text:
    Lincoln Amsterdam House, Inc., Respondent, v Charles Baxter et al., Appellants, and City of New York, Respondent.
    Submitted August 26, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order that affirmed Supreme Court’s order dismissing defendants’ claim against the City of New York, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Estate of Louis C. Mancuso, Deceased. Angela A. Mancuso, Appellant; Kimberly A. Francabandiero, as Administratrix C.T.A., Respondent.
    Submitted September 3, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Surrogate’s Court’s December 27, 1994 order incorporating the terms of the June 16, 1994 settlement, dismissed upon the ground that as to that Appellate Division order, appellant is not a party aggrieved; motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Surrogate’s Court’s order denying the application to direct the administratrix to supply certain information concerning the assets or affairs of the estate, and the Appellate Division order affirming Surrogate’s Court’s order denying the application to vacate the decree admitting decedent’s will to probate, dismissed upon the ground that those orders do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Henry Howard, Appellant.
    Submitted October 21, 1996;
    decided November 26, 1996
   Motion for leave to appeal dismissed upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Ralph Scott, Appellant, v Mark Shepard, Individually and as Records Access Officer of the New York State Department of Correctional Services, et al., Respondents.
    Submitted September 30, 1996;
    decided November 26, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s judgment as denied appellant’s motion to amend the petition, dismissed upon the ground that that part 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.


text:
    In the Matter of Mary R. Thenebe et al., Appellants, v Ansonia Associates et al., Respondents.
    Submitted September 23, 1996;
    decided November 26, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in Civil Court (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Gregg D. Van Alstine et al., Appellants, v Rocco A. Padula et al., Respondents. (And a Third-Party Action.)
    Submitted November 12, 1996;
    decided November 26, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    James Wyatt, Respondent, v State of New York, Appellant. Gerard Plunkett, Claimant, v State of New York, Defendant.
    Submitted November 18, 1996;
    decided November 26, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]). [See, 176 AD2d 574.]

Judge Smith taking no part.


text:
    James Wyatt, Plaintiff, v State of New York, Defendant. Gerard Plunkett, Respondent, v State of New York, Appellant.
    Submitted August 26, 1996;
    decided November 26, 1996
   Motion to dismiss appeal taken from the May 21, 1996 Appellate Division order granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that that Appellate Division order does not finally determine the action within the meaning of the Constitution. On the Court’s own motion, appeal taken pursuant to CPLR 5601 (d) from the October 10, 1996 Appellate Division order to bring up for review the May 21, 1996 Appellate Division order, dismissed, without costs, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]). [See, 176 AD2d 574.]

Judge Smith taking no part.


text:
    [675 NE2d 843, 653 NYS2d 89]
    The People of the State of New York, Respondent, v Michael Calvi, Appellant.
    Argued November 13, 1996;
    decided December 18, 1996

      APPEARANCES OF COUNSEL

      Carlo Joseph Calvi, Yonkers, and John R. Kelligrew, White Plains, for appellant.

      Christopher Quinn, Deputy Attorney-General, Albany (F. Josiah Leicht and William Comiskey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Defendant was convicted, following a nonjury trial, of multiple counts of bribe receiving, criminal possession of a forged instrument, grand larceny and receiving unlawful gratuities in connection with a municipal corruption scandal, investigation and series of prosecutions in Yonkers, New York. At a presentencing hearing, the Trial Judge, on the record, urged the defendant to cooperate with the New York State Organized Crime Task Force. Defendant began to do so in accordance with a written and signed cooperation agreement, entered into in the presence of and with the advice of his lawyers. Defendant agreed to testify against other targets in exchange for prosecutors bringing his cooperation to the attention of the trial court.

The agreement also contained a provision — the sole reviewable issue on this appeal — by which defendant purported to waive the right to appeal his conviction. No mention of the cooperation agreement or the waiver provision was made at the sentencing hearing, nor does it appear that it was judicially reviewed at all as part of the record. At that time, however, the prosecution did describe defendant’s cooperation as "helpful, but not substantial.” Though consecutive sentences were authorized, the trial court ultimately sentenced defendant to indeterminate terms of imprisonment, concurrent to Federal sentences. Defendant appealed to the Appellate Division. That Court modified defendant’s sentence, but otherwise enforced the waiver of the right to appeal. A Judge of this Court granted leave to appeal, and we now modify by remitting for a determination of the validity of defendant’s waiver.

This Court has approved the effectiveness of waivers of the right to appeal, so long as they are voluntary, knowing and intelligent, and "[t]he trial court determines that [the waiver] meets those requirements” (People v Seaberg, 74 NY2d 1, 11). In this casé, however, because the waiver was never explicitly reviewed or considered by the trial court, so far as the record discloses, the appellate court did not have "a sufficient basis for concluding that defendant’s waiver of his right to appeal was knowing, intelligent or voluntary” (People v Callahan, 80 NY2d 273, 283; see, People v Harris, 61 NY2d 9, 17).

In accepting a defendant’s waiver of the right to appeal, the trial court must at least satisfy itself on the record that the waiver complies with the procedural and integrity-of-process safeguards expressed in our precedents. "While there is no requirement that the trial court engage in any particular litany” (People v Callahan, supra, 80 NY2d, at 283), some judicial examination of the waiver itself with a manifestation expressed on the record, as may be appropriate, is necessary to show satisfaction of our protocols (compare, People v Holman, 89 NY2d 876 [decided today]). To be sure, trial courts retain some discretion in satisfying the record requirements to protect confidential data that may be claimed to be part of cooperation agreements in organized crime prosecutions and other such circumstances. Something, however, must be placed on the record, and nothing was done here, including no manifest review of the waiver itself "in the first instance, by the trial court,” as we have prescribed (People v Callahan, 80 NY2d 273, 280, supra). Thus, the Appellate Division should not have given automatic effect to the waiver in this record state.

We are constrained to remit this case to the Appellate Division with directions to remand to County Court to fulfill its responsibility in this regard. If County Court concludes the waiver does not satisfy the prescribed standards, then an appeal on the merits to the Appellate Division should proceed. If, on the other hand, the court concludes that the waiver is voluntary, knowing and intelligent, then the judgment of conviction should be amended to reflect that result.

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

Order modified, etc.


text:
    [675 NE2d 845, 653 NYS2d 91]
    The People of the State of New York, Appellant, v Bruce Wiggins, Respondent.
    Argued November 14, 1996;
    decided December 18, 1996
    APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Diane R. Eisner and Roseann B. MacKechnie of counsel), for appellant.

      Hancock & Estabrook, LLP, Syracuse (Patrick M. Connors of counsel), for respondent.
   Memorandum.

The order of the Appellate Division should be reversed and the judgment of conviction reinstated.

The sole issue raised on this appeal is whether defendant suffered ineffective assistance of counsel warranting the Appellate Division’s reversal and a new trial. Defense counsel’s lapse consisted of failing to notice a scheduled appearance and to show up at the designated time to attend upon defendant’s opportunity to testify before the Grand Jury (see, CPL 190.50 [5]).

Defendant Wiggins was charged in a two-count indictment with grand larceny in the fourth degree and robbery in the third degree. During his arraignment, he timely served notice of intention to testify before the Grand Jury (see, CPL 190.50 [5] [a]). The People served a reciprocal notice indicating the date and time defendant was scheduled to testify (see, CPL 190.50 [5] [b]). Defense counsel did not arrive at the Grand Jury appointment until after an indictment had been voted and declined the People’s offer to have his client appear before the same Grand Jury after that point.

Defendant instead timely moved to dismiss the indictment, claiming that he had been denied the opportunity to testify before the Grand Jury. Supreme Court denied defendant’s motion and reargument application. After trial and a jury verdict, defendant was convicted of grand larceny in the fourth degree and robbery in the third degree. The Appellate Division reversed on the law only on ineffective assistance of counsel grounds, based on the default in the appearance before the Grand Jury. The court dismissed the indictment with leave to re-present. It otherwise reviewed and found no error in the trial and judgment of conviction. A Judge of this Court granted leave to the People and we now reverse.

Effective assistance of counsel is satisfied "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147; see, People v Helm, 51 NY2d 853). Defense counsel’s failure to timely facilitate defendant’s intention to testify before the Grand Jury does not, per se, amount to a denial of effective assistance of counsel under the circumstance of this case (see, People v Sturgis, 199 AD2d 549, 550, lv denied 84 NY2d 833; contrast, People v Jimenez, 180 AD2d 757).

Notably, when a judgment of conviction has been rendered based upon legally sufficient trial evidence, appellate review of a claim alleging insufficiency of Grand Jury evidence is barred (CPL 210.30 [6]; see, People v Huston, 88 NY2d 400, 411). To elevate the kind of representational lapse, as occurred here at the Grand Jury phase, to an automatic delayed reversal device would be anomalous in the face of these overarching guideposts.

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

Order reversed and judgment of Supreme Court, Kings County, reinstated in a memorandum.


text:
    [675 NE2d 846, 653 NYS2d 92]
    The People of the State of New York, Appellant, v Reinaldo Ayala, Respondent.
    Argued November 20, 1996;
    decided December 18, 1996

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Stephen Muller and Joseph N. Ferdenzi of counsel), for appellant.

      Andrew C. Fine, New York City, Cynthia Colt and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the matter remitted to that court for consideration of the People’s appeal.

Defendant was arrested and charged with driving while intoxicated. The arresting officer testified at the suppression hearing that defendant agreed to take a breathalyzer test, after admitting to having had "a few beers.” The officer added that the test was administered approximately two and one-half hours after the arrest. Defendant had moved to suppress the results of the test on the ground that it was administered more than two hours after arrest. Criminal Court granted the motion. The Appellate Term dismissed the People’s appeal as not authorized, and a Judge of this Court granted the People leave to appeal.

The sole issue is whether a People’s appeal to an intermediate appellate court is authorized to challenge a trial court ruling suppressing the results of a consented-to chemical test. CPL 450.20 (8) provides an as-of-right appeal to the People from a criminal court "order suppressing evidence, entered before trial pursuant to section 710.20.” Subdivision (5) of CPL 710.20 authorizes suppression of results of chemical blood tests "administered in violation of the provisions of subdivision three of section eleven hundred ninety-four of the vehicle and traffic law, subdivision eight of section forty-nine-a of the navigation law or any other applicable law” (emphasis added).

Defendant urges a statutorily construed limitation only on the People’s right to appeal from certain orders granting suppression. We find the argument unpersuasive, because the plain language of CPL 710.20 (5) does not contain, import or justify any such one-sided appeal limitation. Since it permits suppression not only of court-ordered chemical tests, but also tests administered pursuant to "any other applicable law,” the People’s appeal options under CPL 450.20 (8) incorporate the whole of CPL 710.20. Thus, the restriction defendant would have this Court impose finds no support in the statutory language authorizing the People’s appeal.

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

Order reversed, etc.


text:
    [675 NE2d 847, 653 NYS2d 93]
    The People of the State of New York, Respondent, v Andre Holman, Appellant.
    Argued November 13, 1996;
    decided December 18, 1996
    APPEARANCES OF COUNSEL

      Allen Fallek, New York City, and Daniel L. Greenberg for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The issue here is the validity of a waiver of the right to appeal made as part of a sentencing bargain after a jury finding of guilt. A lighter sentence was openly agreed to and conditioned upon defendant not raising, on appeal, certain alleged errors that occurred at trial.

After the first trial ended in a hung jury, defendant was retried and convicted of criminal possession of stolen property in the third degree and unauthorized use of a motor vehicle. He was sentenced to concurrent one-year terms in prison.

After the retrial, held from July 7 through July 27, 1992, defendant moved, by notice of motion dated September 4, 1992, for an order setting aside the verdict on the grounds that the trial court had committed two errors. The first alleged error was the court’s limitation on what was read to the jury from defendant’s testimony at his first trial. Defendant contended that exculpatory portions of that testimony were not read to the jury. The second error alleged was that the court’s charge to the jury, in effect, amended the indictment by stating that defendant could be convicted regardless of whether he was the driver or a passenger in the automobile, contrary to the prosecution’s theory of the case that defendant was the driver. By a notice of motion dated December 30, 1992, defendant additionally moved to set aside the verdict on the ground that he was not present for discussions with certain prospective jurors concerning their ability to be fair and impartial. The decisions on these motions were obviated by the sentence bargain that ensued.

After conviction, defendant faced a maximum sentence of 21/3 to 7 years in prison. In return for a waiver of his right to appeal each of the alleged errors, defendant was sentenced to concurrent one-year terms. Relying upon People v Avery (85 NY2d 503) and People v Seaberg (74 NY2d 1), the Appellate Division concluded that defendant’s waiver of his right to appeal was "knowing, intelligent and voluntary,” and affirmed.

On this appeal defendant contends that the court accepted the bargain solely because it was concerned about reversal, thereby undermining the integrity of the judicial process (see, People v Seaberg, 74 NY2d, at 11). He seeks a reversal of the Appellate Division order and a remand to that Court for a review of the merits of issues not previously addressed.

To be enforceable, a waiver must be knowing, voluntary and intelligent. When accepting a waiver, a trial court must consider the reasonableness of the bargain, its appropriateness under the circumstances and the effect on the integrity of the judicial process (People v Seaberg, 74 NY2d, at 11). Reviewing courts must be likewise vigilant. As we cautioned in Seaberg, "Manifestly, an unfair bargain or one coerced to conceal error or misconduct does not meet these standards and is subject to vacatur on direct appeal or by appropriate posttrial proceedings” (id.). (Compare, People v Calvi, 89 NY2d 868 [decided today].)

Here, there is no cognizable coercion of the kind we were concerned with in Seaberg. There was no effort to conceal error and defendant was fully aware of what the appealable issues were. It was his choice to accept a lighter sentence rather than risk the delay and outcome of an appeal or a new trial. Having made his choice, there is no reason for this Court to interfere. Avoidance of an appeal of openly explored, arguable issues of law is not concealment of error for these purposes, and in this case does no actual or perceptual damage to the integrity of the judicial process.

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

Order affirmed in a memorandum.

       On October 27,1992, this Court determined that a defendant had a right to be present when prospective jurors were questioned about their ability to be fair and impartial (People v Antommarchi, 80 NY2d 247). On December 17,1992, this Court determined that People v Antommarchi would be applied in all cases where jury selection commenced after October 27, 1992 (People v Mitchell, 80 NY2d 519), a date after the jury was selected in this case.


text:
    [676 NE2d 71, 653 NYS2d 542]
    The People of the State of New York, Respondent, v John Mason, Appellant.
    Decided December 18, 1996

      APPEARANCES OF COUNSEL

      Andrea G. Hirsch, New York City, for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Patsy Bonanno of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was convicted of manslaughter in the first degree, criminally negligent homicide, and criminal possession of a weapon in the third degree, and sentenced to concurrent terms of 8 to 16 years, 2 to 4 years and 31/2 to 7 years.

Although defendant initially argued that he had been deprived of his right to be present at a material stage of trial, defendant now concedes that the Appellate Division correctly found that he had not been erroneously excluded from sidebar conferences during questioning of potential jurors. Defendant’s remaining claim of error is 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:
    Sylvia Pfister, Respondent, v Dayna Realty Associates, Ltd., et al., Appellants, et al., Defendants.
    Submitted December 9, 1996;
    decided December 18, 1996
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied. [See, 89 NY2d 860.]


text:
    [676 NE2d 492, 653 NYS2d 911]
    In the Matter of Fred Cleveland.
    Decided December 19, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that this Court’s November 1, 1996 suspension of Honorable Fred Cleveland from his office of Town Justice of the Town of Kortright, Delaware County, is continued, with pay.

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


text:
    [675 NE2d 1206, 653 NYS2d 254]
    The People of the State of New York, Appellant, v Andre Davidson, Respondent.
    Argued November 19, 1996;
    decided December 19, 1996

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes and Morrie I. Kleinbart of counsel), for appellant.

      Robert S. Dean, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Upon direct appeal from his conviction for first and second degree robbery, defendant argued that he was deprived of his right to be present during voir dire questioning of prospective jurors (see, People v Antommarchi, 80 NY2d 247). Because the trial court had refused to record substantial portions of the voir dire proceeding, the Appellate Division remanded the case for a reconstruction hearing. The reconstruction court found that defendant was not present during several conferences with prospective jurors at the Bench regarding their ability to be fair and impartial. Two of these prospective jurors were challenged peremptorily by the defense, and one was excused by the parties on consent.

We agree with the Appellate Division that defendant’s exclusion from the Bench conferences violated his right to be present during all material stages of trial, requiring reversal. A defendant has the right to be present during questioning of prospective jurors concerning their ability to weigh the evidence objectively. Where, however, the defendant’s presence at a proceeding could not have afforded any meaningful opportunity to affect the outcome, the defendant’s exclusion does not require reversal (see, People v Maher, 89 NY2d 318 [decided today]; People v Roman, 88 NY2d 18, 26).

Here, three of the prospective jurors questioned in defendant’s absence were excused by either a defense peremptory challenge or with defense counsel’s consent. Each prospective juror was thus dismissed as the result of a discretionary judgment made by defense counsel. Because defendant might have provided valuable input regarding his attorney’s discretionary decision to excuse these three venire members, the record " 'do[es] not negate the possibility that defendant might have made a meaningful contribution to the [proceeding]’ ” (People v Roman, 88 NY2d at 28, supra, quoting People v Favor, 82 NY2d 254, 267).

We reject the People’s invitation to distinguish among peremptory challenges or consensual excusáis based upon whether the dismissed juror appeared favorable or unfavorable for the defense, a procedure that would result in sheer speculation by reviewing courts. It constitutes yet another attempt to inject a case-specific prejudice analysis into the inquiry, which this Court has repeatedly held inapplicable to violations of a defendant’s fundamental right to be present (see, People v Favor, 82 NY2d at 267, supra).

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

Order affirmed in a memorandum.


text:
    [675 NE2d 1197, 653 NYS2d 245]
    In the Matter of the Arbitration between Otu A. Obot, Appellant, and New York State Department of Correctional Services, Respondent.
    Argued November 13, 1996;
    decided December 19, 1996

      APPEARANCES OF COUNSEL

      Brown & Kelly, LLP, Buffalo (Philip B. Abramowitz of counsel), and R. Nils Olsen, Jr., and H. Jeffrey Marcus for appellant.

      Leonard A. Mancini, Albany, and Anthony J. Annucci for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a correction officer with a 14-year record of service, was terminated from his position as a result of an incident in which he allegedly falsely accused another employee of having sexual relations with an inmate. The employee denied the misconduct and filed a complaint against petitioner for making a false report. Petitioner, in turn, denied having made the statement. The dispute culminated in the filing of disciplinary charges against petitioner, and the matter proceeded to arbitration in accordance with the applicable collective bargaining agreement. Having been represented by an attorney provided by his union, petitioner was ultimately found guilty of having violated two departmental rules and was discharged from his position.

Petitioner subsequently brought the present proceeding to vacate the arbitration award, arguing for the first time that the charges against him had been initiated to retaliate for his having testified in a Federal court action regarding pervasive racial bias at a Department of Correctional Services facility. According to petitioner, he had not raised this argument in the arbitration proceeding because his union attorney had "listened to none of this, had no time for it, and wanted [him] to plead guilty.”

The Supreme Court granted the requested relief and vacated the arbitration award. On respondent’s appeal, however, the Appellate Division reversed and reinstated the award. We agree with the Appellate Division that petitioner’s submissions do not demonstrate a cognizable legal basis for vacating the outcome of the arbitration proceeding.

Petitioner’s contention that the award is violative of public policy (see, e.g., Matter of Sprinzen [Nomberg], 46 NY2d 623) is unpersuasive because it rests on an unproven premise, i.e., that the disciplinary charges against him were initiated and pursued to retaliate for his role in the Federal bias proceeding. The retaliatory motive of petitioner’s prosecutors was a factual matter that bore directly on the validity of the charges and, as such, was an issue for the arbitrators to resolve. To ask the court to vacate the award on the basis of the public policies against retaliatory discharge is to beg the very question that was placed before the arbitrators.

Petitioner’s alternative argument based on CPLR 7511 (b) (1) (i), which provides for vacatur in the event of corruption, fraud or misconduct in procuring the award, fares no better. The "corruption, fraud or misconduct” to which petitioner refers is the union attorney’s alleged unwillingness to pursue his claim of retaliatory motive — conduct which petitioner asserts was a breach of the union’s duty of fair representation (see, Hines v Anchor Motor Frgt., 424 US 554; Vaca v Sipes, 386 US 171). Traditionally, such fair representation claims are asserted in plenary actions in which the court is asked to determine both whether the union’s duty was breached and whether the collective bargaining agreement was violated (see, e.g., Del Costello v Teamsters, 462 US 151, 163-164). Thus, even assuming that petitioner had a viable fair representation claim under New York State law (see generally, Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 195-196; Sinicropi v New York State Pub. Empl. Relations Bd., 125 AD2d 386; Jackson v Regional Tr. Serv., 54 AD2d 305), a proceeding to vacate the arbitration award was not the proper forum for asserting it.

We have examined petitioner’s remaining contention that the arbitrator’s award was irrational and have found it to be without merit.

Ciparick, J. (dissenting). We believe that the arbitration award directing petitioner’s termination should be vacated on the ground that it is violative of public policy (see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 308; Garrity v Lyle Stuart, Inc., 40 NY2d 354, 357) and that there should be a rehearing (see, CPLR 7511 [d]). Therefore, we respectfully dissent.

Shortly before his termination, petitioner served as the Inmate Program Placement Coordinator at the Elmira Correctional Facility. It is fair to say that the program petitioner was charged with administering was an attempt by prison administrators to address the charges of discrimination leveled by minority inmates in a Federal class action against prison officials (see, Santiago v Miles, 774 F Supp 775, 783). The class action alleged pervasive discrimination by prison officials in housing assignments, job placements and disciplinary matters involving minority inmates, which the Federal District Judge found to be substantiated by convincing statistical and testimonial evidence, including extensive testimony by petitioner (see, Santiago, supra, 774 F Supp, at 783-784, 795-799, 801). Particularly significant is the following finding by the District Court Judge:

"[Petitioner’s] testimony was remarkable in several respects. The testimony showed just how entrenched the racial bias was at Elmira in some of the staff. Time and again [petitioner’s] efforts to make race-neutral program assignments were thwarted by staff and guards. Incredibly, in a few instances, [petitioner] was himself harassed and intimidated by the offending guards. Apparently, nothing was done by top administrators concerning [petitioner’s] complaints” (id., at 801).

Petitioner relates that shortly after his testimony in the Federal class action, he was transferred to a different prison facility where he was met with unwelcoming remarks by the Deputy Superintendent. The misconduct charges followed soon thereafter. Despite the pattern of hostility exhibited toward petitioner, which arguably intensified after his testimony in the Federal class action, the union attorney assigned to represent him in the arbitration regarding the alleged incidents of misconduct summarily dismissed the relevancy of petitioner’s involvement in the Federal class action — assuring petitioner he would never lose his job — and did not raise this matter at the arbitration (see, Civil Service Law § 75-b [3]; see also, Matter of Civil Serv. Bar Assn. v City of New York, 64 NY2d 188, 196).

While the majority points out that whether the charges against petitioner were trumped up in retaliation for his participation in the Federal class action, in contravention of Civil Service Law § 75-b (2) (a) (ii), is an issue for the arbitrator, the fact is that this was never placed in issue by petitioner’s union-appointed legal representative and was not even considered by the arbitrator. Because of the strong public policy decrying retaliatory discharges expressed in Civil Service Law § 75-b (2), together with the public policy, as articulated by the Supreme Court, recognizing an exception to the finality of arbitral awards procured at the expense of the employee’s right to fair representation (see, Hines v Anchor Motor Frgt., 424 US 554, 570-571; Vaca v Sipes, 386 US 171, 177), we conclude that the award should be vacated, a determination compelled by the convincing factual findings and legal conclusions of the Federal District Court Judge in Santiago v Miles (supra). A rehearing before a different arbitrator, at which petitioner may appear with new counsel, should be held for the arbitrator to consider, inter alia, the genesis and nature of the misconduct charges, including whether they were pretextuál and brought in retaliation for petitioner’s testimony in Santiago v Miles (supra)', whether petitioner’s remarks were in fact “official;” and, if so, whether such remarks were uttered in disregard of his superior’s orders not to “play the [Department of Correctional Services] game” (see, CPLR 7511 [d]).

Accordingly, the order of the Appellate Division should be reversed.

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

Order affirmed, without costs, in a memorandum.

       The flaw in the dissent’s position is that it assumes, without benefit of a hearing or appropriate fact findings, that the union did, in fact, breach its duty of fair representation. Of course, in the absence of a finding that such a breach has occurred, there is no legal basis for vacating the arbitration award. Indeed, it is precisely because the discrete fair representation question still needs to be litigated that a separate plenary action is required.


text:
    In the Matter of Susan Baba, Appellant, v Martin Evans, as Justice of the Supreme Court, et al., Respondents.
    Submitted October 15, 1996;
    decided December 19, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Susan Baba, Appellant, v 1133 Building Corp. et al., Respondents.
    Submitted October 15, 1996;
    decided December 19, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of the Claim of Naomi Frazier, Appellant. John E. Sweeney, as Commissioner of Labor, Respondent.
    Submitted November 12, 1996;
    decided December 19, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of New York State Silicone Breast Implant Litigation. Caroline E. Sorger et al., Appellants, v Dow Chemical Corporation, Respondent, et al., Defendants.
    Submitted October 28, 1996;
    decided December 19, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    In the Matter of M. Robert Steel, as Surviving Trustee of the Trust for Anna E. Steel et al. In the Matter of Julius J. Epstein, as Executor of the Estate of Anna E. Steel, Deceased, et al., Respondents. In the Matter of John A. Steel, Appellant.
    Submitted July 29, 1996;
    decided December 19, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see, NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief, etc., dismissed as academic.


text:
    [675 NE2d 1209, 653 NYS2d 257]
    In the Matter of St. Luke’s-Roosevelt Hospital Center, Petitioner. Marie H. et al., Respondents; City of New York, Appellant.
    Decided December 20, 1996

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Alan G. Krams and Kristin M. Helmers of counsel), for appellant.

      Disability Advocates, Inc., Albany (Cliff Zucker of counsel), for Marie H., respondent.

      Kenneth Falk, New York City, Michael Colodner and John Eiseman for New York State Office of Court Administration, respondent.

      Dennis C. Vacco, Attorney-General, New York City (Amy L. Abramowitz and Barbara G. Billet of counsel), for State of New York, respondent.

      Steven S. Zaleznick, Bruce B. Vignery, Julie Campbell and Vicki Gottlich, of the District of Columbia Bar, admitted pro hac vice, for American Association of Retired Persons and others, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

In November 1993, St. Luke’s-Roosevelt Hospital Center initiated a proceeding pursuant to article 81 of the Mental Hygiene Law for the appointment of a guardian for respondent, an indigent alleged incompetent person (AIP), for the purpose of transferring her to a nursing home and making major medical or dental treatment decisions without her consent. The AIP had a right to be represented by counsel of her choice in those proceedings if she could afford one (Mental Hygiene Law § 81.10) and if she could not afford counsel, the court was obliged to assign counsel because required to do so by statute (Mental Hygiene Law § 81.10 [c]) and because her constitutionally protected liberty interests were at stake (see, Lassiter v Department of Social Servs., 452 US 18; Rivers v Katz, 67 NY2d 485). Supreme Court named an attorney as counsel for respondent and Mental Hygiene Legal Services as an independent court evaluator (see, Mental Hygiene Law §§ 81.09, 81.10; Bailly, Practice Commentaries, McKinney’s Cons Laws of NY, Book 34A, Mental Hygiene Law § 81.10, at 314). Though the statute is silent as to the source of funds for payment of counsel if the AIP is indigent, the Supreme Court determined that competent counsel could not be obtained to represent the AIP without compensation. After remand to provide the City of New York with an opportunity to contest the issue, Supreme Court held that the City must pay for the court-appointed attorney at the rates provided in article 18-B of the County Law. A divided Appellate Division affirmed those determinations (226 AD2d 106).

The parties agree that the AIP was entitled to assigned counsel. The dispute between them is whether the court may require that counsel be paid and if so, by whom. We conclude that the Legislature, by providing for the assignment of counsel for indigents in the Mental Hygiene Law, intended, by necessary implication, to authorize the court to compensate counsel. There remains the question of whether the City or the State is responsible for that compensation.

The two pertinent statutes are article 18-B of the County Law (§§ 722 — 722-f) and section 35 of the Judiciary Law. Assignments under article 18-B are paid for by the county (and by New York City for the five counties therein, see, § 722-e). Appointments under section 35 of the Judiciary Law are paid for by the State (§ 35 [5]). Although the statutes are silent on who should pay counsel in Mental Hygiene Law article 81 proceedings, the responsibility of paying for assigned counsel in the overwhelming majority of cases in which the appointment of counsel for indigents has been authorized has fallen upon the locality under article 18-B, rather than the State pursuant to Judiciary Law § 35. The evidence in the record before us establishes that article 18-B panels are better able, both financially and practically, to provide the needed assistance under this provision of the Mental Hygiene Law. Accordingly, in the absence of legislation directing otherwise, we affirm the determination of the courts below that assignment of counsel here is appropriately funded by the City of New York in accordance with the procedures set forth in County Law article 18-B.

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

Order affirmed, with costs, in a memorandum.

       The dissenter concluded that Supreme Court had abused its discretion in requiring the appointment of counsel who had to be compensated when it could have avoided the dilemma by simply removing Mental Hygiene Legal Services as evaluator and appointing it to represent the AIP. We conclude the court did not abuse its discretion as a matter of law in failing to do so.


author: Titone, J.

text:
    [675 NE2d 1211, 653 NYS2d 259]
    The People of the State of New York, Respondent, v Tania Ladd, Appellant.
    Argued November 19, 1996;
    decided December 20, 1996

      APPEARANCES OF COUNSEL

      Bartlett, Pontiff, Stewart & Rhodes, P. C., Glens Falls (Gary C. Hobbs of counsel), for appellant.

      Robert M. Winn, District Attorney of Washington County, Fort Edward, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of two counts of criminally negligent homicide and one count of reckless driving as the result of an automobile accident in which her pick-up truck struck a vehicle driven by Floyd Shepard. Shepard and a passenger, his daughter Robyn Borden, died as a result. The accident happened at approximately 4:15 a.m. on a foggy morning when defendant drove her vehicle on the wrong side of the road after consuming alcoholic beverages. Defendant, unconscious and unable to talk after the accident, was removed to Glens Falls Hospital for treatment of her injuries.

Defendant contends that there was an error in the instructions to the jury because the court read a portion of the indictment which, when charging criminally negligent homicide, alleged that defendant drove her vehicle on the wrong side of the road after consuming alcohol "and/or” operating without sufficient rest "and/or” without due regard to the weather conditions.

The court should not have read the factual allegations in the disjunctive because, in the abstract, doing so could permit the jury to premise guilt on only one of them. Nevertheless, the error does not warrant reversal in this case. There was no serious dispute that the accident happened in the Shepard lane of travel, about 4:15 a.m., on a foggy morning, that defendant had not slept the night of the accident, and that she had consumed alcoholic beverages during the evening. To the extent the allegations of the indictment were controverted, the challenge went to the extent or degree of the condition, not its existence, and defendant does not claim that the verdict rests on proof of only one of these facts. Indeed, she does not claim the evidence was insufficient to support the jury’s verdict. The court’s instructions were otherwise thorough and correct. It fully explained the elements of criminally negligent homicide, the difference between civil and criminal negligence and the quantum of evidence necessary to support a finding of guilt of the criminal charges. It impressed upon the jurors that the "carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence”, that a finding of criminal negligence "requires proof that the defendant’s conduct was of such a gross and flagrant character as to warrant the imposition of criminal liability”, and that defendant’s conduct must have been "seriously] blameworth[y].” When the jurors requested additional instructions during their deliberations, the court correctly instructed them on the law and avoided use of the disjunctive language. We have held that a charge may be sufficient, indeed substantially correct, even though it contains phrases which, isolated from their context, seem erroneous: "[t]he test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision” (People v Russell, 266 NY 147, 153). The charge in this case satisfies that test. We agree with the Appellate Division that when read as a whole, it fairly instructed the jury on the correct principles of law to be applied to the case and does not require reversal (see, People v Fields, 87 NY2d 821).

We also agree that defendant’s blood sample was properly obtained and admitted at trial. The suppression court concluded, based upon findings subsequently affirmed by the Appellate Division, that the State Police investigator had reasonable grounds to believe defendant had been operating her vehicle in violation of section 1192 of the Vehicle and Traffic Law. It based its conclusion on evidence that she had consumed alcohol, had driven across the center line of the road at an excessive rate of speed in the fog and collided head-on with the automobile in which the victims were riding. The court also found that the officer had satisfied the requireménts of section 1194 (1) of the Vehicle and Traffic Law by obtaining court authorization for the test because defendant was unconscious after the accident. Under the circumstances, the officer was not required to go through the formalities of an arrest (see, People v Goodell, 79 NY2d 869).

Next, defendant maintains that the results of the test were inadmissible under CPL 60.75 because the proceedings against her did not include a charge for violation of section 1192 of the Vehicle and Traffic Law. CPL 60.75 provides that when Vehicle and Traffic Law charges and Penal Law charges are tried together the evidence obtained pursuant to section 1194 of the Vehicle and Traffic Law is admissible as to both charges. The statute was enacted to remove any doubts arising from our holding in People v Moselle (57 NY2d 97), that when charges from the two chapters were joined the test results were not admissible with respect to the Penal Law charges. Section 60.75 does not limit the use of blood test results to prosecutions under the Vehicle and Traffic Law or to prosecutions linking Vehicle and Traffic Law and Penal Law offenses. Indeed, section 1195 (1) of the Vehicle and Traffic Law provides that blood test results are admissible at the trial of "any action or proceeding” arising out of a factual basis for a driving while intoxicated arrest. The evidence, if legally obtained and relevant, should be admissible in Penal Law prosecutions, notwithstanding the absence of any charge under the Vehicle and Traffic Law.

Finally, defendant claims error in admitting expert opinion evidence of the amount of alcohol in her blood at the time of the accident. The People’s expert, using the .057 BAG test results from a sample taken at 7:30 a.m., testified that based upon (1) the rate that alcohol is eliminated from the body of a person such as defendant under the circumstances presented and (2) the time between the accident and the test, her BAG at the time of the accident would have been .107%. Defendant’s objection to the admission of this "relation-back” evidence was not preserved and, accordingly, we do not pass on whether such evidence may be admitted over objection.

We have considered defendant’s claimed error by the court in answering the jury’s inquiries and find none.

Titone, J.

(dissenting). Recognizing that the trial court’s disjunctive charge should have been avoided, the majority nonetheless upholds defendant’s conviction on the theory that the charge as a whole "fairly instructed the jury on the correct principles of law”. (Majority mem, at 896.) A review of the court’s entire charge, however, reveals that the objectionable charge was never ameliorated or corrected and that the remaining portions of the instruction only served to magnify the initial flaw. Since, in my view, the charge as a whole misstated the applicable legal principles, I dissent from the Court’s decision to affirm.

The charge error occurred at the outset of the court’s instruction on the elements of the charged crime. After telling the jury that the People must prove all of the elements of the crime beyond a reasonable doubt, the court stated:

"Number one, with regard to the first count charging criminally negligent homicide in regard to the death of Floyd Shepard;
"That on or about August 1, 1993 * * * the defendant * * * was operating a motor vehicle * * * after consuming alcohol, and! or operating without sufficient rest, and/ or without due regard to adverse weather conditions, resulting in her vehicle crossing into the [oncoming] lane * * * those are the allegations, thereby creating a substantial risk of death to another person * * *. The first element, that she was operating, considering these allegations, they are and/or allegations, resulting in crossing into the [oncoming] lane.
"The second element is that * * * the defendant failed to perceive a substantial and justifiable risk of death.
"The third element is that the defendant’s failure to perceive the risk constituted a gross deviation from the standard of care a reasonable person would observe in this situation.
"The fourth element is that the defendant’s acts caused the death of Floyd Shepard.
"Therefore, * * * if you find that the People have proved to your satisfaction, beyond a reasonable doubt, each of these four elements, as I have just explained them to you; that on or about August 1, 1993 * * * the defendant * * * was operating a motor vehicle * * * after consuming alcohol and/ or operating without sufficient rest, and/or without due regard to adverse weather conditions, resulting in her vehicle crossing into the [oncoming] lane * * * thereby creating a substantial and unjustifiable risk of death to another person, to wit; Floyd Shepard. Number two, at the time she so acted, that the defendant failed to perceive a substantial and unjustifiable risk of death. Number three that the defendant’s failure to perceive that risk constituted a gross deviation from the standard of care a reasonable person would observe in this situation. And four, that the defendant’s acts caused the death of Floyd Shepard, then you must find the defendant guilty of the crime of criminally negligent homicide” (emphasis supplied).

The second count of the indictment, which concerned a second victim, was described in precisely the same way.

As is evident from the foregoing, the court’s charge unmistakably conveyed that the first "element” of the crime would be established if the jury found that defendant had committed any one of the enumerated acts, i.e., operating a vehicle after consuming alcohol, operating without sufficient rest or operating without due regard to adverse weather conditions. However, in the context of these facts, the commission of one of the foregoing acts was not, standing alone, sufficient to support a conviction for criminally negligent homicide. As we have previously stated, "criminal liability cannot be predicated on every act of carelessness resulting in death[. T]he carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence” (People v Boutin, 75 NY2d 692, 695-696).

Applying this principle, we have held that an individual who failed to perceive a vehicle stopped on the road ahead of him was not guilty of criminally negligent homicide even though he had been driving 60 to 65 miles per hour on a foggy, rainy and slushy night and a jury could therefore find that he had been driving "without due regard to adverse weather conditions” (see, id.). In contrast, we upheld liability under the criminally negligent homicide statute where the defendant had committed a series of careless acts which, taken in combination, manifested the kind of "serious blameworthiness” or gross deviation from reasonable care that the law requires (People v Paul V.S., 75 NY2d 944; People v Ricardo B., 73 NY2d 228; People v Soto, 44 NY2d 683; People v Haney, 30 NY2d 328; see, People v Boutin, supra, at 695-697; Penal Law § 15.05 [4]; § 125.10).

The legal proposition that arises from the case law — a proposition that the People here do not dispute — is that individual acts of civil negligence, such as driving too fast for weather and road conditions or driving without sufficient rest, ordinarily do not alone support a conviction for the crime of criminally negligent homicide. Since the trial court’s initial disjunctive discussion of the elements of the crime as applied to the facts in this case was contrary to this proposition, it was plainly erroneous.

Further, contrary to the majority’s assertion, there was nothing in the subsequent portions of the court’s charge that sufficed to dispel the inaccurate version of the law that the first part of the charge conveyed. Immediately after the objectionable charge describing the crime elements was given, the court told the jury that the factual matters it had referred to (i.e., defendant’s consuming of alcohol, her driving without due regard to adverse weather conditions and her driving without sufficient rest) were "allegations” and were "different than elements * * * with regard to the crime.” However, rather than correcting its earlier misstatement about what the People had to prove, the court exacerbated its error by twice stating that "[i]t is not necessary for the [P]eople to * * * prove all of the allegation [or] acts alleged in this indictment.” Thus, any lingering doubt about the court’s improper disjunctive terminology was resolved and the misimpression it created was reinforced.

Finally, the court’s supplementary charge did not cure the harm created by its main instruction. In its response to the jury’s request for a review of "the elements of criminal negligence,” the court first read the Penal Law definition of criminally negligent homicide and then, drawing heavily on the language of this Court’s opinion in People v Boutin (supra), it gave a general description of the high degree of culpability necessary to establish criminal negligence. While the supplementary charge was not in itself erroneous, it was not inconsistent with the court’s earlier inaccurate instruction and, thus, had no impact on that instruction’s effect.

Having repeatedly been told that the first element of the charged crime could be established if the People proved any one of the alleged acts and having never been disabused of that notion, the jury would naturally have tried to reconcile that instruction with the more general language of the supplementary charge. The likely result was an assumption by the jurors that criminal negligence requires a showing of conduct considerably more culpable than ordinary civil negligence and that that standard could be satisfied by proving any of the separate acts alleged in the indictment.

Accordingly, it cannot be said that the court’s instruction, either in its parts or as a whole, correctly conveyed the proper legal principles that the jury was to apply. Further, the erroneous charge that the court gave was highly prejudicial, since it impermissibly reduced the People’s burden of proof and authorized the jury to convict on findings that did not, in truth, satisfy the requirements of Penal Law § 125.10 as construed in cases such as People v Boutin (supra). Because the guilty verdict could well have been tainted by the jury’s flawed understanding of the law, I conclude that the judgment of conviction should be reversed.

Chief Judge Kaye and Judges Simons, Smith and Ciparick concur; Judge Titone dissents and votes to reverse in an opinion in which Judge Bellacosa concurs; Judge Levine taking no part.

Order affirmed in a memorandum.

       The People contend that this aspect of the trial court’s instruction, as well as its initial disjunctive charge, was justified by this Court’s holdings in People v Rooney (57 NY2d 822) and People v Charles (61 NY2d 321). However, Charles merely held that the People need not prove every factual allegation in the indictment and that the court could use the disjunctive in its charge where the " 'offense may be committed by doing any one of several things’ ” (People v Charles, supra, 61 NY2d, at 327, quoting People v Nicholas, 35 AD2d 18, 20 [emphasis supplied]). The Court reached the same conclusion in Rooney, but the holding rested, once again, on the premise that the jury in that case could find the defendant criminally negligent even if it found that he had committed only one of the alleged acts. Manifestly, that reasoning cannot be applied where, as here, not all of the alleged acts, standing alone, would suffice to establish the crime.


text:
    [675 NE2d 1216, 653 NYS2d 264]
    In the Matter of Timothy D. Reeves, Appellant, v County of Onondaga et al., Respondents.
    Argued November 20, 1996;
    decided December 20, 1996
    APPEARANCES OF COUNSEL

      John A. Cirando, Syracuse, Ivette Iza Zenner and Jacqueline B. Jones for appellant.

      Jon A. Gerber, County Attorney of County of Onondaga, Syracuse (Neil R. Saiger of counsel), for County of Onondaga and another, respondents.

      Melvin & Melvin, LLP, Syracuse (James A. Hoare of counsel), for Central New York Regional Market Authority and others, respondents.
   OPINION OF THE COURT

Memorandum.

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

When the Onondaga County Legislature appointed respondent Del Conte to his position on the Board of Directors of the Central New York Regional Market Authority in 1987, he was a "farmer-producer” within the meaning of Public Authorities Law § 827. However, he subsequently retired and was no longer classifiable as a farmer-producer in 1994, when the county legislature appointed respondent Russo, another nonproducer, to the Board.

Petitioner, allegedly a full-time farmer who regularly sells produce at the Central New York Regional Market, brought the present CPLR article 78 proceeding seeking, among other things, a declaration that either Del Conte’s or Russo’s seat was now vacant. The petition was based on the language of Public Authorities Law § 827, which authorizes Onondaga County to appoint three members of the Market’s Board. Under the statute, one of the appointees "may be either a producer or a non-producer of agricultural products” and the other two must be persons engaged in farming who derive "a greater part of their income therefrom” and who "actually sell all or part of their produce on the * * * Market.” Petitioner argued that the terms of the statute were violated because two of Onondaga County’s three appointed Board members are now non-producers. In petitioner’s view, either Del Conte or Russo must be removed from the Board and replaced with an active farmer-producer so that the statutorily mandated Board composition can be maintained.

We agree with the courts below that the provisions of Public Authorities Law § 827 have not been violated. That statute required only that respondent Del Conte be a farmer-producer at the time of his appointment. Thereafter, he was to "continue as a member during the pleasure of the body appointing him” (id.). While the Onondaga County Legislature had the option to replace Del Conte at any point, nothing in the statute required that his appointment be terminated upon a change in his status as a farmer-producer.

Nor was there anything in the statute that required the Onondaga County Legislature to appoint a farmer-producer to a seat on the Board in 1994 as a means of balancing the Board’s composition. To the contrary, Public Authorities Law § 827 provides that when a vacancy occurs, "it shall be filled in a manner corresponding to the original appointment.” The seat that was filled in 1994 had originally been occupied by an appointed nonproducer. The Onondaga County Legislature was therefore entitled to appoint a nonproducer when the seat became vacant, and the appointment of respondent Russo, a nonproducer, was entirely proper.

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

Order affirmed, with costs, in a memorandum.


text:
    [675 NE2d 1208, 653 NYS2d 256]
    The People of the State of New York, Appellant, v Anthony Kirkland, Respondent.
    Decided December 20, 1996

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for appellant.

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Stephanie J. Batcheller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that Court for consideration of the facts (see, CPL 470.25 [2] [d]; 470.40 [2] [b]).

After a jury trial, defendant was convicted of two counts of grand larceny in the fourth degree and two counts of petit larceny. Defendant was sentenced to two to four years’ imprisonment on each felony count and one year on each misdemeanor count, with all of the terms to run concurrently.

Prior to trial, defendant moved to preclude identification evidence on the ground that the People provided insufficient notice of their intent to present identification testimony (see, CPL 710.30) . After the trial court denied defendant’s motion for preclusion, defendant made an oral motion to suppress the proposed identification testimony and the court scheduled a Wade hearing. Thereafter, the court found that the identification procedure had not been suggestive and denied defendant’s motion to suppress the identification evidence. On appeal, the Appellate Division reversed defendant’s conviction on the ground that the People had provided deficient CPL 710.30 notice.

When the People intend to offer identification testimony from a witness, a notice of intent must be served upon the defendant specifying the evidence which the People intend to offer (CPL 710.30). The notice requirement is excused when a defendant moves for suppression of the identification testimony (CPL 710.30 [3]; People v Merrill, 87 NY2d 948; see also, People v Lopez, 84 NY2d 425, 428). Since the defendant here moved to suppress the identification testimony and received a full hearing on the fairness of the identification procedure, any alleged deficiency in the notice provided by the People was irrelevant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    [675 NE2d 1217, 653 NYS2d 265]
    The People of the State of New York, Respondent, v Anthony Johnson, Also Known as Barry Wilson, Also Known as Barry Williams, Appellant.
    Argued November 20, 1996;
    decided December 20, 1996

      APPEARANCES OF COUNSEL

      John Gemmill, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Gary Casimir and Joseph Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating defendant’s plea to the offense of criminal sale of a controlled substance in the third degree and the case remitted to Supreme Court for further proceedings on indictment No. 2545/91 and, as so modified, affirmed.

After being convicted of two counts of attempted aggravated assault and other crimes under one indictment, defendant pleaded guilty to criminal sale of a controlled substance in the third degree, in complete satisfaction of two counts of criminal possession of a controlled substance in the third and fifth degrees charged in a second completely unrelated indictment.

The Appellate Division unanimously affirmed defendant’s conviction under the first indictment. That Court also affirmed his conviction under the second indictment, with two Justices dissenting on the basis that the trial court lacked jurisdiction to accept his guilty plea to an offense not charged in the second indictment and which was not a lesser included offense or an offense of lesser degree or grade than the charged counts contained therein (217 AD2d 133). A Justice of the Appellate Division granted defendant leave to appeal.

The plea colloquy leading to defendant’s conviction for criminal sale of a controlled substance did not disclose any apparent factual relationship between the criminal sale plea and the criminal possession counts charged in the second indictment, other than the common date of the offenses and that the substance in all offenses was cocaine.

The provisions of CPL article 220 govern the acceptance of guilty pleas under indictments and, in some respects, are jurisdictional in nature because of constitutional implications (see, NY Const, art I, § 6). Section 220.10 provides that "[t]he only kinds of pleas which may be entered to an indictment are those specified in this section” (CPL 220.10 [emphasis supplied]). Except in circumstances not relevant here, where the indictment charges two or more offenses in separate counts, a defendant may enter a plea of guilty to one or more of the offenses charged and/or lesser included offenses thereof (CPL 220.10 [4]).

For plea purposes only, lesser included offenses include not only those qualifying as such under the general statutory definition of lesser included crimes (CPL 1.20 [37]), but also the specifically enumerated extensions of the lesser included offense concept, set forth in CPL 220.20 (1) (a)-(k). In this respect, the Criminal Procedure Law has imposed stricter criteria on plea bargains for lesser offenses, than its predecessor statute (see, former Code of Crim Pro § 342-a; People v O’Connor, 14 NY2d 62; People v Griffin, 7 NY2d 511).

Criminal sale of a controlled substance in the third degree is not a lesser included offense of criminal possession under the general definition (see, CPL 1.20 [37]), and it is omitted from the classes of crimes deemed to be lesser included offenses of criminal possession for plea purposes (see, CPL 220.20 [1] [i]). Thus, defendant’s plea conflicted with the express plea constraints set forth in CPL 220.10.

We have sanctioned two narrow exceptions to the present statutory guilty plea restrictions of CPL article 220, in reliance upon precedent decided under the former Code of Criminal Procedure. Following People v Foster (19 NY2d 150), we have approved of a plea to the technically nonexistent crime of an attempt to commit a specific crime which, by definition, is committed without intent, but which otherwise would have been a lesser included offense as an attempt under the general definition of CPL 1.20 (37) (see, People v Martinez, 81 NY2d 810 [plea to attempted manslaughter in the first degree]). Also following People v Foster (supra), we have approved of a plea to a lesser crime technically inconsistent with the crime charged, albeit sharing common elements and involving the same victim (see, People v Adams, 57 NY2d 1035, 1038 [plea to manslaughter, first degree, in satisfaction of a felony murder count involving the same victim, following the defendant’s conviction for the underlying felony]). These narrow exceptions are not out of harmony with the statutory rationale limiting guilty pleas to actual lesser included offenses, or to crimes akin to such lesser included offenses. They should not be extended, as would be so in the instant case, to a plea to a crime not only of equal or higher grade or degree to the crimes charged, but a plea to a crime of which the crimes charged are statutory lesser included offenses for plea purposes (see, CPL 220.20 [1] [h]), in direct contradistinction to the procedural rationale of CPL article 220. A different result would undermine the legislative policy of article 220 to place limitations on plea bargains deviating from the crimes charged.

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

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


text:
    [675 NE2d 1219, 653 NYS2d 267]
    The People of the State of New York, Respondent, v Robert E. MacDonald, III, Appellant.
    Argued November 19, 1996;
    decided December 20, 1996

      APPEARANCES OF COUNSEL

      Lawrence H. Weintraub, Slingerlands, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Following a motorcycle accident which resulted in the death of his wife, defendant was indicted for vehicular manslaughter in the second degree, criminally negligent homicide and two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2], [3]). A jury acquitted defendant of the counts of vehicular manslaughter and drunken driving, but convicted him of criminally negligent homicide and driving while ability impaired (Vehicle and Traffic Law § 1192 [1]). Defendant was sentenced to an indeterminate term of one year to three years. The Appellate Division affirmed defendant’s conviction and sentence.

Defendant failed to make a timely specific objection at trial to the sufficiency of the evidence to support the conviction of criminally negligent homicide, and to the admissibility of relation-back testimony regarding defendant’s blood alcohol level at the time of the accident. Therefore, these points were not preserved for this Court’s review (People v Gray, 86 NY2d 10, 19-21; People v Gonzalez, 55 NY2d 720, 722, cert denied 456 US 1010).

We find no merit to defendant’s contention that he was denied a fair trial because of certain evidentiary rulings (see, People v Ladd, 89 NY2d 893 [decided today]). Moreover, testimony regarding defendant’s attempts to avoid giving an adequate breath sample for alco-sensor testing was properly admitted as evidence of consciousness of guilt, particularly in light of the trial court’s limiting instructions to the jury on this point. Furthermore, error, if any, in permitting the People’s forensic scientist to report defendant’s blood alcohol level beyond the second decimal point at .089 and .091% was harmless, in view of defendant’s conviction for driving while ability impaired (see, Vehicle and Traffic Law § 1195 [2] [c]). We similarly reject defendant’s claim that he was not given an individualized sentence.

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

Order affirmed in a memorandum.


text:
    John Brown, Respondent, v Eli Aran et al., Appellants.
    Submitted November 4, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellants’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Frederick M. Busch et al., as Temporary Guardians of Franklin K. Busch, an Incapacitated Person, Respondents, v Lynn M. Wheeler et al., Appellants. (And Another Action.)
    Submitted October 21, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the order of Supreme Court denying appellants’ motion for leave to serve an amended answer, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Century 21 Volpe Realty, Inc., Respondent, v Jhong Kim, Appellant.
    Submitted October 28, 1996;
    decided December 20, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Mary E. Downes, Respondent, v Eli Aran et al., Appellants.
    Submitted November 4, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellants’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Evergreen Associates, Respondent, v Maria Calderon, Appellant.
    Submitted November 12, 1996;
    decided December 20, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    In the Matter of the Estate of Ludwig Goidel, Deceased. Ilona Goidel, Appellant; Ben Z. Goidel et al., Respondents.
    Submitted November 4, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying appellant’s motion for reargument, resettlement, and amendment of a prior Appellate Division order or, in the alternative, leave to appeal to the Court of Appeals, 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:
    Anne S. Jermakian, Respondent, v Armen K. Jermakian, Appellant.
    Submitted November 18, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order granting respondent’s motion to strike portions of appellant’s reply brief and appendix, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Luis E. Jimenez, Appellant, v Franklin Weissberg, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted November 25, 1996;
    decided December 20, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [bl; 2103 [b] [23).


text:
    In the Matter of David A. Jones, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted September 23, 1996;
    decided December 20, 1996
   Motion to vacate this Court’s order dated August 9, 1996 dismissing the appeal denied. Motion for poor person relief, etc., dismissed as academic. [See, 88 NY2d 979.]


text:
    William Kaffka, Individually and as Executor of Dorothy Kaffka, Deceased, Appellant, v New York Hospital et al., Respondents.
    Submitted October 28, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as pertains to respondents Degann and Martens, Ryan & Steadman, P. C., dismissed upon the ground that as to those respondents the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Barbara Kaufman et al., Appellants, v Evelyn Silver et al., Respondents.
    Submitted December 9, 1996;
    decided December 20, 1996
   Motion to dismiss appeal denied. [See, 89 NY2d 801.]


text:
    Key Bank of New York, Respondent, v Lester I. Crandall, Appellant, et al., Defendants, and Janet LaPorte, Respondent.
    Submitted October 15, 1996;
    decided December 20, 1996
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that dismissed the appeal to that Court from so much of Supreme Court’s judgment as denied appellant’s motion for poor person relief and discovery, dismissed, without costs, upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal to that Court from so much of Supreme Court’s judgment as denied appellant’s motion for poor person relief and discovery, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Leon Sylvester, Inc., Appellant, v Aetna Casualty & Surety Company, Respondent.
    Submitted November 12, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for renewal and reargument, 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:
    Richard McAllan, Appellant, v 124-128 West 134th Street Tenants Association et al., Respondents.
    Submitted October 28, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s July 8, 1993 order, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Meridan Pullman, Respondent, v Donald Pullman, Appellant.
    Submitted November 12, 1996;
    decided December 20, 1996
   Motion for leave to appeal dismissed upon the ground that it does not lie (see, NY Const, art VI, § 3 [b]; CPLR 5602, 5513 [b]).


text:
    Henry Romatowski, Appellant, v Gary S. Hitzig et al., Respondents.
    Submitted October 15, 1996;
    decided December 20, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that pertains to appellant’s claims against respondents Hitzig and Long Island Medical Associates, dismissed upon the ground that as to those respondents, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Frank P. Watson, Appellant, v Robert M. Esposito et al., Respondents.
    Submitted December 16, 1996;
    decided December 20, 1996
   Appeal, insofar as taken from the portion of the Appellate Division order that dismissed appellant’s appeal from the Supreme Court order denying reargument, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise 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:
    Affiliated F.M. Insurance Co., Inc., Appellant, v Hartford Accident and Indemnity Co., Respondent, et al., Defendant.
    Submitted November 12, 1996;
    decided January 9, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for reargument / 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.

Judge Smith taking no part.


text:
    The People of the State of New York, Appellant, v Jeffrie Richardson, Respondent.
    Decided January 9, 1997
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York ex rel. Joel Anzalone, Appellant, v Frank Irvin, as Superintendent of the Wende Correctional Facility, Respondent.
    Submitted January 6, 1997;
    decided January 9, 1997
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth 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 [bj [2]).

Judge Titone taking no part.


text:
    Robert Schulz et al., Appellants, v New York State Executive, George Pataki, as Governor, et al., Respondents.
    Submitted December 23, 1996;
    decided January 9, 1997
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).

Judge Titone taking no part.


text:
    [677 NE2d 284, 654 NYS2d 713]
    In the Matter of Jeffrey L. Schulman et al., Respondents, v State Division of Human Rights, Appellant.
    Decided January 14, 1997

      APPEARANCES OF COUNSEL

      Michael K. Swirsky, New York. City, and Lawrence Kunin for appellant.

      O'Brien & Mayr, Rockville Centre (Nicholas P. Calabria of counsel), for respondents.
   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), judgment reversed, with costs, and matter remitted to the Appellate Division, Second Department, for consideration of issues raised but not considered on the appeal to that Court (see, Matter of Cahill v Rosa, 89 NY2d 14; Matter of Lasser v Rosa, 89 NY2d 14).

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


text:
    In the Matter of Amoretta V. and Another, Children Alleged to be Permanently Neglected. Tompkins County Department of Social Services, Respondent; Ella W., Appellant.
    Submitted December 23, 1996;
    decided January 14, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).

Judge Titone taking no part.


text:
    Forest Hills Associates, Respondent, v Brad Ralin, Appellant.
    Submitted November 25, 1996;
    decided January 14, 1997
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3; CPLR 5602).

Judge Titone taking no part.


text:
    Marco A. Longo, Jr., et al., Appellants, v Town 'N Harbor Owners Corp., Respondent.
    Submitted November 25, 1996;
    decided January 14, 1997
   Motion for reargument dismissed as untimely (see, 22 NYCRR 500.11 [g]). [See, 80 NY2d 924]

Judge Titone taking no part.


text:
    Gurdev Multani, Appellant, v Ross University et al., Respondents.
    Submitted December 30, 1996;
    decided January 14, 1997
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).

Judge Titone taking no part.


text:
    Related Guarantee Corporate Partners, L.P., Formerly Known as Aurora Associates, L.P., Respondent, v Louise Dembeck, Individually and as a Partner of Badem Buildings, et al., Appellants, et al., Defendants.
    Submitted November 18, 1996;
    decided January 14, 1997
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that the order of the Appellate Division, insofar as appealed from, does not finally determine the action within the meaning of the Constitution. Motion for sanctions denied.

Judge Titone taking no part.


text:
    Town of Sparta, Respondent, v Theodore M. Szymanski, Jr., Appellant. (And Another Action.)
    Submitted November 18, 1996;
    decided January 14, 1997
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed the May 22, 1995 order of Supreme Court, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judges Titone and Wesley taking no part.


text:
    Michael Trapani, an Infant, by Salvatore Trapani, His Parent and Natural Guardian, et al., Plaintiffs, v Rochester Gas and Electric Corporation, Appellant, and Town of Gates et al., Respondents.
    Submitted November 12, 1996;
    decided January 14, 1997
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellant Rochester Gas and Electric Corporation’s motion for summary judgment, 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.

Judge Titone taking no part.


text:
    B. Clive Wood, Appellant, v Ingrid Wood, Respondent.
    Submitted November 18, 1996;
    decided January 14, 1997
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).

Judge Titone taking no part.


text:
    [678 NE2d 464, 655 NYS2d 852]
    The People of the State of New York, Respondent, v Rae T. Kellar, Appellant.
    Argued January 6, 1997;
    decided February 6, 1997

      APPEARANCES OF COUNSEL

      John T. Casey, Jr., Albany, for appellant.

      Kenneth R. Bruno, Acting District Attorney of Rensselaer County, Troy (Bruce E. Knoll of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

Defendant’s appeal should be dismissed, and the matter remitted to the Appellate Division for dismissal of defendant’s appeal to that court. County Court’s order denying defendant’s motion pursuant to CPL 440.30 (1-a) is not appealable to the Appellate Division as of right {see, CPL 450.10), and an appeal of such an order to the Appellate Division is not available under CPL 450.15. When the Legislature enacted CPL 440.30 (1-a) in 1994, it made no provision for appeal of orders emanating from applications for relief under that remedial section, nor did it add to the list of prescribed authorizations for appeals under CPL 450.10 or 450.15. Because the County Court order is not appealable to the Appellate Division, no appeal from the Appellate Division order lies in this Court {see, CPL 450.90).

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

Appeal dismissed, etc.


text:
    [678 NE2d 465, 655 NYS2d 853]
    National Association of Independent Insurers et al., Appellants, v State of New York et al., Respondents.
    Argued January 7, 1997;
    decided February 6, 1997

      APPEARANCES OF COUNSEL

      Stroock & Stroock & Lavan, New York City (Alvin K. Heller-stein, Martin Minkowitz, Edward P. Grosz and Donald Gabay of counsel), for appellants.

      Dennis C. Vacco, Attorney-General, New York City (August L. Fietkau, Robert A. Forte, Rosalie J. Hronsky, Peter H. Schiff and Barbara G. Billet of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In an effort to ensure payment of sales tax revenue to the State, the Legislature in 1991 changed the manner in which motor vehicle damage insurance awards are to be paid by enacting article 15 of the Tax Law. Pursuant to article 15, insurance carriers are required to send the sales tax component of an insurance award directly to the State Commissioner of Taxation and Finance (see, Tax Law § 341 [b], [c]). Claimant is then sent a credit voucher, which can be remitted to the repair shop or dealer in lieu of sales tax, if the vehicle is repaired or replaced within a year (see, Tax Law § 341 [d] [1], [2]).

Plaintiffs, 13 insurance carriers and their trade association, seek a declaration that article 15 is facially unconstitutional and an injunction to prevent its implementation. Plaintiffs argue that article 15 violates their due process rights because it does not allow for a refund in the event that the funds remitted to the State by insurers exceed the amount of sales tax actually assessed. Plaintiffs further contend that, because repair shops and dealers are not required to accept the vouchers (see, Tax Law §§ 341 [d] [2]), a claimant may be required to pay sales tax that the insurer has already remitted to the Commissioner, thereby resulting in an unconstitutional double taxation without possibility of a refund.

A presumption of constitutionality attaches to article 15, and this Court is required "to avoid interpreting [it] in a way that would render it unconstitutional if such a construction can be avoided” (Alliance of Am. Insurers v Chu, 77 NY2d 573, 585). Plaintiffs’ facial constitutional challenge hinges on speculative assertions regarding possible actions by future claimants, motor vehicle repair shop owners and dealers. The sets of facts posed by plaintiffs, however, are not presently before the Court — indeed, article 15 does not even become effective until July 1997 (see, L 1996, ch 309, § 252). At this point, then, we cannot presume that it will result in overpayment of taxes or double taxation.

Nor can we presume that a refund request would be denied. Article 15 does not on its face preclude the Commissioner from refunding excessive or double taxes to claimants or insurers. To the contrary, it specifically incorporates the provisions of article 28 of the Tax Law to the extent that they are not inconsistent with any provision of article 15 (see, Tax Law § 341 [f] [2]), and section 1139 (a) of article 28 provides that "the tax commission shall refund or credit any tax * * * erroneously, illegally or unconstitutionally collected or paid.” This general refund provision is not inconsistent with the two specific sales tax refund provisions contained in article 15 (see, Tax Law § 341 [e] [1], [2]). The constitutionality of the statute as applied to a particular claimant or insurer might be addressed when and if the statute actually does result in overpayment of taxes or double taxation.

Plaintiffs’ remaining contentions lack merit.

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

Order affirmed, with costs, in a memorandum.


text:
    [678 NE2d 466, 655 NYS2d 854]
    Richard Covey, Respondent, v Iroquois Gas Transmission System, L.P., et al., Appellants.
    Argued January 9, 1997;
    decided February 6, 1997

      APPEARANCES OF COUNSEL

      Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., Albany (William J. Greagan of counsel), for appellants.

      Rowley, Forrest, O’Donnell, Beaumont & Pelersi, P.C., Albany (David P. Miranda and Brian J. O’Donnell 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 commenced this action pursuant to Labor Law § 240 (1) to recover damages for personal injuries he sustained when he fell approximately 20 feet from a backhoe into a trench during the course of his employment with a contractor engaged by defendants to construct a pipeline. At the time of the accident, plaintiff was attempting to replace hydraulic fluid in the backhoe, which was adjacent to the pipeline trench. The Appellate Division correctly determined that plaintiff was engaged in an activity protected under Labor Law § 240 (1), inasmuch as the work performed by plaintiff was part of the construction of the pipeline (see, Lombardi v Stout, 80 NY2d 290, 296). In addition, under the circumstances of this case, plaintiffs fall from the backhoe into the 15-foot deep excavation after attempting to-steady himself by grabbing an improperly secured handrail was the type of elevation-related risk for which Labor Law § 240 (1) provides protection (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 560-562).

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

Order affirmed, etc.


text:
    In the Matter of Elaine Boscherini, Respondent, v Peter Borgia, Appellant.
    Submitted December 9, 1996;
    decided February 6, 1997
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Appellant, v Gale Lesley, Respondent.
    Submitted January 6, 1997;
    decided February 6, 1997
   Motion to dismiss the People’s appeal granted and appeal dismissed as moot. [See, 89 NY2d 868.]


text:
    [678 NE2d 467, 655 NYS2d 855]
    In the Matter of New York City Asbestos Litigation. Amelia Maltese, Individually and as Executrix of the Estate of Mario Maltese, Appellant, v Westinghouse Electric Corp., Respondent. Savino Stallone et al., Appellants, v Westinghouse Electric Corp., Respondent. (And Another Action.)
    Argued January 8, 1997;
    decided February 11, 1997
    APPEARANCES OF COUNSEL

      Wilentz Goldman & Spitzer, New York City (Christopher M. Placitella, Frank M. Ortiz and Barry R. Sugarman of counsel), for appellants.

      Cravath, Swaine & Moore, New York City (David Boies of counsel), and Akin, Gump, Strauss, Hauer & Feld, L.L.P., New York City (Robert A. Johnson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division insofar as appealed from should be affirmed, with costs.

Mario Maltese and Savino Stallone were mechanics at Consolidated Edison Company’s New York City powerhouses. Maltese worked at Con Edison’s Hudson Avenue and Astoria powerhouses from 1951 through 1985. Stallone worked at the Hudson Avenue facility from 1946 until 1981. Both men contracted mesothelioma, a rare form of cancer, as a result of their exposure to, among other things, the dust generated by maintenance and repair of asbestos-insulated turbines that defendant Westinghouse Corporation had sold to Con Edison.

Plaintiff-appellants (Maltese’s estate, Stallone and his wife) brought suit in Supreme Court seeking damages for their injuries from multiple defendants, including Westinghouse. The case was consolidated with several others, the jury finding Westinghouse 20% liable for plaintiffs’ injuries. The jury further found that Westinghouse demonstrated reckless disregard for the safety of Maltese and Stallone — making the corporation jointly liable for plaintiffs’ noneconomic damages (see, CPLR 1602 [7]) — and that an award of punitive damages against Westinghouse was appropriate. On Westinghouse’s posttrial motion, the trial court set aside those portions of the verdict finding reckless disregard for the workers’ safety and assessing punitive damages. Judgment was thereafter entered, and the Appellate Division affirmed.

We agree with the trial court and Appellate Division as to the finding of reckless disregard, concluding that no valid line of reasoning and permissible inferences could possibly lead rational people to the conclusion reached by the jury on the basis of the evidence presented at trial (Cohen v Hallmark Cards, 45 NY2d 493, 499).

In Saarinen v Kerr (84 NY2d 494) we addressed the level of conduct required to establish "reckless disregard for the safety of others” under Vehicle and Traffic Law § 1104 (e). We adopted a gross negligence standard, requiring that " 'the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” {id., at 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]). Applying that standard here, we conclude that the evidence is insufficient to support the jury’s finding of reckless disregard for the workers’ safety. At most, the evidence reveals Westinghouse’s general awareness that exposure to high concentrations of asbestos over long periods of time could cause injury, but not that workers such as Maltese or Stallone were at risk at any time it could have warned them.

Our conclusion makes it unnecessary for us to consider whether the same, or a higher, standard applies to punitive damages.

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.