text:
    In the Matter of 71 Fifth Avenue Company, Respondent, v City of New York Department of Finance et al., Appellants.
    Decided January 12, 1989

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Frances J. Henn and Glenn Newman of counsel), for appellants.

      Philip Smith for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the determination of the Department of Finance reinstated.

Under section 11-2702 (a) of the Administrative Code of the City of New York, the City imposes an annual vault charge "for the privilege of occupying, using or maintaining a vault in the streets of the city, to be paid by the owner of the premises immediately adjoining the vault.” The Code defines "using, occupying or maintaining” as the "right or authority to install, store or maintain property of any kind in a vault, or otherwise to use, occupy or maintain such vault for any purpose whatsoever” (Administrative Code § 11-2701 [4]). This "right or authority [is] deemed to exist wherever a vault has not been filled in or closed by the licensee or abutting property owner” (id.). The principal issue in this case is whether a charge can be assessed against the whole area of an open vault, regardless of whether the area was used by the owner of the adjoining property.

The vault in question was adjacent to premises owned by the petitioner during the years in question. It is divided into four parts by stanchions and is accessible through a locked door measuring 6Y2-feet high by 30-inches wide which can be unlocked by a key in the possession of petitioner’s lessee. One of the parts contains utility lines, electrical boxes and part of the boiler and heating system for the premises. Petitioner argues that he was not "using, occupying or maintaining” the vault because 3 of the 4 sections were empty and the door was kept locked during the time period in question. The Appellate Division accepted this argument and annulled the Department of Finance’s determination imposing a tax on the whole vault. It remanded the matter to the Department of Finance for a new hearing to determine whether petitioner should be charged a tax only on the one section containing the heating and electrical items.

The Department of Finance contends that the entire area is taxable unless rendered unusable in accordance with its bulletins, the enactment of which is authorized by the Code, and which require that a vault either be covered by a wire mesh screen or a sheetrock partition with an access opening no greater than 3 feet by 3 feet to be deemed "closed” for the purpose of avoiding the vault charge (2 Finance Admin Bull [No. 2], at 2 [Mar. 1971]; 4 Finance Admin Bull [No. 3], at 2 [Nov. 1973]). When complied with, these closing requirements render vaults inaccessible and unusable for all practical purposes while still enabling limited inspection sufficient to determine whether they are being used.

These closure requirements are rational and provide a practical means of insuring the nonuse of the area claimed to be free of charge. Moreover, the Department of Finance correctly ruled, based on substantial evidence in the record, that the vault areas were not filled in or closed within the meaning of section 11-2701 (4) of the Code. The fact that petitioner normally kept the door to the vault areas locked did not render the vault unavailable for use or storage because petitioner’s lessee had a key. Because the vault areas were not "filled in or closed” in accordance with the Department of Finance’s bulletins, petitioner clearly had the "right or authority” to use the entire vault within the meaning of section 11-2701 (4) of the Administrative Code. Therefore, the Department of Finance correctly ruled that petitioner was subject to the annual vault charge pursuant to section 11-2702 of the Code, regardless of actual use.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Patrick Davis, Appellant.
    Decided January 12, 1989

      APPEARANCES OF COUNSEL

      Stewart E. Sterk for appellant.

      Paul T. Gentile, District Attorney (Billie Manning and Peter D. Coddington 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 reversed and case remitted to the Appellate Division, First Department, for a de novo consideration of the defendant’s appeal. That court erred in failing to assign new counsel after determining that the appeal presented a nonfrivolous issue (see, People v Casiano, 67 NY2d 906, 907).

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


text:
    Robert Goldbach et al., Respondents, v Erie County Industrial Development Agency et al., Appellants. (And a Third-Party Action.)
    Submitted November 14, 1988;
    decided January 12, 1989
   Motion by appellants for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion by third-party defendant for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Dawn Kelly et al., Respondents, v Town of Islip, Appellant, and California Petroleum Distributing, Inc., et al., Respondents.
    Submitted October 17, 1988;
    decided January 12, 1989
   Motion for leave to appeal as against Dawn Kelly and John W. Kelly dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal as against California Petroleum Distributing, Inc. and Richard W. Tallón denied. Cross motion by Dawn Kelly and John W. Kelly for leave to appeal denied.


text:
    James Lima, Respondent, v 79th Street Real Estate Corp., Appellant, et al., Defendants.
    Submitted October 17, 1988;
    decided January 12, 1989
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Park House Partners, Ltd., Appellant, v Laurita DeIrazabal, Respondent.
    Submitted November 14, 1988;
    decided January 12, 1989
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Appellant, v William Ramos, Respondent.
    Decided January 17, 1989
   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 [2] [a]). Although the Appellate Division stated that its reversal was on the law, it was based upon a claimed error which was not preserved and does not present a question of law for review by this court (People v Dercole, 52 NY2d 956).


text:
    The People of the State of New York, Respondent, v Harry Berzups, Appellant.
    Submitted November 14, 1988;
    decided January 17, 1989
   Motion for an extension of time within which to move for reargument granted. Motion for reargument denied. [See, 49 NY2d 417.]


text:
    In the Matter of Thomas J. Corbin, Appellant, v Judith A. Hillery, as Judge of the County Court, Dutchess County, et al., Respondents.
    Submitted December 27, 1988;
    decided January 17, 1989
   Motion for leave to appeal denied upon the ground that an appeal lies as of right pursuant to CPLR 5601 (b) (1). Motion for a stay granted.


text:
    Golden Rod Jewelry Manufacturing, Inc., Respondent-Appellant, v Assicurazioni Generali et al., Appellants-Respondents, and George Honig & Son, Inc., et al., Defendants.
    Submitted November 7, 1988;
    decided January 17, 1989
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the October 28, 1986 Supreme Court order denying summary judgment dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion and cross motion for leave to appeal otherwise denied.


text:
    Hull-Hazard, Inc., et al., Respondents-Appellants, v Lillian Roberts, as Commissioner of Labor of the State of New York, Appellant-Respondent, and Upstate New York Council of Operating Engineers, Intervenor-Respondent.
    Submitted November 7, 1988;
    decided January 17, 1989
   Motion for leave to appeal granted. Cross motion for leave to appeal dismissed upon the ground that it does not lie, cross movant’s motion for leave to appeal having been previously denied by this court (72 NY2d 805).


text:
    Mamie R. Jemison, Individually and on Behalf of Mamie S. Jemison and Others, et al., Appellants, v Grantley E. Crichlow, Individually and as a Licensed Process Server and City Marshal, et al., Respondents.
    Submitted January 9, 1989;
    decided January 17, 1989
   Motion to enlarge record and to stay appeal pending discovery denied.


text:
    Miles Mogulescu et al., Appellants, v 255 West 98th Street Owners Corp., Respondent.
    Submitted November 14, 1988;
    decided January 17, 1989
   Motion for leave to appeal as to plaintiff Mogulescu dismissed upon the ground that the order sought to be appealed from does not finally determine the action as to him within the meaning of the Constitution; motion otherwise denied.


text:
    In the Matter of Waldo’s, Inc., Appellant, v Village of Johnson City, Respondent.
    Submitted January 3, 1989;
    decided January 17, 1989
   Motion for leave to appeal granted. Motion for a stay granted.

Judge Hancock, Jr., taking no part.


text:
    In the Matter of 1420 Concourse Corp. et al., Appellants, v Gloria Cruz, Respondent.
    Argued January 6, 1989;
    decided January 19, 1989

      APPEARANCES OF COUNSEL

      Michael A. Schwartz and Jeffrey S. Ungerson for appellants.

      Ruben A. Martino, Kalman Finkel, Marshall Green and Ian F. Feldman for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal from the order of the Appellate Division should be dismissed, with costs to respondent.

In this landlord-tenant proceeding, respondent tenant has recovered a substantial sum from the landlord as damages for breach of a stipulation, entered to settle prior litigation between the parties, which obligated the landlord to correct certain unsafe and unhealthy conditions in the demised premises. The Appellate Division affirmed that judgment and, upon application by the landlord, it granted leave to appeal to this court on a certified question. Notwithstanding its efforts to appeal to this court, the landlord made no appearance at oral argument and, as we were advised by counsel for the tenant, the landlord has also instituted further proceedings in Civil Court to vacate the stipulation.

Giving the certified question the most generous possible interpretation, we discern no legal issue for our consideration. Accordingly, the appeal is dismissed.

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

Appeal dismissed, etc.


text:
    In the Matter of the Arbitration between the City of Albany, Appellant, and Joseph Pomakoy, Respondent.
    Submitted November 21, 1988;
    decided January 19, 1989
   Motion for leave to appeal denied. Application by respondent for costs pursuant to CPLR 8303-a denied.


text:
    Thomas D. Callan, Respondent, v State of New York, Appellant.
    Submitted December 19, 1988;
    decided January 19, 1989
   Motion for amendment of remittitur by deleting the award of costs denied, without prejudice to renewal of the motion on proof by the party as to his current financial status. [See, 73 NY2d 731.]


text:
    The People of the State of New York, Appellant, v Charles Anthony Thompson, Respondent.
    Submitted December 5, 1988;
    decided January 19, 1989
   Motion for reargument or amendment of remittitur denied. [See, 72 NY2d 410.]


text:
    The People of the State of New York, Appellant, v Cecil Erts, Respondent.
    Argued November 16, 1988;
    decided December 22, 1988

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Tammy J. Smiley, Barbara D. Underwood and Shulamit Rosenblum of counsel), for appellant.

      Joel Atlas and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division majority that defendant made a prima facie showing that the uncalled witness possessed knowledge on the critical issue in the case— i.e., whether it was defendant who sold the drugs — and that the trial court’s refusal to give a "missing witness” charge constituted reversible error. In People v Gonzalez (68 NY2d 424), we explained that a defendant seeking the charge has the initial burden of making a prima facie showing of entitlement. Thereafter, the court must give the charge unless the People either "account for the witness’ absence or otherwise demonstrate that the charge would not be appropriate” (id., at 428). Here, the evidence showed that the uncalled officer was in a position to observe the transaction and to determine whether defendant was the drug seller. The People might, nevertheless, have defeated defendant’s request for the charge by showing that the missing witness did not, in fact, have the requisite knowledge, that the issues about which he did have knowledge were not material or relevant, or that the testimony would have been cumulative. But the People advanced none of these arguments and, so far as can be discerned from the record, the trial court did not base its ruling on any of these grounds.

Additionally, the People might have protested, as they do for the first time in this court, that defendant’s request was untimely because not made "as soon as practicable” (id., at 428). The People having failed to raise that issue at trial, however, it was not preserved for our review (see, People v Tabarez, 69 NY2d 663; People v Villani, 59 NY2d 781, 783-784).

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

Order affirmed in a memorandum.


text:
    Edward J. Kuriansky, as Deputy Attorney-General for Medicaid Fraud Control, et al., Respondents, v Bed-Stuy Health Care Corporation et al., Appellants, et al., Defendants.
    Argued October 11, 1988;
    decided November 22, 1988

      APPEARANCES OF COUNSEL

      Joel J. Spector for appellants.

      Edward J. Kuriansky, Deputy Attorney-General (Arthur A. Munisteri and Elizabeth T. Bogren of counsel), respondent pro se, and for State of New York, respondent.

      Lawrence Goldman, Anthony R. Cueto, Jack T. Litman and Edward M. Chikofsky for New York State Association of Criminal Defense Lawyers and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

Plaintiffs made a sufficient showing to satisfy both CPLR 1312, which governs provisional remedies in CPLR article 13-A civil forfeiture actions, and CPLR 6201 and 6301, which provide for attachments and preliminary injunctions in other types of civil actions. Accordingly, the Supreme Court did not abuse its discretion by granting plaintiffs’ motions for provisional relief under CPLR articles 13-A, 62 and 63.

Defendants’ present claim — that conditioning relief from the provisional restraints upon defendants’ disclosure of potentially incriminating financial information was precluded by the Fifth and Sixth Amendments, and deprived defendants of funds necessary to pay counsel — was not preserved for our review. Although defendants broadly argued, in response to plaintiffs’ motion for further discovery, that “CPLR Article 13-A violates defendants’ Fifth Amendment rights,” the record does not demonstrate either that defendants ever actually attempted to invoke their Fifth Amendment privilege or that they made the argument they now advance on appeal. Accordingly, we have no occasion to pass upon that argument.

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

Order affirmed, etc.


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Alphonse Recupero, Appellant.
    Argued October 17, 1988;
    decided December 1, 1988
    APPEARANCES OF COUNSEL

      Richard Joselon and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Jonathan R. Walsh and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested and subsequently indicted for criminal possession and sale of a controlled substance for incidents occurring on August 22, 1983, when defendant gave a small quantity of cocaine to an undercover police officer to provide the officer with a sample of the type of drug he was to sell in larger quantities, and on August 23 when defendant and one John Patino sold the larger quantity to the police officer. After defendant was arrested the police secured a warrant to search the apartment where he lived with his wife. While executing it they found methamphetamine and cocaine in a closet in defendant’s bedroom and an unregistered pistol and rifle. As a result of this search, a third indictment was returned charging defendant and his wife with criminal possession of a controlled substance in the second and fourth degrees, criminal possession of a weapon in the fourth degree and possession of a rifle or shotgun without a permit in violation of the New York City Administrative Code. The charges against defendant’s wife related solely to the contraband uncovered in the search of the marital residence and were premised on constructive possession.

Defendant and his wife were originally represented by separate counsel but after the indictments were handed down they retained one attorney to represent them both. Subsequently, defendant pleaded guilty, pursuant to a negotiated bargain, to one count in each indictment, viz., criminal sale of a controlled substance in the second degree, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the second degree. In return, he was promised concurrent sentences of 5 years to life and that the charges against his wife would be dismissed.

On appeal defendant seeks vacatur of his plea, claiming he was denied effective assistance of counsel because of a conflict of interest created by the joint representation.

The joint representation of codefendants by a single attorney creates a potential conflict of interest between the attorney and each of his clients, thereby threatening each defendant’s right to effective assistance of counsel guaranteed by both the State and Federal Constitutions (NY Const, art I, § 6; US Const 6th Amend). The problems of joint representation are no less acute at the plea bargaining stage than they are at the trial stage and before accepting a guilty plea from a jointly represented defendant the court must ascertain, on the record, whether the defendant’s decision to proceed with the attorney is an informed decision (People v Monroe, 54 NY2d 35, 38, cert denied 455 US 947; People v Gomberg, 38 NY2d 307, 313). Joint representation is not per se forbidden, however, and vacatur of the plea will only result where the defendant demonstrates that a significant possibility of a conflict of interest existed bearing a substantial relationship to the conduct of the defense (People v McDonald, 68 NY2d 1, 9; People v Lombardo, 61 NY2d 97, 103; People v Serio, 87 AD2d 978; cf., People v Mattison, 67 NY2d 462, cert denied 479 US 984). We have not attempted to define a "significant possibility” previously, preferring to analyze conflict claims on a case-by-case basis. Our decisions make clear, however, that a significant possibility is more than a potential conflict of interest and that before relief will be accorded the conflict must do more than exist, it must have "operated” (People v Alicea, 61 NY2d 23, 30, n; People v Lombardo, supra). As we stated in People v McDonald "the conflict must * * * be one which bears a substantial relation to 'the conduct of the defense’ ” (68 NY2d 1, 9, supra, quoting People v Lombardo, supra, at 103).

We conclude defendant has not demonstrated his right to relief in this case. Nothing in the record suggests that he decided to plead guilty to protect his wife (cf., People v Ortiz, 83 AD2d 985, 986) or that the plea was induced by any consideration other than his own best interests. Defendant claims that evidence of a significant possibility that a conflict of interest operated can be found in the disparate outcomes of the two cases and in the nature of the allegations contained in the joint indictment. The disparate outcomes, however, are explained by the disparate culpability of the codefendants. Defendant alone was involved in the sale of drugs and strong evidence was available to prove his guilt. By contrast, the possession charges against his wife rested solely on the inference arising from the fact that the contraband was found in the apartment she and her husband occupied.

Defendant’s claim rests on the erroneous assumption that any possibility of conflict is sufficient to meet the burden of establishing significance. He has not identified any other factor or any "different theories and tactics” that should have been pursued for each defendant such that the potential for conflict actually operated (People v Baffi, 49 NY2d 820, 822). Notwithstanding the absence of such a showing, however, the dissent would reverse, urging upon the court a per se rule which, in effect, calls for reversal anytime codefendants were represented by the same counsel and the Trial Judge failed to make a Gomberg inquiry. We find no basis for a per se rule in our prior decisions and no need for it here to protect defendant’s right to effective assistance of counsel. The effect of our decision is not to relegate jointly represented defendants to the remedy of a collateral postconviction remedy, as the dissent contends. Where a defendant can demonstrate that there is a significant possibility that the conflict of interest created by the joint representation operated, a court will reverse or vacate the conviction on direct appeal. On this record, however, defendant has not made that showing.

Finally, we note that this case is distinguishable from People v Burwell (53 NY2d 849), relied upon by the dissent, in which the defendant wife and her husband were both charged with the same crimes but it appeared that the wife was less culpable. In this case, defendant was indicted not only for possession but also for more serious charges of selling controlled substances. Moreover, he stated on the record that he had kept the drugs which he and his wife were charged with possessing, storing them in his closet (the weapons counts were dismissed) (see also, People v Monroe, supra; People v Crump, 53 NY2d 824).

Titone, J.

(dissenting). Unlike the rule derived from the Sixth Amendment of the United States Constitution, New York’s rule concerning joint representation of codefendants is operative not only when there has been a demonstrable actual. conflict of interest, but also where a significant possibility of such conflict existed (People v Monroe, 54 NY2d 35, 38, n 2, cert denied 455 US 947). By holding that a "significant possibility” is "more than a potential conflict” and that a jointly represented defendant can obtain a reversal only if the conflict "operated” as well as "exist[ed]” (majority mem, at 879), the majority has taken a giant step toward aligning our State’s rule with the more exacting Federal standard. Further, because the majority has moved our law closer to the Federal actual-conflict standard, which requires a specific factual showing, reversals will become almost impossible to obtain in the future without first conducting a postconviction hearing— an approach that has heretofore been characterized as "not the preferred procedure” for vindicating conflict-of-interest claims (id., at 39). These developments represent an unfortunate step backward from the court’s prior solicitude for criminal defendants’ right to conflict-free representation. Accordingly, I dissent.

Initially, there is no dispute that, despite having been alerted to the existence of a dual representation problem, the trial court in this case did not conduct the necessary on-the-record inquiry to ensure that defendant understood the risks of joint representation (see, People v Gomberg, 38 NY2d 307). Further, it is now beyond question that the principles outlined in the Gomberg-Macerola line of cases (People v Macerola, 47 NY2d 257; People v Gomberg, supra) are applicable even in prosecutions terminating in guilty pleas (People v Monroe, supra). Thus, the only remaining question in this appeal is whether there was a "significant possibility” of a conflict of interest so that reversal is required (People v Macerola, supra).

This court has not yet attempted a comprehensive analysis of what constitutes a "significant possibility” of a conflict. However, it is plain from this court’s prior writings on the subject that the standard was meant to be applied in a manner that avoids second-guessing the actual defense strategies and looks instead to the available strategies and potential pitfalls of joint representation in a particular case (see, People v Macerola, supra, at 265). With this principle in mind, this court has found a "significant possibility” of a conflict where, although no specific clashing defenses were identified, there were "pronounced variations in the type and quantum of evidence against each defendant^ which] suggested different theories and tactics of defense for each” (People v Baffi, 49 NY2d 820, 822). Similarly, "differences in the level of culpability of the two codefendants” and the possibility that one may have been coerced by the other were "alone sufficient to support the inference that the interests of the codefendants * * * were not completely harmonious * * * giv[ing] rise to a significant potential for conflict of interest” (People v Burwell, 53 NY2d 849, 851). Finally, in People v Crump (53 NY2d 824, 825), the court found a "significant possibility” of conflict "discernible from the record” solely because the codefendants "were both alleged to have had possession of certain proceeds of a crime” and "[h]ad they been represented by separate counsel, each might have attempted to show that [these proceeds] were in the sole possession of the other.”

In none of these cases was the defendant asked to show that the identified area of conflict actually operated, as the majority now suggests. Indeed, even apart from its sheer linguistic inconsistency, the majority’s present assertion that a "significant possibility” of a conflict "is more than a potential conflict” (majority mem, at 879) is directly contrary to our holding in People v Burwell (supra, at 851 [emphasis supplied]) that reversal was required because there was "a significant potential for conflict of interest.” Even more to the point, it is difficult to find a ground for distinguishing between the Federal standard, which requires a showing of actual conflict (see, Cuyler v Sullivan, 446 US 335), and the majority’s new standard, which requires a conflict that "operated.” Thus, the majority has, in effect, overruled the statement in People v Monroe (supra, at 38, n 2) that "[t]he rule under the Federal Constitution differs” from our State rule.

Because the Federal standard is less protective of the right to conflict-free representation than is our State’s former rule, I would adhere to the latter and apply it to this case, leading to the inevitable conclusion that there must be a reversal. This case is closely analogous to People v Crump (supra, at 825), in which the court found a "significant possibility” of conflict where jointly represented codefendants were both alleged to have possessed the same goods and an attorney with undivided loyalty might have attempted to shift the blame to the codefendant. Here, defendant and his wife were jointly charged with possessing the drugs that were found in their marital apartment. As in Crump, an attorney unhampered by divided loyalties might well have attempted to shift culpability from defendant to his codefendant wife. That a different attorney might have forgone such a strategy for other reasons, such as its inherent factual weakness or a desire by defendant to protect his wife, is of no moment, since "[i]t was the prerogative of defendant * * * to decide whether he would accept the risk that counsel’s * * * strategy was devised” in part to serve his other client’s interest (People v McDonald, 68 NY2d 1, 12, supra).

The indicia of a "significant possibility” of conflict are even more compelling in this guilty plea case, which required a subtle balancing of competing considerations and potential trade-offs (see, Geer, Representation of Multiple Criminal Defendants: Conflict of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn L Rev 119, 125). Moreover, the possibilities for conflict are multiplied where, as here, there are differences in the codefendants’ relative culpability. In such cases, the attorney may not be able conscientiously to represent the less culpable defendant in plea negotiations without at least attempting to shift the blame by stressing the other’s more reprehensible conduct (see, Lowenthal, Joint Representation in Criminal Cases: A Critical Appraisal, 64 Va L Rev 939, 942-943).

Indeed, the existence of a conflict, or at least a "significant possibility” thereof, becomes undeniable where, as occurred in this case, a "package deal” is struck and a disposition totally exonerating one defendant is conditioned on the other’s acceptance of a concomitantly harsh sentence. In such circumstances, the inference that the attorney succumbed to the temptation to secure a favorable deal for the less culpable client at the expense of the more culpable one is difficult to avoid (see, Geer, op. cit., at 126). Further, where, as here, the jointly represented codefendants are close family members, the need for conflict-free representation is most acute, since the client’s own judgment is likely to be clouded by emotion.

In short, because the attorney’s representation of both codefendants in this case was rife with the possibility of conflict, a reversal should ensue without further inquiry (People v Macerola, supra). However, rather than stopping at the obviously significant risk of conflict arising from the disparities in the codefendants’ culpability and punishment, the majority has gone one step further and held that reversal is not required because "the disparate outcomes * * * are explained by the disparate culpability of the codefendants” and "[n]othing in the record suggests that [defendant] decided to plead guilty to protect his wife * * * or that the plea was induced by any consideration other than [defendant’s] own best interests” (majority mem, at 879). However, the absence from the record of proof that defendant’s plea was induced by either his concern for his wife or something else, other than his own best interests, is hardly surprising, since any indication on the record to the contrary would have mandated either a further inquiry or an outright rejection of the plea by the trial court. Additionally, without the sound advice of conflict-free counsel, defendant had no way of intelligently assessing whether the plea bargain was, in fact, in his best interest. Thus, the majority’s reliance on this factor begs the question.

Similarly, defendant’s apparently greater culpability may explain why his disposition was harsher than his codefendant wife’s, but it does not follow that defendant could not have received a more favorable "deal” if he had been represented by an attorney whose loyalties were undivided. Moreover, the purported "fact” that defendant’s wife had no involvement at all in his possession and sale of drugs is itself suspect, since defendant’s attorney was prevented by his conflict-riddled position from adopting an adversarial stance toward the wife and possibly developing a record that would have cast her role in a more sinister light (see, Holloway v Arkansas, 435 US 475, 489-490).

Finally, because the majority has shifted the standard for reversal from our State’s traditional "significant possibility” of conflict test, which utilizes an a priori analysis, to the fact-based — and more difficult to satisfy — actual conflict standard used at the Federal level, a new burden has been placed on defendants to establish a record in order to demonstrate that the potential conflict they have identified actually "operated.” As a consequence, although the majority disavows any intention to relegate jointly represented defendants to postconviction hearings, it is hard to imagine how an aggrieved defendant will otherwise be able to make the required showing.

I oppose such a transformation from what was reluctantly tolerated by the majority in People v Monroe (supra, at 39) as "not the preferred procedure”. In this regard, the point made by the three dissenters in Monroe is still persuasive: "The difficulty with the retrospective hearing to determine whether there was in fact a conflict is that it requires not only the recapture of the dynamics of the plea bargaining (or * * * of the trial), in itself a difficult enough pursuit, but also the persuasion of the Judge who failed to see the possibility of conflict in the first place and the attorney whose acumen, if not integrity, may be at stake, that they were in error and should admit it. True, in any particular case * * * the fact may * * * be that there was no conflict, but the odds against a finding of conflict resulting from such a hearing are so great and the effect upon the appearance of justice of a procedure which appears to pit lawyer and Judge against client is so devastating that we can no longer agree to the use of the procedure.” (54 NY2d, supra, at 40 [Jones, Fuchsberg and Meyer, JJ., dissenting].)

The price for these postconviction hearings focusing on a defense counsel’s integrity and ethical judgment is high, entailing a loss of public confidence in a system that invites the attorney to defend himself at his client’s expense. At the same time, because of the obvious incentive the attorney has to cast his own behavior in the best light, there is a serious possibility that these hearings will lead to unreliable results and that relief will be denied to many whose defenses truly were impaired by their attorneys’ divided loyalties. Indeed, it is no accident that only one of the four GombergMacerola appeals involving a supplementary record with post hoc rationalizations on the conflict question resulted in the conviction’s reversal (compare, People v Lombardo, 61 NY2d 97; People v Alicea, 61 NY2d 23; and People v Monroe, supra, with People v Mattison, 67 NY2d 462, cert denied 479 US 984), while, in contrast, reversals have been granted in almost every case in which the "significant possibility” of conflict was ascertained without resort to such supplementary records (see, e.g., People v McDonald, supra; People v Crump, supra; People v Burwell, supra; People v Baffi, supra; People v Fioretti, 49 NY2d 976; People v Macerola, supra).

In this case, if the majority were not looking for an actual or "operative” conflict, as distinguished from a significant possibility thereof, there would be no need for defendant to show the actual connection between his reasons for pleading guilty and his attorney’s apparent significant conflict — a showing that, in most cases, can only be made through a postconviction hearing. The outcome in this case — an affirmance despite the trial court’s failure to ensure a knowing and intelligent waiver and the presence of a serious possibility of conflict — foreshadows what we can expect in the future under the majority’s new standard. Because I am concerned about the erosion of our commitment to the Gomberg-Macerola doctrine that this decision signals, I respectfully dissent.

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

Order affirmed in a memorandum.

      . During one early calendar call in the case, the trial court raised the subject of defense counsel’s representation of both defendants and the prosecutor offered his opinion that there was "definitely a conflict of interest.” Although it was agreed that there would be a further exploration of the conflict problem at the parties’ next court appearance, the subject was never again mentioned.

      . Contrary to the majority’s assertion (majority mem, at 880), the rule outlined in the above-described cases is no more a per se rule of reversal now than it was when it was first described in People v Macerola (47 NY2d 257).

      . It is clear from the record that the People’s consent to the dismissal of the charges against defendant’s wife was expressly conditioned on defendant’s plea of guilty to the top counts in all three indictments against him. Significantly, the trial court characterized defendant’s half of this package deal as "hard” and the sentence "rather lengthy” in view of defendant’s background. In contrast, defendant’s wife was left without even a criminal conviction on her record, although she shared with defendant the apartment in which a quantity of drugs had been found and was therefore equally vulnerable to a charge of criminal narcotics possession.

      . For this reason, contrary to the majority’s suggestion, People v Burwell (53 NY2d 849) is persuasive authority here, and it is irrelevant that the appealing defendant in that case was apparently the less culpable of the jointly represented codefendants while, in this case, the appealing defendant is apparently the more culpable of the two. Regardless of their relative culpability, codefendants represented by the same attorney are equally at risk, because each may obtain a less than optimal disposition of his or her case as a result of the attorney’s inability to compromise the other’s interests.


text:
    In the Matter of Hye Harris, Appellant, v Nassau County Department of Social Services et al., Respondents.
    Argued October 17, 1988;
    decided December 1, 1988

      APPEARANCES OF COUNSEL

      Richard V. Rappaport and Bernard Meyerson for appellant.

      Edward T. O’Brien, County Attorney (Robert O. Boyhan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Having been appointed to the position of Nassau County caseworker on November 9, 1984, petitioner served a 16-week probationary period and was given a permanent appointment on March 1, 1985. At the time petitioner was hired, labor relations between Nassau County and its employees were governed by a collective bargaining agreement which provided that employees who had passed their probationary periods would have the benefit of the procedural protections guaranteed by Civil Service Law §75. Although this agreement expired on December 31, 1984, its terms continued in effect during the period when the new contract was being negotiated. The new contract, executed in April of 1985 and stated to be effective retroactively to January 1, 1985, altered the availability of disciplinary protections as follows: "There shall be a trial period of one continuous year for all employees in full-time positions, unless a longer, or new, or additional probationary or trainee period is provided by the Civil Service Commission Rules or by the New York State statute. During this trial period, the employee holding the position shall not have any disciplinary protection. In addition, an employee’s failure of a probationary or trainee period required by the Civil Service Commission shall not be subject to the Disciplinary Procedure” (emphasis supplied).

On June 27, 1985, petitioner was discharged, effective July 3, 1985, without either a written statement of charges or a hearing. After exhausting the grievance procedure, he commenced this proceeding for reinstatement and back pay, contending that he had been deprived of the protections to which he was entitled by statute. The Supreme Court agreed with his position and granted the1 requested relief. The Appellate Division, however, reversed, holding that the above-quoted contract provision, which it deemed applicable to petitioner, constituted a valid negotiated waiver of the rights conferred by Civil Service Law §§ 75 and 76 (see, Civil Service Law § 76 [4]; Matter of Apuzzo v County of Ulster, 98 AD2d 869, affd 62 NY2d 960; Matter of Auburn Police Local 195 v Helsby, 62 AD2d 12, affd 46 NY2d 1034; Antinore v State of New York, 49 AD2d 6, affd 40 NY2d 921). We now reverse.

As is evident from its terms, the new contractual provision establishing a one-year trial period without disciplinary protections for new employees was intended to be applicable only to employees who were still within their "probationary or trainee period.” This provision could not retroactively be applied to petitioner, who had already completed his probationary service and had acquired status as a permanent employee under the provisions of the former collective bargaining agreement by the time the new agreement was executed. Thus, there was no contractual waiver of petitioner’s right to procedural protections, and the cases cited at the Appellate Division, which concern whether such a waiver is a permissible use of the authority conferred by Civil Service Law § 76 (4), are inapplicable.

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

Order reversed, etc.


text:
    Michael J. La Manna, Appellant, v Paul E. Colucci, Doing Business as Paul E. Colucci Excavating Company, Appellant, and Stewart-Scott Associates, Inc., et al., Respondents, et al., Defendant.
    Argued January 5, 1989;
    decided February 9, 1989

      APPEARANCES OF COUNSEL

      Andrew L. Spitz for Michael J. La Manna, appellant.

      Jeffrey Kirsch for Paul E. Colucci, appellant.

      William M. Weegar for Stewart-Scott Associates, Inc., and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs to respondents against the appellants, for the reasons stated in the memorandum of the Appellate Division (138 AD2d 901).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa. Taking no part: Judge Titone.


text:
    The People of the State of New York, Respondent, v Jon Snyder, Appellant. The People of the State of New York, Respondent, v Wayne Rude Snyder, Appellant.
    Argued January 10, 1989;
    decided February 9, 1989

      APPEARANCES OF COUNSEL

      Salvatore D. Ferlazzo, Stephen R. Coffey and Thomas J. DiNovo for appellants.

      Michael A. West, District Attorney (Kent J. Gebert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

We agree with the Appellate Division that there was no reasonable view of the evidence under which the jury could have found defendants’ possession of the weapon to be innocent. Accordingly, defendants were not entitled to the instructions for temporary lawful possession and cannot now complain about the substance of the court’s charge to the jury.

Defendants, two brothers, wrested a loaded pistol from Bruce Van Allen while assaulting him during an altercation outside a bar. They then walked to their nearby home and discussed what to do with the gun. After considering throwing it in a river, burying it, or placing it in a mailbox, they decided to put off the disposition of the gun until the next day. Defendants made no effort to report the incident to the State Police, notwithstanding that the barracks were around the corner from the bar and that the police were at the scene when defendants returned there one-half hour later. Indeed, Wayne Snyder had removed the clip from the gun and placed it under his bed, where it remained until it was retrieved the next morning by the State Police. This evidence is "utterly at odds with [defendants’] claim of innocent possession” (People v Williams, 50 NY2d 1043, 1045) "temporarily and. incidentally [resulting] from * * * disarming a wrongful possessor” (People v Persce, 204 NY 397, 402).

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

Orders affirmed in a memorandum.


text:
    The People of State of New York, Respondent, v William Jones, Appellant.
    Argued January 6, 1989;
    decided February 9, 1989

      APPEARANCES OF COUNSEL

      Arthur H. Hopkirk and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Melissa Harrison, Barbara D. Underwood and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On appeal defendant contends that the trial court erred in refusing his request to submit to the jury the factual issue of whether the principal prosecution witness, Steven Langhorne, was an accomplice under CPL 60.22 (2) (a). We agree with the Appellate Division that the request was properly denied.

Defendant was indicted for the crimes of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second and third degrees. At trial, Langhorne testified that he observed defendant shoot and kill Leroy Williams and chase Ira Walters into a park across the street. After he heard three shots, Langhorne saw defendant come out of the park, throw a ,bag of marihuana into some bushes, and flee the scene. Langhorne admitted that, after defendant had left, he took money out of Williams’s hand and retrieved the discarded marihuana.

Under CPL 60.22 (2) (a) an "accomplice” is someone who "may reasonably be considered to have participated in * * * [t]he offense charged” (emphasis added). Where differing inferences may reasonably be drawn as to whether a witness participated in the offenses an accomplice-in-fact instruction must be given (see, People v Vataj, 69 NY2d 985, 987). Here, there is no evidence from which it can be reasonably inferred that Langhorne participated in the planning or execution of the crimes. While Langhorne admitted engaging in criminal conduct after defendant left the scene such conduct was not related to the offenses charged. Moreover, defendant’s unsupported contentions that Langhorne served as a "lookout” and remained at the scene to recover the proceeds of the crimes are clearly an insufficient basis for an accomplice instruction (see, People v Tucker, 72 NY2d 849; cf., People v Dorler, 53 NY2d 831; People v DeMasco, 240 NY 170).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacqsa concur; Judge Titone taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Derrick Cade, Appellant.
    Argued January 6, 1989;
    decided February 9, 1989
    APPEARANCES OF COUNSEL

      Adrienne Hale and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Janet M. Berk and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged with and convicted of second degree robbery. At trial, he offered an alibi defense through the testimony of his brother, who testified that at the time of the robbery he and defendant were playing basketball. In rebuttal, the prosecutor was permitted to call defendant’s parole officer (not identified as such to the jury), who testified that four days after defendant’s arrest for the crime here at issue, defendant’s brother told the parole officer that defendant "might have committed the robbery”. On surrebuttal, defendant’s brother denied having made this statement to the parole officer.

Defendant argues that the rebuttal testimony from the parole officer was collateral evidence admitted in violation of the rule prohibiting impeachment of a witness with extrinsic evidence on a collateral issue. The People counter that the statement was not collateral evidence because it was relevant to an issue other than credibility (People v Wise, 46 NY2d 321, 328; see also, People v Schwartzman, 24 NY2d 241, 245; Richardson, Evidence § 491 [Prince 10th ed]).

Here, the statement of defendant’s brother to defendant’s parole officer indicated that defendant was not with his brother at the time of the crime and is thus flatly contradictory to the brother’s alibi testimony at trial. The substance of this contradiction goes to a material, core issue in the case— defendant’s whereabouts at the time of the crime. "Inasmuch as the content of the statement was relevant to issues otherwise before the jury [unquestionably material in the instant case], its introduction did not expose the jury to the risk of diversionary excursions into collateral matters” (People v Wise, 46 NY2d 321, 328, supra; see also, People v Schwartzman, 24 NY2d 241, 245, supra; People v Castro, 101 AD2d 392, affd 65 NY2d 683; People v Beavers, 127 AD2d 138). The collateral evidence exclusionary rule was thus not violated and the lower courts did not err in approving the admission into evidence of the rebuttal testimony.

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

Order affirmed in a memorandum.


text:
    In the Matter of Michael Armienti et al., Appellants, v Dominic J. Lodato, as a Justice of the Supreme Court, et al., Respondents.
    Submitted October 31, 1988;
    decided February 9, 1989
   Motion insofar as it seeks leave to appeal from so much of the order of the Appellate Division as denied the motion for a stay dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion otherwise denied.

Judge Titone taking no part.


text:
    In the Matter of 383 Madison Associates et al., Respondents, v New York City Planning Commission et al., Appellants.
    Submitted February 6, 1989;
    decided February 9, 1989
   Motion for a stay denied as unnecessary on the ground that the municipal respondents’ motion for leave to appeal in this court provides an automatic stay (see, CPLR 5519 [a] [1]).


text:
    Warner Bros. Inc., Respondent, v John S. Wojtowicz et al., Appellants, et al., Defendants.
    Submitted November 28, 1988;
    decided February 9, 1989
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as denied the motion for reargument dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Academy Mews, Inc., Respondent, v John V. Kane, III, et al., Appellants.
    Submitted November 28, 1988;
    decided February 14, 1989
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and it is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Anchor Savings Bank, F.S.B., Respondent, v Alpha Developers, Ltd., Appellant, et al., Defendants.
    Submitted December 12, 1988;
    decided February 14, 1989
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    In the Matter of Kenneth F. Kaplan, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 27, 1988;
    decided February 14, 1989
   Motion insofar as it seeks leave to appeal from the Appellate Division order entered on June 7, 1988 denied; motion insofar as it seeks leave to appeal from the Appellate Division order entered on November 10, 1988 dismissed upon the ground that that order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Jaime Mantilla, Respondent, v Sabina Lewkowitz, Appellant.
    Submitted November 28, 1988;
    decided February 14, 1989
   Motion insofar as it seeks leave to appeal from so much of the October 28, 1985 order of the Appellate Division as dismissed the appeal from the default judgment of Supreme Court, dated April 12, 1983, dismissed upon the ground that no appeal lies from the Appellate Division order dismissing an appeal from a determination entered upon a default (CPLR 5511); motion otherwise dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Ronald L. Sampson, Appellant.
    Argued January 6, 1989;
    decided February 16, 1989
    APPEARANCES OF COUNSEL

      Robert L. Adams for appellant.

      James B. Canfield, District Attorney (Youel C. Smith, III, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, a Vermont resident, was suspected of having committed a murder in New York. New York police went to question defendant in Vermont. They did not possess probable cause to arrest defendant, nor did they intend to make an arrest at that time. Upon questioning, however, defendant confessed to the murder, and was arrested in Vermont by the New York police. Following this first confession defendant made additional statements, further incriminating himself. The New York police then brought defendant back to New York.

Defendant subsequently moved to suppress, among other things, the statements made and evidence gathered following his initial confession, as the products of an illegal detention by the New York police. His motion was denied, and defendant pleaded guilty to murder in the second degree. The Appellate Division, affirming the conviction on appeal, held that even if the detention following the confession was illegal, the statements made during that period were similar to the valid initial confession, and thus any erroneous failure to suppress was harmless. In this court, however, the People concede that the doctrine of harmless error does not apply in the present situation, where an allegedly erroneous failure to suppress was followed by a guilty plea (see, e.g., People v Grant, 45 NY2d 366, 379-380).

On this appeal defendant again argues for suppression of evidence gathered following his initial confession, on the basis that his detention by the New York police constituted a failure to comply with CPL 140.10. He maintains that under this statute, after implicating himself in the murder, he immediately should have been turned over to the Vermont police, which would have precluded further questioning by the New York police (see also, CPL 140.55 [2]; Vt Stat Annot, tit 13, §§ 5041, 5042). In his brief in this court defendant posits no constitutional arguments regarding the authority of the New York police, as out-of-State actors, to proceed as they did; instead, he argues only that suppression is required because the New York police failed to follow statutory guidelines in arresting him in Vermont.

We considered this very argument in People v Junco (35 NY2d 419). In that case New York police pursued the defendant into New Jersey, where he was arrested. However, in violation of the New Jersey statutory requirement that once arrested, a defendant be arraigned in New Jersey, the New York police immediately returned defendant to New York, rather than arraigning him in New Jersey. We held that because the officers did not knowingly or intentionally disregard the New Jersey fresh pursuit statute, suppression of the fruits of a postarrest search was not required (id., at 424; see also, People v Harris, 48 NY2d 208, 216 [holding that suppression was not warranted where defendant’s statutory rights, as opposed to constitutional rights, were violated]).

This case, therefore, is controlled by People v Junco (supra). Assuming that the Vermont fresh pursuit statute (see, Vt Stat Annot, tit 13, §§ 5041, 5042) was violated — a proposition that the People continue to strongly dispute — no suppression is warranted here. Defendant does not allege, nor does the record support, a finding that the New York police intended to deprive defendant of his statutory rights. As a result, under People v Junco (supra), any violation of the statutory guidelines concerning arrests made out of State does not, in this case, call for suppression.

We have examined defendant’s remaining contentions, and conclude that they are without merit.

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

Order affirmed in a memorandum.


text:
    Marilyn S. et al., Appellants, v City of New York et al., Respondents.
    Argued January 5, 1989;
    decided February 16, 1989

      APPEARANCES OF COUNSEL

      Kathleen Peratis and Richard Frank for appellants.

      Peter L. Zimroth, Corporation Counsel (Margaret G. King and Stephen J. McGrath of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (134 AD2d 583).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa. Taking no part: Judge Titone.


text:
    The People of the State of New York, Respondent, v Charles Clinton, Appellant.
    Submitted December 12, 1988;
    decided February 16, 1989
   Motion to dismiss appeal denied.


text:
    Marilyn Lichtman, Doing Business as DeWitt Nursing Home, Appellant, v Rhoda Grossbard, Individually and as Conservator for Jules Grossbard, Respondent.
    Submitted January 9, 1989;
    decided February 16, 1989
   Motion for reargument or amendment of remittitur denied. [See, 73 NY2d 792.]


text:
    Mary Ruttenberg, Appellant, v William J. Jarrett, Respondent.
    Submitted December 5, 1988;
    decided February 16, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from Supreme Court’s order denying plaintiff’s motion for reargument, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Linda Nussbaum, as Executrix of Elaine Celetti, Deceased, Respondent, v Alan Gibstein et al., Appellants.
    Argued January 4, 1989;
    decided February 21, 1989

      APPEARANCES OF COUNSEL

      Michael A. Ellenberg for appellants.

      Thomas A. Moore for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and a new trial granted on the issue of damages on the first cause of action.

Plaintiffs decedent, Elaine Celetti, died on June 8, 1985, nearly two years after discovering that a painful lump in her left breast was cancerous and that the cancer had already begun to metastasize. This action was commenced alleging various acts of malpractice on the part of Dr. Alan Gibstein and his professional corporation in failing to properly diagnose the condition during a regular checkup 10 months before the cancer was discovered. The first cause of action sought damages for decedent’s conscious pain and suffering; the second cause of action was for wrongful death.

Defendants’ liability was established at trial and, although that finding was challenged on appeal to the Appellate Division, it is not in issue here. As limited by their brief, defendants challenge only so much of the Appellate Division order as affirmed the award of damages on the first cause of action.

In this regard, defendants contend that the trial court erred in instructing the jury that it could make an award for the loss of enjoyment of life separate and distinct from an award for conscious pain and suffering. We agree. As we hold in a companion case (see, McDougald v Garber, 73 NY2d 246 [decided today]), loss of enjoyment of life is not a separate element of damages deserving a distinct award but is, instead, only a factor to be considered by the jury in assessing damages for conscious pain, and suffering.

Chief Judge Wachtler and Judges Simons, Kaye, Hancock, Jr., and Bellacosa concur in memorandum; Judges Alexander and Titone dissent and vote to affirm for the reasons stated in Judge Titone’s dissenting opinion in McDougald v Garber (73 NY2d 246, 258 [decided today]).

Order, insofar as appealed from, reversed, etc.


text:
    In the Matter of Acres Storage Company, Inc., Appellant, v Roderick Chu, as Commissioner of the State Tax Commission, et al., Respondents.
    Decided February 21, 1989
   Appeal insofar as it seeks to bring up for review the order of the Appellate Division in proceeding No. 1 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal pursuant to CPLR 5601 (d) does not lie to review an order of the Appellate Division made on an appeal in an earlier proceeding (Matter of Matheson [Concerned Citizens] v Town Bd., mot to dismiss appeal granted 54 NY2d 957). Appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    Army & Navy Supply Stores Corp. et al., Appellants, v Consolidated Edison Company of New York, Inc., Respondent.
    Submitted December 19, 1988;
    decided February 21, 1989
   Motion for leave to appeal from the Supreme Court judgmerit dated November 28, 1988 dismissed upon the ground that it does not lie. The judgment had no effect on the Appellate Division order dated February 9, 1988 from which this court already dismissed in part and denied in part a motion for leave to appeal (71 NY2d 1012; see, CPLR 5611).


text:
    County of Rockland, Appellant, v Spring Valley Water Company, Inc., et al., Defendants, and Corwick Realty Corp., Respondent. (And a Third-Party Action.)
    Decided February 21, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b]).


text:
    The People of the State of New York, Respondent, v Nedjatollah Sakhai, Appellant.
    Submitted January 3, 1989;
    decided February 21, 1989
   Motion to vacate dismissal of appeal granted, appeal reinstated and case set down for argument on April 27, 1989, appellant’s papers on appeal to be served and filed on or before March 23, 1989 and respondent’s on or before April 13, 1989. [See, 73 NY2d 852.]


text:
    In the Matter of Tax Foreclosure Action No. 33. City of New York, Respondent; Babe Realty, Inc., Appellant.
    Decided February 21, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, as untimely (CPLR 5513 [a]; 2103 [b] [2]).


text:
    LIN Broadcasting Corporation et al., Respondents, v Metromedia, Inc., et al., Respondents, and Celcom Communications Corporation, Intervenor-Appellant.
    Submitted December 5, 1988;
    decided February 23, 1989
   Proposed intervenor’s motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Wachtler and Judge Bellacosa taking no part.


text:
    Judith Meltzer, Respondent, v West’s Motor Freight, Inc., et al., Appellants.
    Decided February 23, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the stipulation for judgment absolute, under the facts of this case, is illusory and frustrates the purpose of CPLR 5601 (c) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    Susta Corp., Respondent, v Frederick A. Stronko, Appellant.
    Submitted February 13, 1989;
    decided February 23, 1989
   Motion for a stay dismissed upon the ground that it does not lie because no matter is pending before this court (see, CPLR 5519).


text:
    In the Matter of Pasquale Cascione, Appellant, v Robert M. Haft, as a Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted December 19, 1988;
    decided February 23, 1989
   Motion for leave to appeal dismissed upon the ground that the issue presented has become moot.


text:
    In the Matter of Paul T. Gentile, on Behalf of the People of the State of New York, Appellant, v Robert L. Cohen, as a Justice of the Supreme Court, Bronx County, et al., Respondents.
    Submitted December 19, 1988;
    decided February 23, 1989
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Respondent, v Osvaldo Cabrera, Appellant.
    Submitted February 6, 1989;
    decided February 23, 1989
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal will lie from an order of the Appellate Division denying leave to proceed in that court as a poor person.


text:
    The People of the State of New York, Appellant, v Manuel Mateo, Respondent.
    Argued January 4, 1989;
    decided February 9, 1989
    APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Peter R. Chatzinoff, Barbara D. Underwood and Nikki Kowalski of counsel), for appellant.

      Harold V Ferguson, Jr., and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this prosecution for assault, possession of a controlled substance and possession of a weapon, the prosecution’s key witness — defendant’s former girlfriend — on both direct and cross-examination denied ever having used cocaine and denied ever having permitted defendant to bring drugs into her apartment. After she left the stand, however, the prosecutor and defense counsel received medical records showing that she told hospital personnel that she had used cocaine. The court denied defendant’s motion for a mistrial but ruled that defendant could recall the witness to explore the inconsistency.

The prosecutor explained that when he confronted the witness with the apparent inconsistency, she denied that her answers were untruthful, claiming that defendant had forced cocaine on her in connection with sexual practices and she did not consider that to be "use” by her. The prosecutor further stated that the witness had become upset and embarrassed while discussing the subject with him, and had told him she feared that if she disclosed these facts, defendant’s relatives and friends attending the trial would use that testimony to humiliate her publicly. The prosecutor moved for closure of the courtroom during her additional cross-examination. Defense counsel objected, based in part on a challenge to the credibility of assertions of embarrassment by this witness, given her testimony and failure to make earlier disclosure privately to the prosecutor. The court took "judicial notice” of the embarrassing nature of the testimony to be given and excluded defendant’s family and friends as well as uninterested spectators from the courtroom, although other persons were permitted to enter and remain.

We agree with the Appellate Division that although the trial court is vested with discretion in choosing a method for determining if closure is necessary, here the inquiry was insufficient to justify the limited closure (see, People v Jones, 47 NY2d 409, 414). A witness’ embarrassment or anxiety might in appropriate circumstances warrant closure (see, e.g., People v Glover, 60 NY2d 783; People v Joseph, 59 NY2d 496). However, here the court excluded defendant’s family and friends without establishing an adequate basis to determine that the witness was unable to testify about a particular matter in open court because of an incapacitating embarrassment and that the limited closure was necessary to preserve an overriding interest that likely would otherwise be prejudiced (see, People v Colon, 71 NY2d 410, 415).

In the circumstances presented, including asserted subjective feelings of embarrassment, the court should not have closed the courtroom to defendant’s relatives and friends without some inquiry of the witness herself (see, People v Joseph, supra [Trial Judge conferred with complainant and counsel in the robing room]). On these facts, the court’s sole reliance on information transmitted by the prosecutor did not constitute “an inquiry careful enough to assure the court that the defendant’s right to a public trial is not being sacrificed for less than compelling reasons.” (People v Jones, supra, at 414-415.)

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

Order affirmed in a memorandum.


author: Simons, J.

text:
    Charles Bonner, Respondent, v City of New York, Defendant, and Board of Education of the City of New York, Appellant.
    Argued January 5, 1989;
    decided February 16, 1989

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Margaret G. King and Edward F. X. Hart of counsel), for appellant.

      David Jacobs for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 2, 1983, plaintiff, a New York City public school teacher, and five other school teachers were assigned to supervise the school playground at P.S. 153 in Manhattan during a play period. On the two sides that border City streets, the playground is enclosed by a high chain link fence and can be entered through iron gates — one gate on the north side of the playground, the other on the south. When plaintiff entered the playground, he saw several older children, not then students of the school, playing basketball there. Plaintiff locked the gate on the south side, and because the north gate was off its hinges and could not be locked, he stationed himself at that gate; as plaintiff testified, when a playground gate was unlocked during the play period his job was to be posted at the gate for the security of the school children in the yard. The teacher in charge of the playground later asked plaintiff to break up a fight between two boys, which he did. Discovering that one of the two boys was not a student at the school, plaintiff forcibly escorted him out through the schoolyard’s north gate. After the boy’s older cousin came into the yard and pushed plaintiff, the boy returned to the playground with a baseball bat, swung it at plaintiff and injured his wrist.

In this personal injury action plaintiff complained that defendants were negligent in allowing the gate to remain broken, failing to provide adequate levels of security in the schoolyard or provide proper training to teachers and persons charged with supervision during play periods, failing to assist plaintiff during the altercation, allowing intruders to enter the playground, failing to provide sufficient personnel at the broken gate to prevent their entry, and allowing the play period in the schoolyard despite the broken gate. The jury returned a verdict of $200,000 in favor of plaintiff and against defendant Board of Education, finding plaintiff 50% responsible for his own injuries. The Appellate Division affirmed plaintiff’s judgment, without opinion.

Contrary to plaintiff’s assertions, the particular negligence alleged is not the failure to fulfill a proprietary function, for which a municipal defendant may be held liable (see, Miller v State of New York, 62 NY2d 506). Plaintiff’s claim is premised on the contention that defendant’s security system — of which he concededly became a part when he stationed himself at the north gate — was inadequate to protect him from criminal activity. It is settled, however, that the provision of security against physical attacks by third parties in circumstances as are presented here, is a governmental function involving policymaking regarding the nature of the risks presented, and that no liability arises from the performance of such a function absent a special duty of protection (see, Vitale v City of New York, 60 NY2d 861; Glick v City of New York, 42 NY2d 831, affg on mem at 53 AD2d 528; see also, Marilyn S. v City of New York, 73 NY2d 910 [decided today]). In that a governmental function is at issue here, and plaintiff failed to establish that defendant had assumed a special duty to him, there was no legal basis for the judgment in his favor.

While we do not dispute the description of our prior holdings recited in the dissent, we do disagree as to their application to the facts of this case. As the dissent observes, providing security to public school teachers against criminal acts by third parties is a governmental function, and a school may not be liable for negligence in the absence of a special duty. Where we part company is with respect to the conclusion that the conduct at issue here may be likened to the school’s failure to repair steps. Despite the trial court’s erroneous submission of the matter to the jury on the theory that only a proprietary function was at issue, plaintiff’s own testimony established that his station at the schoolyard’s north gate was in accordance with prior instruction, for the security of the school children, when the gate could not be locked. The situation is not unlike Marilyn S. v City of New York (supra), also decided today. While plaintiff there portrayed the alleged failure as "proprietary” — arguing that a system of locks already in place was not maintained in a reasonable fashion— we all agree that the school’s failure to maintain the key control system in that case was an aspect of the school’s overall security system and thus a governmental function; the same may be said of the north gate in this case.

Finally, we note that the issues in this case are presented to us solely in terms of "governmental” and "proprietary” functions (see, Matter of County of Monroe, 72 NY2d 338), and thus reconsideration of the distinction in the present context is unwarranted.

Simons, J.

(dissenting). I cannot agree with the majority’s conclusion that plaintiff’s verdict rests upon a finding that the school district breached a governmental duty. While plaintiff alleged that defendant breached both governmental and proprietary duties to him, the court submitted to the jury solely the question of whether defendant breached a proprietary duty in failing to properly maintain the lock on the playground gate. The majority’s analysis of governmental functions and special duty is not pertinent. Since the school district’s duty to maintain the playground gate was proprietary in nature, under Miller v State of New York (62 NY2d 506) plaintiff did not have to prove that the school district owed him a special duty to recover for its negligence (see, Cuffy v City of New York, 69 NY2d 255, 260-261). Accordingly, I would affirm the order of the Appellate Division. I write at some length because I believe that the majority, in reversing that order, has clouded the rules governing cases of this type and has cast serious doubt on the continuing validity of Miller v State of New York (supra).

Under settled principles, providing security to public school teachers against criminal acts by third parties is a governmental function; the plaintiff is required to plead and prove the existence of a special duty owed to him by school authorities before the school may be liable for negligence (Vitale v City of New York, 60 NY2d 861; Glick v City of New York, 42 NY2d 831, affg 53 AD2d 528). The rule is no more than the logical extension of the principle that a municipality may not be held liable for injuries resulting from the failure to provide police protection (Cuffy v City of New York, supra, at 260; Sorichetti v City of New York, 65 NY2d 461, 468; Riss v City of New York, 22 NY2d 579). It rests on a judicial recognition that a municipality’s provision of security to the public is a matter of allocating limited public resources and is better left to the discretion of the other two branches of government (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175, 181; Riss v City of New York, supra; Motyka v City of Amsterdam, 15 NY2d 134, 138).

Conversely, when the government acts in a proprietary capacity, as a landowner or landlord, it is subject to the same principles of tort law as a private individual; liability for negligence may be found even absent the existence of a special duty (Miller v State of New York, 62 NY2d 506, supra; Preston v State of New York, 59 NY2d 997; Court of Claims Act § 8). Although governments have always had that duty, formerly claims against them were barred by the doctrine of sovereign immunity and could not be enforced (see, Schuster v City of New York, 5 NY2d 75, 83; Bernadine v City of New York, 294 NY 361). Since the State’s waiver of sovereign immunity, however, the doctrine no longer forecloses liability for breach of a proprietary duty.

Concededly, it is difficult to draw the line between claims resting upon a breach of a proprietary duty and those resting upon a governmental duty. A governmental entity’s conduct, as we said in Miller v State of New York (62 NY2d 506, 511-512, supra), "may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection.” (Emphasis added.) In fixing the place on the continuum where any given conduct falls, "[i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency is engaged generally in proprietary activity or is in control of the location in which the injury occurred” (Weiner v Metropolitan Transp. Auth., supra, at 182 [emphasis added]; see also, Miller v State of New York, supra, at 513). Applying that standard, the conduct of which plaintiff complains constituted a breach of a proprietary duty. An analysis of the Weiner and Miller cases illustrates why.

In Weiner, the plaintiff was assaulted by an intruder while walking down the steps to the subway train level in a station owned and maintained by defendant authority. The plaintiff argued that the operation of a commuter railroad constituted a proprietary function and that liability for failure to provide adequate police protection at the train station could result absent the existence of a special duty (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507). The court rejected plaintiff’s contention and held that the specific omission alleged to be negligent — "the absence of police surveillance at the entrance and the failure to warn of criminal activity in the area or close the entrance when police protection was not available” — was not actionable, absent a special duty, because it required juries and courts to interfere with the legislative and executive decision how to utilize security resources (Weiner v Metropolitan Transp. Auth., supra, at 182, citing Riss v City of New York, 22 NY2d 579, supra).

In Miller, a State University student was raped in the basement of her on-campus dormitory by a nonstudent intruder. She sought to predicate liability upon the school’s negligent failure to provide adequate police protection and failure to lock the exterior dormitory doors. We held that plaintiff could recover on the latter theory because it involved a breach of the State’s proprietary duty as landlord rather than a breach of a governmental duty to provide security (62 NY2d, at 514 supra).

In this case, the trial court properly relied on Miller in denying the school district’s motion to dismiss. The one actionable claim proven — and the only theory of liability submitted to the jury — was that the school district was negligent in failing to repair the gate at 147th Street despite the Board’s knowledge that it was broken and that intruders had caused problems on the school premises in the past. The duty to maintain this gate so that it could be locked involved the same considerations as did the duty to lock the exterior dormitory doors in Miller. Imposing such a duty on defendant does not require the court or the jury to interfere with executive-legislative decisions of how to best allocate police or security resources and, manifestly, it does not impose a duty upon municipalities to post security guards at every school at the risk of being exposed to crushing liability. The duty imposed is only to maintain premises, a duty which has always been imposed on property owners and on which liability against the State may rest, now that the State has waived immunity from suit.

It is particularly troublesome that in deciding against plaintiff the majority relies upon Glick v City of New York (42 NY2d 831, affg 53 AD2d 528, supra) and Vitale v City of New York (60 NY2d 861, supra) because under the Weiner-Miller analysis those cases are not on point. In Glick, the plaintiff, a female teacher, was assaulted by a male student in a woman’s bathroom at a public high school. The plaintiff alleged three theories of negligence: (1) failing to provide adequate supervision at the school, (2) permitting the student to remain at the school with knowledge of his dangerous propensities and (3) in failing to transfer the student to a different school. We affirmed dismissal of the complaint on the memorandum at the Appellate Division which concluded that liability could not be sustained absent proof that the school owed a special duty to the student. That case presented only a dispute on how to best adopt and implement a security plan and whether or not to dismiss or transfer a troublesome student. Those are governmental functions and the case is not a useful parallel to this case involving defendant’s failure to maintain the lock on a schoolyard gate.

Similarly, in Vitale, we dismissed the complaint of a teacher who was injured when he tried to break up an altercation between students in the hallway of a school. The claim of liability rested upon the school’s alleged failure to observe its own detailed security plan. Plaintiff did not contend that the defendant breached a proprietary duty; instead he conceded that the act of negligence was governmental in nature and attempted to establish that the school owed him a special duty (see, 60 NY2d, at 863, supra). We rejected that argument and held that "[njothing in the adoption or content of the [security] plan warrants a finding that it was designed or intended specifically for his benefit or that of other teachers in the school” (id.). Vitale is useful for determining whether or not a relationship between a plaintiff and a defendant can be considered "special”, but it offers no help in determining whether a specific act or omission is governmental or proprietary in nature and it certainly does not support the majority’s holding in this case in which the verdict rests on a failure to perform a proprietary duty.

Finally, it should be clear that the finding of no liability in Glick and Vitale did not rest solely on the circumstances that they involved attacks by third parties on premises owned by a public school. It would be inaccurate to conclude that because the property was owned by the school district or because providing public education is governmental, liability cannot be sustained against defendant in the absence of a special duty. The Weiner and Miller decisions reject such an approach and hold that liability rests upon a consideration of the underlying purpose to be served by the special duty rule (see, Riss v City of New York, 22 NY2d 579, 582, 583, supra). Indeed, we recognized this in Crosland v New York City Tr. Auth. (68 NY2d 165, 169, n 3) by specifically disapproving Ammirati v New York City Tr. Auth. (117 Misc 2d 213, 217) which had failed to apply the Weiner test in that way.

Moreover, an affirmance here is consistent with the result in Marilyn S. v City of New York (73 NY2d 910 [decided today]). According to the plaintiff’s expert in that case, the establishment and management of the key control system at the high school was a critical aspect of the over-all security system of the school. Implementing such a system presents problems because regardless of how carefully the school attempts to control keys, extra ones will be distributed to substitute teachers or teachers who forget theirs, and others will be lost as teachers retire or are transferred. Given those circumstances, school officials must decide at what point it is cost effective and practical to avoid risk by requiring that the lock cylinders be changed and new keys issued. Such decisions are policy choices involving the, distribution of a limited amount of allocated resources and require the exercise of judgment and discretion in making the necessary tradeoffs with other or additional security measures. As such they differ completely from the landlord’s obligation to maintain premises and are properly considered governmental, not proprietary, activities for which the school district may not be liable absent a special duty.

The school district also contends that even if it had a proprietary duty to maintain the playground gate in a condition in which it could be locked, it should not be held liable because the New York City Building Code mandates that the school playground gates must be open at all times when the school building or schoolyard is occupied in order to provide an exit from the building and schoolyard to a public street (Administrative Code of City of New York former §§ C26-602.1 —602.4 [now §§ 27-361 — 27-364]). Since it was unlawful for it to lock the gates, the school district contends it could not at the same time be under a duty to lock them to prevent outsiders from entering the schoolyard and injuring plaintiff. Thus, it urges the failure to maintain the gate in a condition in which it could be locked was not, as a matter of law, the proximate cause of plaintiff’s injuries (Sheehan v City of New York, 40 NY2d 496, 501; Saugerties Bank v Delaware & Hudson Co., 236 NY 425). Whatever the correct legal interpretation of the Building Code provisions, the school district acquiesced in the trial court’s decision to submit the interpretation and application of them to the jury as questions of fact. The jury found- against the school district and, having acquiesced in that procedure, it may not now urge that the court should have dismissed the action because, as a matter of law, the gate had to remain open (see, Martin v City of Cohoes, 37 NY2d 162, 165-166).

Accordingly, I dissent and vote to affirm.

Judges Kaye, Alexander, Hancock, Jr., and Bellacosa concur in memorandum; Judge Simons dissents and votes to affirm in an opinion in which Chief Judge Wachtler concurs; Judge Titone taking no part.

Order reversed, etc.


text:
    In the Matter of Whitney Museum of American Art, Respondent, v New York State Division of Housing and Community Renewal, Appellant, and Hilail Gilden et al., Intervenors-Appellants.
    Argued February 7, 1989;
    decided March 23, 1989

      APPEARANCES OF COUNSEL

      Sheldon D. Melnitsky and Dennis Hasher for appellant.

      Donald Eng, David Rozenholc and Mitchell P. Heaney for Hilail Gilden and others, intervenors-appellants.

      Kent Karlsson and William A. Herbert for Peter Dixjhoorn, intervenor-appellant.

      Gary M. Rosenberg and Jeffrey Turkel for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (139 AD2d 444). Certified question answered in the affirmative.

Concur: Chief Judge Wachtler and Judges Simons, KLaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    The People of the State of New York, Respondent, v Raymond Rivera, Appellant.
    Argued February 7, 1989;
    decided March 23, 1989
    APPEARANCES OF COUNSEL

      Mitchell J. Briskey and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Joseph J. Dawson and Carol Gette of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s sole argument on appeal is that certain comments made by the prosecutor during summation violated his constitutional rights to equal protection and due process. When the comments were made, defendant made only a general objection. Thus, he failed to preserve his present argument for our review (see, People v Ford, 69 NY2d 775, 776). We reject defendant’s contention that the claimed error required no preservation as an error affecting " 'the organization of the court or the mode of proceedings prescribed by law’ ” (People v Ahmed, 66 NY2d 307, 310, quoting People v Patterson, 39 NY2d 288, 295, affd 432 US 197).

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

Order affirmed in a memorandum.


text:
    Roseann Baer et al., Respondents, v Town of Brookhaven et al., Appellants.
    Argued February 9, 1989;
    decided March 23, 1989

      APPEARANCES OF COUNSEL

      David P. Fishbein, Town Attorney (Denise F. Molia of counsel), for appellants.

      Robert Briglio and Leonard S. Clark for respondents.

      Michael Shank for Concern for Mental Health, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Plaintiffs, five unrelated elderly women, live in a house located in a Town of Brookhaven residential zone where only one-family dwellings are permitted as of right. Under the Town Code the term "family” is defined as "[o]ne or more persons related by blood, adoption or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding four, living and cooking together as a single housekeeping unit though not related by blood, adoption or marriage, shall be deemed to constitute a family” (emphasis added). After the Town charged a violation of the four unrelated persons limit, plaintiffs commenced this action seeking, among other things, a declaration that the restrictive definition of "family” violates the State Due Process Clause (see, NY Const, art I, § 6).

In McMinn v Town of Oyster Bay (66 NY2d 544) we addressed the constitutionality of a zoning ordinance which limited the number and age of unrelated persons who could dwell in a single-family home to two persons, 62 years of age or older. We held that the ordinance was invalid because it imposed a restriction on the number of unrelated persons residing together as a functionally equivalent family but imposed no such restriction on related persons. Such differentiation, we said, was not reasonably related to a legitimate zoning purpose and, therefore, violated the State Due Process Clause (see, id., at 550-551). Because the ordinance here similarly restricts the size of a functionally equivalent family but not the size of a traditional family, it violates our State Constitution.

Defendants’ argument that the ordinance withstands Federal constitutional scrutiny (see, Village of Belle Terre v Boraas, 416 US 1) is beside the point inasmuch as the ordinance offends the State constitutional standard. Defendants’ remaining arguments are without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Richard H. Whitehill, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Argued February 11, 1989;
    decided March 23, 1989

      APPEARANCES OF COUNSEL

      Thomas E. Brydges for appellant.

      Robert Abrams, Attorney-General (Julie S. Mereson, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (142 AD2d 902).

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


text:
    The People of the State of New York, Respondent, v Dean Simonds, Appellant.
    Argued February 16, 1989;
    decided March 23, 1989

      APPEARANCES OF COUNSEL

      Howard Friedman and Philip L. Weinstein for appellant.

      Paul T. Gentile, District Attorney (Allen M. Hecht and Susan L. Valle of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant’s argument with respect to an alleged Rosario (People v Rosario, 9 NY2d 286) violation, never having been raised in the trial court or the Appellate Division, is unpreserved for our review (People v Poole, 48 NY2d 144, 149-150), and his other arguments are without merit.

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


text:
    Henry L. Fox Co., Inc., Respondent, v William Kaufman Organization, Ltd., et al., Appellants.
    Decided March 23, 1989
   On the court’s own motion this court’s order and decision granting leave to appeal dated January 12, 1989 [73 NY2d 704] vacated unless within 20 days appellants, if they be so advised, serve upon respondent and file in this court a notice that they have abandoned their appeal to the Appellate Division, and stipulate for the withdrawal of that appeal (Parker v Rogerson, 35 NY2d 751).

Chief Judge Wachtler and Judge Kaye taking no part.


text:
    Raymond V. Thompson, Appellant, v Gulf & Western Inc., Respondent.
    Submitted December 27, 1988;
    decided March 23, 1989
   Motion dismissed upon the ground that this court does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).