text:
    Benjamin Center, Individually and as a Shareholder of Hampton Affiliates, Inc., Appellant, v Hampton Affiliates, Inc., et al., Respondents, et al., Defendants.
    Argued September 3, 1985;
    decided October 22, 1985

      APPEARANCES OF COUNSEL

      Lloyd D. Feld for appellant.

      Jules A. Epstein and Joseph T. Adragna for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to appellant, by reinstating plaintiff’s complaint except those portions of the first, second and fourth causes of action which assert claims against defendants Ingraldi, Goldman, Lakin’s Appliance Stores Broadway, Inc. and Lakin’s Appliance Stores, Inc. acting in their individual capacities and, as so modified, affirmed.

This action arises out of an agreement between plaintiff and the late Frank Silverman in which Silverman agreed to transfer 10 of his 100 shares in defendant Hampton Affiliates, Inc., a predecessor of defendant Hampton Sales, Inc., to plaintiff. At the time of the agreement the shares had been pledged and delivery was not to occur until they were released from the pledge. Although the shares subsequently became available, the agreement was never completed. Instead, Silverman and his estate transferred all of the shares of Sales to the individual and corporate defendants. Defendants now contend that because they purchased the shares for value, in good faith and without notice of any adverse claim that they have a complete defense, as bona fide purchasers, to plaintiff’s claim (see, Uniform Commercial Code § 8-302 [1] [a]; [2]). Plaintiff concedes that the individual defendants took delivery of their shares of stock without notice of his rights. Accordingly, summary judgment was properly granted as to them. There are triable issues of fact, however, on whether the corporate defendant had imputed knowledge of plaintiff’s adverse claim at the time it took delivery because its agent, defendant Gross, an attorney and director of the corporation, had knowledge of Silverman’s obligation to plaintiff.

The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually communicated to it (Farr v Newman, 14 NY2d 183, 187; Henry v Allen, 151 NY 1, 9; see, Restatement [Second] of Agency § 272, at 591). Underlying the rule is the presumption that an agent has discharged his duty to disclose to his principal "all the material facts coming to his knowledge with reference to the subject of his agency” (Henry v Allen, supra, at p 9; Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 43). Defendants do not dispute that the rule applies to the facts of this case but for the "adverse interest” exception.

This exception provides that when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose (People v Kirkup, 4 NY2d 209, 213-214; Benedict v Arnoux, 154 NY 715, 729; Henry v Allen, supra, at pp 9-10; see, Marine Midland Bank v Russo Produce Co., supra, at pp 43-44; Restatement [Second] of Agency § 282 [1], at 611; 2 Mechem, Agency § 815, at 1399-1402 [2d ed]; 2 Pomeroy’s Equity Jurisprudence § 675, at 923-925 [5th ed]). To come within the exception, the agent must have totally abandoned his principal’s interests and be acting entirely for his own or another’s purposes. It cannot be invoked merely because he has a conflict of interest or because he is not acting primarily for his principal (see, Farr v Newman, 14 NY2d 183, 190-191, supra; Henry v Allen, supra, at p 11; Restatement [Second] of Agency § 282 [1] comment c). Defendants’ moving papers contain only conclusory allegations that Gross was seriously conflicted throughout these transactions and that he and Silverman tried to defraud the corporation. These allegations do not establish sufficient adversity as a matter of law to negate imputed knowledge to the corporation at the time it took delivery of the shares.

We agree with the corporate defendant, however, that plaintiff has failed to raise a triable issue of fact on its actual knowledge of his adverse claim prior to delivery of the stock on December 8, 1975, the critical date under the Code for determining defendant Sales’ status as a bona fide purchaser. Although the minutes of the December 8th board of directors meeting and testimony contained in a pretrial deposition indicate that Gross informed the other two directors of plaintiffs claim to stock of Sales, the corporate minutes make it clear that this disclosure came only after the physical acts necessary to transfer title to Silverman’s 50 shares of Sales’ stock had been consummated.

Defendants’ contention that plaintiff lacks standing to maintain his derivative causes of action on behalf of the corporation cannot be conclusively determined at this time (see, Business Corporation Law § 626 [a]). If plaintiff is ultimately successful in this action for specific performance of the agreement to transfer stock to him, he may be entitled to maintain the shareholder’s derivative causes of action unless his right to do so was diminished or impaired by the merger of defendant Affiliates into defendant Sales (see, Business Corporation Law § 906 [b] [3]; Marco v Sachs, 201 Misc 934, affd no opn 279 App Div 1085, affd no opn 304 NY 912; Albert v Salzman, 41 AD2d 501). If the merger had been of the type designed to “freeze out” minority shareholders, then plaintiff, if a qualified shareholder, might well have lost his right to be a shareholder in the surviving corporation and similarly lost his right to present derivative claims (see, Rubinstein v Catacosinos, 91 AD2d 445, 446-447, affd 60 NY2d 890). The merger plan is not contained in the record, however, and there is nothing before us to indicate that the merger was anything but a simple exchange of shares of stock of one corporation for those of another by the supposed sole shareholder, Silverman. Thus, if plaintiff is able to establish his shareholder’s status at the time of the merger by prevailing in his claim to 10% of the Silverman shares, he may be entitled to continue his derivative actions on behalf of the merged corporation. Inasmuch as plaintiffs right to maintain a shareholder’s derivative action depends upon his success on his individual causes of action, the derivative claims should be severed and held pending disposition of plaintiffs individual claims (see, Bernstein v Polo Fashions, 55 AD2d 530, 531).

Finally, plaintiff is entitled to an opportunity to prove that damages do not provide an adequate remedy and that he is entitled to specific performance of the agreement for the transfer of 10 shares of defendants’ corporate stock (see, Waddle v Cabana, 220 NY 18, 26; Baltimore Realty Corp. v Alman, 282 App Div 714, 715; 4 Pomeroy’s Equity Jurisprudence § 1402, at 1036-1037 [5th ed]). We have considered defendants’ remaining contentions and find them without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur; Judge Titone taking no part.

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


source: Caselaw Access Project

license: Public Domain

text:
    Equine Practitioners Association, Inc., Appellant, v New York State Racing and Wagering Board, Respondent.
    Submitted October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Joseph A. Faraldo and Esther Chyzyk Bernheim for appellant.

      Robert Abrams, Attorney-General (Arnold D. Fleischer and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with the memorandum herein, and, as so modified, affirmed.

We reject plaintiffs challenge to the rules promulgated by defendant which govern the substances which may be administered to a horse within various time periods preceding a race. We agree with the Appellate Division, for the reasons stated in the opinion of Justice Sidney Asch (105 AD2d 215), that these rules are rationally related to, and authorized by, the statutory provisions they implement, and thus we affirm the declaration as to their validity. We do not reach plaintiffs challenge to those rules which authorize warrantless searches of all licensees anywhere on racetrack premises. In view of the concession by defendant that these rules do not apply to licensed veterinarians, who are exempt from the proscriptions which such searches are intended to enforce, plaintiff lacks standing to challenge, on the merits, the rules authorizing warrantless searches. Accordingly, we modify the order of the Appellate Division by deleting the declaration insofar as it relates to the rules as to warrantless searches.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Titone concur; Judges Simons and Alexander taking no part.

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Jerome Williams, Appellant.
    Argued October 7, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Susan K. Cable of counsel), for appellant.

      Howard R. Relin, District Attorney (Michael J. Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was charged with robbery of a parking lot attendant. The prosecution’s case against defendant was premised, in part, upon circumstantial evidence. The trial court, in its charge to the jury concerning circumstantial evidence, stated: "In this case the prosecution suggests there is direct evidence that Jerome Williams was on Mt. Hope Avenue. He was allegedly seen there and identified by certain police officers. The direct evidence must be sufficient to give rise to an inference logical, clear and strong. Again I suggest to you the logical and clear and strong inference which can be drawn from this is that Mr. Williams was fleeing from the robbery that allegedly occurred a short time ago”. This charge, properly preserved for our review by timely objection and recognized as erroneous in both the majority and dissenting opinions below, impermissibly suggested that a "strong inference” could be drawn that defendant was fleeing from the robbery. This suggestion, which essentially equated defendant’s flight with guilt as to the crimes charged, supplanted the fact-finding function of the jury, and under the circumstances of this case, constitutes reversible error. (People v Lewis, 64 NY2d 1031, 1032.)

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur in memorandum; Judge Simons taking no part.

Order reversed, etc.


text:
    Robert W. Carpenter, Appellant, v City of Plattsburgh et al., Respondents.
    Argued October 10, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Michael J. Howley for appellant.

      Richard B. Meyer for City of Plattsburgh, respondent.

      Henry A. Fischer for William Pearsall, respondent.

      Robert P. Roche for Mark T. Walsh, Jr., respondent.

      Thomas A. Robinson for Leo Connick, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Robert G. Main at the Appellate Division (105 AD2d 295).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Harry Caulfield et al., Plaintiffs, v Improved Risk Mutuals, Inc., et al., Respondents, and Hanover Insurance Company et al., Appellants.
    Argued October 11, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Eileen E. Buholtz for appellants.

      Ellen Lefkowitz for respondents.
   OPINION OF THE COURT

Order reversed, with costs, and judgment of Supreme Court, Monroe County, reinstated for the reasons stated in the dissenting memorandum of Justice Stewart F. Hancock, Jr., at the Appellate Division (107 AD2d 1013, 1014-1015). We agree with the dissent below that, based upon the specific provisions of the contract and the amendments made thereto, the risk of loss passed to the purchasers upon the date of the escrow closing.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Alexander. Judge Titone dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (107 AD2d 1013). Taking no part: Judge Simons.


text:
    The People of the State of New York, Respondent, v William D. Satterfield, Appellant.
    Argued October 8, 1985;
    decided November 12, 1985
    APPEARANCES OF COUNSEL

      Lisabeth Harrison and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Andrew J. Turro and Amy jane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s appeal, based on alleged ineffective assistance of counsel, challenges the denial of his motion pursuant to CPL 440.10 without a hearing. The People’s principal witness at defendant’s murder trial was Oliver Anderson. Anderson testified that he and his brother, Jeremiah Johnson, were in an argument with two men when one of them — identified by him as defendant — drew a pistol and shot Johnson, who staggered and collapsed as Anderson tried to hold him. During cross-examination, defendant’s counsel elicited that Anderson had spoken with the police a number of times after the shooting, but he could recall neither the name of any officer nor what he had said.

The principal defense was misidentification. Defense counsel called Police Officer Earl Robinson, who had interviewed Anderson following the shooting, and attempted through him to introduce his report, which stated that Anderson told him he had "walked around the corner on 8th Avenue for cigarettes. He heard shots, he returned and his brother staggered into his arms shot twice in the chest. No witness.” The trial court, however, sustained the People’s objection to admission of the report because counsel had failed to lay sufficient foundation when Anderson was on the stand. The court explained that the necessary foundation required asking a witness sought to be impeached whether he had made such statements, the time and place, the person to whom made, and the substance of the language used. Defense counsel then called Cindy Williams, who testified that while standing on the street she heard and saw four men talking loudly, heard a shot, then saw one of the men grab his chest and stagger. Williams testified that defendant, an acquaintance, was not one of the four men, and she did not see him anywhere in the area. On cross-examination, Williams testified that the man who was shot fell to his knees, and that another of the four men immediately went to the victim’s aid.

The court granted defense counsel’s application to recall both Anderson and Robinson, believing that defendant’s failure to lay a foundation for admission of the report had been an oversight. However, the next trial day, defense counsel stated that after consultation with defendant and his parents, the decision had been made to withdraw the application to recall the witnesses, and defendant himself acknowledged this on the record. In summation, defense counsel urged that Anderson had made an honest mistake in identifying defendant as the shooter. He pointed out that in every detail but one Anderson’s testimony confirmed Williams’ — Anderson, who did not know defendant at the time of the shooting, identified defendant as the shooter, whereas Williams, who did know him, was certain defendant was not even there.

After defendant’s conviction he moved for an order pursuant to CPL 440.10 vacating the judgment on the ground that he had been denied his right to effective assistance of counsel. In support of the motion defendant submitted his own affidavit as well as those of his parents, who stated in substance that they had reluctantly agreed with counsel based primarily on his opinion that the evidence strongly favored defendant and that the impeachment evidence, if permitted, was only marginally helpful. Also annexed was the affidavit of defendant’s new counsel, relating the substance of a telephone conversation with trial counsel, in which he offered three reasons for his decision: first, that the court would not have allowed him to impeach Anderson with the report, since the report indicated only "No witness,” not that Anderson had made any such statements to Officer Robinson; second, that putting on additional witnesses would have diluted the strongly favorable testimony of the witnesses who had appeared immediately prior to summation; and finally, that the report was inconsistent with the Williams’ testimony in some manner trial counsel could not remember. The People submitted an affirmation also relating a telephone conversation with trial counsel who purportedly stated that he had decided not to pursue the matter primarily because the report conflicted with the testimony of Williams. The trial judge denied the motion without a hearing, concluding that the facts pertaining to the alleged inadequacy of defense representation were contained in the trial record, and the court adhered to its decision on reargument, noting that a hearing would be superfluous. On a consolidated appeal from the judgment of conviction and the orders denying the motions, the Appellate Division affirmed without opinion.

In reviewing claims of ineffective assistance care must be taken to "avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis.” (People v Baldi, 54 NY2d 137, 146.) Where the evidence, the law and the circumstances of a particular case, viewed together and as of the time of representation, reveal that meaningful representation was provided, defendant’s constitutional right to the effective assistance of counsel has been satisfied (id., at p 147). We conclude that on this record defendant’s right to effective assistance of counsel has been satisfied.

Defendant urges that it was improper to deny his 440.10 motion without a hearing. We have at times observed, on direct appeals from convictions, that claimed ineffective assistance was not established by a review of the trial record, and that additional background facts might have been developed by way of a motion pursuant to CPL 440.10 (see, e.g., People v Love, 57 NY2d 990, 1000), but this is not to say that, where a postjudgment motion is made under CPL 440.10, a hearing to develop additional background facts is invariably necessary. CPL 440.30 contemplates that a court will in the first instance determine on written submissions whether the motion can be decided without a hearing (CPL 440.30 [1]; see also, CPL 440.30 [4] [a]). Defendant must show that the nonrecord facts sought to be established are material and would entitle him to relief.

Here, no hearing was required because, given the nature of the claimed ineffective assistance, the motion could be determined on the trial record and defendant’s submissions on the motion (see, CPL 440.30 [2]). Defendant’s motion papers made clear that the basis of the claimed ineffectiveness was trial counsel’s decision not to adduce the information contained in the police report for impeachment of Anderson, and that the purpose of any hearing would have been to probe the actual reasons in the mind of trial counsel for that decision. But counsel’s subjective reasons for his choice of this strategy in this case were immaterial. Viewed objectively, the transcript and the submissions reveal the existence of a trial strategy that might well have been pursued by a reasonably competent attorney. The defense rested in large part upon the testimony of Williams and her credibility. Anderson supported Williams’ account of the incident, including that four men were present and that one had rushed to the aid of the victim. Defense counsel chose to argue that the incident unquestionably occurred as related by Anderson and Williams, but that Anderson had simply made an honest mistake in identifying defendant. That this was indeed the defense strategy is plain from counsel’s summation. It is not for this court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation. In this case, we conclude that defendant’s constitutional right has been satisfied, and that no hearing was required to reach this determination.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye and Titone concur; Judges Simons and Alexander taking no part.

Order affirmed in a memorandum.


text:
    Maude Sutherland, an Infant, by her Mother and Natural Guardian, Hester Sutherland, et al., Respondents, v City of New York et al., Appellants.
    Argued October 10, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Howard R. Cohen for the City of New York and others, appellants.

      David Henry Sculnick and Marian E. Silber for Presbyterian Hospital in the City of New York, sued herein as Columbia Presbyterian Hospital, and another, appellants.

      Kathleen Gill Miller, Harry H Lipsig and Pamela Anagnos Liapakis for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and question certified answered in the affirmative. We interpret the question certified as asking whether the Appellate Division had the power to reinstate the natural parent as guardian ad litem. We conclude that it had that power, and pass on no other issue (Herrick v Second Cuthouse, 64 NY2d 692; Brady v Ottaway Newspapers, 63 NY2d 1031).

Concur: Chief Judge Wachtler and Judges Jasen, Kaye, Alexander and Titone. Taking no part: Judges Meyer and Simons.


text:
    The People of the State of New York, Respondent, v Jose M. Natal, Appellant.
    Argued October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Barry D. Leiwant and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Joyce P. Adolf sen and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant was not deprived of effective assistance of counsel under the standards adopted by this court (see, e.g., People v Morris, 64 NY2d 803, affg 100 AD2d 630; People v Baldi, 54 NY2d 137) and reaffirmed in People v Satterfield (66 NY2d 796 [decided herewith]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    John S. De Jose, Respondent, v Grace De Jose, Appellant.
    Argued October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Norman S. Heller for appellant.

      Daniel C. Mooney for respondent.
   OPINION OF THE COURT

Memorandum.

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

Prior to the effective date of the Equitable Distribution Law (Domestic Relations Law § 236 [B], eff July 19, 1980), the parties entered into a separation agreement which was intended to be a complete settlement of their property rights. Such an agreement is governed by the former statutory provisions and decisional law, and equitable distribution is not available (Domestic Relations Law § 236 [B] [3]). Consequently, whether the "opting out” provisions of the Equitable Distribution Law were complied with is irrelevant.

We have not reviewed the Appellate Division’s affirmance of the Supreme Court order denying defendant’s motion to vacate the settlement. That order is nonfinal and is not brought up for review by CPLR 5501 (a) (1) on this appeal (Cohen and Karger, Powers of the New York Court of Appeals § 36, at 144-146; § 78, at 337-338 [rev ed]).

Chief Judge Wachtler and Judges Jasen, Kaye, Alexander and Titone concur; Judges Meyer and Simons taking no part.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Trizec Western, Inc., as Successor in Interest to Beere Regis Joint Venture, et al., Respondents, v City of New York et al., Appellants.
    Argued October 8, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Regina Feder, Joseph I. Lauer and Gary Schuller of counsel), for appellants.

      Michael S. Kelton for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition dismissed. The certified question should be answered in the negative.

Petitioners’ brief concedes that the dismissal of the third cause of action, from which they have not appealed, moots their first cause of action, and if we accept for purposes of argument their contention that the second and fourth causes of action are properly brought under CPLR article 78, rather than Real Property Tax Law article 7 (see, Hewlett Assoc. v City of New York, 57 NY2d 356), those causes of action are nevertheless barred by limitations (CPLR 217).

Only when taxes have been collected without jurisdiction or in violation of constitutional authority may they be recovered by the taxpayer in a plenary action for money had and received (Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262, 267). Here, however, "even if [petitioners] were granted the entire exemption for accessory use space that they seek [in the second and fourth causes of action], the property would still be subject to taxation by virtue of the 'mini-tax’ provision of section 421-a” (Hewlett Assoc. v City of New York, supra, at pp 363-364). Because there was jurisdiction to tax, it was error to deem the fourth cause of action one for money had and received. Whether considered as an incidental claim for damages in an article 78 proceeding or as such a claim in a declaratory judgment action, the fourth cause of action was barred by the four-month limitation period applicable to article 78 proceedings (CPLR 217; Press v County of Monroe, 50 NY2d 695; Solnick v Whalen, 49 NY2d 224) as, of course, was also the second. The petition should, therefore, have been dismissed in its entirety.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur in memorandum; Judge Simons taking no part.

Order reversed, etc.


text:
    In the Matter of Allstate Insurance Company, Appellant, v Frank Giordano et al., Respondents.
    Submitted October 11, 1985;
    decided November 12, 1985

      APPEARANCES OF COUNSEL

      Gerald Rickman and Abraham L. Shapiro for appellant. Audrey Rogers and Ignatius John Melito for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (108 AD2d 910).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone. Taking no part: Judge Simons.


text:
    Credit Alliance Corporation et al., Respondents, v Arthur Andersen & Co., Appellant.
    Submitted August 12, 1985;
    decided November 12, 1985
   Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by adding thereto the following: "The dismissal of the cause of action based upon fraud is without prejudice to an application by plaintiffs to Supreme Court for leave to serve an amended complaint with regard to that cause of action. Such application should include a copy of the proposed amended complaint accompanied by a disclosure of the evidentiary facts which would support the claims set forth in the proposed amended complaint and would justify the granting of such leave (see, CPLR 3016 [b]; cf. CPLR 3211 [d], [e]).” [See, 65 NY2d 536.]

Judge Alexander taking no part.


text:
    The People of the State of New York, Appellant, v Frank Di Napoli, Respondent.
    Argued October 16, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Emily Berger and Norman Barclay of counsel), for appellant.

      John J. Privitera for respondent.
   OPINION OF THE COURT

Order reversed, defendant’s motion to dismiss the indictment denied, and indictment reinstated. Having reviewed the transcript of the testimony before the Grand Jury, we agree with the dissenter at the Appellate Division that the circumstantial evidence presented was such that "if unexplained and uncontradicted would warrant conviction by a trial jury” and thus was legally sufficient (People v Pelchat, 62 NY2d 97, 105; People v Mayo, 36 NY2d 1002; CPL 70.10 [1]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Respondent, v Alonzo Fagan, Appellant.
    Argued October 17, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Brian Shiffrin of counsel), for appellant.

      Howard R. Relin, District Attorney (Melvin Bressler and Michael J. Nelson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The courts below properly found that the dismissal, at the conclusion of a final parole revocation hearing of charges lodged against the defendant, did not bar a later prosecution of criminal charges based on the same acts. Collateral estoppel is a flexible doctrine, not to be applied automatically just because its formal prerequisites are met (Gilberg v Barbieri, 53 NY2d 285, 292). Strong policy considerations militate against giving issues determined in prior litigation preclusive effect in a criminal case, and indeed we have never done so (see, People v Plevy, 52 NY2d 58, 65, n 4). The correct determination of guilt or innocence is paramount in criminal cases (People v Berkowitz, 50 NY2d 333, 345), and the People’s incentive to litigate in a felony prosecution would presumably be stronger than in a parole revocation proceeding (cf. Gilberg v Barbieri, supra).

We have examined defendant’s other contention and found it to be without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Order affirmed in a memorandum.


text:
    In the Matter of Raul Soto, Appellant, v New York State Board of Parole et al., Respondents.
    Argued October 14, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Roger Brazill and Williám E. Hellerstein for appellant.

      Robert Abrams, Attorney-General (Esther Furman and Maryellen Weinberg of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (107 AD2d 693).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.


text:
    In the Matter of Ronald G. Wohl, Appellant, v Gordon M. Ambach, as Commissioner of Education of the State of New York, Respondent.
    Argued October 17, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Philip C. Pinsky for appellant.

      Robert Wright, Robert D. Stone, James H. Whitney and Seth Rockmuller for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (105 AD2d 999).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Blitman Construction Corp., Respondent, v Insurance Company of North America, Appellant.
    Argued October 9, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Maureen Rothschild Di Tata for appellant.

      Stephen R. Sugrue 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.

Plaintiff does not, as indeed it could not, suggest that the 12-month limitation period of the policy is invalid (Kassner & Co. v City of New York, 46 NY2d 544, 551; see, Insurance Law § 3404, lines 157-161). It argues rather that, by reserving to itself 12 months to investigate, the carrier made it "illogical” and "commercially unreasonable” for it to institute action while the carrier was still investigating. The short answer is that there is no inconsistency between the two clauses, for an insured is bound by the terms of the contract whether read or not (Pimpinello v Swift & Co., 253 NY 159) and can protect itself by either beginning an action before expiration of the limitation period or obtaining from the carrier a waiver or extension of its provision.

Nor is there here a triable issue concerning waiver or estoppel. It is not claimed that the carrier waived by any act prior to expiration of the 12-month period and everything done thereafter was done after execution by plaintiff of a nonwaiver agreement. The validity of such agreements has long been recognized (Proc v Home Ins. Co., 17 NY2d 239; see, C.F.C. Realty Corp. v Empire Fire & Mar. Ins. Co., 110 AD2d 508; Soltex Thread Co. v Rueff Bros., 111 AD2d 84). That the nonwaiver agreement referred not only to the insurer but also said that "the INSURED does not waive any rights under any policy or binder upon which a claim is based” cannot have misled plaintiff as to the limitation provision which had already expired. The same is true of the statement in the cover letter accompanying the agreement that the request for its execution was "without prejudice to any rights which may have heretofore accrued to your corporation”. The prejudice to plaintiff’s rights results from its failure to institute action prior to expiration of the 12-month limitation period, not from its execution thereafter of the nonwaiver agreement.

Plaintiff is on no stronger ground with respect to estoppel. It was the carrier which some 10 months after the loss called plaintiff’s attention to the necessity of filing a claim. Its request for further documentation made thereafter and prior to expiration of the limitation period cannot have misled plaintiff to its prejudice (Kaufman v Republic Ins. Co., 35 NY2d 867; Proc v Home Ins. Co., supra; Fotochrome v American Ins. Co., 23 NY2d 889, affg 26 AD2d 634; Duke Plastics Corp. v New York Prop. Ins. Underwriting Assn., 86 AD2d 818; Graziane v Firemen’s Ins. Co., 63 AD2d 1087; Dubins v Boston Ins. Co., 26 AD2d 863; cf. Frank Corp. v Federal Ins. Co., 91 AD2d 31), and the holding of an oral examination after expiration of that period, even though that was some trouble and expense for plaintiff (cf. Frank Corp. v Federal Ins. Co., supra, at p 35), cannot be the predicate for estoppel in view of the nonwaiver agreement.

In final analysis plaintiff’s problem arises from failure to read the policy after its claim accrued and thus become aware of the 12-month limitation period. Although that lack of knowledge does not foreclose reliance on estoppel (Pasmear Inn v General Acc. Fire & Life Assur. Corp., 44 AD2d 647), neither was the carrier obligated to call plaintiff’s attention to the policy provisions (Proc v Home Ins. Co., 17 NY2d 239, 245, supra). Thus, the carrier did more than it was required to do in alerting plaintiff, two months before limitations ran, to the necessity for action on its part, and did nothing thereafter upon which an estoppel could be based (Soltex Thread Co. v Rueff Bros., 111 AD2d 84, supra; Skylark Enters. v American Cent. Ins. Co., 13 AD2d 707).

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur in memorandum; Judge Simons taking no part.

Order reversed, etc.


text:
    Frank T. Twitchell et al., Plaintiffs, v Town of Pittsford, Defendant and Third-Party Plaintiff-Respondent. Pittsford Central School District, Third-Party Defendant-Appellant.
    Argued October 15, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL
    A. Vincent Buzard and Philip A. Dorsey for appellant.

      Thomas G. Collins for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 903).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Maria R. M. Rodriguez, Plaintiff, v City of New York, Defendant, Harry Wallach, Respondent, and Harry Zeitlan, Appellant.
    Decided November 14, 1985

      APPEARANCES OF COUNSEL

      Richard Hamburger for appellant.

      Harry B. Frank for respondent.
   OPINION OF THE COURT

Memorandum.

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

This dispute over attorney’s fees arose out of plaintiff’s action for the wrongful death of her husband and other damages which resulted in a judgment in her favor. That judgment, which was reduced by the Appellate Division on her stipulation (92 AD2d 813) and affirmed by this court (62 NY2d 673), is not challenged on this appeal. Shortly after the jury returned a verdict in plaintiff’s favor, movant filed a notice of attorney’s lien pursuant to Judiciary Law § 475. He alleged that he was originally retained by plaintiff to be her attorney in this action and that because of his advanced age and limited practice, he then retained respondent to act "of counsel” and to split the fee evenly. Special Term denied movant’s claim for attorney’s fees but the Appellate Division reversed. Although several issues are raised on appeal, we need not reach all of them because it is clear that movant is not entitled to seek an attorney’s lien under Judiciary Law § 475 and must enforce such rights as he may have in a plenary action.

Section 475, which is a codification and extension of the common-law charging lien, provides that "[f]rom the commencement of an action * * * the attorney who appears for a party has a lien upon his client’s cause of action * * * which attaches to a verdict * * * judgment or final order in his client’s favor, and the proceeds thereof in whatever hands they may come * * * The court upon the petition of the client or attorney may determine and enforce the lien.” (Emphasis added.) The emphasized language has consistently been held to grant a lien to the attorney of record (see, e.g., Matter of Barnum v Srogi, 96 AD2d 723, 724; Matter of Gutchess, 90 AD2d 663, 664; Matter of Sebring, 238 App Div 281, 285; Holmes v Bell, 139 App Div 455, 462, affd no opn 200 NY 586). In this case it is undisputed that movant’s name never appeared on any of the pleadings, motion papers, affidavits, briefs or record in plaintiff’s action.

Nevertheless, movant asserts that he is an attorney of record for plaintiff because his name appears with respondent’s on the retainer statement filed with the Judicial Conference pursuant to the rules of the Appellate Division, First Department (see, 22 NYCRR 603.7). The retainer statement and the rules requiring its filing are regulatory in nature, however. They are designed for the supervision of attorneys rather than to determine their status as the attorney of record. Indeed, the rule as it presently exists requires attorneys who are acting solely as trial or appellate counsel to file retainer statements although they are clearly not attorneys of record (see, Melzer v 195 Broadway Corp., 18 AD2d 1108; Matter of Sebring, 238 App Div 281, 288, supra; Holmes v Bell, 139 App Div 455, 462, affd no opn 200 NY 586, supra). That movant’s name was filed with the Judicial Conference to reflect his interest in the litigation does not make him an attorney of record any more than it would in the case of filing a trial counsel’s name.

Movant contends further that respondent should be es-topped from denying that he was the attorney of record because it was respondent who had control of all pleadings and papers and failed to place his name on them. There is evidence in the record, however, that respondent sent movant copies of motions and pleadings for his review and that movant apparently approved and returned them to respondent without requesting that his name be added to them as an attorney of record.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

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


text:
    John P. Propis et al., Plaintiffs, v Fireman's Fund Insurance Company et al., Defendants. Michael W. Halloran, Appellant, v Fireman's Fund Insurance Company, Respondent.
    Decided November 14, 1985

      APPEARANCES OF COUNSEL

      Jeremiah J. McCarthy for appellant.

      Sheldon Hurwitz 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, insofar as appealed from, affirmed, with costs, for the reasons stated in so much of the memorandum at the Appellate Division (112 AD2d 734) as relates to plaintiff Halloran.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Appellant, v Anthony Warren, Respondent. The People of the State of New York, Appellant, v Anthony Warren and Donald Agostinelli, Respondents.
    Argued October 7, 1985;
    decided November 14, 1985
    APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Kathleen A. Majewski of counsel), for appellant.

      Edward J. Nowak, Public Defender (Susan K. Cable of counsel), for Anthony Warren, respondent.

      Norman A. Palmiere for Donald Agostinelli, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

Indictments charging defendants with attempted criminal possession of a controlled substance were dismissed for legal insufficiency of the evidence before the Grand Jury, a conclusion affirmed by the Appellate Division. The testimony before the Grand Jury established that informant "JWB” met with defendants, to whom he had previously sold cocaine, at a hotel on September 20, 1983. Defendants said they wanted to purchase about half a pound of cocaine, and JWB agreed that he and his source would pick it up and have it available for delivery in a day or two. At about 3:00 p.m. on September 22, JWB and his source — an undercover police officer — met with defendants in the same hotel. After discussing the quality of the cocaine, defendants agreed to purchase eight ounces at $2,050 per ounce. The transaction was not consummated, however, for several reasons. JWB and the police officer had only six ounces of cocaine available, and defendants did not have with them the $16,400 required for the purchase. Moreover, Agostinelli wanted the cocaine wrapped in four two-ounce packages, while the cocaine supplied to the police officer was wrapped in six one-ounce packages. Agostinelli did not want to receive the cocaine in the hotel room because he feared detection, and said he would meet them in a distant parking lot at about 8:00 p.m. to test the cocaine and effect the transaction. Before the meeting ended, at Agostinelli’s request the officer showed the cocaine to defendants so they could determine the ratio of cocaine rock to loose powder. Both defendants were examining one-ounce bags when police officers, who had been secretly watching the transaction, entered the room and arrested them.

"A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime” (Penal Law § 110.00). In addition to proof of intent to commit a specific crime (People v Kane, 161 NY 380), the statute requires a showing that defendant committed an act or acts that carried the project forward within dangerous proximity to the criminal end to be attained (see, People v Di Stefano, 38 NY2d 640, 652; see also, People v Bracey, 41 NY2d 296, 300; People v Rizzo, 246 NY 334, 337).

Here, the defendants did not come very near to the accomplishment of the intended crime. The planned purchase was to take place hours later, in another part of town, after testing. At the time they were arrested, defendants did not possess sufficient funds to make the purchase, and the informant and the police officer did not have sufficient cocaine to make the sale. Thus, several contingencies stood between the agreement in the hotel room and the contemplated purchase.

We decline the People’s suggestion that we adopt the definition of attempt contained in the Model Penal Code (see, American Law Institute, Model Penal Code § 5.01) and applied by the Federal courts. As we recognized in People v Di Stefano (38 NY2d 640, 652, supra), the Legislature, by the revised Penal Law definition of the crime of attempt, did not change the Rizzo rule (see, People v Rizzo, 246 NY 334, 337, supra). Any argument that the standard embodied in the statute needs change should be addressed to the Legislature.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur; Judge Simons taking no part.

Orders affirmed in a memorandum.


text:
    In the Matter of Gary L. Ackerman et al., Respondents, v Norman Steisel, as Sanitation Commissioner of the City of New York, et al., Appellants.
    Argued October 14, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis and Leonard Koerner of counsel), for appellants.

      Nicholas G. Garaufis and Alan M. Block for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 940; see also, White v Adler, 289 NY 34, 44).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.


text:
    In the Matter of Thomas Vogelsang, Appellant, v Philip Coombe, Jr., as Superintendent of Eastern New York Correctional Facility, et al., Respondents.
    Argued October 16, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Janet Packard, Robert Selcov and David C. Leven for appellant.

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

Memorandum.

The judgment of the Appellate Division, insofar as appealed from, should be affirmed, without costs, for the reasons stated in the memorandum of that court (105 AD2d 913). (See also, People ex rel. Vega v Smith, 66 NY2d 130.) We add only that (1) appellant cannot complain that he was denied an employee assistant (see, 7 NYCRR 251-4.1, 254.4), having himself waived that right, and (2) the proceeding was timely commenced and concluded, in light of the circumstances present and the authorization received during the hearing to interview necessary witnesses. The propriety of the Appellate Division’s dismissal of certain charges is not before us.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Judgment, insofar as appealed from, affirmed, without costs, in a memorandum.


text:
    Michael Fleming et al., Appellants, v Allstate Insurance Company, Respondent.
    Decided November 14, 1985

      APPEARANCES OF COUNSEL

      Edward J. Regan for appellants.

      Frank L. Amoroso 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), judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 426). No basis is shown for amendment of the complaint to state a claim for punitive damages (see, Queensbury Union Free School Dist. v Walter Corp., 101 AD2d 992, 993, affd 64 NY2d 964).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    David G. Davis, Jr., Respondent, v City of Syracuse, Appellant.
    Argued October 11, 1985;
    decided November 14, 1985
    APPEARANCES OF COUNSEL

      David M. Gerber, Corporation Counsel (Linda L. Edelen of counsel), for appellant.

      Francis R. D’Addario for respondent.
   OPINION OF THE COURT

Memorandum.

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

On May 27, 1979, Earl Casler filed a police report with the Syracuse police department, claiming that he had been assaulted in his apartment by "Dave Davis, white male, thirty-one, 186 Lincoln Avenue.” Casler stated that he had known Davis for approximately seven years. Casler made a similar report to the District Attorney’s office which resulted in a misdemeanor information charging Dave Davis of 186 Lincoln Avenue with assault in the third degree. On July 12, 1979, a City Court Judge signed a summons ordering Davis to appear in court on July 26, 1979. When Davis failed to respond, a second summons was issued directing him to appear on August 15, 1979. For unexplained reasons, the address listed in this summons was 135 Randall Avenue.

When there was no response to the second summons, a City Court Judge issued a bench warrant. The warrant described the person to be arrested as David Davis, a white male, 31 years old, 5 feet 6 inches in height, with brown hair and eyes and a "skinny” build. Davis’ address was listed on the back of the warrant as 135 Randall Avenue. All of this information was transferred by the Syracuse police department to an arrest warrant card. The card was forwarded to police officers patrolling the area.

On January 30, 1980, Officer David Pendergast took note of the card, verified the existence of the warrant with the Police Communications Records Division, and proceeded to the Randall Avenue address. When plaintiff answered the door he identified himself as Dave Davis. However, in response to the officer’s question whether he was 31 years old, plaintiff stated, "No, I will be 40 in a month-and-a-half.” When the officer informed him that there was a warrant for his arrest on an assault charge, plaintiff denied being involved in any assault and again protested that he was almost 40 years old.

Plaintiff was arrested and placed in the back seat of the police car. En route to the Syracuse Public Safety Building booking area, the officer radioed the Records Division for a second verification of the warrant. Upon arriving, plaintiff was placed in a holding cell and the officer went to the Central Records Division located in the same building to obtain the warrant and check the information therein against the warrant card. The officer then signed and dated the warrant, completed and filed his police report, and returned the warrant to the deputy sheriffs.

The following day, after having spent approximately 18 hours in custody, plaintiff was arraigned and released pending trial. One month later, after the complainant confirmed that plaintiff was not the person who had assaulted him, the court granted the prosecutor’s motion to dismiss the indictment.

Plaintiff filed a notice of claim against the city and commenced this action for false arrest and imprisonment. At the close of evidence, the trial court denied the city’s motion for a directed verdict based on its contention that the arrest was privileged and that the officer arrested the person intended to be apprehended by the warrant. The jury found the city liable, awarding plaintiff $10,000 in damages, and the Appellate Division affirmed.

On the facts adduced at trial, the court should have granted the city’s motion for a directed verdict. Accordingly, we now reverse and dismiss the complaint.

A necessary element of an action for false imprisonment is that the confinement was not privileged (Restatement [Second] of Torts § 35). A detention, otherwise unlawful, is privileged " 'where the confinement was by arrest under a valid process issued by a court having jurisdiction’ (Restatement, 2d Torts, § 35, comment a; Prosser, Torts [4th ed], § 11)” (Broughton v State of New York, 37 NY2d 451, 457; Boose v City of Rochester, 71 AD2d 59, 66 [Simons, J.]). A qualification to this rule has been applied in the so-called "misnomer cases”, where warrants could have been applied with complete accuracy to two or more persons (Williams v City of Buffalo, 72 AD2d 952; Craner v Corbett, 27 AD2d 796; Maracle v State of New York, 50 Misc 2d 348). In such cases, the officer has been required to exercise reasonable care in assuring that he has arrested the person intended to be apprehended under the warrant. To be contrasted is the situation, presented here, where the plaintiff is the person intended to be arrested and the only person to whom the warrant could validly be applied (see, Boose v City of Rochester, 71 AD2d 59, 67, supra).

The warrant in this case could validly support the arrest of one person alone — the plaintiff, David Davis residing at 135 Randall Avenue. Unlike the misnomer cases where error is committed by the police in failing properly to execute a warrant, the error here was in the issuance of a warrant that, based on information supplied by the District Attorney, named a person other than the person who was in fact accused of the crime (see, Boose v City of Rochester, supra [negligent police investigation prior to issuance of warrant resulted in the naming in the warrant of a person other than the actual suspect]). In executing this warrant, Officer Pendergast was obliged only to assure himself that he was arresting the person described therein, and that the description bore a reasonable resemblance to the arrestee.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur in memorandum; Judge Simons taking no part.

Order reversed, etc.


text:
    In the Matter of Michael D., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted October 16, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Wendy Sue Lauring and Lenore Gittis for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Leonard Koerner and Larry A. Sonnenshein of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (109 AD2d 633).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Joseph Cusano et al., Appellants, v General Electric Company, Also Known as Knolls Atomic Power Laboratory, a Division of General Electric Company, et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Decided November 14, 1985

      APPEARANCES OF COUNSEL

      Morris D. Strauss for appellants.

      Roger J. Cusick for General Electric Company, respondent.

      Karl H. Schrade for Defense Apparel Anti-C Protection, Inc., and another, 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 at the Appellate Division (111 AD2d 557).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Respondent, v Robert Casadei, Appellant.
    Argued October 11, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Philip J. Sanzone for appellant.

      Barry M. Donalty, District Attorney (Donald R. Gerace of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was involved in a two-car accident in which the driver of the other vehicle was fatally injured. Subsequently charged in an eight-count indictment with manslaughter in the second degree, criminally negligent homicide, driving while intoxicated, and other violations of the Vehicle and Traffic Law, he sought to suppress the results of a chemical blood test administered without his consent pursuant to a search warrant (CPL 690.10). County Court granted the motion. The Appellate Division reversed and denied suppression.

Defendant relies upon People v Moselle (57 NY2d 97) for the proposition that the provisions of Vehicle and Traffic Law § 1194, in effect at the time of the accident, constitute the exclusive method of obtaining a blood sample for a violation of Vehicle and Traffic Law § 1192. Although two of the three prosecutions in Moselle involved Penal Law violations in addition to Vehicle and Traffic Law violations, there was not in those cases, as there is here, a court order based on probable cause, authorizing the taking of a blood sample. It is clear that a search warrant may validly be issued to obtain a blood sample in the event of a violation of the Penal Law (Matter of Abe A., 56 NY2d 288), and, in such circumstances, we decline to extend Moselle to require separate resort to Vehicle and Traffic Law § 1194 to sustain Vehicle and Traffic Law offenses which are part of the same indictment. Moreover, the Legislature has amended Vehicle and Traffic Law § 1194 (L 1983, ch 481) to overrule Moselle on its facts.

Defendant’s remaining contention is without merit.

Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur; Judge Simons taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of Lawrence Wilson, Appellant, v Detroit Hockey Club, Inc., et al., Respondents. Workers’ Compensation Board, Appellant.
    Argued October 15, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Theresa E. Wolinski, Robert Hermann, Peter H. Schiff and Carlin Meyer of counsel), for Workers’ Compensation Board, appellant.

      Thomas J. Walsh and R. Scott Thomson for Hilda Wilson, appellant.

      Dixon S. Welt, Sophia Challandes-Angelini and Henderson G. Riggs for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (104 AD2d 168).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Raphael Killeen et al., Respondents, v State of New York, Appellant.
    (Claim No. 63894.)
    Argued October 16, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Vernon Stuart, Robert Hermann and Peter H Schiff of counsel), for appellant.

      Cora J. Glosser and Sheila M. Rossi for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Court of Claims and the order of the Appellate Division brought up for review should be reversed, with costs, the original judgment reinstated, and the matter remitted for a review of the facts.

Claimant, Kevin Killeen, a severely retarded 23 year old, was a patient at Kings Park Developmental Center, a State mental hospital. He was placed in a supervised therapy program, known as a normalization program, designed to familiarize patients with daily living conditions for the ultimate purpose of having the patients live outside an institution in a homelike environment. The decision to place Kevin in such a program was a medical judgment for which no liability may be imposed (Cameron v State of New York, 37 AD2d 46, affd 30 NY2d 596). While participating in the program, Kevin accidentally caused a covered pot of hot water, which was on a table and which was used to demonstrate the preparation of coffee and tea, to overturn resulting in his being severely burned.

The Court of Claims dismissed the claim brought on Kevin’s behalf. On appeal, a divided Appellate Division reversed, on the law, directed entry of judgment on the issue of liability and remitted for an assessment of damages. The State appeals from the judgment entered on remission (CPLR 5601 [d]). We reverse.

The State owes patients in its institutions a duty of reasonable care to protect them from injury, whatever the source (e.g., Comiskey v State of New York, 71 AD2d 699). This does not, however, render the State an insurer or require it to keep each patient under constant surveillance (Hirsh v State of New York, 8 NY2d 125, 127). The degree of care owed is commensurate with the patient’s capacity to provide for his or her own safety (Zophy v State of New York, 27 AD2d 414, affd 22 NY2d 921; 1 NY PJI2d 128-130).

In our view, there are certain risks inherent in any therapeutic program, especially, as in this case, one which is designed to provide a normal homelike setting. Under these conditions, the use of a covered pot of boiling water to demonstrate the manner of preparing coffee or tea is not negligence per se (see, Restatement [Second] of Torts §§ 283, 285).

Since the Appellate Division’s reversal was predicated on the law alone, the matter should be remitted to that court for a review of the facts in conformity with CPLR 5613.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, original judgment reinstated, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v John Napolitano, Respondent.
    Argued October 17, 1985;
    decided November 14, 1985

      APPEARANCES OF COUNSEL

      Harvey A. Levine for appellant.

      Charles J. Hynes, Deputy Attorney-General (David G. Duggan of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. The only issues presented have not been preserved for review.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Titone. Taking no part: Judge Alexander.


text:
    Board of Education, Shoreham-Wading River Central School District et al., Appellants, v State of New York et al., Respondents.
    Submitted November 4, 1985;
    decided November 14, 1985
   Motion for leave to appeal dismissed upon the ground that the supporting papers, including brief, were not served at least eight days prior to the October 28, 1985 statutory return date of the motion (CPLR 5516, 2214 [b]; 22 NYCRR 500.11 [d] [4]).


text:
    Benjamin Karlin, Respondent, v Stella Menon, Appellant.
    Submitted November 12, 1985;
    decided November 14, 1985
   Motion to reconsider the Court of Appeals September 19, 1985 dismissal of the appeal herein denied. Motion for a stay denied. [See, 65 NY2d 1051.]


text:
    Louis N. Picciano and Son et al., Appellants, v Olympic Construction Co., Inc., et al., Respondents.
    Submitted October 7, 1985;
    decided November 14, 1985
   Motion by defendant Olympic Construction Co., Inc., to dismiss the appeal as against it granted and the appeal insofar as it is taken against defendant Olympic Construction Co., Inc., dismissed, with costs and $20 costs of motion, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. On the court’s own motion, appeal insofar as it is taken against defendant Aetna Casualty and Surety Company dismissed, without costs, upon the ground that it does not lie as of right.


text:
    Morris Propp, Appellant-Respondent, v Joanne S. Propp, Respondent-Appellant.
    Submitted October 21, 1985;
    decided November 14, 1985
   Motion by plaintiff for leave to appeal dismissed and, on the court’s own motion, appeal taken as of right by defendant dismissed, without costs, each upon the ground that the order of the Appellate Division does not finally determine the action within the meaning of the Constitution.


text:
    John A. Robinson, Respondent, v Lucinda H. Robinson, Appellant.
    Submitted October 28, 1985;
    decided November 14, 1985
   Motion to vacate this court’s order of dismissal dated September 12, 1985, etc., denied. [See, 66 NY2d 613.]

Judge Titone taking no part.


text:
    Catherine M. Gergenti, as Administratrix of the Estate of Charlene Gergenti, Deceased, Appellant, v City of New York, Respondent, and Michael Scuderi, Appellant.
    Decided November 19, 1985

      APPEARANCES OF COUNSEL

      Anthony R. Caputo for Catherine Gergenti, appellant.

      George F. Sacco for Michael Scuderi, appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay Leoussis 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, with costs, for the reasons stated in the memorandum at the Appellate Division (112 AD2d 349).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    Elijah Pope et al., Appellants, v New York Property Insurance Underwriting Association, Respondent.
    Decided November 19, 1985

      APPEARANCES OF COUNSEL

      Howard R. Birnbach for appellants.

      Arthur N. Brook and Carole P. Sadler 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), appeal, insofar as taken from so much of the order of the Appellate Division as dismissed part of plaintiffs’ first cause of action, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. Order, insofar as it dismissed and severed the second cause of action, affirmed, with costs. A complaint alleging fraud based on a statement of future intention must allege facts sufficient to show that the promisor, at the time the representation was made, never intended to honor the promise (Lanzi v Brooks, 43 NY2d 947).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    In the Matter of Benjamin Perrotta, Appellant, v City of New York et al., Respondents.
    Decided November 19, 1985

      APPEARANCES OF COUNSEL

      Jessel Rothman, Allen Rothman, Julian Kaplan and Lisa Rinaldi for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Dana Robbins 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 reasons stated in the opinion by Justice E. Leo Milonas at the Appellate Division (107 AD2d 320).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Appellant, v Paul Berke, Respondent.
    Decided November 19, 1985

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Andrew J. Turro of counsel), for appellant.

      Lawrence S. Goldman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed, the information reinstated and the case remitted to Criminal Court, New York County, for further proceedings on the information.

Criminal Court erred in ruling that when a felony charge is dismissed and the judge directs the People to prepare a prosecutor’s information as to the misdemeanor charges remaining, CPL 30.30 (1) (b) requires dismissal, without regard to time otherwise excludable, if the People fail to provide such an information within 90 days of the dismissal order. Unlike the situation in People v Colon (59 NY2d 921), the People had already filed a felony complaint which conferred jurisdiction over the defendant (CPL 100.40 [1]). There being no other basis for dismissal pursuant to CPL 30.30, the information should be reinstated.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur in memorandum.

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


author: Meyer, J.

text:
    The People of the State of New York, Respondent, v Kenneth Gilmore, Jr., Appellant.
    Argued September 5, 1985;
    decided November 19, 1985

      APPEARANCES OF COUNSEL

      Martin B. Adelman for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant stands convicted of murder in the second degree and attempted murder in the second degree arising out of the fatal shooting of Theodore Gross and the wounding of Gross’s companion, Melita Sneed. The victims were shot from behind at pointblank range while seated in the front seat of Gross’s automobile. Defendant and a friend, George Murdock, were backseat passengers when the shots were fired. Two days after the crime, defendant surrendered to local authorities in South Carolina.

At trial, Murdock testified that he and defendant were employed at a bowling alley in The Bronx. On the day of the shooting, completing their shift at 4:00 a.m., defendant told Murdock that he could get them a ride home. The two men walked one block to where Gross and Sneed were waiting in Gross’s car and entered the car, with defendant seated behind Gross and Murdock seated behind Sneed on the passenger side. At defendant’s request, Gross drove to a club in Brooklyn, which defendant and Murdock entered while Gross and Sneed remained in the car. Murdock testified that while inside the club, defendant told him that he was going to kill Gross and Sneed and that Murdock could choose not to accompany him. Murdock stated that he ignored these comments because he thought that defendant was joking. Defendant and Murdock returned to the car and each resumed his former seating position. According to Murdock’s testimony, defendant suggested that Gross drop Murdock off at a nearby bus stop, and when the car slowed to a halt, defendant reached down into a burlap bag that he had placed on the floor between his feet. When defendant sat up, gunshots rang out.

Sneed’s testimony was consistent with Murdock’s. She stated that when defendant asked Gross to pull over and let Murdock out, she turned around, saw defendant bending down, and heard defendant say something about "checking his pistol or gun”. Immediately thereafter, she heard gunshots and realized that she had been hit.

Defendant testified on his own behalf. He stated that when Gross pulled the car over, he bent over to tie his shoe and Murdock bent over at the same time and pulled a gun out of his bag. Defendant exclaimed "a gun”, and Murdock began firing. Defendant testified that as he and Murdock left the scene, Murdock warned him that "If you don’t keep your mouth shut, you’re going to get the same thing.” Defendant returned home, and later that day attended a christening. While there, he spoke with his mother-in-law who relayed a message from defendant’s sister that the police had been to her home looking for defendant. After speaking with his mother-in-law, defendant left the christening and caught a bus to Charleston, South Carolina. Defendant testified that he contacted an uncle in South Carolina and thereafter surrendered to a friend of his uncle, Sergeant Gathers of the Charleston Police Department.

Defendant sought to establish at trial that his fear of the police, rather than consciousness of his guilt, motivated his flight to South Carolina. To this end, defense counsel attempted to elicit testimony from defendant’s sister that the police had come to her home, armed with shotguns, in search of defendant, and had pointed a shotgun at defendant’s brother in the mistaken belief that he was the defendant. The court sustained an objection to this line of questioning, ruling that "the defendant has an option of explaining anything he wants to explain when he takes the stand.” However, on redirect examination of defendant, the trial judge refused to let defendant answer the question "As a result of that conversation [with your mother-in-law], did you learn about certain actions of the New York City Police Department?”

Bobby Glover testified for the People that he had occupied a holding cell with defendant for several hours after defendant had been returned from South Carolina, and that defendant had confessed to him that he had killed Gross because of a dispute over drug dealings. Glover also related that defendant had told him that while in South Carolina he had been recognized by Sergeant Gathers as a fugitive "wanted for murder in New York.” According to Glover’s account, defendant offered Gathers a $10,000 bribe "to forget that he had seen him.” The sergeant, who was a friend of defendant’s relative, purportedly declined the bribe but agreed to report that defendant had surrendered voluntarily.

In his testimony, defendant denied ever having met Glover or telling Glover any of the above. Sergeant Gathers was called as a defense witness and testified that he had a conversation with defendant’s uncle, as a result of which he met the uncle and defendant in a parking lot near the police station and took defendant into custody. The People’s objection to testimony by Gathers as to his conversation with defendant was sustained, thus depriving defense counsel of the opportunity to ask Gathers whether defendant had offered him a bribe.

In preventing defendant from testifying as to what he learned through his conversation with his mother-in-law concerning the police department’s activities at his sister’s home and in precluding testimony by Sergeant Gathers concerning his conversations with defendant, the trial court improperly impeded defendant’s ability "to present his own witnesses to establish a defense” (People v Carter, 37 NY2d 234, 240). Nonetheless, in view of the overwhelming evidence presented of defendant’s guilt, particularly the testimony of both eyewitnesses who implicated defendant as the assailant, this error was harmless (People v Crimmins, 36 NY2d 230, 238-242; People v Brosnan, 32 NY2d 254). We do not consider that the evidence established a significant probability that the jury would have acquitted defendant had it not been for the court’s errors. (People v Crimmins, 36 NY2d, at p 242, supra.) Despite the curtailment of defendant’s testimony, the jury was made aware, through police witnesses, that several officers had been to defendant’s sister’s home armed with shotguns and, as already indicated, Sergeant Gathers testified that defendant surrendered to him in the parking lot. In addition, the jury was instructed that evidence of flight, which was not relied on heavily by the prosecution, is not entitled to great weight.

With respect to defense counsel’s attempt to elicit testimony from Sergeant Gathers that defendant had not made a bribe offer, the exclusion of this evidence was not harmful in light of defendant’s testimony that there had been no discussion of a bribe, and the fact that Gathers’ testimony was not inconsistent with defendant’s account of the arrest.

Defendant’s remaining arguments, to the extent that they have been preserved for our review, are without merit.

Meyer, J.

(dissenting). Harmless error analysis is not to be indulged in "unless the proof of the defendant’s guilt, without reference to the error, is overwhelming,” and when indulged in with respect to nonconstitutional error proscribes a conclusion that the error was not prejudicial "if the appellate court concludes that there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred” (People v Crimmins, 36 NY2d 230, 241, 242). Because in my view this case meets neither test, I would reverse and order a new trial. I, therefore, dissent.

The majority states (at pp 864-865) that "[t]he victims were shot from behind at pointblank range”. While the evidence is that Theodore Gross sustained three bullet wounds to the back of the skull, the medical testimony was that only one was at pointblank range. And with respect to Melita Sneed, the doctor testified only that there were three bullet fragments in her face and head, none of which were removed. Fragments are more consistent with the ricochet of the bullets fired at Gross after exiting his head and striking the windshield than with firing at both Gross and Sneed. That possibility is also more consistent with the testimony of Natchev, operator of the car wash across the street from the scene of the shooting that he "heard a puck, puck, puck,” which is evidence of but three shots, and with the fact that there were three separate entrance wounds on the back of Gross’ head. Whether Sneed was shot or injured by flying fragments of the bullets that killed Gross is important because if only Gross was shot, Murdock’s testimony that defendant had said to him just before they got into the car that "he was going to kill Ted Gross and the girl” is proved a lie; had defendant rather than Murdock been the shooter, there was no reason for him not to kill Sneed, as that statement indicated he intended, by shooting her "at pointblank range”. Murdock’s credibility was, therefore, clearly damaged by the doctor’s testimony. It was even more greatly damaged by the fact that he was the only other occupant of the back seat of the car and made no mention of defendant’s alleged statement to him until he had first told his parole officer and a detective that he was not present at the shooting, then after being given Miranda warnings "told them the truth” as to the shooting in a signed statement, and only about an hour and a half later called the detective back and told him of defendant’s statement. Of importance also in the evaluation of his testimony are the fact that although the People were careful in cross-examining defendant to establish that he was right-handed, they made no effort to establish that Murdock was not left-handed; that the doctor testified that at least two of the bullets went from right to left through Gross’ head, but said that he could not tell whether the weapon was fired from the left or right side of the car or by a left-handed or right-handed person; and that although the crime scene investigator testified that the crater in the windshield was 12 inches from the left side of the windshield and in his opinion was fired "in rather a direct line with the windshield,” which was equally consistent with the shooter being right-handed defendant or left-handed Murdock, he made no more effort to develop the angle from which the shot was fired than the People did to establish that Murdock was not left-handed.

As the majority notes (at p 866), Bobby Glover testified that during the few hours he and defendant were both in the holding pen of the Criminal Court Building in Brooklyn, Glover to answer a criminal charge and defendant to meet with his lawyer concerning whether he would testify before the Grand Jury, defendant made the damning admissions to which Glover testified. Not only was the encounter thus a casual one of a few hours duration rather than continued, but also defendant denied knowing Glover previously or having the conversation Glover testified to or even being in the holding pen with Glover. Although Glover claimed to have known defendant from the Fort Greene area for about 18 months and to have had the holding pen conversation in the presence of Roger Lee, who, defendant conceded, was in the holding pen with him, the People never called Lee to establish whether Glover was there or, if he was, what conversation with defendant, if any, occurred in his presence. To the improbability that defendant would have given the detailed statement that Glover testified to a casual acquaintance, if Glover was that, in a casual encounter in a court holding pen, must be added, in evaluating whether the testimony was overwhelming, the failure to call Lee to corroborate Glover in any respect, as well as Glover’s past history as a criminal who knew the value of informing on others in return for money or the reduction of charges, or both. Only through Glover’s testimony that defendant "said Ted was screwing up the money from the narcotics” was there any evidence of a motive for killing Gross, and even that offers no basis for defendant’s alleged statement that "he was going to kill Ted Gross and the girl”. The importance of Glover’s testimony as to motive to the determination of guilt or innocence cannot be overemphasized, the more particularly because of its apparent inconsistency with the testimony of Gross’ wife that defendant was a friend of Gross’.

The only other factors pointing to defendant rather than Murdock as the shooter are the testimony of Melita Sneed that defendant bent over and said something like "[l]et me check my pistol” or "[l]et me check my gun” and then she heard a loud noise and saw a hole in the windshield, and the apparent absence of motive on Murdock’s part. But neither Murdock nor Sneed testified (notwithstanding Murdock’s position alongside defendant) to seeing a gun in defendant’s hand, nor was a gun ever found, and Sneed’s testimony was weakened by her admission that what she testified to was what she "vaguely” remembered and that she "couldn’t quite make out the conversation.” Neither that testimony nor Murdock’s absence of motive, by themselves or taken together with the questionable testimony of Murdock and Glover and the inconclusive medical and crime scene evidence, can be said to rise to the level of overwhelming proof of defendant’s guilt.

Nor can it fairly be said that there was not a significant probability of acquittal had the excluded evidence of Ms. Drayton and Sergeant Gathers been admitted. Glover not only furnished evidence of motive which no one else could, but furnished damning proof of consciousness of guilt, in addition to the alleged bribe offer, in the proposal that he, Glover, procure the murder of the two witnesses (presumably Sneed and Murdock) against defendant, and in defendant’s alleged attempt to hide at his uncle’s house only to be recognized by Sergeant Gathers as a fugitive from a New York murder charge. The excluded testimony of Sergeant Gathers that there never had been any bribe offer and that defendant had surrendered voluntarily in a parking lot near the police station within a few hours of arrival in Charleston rather than after being discovered in the home of his relative presented a significant probability that the jury may have rejected Glover’s triply incriminating story as out of the whole cloth and accepted defendant’s testimony that he did not know and had not met with or talked to Glover. To characterize the excluded evidence as harmless, as does the majority (at p 867), is to ignore the greater credibility that the jury would accord the testimony of the Charleston police sergeant (notwithstanding his friendship with defendant’s school teacher uncle) than it would that of defendant, defending himself against the possibility of a murder conviction.

The error in excluding Gathers’ evidence was compounded by the exclusion of Ms. Drayton’s testimony that she had informed defendant’s mother-in-law that the police were looking for him with shotguns, for it prevented defendant from offering his explanation of the reason for his flight to South Carolina which, the court in its charge advised them, was to be weighed against the evidence of flight itself.* The value of the error to the prosecutor’s summation is evident from his statements to the jury that defendant "fled to South Carolina when he knew the police were looking for him” and that "he left town * * * as Bobby Glover told you because he shot and killed Ted Gross”.

It would, indeed, be unfortunate if this case, which has been tried four times, had to be returned for yet a fifth trial, but it would be even more unfortunate were defendant, who has already been incarcerated for nine years, to be deprived of his liberty without the fair trial that due process requires. We have recognized that "the Sixth Amendment to the United States Constitution, obligatory on the States through the due process clause of the Fourteenth Amendment, mandates that the accused has the right to present his own witnesses to establish a defense” (People v Carter, 37 NY2d 234, 239-240). The Supreme Court has so stated in a number of cases (Faretta v California, 422 US 806, 818; Chambers v Mississippi, 410 US 284, 294 [noting that "(f)cw rights are more fundamental than that of an accused to present witnesses in his own defense,” id., at p 302]; Jenkins v McKeithen, 395 US 411, 429; Washington v Texas, 388 US 14, 22; see, Westen, Compulsory Process Clause, 73 Mich L Rev 71), as has the New York Legislature in directing that defendant in a criminal proceeding "may as a matter of right call and examine witnesses” (CPL 60.15 [1]). And while most of the cases cited above concern the prospective exclusion of a defense witness rather than a refusal to allow a witness who has been sworn to testify concerning particular facts, there is no less a denial of due process in the latter case than in the former when the excluded evidence affects the fact-finding process as "profoundly and directly” as does the evidence excluded in the present case (see, People v Morales, 37 NY2d 262, 269). Indeed, we have but recently recognized, though without the necessity for reaching the constitutional issue, the "crucial” nature for the defendant of testimony impeaching a prosecution witness who gave "highly damaging” testimony concerning defendant’s admission of guilt (People v Pavao, 59 NY2d 282, 290).

Defendant had the right to present his own testimony concerning what was told him by his mother-in-law, and the testimony of his sister and Sergeant Gathers in rebuttal of the highly damaging testimony of Bobby Glover against him and in explanation of his reason for going to South Carolina. Had that evidence been presented there is a significant probability that disbelief of Glover’s testimony and acceptance of defendant’s explanation of why he fled may have resulted in an acquittal. There should, therefore, be a reversal and a new trial.

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

Order affirmed in a memorandum.

      . The majority memorandum has Murdock testifying that "[w]hen defendant sat up, gunshots rang out.” But Murdock conceded that he never saw a gun in defendant’s hand, or in his possession that evening, and testified that he heard but two shots.

      . Indeed, although the Trial Judge had ruled when the matter first came up that "defendant has an option of explaining anything he wants to explain when he takes the stand,” he struck defendant’s testimony that he learned from his mother-in-law about certain actions of the New York City Police Department and instructed the jury to disregard the question and answer.


text:
    David A. Foss, Respondent, v City of Rochester et al., Appellants.
    Argued November 18, 1985;
    decided November 20, 1985

      APPEARANCES OF COUNSEL

      Louis N Kash, Corporation Counsel (Susan L. Hauser of counsel), for appellants.

      Douglas A. Foss and Edward H Fox for respondent.

      Robert Abrams, Attorney-General (Peter H. Schiff, Robert Hermann and Wayne L. Benjamin of counsel), in his statutory capacity under Executive Law § 71.
   OPINION OF THE COURT

Memorandum.

The judgment of Supreme Court, Monroe County, should be affirmed, with costs.

In Foss v City of Rochester (65 NY2d 247), this court held that Real Property Tax Law article 19 and Rochester Local Law No. 6 of 1983 violated the equal protection clauses of the Federal and State Constitutions because, as applied to county taxes, they established arbitrary and invidious distinctions between nonhomestead property in Rochester and similarly situated properties in other parts of Monroe County. In response to this decision, the Legislature enácted Real Property Tax Law article 19-A by Laws of 1985 (ch 828) which simply shifted the responsibility for calculating the tax rate or rates and levying the tax on individual properties from the county to the cities and towns. The constitutional deficiency identified and explained in Foss has not, however, been cured by this legislation. The imposition of demonstrably different county tax burdens, solely by reason of geographic location, continues unabated pursuant to chapter 828. Article 19-A makes no effort to provide interjurisdictional equality between taxpayers in different assessing units. (Foss v City of Rochester, 65 NY2d 247, 258-259, supra.) Absent such legislative effort, our recent decision in Foss, which under traditional principles of stare decisis is binding upon each member of this court, compels a declaration that Real Property Tax Law article 19-A contravenes the equal protection clauses of the Federal and State Constitutions.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone concur.

Judgment affirmed, with costs, in a memorandum.


text:
    In the Matter of Windsor Plaza Co., Respondent, v Sylvia Deutsch et al., Constituting the Board of Standards and Appeals of the City of New York, Appellant.
    Decided November 21, 1985

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Trudi Mara Schleifer of counsel), for appellant.

      Harold Herman 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, with costs, for reasons stated in the memorandum at the Appellate Division (110 AD2d 531).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone.


text:
    The People of the State of New York, Appellant, v Willie Fields, Jr., Respondent.
    Decided November 21, 1985

      APPEARANCES OF COUNSEL

      Richard J. Arcara, District Attorney (Jo W. Faber of counsel), for appellant.

      John A. Ziegler and Rose H. Sconiers for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Willie Fields was convicted after a nonjury trial of various crimes arising from the abduction of a woman and child from a shopping mall parking lot. The court subsequently vacated the convictions pursuant to CPL article 440 on the grounds of newly discovered evidence. The new evidence consisted of a written statement given by one Sylvester Bell to the police which exonerated Willie Fields and implicated another man in the crimes.

The People contend that there was insufficient evidence to support the court’s finding that new and competent evidence existed, arguing that Bell’s statement, admitted at the hearing because Bell invoked his 5th Amendment privilege, was inadmissible hearsay.

On appeal, our review of the trial judge’s ruling is limited to determining whether there was a sufficient factual predicate to support the admission of Bell’s statement as a declaration against penal interest. The statement satisfies the prerequisites for admission of such declarations set forth in People v Settles (46 NY2d 154) and, therefore, it was properly considered by the court. It could have found that Bell was not available to testify because he asserted his 5th Amendment privilege, the detailed recitals of his statement and the surrounding circumstances made it clear that he had knowledge of the events, that his statement was trustworthy and that the statement inculpated him as an aider or facilitator of the crime. The People contend that there is no evidence that Bell was aware of the fact that he was incriminating himself at the time he made the statement, but his reluctance to sign the statement and his delay in doing so, the unambiguous admissions that he had assisted the rapist and his statements to others that he did not want to sign the statement because he wanted to keep out of trouble were sufficient to establish his awareness that he might become implicated. Having concluded as a matter of law that the trial judge had a basis for the exercise of his discretion to grant a new trial, namely that Bell’s statement was admissible, we do not and indeed cannot review the exercise of that discretion.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye, Alexander and Titone 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.