text:
    In the Matter of Genesis of Mount Vernon, N. Y., Inc., Respondent, v Zoning Board of Appeals of the City of Mount Vernon et al., Appellants.
    Argued November 18, 1992;
    decided December 17, 1992

      APPEARANCES OF COUNSEL

      Worby, P. C., White Plains (David E. Worby, Mark P. Weingarten and William E. Dumke of counsel), for appellants.

      Angela G. Garcia, New York City, for respondent.

      Barbara J. Samel, Albany, and A. Kevin Crawford, for New York State Conference of Mayors and Municipal Officials, and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with the following memorandum, and, as so modified, affirmed.

Petitioner, a not-for-profit corporation, proposed to build a congregate housing facility for the elderly, consisting of two units in a two-family house. Each unit would be occupied by six unrelated elderly Mount Vernon residents. The subject property is a vacant lot in a blighted neighborhood. The Mount Vernon Building Department denied petitioner’s application for a building permit on the grounds that (1) the proposed project would be a "boarding house”, a prohibited use under the Mount Vernon Zoning Ordinance, and (2) the planned construction violated certain setback requirements. The Mount Vernon Zoning Board of Appeals rejected petitioner’s argument that the Building Department erred in its classification of the use as a "boarding house”, and likewise denied petitioner’s request for a use variance because petitioner had not shown sufficient hardship.

Supreme Court granted petitioner’s subsequent CPLR article 78 petition and declaratory judgment action by, inter alia, declaring unconstitutional the definitions of "boarding house” and "family” in section 267-2 of the Zoning Ordinance of the City of Mount Vernon. The Appellate Division affirmed for the reasons stated by Supreme Court. We subsequently granted respondents’ motion for leave to appeal.

The courts below correctly held that the Zoning Ordinance’s definition of "boarding house” was unconstitutional. Section 267-2 of the Zoning Ordinance defined the term "boarding house” as follows:

" 'Boarding House’ — a building other than a hotel in which accommodations are offered for [h]ire and/or hired out for the lodging of four (4) or more persons either individually or as families, with separate cooking facilities or with central kitchen or dining room for the preparation and service of meals to said persons.”

To pass constitutional review, a zoning ordinance must be: (1) in furtherance of a legitimate governmental purpose, and (2) reasonably related to effect that purpose (see, McMinn v Town of Oyster Bay, 66 NY2d 544, 549). In this case, the Mount Vernon ordinance serves several legitimate purposes, including reduction of parking and traffic problems, control of population density, and prevention of noise and disturbance (see, Village of Belle Terre v Boraas, 416 US 1).

The means used — the definition of "boarding house” — is not reasonably related to achieve these purposes, however. The definition of "boarding house” includes six elements: (1) there must be a building (2) which is not a hotel (3) which offers accommodations (4) for hire or hired out (5) to four or more persons, individuals or as families, and (6) which either provides separate cooking facilities or a central kitchen or dining room. By its own terms, this definition includes even a family consisting of a father, mother and children in a rented house or apartment. Because the prohibition against a "boarding house” includes a family expressly permitted under the Zoning Ordinance’s definition of "family”, the definition of "boarding house” is overbroad, thereby inviting arbitrary application. Thus, this definition lacks a rational relationship to legitimate goals and is facially unconstitutional (see, McMinn v Town of Oyster Bay, supra, at 549-550).

The issue whether the Zoning Ordinance’s definition of "family” is similarly unconstitutional is not properly before us for decision. As noted above, the Mount Vernon Building Department denied petitioner’s application for a building permit on the ground that the proposed use would be a "boarding house”, and the Zoning Board of Appeals likewise rejected petitioner’s argument that the Building Department erred in its classification of the use as a "boarding house”. Supreme Court granted petitioner’s subsequent article 78 petition and declaratory judgment action by declaring unconstitutional the definitions of both "boarding house” and "family” on their face as well as the term "family” as applied. Respondents, however, never denied petitioner’s building permit application on the basis that the proposed project would not fall under the definition of "family”. Rather, the Building Department and Zoning Board of Appeals made their determinations solely on the ground that petitioner’s project constituted a "boarding house”.

As the United States Supreme Court has stated, "[gjiven the 'essentially ad hoc, factual inquir[y]’ involved * * * we have found it particularly important * * * to adhere to our admonition that 'the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary’ ” (Pennell v San Jose, 485 US 1, 10 [quoting Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264, 294-295]; see also, Socialist Labor Party v Gilligan, 406 US 583, 588; Rescue Army v Municipal Ct, 331 US 549, 568-575, 584). Similarly, in this case neither the Building Department nor the Zoning Board of Appeals have made an actual determination regarding petitioner’s argument that it falls within the Zoning Ordinance’s definition of "family”. Petitioner strenuously argues that it qualifies as a "family”; indeed respondents note that had the Zoning Board of Appeals addressed petitioner’s request in the absence of the "boarding house” definition the project might have been approved. Because respondents did not address this issue, it was premature for Supreme Court to address the constitutionality of the Zoning Ordinance’s definition of "family”. Supreme Court should have sent this case back to respondents to pass on petitioner’s argument.

Accordingly, the order of the Appellate Division should be modified, without costs, by vacating the order and judgment of Supreme Court, except insofar as it declared unconstitutional the definition of "boarding house” in section 267-2 of the Zoning Ordinance of the City of Mount Vernon, and remitting the matter to Supreme Court with directions to remand to respondents for further proceedings in accordance with this opinion, and, as so modified, affirmed.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.

       At the time of the Zoning Board decision, section 267-2 of the Zoning Ordinance defined the term "family” as follows:
      " 'Family’ — One (1) or more persons related by blood, marriage or legal adoption who live together in one (1) dwelling unit and maintain a common household.”
      The definition of "family” was subsequently amended after commencement of this litigation. The new definition is:
      "One (1) or more persons having a common domestic bond who live together in one (1) dwelling unit as a traditional family or its functional equivalent, headed by one (1) or more resident persons who have authority over the care, functioning or management of their common household.”


source: Caselaw Access Project

license: Public Domain

text:
    Oliver Cromwell Owners, Inc., Respondent, v Sylvia K. Bengualid et al., Appellants, et al., Defendant.
    Submitted November 2, 1992;
    decided December 17, 1992
   Motion for renewal and/or reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 80 NY2d 924.]


text:
    The People of the State of New York, Appellant, v John Rivera, Respondent.
    Submitted October 26, 1992;
    decided December 17, 1992
   Motion to dismiss appeal denied.


author: Bellacosa, J.

text:
    Thomas W. Curley, Appellant, v Consolidated Rail Corporation, Respondent and Third-Party Plaintiff-Respondent. Excelsior Truck Leasing Company, Third-Party Defendant-Respondent.
    Argued November 18, 1992;
    decided December 21, 1992

      APPEARANCES OF COUNSEL

      Sable, Gold & Dinhofer, New York City (L. Kevin Sheridan of counsel), for appellant.

      Walker & Bailey, New York City (Lawrence R. Bailey, Jr., and Thomas M. Smith of counsel), for Consolidated Rail Corporation, respondent.

      Foley, Hickey, Gilbert & OReilly, New York City (Terrence P. OReilly of counsel), for Excelsior Truck Leasing Company, respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced an action against his employer Consolidated Rail Corp. (Conrail), pursuant to the Federal Employers’ Liability Act (45 USC § 51 et seq.), to recover damages for injuries sustained while he was driving one of Conrail’s vehicles. After a jury trial, a judgment and verdict was rendered in plaintiff’s favor.

The Appellate Division modified, on the law, vacating the judgment and verdict and dismissing the complaint, on the ground that plaintiff had not satisfied the standard of review applicable to actions brought under the Federal Employers’ Liability Act (FELA), i.e., "whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought” (Rogers v Missouri Pac. R. R. Co., 352 US 500, 506 [1957], reh denied 353 US 943 [1957]; Atchison, Topeka & Santa Fe Ry. Co. v Buell, 480 US 557, 561-562 [1987]).

Plaintiff’s evidence consists primarily of the testimony that the vehicle he was driving at the time of the accident had been frequently complained about and repaired, had been in service longer than the normal life span of these vehicles, and had been driven many thousands of miles. Even under the "low and liberal” standard applicable to FELA cases (Smith v National R. R. Passenger Corp., 856 F2d 467, 469 [2d Cir 1988]), plaintiff's evidence is insufficient as a matter of law, without total speculation (Atchison, Topeka & Santa Fe Ry. Co. v Toops, 281 US 351, 355), to permit the inference that any negligent act or omission on Conrail’s part caused his injuries.

The dissent’s position to the contrary is unpersuasive for several reasons. First, there is nothing in the Appellate Division’s ruling to indicate that it departed from existing law and limited its review of the evidence solely to the plaintiff’s proofs. Second, the additional evidence submitted by defendant Conrail does not support plaintiff’s case. For instance, the testimony of Conrail’s expert, so heavily relied upon by the dissent, refers generally to the effects on police vehicles of their increased use. There is no relationship between that testimony and the car in which plaintiff was injured in particular. Further, the cross-examination testimony of Conrail’s service manager is not supportive of plaintiff’s case. Finally, the dissent’s enumeration of more examples of "possible” negligence on Conrail’s part does not add anything but mere speculation to the proof that Conrail caused plaintiff’s injuries.

Bellacosa, J.

(dissenting). I respectfully dissent and vote to reverse the order of the Appellate Division and reinstate the judgment of Supreme Court, predicated on a jury verdict in favor of the plaintiff for $983,000.

This Federal Employers’ Liability Act (FELA) action to recover for permanently disabling back injuries sustained while plaintiff was employed as a police officer by the defendant Conrail is governed exclusively by well-settled Federal law principles (see, Basham v Pennsylvania R. R. Co., 372 US 699, 700-701, revg 11 NY2d 991, citing Lavender v Kurn, 327 US 645). Additionally, under New York precepts of appellate review, the evidence presented to the fact finder, usually a jury, at trial must be construed in the light most favorable to plaintiff (Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36, 42; see also, Cohen v Hallmark Cards, 45 NY2d 493).

On March 6, 1984, plaintiff was driving a Conrail company car, No. 360, at approximately 40 to 45 m.p.h., when the car came to an abrupt stop, skidded and threw him forward and across the driver’s seat. Car No. 360 was used on a daily basis by plaintiff and two other police officers on their respective duty shifts. In a typical work day, hundreds of miles would be travelled in the car. At the time of plaintiff’s accident, car No. 360 had been driven at least 164,000, and more likely 264,000, miles.

A Ford Motor Company engineer called as an expert witness by defendant Conrail stated on cross-examination that due to the additional abuse and stress placed on police cars, 150,000 miles on such cars would be "harder” miles than those accumulated on ordinarily used cars; also, parts wear out faster than those on nonbusiness used cars with similar mileage. The expert witness also stated that, at the odometer range of car No. 360, parts would be constantly wearing out and breaking; and that if something had broken off and jammed into the gears or the differential, this could cause a car to slow down or stop abruptly. Plaintiff testified that car No. 360 had done just that at the time of the accident.

Defendant Conrail also presented testimony of its service manager, who inspected car No. 360 after the accident. While this witness on direct examination refuted plaintiff’s account of how the accident happened, he acknowledged on cross-examination that he had not inspected either the transmission or the emergency brake cable, and that it was possible that a malfunction in either of these parts could have caused the wheels to lock up, as plaintiff described the happening and cause of the accident.

This testimony, in conjunction with the documentary evidence, which established that car No. 360 needed repairs frequently and was the subject of complaints on numerous occasions by all three of the officers who drove it, supports the inference that car No. 360 was subject to the degree of wear and deterioration attributed by defendant’s expert witnesses to police cars at this odometer range. Plaintiff testified that since it had been assigned to West Haverstraw, the car made several unexplained noises, including "whooshing” and "grinding” sounds, and that each time the vehicle stopped he would hear a "hard clunk”.

One of the officers testified that in 1982, when car No. 360 had approximately 140,000 miles on it, and again in 1983, he experienced the same problem with it that occurred on the date of plaintiff’s accident, i.e., the car would come to an abrupt stop and then not be operational for a few minutes. Plaintiffs co-officer added that he complained to his superiors, both orally and through his daily vehicle report sheets. He also mentioned the trouble to plaintiff and to the third co-officer operator. Most relevantly, this witness complained about the performance of, and trouble with, car No. 360 on March 5,1984, the day before the accident, with respect to the very problem plaintiff described as the happening of the accident.

Conrail required its officers to report any problems with cars to their supervisors. Plaintiffs problems were noted in his daily vehicle reports, as were those of his co-officers. The supervising lieutenant at the time of the accident testified at trial as a witness for Conrail that it was his responsibility to oversee the maintenance of the cars. He admitted that he did not usually look at the daily vehicle reports because it was not "necessary”.

Under traditional appellate review standards, and especially under the strictures governing a FELA jury verdict, courts cannot devalue or disregard substantial portions of testimonial and documentary evidence simply because it was presented by defendant’s witnesses. In any sufficiency of the evidence review situation, appellate courts must consider all the evidence, including that which is presented by or elicited from a defendant (National Bank v Systems Home Improvement, 69 AD2d 557, 562, affd 50 NY2d 814). The Appellate Division in this case alluded to only the evidence presented by the plaintiff and stated that as a matter of law "that evidence” was insufficient (178 AD2d 318, 320). The appellate court evidently failed to consider the evidence adduced on defendant’s case which, ironically, happened to be in considerable aid of plaintiffs case. This failure to reflect adherence to the correct and complete standard of review supports a reversal in this case.

More compelling, still, for reversal is the evident disregard by the reviewing appellate courts of the governing Federal standards as they should be applied to this case. Under Federal law, a FELA case must be sent to the jury — and its verdict must be accorded a unique level of deference — when the plaintiff has presented proof, which may be entirely circumstantial, "from which the jury may with reason” infer that the "negligence of the employer played any part, however small, in the injury or death which is the subject of the suit” (Rogers v Missouri Pac. R. R. Co., 352 US 500, 508 [emphasis added]). That "low and liberal” formula — a filament-thin standard among the slightest known to the law, short of insurer-type strict liability — is the exclusive governing standard (Smith v National R. R. Passenger Corp., 856 F2d 467, 469, quoting Diebold v Moore McCormack Bulk Transp. Lines, 805 F2d 55, 58).

Notably, Atchison, Topeka & Santa Fe Ry. Co. v Toops (281 US 351) does not lend support to the Appellate Division’s reversal of this jury verdict. Examined in the context of the more refined governing principles and precedents, Toops merely stands for the proposition that a jury verdict in a FELA case may not be based entirely on speculation (id., at 354-355). The nuance is that a verdict may involve some speculation when "the evidence is such that fair-minded [individuals] may draw different inferences” (Lavender v Kurn, 327 US 645, 653, supra). Thus, speculation is essentially irrelevant and not dispositive, as long as it does not displace probative facts and permissible inferences drawn from evidentiary facts (Tennant v Peoria & Pekin Union Ry. Co., 321 US 29, 32-33, reh denied 321 US 802). In both Lavender and the instant case, there was circumstantial evidence to support the plaintiff’s theory as to the cause of the injury and the negligence of the employer (see, Lavender v Kurn, 327 US 645, supra). They thus differ materially from Toops, where there was no proof of any kind and only speculation.

In the instant case, plaintiff offered, as a layperson driver, direct evidence of what happened. On this base, complemented by defendant’s significant additional expert and documentary proof and plaintiff’s evidence of frequent repairs and complaints, plaintiff built the inference that the employer was negligent. The employer either failed to seek or locate the source of the problem with car No. 360, or neglected to take car No. 360 out of service when the employee-drivers’ complaints could not be rectified. Under the slim minimum requirements of Federal law, the jury is also allowed to infer negligence solely from the failure of the employer’s supervisor to review the daily vehicle reports in which operator-employees had documented the persistent problems with car No. 360 —the very types of things that happened in the pertinent accident. The fact that these inferences of negligence may, as the majority accentuates, include some degree of speculation, should not be fatal to plaintiff’s case, because the inferences are in significant part supported by the whole of the proofs at trial (see, Rogers v Missouri Pacific R. R. Co., 352 US 500, 508, supra). Even under the relatively more demanding review requirements of New York in traditional negligence cases, the evidence in this case was sufficient to sustain the jury’s verdict (see, Cohen v Hallmark Cards, 45 NY2d 493, supra; see also, Noseworthy v City of New York, 298 NY 76, 79).

Significantly, Basham v Pennsylvania R. R. Co. (372 US 699, revg 11 NY2d 991, supra) points to reversal and reinstatement of the jury verdict in the instant case, the very result decreed by the United States Supreme Court in that case. There, the employee was injured when a platform on which he was lying moved, causing him to drop a 100-pound wheel spring onto his left index finger, which was later amputated. Defendant argued that it was impossible for the injury to have occurred as that employee alleged. The employee countered by introducing evidence of prior complaints in similar, relevant work-related situations. The United States Supreme Court found that the resolution of the conflicting testimony was the province of the jury and reversed our Court for having "invaded the function and province of the jury [by] setting the verdict aside” (Basham v Pennsylvania R. R. Co., 372 US 699, 701, revg 11 NY2d 991, supra). At the very least, the persistent prior complaints involving car No. 360, including one the day before the accident at issue, provide, in my view, greater and weightier evidence to support a jury verdict than was present in Basham.

Since a jury verdict in a FELA case may be overturned only "when there is a complete absence of probative facts to support” the verdict (Lavender v Kurn, 327 US 645, 653, supra; see also, Tennant v Peoria & Pekin Union Ry. Co., 321 US 29, 35, reh denied 321 US 802, supra; Basham v Pennsylvania R. R. Co., supra), no justification is presented for the appellate courts of this State again to invade and overturn the jury’s correct resolution of this case. Finally, in noting that so little is required to sustain a FELA verdict, I am puzzled as to how the Court can justify the result on this record. Therefore, I vote to reverse and reinstate the judgment in plaintiffs favor based on the jury verdict after a trial thoroughly fought out by both sides.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Christopher Lyons, Appellant.
    Argued November 19, 1992;
    decided December 21, 1992
    APPEARANCES OF COUNSEL

      Andrew H. Freifeld, New York City, Barry D. Leiwant, Ronald J. Tabak and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Andrew J. Barovick, Tammy J. Smiley and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested in a "buy and bust” street narcotics exchange involving a transactional undercover police officer, backup officers and a designated "arresting officer”. The perpetrator was convicted of a criminal drug sale in the third degree. At trial, defense counsel requested a missing witness instruction to the jury because the designated "arresting officer” was not called to testify by the People.

The Appellate Division correctly concluded that, under the rationale of People v Gonzalez (68 NY2d 424), defendant did not qualify for the sought-after instruction and that it was properly rejected by the trial court. The designated "arresting officer”, who recorded the undercover officer’s radio description of defendant and "who was a few blocks away from the location of the drug sale, was not in a position to have knowledge of material issues or to have observed anything that would make his testimony relevant to any material issue in the case” (178 AD2d 492, 493; see, People v Gonzalez, supra, at 427).

The defendant-appellant also claims that the trial court erred in not allowing defense counsel to cross-examine the backup police officers concerning some identification details transmitted by radio between the team of officers. Appellant does not claim that the trial court erred in sustaining the People’s hearsay objection, but instead, on appeal for the first time, suggests an alternative limited justification for allowing the line of inquiry trial defense counsel wished to pursue (see, People v Huertas, 75 NY2d 487, 492). Inasmuch as that theory was not expressed to the trial court, the issue is not preserved for our review.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    Rebecca DiPalma, Appellant, v Gerald D. Phelan, Individually and as Chief of Police of the Town of Greece, et al., Respondents.
    Argued November 17, 1992;
    decided December 22, 1992

      APPEARANCES OF COUNSEL

      Culley, Marks, Tanenbaum, Reifsteck, Potter & Capell, Rochester (Glenn E. Pezzulo and Elizabeth D. Taffe of counsel), for appellant.

      Harter, Secrest & Emery, Rochester (Bruce E. Hansen and Carol L. O’Keefe of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this tort action for damages claiming, among other things, that her right to privacy under the Federal Constitution had been violated when, acting under color of law, defendant Phelan, the Town Chief of Police, disclosed the contents of a supporting deposition that she had signed in connection with her allegations that her father, a Town employee, had sexually abused her when she was less than 18 years old (see, 42 USC § 1983). Plaintiff alleged in the present action that she had given the police the information in the supporting deposition only after she was assured that her name and address would not be disclosed to anyone not involved in the criminal investigation. Nonetheless, defendant Phelan had given an unredacted version of the supporting deposition to the Town Board, which had requested the document and reviewed it in executive session in order to assess what disciplinary action, if any, should be taken against plaintiff’s father in his capacity as a Town employee.

On this appeal from the Appellate Division order dismissing the remaining cause of action in the complaint, plaintiff has limited her argument to the contention that the courts below erred in dismissing her claim based on 42 USC § 1983. In order to state a claim under that statute, the plaintiff must allege, at a minimum, conduct by a person acting under color of law which deprived the injured party of a right, privilege or immunity guaranteed by the Constitution or the laws of the United States (Parratt v Taylor, 451 US 527, 535). That burden was not satisfied in plaintiff’s case, since no Federally protected right was clearly established.

Although some lower Federal court decisions have recognized a constitutionally secured privacy right which prohibits government officials from gratuitously disclosing information of a highly private or intimate character (Doe v Borough of Barrington, 729 F Supp 376; Woods v White, 689 F Supp 874; Carter v Broadlawns Med. Ctr., 667 F Supp 1269, judgment amended 672 F Supp 1149, mod and remanded 857 F2d 448, cert denied 489 US 1096), those decisions all involved situations in which disclosure served no legitimate governmental interest. Those cases have no application here, where the disclosure of plaintiff’s supporting deposition was made in furtherance of the Town’s legitimate governmental interest in assessing the fitness of one of its employees. Accordingly, plaintiff’s 42 USC § 1983 cause of action was correctly dismissed.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    Continental Casualty Company et al., Appellants, v Rapid-American Corporation et al., Respondents.
    Submitted December 7, 1992;
    decided December 22, 1992
   Motion to strike the brief, etc., of defendant National Union Fire Insurance Company of Pittsburgh, Pennsylvania, denied. Cross motion to dismiss plaintiffs’ appeal and for the imposition of sanctions denied.

Judge Smith taking no part.


text:
    Thomas Dawe et al., Respondents, v New York State Electric and Gas Corporation et al., Appellants.
    Submitted November 2, 1992;
    decided December 22, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that portion of Supreme Court’s order which denied motions to set aside the verdict and reduce the jury award, dismissed upon the ground that that portion of the 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 order as affirmed that portion of Supreme Court’s order which granted the motion to reduce the workers’ compensation lien, dismissed upon the ground that as to that portion of the Appellate Division order, defendants are not parties aggrieved (CPLR 5511). Motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


text:
    H.J.S. Jr. Restaurant, Inc., Formerly Known as Once Upon A Stove, Inc., Appellant, v Mario Verini et al., Doing Business as Verini Maloney and Gottlieb, Respondents.
    Submitted November 9, 1992;
    decided December 22, 1992
   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:
    The People of the State of New York, Appellant, v Abraham Rivera, Respondent.
    Decided December 22, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Evelyn A. Pommer, Appellant, v Trustco Bank, Formerly Known as Schenectady Trust Company, Individually and as Trustee and Executor of the Estate of Clifford G. Pommer, Deceased, et al., Respondents.
    Submitted November 9, 1992;
    decided December 22, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as pertains to defendant Trustco Bank, dismissed upon the ground that as to that party 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.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Lemuel Lykes, Appellant.
    Argued November 19, 1992;
    decided January 12, 1993

      APPEARANCES OF COUNSEL

      Kristin M. Preve, Buffalo, Barbara J. Davies and Linda S. Reynolds for appellant.

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Roger W. Wilcox, Jr., and John J. DeFranks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of sexual abuse in the first degree and endangering the welfare of a child stemming from the molestation of a five-year-old boy. During deliberations, the Trial Judge received a note from the jury stating, "Legal Terminology about Charges brought against defendant on all three accounts.” Without notifying defendant, defense counsel or the prosecutor, the Judge sent a note to the jury asking:

"Do you wish the legal definition of each crime charged?
"or
"Do you wish the elements repeated?
"or
"Something else?”

The jury responded with a note stating, "We wish the legal definition of each crime charged.” The notes exchanged between the Judge and the jury were then marked as court exhibits and the jury was brought back into the courtroom. In the presence of defendant and counsel, the Judge read the last note into the record and proceeded to charge the jury with respect to the legal definitions of the crimes charged. Defendant took no exception to the charge itself or to the procedure employed by the court.

We agree with the Appellate Division that the clarification sought by the Trial Judge without prior notification to counsel did not constitute reversible error. Under CPL 310.30, upon a jury’s request for reinstruction or information, "the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper.” Section 310.30 does not require notice to defendant in every instance of communication from the jury to the court (see, People v O’Rama, 78 NY2d 270). In People v O’Rama (supra) we held that when an inquiry is received from the jury, "meaningful notice” to counsel must be provided so that defendant’s interests may be advocated in formulating a response (id., at 277-278). In most instances, that requirement is best served by requiring that all written jury requests be read into evidence in the presence of defendant and counsel so that counsel may be afforded an opportunity to participate in the framing of an appropriate response (id.; see also, United States v Ronder, 639 F2d 931). The point of our decision in O’Rama, however, was "not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response” (78 NY2d, at 278, supra).

In the instant case, defendant and counsel were clearly afforded meaningful notice of the jury’s request prior to the time the Judge gave the jury any information or instruction. The Judge’s initial note was simply a request for clarification as to what the jury wanted. It conveyed no information pertaining to the law or facts of the case, and did not limit or channel the jury’s question, explicitly leaving open the possibility that the jury wanted "something else.” It did not purport to be a response contemplated and governed by the statute. Defense counsel had an opportunity to participate after the clarification was received from the jury and before the court gave the reinstruction as to the legal definitions of the crimes charged. We therefore conclude that, in the circumstances presented, the requirements of CPL 310.30 were not violated.

Titone, J.

(dissenting). In People v O’Rama (78 NY2d 270), this Court held that when the jurors request information or supplementary instruction pursuant to CPL 310.30, defense counsel must be given meaningful notice, a term that implies such notification as will afford counsel the opportunity to "participate effectively” and to "adequately protect the defendant’s rights” (see, id., at 277). We also held that the procedure outlined in United States v Ronder (639 F2d 931) should be followed except in "special circumstances” where those procedures might need to be "modified or tailored to ensure the integrity of the deliberative process” (People v O’Rama, supra, at 278 [emphasis supplied]). Thus, although some flexibility was contemplated, our ruling made clear that any modifications to the prescribed procedures must be designed to ensure "maximfum] participation by counsel at a time when counsel’s input is most meaningful” (People v O’Rama, supra, at 278).

In this case, the trial court’s failure to notify defense counsel of the jurors’ inquiry before seeking "clarification” deprived counsel of all opportunity to participate in the formulation of the court’s response. Although the court’s response was a request for "clarification” rather than a formal supplementary instruction, the need for counsel’s advance participation was no less critical. While the court may have felt that its open-ended query covered all of the possible permutations suggested by the jury’s ambiguous question, it is also reasonably likely that counsel, with his unique perspective and intimate knowledge of the defense’s case, could have discerned additional nuances and proposed another way of framing the query to elicit a more tailored juror response.

For example, mindful that his client was charged with offenses involving varying degrees of severity and that the jurors may have been weighing which offenses to use as a basis for conviction, counsel might well have suggested that the jurors also be asked whether they were specifically interested in the differences between the elements of the various charged crimes. Alternatively, counsel might have proposed that the jurors be asked whether there was a particular legal term or crime element that needed further definition. While the trial court undoubtedly has considerable discretion in deciding whether to honor such requests (see generally, People v Malloy, 55 NY2d 296), that fact does not detract from the defendant’s right to have his attorney participate, or at least be afforded the opportunity to participate, in the proceeding (People v O’Rama, supra).

Furthermore, counsel’s exclusion from this aspect of the postsubmissions proceedings was not a trivial or insignificant deprivation of the right to participation by counsel (cf., People v Agosto, 73 NY2d 963). The manner in which a "clarifying” question to the jurors is framed will inevitably affect the terms in which the jurors, who are unschooled in legal idiom, will rephrase their inquiry. Thus, "clarifying” colloquies can have a tangible impact on the critical proceedings that ensue, particularly the focus of the supplementary instructions that are given in response. Accordingly, counsel’s exclusion from these colloquies represents a serious impairment of the defendant’s rights — an impairment that cannot be remedied by affording counsel the opportunity to comment on the substantive instructions that are ultimately given.

Because counsel’s input at this stage of the proceeding could well have a meaningful impact on the remainder of the deliberative process in these circumstances, a judicial decision to seek "clarification” from the jurors without first notifying counsel was an "inherently prejudicial” misuse of the trial court’s discretion (see, People v O’Rama, supra, at 280). Since the majority’s decision to affirm lends unwarranted sanction to this undesirable practice, I must, respectfully, dissent.

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

Order affirmed in a memorandum.


text:
    In the Matter of 43rd Street Second Avenue Corp., on Behalf of Itself and All Others Similarly Situated, Appellant, v City of New York et al., Respondents.
    Submitted January 4, 1993;
    decided January 12, 1993
   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]).

Judge Smith taking no part.


text:
    2550 Olinville Avenue, Inc., et al., Respondents, v Paul A. Crotty, as Commissioner of the City of New York Department of Housing Preservation and Development, et al., Appellants.
    Submitted December 7, 1992;
    decided January 12, 1993
   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 (see, Sontag v Sontag, 66 NY2d 554, 555).


text:
    The People of the State of New York, Appellant, v James Watt, Respondent.
    Argued November 20, 1992;
    decided January 14, 1993

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney of Westchester County, White Plains (Maryanne Luciano and Richard E. Weill of counsel), for appellant.

      Ruberti, Girvin & Ferlazzo, P. C, Albany (Salvatore D. Ferlazzo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and the case remitted to the Appellate Division for consideration of counts 1, 2, 18, 19, 22 and 23 of indictment No. 85-00738 in accordance with this memorandum.

Defendant was convicted of multiple counts of rape, sodomy, and endangering the welfare of child victims. All of the counts were dismissed by the Appellate Division, with leave to the People to resubmit the charges to another Grand Jury. The People’s appeal to this Court is limited by its argument to only the dismissal of defendant’s convictions for four counts of rape and two counts of sodomy committed between August 1, 1984 and December 31, 1984 against N.B.

The indictment fixed the period of the criminal acts as between August 1, 1984 and May 3, 1985. Afterwards, a bill of particulars narrowed the time span to August 1, 1984 through December 31, 1984. The trial court’s instruction to the jury specified the shortened five-month period fixed by the bill of particulars. The Appellate Division ruled that this five-month period was per se so excessive that it precluded the defendant from presenting a defense. A dissenting Justice at the Appellate Division granted leave to appeal to this Court.

As required by statute, an indictment must contain a statement in each count indicating that a charged offense was committed on, or on or about, a designated date or during a designated period of time (CPL 200.50 [6]). When time is not an essential element of an offense, the indictment, as supplemented by a bill of particulars, may allege the time in approximate terms. The indictment must, however, set forth a time interval which reasonably "serves the function of protecting defendant’s constitutional right 'to be informed of the nature and cause of the accusation’ ” (People v Morris, 61 NY2d 290, 294, quoting US Const 6th Amend; see also, NY Const, art I, § 6), so as to enable the defendant to prepare a defense and to use the judgment against further prosecution for the same crime. This Court has held that "[i]t may be that the interval ascribed for a particular crime is so excessive that, on its face, it is unreasonable and dismissal should follow” (People v Morris, 61 NY2d, at 295, supra). However, "[t]he determination of whether sufficient specificity to adequately prepare a defense has been provided to a defendant by the indictment and the bill of particulars must be made on an ad hoc basis by considering all relevant circumstances” (id., at 295).

We have developed a set of criteria to be considered when making the necessary determinations pertinent to this distinct issue in cases in which the per se bar does not apply. The nonexclusive list of factors includes the length of the time span provided by the People and the knowledge the People possess or should acquire with reasonable diligence of the exact or approximate date or dates of the criminal conduct. Additionally, relevant factors include the age and intelligence of the victim and other witnesses; the nature of the offense or offenses, including whether they are likely to be discovered immediately and whether there is a criminal pattern; and all other surrounding circumstances (see, e.g., People v Keindl, 68 NY2d 410, 419; People v Morris, supra, at 295-296). In this case, the five-month period is significantly longer than the three-week period in People v Morris (id.) and is also shorter than the nine-month period in People v Beauchamp (74 NY2d 639). The significantly longer period here is a factor to be considered, with proportionately heightened scrutiny given to whether the People’s inability to provide more precise times can be justified as against the important notice rights of the defendant.

The Appellate Division curtailed its appellate review of the matters subject to this appeal by concluding that five months was a per se unreasonable time span. That incomplete analysis and result should be reexamined and completed, under the circumstances of this case, by remitting to the Appellate Division for its review of the law issue under the pertinent test, criteria and principles, as well as the customary review on such remittals under CPL 470.40 (2) (b).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    In the Matter of Robert A. Altman, Appellant, v John A.K. Bradley, as Justice of the Supreme Court, New York County, et al., Respondents.
    Submitted January 11, 1993;
    decided January 14, 1993
   Motion to dismiss petitioner’s appeal taken as of right granted, and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion by petitioner for leave to appeal denied. Motion by petitioner for a stay dismissed as academic.

Judge Bellacosa taking no part.


text:
    In the Matter of 4M Holding Company, Inc., Appellant, v Town Board of the Town of Islip et al., Respondents.
    Submitted November 23, 1992;
    decided January 14, 1993
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    Seymour Gottlieb, Respondent-Appellant, v Kenneth D. Laub & Company, Inc., Appellant-Respondent.
    Submitted November 16, 1992;
    decided January 14, 1993
   Motion to limit the issues to be raised on defendant’s appeal granted and defendant’s appeal limited solely to the issue of the applicability of the Labor Law.


text:
    Jetro Cash and Carry Enterprises, Inc., Appellant, v State of New York Department of Taxation and Finance et al., Respondents.
    Submitted January 4, 1993;
    decided January 14, 1993
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York Respondent, v Joanne Ripic, Appellant.
    Decided January 14, 1993
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the modification by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification.” (CPL 450.90 [2] [a].)


text:
    Symbol Press, Inc., Appellant, v S & L Properties Associates et al., Respondents, et al., Defendants.
    Submitted November 16, 1992;
    decided January 14, 1993
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [in]).

Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Archie Clarke, Appellant.
    Decided January 19, 1993

      APPEARANCES OF COUNSEL

      George W. Albro, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

A party generally must specify the basis for an objection to preserve a question of law for this Court’s review. In this case defense counsel made only a general objection to the court’s multiple rulings regarding the proposed testimony of a witness. Accordingly, defendant’s present contention that the testimony constituted hearsay and improperly bolstered another prosecution witness’ testimony has not been preserved for our review.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith 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 in a memorandum.


text:
    The People of the State of New York, Respondent, v Sixto Matienzo, Appellant.
    Decided January 19, 1993

      APPEARANCES OF COUNSEL

      Howard A. Pincus, New York City, and Ira Mickenberg for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

While stationed in a hidden observation post on the evening of October 12, 1989, Police Officer Brendan Carney saw defendant standing on a street corner in a high-crime area of Manhattan. As the officer watched, defendant removed a small plastic bag from a brown paper bag and handed it to another man in exchange for money. Carney radioed to Police Officers Shea and Fitzgerald, who were in a patrol car, that there had been a "hand to hand,” and provided a detailed description of defendant. Shea and Fitzgerald responded to the street corner, followed defendant in their car, and instructed him to stop. Defendant quickened his pace and entered a delicatessen. Shea and Fitzgerald followed defendant into the store, where defendant discarded a brown paper bag. While Fitzgerald guarded defendant to prevent his escape, Shea recovered the bag, which contained more than 100 vials of what later proved to be crack cocaine.

Defendant was arrested and indicted on charges of criminal possession of a controlled substance in the third and fourth degrees (Penal Law §§ 220.16, 220.09). Defendant’s motion to suppress the physical evidence was denied and he was later convicted of both charges. A divided Appellate Division affirmed, and the dissenting Justice granted defendant leave to appeal. We affirm.

We need not reach the issue that divided Appellate Division —namely, whether probable cause for defendant’s arrest could be established without calling Carney at the suppression hearing — for the alternative rationale of the motion court, based on findings undisturbed by the Appellate Division, provides a basis for affirmance.

Defendant’s street corner activity gave the police an objective, credible reason to approach him (see, People v De Bour, 40 NY2d 210, 223). In the circumstances presented, defendant’s flight furnished reasonable suspicion that he had committed or was about to commit a crime such that pursuit by the officers was justified (see, People v Martinez, 80 NY2d 444, 448). Defendant’s abandonment of the bag in the delicatessen therefore was not in response to unlawful police conduct, and the vials found therein supplied probable cause for defendant’s arrest.

Defendant’s remaining contentions are without merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith 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 in a memorandum.


text:
    Amiantite, S.p.A., et al., Respondents, v Albert Tawfik et al., Appellants, et al., Defendants.
    Submitted December 28, 1992;
    decided January 19, 1993
   Motion for leave to appeal dismissed upon the ground that the order sought to be appeal from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.

Judge Smith taking no part.


text:
    Gerald A. Harley, Appellant, v State of New York, Respondent.
    Submitted January 11, 1993;
    decided January 19, 1993
   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:
    Frederick Herman et al., Respondents, v Robert J. Reza et al., Appellants, et al., Defendants.
    Submitted January 7, 1993;
    decided January 19, 1993
   On the Court’s own motion, appeal, insofar as taken from that part of the Appellate Division order which denied appellant’s motion for a stay, dismissed, without costs, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the remaining part of the Appellate Division order, dismissed, without costs, upon the ground that no appeal lies from that portion of the Appellate Division order which dismissed the appeal from a decision of Supreme Court. Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which denied defendant movant’s motion for a stay, 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, insofar as it seeks leave to appeal from the remaining part of the Appellate Division order, dismissed upon the ground that no appeal lies from that portion of the Appellate Division order which dismissed the appeal from a decision of Supreme Court. Motion for a stay dismissed as academic.


text:
    In the Matter of Stephen Hernandez et al., Appellants, v City of New York, Respondent.
    Submitted December 14, 1992;
    decided January 19, 1993
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).

Judge Smith taking no part.


text:
    William P. Pahl Equipment Corp. et al., Appellants, v Henry Kassis et al., Respondents, et al., Defendants.
    Submitted December 28, 1992;
    decided January 19, 1993
   Motion for reargument of motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements. [See, 80 NY2d 1005.] Cross motion for the imposition of sanctions denied.

Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Robert Alls, Appellant.
    Decided January 19, 1993
   Reargument ordered and case set down for argument during a session of the Court of Appeals to be fixed after receipt of additional briefing.


text:
    Mary K. O’Connell, Appellant, v Max Jacobs et al., Individually and as Parents and Natural Guardians of Seth Jacobs, an Infant, Defendants, and Seth Jacobs, Respondent.
    Argued January 7, 1993;
    decided February 11, 1993

      APPEARANCES OF COUNSEL

      Dempsey & Dempsey, Buffalo (Helen Kaney Dempsey and James C. Sloan of counsel), for appellant.

      Saperston & Day, P. C., Buffalo (Neil A. Goldberg and Lawrence A. Schulz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. We agree for the reasons stated by the Appellate Division (181 AD2d 1064) that the admissible evidence was insufficient to sustain the verdict.

Concur: Acting Chief Judge Simons and Judges Kaye, Ti-tone, Hancock, Jr., Bellacosa and Smith.


text:
    The People of the State of New York, Respondent, v Larry Brown, Appellant.
    Argued January 12, 1993;
    decided February 11, 1993

      APPEARANCES OF COUNSEL

      Stephen Monick, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Birgit E. Kollmar and Beth J. Thomas of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant’s claim — that the Grand Jury proceeding was defective due to the prosecutor’s reliance on legal instructions given earlier in the day to the same Grand Jury but with respect to different cases — is not preserved for our review. Defendant’s omnibus motion to inspect the Grand Jury minutes did not specify the grounds now claimed and his sole argument to the trial court after inspection was that the prosecutor improperly usurped control of the grand jurors’ decision on what charges to vote.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v William Stepteau, Appellant.
    Argued January 12, 1993;
    decided February 11, 1993

      APPEARANCES OF COUNSEL

      Henry R. Deutsch, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Colin Aldrin Fieman, James M. McGuire and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that defendant was not entitled to an order requiring the Grand Jury to call the prosecution’s witnesses before hearing defendant’s testimony. The Grand Jury is vested with broad investigative powers and discretion in calling witnesses and receiving evidence (see, People v Lancaster, 69 NY2d 20, 25-26). The order in which witnesses are called is a matter for the discretion of the Grand Jury and the supervisory court (see, Matter of Morgenthau v Altman, 58 NY2d 1057, 1059; People v Sexton, 187 NY 495). A defendant has the right to testify and to call witnesses on his own behalf (see, CPL 190.50 [5], [6]) but need only be afforded an opportunity to exercise these rights prior to the Grand Jury’s vote on the indictment (see, People v Evans, 79 NY2d 407).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Napoleon DeRosario, Appellant.
    Argued January 7, 1993;
    decided February 11, 1993

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney of New York County, New York City (Christina Welykyj and Gregory H. Mansfield of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was convicted, after a jury trial, of robbery in the first degree, criminal possession of a controlled substance in the second degree, criminal sale of a controlled substance in the third degree, and criminal possession of a weapon in the second degree. The charges stemmed from a narcotics buy- and-bust operation during which an undercover officer was held at gun point for 10 minutes. The Appellate Division affirmed the conviction. On the appeal to this Court, we reverse and order a new trial.

Several oral colloquies took place between the Trial Justice and the jury during deliberations. These occurred after the court had answered specific written inquiries from the jury with defense counsel’s participation (see, CPL 310.30; People v O’Rama, 78 NY2d 270). The subsequent oral exchanges included substantive discussions regarding reasonable doubt and constructive and actual possession, matters not part of the original written queries from the jury. The manner in which these discussions were conducted did not allow defense counsel, who was present and objected to at least one of the substantive exchanges, to participate in the formulation of the responses.

As a threshold matter, we note that trial counsel for appellant joined in an objection made by counsel for a codefendant, after the colloquy which related to reasonable doubt. The court stated, "we’re just going to go on with that”. The issue now argued in this respect is thus sufficiently preserved for our review. We reject defendant’s contention that no preservation is necessary (see, People v O’Rama, supra, at 279). The situation in this case is clearly distinguishable from O’Rama with respect to preservation. That case arose out of a total deprivation to defense counsel of notice and an opportunity to participate meaningfully in the court’s response to a jury’s written inquiry. Here, defense counsel was present, was given notice, and participated in formulating the responses to the written jury queries. Thus, as to the written jury inquiries, the statute was satisfied. We conclude under these circumstances that traditional preservation rules are required (see, People v Mezon, 80 NY2d 155, 160-161), and that they were satisfied on this record.

On the merits, therefore, CPL 310.30, as interpreted by People v O’Rama (78 NY2d 270, supra), requires that counsel be given meaningful notice of jury inquiries. An important purpose of the statute "is to ensure that counsel has the opportunity to be heard before the response is given” (id., at 277 [emphasis in original]). The failure to give defendant’s counsel that opportunity with respect to the formulation of the trial court’s responses to the preserved, substantively different, "follow up” questions posed by the jury violated CPL 310.30. The notice and opportunity to participate in formulating responses to the initial juror inquiries (i.e., the written notes) cannot validate or substitute for the foreclosure of meaningful participation as to the subsequent oral exchanges. Since the “follow up” questions changed the substantive scope of the initial written inquiries, any input defense counsel had proffered regarding the responses to the initial jury notes did not suffice to satisfy the statute as to the subsequent colloquies.

Additionally, we observe that the colloquies in the instant case do not qualify as mere clarifying inquiries from the court like those in People v Lykes (81 NY2d 767). In Lykes, the jury was not given any substantive information or instructions; here, the jury received additional instructions on crucial, distinct, substantive issues.

While a new trial is thus required as to this appellant, it is worthy of note that his remaining argument, that a Wade hearing was also required, is meritless. As we indicated in People v Polanco (80 NY2d 1012), with respect to appellant’s codefendant, the identification by the undercover officer was merely confirmatory and no hearing was necessary (People v Wharton, 74 NY2d 921).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith taking no part.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, Rudolph Hawthorne, Appellant.
    Submitted August 10, 1992;
    decided February 11, 1993
   Motion for clarification of this Court’s July 7, 1992 memorandum denied. [See, 80 NY2d 873.]

Judge Smith taking no part.


text:
    In the Matter of Edwin C. Waldeck, Appellant, v New York City Employees’ Retirement System et al., Respondents. In the Matter of Alfonse T. Barbaro, Appellant, v New York City Employees’ Retirement System et al., Respondents.
    Argued January 5, 1993;
    decided February 16, 1993

      APPEARANCES OF COUNSEL

      Kirschner & Cohen, P. C, Great Neck (Allen Cohen of counsel), for appellants.

      O. Peter Sherwood, Corporation Counsel of New York City
      (Elaine Rothenberg and Larry A. Sonnenshein of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioners, uniformed sanitation workers, each brought a CPLR article 78 proceeding, in effect, challenging the effective dates of their respective discharges from employment. They argued that their firings were ineffective under section 13-173.1 of the Administrative Code of the City of New York, since they had not received notice of their respective firings prior to their intended dates of voluntary resignation, at which time their retirement allowances would have vested. The Appellate Division, First Department, (1) reversed the orders and judgments of the Supreme Court, New York County, granting the petitions, and (2) dismissed the petitions. We granted leave to appeal and now affirm the orders of the Appellate Division.

Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory source. The rationale of the Supreme Court in granting the petitions is that notice must be given to the discharged employee in the manner required to commence the running of the time limit for an appeal under Civil Service Law § 76. We agree with the Appellate Division that that argument is unpersuasive. By its terms, Civil Service Law § 76 deals exclusively with appeals (see, Matter of Simpson v Wolansky, 38 NY2d 391, 393) and has no relevance to the effective date of termination from employment under section 13-173.1 of the Administrative Code. Plainly, the date of effectiveness of a determination is distinct from the date on which a determination becomes final for Statute of Limitations or appeal purposes (Matter of New York Cent. R. R. Co. v Public Serv. Commn., 238 NY 132, 135).

The petitioners’ reliance on the general importance of notice ultimately leads to rejection of their theory. The Legislature requires notice in a multitude of other statutory contexts (see, e.g, CPLR 304, 2303, 5222, 5515; CPL 250.10, 410.20; Domestic Relations Law §§ 111-a, 232; General Obligations Law § 5-903; Vehicle and Traffic Law § 313). But it has not prescribed notice in any State-wide enactment relevant to the situation at issue. Nor does section 13-173.1 of the Administrative Code contain any notice prescription. The persistent legislative habit of including a specific notice requirement when one is intended renders the omission in this important area glaring and fatal to the petitioners-appellants’ central argument (see, People v Nuccio, 78 NY2d 102, 105; McKinney’s Cons Laws of NY, Book 1, Statutes § 74).

We decide only that there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested under section 13-173.1 of the Administrative Code of the City of New York. We have examined the other issues presented and conclude that they lack merit and do not affect the dispositive analysis or result in this case.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

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


text:
    Cheryl Crook et al., Appellants, v E. I. du Pont de Nemours Company et al., Defendants, and National Chemsearch, Division of N.C.H. Corp., et al., Respondents.
    Argued January 13, 1993;
    decided February 16, 1993

      APPEARANCES OF COUNSEL

      Andrew F. Plasse, Fayetteville, for appellants.

      Saperston & Day, P. C, Buffalo (Catherine Habermehl of counsel), for National Chemsearch, Division of N.C.H. Corp., respondent.

      Falk & Siemer, Buffalo (J. Joseph Wilder and Michael P. McClaren of counsel), for Hotsy Corporation, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (181 AD2d 1039).

Concur: Acting Chief Judge Simons and Judges Kaye, Ti-tone, Bellacosa and Smith. Taking no part: Judge Hancock, Jr.


text:
    Empire State Building Company, Respondent, v New York State Department of Taxation and Finance et al., Appellants.
    Submitted November 30, 1992;
    decided February 16, 1993
   Motion by the State defendants, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying their motion for leave to renew, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted. Motion for leave to appeal by the City defendants granted.

Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v Jose R. Martinez, Appellant.
    Argued January 8, 1993;
    decided February 18, 1993

      APPEARANCES OF COUNSEL

      Martin Cirincione, Public Defender of Schenectady County, Schenectady, for appellant.

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

Memorandum.

The order of the Appellate Division should be modified by vacating the conviction for attempted manslaughter in the first degree and remitting to County Court for resentencing for criminal possession of a weapon in the third degree, and otherwise affirmed.

Defendant was indicted for attempted murder in the second degree and criminal possession of a weapon in the third degree. At the close of the evidence, the court notified the parties that in addition to the charges in the indictment, it would instruct the jury on attempted manslaughter in the first degree as a lesser included charge of attempted murder in the second degree. Neither the People nor the defendant requested, or objected to, that charge. Defendant was thereafter acquitted of the attempted murder charge but convicted of attempted manslaughter and criminal possession of a weapon. The conviction was affirmed by the Appellate Division.

It is settled law that attempted manslaughter in the first degree as charged here is a nonexistent crime (People v Campbell, 72 NY2d 602, 606; People v Foster, 19 NY2d 150, 153). Since the crime does not exist in the Penal Law, there could not be evidence to support such a conviction beyond a reasonable doubt, and the conviction must be reversed (see, People v Foster, 19 NY2d, at 153, supra).

We reject the People’s argument that defendant waived this claim by failing to object to the charge, noting that the People raised no objection either. While we will allow a defendant to plead to a nonexistent crime in satisfaction of an indictment charging a crime with a heavier penalty (People v Foster, 19 NY2d, at 153, supra), and we will allow a conviction based on a lesser crime charged by the court that was in fact not a lesser included offense but nonetheless a valid crime (People v Ford, 62 NY2d 275), these situations differ significantly from a jury conviction of a crime not recognized by law. For a conviction, a jury must find the defendant guilty of each element of the crime beyond a reasonable doubt, but could not do so here because an element of attempted manslaughter in the first degree as charged is an unintended result that as a matter of law cannot be attempted (see, People v Campbell, 72 NY2d, at 606, supra). Thus, such a conviction presents error fundamental to "the organization of the court or the mode of proceedings proscribed by law” that cannot be waived (People v Patterson, 39 NY2d 288, 295, affd 432 US 197).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order modified and case remitted to County Court, Schenectady County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


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    North River Insurance Company, Respondent-Appellant, v United National Insurance Company, Appellant-Respondent.
    Argued January 6, 1993;
    decided February 18, 1993

      APPEARANCES OF COUNSEL

      Ayers & Thompson, P. C., New York City (Mark S. Moroknek of counsel), for appellant-respondent.

      Morris, Graham, Stephens & McMorrow, Westbury (William H. Morris of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s cross motion for summary judgment granted, and the complaint dismissed.

Summit Hoisting, a subcontractor on a construction site, had a worker’s compensation insurance policy with plaintiff North River Insurance Company and a comprehensive general liability policy with defendant United National Insurance Company. An employee who was injured on the job sued the general contractor, which in turn brought a third-party action against Summit. North River defended Summit in the third-party action and ultimately settled directly with the plaintiff employee. Meanwhile, North River sued United for a judgment declaring that United, rather than North River, was obligated to defend and indemnify Summit. The issue is whether coverage for North River’s direct payment to the plaintiff employee — which operated as an indemnification of the general contractor — is excluded by United’s policy.

The policy exclusion relied upon by United reads as follows:

"This insurance does not apply: * * * (j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury”.

That same exclusion was at issue in Insurance Co. v Dayton Tool & Die Works (57 NY2d 489). There we reaffirmed that the first clause of this standard exclusion — "bodily injury to any employee” — did not encompass an employer’s liability in a third-party action because the employer was not directly responsible to the employee (id., at 496 [citing Graphic Arts Mut. Ins. Co. v Bakers Mut. Ins. Co., 45 NY2d 551, 556-558]). Further, we held that the second clause — "any obligation of the insured to indemnify another because of damages arising out of such injury” — did not encompass claims for contribution. When the policies in that case were issued, contribution was not recognized in most States, and thus it could not be said that the word "indemnify” unambiguously included contribution (id., at 498).

This appeal involves the same exclusion as Dayton Tool and the same nondirect liability of the employer. North River argues that the second clause of the exclusion does not ex-elude coverage for the indemnification claim here because the word "indemnification” is ambiguous. That argument must be rejected. The plain terms of the provision expressly cover the liability United seeks to exclude — an "obligation of the insured to indemnify another.” United therefore has no duty to pay and the complaint against it must be dismissed (see also, Commissioners of State Ins. Fund v Insurance Co., 80 NY2d 992 [refusing to construe insurance clause in a way that drains it of meaning]).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Smith taking no part.

On defendant’s appeal, order reversed, with costs, defendant’s cross motion for summary judgment granted and complaint dismissed, in a memorandum. Plaintiffs appeal marked withdrawn.

       In its brief to the Court, North River expressly abandoned its appeal, and sought affirmance of the Appellate Division order. The application made at oral argument to strike the reply brief is denied.


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    In the Matter of Kevin Kehoe, Appellant, v City of New York et al., Respondents.
    Decided February 18,1993

      APPEARANCES OF COUNSEL

      Scheine, Fusco, Brandenstein & Rada, P. C, Commack (Milan Rada and John A. DeMaro of counsel), for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City (Anthony M. Dillof of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s application for accidental disability retirement was properly denied. Accidental disability retirement is available under the New York City Administrative Code when a City employee is injured as a result of " 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees, 57 NY2d 1010, 1012). It is not available for "injuries sustained while performing routine duties but not resulting from unexpected events” (see, Matter of McCambridge v McGuire, 62 NY2d 563, 568). No evidence was presented refuting respondent City’s claim that petitioner’s injuries resulted solely from the performance of his usual duties as a sanitation worker. The Board of Trustees’ acceptance of the Medical Board’s finding that petitioner was injured while performing his usual duties was, therefore, not arbitrary and capricious and the accidental disability retirement was properly denied. Petitioner has made no argument concerning the authority of the Medical Board to determine whether petitioner was injured while performing his usual tasks.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    In the Matter of Apar Realty Corp., Appellant, v Division of Housing and Community Renewal, Respondent.
    Submitted January 19, 1993;
    decided February 18, 1993
   Motion for reargument of motion for leave to appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 80 NY2d 946.]


text:
    In the Matter of James Harrison Cohen, a Disbarred Attorney, Appellant.
    Submitted February 1, 1993;
    decided February 18, 1993
   Appeal, insofar as taken from the Appellate Division order denying reargument, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Douglas Dockendorf, Appellant, v City of Saratoga Springs, Respondent.
    Submitted January 11, 1993;
    decided February 18, 1993
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Town of East Hampton et al., Appellants, et al., Plaintiff, v Mario Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted December 21, 1992;
    decided February 18, 1993
   Appeal, insofar as taken from that portion of the Appellate Division order which dismissed plaintiffs’ appeal from Supreme Court’s March 11, 1992 subpoena order, dismissed, without costs, upon the Court’s own motion, upon the ground that that part of the order appealed from does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed plaintiffs’ appeal from Supreme Court’s March 11, 1992 subpoena order, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    James M. Forshay et al., Appellants, v Star Dairy, Inc., et al., Respondents.
    Submitted December 28, 1992;
    decided February 18, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the order of Supreme Court denying reconsideration, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and disbursements necessary for reproduction of affirmation in opposition only.


text:
    The People of the State of New York, Appellant, v Keith Mitchell, Respondent.
    Decided February 18, 1993
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Lawrence Wilson, Appellant.
    Submitted February 8, 1993;
    decided February 18, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie from the order of a Justice of the Appellate Division entered in this criminal action (CPL 450.90).


text:
    The People of the State of New York, Respondent, v Henry Halm, Appellant.
    Argued January 8, 1993;
    decided February 23, 1993

      APPEARANCES OF COUNSEL

      Henry J. Halm, New York City, appellant pro se.

      James T. Hayden, District Attorney of Chemung County, Elmira, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted on five counts of sodomy in the third degree and three counts of endangering the welfare of a child. The convictions followed testimony by four teenage boys that defendant had shown them pornographic films in his home, masturbated before them, solicited sex from them and engaged two of them in acts of sodomy. He was sentenced by Chemung County Court to five consecutive prison terms of lVs to 4 years.

Defendant has failed to show that remarks by the prosecutor during summation had "a decided tendency to prejudice the jury” (People v Ashwal, 39 NY2d 105, 110). The prosecutor’s reference to defendant’s failure to testify was followed by a curative instruction, and his portrayal of the complainants in the closing statement, when viewed in the context of the entire trial, fell within the latitude afforded to attorneys in advocating their cause (id., at 109, quoting Williams v Brooklyn El. R. R. Co., 126 NY 96, 102). Moreover, the prosecutor’s closing statement must be evaluated in light of the defense summation, which put into issue the complainants’ character and credibility and justified the People’s response.

Similarly, defendant’s claim that community sentiment and religious beliefs were inappropriately considered by the Judge in imposing sentence is not borne out by the record. The sentencing statement, read in context, was unobjectionable (compare, United States v Bakker, 925 F2d 728, 740-741).

Finally, we find no merit to defendant’s contention that the age of consent established by the Legislature is unconstitutional.

Defendant’s other arguments are without merit.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

Order affirmed in a memorandum.


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    Colnaghi, U.S.A., Ltd., et al., Respondents, v Jewelers Protection Services, Ltd., Appellant, et al., Defendant. (And Another Action.)
    Decided February 23, 1993

      APPEARANCES OF COUNSEL

      Conway, Farrell, Curtin & Kelly, P. C., New York City (Jonathan Uejio of counsel), for appellant.

      Mound, Cotton & Wollan, New York City (Renee Plessner of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment dismissing the complaint and the third-party complaint granted, and the certified question answered in the negative.

Jewelers Protection Services, Ltd. (Jewelers), an alarm company, contracted with Colnaghi, U.S.A., Ltd. (Colnaghi), an art gallery, to install, maintain and monitor two burglar alarm systems at Colnaghi’s Manhattan premises. On February 8, 1988, burglars broke into the gallery through an unprotected skylight and stole 20 paintings, including two owned by Umberto Melina that had been consigned to Colnaghi for sale.

Colnaghi and its insurer commenced an action against Jewelers sounding in tort and breach of contract, seeking $10,000,000 in damages. Similarly, in a separate action, Melina sued Colnaghi and Jewelers. Finally, in the latter case, Colnaghi sought contribution against Jewelers in the event it was found liable to Melina.

Jewelers moved for summary judgment dismissing both complaints and Colnaghi’s contribution claim, relying in part on clauses in its subscriber agreement exonerating it from liability for negligence. Supreme Court denied the motions in their entirety, finding an issue of fact on gross negligence that would, in the court’s view, vitiate the contractual exoneration provisions.

The Appellate Division modified by dismissing Melina’s action against Jeweler’s, holding that Jeweler’s had no duty to the consignor. (Melina has not appealed from that determination and it is therefore not before us.) The Appellate Division, however, agreed with Supreme Court that Colnaghi raised a triable issue of fact on gross negligence, inasmuch as the gallery’s alarm expert asserted, in an affidavit, that the alarm company’s failure to provide any protection to the skylight created a "major vulnerability” in the alarm system at a likely burglar entry point, rendering the system "far below professional standards and customary practice in the industry.” (183 AD2d 469, 470.) We reverse and grant Jeweler’s motions for summary judgment.

We note at the outset that, like the parties in Gutter Furs v Jewelers Protection Servs. (79 NY2d 1027), the issue as framed by the litigants is whether there is a triable issue of fact on gross negligence. No argument is presented here that plaintiff’s remedies are limited to breach of contract and that no tort action lies at all (compare, Sommer v Federal Signal Corp., 79 NY2d 540, 550-553).

New York law generally enforces contractual provisions absolving a party from its own negligence (Sommer v Federal Signal Corp., 79 NY2d, at 553, supra; see, Melodee Lane Lingerie Co. v American Dist. Tel. Co., 18 NY2d 57, 69; Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 297-298). Public policy, however, forbids a party’s attempt to escape liability, through a contractual clause, for damages occasioned by "grossly negligent conduct” (Sommer v Federal Signal Corp., 79 NY2d, at 554, supra). Used in this context, "gross negligence” differs in kind, not only degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or "smacks” of intentional wrongdoing (Sommer v Federal Signal Corp., 79 NY2d, at 554, supra).

Colnaghi’s allegations do not meet this standard. The failure to wire a skylight, while perhaps suggestive of negligence or even "gross negligence” as used elsewhere, does not evince the recklessness necessary to abrogate Colnaghi’s agreement to absolve Jeweler’s from negligence claims (see, Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027, 1029, supra [expert’s opinion that alarm company should have installed a second motion detector and a shock sensor, ascertained how inventory was to be arranged and conducted a postoccupancy inspection, taken together, raises no issue of fact on reckless indifference]; compare, Sommer v Federal Signal Corp., 79 NY2d, at 555, supra).

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Smith 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 reversed, etc.


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    The People of the State of New York, Respondent, v Kareem Peterson, Appellant.
    Decided February 23, 1993

      APPEARANCES OF COUNSEL

      Robert S. Dean, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

During defendant’s jury trial for criminal sale of a controlled substance in the third degree, the courtroom, which had been ordered closed for the testimony of an undercover police officer, inadvertently remained closed for defendant’s subsequent testimony. The trial court denied defendant’s application for a mistrial on the grounds that failure to reopen the courtroom resulted from an inadvertent lapse and not from an improper affirmative closure order. The Appellate Division upheld the conviction, concluding that none of the purposes served by the public trial guarantee were offended under the circumstances of this case.

On this appeal, defendant, contending that he was denied the right to a public trial, seeks a new trial based on this claimed reversible error (People v Jones, 47 NY2d 409, cert denied 444 US 946). A denial of the public trial right requires an affirmative act by the trial court excluding persons from the courtroom, which in effect explicitly overcomes the presumption of openness (see, e.g., People v Colon, 71 NY2d 410, cert denied 487 US 1239; People v Glover, 60 NY2d 783, cert denied 466 US 975). The brief and inadvertent continuation of a proper courtroom closing, which was not noticed by any of the participants, did not violate defendant’s right to a public trial.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur.

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


text:
    The People of the State of New York, Respondent, v Earl Coleman, Appellant.
    Argued January 8, 1993;
    decided February 23, 1993
    APPEARANCES OF COUNSEL

      Frances S. Clemente, Monticello, and Carl L. Silverstein for appellant.

      Stephen F. Lungen, District Attorney of Sullivan County, Monticello (Claire Sullivan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to County Court, Sullivan County, for further proceedings in accordance with this memorandum. As to counts one and two of the indictment, there should be a new trial. Defendant’s plea of guilty to count three in satisfaction of counts three and four of the indictment should be vacated and further proceedings had on those counts of the indictment.

Defendant was convicted, following a jury trial, of counts one and two of an indictment, burglary in the second degree and criminal possession of stolen property in the first degree. Following that trial defendant pleaded guilty to count three of the indictment in satisfaction of counts three and four, which had been severed from counts one and two.

Prior to trial defendant moved to suppress physical evidence, a motion which was denied. Before the end of the suppression hearing, defendant, an indigent, requested a free transcript of the suppression hearing, "a fundamental constitutional right” (People v West, 29 NY2d 728, 729; People v Sanders, 31 NY2d 463). Subsequently, in two letters the County Court was informed of the request. No transcript was provided either before the court rendered its decision on the motion to suppress or prior to trial which took place some eight months after the suppression hearing. Forcing the defendant to trial without the transcript was error. Irrespective of the facts here, the better practice, as the Appellate Division concluded, is to put on the record at the suppression hearing that a transcript has been ordered.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    In the Matter of Darryl Butler, Appellant, v Thomas A. Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted January 25, 1993;
    decided February 23, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    Cross Westchester Development Corporation et al., Respondents, v Norman I. Saferstein et al., Appellants.
    Submitted January 25, 1993;
    decided February 23, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs’ motion to vacate that Court’s prior order of dismissal and to enlarge the time to perfect the appeal, 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:
    The People of the State of New York ex rel. Gary G. Becker, on Behalf of Chris Chin, Respondent, v Gerald Mitchell, as Acting Commissioner of the New York City Department of Correction, Appellant. The People of the State of New York ex rel. Ching Chang, Respondent, v Joseph Colon, as Warden of the Manhattan Detention Center, Appellant.
    Submitted November 9, 1992;
    decided February 23, 1993
   Motion for leave to appeal dismissed upon the ground of mootness.

Judge Smith taking no part.


text:
    The People of the State of New York ex rel. Jesus Rosario, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, Respondent.
    Submitted December 21, 1992;
    decided February 23, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Robert Johnson, Appellant.
    Argued January 12, 1993;
    decided February 25, 1993

      APPEARANCES OF COUNSEL

      Irma B. Ascher, New York City, and Philip L. Weinstein for appellant.

      William L. Murphy, District Attorney of Richmond County, Staten Island (Yolanda L. Rudich and Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress the showup identification granted, and a new trial ordered.

On September 28, 1988, at about noon, the complainant, a postman, was approached from behind and robbed of a gold chain and pendant as he delivered mail in the lobby of an apartment building at 240 Park Hill Avenue in Richmond County. The complainant had observed no one in the lobby of the apartment building when he entered. During the robbery the complainant felt a sharp object in his back and heard someone say " 'Don’t move, I am just taking your chain.’ ” The perpetrator fled from the building after taking the chain and the complainant chased him. During the pursuit, the complainant observed that the perpetrator carried a knife in his right hand and looked back on several occasions. After a brief chase, the perpetrator scaled a fence and ran into an adjacent parking lot. The complainant abandoned the pursuit and resumed delivering the mail.

The complainant then reported the incident to a security guard at the apartment building and described the perpetrator to him. Several police officers arrived at the building and drove the complainant around the neighborhood, but after 15 to 20 minutes without finding the perpetrator, the complainant returned to the Stapleton Post Office.

Later that day, the police observed defendant near his home, which was also close to the crime scene. Defendant ran when he saw the police but was soon apprehended. The police brought him to the crime scene. At approximately 2:30 p.m., police officers transported the complainant from the Post Office back to the apartment building. On the way, the police told the complainant that they knew the name of the person who had robbed him, "had a suspect in custody,” and were taking the complainant back to the crime scene "for a positive ID.” The complainant was seated in the rear of an unmarked vehicle when a uniformed police officer escorted defendant, in handcuffs and civilian clothing, out of the apartment building. The complainant identified defendant, whom he had never before seen, as the person who had earlier taken his property.

Defendant moved to suppress the showup identification, arguing that it was "so tainted by suggestible police conduct as to make the ID of the defendant by the victim unreliable,” but the hearing court denied his motion.

The identification was introduced at trial, and the complainant also made an in-court identification of defendant as the perpetrator. Defendant was convicted of robbery in the first degree and resisting arrest. The Appellate Division affirmed the conviction, finding "no error in the hearing court’s refusal to suppress identification testimony based on the showup identification conducted in this case” (176 AD2d 269, 270). The Court reasoned that "[t]he record demonstrates that defendant was detained in close physical and temporal proximity to the crime, the police promptly brought the complainant to the scene to view him, and the showup procedure employed was not unnecessarily suggestive under the circumstances presented” (id., at 270). We now reverse.

Showup identifications "are strongly disfavored but are permissible if exigent circumstances require immediate identification (People v Rivera, 22 NY2d 453), or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately” (People v Riley, 70 NY2d 523, 529). As we noted in People v Duuvon (77 NY2d 541, 544) "prompt showup identifications by witnesses following a defendant’s arrest at or near the crime scene have been generally allowed and have never been categorically or presumptively condemned.” While the limits of an appropriate time period between the alleged crime and a showup identification may vary from case to case, the emphasis must be upon the prompt and immediate nature of an identification after the crime has been committed, not, as the People argue, after the defendant has been arrested. Here, a showup hours after the crime, with both the complainant and the defendant transported to the crime scene, was improper. In those circumstances, an appropriately conducted lineup was required.

Acting Chief Judge Simons and Judges Kaye, Titone, Hancock, Jr., Bellacosa and Smith concur in memorandum.

Order reversed, etc.


text:
    Mercedes Becker, Respondent, v Richard Becker, Appellant.
    Submitted December 21, 1992;
    decided February 25, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s July 5, 1990 order, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Rick Blake, Appellant, v Sol Wachtler, as Former Chief Judge of the New York State Court of Appeals, et al., Respondents.
    Submitted February 16, 1993;
    decided February 25, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the paper appealed from is not a judgment or order from which an appeal to this Court may be taken (CPLR 5512 [a]).

Judge Bellacosa taking no part.


text:
    John Doe, Appellant, v Office of Professional Medical Conduct of the New York State Department of Health, Respondent.
    Submitted February 16, 1993;
    decided February 25, 1993
   Motion for leave to appeal granted. Motion for a stay denied.