source: Caselaw Access Project

author: Ciparick, J.

license: Public Domain

text:
    [660 NE2d 415, 636 NYS2d 734]
    Oppenheimer & Co., Inc., Respondent, v Oppenheim, Appel, Dixon & Co., Appellant.
    Argued October 25, 1995;
    decided November 30, 1995

      POINTS OF COUNSEL

      Fennell & Chiappone LLP, New York City (Darrell K. Fennell and Michael Winger of counsel), for appellant. I.
    Plaintiff failed to satisfy the conditions of the agreement to sublease. (Jacob & Youngs v Kent, 230 NY 239; Van Iderstine Co. v Barnet Leather Co., 242 NY 425; Maxton Bldrs. v Lo Galbo, 68 NY2d 373; High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465; J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392; United Skates v Kaplan, 96 AD2d 232; Ting v Dean, 156 AD2d 358; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Lawrence v Miller, 86 NY 131.) II. In the alternative, defendant is entitled to a new trial, on "substantial performance.” (Razza v Sanchez-Roda, 173 AD2d 594.) III. As a matter of law, plaintiff suffered no damages. (Rutzen v Monroe County Long Term Care Program, 104 Misc 2d 1000; Silinsky v State-Wide Ins. Co., 30 AD2d 1; Drinkwater v Dinsmore, 80 NY 390.)

      Kaye, Scholer, Fierman, Hays & Handler, New York City (Gregory J. Wallance, Jeffrey A. Fuisz and Gregory E. Bylinsky of counsel), for respondent.
    I. The Court below correctly found that substantial performance was a question of fact for the jury. (Jacob & Youngs v Kent, 230 NY 239; Hadden v Consolidated Edison Co., 34 NY2d 88, 45 NY2d 466; Duenenwald Print. Corp. v Putnam’s Sons, 301 NY 569; City of New York v

      Flatto, 271 NY 244; Dudley v Perkins, 248 NY 250; Desmond-Dunne Co. v Friedman-Doscher Co., 162 NY 486; Thomas v Gage, 156 NY 612; Stokes v Mackay, 147 NY 223; High Fashions Hair Cutters v Commercial Union Ins. Co., 145 AD2d 465; Pioneer Vil. Dev. Corp. v XAR Corp., 55 AD2d 769.) II. Appellant is not entitled to a new trial. (Steel Stor. & El. Constr. Co. v Stock, 225 NY 173.) III. Since respondent was damaged by appellant’s breach of contract, evidence of collateral payments pursuant to the takeover agreement was properly barred. (Rutzen v Monroe County Long Term Care Program, 104 Misc 2d 1000; Silinsky v State-Wide Ins. Co., 30 AD2d 1; Szybura v City of Elmira, 28 AD2d 1154; Anastasia v Barnes, 127 Misc 2d 971; Gusikoff v Republic Stor. Co., 241 App Div 889; Carney v Morrison, 223 App Div 244, 249 NY 511; Gray v Pashkow, 168 AD2d 849; Hartnett v Reiss S. S. Co., 421 F2d 1011, cert denied sub nom. Grain Handling Co. v Hartnett, 400 US 852.)
   OPINION OF THE COURT

Ciparick, J.

The parties entered into a letter agreement setting forth certain conditions precedent to the formation and existence of a sublease between them. The agreement provided that there would be no sublease between the parties "unless and until” plaintiff delivered to defendant the prime landlord’s written consent to certain "tenant work” on or before a specified deadline. If this condition did not occur, the sublease was to be deemed "null and void.” Plaintiff provided only oral notice on the specified date. The issue presented is whether the doctrine of substantial performance applies to the facts of this case. We conclude it does not for the reasons that follow.

I.

In 1986, plaintiff Oppenheimer & Co. moved to the World Financial Center in Manhattan, a building constructed by Olympia & York Company (O & Y). At the time of its move, plaintiff had three years remaining on its existing lease for the 33rd floor of the building known as One New York Plaza. As an incentive to induce plaintiff’s move, O & Y agreed to make the rental payments due under plaintiff’s rental agreement in the event plaintiff was unable to sublease its prior space in One New York Plaza.

In December 1986, the parties to this action entered into a conditional letter agreement to sublease the 33rd floor. Defendant already leased space on the 29th floor of One New York Plaza and was seeking to expand its operations. The proposed sublease between the parties was attached to the letter agreement. The letter agreement provided that the proposed sublease would be executed only upon the satisfaction of certain conditions. Pursuant to paragraph 1 (a) of the agreement, plaintiff was required to obtain "the Prime Landlord’s written notice of confirmation, substantially to the effect that [defendant] is a subtenant of the Premises reasonably acceptable to Prime Landlord.” If such written notice of confirmation were not obtained "on or before December 30, 1986, then this letter agreement and the Sublease * * * shall be deemed null and void and of no further force and effect and neither party shall have any rights against nor obligations to the other.”

Assuming satisfaction of the condition set forth in paragraph 1 (a), defendant was required to submit to plaintiff, on or before January 2, 1987, its plans for "tenant work” involving construction of a telephone communication linkage system between the 29th and 33rd floors. Paragraph 4 (c) of the letter agreement then obligated plaintiff to obtain the prime landlord’s "written consent” to the proposed "tenant work” and deliver such consent to defendant on or before January 30, 1987. Furthermore, if defendant had not received the prime landlord’s written consent by the agreed date, both the agreement and the sublease were to be deemed "null and void and of no further force and effect,” and neither party was to have "any rights against nor obligations to the other.” Paragraph 4 (d) additionally provided that, notwithstanding satisfaction of the condition set forth in paragraph 1 (a), the parties "agree not to execute and exchange the Sublease unless and until * * * the conditions set forth in paragraph (c) above are timely satisfied.”

The parties extended the letter agreement’s deadlines in writing and plaintiff timely satisfied the first condition set forth in paragraph 1 (a) pursuant to the modified deadline. However, plaintiff never delivered the prime landlord’s written consent to the proposed tenant work on or before the modified final deadline of February 25, 1987. Rather, plaintiff’s attorney telephoned defendant’s attorney on February 25 and informed defendant that the prime landlord’s consent had been secured. On February 26, defendant, through its attorney, informed plaintiff’s attorney that the letter agreement and sublease were invalid for failure to timely deliver the prime landlord’s written consent and that it would not agree to an extension of the deadline. The document embodying the prime landlord’s written consent was eventually received by plaintiff on March 20, 1987, 23 days after expiration of paragraph 4 (c)’s modified final deadline.

Plaintiff commenced this action for breach of contract, asserting that defendant waived and/or was estopped by virtue of its conduct from insisting on physical delivery of the prime landlord’s written consent by the February 25 deadline. Plaintiff further alleged in its complaint that it had substantially performed the conditions set forth in the letter agreement.

At the outset of trial, the court issued an order in limine barring any reference to substantial performance of the terms of the letter agreement. Nonetheless, during the course of trial, the court permitted the jury to consider the theory of substantial performance, and additionally charged the jury concerning substantial performance. Special interrogatories were submitted. The jury found that defendant had properly complied with the terms of the letter agreement, and answered in the negative the questions whether defendant failed to perform its obligations under the letter agreement concerning submission of plans for tenant work, whether defendant by its conduct waived the February 25 deadline for delivery by plaintiff of the landlord’s written consent to tenant work, and whether defendant by its conduct was equitably estopped from requiring plaintiff’s strict adherence to the February 25 deadline. Nonetheless, the jury answered in the affirmative the question, "Did plaintiff substantially perform the conditions set forth in the Letter Agreement?,” and awarded plaintiff damages of $1.2 million.

Defendant moved for judgment notwithstanding the verdict. Supreme Court granted the motion, ruling as a matter of law that "the doctrine of substantial performance has no application to this dispute, where the Letter Agreement is free of all ambiguity in setting the deadline that plaintiff concededly did not honor.” The Appellate Division reversed the judgment on the law and facts, and reinstated the jury verdict. The Court concluded that the question of substantial compliance was properly submitted to the jury and that the verdict should be reinstated because plaintiffs failure to deliver the prime landlord’s written consent was inconsequential.

This Court granted defendant’s motion for leave to appeal and we now reverse.

II.

Defendant argues that no sublease or contractual relationship. ever arose here because plaintiff failed to satisfy the condition set forth in paragraph 4 (c) of the letter agreement. Defendant contends that the doctrine of substantial performance is not applicable to excuse plaintiffs failure to deliver the prime landlord’s written consent to defendant on or before the date specified in the letter agreement and that the Appellate Division erred in holding to the contrary. Before addressing defendant’s arguments and the decision of the court below, an understanding of certain relevant principles is helpful.

A condition precedent is "an act or event, other than a lapse of time, which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises” (Calamari and Perillo, Contracts § 11-2, at 438 [3d ed]; see, Restatement [Second] of Contracts § 224; see also, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 112-113). Most conditions precedent describe acts or events which must occur before a party is obliged to perform a promise made pursuant to an existing contract, a situation to be distinguished conceptually from a condition precedent to the formation or existence of the contract itself (see, M.K. Metals v Container Recovery Corp., 645 F2d 583). In the latter situation, no contract arises "unless and until the condition occurs” (Calamari and Perillo, Contracts § 11-5, at 440 [3d ed]).

Conditions can be express or implied. Express conditions are those agreed to and imposed by the parties themselves. Implied or constructive conditions are those "imposed by law to do justice” (Calamari and Perillo, Contracts § 11-8, at 444 [3d ed]). Express conditions must be literally performed, whereas constructive conditions, which ordinarily arise from language of promise, are subject to the precept that substantial compliance is sufficient. The importance of the distinction has been explained by Professor Williston:

"Since an express condition * * * depends for its validity on the manifested intention of the parties, it has the same sanctity as the promise itself. Though the court may regret the harshness of such a condition, as it may regret the harshness of a promise, it must, nevertheless, generally enforce the will of the parties unless to do so will violate public policy. Where, however, the law itself has imposed the condition, in absence of or irrespective of the manifested intention of the parties, it can deal with its creation as it pleases, shaping the boundaries of the constructive condition in such a way as to do justice and avoid hardship”. (5 Williston, Contracts § 669, at 154 [3d ed].)

In determining whether a particular agreement makes an event a condition courts will interpret doubtful language as embodying a promise or constructive condition rather than an express condition. This interpretive preference is especially strong when a finding of express condition would increase the risk of forfeiture by the obligee (see, Restatement [Second] of Contracts § 227 [1]).

Interpretation as a means of reducing the risk of forfeiture cannot be employed if "the occurrence of the event as a condition is expressed in unmistakable language” (Restatement [Second] of Contracts § 229, comment a, at 185; see, § 227, comment b [where language is clear, "(t)he policy favoring freedom of contract requires that, within broad limits, the agreement of the parties should be honored even though forfeiture results”]). Nonetheless, the nonoccurrence of the condition may yet be excused by waiver, breach or forfeiture. The Restatement posits that "[t]o the extent that the nonoccurrence of a condition would cause disproportionate forfeiture, a court may excuse the non-occurrence of that condition unless its occurrence was a material part of the agreed exchange” (Restatement [Second] of Contracts § 229).

Turning to the case at bar, it is undisputed that the critical language of paragraph 4 (c) of the letter agreement unambiguously establishes an express condition precedent rather than a promise, as the parties employed the unmistakable language of condition ("if,” "unless and until”). There is no doubt of the parties’ intent and no occasion for interpreting the terms of the letter agreement other than as written.

Furthermore, plaintiff has never argued, and does not now contend, that the nonoccurrence of the condition set forth in paragraph 4 (c) should be excused on the ground of forfeiture. Rather, plaintiffs primary argument from the inception of this litigation has been that defendant waived or was equitably estopped from invoking paragraph 4 (c). Plaintiff argued secondarily that it substantially complied with the express condition of delivery of written notice on or before February 25th in that it gave defendant oral notice of consent on the 25th.

Contrary to the decision of the Court below, we perceive no justifiable basis for applying the doctrine of substantial performance to the facts of this case. The flexible concept of substantial compliance "stands in sharp contrast to the requirement of strict compliance that protects a party that has taken the precaution of making its duty expressly conditional” (2 Farnsworth, Contracts § 8.12, at 415 [2d ed 1990]). If the parties "have made an event a condition of their agreement, there is no mitigating standard of materiality or substantiality applicable to the non-occurrence of that event” (Restatement [Second] of Contracts § 237, comment d, at 220). Substantial performance in this context is not sufficient, "and if relief is to be had under the contract, it must be through excuse of the non-occurrence of the condition to avoid forfeiture” (id.; see, Brown-Marx Assocs. v Emigrant Sav. Bank, 703 F2d 1361, 1367-1368 [11th Cir]; see also, Childres, Conditions in the Law of Contracts, 45 NYU L Rev 33, 35).

Here, it is undisputed that plaintiff has not suffered a forfeiture or conferred a benefit upon defendant. Plaintiff alludes to a $1 million licensing fee it allegedly paid to the prime landlord for the purpose of securing the latter’s consent to the subleasing of the premises. At no point, however, does plaintiff claim that this sum was forfeited or that it was expended for the purpose of accomplishing the sublease with defendant. It is further undisputed that O & Y, as an inducement to effect plaintiff’s move to the World Financial Center, promised to indemnify plaintiff for damages resulting from failure to sublease the 33rd floor of One New York Plaza. Consequently, because the critical concern of forfeiture or unjust enrichment is simply not present in this case, we are not presented with an occasion to consider whether the doctrine of substantial performance is applicable, that is, whether the courts should intervene to excuse the nonoccurrence of a condition precedent to the formation of a contract.

The essence of the Appellate Division’s holding is that the substantial performance doctrine is universally applicable to all categories of breach of contract, including the nonoccurrence of an express condition precedent. However, as discussed, substantial performance is ordinarily not applicable to excuse the nonoccurrence of an express condition precedent.

Our precedents are consistent with this general principle. In Maxton Bldrs. v Lo Galbo (68 NY2d 373) the defendants contracted on August 3 to buy a house, but included in the contract the condition that if real estate taxes were found to be above $3,500 they would have the right to cancel the contract upon written notice to the seller within three days. On August 4 the defendants learned that real estate taxes would indeed exceed $3,500. The buyers’ attorney called the seller’s attorney and notified him that the defendants were exercising their option to cancel. A certified letter was sent notifying the seller’s attorney of that decision on August 5 but was not received by the seller’s attorney until August 9. We held the cancellation ineffective and rejected defendants’ argument that reasonable notice was all that was required, stating: "It is settled * * * that when a contract requires that written notice be given within a specified time, the notice is ineffective unless the writing is actually received within the time prescribed” (id., at 378). We so held despite the fact that timely oral notice was given and the contract did not provide that time was of the essence.

In Jungmann & Co. v Atterbury Bros. (249 NY 119) the parties entered into a written contract for the sale of 30 tons of casein. The contract contained the following clause: "Shipment: May-June from Europe. Advice of shipment to be made by cable immediately goods are dispatched” (id.). Plaintiff shipped the first 15 tons but gave no notice to the defendant, who rejected the shipment. Plaintiff thereafter shipped the remaining 15 tons to defendant, but again failed to provide notice by cable and instead sent two letters. Defendant rejected the remaining 15 tons. This Court was not persuaded by the argument that the defendant had received notice of shipment by other means and thus suffered no harm. "Even if that be true,” we stated, "the fact remains that the plaintiff was obligated under its contract to see that defendant obtained advice of shipment by cable” (id., at 121). Plaintiffs failure to "perform[ ] all conditions precedent required of it,” and "to give notice according to the terms of the contract” barred it from recovery (id., at 122).

Plaintiffs reliance on the well-known case of Jacob & Youngs v Kent (230 NY 239) is misplaced. There, a contractor built a summer residence and the buyer refused to pay the remaining balance of the contract price on the ground that the contractor used a different type of pipe than was specified in the contract. The buyer sought to enforce the contract as written. This would have involved the demolition of large parts of the structure at great expense and loss to the seller. This Court, in an opinion by then-Judge Cardozo, ruled for the contractor on the ground that "an omission, both trivial and innocent, will sometimes be atoned for by allowance of the resulting damage, and will not always be the breach of a condition to be followed by a forfeiture” (230 NY, at 241). But Judge Cardozo was careful to note that the situation would be different in the case of an express condition:

"This is not to say that the parties are not free by apt and certain words to effectuate a purpose that performance of every term shall be a condition of recovery. That question is not here. This is merely to say that the law will be slow to impute the purpose, in the silence of the parties, where the significance of the default is grievously out of proportion to the oppression of the forfeiture” (id., at 243-244).

The quoted language contradicts the Appellate Division’s proposition that the substantial performance doctrine applies universally, including when the language of the agreement leaves no doubt that an express condition precedent was intended (see, 205 AD2d, at 414). More importantly, Jacob & Youngs lacks determinative significance here on the additional ground that plaintiff conferred no benefit upon defendant. The avoidance-of-forfeiture rationale which engendered the rule of Jacob & Youngs is simply not present here, and the case therefore "should not be extended by analogy where the reason for the rule fails” (Van Iderstine Co. v Barnet Leather Co., 242 NY 425, 434).

The lease renewal and insurance cases relied upon by plaintiff are clearly distinguishable and explicable on the basis of the risk of forfeiture existing therein. For example, in Sy Jack Realty Co. v Pergament Syosset Corp. (27 NY2d 449, 452), this Court gave effect to a late notice of lease renewal. Importantly, while we reaffirmed the general rule "that notice, when required to be 'given’ by a certain date, is insufficient and ineffectual if not received within the time specified,” we held that the prior courts properly invoked the rule that equity "relieves against * * * forfeitures of valuable lease terms when default in notice has not prejudiced the landlord” (id,., quoting Jones v Gianferante, 305 NY 135, 138; see also, J. N. A. Realty Corp. v Cross Bay Chelsea, 42 NY2d 392, 397 ["when a tenant in possession under an existing lease has neglected to * * * renew, he might suffer a forfeiture if he has made valuable improvements on the property”]). We stated: "Since a long-standing location for a retail business is an important part of the good will of that enterprise, the tenant stands to lose a substantial and valuable asset” (id., 22 NY2d, at 453).

III.

In sum, the letter agreement provides in the clearest language that the parties did not intend to form a contract "unless and until” defendant received written notice of the prime landlord’s consent on or before February 25, 1987. Defendant would lease the 33rd floor from plaintiff only on the condition that the landlord consent in writing to a telephone communication linkage system between the 29th and 33rd floors and to defendant’s plans for construction effectuating that linkage. This matter was sufficiently important to defendant that it would not enter into the sublease "unless and until” the condition was satisfied. Inasmuch as we are not dealing here with a situation where plaintiff stands to suffer some forfeiture or undue hardship, we perceive no justification for engaging in a "materiality-of-the-nonoccurrence” analysis. To do so would simply frustrate the clearly expressed intention of the parties. Freedom of contract prevails in an arm’s length transaction between sophisticated parties such as these, and in the absence of countervailing public policy concerns there is no reason to relieve them of the consequences of their bargain. If they are dissatisfied with the consequences of their agreement, "the time to say so [was] at the bargaining table” (Maxton, supra, at 382).

Finally, the issue of substantial performance was not for the jury to resolve in this case. A determination whether there has been substantial performance is to be answered, "if the inferences are certain, by the judges of the law” (Jacob & Youngs v Kent, 230 NY 239, 243, supra).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

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

Order reversed, etc.

      . Plaintiff argued that it could have met the deadline, but failed to do so only because defendant, acting in bad faith, induced plaintiff into delaying delivery of the landlord’s consent. Plaintiff asserted that the parties had previously extended the agreement’s deadlines as a matter of course.

      . The Restatement defines the term "forfeiture” as "the denial of compensation that results when the obligee loses [its] right to the agreed exchange after [it] has relied substantially, as by preparation or performance on the expectation of that exchange” (§ 229, comment b).


text:
    [655 NE2d 157, 631 NYS2d 116]
    The People of the State of New York, Respondent, v James L. Carter, Appellant.
    Argued June 6, 1995;
    decided June 29, 1995

      APPEARANCES OF COUNSEL

      James L. Carter, Attica, appellant pro se, and Hancock & Estabrook, Syracuse (Alan J. Pierce of counsel), for appellant.

      Sol Greenberg, District Attorney of Albany County, Albany (John E. Money of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a passenger in a vehicle whose stop for a traffic offense ultimately resulted in the seizure of a quantity of crack and powder cocaine, was found guilty of criminal possession of a controlled substance in the first degree, conspiracy in the second degree, and criminal possession of a controlled substance in the seventh degree. The Appellate Division, with one Justice dissenting, affirmed the judgment of conviction, ruling, among other things, that defendant had no standing to contest the search of the automobile.

Defendant’s primary claim on this appeal is that although he was neither the driver nor the owner of the vehicle, he nevertheless had standing to challenge its search pursuant to the limited form of automatic standing still recognized by this Court (see, People v Millon, 69 NY2d 514). Because defendant failed to assert this claim at the suppression hearing, his contention is not preserved for our review.

Here, a vehicular search conducted with the driver’s consent yielded a small amount of powder cocaine concealed in the rear seat. As a result, all of the vehicle’s occupants were arrested under the "automobile presumption” that all four knowingly possessed the contraband (see, Penal Law § 220.25 [1]). Subsequently, a much larger amount of crack cocaine was recovered from the person of one of the passengers, LaTonya Porter. Porter was allowed to plead to a reduced charge, and testified for the People before the Grand Jury. The remaining three defendants were indicted on conspiracy and felony possession charges related to the crack cocaine. Only defendant Carter was charged additionally with the smaller amount of powder cocaine recovered from the automobile seat.

In general, a defendant seeking to suppress evidence, on the basis that it was obtained by means of an illegal search, must allege standing to challenge the search and, if the allegation is disputed, must establish standing (see, Jones v United States, 362 US 257, 261; People v Ponder, 54 NY2d 160, 165; see also, People v Gonzalez, 68 NY2d 950, 951; 33 NY Jur 2d, Criminal Law, § 1728). Defendant made no assertion of standing to challenge the search of the vehicle in his omnibus motion or thereafter, even though the People consistently contested defendant’s standing throughout the proceedings.

Accordingly, because defendant did not contend at the trial level that he had standing to contest the search of the vehicle pursuant to People v Millan (supra), or indeed on any other basis, his argument is not preserved for our review.

We have considered defendant’s remaining contentions and find them without merit.

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

Order affirmed in a memorandum.


text:
    [655 NE2d 158, 631 NYS2d 117]
    The People of the State of New York, Respondent, v Bruce Heath, Appellant.
    Argued June 7, 1995;
    decided June 29, 1995

      APPEARANCES OF COUNSEL

      Joseph A. Zayas, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Stuart P. Levy and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly reinstated the indictment count charging defendant with unlawfully wearing a body vest under Penal Law § 270.20 (1). That crime is committed when an individual, "acting either alone or with one or more other persons * * * commits any violent felony offense defined in [Penal Law] section 70.02 while possessing a firearm and in the course of and in furtherance of such crime he wears a body vest.” Criminal possession of a weapon in the third degree under Penal Law § 265.02 (4), one of the other crimes with which defendant was charged, is a violent felony under section 70.02 and thus satisfies the literal language of section 270.20 (1) requiring the commission of "violent felony offense.”

Contrary to defendant’s contention, there is no legal or policy-based reason to exclude third degree criminal possession of a weapon under Penal Law § 265.02 (4) as a valid predicate violent felony offense sufficient to support criminal liability under section 270.20. In People v Brown (67 NY2d 555, 560), on which defendant relies, "[n]either crime contained] an element which [wa]s not also an element of the other crime.” Here, in contrast, there are several differences in the elements of the two charged crimes. Indeed, unlike the situation in Brown, even the weapon-possession elements of the crimes are different: Penal Law § 270.20 requires that the actor have been in possession of a "firearm”, while Penal Law § 265.02 (4), the source of the charged "violent felony offense,” requires proof that defendant possessed a "loaded firearm.”

Finally, the Legislature could have rationally concluded that a person protected by a bullet-resistant body vest would be emboldened to commit criminal acts, including crimes involving the possession of contraband. Thus, although defendant argues otherwise, there is nothing anomalous about charging a defendant with unlawfully wearing a body vest "in furtherance of’ the additional crime of possessing a loaded firearm outside the home.

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

Order affirmed in a memorandum.


text:
    [655 NE2d 160, 631 NYS2d 119]
    The People of the State of New York, Respondent, v Anthony Toxey, Appellant.
    Argued June 6, 1995;
    decided June 29, 1995

      APPEARANCES OF COUNSEL

      Diane E. Courselle, New York City, and E. Joshua Rosenkranz for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Gail B. Rubenfeld and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In satisfaction of three separate indictments, appellant pleaded guilty to four counts of robbery in the first degree (Penal Law § 160.15 [4]), after admitting to forcibly stealing property from four taxi cab drivers while displaying what appeared to be a weapon. On appeal, he seeks to vacate the plea, asserting that the trial court erred by failing to inquire at the guilty plea allocution whether defendant possessed a loaded, operable weapon. Defendant claims this obligation of the court was triggered by defendant’s statement, "I don’t carry weapons.”

Defendant did not raise with the trial court the issue of the invalidity of the plea based on an alleged colloquy flaw or failure of the court to follow up. No motion to withdraw the plea pursuant to CPL 220.60 (3) or motion to vacate the judgment of conviction pursuant to CPL 440.10 was made.

We conclude that defendant’s utterances overall in this case did not engender "significant doubt” on the voluntariness of his plea. His plea allocution does not qualify for the narrow, "rare case” exception to the preservation doctrine described in People v Lopez (71 NY2d 662, 666). Accordingly, appellant’s claim on appeal was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed (see, CPL 470.05 [2]; People v Johnson, 82 NY2d 683, 685).

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

Order affirmed in a memorandum.


text:
    [655 NE2d 161, 631 NYS2d 120]
    The People of the State of New York, Respondent, v David L. Soddano, Appellant.
    Submitted June 5, 1995;
    decided June 29, 1995
    APPEARANCES OF COUNSEL

      David L. Soddano, Middletown, appellant pro se.

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey of counsel), for respondent.

      Wendy Evans Lehmann, Rochester, and James M. Catterson, Jr., Hauppauge, for New York State District Attorneys’ Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

A State Trooper observed defendant operating his vehicle at the speed of 76 miles per hour on State Route 17 and issued a speeding ticket. Defendant appeared for trial in the Blooming Grove Town Court (Orange County) and met with the Trooper to discuss a possible plea agreement. Defendant sought to plead guilty to a defective speedometer charge, but the Trooper offered only a lesser degree of speeding. Defendant rejected the Trooper’s offer and the case proceeded to trial before the Town Justice and was prosecuted by the Trooper over defendant’s objection. Defendant argued that only the District Attorney’s office could prosecute the case. Defendant was convicted and sentenced to a fine. The Appellate Term affirmed the judgment of conviction, ruling that it was permissible for the complainant State Trooper to prosecute the traffic infraction in lieu of an Assistant District Attorney.

County Law § 700 (1) provides that "[i]t shall be the duty of every district attorney to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed.” It is well settled, however, that this statute does not require the District Attorney’s personal presence at every criminal hearing in a county, and the prosecution of petty crimes or offenses may be delegated to subordinates and other public or administrative officers and even to private attorneys (see, People v DeLeyden, 10 NY2d 293, 294 [prosecution by Deputy Sheriff who made the speeding charge]; People v Czajka, 11 NY2d 253, 254 [prosecution of traffic offense by Deputy Town Attorney]). District Attorneys, of course, retain the ultimate, nondelegable responsibility for prosecuting all crimes and offenses, but they may allow appearances by public officers or private attorneys so long as they are kept aware of all the criminal prosecutions in the county (see, People v Van Sickle, 13 NY2d 61, 62-63).

The remaining arguments are without merit.

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

Order affirmed in a memorandum.


text:
    [655 NE2d 162, 631 NYS2d 121]
    The People of the State of New York, Respondent, v Arthur Brown, Appellant.
    Argued June 8, 1995;
    decided June 29, 1995

      APPEARANCES OF COUNSEL

      Karl E. Pflanz, New York City, E. Joshua Rosenkranz, Howard A. Pincus and Rosemary Herbert for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Margaret M. DePaola and Paul Harnisch of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to Supreme Court, New York County, for a Wade hearing and, as so modified, affirmed. If it is determined at the Wade hearing that police suggestiveness tainted the showup identification procedure, defendant is entitled to a new trial. If the People prevail at the Wade hearing, the judgment of conviction and sentence should be amended to reflect that result.

Defendant, handcuffed and surrounded by police officers in a stairwell after he was apprehended, was identified by a robbery victim as the assailant. The victim was robbed of jewelry, allegedly at gunpoint, several blocks away in the elevator of the building in which he resided. The victim and his sister informed police officers stationed nearby of this incident and accompanied the officers in their marked police car as they canvassed the adjacent block for the perpetrator. The victim pointed out the person he thought was the robber, and upon the approach by the police in the marked car, the suspected robber ran off. One of the officers pursued that person, who was wearing a brown sheepskin jacket and black baseball hat, on foot and followed him into an apartment building. By this time, a backup team of officers had arrived on the scene, and fanned out to search the building. The jacket and hat were recovered in a hallway on the third floor. The individual was apprehended in the stairwell, and was presented to the victim on the ground floor landing of the stairwell. Following identification by the victim, defendant was arrested. Neither a gun nor the stolen jewelry was recovered.

The trial court improperly concluded without a Wade hearing that the victim’s identification of defendant was free of police suggestion (see, People v Dixon, 85 NY2d 218, 224). Although the victim initiated the police chase once he pointed out his alleged assailant, the resultant showup does not fit into the category of confirmatory identifications that are recognized as exceptions to the general requirement of a Wade hearing (see, People v Dixon, 85 NY2d, at 223-224, supra; People v Wharton, 74 NY2d 921, 922; People v Gissendanner, 48 NY2d 543, 552).

Absent a hearing, it is impossible to discern whether the police had any influence on the victim during the pursuit immediately following the robbery, or to evaluate the effect on the identification procedure of the time the victim spent waiting in the police car outside the building while the police were searching for the perpetrator inside, or to determine the circumstances of the showup itself. Therefore, the courts below had no basis to determine that the police-arranged showup was free of taint, and that the victim was impervious to police suggestion (see, People v Dixon, 85 NY2d, at 224-225, supra). The determination of whether the showup procedure employed in this case resulted in an unduly suggestive identification is a matter for the Wade hearing.

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

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


text:
    In the Matter of Richard L. Giampa, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted June 26, 1995;
    decided June 29, 1995
   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. Motion for a stay dismissed as academic.


text:
    Frank P. Raquet et al., Appellants, v Carol Braun et al., Respondents. Frank P. Raquet et al., Appellants, v Clifford A. Zane et al., Defendants, and Leonard J. Zane, Respondent.
    Submitted May 15, 1995;
    decided June 29, 1995
   Motion to clarify opinion denied. [See, 85 NY2d 423.]


text:
    [655 NE2d 163, 631 NYS2d 122]
    Stephen Lolik et al., Appellants, v Big V Supermarkets, Inc., Doing Business as Shop-Rite, Respondent.
    Decided July 5, 1995

      APPEARANCES OF COUNSEL

      Grasso, Rodriguez, Putorti, Grosso & Zyra, Schenectady (Lawrence J. Zyra of counsel), for appellants.

      Rowley, Forrest, O’Donnell, Beaumont & Pelersi, P. C., Albany (John H. Beaumont and Richard W. Bader of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.

Plaintiff, Claire Lolik, slipped and fell on a wet spot on the floor of defendant’s supermarket and she and her husband instituted this action to recover damages for her resultant injuries. The jury awarded Claire Lolik $12,000 for past pain and suffering, and apportioned liability, but failed to award her damages for future pain and suffering or to award her husband damages on his derivative cause of action. The trial court ordered a new trial on future pain and suffering, concluding that the jury’s verdict was against the weight of the evidence.

On appeal, a divided Appellate Division reinstated the jury’s verdict dismissing the claim for future pain and suffering. It held that the trial court could set aside the verdict and order a new trial only if there was " 'no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented’ ” (210 AD2d 703, 705), citing Cohen v Hallmark Cards (45 NY2d 493, 499). The test, the Court said, is not whether the jury erred in weighing the evidence, but whether any viable evidence existed to support the verdict. Concluding that there was and, therefore, that the jury’s verdict had "a rational basis”, it found Supreme Court erred in setting the verdict aside (210 AD2d, at 706).

However, there was abundant medical evidence from which the jury could conclude that the fall caused plaintiffs existing asymptomatic arthritic condition to become symptomatic after the fall and thus, as the dissenter observed, the trial court could set aside the dismissal and order a new trial if it concluded the jury’s verdict was against the weight of evidence. The standard for making that determination, and reviewing it on appeal, was whether " 'the evidence so preponderate^] in favor of the [plaintiff] that [the verdict] could not have been reached on any fair interpretation of the evidence’ ” (Moffatt v Moffatt, 86 AD2d 864, affd 62 NY2d 875; see also, Delgado v Board of Educ., 65 AD2d 547, affd no opn 48 NY2d 643). The Appellate Division simply ignored the evidence supporting plaintiffs claim and reinstated the jury’s verdict declining to award damages for future pain and suffering, erroneously concluding that inasmuch as there was evidence to support the verdict the analysis was at an end.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    [655 NE2d 165, 631 NYS2d 124]
    Peter A. DeAngelo, Doing Business as Pete DeAngelo Builders, Appellant, v Todd M. Brazauskas et al., Defendants, and Andrew J. Kraft, Respondent.
    Argued June 8, 1995;
    decided July 5, 1995

      APPEARANCES OF COUNSEL

      John J. Ottaviano, Lockport, for appellant.

      Jaeckle, Fleischmann & Mugel, Buffalo (Mary C. Fitzgerald of counsel), for respondent.

      Phillips, Lytle, Hitchcock, Blaine & Huber, Rochester (Mark J. Moretti of counsel), for New York State Builders’ Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of the Supreme Court reinstated.

Plaintiff builder constructed a home for defendants Brazauskas on a parcel of land belonging to defendant Kraft due to the Brazauskas’ mistaken belief as to the true location of their land. Under these unique circumstances, Supreme Court properly exercised its equity jurisdiction in directing plaintiff, whom it found "blameless,” to remove the construction, restore defendant Kraft’s land to its preconstruction condition and reimburse him for any damages caused by the removal (see, Berney v Brodie, 26 AD2d 679). Strict application of the doctrine of accession, which would entitle the true landowner to retain the house (see, People ex rel. International Nav. Co. v Barker, 153 NY 98, 100-101), would result in a windfall to defendant Kraft and is inappropriate here, where the proposed remedy of removal is feasible, can make the true owner whole (see generally, Dickinson, Mistaken Improvers of Real Estate, 64 NC L Rev 37 [1985]), and will avoid a forfeiture for plaintiff builder, who asserted no claim of title or right, but merely performed his contract with defendants Brazauskas.

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

Order reversed, etc.

       Defendant Kraft purchased the two lots comprising his parcel for $15,000 in 1993, and the house mistakenly constructed thereon was valued at approximately $70,000.


text:
    [655 NE2d 166, 631 NYS2d 125]
    Aurelio Argentina et al., Respondents, v Otsego Mutual Fire Insurance Company, Defendant and Third-Party Plaintiff-Appellant. Victor Argentina et al., Third-Party Defendants-Respondents.
    Decided July 5, 1995

      APPEARANCES OF COUNSEL

      Fishman & Tynan, Northport (Caroline Levy of counsel), for defendant and third-party plaintiff-appellant.

      Simonson & Cohen, P. C., Staten Island (James R. Cohen of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The issue in this appeal is whether the insureds gave timely notice to their carrier of the slip-and-fall accident that eventually led to a liability judgment against them. Since notice was not actually given until 171 days after the occurrence, plaintiffs had the burden of showing that there was a reasonable excuse for the delay (see, Security Mut. Ins. Co. v Acker-Fitzsimons, 31 NY2d 436). Here, the excuse plaintiffs offered was the insureds’ "good-faith belief’ that the injured party would not seek to hold them liable (see, e.g., D’Aloia v Travelers Ins. Co., 85 NY2d 825; Merchants Mut. Ins. Co. v Hoffman, 56 NY2d 799; see also, Security Mut. Ins. Co. v Acker-Fitzsimons, supra, at 441; 875 Forest Ave. Corp. v Aetna Cas. & Sur. Co., 30 NY2d 726). The existence of such a "good-faith belief’, as well as the question of whether the belief was reasonable, are ordinarily questions of fact for the fact finder (see, e.g., Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21; Winstead v Uniondale Union Free School Dist., 170 AD2d 500).

In this case, the issue was initially presented to the courts below in the context of cross motions for summary judgment. However, the Supreme Court ultimately considered and determined the question after a testimonial hearing held pursuant to CPLR 3212 (c). While that statute was designed primarily to permit early resolution of preliminary or secondary factual issues, it was used in this case to resolve the only substantive issue in the case: whether there was a cognizable excuse for the insureds’ delay in providing the insurer with notice. Thus, as the dissenters at the Appellate Division observed, the proceeding before the Supreme Court was effectively converted from one involving summary judgment to one involving a plenary bench trial resulting in a judgment rendered after a full fact finding.

Since the Supreme Court’s factual conclusions were wholly adopted by the Appellate Division majority, the only question before us is whether the affirmed finding by the courts below is supported by the record. While there is room for disagreement on the inferences to be drawn from the facts, it cannot be said as a matter of law that the lower courts erred in finding that the insureds acted promptly and reasonably under the circumstances. Although the accident was serious enough to occasion emergency room treatment, there was no evidence that the insureds knew or had reason to believe that permanent ongoing injury had occurred. Moreover, the insureds’ postaccident inquiry into the injured’s condition did not reveal the existence of the kind of harm that would naturally lead to a lawsuit. Finally, the close familial relationship between the insureds and the accident victim was of such a nature as to support a finding that the insureds reasonably believed that they would have been apprised if the injured party had been contemplating a lawsuit. Thus, under the peculiar circumstances of this case, there was an adequate factual foundation for the affirmed finding of reasonableness by the courts below.

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

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

       The Appellate Division dissenters characterized the majority’s opinion as holding "as a matter of law, that Victor Argentina’s * * * nonbelief in his potential liability was reasonable.” (207 AD2d 816, 818.) However, the statement is inaccurate. There is no language in the majority Appellate Division writing that would indicate that its holding was based on a legal rather than factual assessment of the case.


text:
    [655 NE2d 693, 631 NYS2d 597]
    In the Matter of Commissioner of Social Services, County of Franklin, on Behalf of Theresa PP., Appellant, v Ronald QQ., Respondent.
    Decided July 5, 1995

      APPEARANCES OF COUNSEL

      Jonathan C. Wool, Malone, for appellant.

      Peter Racette, Plattsburgh, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (209 AD2d 905).

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


text:
    [655 NE2d 168, 631 NYS2d 127]
    The People of the State of New York, Respondent, v Robert Wilson, Appellant.
    Argued June 5, 1995;
    decided July 5, 1995

      APPEARANCES OF COUNSEL

      Verna W. Cobb, Tuxedo, for appellant.

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant argues that the People violated his right to a speedy trial by failing to indicate readiness to proceed with his trial within "six months of the commencement of [defendant’s] criminal action” as required by CPL 30.30 (1) (a). The Appellate Division reversed defendant’s original conviction, remanded the case and ordered a new trial (156 AD2d 743). Subsequently, on defendant’s second appeal, the Appellate Division remitted the matter to County Court for a CPL 30.30 hearing (188 AD2d 671). After that hearing, defendant’s conviction was upheld a third and final time in the Appellate Division (207 AD2d 849). For purposes of defendant’s CPL 30.30 (1) (a) contention, the time must be measured from the date of the Appellate Division’s reversal of defendant’s first conviction, which occurred December 26, 1989. Defendant’s claim here must fail because the record indicates that the People announced their readiness on March 22, 1990, which was within the six-month period permitted under the statute. On that date, the People stated "we have been in contact with the victim. Our intentions are to go forward”. The prior courts determined that this statement sufficiently indicated the People’s readiness for trial, and we agree.

Our decision in People v Kendzia (64 NY2d 331) does not compel a different result. In Kendzia, we construed CPL 30.30 (1) (a) to require that the People (1) must communicate their state of readiness on the record and (2) must, in fact, be ready to proceed when they proclaim readiness. Regarding the second element in Kendzia, we stressed that CPL 30.30 requires actual readiness by the People, and "not a prediction or expectation of future readiness” (id., at 337). The first element was satisfied by the People’s on-the-record oral communication to the court. The second element was satisfied here where the People had secured the complainant’s cooperation for retrial, possessed a valid accusatory instrument, and had produced defendant.

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

Order affirmed in a memorandum.


author: Smith, J.

text:
    [655 NE2d 169, 631 NYS2d 128]
    The People of the State of New York, Respondent, v Frank C. Battaglia, Appellant.
    Argued June 6, 1995;
    decided July 5, 1995
    APPEARANCES OF COUNSEL

      Richard V. Slater, Public Defender of Chautauqua County, Mayville (Donald V Nihoul of counsel), for appellant.

      James P. Subjack, District Attorney of Chautauqua County, Mayville (Grace M. Hanlon and Neil M. Robinson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s vehicle was stopped by the police at 3:00 in the morning for proceeding the wrong way down a one-way street. The driver of the vehicle provided what the police rationally concluded was a false identification. In our view, this constitutes sufficient record support for the lower courts’ findings that the police possessed a founded suspicion of criminality justifying a common-law inquiry in the form of a request for defendant to consent to a search of the vehicle (People v Hollman, 79 NY2d 181, 191-192). Because this determination involves a mixed question of law and fact, beyond our power of review to the extent there is a finding below with record support (see, Matter of Gissette Angela P., 80 NY2d 863, 864), our review process is exhausted.

Smith, J.

(dissenting). Because I believe that there was no basis for the officer to ask defendant to search the trunk, I dissent and vote to reverse.

At 3:00 a.m. on January 31, 1992 in the City of Jamestown, New York, defendant’s car, driven by another individual,- was stopped for proceeding the wrong way down a one-way street. The officer stopping the vehicle transmitted his stop over the police radio. The officer’s transmission was heard by a fellow officer who came to the scene to assist.

Upon arrival at the scene, the second officer was informed by the first officer, who was seated in his patrol car issuing citations for the traffic violation, that the driver had given a false name because a computer check using the name given had come back negative. The first officer also stated that the owner was in the back seat of the car with a female companion. The second officer immediately approached the car and requested of defendant to search the trunk, and defendant agreed. The officer admitted that at the time he requested to search, he was not looking for anything in particular and had no information about the vehicle. His request was based on the hour, the giving of a false name and the fact that the car had gone the wrong way on a one-way street. In the trunk the officer saw a duffel bag and requested to search it. Defendant stated that the bag contained laundry, and he did not want it searched. The officer did not search it. The officer then picked up a wooden box and requested to search it. Defendant denied ownership of the box. The officer searched the box and found a small handgun. Defendant was frisked and two knives were found, one a gravity knife. Defendant was placed in the first officer’s patrol car and a consent to search form was completed by the officer. Defendant refused to sign the form, indicating he had previously given consent to search. After a supervisor arrived, the second officer informed him that a search of the vehicle’s trunk revealed a handgun and a search of defendant revealed an illegal gravity knife. Defendant was placed under arrest shortly after the supervisor arrived. Defendant was taken to the Jamestown Holding Center where a search of his person revealed cocaine and over two thousand dollars in United States currency.

After the supervisor’s arrival, he left the scene, apparently to research a point of law, and then returned and directed a search of the entire vehicle. Quantities of cocaine, marihuana and chukka sticks were found in the passenger compartment and the glove compartment. A third officer arrived at approximately 3:45 a.m., apparently after the entire vehicle had been searched, and was instructed by the second officer to obtain personal information from the female occupant in the car. The officer was informed, upon questioning her, that the car contained "bad stuff,” drugs.

Defendant’s motion to suppress the items found was denied, as was his motion to reargue. The Appellate Division affirmed, concluding that the driver’s giving the first officer a false name heightened the officer’s suspicion and justified further inquiry, including the request to search the car.

The facts known to the second officer did not justify a request to search the defendant’s trunk (People v Hollman, 79 NY2d 181, 194). The second officer stated that his request to search the car was based upon the hour, driving the wrong way down a one-way street and the giving of a false name. No criminal activity was indicated. Moreover, there is no showing on this record that the driver of the vehicle gave a false name. All that appears in the record is that the name of the driver did not appear in the computer. It does not automatically follow that the driver gave a false name. Nor was the statement by the driver sufficient to permit the police to request a search of the vehicle from the defendant.

It should be emphasized that the officer’s request of the defendant to search the trunk was made with absolutely no inquiry of the defendant. In People v Hollman, we clarified the difference between a request for information and a common-law right of inquiry, first delineated in our decision in People v De Bour (40 NY2d 210). We stated that "a request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area” (79 NY2d, at 191). "Once the police officer’s questions become extended and accusatory and the officer’s inquiry focuses on the possible criminality of the person approached,” the officer is no longer seeking information. "The encounter has become a common-law inquiry that must be supported by founded suspicion that criminality is afoot” (Hollman, supra, at 191). Here, the second officer made no inquiry whatsoever and simply requested that he be permitted to search the car.

Certainly, the initial stop of defendant’s car, travelling the wrong way on the roadway, was valid. Additionally, at that point, the officers were clearly entitled to request information from the occupants of the vehicle. However, we conclude that the facts known to the second officer did not justify a request to search defendant’s trunk — an intrusive inquiry requiring a founded suspicion of criminality (People v Be Bour, 40 NY2d 210, 223, supra; People v Hollman, 79 NY2d, at 194).

The second officer stated that his request to search the trunk was based upon the hour, the fact that the car had been driven the wrong way, and the driver’s giving of a name that could not be verified by a computer check. At that point, the officers would have been justified to continue their questioning of the vehicle’s occupants. Critically, however, at that time, there was no indication that the occupants had been engaged in any criminal activity that would have justified an intrusive request to search. There was no suggestion that the car was stolen. Indeed, the police were properly informed by the driver that the car belonged to defendant, seated in the back seat. Additionally, no contraband or other evidence of criminality was visible to the officers in plain view. Finally, the fact that the name given by the driver resulted in a negative computer check was itself nonindicative of criminality (see, People v Milaski, 62 NY2d 147, 156). Accordingly, the proper predicate for a request to search the trunk of defendant’s car was lacking.

In addition, the entire vehicle was searched apparently as the result of the supervisor’s research of the law and not because of the statement of the woman in the car that there were drugs. Her statement, therefore, did not form an independent basis for the search.

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

Order affirmed in a memorandum.


text:
    Cast the Sleeping Elephant Trust et al., Appellants, v Friends World College, Respondent.
    Submitted May 15, 1995;
    decided July 5, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying plaintiffs’ motion for renewal, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Mollie Fridovich, as Executrix of Bella Finkel, Deceased, Appellant, v Dennis R. David et al., Defendants, and John D. Fulco et al., Respondents.
    Submitted May 15, 1995;
    decided July 5, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    Great Western Bank, Respondent, v Violet Terio, Appellant.
    Submitted May 22, 1995;
    decided July 5, 1995
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of James M. Lee, Appellant, v Patricia B. Adduci, as Commissioner of the New York State Department of Motor Vehicles, et al., Respondents.
    Submitted June 19, 1995;
    decided July 5, 1995
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]).


text:
    In the Matter of Penfield Tax Protest Group et al., Appellants, v Linda Yancey, as Assessor of the Town of Pen-field, et al., Respondents.
    Submitted May 15, 1995;
    decided July 5, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that portion of Supreme Court’s order denying petitioner’s motion to amend the petition, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    PIA Investments Ltd. et al., Appellants, v UBS Securities, Inc., Respondent.
    Submitted June 5, 1995;
    decided July 5, 1995
   Motion to dismiss appeal denied.


text:
    Violet Terio, Respondent, v Vincent Terio, Appellant.
    Submitted May 22, 1995;
    decided July 5, 1995
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department, upon the ground that a direct .appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    Violet Terio, Respondent, v Title Insurance Company of Minnesota et al., Appellants.
    Submitted May 22, 1995;
    decided July 5, 1995
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Woody A., Appellant, v Maria V. F., Respondent.
    Submitted June 26, 1995;
    decided July 5, 1995
   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:
    [655 NE2d 171, 631 NYS2d 130]
    The People of the State of New York, Respondent, v Jose Alvarez, Appellant.
    Decided July 6, 1995

      APPEARANCES OF COUNSEL

      Karen M. Kalikow, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Lisa Ellen Mudd of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. After a jury trial, defendant was convicted of criminal possession and sale of a controlled substance in the third degree. On appeal, defendant challenged the court’s Allen charge to the jury as being improper. The Appellate Division rejected defendant’s contention.

The record indicates that the Allen charge when taken as a whole was proper. The initial charge stressed the importance of reaching a verdict without forcing any juror to yield a conscientious belief (see, People v Ali, 65 AD2d 513, 514, affd 47 NY2d 920). While noting the jurors must accommodate inconsistencies in what other jurors may urge and attempt to reconcile the testimony, the court urged the jurors to "stick to [their] guns” if they believed in the "righteousness” of their positions. Moreover, any lack of clarity that could have arisen from the initial charge was dispelled by the court’s supplemental instruction.

Defendant’s remaining contentions are unpreserved.

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

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


text:
    [655 NE2d 172, 631 NYS2d 131]
    The People of the State of New York, Appellant, v Rafael Robles, Respondent.
    Argued June 7, 1995;
    decided July 6, 1995

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Stuart P. Levy, Joseph N Ferdenzi and Allen H. Saperstein of counsel), for appellant.

      Arthur H. Hopkirk, New York City, and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to the Appellate Division, First Department, in accordance with CPL 470.25 (2) (d) and CPL 470.40 (2) (b).

Defendant was charged with criminal sale and possession of a controlled substance in the third degree. He and his lawyer were "personally present” (CPL 260.20) at the Sandoval hearing, though no interpreter was present. Defense counsel, however, never requested an interpreter and made no objection to the Sandoval hearing going forward without one. Defendant was later convicted after a jury trial.

At the Appellate Division, defendant claimed for the first time that he was constructively absent from his Sandoval hearing due to the absence of an interpreter and that he should, therefore, be granted a new trial. The Appellate Division affirmed his conviction, holding that the argument was unpreserved (192 AD2d 425, lv denied 81 NY2d 1079). A year later, the Appellate Division granted reargument to defendant and concluded that he did not have to preserve this claim by advancing it in the first instance before the trial court (203 AD2d 172, 173). The Court overturned the conviction and ordered a new trial (id., at 174-177). A Judge of this Court granted leave to appeal to the People.

The dispositive and only question, bypassed by the dissenting opinion, is the need for trial court preservation, or not, of such a claim involving an interpreter at a Sandoval hearing (compare, People v Dokes, 79 NY2d 656; see also, People v Ramos, 26 NY2d 272). The plain language of CPL 260.20 and its purpose support the conclusion that traditional trial court preservation rules apply when defendant is physically present with the lawyer.

CPL 260.20 gives a defendant the right to be "personally present during the trial of an indictment” (emphasis added). We have held that this right to be "personally present” at material stages of trial includes the Sandoval stage, and that defendants need not preserve alleged violations of this protection (People v Dokes, supra, at 662). No one quarrels with these settled propositions, nor with the unquestionable right of any defendant, upon request, to the assistance of an interpreter at any stage of a criminal proceeding. These merits concerns are not at issue here, however, since defendant concedes that he and his lawyer were personally present at the hearing (contrast, People v Dokes, supra), and no request for an interpreter was uttered to the trial court.

We conclude that maintaining customary preservation rules in a case such as this is prudent and a more definite, practical way to fairly satisfy the underlying purposes of the statute and attendant policies (compare, People v Gray, 86 NY2d 10, 19).

Smith, J.

(dissenting). I would affirm the order of the Appellate Division. At trial, defendant was convicted of criminal sale of a controlled substance in the third degree. The Appellate Division initially affirmed defendant’s conviction (192 AD2d 425) concluding that his claim that he was constructively absent at his Sandoval hearing because he needed an interpreter was unpreserved. Upon granting defendant’s motion for reargument, that Court reversed the conviction, determining that defendant did not need to register an objection to preserve the Sandoval issue since defendant requested an interpreter and otherwise informed the court that he needed such services.

Defendant informed the court that he needed an interpreter on defense counsel’s notice of appearance, the felony complaint and the Supreme Court file. Indeed, in the bulk of the material proceedings before the Trial Judge, including the proceeding only one month prior to the Sandoval hearing, defendant appeared with the assistance of the interpreter. Clearly, the interpreter’s continuing presence in the prior proceedings should have alerted the court to the need for interpretation. The court generally, not the defendant, maintains a continuing obligation to see that an interpreter is present. No construction of preservation law or rules of procedure attenuates this responsibility.

Additionally, our holding in People v Ramos (26 NY2d 272, 274) compels an affirmance here. The standard we set forth there — requiring defendant or counsel to call to the attention of the trial court "in some appropriate manner,” the need for an interpreter — was amply met on these facts. Had defendant failed to inform the court that he needed an interpreter and then sought to appeal, the People could accurately cry foul for defendant’s manipulation of the court. Defendant followed Ramos here, however. Nothing on this record posed an unreasonable burden on the trial court to continue providing the necessary interpretation services to defendant.

The majority claims that the dissent has bypassed the issue of preservation. It should be noted that the judgment rendered by the Supreme Court in this case occurred on April 15, 1991. People v Dokes (79 NY2d 656) was decided over a year later, on June 11, 1992. Until People v Dokes, this Court had not declared that the defendant had a right to be present at a Sandoval hearing. Certainly, the right to be present at a Sandoval hearing is a hollow right if a defendant does not understand what is going on.

Defendant preserved his right to an interpreter where that right was asserted in the defense counsel’s notice of appearance, on the felony complaint and on the Supreme Court file itself. This is a case where a court, after having been put on notice, failed to see that a defendant received the interpreter to which he was entitled. The words of the Appellate Division aptly address the preservation issue. That Court stated:

"It should be stressed that it is the court’s basic obligation to assure that the defendant’s fundamental right to be present and participate meaningfully in his defense is not compromised. That obligation is not diminished by the defendant’s omission constantly to remind the court of it, and a failure in its discharge is accordingly reviewable on appeal, as a matter of law, notwithstanding the absence of any objection thereto at trial (see, People v Dokes, supra, at 662; People v Antommarchi, 80 NY2d 247, 250; People v Mehmedi, 69 NY2d 759, 760; People v Ahmed, 66 NY2d 307, 310)”. (203 AD2d 172, 174.)

The obligation here was squarely on the court, and an interpreter should have been provided.

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

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


text:
    [655 NE2d 174, 631 NYS2d 133]
    John Mandelos, Appellant, v Kouzinia Karavasidis, Defendant and Third-Party Plaintiff-Respondent. John Chimney Construction, Inc., Third-Party Defendant-Respondent.
    Decided July 6, 1995

      APPEARANCES OF COUNSEL

      Eisenberg, Margolis & Friedman, New York City (Mitchell R. Friedman of counsel), for appellant.

      John P. Coogan, Garden City, for defendant and third-party plaintiff-respondent.

      Furey, Furey, Lapping, DeMaria & Petrozzo, P. C., Hemp-stead (James M. Furey of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying summary judgment to defendant as to the Labor Law § 240 (1) and § 241 causes of action and, as so modified, affirmed.

The lower courts should not have granted summary judgment, sua sponte on searching the record, to defendant because material issues of fact exist as to whether the subject properties qualified for the Labor Law exception (Labor Law § 240 [1]; § 241).

The record discloses a triable issue of fact, at least regarding the threshold "one- or two-family dwelling” qualification. Defendant’s two two-family semiattached structures at issue enjoy arguably unifying features, which preclude summary judgment in this case. The record shows that after renovations, during which plaintiff fell and was injured, these semi-attached buildings (1) shared a single stairway leading to all units in both buildings, (2) had a single metal gate, with one entrance, surrounding both properties, and (3) a common roof. On the other hand, the structures have separate basements, heating systems, doorways and garages, are taxed separately, and have different addresses. Also, separate work permits were issued for each building and allow only one- or two-family residential use. These disputed and conflicting facts and circumstances raise a legitimate fact dispute about the availability of the one- to two-family dwelling exemption under the Labor Law (Khela v Neiger, 85 NY2d 333).

There may also be an issue of fact as to the commercial versus residential nature of the improvements (see, Van Amerogen v Donnini, 78 NY2d 880, 883). All in all, neither party was entitled to summary judgment on the exemption issue on this record.

Additionally, for the reasons stated by the Appellate Division, plaintiff’s common-law negligence cause of action was properly dismissed.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [655 NE2d 696, 631 NYS2d 600]
    The People of the State of New York, Appellant, v Nathaniel Laws, Respondent.
    Decided July 6, 1995

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Darryll A. Buford of counsel), for appellant.

      Oscar Garcia-Rivera, Brooklyn, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Cona, 49 NY2d 26, 33-34). The Appellate Division erred by concluding that defendant’s motion for a trial order of dismissal was sufficient to preserve the Ryan issue for appellate review (see, People v Gray, 86 NY2d 10).

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


text:
    [655 NE2d 176, 631 NYS2d 135]
    Harold Flannery, Appellant, v General Motors Corporation et al., Defendants, and Truxmore, Inc., Respondent. (And a Third-Party Action.)
    Decided July 6, 1995

      APPEARANCES OF COUNSEL

      Jaroslawicz & Jaros, New York City (David Jaroslawicz of counsel), for appellant.

      Dougherty, Ryan, Giuffra & Zambito, New York City (Robert J. Giuffra and Thomas P. Giuffra 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 negative. Plaintiff does not contest that he failed to file an affidavit of compliance as required by Business Corporation Law § 307 (c) (2). That defect is jurisdictional and does not constitute a "mere irregularity]” subject to cure (see, Flick v StewartWamer Corp., 76 NY2d 50, 57 [holding that strict compliance with the procedures of Business Corporation Law § 307 is required to effect service on an unauthorized foreign corporation]; Stewart v Volkswagen of Am., 81 NY2d 203, 207 [noting "mandatory sequence and progression of service completion options” necessary to acquire jurisdiction over foreign corporation not authorized to do business in New York]; David v Fuchs, 204 AD2d 253, 254, lv denied in part and dismissed in part 84 NY2d 1003; Smolen v Cosco, Inc., 207 AD2d 441). Thus, plaintiff’s failure to serve defendant Truxmore, Inc. in accordance with the strict requirements of Business Corporation Law § 307 (c) (2) divested Supreme Court of jurisdiction over defendant and the motion to dismiss was properly granted.

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

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


text:
    In the Matter of Bruno Brigandi, Appellant, v Finance Administrator et al., Respondents.
    Submitted June 19, 1995;
    decided July 6, 1995
   Motion for leave to appeal from the order of Supreme Court dated November 13, 1991 dismissed upon the ground that it does not lie from that order (see, NY Const, art VI, § 3 [b]; CPLR 5602). Motion for reargument of motion for leave to appeal denied. [See, 85 NY2d 968.]


text:
    In the Matter of City of New York, Respondent, v Malcolm D. MacDonald, as Chairman of the New York City Board of Collective Bargaining, et al., Appellants.
    Submitted May 15, 1995;
    decided July 6, 1995
   On the Court’s own motion, appeals taken by appellants MacDonald and Boyle dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion by appellant MacDonald for leave to appeal denied.


text:
    Diana Corto, Appellant, v Francine Lefrak et al., Respondents.
    Submitted May 22, 1995;
    decided July 6, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division orders entered April 12, 1994 and July 5, 1994, dismissed as untimely; motion, insofar as it seeks leave to appeal from the Appellate Division order entered December 20, 1994, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution.


text:
    Salvatore R. Curiale, Superintendent of Insurance of the State of New York, as Liquidator of Nassau Insurance Company, Respondent, v Ardra Insurance Co., Ltd., Appellant, et al., Defendants. (And a Third-Party Action.)
    Submitted June 19, 1995;
    decided July 6, 1995
   Appeal, insofar as it seeks review of the Appellate Division order entered January 12, 1995, which affirmed the judgment of Supreme Court, New York County, entered May 17, 1994, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie as of right (NY Const, art VI, §3 [b]; CPLR 5601). Defendant Ardra’s appeal from the January 12, 1995 Appellate Division order brings up for review only the prior nonfinal Appellate Division order entered March 23, 1993 [189 AD2d 217] (see, CPLR 5601 [d]; 5501 [b]; Gilroy v American Broadcasting Co., 46 NY2d 580, 584; Matter of Greatsinger, 66 NY2d 680, 682-683).


text:
    Heritage Company of Massena, Respondent, v Jovana Spaghetti House, Inc., Doing Business as The Orchard Restaurant, et al., Appellants. Jovana Spaghetti House, Inc., Doing Business as The Orchard Restaurant, Appellant, v Heritage Company of Massena et al., Respondents.

      (Appeal No. 1.) (Appeal No. 2.)
    Submitted May 8, 1995;
    decided July 6, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the grant of partial summary judgment in action No. 1, dismissed upon the ground that that order does not finally determine action No. 1 within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Reginald Johnson, Appellant.
    Submitted June 19, 1995;
    decided July 6, 1995
   Petition for a writ of error coram nobis dismissed. There is no authority for initiating a writ of error coram nobis in the Court of Appeals (see, People v Gibbs, 85 NY2d 1030).


text:
    The People of the State of New York, Respondent, v Jose Laureano, Appellant.
    Submitted June 12, 1995;
    decided July 6, 1995
   Motion to vacate this Court’s order dated May 25, 1995 dismissing defendant’s appeal granted and appeal reinstated. [See, 85 NY2d 968.]


text:
    The People of the State of New York, Respondent, v Roy C. Letterlough, Appellant.
    Submitted June 26, 1995;
    decided July 6, 1995
   Motion to amend opinion and/or remittitur denied. [See, 86 NY2d 259.]


text:
    In the Matter of Dennis J. Pottinger, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted June 5, 1995;
    decided July 6, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument and renewal or, in the alternative, leave to appeal to this Court, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Raff & Becker, Appellant. Unemployment Insurance Appeal Board, Respondent.
    Submitted May 1, 1995;
    decided July 6, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying petitioner’s motion for reargument or, in the alternative, leave to appeal to this Court, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Nathaniel Sims, Appellant, v Thomas Coughlin, as Commissioner of the Department of Correctional Services of the State of New York, et al., Respondents.
    Submitted June 26, 1995;
    decided July 6, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from a decision (see, CPLR 5512 [a]; 5601).


text:
    In the Matter of Sun Company, Inc. (R & M), et al., Appellants-Respondents, v City of Syracuse Industrial Development Agency, Respondent-Appellant. Mobil Oil Corporation, Appellant-Respondent, v City of Syracuse Industrial Development Agency, Respondent-Appellant. Upstate Milk Cooperatives, Inc., Appellant-Respondent, v City of Syracuse Industrial Development Agency, Respondent-Appellant.
    Submitted June 26, 1995;
    decided July 6, 1995
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that appellants are not parties aggrieved by the order of the Appellate Division (see, CPLR 5511). Cross appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Walden Federal Savings and Loan Association, Appellant, v Village of Walden et al., Respondents.
    Submitted May 1, 1995;
    decided July 6, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2). Motions for a stay and a preference dismissed as academic.


text:
    In the Matter of John J. Ferlicca, Appellant-Respondent, v Ronald J. Starkweather et al., as Commissioners of the Monroe County Board of Elections, and Robert G. O’Mealia et al., Respondents-Appellants.
    Submitted August 25, 1995;
    decided August 30, 1995
   Motion for leave to appeal denied. Cross motion for leave to appeal dismissed upon the ground that cross movants are not parties aggrieved (see, CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals § 91, at 395).


text:
    [655 NE2d 701, 631 NYS2d 604]
    In the Matter of Ralph M. Mohr, a Commissioner of the Erie County Board of Elections, Respondent, v Harold W. Schroeder et al., Respondents, and Beverly A. Mazur, Appellant.
    Argued August 30 1995;
    decided August 31, 1995

      APPEARANCES OF COUNSEL

      Jasen, Jasen & Sampson, Buffalo (Mark Matthew Jasen of counsel), for appellant.

      Offermann, Cassano, Pigott & Greco, Buffalo (Eugene F. Pigott, Jr., of counsel), for Ralph M. Mohr, a Commissioner of the Erie County Board of Elections, respondent.

      Albrecht, Maguire, Heffern & Gregg, P. C., Buffalo (John M. Curran of counsel), for Harold W. Schroeder, respondent.

      Kenneth A. Schoetz, County Attorney of Erie County, Buffalo, for Erie County Board of Elections, respondent.
   OPINION OF THE COURT

Order reversed and order of Supreme Court, Erie County, reinstated for the reasons stated in the opinion by Justice Mario J. Rossetti at Supreme Court (162 Misc 2d 584).

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


text:
    [656 NE2d 591, 632 NYS2d 493]
    The People of the State of New York, Respondent, v Reginald Harrell, Appellant.
    Decided September 5, 1995

      APPEARANCES OF COUNSEL

      Aron, Twomey, Hoppe & Gallanty, New York City (Gary D. Hoppe of counsel), for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The issues raised are either nonreviewable or nonmeritorious (see, e.g., People v Gray, 86 NY2d 10; People v Hill, 85 NY2d 256).

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


text:
    Edward E. Klein, Appellant, v Edwin Eubank et al., Respondents.
    Submitted July 13, 1995;
    decided September 5, 1995
   Motion, treated as a motion for a stay, etc., denied.


text:
    In the Matter of Tully Construction Co., Inc., Appellant, v Alan G. Hevesi, as Comptroller of the City of New York, et al., Respondents.
    Submitted June 19, 1995;
    decided September 5, 1995
   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 granted.


text:
    L.C. Brown, Appellant, v Manhattan & Bronx Surface Transit Operating Authority, Respondent.
    Submitted June 19, 1995;
    decided September 7, 1995
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [bp.


text:
    In the Matter of Ronald Crumpley, Appellant, v Renate Wack, as Director of the Kirby Forensic Psychiatric Center, et al., Respondents. (And Another Proceeding.)
    Submitted August 14, 1995;
    decided September 7, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as (1) reversed the order of Supreme Court dated April 27, 1994 denying respondents’ motion to dismiss appellant’s application for rehearing and review of Supreme Court’s August 25, 1993 retention order, and (2) dismissed the application, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Cassandra Diaz et al., Appellants, v City of New York et al., Respondents.
    Submitted May 30, 1995;
    decided September 7, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order dismissing appellants’ appeal from Supreme Court’s order denying reargument and renewal, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Gerald Nelson, Appellant, v Board of Collective Bargaining, City of New York Department of Sanitation, et al., Respondents.
    Submitted June 19, 1995;
    decided September 7, 1995
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Juan Corporan, Also Known as Juan Corporam, Respondent.
    Decided September 7, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the modification by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to * * * modification” (CPL 450.90 [2] [a]).


text:
    West-Fair Electric Contractors et al., Respondents, v Aetna Casualty & Surety Company et al., Appellants.
    Submitted July 17, 1995;
    decided September 7, 1995
   Motion by defendant Gilbane Building Company to strike the brief and supplemental appendix filed by plaintiff L.J. Coppola, Inc. and for sanctions denied, without prejudice to any application for appropriate relief that the parties may wish to make to the United States Court of Appeals for the Second Circuit as to its certified question and the record to the Court of Appeals. [See, 85 NY2d 890.]


text:
    Banque Indosuez, Respondent, v Eftim Pandeff, Appellant.
    Submitted June 5, 1995;
    decided September 12, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Burke v Crosson, 85 NY2d 10, 18, n 5).


text:
    Salvatore P. Curiale, as Superintendent of Insurance of the State of New York, as Liquidator of Union Indemnity Insurance Company of New York, Appellant, v AIG Multi-Line Syndicate, Inc., et al., Respondents.
    Submitted June 26, 1996;
    decided September 12, 1995
   Motion for leave to appeal dismissed upon the ground that no motion lies to the Court of Appeals pursuant to CPLR 5602 (a) (1) (ii) from the May 25, 1995 judgment of Supreme Court.


text:
    In the Matter of the Claim of Walter Dukes, Jr., Appellant, v Capitol Formation, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 5, 1995;
    decided September 12, 1995
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed appellant’s appeal from that portion of the June 7, 1993 decision of the Workers’ Compensation Board that affirmed the November 12, 1991 decision of the Workers’ Compensation Law Judge made upon stipulation, dismissed upon the ground that appellant is not a party aggrieved (CPLR 5511); motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed appellant’s appeal from that portion of the June 7, 1993 decision of the Workers’ Compensation Board that affirmed the April 25, 1992 decision of the Workers’ Compensation Law Judge and as affirmed the August 19, 1993 decision of the Workers’ Compensation Board, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person and other ancillary relief dismissed as academic.


text:
    In the Matter of Joseph R. Picciotti, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
    Submitted July 3, 1995;
    decided September 12, 1995
   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:
    Walter F. Pike, Individually and as Representative of the Heirs, Distributees and Estate of Florence A. Pike, Deceased, Appellant, v State of New York, Respondent. (Action No. 1.) (And Another Action.) Thomas C. Van Amburg, Individually and as Representative of the Estate of Denise Van Amburg, Deceased, Appellant, v State of New York, Respondent. (Action No. 3.)
    Submitted June 12, 1995;
    decided September 12, 1995
   Motion by appellant Pike, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of his motion for reargument, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion by appellant Van Amburg for leave to appeal denied.


text:
    In the Matter of Shane Collins, Appellant, v Cesar Quinones et al., Respondents.
    Submitted July 10, 1995;
    decided September 14, 1995
   Motion for leave to appeal dismissed as moot.


text:
    Richard Gollel et al., Appellants, v Alvin J. Nassar, Sr., et al., Respondents.
    Submitted June 26, 1995;
    decided September 14, 1995
   Motion, insofar as it seeks leave to appeal from the April 28, 1995 Appellate Division order, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the July 15, 1994 Appellate Division order [206 AD2d 835], treated as a motion for reargument of appellants’ previous motion for leave to appeal from that order [see, 85 NY2d 802], dismissed as untimely. Cross motion for the imposition of sanctions denied.


text:
    Jimmy E. Jones, Appellant, v Luke Smith, as Acting Commissioner of the Westchester County Department of Corrections, Respondent.
    Submitted August 28, 1995;
    decided September 14, 1995
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Thomas L. Scott, Respondent, v Robert Cooper, Appellant.
    Submitted July 3, 1995;
    decided September 14, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    [658 NE2d 209, 634 NYS2d 432]
    PIA Investments Ltd. et al., Appellants, v UBS Securities, Inc., Respondent.
    Decided September 19, 1995

      APPEARANCES OF COUNSEL

      Chadbourne & Parke, New York City (Thomas J. Hall and Thomas J. McCormack of counsel), for appellants.

      Weil, Gotshal & Manges, New York City (Kenneth L. Steinthal of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, and certified question answered in the affirmative, for the reasons stated in the memorandum at the Appellate Division (211 AD2d 599).

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


text:
    [657 NE2d 490, 633 NYS2d 469]
    The People of the State of New York, Respondent, v Maurice Noble, Appellant.
    Decided September 19, 1995

      APPEARANCES OF COUNSEL

      Weil, Gotshal & Manges, New York City (Julie Rosensweig of counsel), E. Joshua Rosenkranz and Mark Gimpel for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested in October 1992 for possession of 39 vials containing over 1,350 milligrams of pure cocaine. He was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]). The Appellate Division affirmed, concluding that the issue of defendant’s knowledge of the weight of the evidence had not been preserved. Subsequently, this Court decided People v Gray (86 NY2d 10), holding that defendant was required to preserve the issue of his knowledge of the weight of the drugs.

We are unpersuaded by defendant’s additional argument that the Appellate Division below failed to exercise its unique weight of the evidence review power in this case (see, People v Bleakley, 69 NY2d 490). Contrary to defendant’s contention, we hold that the Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant (cf., People v Gray, supra). Viewed in this light, the decision below does not "manifest a lack of application” of the Appellate Division’s unique weight of the evidence review power (see, Bleakley, supra, at 496). As we observed in Bleakley, the Appellate Division is not required to expressly address that review power by writing in all criminal cases (see, id.).

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

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