text:
    Annabelle Farmelant, Appellant, v City of New York et al., Respondents.
    Submitted February 1, 1993;
    decided February 25, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


source: Caselaw Access Project

license: Public Domain

text:
    Eric C. Jensen et al., Respondents, v General Electric Company et al., Appellants.
    Decided February 25, 1993
   Reargument ordered and case set down for a future session of this Court.

Acting Chief Judge Simons taking no part.


text:
    Louis A. Miller, Respondent, v Dale J. Miller, Appellant.
    Submitted February 22, 1993;
    decided February 25, 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]).


text:
    In the Matter of Richard W. Murphy.
    Decided February 25, 1993
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Richard W. Murphy is suspended, with pay, effective immediately, from his office of Justice of the Shandaken Town Court, Ulster County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    The People of the State of New York, Appellant, v Jay Letts, Respondent.
    Decided February 25, 1993
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v David Liebman, Respondent.
    Decided February 25, 1993
   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 Jeffrey Young, Appellant.
    Submitted February 8, 1993;
    decided February 25, 1993
   Motion to amend remittitur dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 79 NY2d 365.]


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

      APPEARANCES OF COUNSEL

      Terrance J. Hoffmann, Syracuse, for appellant.

      Theodore E. Wiggins, Jr., District Attorney of Livingston County, Geneseo (Melvin Bressler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of criminally negligent homicide (Penal Law § 125.10), among other crimes, for causing the death of a passenger in the motor vehicle he was driving. To find defendant guilty of such crime, the jury must have concluded that he acted with criminal negligence, i.e., he failed to perceive a substantial and unjustifiable risk of such nature and degree that such failure constituted a gross deviation from the standard of care that a reasonable person would have observed in the situation (see, Penal Law § 15.05 [4]).

The evidence in this case, viewed in the light most favorable to the People (see, People v Kennedy, 47 NY2d 196, 203), is that defendant, while legally intoxicated, drove his motor vehicle in the dark of night from a public highway into an unfamiliar farmer’s field, accelerated at times to a speed approximating 50 miles per hour, intermittently operated the vehicle without headlights, and suddenly and forcefully drove through a hedgerow of small trees and shrubs, not knowing what obstacles and dangers lurked on the other side. A rational juror could certainly have found that this conduct grossly deviated from the standard of care a reasonable person would have observed in a similar situation. Accordingly, the conduct was sufficiently blameworthy to sustain defendant’s conviction for criminally negligent homicide (see, People v Boutin, 75 NY2d 692, 695-696).

Defendant was also rightly convicted of vehicular manslaughter in the second degree (Penal Law § 125.12). His contention that he was improperly convicted of that crime because he was not driving on "public highways, private roads open to motor vehicle traffic [or] any other parking lot” (Vehicle and Traffic Law § 1192 [5] [now subd (7)]) at the time of the crime is without merit. Under Penal Law § 125.12, a person is guilty of vehicular manslaughter in the second degree when he commits a crime of criminally negligent homicide and "(2) causes the death of such other person by operation of a vehicle in violation of subdivision two, three or four of section eleven hundred ninety-two of the vehicle and traffic law.” Subdivisions (2), (3) and (4) of section 1192 prohibit driving while intoxicated or while under the influence of drugs. Significantly, the Penal Law does not incorporate subdivision (5) (now subd [7]) of section 1192, which limits the prohibition against driving under the influence to driving on public roads or other public property. With the understanding that penal laws have different purposes than vehicle and traffic laws, we conclude the vehicular manslaughter statute applies to any person causing a death by driving under the influence of alcohol or drugs, regardless of location, even though there could be no separate punishment for such driving under Vehicle and Traffic Law § 1192 where the driving did not occur on public roads or other areas defined in that section. Defendant’s other arguments are lacking in merit.

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 Edward Horonzy, Also Known as Edwin Martinez, Appellant.
    Argued January 7, 1993;
    decided February 23, 1993

      APPEARANCES OF COUNSEL

      Toko Serita, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County (Magda S. Vives, Stanley R. Kaplan and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s only preserved claim on this appeal is that his planned defense was impaired when the People’s identifying witness saw a photograph of defendant during a meeting with police on the morning she was scheduled to testify at trial. The photograph depicted defendant as having a "light beard,” a characteristic that arguably conflicted with the eyewitness’s earlier description of the perpetrator as "clean cut.” However, defense counsel had a full opportunity to question the eyewitness about the discrepancy in her description, and, in fact, counsel took ample advantage of that opportunity. The fact that the police’s actions may have deprived counsel of the added opportunity to catch the witness by surprise with respect to the discrepancy is not the type of prejudice that should lead to reversal.

Notably, defendant was accorded a Wade hearing with regard to an earlier pretrial showup. However, having concluded that that showup was not unduly suggestive, the trial court made no determination as to the existence of an "independent source” for the eyewitness’s in-court identification. In addition, defendant now attempts to link his identification claims by arguing that he was entitled to a new or reopened Wade hearing with respect to the witness’s viewing of the photograph on the morning of the trial prior to testifying. This argument was not raised in the trial court and, consequently, cannot be considered by this Court.

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 Drake Ellis, Appellant.
    Argued February 11, 1993;
    decided March 25, 1993

      APPEARANCES OF COUNSEL

      Beverly Van Ness, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donna Krone and Donald J. Siewert 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’s trial representation was not constitutionally deficient. The evidence revealed that on September 14, 1989, a Woolworth’s store detective observed defendant on the main shopping floor acting "very suspicious.” The detective and a store manager followed defendant to the basement, where he secreted washcloths in his clothing. Defendant then returned to the main floor where he was intercepted by store personnel.

Defendant denied doing anything wrong, and physically and verbally resisted as he was brought to a back room to be searched. As the group reached the room, defendant, who was being restrained, pulled out a knife and cut the detective’s arm. He then fled toward an exit but encountered the manager in his path, whereupon defendant knocked over an eyeglass rack, which struck the manager’s head. Defendant also cut the manager’s hand. Defendant was eventually captured and held for the police, who found 25 washcloths hidden in his clothing.

Defendant was indicted and tried on two counts each of first and second degree robbery and second degree assault. Defense counsel successfully sought dismissal of one of the first degree robbery counts and won acquittals on both assault counts. The jury convicted defendant of the remaining charges and he now appeals from the Appellate Division order affirming the conviction. The sole claim raised here is ineffective assistance of counsel.

Trial practice is as much an art as a science. Trial lawyers bring their own talents, experiences and personality into the courtroom, and given the unique attributes of each case, must devise and execute appropriate strategy. It is therefore impossible to formulate a litmus test for "inadequate” or "ineffective” legal representation (see, People v Baldi, 54 NY2d 137, 146; People v Droz, 39 NY2d 457, 462). "So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the constitutional requirement will have been met” (People v Baldi, 54 NY2d, at 147, supra).

Defendant’s representation satisfied this standard. The defense theory on the robbery charges — implicit in counsel’s cross-examination and explicit in summation — was that defendant committed only a larceny, inasmuch as the force applied assertedly did not "immediately” follow the shoplifting (Penal Law § 160.00 [1]). The factual basis for this strategy was established on cross-examination, where counsel elicited the separation, in time and space, between the larceny in the basement and the later use of force on the first floor. Contrary, to defendant’s current claim, this was a reasonable trial strategy, and indeed, is not much different than the theory defendant now urges should have been adopted. As is evident from the length of its deliberations and the nature of its questions, the jury gave this defense serious consideration. Under the circumstances, we cannot agree with appellate counsel that the strategy adopted by trial counsel was untenable.

Nor can we agree with defendant that trial counsel’s failure to object to several of the supplemental jury instructions constituted ineffective representation. The Appellate Division, exercising its interest of justice powers, concluded that "when considered in full and in context [the instructions] neither misstated the applicable law nor tended, in the end, to confuse or coerce the jury.” (183 AD2d 534, 535.) We cannot say that trial counsel was ineffective for failing to preserve objections to these instructions.

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.

       No challenge is made here to the sufficiency of the evidence.


text:
    In the Matter of Parmod Dhawan, Respondent, v Office of Suffolk County Medical Examiner et al., Appellants.
    Argued February 9, 1993;
    decided March 25, 1993

      APPEARANCES OF COUNSEL

      Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Joyce D. Long and Arlene S. Zwilling of counsel), for appellants.

      Cartier, Hogan, Sullivan, Bernstein & Auerbach, P. C, Patchogue (Kenneth A. Auerbach and Arthur T. McQuillan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division’s inference that the list of eligibles for the position petitioner sought had been exhausted on the critical date is adequately supported by the record. Thus, petitioner was entitled to permanent appointment pursuant to Civil Service Law § 65 (4). Respondent’s contentions concerning the constitutionality of the resettled Appellate Division order directing that petitioner be awarded back pay without reduction for compensation earned in other employment after August 2, 1985 (see, Civil Service Law § 77, as amended by L 1985, ch 851, § 2) cannot be considered on this appeal because they were not raised in opposition to petitioner’s motion for resettlement.

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

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


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Rawline Tejada, Appellant.
    Argued February 10, 1993;
    decided March 25, 1993
    APPEARANCES OF COUNSEL

      Kerry Elgarten, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Jeanne A. Olivo, Phyllis A. Monroe, Norman Barclay and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant-appellant was convicted, after a nonjury trial, of criminal possession of a controlled substance in the third degree, criminal possession of a weapon in the third degree, and criminally using drug paraphernalia in the second degree. The Appellate Division held his appeal to that Court in abeyance subject to a remittal for a hearing on defendant’s motion to suppress evidence, which had been summarily denied for lack of standing. After conducting the hearing, Supreme Court held that defendant had automatic standing to challenge the seizure of the illegal drugs, since that count was rooted solely in the statutory presumption under Penal Law §220.25 (2). As to the remaining counts, however, Supreme Court held that the defendant would have standing only if he established a personal expectation of privacy.

On review of the entire judgment of conviction in that procedural context, the Appellate Division modified the judgment by reversing and dismissing the conviction for criminal possession of a controlled substance. It affirmed as to the remaining counts. The only issue before this Court, on a grant of leave by a Judge of this Court, is whether the defendant should also have been accorded automatic standing to challenge the search and seizure of the weapon and drug paraphernalia. We agree with Supreme Court and the Appellate Division that well-settled principles lead to the conclusion that he should not.

We have held that where a criminal charge is predicated on ordinary constructive possession principles, standing is available only if the defendant "demonstrate^] a personal legitimate expectation of privacy in the searched premises” (People v Wesley, 73 NY2d 351, 357 [emphasis added]; People v Rodriguez, 69 NY2d 159, 162). Defendant makes no claim of a personal expectation of privacy with respect to the apartment where the seizure occurred, which was not his residence. That the weapon and paraphernalia counts were rooted in ordinary constructive possession principles is also not controverted.

Nevertheless, defendant urges this Court extend the automatic standing exception to all situations where a statutorily presumptive possessory count is included among other criminal charges emanating from ordinary constructive possession. Such a change in the rule would extend the narrow exception of People v Millan (69 NY2d 514, 518-519 [1987]) and render the exception the rule (see also, People v Ponder, 54 NY2d 160 [1981]; People v Rodriguez, 69 NY2d 159, supra [1987]; People v Wesley, 73 NY2d 351, supra [1989]).

This Court, over a decade ago, eliminated the automatic standing rule in New York and concluded that " 'it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he * * * establish, that he himself was the victim of an invasion of privacy’ ” (People v Ponder, supra, at 165, quoting Jones v United States, 362 US 257, 261). In People v Rodriguez, after tracing the history of the standing requirement, the Court followed the path of Ponder and held, in circumstances very much like those present here, that the defendant’s presence in an apartment in which he did not reside did not confer standing upon him to challenge the search and seizure in that apartment (People v Rodriguez, 69 NY2d, at 165, supra). Shortly thereafter, we recognized a need and justification for a limited form of automatic standing, but only where the criminal possessory charge is rooted solely in a statutory presumption attributing possession to a defendant (People v Millan, 69 NY2d, at 518-519, supra). Criminal charges arising out of ordinary constructive possession — like those at issue on this appeal — have remained subject to the general rule and to the rationale of People v Wesley (73 NY2d 351, supra), that the "unfairness * * * perceived in Millón is not present in cases where a defendant is charged with constructive possession on the basis of evidence other than the statutory presumption” (id., at 361; see also, People v Rodriguez, 69 NY2d 159, supra).

Appellant’s other arguments are unpreserved.

Hancock, Jr., J.

(dissenting). It is basic that under our State and Federal Constitutions all evidence obtained as a direct result of an unlawful invasion by the State must be suppressed (see, e.g., Wong Sun v United States, 371 US 471, 485; People v Stith, 69 NY2d 313, 317-318). Here, the police concededly entered and searched the apartment illegally and, as a direct result of that illegality, seized drugs, drug paraphernalia and a weapon. The courts below, however — instead of applying the exclusionary rule to all of the illegally obtained evidence — have suppressed only the drugs and have absolved the State from the consequences of the illegal police conduct with respect to the drug paraphernalia and the weapon. The justification offered for the obvious disparity— acknowledged by the Appellate Division to be an "apparent anomaly” (183 AD2d 500, 501) — is found in an unprecedented application of the standing rule, not as a threshold bar to the challenge of the illegality but as a means of shielding the State from what would otherwise be the legal consequences of that illegality: suppression of the evidence by operation of the exclusionary rule. The majority now approves this result. Because I am convinced that this is a misuse of the standing doctrine which results in a deprivation of defendant’s State and Federal constitutional rights and defeats the very purpose of the exclusionary rule, I dissent.

The doctrine of standing in challenges to illegal entries and searches is a judicially created rule "that — recognizing the rights protected by the Fourth Amendment as personal rights —limits invocation of the exclusionary remedy to persons whose own protection has been infringed by the search and seizure” (People v Wesley, 73 NY2d 351, 355 [emphasis added]). Standing is a threshold determination as to "who is, or should be, entitled to enforce the prohibition against unreasonable searches” (id., at 355). In cases where the defendant lacks standing the challenge is dismissed and no determination is made as to the legality of the police conduct (see, e.g., Wesley, supra; People v Ponder, 54 NY2d 160).

The distinction between this case and cases such as Wesley and Ponder, of course, is that here the critical threshold determination has been made that defendant has standing to contest the violation of his constitutional rights — i.e., defendant is a person who has been a victim of the unlawful police conduct and is, therefore, "entitled to enforce the prohibition against unreasonable searches and seizures” (Wesley, supra, at 355). The Appellate Division has held that defendant "had standing to challenge the search, this because the People’s case was dependent upon the so-called 'room presumption’ of Penal Law § 220.25 (2), and that the lawfulness of the search should therefore have been decided on the merits” (People v Tejada, 171 AD2d 585). This determination is not questioned. Indeed, it is the law of this case.

Likewise, it is law of the case that the police entered the apartment in violation of defendant’s constitutional rights to be free from illegal entries and searches. On remand, Supreme Court concluded that "no exigent circumstances existed to justify the police entry” and that "the officers had no legal basis to enter the premises at issue without a warrant”. The Appellate Division’s affirmance on this point is not in issue.

Despite the conclusive holdings that defendant is a person entitled to contest the police conduct and that the police entry infringed his constitutional rights, two of the three items found in open view as a result of that entry may be received in evidence against him. The reason, we are told, lies in a new standing rule — one that makes standing depend not on who is or should be entitled to enforce the prohibition against an unlawful warrantless entry but on what the police find as a consequence of that entry. If the unlawful entry has led to an item covered by a statutory presumption (e.g., Penal Law § 220.25 [2]), the court must suppress it. If the illegally discovered item is not covered by a presumption, the illegality can be ignored.

No logical reason or explanation is or can be offered for what the Appellate Division has understandably characterized as an anomaly. The wrongful conduct by the police is the same, whether it resulted in the discovery of drugs or drug paraphernalia. What defendant has challenged as violative of his constitutional rights is the single act of the police in wrongfully entering the apartment without a warrant. It is not the separate seizures of the various items which are questioned; for all three items were in plain view and could properly have been seized if the entry had been lawful. The illegality of the police entry and the causal connection between that entry and the subsequent seizures are identical.

The only basis offered for applying the exclusionary rule for one item, but not for the others, is the Court’s determination not to unwarrantedly "extend the narrow exception of People v Millan (69 NY2d 514, 518-519)” (majority mem, at 863). The consequence of this concern for confining Millan is the creation of a new standing rule which depends not on a threshold determination of whether the person has been a victim of the unlawful police conduct (see, Jones v United States, 362 US 257, 261), but on a post hoc evaluation of the property the police have illegally discovered. We now have a rule which, in effect, says that the defendant may have "standing for this item, but not for that because one is covered by a presumption and the other is not”. But whether a particular item is covered by a presumption and is, therefore, subject to the exclusionary rule is an extraneous factor having no connection with the extent of the police misconduct or its consequences on the defendant, with the seriousness of the crime charged, or with any of the policies or purposes relevant to the exclusionary rule and its enforcement in a given case. Thus, the significant question of whether a defendant’s constitutional rights under the Fourth Amendment and article I, § 12 of the State Constitution will be protected now depends not on differences material to policy considerations or to the conduct of the police or the defendant, but on legal distinctions which bear no relationship to these matters.

A holding which parses the effect of the exclusionary rule on such legal niceties and thus deprives a defendant of his constitutional rights defeats the purpose of the rule. In People v Bigelow (66 NY2d 417), this Court declined to apply the good-faith exception to the exclusionary adopted by the Supreme Court in United States v Leon (468 US 897). In so doing, we stated that "if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future” (Bigelow, supra, at 427 [emphasis added]).

The unquestioned importance of deterring police misconduct and discouraging "similar lawless acts in the future” (id.) compelled our adherence to the exclusionary rule in Bigelow where the police claimed that they acted lawfully and proceeded in good faith. These same considerations, I believe, cannot but operate more powerfully in a case such as this where the police misconduct is conceded.

The police have violated defendant’s rights in a warrantless entry. Established law and the "fundamental tenets of fairness inherent in New York criminal jurisprudence” (Millan, supra, at 520) mandate the exclusion of all "materials obtained either during or as a direct result of [that] unlawful invasion” (Wong Sun, supra, at 485). By misapplying the standing doctrine to permit the State to employ the fruits of illegal police conduct to prosecute the defendant, the Court today further erodes the effectiveness of the exclusionary rule —a rule that has served as the only meaningful method of controlling police conduct (see, Mapp v Ohio, 367 US 643, 652-653).

Chief Judge Kaye and Judges Simons, Titone and Bellacosa concur; Judge Hancock, Jr., dissents and votes to reverse in an opinion; Judge Smith taking no part.

Order affirmed in a memorandum.


text:
    Greater Poughkeepsie Library District et al., Respondents, v Town of Poughkeepsie, Appellant.
    Submitted January 25, 1993;
    decided March 25, 1993
   Motion to dismiss the appeal denied. Motion by the Town of Poughkeepsie for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    The People of the State of New York, Appellant, v Quentin Hinton, Respondent.
    Decided March 25, 1993
   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]). While the order of the Appellate Division appealed from states that its reversal was based solely "on the law”, this recital is not binding on the Court of Appeals (see, People v Dercole, 52 NY2d 956). The reversal, while termed to be "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    Michelle B. Richardson, Respondent, v Benjamin F. Richardson, Appellant.
    Submitted January 11, 1993;
    decided March 25, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed defendant’s appeal from Supreme Court’s order denying defendant’s motion for reconsideration, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Carl L. Seymour, as Supervisor of the Town of Northumberland, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents.
    Submitted March 8, 1993;
    decided March 25, 1993
   Motion to substitute Edgar A. King for plaintiff-petitioner Carl L. Seymour granted. Motion by Vera M. Wells to intervene denied. [See, 80 NY2d 958.]


text:
    The People of the State of New York, Respondent, v Mitchell Randolph, Appellant.
    Argued February 12, 1993;
    decided March 30, 1993

      APPEARANCES OF COUNSEL

      Lisa M. Ferri, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of manslaughter in the second degree (Penal Law § 125.15) and two weapons charges after he shot and killed a bystander near a fight at a block party. At the conclusion of his trial, the court refused defendant’s request that the jury be instructed on criminally negligent homicide (Penal Law § 125.10) as a lesser included offense. We conclude the ruling was correct.

A person who acts with the recklessness necessary for a conviction on manslaughter in the second degree also acts with criminal negligence (People v Green, 56 NY2d 427, 430; People v Stanfield, 36 NY2d 467, 471). However, the lesser included offense must be charged only if, under any reasonable view of the evidence as seen in the light most favorable to defendant, the jury could find that defendant committed the lesser offense but not the greater (CPL 300.50; People v Green, supra, at 430; People v Glover, 57 NY2d 61, 63; People v Martin, 59 NY2d 704, 705).

The evidence here showed that defendant pulled out a loaded weapon in his possession, aimed it into a crowded area at a fleeing man with whom he had been fighting, and was warned by a companion not to shoot because of the crowd. The gun apparently discharged when defendant’s arm was bumped. Nothing in the evidence presented could reasonably suggest that defendant failed to perceive the substantial and unjustifiable risk.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v James Sibley, Appellant.
    Decided March 30, 1993
    APPEARANCES OF COUNSEL

      Feldman & Feldman, Hauppauge (Steven A. Feldman of counsel), for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified by vacating the sentence of probation under Superior Court Information 3/90 and remitting the case to County Court, Dutchess County, for resentencing and, as so modified, affirmed. The initial sentence of probation under Superior Court Information 3/90 was unauthorized (see, People v Cerilli, 80 NY2d 1016).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Smith.


text:
    In the Matter of Sandy Kransdorf, Respondent, v Board of Education of the Northport-East Northport Union Free School District et al., Appellants.
    Argued February 10, 1993;
    decided March 30, 1993

      APPEARANCES OF COUNSEL

      Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Northport (Warren H. Richmond of counsel), for appellants.

      Eugene M. Kaufman, New Rochelle, for respondent.

      Jay Worona, Albany, and Shari Greenleaf for New York State School Boards Association, amicus curiae.

      James R. Sandner, New York City, James J. Brady, and James D. Bilik for New York State United Teachers, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Respondent Board of Education appointed petitioner to the position of regular substitute mathematics teacher for the school years 1984-1985, 1985-1986 and 1986-1987. In July 1987, the Board appointed petitioner as a part-time (80%) math teacher for the 1987-1988 school year, which began on September 9, 1987. On October 5, 1987, however, the Board named petitioner to a full-time probationary position and made her appointment retroactive to September 14,1987. As a result, petitioner was considered part-time (80%) for a period of four working days — from September 9 to 14, 1987. Petitioner served as a full-time probationary math teacher for the 1987-1988 and 1988-1989 school years.

In June 1989, the Board notified petitioner that her position would be "excessed” under Education Law § 2510 and that she would be terminated because of her relative lack of seniority. The Board calculated her seniority from September 14, 1987, when it retroactively appointed her as a full-time probationary mathematics teacher, giving her no seniority credit for the prior three years as a full-time substitute teacher. Another teacher, however, began working as a full-time substitute in 1985-1986 and, by the end of the 1988-1989 school year, had acquired four years of seniority. If petitioner’s three years of prior regular substitute service had been added to her two years as a full-time probationary teacher, she would have had a total of five years’ experience and more seniority than the other teacher.

Petitioner commenced this CPLR article 78 proceeding, requesting a judgment awarding seniority and tenure credit for her three years as a full-time substitute teacher and reinstating her as a full-time tenured teacher. Supreme Court granted the petition to the extent of remitting the matter to the Board, holding that petitioner’s three years’ full-time substitute service should have been credited toward her seniority and tenure. That court also denied the Board’s motion for reargument. The Appellate Division affirmed unanimously (Matter of Kransdorf v Board of Educ., 181 AD2d 771). This Court granted the Board’s motion for leave to appeal.

The only issue the parties address in this appeal pertains to petitioner’s seniority in the application of Education Law § 2510 which states that "[wjhenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” (Education Law § 2510 [2]). In 1943, the Commissioner held that computation of a probationary teacher’s seniority should include full-time regular substitute service rendered prior to the teacher’s probationary appointment (see, Matter of Ducey, 65 NY St Dept Rep 65). The question on this appeal is whether in computing petitioner’s seniority under Education Law § 2510 (2), she should be credited with the three years of full-time substitute teaching even though those years did not immediately precede her appointment to the probationary position. In answering this question, we give due deference to a recent decision of the Commissioner of Education (see, Matter of Carey, 31 Ed Dept Rep 394) and a regulation of the Commissioner defining seniority (8 NYCRR 30.1 [f]).

In Carey, the question involved the credit to be given to petitioner for her years of service as a full-time substitute teacher prior to her appointment, effective September 1, 1981, to a three-year probationary period as a home economics teacher. Prior to September 1, 1981, petitioner had been employed by the district continuously for six years. For most of this period her status was as a full-time substitute, but there were two interruptions of several months duration when she taught part time, the most recent being the five-month period preceding her probationary appointment. In 1991 the district abolished one of two home economics positions. Because petitioner’s full-time substitute teaching did not immediately precede her appointment she was not given seniority credit for her years of full-time substitute service and was excessed.

The Commissioner reversed the district’s determination. Prior to Carey, we had said that the purpose of Education Law § 2510 "is to provide a mandatory preference in rehiring for those unfortunate school employees who lose their positions through the practice of 'excessing’ ” (Matter of Brewer v Board of Educ., 51 NY2d 855, 857). In Carey, the Commissioner, in interpreting Education Law § 2510, cited Brewer, holding, in effect, that the section’s salutary purpose is furthered by allowing seniority credit for full-time substitute teaching even though interrupted. The Commissioner thus stated:

"Teachers lose their seniority rights when they sever service with the school district (Matter of Ducey, 65 St Dept Rep 65, 68, supra). A teacher whose full-time service is interrupted by part-time service in the same district, however, does not lose the right to claim such prior full-time service for purposes of seniority” (Carey, supra, at 396 [citing Matter of Walsh, 17 Ed Dept Rep 434; Matter of Blanchard, 14 Ed Dept Rep 260]).

The Commissioner cited as additional support for the holding 8 NYCRR 30.1 (f) which, in pertinent part, reads:

"length of service in a designated tenure area, rather than length of service in the district; such service need not have been consecutive but shall during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator” (emphasis added).

Because Education Law § 2510, on its face, requires interpretation and the Commissioner’s interpretation is neither irrational nor unreasonable, it should be accepted (see, Matter of Robins v Blaney, 59 NY2d 393, 397).

We reject the Board’s contention that prior holdings of the Commissioner (e.g., Matter of Crandall, 20 Ed Dept Rep 16; Matter of Ducey, 65 NY St Dept Rep 65, supra) are contrary to our determination or at odds with Matter of Carey. The Board cites no ruling of the Commissioner suggesting that full-time substitute work must come immediately before the full-time probationary appointment. In any event, Carey as well as 8 NYCRR 30.1 (i) plainly state that seniority credit for full-time substitute teaching under Education Law § 2510 (2) need not immediately precede full-time probationary experience.

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

Order affirmed, with costs, in a memorandum.

        Crandall and Ducey merely held that teachers who receive probationary jobs "are entitled to seniority credit for services performed as regular substitute teachers immediately prior to their probationary appointments” (Crandall, supra, at 17). Thus, Crandall and Ducey stand only for the proposition that credit for full-time substitute experience can be given where such experience immediately precedes a probationary position.


text:
    The People of the State of New York, Respondent, v Patricia Smith, Also Known as Vanessa Haywood, Appellant.
    Decided March 30, 1993

      APPEARANCES OF COUNSEL

      Daniel Hsiung, New York City, and Philip L. Weinstein, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to meet her burden of showing a purposeful discrimination by the prosecution in the exercise of two of its peremptory challenges (see, Batson v Kentucky, 476 US 79; People v Jenkins, 75 NY2d 550; People v Bolling, 79 NY2d 317). To give the trial court a basis to evaluate the claim, a party asserting a claim under Batson should articulate and develop all of the grounds supporting the claim, factual and legal, during the colloquy in which the objection is discussed (People v Childress, 81 NY2d 263, 268).

The record is silent in this case as to the race or ethnicity of the excluded jurors. At no point during the Batson colloquy did defense counsel state on the record the race of either juror. We reject appellant’s argument that, regardless of race, "minorities” in general constitute a cognizable racial group.

Finally, defense counsel failed to set forth any facts or circumstances during the Batson colloquy from which the trial court could have inferred a purpose of discrimination. Defendant now argues for the first time that the prosecution’s exclusion of the two jurors, who assertedly could have been expected to favor the prosecution based on their backgrounds, indicates a purpose of discrimination. This claim is not preserved.

Chief Judge Kaye and Judges Simons, 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 Berthel Stewart, Appellant.
    Argued February 11, 1993;
    decided March 30, 1993

      APPEARANCES OF COUNSEL

      Martin Geoffrey Goldberg, Franklin Square, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of criminal possession of a weapon in the second and third degrees and assault in the second and third degrees. The evidence was that the defendant argued with his neighbor about defendant’s dog and then shot his neighbor. The jury disbelieved the defense of alibi.

We conclude that neither issue raised by defendant on this appeal has been preserved for review.

First, during their deliberations the jury asked for a "written list of elements for each charge.” The court declined to give it but offered the jurors the opportunity to take notes on what was said. Four jurors accepted the offer of pencil and paper. Following the completion of the supplementary instructions, the defendant moved for a mistrial both because of the note-taking and because the court permitted the jurors to ask oral questions while it was giving supplementary instructions. However, at the time the court permitted the jurors to take notes, there was no objection and no request for cautionary instructions. In fact, 30 to 40 minutes after the supplemental instructions had been given, the prosecutor requested that the court give cautionary instructions on the taking of notes, but the defendant objected, thereby waiving any claim he might have had regarding the need for cautionary instructions.

Second, during the course of the additional instructions, some jurors orally requested instructions regarding intoxication and intent, spontaneity, and whether or not the submitted counts were linked. In his motion for a mistrial, the defendant’s only objection was that the oral questions did not permit him to preserve the jury’s queries other than through the court reporter’s minutes. On this appeal, defendant now advances the claim that he was denied an opportunity to discuss with the court any supplemental instructions before such instructions were actually given (see, People v ORama, 78 NY2d 270 [indicating that a defendant should be given some opportunity to discuss proposed answers to jurors’ questions]). Thus, this issue, too, was not preserved (see, People v DeRosario, 81 NY2d 801).

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

Order affirmed in a memorandum.


text:
    City of New York et al., Appellants, v Learning Annex, Inc., et al., Respondents. (And a Third-Party Action.)
    Submitted March 22, 1993;
    decided March 30, 1993
   Motion to vacate this Court’s order dismissing plaintiffs’ appeal granted (81 NY2d 880), and plaintiffs’ record on appeal accepted as filed.


text:
    John H. Park et al., Appellants, v Capital Cities Communication, Inc., et al., Defendants, and Kenneth V. Klementowski et al., Respondents.
    Submitted January 19, 1993;
    decided March 30, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that pertains to defendant Buffalo Ophthalmologic Society, Inc., dismissed upon the ground that, as to that defendant, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Appellant, v Leopoldo Gonzalez, Respondent.
    Decided March 30, 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]).

Judge Smith taking no part.


text:
    Frances M. Ruchman, Individually and as Personal Representative on Behalf of Mary E. Lambert, an Alleged Incompetent Person, Appellant, v L. Wolff et al., Respondents. In the Matter of Jeffrey Frerichs, as President of Cabrini Medical Center, Respondent.
    Submitted January 19, 1993;
    decided March 30, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the order of Supreme Court granting defendants’ motion to vacate plaintiffs’ note of issue and the order of Supreme Court granting defendants’ motion to seal the court record, 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:
    In the Matter of Valley Realty Development Co., Inc., Appellant, v Town of Tully et al., Respondents.
    Submitted January 19, 1993;
    decided March 30, 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:
    Melinda Ferrara, Respondent, v Stanley Bernstein et al., Appellants, et al., Defendants.
    Argued February 9, 1993;
    decided April 1, 1993

      APPEARANCES OF COUNSEL

      Bondy & Schloss, New York City (Joseph S. Rosenthal and Carol M. Roberts of counsel), for appellants.

      Leonard L. Finz, P. C., New York City (Leonard L. Finz and Joseph M. Lichtenstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Viewing the evidence most favorably to plaintiff, the following facts supported the jury verdict in her favor. On Saturday, January 9, after paying a cash fee to a nurse at a facility leased to defendant-doctor, plaintiff was shown into an operating room and an abortion performed. The surgeon who actually performed the procedure told her to expect some cramps and, if they become serious, to take Tylenol, but said nothing further. As plaintiff was getting ready to leave the facility, the nurse at the reception desk told her to call for an appointment for a two-week follow-up visit. Plaintiff later made an appointment for Saturday, January 23.

The facility on January 16 received a pathology report suggesting the possibility that plaintiff was still pregnant, but did not inform her of this.

On January 22 or 23, plaintiff called to cancel her appointment, because of predicted bad weather, and rescheduled it for Saturday, January 30. During the week, however, her cramps progressively worsened until on January 29, she was taken to the emergency room of a New Jersey hospital. Feeling intense pelvic pressure, she sat on the toilet, where she delivered a 4 Vi-inch fetus. When she saw the fetus hanging from her, she began screaming until she was taken by wheelchair — with the fetus on her lap — to an examining room. After delivering the placenta, a doctor there held up the fetus and said, "I want you to see that this is a fetus, that it is a baby, that it is not just some tissue passed.”

As a result of the experience, plaintiff claimed she required psychiatric care; suffered posttraumatic depression, nightmares and sleeplessness; became withdrawn; and was reluctant for a substantial period of time to resume intimate relations with men. Plaintiff successfully argued to the jury that the surgeon who performed the abortion at defendant’s facility was negligent in failing to advise her of the pathology report — for which the facility was vicariously liable — and that the facility itself additionally was negligent in failing to secure her prompt return. Plaintiff was ultimately awarded $125,000 in damages — $20,000 for pain and suffering and $105,000 for emotional distress. We now affirm.

Essentially three contentions form the basis of this appeal, all correctly rejected below. Defendants first urge the absence of any causal relation between the alleged negligence and plaintiff’s injuries, insisting that there was no evidence plaintiff would have returned for a second abortion had she been properly notified. Unlike Koehler v Schwartz (48 NY2d 807, affg 67 AD2d 963) — where plaintiff, a cancer patient, testified that she could not have endured a second abortion— here the jury could reasonably have inferred from the facts and circumstances that plaintiff would have undergone a second abortion had she been notified of the suggested failure of the first.

Second, relying on Prado v Catholic Med. Ctr. (145 AD2d 614), defendants insist that pain arising out of pregnancy is not actionable. Whether or not this Court would endorse such a doctrine, it is in any event inapplicable here, where plaintiffs pain emanated not from pregnancy or childbirth but from allegedly negligent abortion services, specifically the failure to notify her of her incomplete abortion and the failure to secure her prompt return to the facility. As the Appellate Division noted, the physical pains she suffered "most emphatically were not naturally associated with the abortion procedure for which she had contracted.” (179 AD2d 79, 84.)

Finally, defendants’ contention that emotional distress damages resulted from simply viewing the fetus, is similarly misplaced. As recognized by the Appellate Division, the claimed injury here was that suffered by plaintiff herself, in having to undergo the miscarriage rather than the procedure she had sought. "Accordingly, this is a malpractice action based on the failure to properly advise plaintiff of her condition which caused both her physical and emotional injuries.” (179 AD2d, at 85.) Indeed, the breach of duty owed directly to plaintiff leading to her emotional distress is plainly compensable under Martinez v Long Is. Jewish Hillside Med. Ctr. (70 NY2d 697, 699).

Defendants’ remaining contentions are without merit.

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

Order affirmed, etc.


author: Smith, J.

text:
    In the Matter of Nakia L., a Person Alleged to be Juvenile Delinquent, Appellant.
    Argued February 17, 1993;
    decided April 1, 1993

      APPEARANCES OF COUNSEL

      Patricia S. Constantikes, New York City, Carol Goldstein and Lenore Gittis for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City (Elizabeth I. Freedman and Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

A delinquency petition was filed against respondent on May 21, 1989, alleging that he committed acts which, if done by an adult, would have constituted attempted robbery and attempted assault. As required by Family Court Act § 340.1 (2), a fact-finding hearing was scheduled to take place within 60 days of his initial appearance. However, on July 18th, respondent requested that the fact-finding hearing be adjourned beyond the 60-day period because his attorney had to see his doctor. The hearing court granted the adjournment request pursuant to Family Court Act § 340.1 (4) after determining that there was "good cause”.

The case was adjourned until August 8, 1989 — 79 days after respondent’s initial appearance. On that day, the presentment agency was unable to locate a complaining witness. After attempting to track the witness down, the agency admitted to the court that it had no explanation for the witness’s absence and asked the court for another adjournment. Despite a finding that the agency had not established "good cause”, the hearing court granted the request and adjourned the matter for two days. On August 10, the complaining witness appeared and the fact-finding hearing was held. The court thereafter adjudicated respondent a juvenile delinquent and placed him with the New York State Division of Youth for 18 months.

Pursuant to Family Court Act § 340.1 (4), the hearing court may, "for good cause shown,” grant an adjournment beyond the original 60-day period for up to 30 days. However, "[successive motions to adjourn a fact-finding hearing shall not be granted in the absence of a showing, on the record, of special circumstances” (Family Ct Act § 340.1 [6]). Respondent contends that, because an adjournment was granted on July 18th, the August 8th request for an adjournment constituted a "successive motion[ ]” requiring "special circumstances” which were lacking in this instance. We agree.

The Appellate Division concluded that good cause for the adjournment granted on August 8th was shown and that there was no need to establish "special circumstances” for the adjournment because the July 18th and August 8th adjournment requests were not made by the same party and therefore were not "successive.” Alternatively, the Appellate Division reasoned that section 340.1 (6)’s requirement of "special circumstances” applies only when 90 days have passed since a respondent’s initial appearance. We find no support in the statute for that interpretation.

The statute states unambiguously that a court may adjourn the fact-finding hearing beyond the 60-day period for up to 30 days for "good cause shown” (Family Ct Act § 340.1 [4]). Any adjournment request made thereafter by either party, i.e., a successive motion, shall be granted only upon a showing of special circumstances. That the successive adjournment requests are not made by the same party or are made within 90 days of a respondent’s initial appearance is irrelevant (see, Sobie, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 340.1, at 437). As we have stated previously, a hearing court must "make findings on the record of good cause for the first 30-day adjournment and of special circumstances for subsequent adjournments” (see, Matter of Randy K., 77 NY2d 398, 403 [emphasis added]; see also, Matter of Aaron J., 80 NY2d 402, 405). Here, the hearing court failed to find special circumstances justifying the subsequent adjournment.

Furthermore, contrary to the dissent’s position, we conclude that there were no special circumstances warranting further adjournment. The requirement of "special circumstances” entails a more exacting standard than that of "good cause” (see, Matter of Frank C., 70 NY2d 408, 414) and notably, the hearing court found that the presentment agency had failed here to meet even the more lenient "good cause” standard. Thus, the agency admitted that it had no explanation for the nonappearance of the complaining witness and the court noted that the witness had failed to appear on previous occasions. Because the statute is concerned with the speedy resolution of charges against juveniles, the fact that the presentment agency was not to blame for the witness’s absence is not a factor for consideration (see, Matter of Frank C., 70 NY2d, at 413-414, supra), and nothing before the hearing court warranted a successive adjournment based upon "special circumstances” (see, Matter of Vincent M., 125 AD2d 60, affd 70 NY2d 793). Thus, the court’s grant of an adjournment on August 8th was improper and the proceeding should be dismissed.

Smith, J.

(dissenting in part). Family Court Act § 340.1 sets forth the time limits applicable to a juvenile delinquency fact-finding hearing. If, as in the case at bar, the respondent is not in detention, "the fact-finding hearing shall commence not more than sixty days after the conclusion of the initial appearance except as provided in subdivision four” (Family Ct Act § 340.1 [2]). Relevant to this case, the hearing for such a respondent may be adjourned on motion of "the presentment agency” or "respondent for good cause shown for not more than thirty days” (Family Ct Act § 340.1 [4] [a], [b]). "Successive motions to adjourn a fact-finding hearing shall not be granted in the absence of a showing, on the record, of special circumstances; such circumstances shall not include calendar congestion or the status of the court’s docket or backlog” (Family Ct Act § 340.1 [6]).

Given these statutory directives, we have properly concluded in this case that "the August 8th request for an adjournment constituted a 'successive motion[ ]’ requiring 'special circumstances’ ” (majority opn, at 901), pursuant to Family Court Act § 340.1 (6). However, because sufficient facts appear on the record to raise the question of special circumstances, I would remand the matter to the Appellate Division for a determination of that issue, allowing the adjudication of juvenile delinquency to remain in the interim. Therefore, I dissent in part.

By the presentment agency’s petition, respondent was charged with the following acts which would be crimes if respondent were an adult: attempted robbery in the first degree (Penal Law §§ 110.00, 160.15 [2]), attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [2] [b]), attempted robbery in the second degree (Penal Law §§ 110.00, 160.10 [1]), attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]), attempted grand larceny in the fourth degree (Penal Law §§ 110.00, 155.30 [5]), and assault in the third degree (Penal Law § 120.00 [l]). At the trial, the complainant testified that she and her husband were accosted in an elevator by two males who demanded their money. One of the perpetrators was armed. She identified respondent as the person who initially had the gun. She further testified that when her husband refused to cooperate, respondent gave the gun to his accomplice and then proceeded to beat the husband. The other perpetrator subsequently struck the complainant in the head with the gun as she attempted to flee. The husband did not testify and the Law Guardian rested without presenting any evidence. The trial court found that the presentment agency had established attempted robbery in the second degree (two counts) and attempted assault in the third degree beyond a reasonable doubt.

Having concluded that the August 8th adjournment was permissible only under special circumstances, the issue becomes whether the unexplained absence of the complainant constituted a special circumstance warranting a brief two-day adjournment. Special circumstances must be determined on a case-by-case basis (Matter of Frank C., 70 NY2d 408, 414). The record indicates that special circumstances may exist.

First, the complainant was the presentment agency’s chief witness. The absence or unavailability of the chief witness in any case, civil or criminal, often occurs and generally a brief adjournment is granted to obtain his or her presence. On August 8th, the presentment agency’s counsel stated that the complainant indicated that she was on her way to court and that others at her home subsequently confirmed that the complainant had departed for court. Given this information, it appears reasonable to grant a two-day adjournment to ascertain what transpired and secure complainant’s presence in court.

Second, this complainant was conversant only in Cantonese and the language barrier may have played some part in her absences. In fact, on one prior occasion, May 24, 1989, complainant’s husband and perhaps the complainant (the record is unclear) appeared in the afternoon. On another occasion, July 18, 1989, the complainant was told by telephone not to appear at court.

Third, since the pending charges were serious, a disposition on the merits was preferable and in the best interests of the respondent and the community. Only a two-day adjournment was at issue.

Based upon the foregoing, consideration of whether special circumstances existed is clearly warranted.

Chief Judge Kaye and Judges Simons, Titone and Hancock, Jr., concur in memorandum; Judge Smith dissents in part in an opinion in which Judge Bellacosa concurs.

Order reversed, etc.

       Section 340.1 (4) provides that "[t]he court may adjourn a fact-finding hearing * * * on motion by the respondent for good cause shown for not more than * * * thirty days if the respondent is not in detention”.

      . Prior to trial, the counts charging attempted robbery in the first degree and attempted assault in the second degree were withdrawn because no weapon was recovered.

      . On this appeal, the granting of the second adjournment on August 8th, not the sufficiency of the evidence, is at issue.


text:
    The People of the State of New York, Appellant, v Leon Whitfield, Respondent.
    Argued February 10, 1993;
    decided April 1, 1993
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Phyllis A. Monroe and Amyjane Rettew of counsel), for appellant.

      Robert Rosenthal, New York City, and Robert S. Dunn for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the motion to suppress denied and the matter remitted to Supreme Court, New York County, for further proceedings on the indictment.

The hearing court erred in finding that defendant had standing to seek suppression of physical evidence seized at the time of arrest.

Defendant was charged with criminal possession of a controlled substance in the third and fourth degrees and criminally using drug paraphernalia in the second degree. The charges arose from the arrest of defendant and a companion at the Port Authority Bus Terminal shortly after 2:00 a.m. on April 23, 1989. At the suppression hearing, Port Authority Police Officer Ray Yuen testified that he and a partner began watching the pair because they "appeared relatively young.” After defendant King and his companion parted and headed for separate buses, Yuen approached the companion to ask for identification. As the officer came near, the companion dropped a black bag he was carrying and, in response to questioning, denied knowing who owned it. Yuen’s partner then went onto a bus and brought defendant back into the terminal, where he also denied owning the bag. During a subsequent safety patdown, the officers found a bullet on the companion, prompting them to open the bag, where they discovered narcotics.

The hearing court ruled that the evidence seized from the bag was the fruit of an unlawful search and that defendant had standing to seek suppression of the evidence. The finding of standing was based on the affirmation of defendant’s attorney, in his motion papers, that defendant had a possessory interest in the bag and on the testimony of Officer Yuen, the sole witness for the People, that defendant had been seen holding the bag at some point earlier in the morning. Defendant presented no evidence at the hearing.

At a suppression hearing, a defendant has the burden of establishing standing by demonstrating a personal legitimate expectation of privacy (People v Wesley, 73 NY2d 351). The defendant is not required to testify in order to sustain this burden; the claim of standing may be supported with evidence educed from the People’s case (People v Gonzalez, 68 NY2d 950). While CPL 710.60 (1) requires that a defendant’s motion to suppress contain sworn allegations sufficient to raise standing as an issue of fact and avoid summary judgment under CPL 710.60 (3), there is no further requirement that a defendant introduce evidence at the suppression hearing in order to prevail on standing.

The record here is insufficient as a matter of law to support the finding of standing. The courts below found that the bag had been in defendant’s possession and that his denial of ownership was a spontaneous reaction to the unlawful seizure and not evidence of voluntary abandonment. However, “[a] showing of a possessory or proprietary interest in the item seized by itself * * * is not the determinative factor on the issue of standing” (People v Rodriquez, 69 NY2d 159, 163, citing Rawlings v Kentucky, 448 US 98). The court must also consider such factors as whether the defendant took precautions to maintain privacy and whether the defendant had the right to exclude other persons from access (Rodriquez, supra, at 162).

While the mere surrender of property to a third party will not always terminate a legitimate expectation of privacy (see, California v Greenwood, 486 US 35, 39-41), the burden was on defendant to establish under these facts that he had such an expectation. That showing was not made. Accordingly, the motion to suppress should have been denied.

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

Order reversed, etc.


author: Bellacosa, J.

text:
    In the Matter of Hunt Brothers, Inc., Respondent, v Robert C. Glennon, as Executive Director of Adirondack Park Agency, et al., Appellants.
    Argued February 17, 1993;
    decided April 1, 1993

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Joan Leary Matthews, Jerry Boone, Peter H. Schiff and Val E. Washington of counsel), for appellants.

      Lustberg & Ferretti, Long Lake (Robert M. Lustberg and Joan M, Ferretti of counsel), for respondent.

      John W. Caffry, Glens Falls, for Residents Against Gravel Extraction and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Petitioner operates a sand and gravel mine in the Town of Hope, Hamilton County, which is located within the Adirondack Park district (see, ECL 9-0101; see generally, Executive Law art 27). In 1989, after petitioner had commenced blasting operations pursuant to a permit issued by the Department of Environmental Conservation (DEC) pursuant to the Mined Land Reclamation Law (ECL art 23, tit 27 [MLRL]), the Adirondack Park Agency (APA) concluded that petitioner’s business was also subject to its regulations, including the requirement of an APA-issued permit (see, Executive Law § 809). Petitioner initially participated in APA’s permit review process, but a dispute between petitioner and the agency soon arose concerning the scope of the latter’s jurisdiction. Petitioner thereafter commenced this combined CPLR article 78 proceeding and declaratory judgment action, seeking an adjudication barring the APA from exercising jurisdiction over its mining operation.

The courts below erred in granting petitioner relief. The MLRL establishes a comprehensive legislative plan for the regulation of mining and land reclamation by DEC (see, ECL 23-2703 [1]). As drafted at the time the events in this case took place, the law provided that its regulatory scheme "shall supersede all other state and local laws relating to the extractive mining industry” (see, ECL 23-2703 [former (2)], amended L 1991, ch 166, § 228). In Matter of Frew Run Gravel Prods. v Town of Carroll (71 NY2d 126, 131), we held that this super-session clause does not preclude local zoning ordinances that are addressed to subject matters other than extractive mining and that affect the extractive mining industry only in incidental ways. Such local laws do not "frustrate the statutory purpose of encouraging mining through standardization of regulations pertaining to mining operations” (id., at 133). Thus, only those laws that deal "with the actual operation and process of mining” are superseded (id., at 133).

The statute creating and empowering the APA is aimed at establishing a superagency to regulate development in the Adirondack Park region, which the Legislature has singled out for special protection because of its unique environmental significance (see, Executive Law § 801). The agency’s powers and goals thus resemble those of both a local planning board and a local zoning entity (see, Wambat Realty Corp. v State of New York, 41 NY2d 490, 491).

Inasmuch as the APA’s mission concerns the broad area of land use planning within the Adirondack Park district, its enabling statute is not a law "relating to the extractive mining industry.” Consequently, ECL 23-2703 (former [2]) does not deprive the agency of all jurisdiction to regulate petitioner’s activities. Accordingly, petitioner’s article 78 petition for relief in the nature of prohibition should have been dismissed and, to the extent that the courts below reached a contrary conclusion, their holdings were erroneous.

We note that, contrary to the dissenter’s view, there is no "bureaucratic competition” or "confusion” over the respective roles of the APA and the DEC regarding the regulation of mining operations such as petitioner’s that are located within the Adirondack Park. To the contrary, since 1976, the DEC and the APA, as well as the State Department of Health, have been party to a Memorandum of Understanding under which the agencies have agreed to coordinate their respective regulatory responsibilities with regard to projects in the Park.

Finally, petitioner’s request for a declaration that the APA has exceeded its authority by overstepping the boundaries established by ECL 23-2703 (former [2]) cannot now be entertained, because the request is premature. At this juncture, the agency has taken no steps to regulate petitioner’s activities other than to insist that petitioner submit to its permit application procedures. There is thus no basis for evaluating whether the agency’s regulation of petitioner’s mining operation will affect that operation in more than merely "incidental” ways (see, Matter of Frew Run Gravel Prods. v Town of Carroll, supra, at 131). In the absence of a concrete controversy between the parties, petitioner cannot maintain an action for declaratory relief (see, e.g., Cuomo v Long Is. Light. Co., 71 NY2d 349).

Bellacosa, J.

(dissenting). I respectfully dissent for essentially the reasons expressed in Justice Casey’s opinion (180 AD2d 157), and I would affirm the Appellate Division’s order that the Adirondack Park Agency (APA) lacks jurisdiction with respect to petitioner’s mining operation.

Notably, in enacting the Mined Land Reclamation Law (MLRL), the Legislature expressly superseded "all other state and local laws relating to the extractive mining industry,” and reposed exclusive regulatory jurisdiction for such activities in the Department of Environmental Conservation (DEC) (ECL 23-2703 [former (2)]). A narrow exception to that super-session preserved local municipal zoning authority (Matter of Frew Run Gravel Prods. v Town of Carroll, 71 NY2d 126). The exception should not be expanded to the vast and different APA regulatory net.

Local zoning entities and the APA are not alike in kind or in purpose. They also have a governance relationship to one another quite distinct from that of the State DEC to the State APA. Indeed, the APA’s powers, in the context of this dispute, do not "resemble” those of local planning boards and zoning entities (majority mem, at 909). To treat them alike in this triangulated struggle, and thus create a much broader judicial exception to the statute, overrides the plain language and intent of the governing supersession directive and swallows the primary proposition.

Curiously, Wombat Realty Corp. v State of New York (41 NY2d 490), cited to support the conclusion that local zoning entities and the APA "resemble” one another, actually upheld APA powers over those of local planning and zoning entities on a supersession basis in the face of a home rule challenge. Wombat underscored the legislative intent, expressed in the APA Act, to "serve a supervening State concern transcending local interest * * * through a comprehensive land use and development plan” (41 NY2d, at 495, supra). There is no justification to use Frew Run (supra) to expand APA’s comprehensive authority by trumping DEC’s explicit supersession under the MLRL. The Legislature not only refrained from granting coordinate jurisdiction over mining operations to APA and DEC, it expressly conferred exclusive jurisdiction only on DEC.

Finally, the judicial inversion of the statute by the statutory interpretation in this case will engender unfair treatment, unequal application of the laws and bureaucratic competition that the Legislature plainly intended to avoid with its explicit supersession directive. It is no answer to these concerns that three bureaucratic behemoths executed an unfiled, unpublished and private compact of "coordination” among themselves. That cannot supersede the legislative distribution of powers to the agencies in the enactment of a public law. As the private memorandum itself, in any event, states, it "is not intended to diminish the authority or responsibility of any of the Agencies to act on matters with which it is charged” (Mem of Understanding of APA, DEC and Department of Health § II [A], as amended June 1980). The very consequence sought to have been avoided by the Legislature has actually unfolded in this case, where petitioner got a license from DEC in April 1988, modified by DEC in March 1989. This modified permit, which the Supreme Court found to be "still in full force and effect,” appears to be ironically superseded by actions of the APA in June 1989, precipitating this lawsuit. The petitioner — as countless other regulated entities will find —obviously felt caught in bureaucratic crossfire and uncertainties; it assuredly finds no comfort in the "coordination” compact of the agencies. Contrary to an essential thrust of the statute, the net effect of the result and analysis in this case thus adversely affects the public interest and the interests of those individuals and entities which are subjected to redundant, red-tape procedures of overlapping regulatory agencies.

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

Order reversed, etc.

       As amended in 1991, the statute now specifically excludes from its preemptive reach "local laws or ordinances of general applicability” that do not address regulated "mining and/or reclamation activities” and "local zoning ordinances or laws” governing permissible uses (ECL 23-2703 [2] [a], [b]). The statute also authorizes localities to attach certain listed conditions to special use permits issued to mining operations (id., [2] [b] [i]-[iv]).


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    In the Matter of Thomas A. Andrews, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 25, 1993;
    decided April 1, 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:
    In the Matter of Joseph Benesch, Appellant, v Village of Clayton, Respondent.
    Submitted February 8, 1993;
    decided April 1, 1993
   Motion for reargument of motion for leave to appeal denied. [See, 81 NY2d 702.] Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Chauncey C., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted February 8, 1993;
    decided April 1, 1993
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    James C. Couri et al., Appellants, v Westchester Country Club, Inc., et al., Respondents, et al., Defendant. (And Another Action.)
    Submitted February 1, 1993;
    decided April 1, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order in appeal No. 91-01632 and from so much of the Appellate Division order in appeal No. 91-05715 as affirmed that portion of the Supreme Court order which granted leave to amend the answer, dismissed upon the ground that the order in appeal No. 91-01632 and the above-described portion of the order in appeal No. 91-05715 do not finally determine an action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Richard Pike, Appellant, v New York State Division of Parole, Respondent.
    Submitted February 1, 1993;
    decided April 1, 1993
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Kevin Clark, Appellant.
    Argued January 13, 1993;
    decided April 5, 1993

      APPEARANCES OF COUNSEL

      Robert Mauer, Garden City, for appellant.

      Robert T Johnson, District Attorney of Bronx County (Allen H. Saperstein and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant and two codefendants were convicted after a jury trial of multiple counts of murder and attempted murder. Following conviction, all three defendants moved to set aside the verdict on the ground that one of the jurors had been in regular contact with defendant’s potential alibi witness during the trial. The trial court denied their motions. On appeal, the Appellate Division reversed the convictions of the two codefendants (People v Timmons, 175 AD2d 10, lv dismissed 78 NY2d 975; People v Bolden, 175 AD2d 21, lv dismissed 78 NY2d 962), but affirmed defendant’s conviction (178 AD2d 303).

Under CPL 330.30 (2), a motion to set aside a verdict may be granted when it is shown that improper conduct by a juror "may have affected a substantial right of the defendant”. However, "not every misstep by a juror rises to the inherently prejudicial level at which reversal is required automatically” (People v Brown, 48 NY2d 388, 394). Each case must be examined on its unique facts to determine the nature of the misconduct and the likelihood that prejudice was engendered (id.).

Here, in reversing the convictions of the two codefendants, the Appellate Division found that "it [was] clear that [the juror] was the sole holdout” for defendant after the jury had decided to convict his two companions (People v Timmons, 175 AD2d 10, 12, supra). In the face of this record suggesting that defendant was, if anything, aided by whatever misconduct took place, defendant made no showing at his hearing of how the misconduct was inherently prejudicial to his substantial rights. The courts below correctly concluded that defendant did not meet his burden of proof (see, CPL 330.40 [2] [g]).

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

Titone, J.

(dissenting). I dissent from the majority’s decision to affirm because, in my view, its conclusion that defendant was not prejudiced by a juror’s conversation with a potential alibi witness is simply insupportable.

Because the majority has not referred to the underlying facts in its terse memorandum opinion, a brief review of the events that took place both during and after defendant’s trial is necessary. Defendant, who was jointly tried with his two codefendants Ronald Timmons and Henry Bolden, built his defense on an alibi claim, specifically asserting under oath that on the night of the murder he went to the apartment of his neighbor, Zavia Collins, where he spent the night and had intimate relations with her for the first and only time. Ms. Collins, however, did not testify at the trial.

After the jury returned guilty verdicts against all three defendants, the defendants each moved to set aside the verdict under CPL 330.30 (2) on the ground that one of the jurors, Jacqueline Crumm, had been in touch with Ms. Collins during the trial. Defense counsel’s affirmation in support of the motion described a conversation between himself and Collins in which Collins stated that "she had in fact discussed with Ms. Crum[m] the possibility of her testifying in Mr. Clark’s behalf,” but that she had not discussed with Crumm what her testimony would be. Additionally, Collins herself submitted an affidavit in which she stated that she had known Crumm since 1976, that Crumm’s brother-in-law was her children’s father and that she and Crumm visited each other periodically and communicated by phone several times a week. Finally, Collins stated in her affidavit that she mentioned to Crumm that she had been asked to testify as a witness for defendant and that Crumm had responded by telling her "to follow [her] heart.”

On the basis of these allegations, the court held a postverdiet hearing at which Collins and Crumm testified. Collins reiterated her description of the close and longstanding personal relationship she had had with Crumm. She also stated that Crumm had told her about being a juror in defendant’s case, although she had never discussed her plans for deliberating or voting with Collins. In contrast to Collins’ testimony, Crumm denied having discussed the trial with Collins and asserted that she had learned of Collins’ relationship to defendant only after the trial had ended. Crumm stated that she had not recognized the name of her long-term friend, Zavia Collins, when it was raised at trial because she knew her as "Ann” Collins. The only other significant information came from the Assistant District Attorney, who asserted that his postdischarge interviews with the other jurors indicated that, before she finally capitulated and voted to convict, Crumm had* been the sole holdout for defendant.

The trial court denied the motions by all three defendants to set aside the verdict. On appeal, however, the Appellate Division reversed the judgments of conviction against codefendants Timmons (175 AD2d 10, lv dismissed 78 NY2d 975) and Bolden (175 AD2d 21, lv dismissed 78 NY2d 962). Crediting the testimony offered by Collins and discrediting the testimony of Jacqueline Crumm, the court concluded that the communications between Collins, a potential alibi witness for defendant, and Crumm, a juror, irreparably tainted the verdicts against Timmons and Bolden, who had both interposed a defense of mistaken identity. In contrast, the judgment against defendant, whose alibi defense was involved in the postverdict dispute, was left standing (178 AD2d 303). In support of its decision to deny defendant appellate relief, the Court stated, inter alia, that nothing in the record suggested that the juror’s bias worked to prejudice defendant.

A majority of this Court now echoes that view, stressing that, according to the Appellate Division, "it [was] clear that [Crumm] was the sole holdout” for defendant during the jury’s deliberations (see, People v Timmons, supra, at 12). Based on this purported "fact,” the majority infers that this defendant has no cause for complaint because he "was, if anything, aided by whatever misconduct took place.” This facile conclusion, however, is simply insupportable.

Initially, the majority’s conclusion is objectionable because it is based solely on unsworn hearsay allegations of the prosecutor about what he had been told by the other jurors at defendant’s trial. Such allegations obviously have no evidentiary value and cannot fairly be used as a predicate for drawing legal inferences, particularly in a case where a testimonial hearing has been held. Even if the "fact” asserted by the prosecutor had been established in a procedurally acceptable way, however, the majority’s inference could not logically be defended.

The fact that Crumm may have been the "sole holdout” for defendant at some point in the deliberations does not detract from the conclusion that defendant was substantially prejudiced by Crumm’s misconduct (see, CPL 330.30 [2]). While Crumm may have initially been favorably disposed toward defendant, she ultimately acceded and became 1 of the 12 jurors who unanimously voted to convict. Manifestly, her vote to convict could not have been solely the product of reasoning based on the trial evidence, since her private knowledge of Collins’ decision not to testify in support of defendant’s alibi was an unavoidable component of her mental state.

The key to defendant’s case was Zavia Collins and, more specifically, the credibility of defendant’s claim that Zavia Collins would have verified his alibi if she had been called to testify. In this context, nothing could have been more devastating to a juror’s ability to objectively analyze the evidence than that juror’s personal knowledge that this alibi witness had been asked by the defense to testify and, after searching her conscience, had declined. Yet, this is precisely what Crumm knew.

Crumm had actual personal knowledge that the very person who defendant said could exonerate him was unwilling to give testimony on his behalf, not because she was ill, unavailable or unaware of the proceeding, but rather because something in her "heart” told her not to testify. A juror with such knowledge could not, by any stretch of the imagination, be considered "impartial.” To the contrary, the notion that this juror could fairly evaluate defendant’s alibi based only on the trial evidence and could render an unbiased verdict is so preposterous as to be unworthy of serious consideration.

Indeed, the only inference that can be drawn from these facts is that Crumm had personal knowledge that made it impossible for her to consider the evidence in an impartial and unbiased manner. Accordingly, Crumm possessed a "state of mind” that would necessarily prevent her from rendering an impartial verdict (see, People v Buford, 69 NY2d 290, 298). She was therefore guilty of misconduct within the meaning of CPL 330.30 (2), and her contribution to the unanimous guilty verdict must be regarded as tainted.

Had a juror been exposed to an outside newspaper story indicating that the defense’s alibi witness had been asked— and had refused — to testify for the defendant, few would doubt that the conviction would have to be overturned. Since, what occurred in this case is, in principle, identical, the same result should ensue. Accordingly, I dissent from the majority’s conclusion and vote to reverse defendant’s conviction.

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

Order affirmed in a memorandum.

       Notwithstanding statements in the dissent, we find no evidence in the record that the witness "declined” to testify or that the juror had knowledge of any "decision [by the witness] not to testify” (dissenting mem, at 917). On the contrary, defendant did not establish any reason for her absence from trial. But more importantly, defendant failed to establish what the juror believed about the witness’ absence that made the juror unable to decide Ms case impartially.

       The majority’s assertion that the record does not support this proposition (majority mem, at 915, n) is belied by Collins’ affidavit, which clearly states that Collins herself told Crumm that she had been asked to testify for defendant and that when she "asked [Crumm] for her opinion[, Crumm’s] response * * * was 'for [Collins] to follow her heart.’ ” It seems logical to assume that when Collins did not appear to testify, Crumm attributed her absence to a decision she made after searching "her heart.” In any event, the facts that Crumm, a juror, had a personal relationship with Collins, the person whom she knew was defendant’s potential alibi witness and that she had, in fact, discussed the possibility of Collins testifying with Collins are alone sufficient to disqualify her as the kind of impartial and objective juror that defendant was entitled to have.


text:
    Michael H. Stolt, Respondent, v General Foods Corporation, Defendant and Third-Party Plaintiff, and C.P. Ward, Inc., Third-Party Defendant-Appellant.
    Argued February 11, 1993;
    decided April 5, 1993

      APPEARANCES OF COUNSEL

      Chamberlain, D’Amanda, Oppenheimer & Greenfield, Rochester (Thomas G. Collins of counsel), for appellant.

      J. Raymond Brown, Rochester, for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder, which was owned by the contractor C.P. Ward, Inc., had been broken about a week earlier, and plaintiff had been instructed not to climb it unless someone else was there to secure it for him. Nonetheless, plaintiff attempted to climb the ladder without assistance when his supervisor left the work area.

Plaintiff commenced the present action for damages against the plant owner, General Foods Corp., alleging a violation of Labor Law § 240 (1). General Foods thereafter impleaded C.P. Ward, Inc., plaintiff’s employer, as third-party defendant.

Contrary to C.P. Ward’s arguments on this appeal, the court below properly granted plaintiffs motion for partial summary judgment on the issue of defendant General Foods’ liability. The mere allegation that plaintiff had disobeyed his supervisor’s instructions when he climbed the broken ladder does not provide a basis for a defense against plaintiffs Labor Law § 240 (1) cause of action. It is well settled that the injured’s contributory negligence is not a defense to a claim based on Labor Law § 240 (1) and that the injured’s culpability, if any, does not operate to reduce the owner/contractor’s liability for failing to provide adequate safety devices (e.g., Bland v Manocherian, 66 NY2d 452). Further, it cannot be said that plaintiffs alleged disregard of his supervisor’s order was a supervening cause of the accident, since plaintiffs injuries were the direct result of the failure by General Foods and C.P. Ward to supply a safe ladder or other device to give "proper protection” to workers in plaintiffs position (cfi., Mack v Altmans Stage Light. Co., 98 AD2d 468).

Finally, the so-called "recalcitrant worker” defense cannot be invoked in these circumstances (see, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824). That defense, which has been widely recognized by the lower courts in this State (e.g., Koumianos v State of New York, 141 AD2d 189; Morehouse v Daniels, 140 AD2d 974; Connota v One Estate, 127 AD2d 811; Lickers v State of New York, 118 AD2d 331; Heath v Soloff Constr., 107 AD2d 507), requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer (see, Hagins v State of New York, 81 NY2d 921 [decided herewith]). It has no application where, as here, no adequate safety devices were provided (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 525-526 [Simons, J., concurring]). We note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a "safety device.”

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

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


text:
    Nathaniel Hagins et al., Respondents, v State of New York, Appellant.
    Argued February 11, 1993;
    decided April 5, 1993

      APPEARANCES OF COUNSEL

      Chamberlain, D’Amanda, Oppenheimer & Greenfield, Rochester (Thomas G. Collins of counsel), for appellant.

      Moran & Kufta, P. C., Rochester (James J. Moran of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Claimant was injured when he fell from the top of an unfinished abutment wall that rose some 15 feet above a road construction site. At the time of the accident, claimant was employed by a contractor that had been retained by the State to assist in the erection of a ramp. Claimant, who was working on an abutment on the east side of the road, had been directed to retrieve a 16-foot board that was located near the abutment on the west side of the road. Claimant crossed over the road via an overpass, walked down the west abutment, hoisted the lumber on his shoulder and then attempted to return to the east side using the same route. He fell from the west abutment, which was 18-inches wide and had numerous rebar rods protruding vertically from its surface. It is undisputed that the supervisor did not specifically direct claimant to use any particular route in his efforts to retrieve the lumber that was located on the west side of the road. Claimant thereafter commenced the present action against the State to recover for its alleged violation of Labor Law § 240 (1).

Claimant was properly granted partial summary judgment on the issue of the State’s liability under Labor Law § 240 (1). The State’s allegations that claimant had repeatedly been told not to walk across the abutment are not alone sufficient to create a triable issue of fact under the "recalcitrant worker” doctrine that was recognized in Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824), since that defense is limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner (see, Stolt v General Foods Corp., 81 NY2d 918 [decided herewith]). Furthermore, the State cannot rely on claimant’s own negligence in using an unsafe route to cross the road as a "supervening cause” of his injuries, since the accident was plainly the direct result of the failure to supply guardrails or other appropriate safety devices (see, id.).

Similarly unavailing is the State’s alternative claim that it could not be held liable if the trier of fact adopted its factual contention that the abutment from which claimant fell was not part of his work area at the time of the accident. Although the State’s papers alleged in conclusory fashion that the abutment in question was not part of the worksite, the record contains no support for that claim. To the contrary, the State’s own witness stated that the contractor was in the process of backfilling the west abutment wall at the time of the accident. Moreover, the wood needed to complete claimant’s job had been stored next to it. Under these circumstances, the fact that the abutment itself may not have been the focus of claimant’s work at the time of the accident is not alone a sufficient ground for absolving the State of liability.

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

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