text:
    [624 NE2d 689, 604 NYS2d 551]
    In the Matter of Allen H. Roth, Individually and on Behalf of All Signers of a Petition Filed Pursuant to Section 37 of the Municipal Home Rule Law, and as Secretary of New Yorkers for Term Limits, Inc., Respondent, v Carlos Cuevas, as City Clerk of the City of New York, et al., Appellants.
    Argued October 14, 1993;
    decided October 19, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Linda H. Young, Jonathan Pines and Pamela Seider Dolgow of counsel), for appellants.

      Townley & Updike, New York City (Douglas C. Fairhurst, Steven I. Himelstein and Zvi N. Raskin of counsel), for respondent.

      Charles S. Turner, County Attorney of Monroe County, Rochester (Raymond J. Lum of counsel), for County of Monroe, amicus curiae.

   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the opinion by Justice Martin Evans at Supreme Court (158 Misc 2d 238).

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


source: Caselaw Access Project

license: Public Domain

text:
    Billy Billups, Appellant, v State of New York, Respondent.
    Submitted October 12, 1993;

    decided October 19, 1993

   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Leslie Bridgewater, Respondent, v Lee Clary, as Judge of the County Court of Jefferson County, Respondent, and James T. King, as District Attorney for Jefferson County, Appellant.
    Submitted September 13, 1993;
    decided October 19, 1993
   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 granted.


text:
    Jane Hope et al., Respondents, v Cesar Perales, as Commissioner of the New York State Department of Social Services, et al., Appellants.
    Submitted September 27, 1993;
    decided October 19, 1993
   Motion by Alma Poindexter for permission to intervene granted. Plaintiffs’ cross motions for the imposition of sanctions denied.


text:
    [624 NE2d 690, 604 NYS2d 552]
    Department of Housing Preservation and Development of the City of New York, Respondent, v Mill River Realty, Inc., et al., Respondents, and 352 Cathedral Equities, Inc., et al., Appellants, and Kenneth Foo, Administrator-Respondent.
    Argued October 6, 1993;
    decided October 21, 1993

      APPEARANCES OF COUNSEL

      Fischbein, Badillo, Wagner, Itzler, New York City (Clifford A. Entes and Kenneth G. Schwarz of counsel), for appellants.

      O. Peter Sherwood, Corporation Counsel of New York City (Timothy J. OShaughnessy and Kristin M. Helmers) for Department of Housing Preservation and Development of the City of New York, respondent.

      Kellner, Chehebar & Deveney, New York City (Douglas A. Kellner of counsel), for Kenneth Foo, Article 7-A Administrator, respondent.
   OPINION OF THE COURT

Appeal, by respondents from that portion of the Appellate Division order which reinstated the Civil Court order entered June 30, 1988, dismissed, without costs, and certified question, insofar as it pertains to that portion of the Appellate Division order, not answered upon the ground that the issues presented on that part of the appeal have become moot. Order, insofar as it reinstated the Civil Court order entered August 30, 1988, affirmed, with costs, and certified question, to the extent it pertains to that part of the Appellate Division order, answered in the affirmative, for reasons stated in so much of the Appellate Division memorandum (169 AD2d 665) as relates to the contempt against respondents.

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


text:
    In the Matter of Joshua Acosta, Appellant, v Francis D. Phillips, II, as District Attorney of Orange County, Respondent.
    Submitted August 16, 1993;
    decided October 21, 1993
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Hilda M. Basch, as Executor of Hilde M. Fremont, Deceased, and as Trustee of a Trust for Lisa Basch and Others, et al., Respondents, v New York City Loft Board et al., Appellants.
    Submitted August 9, 1993;
    decided October 21, 1993
   Motion by the New York City Loft Board for leave to appeal denied. Motion by Philip Scheuer for leave to appeal dismissed upon the ground that said movant is not a party aggrieved (CPLR 5511).


text:
    In the Matter of Hillary Best, Appellant, v Arthur Leonardo, as Superintendent of Great Meadow Correctional Facility, et al., Respondents.
    Submitted October 12, 1993;
    decided October 21, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the issues presented are moot.

Judge Levine taking no part.


text:
    Greater Miami Baseball Club Limited Partnership, Doing Business as The Miami Miracle, Appellant, v National League of Professional Baseball Clubs et al., Respondents.
    Submitted August 9, 1993;
    decided October 21, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed Supreme Court’s order denying plaintiffs motion for a preliminary injunction, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Levine taking no part.


text:
    In the Matter of Dean Loren, Appellant, v Diane B. Marry, Respondent.
    Submitted October 12, 1993;
    decided October 21, 1993
   Appeal, insofar as it is taken from that part of the Appellate Division order which affirmed the denial of petitioner’s motion to vacate the judgment and amend the transcript, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Levine taking no part.


text:
    Annette D. Meiselman, Appellant, v Myers Moving and Storage Co. et al., Respondents.
    Submitted October 12, 1993;
    decided October 21, 1993
   Appeal, insofar as it is taken from that part of the Appellate Division order which granted renewal and, upon renewal, denied the motion to enlarge the record on appeal, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Smith taking no part.


text:
    The People of the State of New York ex rel. Douglas J. Gould, Appellant, v Raul Russi, as Chairman of the New York State Division of Parole, Respondent.
    Submitted October 12, 1993;
    decided October 21, 1993
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Eric P. Von Wiegen, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted October 12, 1993;
    decided October 21, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).

Judge Levine taking no part.


text:
    [624 NE2d 680, 604 NYS2d 543]
    In the Matter of Michael F. Cerami, Respondent, v City of Rochester School District, Appellant, and Special Funds for Reopened Cases, Respondent. Workers’ Compensation Board, Appellant.
    Argued September 9, 1993;
    decided October 12, 1993

      APPEARANCES OF COUNSEL

      Connors & Corcoran, Rochester (Kevin P. Kourofsky of counsel), for City of Rochester School District, appellant.

      Robert Abrams, Attorney-General, Albany (Theresa E. Wolinski, Jerry Boone, Peter H Schiff and Jane Lauer Barker of counsel), for Workers’ Compensation Board, appellant.

      Michael F. Cerami, respondent pro se.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the decision of the Workers’ Compensation Board dated March 27, 1987 should be reinstated, without costs.

In September 1980, claimant filed a workers’ compensation claim for a mental breakdown allegedly precipitated by stressful working conditions that led to his 1967 resignation from employment as a cosmetology instructor with respondent City of Rochester School District. Workers’ Compensation Law § 28 requires that claims be submitted within two years from the date of the accident giving rise to the claim. Claimant seeks the benefit of section 115 of that law, which provides a toll of the limitations period for "any person who is mentally incompetent or a minor so long as he has no committee or guardian.” Application of section 115 would excuse claimant’s failure to file his claim within two years of his June 24, 1967 resignation — the accepted date of the alleged work-related accident.

Based on a record developed over the course of four years of hearings which explored claimant’s medical history of paranoid schizophrenia and general conduct in managing his affairs, the Workers’ Compensation Board concluded in its March 27, 1987 decision that the section 115 toll was not applicable because claimant was competent to file a workers’ compensation claim in 1967. The Appellate Division reversed, holding specifically that the vital determination was "not simply whether claimant was capable of filing a claim, but whether claimant was able to comprehend the premise for his claim, i.e., that the conditions at work occasioned or contributed to his psychiatric problems” (148 AD2d 807, 808). Applying this standard to the medical evidence before it, and specifically crediting medical testimony that claimant was not mentally capable of acknowledging his own illness or its relation to his working conditions, that Court held (id., at 808) that claimant was not capable of filing a workers’ compensation claim "to recover for employment-induced mental illness” in 1967.

We reject the Appellate Division’s novel definition of "mental incompetency” for purposes of the Workers’ Compensation Law incompetency toll. In McCarthy v Volkswagen of Am. (55 NY2d 543), the seminal case construing CPLR 208, we held that the insanity toll afforded by that statute is available "to only those individuals who are unable to protect their legal rights because of an over-all inability to function in society” (id., at 548). Significantly, that rule was applied to preclude the McCarthy plaintiff’s reliance on the insanity toll, despite a posttraumatic neurosis which caused him to repress the memory of the accident upon which his belated complaint was predicated. The Court further concluded that the insanity tolling provision should be narrowly construed to advance the purpose of limitations periods as "statutes of repose” (id., at 549). The same analysis should be applied to the Workers’ Compensation Law’s tolling provision, which constitutes that enactment’s own "statute of repose.”

Turning to the application of the McCarthy rule, we note that the task is a pragmatic one, which necessarily involves consideration of all surrounding facts and circumstances relevant to the claimant’s ability to safeguard his or her legal rights (see, Anonymous v Anonymous, 154 Misc 2d 46, 51; Dumas v Agency for Child Dev., 569 F Supp 831 [SD NY]; Graboi v Kibel, 432 F Supp 572 [SD NY]). Thus, the Workers’ Compensation Board is the proper arbiter of such a determination (see, Liss v Trans Auto Sys., 68 NY2d 15, 19-20). The appropriate role for the courts is simply to determine whether the Board’s determination is supported by substantial evidence (Matter of Hill v Thompson, 61 NY2d 1018).

A review of the record in this case indicates that the Workers’ Compensation Board applied the correct legal standard in determining that claimant was not mentally incapacitated during the relevant two-year interval following his resignation from employment with respondent School District, and that the section 115 toll is not available here. The Board credited medical testimony of a psychiatrist disclosing that claimant was competent to file a workers’ compensation claim in 1967. Additionally, record evidence reveals that claimant applied for and obtained employment, consulted with numerous attorneys and filed discrimination complaints with the Human Rights Commission in an effort to regain his former position during the pertinent period. We are satisfied that, on this record, the Board’s determination is supported by substantial evidence.

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

Order reversed, etc.

       In addition to reversing the Board’s determination, the Appellate Division granted claimant’s claim for compensation benefits on the ground that his mental breakdown was a compensable work-related accident, and remitted the matter to the Workers’ Compensation Board for further proceedings not inconsistent with the Court’s decision (see, Matter of Cerami v Rochester City School Dist., 148 AD2d 807 [Mar. 9, 1989], supra). On remittal, the Board tentatively awarded claimant a wage of $116.69, stating conclusively: ''[occupational disability, notice and causal relation established for schizophrenia/manic depression. Date of disability: 6/24/67.” The Board subsequently reduced the award to $77.12 per week. On a second appeal, the Appellate Division affirmed the Board’s ruling that claimant sustained a compensable, causally related disability (see, Matter of Cerami v City of Rochester School Dist., 187 AD2d 763 [Nov. 5, 1992]). Respondents School District and Board seek concurrent review of the Appellate Division’s November 5, 1992 and March 9, 1989 orders. The earlier nonfinal order is reviewable pursuant to CPLR 5501 (a) (1) because it necessarily affects the November 5,1992 order, which finally determines this proceeding.


author: Smith, J.

text:
    [624 NE2d 683, 604 NYS2d 546]
    In the Matter of Vito J. Settineri et al., Respondents, v Robert J. DiCarlo et al., Appellants, et al., Respondents. Arthur Bramwell, Proposed Intervener. (Proceeding No. 1.) In the Matter of Phillip A. Donohue et al., Respondents, v Robert J. DiCarlo et al., Appellants, et al., Respondents. Arthur Bramwell, Proposed Intervenor. (Proceeding No. 2.)
    Submitted October 28, 1993;
    decided November 1, 1993

      APPEARANCES OF COUNSEL

      Robert S. Meyers, Brooklyn, for appellants.

      Dorn & Corley, P. C, Brooklyn (Aaron D. Maslow of counsel), for Vito J. Settineri and others, respondents.

      Rosenthal, Vallarlo, Leventhal & Coffinas, Brooklyn (John M. Leventhal of counsel), for Phillip A. Donohue and others, respondents.
   OPINION OF THE COURT

Order reversed, without costs, and petitions dismissed for reasons stated in the dissenting in part in memorandum of Justice Vincent R. Balletta at the Appellate Division (197 AD2d 724, 726).

Concur: Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa and Levine. Judge Smith dissents and votes to confirm in an opinion.

Smith, J.

(dissenting). I dissent from the decision to reverse the order of the Appellate Division and to permit an outgoing Chairman of the Kings County Republican Party to nominate himself as the Republican candidate for Senator in the 23rd Senatorial District.

The issue here is who has the authority to nominate a Republican candidate for the New York State Senate where a vacancy occurs too late for the normal petitioning process to take place. Under those circumstances the rules of the Republican Party permit the county chairperson(s) (in this case the chairpersons of Kings and Richmond Counties) to select the candidate for the 23rd Senatorial District. This procedure, of course, is subject to the requirements of the Election Law. In the Appellate Division, the contention of the petitioners was that because a primary election had been held and a new county committee selected, that committee had the right to elect a new chairman who would then select the candidate for the Senate. The respondents contended that because there was insufficient time to organize the new county committee before the name of the Senate candidate was required to be filed, the outgoing chairman had the right to choose the candidate and he properly chose himself.

Election Law § 6-158 (6) requires the certificate for a party nomination, other than one made at the primary election, to be filed within seven days after the primary election. Here, four certificates nominating Robert DiCarlo were filed with the Board of Elections. All four certificates were signed by Robert DiCarlo. Two of the certificates were also signed by Olga Igneri, the Chairman of the Richmond County Republican Committee.

The decision of the Appellate Division should be upheld for at least two reasons. First, both the Election Law and our own precedents require that the senatorial candidate be selected by the new county committee chairperson. Thus, a certificate of a party for nomination, other than one made at the primary election, for an office to be filled at the next general election, must be filed only after the primary election (see, Election Law § 6-158 [6]). This permits the relevant persons elected at the primary, in this case, the new county committee, to influence the determination of the candidate of that party. Members of the county committee "shall hold office until the next election at which members of the committee are elected.” (Election Law § 2-106 [4].) While the newly elected members must be certified by the Board of Elections and must proceed to hold an organizational meeting at which a chairman, secretary and treasurer must be selected, this must be done promptly, within 20 days after the primary election. It follows that, as stated by the Supreme Court and the Appellate Division, the outgoing chairperson was functus officio, that is, a person whose job had been completed and who could no longer perform major functions. In addition, both Matter of Torchin v Cohen (286 NY 544) and Matter of McDonald v Heffernan (300 NY 488) are consistent with the view that the outgoing chairman has no authority to select the candidate for State Senate. In Matter of Torchin, this Court ruled that it was improper for an executive committee of a political party to choose a candidate for public office after the election of its successors. A similar ruling was made in Matter of McDonald.

Second, at the heart of this case, in this computer age, is the factual issue of whether the votes for the newly elected county committee members could be canvassed and their election certified in time for a meeting of the new county committee, the election of a new chairperson and the nomination of a Senate candidate within seven days after the primary election. As found by the Supreme Court, of the 1,838 county committee positions, some 1,666 were uncontested. The 172 contested races resulted in the election of 135 people, 24 races where no votes were cast, 11 tie votes and 2 candidates not on the machine. Both the Supreme Court and the Appellate Division made the factual finding that the Board of Elections "could have certified the newly elected committee members within approximately three days” after the primary election (197 AD2d 724, 726). That factual finding is binding on this Court. Thus, there was sufficient time for the new chairman to take office and nominate a candidate.

The order of the Appellate Division should be affirmed.

Order reversed, etc.

       Because the number of county committee persons from Kings County was much larger than the number from Richmond County, in effect, it was the chairperson from Kings County who had the right to choose the candidate for the 23rd Senatorial District.


text:
    In the Matter of Vito J. Settineri et al., Appellants, v Robert J. DiCarlo et al., Respondents. Arthur Bramwell, Proposed Intervenor-Appellant. (Proceeding No. 1.) In the Matter of Phillip A. Donohue et al., Appellants, v Robert J. DiCarlo et al., Respondents. Arthur Bramwell, Proposed Intervenor-Appellant. (Proceeding No. 2.)
    Submitted October 27, 1993;
    decided November 1, 1993
   Motion by petitioners Settineri et al., insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed the denial of a motion to substitute counsel, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion by petitioner Settineri et al. for leave to appeal otherwise dismissed as academic. Motion by proposed intervenor Bramwell for leave to appeal from that part of the Appellate Division order which affirmed the denial of proposed intervenor Bramwell’s motion to intervene dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Darryl Hairston, Appellant, v B. Marc Mogil, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted July 26, 1993;
    decided November 11, 1993
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Courtney Kelly, Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Submitted August 30, 1993;
    decided November 11, 1993
   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. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Bidal Figueroa, Appellant.
    Submitted November 1, 1993;
    decided November 11, 1993
   Motion to dismiss appeal granted and 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 Burger, 70 AD2d 828; People v Casiel, 33 NY2d 791).


text:
    In the Matter of Curtis Rogers, Appellant, v City of New York Department of Correction et al., Respondents.
    Submitted September 7, 1993;
    decided November 11, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of the Estate of Helmut M. Rosenhain, Deceased. Gabriele Hammerstein, Appellant; Irene Tannen et al., as Executrices of the Estate of Fredrick M. Alberti, Deceased, Respondents. Lee R. Pearlman, Intervenor-Respondent.
    Submitted August 30, 1993;
    decided November 11, 1993
   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. Cross motion for the imposition of sanctions denied.

Judge Levine 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 October 25, 1993;
    decided November 11, 1993
   Appeal, insofar as taken from the Appellate Division order of March 22, 1993 dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the Appellate Division order of July 22, 1993 dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution.


text:
    [625 NE2d 587, 605 NYS2d 2]
    In the Matter of David Schiff.
    Decided November 16, 1993
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable David Schiff is suspended, with pay, effective immediately from his office of Justice of the Liberty Village Court, Sullivan County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Jason Nicholas, Appellant, v Victor Herbert, as Superintendent of Collins Correctional Facility, Respondent.
    Submitted September 13, 1993;
    decided November 16, 1993
   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:
    [625 NE2d 588, 605 NYS2d 3]
    In the Matter of New York City Asbestos Litigation (Brooklyn Naval Shipyard Cases). Genevieve Dudick, Individually and as Administratrix of the Estate of Greska Dudick, Deceased, et al., Respondents, v Keene Corporation, Appellant. (And Other Actions.)
    Argued October 13, 1993;
    decided November 18, 1993

      APPEARANCES OF COUNSEL

      McCarter & English (Andrew T. Berry, Richard P. O’Leary and Kevin J. Connell of counsel, of the New Jersey Bar, admitted pro hac vice), for appellant.

      Levy Phillips & Konigsberg, New York City (Steven J. Phillips, Alani Golanski and Jerry Kristal of counsel), and Greitzer & Locks, of the Pennsylvania Bar, admitted pro hac vice, for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Justice Israel Rubin at the Appellate Division (188 AD2d 214; see, Didner v Keene Corp., 82 NY2d 342 [decided today]; Pollicina v Misericordia Hosp. Med. Ctr., 82 NY2d 332 [decided today]).

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


text:
    In the Matter of Kenneth A. Perko, Jr., Appellant, v William J. Davis, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted October 25, 1993;
    decided November 18, 1993
   Motion to amend remittitur, treated as a motion to amend this Court’s order denying leave to appeal denied. [See, 82 NY2d 656.]


text:
    Sylvia Rosenberg, Individually and as Administratrix of the Estate of Sidney Rosenberg, Deceased, Respondent, v Equitable Life Assurance Society of the United States, Appellant.
    Submitted October 18, 1993;
    decided November 18, 1993
   Motion to vacate this Court’s order dated June 11, 1992 [see, 79 NY2d 663], treated as a motion for reargument, dismissed as untimely, with $100 costs and necessary reproduction disbursements.


text:
    [624 NE2d 1032, 604 NYS2d 937]
    The People of the State of New York, Respondent, v Miguel Bonilla, Appellant.
    Decided November 22, 1993

      APPEARANCES OF COUNSEL

      Carrie Lamitie, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that court with directions to remand to Supreme Court to delineate the reasons for its decision, and to hold the appeal in abeyance so it may then review the propriety of the reasons specified by Supreme Court on remand.

Defendant was indicted for criminal sale and possession of a controlled substance and moved, on his attorney’s affirmation, to suppress a vial of crack cocaine and currency recovered after a search by police officers. The source of the affiant’s information and belief was stated to be court records and conversations with the prosecutor, and the affirmation additionally averred, "I have conferred with the defendant in an effort to obtain information necessary for the preparation of his defense.” As to the factual portion of the motion, the affirmation stated: "Upon information and belief, Mr. Bonilla was merely present on a public street, not involved [ ] in any sales of controlled substances.”

The People opposed the motion, alleging facts indicating that defendant was arrested in a buy-and-bust operation. The People did not, however, challenge the sufficiency of defendant’s factual allegations or claim there was a deficiency with respect to the source of the affiant’s information and belief. The motion court’s decision stated simply, "Defendant’s motion for a Mapp/Dunaway hearing is denied.” Defendant moved for reargument, the motion was denied, and defendant then pleaded guilty.

On appeal, defendant argued that summary denial of the suppression motion was erroneous and the People, for the first time, questioned the sufficiency of defendant’s factual allegations. The Appellate Division declined to address the sufficiency question, instead holding that defendant’s motion papers were defective because the allegations made on information and belief were "facially insufficient” as the "source of the information and the grounds for the affirmant’s belief is conspicuously missing.” (193 AD2d 362, 363.) That argument had not previously been raised by the People.

We reverse. As noted in People v Mendoza (82 NY2d 415, 430 [decided today]),

"if neither the People nor the motion court identify a pleading deficiency, an appellate court should generally avoid using such a deficiency as a basis for denying the motion. The People can and often do waive pleading defects (see, People v Millan, 69 NY2d, at 521; People v Taylor, 97 AD2d 381, 381), and while such a waiver of course is not binding on the trial court, the Judge also might have, in the exercise of discretion, chosen not to invoke the defect in denying the motion. When an appellate court in the first instance identifies an inadequacy in defendant’s submission, it deprives the movant of the opportunity to seek leave to cure the defect, often a simple matter.”

In these circumstances the Appellate Division erred in rejecting defendant’s motion papers on the ground that the source of the factual allegations was not made clear. That defect — if indeed there is one — is of a technical nature and could have been cured if the People or the motion court perceived a problem.

Similarly, we do not address the sufficiency of defendant’s factual allegations because the People never challenged the motion on that basis before Supreme Court, and it is unclear whether the motion court’s decision is based on factual insufficiency. We note that the motion court’s decision denying the motion without explanation not only transgresses CPL 710.60 (6), which requires the court to set forth "the reasons for its determination,” but also effectively precludes informed appellate review.

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

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


text:
    [625 NE2d 589, 605 NYS2d 4]
    Michelle Melino, Appellant, v Rhonda L. Lauster et al., Respondents.
    Decided November 22, 1993

      APPEARANCES OF COUNSEL

      Lewis & Stanzione, Catskill (Ralph C. Lewis, Jr., of counsel), for appellant.

      Edward B. Downey, Albany, and Kris T. Jackstadt for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (195 AD2d 653).

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


text:
    [626 NE2d 928, 606 NYS2d 143]
    In the Matter of Yves Chenier, as Director of Manhattan Psychiatric Center, Appellant, v Richard W., a Patient Admitted to Manhattan Psychiatric Center, Respondent.
    Argued October 5, 1993;
    decided November 11, 1993

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General, Albany (Harvey M. Berman and Jerry Boone of counsel), for appellant.

      Stephen J. Harkavy, New York City, Marvin Bernstein and Starr McFerrin-Clancy for respondent.

      O. Peter Sherwood, Corporation Counsel of New York City (Stephen J. McGrath, Molly Zimmerman and Kathleen Albertan of counsel), for New York City Health and Hospitals Corporation, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Supreme Court for entry of a judgment in accordance with this memorandum.

Respondent was originally admitted to petitioner hospital as a voluntary patient. When respondent demanded to be released, petitioner brought this proceeding, pursuant to Mental Hygiene Law § 9.13, for an order allowing it to retain respondent on an involuntary basis. After hearing testimony, the court agreed that retention was appropriate but expressed concern about what it perceived to be hostility toward respondent on the part of his assigned psychiatrist. Accordingly, when it granted the requested retention order, the court added a direction that respondent should be assigned to a different psychiatrist and that he be left on an "open ward” rather than some more restrictive treatment setting.

On petitioner’s appeal, the Appellate Division rejected the contention that the court had exceeded its authority under Mental Hygiene Law § 9.13 (b) by imposing treatment-related conditions as part of its retention order. In ruling against petitioner on this point, the Court invoked the parens patriae responsibility of the courts to oversee the treatment of psychiatric patients and the judiciary’s concomitant duty to ensure that such patients are treated in the least possible restrictive setting (184 AD2d 321). We now reverse and hold that the trial court exceeded the authority conferred by Mental Hygiene Law § 9.13 (b).

We note at the outset that the proceeding before us is now moot, since the 60-day retention order that is the subject of this appeal has expired and there are no indications that either party is still being affected in some way by that order. Nonetheless, we conclude that the appeal should be retained because it satisfies the three critical conditions to the mootness exception in that it presents an issue that (1) is likely to recur, (2) will typically evade review and (3) is substantial and novel (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707).

As to the merits, we hold that in a statutory proceeding brought pursuant to Mental Hygiene Law 9.13 (b) the court did not have the power to impose the treatment-related conditions as part of its retention order. To the extent that the court has authority to oversee the treatment of psychiatric patients (see, e.g., Rivers v Katz, 67 NY2d 485), that authority must be exercised in a different procedural context (see, Matter of Bezio v New York State Off. of Mental Retardation & Dev. Disabilities, 62 NY2d 921). Thus, the trial court’s decision in this case to incorporate certain treatment-related conditions into its retention order exceeded its authority.

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

Order reversed, without costs, and matter remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.


text:
    [627 NE2d 508, 606 NYS2d 588]
    In the Matter of John M. Rudey et al., Respondents, v Landmarks Preservation Commission of the City of New York et al., Appellants, and 1030 Fifth Avenue Corporation, Respondent.
    Argued October 6, 1993;
    decided November 22, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Fay Leoussis and Leonard Koerner of counsel), for appellants.

      Tenzer, Greenblatt, Fallon & Kaplan, New York City (James G. Greilsheimer of counsel), and Berle, Kass & Case, New York City (Robert S. Davis of counsel), for John M. Rudey and another, respondents.

      Richard I. Wolff, New York City, for 1030 Fifth Avenue Corporation, respondent.

      Douglas N. Cogen, New York City, for Municipal Art Society of New York, Inc., amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs. It was arbitrary and capricious in the circumstances presented for the Landmarks Preservation Commission to differentiate between two residents in the same building in setting the timetable for replacement of nonconforming windows in both units.

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


text:
    Continental Insurance Company, Appellant, v AMAX Inc., Respondent, and Insurance Company of North America et al., Appellants, et al., Defendant.
    Submitted September 20, 1993;
    decided November 22, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of plaintiff’s motion to renew, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    Charlotte Hayden, Appellant, v Frank Sieni et al., Respondents.
    Submitted November 15, 1993;
    decided November 22, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]; see, Guaspari v Gorski, 29 NY2d 891).


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Carol E. Huff et al., Respondents. In the Matter of Shahsultan Jaffer, Appellant, v Walter M. Schackman et al., Respondents.
    Submitted November 1, 1993;
    decided November 22, 1993
   Motion to vacate this Court’s October 14, 1993 order denied. [See, 82 NY2d 790.]


text:
    In the Matter of Edward T. Longo, Appellant, v John M. Dolce, as Commissioner of Public Safety of the City of White Plains, et al., Respondents.
    Submitted September 13, 1993;
    decided November 22, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Robert J. Irwin, Jr., Appellant, v Francis L. Giles, as Sheriff of the County of Niagara, et al., Respondents.
    Submitted August 16, 1993;
    decided November 22, 1993
   Motion, insofar as it seeks leave to appeal from the May 28, 1993 Appellate Division order denying petitioner’s motion for rehearing dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the March 12, 1993 Appellate Division order which affirmed Supreme Court’s judgment denying petitioner’s habeas corpus application dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York ex rel. Eugene M. Polin, Appellant, v Frank E. Irvin, as Superintendent of the Wende Correctional Facility, Respondent.
    Submitted September 20, 1993;
    decided November 22, 1993
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Public Service Mutual Insurance Company, Respondent, v Gary Foley et al., Respondents, and Meritplan Insurance Company, Appellant.

      Submitted September 13, 1993;
    decided November 22, 1993
   Motion to vacate this Court’s August 12, 1993 order dismissing the appeal denied. [See, 82 NY2d 712.]


text:
    Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v State of New York, Respondent. (And Another Related Claim.)
    Submitted November 8, 1993;
    decided November 22, 1993
   Motion for reargument and clarification denied. [See, 82 NY2d 736.]


text:
    [626 NE2d 930, 606 NYS2d 145]
    The People of the State of New York, Respondent, v Michael Ferguson, Appellant.
    Decided November 23, 1993

      APPEARANCES OF COUNSEL

      Mark Gimpel, New York City, and E. Joshua Rosenkranz for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Where no formal demonstration of the defendant’s "handedness” had been presented during trial, the prosecutor’s remark to the jury during summation — "[y]ou have been here through the course of the trial and [have] seen [defendant] sitting there. Defendant takes notes with his left hand”— constituted an improper reference to facts not in evidence (see, People v Paperno, 54 NY2d 294, 300-301). Nonetheless, the court’s curative instruction, which directed the jurors to disregard the note-taking comment and clearly indicated that no evidence had been presented concerning whether defendant was left or right handed, was sufficient to ameliorate any prejudice and to ensure that defendant received a fair trial (People v Barnes, 80 NY2d 867, 868; see also, People v Ashwal, 39 NY2d 105, 111).

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine 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:
    [626 NE2d 931, 606 NYS2d 146]
    The People of the State of New York, Respondent, v David Lewis, Appellant.
    Decided November 23, 1993
    APPEARANCES OF COUNSEL

      Jonathan G. Hager, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Sholom J. Twersky of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Whether the police officers had reasonable suspicion to handle defendant’s jacket, which defendant dropped right next to him, involves a mixed question of law and fact (see, People v Hicks, 68 NY2d 234, 238). Where the record supports a determination of such reasonable suspicion, it is beyond the scope of further review by this Court (see, People v Diaz, 81 NY2d 106, 108; People v Cloud, 79 NY2d 786, 786-787; People v Burr, 70 NY2d 354, 360-361, cert denied 485 US 989; People v Hicks, 68 NY2d 234, 238, supra). Evidence in the record supports the Appellate Division’s determination that the officer had reasonable suspicion to handle defendant’s jacket. The record indicates that, in responding to the radio transmission that someone had been shot in a Brooklyn apartment, the police discovered blood in the hallway near the elevator on the same floor on which the apartment was located, and heard arguing and loud music coming from the apartment. Defendant, who was in the apartment, appeared startled when he saw the officers and immediately dropped his jacket to the floor. When the jacket hit the bare floor, the officer heard a metallic "thunk,” picked up the jacket, and recovered a gun.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Bellacosa, Smith and Levine 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:
    Bankers Trust Company, Respondent, v Milton Braten, Defendant, and K.W. International, Inc., et al., Non-party Appellants.
    Submitted September 27, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s contempt orders, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Warren W. Carter, Appellant, v Marvin Goodman, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted September 20, 1993;
    decided November 23, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the issues presented have become moot. Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    County of Columbia, Appellant, v Continental Insurance Company et al., Respondents.
    Submitted October 4, 1993;
    decided November 23, 1993
   Motion for leave to appeal denied as unnecessary on the ground that an appeal lies as of right (CPLR 5601 [a]).

Judge Levine taking no part.


text:
    Belle Endervelt et al., Respondents, v Edward N. Slade, Individually and as Trustee under the Will of Aleck Slade, Deceased, et al., Appellants.
    Submitted September 20, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from that part of the June 1, 1993 Appellate Division order that affirmed Supreme Court’s order denying defendants’ motions to dismiss plaintiffs’ claims of fraud and constructive trust and to strike plaintiffs’ request for a jury trial, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Louis L. Ibekweh, Appellant, v Anna Wims et al., Respondents.
    Submitted October 4, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which reinstated the cause of action alleging harassment, dismissed as untimely (CPLR 5513 [b]). Motion, insofar as it seeks leave to appeal from the Appellate Division order denying plaintiffs motion for reargument, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution.


text:
    Pearl Katz, as Executrix of Benson Katz, Deceased, Appellant, v Bruns Nordeman Rea & Co. et al., Respondents.
    Submitted January 19, 1993;
    decided November 23, 1993
   Motion for leave to appeal dismissed upon the ground that timely substitution has not been made (CPLR 1021).


text:
    In the Matter of Seymour Klagsbrun, Appellant, v David B. Saxe, as Acting Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted November 15, 1993;
    decided November 23, 1993
   Appeal, insofar as it is taken from the September 16, 1993 Appellate Division order denying petitioner’s motion to vacate, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as it is taken from the July 1, 1993 Appellate Division order dismissing the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Linden Boulevard, L.P., Appellant, v Elota Realty Company et al., Respondents.

      Submitted November 1, 1993;
    decided November 23, 1993
   Motion for leave to appeal denied. Cross motion for reargument of defendants’ motion for leave to appeal denied. [See, 82 NY2d 658.]


text:
    Wanita Mente, as Executrix of Orlo Mente, Deceased, et al., Respondents, v Florence Wenzel et al., Appellants.
    Submitted September 27, 1993;
    decided November 23, 1993
   On the Court’s own motion, appeal, insofar as taken from that portion of the Appellate Division order that affirmed the denial of defendants’ motion to hold plaintiff Wanita A. Mente in contempt, dismissed, without costs, upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution (see, Cohen and Karger, Powers of the New York Court of Appeals § 43 [d]); appeal, insofar as taken from that portion of the Appellate Division order that affirmed the denial of defendants’ motion to hold nonparties Raymond M. Schlather and Terry Doane in contempt, dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of defendants’ motion to hold plaintiff Wanita A. Mente in contempt, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    Frances P. Neumark, Appellant, v Matthias Neumark, Respondent.
    Submitted September 13, 1993;
    decided November 23, 1993
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions, etc., denied.


text:
    In the Matter of C. Robert Outhouse, Individually and as President of the Cayuga County Sheriffs Unit, Cayuga Local 806, Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Respondent, v Francis Benton, as Chairman of the Cayuga County Civil Service Commission, et al., Respondents, and William C. Quigley, Appellant.
    Submitted September 13, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal, 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:
    Robert A. Phillips et al., Respondents-Appellants, v John Serbalik, Appellant-Respondent. (Action No. 1.) John Serbalik, Appellant-Respondent, v Robert A. Phillips et al., Respondents-Appellants. (Action No. 2.)

    Submitted September 7, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s July 3, 1992 order, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Cross motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Randolph Rossi, Appellant, v George Bartlett, as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted October 4, 1993;
    decided November 23, 1993
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic. Judge Levine taking no part.


text:
    Bart Schwartz, Appellant, v 38 Town Associates, Respondent and Third-Party Plaintiff-Respondent. J & S Security Systems, Inc., Third-Party Defendant-Respondent.
    Submitted October 12, 1993;
    decided November 23, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which denied permission to make a further motion for clarification, 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 dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of the Conservatorship of Anna E. Steel, Deceased. John A. Steel, Appellant; Burton M. Fine, Respondent.
    Submitted October 12, 1993;
    decided November 23 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order entered February 4, 1993, dismissed as untimely (CPLR 5513 [b]); motion for leave to appeal otherwise dismissed upon the ground that the other Appellate Division orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    James Walsh, Individually and as Administrator of the Estate of Daniel Walsh, Deceased, Respondent, v Staten Island Obstetrics & Gynecology Associates, P.C., et al., Defendants, and Ellis N. Sisskind et al., Appellants.
    Submitted September 20, 1993;
    decided November 23, 1993
   Motion for leave to appeal denied. Cross motion for the imposition of sanctions denied.

Judge Levine taking no part.


text:
    [632 NE2d 447, 610 NYS2d 138]
    City of New York Environmental Control Board, Respondent, v H.S.C. Management Corporation, Appellant.
    Argued November 11, 1993;
    decided December 15, 1993

      APPEARANCES OF COUNSEL

      Cohen & Hochman, New York City (Robert Ligansky of counsel), for appellant.

      O. Peter Sherwood, Corporation Counsel of New York City (Kathleen Alberton and Stephen J. McGrath of counsel), for respondent.
   OPINION OF THE COURT

Order modified, with costs to plaintiff, by remitting the case to Supreme Court, New York County, for entry of a judgment in the principal sum of $25,600, with any appropriate interest, and, as so modified, affirmed for the reasons stated in the memorandum at the Appellate Division (191 AD2d 267). We add only that we have reduced the principal amount of the judgment to reflect that the parties have settled and discontinued so much of the action as pertained to three orders which amounted to $4,250 in fines and penalties.

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


text:
    [631 NE2d 100, 609 NYS2d 158]
    The People of the State of New York, Respondent, v Raheime Pinchback, Appellant.
    Argued November 10, 1993;
    decided December 15, 1993

      APPEARANCES OF COUNSEL

      Jonathan Garelick, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that probable cause for the issuance of a warrant to search his home was lacking because the affidavit supporting the warrant application failed to establish a nexus between his home, located at 130-12 Inwood Street in Queens, and the alleged criminal narcotics activity on a nearby streetcorner. The affiant asserted that he observed defendant’s brother entering the home after engaging in apparent drug sales at the intersection adjacent to his home and, after leaving the home, possessing a clear plastic bag from which he repeatedly retrieved small plastic baggies for apparent narcotics transactions. Additionally, the affidavit avers that defendant’s brother returned to that address after receiving money from others engaged in apparent and confirmed drug sales at the intersection, and that another suspected dealer was seen retrieving a bag of drugs from a car parked in the private driveway at 130-12 Inwood Street for apparent sales on the same corner. Contrary to defendant’s contentions, the record contains "information sufficient to support a reasonable belief that * * * evidence of a crime may be found” at the targeted location, and thus supports the finding of probable cause below (People v Bigelow, 66 NY2d 417, 423; see also, GPL 690.10 [4]; 690.40 [2]).

Defendant also argues that he was denied effective assistance of counsel by his attorney’s failure to object to the admission of previously suppressed statements. A review of the record and the circumstances of the case leads us to conclude that defense counsel’s omission, adequately explained on the record as trial strategy — albeit unsuccessful — did not deprive defendant of meaningful representation (see, People v Jackson, 70 NY2d 768, 769; People v Baldi, 54 NY2d 137, 146).

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

Order affirmed, in a memorandum.


text:
    [631 NE2d 102, 609 NYS2d 160]
    In the Matter of Stanley Henry, Individually and on Behalf of Chanry Communications, Ltd., Appellant, v James W. Wetzler, as Commissioner of the New York State Department of Taxation and Finance, et al., Respondents.
    Argued November 11, 1993;
    decided December 15, 1993

      APPEARANCES OF COUNSEL

      Thomas P. Schulz, Farmingdale, Richard Paul Stone and Barbara L. Weisberg for appellant.

      Robert Abrams, Attorney-General, Albany (Julie S. Mereson, Jerry Boone and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, an officer of a company that owns, publishes and distributes several shopping newspapers, commenced this CPLR article 78 proceeding to challenge a determination of the Tax Appeals Tribunal requiring payment of sales and use taxes due on certain purchases of equipment and electricity by the company that occurred between 1982 and 1985 (see, Tax Law § 1105 [a], [b]; § 1110). It is undisputed that the equipment and electrical power in question were used in the production of petitioner’s newspapers, which carry paid advertisements and are distributed to the public without charge.

Petitioner argued before the Department of Taxation and Finance that the sale transactions in issue were free from taxation under Tax Law § 1115 (a) (12), which exempts from sales and use tax certain equipment that is used "directly and predominantly in the production of tangible personal property * * * for sale” (see also, § 1115 [c]). The Tax Appeals Tribunal rejected this argument, stressing that petitioner’s newspapers are not themselves sold and that the payments petitioner’s company receives from advertisers are for the advertising services it provides and not for the newspapers themselves. The Appellate Division confirmed this determination, expressly rejecting petitioner’s claim that the statutory exemption was available in his circumstances and noting that his other claims were "either meritless or not properly before th[e] Court due to petitioner’s failure to raise them at the administrative level” (183 AD2d 57, 61).

On this appeal taken by petitioner as of right (see, CPLR 5601 [b] [1]), we conclude that respondent’s determination regarding petitioner’s entitlement to the Tax Law § 1115 (a) (12) and (c) exemption not only was rational, but was the most reasonable view of the statute. A "sale” is defined as "[a]ny transfer of title or possession or both * * * in any manner or by any means whatsoever for a consideration” (§ 1101 [b] [5]; see also, 20 NYCRR 526.7 [a] [1]). The revenues petitioner’s company received from advertisers were not consideration offered in exchange for the "transfer of title or possession” of the newspapers that the equipment and electricity were used to produce. Thus, it cannot be said that the equipment and electricity were used for the production of tangible personal property that was manufactured "for sale.”

We also reject petitioner’s argument that respondent’s construction of the statute brings it into conflict with First Amendment principles by singling out shopping newspapers such as petitioner’s for unfavorable tax treatment while other news entities are afforded an exemption. The flaw in petitioner’s argument is that, unlike the statutes in Minneapolis Star v Minnesota Commr. of Revenue (460 US 575) and Arkansas Writers’ Project v Ragland (481 US 221; see also, Leathers v Medlock, 499 US 439), this tax scheme is not directed at the press in general or at a particular class of news entities. Rather, it is a set of "generally applicable economic regulations” designed to ensure that the incidence of the tax falls only on the last transaction in the production chain (Minneapolis Star v Minnesota Commr. of Revenue, supra, at 581). Under the statutory scheme, the exemption is denied to any business that does not produce a product "for sale.” Its application to petitioner’s business thus presents no "constitutional problems” (id., at 581).

Petitioner’s final contention that he should not have been assessed penalties and interest pursuant to Tax Law § 1145 because his failure to pay the sales and use tax was not "willful” was not raised before the appropriate administrative bodies and is therefore not preserved for our review.

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

Judgment affirmed, with costs, in a memorandum.


text:
    [631 NE2d 104, 609 NYS2d 162]
    The People of the State of New York, Respondent, v Dwayne Bello, Appellant.
    Argued November 11, 1993;
    decided December 15, 1993
    APPEARANCES OF COUNSEL

      Robert P. Rickert, Syracuse, for appellant.

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gary T. Kelder of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

CPL 310.10 provides that once a jury has retired to deliberate, it "must be continuously kept together under the supervision of a court officer or court officers.” In People v Webb (78 NY2d 335) we held that a defendant may waive the CPL 310.10 jury sequestration requirement (id., at 340). Here, defendant argues that such waivers must be made by the accused personally, and that his attorney’s waiver on the record was insufficient. We disagree.

In Webb, both the defendant and his attorney expressly agreed to the waiver (id., at 337; see also, People v Paul, 79 NY2d 970, 971). Nothing in Webb, however, required that defendant personally consent to the waiver, or that the record state that counsel discussed the matter with defendant and that he knowingly and intelligently waived the sequestration requirement. Indeed, in Webb we concluded that "the sequestration provision does not implicate fundamental rights that are an integral part of the trial”; rather, the requirement "is entirely statutory and reflects no established common-law right of the defendant” (78 NY2d 335, 339-340, supra; see, id., at 340, n). Thus, in this case — where counsel stipulated before the court, on the record and in the presence of defendant, that the jury be permitted to go home overnight after it had commenced deliberations — we hold that such consent by counsel effectively waived the statutory sequestration requirement (see, Schneckloth v Bustamonte, 412 US 218, 237; People v Ferguson, 67 NY2d 383, 390; People v Rosen, 81 NY2d 237, 244-245).

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

Order affirmed, in a memorandum.


text:
    [631 NE2d 105, 609 NYS2d 163]
    Gary Ebert, Respondent, v New York City Health and Hospitals Corporation et al., Appellants.
    Argued November 10, 1993;
    decided December 15, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Kristin M. Helmers, Leonard Koerner and Stephen J. Mc-Grath of counsel), for appellants.

      Edelman & Edelman, P. C., Brooklyn (David M. Schuller and Robert J. Berman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court should be modified, without costs, by imposing the 3% interest rate on the judgment, as prescribed in McKinney’s Unconsolidated Laws of NY § 7401 (5) and (6) (New York City Health and Hospitals Corporation Act § 20 [5], [6]; L 1969, ch 1016, § 1, as amended) in conjunction with General Municipal Law § 50-k; the judgment and orders otherwise brought up for review should be affirmed in all other respects, without costs.

Appellant New York City Health and Hospitals Corporation (NYCHHC) is ultimately the real defendant in interest under the judgment because it must indemnify its employee, defendant Doctor Escaño. The Appellate Division ruled that:

"Since the action against the New York City Health and Hospitals Corporation has been dismissed, and because the 3% interest rate provided for in McKinney’s Unconsolidated Laws of NY § 7401 would apply only to it, we conclude that the clerk may properly calculate the interest on the judgment against Dr. Escaño using the rate of 9%” (186 AD2d 621, 623-624).

We disagree with that portion of its ruling. The rate of interest on judgments is 9% per annum (CPLR 5004), except where otherwise provided by statute. Here, section 7401 (5) prescribes a 3% rate of interest against NYCHHC with respect to any judgment or accrued claim it is obligated to satisfy. The provisions are not inconsistent and the particular one, calling for 3% under ordinary canons of statutory construction, should prevail.

Plaintiffs argument that there is neither a judgment nor an accrued claim pending against NYCHHC, as specified by section 7401 (5), cannot prevail. A de facto accrued claim exists against NYCHHC because it is inevitably and unavoidably responsible to its indemnitee, Doctor Escaño. The essential purpose of the statute should prevail over pure formalism.

Since NYCHHC must indemnify its officers and employees pursuant to General Municipal Law § 50-k and since any judgment payable under that provision shall be payable from the public moneys of the corporation (McKinney’s Uncons Laws of NY §7401 [6], added by L 1979, ch 673, §9), NYCHHC stands in place of its employee, Doctor Escaño. Ultimately NYCHHC cannot escape payment of the judgment at issue against Doctor Escaño and, thus, becomes by operation of law the real party in interest, obligated to pay only the 3% interest. The otherwise affirmed judgment against Doctor Escaño should bear that lower rate of interest.

We have reviewed all other arguments, pertinent and reviewable under this Court’s grant of leave to appeal, and conclude that they are without merit.

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

Judgment of Supreme Court and orders of the Appellate Division brought up for review modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [631 NE2d 569, 609 NYS2d 563]
    Herbert C. Baldwin, Appellant, v William Degenhardt, Respondent.
    Argued November 9, 1993;
    decided December 15, 1993

      APPEARANCES OF COUNSEL

      Joseph A. Ermeti, Sidney, and Albert E. Clune for appellant.

      Julio E. Urrutia, Syracuse, and John Trop for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and a new trial granted for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division (189 AD2d 941, 943-944).

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


text:
    [631 NE2d 106, 609 NYS2d 164]
    The People of the State of New York, Respondent, v Walter Brown, Appellant.
    Argued November 9, 1993;
    decided December 16, 1993

      APPEARANCES OF COUNSEL

      Joseph A. Barrette, Syracuse, and Robert H. Whorf for appellant.

      William J. Fitzpatrick, District Attorney of Onondaga County, Syracuse (Gordon J. Cuffy, Gary T. Kelder and Loretta R. Kilpatrick of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

Defendant was convicted in Syracuse City Court of patronizing a prostitute in the fourth degree (Penal Law § 230.03). County Court, Onondaga County, affirmed the conviction. Defendant’s principal argument on appeal to this Court is that it was reversible error for the Trial Judge to deny his request for a jury charge on the affirmative defense of entrapment (Penal Law § 40.05). We affirm, finding no evidentiary basis on this record to warrant the requested instruction.

A trial court must charge entrapment on a defendant’s request where the evidence adduced at trial, when viewed in the light most favorable to the defendant, reasonably and sufficiently supports the defense (see, People v Butts, 72 NY2d 746, 748-750; People v Watts, 57 NY2d 299, 301). Defendant bore the burden of establishing entrapment by a preponderance of the evidence (Penal Law § 25.00 [2]), that is, to demonstrate that: (1) he was actively induced or encouraged to commit the offense by a public official; and (2) such inducement or encouragement created a "substantial risk” that the offense would be committed by defendant who was not otherwise disposed to commit it (Penal Law § 40.05; People v Butts, supra, at 750-751; People v Alwadish, 67 NY2d 973, 974).

There was trial testimony adduced by the People that at approximately 10:45 p.m. on May 22, 1991 a male undercover police sergeant dressed as a female was standing near a street corner in the City of Syracuse when defendant pulled over to the adjacent curb in front of him. The undercover officer testified that he approached the front passenger window of the car and asked defendant if he was looking for a date; defendant said he was; the officer asked defendant how much he was spending; defendant said "20 or 25”; the officer asked defendant if he wanted oral sodomy for 25, and defendant said yes. He directed defendant to drive around the corner, which defendant did, and back-up police units arrested him. An undercover police lieutenant positioned in a nearby unmarked surveillance vehicle overheard the conversation and corroborated its contents. The undercover officers and the defendant agreed that the conversation lasted approximately 15 to 30 seconds.

By contrast, defendant testified that while driving to pick up food he stopped at a stop sign at the intersection in question, where a man dressed as a woman approached his vehicle, asked him what he was looking for, and offered to perform oral sodomy for money. Defendant testified he did not respond to the offer. He denied ever agreeing to exchange money for sex or voluntarily pulling over when he turned the corner.

Under no reasonable view of this evidence could a jury have found that the statutory requirements of an entrapment affirmative defense were satisfied. Defendant’s testimony denying that he committed the proscribed conduct does not alone support or defeat the requested charge (see, People v Butts, supra, at 748-750; Mathews v United States, 485 US 58, 62). The testimony of the undercover officers demonstrates that they merely afforded defendant an opportunity to commit the offense, which standing alone is insufficient to warrant an entrapment charge (see, Penal Law § 40.05; People v Thompson, 47 NY2d 940, 941; see also, Mathews v United States, supra, at 66). Merely asking a defendant to commit a crime is not such inducement or encouragement as to constitute entrapment.

Defendant’s remaining contentions are without merit.

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

Order affirmed, in a memorandum.


text:
    [631 NE2d 108, 609 NYS2d 166]
    The People of the State of New York, Respondent, v Pedro Odiat, Appellant.
    Argued November 16, 1993;
    decided December 16, 1993

      APPEARANCES OF COUNSEL

      Frances A. Gallagher, New York City, and Philip L. Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Howard B. Sterinbach and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was indicted, inter alla, on charges of robbery in the first and second degrees and assault in the first degree arising out of an alleged robbery of a Bronx grocery store proprietor. At a Sandoval hearing the prosecutor proposed to cross-examine defendant at trial on a prior felony conviction of attempted criminal sale of a controlled substance and two misdemeanor convictions for assault and criminal possession of a weapon, together with the underlying acts of the convictions. However, the prosecutor expressed some unfamiliarity with the actual facts of those cases. The record is ambiguous as to whether defendant was present during the hearing; there is no recital on the record that he was present, and at one point in the hearing the court asked: "[c]an you bring this fellow down when you get a chance?” The court ultimately determined that the People would be permitted to inquire whether defendant had been convicted of two unspecified misdemeanors and the felony attempted drug sale, but not about the underlying acts of that felony conviction.

At trial, as part of his defense, defendant testified at length about his prior drug dealings. Claiming that he had been a cocaine seller for 10 years and that the victim had been his supplier on 20 or 25 occasions, defendant testified that it was the victim who had initially attacked him over an unpaid drug purchase and that he acted in self-defense. The jury acquitted defendant of the robbery counts, but convicted him of the assault.

Defendant appealed claiming a deprivation of his right to be present during the Sandoval hearing (see, People v Dokes, 79 NY2d 656). The Appellate Division affirmed (191 AD2d 183), holding that the case fell within the exception to the presence requirement enunciated in Dokes if the defendant’s presence would have been "superfluous” (People v Dokes, supra, at 662). It based this holding on the defendant’s lengthy trial testimony concerning his prior drug dealings and the trial court’s Sandoval ruling which provided for only limited use of defendant’s prior record. We now remit to Supreme Court for a reconstruction hearing to determine whether defendant was present during the Sandoval hearing.

In People v Dokes, we held that "except in circumstances where the nature of the defendant’s criminal history and the issues to be resolved at the Sandoval hearing render the defendant’s presence superfluous, the hearing should not be conducted without the presence of the accused” (id., at 662). We disagree with the Appellate Division that the superfluous presence exception set forth in Dokes is applicable here. Neither the prosecutor nor the defense attorney was fully able to apprise the Sandoval court of the underlying acts of defendant’s prior convictions, and the outcome of the Sandoval hearing was "not wholly favorable” to defendant (People v Favor, 82 NY2d 254, 267). Thus, "the surrounding circumstances do not negate the possibility that defendant might have made a meaningful contribution to the colloquy” (id., at 267).

Nor, on this record, do we find defendant’s presence to have been "superfluous” based upon his testimony at trial concerning his drug transactions. First, the superfluousness inquiry under Dokes focuses on the nature of defendant’s record and the issues to be resolved at the Sandoval hearing (People v Dokes, supra, at 662). Second, such an analysis could not encompass defendant’s misdemeanor convictions, which were not consistent with the defense he presented at trial, and the Appellate Division’s holding that their admission must have been insignificant to the jury is a test of prejudice rather than superfluousness, a criterion we have recently declined to adopt in this context (see, People v Favor, supra, at 267).

Upon remittal, if it is determined that defendant was not present during the Sandoval hearing, a new trial must be ordered; if it is determined that defendant was present, the judgment of conviction should be amended to reflect that result.

Chief Judge Kaye and Judges Simons, Titone, Hancock, Jr., Smith and Levine concur; Judge Bellacosa concurs on constraint of People v Favor (82 NY2d 254, 268), noting his dissent in that case.

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


text:
    In the Matter of Ansonia Associates et al., Respondents, and Thomas Soja, Individually and as President of Ansonia Tenants’ Coalition, Inc., et al., Appellants, v New York State Division of Housing and Community Renewal, Respondent.
    Submitted November 22, 1993;
    decided December 16, 1993
   Motion by Thomas Soja et al. for leave to cross-appeal dismissed as untimely (CPLR 5513).


text:
    Carol Levy, Respondent, v Dror Levy, Defendant. Erez Levy, Appellant.
    Submitted November 1, 1993;
    decided December 16, 1993
   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:
    In the Matter of Anthony Ricco, Appellant, v Frank Irvin, Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted November 1, 1993;
    decided December 16, 1993
   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:
    [631 NE2d 110, 609 NYS2d 168]
    Lynn L. Comes et al., Appellants, v New York State Electric and Gas Corporation, Respondent.
    Argued November 17, 1993;
    decided December 20, 1993

      APPEARANCES OF COUNSEL

      Paul William Beliz, P. C., Buffalo (Russell T. Quinlan of counsel), and Cyril A. Krenzer, P. C, Honeoye Falls, for appellants.

      Levene, Gouldin & Thompson, Vestal (John L. Perticone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Lynn Comes was employed by the general contractor hired by defendant to construct a building on defendant’s land. He sustained personal injuries after his employer directed him to lift and carry a 14-foot steel I-beam unassisted. Comes and his wife, suing derivatively, commenced this action against defendant alleging violations of Labor Law §§ 200 and 241 (6).

Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty "is that the party charged with that responsibility have the authority to control the activity bringing about the injury” (Russin v Picciano & Son, 54 NY2d 311, 317). Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v Stout, 80 NY2d 290, 295).

Comes’ injury was caused by lifting the beam (plaintiffs allege no other dangerous condition on the premises), and there is no evidence that defendant exercised supervisory control or had any input into how the steel beam was to be moved. Defendant did hire a construction inspector to visit the work site; however, the inspector’s duties were limited to observing the work and reporting to the contractor safety violations by the employees.

Alternatively, plaintiffs contend defendant is liable under section 200 even if it did not exercise control over the operation because it had actual or constructive notice of the unsafe manner in which the work was performed. They rely on Nagel v Metzger (103 AD2d 1, 9). We note that proper equipment was present on the site here and thus defendant’s inspector had no reason to believe that Comes’ employer would require him to carry the steel beam unassisted. But more to the point, this Court has not adopted the reasoning of Nagel and imposed liability under the statute solely because the owner had notice of the allegedly unsafe manner in which the work was performed. Accordingly, the Appellate Division correctly dismissed plaintiffs’ Labor Law § 200 claim.

In contrast to section 200, section 241 (6) of the Labor Law imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers (Russin, supra). Plaintiffs’ section 241 (6) cause of action was properly dismissed, however, because plaintiffs allege only violations of general safety standards of the Industrial Code, not concrete specifications imposing a duty on defendant (see, Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 503-505).

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

Order affirmed, with costs, in a memorandum.


text:
    [631 NE2d 112, 609 NYS2d 170]
    The People of the State of New York, Respondent, v Robert L. Van Buren, Appellant.
    Argued November 17, 1993;
    decided December 20, 1993

      APPEARANCES OF COUNSEL

      Clark J. Zimmermann, Batavia, for appellant.

      Robert C. Noonan, District Attorney of Genesee County, Batavia, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the order of the Genesee County Court reinstated.

A Grand Jury indicted defendant Van Burén for, among other things, the felony of driving while intoxicated (see, Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]). A person who drives while intoxicated or alcohol-impaired and who has been previously convicted of driving while intoxicated or alcohol-impaired within the preceding 10 years "shall be guilty of a class E felony” (Vehicle and Traffic Law § 1193 [1] [c]). The only evidence submitted by the prosecutor to the Grand Jury as prima facie proof of defendant’s prior conviction was a certificate of conviction for driving while intoxicated (DWI), indicating that within the last 10 years a Robert L. Van Burén had been convicted in Genesee County for a DWI violation under Vehicle and Traffic Law § 1192. No additional evidence as to the identity of the previously convicted individual was presented.

Defendant filed omnibus motions seeking, inter alla, dismissal or reduction of the felony count, arguing that there was insufficient prima facie proof before the Grand Jury of the predicate conviction. County Court held that there was no competent evidence identifying defendant as the person named Robert L. Van Burén who had been convicted of the prior offense referred to. in the certificate of conviction. Accordingly, the court, on the motion to inspect the Grand Jury minutes and to reduce the felony charge, directed that count one of the indictment be reduced to driving while intoxicated, as a misdemeanor, with leave to the People to take such remedial action as authorized by CPL 210.20 (1-a) and (6). On the People’s appeal, the Appellate Division unanimously reversed and reinstated the DWI felony count. We now reverse and reinstate the order of the County Court.

CPL 190.65 provides that the evidence before the Grand Jury upon which an indictment is based must be legally sufficient to establish a prima facie case and furnish a reasonable cause to believe that the person charged committed the offense. " 'In determining whether the People have reached this stage, all questions as to the quality or weight of the proof should be deferred. In other words if the prosecutor has established a prima facie case, the evidence is legally sufficient "even though its quality or weight may be so dubious as to preclude indictment or conviction pursuant to other requirements” ’ ” (People v Jennings, 69 NY2d 103, 115). Legally sufficient evidence is defined in CPL 70.10 (1) as "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’.

To make a prima facie showing that the offense of felony DWI (Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]) has been committed, sufficient proof must be adduced before the Grand Jury to establish that the person charged has a prior conviction for driving while intoxicated or alcohol-impaired within the last 10 years. That a person named Robert L. Van Burén was convicted of driving while intoxicated within the preceding 10-year period even in the same county did not constitute prima facie proof that defendant was the person previously convicted of DWI within the last 10 years. The certificate of conviction standing alone, without some further, connecting evidence tending to show that defendant was the same Robert L. Van Burén named in the certificate, was insufficient to "establish every element of [the] offense charged” (CPL 70.10 [1]; cf., People v Vollick, 148 AD2d 950, affd 75 NY2d 877).

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

Order reversed, etc.


text:
    John R. Davis, Jr., Appellant, v Bonnie J. Davis, Respondent.
    Submitted November 8, 1993;
    decided December 20, 1993
   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:
    Alfred Ghartey, Appellant, v Gem Davidson et al., Respondents.
    Submitted October 18, 1993;
    decided December 20, 1993
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Margaret Savage, as Supervisor of Clinical Laboratories, Appellant, v Margaret Hamburg, as Commissioner of Health of the City of New York, Respondent.
    Submitted October 18, 1993;
    decided December 20, 1993
   Motion, insofar as it seeks leave to appeal from the Appellate Division order which dismissed the proceeding, dismissed as untimely. 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.


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 December 6, 1993;
    decided December 20, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that petitioner is not aggrieved by the order of the Appellate Division which denied his motion for leave to appeal to that Court on the express ground that he was entitled to appeal as of right to that Court.


text:
    In the Matter of Alfred Spremo, Jr., Appellant, v Angelo Graci et al., as Justices of the Supreme Court of the State of New York, Respondents.
    Submitted October 12, 1993;
    decided December 20, 1993
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which denied petitioner’s motion to strike certain materials from the record, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Alfred Spremo, Jr., Appellant, v Arthur W. Lonschein, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted October 12, 1993;
    decided December 20, 1993
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    [631 NE2d 113, 609 NYS2d 171]
    In the Matter of Irwin Cohen, Respondent, v Richard Koehler, as Commissioner of the Department of Correction of the City of New York, Appellant.
    Argued November 18, 1993;
    decided December 21, 1993

      APPEARANCES OF COUNSEL

      O. Peter Sherwood, Corporation Counsel of New York City (Fred Kolikoff and Larry A. Sonnenshein of counsel), for appellant.

      Paul L. Dashefsky, Smithtown, for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court and the order of the Appellate Division brought up for review should be reversed, with costs, and the petition dismissed.

Petitioner, a probationary Correction Captain, could have been demoted to Correction Officer without a hearing unless he established that the demotion was for an improper reason or in bad faith (see, Matter of Johnson v Katz, 68 NY2d 649, 650; Matter of York v McGuire, 99 AD2d 1023, 1024, affd 63 NY2d 760). Respondent Department of Correction presented evidence that petitioner had failed to inspect roll call, had failed to respond to a breach of security, had disobeyed a direct order to transfer prisoners in response to the breach, and had sexually harassed a subordinate, supporting the conclusion that petitioner’s performance was unsatisfactory and the demotion was in good faith. On this record, we agree with the dissenting Justices at the Appellate Division that the purported evidence of bad faith failed to raise a triable issue of fact.

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

Judgment of Supreme Court and order of the Appellate Division brought up for review reversed, etc.


text:
    Leon Allen et al., Appellants, v Dwight C. Blum, Respondent, et al., Defendants.
    Submitted October 4, 1993;
    decided December 21, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of plaintiffs’ motion for leave to amend their complaint, 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, with $100 costs and necessary reproduction disbursements.


text:
    Sondra Bauernfeind, Individually and as Administratrix of the Estate of John Bauernfeind, Deceased, Appellant, v Albany Medical Center Hospital et al., Respondents.
    Submitted November 8, 1993;
    decided December 21, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of plaintiff’s motion to vacate, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Levine taking no part.


text:
    Dennis Cetta et al., Appellants, v Coca-Cola Company et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted October 18, 1993;
    decided December 21, 1993
   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, with $100 costs and necessary reproduction disbursements.


text:
    Chew Wah Bing et al., Plaintiffs, and Chan Ming, Appellant, v Sun Wei Association, Inc., et al., Respondents.
    Submitted October 12, 1993;
    decided December 21, 1993
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved and upon the further ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Richard Daum et al., Appellants, v Pauline Young et al., Respondents.
    Submitted November 1, 1993;
    decided December 21, 1993
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed so much of Family Court’s order as denied petitioners’ application to hold respondents in contempt, 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.


text:
    Annest Y. Dukes, Individually and as Administratrix of the Estate of Nathaniel Dukes, Deceased, et al., Appellants, v Edna Rotem et al., Respondents.
    Submitted December 13, 1993;
    decided December 21, 1993
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, unless the appellant within 10 days files a stipulation for judgment absolute. No appeal lies to the Court of Appeals where the Appellate Division has granted permission to appeal to this Court from an order of the Appellate Division granting a new trial or hearing in an action where the appeal to the Appellate Division was from an order entered on an appeal from the Civil Court of the City of New York absent the filing by the appellant of a stipulation for judgment absolute in the event of an affirmance (see, NY Const, art VI, §3 [b] [3], [7]; CPLR 5602 [b] [2] [iii]; Cohen and Karger, Powers of the New York Court of Appeals § 53, at 243-244; § 65, at 290-291).


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Sheila Abdus-Salaam et al., Respondents.
    Submitted December 13, 1993;
    decided December 21, 1993
   Motion, insofar as it seeks leave to appeal from the June 1, 1993 Appellate Division order, dismissed as moot; insofar as it seeks leave to appeal from the August 26, 1993 Appellate Division order, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; and, insofar as it seeks leave to appeal from the April 15, 1993 Appellate Division order, denied. Motion for expedited review, etc., dismissed as academic.


text:
    In the Matter of Shahsultan Jaffer, Appellant, v Sheila Abdus-Salaam et al., Respondents.
    Submitted October 4, 1993;
    decided December 21, 1993
   On the Court’s own motion, appeal insofar as taken from the June 1, 1993 Appellate Division order, dismissed as moot; insofar as taken from the August 26, 1993 Appellate Division order, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; and, insofar as taken from the April 15, 1993 Appellate Division order dismissed upon the ground that no substantial constitutional question is directly involved. Motion for relief in the nature of a stay and other incidental relief denied.


text:
    Park Lexington Co., Inc., Respondent, v Andre Hyman, Respondent, and Amos Lior, Appellant.
    Submitted November 15, 1993;
    decided December 21, 1993
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the orders of the Appellate Term of Supreme Court (see, NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Tomkins PLC et al., Respondents, v Bangor Punta Consolidated Corp. et al., Appellants, et al., Defendants.
    Submitted November 8, 1993;
    decided December 21, 1993
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Cross motion for the imposition of sanctions denied.


text:
    [631 NE2d 114, 609 NYS2d 172]
    The People of the State of New York, Respondent, v Anton Michalek, Appellant.
    Decided January 11, 1994

      APPEARANCES OF COUNSEL

      Anton Michalek, pro se, and McKenna & Schneier, Valley Stream (Alan Schneier of counsel), for Anton Michalek, appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

A pretrial in camera Sandoval hearing was held in the instant case for which there is no transcript in the record, at which the trial court determined that the People would be permitted to question defendant concerning a prior New York felony conviction, but not about the underlying facts of that conviction. At trial, shortly before defendant was to testify, the court reopened the Sandoval hearing and determined that the People would also be permitted to inquire of defendant regarding two recent New Jersey convictions as to which defendant had pleaded guilty but had not yet been sentenced, as well as the underlying facts of those convictions. Since it cannot be ascertained from the record whether defendant was present for either stage of the Sandoval hearing, and because the outcomes of both stages were "not wholly favorable” to defendant (People v Favor, 82 NY2d 254, 267), the case must be remitted to Supreme Court for a reconstruction hearing to determine whether defendant was present during both stages of the hearing (People v Odiat, 82 NY2d 872).

As to defendant’s claim that the trial court’s Sandoval ruling, which permitted the People to question him regarding convictions for which he had not yet been sentenced, violated his Fifth Amendment privilege against self-incrimination, we find this issue unpreserved because of defendant’s failure to specify this constitutional objection (see, People v Pavao, 59 NY2d 282, 292, n 3).

Upon remittal, if it is determined that defendant was not present during either stage of the Sandoval hearing, a new trial must be ordered; if it is determined that he was present during both stages, the judgment of conviction should be amended to reflect that result.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur in memorandum; 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 modified, etc.


text:
    Loretta DeGrijze, Respondent, v Richard DeGrijze, Appellant.
    Submitted November 15, 1993;
    decided January 11, 1994
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the Appellate Division order dismissing an appeal from a determination entered upon default (CPLR 5511).

Judge Titone taking no part.