author: Ciparick, J.

text:
    [632 NE2d 1272, 610 NYS2d 949]
    The People of the State of New York, Appellant, v Roland Herring, Respondent.
    Argued January 13, 1994;
    decided February 17, 1994

      APPEARANCES OF COUNSEL

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

      Cathy R. Frank, of the New Jersey Bar, admitted pro hac vice, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to it for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]) and for consideration of issues raised but not considered on the appeal to that Court.

An undercover police officer approached defendant, a stranger, on a Bronx street and asked whether defendant had drugs for sale. Defendant then led the officer to a nearby storefront, took money from him and went into the building, where he received four vials of cocaine from a codefendant. After giving the vials to the officer, defendant left the immediate vicinity. He was later arrested and tried on charges of criminal sale and criminal possession of a controlled substance (see, Penal Law § 220.39 [1]; § 220.16 [1]).

At the conclusion of the trial defendant requested the court to charge on agency. The court denied the request, concluding that the evidence failed to support an inference that defendant was working solely as an agent of the buyer (see, People v Argibay, 45 NY2d 45, 55, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 US 930). The Appellate Division reversed. It held that there was an issue of fact concerning agency because defendant was not soliciting customers and neither requested nor received anything for his participation in the transaction.

We conclude that the evidence was insufficient as a matter of law to require the charge. The entitlement to an agency charge depends entirely on the relationship between the buyer and the defendant. Unless some reasonable view of the evidence supports the theory that defendant was acting only on behalf of the buyer, the jury need not be instructed on the agency defense (see, People v Lam Lek Chong, 45 NY2d 64, 73, cert denied 439 US 935; see also, People v Andujas, 79 NY2d 113). The factors relied upon by the Appellate Division do not raise an inference of agency. A defendant may be guilty as a seller even if he does not receive any consideration for the transfer of drugs to the buyer (Penal Law § 220.00 [1]) and, as the dissent recognizes, solicitation or the lack of it is not dispositive. Similarly, evidence that defendant was acting as a middleman is not sufficient to warrant such a charge (People v Argibay, supra, at 53).

There was no reasonable view of the evidence presented at this trial that defendant agreed to participate in this crime only because he wished to serve as an agent for the buyer, a complete stranger. Defendant had no prior contact with the officer, and when the officer approached and asked defendant if he had "any nickels”, defendant instantly understood the inquiry and agreed to assist in the drug purchase. The location of the drug operation, known only to defendant and from which he completed the purchase, was secreted in a storefront only a few feet away. His behavior, both before and during the sale, was consistent with that of a "steerer” in a drug sales operation. The jury could not reasonably conclude from the evidence that defendant was acting solely as an extension of the buyer (see, People v Ortiz, 76 NY2d 446, remittitur amended 77 NY2d 821; People v Argibay, supra; compare, People v Roche, 45 NY2d 78, cert denied 439 US 958).

The dissent disapproves of the Appellate Division’s rationale but appears to believe the charge should be given whenever the evidence raises an inference that defendant may not have been an agent of the seller. That view misconstrues the issue. Before an agency charge is warranted, the evidence must be indicative of a relationship with the buyer not merely raise ambiguities about the defendant’s connection to the seller.

In any event, defendant was convicted on an acting-in-concert theory. The jury was properly charged on that theory, and its finding of guilt necessarily precluded the possibility of agency.

Ciparick, J.

(dissenting). I respectfully dissent and would affirm the order of the Appellate Division. In resolving whether a defendant is entitled to a jury charge on the defense of agency, the trial court must view the trial evidence in the light most favorable to the defendant and determine whether there exists "at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer” (People v Argibay, 45 NY2d 45, 55; see, People v Ortiz, 76 NY2d 446, 448; People v Padgett, 60 NY2d 142, 144).

This Court has previously recognized that "[t]here is no legal formula for determining the defendant’s intent at the time of the drug transfer” (People v Lam Lek Chong, 45 NY2d 64, 75). Whether a particular defendant has acted only as an agent for the buyer is generally a factual question for the jury (see, Ortiz, 76 NY2d, at 449, supra). The jury may consider such factors as the nature and extent, if any, of the relationship between defendant and buyer, whether defendant or buyer suggested the purchase, whether the defendant had prior dealings with the buyer or with other buyers and sellers, and whether defendant profited, or expected to profit, from the transaction (Lam Lek Chong, 45 NY2d, at 75, supra). Where doubt exists, the jury, using its common sense and experience, can best determine the defendant’s intent at the time of the transaction (id.).

Defendant was approached by an undercover police officer who asked him whether he had any "nickels”. Thus, the purchase was at the officer’s suggestion. Defendant answered in the affirmative and the undercover officer followed him to the front of a nearby bodega where the officer gave defendant $20 in prerecorded "buy money”. This circumstance reflects no more than defendant’s knowledge that drugs were being sold in the bodega. Defendant entered the bodega and exchanged the money for four vials of cocaine. Defendant returned, gave the vials to the officer, and left the vicinity. Defendant was not actively selling drugs or soliciting customers when he was approached by the undercover officer; nor did he request or receive anything from the buyer in return for effectuating the transaction. None of the prerecorded "buy money” was found in defendant’s possession and on this record no basis exists for speculating whether defendant was otherwise remunerated (see, People v Roche, 45 NY2d 78, 86). Standing alone, the fact that defendant was not "hawking” drugs should not raise an issue of fact for the jury; but considered in conjunction with the other facts and circumstances here, I believe there was an issue of fact on the question of agency. Any doubt whether defendant was a "steerer” in a drug sales operation or acting merely to accommodate the buyer should have been resolved by the trier of fact.

There existing at least some evidence to support the inference of agency, the jury should have been charged accordingly (see, Ortiz, 76 NY2d, at 448, supra; Argibay, 45 NY2d, at 55, supra; Lam Lek Chong, 45 NY2d, at 75, supra).

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

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

       Though the Appellate Division order was characterized as a reversal on the law and facts, we construe it to be a determination solely on a question of law.


source: Caselaw Access Project

license: Public Domain

text:
    [632 NE2d 1275, 610 NYS2d 952]
    The People of the State of New York, Respondent, v Ronnie Jordan, Appellant.
    Argued January 13, 1994;
    decided February 17, 1994
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Drew R. DuBrin of counsel), for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Robert Mastrocola of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted and tried before a jury on four counts of criminal possession of a weapon in the third degree. He was convicted on all charges. The Appellate Division modified by vacating counts one and two. Defendant’s appeal, by leave of a Judge of this Court, is from the Appellate Division order insofar as it affirms the convictions on counts three and four. He claims he received ineffective assistance of counsel and that he was entitled to a Gomberg lawyer-conflict-of-interest admonition prior to trial (see, People v Gomberg, 38 NY2d 307).

Based on two discrete incidents during the summer of 1989, defendant was arrested for the unlawful possession of a loaded handgun. The first two counts arose on May 28, 1989 when a vehicle driven by Lorenzo Rhynes, in which defendant was a passenger, was lawfully stopped. The occupants were removed from the car and a .44 caliber revolver was observed in plain view under the seat where defendant had been sitting. While defendant and the driver Rhynes were arrested for possession of the gun, the Grand Jury returned a no-bill against Rhynes. At that time, Rhynes was represented by the lawyer who ultimately was assigned to represent defendant for trial purposes.

Counts three and four — the only ones before us on this appeal — arose on June 12, 1989, when a police officer, responding to a citizen’s complaint, observed defendant throwing a .38 caliber, semiautomatic handgun to the ground. Following both arrests, defendant admitted ownership of the guns.

At the beginning of the trial, defense counsel informed the court in defendant’s presence of the prior representation, of the steps he was taking to use his prior client in aid of defendant’s case, and of defendant’s knowledge of all the details. Defendant openly acknowledged and accepted the circumstance in answer to inquiries by the court and his lawyer.

Defendant’s claim of ineffective-conflicted assistance of counsel centers on his trial lawyer’s failure to mention his former client (the unindicted codefendant as to counts one and two) in his opening statement to the jury and his failure to "passionately” argue his summation. In order to prevail in these circumstances, defendant must establish that "the conduct of his defense was in fact affected by the operation of the conflict of interest” (People v Alicea, 61 NY2d 23, 31 [emphasis added]; see also, People v Ortiz, 76 NY2d 652). Defendant did not meet this heavy burden because "before relief will be accorded the conflict must do more than exist, it must have 'operated’ ” on the relationship (People v Recupero, 73 NY2d 877, 879).

Here, there is no question that a potential conflict existed by reason of counsel’s responsibility for defendant’s trial and his prior handling of Rhynes’ interests after his arrest. However, nothing in the record supports the claim that the potential conflict in fact "affected” or "operated on” the trial representation of appellant. Counsel’s failure to mention Rhynes in his short, focused, opening trial statement — which he was not obligated to give at all — at best raises only a question of trial strategy (see, People v Aiken, 45 NY2d 394, 400).

At trial, defense counsel called Rhynes as a witness on defendant’s behalf regarding ownership of the weapon found in his automobile. Rhynes testified that defendant had sold him the gun two or three days before the arrest and that he placed the loaded gun in the glove compartment of his car. Trial counsel’s summation specifically referred to this testimony and presented an issue as to whether defendant had sold the gun to Rhynes who had placed the gun in the glove compartment of his automobile. The summation thus identified weaknesses and inconsistencies in the People’s proof, if the jury chose to credit defendant’s evidence, which it evidently did not. Appellant points to no direct or circumstantial matters — only postmortem speculations — that defense counsel’s trial representation of defendant appeared to be less than wholehearted (cf., People v Ortiz, 76 NY2d 652, supra). Appellant’s arguments, therefore, with respect to the entirely discrete third and fourth counts of the conviction, are unavailing.

Finally, we note also that the Appellate Division misspoke in concluding that defendant was entitled to a Gomberg inquiry when the trial court was notified that defense counsel had previously represented Rhynes on the first two counts (see, People v Gomberg, 38 NY2d 307, supra). This case involves successive representations, not multiple simultaneous representation of codefendants. A Gomberg inquiry is generally not required in these circumstances (see, e.g., People v Ortiz, 76 NY2d 652, supra; People v Alicea, 61 NY2d 23, 29, supra; compare, People v Lombardo, 61 NY2d 97). In any event, in this case there was a frank, timely, on-the-record exchange concerning the precise matter, reflecting defendant’s full understanding and acceptance of his trial counsel’s role and representation.

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

Order affirmed in a memorandum.


text:
    In the Matter of Maurice Baer, Respondent, v David Lipson, by Joel Lipson, His Conservator, Appellant.
    Submitted January 10, 1994;
    decided February 17, 1994
   Judge Titone taking no part.


text:
    Richard Nickerson, Respondent, v William Worytko et al., Appellants.
    Submitted January 3, 1994;
    decided February 17, 1994
   Judge Titone taking no part.


text:
    [632 NE2d 1277, 610 NYS2d 954]
    In the Matter of Darryl King, Respondent, v New York State Division of Parole, Appellant.
    Argued January 11, 1994;
    decided February 22, 1994

      APPEARANCES OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Howard Zwickel, Kathie Ann Whipple, Jerry Boone, Charles C. Davis and Alan B. Berkowitz of counsel), for appellant.

      Beldock, Levine & Hoffman, New York City (Myron Beldock of counsel), for respondent.

      Lysaght, Lysaght & Kramer, P. G, Lake Success (John J. Maguire of counsel), amicus curiae.

      Jonathan E. Gradess and Stacy Wolf, Albany, for New York State Defenders Association, amicus curiae.

      Betti J. Sachs, New York City, for Legal Aid Society, amicus curiae.

      Joan P. Gibbs and Mahlon Perkins, New York City, for Center for Constitutional Rights, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

The issue in this case is whether petitioner was afforded a proper hearing prior to the denial of his application for release to parole supervision. His conviction, after a jury trial, stemmed from the shooting death of an off-duty police officer during a robbery at a fast food restaurant on May 25, 1970. He was sentenced to a prison term of 25 years to life. In 1987, the United States Court of Appeals for the Second Circuit determined that his sentence was constitutionally invalid because the sentencing Judge had misunderstood the date he would become eligible for parole. Thus, he was resentenced to a prison term of 20 years to life, which qualified him for release to parole supervision on May 28, 1990.

Petitioner has thrice sought release to parole supervision. In this proceeding, he challenges the Board’s determination denying his most recent request for parole. Supreme Court directed the Parole Board to release him to parole supervision. The Appellate Division reversed the portion of the order requiring his release and remanded the matter for a de nova hearing (190 AD2d 423). We affirm.

Executive Law article 12-B (§ 259 et seq.) contains the procedures governing parole. Section 259-i (2) (c) provides, in part, that discretionary release to parole supervision is not to be granted to an inmate merely as a reward for good behavior while in prison, but after considering whether "there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law.” That paragraph requires that the Parole Board consider certain guidelines, including the inmate’s institutional record, participation in a temporary release program, and release plans. In addition, where, as here, a court and not the Board of Parole has set the minimum period of imprisonment, the Parole Board must also consider the seriousness of the offense and the inmate’s prior criminal record (see, Executive Law § 259-i [1] [a]; [2] [c]).

While a Parole Board need not expressly discuss each of these guidelines in its determination (see, Matter of Davis v New York State Div. of Parole, 114 AD2d 412; People ex rel. Haderxhanji v New York State Bd. of Parole, 97 AD2d 368, 369), it must provide the inmate with a proper hearing in which only the relevant guidelines are considered (see, People ex rel. Herbert v New York State Bd. of Parole, 97 AD2d 128, 132). As the record before us indicates, that was not done here.

There is evidence in the record that petitioner was not afforded a proper hearing because one of the Commissioners considered factors outside the scope of the applicable statute, including penal philosophy, the historical treatment of individuals convicted of murder, the death penalty, life imprisonment without parole, and the consequences to society if those sentences are not in place. Consideration of such factors is not authorized by Executive Law § 259-i.

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

Order affirmed, with costs, in a memorandum.


text:
    [632 NE2d 1279, 610 NYS2d 956]
    The People of the State of New York, Appellant, v Alexander Brown, Respondent.
    Argued January 11, 1994;
    decided February 22, 1994

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Jeffrey A. Hoerter and Peter D. Coddington of counsel), for appellant.

      Richard L. Herzfeld, New York City, for respondent.

   OPINION OF THE COURT

Memorandum.

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

There was evidence at trial that defendant, Alexander Brown, and an accomplice, at about 5:00 a.m. on June 16, 1988, exited a dark-colored Chevrolet in the area of 180th Street in the Bronx and snatched a gold chain from Uzell McFarland’s neck. When McFarland attempted to pursue, defendant Brown displayed a gun. Brown and his accomplice returned to their car, in which there were two other occupants, and fled the scene. McFarland and Hall then chased the Chevrolet in their vehicle. During the chase, McFarland broke the rear window of the Chevrolet with a baseball bat and defendant fired two shots in response.

At this time, uniformed Police Officers Bonafacio and Neidhardt joined the chase until defendant’s vehicle crashed into a parked vehicle. While Officer Bonafacio and McFarland chased the two fleeing occupants of the now disabled Chevrolet, Officer Neidhardt approached the Chevrolet with his gun drawn and ordered defendant Brown and his accomplice out of the car. A gunfight followed, during which defendant Brown gained control of the patrol car and drove off.

Housing Police Officers Plunkett and Peaco also heard the report that a police car had been stolen and they, too, responded. The previously mentioned events were taking place in the area of 180th to 184th Streets in the Bronx. Officers Plunkett and Peaco, attempting to get to the crime scene, collided with an ambulance at 149th Street. Officer Peaco died from the injuries sustained in the collision with the ambulance.

Defendant was caught and indicted on eight counts of attempted murder in the first degree, eight counts of attempted aggravated assault upon a police officer, three counts of criminal possession of a weapon in the second degree, two counts of attempted murder in the second degree, two counts of murder in the second degree, two counts of robbery in the first degree, two counts of assault in the first degree, robbery in the second degree, and reckless endangerment in the first degree.

Before trial, defendant moved to dismiss the felony murder and first degree assault counts of the indictment, claiming that the evidence before the Grand Jury was insufficient to establish a prima facie case. After hearing extensive argument, the trial court denied the motion. After a jury trial, defendant was acquitted of the felony murder and first degree assault counts arising from the accident, but convicted of robbery in the first degree and attempted murder in the first degree.

The Appellate Division reversed the conviction on the law and ordered a new trial. It held that the trial court erred in denying defendant’s pretrial motion to dismiss the counts charging defendant with felony murder, and though he was acquitted on those counts, the introduction of evidence as it related to felony murder prejudiced the jury’s consideration of the counts on which he was convicted.

Defendant argues that the introduction of testimony regarding the felony murder count so prejudiced the jury as to have deprived him of a fair trial on these separate and unrelated charges. We conclude that the Appellate Division erred in this respect when it ruled as a matter of law that prejudice nullified an independent, validly secured robbery and attempted murder conviction. Nor can we agree that the trial court erred as a matter of law in admitting defendant’s postarrest statements.

Finally, because defendant was acquitted of felony murder, we need not reach the issue of foreseeability and causation as it relates to those counts.

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

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


text:
    B. F. & W. Realty Co. et al., Respondents, v Henry Moskowitz et al., Appellants, et al., Defendants. (And Three Other Actions.)
    Submitted January 10, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Brooklyn Welding Corporation, Appellant, v City of New York et al., Respondents, et al., Defendant. Brooklyn Welding Corporation, Appellant, v City of New York et al., Defendants, and Tishman Construction Company, as Agent for the City of New York, Respondent.
    Submitted February 7,1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of Cake Stylists, Inc., Respondent, v Town and Country Plumbing & Heating Co., Inc., Appellant.
    Submitted January 18, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Citibank, N.A., Respondent, v Souto Geffen Company et al., Respondents, and 144 Bleecker Street Associates et al., Appellants. 144 Bleecker Street Associates et al., Appellants, v Souto Geffen Company et al., Respondents.
    Submitted January 10, 1994;
    decided February 22, 1994
   Judges Titone and Smith taking no part.


text:
    In the Matter of Tremayne D’Anjou, an Infant, by His Mother and Natural Guardian, Irma D’Anjou, Appellant, v New York City Health and Hospitals Corporation, Respondent.
    Submitted January 10, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Joseph DiIorio, Appellant, v Gibson & Cushman of New York, Inc., Defendant, and Gibson & Cushman Dredging Corporation, Respondent.
    Submitted December 13, 1993;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Tiffany Dotterman, an Infant, by Her Mother and Natural Guardian, Carol A. Dotterman, et al., Appellants, v Royal Kent Condominium et al., Respondents.
    Submitted December 27, 1993;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    James LeGrand et al., Appellants, v State of New York, Respondent.
    Submitted February 7, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Adolfina Montes et al., Appellants, v Manufacturers Hanover Trust Company, Respondent and Third-Party Plaintiff. John J. Montes, Respondent and Third-Party Defendant.
    Submitted January 10, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of the Application for Dissolution of Penepent Corporation, Inc. Richard S. Penepent, Appellant; Philip A. Penepent, Respondent. (And 18 Other Proceedings.)
    (Appeal No. 1.)

      Submitted February 7, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Ken J. Pezrow Corp., Appellant, v Roger M. Seifert et al., Respondents.
    Submitted January 3, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of Robert T. Rowe, a Disbarred Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted January 10, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Robert L. Schulz et al., Appellants, v State of New York et al., Respondents.
    Submitted February 14, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    Alfred Spremo, Jr., Appellant, v Michael Dikman et al., Respondents.
    Submitted January 31, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of the Estate of Samuel W. Steel, Deceased. John A. Steel, Appellant; M. Robert Steel et al., Respondents.
    Submitted January 3, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of Jaime Valle, Appellant, v Ruth E. Moskowitz, as a Justice of the Supreme Court, et al., Respondents.
    Submitted January 18, 1994;
    decided February 22, 1994
   Judge Titone taking no part.


text:
    In the Matter of Leon O. Woods, Appellant, v Thomas A. Coughlin, III, as Commissioner of Correctional Services of the State of New York, et al., Respondents.
    Submitted January 3, 1994;
    decided February 22, 1994
   Judges Titone and Levine taking no part.


text:
    [634 NE2d 597, 612 NYS2d 102]
    In the Matter of the Claim of Helen Abellon, Appellant, v Nyack Hospital et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued February 15, 1994;
    decided March 17, 1994

      APPEARANCES OF COUNSEL

      Freedman, Wagner, Tabakman, Weiss & Insler, New City (David MacRae Wagner of counsel), for appellant.

      Raymond C. Green, New York City, and Patricia McMahon for Nyack Hospital and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Norman L. Harvey at the Appellate Division (190 AD2d 128).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Taking no part: Judge Titone.


text:
    [633 NE2d 1092, 611 NYS2d 488]
    The People of the State of New York, Appellant, v Speakerkits, Inc., Respondent. The People of the State of New York, Appellant, v Anthony L. Delprete, Respondent.
    Argued February 8, 1994;
    decided March 17, 1994

      APPEARANCES OF COUNSEL

      Alfred P. Lucia, Jr., Village Prosecutor of Village of Belle-rose, Hempstead, for appellant.

      O’Connor & Bergmann, New York City (John V. O’Connor of counsel), for respondents.

      Donna M. C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Term should be affirmed.

Defendants Delprete and Speakerkits, nonresidents of the Village of Bellerose, are alleged to have parked their vehicles within unmetered areas of the village’s "residential area” on 47 and 76 different occasions respectively. On each of those occasions defendants were issued summonses charging them with violation of section 204-19 (B) of the Bellerose Village Code, which provides, in part, that "no vehicle shall be parked in the residential area * * * unless such vehicles shall bear a permit issued by the Village Clerk * * *, known as the 'resident parking permit’ The village Justice Court denied defendants’ motions to dismiss the informations and convicted them, upon guilty pleas, of violating 47 and 76 counts of section 204-19 (B), and imposed sentences of fines in the amounts of $1,410 and $2,280. The Appellate Term reversed, granted defendants’ motions to dismiss the informations, and remitted the fines to the extent paid. We now affirm.

In New York State Pub. Empls. Fedn. v City of Albany (72 NY2d 96), this Court struck down an ordinance that permitted residents of certain Albany areas to park on public streets in their neighborhoods for unlimited time periods while restricting nonresidents to 90 minutes. We concluded that, notwithstanding the general delegation of power to localities allowing them to regulate the highways within their boundaries under article IX, § 2 (c) (ii) (6) of the New York Constitution, Municipal Home Rule Law § 10, and Vehicle and Traffic Law § 1604, the Legislature "retains ultimate control over the highways,” including the "power to restrict localities and ensure uniform highway regulation throughout the State” (id., at 100-101). Indeed, we noted that the Legislature, in sections 1600 and 1604 of the Vehicle and Traffic Law, prohibited localities from excluding persons from the free use of the public highways except to the extent expressly authorized by statute (id., at 101).

Initially, the People’s contention that section 204-19 (B) is not discriminatory must be rejected. The ban on nonresident parking on public streets in the Bellerose residential district is even more restrictive than the ordinance we found patently discriminatory in City of Albany (supra).

The People argue that the challenged section of the Belle-rose Code constitutes a valid exercise of police power in that it provides the village with a valid ground for questioning the presence of suspicious vehicles parked on its streets. Without considering the validity of the asserted purpose underlying enactment of section 204-19 (B), we note that a municipality may not exercise its police power in a manner inconsistent with the Constitution or any general law of the State (see, Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91, 96 ["although the constitutional home rule provision confers broad police powers upon local governments relating to the welfare of its citizens, local governments may not exercise their police power by adopting a law inconsistent with the Constitution or any general law of the State”]).

Bellerose Code § 204-19 (B) conflicts with Vehicle and Traffic Law § 1604, which prohibits localities from excluding persons from the free use of the highways, and with the common-law rule that the "right to use of the highways is said to rest with the whole people of the State, not with the adjacent proprietors or the inhabitants of the surrounding municipality” (City of Albany, 72 NY2d, at 101; see, People v Grant, 306 NY 258, 262). Accordingly, section 204-19 (B) does not constitute a valid exercise of the village’s police power and must be struck down as ultra vires and void.

Finally, because adoption of a local law imposing residency-based restrictions on the use of public streets is prohibited, we must also reject the contention that the challenged ordinance is a valid exercise of the village’s supersession authority contained in Municipal Home Rule Law § 10 (1) (ii) (e) (3). A village can amend or supersede a provision of the Village Law only to the extent to which it is authorized to adopt local laws under section 10 of the Municipal Home Rule Law (see, Kamhi v Town of Yorktown, 74 NY2d 423, 432).

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

In each case: Order affirmed in a memorandum.


text:
    [633 NE2d 1094, 611 NYS2d 490]
    The People of the State of New York, Respondent, v Victor Garcia, Appellant.
    Decided March 22, 1994

      APPEARANCES OF COUNSEL

      Adrienne M. Gantt, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Alan S. Rafterman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Garcia and two others were arrested in a buy- and-bust operation in the Bronx. Defendant was charged with criminal sale of a controlled substance in the third degree.

At trial, a detective who had participated in the operation testified concerning the circumstances surrounding the arrest. Over defendant’s objection, the detective was permitted to testify as an expert regarding drug transactions at the street level. His expert testimony was limited to the definitions of the terms "hawker” (the person who advertises the drug being sold), "money man” (the person who holds the money), and "hand-to-hand” (the person who passes the drugs to the customer).

The jury convicted defendant, and the Appellate Division, First Department, affirmed the judgment, with two Justices dissenting (196 AD2d 433), one of whom granted defendant leave to appeal to this Court.

When the prosecution sought to qualify its expert on the organization of narcotics trafficking operations, defendant objected on the ground that such testimony would prejudice because it would mislead the jury into believing that defendant was involved in some narcotics organization, when only a single sale was at issue. That objection does not preserve defendant’s current claims that the expert testimony was inadmissible because it was unnecessary and that it improperly bolstered the testimony of the prosecution’s witnesses, including the expert who was also an eyewitness. We therefore may not address these claims.

We are satisfied on this record and in this context that there is no merit to the preserved claim that the detective’s expert testimony implied defendant’s involvement in extensive drug trafficking, especially since the trial court limited the testimony to the definitions of the terms "hawker”, "hand-to-hand” and "money man”.

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

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


text:
    [633 NE2d 1095, 611 NYS2d 491]
    In the Matter of Century Tower Associates, Appellant, v State of New York Division of Housing and Community Renewal et al., Respondents, and Century Tenant’s Association et al., Intervenors-Respondents.
    Argued February 17, 1994;
    decided March 22, 1994

      APPEARANCES OF COUNSEL

      Stroock, Stroock & Lavan, New York City (Kevin L. Smith, Charles G. Moerdler, Mark S. Cheffo and Gretchen P. Mullins of counsel), for appellant.

      Daniel E. Konig, Bronx, Geoffrey T. Hoderath and Dennis J. Saffran for respondents.

      Francine S. Pickett, Bronx, and Lorraine Coyle for intervenors-respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner owns a high-rise apartment building in Riverdale, New York, which is subject to the Rent Stabilization Law (RSL), as well as an adjacent parking garage. In 1981, a tenant filed a complaint with the New York City Conciliation and Appeals Board (CAB) — respondent State Division of Housing and Community Renewal’s (DHCR) predecessor — alleging he was being overcharged for his garage parking space by Netherland Operating Corp., the operator of the garage under contract with petitioner. In 1983 the CAB, and in 1985 after a de nova hearing the DHCR, determined that the garage was subject to the RSL and that petitioner was responsible for the overcharges, established what the lawful charges would have been, ordered a refund for the complainant tenant, and ruled that its determination applied to "all tenants similarly situated”. In a CPLR article 78 proceeding challenging the agency’s determination, the Appellate Division fully upheld DHCR’s position, and further held that because this garage service was a building-wide service the determination applied to all tenants of the building using such service (Matter of Netherland Operating Corp. v Eimicke, 135 AD2d 352, lv denied 71 NY2d 802).

DHCR thereafter conducted extensive compliance proceedings which resulted in the issuance of compliance orders concerning "similarly situated” tenants who rented garage spaces as of the original 1983 CAB order, established lawful charges, directed refunds of overcharges and imposed treble damages for overcharges collected after April 1, 1984, the delayed effective date of the Omnibus Housing Act of 1983 (L 1983, ch 403) which revised the Rent Stabilization Law. After pursuing unsuccessful administrative review, petitioner instituted the instant article 78 proceeding; Supreme Court dismissed the petition, agreeing with DHCR that the pre-April 1, 1984 RSL applied to the claims of the similarly situated tenants and allowed recovery of all overcharges. The Appellate Division affirmed (189 AD2d 567). We granted leave to petitioner, and now affirm.

Petitioner contends that the amended RSL, which provides, inter alla, for a four-year Statute of Limitations on overcharge complaints (see, Administrative Code of City of NY § 26-516 [a] [2]; [g]), should be applied to and limit the overcharge claims of the similarly situated tenants because they did not file individual complaints in 1981 (or prior to Apr. 1, 1984), and, at the earliest, filed them in 1988 when they responded to questionnaires sent as part of the instant compliance proceedings. We agree with Supreme Court’s reasoning, that the "within compliance proceedings are not separate but rather are the culmination of the long circuitous litigation directly traceable to and interconnected with the original 1981 complaint”. Thus, DHCR rationally concluded that the imposition of overcharge orders for similarly situated tenants in these compliance proceedings relates back to the original 1981 complaint.

Moreover, petitioner, having represented to its tenants as far back as 1983 that they should continue to pay the rentals "without prejudice to their rights [to a credit of any overcharge]”, is estopped from challenging the similarly situated tenants’ failure to file individual claims. Consequently, their overcharge claims were reasonably deemed filed before April 1, 1984, and although resolved thereafter, DHCR correctly applied the law in effect at the time of the filing, i.e., Code of the Rent Stabilization Association of New York City, Inc. § 42 (A) (now codified at 9 NYCRR parts 2520-2530) (see, Matter of Lavanant v State Div. of Hous. & Community Renewal, 148 AD2d 185; see also, Rent Stabilization Code [9 NYCRR] § 2526.1 [a] [4] [eff May 1, 1987]; Omnibus Housing Act § 20; contra, Matter of J.R.D. Mgt. Corp. v Eimicke, 148 AD2d 610).

Petitioner’s claim that DHCR’s imposition of treble damages was improper is also rejected. The Omnibus Housing Act of 1983 provides for treble damages for overcharges collected after the Act’s effective date (Apr. 1, 1984) unless the owner establishes that the overcharges were not willful (see, Administrative Code § 26-516 [a]). That section permits imposition of treble damages to pending overcharge cases where overcharges are willfully collected after the effective date. There being record support and a rational basis for DHCR’s finding that petitioner failed to establish the nonwillfulness of the overcharges, the imposition of treble damages will be upheld.

Finally, petitioner is incorrect in claiming entitlement— in the calculation of lawful garage charges — to be credited with the 2.2% annual rental increase (above guideline increases) afforded to owners of buildings benefited by RPTL 421-a tax abatements to compensate for the annual diminution in tax benefits. DHCR’s interpretation of the regulation which authorizes the 2.2% increase as inapplicable to rental charges on garage spaces (where the garage does not receive the tax abatement) is rational and will not be disturbed (see, Matter of Salvati v Eimicke, 72 NY2d 784, 791).

We have examined petitioner’s remaining contentions and find them also to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Philip Barasch, Respondent, v Teachers’ Retirement Board of the Teachers’ Retirement System of the City of New York et al., Appellants.
    Submitted January 24, 1994;
    decided March 22, 1994
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Joseph Benesch, Appellant, v Village of Clayton, Respondent.
    Submitted February 22, 1994;
    decided March 22, 1994
   Motion for reargument dismissed as untimely. [See, 81 NY2d 702.] Cross motion for the imposition of sanctions against petitioner denied.


text:
    Audrey Jabri, Respondent, v Tarek F. Jabri, Appellant.
    Submitted March 7, 1994;
    decided March 22, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the appeal was taken untimely (see, CPLR 5513 [a]).


text:
    In the Matter of Dean Loren, Appellant, v Diane B. Marry, Respondent.
    Submitted February 7, 1994;
    decided March 22, 1994
   Judge Levine taking no part.


text:
    Greg Seinfeld, Appellant, and Joshua Chopp, Intervenor-Appellant, v Elizabeth E. Bailey et al., Respondents.
    Submitted February 7, 1994;
    decided March 22, 1994
   Judges Simons and Smith taking no part.


text:
    YMCA of Greater New York, Respondent, v Betty Giles, Appellant.
    Submitted January 24, 1994;
    decided March 22, 1994
   Motion by petitioner to dismiss the appeal granted and the appeal dismissed upon the ground that it does not lie as of right (NY Const, art VI, §3 [b]; CPLR 5601). Motion by respondent tenant for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order entered in an action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    [633 NE2d 1098, 611 NYS2d 494]
    Sutton Area Community, Inc., et al., Respondents, v City of New York et al., Appellants, and Harley Baldwin Associates, Inc., et al., Respondents. Bridgemarket Company, Ltd., Intervenor-Respondent; Bank of New York, Intervenor-Appellant.
    Decided March 24, 1994

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (John Hogrogian of counsel), for appellants.

      McDermott, Will & Emery, New York City (Robert A. Weiner of counsel), for intervenor-appellant.

      Berle, Kass & Case, New York City (Stephen L. Kass of counsel), for Sutton Area Community, Inc., and others, respondents.

      Shea & Gould, New York City (Arthur D. Felsenfeld of counsel), for Harley Baldwin Associates, Inc., and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying plaintiffs’ motion for summary judgment as to their first cause of action, granting defendants’ cross motion for summary judgment with respect to plaintiffs’ first cause of action, and declaring the lease valid. As so modified, the order should be affirmed. The certified question is answered in the affirmative with respect to those portions of the Appellate Division order affirming the Supreme Court orders entered on August 3, 1988 and July 31, 1992; the certified question is otherwise not answered as unnecessary.

This case arises from the "Bridgemarket Project”, a planned complex of food stores and restaurants to be constructed on land owned by the City of New York beneath the Queensborough Bridge. Defendants Harley Baldwin Associates (HBA) and New York City Public Development Corporation (PDC) submitted an application to the New York City Department of Planning to lease and develop the land in 1977. In December 1977, the Board of Estimate (BOE) adopted a resolution approving the lease pursuant to New York City Charter §§ 197-c and 384. However, no lease was executed pursuant to the BOE’s 1977 resolution and the project remained dormant for several years.

In 1982, the BOE rescinded its 1977 resolution, held a public hearing with regard to leasing the subject property to HBA and PDC on "altered rental or other business terms”, and adopted a new resolution approving a lease to HBA and PDC on such altered business terms. Pursuant to the BOE’s 1982 resolution, the City executed a lease with PDC on August 10, 1983. PDC assigned the lease to HBA and HBA assigned the lease to defendant Bridgemarket Associates, but, once again, no construction ensued.

In 1987, the City and Bridgemarket Associates executed a new direct lease denominated an "Amended and Restated Lease” (1987 lease). Unlike the project leases previously approved, the 1987 lease included an additional 50,000 square feet of below grade commercial space. The issue is whether this modification required reapproval by the BOE pursuant to New York City Charter § 384.

In Margulis v Lindsay (31 NY2d 167), we held that BOE reapproval is only required where a postapproval modification changes the essence of what had previously been approved. Analysis must necessarily begin with a determination of what in essence the BOE approved pursuant to the particular statute at issue. Here, pursuant to New York City Charter § 384, the BOE’s approval in 1982 was limited to the business terms of the lease. Plaintiffs have not shown what impact the disputed changes would have on the business terms previously approved by the BOE. Thus, the disputed postapproval modifications in the project, viewed in light of the business terms approved by the BOE in 1982, cannot be said to be essential as a matter of law.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed. Certified question answered in the affirmative with respect to that part of the Appellate Division order which affirmed the Supreme Court orders entered on August 3, 1988 and July 31, 1992, and otherwise not answered as unnecessary.


text:
    [633 NE2d 1099, 611 NYS2d 495]
    In the Matter of Gianfranco Donati, Respondent, v Gail S. Shaffer, as Secretary of State of the State of New York, Appellant.
    Decided March 24, 1994

      APPEARANCES OF COUNSEL

      G. Oliver Koppell, Attorney-General, New York City (Vincent Leong and Jerry Boone of counsel), for appellant.

      Peter M. Redmond, Bayside, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, insofar as appealed from, with costs, and the determination of the Secretary of State ordering interest to be paid as part of the restitution award should be reinstated.

This Court granted leave to the Secretary of State to decide whether that officer has the authority to order payment of interest on restitution (Real Property Law § 441-c).

In Matter of Gold v Lomenzo (29 NY2d 468) we held the Secretary of State has "inherent” authority to impose conditions on the reinstatement of a broker’s license — including the payment of restitution (id., at 479). Thereafter, we upheld a penalty imposed by the Secretary of State that required a realtor to return the "ill-gotten profit” from the sale of property, against a challenge that the penalty was unduly harsh (see, Kostika v Cuomo, 41 NY2d 673, 677). Concluding that "the secretary must be accorded broad discretion in imposing penalties” to safeguard the public interest and discourage improper practices, we held that the penalty imposed — the return of profit on the sale transaction — most effectively accomplished these goals (id.).

Petitioner’s contention that, absent statutory authorization or a contractual agreement, the Secretary is without authority to require interest payments fails in light of this Court’s holdings in Matter of Gold v Lomenzo (29 NY2d 468, supra) and Kostika v Cuomo (41 NY2d 673, supra). Interest on wrongfully obtained commissions is not an award separate from restitution but, rather, represents the present economic value of the restitution itself. The imposition of a condition precedent to reinstatement of a suspended broker’s license of restitution plus interest removes the incentive to obtain commissions by deceitful practices (Kostika v Cuomo, supra, at 677). Moreover the Secretary of State’s determination in this respect, the only aspect before us, does not shock the judicial conscience (see, Matter of Pell v Board of Educ., 34 NY2d 222).

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

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


text:
    Federal Insurance Company et al., Respondents, v Ryder Truck Rental, Inc., et al., Appellants-Respondents, and Aetna Casualty & Surety Company et al., Respondents-Appellants. Superintendent of Insurance of the State of New York, as Liquidator of Midland Insurance Company, Respondent.
    Submitted March 7, 1994;
    decided March 24, 1994
   Judge Smith taking no part.


text:
    In the Matter of Rufus Harrison, Appellant, v Anthony Alago, as Medical Examiner for Kings County, Respondent.
    Submitted February 14, 1994;
    decided March 24, 1994
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right (see, CPLR 5601). Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    [633 NE2d 1100, 611 NYS2d 496]
    The People of the State of New York, Respondent, v David Johnson, Appellant.
    Decided March 29, 1994

      APPEARANCES OF COUNSEL

      James J. O’Rourke, Elmont, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly concluded that Supreme Court erred in suppressing the contraband on the basis of the record before it. Although defendant testified during the hearing that he never had his hands on the contraband before the arrest and that the police had planted the contraband on him after returning to his location from the apartment’s living room, defense counsel never explained how these factual claims affected the legality of the officers’ search of the apartment under the Fourth Amendment. At best, defense counsel’s hearing argument was that these facts somehow demonstrated a lack of probable cause for defendant’s post-search arrest.

The Appellate Division was also correct when it held that the trial court should not have decided the ultimate issue in the case — whether defendant was actually in possession of the contraband. The issue before the court in the Mapp hearing was limited to whether the evidence was obtained in violation of defendant’s constitutional rights, not whether the contraband found in the apartment belonged to someone other than defendant.

Finally, with respect to whether the police’s entry into defendant’s apartment was proper, the only relevant issue raised by defendant at the suppression hearing, the record supports the Appellate Division’s conclusion that the detectives properly entered defendant’s apartment in pursuit of a suspect in a shooting, who was known to them by sight (see, People v Burr, 70 NY2d 354, 360-361, cert denied 485 US 989). The additional finding made by the Appellate Division — that the police were justified in conducting a security sweep of the apartment (see, Maryland v Buie, 494 US 325) — is beyond our power to review, since the question was neither raised at the hearing by defense counsel nor decided by the hearing court upon appropriate protest (see, CPL 470.05 [2]).

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

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


text:
    [633 NE2d 1102, 611 NYS2d 498]
    In the Matter of Leon H., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Decided March 29, 1994

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Jane S. Earle of counsel), for appellant.

      Patricia S. Constantikes, New York City, and Lenore Gittis for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.

In the instant case, the presentment agency appeals by leave of this Court from an order of the Appellate Division affirming Family Court’s dismissal of a juvenile delinquency petition charging respondent with conduct constituting various criminal offenses, including, inter alla, assault and criminal possession of a weapon. The dismissal was granted after the fact-finding hearing was concluded by respondent’s admission to acts constituting criminal possession of a weapon in the fourth degree. Family Court dismissed the petition on the ground that delays in holding the dispositional hearing in this proceeding violated the time constraints of Family Court Act § 350.1 and that no showing of special circumstances had been made to excuse the delay (see, Family Ct Act § 350.1 [5]). The Appellate Division affirmed (196 AD2d 539).

There should be a reversal and remittal to the Appellate Division with directions to dismiss the appeal. In contrast to Matter of Jose R. (83 NY2d 388 [decided herewith]), it was Family Court that in the first instance dismissed the petition for noncompliance with Family Court Act § 350.1 following the fact-finding hearing. Family Court Act §§ 365.1 and 365.2 were intended to supersede the general appeals provisions of the Family Court Act (art 11) and, by implication, exclusively govern appeals to the Appellate Division in juvenile delinquency proceedings (see, Sobie, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act §§ 365.1, 365.2, at 584, 586). Only a respondent is permitted to appeal by permission to the Appellate Division (Family Ct Act § 365.2).

An order dismissing the petition, as was granted by Family Court in the instant case, is only appealable by a presentment agency to the Appellate Division as of right if the dismissal was made before the commencement of the fact-finding hearing (Family Ct Act § 365.1 [2] [a]). Contrary to the presentment agency’s contention here, the order of dismissal, although finally determining this proceeding, was not an order of disposition within the meaning of Family Court Act article 3 (see, Family Ct Act § 352.2), and thus was not appealable pursuant to Family Court Act § 365.1 (2) (b).

It follows from the foregoing analysis that the Appellate Division lacked jurisdiction to entertain the presentment agency’s appeal from Family Court’s dismissal of the petition. Accordingly, the Appellate Division’s order of affirmance should be reversed and the matter remitted to that Court with directions to dismiss the appeal.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Carven Associates, Also Known as Carvan Associates, et al., Respondents, v American Home Assurance Corp. et al., Third-Party Plaintiff-Appellant, et al., Third-Party Defendants. Delro Industries, Inc., et al., Third-Party Defendants-Appellants.
    Submitted March 21, 1994;
    decided March 29, 1994
   Appeal by American Pecco Corporation dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division did not grant that party leave to appeal to the Court of Appeals.


text:
    In the Matter of Emory CC. et al., Children Alleged to be Neglected. David Clovsky, as Commissioner of the Chemung County Department of Social Services, et al., Respondents; George R. Wiltsie, as Law Guardian, Appellant.
    Submitted February 7, 1994;
    decided March 29, 1994
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see, CPLR 5511).


text:
    In the Matter of John W. Matthews, as Commissioner of Elections of Nassau County for the Democratic Party, et al., Appellants, v Thomas S. Gulotta, as County Executive of the County of Nassau, et al., Respondents.
    Submitted March 21, 1994;
    decided March 29, 1994
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York, Respondent, v Gene J. Walentynowicz, Appellant.
    Submitted February 22,1994;
    decided March 29,1994
   Motion for relief related to defendant’s criminal leave application dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it.


text:
    [634 NE2d 601, 612 NYS2d 105]
    In the Matter of Kinley W. Bowers, Jr.
    Decided March 30, 1994
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Kinley W. Bowers, Jr., is suspended, without pay, effective immediately, from his office of Justice of the Philadelphia Town Court and Acting Justice of the Philadelphia Village Court, Jefferson County, pursuant to NY Constitution, article VI, § 22 (í), (g) and Judiciary Law § 44 (8) (b), (c).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine. Taking no part: Judge Ciparick.


text:
    [633 NE2d 1103, 611 NYS2d 499]
    The People of the State of New York, Respondent, v Patricia Cameron, Appellant.
    Argued February 10, 1994;
    decided March 30, 1994

      APPEARANCES OF COUNSEL

      David B. Affler, New York City, and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Cheryl Hone and Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted for criminal possession of a controlled substance in the first degree and criminal possession of marihuana in the second degree, arising out of inspection of her carry-on baggage by a United States customs agent upon her arrival at Kennedy Airport after a flight from Jamaica. The inspection yielded 14 ounces of cocaine and over two pounds of marihuana.

With the approval of the court, defendant entered an Alford plea (North Carolina v Alford, 400 US 25) to attempted criminal possession of a controlled substance in the first degree (a class A-I felony) in full satisfaction of all counts, in exchange for a promise that the People would recommend a sentence of a term of four years to life imprisonment. The plea was entered into by both the defense and prosecution on the erroneous assumption that the crime pleaded to was a class A-II felony.

Over objections by the People, Supreme Court imposed a sentence of lifetime probation on the grounds that defendant had offered to assist the authorities in investigations of drug offenses (see, Penal Law § 65.00 [1] [b]) and that the agreed upon sentence of imprisonment constituted cruel and unusual punishment (see, US Const 8th Amend; NY Const, art I, § 5).

On appeal to the Appellate Division, that Court reversed the sentence and remitted the case to Supreme Court for resentencing or, at the election of either the defendant or the People, a withdrawal of defendant’s guilty plea (193 AD2d 752). The Court noted that, since defendant pleaded guilty to a class A-I felony (see, Penal Law § 110.05 [1]), neither the agreed upon sentence of four years to life imprisonment, nor the sentence of lifetime probation actually imposed, was a legal sentence (see, Penal Law § 70.00 [3] [a] [i]; § 65.00 [1] [b]). A Judge of this Court granted leave to appeal.

There should be an affirmance. Because neither the sentence pursuant to the plea agreement nor the sentence actually imposed was authorized by law for the crime of which defendant was convicted, the Appellate Division properly ruled that the sentence must be reversed and the case remitted for resentencing with the opportunity for both parties to withdraw from the plea agreement (see, People v Farrar, 52 NY2d 302, 307-308). We note that, because of the procedural posture and narrow dispositional basis of this case, no occasion is presented to pass on the substantive sentencing issues (see, People v Thompson, 83 NY2d 477 [decided today]).

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

Order affirmed in a memorandum.


author: Smith, J.

text:
    [633 NE2d 1104, 611 NYS2d 500]
    The People of the State of New York, Respondent, v Victor Ortiz, Appellant.
    Argued February 17, 1994;
    decided March 30, 1994

      APPEARANCES OF COUNSEL

      Steven J Miraglia, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant was found guilty, after a jury trial, of criminal possession of a controlled substance in the third degree and was thereafter sentenced to four and one-half to nine years’ imprisonment. A divided panel of the Appellate Division affirmed the conviction, agreeing with the suppression court that the defendant had no standing to challenge the warrantless entry into his girlfriend’s apartment, and that defendant’s motion to suppress the evidence seized by the arresting officer was properly denied.

One seeking standing to assert a violation of his Fourth Amendment rights must demonstrate a legitimate expectation of privacy. One may have an expectation of privacy in premises not one’s own, e.g., an overnight guest (Minnesota v Olson, 495 US 91) or a familial or other socially recognized relationship (People v Rodriguez, 69 NY2d 159; People v Ponder, 54 NY2d 160). However, as the undisturbed findings of the trial court demonstrate, the defendant had relatively tenuous ties to the apartment wherein he was arrested.

The trial court’s findings as affirmed by the Appellate Division that the defendant was a casual visitor to that apartment and did not have any reasonable expectation of privacy within the apartment on the date of his arrest cannot be disturbed on our review since there is evidence in the record to support the conclusion of lack of standing. Similarly, there is no basis in the record for defendant’s alternative contention that, even if he had no standing to contest the warrantless entry into his girlfriend’s apartment, the cocaine must nonetheless be suppressed.

Based on our limited review power, we have no basis to upset the conclusion below that the officers had objective, credible reasons to walk into the bedroom upon reasonable belief that they were in a drug-related apartment. They had received information about drug activity and, upon observing defendant on the bed holding a plastic bag containing a white powder which appeared to be narcotics, were justified in seizing the contraband.

Smith, J.

(dissenting). Because the police improperly entered the apartment and improperly followed defendant into a bedroom, I dissent and vote to reverse. Moreover, it is clear that defendant had standing to challenge the conduct of the police here.

Two police officers and defendant were the only witnesses at the Mapp hearing held upon defendant’s motion to suppress cocaine seized at the time of his arrest. The facts are undisputed. On April 13, 1990 the officers were in uniform on radio motor patrol in Manhattan. At about 9:10 p.m., they received a radio run that drugs were being sold in the lobby of a premises located at 505 West 134th Street. They went to the building. A woman opened an apartment door and they asked her if she saw anyone in the hallway. She pointed to the next apartment and then closed her door.

The officers went to that apartment and knocked. There was no answer. They then pushed open the apartment door. Three males who were approaching the door down a hallway then turned and walked rapidly further back into the apartment. The officers "followed them in to [sic] the corridor through the corridor to the living room area.” Two of the men went into the living room. One officer "secured the two people that were in the living room area.” The second officer followed the third person into the bedroom. There, defendant had in his hand "clear plastic bags of a powdery substance” which he threw behind a bureau onto the ledge of the windowsill. Defendant was then arrested.

Defendant testified that his girlfriend and his three-month-old daughter lived in the apartment. He visited the apartment once or twice a week. At times he stayed overnight but had not slept there in a month. He helped out with expenses for the apartment. He had no clothes there.

At the hearing the prosecution contended that the police had probable cause to enter the apartment and that exigent circumstances existed at the time of the entry. The People also contended that defendant had no standing to challenge the entry into the apartment. On this appeal the prosecution claims that defendant had no standing to contest the entry to the apartment. The People also claim that the entry into the apartment, as well as the pursuit of the defendant inside the apartment, are mixed questions of law and fact which are not reviewable by this Court. Defendant argues that he had a reasonable expectation of privacy in the apartment and that the police pursuit inside the apartment was illegal.

Clearly, the police had no probable cause to enter the apartment. Moreover, they had no reasonable suspicion to either enter the apartment or to follow the defendant through the apartment into a bedroom. They had received a radio run of drug sales in the lobby, and the fact that a person next door pointed to the apartment did not give probable cause or reasonable suspicion for the entry.

Defendant also had standing to contest both the entry into the apartment and the police action in following him into the bedroom. The undisputed facts were that defendant had more than a casual contact with the apartment since both his girlfriend and his daughter lived there. Thus he had a reasonable expectation of privacy in the apartment and a right to contest the entry. As we have previously stated:

"A familial relationship or other socially or lawfully recognized relationships, including house or apartment guests, may be significant factors along with others noted in Rakas (Rakas v Illinois, 439 US 128, 152-153 * * *), which may support a standing base for Fourth Amendment protections with respect to persons not technically owners, renters or otherwise entitled to even a temporary possession of particular premises or even rooms or sections of premises” (People v Rodriguez, 69 NY2d 159, 165; see also, Minnesota v Olson, 495 US 91, 98 ["society recognizes that a houseguest has a legitimate expectation of privacy in his host’s home”]).

Moreover, defendant had a right to contest the pursuit by the police inside his apartment. Even in a street encounter, the police have no right to follow a person who is running away unless they have reasonable suspicion that a crime is being, has been or is about to be committed (see, People v Martinez, 80 NY2d 444; People v Matienzo, 81 NY2d 778; People v May, 81 NY2d 725). Here, in an apartment where defendant was a guest, he was unlawfully "followed” into the bedroom.

Accordingly, I dissent.

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

Order affirmed in a memorandum.


text:
    Gerald Syndicate, Inc., Respondent, v Negev Home Made Foods, Inc., et al., Appellants.
    Submitted March 7, 1994;
    decided March 30, 1994
   Motion by defendant Gross for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action as to said defendant; motion by the other defendants for leave to appeal denied.


text:
    Manufacturers and Traders Trust Company, Respondent, v Niagara Square Associates et al., Appellants.
    Submitted February 14, 1994;
    decided March 30,1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied, with $100 costs and necessary reproduction disbursements; motion for leave to appeal otherwise dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the remainder of the motion.


text:
    In the Matter of Martin J. Sawma, Appellant, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted March 7, 1994;
    decided March 30, 1994
   Motion for reconsideration of this Court’s December 20, 1993 order of dismissal denied. [See, 82 NY2d 882.] Motion for poor person relief dismissed as academic. Motion for a stay dismissed upon the ground that it does not lie (see, CPLR 5519).


text:
    Barbara L. Sogg, Appellant-Respondent, v American Airlines, Inc., et al., Respondents-Appellants.
    Submitted November 15, 1993;
    decided March 30, 1994
   Motion for leave to appeal by plaintiff dismissed upon the ground that plaintiff, having stipulated to a reduction in the amount of damages to which she is entitled, is not a party aggrieved (see, Gilroy v American Broadcasting Co., 43 NY2d 825; Dudley v Perkins, 235 NY 448, 457).


text:
    In the Matter of Violet Terio, Respondent, v Title Insurance Company of Minnesota, Respondent, and Vincent Terio, Appellant.
    Submitted March 21, 1994;
    decided March 30, 1994
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    [634 NE2d 198, 611 NYS2d 826]
    The People of the State of New York, Respondent, v Allied Sanitation, Inc., Appellant.
    Argued March 15, 1994;
    decided April 28, 1994

      APPEARANCES OF COUNSEL

      Snyder & Snyder, White Plains (David L. Snyder of counsel), for appellant.

      Paul A. Crotty, Corporation Counsel of New York City (Fay Ng and Pamela Seider Dolgow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, defendant’s motion to dismiss granted and the information dismissed.

Defendant refuse container company, whose employee placed a dumpster on an asphalt roadway without first laying protective planking, cannot be charged with a violation of former section 19-122 of the Administrative Code of the City of New York as that penal statute, which is ambiguous at best, applies on its face to "builders,” not to equipment "owners” such as defendant (see, Administrative Code § 19-122 M [3]).

We conclude that the "Restrictions” listed in subdivision (d) of the former statute, including the planking requirement (see, Administrative Code § 19-122 [d] [2]), relate to the permits issued to builders under subdivision (a). This conclusion is buttressed by the fact that subdivision (d) (2) additionally requires that every permit contain a notice that protective planking is required. Were this provision not limited in application to "builders,” the broad statutory language would subject to criminal penalties "any person” who places any "equipment” in the street without protective planking. Such a far-reaching result could not have been the intent of the City Council.

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

Order reversed, etc.

       Effective January 27, 1994, the New York City Council has amended the Administrative Code to impose liability upon owners of commercial refuse containers for failure to protect the street with planking or other protective covering (see, Local Laws, 1993, No. 104; Administrative Code § 19-123 [1993]).


text:
    [634 NE2d 199, 611 NYS2d 827]
    The People of the State of New York, Respondent, v Clifford Curdgel, Appellant.
    Argued March 23, 1994;
    decided April 28, 1994

      APPEARANCES OF COUNSEL

      Roemer & Featherstonhaugh, P. C., Albany (Matthew J. Kelly of counsel), for appellant.

      Sol Greenberg, District Attorney of Albany County, Albany (Risa L. Viglucci of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On April 16, 1987, a fire, intentionally set, swept through an Albany residence and killed four people in their sleep. Following his arrest for unrelated crimes, defendant told the prosecutor that he had been involved in setting the fire and was willing to cooperate in its investigation. His counsel arranged for him to provide the authorities with written and oral accounts of the crime. Counsel was also present when defendant signed a waiver of immunity from prosecution and relinquished "any * * * privilege against the use against me of any * * * testimony or evidence” in any "inquiry, proceeding, or trial.” In exchange for a sentence promise of IV2 to 3 years’ imprisonment, defendant agreed to testify before a Grand Jury about the crime and "cooperate fully” in the prosecution of his accomplices. Although its terms are not in dispute, the parties did not seek approval of the plea agreement.

Soon after describing to the Grand Jury how his accomplices had set fire to the house in retaliation for a drug-related debt, defendant appeared on a televised news broadcast and stated that he had lied to the Grand Jury, apologizing to his accomplices. The People, concluding that defendant’s public recantation had "effectively eliminat[ed] his utility and credibility as a prosecution witness,” refused to honor the plea agreement. Defendant was ultimately convicted of four counts of murder in the second degree and related counts, following a trial at which his Grand Jury testimony was introduced against him.

On appeal, defendant argues that he is entitled to specific performance of the plea agreement because his testimony before the Grand Jury, presented at risk to himself, placed him in a "no return” position, so that he cannot be restored to his preplea agreement status (see, People v Danny G., 61 NY2d 169). The Appellate Division rejected this contention, as do we.

In order to promote certainty and openness in the plea negotiation process, we generally withhold judicial recognition from plea bargains not submitted for judicial approval (People v Danny G, 61 NY2d 169, 173, supra). While the fact that a plea agreement was never placed on the record is not always an insurmountable barrier (Matter of Benjamin S., 55 NY2d 116, 121), no exception is warranted here.

Specific performance of a plea agreement is a remedy rooted in concerns of "essential fairness” (People v McConnell, 49 NY2d 340, 349). Unlike the defendants in McConnell and Danny G., however (who fully complied with the terms of their plea agreements), here defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People. Their subsequent refusal to call him as a witness at the trial of the accomplices was not unreasonable in view of the questionable value of his testimony. We cannot say that essential fairness compels enforcement of the original agreement. The question remains whether the People were nevertheless entitled to use defendant’s own Grand Jury testimony against him at his own trial.

It has long been our rule that evidence of a defendant’s guilty plea cannot be used against him at a criminal trial once the plea has been withdrawn (People v Spitaleri, 9 NY2d 168). In People v Moore (66 NY2d 1028), we observed that statements made during the course of plea negotiations could be used against a defendant only if the People had specifically bargained for that use.

We declined in People v Evans (58 NY2d 14) to extend the Spitaleri doctrine to preclude use of statements induced by a plea promise. As in defendant’s case, the Evans defendant offered to testify against his accomplices with the assistance of counsel and set no conditions on the subsequent use of his testimony. In that case, neither the prosecution nor the defendant breached the integrity of the agreement. Concluding that defendant had "assumed the risk” that his testimony might subsequently be used against him, we declined to permit "retroactive retraction” of defendant’s testimony, or to "rewrite” the agreement to include a condition the parties could have included but did not (Evans, 58 NY2d, at 24). We observed the unfairness of permitting the defendant to receive the benefit of the plea agreement while depriving the prosecution of the very benefit it bargained for — use of defendant’s testimony — as well as the loss to the Judge or jury of evidence important "to the truth-finding process.” We therefore held that "each party to the voluntarily entered-into plea agreement is entitled to the benefits emanating from the agreement which cannot be retroactively vitiated” (id., at 24).

The Spitaleri doctrine, resting "entirely on fairness grounds” (People v Evans, 58 NY2d, at 22), does not prevent use of defendant’s statements against him. Defendant’s Grand Jury testimony, like the testimony of the Evans defendant, was induced by the plea agreement. In addition, the People bargained for use of defendant’s testimony in the prosecution of his accomplices. The People could not compel defendant’s testimony in service of those prosecutions once they voided the agreement, but they could use the testimony he had already given in any manner they saw fit, as this was a counseled, foreseeable use of his testimony, and a benefit that should not be "retroactively vitiated” (Evans, 58 NY2d, at 24).

In Evans, where both defendant and the People had clean hands, we therefore recognized that both parties would be returned to their preplea agreement positions only as to those aspects of the bargain that remained unperformed. Here, defendant’s own conduct, after he had voluntarily incriminated himself, caused him to lose his benefit of the bargain. While the People were not entitled to gain more pursuant to the agreement, they were permitted to keep what they already had. Accordingly, use of defendant’s Grand Jury testimony against him was permissible.

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

Order affirmed in a memorandum.


text:
    [634 NE2d 201, 611 NYS2d 829]
    The People of the State of New York, Respondent, v Edwin Roman, Appellant.
    Argued March 23, 1994;
    decided April 28, 1994
    APPEARANCES OF COUNSEL

      Mark W. Zeno, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed. Defendant was charged as an accomplice in the sale of drugs based upon the following evidence. During daylight hours an undercover officer approached a man on a Brooklyn street and offered to buy drugs. The man walked a few feet to a car where defendant sat, and defendant passed several packets of heroin to him through the car window. The man then sold one packet to the undercover officer. The People established that defendant and the intermediary had been in the car together shortly before the sale, that the entire transaction with the undercover officer was visible to defendant and that defendant provided a quantity of drugs that would be inconsistent with a purchase solely for the intermediary’s personal use.

From this evidence and the permissible inferences to be drawn from it, the jury had a sufficient basis for concluding that defendant possessed the requisite intent to aid the intermediary in the sale of the drugs to the officer under a theory of accomplice liability (see, Penal Law §§ 15.05, 20.00; see also, People v Kaplan, 76 NY2d 140; compare, People v Lipton, 54 NY2d 340).

Defendant’s other argument on appeal is unpreserved.

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

Order affirmed in a memorandum.


text:
    Lincoln Medical Laboratory, Inc., et al., Appellants, v Cesar A. Perales, Individually and as Commissioner of the New York State Department of Social Services, et al., Respondents. (And Another Action.)
    (Appeal No. 1.)
    Submitted February 22, 1994;
    decided April 28, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming Supreme Court’s denial of plaintiffs’ motion to reargue and renew, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York ex rel. Thomas Higgins, Appellant, v Christopher Artuz, Respondent.
    Submitted February 28, 1994;
    decided April 28, 1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which denied reargument, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [634 NE2d 972, 612 NYS2d 371]
    In the Matter of Adventist Home, Inc., Appellant, v Board of Assessors of the Town of Livingston et al., Respondents.
    Argued March 15, 1994;
    decided May 3, 1994

      APPEARANCES OF COUNSEL

      Roland, Fogel, Koblenz & Carr, Albany (Emilio A.F. Petroccione and Mark L. Koblenz of counsel), for appellant.

      Connor, Curran & Schram, P. C, Hudson (Dawn K. Holt and Theodore Guterman, II, of counsel), for Board of Assessors of the Town of Livingston and another, respondents.

      Rapport, Meyers, Griffen & Whitbeck, P. C, Hudson (Seth L. Rapport of counsel), for Hudson City School District, respondent.
   OPINION OF THE COURT

Memorandum.

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

In early 1990, respondent Board of Assessors of the Town of Livingston determined that a portion of the real property of petitioner Adventist Home, Inc., previously untaxed, no longer qualified for a charitable exemption under Real Property Tax Law § 420-a. Accordingly, the Board included the property on the 1990 tentative assessment rolls and imposed an assessed value of $62,700. Petitioner filed a timely grievance challenging the Board’s action but the Board failed to change the assessment. The Town’s assessment roll became final on July 1, 1990. In December 1990, petitioner received a tax bill reflecting the new assessment.

Some five months later, in May 1991, petitioner instituted this combined CPLR article 78 proceeding and declaratory judgment action seeking review of respondent’s decision denying tax-exempt status to the property. Supreme Court held the claim time-barred under CPLR 217 for failure to commence the proceeding within four months of either the publication of the assessment roll or petitioner’s receipt of a tax bill reflecting the adverse assessment, and the Appellate Division affirmed.

We conclude that petitioner failed to timely commence this proceeding because it was not brought within four months of receipt of the tax bill in December 1990, the point at which petitioner had actual notice of the Board’s determination. We reject respondent’s contention that the four-month Statute of Limitations began to run in July 1990, upon publication of the assessment roll, as that conclusion ignores the explicit statutory requirement of RPTL 525 (4) that the Board provide written notice of the determination and the taxpayer’s right to challenge it. The statutory language is plain:

"On or before the date the verified statement of changes made by the board of assessment review is delivered to the assessor, the board of assessment review shall mail to each complainant a notice of the board’s determination of his assessment. Such notice shall also contain the statement 'If you are dissatisfied with the determination of the board of assessment review, you may seek judicial review of your assessment pursuant to article seven of the real property tax law * * *.’ Such notice shall also state the last date to file petitions for judicial review”.

To hold, as respondent urges, that the limitations period commences with publication of the assessment roll — whether or not the taxpayer has been given the required notice — would eviscerate the statute.

Respondent cannot point to persuasive authority for the conclusion that the limitations period commences upon mere publication of the assessment roll (see, Matter of Dudley v Kerwick, 52 NY2d 542, 548; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 204, n 3; see also, RPTL 702 [2] [limitations period in tax certiorari proceeding commences on last day for filing assessment roll or when notice is given as required by law, whichever is later]). Indeed, the very purpose of RPTL 525 (4) was to relieve the taxpayer of the burden of checking the assessment roll. In its memorandum in support, the State Board of Equalization and Assessment stated:

"Taxpayers who eventually complain to the board of assessment review have generally either received a notice of increased assessment * * * or have examined the tentative assessment roll once it was made public. Having made some effort to ascertain his tentative assessment, and having applied for and received administrative review thereof on grievance day, it seems burdensome to require the taxpayer to check the final assessment roll to learn of the board of assessment review’s decision on his complaint” (see, Mem of State Exec Dept, State Bd of Equalization and Assessment, 1977 McKinney’s Session Laws of NY, at 2338 [emphasis supplied]).

We likewise reject respondent’s contention that the statute itself excuses a failure to provide notice. While the statute provides that "[failure to mail any such notice or failure * * * to receive the same shall not affect the validity of the assessment” (RPTL 525 [4]), the validity of the assessment is not at issue here. We are concerned only with the timeliness of the proceeding. The statutory language ensures that an otherwise valid assessment is not rendered invalid simply because of a failure to send proper notice.

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

Order affirmed, with costs, in a memorandum.


text:
    [634 NE2d 974, 612 NYS2d 373]
    Robert I. Gordon, Individually and as Administrator of the Estate of Carole Gordon, Deceased, Respondent, v Arthur Magun, Appellant, et al., Defendants.
    Decided May 3, 1994

      APPEARANCES OF COUNSEL

      Heidell, Pittoni, Murphy & Bach, P. C., New York City (Donna A. Macaluso of counsel), for appellant.

      Esterman & Esterman, New York City (Gideon J. Karlick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s cross motion for partial summary judgment dismissing the personal injury causes of action sounding in medical malpractice granted and the certified question answered in the negative.

In January and February of 1987, defendant physician examined plaintiffs decedent at the request of decedent’s dermatologist. The purpose of the consultations was to determine whether decedent’s liver would be harmed by continuing drug treatments for psoriasis. Though defendant detected a nodule during the examination and testing, he concluded that the proposed drug treatment would have no ill effects on decedent’s liver. No further examinations or follow-up consultations with defendant were proposed or contemplated. Decedent was treated for psoriasis and released from the hospital. Nine months later, in November 1987, decedent consulted her internist after complaining of abdominal swelling. The internist referred her to defendant, who detected cancer. Decedent died of liver cancer a short time later.

More than two years after the November examination, plaintiff commenced this action alleging, among other things, that defendant negligently failed to diagnose the cancer during the initial consultations in January and February. To avoid dismissal of the medical malpractice claims under the 2ló-year Statute of Limitations (CPLR 214-a), plaintiff contends that decedent’s visits to defendant constituted a single course of treatment, thereby invoking the continuous treatment doctrine to toll the Statute of Limitations.

We conclude that the continuous treatment doctrine is inapplicable under these circumstances. The consultations here were not part of "continuing efforts by a doctor to treat a particular condition” (Massie v Crawford, 78 NY2d 516, 519). The first consultation was undertaken for a purpose wholly independent of the second and involved neither ongoing provision of services by defendant nor the expectation of any future contact between the patient and physician after discharge from the hospital (see, Davis v City of New York, 38 NY2d 257, 259; compare, McDermott v Torre, 56 NY2d 399, 406). The fact that the condition allegedly overlooked in the first consultations was the condition ultimately diagnosed in the later consultation does not bring this case within the continuous treatment doctrine even if a correct diagnosis would have led to an ongoing course of treatment (see, Nykorchuck v Henriques, 78 NY2d 255, 259).

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

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


text:
    In the Matter of Dalmin M., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted April 18, 1994;
    decided May 3, 1994
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Save the Pine Bush, Inc., et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents. (Proceeding No. 1.) In the Matter of Save the Pine Bush, Inc., et al., Appellants, v Thomas C. Jorling, as Commissioner of the State Department of Environmental Conservation, et al., Respondents. (Proceeding No. 2.)
    Submitted March 14, 1993;
    decided May 3, 1994
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Edward Wider, Appellant, v Family Gard, Inc., et al., Respondents.
    Submitted March 14,1994;
    decided May 3,1994
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Nancy Zuger, Individually and as Chairman of the Committee of Gramercy Park Lot Owners, Appellant, et al., Plaintiffs, v Constance D. Gibson et al., as Trustees for Gramercy Park, Respondents.
    Submitted February 24,1994;
    decided May 3,1994
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that pertains to defendants Gibson and Munnell, dismissed upon the ground that as to those defendants the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    [634 NE2d 976, 612 NYS2d 375]
    In the Matter of the Estate of Catherine H. Vadney, Deceased. Peter J. Vadney, Respondent; Paul J. Vadney et al., Appellants.
    Argued March 22, 1994;
    decided May 5, 1994

      APPEARANCES OF COUNSEL

      Stephen J. Waite & Associates, Albany (Stephen J. Waite of counsel), for appellants.

      Shanley & Shanley, Troy (Donald J. Shanley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 13, 1985, decedent Catherine H. Vadney executed a deed conveying her real property located at 17 Bohl Avenue in Albany, New York, to herself and her son, petitioner Peter J. Vadney. The deed did not describe the type of tenancy created or contain any survivorship language. Acting as the executor of decedent’s estate, petitioner excluded the Bohl Avenue property from the list of estate assets when decedent’s will was admitted to probate in December 1988. In so doing, petitioner proceeded on the assumption that the deed created a joint tenancy with a right of survivorship and that the parcel passed solely to him upon decedent’s death. Decedent’s three other children, respondents herein, contended that the deed created a tenancy in common under EPTL 6-2.2 (a), which provides that "[a] disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy.” Under respondents’ construction, decedent’s proportionate interest in the subject property would pass upon her death to all of her surviving children through the residual clause of decedent’s will.

Petitioner commenced this action to reform the deed, contending that the absence of survivorship language in the instrument of conveyance was contrary to the grantor’s intent and due solely to a scrivener’s error. Surrogate’s Court denied the petition after ruling that extrinsic evidence of the grant- or’s intent would not be received to vary the terms of the deed. The Appellate Division reversed and granted the petition. We now affirm.

Petitioner has met his burden of proving by clear and convincing evidence that decedent intended to create a joint tenancy rather than a tenancy in common, and that language manifesting such an intent was mistakenly omitted from the instrument of conveyance by the scrivener (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219; Amend v Hurley, 293 NY 587, 595; Born v Schrenkeisen, 110 NY 55, 59). Petitioner’s uncontroverted evidence consisted of testimony of the attorney who drafted the deed indicating that he had received oral instructions from decedent to prepare a deed conveying the subject property to herself and petitioner as joint tenants, that he neglected to include survivorship language in the deed through his own oversight, and that neither he nor the grantor noticed the omission at the time of the execution of the instrument. The drafting attorney also produced a copy of his notes taken during a preliminary meeting with decedent which indicate that decedent desired the co-ownership interest created by the deed to include the "right of survivorship.” The attorney’s wife, who was present during the execution of the deed and who witnessed decedent’s contemporaneously executed will, testified that decedent stated at that time that she wanted petitioner to have the house. Indeed, unless decedent intended to remove that property from the estate assets that were to pass by the contemporaneously executed will, the execution of a deed conveying the property to herself and petitioner would have been unnecessary. Accordingly, petitioner has met his high burden of proving that the instrument as written did not accurately reflect decedent’s intent to include a right of survivorship, and the deed should be reformed to include the omitted language.

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

Order affirmed, with costs, in a memorandum.


text:
    Bocre Leasing Corporation, Plaintiff, v General Motors Corporation (Allison Gas Turbine Division), Defendant.
    Decided May 5, 1994
   Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.


text:
    In the Matter of Ovidio Borrero, Appellant, v New York City Department of Correction et al., Respondents.
    Submitted February 28,1994;
    decided May 5,1994
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Theodore H. Friedman, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 26, 1994;
    decided May 5, 1994
   Chief Judge Kaye and Judges Bellacosa, Smith and Ciparick taking no part.


text:
    In the Matter of Ronald Roucchio, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted February 7,1994;
    decided May 5, 1994
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.