author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Wayne Johnson, Appellant.
    Argued October 10, 1984;
    decided November 27, 1984

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Peter D. Braun of counsel), for appellant.

      Howard R. Relin, District Attorney (Michael J. Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted and the indictment dismissed.

The flaw in the People’s case is that nothing preceding the encounter with defendant justified a founded suspicion that he was engaged in or about to be engaged in criminal conduct. The officer testified to no more than that he had known defendant for six years and had “arrested him on several occasions for burglary” and that, “He was just walking through the Corn Hill area. We had a rash of burglaries in the area the last few weeks and [were] concentrating our own efforts in the area. He was walking around looking at houses and aroused my suspicion.” The facts that there had been previous criminal activity in the area, that when stopped defendant was in an alley and that he was “looking at houses” provide no sufficient bases to infer criminal activity had been or was about to be undertaken. It can hardly be regarded as unusual that defendant was looking at houses, for there is little else to look at in a residential neighborhood, and there is no other testimony suggesting that his behavior was furtive or his movements unusual or that he was carrying anything that might provide a basis for suspicion.

In sum, a stop based on no more than that a suspect has previously been arrested for burglary and that there have been burglaries in the area is premature and unlawful and cannot be justified by subsequently acquired information resulting from the stop. And there being in the facts presented no basis for an inference of criminal activity, the issue is not beyond our power of review (cf. People v Harrison, 57 NY2d 470).

Jasen, J.

(dissenting). Today’s holding that the police do not have a right to approach a citizen on a public street to make a simple inquiry deals a serious and unjustifiable blow to effective law enforcement.

In the late morning of March 10,1981, Officer Johnson of the Rochester Police Force was on duty and parked in an unmarked police vehicle in the Com Hill section of the City. The officer was given specific orders to make every effort to observe criminal activity since the Corn Hill section had been plagued by numerous daytime burglaries, including burglaries reported as occurring several days earlier that week. The record discloses that such daytime burglaries in the Corn Hill section “had occurred by entry from back alley areas”, and this fact was known to the officer on March 10.

Officer Johnson observed defendant “going through back allies” and walking in the Corn Hill area “looking at houses”. The officer personally knew the defendant as he had arrested the defendant for burglaries on at least six prior occasions. Officer Johnson transmitted a radio call to Officer Klotzbach and indicated that a field interview should be administered to defendant. Officer Klotzbach, in pursuance of the request of Officer Johnson, called to the defendant and asked defendant to approach him. Officer Klotzbach asked the defendant for identification, which defendant produced, and whether he was armed. At this time, acting totally without solicitation, defendant voluntarily produced nine envelopes from under his clothing and stated that he had found the envelopes in an alley in the neighborhood. As it turned out, the envelopes contained stolen hockey tickets for Rochester Amerks games, and defendant later confessed to the theft from the box office. Thereafter, defendant pleaded guilty to one count of burglary in the third degree following a denial of his motion to suppress.

Both courts below, in refusing to suppress evidence of the crimes of burglary and larceny, held thát the conduct of the police in approaching defendant to make a brief limited inquiry was proper under the circumstances. The majority in this court, however, in reversing the judgment of conviction and dismissing the indictment, hold the police conduct “unlawful” and, in effect, violative of defendant’s rights under the Fourth Amendment of the United States Constitution. I cannot agree and, therefore, respectfully dissent and vote to affirm the order of the Appellate Division.

What was unlawful with the police conduct here? The Fourth Amendment clothes the citizen with the right to be secure against “unreasonable searches and seizures”. What search or seizure was conducted here? Certainly there was no search of the defendant. No move was made to search defendant’s person or possessions. The police officer exited from his car and asked defendant to identify himself, which he did, and whether he was armed. Defendant responded by reaching “under his shirt and came out with a wad of envelopes saying, T find these in the alley behind me and was wondering what to do with them’.”

Nor was there a “seizure” of defendant within the meaning of the Fourth Amendment. No claim is made that the police, in exercising their common-law right to inquire, acted in a threatening or abusive manner, nor did they say anything to indicate that defendant was not free to walk away during the inquiry. (See People v Carrasquillo, 54 NY2d 248, 252-253.) It is established that a seizure, for Fourth Amendment purposes, has occurred only when a “ ‘reasonable person would have believed that he was not free to leave.’ ” (Florida v Royer, 460 US 491,502 [plurality opn of Justices White, Marshall, Powell and Stevens] [Blackmun, J., dissenting, 460 US, at p 513] [Rehnquist, J., dissenting, with whom Burger, Ch. J., and O’Connor, J., join, 460 US, at p 523, n 3.) Since there was no detention, nor any claim of detention, there has been no seizure within the meaning of the Fourth Amendment and no constitutional rights have been infringed.

Nor does it involve a stop and frisk situation, or a case where the police officer approached the defendant with a gun drawn and ordered the defendant to freeze and not move. All that happened was that, as stated before, the police officer made a limited inquiry of the defendant when he voluntarily produced the stolen hockey game tickets from under his shirt. While reasonable suspicion that a particular person “was engaged in or about to be engaged in criminal conduct” is required before the police may stop and frisk that individual (CPL 140.50, subd 1; Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210, at p 223), that standard is not applied when a police officer is merely making an inquiry of an individual without imposing any restraint upon him (People v De Bour, supra, at p 223).

Law enforcement officers do not violate the Fourth Amendment by “merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions”. (Florida v Royer, 460 US 491, 497, supra [emphasis added] [citations omitted]; Florida v Rodriguez, 469 US_,_, 105 S Ct 308, 310-311.) As Justice White aptly noted in his concurring opinion in Terry v Ohio (392 US 1, 34, supra), “[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way * * * Of course, the person stopped is not obligated to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation.” (See, also, United States v Mendenhall, 446 US 544.)

Recognizing, as we must, that a police officer has the right to address questions to members of the public in the course of his duties, and that the purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, what constitutional impropriety occurred here? The Constitution bars unreasonable “seizures” but does not bar police intrusions to inquire that fall short of a “seizure”, such as we have here. Based upon the objective definition of a “seizure” — whether a reasonable person would have believed that he was not free to go — - the unobtrusive contact between the defendant and the police officer does not rise to the level of a seizure so as to warrant Fourth Amendment scrutiny. This view finds added support in the opinion of Justice Stewart in United States v Mendenhall (446 US 544, 553-554, supra), cited and relied upon in Florida v Royer (460 US 491, 497-498, supra), where he noted that “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.” The fact that the officer identifies himself as a police officer, without more, does not convert the encounter into a seizure requiring some level of objective justification. (Florida v Royer, 460 US 491, 497-498, supra.) As long as the person to whom the question has been put remains free to disregard the question and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized justification, such as “founded suspicion”. (Florida v Royer, 460 US 491, 497-498, supra.) Thus, in the absence of arbitrary and oppressive conduct, inoffensive inquiry by a police officer to a member of the public should not, as the majority seem to hold, amount to a seizure of that person. (People v Samuels, 50 NY2d 1035, 1037, cert den 449 US 984.)

I would hold, under the circumstances present here, that the police-initiated inqpiry need not be justified upon a “founded suspicion that [defendant] was engaged in or about to be engaged in criminal conduct”, as the majority would require, prior to the point where a seizure within the meaning of the Constitution occurs, or, at all, where the suspect revealed voluntarily the incriminating evidence sought to be suppressed in a spirit of cooperation, and before seizure of any kind. (See Preiser, Confrontations Initiated By The Police On Less Than Probable Cause, 45 Alb L Rev 57, 66.)

To hold otherwise defies both constitutional principles and common sense in depriving a law enforcement officer of the common-law right to approach a citizen on a public street, in the course of his duties, to make a simple inquiry. Not only is such conduct of the police reasonable in every respect, it is often, as it was in this case, the essence of good police work. The majority, in suppressing incriminating evidence obtained during such inquiry of the admittedly guilty burglar in finding merit in a constitutional claim where none exists, will serve only to impede effective law enforcement.

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum; Judge Jasen dissents and votes to affirm in an opinion.

Order reversed, etc.

      . The record does not bear out the dissent’s statement that “Officer Johnson observed defendant ‘going through back allies.’ ” The hearing Judge made no such finding and the People have made no such claim at any stage of the proceeding. Officer Klotzbach used those words in testifying about Johnson’s radio dispatch to him, but the Judge sustained the defense argument that Johnson had to be called to establish the reliability of Klotzbach’s hearsay statement and reopened the hearing for that purpose. Though asked several times what he observed defendant do, Johnson’s only response was that quoted above and the finding of the hearing Judge was only that defendant was “walking in the area looking at houses, although he was doing nothing of a particular criminal nature.”

      . The theory of the dissent that there was but a brief limited inquiry and that the Appellate Division correctly so held (at p 620, n 2) is incorrect as a matter of law. The People relied on no such theory at the suppression hearing (and even in this court argue only that the stop was justified by reasonable suspicion), and the Appellate Division could not uphold the action of the police on a factual theory not argued by the People below <People v Dodt, 61 NY2d 408,416; People v Knapp, 52 NY2d 689,699 [Jasen, J., concurring]). Nor is the facile suggestion of “a diversity of phraseology” (at p 620, n 2) borne out by the record. The officers repeatedly testified about “stopping” and “intercepting” defendant, the matter was argued before the hearing Judge in terms of CPL 140.50, and the Judge found that pursuant to that section Officer Johnson “was in possession of reasonable suspicion that the Defendant * * * had committed or was about to commit a crime”. The People having made no argument other than seizure before the suppression court, there was no reason for defendant to present evidence on any other theory (see People v Tutt, 38 NY2d 1011,1013), and any ambiguity in the record must be resolved in favor of defendant.

      . Officer Klotzbach testified that Officer Johnson had informed him that defendant was “going through back allies”. Such testimony was not objected to in a timely fashion nor stricken from the record.

      . The evidentiary record in the trial court is adequate to permit consideration of the question of the legitimacy of the inquiry directed by the officer to the defendant. The correctness of the legal characterization of the facts appearing in the record was a matter for the Appellate Division to determine. While the parties at the suppression hearing utilized a diversity of phraseology to characterize the initial contact between the police and the defendant, the record supports the view that the purpose of the officer’s action was to inquire, as correctly noted by the Appellate Division.
      At the suppression hearing, counsel for the defendant argued that there was no “credible basis” upon which to stop defendant. The “credible basis” test is that utilized to evaluate the legality of police exercise of the common-law right of inquiry. (People v Carrasquillo, 54 NY2d 248, 253.) Moreover, it is significant that counsel for the defendant never argued that constructive or actual restraint was utilized to detain defendant, despite the People’s unrebutted testimony that defendant was free to leave at any time. Thus, where defendant sought application of the standard utilized to assess the validity of an inquiry, and where all evidence points to an absence of detention, it is disingenuous for appellant to argue on appeal that what actually occurred was a “stop”. Indeed, that what had transpired was a simple inquiry was argued before this court by the People’s assertion, at page 10 of their brief, that “the officer who approached defendant had a right to inquire of appellant his name and, as in this case, whether he was armed”. (Citations omitted.)


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Metropolitan Transportation Authority, Respondent, v Cosmopolitan Aviation Corporation, Appellant.
    Decided November 27, 1984

      APPEARANCES OF COUNSEL

      Paul Senzer and John P. Lomenzo for appellant.

      M. William Munno for respondent.
   OPINION OF THE COURT

Memorandum.

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

Whether Cosmopolitan waived any defect in service of the notice of default under the lease by accepting the notice without objection and proceeding well into the trial before raising any claim of a defect (see Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 62 NY2d 930, affg 94 AD2d 466, 474; Matter of D’Agostino v Bernabel, 269 App Div 853) is a factual question beyond this court’s power of review. So also was the Trial Judge’s denial to Cosmopolitan of a continuance, it being clear from its failure to make any offer of proof that the denial was not an abuse of discretion as a matter of law (see Patron v Patron, 40 NY2d 582).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    The People of the State of New York, Respondent, v Douglas Van Luven, Appellant.
    Argued October 10, 1984;
    decided November 27, 1984

      APPEARANCES OF COUNSEL

      John M. Nonna for appellant.

      Robert M. Morgenthau, District Attorney (Thomas N. Burrows and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted after a jury trial of criminal possession of a dangerous weapon in the third degree (a loaded pistol) and in the fourth degree (a sawed-off shotgun). He appeals from an order affirming the judgment of conviction bringing up for review an order denying suppression of those weapons contending that they were obtained from a secured locker in Pennsylvania Station in Manhattan in violation of his rights because they were seized pursuant to a search warrant based upon statements he made after he was illegally arrested.

Defendant was arrested about 1:00 a.m. on June 16, 1981 when Amtrak Police Officer Richard Rogers observed him in a corridor in Penn Station standing before locker Y861. When Rogers saw him defendant was leaning on the locker with his left hand and twisting the lock with his right hand, apparently in an effort to force the door open. An open canvas bag was next to his feet. The area was deserted except for a woman standing near defendant and who was looking down the corridor, away from Rogers. When Rogers was about five feet from defendant, defendant looked up and saw him. Rogers told defendant to stand against the wall but defendant started to walk away, putting his hand in his waistband as he did so. Rogers grabbed him and placed film against the wall while defendant continued to keep his hand in his waistband. After frisking him, Rogers pried open his hand and found a key to the locker. As this was transpiring Rogers observed a crowbar, screwdrivers and a flashlight in the open bag. He then arrested defendant for criminal trespass and possession of burglar’s tools.

At the time of this incident, Rogers knew defendant had previously been arrested for attempting to break into a railroad station locker (although Rogers did not make the arrest), knew that he had been directed by a Judge to stay out of Penn Station and believed, because of an informer’s statement, that defendant carried a sawed-off shotgun. Rogers testified that when he grabbed defendant and frisked him, he feared for his safety.

On these facts the suppression court concluded that the arresting officer possessed reasonable suspicion to stop defendant and frisk him. It made no finding on the arrest but held that defendant’s subsequent inculpatory statements were voluntary and were made after he received Miranda warnings. A divided Appellate Division affirmed.

Reasonable suspicion is a mixed question of law and fact and since there is evidence in the record to support the findings of the court below that Rogers possessed grounds for his stop and frisk, the matter is beyond the review powers of this court (People v Harrison, 57 NY2d 470, 477; People v McCray, 51 NY2d 594, 601; People v Wharton, 46 NY2d 924). As there are undisturbed findings of attenuation, which are supported by evidence, this also is not available for this court’s review. Consequently, the motion to suppress was properly denied.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    Elinor M. Barry, Appellant, v Edward M. Barry, Respondent.
    Decided November 27, 1984

      APPEARANCES OF COUNSEL

      Vincent A. Malito and Julia L. Seider for appellant.

      Stephen W. Schlissel for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. The findings of the Appellate Division (100 AD2d 920) more nearly comport with the weight of the evidence.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Joseph Hicks, Appellant, v Benjamin Altman, as a Justice of the Supreme Court, County of New York, Respondent.
    Submitted September 4, 1984;
    decided November 27, 1984
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie as of right from the unanimous determination of the Appellate Division. Motion for leave to appeal denied.


text:
    Ronald Mastrangelo, Appellant, v County of Nassau, Respondent.
    Submitted November 19, 1984;
    decided November 27, 1984
   Motion to vacate the Court of Appeals order of dismissal dated October 22, 1984 denied. [See 63 NY2d 944.]


text:
    In the Matter of Raphael Robinson, Appellant, v City of Poughkeepsie et al., Respondents.
    Decided November 27, 1984
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the unanimous determination of the Appellate Division (Cohen and Karger, Powers of the New York Court of Appeals, § 51, p 231).


text:
    In the Matter of the Liquidation of Shamrock Casualty Company. Shanta Shaw, an Infant, by her Mother and Natural Guardian, Barbara Shaw, Appellant; Superintendent of Insurance, Respondent.
    Submitted October 1, 1984;
    decided November 27, 1984
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that it does not lie as of right from the Appellate Division order of unanimous affirmance.


text:
    Gwendoline B. Bewers et al., Appellants, v American Home Products Corporation et al., Respondents. Sandra P. Clifton et al., Appellants, v American Home Products Corporation et al., Respondents. Sandra J. Howells et al., Appellants, v American Home Products Corporation et al., Respondents, et al., Defendants.
    Decided November 29, 1984

      APPEARANCES OF COUNSEL

      John J. Carlino for appellants.

      Lewis Perkiss 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), order affirmed, without costs. It cannot be said, as a matter of law, that the Appellate Division (99 AD2d 949) abused its discretion in dismissing the complaints pursuant to CPLR 327.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Board of Cooperative Educational Services of Nassau County, Appellant, v Nassau BOCES Central Council of Teachers, Respondent.
    Decided November 29, 1984

      APPEARANCES OF COUNSEL

      Seymour H. Kligler and David R. Kay for appellant.

      Stanley A. Immerman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (103 AD2d 804).

Concur: Chief Judge Cooke and Judges Jasen,Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Respondent, v George Wilson, Appellant.
    Decided November 29, 1984

      APPEARANCES OF COUNSEL

      John F. Middlemiss and Monroe A. Semble for appellant.

      Patrick Henry, District Attorney (John J. Ribeiro of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in giving the missing witness charge. Although defendant had no burden to come forward with alibi evidence, once he did so, his failure to call an available witness to support the alibi could be brought to the jury’s attention inasmuch as it appeared that the witness, defendant’s wife, would be favorable to him and hostile to the prosecution and the testimony would not be trivial or cumulative (see People v Rodriquez, 38 NY2d 95).

Defendant’s assertion that the charge violated his marital privilege is unfounded. Although acts as well as words may be “communications” (People v Daghita, 299 NY 194), they are riot privileged unless they are confidential (People v Melski, 10 NY2d 78, 80). The privilege is “designed to protect not all the daily and ordinary exchanges between the spouses, but merely those which would not have been made but for the absolute confidence in, and induced by, the marital relationship” (id.). Despite defendant’s arguments to the contrary, it cannot be said that the mere fact of his presence or absence from his apartment constituted a communication which would not have been made but for the marital relationship.

With regard to defendant’s objection to the propriety of his identification at a lineup, the trial court considered the circumstances of the identification, and found that it was not unduly suggestive. The Appellate Division affirmed this finding. Thus, the determination is beyond the scope of our review absent any alleged error of law (People v Dickerson, 50 NY2d 937, affg 67 AD2d 122).

The other purported errors raised by the defendant were not preserved for our review.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye 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:
    In the Matter of Jean McCaskill, Respondent, v Joseph A. D’Elia, as Commissioner of the Nassau County Department of Social Services, et al., Appellants.
    Decided November 29, 1984

      APPEARANCES OF COUNSEL

      Edward G. McCabe, County Attorney (Joshua A. Elkin of counsel), for appellant.

      Richard M. Gaba for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and proceeding dismissed on the merits for the reasons stated in the dissenting memorandum of Justice Frank D. O’Connor at the Appellate Division (97 AD2d 436, 438-439).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


author: Chief Judge Cooke,

text:
    Robert Stone et al., Appellants-Respondents, v Kerry Williams et al., Respondents-Appellants, and Meadville Corp. et al., Respondents.
    Argued October 8, 1984;
    decided November 29, 1984

      APPEARANCES OF COUNSEL

      Robert Cahn for appellants-respondents.

      William F. Larkin and John P. Connors for respondents-appellants.

      Allan L. Brenner, Seymour H. Metnick and Gary M. Carlton for respondents.
   OPINION OF THE COURT

Memorandum.

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

Early in the afternoon of Sunday, April 3, 1977, plaintiff Robert Stone drove into a busy Merit service station on Bay Street in Staten Island for gasoline. The station had four service islands, each with two gas pumps containing two hoses. After Stone’s tank was filled, he handed his credit card to the attendant and walked around to the rear of his car to check that the attendant had securely replaced the gas cap. As he crouched to inspect the gas cap, he was struck and seriously injured by the rear of an automobile driven by defendant Kerry Williams. Stone and his wife brought this action against Williams, his wife (Stevens, owner of the automobile), and four corporate entities involved in ownership and operation of the Merit service station (collectively “Merit”).

According to Williams, he pulled into the station for gasoline with the front of his car directly behind the rear of Stone’s car. However, he was unable to bring the rear of his car close enough to the unused pump and attempted by a three-point turn to turn the car around and move closer. After this maneuver, Williams got out of the car and observed that the hose still would not reach his gas tank, whereupon he returned to the driver’s seat intending to back the car up slightly in the direction of the pump. Williams testified that he “was moving slowly but the car lurched backwards.” When asked whether he knew what caused his car to accelerate so suddenly, Williams stated: “I believe. I am not certain. I believe that the [gas] pedal itself got caught, because I removed my foot from the pedal, and as I removed my foot from the pedal [the car] lurched back.” He attributed the sticking gas pedal to the floor mat in front of the driver’s seat which had “a tendency to come loose from the carpet.” Williams had given the same explanation for the accident (the “accelerator got stuck in reverse”) in a report he completed for the Department of Motor Vehicles some weeks after his collision with Stone.

After a bifurcated trial, the jury returned a verdict for plaintiffs. It awarded Stone $200,000 and his wife $5,000 on her cause of action for loss of services, finding Williams and Stevens 80% and Merit 20% liable. The Appellate Division reversed with respect to Merit, holding that Merit owed no duty to its patrons to control the movement of automobiles at the service station, and that there was no evidence that the accident was caused by anything other than the purported malfunction of Williams’ accelerator pedal. Williams, Stevens and the Stones appeal.

Before reaching the merits, a procedural issue must be addressed. The effect of the Appellate Division order on defendants Williams and Stevens was to reduce their liability from 80% of $200,000 to 100% of $100,000, raising question as to whether they have been aggrieved (CPLR 5601, subd [a], par [iii]). Since Dole v Dow Chem. Co. (30 NY2d 143), the right to seek contribution from a codefendant exists from the commencement of an action. A defendant consequently has standing to appeal from the dismissal of the complaint against his codefendant, since such a determination deprives him of his right to recover a pro rata share of the award based on the codefendant’s liability (see Stein v Whitehead, 40 AD2d 89, 92; 7 Weinstein-Kom-Miller, NY Civ Prac, par 5511.08, pp 55-80 to 55-81). Thus, despite the reduction, Williams and Stevens were aggrieved by the Appellate Division order because it precludes their claim for contribution from Merit.

Stone contends that Merit had a duty to control the movement of automobiles on its premises, and breached that duty by failing to prevent Williams from backing up alongside the service island. Even if there were such a duty, which we do not decide, still Stone’s cause of action against Merit must fail because any breach of such a duty was not a proximate cause of Stone’s injuries.

As the Appellate Division concluded, there was no evidence that the accident was caused by anything other than the malfunction of Williams’ accelerator pedal (Stone v Williams, 97 AD2d 509, 509-510). In contrast to the situation in Derdiarian v Felix Contr. Corp. (51 NY2d 308, 316), where plaintiff’s injuries might have been prevented by a proper barricade to guard against automobiles being driven accidentally into the excavation site where plaintiff was working, here safety measures Merit might have taken still would not have prevented Williams’ sticking accelerator pedal. In Margolin v Friedman (43 NY2d 982, 983, affg 57 AD2d 763), we refused to hold the builder and operator of a car wash liable for injuries occasioned when a driver negligently stepped on the accelerator pedal instead of the brake after detachment from the facility’s towing mechanism. There, “the accident happened as a result of the driver’s failure to control his vehicle. The premises ‘merely furnished the condition or occasion for the occurrence of the event rather than [being] one of its causes’ ”. (Margolin v Friedman, supra, at p 983 [quoting Sheehan v City of New York, 40 NY2d 496, 503].) Here, too, the accident was caused by the malfunction of Williams’ automobile, which might also have occurred if he had been driving forward or there had been signs or additional attendants on the premises.

The fact that the accident occurred on Merit’s property cannot alone establish liability for Stone’s injuries. The failure of Williams’ accelerator pedal to function properly so attenuated Merit’s negligence (if any) from the ultimate injury that responsibility for the injury may not be attributed to it (see Kush v City of Buffalo, 59 NY2d 26, 33).

Our conclusion that Merit is not liable to Stone for the injuries sustained by him necessarily defeats the cross claims for indemnification and contribution asserted against Merit by defendants Williams and Stevens.

Chief Judge Cooke,

(dissenting). I agree that defendants Williams and Stevens were aggrieved by the Appellate Division order and, therefore, have standing to prosecute their appeal. On the question of defendant Merit Oil’s liability, however, I respectfully dissent and vote to reverse for the reasons stated by Justice David T. Gibbons in his dissent at the Appellate Division (97 AD2d, at pp 510-512).

Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur; Chief Judge Cooke dissents and votes to reverse in a memorandum.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Brooklyn Union Gas Company, Respondent, v State Board of Equalization and Assessment, Appellant, and the City of New York, Intervenor-Appellant.
    Submitted October 29, 1984;
    decided November 29, 1984
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Maurice K. Peaslee, Peter H. Schiff and Robert Hermann of counsel), for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (John P. MacArthur of counsel), for intervenor-appellant.

      F. Peter O’Hara for respondent.
   OPINION OF THE COURT

Motion to dismiss appeals denied. Where the Appellate Division has granted permission to appeal from a final order, the appeal is not subject to dismissal on the ground that no question of law is presented. If the Court of Appeals disagrees with the Appellate Division’s opinion that “questions of law have arisen which * * * ought to be reviewed” (CPLR 5713), the appropriate disposition is an affirmance, not a dismissal of the appeal (cf. Patrician Plastic Corp. v Bernadel Realty Corp., 25 NY2d 599, 604-605, which discussed appeals pursuant to certified questions from nonfinal orders). In the present case, therefore, whether questions of law are presented and, if so, what disposition should be ordered, must await the argument and submission of the appeal.


text:
    In the Matter of Nellie M. Hedges, Deceased. Louise A. Hildreth et al., Respondents; Halsey L. Brower, Appellant.
    Submitted November 19, 1984;
    decided November 29, 1984
   Motion to vacate the Court of Appeals order of dismissal dated October 11, 1984 denied. [See 63 NY2d 944.]


text:
    Key Bank of Northern New York, N. A., Respondent-Appellant, v Lake Placid Co. et al., Appellants-Respondents, et al., Defendants. Lake Placid Co. et al., Counterclaim-Plaintiffs, Appellants-Respondents, v John W. Tabner et al., Counterclaim-Defendants, Respondents.
    Submitted October 22, 1984;
    decided November 29, 1984
   Motions to dismiss appeal by defendants and counterclaim-plaintiffs (appellants-respondents) granted and said appeal dismissed, with costs and $20 costs of motion to counterclaim-defendants only, upon the ground that the appellants-respondents are not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]). On the court’s own motion, cross appeal by plaintiff (respondent-appellant) dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Marie A. Murphy, Individually and as Administratrix of the Estate of Patrick A. Murphy, Deceased, Appellant, v Southside Hospital et al., Defendants, and Jeffrey R. Ashkin et al., Respondents.
    Submitted November 19, 1984;
    decided November 29, 1984
   Motion for leave to appeal dismissed, with $20 costs and necessary reproduction disbursements, upon the ground that supporting papers were not served at least eight days prior to the statutory return date of the motion (Dellaratta v International House of Pancakes, 46 NY2d 936; CPLR 5516, 2214; 22 NYCRR 500.11).


text:
    In the Matter of the City School District of the City of Tonawanda, Appellant, v Tonawanda Education Association, Respondent.
    Submitted November 12, 1984;
    decided November 29, 1984
   Motion to amend remittitur denied. Movant, as a nonappealing party in this court, could receive no affirmative relief (Hecht v City of New York, 60 NY2d 57, 64). [See 63 NY2d 846.]


text:
    Murray Cohen et al., as Administrators of the Estate of Stephen Cohen, Deceased, Appellants, v St. Regis Paper Company et al., Defendants, and Red Diamond Dry Ice & CO2 Corp., Respondent. Red Diamond Dry Ice & CO2 Corp. et al., Third-Party Plaintiffs, v Skippy Ice Cream Corp., Third-Party Defendant.
    Argued November 13, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Norman A. Palmiere for appellants.

      Margaret A. Catillaz for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised by respondent on its appeal to but not reached by that court.

On appeal to it by Red Diamond Dry Ice & CO2 Corp. (respondent in our court) from a judgment of Supreme Court entered on a jury verdict in plaintiffs’ favor, the Appellate Division reversed the judgment on the law and facts and dismissed the complaint against Red Diamond. This disposition was based on its conclusion “that plaintiffs have failed to prove a cause of action against [Red Diamond]” because the court found that “[i]t is undisputed that the warnings given by Red Diamond to Skippy were communicated by Skippy to decedent. Under these circumstances, we conclude that if there were any negligence on the part of Red Diamond it was not the proximate cause of decedent’s death” (99 AD2d, at p 660).

The Appellate Division was in error in its finding with respect to the giving of warnings by Skippy to the decedent. The issue is contested by plaintiffs and the only evidence in the record that such warnings had been given is to be found in the testimony of George Jesmer, president and general manager of Skippy and an interested witness. The jury in reaching its verdict in favor of plaintiffs against Red Diamond could have declined to credit this testimony, in which event there would be no support for the pivotal factual predicate on which the reversál in the Appellate Division was grounded. Moreover, under the charge given by the trial court the jury could have found Red Diamond liable irrespective of whether Skippy Ice Cream adequately warned the decedent or negligently failed to do so.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to that court for its consideration of legal and factual contentions advanced by Red Diamond but not reached on its appeal there. We pass on no other issue.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons, and Kaye concur.

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


text:
    The People of the State of New York, Respondent, v Christopher Edwards, Appellant.
    Argued November 14, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Richard D. Priest for appellant.

      Richard A. Hennessy, Jr., District Attorney (John A. Cirando and Michael P. Marmor of counsel), for respondent.

      Frederick J. Scullin, Jr., United States Attorney (Paula Ryan Conan and Craig A. Benedict of counsel), for United States of America, amicus curiae.

   OPINION OF THE COURT

Order affirmed. The question of State court jurisdiction over this case is the only question raised by defendant which merits comment. We hold that there is jurisdiction for the reasons stated in the memorandum at the Appellate Division which reinstated the indictment (78 AD2d 582).

Concur: Chief Judge Cooke and Judges Jasen, Wachtler, Meyer and Kaye. Judge Jones dissents and votes to reverse and dismiss the indictment for the reasons stated in the opinion by Justice Walter T. Gorman at Supreme Court (104 Misc 2d 305). Taking no part: Judge Simons.


text:
    New York State Coalition for Criminal Justice, Inc., et al., Appellants, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Argued November 12, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Lewis B. Oliver, Harriet B. Oliver and Dorothy M. Keller for appellants.

      Robert Abrams, Attorney-General (Maurice K. Peaslee, Robert Hermann, Peter H. Schiff and Joan L. Craig of counsel), for respondents.

      William J. Dean and Joan Vermeulen for Correctional Association of New York, amicus curiae.

      Madeline Rochen and Arthur Eisenberg for New York Civil Liberties Union, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

In Boryszewski v Brydges (37 NY2d 361), this court established a broad right of standing on behalf of taxpayers seeking judicial review of governmental action said to be unconstitutional. That determination was not based on any constitutional right of standing, but rather on the abandonment of previously created impediments to standing (id., at p 364).

Shortly after our Boryszewski opinion, the Legislature enacted an amendment to subdivision 1 of section 123-b of the State Finance Law, which permits a citizen taxpayer to “maintain an action for equitable or declaratory relief, or both, against an officer or employee of the state who in the course of his or her duties has caused, is now causing, or is about to cause a wrongful expenditurej misappropriation, misapplication, or any other illegal or unconstitutional disbursement of state funds or state property, except that the provisions of this subdivision shall not apply to the authorization, sale, execution or delivery of a bond issue or notes issued in anticipation thereof by the state or any agency, instrumentality or subdivision thereof or by any public corporation or public benefit corporation”.

Although this statute does not expressly prohibit the suit or preclude the taxpayers from asserting a common-law right of standing, our decision in Wein v Comptroller of State of N. Y. (46 NY2d 394) resolves the standing question against taxpayer plaintiffs. As we noted in Wein (at p 399): “[T]he statutory ‘exception’ does indicate a reasonably clear legislative intent to prevent taxpayer challenges with respect to a State ‘bond issue or notes issued in anticipation thereof’ (State Finance Law, § 123-b, subd 1). Under this circumstance it would be inappropriate for the courts to confer standing in these cases since such a determination would, in effect, render the statutory ‘exception’ a nullity and ignore the expressed legislative policy to the contrary”.

The only distinction to be drawn between Wein v Comptroller of State of N. Y. and the case now before us, is that Wein involved a challenge to the constitutionality of the issuance of State bond anticipation notes and not the issuance of the bonds themselves. However, as noted above, this distinction makes no difference because the statutory exception refers to “a bond issue or notes issued in anticipation thereof”.

Therefore the order of the Appellate Division should be affirmed on the ground that the petitioners lack standing as was held by the trial court.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, without costs, in a memorandum.

       The plaintiffs’ alternative argument that they have standing as voters was not properly raised below and thus cannot be considered by us on this appeal.


text:
    Leif Birkeland, as President of the Court Officers Benevolent Association of Nassau County, et al., Appellants, v State of New York et al., Respondents, and Vincent P. Mallamo et al., Intervenors-Respondents.
    Argued November 14, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Beth J. Goldmacher and Joseph A. Faraldo for appellants.

      Robert Abrams, Attorney-General (Arnold D. Fleischer, Peter H. Schiff and Howard L. Zwickel of counsel), for State of New York, respondent.

      Paula E. Kennedy and Michael Colodner for Herbert B. Evans, as Chief Administrative Judge of the State of New York, respondent.

      Richard M. Gaba for Vincent P. Mallamo and others, intervenors-respondents.

      Stephen J. Wiley for Civil Service Employees Association, Inc., Local 1000, AFSCME, and others, intervenors-respondents. •
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinions of Justice Sol R. Dunkin, Supreme Court, Queens County, and Justice William C. Thompson at the Appellate Division.

We would emphasize that the Legislature’s enactment of chapter 846 occurred in the aftermath of the reorganization of the New York State court system and was parallel with similar legislation applicable, State-wide, to the other State judicial districts. In view of this particular situation and the express finding by the Legislature that the normal competitive procedures would greatly disrupt the functioning of the State court system, the statute cannot be said to offend the constitutional mandate (NY Const, art V, § 6).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Gregory Saunders and Donald Linton, Respondents.
    Argued November 12, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Evan Wolf son and Barbara D. Underwood of counsel), for appellant.

      Edwin Ira Schulman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to it for a review of the facts (CPL 470.25, subd 2, par [d]; 470.40, subd 2, par [b]) and for consideration of questions, if any, not reached on appeal to that court.

The Appellate Division reversed these judgments against defendants on the law holding that the court’s instructions to the jury denied them a fair trial. The majority concluded that the trial court had unfairly marshaled the evidence and that its instructions had inferentially shifted the burden of proof from the prosecution to defendants. The Criminal Procedure Law provides that at the conclusion of summations the court must deliver its charge to the jury (CPL 300.10). It must state the fundamental legal principles applicable, but it need not marshal the evidence except to the extent necessary to explain the application of the law to the facts of the case (CPL 300.10, subd 2). Nor is the court required to explain all the contentions of the parties or outline all the inconsistencies in the evidence (People v Little, 98 AD2d 752, affd 62 NY2d 1020). The critical issue on review is always whether any deficiency by it in that respect denied defendant a fair trial (People v Culhane, 45 NY2d 757; cf. People v Williamson, 40 NY2d 1073). While this charge presented problems in explication because of the multiple victims and defendants and the several counts, we are of the view that the charge does not present grounds for reversal. The court fairly and impartially set forth the contentions of the parties and its references to the defendants’ contentions was nothing more than a statement of their arguments for acquittal. Fairly read, these references did not purport to alter the burden of proof.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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


text:
    Ingrid Yearwood, as Administratrix of the Estate of Joel Yearwood and Another, Appellant, v Town of Brighton, Respondent.
    Argued November 13, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Norman A. Palmiere for appellant.

      Michael R. Wolford and Carolyn G. Nussbaum for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Stewart F. Hancock, Jr., at the Appellate Division (101 AD2d 498; see, also, Malerba v Incorporated Vil. of Huntington Bay, 54 NY2d 863).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Evelina Lewis, Appellant, v Metropolitan Transportation Authority et al., Respondents.
    Argued November 14, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Abraham Abramovsky for appellant.

      John F. Mulholland for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Bentley Kassal at the Appellate Division (99 AD2d 246).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Petroleum Sales and Service, Inc., Appellant, v Robert W. Bouchard et al., Constituting the State Tax Commission, Respondents.
    Argued November 12, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Susan C. Goldberg, Donald J. Egan and Gary M. Kanaley for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Judgment affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (98 AD2d 882).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of John R. Cassiliano, Respondent-Appellant, v Norman Steisel, as Commissioner of Sanitation of the City of New York and Commissioner of the Environmental Protection Agency of the City of New York, et al., Appellants-Respondents.
    Argued November 13, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F.X. Hart and Leonard Koerner of counsel), for appellants-respondents.

      Morris Weissberg and Robert J. Krengel for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a Sanitation Department superintendent with supervisory responsibility over a Staten Island landfill, was charged with facilitating the illegal dumping of liquid waste during the period from fall 1977 to spring 1979. After a departmental hearing, the charges were sustained and dismissal was recommended. Respondent Commissioner approved the recommendation on February 10, 1982 and petitioner was dismissed that day. Petitioner had previously applied to respondent New York City Employees’ Retirement System for a service retirement, which was to be effective February 11, 1982, but that application was denied because of petitioner’s dismissal. Petitioner’s application for a military veterans’ retirement under subdivision 2 of section B3-36.0 of the New York City Administrative Code was also denied. Petitioner thereafter commenced this article 78 proceeding, which was transferred to the Appellate Division. Citing Matter of Rapp v New York City Employees' Retirement System (42 NY2d 1), that court modified the administrative determinations by directing that petitioner’s application for a pension be granted and otherwise confirmed the determinations. Both parties appeal.

Respondents now ask this court to overrule Rapp, asserting that we misconstrued the statutory scheme which, in their view, prohibits this dismissed employee from obtaining any pension. In support of this argument, respondents advance the same contentions which were previously considered and rejected by this court (42 NY2d 1, 3-6, supra, mot for rearg den 42 NY2d 1012). There is no warrant to pass on these arguments again.

We also reject petitioner’s request to annul the determination of misconduct. The hearing officer’s conclusions were supported by substantial evidence, including testimony by a Sanitation Department employee whose aid petitioner had enlisted, as well as other evidence which corroborated this testimony. Finally, in view of the clandestine and protracted nature of petitioner’s activity, respondents cannot be faulted for failing to specify the dates of the transgressions with greater precision. The notice enabled petitioner to prepare an adequate defense (see Matter of Fitzgerald v Libous, 44 NY2d 660; Civil Service Law, § 75, subd 2).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur; Judge Jasen on constraint of Matter of Rapp v New York City Employees’ Retirement System (42 NY2d 1).

Judgment affirmed, without costs, in a memorandum.


text:
    In the Matter of Marsha A. Buenzow et al., Appellants, v Lewiston-Porter Central School District et al., Respondents.
    Argued November 15, 1984;
    decided December 11, 1984

      APPEARANCES OF COUNSEL

      Frank T. Ralabate for appellants.

      Daniel R. Mooney for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Stewart F. Hancock, Jr. We add only that a literal application of section 3014-b of the Education Law — advocated by neither party to this appeal — could have anomalous and, we believe, unintended consequences, for example, the automatic transfer of senior BOCES teachers, against their wish, to school districts where no positions are available, even where their BOCES positions remain available. Clarification by the Legislature could help avoid such consequences (see, e.g., Matter of Acinapuro v Board of Coop. Educational Servs., 89 AD2d 329, 339).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Bobbie H. Holmes, Respondent, v John D. Simpson, Individually and as President of the New York City Transit Authority, Appellant.
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Steven S. Efron, Robert A. Rifkin and Richard K. Bernard for appellant.

      Christopher Harold and John R. Harold for respondent.
   OPINION OF THE COURT

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and determination of appellant confirmed for reasons stated in the dissenting memorandum of Justice Leon D. Lazer at the Appellate Division (96 AD2d 502, 504-505).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Maureen Nolan et al., Appellants, v Werner Ford, Respondent, et al., Defendant.
    Argued November 19, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Gary Waldman for appellants.
    A. Paul Goldblum for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (100 AD2d 579).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Blue Spruce Farms, Inc., Appellant, v New York State Tax Commission, Respondent.
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Richard V. D’Alessandro for appellant.

      Robert Abrams, Attorney-General (Nancy A. Spiegel and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 867).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Florence Bari, Appellant, v Wamskau Realty Inc., Respondent, et al., Defendants.
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Thomas C. Lambert and Barry S. Huston for appellant.

      Norman E. Frowley and Harold M. Foster for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (99 AD2d 710; see, also, Connell v Hayden, 83 AD2d 30).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Joan Zacher et al., as Executors of Arthur Godfrey, Deceased, Appellants, v Philip R. Michael, as Commissioner of Finance of the City of New York, Respondent.
    Argued November 19, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Jerome R. Rosenberg for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Thomas W. Bergdall, Stanley Buchsbaum and Joseph V. Hamilton, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs. We agree with the Appellate Division that the determination made by respondent is supported by substantial evidence.

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    In the Matter of Ruggerite, Inc., Respondent, v State Tax Commission, Department of Taxation and Finance of the State of New York, Appellant.
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Peter G. Crary and Peter H. Schiff of counsel), for appellant.

      Norman R. Berkowitz and Jerry A. Davis for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Commission’s argument that petitioner’s failure to receive the notice of sales tax determination is immaterial is predicated upon Matter of Kenning v State Tax Comm. (72 Misc 2d 929, affd 43 AD2d 815, mot for lv to app den 34 NY2d 653). That case is, however, clearly distinguishable. It involved income rather than sales tax, and the governing income tax statute (Tax Law, § 681, subd [b]) contains no language similar to that in the pertinent sales tax provision (Tax Law, § 1147, subd [a], par [1]).

Under the latter provision the mailing of a notice of determination of sales tax liability “shall be presumptive evidence of the receipt of the same by the person to whom addressed.” The quoted language makes “receipt” a part of the procedural equation and by characterizing mailing as only “presumptive evidence” establishes the taxpayer’s right to rebut the presumption. In light of that language and the Commission’s concession that its notice was returned marked “unclaimed” and was not received by petitioner, the courts below correctly held petitioner entitled to a hearing on the sales tax assessment against it, notwithstanding that it demanded that hearing more than 90 days after the notice of assessment was mailed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    Stepping Stones Associates, Appellant, v City of White Plains, Respondent.
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Dorothy M. Finger for appellant.

      Charles A. Bradley, Corporation Counsel, for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (100 AD2d 619).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    Scott Herrick, Appellant, v Second Cuthouse, Ltd., t/a Forbidden Forest, Respondent. (And a Third-Party Action.)
    Argued November 16, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Bernard Meyerson for appellant.

      Robert S. Murphy for respondent.
   OPINION OF THE COURT

Memorandum.

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

Exercising their discretion, the courts below granted defendant’s motion to amend its answer to include the defenses of setoff and apportionment. The Appellate Division granted leave to appeal to this court and certified the following question: “Was the order of this court, dated April 30,1984 properly made?” We cannot say that the proposed defenses plainly lacked merit or that a showing of prejudice to plaintiff in allowing the amendment had been made (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C3025:6, p 477; C3025:ll, p 481). Accordingly, there was no abuse of discretion as a matter of law in permitting amendment of the answer. In the absence of such abuse, this court has no power to review the grant of the discretionary remedy. Hence, the only remaining issue presented by the question certified is whether the Appellate Division had the power to grant the requested relief (Brady v Ottaway Newspapers, 63 NY2d 1031). We conclude that it had this power, and pass on no other issue.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, and question certified answered in the affirmative in a memorandum.


text:
    In the Matter of Leonard L. Franklin et al., Appellants, v New York State Tax Commission, Respondent.
    Argued November 20, 1984;
    decided December 13, 1984

      APPEARANCES OF COUNSEL

      Leonard L. Franklin, appellant pro se, and for Deborah Franklin, appellant.

      Robert Abrams, Attorney-General (Betsy Broder and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (101 AD2d 949).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    The People of the State of New York, Respondent, v Michael Goodfriend, Appellant.
    Argued November 15, 1984;
    decided December 18, 1984

      APPEARANCES OF COUNSEL

      Alan Mansfield and Louis J. Lefkowitz for appellant.

      Robert M. Morgenthau, District Attorney (Mark Dwyer and James Friel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for first degree rape and two counts of first degree sodomy, all arising out of a single occurrence. After a jury trial, he was convicted of one count of sodomy and acquitted of the remaining counts. On defendant’s motion, the trial court vacated the verdict on the ground of repugnancy. The Appellate Division reversed, reinstated the verdict, and remanded the case for further proceedings.

Defendant’s claim of a repugnant verdict is without merit. As this court held in People v Tucker (55 NY2d 1, 4), “[w]hen there is a claim that repugnant jury verdicts have been rendered in response to a multiple-count indictment, a verdict as to a particular count shall be set aside only when it is inherently inconsistent when viewed in light of the elements of each crime as charged to the jury.” There is no dispute in this case that, under this standard, defendant’s acquittal on two counts did not necessarily negate an essential element of the remaining count. Defendant only posits that his acquittal for two counts necessarily indicates the jury’s acceptance of a proffered defense that would be equally applicable to the count for which he was convicted, rendering it inconsistent. This type of speculation as to “how the jury perceived and weighed the evidence” and whether it acted “irrationally” was rejected in Tucker (id., at p 7).

Defendant also contends that, as instructed, the jury was precluded from finding that defendant had engaged in sodomy but not rape. When read in isolation, a portion of the charge supports this position. Viewed in its entirety, however, the charge indicated the independent nature of the crimes and the jury’s obligation to consider them separately.

To the extent that defendant asserts that the trial court’s basis for granting his motion to vacate the verdict was its independent weighing of the evidence, it is sufficient to note that this court has recently held that, under the Criminal Procedure Law, a trial court is powerless to set aside a verdict on that ground (see People v Carter, 63 NY2d 530).

Finally, we note that the Appellate Division correctly determined that, on the People’s appeal, it was powerless to consider defendant’s alternative arguments for affirmance. In a civil case, an appellate court has a broad scope of review concerning the arguments of a respondent urging affirmance (see Parochial Bus Systems v Board of Educ., 60 NY2d 539, 545-546). The different language employed in the relevant provisions of the CPLR and the CPL, indicates that the Appellate Division does not enjoy a similar power in criminal cases. The CPLR expressly permits consideration of “any non-final judgment or order * * * including any which was adverse to the respondent on the appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal * * *” (CPLR 5501, subd [a], par 1). The CPL, however, limits the Appellate Division’s review to “any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” (CPL 470.15, subd 1 [emphasis added].) Therefore, consideration of defendant’s other arguments will have to await a possible future appeal by him after sentencing.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v James A. Spears, Appellant.
    Argued November 16, 1984;
    decided December 18, 1984

      APPEARANCES OF COUNSEL

      J. Raymond Fisher for appellant.

      Sol Greenberg, District Attorney (llene R. Bergman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was charged with criminal possession of a controlled substance in the third and fourth degrees (Penal Law, § 220.16, subd 1; § 220.09, subd 1), and tried jointly with a codefendant before a jury. On the second day of trial, the People presented six witnesses and rested, the codefendant testified, and after his intended final witness failed to appear, he rested. The court thereupon instructed defendant’s counsel to proceed. Counsel asked if he “could have until tomorrow morning to proceed. It’s five minutes to five now.” The court directed him to proceed. Counsel then requested “a few minutes” to talk to his client but was interrupted, after conferring with defendant for approximately five seconds, by the court’s insistence that he proceed. Counsel protested that the codefendant had rested unexpectedly, that he had not had an opportunity to consult with his client, and that he would otherwise be forced to rest. The court responded, “You are not forced to do anything. Let’s stop this foolishness right now * * * Proceed.” Defendant rested. The People having no rebuttal, the proof was closed and “in view of the hour”, the court recessed for the day. Defendant’s immediate motion for a mistrial on the ground that he was compelled to decide whether or not to testify without proper consultation with his counsel was denied, the court additionally admonishing counsel that it resented the implication before the jury that defendant’s rights were being infringed and that for a trial lawyer to call his own client, seated right alongside him, to the stand “takes exactly five seconds.” After summations the following morning, defendant was convicted of criminal possession in the fourth degree, and sentenced to 5 to 15 years in prison.

The decision whether to grant an adjournment is ordinarily committed to the sound discretion of the trial court (Matter of Anthony M., 63 NY2d 270, 283-284; People v Singleton, 41 NY2d 402, 405). But in particular situations, when the protection of fundamental rights has been involved in requests for adjournments, that discretionary power has been more narrowly construed (see People v Foy, 32 NY2d 473, 476-478; People v Matz, 23 NY2d 196; People v Ballott, 20 NY2d 600, 604-605; People v Snyder, 297 NY 81, 90). Here, counsel requested a brief delay, after the codefendant testified and rested unexpectedly, to consult with his client about taking the stand, implicating defendant’s fundamental right effectively to confer with his counsel (see NY Const, art I, § 6; People v Narayan, 54 NY2d 106,112). In these circumstances, the court’s conduct in denying even “a few minutes” delay was arbitrary and an abuse of discretion as a matter of law.

The failure of defense counsel to seek to reopen the defendant’s case, after having the overnight recess to confer with his client, does not affect this conclusion — and indeed is not even raised by the People. Having rested before the jury, and his counsel having been repeatedly and sharply enjoined by the court to proceed, defendant cannot be faulted for electing not to risk further prejudice by appealing again to the court’s discretion with a motion to reopen (People v Henderson, 28 AD2d 1145, 1146).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in memorandum.

Order reversed, etc.


text:
    Robert Harris, Respondent, v Clarence E. Armstrong et al., as Executors of Lessie V. Cool, Deceased, Appellants, et al., Defendants.
    Argued November 12, 1984;
    decided December 18, 1984

      APPEARANCES OF COUNSEL

      Roger W. Avery for appellants.

      Lee S. Michaels and Robert K. Bergan for respondent.
   OPINION OF THE COURT

Memorandum.

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

In our court appellant executors of the estate of Lessie Cool urge reversal on two grounds, namely, that the decision of the trial court setting aside the jury’s verdict and dismissing the complaint against them was proper, and that the trial court erred in its instructions to the jurors. Both contentions must be rejected. We address them in reverse order.

With respect to the latter contention, it suffices to observe that the assertion of error in the trial court’s charge to the jury has not been preserved for appellate review. The trial record, as the executors concede, establishes that no exceptions or requests to charge were made by trial counsel for the executors.

For related reasons the contention that the trial court properly set aside the jury verdict against the executors must also be rejected. In consequence of the failure to register any protest to the charge to the jury, the law as stated in that charge became the law applicable to the determination of the rights of the parties in this litigation (Up-Front Inds. v U. S. Inds., 63 NY2d 1004) and thus established the legal standard by which the sufficiency of the evidence to support the verdict must be judged. Under the charge as given defendants were considered collectively as a single unit for purposes of determining their liability to plaintiff (cf. Glielmi v Toys “R” Us, 62 NY2d 664, 666). Accordingly, the sufficiency of the evidence must be determined in the light of all the evidence against all defendants; discrete correlation of the evidence is not to be made to establish liability of each defendant separately. In light of the fact that, as the trial court properly concluded, the evidence was sufficient to establish liability on the part of defendant William Cool, under the law made applicable by virtue of the charge, it was necessarily also sufficient to support the verdict against the estate of Lessie Cool. It was therefore error for the trial court to set aside the verdict against the estate on the basis of the evidence against her alone.

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

Order affirmed, with costs, in a memorandum.

       The appeal taken by William Cool has been dismissed (62 NY2d 642) and a motion for reconsideration denied (62 NY2d 943).


text:
    The People of the State of New York, Appellant, v Hector Santos, Respondent.
    Decided December 18, 1984

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Peter D. Coddington of counsel), for appellant.

      Michele Maxian and Caesar D. Cirigliano for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

In May 1982, defendant was indicted for the criminal sale and possession of controlled substances. Thereafter, on application by defendant, the Supreme Court issued a subpoena duces tecum seeking routine police department reports concerning the crime with which he was charged. The District Attorney moved to quash the subpoena on the ground that the reports were not discoverable. The court denied the motion to quash but held that the names and addresses of witnesses are not discoverable as a matter of right and are discoverable only upon a clear showing of special circumstances. The People appealed to the Appellate Division from so much of the Supreme Court’s order as denied the motion to quash the subpoena duces tecum.

Defendant cross-appealed from that portion of the court’s order which redacted the name of witnesses from the police reports. The Appellate Division dismissed the cross appeals as nonappealable and cited Matter of Morgenthau v Hopes (41 NY2d 1007, rearg den 42 NY2d 825).

As a rule, no appeal lies from an order arising out of a criminal proceeding absent specific statutory authorization (CPL 1.10; Matter of State of New York v King, 36 NY2d 59; Matter of Ryan [Hogan], 306 NY 11). An order denying or granting a motion to quash a subpoena issued in the course of a criminal investigation, prior to the commencement of a criminal action, may be appealable when issued by a court vested with civil jurisdiction (Matter of Abrams [John Anonymous], 62 NY2d 183). Such an order arises out of a special proceeding on the civil side of the court (see, e.g., Matter of Cunningham v Nadjari, 39 NY2d 314). But an order determining a motion to quash a subpoena for the production of police reports, issued in the course of prosecution of a criminal action (CPL 1.20, subd 16), arises out of a criminal proceeding (CPL 1.20, subd 18; see Matter of Morgenthau v Hopes, 41 NY2d 1007, rearg den 42 NY2d 825, supra) for which no direct appellate review is authorized (CPL 450.10, 450.20, 450.90). An appeal from an Appellate Division order dismissing a criminal appeal on the law may be taken only by permission of a Judge of the Court of Appeals, acting pursuant to CPL 470.60 (subd 3). There having been no such permission, this appeal must be dismissed.

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


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Neil T. Schiavi, Appellant.
    Argued November 12, 1984;
    decided December 18, 1984

      APPEARANCES OF COUNSEL

      William F. Gallagher, Jr., for appellant.

      Barry M. Donalty, District Attorney (Timothy P. Fitzgerald of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum of the Appellate Division (99 AD2d 665). Absent timely protest we do not address defendant’s constitutional contention based on People v Ricco (56 NY2d 320).

Concur: Judges Jasen, Jones, Wachtler, Simons and Kaye. Judge Meyer dissents and votes to reverse in an opinion in which Chief Judge Cooke concurs.

Meyer, J.

(dissenting). Respectfully, I dissent. I have no difficulty in concluding that defendant’s statement to his father that, “I know what is going to happen, I am going to jail” was both spontaneous and relevant on the question whether defendant, who claimed a disassociative disorder, was malingering. But the affirmed finding of the Trial Judge that, “Throughout this incident, the defendant knew who he was and what he was doing” rested on both the statement to his father and his earlier statement to Investigator Allen that “he already had an attorney representing him on another matter and he didn’t want to talk to us.” In light of that fact, and of the facts that the Trial Judge’s finding rested in part on the presumption of sanity and that the People presented no psychiatric proof, the error, if error there was in the admission of Allen’s testimony, cannot be regarded as harmless (People v Crimmins, 36 NY2d 230).

That admission of defendant’s statement to Investigator Allen on the malingering issue was error is the holding of both People v Ricco (56 NY2d 320) and of People v Hoover (57 NY2d 908). Affirmance is possible, therefore, only if by failing to object to introduction of the statement defendant forfeited his right to raise the constitutional question. In Ricco, it is true, there was an objection, although not one that focused on the right to counsel. We, nevertheless, held the issue reviewable because the effect of the trial court’s ruling was to foreclose further protest. But as we noted, just a year ago, in People v Kinchen (60 NY2d 772, 773), “a claimed deprivation of the State constitutional right to counsel may be raised on appeal, notwithstanding that the issue was not preserved by having been specifically raised in a suppression motion or at trial” provided only that there is a factual record sufficient to permit review. Given such a record, therefore, neither People v Sanders’ (56 NY2d 51, 66) requirement of a motion to suppress nor a trial objection is a condition of our review of the constitutional issue.

The part played by defendant’s statement to Allen in the determination whether defendant was malingering was fully explored with the testifying psychiatrists. The record is, therefore, sufficient to permit review, and the statement that defendant did not wish to talk to Allen was made after knowledge by Allen that defendant had counsel, and at a time when he could not waive counsel except in the presence of counsel (People v Baldi, 54 NY2d 137, 152; People v Carmine A., 53 NY2d 816, 818; People v Banks, 53 NY2d 819, 820-821; People v Cullen, 50 NY2d 168, 174; People v Samuels, 49 NY2d 218, 221; People v Dean, 47 NY2d 967, 968; People v Ermo, 47 NY2d 863, 865; People v Arthur, 22 NY2d 325, 329). To hold, as does the majority, that the issue was forfeited by the failure to make an objection in a case in which all of the relevant countervailing evidence that could be expected to come in after objection is in fact in the record is to make the right to counsel turn on formality.

Order affirmed, etc.


text:
    Martha Heyward, as Natural Mother and Guardian for Natalie G. Heyward, an Infant, Appellant, v City of New York, Respondent.
    Submitted November 19, 1984;
    decided December 18, 1984
   Motion to dismiss appeal granted and appeal taken pursuant to CPLR 5601 (subd [b], par 2) dismissed, as untimely, with costs and $20 costs of motion.

Motion for leave to appeal denied with $20 costs and necessary reproduction disbursements.

Judge Meyer taking no part.


text:
    The People of the State of New York, Appellant, v Augustine Perez, Respondent.
    Decided December 18, 1984
   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 Appellate Division’s determination of reversal 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, subd 2, par [a]).


text:
    Harland Enterprises, Inc., Doing Business as Holland Associates, et al., Plaintiffs, v Commander Oil Corp., Appellant, Westbury Fire Department of the Westbury Fire District, Respondent, et al., Defendants. (And Three Other Actions.)
    Argued November 13, 1984;
    decided December 20, 1984
    APPEARANCES OF COUNSEL

      Robert J. Aurigema, Donald E. Deegan and Marian C. Rice for appellant.

      E. Richard Rimmels, Jr., for respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Leonard Koerner, Alfred Weinstein and Francis F. Caputo of counsel), for City of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

This action was brought for damages sustained when plaintiffs’ warehouse was destroyed by fire. Defendant oil company, whose carelessness in repairing an oil burner located on the premises is alleged to have started the fire, cross-claimed against defendant fire department for negligence in fighting the fire. Special Term granted the fire department’s motion to dismiss the cross claim on the grounds that no special duty to provide fire protection was owed to the oil company, and that mere errors of judgment on the part of the fire department in the course of fire fighting are not actionable. The Appellate Division affirmed on similar grounds and, subsequently, this court granted leave to appeal.

A fire department is not chargeable with negligence for failure to exercise perfect judgment in discharging the governmental function of fighting fires. (McGee v Adams Paper & Twine Co., 26 AD2d 186, 198-199, affd 20 NY2d 921; see, also, Rottkamp v Young, 15 NY2d 831, affg 21 AD2d 373.) The fire department’s discretionary efforts in attempting to extinguish the fire in this case are not grounds for liability.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

Order affirmed, with costs, in a memorandum.


text:
    John Grace & Company, Inc., Respondent, v State University Construction Fund, Defendant and Third-Party Plaintiff-Appellant. Marvin A. Mass et al., Individually and Doing Business as Cosentini Associates, Third-Party Defendants-Appellants. (And a Fourth-Party Action.)
    Argued November 19, 1984;
    decided December 20, 1984

      APPEARANCES OF COUNSEL

      Kenneth G. Varley for Marvin A. Mass and others, appellants.

      Robert Abrams, Attorney-General (Richard J. Dorsey and Peter H. Schiff of counsel), for State University Construction Fund, appellant.

      Lester M.A. Gulitz for respondent.
   OPINION OF THE COURT

Order modified, with costs to plaintiff and third-party defendants Marvin A. Mass et al., against State University Construction Fund, by dismissing the third-party complaint against Marvin A. Mass et al., doing business as Cosentini Associates, for reasons stated in the concurring in part and dissenting in part memorandum by Justice Howard A. Levine at the Appellate Division (99 AD2d 860, 862-863); and, as so modified, order affirmed.

i

Concur: Judges Jones, Wachtler, Meyer, Simons, and Kaye. Chief Judge Cooke and Judge Jasen dissent and vote to affirm for reasons stated in the memorandum of the Appellate Division (99 AD2d 860).


text:
    State of New York, Respondent, v Joan T. Gordon, Appellant.
    Decided December 20, 1984

      APPEARANCES OF COUNSEL

      Charles J. McPeak for appellant.

      Robert Abrams, Attorney-General (Nancy A. Spiegel, Robert Hermann and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (102 AD2d 990).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye.


text:
    William H. Mountain, III, Respondent, v Vicki Scott et al., Constituting the Board of Elections of the County of Cattaraugus, et al., Respondents, Anthony J. De Rose, Appellant, and Andrew S. Waterman, Intervenor-Appellant.
    Decided December 20, 1984

      APPEARANCES OF COUNSEL

      Robert E. Murrin for Anthony De Rose, appellant.

      Andrew Scott Waterman, appellant pro se.

      Shane & Franz for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be modified, without costs, by converting the proceeding to an action for a declaratory judgment and further declaring that chapter 296 of the Laws of 1984 is not applicable to this case and, as so modified, affirmed.

The proceeding, brought under the Election Law, was commenced by order to show cause seeking to have petitioner William H. Mountain’s and respondent William J. Gabler’s names placed on the ballot in the November 6, 1984 general election for the office of City Judge of the City of Olean. An appeal taken by intervener Andrew Scott Waterman is before this court pursuant to CPLR 5601 (subd [a], par [iii]) from an order of the Appellate Division, Fourth Department, dated December 5, 1984, which modified an order of Supreme Court, Cattaraugus County, dated November 19, 1984. We grant respondent Anthony De Rose leave to appeal from an Appellate Division order of the same date which dismissed as moot his appeal to that court from the Supreme Court order.

In late 1983, Mountain became aware that Anthony De Rose, the incumbent Olean City Judge, was born on June 30, 1914, and, therefore, would become 70 years old on June 30, 1984. Believing that a vacancy would occur in the office of City Judge pursuant to section 23 of the Judiciary Law, which would be filled at the general election to be held on November 6, 1984, Mountain publicly announced his candidacy for the office. Accordingly, he obtained and filed with the Cattaraugus County Board of Elections designating petitions for the September 11, 1984 primary election seeking positions on the ballot on the Democratic, Republican, Conservative and Right to Life Party lines. Respondent Gabler likewise filed designating petitions for the Democratic, Republican, Conservative and Liberal lines. No timely objections were filed to either candidate’s petitions within the time period required by section 6-154 of the Election Law. Thereafter, the Board of Elections forwarded notices of designation to each respective party, and both candidates filed timely acceptances of each designation. The primary was held and petitioner was declared the winner on each contested line, with Gabler winning the uncontested Liberal line.

On October 8, 1984, the Board of Elections sent an order to Straight Publishing Company to print all materials required for the general election. On October 23, 1984, however, respondent Vicki Scott, the Republican Commissioner of Elections, issued press releases declaring that she now “refused to certify” that an election for City Judge would be held. On October 26, Straight Publishing notified the Board of Elections that it would not print the ballot unless both Commissioners of Elections signed an agreement concerning the contents of the ballot. Commissioner Laura Bennett agreed to have the ballot printed, but Scott refused. On October 28, Mountain commenced this proceeding and obtained an order to show cause directing the Board of Elections to have the ballots printed and to program the voting machines to facilitate the election for City Judge. On November 1, Waterman, Chairman of the Olean City Republican Committee, was permitted to intervene to protect the rights of the Republican Party. On November 6, the general election was held and Mountain declared the winner.

Thereafter, Special Term, with the consent of the parties, addressed the questions raised by the pleadings of the application of chapter 296 of the Laws of 1984 and the duration of the term of City Court Judge. The court initially held that Scott’s attempt, after the filing and acceptance of the designating petitions, to challenge the existence of a vacancy by refusing to consent to the printing of the ballots was untimely. The court rejected Judge De Rose’s argument that he need not vacate his office pursuant to recently enacted chapter 296 of the Laws of 1984. The court concluded by declaring that petitioner, having been duly elected to fill the prospective vacancy, should only serve as City Judge from January 1,1985 through December 31, 1985, this period representing the remaining portion of Judge De Rose’s term.

The Appellate Division dismissed Judge De Rose’s appeal as moot. On appeals taken by Mountain and Waterman, the court modified Special Term’s order by deleting the provision limiting Mountain’s term to one year and substituting therefor a provision declaring that Mountain was elected to a full four-year term to run from January 1, 1985 through December 31, 1988.

We now treat these appeals as submitted pursuant to rule 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4) and modify the Appellate Division orders by converting the proceeding into an action for a declaratory judgment and further declaring that chapter 296 of the Laws of 1984 is not applicable to this case. As so modified, we affirm.

Section 12 of chapter 296 of the Laws of 1984 provides that the act will take effect on January 1,1985. Accordingly, because section 23 of the Judiciary Law mandates that Judge De Rose leave office on the last day of the year in which he reaches 70 years of age (Dec. 31, 1984), the act is not applicable to his situation. In so holding, we do not reach the question whether chapter 296 has any applicability to section 23 of the Judiciary Law.

With respect to the length of Mountain’s elected term, appellants rely on chapter 351 of the Laws of 1969 (Olean City Ct Act) in arguing that the person elected to fill the vacancy created by Judge De Rose’s prospective retirement should only fill out the remainder of his unexpired term. This court decided early on, however, that the mandatory retirement of a Judge does not create a vacancy, but, rather, causes the retiring Judge’s term to expire (People ex rel. Joyce v Brundage, 78 NY 403). Thus, chapter 351, dealing with the filling of an unexpired term, is inapplicable. Upon the expiration of Judge De Rose’s term on December 31,1984, petitioner, when he is sworn in, will commence to serve a full four-year term.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

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

      . Section 23 of the Judiciary Law provides in part: “No person shall hold the office of judge, justice or surrogate of any court, whether of record or not of record, except a justice of the peace of a town or police justice of a village, longer than, until and including the last day of December next after he shall be seventy years of age”.

      . Chapter 296, described in its preamble as “an act to amend the executive law, the retirement and social security law and the education law, in relation to discrimination in employment because of age”, inter alia, amends section 530 of the Retirement and Social Security Law to provide that: “no member of a public retirement system or pension fund maintained by the state or a municipality thereof, nor any employee who was eligible to join such a public retirement system but in lieu thereof elected an optional retirement program to which his or her employer is thereby obligated to contribute, shall be required to retire or separate from service on the basis of age”.

      . The Olean City Court Act provides that: “A vacancy in the office of city judge or acting city judge shall be filled by appointment by the mayor with approval of the council until the commencement of the calendar year next succeeding the first annual election occurring after the creation of the vacancy. At such annual election there shall be a city judge elected to fill the remainder of the unexpired term” (emphasis added).