc., Respondent, v State of New York, Appellant.
    (Claim No. 57565.)
    Argued May 31, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Richard J. Dorsey, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for appellant.

      Sayward Mazur and Julius L. Schapira for respondent.
   OPINION OF THE COURT

Memorandum.

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

A dispute arose between D. Lambert Railing Co. (Lambert), the subcontractor responsible for the guide rail work of the project to improve the condition of the Cross Westchester Parkway, and the State’s engineer-in-chief with respect to how the preparatory work required to order the necessary materials was to be conducted and the nature of the guide rail work itself. After completion of this work, claimant, the general contractor, instituted this action pursuant to an agreement with Lambert on the latter’s behalf alleging that the State had breached the contract.

As to the issue of liability, the Court of Claims found that the State had interfered in the performance of the guide rail work, thereby causing severe disruption in Lambert’s work schedule and resulting in increased costs. These findings, affirmed by the Appellate Division and having support in the record, are beyond our review. (CPLR 5501, subd [b]; e.g., Matter of Rothko, 43 NY2d 305, 318.)

In addition, on the record before us, we agree with the measure of damages as calculated by the Appellate Division. Claimant, seeking the reasonable value of the work actually performed by its subcontractor Lambert, was entitled to recover damages measured on a quantum meruit basis: to wit, actual job cost plus allowance for Lambert’s overhead and profit minus the amounts thus far paid for the work performed by Lambert. (See D’Angelo v State of New York, 41 AD2d 77, 80, after remand for new trial 46 AD2d 983, affd 39 NY2d 781.) We would note that the State had its opportunity before the Court of Claims to submit proof of factual matters which might go to reduce the amount of damages.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Charles W. Ryan et al., Appellants, v Albany County Democratic Committee et al., Respondents.
    Argued June 6, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      John J. Lynch and Frederick G. Ziehm for appellants.

      Robert G. Lyman, County Attorney (William J. Conboy, II, of counsel), for Albany County Legislature and another, respondents.

      Douglas P. Rutnik for Albany County Democratic Committee and others, respondents.

      John W. Tabner for Election Commissioners Association, State of New York, amicus curiae.

   OPINION OF THE COURT

Order modified, without costs, by granting declaratory judgment in favor of defendants (see Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, affirmed for the reasons stated in the memorandum at the Appellate Division.

Concur: Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Chief Judge Cooke and Judge Fuchs-berg.


text:
    The People of the State of New York, Respondent, v Patricia Bartley, Appellant.
    Argued May 29, 1979;
    decided July 3, 1979

      APPEARANCES OF COUNSEL

      Rita Hayman for appellant.

      Robert M. Morgenthau, District Attorney (Richard Hamburger and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant does not dispute that the court’s acceptance of her plea (to the class D felony in satisfaction of an indictment including a post-September 1, 1973 A-II felony count) was erroneous as a matter of law as prohibited by explicit provision of statute (CPL 220.10, subd 6, par [a]). Realistically the plea bargain must be considered as a nonseverable entity, and accordingly the bargain in its entirety was a total nullity as to all six counts of the indictment. The invalidity of the acceptance of the plea having been brought to its attention, the court exercised its inherent power to correct its own error. (Cf. Matter of Cosgrove v Kubiniec, 56 AD2d 709; People v Darling, 50 AD2d 1038; Matter of Blumberg v Lennon, 44 AD2d 769; Matter of McDonald v Sobel, 272 App Div 455 [vacaturs of guilty pleas entered in contravention of statute].) The court thereupon properly vacated the plea of guilty as to the one count and reinstated the not guilty pleas as to all six counts. Defendant was thereafter retried on the three post-September 1, 1973 counts of the indictment.

Our Legislature had power to provide that acceptance of a plea in satisfaction did not constitute an acquittal of the "satisfied” counts (cf. Kring v Missouri, 107 US 221, 225). CPL 40.30 (subd 3) so provides and is controlling: "Despite the occurrence of proceedings specified in subdivision one [here termination in a conviction upon a plea of guilty], if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.” Retrial under the original indictment was accordingly not barred by statute.

Nor has there been any violation of defendants’ constitutional right not to be twice put in jeopardy (US Const, 5th Amdt; NY State Const, art I, § 6). Neither the satisfaction of the five remaining counts on the initial acceptance of the plea of guilty to the one count nor the vacatur of the guilty plea to that count was the equivalent of an acquittal based on an adjudication as to the factual elements of the charge. (United States v Scott, 437 US 82; People v Key, 45 NY2d 111.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v John Dean, Appellant.
    Argued June 1, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Michael Ira Asen for appellant.

      Mario Merola, District Attorney (Leonard G. Kamlet and Steven R. Kartagener of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the plea vacated, and the motion to suppress granted.

In response to a series of questions posed by an Assistant District Attorney, defendant, while in police custody, refused to make a statement to the authorities without the assistance of an attorney. On the conceded facts, it must be held as a matter of law that defendant requested the assistance of counsel (People v Hinton, 45 NY2d 941; People v Clark, 45 NY2d 432, 436, 439). As a result, the police and the prosecutor became duty bound not to question defendant without first scrupulously honoring his right to counsel (People v Grant, 45 NY2d 366; People v Buxton, 44 NY2d 33). This they failed to do. Rather than taking steps to assist defendant in obtaining counsel, the police merely returned him to a holding pen. A few hours later, after defendant had co-operated in certain respects, they affirmatively sought and obtained a waiver of his rights. In these circumstances, it cannot be said that defendant’s refusal to answer questions without the aid of counsel was scrupulously honored.

Although defendant may not have adequately preserved the error, a violation of the right to counsel may be reviewed in the absence of an objection (People v Ermo, 47 NY2d 863; People v Arthur, 22 NY2d 325, 329). We deem this rule equally applicable to the circumstances of this case.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, plea vacated, motion to suppress granted and case remitted to Supreme Court, Bronx County, for further proceedings on the indictment in a memorandum.


text:
    The People of the State of New York, Respondent, v Ernest Page, Appellant.
    Argued June 5, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      David N. Goldman for appellant.

      Robert M. Morgenthau, District Attorney (Benjamin H. Green and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The supplemental instructions which the court delivered were essentially neutral and therefore did not seek to coerce a particular juror into accepting a particular view of the facts (see People v Pagan, 45 NY2d 725, 727; People v Carter, 40 NY2d 933, 934). We have examined appellant’s other contentions and find them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    Robert Whelen et al., Appellants, v Warwick Valley Civic and Social Club, Respondent.
    Argued June 6, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Harry V. Lynch and Thomas N. O’Hara for appellants.

      Alfred Schleider and Edgar T. Schleider for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although the Labor Law defines an individual "employed” as including one who is "permitted or suffered to work” (§ 2, subd 7), this definition must be read in conjunction with that of "employee”, which is defined as "a mechanic, workingman or laborer working for another for hire” (§ 2, subd 5) (emphasis added). To come within the special class for whose benefit absolute liability is imposed upon contractors, owners and their agents to furnish safe equipment for employees under section 240 of the Labor Law, a plaintiff must demonstrate that he was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent. A volunteer who offers his services gratuitously cannot claim the protection afforded by the "flat and unvarying duty” flowing to this special class contained in section 240. (Yearke v Zarcone, 57 AD2d 457, 459, mot for lv to app den 43 NY2d 643.)

Chief Judge Cooke, and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.


text:
    Hudson Transit Lines, Inc., Respondent, v State Human Rights Appeal Board, Appellant.
    Argued June 1, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Alan J. Saks and Ann Thacher Anderson for appellant.

      Samuel B. Zinder for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the order of the New York State Human Rights Appeal Board reinstated, and the cross motion for enforcement granted, with costs.

The State division made findings that the complainant, Eugene Dawson, and his wife are American Indians, clearly recognizable as such, with copper-colored skin and coarse black hair. On August 22, 1975 each was wearing an Indian headband and Mrs. Dawson also had Indian ornaments woven into her braided hair. They had purchased round trip tickets and were waiting to board petitioner’s bus. Mrs. Dawson mistakenly presented the driver with a return trip ticket which looked very much like the ticket for the first leg of the trip. The Dawsons were told in a "nasty voice” to "Get to the end of the line” rather than to step aside and converse with the driver while the other passengers continued to load. When the Dawsons attempted to correct the misunderstanding by presenting the correct tickets, the driver then shouted "Get to the end of the line. I told you before, get to the end of the line”. When Mrs. Dawson asked the driver for his badge number the driver replied "Now you’re not going on the bus at all. Wait for the next bus”. He then drove off leaving them on the platform. The division expressly credited the testimony forming the basis of these findings and discredited the inconsistent testimony of the bus driver that Mr. Dawson had appeared to be under the influence of alcohol or a drug. It concluded that the driver discriminated against the complainant and his wife because of their national origin (Executive Law, § 296.2). Clearly, it was then within the province of the division to infer that the driver shaped his testimony to disguise a discriminatory motive for his actions. All of these findings were affirmed by the Human Rights Appeal Board. It is not always necessary to find specific evidence of spoken references to complainants’ national origin or color, for acts of discrimination may occur without such references. On this record, which showed that the driver’s orders for the Dawsons to go to the end of the line were inconsistent with company policy and included a refusal to transport them at all, it was error for the Appellate Division to hold that there was a lack of substantial evidence to support the finding of conscious discrimination because of complainants’ national origin (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order reversed, etc.


author: Meyer, J.

text:
    Lester W. Ebbets et al., as Administrators of the Estate of Justine L. Lambert, Deceased, Appellants, v State of New York, Respondent.
    (Claim No. 60219.)
    Argued June 5, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Richard J. Ney, Stuart D. Baker and Michael S. Davis for appellants.

      Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (64 AD2d 794).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Fuchsberg. Judge Meyer concurs in the following opinion in which Judge Wachtler concurs.

Meyer, J.

(concurring). Notwithstanding my views concerning the retroactivity of the amendment made by chapter 280 of the Laws of 1976, stated in dissent in Sessa v State of New York, decided herewith, I concur in affirmance in this case. A contract provision shortening the period of limitations is valid (Kassner & Co. v City of New York, 46 NY2d 544). Here claimants entered into an advance payment agreement which provided that their claim for additional money would be released if a claim was not filed "within the statutory time limit set forth in the Court of Claims Act”. The statutory time limit is three years (§ 10, subd 1); the six-year period in subdivision 6 of section 10 is not a statutory time limit on filing a claim. It is rather a limit on the time within which a court may permit a claim to be filed notwithstanding that the three-year "statutory time limit” was not met. Nor is the claim saved by reason of the fact that the notice of appropriation was served by substituted service. The factual basis for such service is beyond our review, the Appellate Division having affirmed the findings of fact made by the Court of Claims. Moreover, in my view, the notice called for by subdivision 1 of section 10 of the Court of Claims Act is not "process” within the meaning of section 102 (subd [a], par [11]) of the Business Corporation Law because not "for the purpose of acquiring jurisdiction of such corporation”.

Order affirmed, etc.


text:
    Leonard Sessa et al., Appellants, v State of New York, Respondent.
    (Motion No. M-18794.)
    Argued June 5, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Arthur D. Goldstein for appellants.

      Robert Abrams, Attorney-General (Peter J. Dooley, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Mr. Justice Robert G. Main at the Appellate Division (63 AD2d 334; see, also, Ebbets v State of New York, 47 NY2d 973, decided herewith).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Meyer dissents in part and votes to modify in the following opinion.

Meyer, J.

(dissenting). I dissent and vote to reverse except as to Leonard Sessa, whose claim accrued more than six years prior to his application. The conclusion below, now affirmed by this court, that the saving provisions of the amendment made by chapter 280 of the Laws of 1976 do not apply to any claim which accrued more than three years prior to the effective date of that amendment flies in the face of the fact that the saving provision allows a court to act at any time within six years after accrual of the claim. So to interpret the amendment is to place undue emphasis on the rule requiring prospective application of statutes, recognized in Matter of Beary v City of Rye (44 NY2d 398, 410-411) to be no more than a rule of construction, and to ignore the background against which the saving provision was enacted.

Of course, the legislative intent could have been more clearly stated, but viewed in the setting of its enactment the amendment more than adumbrates its purpose to authorize a court to permit the late filing of any claim which on September 1, 1976, its effective date, was not six years old.

Prior to the amendment an appropriation claim was required to be filed within three years after accrual, but there was no provision authorizing the Court of Claims to allow late filing of such a claim. Private bills were, therefore, the only method to obtain compensation for a time-barred appropriation. Perceiving the unfairness and inequality of treatment resulting from the use of private bills, Governor Carey in 1975 vetoed a number of such bills, stating that he would submit to the next session of the Legislature "proposed legislation to enable this subject to be handled in the future in a logical, fair and orderly way, in place of the haphazard, careless and discriminating procedure which has been followed up to this time”.

Chapter 280 of the Laws of 1976 was the resulting change in the Court of Claims Act. By it the Legislature for the first time gave the court discretion as to appropriation claims, by adding a new second sentence to subdivision 6 expressly referring to such claims and by providing that such a claim should be "deemed an action upon an implied contractual obligation”, thus making the period within which discretion could be exercised six years (CPLR 213, subd 2). Since the very purpose of the amendment was to authorize the Court of Claims to allow revival of a time-barred claim at any time within three years after the claim became barred, since the Legislature did so by incorporating by reference a six-year Statute of Limitations, and since the provision as to appropriations was totally new and was intended to replace a system that clearly applied to claims already barred by the three-year statute, it does no violence to the legislative intent to read the amendment as applying to all claims not six years old on the effective date of the amendment. Indeed, to read subdivision 1 of section 10’s three-year provision to require a contrary result when what the Legislature amended was subdivision 6 of section 10 is to create a lacuna which, viewed against the circumstances in which the amendment was enacted, the Legislature cannot reasonably be thought to have intended.

Moreover, the rationale of Matter of Beary v City of Rye (44 NY2d 398, supra) does not require the result reached by the majority. The statute there considered allowed extension of the time for filing a notice of claim and we reasoned that since such a notice was necessary to alert the governmental agency to the need for an investigation and to enable it to investigate while the evidence was fresh, it should not be applied retroactively. What is here involved is a claim, not a notice of claim, which arises out of the State’s act of appropriation. To such a claim the State does not need to be alerted for it has done all its investigating beforehand. Matter of Beary is, therefore, simply inapposite.

Order affirmed, etc.

      . Subdivision 6 granted the court authority to allow late filing within two years after accrual and, therefore, did not apply to appropriation claims which were not barred until three years after accrual.

      . Appellants caused such a bill to be introduced on their behalf but in view of the Governor’s veto of the other bills it never got out of committee.

      . Clearly, the use of the words "in the future” in the Governor’s 1975 Message quoted in the text above and in his messages concerning the 1976 amendment (McKinney’s Session Laws [1976], pp 2311-2312, 2435) is no indication of such an intent, for even if the amendment had been expressly made retroactive the discretion exercised by the court would have, of necessity, been exercised "in the future”.


text:
    The People of the State of New York, Respondent, v Donald P. Misuis, Appellant.
    Argued June 6, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      John J. Brunetti, George T. Dunn and Gerald T. Barth for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Edward Z. Menkin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed.

On November 21, 1976 two officers of the Syracuse Police Department responded to a radio call reporting that a child had been molested and directing them to the residence of the alleged victim. Upon arrival they spoke with both the alleged victim and her mother, and then proceeded directly to the home of the defendant where the officers informed him that his nine-year-old stepdaughter had accused him of rape. The defendant made no response and he was then advised of his rights, frisked, patted down and handcuffed. Upon arrival at police headquarters he was again informed of his rights, both orally and by being provided with a card reciting them. After having been given his Miranda warnings on three separate occasions and stating each time that he did not wish to have an attorney, the defendant made inculpatory admissions to the crime orally and in a signed statement.

At the hearing on defendant’s motion to suppress these admissions, his counsel repeatedly attempted to interrogate the two officers in an effort to discover whether the police had probable cause to make the arrest. His avowed intention was to show that the detention was unlawful and thus any statements made as a result of the claimed unlawful arrest and detention tainted any admissions. However, at the insistent urging of the prosecutor the court refused to permit that inquiry and permitted only questions concerning the voluntariness of the statements themselves. The court found that the defendant had been given his Miranda warnings, had knowingly waived his right to the presence of any attorney, and had voluntarily confessed; and the court then denied the motion to suppress. Defendant then entered a plea of guilty to the crime of attempted rape in the first degree in full satisfaction of the indictment and promptly appealed from the order denying his motion to suppress the confessions.

Clearly, statements obtained by exploitation of unlawful police conduct or detention must be suppressed, for their use in evidence under such circumstance violates the Fourth Amendment (Dunaway v New York, 47 USLW 4635). It is therefore "incumbent upon the suppression court to permit an inquiry into the propriety of the police conduct” (People v Wise, 46 NY2d 321, 329). Unless the People establish that the police had probable cause to arrest or detain a suspect, and unless the defendant is accorded an opportunity to delve fully into the circumstances attendant upon his arrest or detention, his motion to suppress should be granted (People v Wise, supra).

In the instant case the People made a mere prima facie showing of probable cause to arrest the defendant but the court erred by unduly restricting the defendant’s opportunity to test the validity of the People’s case through the medium of cross-examination. This error made the denial of the suppression motion improper and, accordingly, the defendant is entitled to the relief requested, namely, a remittal of the case for a new hearing confined to the issue of whether, under all the attendant circumstances, the police had sufficient probable cause to arrest the defendant. This will enable the parties to explore the issue which the court aborted during the hearing. In order to accord both parties the opportunity to litigate the issue fully the defendant’s plea must be vacated, the order denying the motion to suppress vacated, and the motion restored to pending status in order that the issue of legality of the arrest and detention can be fully explored (cf. People v Singer, 44 NY2d 241, 255).

Accordingly, the order of the Appellate Division should be reversed, the plea of guilty vacated, and the case remitted to the County Court of Onondaga County for further proceedings in accordance with this memorandum.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order reversed, etc.

       Of course, if the causal connection between the illegal arrest and the statements is broken sufficiently to purge the primary taint of the illegal arrest, the statements are admissible notwithstanding the presence of unlawful police conduct (Dunaway v New York, 47 USLW 4635, 4640, supra; Brown v Illinois, 422 US 590; Wong Sun v United States, 371 US 471). However, under the facts and circumstances of this case no claim of attenuation appears to be credible.


author: Jones, J.

text:
    The People of the State of New York, Appellant, v Nathaniel Marner, Respondent.
    Argued June 8, 1979;
    decided July 9, 1979
    APPEARANCES OF COUNSEL

      Eugene Gold, District Attorney (Peter Weinstein of counsel), for appellant.

      Leon R. Port for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed.

At 4:30 a.m. on January 29, 1976 and shortly before the defendant was arrested, two police officers observed that a portion of the storefront at 510 Fulton Street in Brooklyn, occupied by the J. W. Mays Department Stores, had been shattered and that property was scattered and had been removed from the premises. At this hour the area is deserted, but is an area which has experienced a number of store burglaries. The officers secured the premises, notified the store’s representative of the burglary, and when he arrived they resumed their patrol duties. They then observed an unmarked closed van (the only vehicle on the street) turning left onto Fulton Street some 200 feet from the scene of the prior burglary. The vehicle halted momentarily, and the officers saw an unidentified man suddenly appear and hurriedly enter the front of the van as a passenger. The van continued along, traveling a route that put it near the place where the police had first spotted it.

At this point the police stopped the vehicle and the driver, the defendant herein, exited from it. He appeared nervous and excited, and when asked for his license, which he produced together with a rental receipt for the van, he stated he was on his way to Red Hook which, as found by the hearing court, was in the opposite direction from that which the vehicle was traveling. The police officer, noting that the defendant was agitated, asked him, "what was in the truck?” Defendant replied, "No, nothing. You can’t see in there”. At this point the van’s other known occupant was observed fleeing on foot. The defendant driver was handcuffed and the rear of the van was opened over the resistance of two males who were found inside. Also found in the van were burglar’s tools and the proceeds of the burglary at the nearby establishment. In these circumstances, the initial stop by the police was permissible; and the actions of the van’s driver and the fleeing passenger together with the knowledge that a burglary had only recently been committed in the area gave the police reason to suspect that the van’s occupants had been engaged in conduct in violation of the law (see, e.g., People v Hutchinson, 47 NY2d 823; People v Sobotker, 43 NY2d 559, 563; People v Ingle, 36 NY2d 413, 418). The subsequent flight by the passenger when the van was stopped by the officers along with the other background information provided the necessary predicate for the more complete search of the van which uncovered the inculpatory evidence.

Inasmuch as the Appellate Division reversal was on the law (CPL 470.25, subd 2, par [d]), there must be a remittal for a review of the facts (CPL 470.40, subd 2, par [b]). Accordingly, the order of the Appellate Division should be reversed and the matter remitted to that court for review of the facts.

Jones, J.

(dissenting). I cannot agree that there was probable cause justifying the police stop of the moving van at 6:25 a.m. in this case. Accordingly, I would affirm the order of the Appellate Division granting the motion to suppress.

Although the police officers were aware that more than two hours before there had been a storefront robbery in the neighborhood, there was nothing to suggest any relationship between that robbery and the van which defendant was driving. Nor was there any aspect of the appearance of the van or the manner of its operation to arouse reasonable suspicion that it or its occupants might be engaged in criminal activity. The majority appears to predicate its conclusion on the confluence of several circumstances: that the area was one "which has experienced a number of store burglaries”; that the motor vehicle was "an unmarked closed van”; "the only vehicle on the street”, "turning left onto Fulton Street some two hundred feet from the scene of the prior burglary”; that it "halted momentarily”; that the officers observed "an unidentified man suddenly appear and hurriedly enter the front of the van as a passenger”; that "The van continued along, traveling a route that put it near the place where the police had first spotted it” (p 983). I find nothing suspicious in these circumstances, appraised separately or when taken in combination. When asked whether there was "anything suspicious about what they were doing at the time”, Officer Skelly, the only witness to testify at the suppression hearing, answered, "Just that the man appeared suddenly and got in beside the operator”. Skelly added that he had not the faintest idea where the man had come from and knew nothing about him. Surely that "suspicion” did not warrant the stop.

The People do not contend, nor did the suppression court base its determination on a conclusion, that the police stop in this case was warranted under People v Ingle (36 NY2d 413) on the ground that the officers reasonably suspected a violation of the Vehicle and Traffic Law. (Cf. Delaware v Prouse, 440 US 648.) The suppression court explicitly based its denial of the motion to suppress on its application of our holding in People v De Bour (40 NY2d 210). The Appellate Division, however, properly held that the De Bour principles — applicable to the exercise of the common-law right of inquiry of a pedestrian — may not be extended to apply to motor vehicle stops. Nor does the majority now rely on De Bour.

We have only recently been reminded that, with very limited exception, the Fourth Amendment requires that seizure of persons be supported by the long prevailing standards of probable cause and been told that such seizures are not to be judged by a balancing test such as that invoked by the suppression court in this case. (Dunaway v New York, 442 US —, 47 USLW 4635.)

Because it is my opinion that the Appellate Division did not err in concluding that there was no showing of probable cause in this instance, I would affirm the order of that court.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur; Judge Jones dissents and votes to affirm in a separate opinion in which Judge Meyer concurs; Judge Fuchsberg taking no part.

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


text:
    In the Matter of Mario Merola, on Behalf of the People of the State of New York, Appellant, v Howard E. Bell, as a Justice of the Supreme Court of the State of New York, et al., Respondents. In the Matter of New York News, Inc., Appellant, v Howard E. Bell, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Argued June 7, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Alan D. Marrus of counsel), appellant pro se.

      Rudolph W. Giuliani for New York News, Inc., appellant.

      Robert Abrams, Attorney-General (Robert J. Schack and Shirley Adelson Siegel of counsel), for Howard E. Bell, as a Justice of the Supreme Court of the State of New York, respondent.

      Stanley Green for Robert Davis, respondent.
   OPINION OF THE COURT

Memorandum.

The judgments appealed from should be affirmed, with costs, on the opinion of Mr. Justice Joseph P. Sullivan at the Appellate Division, with the additional comments which follow concerning the procedures used by the trial court in this matter.

In this case it appears without doubt that there was a fulfillment of the requirements laid down in Matter of Gannett Co. v De Pasquale (43 NY2d 370, affd 443 US — [July 2, 1979]), where the court held that optimal coverage of an event can be achieved "consonant with constitutional free press guarantees, by affording the media access to transcripts redacted to exclude matters ruled inadmissible during the closed suppression hearing * * * Complete transcripts [may be] made available when the defendant’s interests [are] no longer in jeopardy. The public’s 'right to know’ [is] then compatible with the defendants’ right to a fair trial” (Matter of Gannett Co. v De Pasquale, supra, p 381). In the instant case the court held that if the press desired, the court would supply complete transcripts of the proceedings during the pretrial motions, except for the redacted portions of yet inadmissible admissions of the defendant. It continued by noting that the redacting "has to be done by the District Attorney and defense counsel because the court doesn’t have the time”. Although it was of course perfectly correct for the court to offer to furnish redacted transcripts to the press, it would have been the nondelegable responsibility of the hearing court itself to perform any necessary redaction.

Another matter requiring our comment was the trial court’s decision to stay its proceedings pending the determination of this appeal. We granted a preference for argument of the appeal because the criminal trial remained in abeyance pending the appeal. Despite the expedited nature of the proceedings, the defendant’s trial, which was scheduled to begin on March 20, 1979 has not yet started. Meanwhile he remains incarcerated, as he has been since September 22, 1978, awaiting the outcome of this collateral matter and the trial which must follow. Although we recognize the broad discretion of the trial courts to stay their own proceedings, we caution that the right of a defendant to a speedy trial is important and should not be sacrificed in the name of these collateral appeals. Only in rare situations, not present here, should a court stay trial proceedings to permit a challenge to rulings permitting the press and public to have redacted transcripts of pretrial suppression proceedings.

Chief Judge Cooke, and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Judgments affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Allen Howard, Respondent.
    Argued June 7, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Donna Krone of counsel), for appellant.

      Bernard V. Kleinman for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion of Presiding Justice Francis T. Murphy, Jr., at the Appellate Division (62 AD2d 179), with one caveat. In this case the statements of Detective Capers which precipitated defendant’s incriminating response dealt expressly with subject matter directly related to the criminal offense with which defendant was charged. We do not determine what would have been the disposition had this not been so.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Fuchsberg, J., taking no part.


text:
    Jordan Kret, an Infant, by his Father and Natural Guardian, Arthur Kret, et al., Respondents, v Klara Gergely et al., Defendants, and Brookdale Hospital Medical Center, Appellant.
    Argued June 7, 1979;
    decided July 9, 1979

      APPEARANCES OF COUNSEL

      Frank J. Amabile for appellant.

      Peter Overzat, Charles Kramer and Daniel Kramer for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, on the reasoning of the memorandum at the Appellate Division, to which we add only that to permit a discontinuance without prejudice to be converted into one with prejudice, even after a fact-finding hearing, imports an element of motivation into the infant compromise procedure not contemplated by CPLR 1207 and 1208. Whether the original discontinuance was with or without prejudice, it could not be binding on anyone absent compliance with CPLR 1207 and 1208.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones,

Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Moskos A. Grammatas, Also Known as Moskos A. Grammatus, Respondent, v New York Property Insurance Underwriting Association and the Fair Plan, Appellant.
    Submitted June 18, 1979;
    decided July 9, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Lawyers Mtge. Co. v 330 West 72nd St. Corp., 272 NY 641; Troy v Maddocks, 263 NY 583; Cohen and Karger, Powers of the New York Court of Appeals, § 82, p 351; see, also, Bankers Trust Co. v Kline, 45 NY2d 771; McAlister v Chin Lee Co., 266 NY 603).


text:
    Henry L. Fox Co., Inc., Respondent, v Aberdeen Associates, Inc., Appellant.
    Submitted June 11, 1979;
    decided July 9, 1979
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements (see 22 NYCRR 500.9 [a] [2]; Notice to the Bar, NYLJ, June 15, 1979, p 6, col 2).


text:
    David L. Linfield, Appellant, v Board of Higher Education of the City of New York, Respondent.
    Submitted May 21, 1979;
    decided July 9, 1979
   Motion to vacate the Court of Appeals order of dismissal, dated March 27, 1979, denied. [See 46 NY2d 1074.] Motion for leave to appeal denied.


text:
    Mary A. Mason, Respondent, v Robert C. Mason, Appellant.
    Submitted June 4, 1979;
    decided July 9, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 36, subd [c]).


text:
    In the Matter of Fairbank Farms, Inc., et al., Appellants, v Thaddeus Kasza, as Coordinator of the Sales Tax Bureau of the Department of Taxation and Finance, et al., Respondents.
    Submitted June 18, 1979;
    decided July 9, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of the Claim of Therese Ver Streate, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Submitted May 29, 1979;
    decided July 9, 1979
   Motion for leave to appeal denied. On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie.


text:
    The People of the State of New York ex rel. Michael Boothe, Appellant, v David R. Harris, as Superintendent of Green Haven Correctional Facility, Respondent.
    Submitted May 21, 1979;
    decided July 9, 1979
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground it does not lie. Motion for assignment of counsel, etc., dismissed as academic.


text:
    In the Matter of the Claim of Gary Holck, Appellant, v Town of Hempstead—District No. 2 et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued June 8, 1979;
    decided July 10, 1979.

      APPEARANCES OF COUNSEL

      Mauro A. Contrastano for appellant.

      William L. Weinstock and Peter M. Pryor for respondents.
   OPINION OF THE COURT

Memorandum.

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

Claimant was injured while playing soccer outside his place of employment during a lunch break. His claim for compensation was disallowed by the Workers’ Compensation Board, and the Appellate Division affirmed.

There is no basis for disturbing the board’s decision. Whether claimant’s noontime recreational activity was an incident of employment so as to arise out of and in the course of employment is a question of fact (see, e.g., Matter of Brown v United Servs. for Air, 298 NY 901, affg 273 App Div 932; Matter of Beiring v Niagara Frontier Tr. System, 23 AD2d 611, mot for lv to app den 15 NY2d 485; Matter of Wilson v General Motors Corp., 272 App Div 845). It cannot be said on this record that the determination of the board is unsupported by substantial evidence.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order affirmed.


text:
    Gurney, Becker & Bourne, Inc., Respondent, v Benderson Development Company, Inc., Appellant.
    Argued June 8, 1979;
    decided July 10, 1979.
    APPEARANCES OF COUNSEL

      Robert S. Weinstein for appellant.

      Richard F. Griffin, Courtland R. La Vallee and Harry F. Mooney for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

In this action commenced by plaintiff, a licensed real estate broker, for commissions due when a tenant exercised its renewal option, it was error for the trial court to submit this case to the jury as an action based on an account stated. The rule that an account which has been rendered and to which no objection has been made within a reasonable time should be regarded as admitted by the party charged as prima facie correct assumes that there exists some indebtedness owing between the parties or an express agreement between the parties to treat the statement as an account stated although such statement may encompass amounts not yet due if there remain no further obligations to be performed by the party claiming payment. (American Lithographic Co. v Dorrance-Sullivan & Co., 241 NY 306; Jugla v Trouttet, 120 NY 21; Bauer v Ambs, 144 App Div 274; see, generally, 1 NY Jur, Accounts and Accounting, §§ 5-7.)

Here, at the time the letter containing the typewritten notation of “[additional commission due and payable if tenant remains for another five years after 9/30/72” (emphasis supplied) was received, there was no commission due on the renewal option, inasmuch as the option had not yet been exercised. Since an account stated cannot be made the instrument to create liability when none exists and since defendant had not expressly agreed to treat this letter as an account stated with respect to the commission contingent upon renewal, the trial court erred in submitting this case to the jury on an account stated theory.

This is not to say that the jury could not find upon the evidence presented that defendant was required to pay a commission on the renewal term on the theory of implied contract. However, inasmuch as this case was submitted to the jury on both implied contract and account stated theories and a general verdict was returned, it is impossible to determine whether the erroneous charge predicated on an account stated theory was the basis of the verdict. A new trial is, therefore, necessary.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur in memorandum; Judge Fuchs-berg taking no part.

Order reversed, etc.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Warren Mees and Luis Valenzuela, Appellants.
    Argued March 22, 1979;
    decided July 10, 1979.
    APPEARANCES OF COUNSEL

      Anne F. Johnson and Gerald L. Shargel for Luis Valenzuela, appellant.

      Michael A. Corriero for Warren Mees, appellant.

      Robert M. Morgenthau, District Attorney (Norman Barclay and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In the course of the 15-day jury trial of these defendants, which resulted in their convictions of manslaughter in the first degree, the unwarranted, persistent intrusion by the presiding Justice in the proceedings deprived defendants of the fair trial to which they were entitled. Not only did the court ask over 1,300 questions of the witnesses, which constituted more than a third of the total number of questions propounded during the entire trial, he also usurped the authority both of the prosecutor and of defense counsel to determine the content, course and manner of their presentations. His elicitation from expert witnesses of extended elaboration of their testimony, his solicitation of objection by the prosecution to interrogation being pursued by defense counsel, and his extraction from a prosecution witness. during cross-examination of a drawing made on the witness stand on the court’s instruction and then received in evidence as an exhibit of the People, coupled with the nature and extent of questions addressed to alibi witnesses by way of cross-examination which clearly conveyed the Judge’s skepticism as to those witnesses’ credibility, compounded the unfairness that marked the judicial proceeding.

In response to the dissenter’s suggestion that the asserted errors must be placed "in the framework of the weightiness of the evidence” (p 1001), it needs only to be noted that appellant’s claim that the intrusion of the Trial Judge deprived him of his constitutional right to a fair trial is not subject to harmless error analysis (People v Crimmins, 36 NY2d 230, 238).

Because a new trial is required it is appropriate to add that no reversible error was committed in the introduction of evidence that a charge for assaulting the victim was pending against defendant Mees at the time of the homicide. This evidence went to establish motive and intent of Mees, including motive to avoid punishment for the prior crime (People v Morse, 196 NY 306, 310; Richardson Evidence [10th ed], § 171), and the court instructed the jury that it was not to consider the prior charge as indicative of guilt or innocence of that crime.

Fuchsberg, J.

(dissenting). My own examination of the record in this case convinces me that the defendants received a fair trial; that, under the circumstances, the questioning by the court was neither unwarranted nor prejudicial; and that the evidence of defendants’ guilt, based on what for practical purposes was an error-free trial, was overwhelming. Accordingly, I would vote to uphold the order of the Appellate Division, which affirmed the judgment convicting the defendants.

The risk that a Trial Judge’s questions in form or in substance may convey an opinion as to the credibility of witnesses or the merits of issues justifies cautioning against a high degree of judicial intervention (People v Jamison, 47 NY2d 882; People v Moulton, 43 NY2d 944; People v Wilson, 21 Mich App 36; American Bar Association Project on Standards for Criminal Justice, Standards Relating to the Function of the Trial Judge, p 155 et seq.). Nevertheless, a preference for sparing judicial interrogation is not a rule to which there can be no exceptions; other considerations may weigh ip. the balance so that in the end the ultimate test must be substance, not numbers (cf. Chayes, The Role of the Judge in Public Law Litigation, 89 Harvard L Rev, 1281, 1297).

For, the task of presiding over a jury trial can be demanding and, in carrying out this responsibility, the Judge need not be confined to the passive role of an automaton. So, much more than an umpire who merely recites applicable legal principles and makes testimonial rulings, the court "is not without power, to be exercised with judicious restraint * * *, to encourage clarity rather than obscurity in the development of proof’ (People v Moulton, supra, p 945; see, also, People v De Jesus, 42 NY2d 519, 523). To promote a just determination, and to try to avoid a faulty presentation from becoming the basis of a decision other than one on the merits, that role permits — and may at times require — the exertion of judicial authority to suggest particular lines of inquiry for counsel’s consideration, to advise the parties of rights the court believes have been overlooked and, when appropriate, to put questions to witnesses, particularly when the court’s participation is tailored to bolster, not impair, the operation of the adversary system (3 Wigmore, Evidence [Chadbourne rev ed, 1970], § 789, at p 189; 3 Weinstein’s Evidence, par 614 [01], at p 614-3; James & Hazard, Civil Procedure, § 1.2, at p 8; Jones, The Trial Judge — Role Analysis and Profile, in Lowe, Resource Materials for the National Conference on Judicial Selection and Tenure 55, 65 [1974]).

In the present case, the court was confronted by such considerations. If the trial were to continue, if it were not to be a morass, the court could not be merely a spectator. As the trial advanced, it became evident that inexperience on the part of the prosecuting attorney not only was slowing down the pace of the trial but, more crucially, hindering the presentation of relevant expert and lay proof, a serious but hardly unique problem (see Bazelon, The Defective Assistance of Counsel, 42 U Cin L Rev 1, 2; Kaufman, Does the Judge Have a Right to Qualified Counsel? 61 ABAJ 569, 570; Jackson, Training the Trial Lawyer, A Neglected Area of Legal Education, 3 Stan L Rev 48, 51). Convinced that something had to be done to secure a fair and expeditious trial and to avoid any more participation by himself than necessary, the Judge went so far as to suggest (in the absence of the jury) that the People’s attorney write out his questions in advance and that technical assistance be provided by a more experienced colleague in the prosecutor’s office. Only when the situation did not improve did the Judge seek to solve the problem by himself putting questions where there were flagrant voids in the examining process, as, for instance, when there was a failure to bring out elementary data on the identity of available fingerprints found in the stolen motor vehicle in which the victim was shot to death.

The record further indicates that it was not without continued care and reluctance that the Trial Judge intervened. At one point, in a side bar colloquy, he commented to the lawyers that it was "unseemly” for him to have to do so, and, on at least six separate occasions, he took time out to make clear to the jury that proof was no more or less persuasive because it was elicited by the court rather than one of the lawyers. That the court’s questions were pertinent is attested to by a concession fairly made in defendants’ briefs that, had the queries been put by counsel, they would have been unexceptional. Indeed, a sophisticated reading of the record makes evident that defendants’ objection is to the incisiveness and not the prejudice of the court’s questions. In all, the Trial Judge, having been forced to make a judgment between letting the trial drift onto the uncharted shoals of a mistrial, with the accompanying risk of double jeopardy (see People v Michael, 48 NY2d 1), on the one hand, and steering it on a true course, on the other, cannot be faulted for choosing the latter or for refusing to treat it as a "Catch-22” situation in which the court could later be charged with erring no matter how close to the wind it sailed.

In this posture, reversal is not only unfounded, but, in my opinion, cannot help but have an undue and unfortunate effect in inhibiting the discretion which a Judge must possess if the vicissitudes of trial are to be met as and when they arise.

Finally, even if, in this difficult situation, the Judge’s performance had been less than impeccable, a reversal would not be in order. The trial of a case is an art form, little less so for the Judge than for counsel, and in such matters it is naivé to demand perfection. Surely, it is unnecessary here where, inter alia, the fingerprints of both defendants were found in the stolen car in which the victim of the crime was killed resisting the efforts of his killers to abduct him, where the victim’s credit card was found on one of the defendants (presumably a complete stranger to the victim) and in which the other defendant was possessed of a clear motive for the crime (p 998). Needless to say, where error is asserted, it is to be placed in the framework of the weightiness of the evidence (People v Crimmins, 36 NY2d 230, 241; see, generally, Note, The Limits of Judicial Intervention in Criminal Trials and Reversible Error, 11 Ga L Rev 371, 372). So evaluated, it is obvious that by no means were the scales here delicately poised between guilt and innocence. Indeed, it would have made no difference if they had been; despite the substantial length of this trial, no erroneous judicial comment — of fact, of law or of opinion — is to be found in the record.

For these reasons, the judgments of conviction should stand.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones and Wachtler concur in memorandum; Judge Fuchsberg dissents and votes to affirm in a separate opinion.

Orders reversed, etc.

       In every trial, a certain percentage of questions is inevitably posed from the Bench, for example, to clarify the Judge’s own understanding of testimony as it is given, to make answers more responsive, to settle disputes over form among counsel, to aid in directing the mechanics of the trial and in other neutral matters. The court’s participation necessarily varies with the personality of a particular Judge and the complexity of the case, but experience suggests that a not insignificant number of questions during the course of any well-conducted trial are sure to emanate from an alert Judge. Viewed from this perspective, most of the court’s questions fell within the ambit of the court’s neutral "housekeeping” functions so that the actual percentage attributable to the special circumstances hereinafter detailed was relatively small.


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    The People of the State of New York, Respondent, v Elizabeth Teeter, Appellant. The People of the State of New York, Respondent, v Michael Kropman, Appellant.
    Argued May 30, 1979;
    decided July 10, 1979.

      APPEARANCES OF COUNSEL
    Edward J. Nowak, Public Defender (William G. Pixley of counsel), for Elizabeth Teeter, appellant.
    Charles F. Crimi for Michael Kropman, appellant.
    Lawrence T. Kurlander, District Attorney (Melvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

MEMORANDUM.

In People v Schwimmer and People v Villetto (47 NY2d 1004, 1006), decided herewith, we have held, on the reasoning of the opinion of Mr. Justice SAMUEL RABIN in People v Schwimmer (66 AD2d 91), that a defendant may be guilty of criminal conspiracy even though his only coconspirator feigned agreement and, therefore, did not share defendant's criminal intent. That holding requires reversal in the instant case, the Trial Judge having charged the jury that they could not convict one defendant and not the other on the conspiracy charge.

The instruction that the jury could not convict one defendant and not the other on the conspiracy charge was error in light of the present wording of section 105.10 of the Penal Law and the expressed provision in section 105.30 that ~It is no defense to a prosecution for conspiracy that, owing to * * * exemption * * * or to other factors precluding the mental state required * * * one or more of the defendant's co-conspirators could not be guilty of conspiracy". Given a proper charge, the jury could well have found a conspiracy between defendant Teeter and the undercover officer, Cantaben, to which defendant Kropman was not a party. Since his attorney excepted to the charge on that ground there must be a reversal as to him. As to defendant Teeter, however, the charge error is beyond our jurisdiction, her attorney having failed to object.

As to defendant Teeter the order of the Appellate Division affirming her conviction should be affirmed. As to defendant Kropman the separate order of the Appellate Division should be reversed and the matter is remitted to Trial Term for a new trial.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

In People v Teeter: Order affirmed.

In People v Kropman: Order reversed, etc.


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    The People of the State of New York, Respondent, v Leon Schwimmer, Appellant.
    Argued May 30, 1979;
    decided July 10, 1979.

      APPEARANCES OF COUNSEL

      Sanford S. Lurie for appellant.

      Eugene Gold, District Attorney (Lionel René Saporta of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Mr. Justice Rabin (66 AD2d 91) to which we add only that there cannot be any question concerning the intention of the Legislature by section 105.30 of the Penal Law to adopt the unilateral rather than the bilateral approach to conspiracy in light of the analogous statutory provisions contained in article 100 (criminal solicitation), article 110 (attempt), and article 115 (criminal facilitation) as well as article 105 (conspiracy) of the Penal Law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


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    The People of the State of New York, Respondent, v Dennis Villetto, Appellant.
    Argued May 30, 1979;
    decided July 10, 1979

      APPEARANCES OF COUNSEL

      Arthur J. Spring for appellant.

      Carl A. Vergari, District Attorney (Cheryl Koshetz Kosan and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in the opinion of Mr. Justice Rabin in People v Schwimmer (66 AD2d 91) to which we add only that there cannot be any question concerning the intention of the Legislature by section 105.30 of the Penal Law to adopt the unilateral rather than the bilateral approach to conspiracy in light of the analogous statutory provisions contained in article 100 (criminal solicitation), article 110 (attempt), and article 115 (criminal facilitation) as well as article 105 (conspiracy) of the Penal Law.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


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    Vito Camporese et al., Respondents, v Port Authority of New York and New Jersey et al., Defendants and Third-Party Plaintiffs-Appellants. Bentley Painting Co., Inc., Third-Party Defendant-Respondent.
    Submitted June 11, 1979;
    decided July 10, 1979
   Motion to dismiss a portion of the appeal denied.


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    Central Trust Company, Rochester, N. Y., Appellant, v Arthur J. Goldman et al., Respondents.
    Decided July 10, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (Walker v Sears, Roebuck & Co., 36 NY2d 695; Lizza Inds. v Long Is. Light. Co., 36 NY2d 754).


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    Gerald A. Harley, Appellant, v Walter S. Gifford, Jr., et al., Respondents.
    Decided July 10, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]).


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    Morris Hirsch, Appellant, v S. Berger Import & Mfg. Corp. et al., Respondents.
    Submitted June 25, 1979;
    decided July 10, 1979
   Motion to dismiss the appeal from the Appellate Division order and from the judgment entered thereon granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the order and judgment do not finally determine the action within the meaning of the Constitution.


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    Inspiration Enterprises, Inc., et al., Appellants, v Inland Credit Corporation et al., Respondents. (Action No. 1.) Inland Credit Corporation, Respondent, v Edwina Rager, Appellant. (Action No. 2.) Inland Credit Corporation, Respondent, v Inspiration Enterprises, Inc., et al., Respondents.
    Submitted July 2, 1979;
    decided July 10, 1979
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed an order in "Action No. 2”, 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. Motion for a stay dismissed as academic.


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    Nanette La Rosa, Respondent, v Henry F. La Rosa, Appellant. (And Two Other Actions.)
    Submitted May 7, 1979;
    decided July 10, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying defendant’s motion for certain postjudgment relief, 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.


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    Marine Midland Bank-Central, Respondent, v Richard A. Gleason et al., Individually and Doing Business as Gleason, Foulke, Magill and Hewitt, Appellants.
    Submitted June 18, 1979;
    decided July 10, 1979
   Motion by York-Hoover Corporation and Elgin Metal Casket Co., Inc., for permission to present a motion for reargument herein as amici curiae dismissed upon the ground that movants have no standing to seek reargument. [See 47 NY2d 758.]


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    In the Matter of David Bell, Appellant, v Donald Baker, as Sullivan County Treasurer, Respondent, and Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Submitted June 25, 1979;
    decided July 10, 1979
   Motion, considered as one to vacate the Court of Appeals order dated June 7, 1979 transferring the appeal herein to the Appellate Division, denied. [See 47 NY2d 856.]


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    The People of the State of New York, Appellant, v Matthew Salko, Respondent.
    Submitted July 2, 1979;
    decided July 10, 1979
   Motion by defendant-respondent for reargument denied. Motion by defendant-respondent and cross motion by appellant to amend the remittitur granted only to the extent that the opinion herein is amended by adding thereto the following: "In addition to the issues addressed in this opinion, the court considered the other contentions made by defendant-respondent in his brief in support of affirmance and concluded such further contentions were without merit.” [See 47 NY2d 230.]


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    Carlos Rios and Another, Infants, by their Mother and Natural Guardian, Virginia Rios, et al., Appellants-Respondents, v Town of Islip et al., Respondents, and Ricardo P. Hill, Respondent-Appellant.
    Decided July 10, 1979
   Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the grounds that: as to defendant Hill, the order is nonfinal and the modification at the Appellate Division is not one within the meaning of CPLR 5601 (subd [a], par [iii]); and as to defendants Town of Islip and County of Suffolk, in the absence of a substantial constitutional question no appeal lies from the Appellate Division order of unanimous affirmance (CPLR 5601, subd [a]).


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    Maria Spremo, Respondent, v Alfred Spremo, Jr., Appellant.
    Submitted June 18, 1979;
    decided July 10, 1979
   Motion to vacate the Court of Appeals order of dismissal dated May 1, 1979 denied. Motion for poor person relief dismissed as academic. [See 47 NY2d 763.]


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    Ella M. Thrower et al., Respondents, v John J. Smith et al., Appellants, and Isidoro Perez, Respondent.
    Decided July 10, 1979
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute is illusory (see Herbert G. Martin, Inc. v City of Yonkers, 43 NY2d 946; Goldberg v Elkom Co., 36 NY2d 914).