author: Per Curiam.

text:
    In the Matter of Linda Salvati et al., Appellants, v William B. Eimicke, as Commissioner of the Division of Housing and Community Renewal, Office of Rent Administration, State of New York, Respondent. Barbara Mattura et al., Intervenors-Respondents. In the Matter of Michael Heller et al., Appellants, v Manuel Mirabal, Individually and as Deputy Commissioner of the New York State Division of Housing and Community Renewal, et al., Respondents.
    Argued November 16, 1988;
    decided December 20, 1988

      POINTS OF COUNSEL

      John C. Schnaufer for appellants in the first above-entitled proceeding.
    I. The Division of Housing and Community Renewal (DHCR) may not lawfully classify 184 and 186 Sixth Avenue as a "horizontal multiple dwelling” under the Rent Stabilization Law or the Emergency Tenant Protection Act. (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51, 70 NY2d 615; Matter of Krakower v State of New York, Div. of Hous. & Community Renewal, 137 AD2d 688; La Guardia v Cavanaugh, 53 NY2d 67; Roth v Michelson, 55 NY2d 278; Patrolmen’s Benevolent Assn. v City of New York, 41 NY2d 205; Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557; Matter of Jaffe v McGoldrick, 285 App Div 889; Matter of Mayfair-York Corp. v Weaver, 13 Misc 2d 829, 9 AD2d 613; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588.) II. The DHCR may not establish guidelines or standards to determine when two or more buildings comprise a "horizontal multiple dwelling” without notice and without filing such guidelines or standards with the office of the Department of State. (People v Cull, 10 NY2d 123; Matter of Hill v New York State Teachers’ Retirement Sys., 97 Misc 2d 95; Two Assocs. v Brown, 127 AD2d 173; Matter of Nicholas v Kahn, 47 NY2d 24.) III. The DHCR order is not supported by substantial evidence and is affected by error of law. (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176; Matter of Klein v Weaver, 7 Misc 2d 545; Matter of Goldstein v Gabel, 44 Misc 2d 20; Matter of Love Sec. Corp. v Berman, 38 AD2d 169; Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51, 70 NY2d 615; Matter of Gottlieb v Mirabal, 123 AD2d 574, 69 NY2d 609; Matter of 11th Co. v

      Joy, 92 Misc 2d 664; Matter of Menoudakos v Berman, 32 AD2d 631; Matter of Coyle v Gabel, 21 NY2d 808; Matter of Edlu Custom Bldrs. v Young, 16 Misc 2d 376.)

      Lawrence Alexander and Dennis B. Hasher for respondent in the first above-entitled proceeding.
    I. Pursuant to the Emergency Tenant Protection Act and the Rent Stabilization Law, "horizontal multiple dwellings” need not be a "garden-type maisonette” to be subject to regulation. (Matter of 11th Co. v Joy, 92 Misc 2d 664; Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298; Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51, 70 NY2d 615; Axelrod v Starr, 52 AD2d 232, 41 NY2d 942; La Guardia v Cavanaugh, 53 NY2d 67; Schick v Park Royal Assocs., 65 NY2d 1031; Lee v Gasoi, 113 Misc 2d 760, 126 Misc 2d 719; Mandel v Pitkowsky, 102 Misc 2d 478, 76 AD2d 807; Matter of Sommer v New York City Conciliation & Appeals Bd., 93 AD2d 481, 61 NY2d 973; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104.) II. If the argument is properly before this court, respondent Division is not constitutionally required to file a rule defining standards for a "horizontal multiple dwelling”. (American Indus. Contr. Co. v Travelers Indem. Co., 54 AD2d 679, 42 NY2d 1041; Suffolk County Bldrs. Assn. v County of Suffolk, 46 NY2d 613; Village of Herkimer v Axelrod, 88 AD2d 704; Matter of Roman Catholic Diocese v New York State Dept. of Health, 66 NY2d 948; Matter of Stuyvesant Polyclinic v Axelrod, 117 AD2d 99; People v Cull, 10 NY2d 123.) III. The court below correctly affirmed the factual finding of the administrative agency that 184-186 Sixth Avenue is a horizontal multiple dwelling based on common facilities, ownership and management; in the alternative, the proceeding should be remitted to the Division for further fact finding and a new determination. (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51; Matter of Menoudakos v Berman, 32 AD2d 631, 25 NY2d 723; Matter of 11th Co. v Joy, 92 Misc 2d 664; Matter of Gottlieb v Mirabal, 123 AD2d 574, 69 NY2d 609; Matter of Love Sec. Corp. v Berman, 38 AD2d 169; Matter of Mid-State Mgt. Corp. v New York City Conciliation & Appeals Bd., 112 AD2d 72, 66 NY2d 1032; Towers Hotel Investors Corp. v Davis, 85 Misc 2d 451; Matter of Colton v Berman, 21 NY2d 322; Matter of First Terrace Gardens v McGoldrick, 1 NY2d 1.)

      Thomas P. Kerrigan for intervenors-respondents in the first above-entitled proceeding.
    I. DHCR did not err in ruling that buildings not meeting the statutory definition of "garden-type maisonette dwellings” may constitute horizontal multiple dwellings for purposes of rent stabilization coverage. (Matter of Menoudakos v Berman, 25 NY2d 723; Matter of Castleton Estates v Abrams, 1 AD2d 390, 2 AD2d 673; Matter of Cuccia v Weaver, 9 AD2d 689; Matter of Kahan v Weaver, 12 AD2d 641, 806; Matter of Amorelli v Berman, 19 NY2d 960; Matter of Coyle v Gabel, 21 NY2d 808; Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51, 70 NY2d 615; Matter of Gottlieb v Mirabal, 123 AD2d 574, 69 NY2d 609; Matter of Davbern Assocs. v Joy, 97 AD2d 986, 61 NY2d 604; Matter of Love Sec. Corp. v Berman, 38 AD2d 169.) II. There is no basis to disturb DHCR’s determination that on the evidence of record the subject premises constitute a horizontal multiple dwelling. (Matter of Love Sec. Corp. v Berman, 38 AD2d 169; Matter of Colton v Berman, 21 NY2d 322; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Menoudakos v Berman, 32 AD2d 631, 25 NY2d 723; Matter of Amorelli v Berman, 19 NY2d 960; Matter of 11th Co. v Joy, 92 Misc 2d 664; Matter of Goldstein v Gabel, 44 Misc 2d 20.) III. No constitutional right of landlords has been violated by the determination herein that the subject premises constitute a horizontal multiple dwelling. (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d 51; Eisen v Eastman, 421 F2d 560, 400 US 841; Teeval Co. v Stern, 301 NY 346, 340 US 876; Bucho Holding Co. v Temporary State Hous. Rent Commn., 11 NY2d 469; 378 Realty Corp. v New York City Rent & Rehabilitation Admin., 39 Misc 2d 30.)

      Harris L. Present for appellants in the second above-entitled proceeding.
    I. The Rent Commissioner’s application of different standards for the subject premises and those in the Menoudakos case are arbitrary and merit reversal of his decision. (Matter of Menoudakos v Berman, 59 Misc 2d 850; Matter of Johnson v Joy, 48 NY2d 689; Matter of Castleton Estates v Abrams, 1 AD2d 390, 2 AD2d 673; Matter of Exxon Corp. v Board of Stds. & Appeals, 128 AD2d 289.) II. The Rent Commissioner was legally wrong in holding that the subject premises is not a horizontal multiple dwelling because it is not a garden-type maisonette dwelling. III. It was arbitrary for the Commissioner not to have considered all of the material evidence in the record.

      Lawrence Alexander, Dennis B. Hasher and Jan C. Rose for Manuel Mirabal and another, respondents in the second above-entitled proceeding.
    The Deputy Commissioner properly found that the subject premises is not a horizontal multiple dwelling subject to the Emergency Tenant Protection Act and Rent Stabilization Law. His determination is therefore entitled to judicial affirmance. (Matter of 11th Co. v Joy, 92 Misc 2d 664; Matter of First Terrace Gardens v McGoldrick, 1 NY2d 1; Matter of Herzog v Joy, 74 AD2d 372, 53 NY2d 821; Hotel Armstrong v Temporary State Hous. Rent Commn., 11 AD2d 395; Matter of Johnson v Joy, 48 NY2d 689; Matter of Love Sec. Corp. v Berman, 38 AD2d 169; Matter of Castleton Estates v Abrams, 1 AD2d 390, 2 AD2d 673; Towers Hotel Investors Corp. v Davis, 85 Misc 2d 451; Matter of Sommer v New York City Conciliation & Appeals Bd., 93 AD2d 481, 61 NY2d 973; Matter of Gottlieb v Mirabal, 123 AD2d 574.)

      Alan D. Kucker, Patrick K. Munson and Hal D. Weiner for Gansevoort Holding Corp., respondent in the second above-entitled proceeding.
    I. There is no jurisdiction for DHCR to determine the applicability of the Rent Stabilization Law over adjoining buildings which each contain less than the statutory minimum for inclusion under the law. (La Guardia v Cavanaugh, 73 AD2d 1067, 53 NY2d 67; Meskill v Park Summit Realty Corp., 90 AD2d 410; Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 98 AD2d 487, 62 NY2d 539; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451; Eaton v New York City Conciliation & Appeals Bd., 85 AD2d 581, 56 NY2d 340; Matter of Castleton Estates v Abrams, 1 AD2d 390, 2 AD2d 673; Matter of Amorelli v Berman, 19 NY2d 960; Matter of Coyle v Gabel, 26 AD2d 638, 21 NY2d 808; Sullivan v Brevard Assocs., 66 NY2d 489.) II. The DHCR determination that the subject buildings do not constitute one horizontal multiple dwelling subject to the Rent Stabilization Law is supported by a rational basis in the record and is entitled to judicial affirmance. (Matter of Howard v Wyman, 28 NY2d 434; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104; Matter of Colgate-Palmolive-Peet Co. v Joseph, 308 NY 333; Udall v Tallman, 380 US 1; Power Reactor Co. v Electricians, 367 US 396; Matter of Castleton Estates v Abrams, 1 AD2d 390, 2 AD2d 673; Matter of Berger v Herman, 15 AD2d 792; Matter of Elman v Weaver, 9 AD2d 694; Matter of Cuccia v Weaver, 9 AD2d 689; Matter of Amorelli v Berman, 19 NY2d 960.)
   OPINION OF THE COURT

Per Curiam.

The common issue presented on these appeals is whether horizontal multiple dwellings other than "garden-type maisonette complexes” located in the City of New York may properly be held to be subject to rent regulation as class A multiple dwellings containing six or more units pursuant to the Rent Stabilization Law (Administrative Code of City of New York §§ 26-504, 26-505) and the Emergency Tenant Protection Act of 1974 (L 1974, ch 576, § 4; McKinney’s Uncons Laws of NY § 8621 et seq.).

Petitioners in Matter of Salvati are three sisters who own two adjoining buildings located at 184 and 186 Sixth Avenue. Respondent Division of Housing and Community Renewal (DHCR) determined that the buildings were subject to rent regulation as a horizontal multiple dwelling because they contained a total of more than six units and were serviced by a common boiler. Supreme Court vacated and annulled the agency’s determination, concluding that in order for the buildings to be considered a horizontal multiple dwelling, they must "first be found to include structures which are * * * garden-type maisonette dwelling complexes”. Supreme Court also found that DHCR’s determination was not supported by substantial evidence because the record contained no evidence of any common facilities other than the boiler adapted for use by the two buildings. The Appellate Division reversed on the law and reinstated the agency’s determination (135 AD2d 424). Relying on its decision in Matter of Bambeck v State Div. of Hous. & Community Renewal (129 AD2d 51, lv denied 70 NY2d 615), but making no reference to Supreme Court’s conclusion that the record was otherwise devoid of substantial evidence, the Appellate Division held that the inclusive rather than exclusive language of the Rent Stabilization Law (Administrative Code § 26-505) supported the agency’s view that the statute was not limited to horizontal multiple dwellings constituting garden-type maisonette complexes.

In Matter of Heller, petitioners are tenants in three adjoining buildings under a common ownership. DHCR, relying upon Supreme Court’s ruling in Matter of Salvati, determined that these three buildings did not constitute a regulated horizontal multiple dwelling because they were not a garden-type maisonette complex. Alternatively, the agency also found that although the buildings share common ownership and a common boiler, they are not a regulated horizontal multiple dwelling because they do not share sufficient other common facilities or services. Supreme Court’s judgment confirming the agency’s determination was affirmed by the Appellate Division.

On these appeals, DHCR now argues that the Rent Stabilization Law and the Emergency Tenant Protection Act apply to horizontal multiple dwellings other than garden-type maisonette complexes and that its factual determinations in each case are supported by substantial evidence, are not arbitrary or irrational and therefore should be upheld.

DHCR’s interpretation of the statutes it administers, if not unreasonable or irrational, is entitled to deference (Matter of Colt Indus. v New York City Dept. of Fin., 66 NY2d 466, 471; Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448; Matter of Howard v Wyman, 28 NY2d 434, 437-438; Matter of Mounting & Finishing Co. v McGoldrick, 294 NY 104, 108). The inclusive, rather than exclusive, language of the Rent Stabilization Law supports the agency’s view that the statute applies to horizontal multiple dwellings other than garden-type maisonette complexes. The statute applies to "Class A multiple dwellings” (Administrative Code § 26-504) which are "deemed to include a multiple family garden-type maisonette complex containing six or more dwelling units having common facilities such as sewer line, water main, and heating plant, and operated as a unit under a common ownership on [May 6, 1969], notwithstanding that certificates of occupancy were issued for portions thereof as one- or two-family dwellings” (Administrative Code § 26-505 [emphasis added]). The Emergency Tenant Protection Act also supports the agency’s view by providing for the regulation of all housing accommodations which it does not expressly except, including previously unregulated accommodations (McKinney’s Uncons Laws of NY §§8623, 8625). Although buildings containing fewer than six units are expressly excepted (McKinney’s Uncons Laws of NY § 8625 [a] [4] [a]), horizontal multiple dwellings containing six or more units are not excepted and garden-type maisonette complexes having the common facilities listed in the statute are expressly included as multiple dwellings containing more than six units (McKinney’s Uncons Laws of NY § 8625 [a] [4] [b]). Accordingly, DHCR’s interpretation that the statutes apply to these buildings, which are not garden-type maisonette dwellings, is rational and should be upheld (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d, at 56, supra; Matter of Krakower v State Div. of Hous. & Community Renewal, 137 AD2d 688, 689).

In determining the existence of a regulated horizontal multiple dwelling the crucial factor, therefore, is not whether the housing accommodations are part of a "multiple family garden-type maisonette complex”, but rather whether there are sufficient indicia of common facilities, common ownership, management and operation to warrant treating the housing as an integrated unit and multiple dwelling subject to regulation (Matter of Bambeck v State Div. of Hous. & Community Renewal, 129 AD2d, at 58, supra; Matter of Love Sec. Corp. v Berman, 38 AD2d 169, 170-171).

In Matter of Salvati, DHCR correctly considered whether the subject buildings constituted a regulated horizontal multiple dwelling even though they are not part of a garden-type maisonette complex. Supreme Court concluded however, and we agree, that DHCR’s finding that the buildings constituted such a regulated horizontal multiple dwelling is not supported by substantial evidence since the only evidence of common facilities was a heating unit located in the basement of one building which serviced both buildings. Although DHCR argues to us that there are other indicia of commonality, such as a common fuel storage tank, a common hot water system, a common fire escape, a common roof and a common backyard, there are no such factual findings in the record.

By contrast in Matter of Heller, although DHCR incorrectly concluded that the Rent Stabilization Law applied only to garden-type maisonette complexes, the record contains substantial evidence supporting the agency’s factual determination and alternate finding that the subject buildings, although under a single ownership, did not constitute a regulated horizontal multiple dwelling because they did not share sufficient common facilities or services — the only facility common to the three buildings was a shared heating system; the buildings had separate water and sewer mains, electric service and mail boxes.

Accordingly, the order of the Appellate Division in Matter of Salvati v Eimicke should be reversed, with costs, and the determination of the Division of Housing and Community Renewal annulled. The order of the Appellate Division in Matter of Heller v Mirabal should be affirmed, with costs.

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

In Matter of Salvati v Eimicke: Order reversed, with costs, and determination of the Division of Housing and Community Renewal annulled.

In Matter of Heller v Mirabal: Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v John Satiro, Appellant.
    Argued April 20, 1988;
    decided June 2, 1988
    APPEARANCES OF COUNSEL

      Stephen P. Scaring and Laurie S. Hershey for appellant.

      Patrick Henry, District Attorney (Mark D. Cohen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of criminal possession of a controlled substance in the first degree. The evidence at trial disclosed that, among other things, 9.47 ounces of cocaine, and a blue notebook containing entries in defendant’s handwriting recording cocaine sales, were found in defendant’s room in his family’s home. Defendant argues that the trial court erred under People v Molineux (168 NY 264), and its progeny, by allowing the blue notebook into evidence, along with expert testimony identifying defendant’s handwriting and explaining the significance of the book’s entries, because defendant was not charged with a criminal sale of a controlled substance.

Defendant was in Aruba at the time his room was searched and the evidence was seized and his codefendant was found hiding in the room. Defendant’s central contention at trial was that he did not occupy the room where the drugs were found, and did not have dominion and control over the contraband. We have held that a trial court, in the exercise of its discretion and with a proper limiting instruction to the jury, may allow "[ejvidence of prior uncharged crimes [to] be received, if it helps to establish some element of the crime under consideration” (People v Alvino, 71 NY2d 233, 241). Here, the blue notebook was relevant to show that defendant exercised dominion and control over the drugs, even though he was out of the country at the time of the search and others had access to the room, and to refute defendant’s contention that he did not occupy the room where the contraband was found. Thus admission was not automatically barred under People v Molineux (supra), nor did the trial court, which gave an appropriate cautionary instruction, abuse its discretion by allowing the blue notebook and the explanatory expert testimony into evidence in this particular case.

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

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Malaki Shakur Latine, Also Known as Gregory Latine, Appellant.
    Argued May 24, 1988;
    decided June 2, 1988
    APPEARANCES OF COUNSEL

      Ira Mickenberg for appellant.

      Robert M. Morgenthau, District Attorney (Ann M. Donnelly of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and case remitted to the Appellate Division, First Department, for a de novo consideration of the defendant’s appeal. That court erred in holding that there were no nonfrivolous points which could be raised on the appeal. It is noted that the People commendably concede that there should be a reversal and remission to the Appellate Division.

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


text:
    Manhattan & Queens Fuel Corp., Appellant, v Village of Rockville Centre, Respondent.
    Decided June 2, 1988
    APPEARANCES OF COUNSEL

      Carl S. Levine and Kenneth L. Robinson for appellant.

      James J. Seward for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue in this action for breach of contract is whether defendant Village is contractually obligated to reimburse plaintiff for certain gross receipt taxes plaintiff paid to the Tax Commission pursuant to Tax Law § 300 (c) and § 301 (a). At the time plaintiff and defendant contracted for the sale of oil, no gross receipts tax was applicable to the transaction. Approximately four weeks into the contract, the Legislature amended the Tax Law to subject plaintiff to a gross receipts tax on this transaction (L 1983, ch 400, § 8 [eff July 1, 1983]). Both parties agree that the contract was silent with regard to the payment of such tax.

It is settled that a supplier could lawfully "pass through” this gross receipt tax burden to a municipal purchaser (see, Manhattan & Queens Fuel Corp. v County of Nassau, 68 NY2d 833, affg on opn at 113 AD2d 595). The Appellate Division correctly held that, although it could have, plaintiff did not under the contract at issue pass through this new tax burden to defendant. Plaintiff does not claim impracticability or impossibility of performance, but merely claims that the cost of its performance under the contract has increased due to the change in the Tax Law. There is no basis for plaintiffs claim that defendant is contractually bound to assume this tax burden. Plaintiff, being the party legally obligated to pay the gross receipts tax, must bear the burden of its increased cost in the performance of the contract.

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

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


text:
    The People of the State of New York, Respondent, v Daniel T. Knack, Appellant.
    Argued March 15, 1988;
    decided June 2, 1988

      APPEARANCES OF COUNSEL

      Peter Panaro and Gregory R. Kuziw for appellant.

      Denis Dillon, District Attorney (Gary H. Nurkin and Anthony J Girese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted in Nassau County of driving while intoxicated under Vehicle and Traffic Law § 1192. Because he had previously been convicted of the same offense as a result of a prior guilty plea in Suffolk County, his Nassau County crime was treated as a felony under Vehicle and Traffic Law § 1192 (5), which makes a prior misdemeanor conviction under the statute an aggravating element.

On this appeal, defendant argues, as he did in the courts below, that he was erroneously denied the opportunity to challenge the constitutional validity of his prior Suffolk County conviction by a motion in limine made within the context of the Nassau County criminal action. Although he recognizes that the Legislature has not provided for such a motion, he contends that this court should fashion a special judicial procedure for contesting the constitutionality of prior convictions based on guilty pleas that are to be relied upon as aggravating elements of a new crime. He further suggests that the court should consider, by way of analogy, such legislatively created procedures for obtaining in limine rulings as suppression motions (see, CPL art 710) and challenges to predicate felonies to be used for purposes of enhanced sentencing (see, CPL 400.21).

We decline defendant’s invitation, however, since there already exist several procedural vehicles for challenging the constitutional propriety of guilty pleas under the facts presented here (cf., People v Lopez, 71 NY2d 662). Thus, a new, judicially created, remedy is not needed in this situation to ensure protection of the accused’s right to due process of law (cf., People v Bachert, 69 NY2d 593).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Bienbenito Fernandez, Appellant.
    Argued April 25, 1988;
    decided June 2, 1988
    APPEARANCES OF COUNSEL

      Elaine Unkeless and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Annette Cohen of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant, relying on Cruz v New York (481 US 186), contends that the admission of a confession made by his nontestifying codefendant at trial constituted reversible error. This argument was not preserved for our review (see, CPL 470.05 [2]).

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


text:
    Beverly Hills Cemetery Corporation, Appellant, v Town of Putnam Valley et al., Respondents.
    Submitted March 21, 1988;
    decided June 2, 1988
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    William Colby, Appellant, v Thomas Siebert et al., Respondents.
    Submitted March 7, 1988;
    decided June 2, 1988
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of January 29, 1988, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Hannah Glazer, Deceased. Rosalind G. Klein et al., Appellants; Malcolm Glazer, Respondent.
    Submitted March 14, 1988;
    decided June 2, 1988
   Motion by petitioner executrix for leave to appeal dismissed as untimely. Motion by petitioners residuary legatees for leave to appeal denied.


text:
    In the Matter of Philip Manfra, Appellant, v Board of Trustees of Police Pension Fund, Article II, Respondent.
    Submitted March 21, 1988;
    decided June 2, 1988
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Diane R. Ramirez, as Administratrix of the Estate of Janice Runkle, Appellant, v Time, Inc., et al., Respondents.
    Submitted April 18, 1988;
    decided June 2, 1988
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    William J. Zebrowski et al., Appellants, v Trustees of the Town of Brookhaven et al., Respondents.
    Submitted April 25, 1988;
    decided June 2, 1988
   Motion for leave to appeal insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed Supreme Court’s order granting defendants’ motion for summary judgment and dismissed the complaint denied; motion for leave to appeal insofar as it seeks leave to appeal from that portion of the Appellate Division order which dismissed an appeal from Supreme Court’s order denying plaintiffs’ motion for renewal and/or reargument dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lauren Felice, Respondent, v G. Andre Delporte et al., Appellants, et al., Defendants.
    Submitted March 28, 1988;
    decided June 2, 1988
   Motion by defendants G. Andrew Delporte et al. for leave to appeal withdrawn. Motion by defendant Arcadia Management, Inc. for leave to appeal granted. Cross motion by plaintiff for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Lee Nimmons, Appellant.
    Argued May 26, 1988;
    decided June 7, 1988
    APPEARANCES OF COUNSEL

      David J. Wukitsch for appellant.

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

Memorandum.

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

At the conclusion of the trial, the Presiding Justice, sua sponte, submitted to the jury a verdict sheet listing the various counts of the indictment and the possible verdicts for each, as he was authorized to do (see, CPL 310.20). He also submitted a second sheet, however, listing the various counts of the indictment and defining the elements of each count in statutory language. In the absence of the consent of the parties, the submission of the second sheet constituted reversible error (see, CPL 310.30; People v Sanders, 70 NY2d 837; see also, People v Brooks, 70 NY2d 896; People v Owens, 69 NY2d 585).

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

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Frank Oglesby, Respondent.
    Argued June 2, 1988;
    decided June 7, 1988
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). Although the Appellate Division stated that its reversal was on the law, it was a reversal in the exercise of discretion on an issue not preserved for review.


text:
    John R. Bell, Respondent, v Trishana Barnett, Appellant.
    Submitted May 9, 1988;
    decided June 7, 1988
   Motion for a stay and for other relief dismissed upon the ground that no proceeding is pending before this court, without prejudice to renewal in the event a motion for leave to appeal is timely served and filed, with renewal also conditioned upon full compliance with the requirements of CPLR 1101.


text:
    Adeline Dama et al., Appellants, v Village of Tuckahoe, Respondent, et al., Defendant.
    Decided June 7, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved (Matter of Shannon B., 70 NY2d 458, 462).


text:
    In the Matter of David James et al., Appellants, v George D. Covington, as Justice of the Supreme Court, Bronx County, et al., Respondents.
    Decided June 7, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that as to petitioners James and Suarez, the appeal is moot, and, upon the ground that as to petitioner Brockton, no substantial constitutional question is directly involved.

Chief Judge Wachtler and Judge Bellacosa taking no part.


text:
    In the Matter of Robert E. Schulman, as Trustee of Lorraine Taddeo and Another, Under Trusts Created by Anthony F. Taddeo, Deceased. (Proceeding No. 1.) Anthony R. Taddeo, Jr., et al., Appellants, v Robert Schulman, as Executor and Trustee of Anthony F. Taddeo, Deceased et al., Respondents. (Proceeding No. 2.)
    Submitted April 11, 1988;
    decided June 7, 1988
   Motion for leave to appeal from the Appellate Division order which affirmed the order of Surrogate’s Court denying the motion for 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:
    In the Matter of Tref Realty Corp., Appellant, v City of New York et al., Respondents.
    Submitted March 28, 1988;
    decided June 7, 1988
   Motion to dismiss appeal granted and appeal dismissed for untimeliness (see, CPLR 5513 [a]), with costs and $20 costs of motion.


text:
    The People of the State of New York, Respondent, v James Burke, Appellant.
    Argued April 21, 1988;
    decided June 9, 1988

      APPEARANCES OF COUNSEL

      Judd Burstein for appellant.

      Elizabeth Holtzman, District Attorney (Anthea H. Bruffee, Barbara D. Underwood and Roseann B. Mackechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On February 18, 1979, the body of Richard Eaton was found bound and gagged inside an abandoned trailer. More than four years later, defendant was indicted for Eaton’s murder. At defendant’s trial, the prosecution’s primary witness was Henry Hill, who testified that his friend, defendant, had told him that he had murdered Eaton because Eaton had not paid up on á cocaine deal and that this would be a lesson to two other drug purchasers who had not yet paid defendant. Hill, whose testimony was essential to the prosecution’s case, was a career organized crime figure who turned informant, entered the Federal Witness Protection Program, and in 1980 entered into cooperation agreements with both the Nassau County District Attorney and the Federal Organized Crime Strike Force. In his Federal agreement, Hill was granted immunity from Federal prosecution in exchange for his cooperation in an ongoing Organized Crime Strike Force investigation "and [regarding] any other criminal activity.” The Federal authorities also agreed to recommend to( other law enforcement agencies that they not prosecute Hill if he gave "immediate, full and truthful disclosure, testimony, etc.” The agreement further provided that it:

"will not prevent the Government from prosecuting you for perjury, should it be discovered that you have given false testimony in connection with these matters.
"In addition, in the event that you do not fully comply with all the other terms of this understanding (immediate, full and truthful disclosure, testimony, etc.), this agreement will be nullified. Should this occur, the Government will be free to prosecute you with regard to any and all violations of the Federal Criminal Law in which you may have participated and to use against you, any and all statements made by you and testimony you have given prior to and subsequent to the date of this agreement.”

At trial, defendant cross-examined Hill extensively regarding his life of crime, and particularly regarding his cooperation arrangements and his receipt of substantial amounts of money from the Government. The trial court then permitted the prosecution to introduce the Federal cooperation agreement on redirect examination of Hill. Defendant was subsequently convicted of second degree murder, and the Appellate Division affirmed.

At trial, defendant objected to the introduction of the Federal cooperation agreement on the ground that it was an agreement "between Nassau County, not Kings County, the District Attorney and Henry Hill. I submit that the witness, Henry Hill, has already received State immunity which is a different facet when he testified before a State Grand Jury that led to his indictment”. This objection was insufficient to preserve defendant’s current claim that the Federal agreement was erroneously admitted because it promised Hill immunity only from Federal, not State, prosecution and was therefore irrelevant, and that the agreement was highly prejudicial to the defense in that it bolstered the credibility of Hill and conveyed the false impression that Hill would pay a high price for perjury. We thus have no occasion to consider whether and under what circumstances Federal cooperation agreements are admissible to rehabilitate witnesses’ credibility (see, United States v Cosentino, 844 F2d 30 [2d Cir 1988]; United States v Borello, 766 F2d 46, 56), or to consider any other issues relating to the use of such testimony (see, e.g., Note, Let’s Make a Deal: A Look at United States v Dailey and Prosecutor-Witness Cooperation Agreements, 67 Bos U L Rev 749; Note, Accomplice Testimony Under Contingent Plea Agreements, 72 Cornell L Rev 800).

Defendant further contends that he was denied ¿ fair trial when the prosecutor during summation mischaracterized the cooperation agreement by stating that the Federal Government would be able to prosecute Hill for all of his criminal behavior, pursuant to the terms of the agreement, if it determined that he had perjured himself in this case. We disagree. Defense counsel had the opportunity during his own summation to provide the jury with his interpretation of the scope of the agreement; the jurors had the text of the cooperation agreement before them and were free to examine it and determine whether the prosecutor had indeed mischaracterized it in his summation. In any event, by neglecting to speak up when the trial court failed to instruct the jury on this point, as the court earlier said it would, defendant denied the court an opportunity to mitigate any harm caused by the prosecutor’s purported misinterpretation of that document (see, 128 AD2d 542, 543).

Finally, defendant’s challenge to the prosecutor’s comments during summation allegedly referring to defendant’s failure to testify has not been preserved. Contrary to defendant’s contention, the prosecutor’s ambiguous comments do not fall within the exception to the preservation rule enunciated in People v McLucas (15 NY2d 167, 170-171). The prosecutor made no reference to defendant’s failure to testify, and the comments he did make were not of such character as would naturally and reasonably be interpreted by the jury as adverse comment on defendant’s failure to take the stand (see, People v Garcia, 41 NY2d 861, affg on opn below 51 AD2d 329, 332-333).

Defendant’s remaining contentions are unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Publio Santiago, Appellant.
    Decided June 9, 1988

      APPEARANCES OF COUNSEL

      Philip L. Weinstein and Harold V. Ferguson, Jr., for appellant.

      Elizabeth Holtzman, District Attorney (Brian D. Foley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court’s findings after the Huntley suppression hearing, undisturbed by the Appellate Division, included that defendant did not refuse to speak; did not request "a lawyer flat out”; was not coaxed by the prosecutor into speaking; and was "a mature, intelligent, obviously well-educated defendant” who knowingly, intelligently, and voluntarily waived his right to counsel during questioning. There being evidence to support the undisturbed findings, we cannot say as a matter of law that the lower courts were wrong in concluding defendant failed to invoke his right to counsel with respect to the statements by defendant to the interrogating prosecutor. The order affirming the conviction upon a verdict of guilty after the denial of suppression must be affirmed.

Defendant’s other arguments are either unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    Wayne Overton, Respondent-Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Appellants-Respondents.
    Argued June 1, 1988;
    decided June 9, 1988
   Cross appeals dismissed, without costs, upon the ground that the issues presented are moot. The plaintiff is no longer incarcerated and he is not subject to the directives of the Department of Correction.


text:
    The People of the State of New York, Respondent, v Wayne E. Shaw, Appellant.
    Argued May 27, 1988;
    decided June 9, 1988
   Appeal dismissed upon the ground that defendant is not presently available to obey the mandate of the Court of Appeals in the event of an affirmance (see, People v Jiminez, 71 NY2d 963; People v Burger, 70 NY2d 828; Matter of Robert E. 68 NY2d 980; People v Sullivan, 28 NY2d 900; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).


text:
    The People of the State of New York ex rel. Norcott Corby, Appellant, v James Sullivan, as Superintendent of Sing Sing Correctional Facility, et al., Respondents.
    Submitted April 18, 1988;
    decided June 9, 1988
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying the motion to renew dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Ethel Katz, Deceased. Harold Katz, Respondent; William Plotzker, Appellant.
    Submitted April 25, 1988;
    decided June 9, 1988
   Motion insofar as it seeks leave to appeal from the Appellate Division orders of September 29, 1987 and November 30, 1987 dismissed upon the ground that those orders do not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Gordon Stewart, as Parent and Natural Guardian of Glenn Stewart, an Infant, Respondent, v New York Telephone Company, Appellant. (And a Third-Party Action.)
    Submitted May 23, 1988;
    decided June 9, 1988
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a] [1]).

Judge Hancock, Jr., taking no part.


text:
    In the Matter of Carol A. Kubisa, Respondent, v Gordon M. Ambach, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued May 25, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Kenneth Pawson, Robert E. Diaz and James H. Whitney for Gordon M. Ambach, as Commissioner of Education of the State of New York, appellant.

      John B. Hogan for Maine-Endwell Central School District, appellant.

      Richard N. Aswad and Robert D. Clearfield for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (134 AD2d 691).

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


text:
    The People of the State of New York, Respondent, v Donovan Lindsay, Appellant.
    Submitted May 27, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Marshall L. Goldstein for appellant.

      Robert M. Morgenthau, District Attorney (Rona Feinberg and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Police Sergeant Raymond and Police Officer Brabenic were on routine patrol during the early morning of July 23, 1981 when a motorist blew his horn, pulled up alongside the police car and yelled through the open window that some "dudes”— one dressed all in yellow — in a black car at 119th Street and Lenox Avenue had guns and were about to hold up a store. At the indicated location, the officers saw a black car in front of a building. Sergeant Raymond observed a black male wearing dark clothing near the car and patted him down. When he found nothing, he looked into the car, and saw no weapons or contraband. Moments later the two officers were joined by Officers Pirozzi and Corcoran, and the black car began to move backwards down 119th Street. The officers then heard the following radio report of an anonymous tip: "Men with guns, the detective was searching the wrong person, man in yellow walking away from car, about to commit a robbery.” The four officers converged on the car, ordered the occupants —including defendant, a passenger seated behind the driver— out of the car and patted them down. Nothing was recovered. Officer Pirozzi then entered the car, and recovered a gun under the driver’s seat. All four occupants were arrested. At the station house, defendant — who was dressed in "yellow”— stated that he had found the gun in a vacant lot, and had placed it under the seat. Defendant told the police officers to let his friends go because they had nothing to do with the gun. The three were released, the car was released to one of them (its owner), and defendant was charged with possession of the gun.

Following a Mapp hearing, the suppression court upheld the police conduct, finding that while defendant’s standing was "questionable” the police had reasonable suspicion to support the forcible stop of the car and that the search was made incident to a lawful arrest. Upon a plea of guilty, defendant was convicted of attempted possession of a weapon in the third degree and the Appellate Division affirmed. Defendant now challenges the search, solely on Fourth Amendment grounds.

As the People concede, the ground relied on by the suppression court for denial of defendant’s suppression motion— search incident to a lawful arrest — was erroneous because defendant was not arrested until after the search. Nevertheless, even assuming (without deciding) defendant’s standing to contest it, the search of the area under the driver’s seat did not violate the Fourth Amendment of the United States Constitution. The undisturbed finding of reasonable suspicion is supported by the record. The subsequent search of the area under the driver’s seat was permissible under Federal law because the search was limited to those areas in which a weapon could have been placed or hidden and because the officers, in these circumstances, "possess[ed] an articulable and objectively reasonable belief that the [occupants were] potentially dangerous” and might, upon reentering the car, gain immediate control of a weapon secreted in that area (Michigan v Long, 463 US 1032, 1051). Defendant has made no claim that his rights under the State Constitution have been violated.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Lawrence Singleton, Appellant.
    Argued May 31, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Howard Friedman and Philip L. Weinstein for appellant.

      John J. Santucci, District Attorney (Robert I. Caloras of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Supreme Court order granting the People’s motion for reargument and adhering to its prior decision was a superseding order (see, People v Collier, 131 AD2d 864, lv granted 70 NY2d 954; Marine Midland Bank v Fisher, 85 AD2d 905; Siegel, NY Prac §254, at 313-314). Thus, the People’s notice of appeal from that order, filed within 30 days of its entry, was timely. Having resolved defendant’s appeal on this ground, we need not consider his alternate contention —that the People’s time to appeal to the Appellate Division was triggered by their receipt of a copy of the Supreme Court order from the court, and that service of the order by the prevailing party was unnecessary for this purpose (People v Mullins, 103 AD2d 994; CPLR 5513). However, we again invite the attention of the Legislature to an apparent ambiguity in CPL 460.10 (see, People v Coaye, 68 NY2d 857, 858, n).

On the merits, the Appellate Division correctly reversed the trial court’s dismissal of four counts of the indictment— robbery in the first and second degrees and criminal use of a firearm in the first and second degrees. As the Appellate Division held, the word "handgun” in each of the counts constituted sufficient factual support for the subject element of the crimes charged (see, CPL 200.50 [7] [a]) as well as a sufficient description of the particular implement allegedly displayed by defendant (see, CPL 200.50 [7] [b]).

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

Order affirmed in a memorandum.


text:
    In the Matter of Ronald Turner, Petitioner, and George Asbury, Appellant, v Jacqueline McMickens, as Correction Commissioner of the City of New York, et al., Respondents.
    Argued May 27, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Raymond E. Kerno and Richard Hartman for appellant.

      Peter L. Zimroth, Corporation Counsel (Ira J. Lipton and Dana Martine Robbins of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellant’s 10-day suspension without pay as a New York City correction officer was based on his failure to discharge his duties in accordance with Department work rules and regulations, resulting in the mistaken release of an inmate. There is substantial evidence in the record to support the finding, which concludes the judicial review and judicial function in this case.

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

Judgment affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Kevin Tucker, Appellant.
    Argued May 24, 1988;
    decided June 30, 1988
    APPEARANCES OF COUNSEL

      Jonathan M. Kratter and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court properly concluded that there was no evidence to support an inference by the jury that the People’s main corroboration witness, Brian Keith Taylor, had participated in "[t]he offense charged” or "[a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged”, such as would warrant submitting to the jury the question of Taylor’s complicity (CPL 60.22 [2]). Although Taylor was present in the car at the time the crime occurred, there was no evidence adduced at trial demonstrating that he had participated in planning the robbery; that he had been aware of the criminal enterprise when he entered the car; that he had in any way assisted the perpetrators; or that he had shared in the fruits of the crime. In these circumstances, the trial court correctly held that Taylor’s mere presence in the rear seat of the car, without more, did not constitute a reasonable basis for the jury to conclude that he was an accomplice within the meaning of CPL 60.22 (2) (cf., People v Vataj, 69 NY2d 985 [evidence indicated that witness had assisted in the preparation of a murder by placing the murder weapon in a car]; People v Dorler, 53 NY2d 831 [evidence indicated that witness had been present when burglary plans were conceived, that he had intended to participate in the crime, and that he had possibly shared in the fruits]; People v Basch, 36 NY2d 154 [evidence indicated that witness had been asked by burglars to act as a "lookout” and that he had awaited their return]).

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

Order affirmed in a memorandum.


text:
    In the Matter of Cole Coleman, Appellant, v Walter R. Kelly, as Superintendent of Attica Correctional Facility, Respondent.
    Argued May 31, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Daniel J. Weinstein and Norman P. Effman for appellant.

      Robert Abrams, Attorney-General (Martin A. Hotvet, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed.

While petitioner was serving a sentence at Wyoming Correctional Facility he was charged with violating the standards of inmate behavior (7 NYCRR part 270) by inflicting bodily harm on another, creating a disturbance, and destroying State property. Following a Tier III Superintendent’s disciplinary hearing (see, 7 NYCRR part 254), petitioner was found guilty of the charges. A penalty was imposed consisting of 180 days of special housing unit confinement, loss of 180 days of good time and other privileges, and 14 days alternative diet. After exhausting his administrative appeals, petitioner commenced the instant article 78 proceeding. He contends thát the Superintendent’s determination must be annulled because respondent’s regulations fail to give notice, which he believes is required by Correction Law § 138 (3), of the maximum amount of time for which a Tier III penalty may be imposed. We disagree.

Correction Law § 138 (3) provides "[fjacility rules shall be specific and precise giving all inmates actual notice of the conduct prohibited. Facility rules shall state the range of disciplinary sanctions which can be imposed for violation of each rule” (emphasis added). Under the applicable regulations, inmates are informed of what conduct is proscribed, what level of offense may be charged (Tier I, II, or III), and what types of penalties may be imposed (see, 7 NYCRR parts 252-254, 270). The regulations relating to Tier III offenses specify the types of sanctions but not the maximum time limits (see, 7 NYCRR 254.7 [a]). We conclude that the statutory requirement, that the “range of disciplinary sanctions” be stated, is satisfied by the regulations which give notice of what tier each offense may be prosecuted under and what kinds of punishment may be imposed for each tier. Such an interpretation is consistent with the wording of section 138 (3) and with its statutory purpose of insuring that inmates be given notice of what conduct is proscribed and its possible consequences.

Petitioner’s remaining contention is without merit.

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

Judgment affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Philip Tardbania, Appellant.
    Argued May 24, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Raymond, A. Meier for appellant.

      Barry M. Donalty, District Attorney (William M. Weber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The remarks made by the prosecutor on summation do not require reversal. In some instances where the defendant objected, the objection was sustained and adequate curative instructions were given and in other instances no objection was taken. Therefore, no issue has been preserved for review by this court (CPL 470.05 [2]).

We have not passed on the double jeopardy issue decided by the Appellate Division because the defendant has not argued the point on this appeal.

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

Order affirmed in a memorandum.


text:
    Roseann Baer et al., Respondents, v Town of Brookhaven et al., Appellants.
    Submitted April 25, 1988;
    decided June 30, 1988
   Motion for leave to appeal denied upon the ground that an appeal lies as of right pursuant to CPLR 5601 (b) (1).


text:
    In the Matter of Citizens for Clean Air et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents, County of Essex et al., Intervenors-Respondents, and Village of Hudson Falls, Intervenor-Appellant.
    Submitted April 18, 25, 1988;
    decided June 30, 1988
   Motion by the Village of Hudson Falls for leave to appeal dismissed upon the ground that movant is not a party aggrieved (CPLR 5511). Motion by Citizens for Clean Air for leave to appeal denied.


text:
    In the Matter of Madelaine Renault, Also Known as Jane Doe, Appellant, v Daniel J. FitzGerald et al., Respondents.
    Submitted June 13, 1988;
    decided June 30, 1988
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeals are moot.


text:
    The People of the State of New York ex rel. Ralph Valvano, Appellant, v Richard Koehler, as Commissioner, Respondent.
    Submitted April 18, 1988;
    decided June 30, 1988
   Motion insofar as it seeks leave to appeal from the order of October 28, 1987 dismissed as untimely. Motion insofar as it seeks leave to appeal from the order of January 29, 1988 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Edward J. Kuriansky, as Deputy Attorney-General for Medicaid Fraud, et al., Respondents, v Bed-Stuy Health Care Corporation et al., Appellants, et al., Defendants.
    Submitted June 13, 1988;
    decided June 30, 1988
   Motion to dismiss appeal denied. Case set down for argument during the October 1988 session of this court.


text:
    In the Matter of Andrew S. Miller, Appellant, v Martin E. Schwartz, as Senior Administrative Law Judge, et al., Respondents.
    Argued June 2, 1988;
    decided July 6, 1988

      Appearances of counsel

      Nathan Breslauer for appellant.

      Robert Abrams, Attorney-General (Andrea Green, O. Peter Sherwood and Lawrence S. Kahn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On October 15, 1984, petitioner was charged by a Suffolk County police officer with speeding in violation of Vehicle and Traffic Law § 1180 (d). In Suffolk County such charges are adjudicated administratively (Vehicle and Traffic Law §§ 225-228; 15 NYCRR 121.1-126.5). Before trial petitioner’s attorney requested from the Traffic Violations Bureau certain documents and information pertaining to the type of radar used, and its associated testing and operating procedures. The Bureau denied petitioner’s request stating that under the relevant rule of the Division of Administrative Adjudication the motion practice and discovery procedures set forth in the Civil Practice Law and Rules and Criminal Procedure Law were not applicable (see, 15 NYCRR 123.1).

Petitioner then commenced this article 78 proceeding to compel reasonable discovery relating to this radar device and claiming that 15 NYCRR 123.1 unconstitutionally deprived him of due process of law because without it he would be unable to conduct effective cross-examination. It is settled, however, that there is no general constitutional right to discovery in criminal cases (see, Weatherford v Bursey, 429 US 545, 559) or administrative proceedings (see, National Labor Relations Bd. v Interboro Contrs., 432 F2d 854, 857-858, cert denied 402 US 915). Such matters are regulated by statute or rule and since petitioner had no statutory or regulatory right to pretrial discovery here, his request was properly denied.

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

Order affirmed, with costs, in a memorandum.


text:
    George McMillan, Appellant, v State of New York, Respondent.
    Decided July 6, 1988
    APPEARANCES OF COUNSEL

      George McMillan, appellant pro se.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Denise A. Hartman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Claimant, an inmate at a State correctional facility, commenced this action to recover damages for allegedly wrongful confinement in a special housing unit following his refusal to accept a work assignment. The only issue we need consider on this appeal is claimant’s argument that he is entitled to recover damages on a common-law tort theory of false imprisonment or wrongful excessive confinement because he was confined in a special housing unit in violation of the State’s own regulations (cf., Arteaga v State of New York, 72 NY2d 212). However, because this argument was raised for the first time at the Appellate Division, it is unpreserved for our review.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York ex rel. John Field, on Behalf of Jennifer Field, an Infant, Respondent, v Florence Cronshaw, Appellant.
    Decided July 6, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the March 21, 1988 order of the Appellate Division appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. John Field, on Behalf of Jennifer Field, an Infant, Respondent, v Florence Cronshaw, Appellant.
    Decided July 6, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the March 28, 1988 order of the Appellate Division appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Peter T. Gagnier, Appellant, v Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided July 6, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie.


text:
    Eleanor Kolomensky et al., Appellants, v Arthur C. Wiener, Doing Business as Myra Realty Co., et al., Respondents, et al., Defendants.
    Submitted May 2, 1988;
    decided July 6, 1988
   Motion insofar as it seeks leave to appeal from so much of the order of the Appellate Division as affirmed the dismissal of plaintiffs’ complaint as against defendant Solimine denied. Motion insofar as it seeks leave to appeal from the remaining portions of the Appellate Division order dismissed upon the ground that those portions of the order do not finally determine the action within the meaning of the Constitution.


text:
    Park Slope Jewish Center, Respondent, v Neilan Stern et al., Appellants.
    Decided July 6, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action as required for an appeal pursuant to CPLR 5601 (d).


text:
    Gyan S. Prasad et al., Respondents, v Victor Cintron et al., Appellants.
    Submitted April 25, 1988;
    decided July 6, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from a County Court order entered in a proceeding commenced in a Village Court (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]).


text:
    The People of the State of New York, Respondent, v Monique Sherard, Appellant.
    Submitted April 25, 1988;
    decided July 6, 1988
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the appeal is moot as a result of defendant’s plea of guilty.


text:
    In the Matter of Cameron K. Wehringer, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted May 9, 1988;
    decided July 6, 1988
   Motion to dismiss the appeal from the March 10, 1988 order of the Appellate Division granted and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved; cross motion for leave to appeal denied. On the court’s own motion, appeal from the May 10, 1988 order of the Appellate Division dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Dreyfus Special Income Fund, Inc., Respondent, v New York State Tax Commission, Appellant.
    Argued May 27, 1988;
    decided July 7, 1988

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Richard C. Agins and Roy F. Hutton for respondent.

      Peter L. Zimroth, Corporation Counsel (Glenn Newman, Gale Zareko and Stanley Buchsbaum of counsel), for City of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly held that respondent’s former regulation (20 NYCRR former 3.11) conflicts with the plain meaning of Tax Law § 208 (9), which provides that "entire net income” under the State Tax Law is "presumably the same as the entire taxable income which the taxpayer is required to report to the United States treasury department”. We have held, in interpreting a predecessor version of Tax Law § 208 (9), that the term "presumably”, as it appears in the statute, was not intended to afford respondent the freedom to vary the meaning of "entire net income” insofar as such income is equated with the income a taxpayer reports to the United States Treasury (see, People ex rel. Standard Oil Co. v Law, 237 NY 142, 147; People ex rel. Barcalo Mfg. Co. v Knapp, 227 NY 64, 71). Moreover, it is clear that under the Federal tax law, a regulated investment company (RIC) such as petitioner is permitted to deduct dividends paid to shareholders in determining its "taxable income” for Federal income tax purposes (see, 26 USC § 852 [b] [2] [D]; Rev Ruling 72-383, 1972-2 CB 442).

We reject respondent’s contention that a 1979 amendment to the State Tax Law granting RIC’s the shareholder dividend deduction demonstrates that, prior to the amendment, RIC’s were not entitled to the deduction (see, Tax Law § 209 [7], as added by L 1979, ch 500, § 1). The fact that the Legislature decided to grant the deduction in 1979 does not mean that respondent’s then prevailing interpretation of Tax Law § 208 (9) was valid. There is nothing in the legislative history of the 1979 amendment to support respondent’s conclusion that RIC’s were not entitled to the deduction in 1976. Legislative approval of a past administrative interpretation should not be inferred from a statutory amendment that makes no reference to the prior administrative practice. "Action so ambiguous in its implications as to the past is wanting in that certainty and evident purpose which would justify its acceptance as a legislative declaration of what an earlier [Legislature] had intended rather than an effort to make clear that which had been rendered dubious by unwarranted administrative construction” (Haggar Co. v Helvering, 308 US 389, 400). We have examined respondent’s remaining contentions and find them to be without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Christopher Gilliard, Respondent.
    Decided July 7, 1988
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Lisa Feiner of counsel), for appellant.

      Walter J. Evans, Jr., and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At defendant’s trial on the charge of robbery in the first degree, evidence was adduced that complainant was riding alone in the last car of a subway train when defendant approached her, motioned with his hand in his pocket as though he had a gun, and demanded money. Believing defendant to have a gun, complainant surrendered 7 or 8 dollar bills. During the robbery, defendant never removed his hand from his pocket and the complainant never actually saw a gun. At the next subway stop, defendant left the train and walked down a flight of stairs to an underpass. As soon as defendant disappeared from her sight, complainant shouted to the police in the subway station that she had been robbed. Based on the description given, the police apprehended defendant one-quarter block from the subway station, a mere 2 to 3 minutes later. A search of defendant revealed eight one dollar bills, but no weapon.

The trial court refused defendant’s request to charge the jury on the affirmative defense of robbery in the first degree— that the object displayed was not a loaded weapon capable of producing death or other serious physical injury (Penal Law § 160.15 [4]). Concluding that this was error, the Appellate Division reduced defendant’s conviction to robbery in the second degree.

A defendant is entitled to a charge on the affirmative defense to robbery in the first degree when there is presented sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon capable of producing death or other serious physical injury (see, Penal Law § 160.15 [4]; People v Moye, 66 NY2d 887, 889; People v Baskerville, 60 NY2d 374, 380). Here, the evidence, viewed as it must be in the light most favorable to defendant (People v Farnsworth, 65 NY2d 734), was sufficient to present a factual question for the jury whether the object displayed was a firearm capable of causing death or other serious physical injury. Although defendant was out of the sight of complainant and the police for 2 or 3 minutes after the incident, the police officer — who took the same path through the underpass as did defendant — failed to discover any weapon. Once defendant reached the street, the officers had him within sight and never saw him discard a weapon. Moreover, complainant never actually saw a gun, nor did she testify that she saw the outline of one, and no gun was ever recovered. Given these undisputed facts, the jury could have concluded that the object displayed in the course of the robbery was not a loaded weapon capable of producing death or other serious physical injury, and defendant’s request to so charge should therefore have been granted (see, People v Moye, 66 NY2d 887, 890, supra; People v Cable, 96 AD2d 251, 260-261, revd on other grounds 63 NY2d 270, 282-283; People v Willis, 56 NY2d 743).

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

       In reducing defendant’s conviction, the Appellate Division agreed with the People that it had the authority to do so pursuant to CPL 470.15 (2) (a). Inasmuch as defendant does not challenge this corrective action, we do not pass upon its propriety.


text:
    Joseph F. Papa, Jr., et al., Appellants, v New York Telephone Company et al., Respondents. Joseph F. Papa, Jr., et al., Appellants, v New York Telephone Company et al., Respondents.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Argued June 2, 1988;
    decided July 7, 1988

      APPEARANCES OF COUNSEL

      Carleton Bruce Laidlaw, Jr., for appellants.

      Vincent A. O’Neil, Frances A. Ciardullo and Michael Religa for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff-appellant signed a form denominated "Order for Directory Representation” seeking the placement of advertisements in the New York Telephone Company’s Camillus and Syracuse telephone book yellow pages. The form was not signed by either respondent or its authorized agent for the solicitation of advertisements, respondent Reuben H. Donnelly Corp. Immediately above the area for the applicant’s signature was the notation that, "the applicant hereby requests THE NEW YORK TELEPHONE COMPANY TO INSERT THE ABOVE ITEMS OF ADVERTISING IN THE ABOVE NAMED DIRECTORY SUBJECT TO THE TERMS AND CONDITIONS ON THE REVERSE SIDE HEREOF, which the undersigned has read.” Among the 15 conditions on the back of the single-page form, in legible print, it was stated in clear and explicit language that: "3. The Applicant may withdraw this order in whole or in part, by giving written notice not later than the cancellation closing date for the directory involved” and "10. Publication of any unit in any issue of the directory specified shall constitute acceptance of this order for such unit with respect to such issue only. The omission of a unit from any issue of the directory shall constitute a rejection by the Company of the order for such unit with respect to such issue, and in the event of omission, any amount paid hereunder applicable to the omitted unit for that issue shall be refunded to the Applicant and no other or further liability shall exist” (emphasis supplied). When the advertisements did not appear in the 1983 yellow pages, respondent deemed the order rejected and refunded appellant’s payment. Appellant sued to recover damages for loss of profits in its business based on asserted contractual violations and negligent actions by respondent in failing to print the advertisement.

By its explicit terms, the order form made acceptance conditional upon publication and allowed for unilateral cancellation by appellant as well. The order form therefore constituted a mere offer to make a unilateral contract. The fact that the offer was made on the respondent’s preprinted forms does not transform the order form into a bilateral contract. "The mere expectation that a contract will be entered into * * * do[es] not constitute a contract” (1 Williston, Contracts § 27, at 66 [3d ed]). Because "a unilateral contract [is] unenforceable until acted upon by the promisee” (I. & I. Holding Corp. v Gainsburg, 276 NY 427, 433; see, Petterson v Pattberg, 248 NY 86, 88), appellant’s contract claims were properly dismissed by both lower courts.

Insofar as no contract was formed between these parties, we have no occasion to consider the application or extension of our decision in Hamilton Employment Serv. v New York Tel. Co. (253 NY 468, 471), upholding a limitation on liability for an omissions clause involving a white pages telephone directory.

The negligence claim was also properly dismissed. The lower courts correctly concluded that no duty existing independent of the alleged contract, the breach of which would constitute negligence, was pleaded (see, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389).

Appellant’s additional arguments have been reviewed and are without merit and no issue has been raised with respect to the gross negligence claim.

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

Orders affirmed, with costs, in a memorandum.


text:
    Gregory Washington, Appellant, v City of New York, Respondent.
    Decided July 7, 1988

      APPEARANCES OF COUNSEL

      Arnold E. Di Joseph, III, for appellant.

      Peter L. Zimroth, Corporation Counsel (Dana Martine Robbins of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The lower courts did not abuse their discretion in denying plaintiffs motion to file a late notice of claim. Under General Municipal Law § 50-e (5), the trial court has discretion to extend the time to serve a late notice of claim in a proper case, and the statute permits the court to consider, among all other relevant facts and circumstances, whether the municipality had actual knowledge of the facts constituting the claim within the 90-day statutory period.

The trial court considered and appropriately rejected plaintiffs purely speculative contention that the City had actual notice of the accident. Plaintiff failed to sustain his burden of establishing that the City acquired knowledge of the accident within a reasonable time, conclusorily alleging the existence of an accident report and offering no reliable basis to support his claim that the accident was reported to the City building inspectors who were assigned to the work site.

Plaintiffs other contentions are without merit.

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

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


text:
    Lincoln Savings Bank, Respondent, v Isaac Warren et al., Appellants, et al., Defendants.
    Submitted May 9, 1988;
    decided July 7, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that part of Supreme Court’s order denying defendants Warrens’ motion to vacate the judgment of foreclosure and sale, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Daniel J. Lipsman, Appellant, v Percy Mason, Respondent.
    Submitted May 16, 1988;
    decided July 7, 1988
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b] [6], [7]; CPLR 5602 [a] [1] [i]). Motion for poor person relief dismissed as academic.


text:
    Denise Longo, an Infant, by Her Parent and Natural Guardian, Joseph Longo, Appellant, et al., Plaintiff, v Vincent Tafaro, Defendant, and City of New York, Respondent.
    Submitted May 23, 1988;
    decided July 7, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs’ motion to set aside the verdict and for a new trial, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief, etc., dismissed as academic.

Judge Titone taking no part.


text:
    In the Matter of John D. Reddan, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted May 9, 1988;
    decided July 7, 1988
   Motion for leave to appeal dismissed for failure to comply with requirements of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d]).


author: Titone, J.

text:
    The People of the State of New York, Respondent, v Lawrence Fishman, Appellant.
    Argued May 25, 1988;
    decided June 30, 1988

      APPEARANCES OF COUNSEL

      Steven G. Legum for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of attempted murder and conspiracy for his involvement in an unsuccessful plot to kill his wife. Defendant agreed to pay Jose Lopez and Fernando Castro $25,000 to kill her and on August 13, 1985, pursuant to that agreement, Lopez shot her several times.

On March 7, 1986, two weeks before commencement of defendant’s trial, Castro pleaded guilty to conspiracy for his involvement in the murder plot. On March 26, 1986, he was called as a prosecution witness at defendant’s trial; at that time, defense counsel requested production of Castro’s plea proceeding minutes, claiming that they constituted Rosario material. The prosecutor responded that he had ordered the minutes from the court stenographer, but had not received them, and that the minutes were a matter of public record. The trial court denied defense counsel’s request, ruling that the plea minutes, which counsel could obtain at any time, were not Rosario material. On appeal, defendant renews his argument that the minutes constituted Rosario material which the People were obligated to produce. We disagree.

The Rosario rule has no application in the circumstances of this case, where untranscribed plea minutes of a potential prosecution witness have been ordered but not received by the prosecution. Having had no immediate access of their own to the statements (contrast, People v Ranghelle, 69 NY2d 56, 64), the People cannot be held responsible for a failure to turn them over to defendant.

We cannot agree with the new, boundless reading of CPL 240.45 proposed by the dissent; nothing in the legislative history points to such a legislative intention. As for the dissent’s views regarding "sandbagging” (dissent, at 888), the focus of this appeal is Rosario; during the colloquy before the trial court — when defendant preserved his objection for our review — not even defendant made the arguments now suggested by the dissent as a basis for reversing this conviction.

To the extent they have been preserved, defendant’s remaining contentions are without merit.

Titone, J.

(dissenting). The majority holds that "untranscribed plea minutes of a potential prosecution witness [which] have been ordered but not received by the prosecution” do not fall within the scope of the Rosario rule. Because I believe that this holding is inconsistent with the express language and spirit of CPL 240.45 (1), I respectfully dissent.

On March 7, 1986, one of defendant’s accomplices, Fernando Castro, pleaded guilty to conspiracy in exchange for his testimony against defendant at his upcoming trial for attempted murder. The prosecution did not inform defendant of this fact until March 20, the day before his trial began. At that time, the prosecutor told defendant’s counsel that Castro "might” testify at trial. During his opening statement, the prosecutor stated that Castro would testify. When defense counsel requested that the prosecution provide him with a copy of the plea minutes in order to effectively cross-examine Castro the People responded that the minutes were as yet untranscribed. The trial court, after noting that both the prosecution and the defense had equal access to the transcript, concluded that the prosecution had no obligation to provide defendant with the minutes under People v Rosario (9 NY2d 286).

Initially, the Rosario rule requiring the People to provide the defendant with a witness’ prior statements was a judicially created doctrine designed to enhance the fairness of criminal proceedings. However, the Legislature subsequently enacted CPL 240.45 (1) (a), which provides: "After the jury has been sworn and before the prosecutor’s opening address * * * the prosecutor shall, subject to a protective order, make available to the defendant * * * [a]ny written or recorded statement, including any testimony before a grand jury * * * made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness’s testimony.” The majority apparently takes the position that this statute was merely a codification of the Rosario rule affording a defendant no greater rights than does our case law. However, the language and legislative history of CPL 240.45 (1) (a) compel a contrary conclusion.

CPL 240.45 (1) (a) explicitly requires that any written or recorded statement of a person whom the prosecutor intends to call as a witness be made available to the defendant after the jury is sworn and before the prosecutor’s opening address. On its face, the statute requires that the People provide defendant with a statement embodied in the plea minutes of an accomplice, where the People call the accomplice as a witness. The legislative history of CPL 240.45 indicates that it was designed to reduce the element of surprise, with its inherent unfairness, in criminal trials, as well as to broaden discovery. Indeed, the goal of this legislation was to expand discovery in criminal cases beyond that provided for in Rosario. The statute demands fair play by both the prosecution and the defense, a goal that was not met here.

Unlike the case where the defendant seeks the victim’s personal account of the crime (see, People v Reedy, 70 NY2d 826, 827), the People in this case were active participants in the accomplice’s plea. In contrast, the defendant was not a participant and absent a notification by the prosecution, had no way of knowing that a plea was taken. The result of the failure to provide the transcript under these circumstances was that the defendant was subjected to the surprise and unfairness that the Legislature sought to prohibit by enacting CPL 240.45.

The majority relies on the fact that, unlike statements filed with police agencies (People v Ranghelle, 69 NY2d 56, 64), and Grand Jury testimony (see, CPL 240.45 [1] [a]), the plea minutes here were not in the control of the People (see, People v Reedy, 70 NY2d 826, 827, supra; People v Jones, 70 NY2d 547, 550). The determinative factor, however, is whether the statement might have been of use to the defense (People v Ranghelle, supra, at 64; see also, People v Rosario, supra, at 289).

Here, the People failed to inform defendant that Castro would testify until after the trial actually commenced. They then advised defendant that the minutes of Castro’s plea had not been transcribed. Finally, the People placed the burden on defendant to obtain the minutes. This course of conduct effectively "sandbagged” defendant. The People’s resources would have made all of this unnecessary and it was incumbent upon them to provide defendant with a transcribed copy of Castro’s plea.

Accordingly, I would reverse and remit for a new trial.

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

Order affirmed in a memorandum.

       The chief sponsor of the bill stated that the statute "expands criminal discovery provisions for both the defense and prosecution” (Bill Jacket, L 1979, ch 412, Mem of Senator Stafford). The memorandum approving the bill states that it provides "expanded discovery for both the defense and prosecution in criminal cases”, that "[t]he element of surprise in criminal trials and its inherent unfairness, will be reduced”, and that the provision was "developed together with the Senate and Assembly Codes Committees and the Office of Court Administration, in consultation with the Criminal Justice Section of the State Bar Association, and the State District Attorneys’ Association among others” (Bill Jacket, L 1979, ch 412, Governor’s Approval Mem, 1979 McKinney’s Session Laws of NY, at 1801). A letter submitted by the District Attorneys’ Association agreed that the bill represents "a reasonable and balanced step forward in broadening pre-trial discovery” (Bill Jacket, L 1979, ch 412). Finally, a further memorandum in support of the bill indicated that "[t]he enactment of this measure would have a significant impact upon the criminal justice process. Trials would become fairer as the element of surprise is reduced” (Bill Jacket, L 1979, ch 412, Mem of Office of Court Administration, at 4, 1979 McKinney’s Session Laws of NY, at 1891).


text:
    Mimi Blye, Appellant, v Manhattan and Bronx Surface Transit Operating Authority, Respondent, et al., Defendant.
    Argued June 2, 1988;
    decided July 12, 1988

      APPEARANCES OF COUNSEL

      Stephen R. Krawitz for appellant.

      Lawrence Heisler, Albert C. Cosenza and Anthony J. Bellitto for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. Question certified not answered as unnecessary. In view of the undisputed evidence that a direct safe route to the bus was available to plaintiff, the bus company may not be held liable for plaintiff’s injuries (see, MacKenzie v Union Ry. Co., 82 App Div 124, affd 178 NY 638).

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