text:
    The People of the State of New York, Respondent, v Bruce Wood, Appellant.
    Argued February 20, 1992;
    decided April 2, 1992

      APPEARANCES OF COUNSEL

      John B. Garrity, Jr., Public Defender (David Steinberg of counsel), for appellant.

      William V. Grady, District Attorney (Alfred T. Tallakson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant was convicted of murdering a female acquaintance during the early morning hours of March 8, 1979. The two had met in a bar earlier in the night and returned to the victim’s apartment. After consensual sexual relations defendant struck the victim on the head repeatedly with a heavy glass bottle filled with pennies and then strangled her to death with a brassiere. At trial, the defendant asserted the affirmative defense of extreme emotional disturbance, admitting that he had killed the victim but requesting a jury verdict of manslaughter instead of murder (see, Penal Law § 125.25 [1] [a]). On this appeal, he contends that because he did not actively contest the People’s version of the facts, the trial court committed reversible error and deprived him of a fair trial by admitting into evidence several photographs and color slides of the victim and the crime scene.

The general rule is stated in People v Pobliner (32 NY2d 356, 369; see also, People v Stevens, 76 NY2d 833): photographs are admissible if they tend "to prove or disprove a disputed or material issue, to illustrate or elucidate other relevant evidence, or to corroborate or disprove some other evidence offered or to be offered.” They should be excluded "only if [their] sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v Pobliner, supra, at 370 [emphasis added]).

The nature and manner of the killing were material and relevant to prosecution of the murder indictment and the defendant could not make it otherwise by admitting that he had killed the victim but contending that he had done so under the influence of an extreme emotional disturbance. The questioned exhibits illustrated the severity and calculated nature of the wounds and tended to disprove defendant’s claim that he was totally out of control at the time of the killing, factors critical in assessing defendant’s defense of extreme emotional disturbance. Inasmuch as the exhibits were related to material issues in the case, we find no error in their admission (see, People v Pobliner, 32 NY2d 356, 369, supra; People v Stevens, 76 NY2d 833, 835, supra). Moreover, contrary to the dissent, the photographs and slides should not have been excluded merely because they " 'portray[ed] a gruesome spectacle and * * * tend[ed] to arouse passion and resentment against the defendant’ ” where, as here, the "sole purpose” for offering the exhibits was not to arouse the emotions of the jury or to prejudice the defendant (People v Pobliner, supra, at 369-370; see also, People v Stevens, supra).

Defendant also contends that some of the photographs and slides should not have been received because they were cumulative. The People offered 44 exhibits, many of them showing similar scenes and views of the evidence. The submission of so many similar photographs may raise a legitimate question for the trial court as to whether the District Attorney is offering them solely to arouse the emotions of the jury or to prove his or her case. Here, however, the trial court concluded that each exhibit was relevant and necessary to refute defendant’s claim of extreme emotional disturbance and we find no abuse of discretion in its rulings, as a matter of law. "When relevance is demonstrated, the question as to whether on balance the jury should be permitted to view such photographs is addressed to the sound discretion of the trial court” (People v Stevens, supra, at 835).

Titone, J.

(dissenting). I cannot agree with my colleagues in the majority that defendant’s constitutional right to a fair trial was not impinged when the prosecution was permitted to deluge the jury with a barrage of 44 horrid and gruesome photographs and slides of the battered and unclothed body of the homicide victim, including a number graphically depicting her in the postmortem examination room prior to her autopsy. The virtual wholesale introduction of this highly inflammatory evidence could only have served, under the circumstances of this case, to have aroused the passions and the resentment of the jury against defendant and to have kept it from fairly and objectively considering the issues before it.

Photographs taken of a homicide 'victim after death, even if relevant to a material issue in the case, are admissible only if, on balance, their probative value can be said to outweigh their prejudicial effect (see, People v Stevens, 76 NY2d 833, 835; see also, People v Bell, 63 NY2d 796, 797; cf, People v Pobliner, 32 NY2d 356, 369-370). While this latter determination is necessarily committed to the sound discretion of the trial court, that discretion must be exercised within certain bounds (see, People v Stevens, supra, at 835). Those bounds, in my view, were clearly transgressed here.

At trial, defendant did not contest having committed the homicide in the manner that the People alleged, but merely contended that he acted under the influence of extreme emotional disturbance and therefore should be found guilty of manslaughter instead of murder. Even assuming that the People’s photographic evidence retained some slight degree of relevance despite this concession, it seems clear to me that, on balance, the trial court should not have admitted the numerous prints and slides into evidence — at least not on a practically wholesale basis (see, Richardson, Evidence § 131, at 104 [Prince 10th ed]). As Justice Brown aptly noted in his dissent below: "[N]o purpose was served by inundating the jury with numerous [photographic exhibits] depicting the same gory scene from different angles and distances, to say nothing of the five autopsy prints” (172 AD2d 707, 713).

Accordingly, I must respectfully dissent.

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Marie D. Volcjak, Claimant, v Cherry Lane Motors, Inc., et al., Respondents. Workers' Compensation Board, Appellant. (Proceeding No. 1.) In the Matter of Camille Costa, Claimant, v Charles F. Noyes et al., Respondents. Workers' Compensation Board, Appellant. (Proceeding No. 2.)
    Argued February 19, 1992;
    decided April 2, 1992

      APPEARANCES OF COUNSEL

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

      Joel M. Gluck for respondents.
   OPINION OF THE COURT

Memorandum.

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

In each case, the claimant was almost 60 years old when her husband died of injuries sustained in the course of employment. Upon turning 60, claimants became eligible for, and shortly thereafter began receiving, Social Security survivors’ benefits. When the workers’ compensation death benefit awards were rendered, claimants were receiving survivors’ benefits, and thus under the plain language of Workers’ Compensation Law § 16 (1-c), the Board should have applied the statutory offset.

That section provides, in pertinent part:

"Where the death occurs on or after January [1, 1978], and the spouse is receiving the survivors insurance benefits under the social security act, the death benefit payable under this section shall be reduced in accordance with the provisions of table No. 1 below”. (Emphasis added.)

As former Presiding Justice Mahoney, writing for a unanimous Appellate Division, correctly held, the proper inquiry under this statute is whether, at the time of an award of death benefits, the spouse "is receiving” survivors’ benefits (see, Matter of Goodman v Pollio Dairy Prods., 147 AD2d 833, 835, lv denied 74 NY2d 606 [applicability of offset "is to be determined as of the date of the award of death benefits”]; Matter of Washington v Vogue Metalcraft, 91 AD2d 804 [no offset where spouse is not actually receiving, although eligible for, survivors’ benefits]). If the spouse "is receiving” survivors’ benefits, the law unambiguously requires an offset.

We reject the Board’s argument that the statute’s reference to date of death evinces a legislative intent that the claimant be eligible for and receiving survivors’ benefits as of that date for the offset to apply. The statutory reference to death occurring on or after January 1, 1978 simply reflects the date the legislation took effect. (See, L 1977, ch 675, §86 [1]; see also, Minkowitz, Practice Commentaries, McKinney’s Cons Laws of NY, Book 64, 1992 Pocket Part, Workers’ Compensation Law § 16, at 63 ["The benefits of a surviving spouse * * * are subject to being reduced, after January 1, 1978, by a percentage of the spouse’s share of survivors insurance benefits”].)

Nor is the reference to the "date of death” in Workers’ Compensation Law § 16 (7) relevant here. That provision merely makes clear that in computing the offset, "any increase in benefits under the Social Security Act that occurs after the date of death shall not be considered” (4 Larson, Workmen’s Compensation Law § 97.35 [a], at 18-35). What is at issue in the present case is not how the offset is to be computed but whether it is available at all.

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

Order affirmed, with costs, in a memorandum.

       Workers’ Compensation Law § 16 (7) provides:

        "In computing the offsets under subdivisions one-c and two-a of this section any increase in survivors insurance benefits under social security that occurs after the date of death shall not be considered, and any such offset shall be equally applicable to the survivors insurance benefits under the social security act which are received retroactively but such offset shall not apply to increases of such benefits received retroactively.” (Emphasis added.)


text:
    The People of the State of New York, Respondent, v Thomas Roberts, Also Known as Thomas Robinson, Also Known as Lester Bowles, Appellant.
    Decided April 2, 1992

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney (Diana Fabi Samson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

An experienced undercover officer purchased a gram of cocaine from defendant inside a Manhattan apartment, which provided the basis for a search warrant for the premises. The officer returned to the apartment one week after the first purchase and bought another gram of cocaine from defendant. After leaving the building, the officer immediately radioed to his backup team that the "buy had gone down.” The backup team appeared at the apartment within five minutes to execute the warrant, and arrested defendant and other occupants of the apartment. The undercover officer was not present during the search or arrest, but went to the station house later that evening and identified defendant through a one-way mirror. This identification occurred less than five hours after the officer had seen defendant in the apartment.

The People argue that the hearing court properly ruled that the station house identification was admissible as a confirmatory procedure (see, People v Wharton, 74 NY2d 921; see also, People v Morales, 37 NY2d 262). We agree. Although the People failed to establish that the identification procedure was not suggestive, testimony presented at the Wade hearing did establish that the officer’s identification, only hours after his second face-to-face transaction with defendant, "constitute!)!] the ordinary and proper completion of an integral police procedure” (People v Wharton, 74 NY2d, at 922-923, supra).

Defendant’s primary argument is that police identifications should not be considered confirmatory unless they have been preceded by a "drive-by” to assure that the right individual has been taken into custody (see, People v Wharton, 74 NY2d, at 922, supra; People v Morales, 37 NY2d, at 271-272, supra [drive-bys present in both cases]). We decline to impose such a per se requirement. Courts should be especially vigilant to assure that any identifications that have not been shown to be free of suggestive taint — such as confirmatory showups — are nevertheless reliable. Although a drive-by is one way to assure reliability, it is not the only way. We note that in this case the search warrant was executed only minutes after the undercover officer left the apartment. That substantially reduced the risk that the wrong person would be taken into custody and the risk of a later misidentification.

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

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


text:
    Carol A. Owen, Individually and as Administratrix of the Estate of John Owen, Deceased, Plaintiff, v R.J.S. Safety Equipment, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. Orange County Fair Speedway, Inc., et al., Third-Party Defendants-Appellants. (Action No. 1.) Carol A. Owen, Individually and as Administratrix of the Estate of John Owen, Deceased, Respondent, v Orange County Fair Speedway, Inc., et al., Appellants. (And a Third-Party Action.) (Action No. 2.)
    Decided April 2, 1992

      APPEARANCES OF COUNSEL

      Martin H. Weisfuse for appellants.

      Duncan W. Clark for Carol A. Owen, respondent.

      Stephen J. Gaba for R.J.S. Safety Equipment, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

The record before the court on the motions for summary judgment demonstrates that plaintiffs decedent had paid a fee for the privilege of being admitted to the pit area of the Orange County Fair Speedway, where the accident that caused his death occurred. Since admission to the pit area was a necessary condition to decedent’s participation in the race, General Obligations Law § 5-326, which is operative when an owner or operator of a recreational facility has received "a fee * * * for the use of [the] facilit[y],” is applicable. We do not consider whether the decedent, who defendants claim was a professional race car driver, was a “user” of the recreational facility within the meaning of General Obligations Law § 5-326, since that issue was not raised before the trial court. Accordingly, since there is no cognizable basis for withholding application of the statute, the release the decedent signed purporting to exonerate the track owner and race promoter from liability for injury must be deemed unenforceable, and it cannot serve as a basis for dismissing plaintiffs complaint (cf., Lago v Krollage, 78 NY2d 95, 101 [General Obligations Law § 5-326 not applicable where only fee was one paid in connection with decedent’s application to become a member and licensee of a race promotion organization rather than for the use of a particular racetrack]).

Nor is the affirmative defense of assumption of risk which defendants asserted a viable ground for dismissing the complaint as a matter of law. Plaintiffs submissions included expert affidavits indicating that the contour of the track’s retaining wall, as well as the design of its guardrail and the placement of barrels near the guardrail, was unique and created a dangerous condition over and above the usual dangers that are inherent in the sport of auto racing. Although plaintiffs decedent may have been an experienced race car driver who assumed the risks of injury that ordinarily attend auto races, these affidavits were sufficient to create a triable question of fact as to whether defendants’ alleged negligence, if any, engendered additional risks that "do not inhere in the sport” and, if so, whether the decedent should be deemed to have assumed those risks by voluntarily participating in the race (see, Turcotte v Fell, 68 NY2d 432, 444).

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

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


text:
    The People of the State of New York, Appellant, v Thomas E. Paul, Respondent.
    Decided April 2, 1992

      APPEARANCES OF COUNSEL

      R. Michael Tontillo, District Attorney (Kathleen H. Pohl and Jeffrey L. Taylor of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, and case remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not passed upon on the appeal to that court. Defendant expressly consented, in the presence of counsel, to waiver of the CPL 310.10 jury sequestration requirement (People v Webb, 78 NY2d 335).

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


text:
    The People of the State of New York, Appellant, v Andre Acosta, Respondent.
    Submitted February 24, 1992;
    decided April 2, 1992
   Motion to dismiss appeal denied.

Judge Alexander taking no part.


text:
    The People of the State of New York ex rel. John Foote, Appellant, v Joseph Stancari, as Warden, Westchester County Penitentiary, et al., Respondents.
    Submitted February 24, 1992;
    decided April 2, 1992
   Motion for leave to appeal dismissed upon the ground that petitioner has been released from custody and his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648). Motion for poor person relief dismissed as academic.


text:
    Joseph Nestor et al., Respondents, v John P. Tilden, Ltd., Appellant.
    Submitted March 2, 1992;
    decided April 2, 1992
   Motion for reargument of motion for leave to appeal denied; motion for the imposition of sanctions denied. Cross motion for the imposition of sanctions denied. [See, 79 NY2d 849.]


text:
    Sibley Corporation, Plaintiff-Respondent, v Victor Clovis, Defendant and Third-Party Plaintiff-Appellant. Syracuse Newspapers et al., Third-Party Defendants-Respondents.
    Submitted March 2, 1992;
    decided April 2, 1992
   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. Motion for poor person relief dismissed as academic. Motion for reargument of motion for leave to appeal dismissed as untimely. [See, 77 NY2d 873.]


text:
    In the Matter of Children of Bedford, Inc., et al., Appellants, v Angelo Petromelis et al., Constituting the Crime Victims Board of the State of New York, Respondents.
    Decided April 3, 1992

      APPEARANCES OF COUNSEL

      Leon Friedman, Jeffrey S. Goldstein and Arthur N. Eisenberg for appellants.

      Robert Abrams, Attorney-General (Susan L. Watson of counsel), for respondents.
   OPINION OF THE COURT

Reargument ordered and, upon reargument, following remand by the Supreme Court of the United States, order reversed, with costs, judgment declaring Executive Law § 632-a unconstitutional under the First Amendment to the US Constitution granted and determination of the Crime Victims Board, dated October 26, 1987, annulled (Children of Bedford v Petromelis, — US —, 116 L Ed 2d 767 [Jan. 13,1992]).

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


text:
    Birk Iron Works, Inc., Respondent, v Van Tulco, Inc., et al., Appellants.
    Submitted February 24, 1992;
    decided April 3, 1992
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Cross motion for imposition of sanctions denied.

Judges Simons and Alexander taking no part.


text:
    William Eller et al., Appellants, v Doubleday & Company, Inc., Respondent.
    Submitted February 18, 1992;
    decided April 3, 1992
   Motion by plaintiff Eller for leave to appeal dismissed upon the ground that as to him the order of the Appellate Division does not finally determine the action within the meaning of the Constitution; motion by the remaining plaintiffs for leave to appeal denied with $100 costs and necessary reproduction disbursements.

Judge Simons and Alexander taking no part.


text:
    The People of the State of New York, Respondent, v William Russell, Appellant.
    Submitted February 24, 1992;
    decided April 3, 1992
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 71 NY2d 1016.]

Judges Simons and Alexander taking no part.


text:
    Elliot Skluth, Appellant, v United Merchants & Manufacturers, Inc., Respondent.
    Submitted March 30, 1992;
    decided April 3, 1992
   Appeal marked withdrawn.

Judge Simons taking no part.


text:
    Eugene H. Duffy et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, and Albert Engel et al., Proposed Intervenors-Appellants, v James W. Wetzler, Individually and as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Submitted March 30, 1992;
    decided April 7, 1992
   Appeal from so much of the Appellate Division order as affirmed Supreme Court’s orders denying plaintiffs’ postjudgment motions to renew or reargue the denial of class certification, for permission to add interveners, and to supplement plaintiffs’ pleadings, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order appealed from 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 Simons taking no part.


text:
    The People of the State of New York, Respondent, v Patrick Maher, Appellant.
    Argued February 14, 1992;
    decided April 7, 1992

      APPEARANCES OF COUNSEL

      Patrick M. Wall and Oren Root, Jr., for appellant.

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

Memorandum.

The order of the Appellate Division should be modified by vacating defendant’s conviction for criminally negligent homicide and ordering a new trial as to those counts, and otherwise affirmed.

At 4:20 on a Saturday morning, after consuming alcohol, defendant was involved in a minor traffic accident on a New York City street. According to defendant, the driver of the second vehicle became belligerent when defendant attempted to exchange license and insurance information with him and the driver reached into the back seat of his car. Believing that the driver was about to produce a weapon, defendant returned to his own car and fled the scene. A short distance from the first accident defendant struck and killed a pedestrian, Frank Flotteron, crossing West Street.

Defendant was indicted for second degree manslaughter, second degree vehicular manslaughter, driving while intoxicated, and two counts of leaving the scene of an accident. The felony count of leaving the scene of the second, fatal accident was dismissed by Supreme Court. The jury convicted defendant of two counts of criminally negligent homicide (a lesser included offense of manslaughter and vehicular manslaughter) and driving while impaired (a lesser included offense of driving while intoxicated), and the Appellate Division affirmed; as to the remaining leaving the scene count, the jury found defendant not guilty "with justification.” Defendant now seeks reversal of the homicide conviction on two grounds: insufficiency of the evidence, and the court’s refusal to charge justification with respect to those counts. Defendant does not contest the driving while impaired conviction.

We conclude that the evidence was sufficient to support the conviction for criminally negligent homicide. Viewed in the light most favorable to the People, the evidence here established that defendant engaged in criminal risk-creating culpable conduct (see, People v Boutin, 75 NY2d 692, 697). Testimony of the various witnesses estimated defendant’s speed from 50 to 100 miles per hour in a 35-mile-per-hour zone; defendant admitted and witnesses testified that he failed to obey several traffic signals, the last red light only a few blocks from the fatal accident; and the jury found that defendant was driving while impaired.

Defendant argues that there was no evidence this conduct caused Flotteron’s death and that there was no way for him to foresee the presence of Flotteron in the middle of the street at 4 o’clock in the morning. Given the proof of culpable risk-creating conduct, these issues were properly submitted to the jury. We cannot hold, as a matter of law, that defendant’s speeding, in an impaired condition, did not cause Flotteron’s death or that it was unforeseeable that a pedestrian would be crossing a New York City street in the early hours of a Saturday morning.

While rejecting defendant’s sufficiency argument, we conclude that the jury should have been instructed on justification with respect to the manslaughter and vehicular homicide counts.

Upon defendant’s request, and with no objection by the People, the trial court instructed the jury on the justification defense as to the leaving the scene count. The court refused defendant’s request that the jury be given the justification charge with respect to the manslaughter and vehicular homicide counts, concluding that defendant could have left the scene with his car door locked or could have driven at a safe speed to a police or service station. In concluding that the charge was not warranted as to those counts, the trial court also noted defendant’s testimony that he did not see the car following him after defendant went through a red light some time prior to the second accident.

The Appellate Division affirmed, holding that Flotteron’s death took place after the "alleged crisis involving the prior crash” had passed and that, even crediting defendant’s testimony, he was not threatened with any weapon (174 AD2d 383, 386).

Under the "choice of evils” theory of Penal Law § 35.05 (2), conduct that would otherwise constitute an offense is justified when it is "necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.”

Defendant asserts that he chose to engage in certain conduct (speeding) in avoidance of a perceived attack — intentional conduct on his part that formed the basis for the charge of criminally negligent homicide (see, People v Padgett, 60 NY2d 142, 146). Indeed, the trial court charged the jury that it could not find defendant guilty of criminally negligent homicide unless it concluded that he was speeding at the time of the fatal accident. In these circumstances, we agree with defendant that he was entitled to have the jury consider whether his speeding was justified.

If on any reasonable view of the evidence, the jury might have decided that defendant’s actions were justified, the failure to charge the defense constitutes reversible error (see, People v Padgett, supra). It is not for the trial court to hypothesize other reasonable alternatives to the course of action chosen by the defendant. By giving the charge to the jury on the leaving the scene charge, the Judge concluded that one reasonable view of the evidence justified that conduct. Defendant argues, and we agree, that under these circumstances he was entitled to have the jury determine if the manner in which he fled the scene was also justified. That no weapon was observed does not act to bar the charge, but rather is one element of the circumstances that gave rise to the conduct.

Finally, there was no testimony that the emergency had ceased. Defendant stated only that he no longer observed the car following him and that he had started to reduce his speed. It was for the jury to determine whether the threat of harm that the defendant perceived had ceased to exist and if so whether defendant had sufficient time to react prior to the crash.

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Robert D. Thoubboron et al., Appellants, v New York State Department of Civil Service et al., Respondents.
    Argued March 24, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Peter R. Kehoe for appellants.

      Robert Abrams, Attorney-General (Frank K. Walsh, Jerry Boone and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (175 AD2d 443).

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


text:
    In the Matter of Neil W. Moynihan.
    Decided April 30, 1992
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Neil W. Moynihan is suspended with pay, effective immediately, from his office of Judge of the Surrogate’s Court, Schenectady County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Owen S. Mudge.
    Decided April 30, 1992
   OPINION OF THE COURT

On consideration of the termination of this Court’s April 25, 1991 suspension of Honorable Owen S. Mudge from his office of Town Justice of Town of Coeymans and Village Justice of Village of Ravena, Albany County, pursuant to New York State Constitution, article VI, §22 (f), (g) and Judiciary Law § 44 (8) (b), (c), it is determined that the suspension is terminated. [See, 77 NY2d 944.]

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


text:
    The People of the State of New York, Respondent, v Eugene Holman, Appellant.
    Argued March 26, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Sharon D. Gray for appellant.

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

Order affirmed. The record establishes that, in considering defendant’s Sandoval motion, the Trial Judge balanced the probative worth of the evidence against the risk of unfair prejudice to the defendant in accordance with People v Sandoval (34 NY2d 371).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Raes Pharmacy, Inc., Appellant, v Cesar A. Perales, Individually and as Commissioner of Social Services of the State of New York, Respondent.
    Argued March 31, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Jerome I. Sager and Laurie Lombardo for appellant.

      Robert Abrams, Attorney-General (Robert A. Forte and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs. Respondent’s refusal to enroll petitioner as a participating provider was not arbitrary or capricious (see, 18 NYCRR 504.5; see also, Matter of Pell v Board of Educ., 34 NY2d 222).

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Stevenson Equipment, Inc., Respondent, v Chemig Construction Corporation, Doing Business as Gandy Sales Company, et al., Appellants.
    Argued April 1, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Allen H. Weiss for appellants.

      Charles T. Bistany for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (170 AD2d 769).

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


text:
    The People of the State of New York, Respondent, v Patrick Proctor, Appellant.
    Decided April 30, 1992

      APPEARANCES OF COUNSEL

      Alfred O’Connor and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Alexis Kriedman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. Not having raised the issue by motion to vácate or otherwise in the court of first instance, defendant’s argument that there was a failure to comply with the procedures of CPL 400.20 has not been preserved for our review (People v Oliver, 63 NY2d 973; People v Pellegrino, 60 NY2d 636). Defendant’s remaining claim is meritless.

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


text:
    In the Matter of the Claim of Walter Billigmeier, Claimant, v Cres Dry Wall et al., Appellants. Workers' Compensation Board, Respondent.
    Argued March 31, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Robert W. Manning for appellants.

      Robert Abrams, Attorney-General (Elaine Stogel, Theresa E. Wolinski, Jane Lauer Barker, Peter H. Schiff and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (174 AD2d 903).

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


text:
    In the Matter of Transit Casualty Company. Alan Digirol, Appellant; Superintendent of Insurance, as Ancillary Receiver of Transit Casualty Company, Respondent.
    Submitted March 2, 1992;
    decided April 30, 1992
   Motion for reargument and for amendment of remittitur denied with $100 costs and necessary reproduction disbursements. [See, 79 NY2d 13.]


text:
    The People of the State of New York, Appellant, v Christopher McFadden, Respondent.
    Decided April 30, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90).


text:
    The People of the State of New York, Respondent, v Ronnie Matthews, Appellant.
    Argued March 26, 1992;
    decided May 5, 1992

      APPEARANCES OF COUNSEL

      Perry S. Reich for appellant.

      Robert M. Morgenthau, District Attorney (Paula Milazzo and Phyllis A. Monroe of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant failed to preserve for review his principal contentions that the motion for a severance was improperly denied and that the trial court’s charge did not adequately caution the jury to consider the evidence pertaining to each count of the indictment separately. Defendant’s other contentions present no basis for reversal.

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

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    In the Matter of Joseph A. Longo, Appellant, v City of New York et al., Respondents.
    Decided May 5, 1992

      APPEARANCES OF COUNSEL

      Jerold Probst for appellant.

      O. Peter Sherwood, Corporation Counsel (Julian L. Kalkstein of counsel), 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 (178 AD2d 253).

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


text:
    The People of the State of New York, Respondent, v Carlisle Simmons, Appellant.
    Argued April 1, 1992;
    decided May 5, 1992

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

In the course of jury selection, the prosecutor peremptorily challenged three prospective jurors, two black, one white; the black jurors were the only black venirepersons in the 35 member jury pool. Defendant contended that the prosecutor’s use of peremptory challenges to excuse them violated the Equal Protection Clause of the Federal Constitution (US Const 14th Amend; see, Hernandez v New York, 500 US —, 111 S Ct 1859, affg 75 NY2d 350; Batson v Kentucky, 476 US 79). Inasmuch as defendant, who is black, made a prima facie showing of discrimination, the prosecutor bore the burden of coming forward with a racially neutral reason for the strikes (see, People v Bolling, 79 NY2d 317, 320). The prosecutor represented to the trial court that peremptory challenges were directed at these three jurors because they indicated that they were aware of the location of the street where the drug offenses with which defendant was charged allegedly occurred, and that as a matter of practice she excused jurors who were familiar with or knowledgeable about the crime location. We note that the reason given by the prosecutor excluded majority, as well as minority, members of the venire, that it revealed no inherently discriminatory intent, and hence is facially race-neutral (see, Hernandez v New York, 500 US, at —, 111 S Ct, at 1867, supra). That the prosecutor’s explanation is not simply a pretext for discrimination is also borne out by defense counsel’s concession on two occasions before the trial court that the prosecutor was not racially motivated. Thus, Supreme Court’s determination, affirmed by the Appellate Division, that defendant failed to prove discriminatory intent is supported by the record (see, People v Hernandez, 75 NY2d 350, 357, affd 500 US —, 111 S Ct 1859, supra; Batson v Kentucky, supra, at 98, n 21).

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

Order affirmed in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Alen MacWeeney, Inc., Appellant, v Esquire Associates, by its General Partner, Esquire Publishing, Inc., Respondent, et al., Defendants.
    Submitted March 2, 1992;
    decided May 5, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    John F. Coughlin, Sr., et al., Appellants, v General Electric Company et al., Respondents. (And a Third-Party Action.) (And 23 Other Actions.)
    Submitted April 13, 1992;
    decided May 5, 1992
   Motion for reargument of motion for leave to appeal denied. Cross motion for imposition of sanctions denied. [See, 79 NY2d 911.]

Judge Hancock, Jr., taking no part.


text:
    Kevin R. Hackett, Respondent, v Milbank, Tweed, Hadley & McCloy, Appellant.
    Submitted April 10, 1992;
    decided May 5, 1992
   Motion for leave to appeal granted. Motion for a stay denied.

Judge Bellacosa taking no part.


text:
    Kenneth McLoyrd, Appellant, v Jay Pennypacker, Respondent.
    Submitted April 6, 1992;
    decided May 5, 1992
   Motion for reargument of motion for leave to appeal denied. Cross motion for imposition of sanctions denied. [See, 79 NY2d 754.]


author: Hancock, Jr., J.

text:
    Michael Slamow et al., Respondents, v John Del Col, Appellant, et al., Defendant.
    Argued April 1, 1992;
    decided May 7, 1992

      APPEARANCES OF COUNSEL

      Matthew D. Arkin for appellant.

      David W. Silverman for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated by the Appellate Division (174 AD2d 725).

We would but add the following, in response to the dissent. The best evidence of what parties to a written agreement intend is what they say in their writing. Here, the words used in the parties’ contract are clear and unambiguous, and entitle the purchasers to return of their down payment. That this may be a standard clause in a form for the sale of real property suggests even more strongly that the clause should be rewritten if it is indeed inaccurate, rather than for this Court to speculate as to what the parties to a particular transaction could have believed it meant.

Hancock, Jr., J.

(dissenting). I would reverse and reinstate the order of Supreme Court.

The appeal turns on one issue: the meaning of paragraph 23, the mortgage contingency clause in form M 146 — the standard contract of sale for condominiums, prepared by the Committee on Real Property Law of the Association of the Bar of the City of New York. The standard mortgage contingency clause — with the blank spaces for the date and the amount of the lender’s commitment filled in by the parties— provides in pertinent part:

"23. Mortgage Contingency: The obligations of Purchaser hereunder are conditioned upon issuance on or before September 1, 1988 of a written commitment from any Institutional Lender pursuant to which such Institutional Lender agrees to make a loan to Purchaser, at Purchaser’s sole cost and expense, of not less than $201,375.00 * * * Purchaser shall (a) make prompt application to one or more Institutional Lenders for such first mortgage loan”.

The purpose of the typical mortgage contingency clause is simply to relieve the purchaser of the obligation of going through with the contract if mortgage financing is not obtainable in a given amount. No one contends otherwise. The commonly understood meaning of a mortgage contingency clause, as described by Justice Burrows at Supreme Court, is this:

"A mortgage contingency clause in a contract of sale of real estate is for the benefit of a purchaser who has represented that he is only ready, willing and able to purchase if third-party financing is obtainable. In order to enter into the contract and allow purchaser time to obtain the requisite financing the contract is made conditional upon fulfilling the very financing requirement represented by purchaser as necessary. Thus, a purchaser, who has made a good faith estimation of his ability to obtain the requisite financing, is protected from conclusively binding himself to an otherwise impossible contract should his good faith estimation prove incorrect” (emphasis added).

It is not suggested that the Committee on Real Property Law which drafted form M 146 intended that the standard mortgage contingency clause should be given any meaning other than the generally accepted meaning — i.e., one which makes the purchaser’s obligation depend not on the purchaser’s action in applying for a loan but on the willingness of a third party to make a loan. Yet, here the purchasers and the Appellate Division in reversing Supreme Court and, indeed, the majority of this Court read the standard clause as though it says something quite different. Instead of making the contract contingent on a third party’s willingness to make a commitment "of not less than $201,375.00”, they make it contingent upon action by the purchasers; i.e., their act of applying for a loan "of not less than $201,375.00”. Under this construction, the condition is met if the purchasers apply for a loan in any amount equal to or greater than $201,375. In this case, because the purchasers applied unsuccessfully for a loan in the amount of $241,650, the contingency was met and they are relieved of any obligation under the contract. This is so, even though a third party (i.e., any institutional lender) might well have been willing to commit for a loan "of not less than $201,375.00.” Thus, the construction adopted is contrary both to the plain language of the mortgage contingency clause and to its commonly accepted meaning.

The practical result of this construction is to convert the standard mortgage contingency clause into a clause which gives the purchasers a unilateral option to cancel — to be effected by the simple expedient of applying unsuccessfully for a loan in an amount higher than the stipulated sum. It can hardly be thought that the parties could have believed that this was the way the clause was intended to operate. No one suggests that the Committee of the Association of the Bar intended to draft a standard contract containing a clause which could be so easily employed to defeat the purchasers’ obligation.

Nevertheless — although contrary to the ordinarily accepted meaning of a mortgage contingency clause and to the effect of this clause that the parties and the drafters of the clause must have intended — the majority holds that the construction advanced by the purchasers is correct. The argument is that the plain meaning of the contract compels this construction. But the plain meaning, I submit, does just the opposite. The obligation of the purchasers is clearly conditioned on the actions and agreement of a third party, i.e., the "issuance on or before September 1, 1988 of a written commitment from any Institutional Lender pursuant to which such Institutional Lender agrees to make a loan” (emphasis addéd). The contingency does not depend on actions or events within the control of the purchasers. The only reference in clause 23 to an application being made by the purchasers is in the second sentence of the clause, i.e., "[p]urchaser[s] shall (a) make prompt application to one or more Institutional Lenders for such first mortgage loan.” The reference to "such first mortgage loan”, of course, is to the loan "of not less than $201,375.00” referred to in the first sentence in clause 23 for which the lender has issued its commitment.

No case has been cited where the standard mortgage contingency clause has been given the effect which the purchasers advocate here. This construction is contrary to the commonly understood purpose of a mortgage contingency clause, to what appears to be the commonsense meaning of the clause intended by the drafters, and to what, I believe, the parties to this must reasonably have intended. To be sure, clause 23 can easily be redrafted to avoid the purchasers’ construction and to close what Supreme Court aptly describes as "an unfettered escape hatch for a purchaser who would use it to his advantage.” Rejecting the purchasers’ meaning and staying with the commonly understood meaning of the standard clause would obviate the need for any such amendment; and it would avoid what may be the resulting confusion and controversy over the rights of parties under existing form M 146 contracts containing clause 23, as it now reads.

Chief Judge Wachtler and Judges Kaye, Titone, Bellacosa and Yesawich, Jr., concur; Judge Hancock, Jr., dissents and votes to reverse in an opinion; Judge Simons taking no part.

Order affirmed, with costs, in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Wing Ming Properties (U.S.A.) Ltd., Appellant, v Mott Operating Corp. et al., Respondents.
    Argued March 26, 1992;
    decided May 7, 1992

      APPEARANCES OF COUNSEL

      David C. Sprafkin for appellant.

      Peter F. Dwyer for Mott Operating Corp. and others, respondents.

      Maureen R. Green for Bank Central Asia, respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1973, defendants-respondents Mott, Kaplan, Chu and Tam conveyed "all that volume of space and property” above a building located at 5 Chatham Square in Manhattan to plaintiff-appellant’s predecessor in interest. Defendants reserved the right to "maintain the projection” of an existing rooftop air-conditioning unit and room. Plaintiff’s predecessor in interest planned to later transfer the unused development rights of the rooftop airspace, subject to defendants’ reservation, to a contiguous building which it owned. The objective was to increase the Floor Area Ratio (FAR) of the contiguous building, thus allowing a greater height.

In 1985, defendant Kaplan subleased 5 Chatham Square to respondent Bank of Central Asia (BCA) with a specification allowing BCA to "use the roof facilities in connection with any heating, ventilating or air conditioning equipment” and to "alter the entire facade of the Building” up to the second floor level. BCA subsequently removed the existing rooftop air-conditioning equipment and room, erected new air-conditioning equipment, and constructed a facade with parapet walls extending over the rooftop.

Plaintiff-appellant, as successor in interest, commenced this action for trespass, alleging that the new equipment and parapets encroached on the rooftop airspace which was acquired under the 1973 conveyance. Supreme Court granted defendants’ motion for summary judgment dismissing the complaint (148 Misc 2d 680) and the Appellate Division affirmed (172 AD2d 301). This Court granted leave to appeal.

Defendants concede that development rights were conveyed pursuant to the 1973 conveyance. Despite the concession, we agree with the defendants and the courts below, which ruled in their favor, that defendants did not trespass on those development rights. The new rooftop air-conditioning equipment and parapets erected after 1985 by BCA are excluded from the computation of FAR under New York City Zoning Resolution § 12-10. The FAR of 5 Chatham Square and, consequently, plaintiff’s development rights, are therefore unaffected by BCA’s parapets and substituted equipment.

Despite the fact that defendants in 1973 also conveyed a property right for plaintiff to exclusively possess the 5 Chat-ham Square rooftop airspace, no trespass on that right is sufficiently presented to withstand a summary judgment dismissal as to the relief plaintiff seeks in that regard. The variations between the air-conditioning unit and room existing at the time of the 1973 conveyance and the replacement unit and ducts subsequently erected by BCA, and the extent to which the newly constructed parapets rise above the elevation plane of the conveyed airspace, are de minimis at best. Neither injunctive nor monetary relief is warranted. Indeed, plaintiff has not alleged or demonstrated on the record before us that these slight variations negatively affected its property value in any measure.

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

Order affirmed, with costs, in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Respondent, v. Saul Russell, Appellant.
    Argued March 26, 1992;
    decided May 7, 1992

      APPEARANCES OF COUNSEL

      Bruce A. Petito for appellant.

      William V Grady, District Attorney (Bridget Rahilly Steller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did hot abuse its discretion or otherwise err as a matter of law in allowing four lay witnesses — defendant’s roommate, his roommate’s mother, his landlord, and a friend — who did not witness the bank robbery, to identify the defendant as the person depicted as the robber in two bank surveillance photographs (see, People v Byrnes, 33 NY2d 343, 348). Their testimony was clearly relevant inasmuch as the robber’s identity was the central issue in the case and the People presented ample proof that defendant had changed his appearance immediately after the crime by having his beard shaved.

Nor did the testimony of the four noneyewitnesses constitute improper bolstering or an improper opinion about an ultimate fact. The challenged testimony did not concern a previous extrajudicial identification of defendant (see, People v Bonnet, 134 AD2d 436, 437, lv denied 70 NY2d 953) or of the photographs of defendant (see, People v Lindsay, 42 NY2d 9, 12). Rather, given the personal knowledge these witnesses had of defendant’s appearance as of the time when the photographs were taken, their testimony served to aid the jury in making an independent assessment regarding whether the man in the bank photographs was indeed the defendant, a task made more onerous by defendant’s altering his appearance after commission of the crime (see, e.g., United States v Robinson, 804 F2d 280, 282 [4th Cir 1986]; United States v Farnsworth, 729 F2d 1158, 1160 [8th Cir 1984]).

Also unavailing are defendant’s arguments that the four noneyewitnesses’ photograph identifications should have been excluded because they were unduly cumulative and duplicative of the bank tellers’ eyewitness testimony. No objection having been registered as to the number of witnesses presented, this issue was not preserved for review (CPL 470.05 [2]). Beyond that, the bank tellers’ testimony cannot be said to have been duplicated for the tellers were not generally familiar with defendant’s appearance at the time of the robbery. And, although they did identify defendant in court as the bank robber, they never stated that he was the person in the surveillance photographs, only that the photographs accurately portrayed the crime scene and that the man in the photograph was the robber.

Defendant’s remaining contentions are either unpreserved for review or lacking in merit.

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

Order affirmed in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Victor Brancoveanu, Appellant, v Mariana Brancoveanu, Respondent.
    Submitted February 24, 1992;
    decided May 7, 1992
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division dated November 18, 1991, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Male H., a Permanently Neglected Child. St. Christopher-Ottilie, Respondent; Cecelia H., Appellant.
    Submitted March 2, 1992;
    decided May 7, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed that part of Family Court’s order which denied in part a motion to vacate a default, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Garry S. King et al., Appellants, v County of Warren, Respondent.
    Submitted March 16, 1992;
    decided May 7, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying plaintiffs’ motion for leave to renew and/or reargue, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Wurmfeld Associates, P. C., Plaintiff, v Harlem Interfaith Counseling Services, Inc., Appellant, and Mt. Morris West Development Corp. et al., Respondents, et al., Defendants. (Action No. 1.) Resource Planning & Development, Ltd., Plaintiff, v Harlem Interfaith Counseling Services, Inc., Appellant, and Mt. Morris West Development Corp. et al., Respondents, et al., Defendants. (Action No. 2.)
    Submitted March 16, 1992;
    decided May 7, 1992
   Motion for leave to appeal dismissed upon the ground that movant is not aggrieved by the determination at the Appellate Division.


text:
    David Gutter Furs, Respondent, v Jewelers Protection Services, Ltd., Appellant.
    Argued March 25, 1992;
    decided May 12, 1992

      APPEARANCES OF COUNSEL

      Sheila L. Birnbaum for appellant.

      Alexander J. Wulwick and Lawrence Bernstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion for summary judgment granted, and the certified question answered in the negative.

Before moving to a new location, plaintiff, a fur dealer, contracted with defendant to design, install and monitor a burglar alarm system. In December 1986, several weeks after plaintiff occupied its new premises, furs worth about $300,000 were stolen in a nighttime burglary, but the alarm did not sound. In plaintiff’s action for negligence and breach of contract, defendant sought summary judgment on the basis of contractual exculpatory and limitation of liability clauses, but plaintiff claimed that those clauses are unenforceable because defendant was grossly negligent.

Plaintiff’s assertion of gross negligence is based on its expert’s opinion that there should have been two motion detectors, instead of one, on each level; a shock sensor should have been installed; defendant should have ascertained how the inventory would be arranged; and a post-occupancy inspection should have been undertaken. Taken together, these allegations do not raise an issue of fact whether defendant performed its duties with reckless indifference to plaintiff’s rights, and thus the contractual exculpatory and limitation of liability clauses are enforceable (see, Sommer v Federal Signal Corp., 79 NY2d 540, 554 [decided today]).

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

Order reversed, etc.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    The People of the State of New York, Appellant, v David Sotomayer, Respondent.
    Argued March 24, 1992;
    decided May 12, 1992

      APPEARANCES OF COUNSEL

      Charles J. Hynes, District Attorney (Barbara Thomashower, Jay M. Cohen and Leonard Joblove of counsel), for appellant.

      Carol A. Zeldin and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It was reversible error for the trial court to submit to the jury a verdict sheet which, in addition to enumerating the crimes charged and possible verdicts, instructed the jury on the order in which the charges should be considered and the effect of a determination that the prosecution failed to disprove justification. Pursuant to CPL 310.20, a deliberating jury may be provided with a written list itemizing the offenses charged and the possible verdicts thereon. Without the parties’ consent, it was error in this case to submit a verdict sheet that recited more (see, People v Taylor, 76 NY2d 873; People v Nimmons, 72 NY2d 830). Such an error created a risk that the jury’s deliberative process would be "unfairly skewed” (People v Taylor, supra, at 874). Because the ultimate guilt determination was brought into question, such an error cannot be considered harmless (see, People v Brooks, 70 NY2d 896, 898; People v Owens, 69 NY2d 585, 591-592).

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

Order affirmed in a memorandum.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    Lester Fishman, as Executor of the Estate of Arthur Lesser, Deceased, Appellant, v Manhattan and Bronx Surface Transit Operating Authority, Respondent.
    Decided May 12, 1992

      APPEARANCES OF COUNSEL

      John Coreos Levy for appellant.

      Steve S. Efron, Albert C. Cosenza and Wallace D. Gossett for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed and judgment absolute ordered against appellant on the stipulation, with costs, for the reasons stated in the opinion by Justice George Bundy Smith at the Appellate Division (157 AD2d 352).

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


text:
    Margaret Austin, Individually and as Administratrix of the Estate of Michael Austin, Deceased, Appellant, v. City of Buffalo et al., Defendants, and Burnwell Gas of Alden, Inc., et al., Respondents. (And Two Other Actions.)
    Submitted March 23, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks leave to appeal from those portions of the Appellate Division orders that dismissed plaintiffs’ claims against Burnwell Gas of Alden, Inc., Chemi-Trol Chemical Co., RegO Company, and Seimax Wholesale Supply Corp., and from those portions of the Appellate Division orders that dismissed certain portions of plaintiffs’ claims against George D. Wilson, Sr., Chimera Radiator Company, Chimera Radiator Manufacturing Co., Inc., L.B.G. Radiator Company, Inc., and Amherst Radiator Co., dismissed upon the ground that those portions of the orders do not finally determine the actions within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


text:
    Robert F. Cole, Appellant, v City of Buffalo et al., Defendants, and RegO Company, a Division of the RegO Group, Inc., et al., Respondents. (And 15 Other Actions.)
    Submitted March 23, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed plaintiffs’ claims against RegO Company, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from those portions of the Appellate Division orders that dismissed plaintiffs’ claims against Burnwell Gas of Alden, Inc., Chemi-Trol Chemical Co., and Seimax Wholesale Supply Corp., and from those portions of the Appellate Division orders that dismissed certain portions of plaintiffs’ claims against George D. Wilson, Jr., individually, George D. Wilson, Jr., doing business as Chimera Radiator Co. and doing business as Chimera Hamburg Radiator Manufacturing Co., Division Enterprises, Inc. and L.B.G. Radiator Company, Inc., dismissed upon the ground that those portions of the orders do not finally determine the actions within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


text:
    In the Matter of Wesley Demming, Appellant, v Gary C. Dunne, as Assistant Deputy Superintendent of the New York State Police, et al., Respondents.
    Submitted March 2, 1992;
    decided May 12, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Peter Hanczor, Appellant, v Big V Proprietors, Inc., Doing Business as Shoprite Supermarkets, Respondent.
    Submitted February 18, 1992;
    decided May 12, 1992
   Motion for leave to appeal dismissed upon the ground that no appeal lies from an order entered upon default (see, CPLR 5511).


text:
    Gerald A. Harley, Appellant, v Jacqueline A. Harley et al., Respondents.
    Submitted May 4, 1992;
    decided May 12, 1992
   Appeal from so much of the April 8, 1991 Appellate Division order as affirmed the order of Supreme Court denying plaintiffs motion for reconsideration dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution. Appeal from the remainder of the April 8, 1991 Appellate Division order dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal as of right lies from a unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Appeal, insofar as taken from the Appellate Division order denying reargument or, in the alternative, leave to appeal, and the Appellate Division order denying plaintiffs motion to deem prior decisions and orders abandoned, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that these orders do not finally determine the action within the meaning of the Constitution.


text:
    Lloyd Capital Corporation, Respondent, v Pat Henchar, Inc., et al., Appellants, et al., Defendants.
    Submitted April 6, 1992;
    decided May 12, 1992
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    The People of the State of New York ex rel. Edward McDuffy, Appellant, v Thomas A. Coughlin, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted March 30, 1992;
    decided May 12, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York ex rel. Clarence D. McGann, Also Known as John French, Appellant, v Walter R. Kelly, as Superintendent of the Attica Correctional Facility, et al., Respondents.
    Submitted March 9, 1992;
    decided May 12, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Josef Meisels, Respondent, v Alexander Uhr, Also Known as Chaim Uhr, et al., Appellants, and Tzvi M. Ginsberg et al., Respondents. In the Matter of Alexander Uhr et al., Appellants, v Josef Meisels, Respondent.
    Submitted March 9, 1992;
    decided May 12, 1992
   Motion to dismiss appeal denied. [See, 78 NY2d 862.]

Judges Simons and Kaye taking no part.


text:
    Hwesu S. Murray, Appellant, v National Broadcasting Company, Inc., Respondent.
    Submitted April 27, 1992;
    decided May 12, 1992
   Appeal from the Appellate Division’s February 6, 1992 order and appeal, taken from so much of the Appellate Division’s March 10, 1992 order as denied appellant’s motion for clarification and imposed costs, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that neither the February 6 order nor that portion of the March 10 order appealed from finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division’s December 5, 1991 order, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Richard Nickerson, Respondent, v Karen Worytko, Appellant, et al., Defendant.
    Submitted May 4, 1992;
    decided May 12, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Court does not have jurisdiction to entertain the appeal (NY Const, art VI, § 3; CPLR 5601).


text:
    Allan H. Orenstein, Appellant, v Cesar A. Perales, as Commissioner of the New York State Department of Social Services, et al., Respondents.
    Submitted March 23, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying petitioner’s motion to enlarge the record, 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 that part of the Appellate Division order which denied reargument of the motion to enlarge the record, dismissed upon the ground that that portion of that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Rochester Canoe Club, Appellant, v Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, Respondent, and Joseph Cassara, Intervenor-Respondent.
    Submitted April 6, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks to dismiss appeal taken as of right, granted and appeal dismissed with $400 costs and $100 costs of motion upon the ground that it does not lie; motion otherwise denied.


text:
    Lawrence Sullivan et al., Appellants, v City of Buffalo et al., Respondents. (And Another Action.)
    Submitted March 23, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks leave to appeal from those portions of the Appellate Division order that dismissed plaintiffs’ claims against Burnwell Gas of Alden, Inc. and Seimax Wholesale Supply Corp., and from those portions of the Appellate Division order that dismissed certain portions of plaintiffs’ claims against George D. Wilson, Sr., George D. Wilson, Jr., Chimera Radiator Company, Chimera Radiator Manufacturing Co., Inc., Chimera Hamburg Radiator Manufacturing Co., and L.B.G. Radiator Company, Inc., dismissed upon the ground that those portions of the order do not finally determine the actions within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed plaintiffs’ claims against Kenneth Glowacki and James Weed, individually and doing business as Kay-Jay’s Remodeling dismissed as untimely (CPLR 5513 [b]); motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


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    United Arab Shipping Company (S.A.G.), Appellant, v Salman Al-Hashim et al., Respondents.
    Submitted May 4, 1992;
    decided May 12, 1992
   Appeal, insofar as taken from that portion of the Appellate Division order which affirmed Supreme Court’s order denying plaintiff’s motion to renew and vacate an earlier order, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that part of the order appealed from does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from that portion of the Appellate Division order which dismissed as untimely the appeal from the Supreme Court order dismissing the complaint, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


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    Andrea L. Waszkielewicz, Individually and as Administratrix of the Estate of Anthony J. Waszkielewicz, Jr., Deceased, Appellant, v City of Buffalo et al., Respondents.
    Submitted March 23, 1992;
    decided May 12, 1992
   Motion, insofar as it seeks leave to appeal from those portions of the Appellate Division order that dismissed plaintiffs claims against Burnwell Gas of Alden, Inc., Chemi-Trol Chemical Co., RegO Company, and Seimax Wholesale Supply Corp., and from those portions of the Appellate Division order that dismissed certain portions of plaintiffs claims against George D. Wilson, Jr., individually, George D. Wilson, Jr., doing business as Chimera Radiator Company and doing business as Chimera Hamburg Radiator Manufacturing Company, Chimera Radiator Manufacturing Co., Inc., George Wilson and Sons, Inc., Division Enterprises, Inc., L.B.G. Radiator Company, Inc., and Amherst Radiator Co., dismissed upon the ground that those portions of the order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Hancock, Jr., taking no part.


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    The People of the State of New York, Appellant, v James Watt, Respondent.
    Submitted March 16, 1992;
    decided May 12, 1992
   Motion to dismiss appeal denied.


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    The People of the State of New York, Appellant, v Willie L. Maye, Respondent.
    Argued March 26, 1992;
    decided April 30, 1992

      APPEARANCES OF COUNSEL

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for appellant.

      Terence L. Kindlon for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the memorandum at the Appellate Division (173 AD2d 891).

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


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    The People of the State of New York, Respondent, v Floyd Brooks, Appellant.
    Decided May 12, 1992

      APPEARANCES OF COUNSEL

      Jeremy L. Goldberg and Matthew Muraskin for appellant.

      Denis Dillon, District Attorney (Lawrence J. Schwarz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s contention that the People exercised their peremptory challenges in a racially discriminatory manner is unfounded (see, Batson v Kentucky, 476 US 79). As to each of the stricken jurors in question, the record indicates that the prosecution met its burden of coming forward with a racially neutral reason for challenging them (see, People v Simmons, 79 NY2d 1013; People v Hernandez, 75 NY2d 350, affd 500 US —, 111 S Ct 1859).

Defendant’s assertion that the evidence against him was legally insufficient to sustain his conviction for robbery in the first degree is likewise unavailing. Viewing the proof adduced below in a light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that the jury could have rationally found that defendant intended permanently to deprive the undercover police officer of his gun when he took it from him.

We have examined defendant’s remaining contention and find it to be unpreserved for our review.

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

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


author: Fuld, J.

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    The People of the State of New York, Respondent, v. Dominic Clemente, Appellant. The People of the State of New York, Respondent-Appellant, v. Gerard J. Brinkman, Appellant-Respondent.
    Argued February 25, 1960;
    decided April 28, 1960.

      Mordecai Konowitz for Gerard J. Brinkman and Michael Ruggiero for Dominic Clemente, appellants.
    I. The evidence is insufficient to establish defendant Brinkman’s guilt beyond a reasonable doubt. (People v. Trimarchi, 231 N. Y. 263; Poole v. People, 80 N. Y. 645; People v. Lewis, 275 N. Y. 33; People v. Razezicz, 206 N. Y. 249; People v. Flack, 125 N. Y. 324; People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; United States v. Shurtleff, 43 F. 2d 944; People v. Watson, 154 Misc. 667, 245 App. Div. 838; People v. Knapp, 206 N. Y. 373.) II. The Trial Judge erred in permitting evidence of a change in the system of reporting the work and preparing the payment vouchers a year before the alleged conspiracy, as proof from which criminal intent may be inferred. III. The prolixity of the charge and the rapidity with which it was read rendered it improbable or impossible that the jury could comprehend, absorb and retain the instructions, and constituted a denial of the constitutional and statutory rights of defendants. The error was aggravated by the giving of erroneous instructions. (People v. Wallens, 297 N. Y. 57; People v. Murch, 263 N. Y. 285; People ex rel. Battista v. Christian, 249 N. Y. 314.) IV. It was error to refuse proper requests to charge. The error was not cured by adding “ except as already charged.” The refusal of a request to charge concerning reasonable doubt and burden of proof was especially prejudicial because the Trial Judge had erred in his main charge. (Nicola v. United States, 72 F. 2d 780; People v. Hill, 65 Hun 420; People v. Bonifacio, 190 N. Y. 150.) V. Bullis ’ prior testimony before the Grand Jury and the Commissioner of Investigation having been utilized by the District Attorney, it was substantial and prejudicial error to refuse a request by his codefendants for an inspection thereof. (People v. Miller, 257 N. Y. 54; People v. Kelley, 253 App. Div. 430; People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140.) VI. It was substantial and prejudicial error to deny a request to examine the Grand Jury testimony of Nelson which contained inconsistencies with and contradictions of his testimony at the trial. (People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Schainuck, 286 N. Y. 161; People v. Walsh, 262 N. Y. 140.) VII. Substantial and prejudicial error was committed in receiving in evidence prior statements of Brinkman which were not admissions and which were offered by the District Attorney as such but used for an improper and illegal purpose. (People v. Bretagna, 298 N. Y. 323; Reed v. McCord, 160 N. Y. 330; Ferris v. Sterling, 214 N. Y. 249; Collins v. Kelly, 226 N. Y. 180; Coleman v. People, 55 N. Y. 81; People v. Zackowitz, 254 N. Y. 192.) VIII. The use by the District Attorney of prior incompetent testimony of codefendants for the purpose of incriminating Brinkman, and the denial of a motion for a mistrial after the harm had been done, were prejudicial and substantial error. (People v. Bretagna, 298 N. Y. 323; People ex rel. Perkins v. Moss, 187 N. Y. 410; People v. Mleczko, 298 N. Y. 153 ; People v. Zackowitz, 254 N. Y. 192; Coleman v. People, 55 N. Y. 81; People v. Marshall, 306 N. Y. 223.) IX. The prejudicial manner in which the Assistant District Attorney read the prior testimony of defendants to the jury, the denial by the Trial Judge of the request that it be read by a disinterested person, and his insistence that it be read by the Assistant District Attorney deprived defendants of a fair trial. (Barry v. Mutual Life Ins. Co. of N. Y., 53 N. Y. 536; People v. Fielding, 158 N. Y. 542; Berger v. United States, 295 U. S. 78; People v. Carborano, 301 N. Y. 39; People v. Tassiello, 300 N. Y. 425.) X. The length of the trial, the complexity and prolixity of the indictment, the conduct of the Trial Judge and prosecutor, the frequent delays, the unbearable conditions of the courtroom, the illness of jurors, and other prejudicial conditions and circumstances, deprived defendants of a fair trial. The denial of a motion for a mistrial was reversible error. (People v. Buchanan, 145 N. Y. 1; Shushan v. United States, 117 F. 2d 110, 313 U. S. 574; People v. Jelke, 308 N. Y. 56; People v. Prosser, 309 N. Y. 353; People v. Chirieleison, 3 N Y 2d 170.) XI. Defendants were erroneously precluded from proving that the deviations from the contract and the procedures with respect to the vouchers were customary and common practice. (People v. Molineux, 168 N. Y. 264; Altman v. Ozdoba, 237 N. Y. 218; Boyd v. Boyd, 164 N. Y. 234; People v. Duffy, 212 N. Y. 57; Wood v. United States, 16 Pet. [41 U. S.] 342.)

      Frank D. O’Connor, District Attorney (Harvey B. Ehrlich of counsel), for the People of the State of New York, respondent.
    I. The guilt of defendant was established beyond reasonable doubt. (People v. Dunbar Contr. Co., 165 App. Div. 59; People v. Connolly, 253 N. Y. 330; People v. Crossman, 241 N. Y. 138; People v. Sweeney, 213 N. Y. 37; Kelley v. People, 55 N. Y. 565; People v. Bossford, 36 Hun 639, 102 N. Y. 647; People v. McKane, 143 N. Y. 455; People v. Peckens, 153 N. Y. 576; People v. Miles, 123 App. Div. 862, 192 N. Y. 541; People v. Fedele, 366 Ill. 618.) II. Evidence of the change made in the system of reporting work done and materials supplied and in preparing the payment vouchers was properly admitted. (Baker v. United States, 276 F. 283; Beeson v. United States, 90 F. 2d 720; Hodgskin v. United States, 279 F. 85; People v. Stevens, 78 Cal. App. 395; People v. Raymond, 296 Ill. 599; Commonwealth v. Benesch, 290 Mass. 125; State v. Simon, 113 N. J. L. 521; Piquett v. United States, 81 F. 2d 75, 298 U. S. 664; People v. Connolly, 227 App. Div. 167, 253 N. Y. 330; People v. Gaffey, 98 App. Div. 461,182 N. Y. 257.) III. The charge was full, clear and explicit and in conformance with the Code of Criminal Procedure and was comprehended by the jury. The length of the charge and the manner of the delivery thereof was not the subject of objection or exception or request to modify and is not subject to review by this court. (People v. Fish, 125 N. Y. 136; People v. Kelly, 113 N. Y. 647; People v. Cignarale, 110 N. Y. 23; People v. Feld, 305 N. Y. 322; People v. Bester, 297 N. Y. 408; People v. Rosenthal, 289 N. Y. 482.) IV. The refusal of the court to charge in the language requested was not erroneous and defendants were not prejudiced thereby. (People v.
      Dyle, 21 N. Y. 578; United States v. Fox, 97 F. 2d 913; People v. Rubin, 284 N. Y. 392; People v. Trombino, 238 App. Div. 61, 262 N. Y. 689; People v. Smith, 114 App. Div. 513,187 N. Y. 557; People ex rel. Woronoff v. Mallon, 222 N. Y. 456; People v. Lay, 167 Misc. 431, 254 App. Div. 372, 279 N. Y. 737; Kreiner v. United States, 11 F. 2d 722, 271 U. S. 688.) V. The rulings with respect to the inspection of the Grand Jury testimony given and statements made by the codefendant Bullís were correct, and, in any event, appellant was not prejudiced thereby. (People v. Miller, 257 N. Y. 54; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; People v. Martines, 15 Misc 2d 821; People v. Skoyec, 183 Misc. 764; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161.) VI. The court’s rulings denying to appellant examination of all of the Grand Jury testimony of the witness Nelson and granting excerpts thereof did not constitute prejudicial error. (People v. Dales, 309 N. Y. 97; People v. Boniello, 303 N. Y. 619; People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161; People v. Nicoll, 3 A D 2d 64.) VII. The testimony of Brinkman before the Grand Jury was properly received in evidence. (Gangi v. Fradus, 227 N. Y. 452; Koester v. Rochester Candy Works, 194 N. Y. 92; Reed v. McCord, 160 N. Y. 330; Ferris v. Sterling, 214 N. Y. 249.) VIII. The testimony and prior statements of defendants were properly received in evidence. Appellant was not prejudiced thereby. (People v. Feolo, 282 N. Y. 276; People v. Fisher, 249 N. Y. 419; People v. Doran, 246 N. Y. 409; People v. Wargo, 149 Misc. 461; Heike v. United States, 192 F. 83; Poliafico v. United States, 237 F. 2d 97; Metcalf v. United States, 195 F. 2d 213; United States v. Gilbert, 31 F. Supp. 195.) IX. The reading by an Assistant District Attorney of the portions of prior testimony and statements admitted into evidence was within the exercise of the trial court’s sound discretion and in conformity with customary court procedure and pertinent statutes and was not prejudicial to appellant. X. Appellant was afforded a fair trial. (People v. Dunbar Contr. Co., 82 Misc. 174; People v. Mussenden, 284 App. Div. 479, 284 App. Div. 958, 308 N. Y. 558; United States v. Cohen, 145 F. 2d 82, 323 U. S. 797; People v. Van Tassel, 156 N. Y. 561; Heughes v. Board of Educ., 37 App. Div. 180; People v. Cummins, 209 N. Y. 283; People v. Mendes, 3 N Y 2d 120;
      People v. Ohanian, 245 N. Y. 227; People v. Knapper, 230 App. Div. 487; People v. Perrin, 224 App. Div. 546, 251 N. Y. 509.) XI. The court’s rulings limiting cross-examination of witnesses and codefendants as to other and unrelated contracts were proper and appellant was not prejudiced thereby.

      Frank D. O’Connor, District Attorney (Harvey B. Ehrlich of counsel), for the People of the State of New York, appellant.
    The guilt of Brinkman of receiving a bribe was established beyond a reasonable doubt and the court below erred in reversing the conviction of the County Court and in dismissing count 22 of the indictment. (People v. Rainier, 127 App. Div. 47; People v. Clougher, 246 N. Y. 106; United States v. Costello, 221 F. 2d 668; People v. Gaimari, 176 N. Y. 84; People v. Sanducci, 195 N. Y. 361; People v. Lytton, 257 N. Y. 310; People v. Rodawald, 177 N. Y. 408; People v. Taylor, 138 N. Y. 398; People v. Egnor, 175 N. Y. 419; United States v. Feinberg, 140 F. 2d 592, 322 U. S. 726; People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142; People v. Potskowski, 298 N. Y. 299; People v. Rudolph, 303 N. Y. 73; People v. Lee, 308 N. Y. 302.)

      Mordecai Konowits for Gerard J. Brinkman, respondent.
    I. The evidence is insufficient to establish respondent’s guilt beyond a reasonable doubt. It was not proved beyond a reasonable doubt that the house connection was a gift. (People v. Lewis, 275 N. Y. 33; People v. Razezics, 206 N. Y. 249; People ex rel. Perkins v. Moss, 187 N. Y. 410.) II. It was not proved beyond a reasonable doubt that there was a duty imposed on respondent to inspect the work and materials before certifying the vouchers for payment. III. It was not proved beyond a reasonable doubt that respondent had knowledge of the deviations from the contract which were of financial benefit to the contractor. (People v. Dunbar Contr. Co., 215 N. Y. 416; People v. Laman, 298 N. Y. 462.) IV. It was not alleged or proved that respondent was an executive or public officer. (People v. Salomon, 212 N. Y. 446; People v. Clougher, 246 N. Y. 106; People v. Zambounis, 251 N. Y. 94; Fisher v. City of Mechanic-ville, 225 N. Y. 210; United States v. Germaine, 99 U. S. 508.) V. The reversal of the conviction should be affirmed, apart from the insufficiency of the proof, by reason of substantial and prejudicial errors committed at the trial.)
   Fuld, J.

On these appeals taken by both the defendants Brinkman and Clemente and by the People, our study of the record and of the many points raised leads us to the same conclusion as that reached by the Appellate Division: the appealing defendants were proved guilty beyond a reasonable doubt on all counts of which they were convicted except count 22 — as to which the Appellate Division has reversed — and the trial was free of prejudicial error.

We are, however, constrained to comment briefly on the extraordinary fact that the trial lasted for 14 months. Strongly as one must deprecate a jury trial which lasted so long, it is not to be condemned, as urged by the defendants, as a denial of due process solely because of that. The test to be applied here, as in many other due process cases, is whether under all of the circumstances the defendants were accorded a fair trial.

Although the proceedings were long drawn out, and not infrequently interrupted, the record discloses that the testimony adduced by the People, though diffuse and repetitive, was overwhelming and unambiguous; the jurors could not have experienced untoward difficulty in following the evidence, intelligently assessing it and coming to a reasoned conclusion. Moreover, the defense itself must share the responsibility for the length of the trial. The prosecution’s case, it is true, was in large part cumulative, but time after time when an objection might well have stopped further introduction of such evidence, the defense remained silent and, indeed, actually added to the massiveness of the record by unduly extended cross-examination.

In short, then, there was no violation of the requirements of due process; the defendants had a fair trial and no prejudicial error was committed.

The Appellate Division judgments should in all respects be affirmed.

Chief Judge Desmond and Judges Froessel, Burke and Foster concur with Judge Fuld ; Judges Dye and Van Voorhis concur in the result.

In People v. Clemente: Judgment affirmed.

In People v. Brinkman: On appeal by defendant: Judgment affirmed. On cross appeal by People: Order affirmed.