author: Bellacosa, J.

text:
    The People of the State of New York ex rel. Russell Neufeld, on Behalf of Jarvious Cotton, Appellant, v Commissioner of the New York City Department of Correction, Respondent.
    Argued February 9, 1988;
    decided March 31, 1988

      APPEARANCES OF COUNSEL

      Russell Neufeld, Caesar D. Cirigliano and Michele Maxian for appellant.

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

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (132 AD2d 720).

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., Bellacosa and Dillon. Judge Bellacosa also concurs in a concurring opinion.

Bellacosa, J.

(concurring). While I agree that under governing extradition principles the court has no choice but to affirm the denial of habeas corpus relief, I write separately with respect to a troubling aspect of the case: assurances, referred to in the Appellate Division memorandum adopted as the decision of this court, made by Mississippi officials to Governor Cuomo prior to his ordering the extradition of Jarvious Cotton.

Mr. Cotton, a young black man, was indicted in 1982 by a Grand Jury in Natchez, Mississippi, as an accessory to the slaying of the son of a prominent white banker in that community and was charged with capital murder, an offense for which the death penalty may be imposed. While awaiting trial, Cotton escaped and was ultimately arrested in Brooklyn, New York, in March 1987. Thereafter, Governor Allain of Mississippi submitted requisition papers to Governor Cuomo demanding Cotton’s extradition as a fugitive.

Governor Cuomo ultimately complied with this demand on May 28, 1987. However, prior to that time, petitioner, on behalf of Cotton, submitted the following documents to the Governor: (1) affidavits alleging that, prior to Cotton’s escape, Mississippi officials had mistreated him and violated his civil rights by brutally beating him; (2) an affidavit from Cotton’s attorney in Mississippi stating that as a result of his representation of Cotton, he had been threatened with death and had withdrawn from representing him; and (3) numerous letters from political, business and religious leaders in Natchez and southwestern Mississippi stating that Cotton will not receive a fair trial if returned to Natchez because of adverse pretrial publicity. In response to these submissions, Governor Cuomo, through his own counsel’s office, requested and received apparently oral assurances from Alonzo Sturgeon, the Mississippi District Attorney prosecuting Cotton’s case, that Cotton would not suffer constitutional deprivations if extradited. In a letter to Governor Allain, made public the day Cotton’s extradition was ordered, Governor Cuomo stated he had been assured that: "if Mr. Cotton is unable to afford counsel a highly competent defense attorney would be appointed to represent him, that the District Attorney is agreeable to a change in the venue of the trial, that any needed protection would be afforded to Mr. Cotton and his family and that all other necessary steps would be taken to assure that Mr. Cotton receives a fair trial with full benefit of due process protections” (Appellant’s Appendix, at A-161 [emphasis added]).

The assurances secured by Governor Cuomo, representing an "extra mile” beyond what might be ordinarily required :in the extradition context, were, of course, helpful to him in the exercise of his responsibility. However, they, of course, do not relate directly to the central issue of this case as it has evolved in this habeas corpus procedural setting: whether, as a matter of due process, Cotton was entitled to notice and a hearing on the issue of fugitivity prior to the time Governor Cuomo ordered his extradition. In view of the factual affidavits submitted in this case, the determination whether Cotton is a fugitive who must be extradited pursuant to US Constitution article IV (§ 2, cl 2), or a nonfugitive entitled to an exercise of the Governor’s discretion (see, CPL 570.14), has unique importance for Cotton’s life and liberty interests and directly implicates New York’s interest, as the asylum State, in protecting individuals within its borders against illegal action in the demanding State (see, Appleyard v Massachusetts, 203 US 222, 228; cf., People ex rel. Little v Ciuros, 44 NY2d 825, 827; see generally, Comment, Rendition: The Governor’s Discretion, 2 Lincoln L Rev 48, 61 [1966]). This distinction takes on critical importance because after the Governor of the asylum State signs an extradition warrant alleging that the person sought to be extradited was in the demanding State at the time he allegedly committed the crime with which he is charged and then fled, that allegation of fugitivity is legally presumed and can only be rebutted by conclusive evidence in a habeas corpus proceeding (see, People ex rel. Higley v Millspaw, 281 NY 441, 445; People ex rel. Glidden v Nemier, 133 AD2d 487, 488, Iv denied 70 NY2d 612; People ex rel. Friedman v Commissioner of N. Y. City Dept. of Correction, 66 AD2d 689, 690; see also, South Carolina v Bailey, 289 US 412, 421-422 [evidence "beyond reasonable doubt”]). For these reasons, I would hold that where a person sought to be extradited has submitted factual affidavits reflecting clear evidence that if returned to the demanding State his constitutional rights will continue to be violated, due process should require that the Governor provide him with notice and opportunity to be heard on the issue of whether he is a fugitive prior to ordering extradition (see, NY Const, art I, § 6; see also, People v Millan, 69 NY2d 514; cf., People ex rel. Little v Ciuros, 44 NY2d 825, supra).

Petitioner contends that because he fled from Mississippi out of fear for his life, he left the demanding State involuntarily within the meaning of CPL 570.14 and is not a fugitive from justice. Accordingly, he concludes that his extradition is not constitutionally mandated, but rather vested in the discretion of the Governor. This argument is unsupported by the legislative history of Uniform Criminal Extradition Act § 5 (adopted verbatim in CPL 570.14), which establishes that this provision was enacted to provide the Governor with discretion only with respect to individuals who left a demanding State under compulsory process (see, Uniform Criminal Extradition Act, Commissioners’ Prefatory Note, 11 ULA 54 [Master ed]; Uniform Criminal Extradition Act § 5, Commissioners’ Note, 11 ULA 160 [Master ed]). In accordance with this legislative history, CPL 570.14 has been applied in New York only when the demanding State seeks the extradition of a person involuntarily transferred to this State (see, People ex rel. Richardson v McMickens, 115 AD2d 786; People ex rel. Ingram v Bound, 58 AD2d 961, Iv denied 42 NY2d 811; People ex rel. Davis v Quinlan, 69 Misc 2d 708).. Given the state of the law with respect to CPL 570.14 and Cotton’s admissions with respect to his physical presence in the demanding State, the opportunity from Governor Cuomo to make written submissions through his counsel’s office on the issue of fugitivity provided Cotton with minimal, but sufficient, due process (see, Mathews v Eldridge, 424 US 319, 335; see also, People v Hinton, 40 NY2d 345, 350). Because, on my view of this record, Cotton received all the process he was due in this opportunity afforded by Governor Cuomo, I am compelled to join in the affirmance of the order denying Cotton habeas corpus relief.

Despite concluding that Cotton must be extradited, I must express my skepticism about the reliability of the assurances given to Governor Cuomo by Mississippi officials. My doubt stems from the reported statements of Alonzo Sturgeon, the District Attorney of Adams County, Mississippi, who is prosecuting Cotton’s case, and of Governor Allain’s legal advisor, Carmen Castilla. One day after Governor Cuomo signed the warrant ordering Cotton’s extradition, a UPI dispatch, dated May 29, 1987, reported the following:

"Carmen Castilla, Allain’s legal advisor, said Cuomo agreed to the extradition after making several inquiries into the way Mississippi law worked, especially as regards the death penalty. But she stressed that Allain made no guarantees concerning the handling of Cotton’s case.

" 'We cannot give any assurances,’ she said.

"Sturgeon made only one concession to Cuomo — he will not object to any request by Cotton’s lawyers that the trial be moved out of Natchez.

" 'Normally, I would object to a change of venue,’ he said. 'But I certainly stand by what I told him (Cuomo).’

"But as for assurances of a 'highly competent’ lawyer and a fair trial, Sturgeon said those are already guaranteed to Cotton under state law. He added that all lawyers qualified to practice law in Mississippi are competent” (UPI dispatch available on lexis, Nexis library, Omni file, Search term: Jarvious Cotton [emphasis added]; compare that to letter from Governor Cuomo to Governor Allain [May 28, 1987], quoted and emphasized, supra, at 884).

This news report suggests a significant retreat from and contradiction of the assurances given to Governor Cuomo and made public by him in connection with his decision to extradite. Additionally, Mr. Cotton’s mother has also been prosecuted as an accessory after the fact of murder in the aid of the escape of her son (see, UPI dispatch [July 29, 1987], lexis, Nexis library, Omni file, Search term: Jarvious Cotton). In my view, it is appropriate to take judicial notice of public developments of this sort relating to a matter expressly part of the record and of the Appellate Division memorandum decision adopted by this court as its reasoning as well, which matters are available and known through modern research techniques.

These developments represent to me an apparently guileful affront by Mississippi officials to our State’s highest executive official and to the interests of this State in protecting the rights of persons entitled to the benefits of the New York and United States Constitutions. Coincidentally, this ploy occurred at about the same time as a recent decision of Mississippi’s highest judicial body manifesting its not dissimilar lack of respect for the ruling of a sister State’s highest court (see, Johnson v State, 511 So 2d 1333, at 1338 [Miss], and dissenting opn, at 1343-1345, cert granted — US —, 108 S Ct 693, affecting People v Johnson, 69 NY2d 339, vacating a New York felony conviction used as an aggravating predicate factor for imposition of the Mississippi death penalty). The issue now before the United States Supreme Court in that case is the failure of the Mississippi Supreme Court in a death penalty case to provide full faith and credit to the judgment of New York’s highest court in People v Johnson (69 NY2d 339, supra).

While I have no choice in law but to concur in the decision to allow this extradition to take place, I am likewise compelled to express my disquiet and to not allow these matters to pass unnoticed.

Order affirmed, etc.

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Eric Parker, Appellant.
    Argued January 11, 1988;
    decided March 31, 1988
   Appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Pacheco, 67 NY2d 631; People v Jackson, 66 NY2d 1034; People v Mintz, 20 NY2d 753, 770).


text:
    The People of the State of New York, Respondent, v Richard W. Gaspar, Defendant, and Paula Gutowski, Gary Knowle and Enzo Volpe, Jr., Appellants. The People of the State of New York, Respondent, v Vincent Ciffa, Carla Patti, Charles Didio and Robert L. Jones, Appellants. The People of the State of New York, Respondent, v Jeffrey Weisberg, Gregory Breton and Gary Plaza, Appellants. The People of the State of New York, Respondent, v Kevin Forness, Defendant, and Vincent Ciffa, Carla Patti and Charles Didio, Appellants.
    Argued March 22, 1988;
    decided March 31, 1988
   Appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    In the Matter of Franklyn L. Lowenthal, a Suspended Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted February 22, 1988;
    decided March 31, 1988
   Motion to dismiss appeal taken as of right granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved (CPLR 5601 [b]).


text:
    Morgan Guaranty Trust Company of New York, Respondent, v Sheldon H. Solow, Doing Business as Solow Building Company, Appellant.
    Submitted February 1, 1988;
    decided March 31, 1988
   Motion, insofar as it seeks leave to appeal pursuant to CPLR 5602 (a) (1) (ii) from judgments of Supreme Court dated December 18, 1987 to review so much of the prior order of the Appellate Division as awarded temporary injunctive relief, dismissed upon the ground that that portion of the order of the Appellate Division does not "necessarily affect” the judgments sought to be appealed from within the meaning of CPLR 5602 (a) (1) (ii). Motion, insofar as it seeks leave to appeal to review so much of the prior Appellate Division order as permitted repleading of the first, third and fourth causes of action, denied.


text:
    The People of the State of New York, Respondent, v Jorge Berrios, Appellant.
    Argued March 18, 1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      John J. Halloran, Jr., for appellant.

      Paul Gentile, District Attorney (Andrea M. DiGregorio and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant’s primary argument on this appeal, that evidence of a prior assault on the victim was not admissible to negate the anticipated defense of accident, was not raised in the trial court and therefore is not preserved for our review. Defendant’s remaining contentions, challenging the sufficiency of the evidence, are without merit.

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


text:
    The People of the State of New York, Respondent, v Robert Thatch, Appellant.
    Argued March 22, 1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      James A. Burke, Philip L. Weinstein and Andrew C. Fine for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The question of whether defendant’s wife voluntarily consented to the search of their apartment presents a mixed question of law and fact. Having been resolved against the defendant in the lower courts, and finding support in the record, this question is now beyond our review (see, People v Meredith, 49 NY2d 1038, 1039).

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

Order affirmed in a memorandum.


text:
    In the Matter of F. W. Woolworth Co., Appellant, v New York State Tax Commission, Respondent.
    Argued March 18,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Michael Bray for appellant.

      Robert Abrams, Attorney-General (Francis V. Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (126 AD2d 876).

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


text:
    Francis K. Cove, Jr., et al., Appellants, v Robert J. Sise, as Chief Administrative Judge of the Office of Court Administration of the State of New York, et al., Respondents. (Proceeding No. 1.) New York State Court Officers Association, Appellant, v State of New York Unified Court System Classification Review Board, Respondent. Joseph W. Bellacosa et al., Intervenors-Respondents. (Proceeding No. 2.)
    Argued March 17, 1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Esther Bernheim and Joseph A. Faraldo for Francis K. Cove, Jr., and others, appellants.

      Rosemary Carroll for New York State Court Officers Association, appellant.

      Patricia P. Satterfield, Michael Colodner and John Eisenman for Joseph W. Bellacosa, intervenor-respondent.

      Raymond G. McGuire and Harlan J. Silverstein for New York State Supreme Court Officers Association, intervenorrespondent.
   OPINION OF THE COURT

Memorandum.

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

These article 78 proceedings challenge determinations of the Classification Review Board (the Board) upholding classification of the court officer title in New York City and Nassau County pursuant to a classification plan for nonjudicial court employees (see, Judiciary Law § 39 [8] [a]); petitioners seek consolidation of the court officer (JG16) title and salary grade with those of the senior court officer (JG18). The classification plan was established by the Chief Administrative Judge (see, former 22 NYCRR 25.45 [now 25.41]). Petitioners’ appeals were denied by the Chief Administrative Judge, and thereafter by the Board. In an extensive decision supporting its conclusion that there was insufficient basis for the appeals, the Board noted that the essence of the two job titles was "so similar as to warrant serious de novo review for the purpose of possible consolidation in the future under a common title”, but the Board specifically rejected the need for a common classification as conflicting with its initial finding that "there is insufficient basis upon which to conclude that JG-16 is inappropriate for the lowest level security title in the Plan, i.e., Court Officer.”

Special Term perceived the Board’s reference to possible future consolidation as a factual finding that immediate revamping was required; held that the Board was obliged to "issue the mandate necessary to implement its finding”; and granted the petitions to the extent of remanding the matter to the Board to fashion the appropriate remedy. The Appellate Division reversed and dismissed the petitions, concluding that the Board’s determinations dismissing the appeals were not irrational or arbitrary.

Administrative determinations concerning position classifications are of course subject to only limited judicial review, and will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis (see, Matter of Dillon v Nassau County Civ. Serv. Commn., 43 NY2d 574, 580; Matter of Grossman v Rankin, 43 NY2d 493, 503, rearg denied 44 NY2d 733). Petitioners made no such showing with respect to the Board’s conclusion, upon an enumeration of the pertinent factors supporting this entry-level title and promotional-level title, that petitioners had presented "insufficient basis upon which to conclude that the allocation of the [court officer] title in the Plan to JG-16 is improper, unfair or inequitable.”

Given this disposition, we do not reach the question whether the Board even had authority to reclassify job titles and reallocate salary grades.

Judges Simons, Kaye, Alexander, Titone and Hancock, Jr., concur; Chief Judge Wachtler and Judge Bellacos a taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Keith Jay Laing, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued March 16, 1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      Peter L. Zimroth, Corporation Counsel (Ingeborg B. Garfield and Barry P. Schwartz of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced an action against the City of New York and Lydia Dunbar alleging that on July 2, 1983 he was injured when he tripped and fell on a negligently maintained sidewalk in front of Dunbar’s home in Queens. He pleaded that he had satisfied the notice requirement of the "Pothole Law” for actions against the City (Administrative Code of City of New York § 7-201 [c] [2]). At trial, plaintiff’s counsel asserted in his opening statement that the defective condition had existed since 1971; that Dunbar had called the Department of Parks and Recreation concerning the condition; that an inspector from the Parks Department had come to the location in July 1983 and, on a tree inspection report form line for "Sidewalk Conditions,” had written the word "Cracked”; and that the City had not thereafter repaired the condition. The trial court granted the motion to dismiss the complaint against the City on the ground that the handwritten notation "Cracked” on the tree inspection report form did not satisfy the notice requirement of the Pothole Law. The Appellate Division affirmed, holding that in order to satisfy the Pothole Law, any "written acknowledgment from the city” had to come from the City Department of Transportation.

The Pothole Law provides that "[n]o civil action shall be maintained against the City for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk * * * being out of repair, unsafe, dangerous or obstructed,” unless prior notice is established in one of three ways: by "written notice of the * * * condition * * * actually given to the commissioner of transportation”; by "previous injury to person or property as a result of the * * * condition, and written notice thereof * * * given to a city agency;” or by "written acknowledgment from the city of the * * * condition”. Plaintiff alleges compliance solely on the basis of the third alternative — that the notation "Cracked” on the tree inspection report form constituted a "written acknowledgement from the city”.

We agree with the Appellate Division that plaintiff did not satisfy the notice requirement of the Pothole Law. The tree inspection report reveals that it was completed by the Parks Department in connection with tree-pruning, not in connection with any sidewalk condition. While we recognize that the prior notice provision of the Pothole Law is in derogation of common law and thus that its language must be strictly construed against the City (see, Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 365), the generalized notation of "Sidewalk Condition” as "Cracked” on the tree inspection report cannot be considered an expression of the City’s awareness of an unsafe or defective sidewalk in need of repair. We thus do not reach the question whether a "written acknowledgment from the city” under the Pothole Law must come only from the Department of Transportation — which was the basis of the Appellate Division decision.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Association of Commercial Property Owners, Inc., et al., Petitioners, and Eliahu Lipkis, Appellant, v New York City Loft Board et al., Respondents.
    Argued March 21, 1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Paul A. Crotty and Mordechai Lipkis for appellant.

      Peter L. Zimroth, Corporation Counsel (Kristin M. Helmers and Stephen J. McGrath of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (118 AD2d 312).

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


text:
    The People of the State of New York, Appellant, v Alfred Washington, Respondent.
    Argued March 16,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Carl A. Vergari, District Attorney (Richard E. Weill of counsel), for appellant.

      Carol Kahn for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that court for the exercise of its discretion.

At the conclusion of the trial on charges of burglary in the second degree — after the closing of arguments but before the court’s charge to the jury — defendant for the first time expressed a desire to testify, "to offer the jurors some other hypothesis of the evidence that’s been presented”. Out of the presence of the jury, defense counsel explained that he and the defendant had discussed the possibility of defendant testifying and had concluded that based upon the likelihood of prejudice from cross-examination on prior burglary convictions, taking the stand would not be in the defendant’s best interest. Defendant claimed he was unaware of having waived his right to testify, and, in response to the court’s inquiry as to whether he had any additional witnesses, defendant indicated neither that such witnesses were available, nor what evidence they might offer.

CPL 260.30 sets forth the order in which a jury trial is to proceed, but "the common-law power of the trial court to alter the order of proof 'in its discretion and in furtherance of justice’ remains at least up to the time the case is submitted to the jury” (People v Olsen, 34 NY2d 349, 353). Here, the trial court, in the exercise of this discretion and accepting defense counsel’s representation that it was his understanding defendant had concluded after their discussions that he would not take the stand, declined to reopen the case and permit defendant to address the jury. In the circumstances of this case, it cannot be said that this was an abuse of discretion as a matter of law.

Although the Appellate Division’s order of reversal recited that it was made "as a matter of discretion in the interest of justice”, it is evident from its memorandum that its order was "on the law” (CPL 450.90 [2] [a]; People v Morris, 68 NY2d 799; People v Baker, 64 NY2d 1027). Not only did it characterize the Trial Judge’s denial of defendant’s request as an "abuse of discretion” rather than an "improvident exercise of discretion”, but it also held that the purported error was not harmless beyond a reasonable doubt and required reversal and a new trial. Inasmuch as the Appellate Division mistakenly found the trial court committed legal error, we must reverse. Although the trial court cannot be said to have "abused” its discretion, we must nevertheless remit this case to the Appellate Division, for the exercise of its own discretion, "its authority being as broad as that of the trial court” (People v Baker, 64 NY2d 1027, 1028, supra).

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

Order reversed 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 Hamilton Thompson, Appellant.
    Argued March 17,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Frederick N. Saal and Philip L. Weinstein for appellant.

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

Memorandum.

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

At defendant’s trial on charges of burglary, sodomy and related offenses, defense counsel constructed a defense around the inconsistencies between complainant’s initial version to the police and her later Grand Jury and trial testimony. After the complaining witness completed her testimony, the arresting officer testified that he had interviewed the complainant in her apartment, and at the hospital a few hours after the incident, and that nothing she stated during the later interview caused him to change or add to his original memo book entry. On redirect, however, the prosecutor — knowing of the existence of a memo book entry memorializing the hospital interview but without disclosing that fact to defense counsel— elicited from the officer that the complainant had given to the police a version of the incident at the hospital substantially similar as that given in her trial testimony. Pursuing this line of inquiry on recross, defense counsel learned for the first time of the memo book entry confirming that the version given at trial was not a recent fabrication, but indeed had been given to the police only a few hours after the initial statement. With the complaining witness’s credibility thus rehabilitated, defense counsel’s strategy was dealt a significant blow. The People’s delay in turning over the statement recorded in the hospital — revealed as it was only after defense counsel had moved forward on a strategy that depended on the statement’s nonexistence — substantially prejudiced the defendant (People v Perez, 65 NY2d 154, 159; see, People v Ranghelle, 69 NY2d 56; People v Rosario, 9 NY2d 286, 289).

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Robert W. Latzer, Appellant.
    Argued March 15,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

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

      Denis Dillon, District Attorney (Bruce E. Whitney and Anthony J. Gírese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted upon a plea of guilty to two counts of endangering the welfare of a child after County Court had denied his motion to dismiss a multiple count indictment on grounds of insufficiency of evidence before the Grand Jury or, alternatively, as violative of the constitutional prohibition against ex post facto laws.

The essence of his claim is that the elimination of the corroboration requirement of Penal Law § 130.16, applied to crimes he committed prior to the effective date of the amendment, changed or lessened the People’s burden of proof and, hence, was ex post facto in its effect, and that such an asserted violation is of such fundamental constitutional dimension as to survive a plea of guilty.

Even if we assume that the asserted claim is error — and we do not decide that issue on the merits in this case — the Appellate Division correctly held that this ex post facto argument, rooted in an evidentiary rule change, is lost by a plea of guilty because it relates essentially to the quantum of proof to satisfy factual elements of a crime before the Grand Jury (People v Taylor, 65 NY2d 1, 5; People v Pelchat, 62 NY2d 97, 108; People v Thomas, 53 NY2d 338, 342, n 2).

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

Order affirmed in a memorandum.


text:
    State Division of Human Rights, on Complaint of Alexander R. Pecci, Respondent, v S. A. Cook Factory Showroom, Appellant.
    Argued March 18,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Edwin H. Wolf for appellant.

      Caroline J. Downey and Margarita Rosa for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (132 AD2d 935).

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


text:
    The People of the State of New York, Respondent, v Thomas Pitts, Appellant.
    Argued March 22,1988;
    decided April 21, 1988

      APPEARANCES OF COUNSEL

      Andrew C. Fine and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed and a new trial ordered.

Pitts and two codefendants, Waldo and Jones, were jointly tried for crimes committed during a robbery in which two persons were fatally shot. All three defendants gave written and videotaped confessions to the police. The confessions were identical as to the nature of the crimes committed but differed as to the role each defendant played. The confessions of Waldo and Jones identified defendant as the trigger man. On the other hand, defendant portrayed himself in his confession as a lookout only who entered the crime scene apartment searching for drugs and was merely present when the second victim was shot dead.

Defendant’s effort to sever the trials on a pretrial motion was denied and the three confessions were admitted at the joint trial with limiting instructions to the jury. Each defendant was convicted of two counts of intentional murder, two counts felony murder, and four lesser offenses, including robbery and burglary. Only defendant Pitts is before us by leave of a Judge of this court.

Pitts argues that admission of his codefendants’ confessions deprived him of his Sixth Amendment right of confrontation. The Appellate Division has already reversed his conviction on the two intentional murder counts, concluding that the codefendants’ statements did not "interlock” with defendant’s confession as to those counts and were thus impermissibly admitted into evidence. As to the remaining counts, however, that court affirmed, noting that the confessions did "interlock” and were therefore properly admitted, as limited under the existing law.

On appeal to this court, Pitts renews his challenge to the admission of the codefendants’ statements based on Cruz v New York (481 US —, 107 S Ct 1714), decided after the Appellate Division affirmed the conviction on the counts now before us. In Cruz, the Supreme Court held that "where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant * * * the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant’s own confession is admitted against him” (481 US, at —, 107 S Ct, at 1719, supra). The Supreme Court ruled, however, that such situations were subject to harmless error analysis.

The People concede before us that, under Cruz, the admission of the two codefendants’ statements as to the remaining counts was error, thus narrowing the decisive issue to whether the erroneous admission of this evidence is harmless beyond a reasonable doubt. It cannot be so viewed in this case under the governing principles (People v Crimmins, 36 NY2d 230, 237; see also, People v Baker, 23 NY2d 307, 318).

On the contrary, the codefendants’ confessions and characterization of defendant’s central, instigatory role in the commission of these murders unquestionably presents the "reasonable possibility” that the jury was affected, especially in respect to its assessment of defendant’s proffered issue as to the voluntariness of Pitts’ own entire confession, not just some part or parts of it (People v Crimmins, supra, at 237 and 240-241).

Defendant’s other contentions are either unpreserved or without merit, and it is unnecessary in this case to pass on the instruction to jury issue involving voluntariness of the defendant’s confession in view of our decision here which, along with the Appellate Division determination of the other counts, sends the entire case back to Supreme Court for a new and separate trial.

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

Order insofar as appealed from reversed, etc.


text:
    The People of the State of New York, Respondent, v Scott L. Cragg, Appellant.
    Argued March 18, 1988;
    decided April 21, 1988
    APPEARANCES OF COUNSEL

      Kevin P. Bradley for appellant.

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

Memorandum.

The order of the County Court should be affirmed.

Defendant contends that the police violated Vehicle and Traffic Law § 1194 (2) by administering a breathalyzer test despite defendant’s initial refusal to submit to the test, and by informing him of certain consequences — not specifically prescribed by the statute — of such refusal. This contention is without merit. Where a person suspected of driving while intoxicated has been placed under arrest, the statute permits the arresting officer to request that the person submit to a breathalyzer test. The statute further provides that if, "having been informed that his license or permit to drive * * * shall be immediately suspended and subsequently revoked for refusal to submit to such chemical test or any portion thereof’, the person refuses to submit to the test, "the test shall not be given and a written report of such refusal shall be immediately made by the police officer before whom such refusal was made” (Vehicle and Traffic Law § 1194 [2]). Contrary to defendant’s assertion, the statute is not violated by an arresting officer informing a person as to the consequences of his choice to take or not take a breathalyzer test. Thus, it cannot be said, in the circumstances of this case, that by informing defendant that his refusal to submit to the test would result in his arraignment before a Magistrate and the posting of bail, the officer violated the provisions of the Vehicle and Traffic Law. Finally, there being support in the record for the suppression court’s finding of probable cause, our review process is at an end (People v Jones, 69 NY2d 853, 855).

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

Order affirmed in a memorandum.


text:
    Heady Electric Co., Inc., Respondent, v Illiana von Kerckerinck et al., Appellants, et al., Defendant.
    Submitted February 8,1988;
    decided April 21, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of defendants’ motion to vacate the default judgment, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that defendants are not parties aggrieved (CPLR 5511).


text:
    Sadique Jaffer et al., Appellants, v Edward Miles et al., Respondents.
    Submitted February 29, 1988;
    decided April 21, 1988
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division, absent the direct involvement of a substantial constitutional question. Cross motion for leave to appeal denied.


text:
    Edward J. Kuriansky, as Deputy Attorney-General for Medicaid Fraud Control, et al., Respondents, v Bed-Stuy Health Care Corporation et al., Appellants, et al., Defendants.
    Submitted April 18,1988;
    decided April 21, 1988
   Motion for a stay and to expedite the appeal denied.


text:
    Lawrence McKiernan, Appellant, v Hartford Life Insurance Company et al., Respondents, et al., Defendant.
    Submitted February 1, 1988;
    decided April 21, 1988
   Motion to dismiss appeal granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601 [a], [b] [1]).


text:
    Anthony Parisi, Respondent, v Roy Hines, Appellant.
    Submitted February 8, 1988;
    decided April 21, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    R. T. Cornell Pharmacy, Inc., Respondent, v John R. Guzzo, Doing Business as Hudson Valley Computer System, Appellant.
    Submitted February 16, 1988;
    decided April 21, 1988
   Motion dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Division entered in an action commenced in the City Court of Albany (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    The People of the State of New York, Respondent, v Herbert Haupt, Appellant.
    Argued March 17, 1988;
    decided April 26, 1988
    APPEARANCES OF COUNSEL

      Joseph F. DeFelice for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

In 1967 the defendant shot and killed a neighbor in the presence of the victim’s wife and six-year-old daughter. At the scene the police recovered the weapon and cartridges, and questioned the defendant who admitted the shooting. The prosecutor later obtained a statement from the defendant which was transcribed by a court reporter. The defendant was indicted for murder but was found mentally incompetent for trial (CPL art 730) and was confined to mental institutions for 16 years. In 1983 he was found competent to stand trial, and after a trial before a jury was convicted of murder and sentenced to life imprisonment.

On this appeal the defendant’s primary contention is that the conviction should be set aside and the indictment dismissed because the People lost or destroyed certain evidence in the 16 years that elapsed between the shooting and the trial. He claims that the loss of this evidence deprived him of due process and a fair trial and impaired his right to cross-examine witnesses by use of their prior statements.

At trial the People conceded that certain evidence was no longer available: the weapon and cartridges had been destroyed by the police department after five years in accordance with standard procedure, a police officer had destroyed his notebook when he retired two years after the shooting, and police reports as well as the defendant’s statement to the prosecutor after his arrest could not be located despite an extensive search. The trial court found that the People had acted in good faith and that the evidence had been lost or destroyed through inadvertence.

Initially we note that the defendant is not entitled to dismissal of the indictment simply because the People’s inadvertence deprived him of statements made by witnesses who testified at trial. This is not a case where the prosecution inadvertently neglected to turn over statements in their possession or within their power to produce, in which case we have recently held the conviction should be reversed and a new trial ordered (People v Ranghelle, 69 NY2d 56). Here the People were unable to produce the evidence because it had been inadvertently destroyed, prior to trial. Ordering a new trial will not restore the lost evidence and, in fact, because of this the defendant urges that the indictment be dismissed.

The loss or destruction of evidence prior to trial does not necessarily require dismissal of the charge and indeed dismissal is considered a drastic remedy rarely invoked as an appropriate sanction for the People’s failure to preserve evidence (People v Kelly, 62 NY2d 516; cf., People v Jenkins, 41 NY2d 307). When, as here, the defendant claims that the loss of the evidence deprived him of a fair trial, the court must consider a number of factors including the proof available at trial, the significance of the missing evidence and whether the loss was intentional or inadvertent (see, e.g., People v Jenkins, supra).

The crucial issue at this trial was whether the defendant was legally sane at the time of the shooting. On this point both sides submitted a substantial amount of evidence concerning the defendant’s mental state before and after the shooting, including evidence gathered during his extensive institutionalization between the shooting and the trial. The lost evidence had little or no relevance to this issue. To the extent that it might have a bearing on the jury’s assessment of the defendant’s mental state at the time of the shooting, defense counsel on cross-examination and later on summation, noted its absence and emphasized the People’s responsibility for its loss and the potential impact on the defense (United States v Miranda, 526 F2d 1319, 1328-1329, cert denied 429 US 821). The fact that the People lost the evidence through inadvertence, does not excuse the loss but on this record the defendant was not entitled to the "drastic remedy” of dismissal of the charge (People v Kelly, 62 NY2d 516, 521, supra; cf., People v Jenkins, supra; see also, People v Martinez, 71 NY2d 937 [decided herewith]).

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

Order affirmed in a memorandum.


text:
    In the Matter of Rochester Gas and Electric Corporation, Appellant, v New York State Tax Commission, Respondent.
    Argued March 15, 1988;
    decided April 26, 1988

      APPEARANCES OF COUNSEL

      William S. Brandt for appellant.

      Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent Tax Commission has imposed a sales tax deficiency assessment upon petitioner in the principal amount of $132,000 after determining that petitioner’s payments to independent haulers to collect, transport and properly dispose of industrial fly ash — a waste product of coal combustion — constituted receipts from the taxable service of maintenance to real property (Tax Law § 1105 [c] [5]; 20 NYCRR 527.7 [a] [1]; [b] [2]). Section 1105 (c) (5) imposes a sales tax upon the receipts from the sales of the following services: "Maintaining, servicing or repairing real property, property or land * * * whether the services are performed in or outside of a building, as distinguished from adding to or improving such real property, property or land, by a capital improvement” (emphasis added). The statute then excludes from taxation: "interior cleaning and maintenance services performed on a regular contractual basis for a term of not less than 30 days, other than window cleaning, rodent and pest control and trash removal from buildings” (emphasis added).

Petitioner has raised several arguments concerning the fly ash removal service to establish that tax-free treatment should be afforded the service.

Petitioner first contends that fly ash removal does not constitute "trash removal from buildings” and that if it is "trash” in the broad sense of the word "trash removal from buildings” should be limited to ordinary janitorial services. Fly ash is concededly a waste product, with little or no economic value and is hauled to landfills by carriers retained by petitioner. Moreover, the removal of fly ash from petitioner’s power generating plants is unquestionably a maintenance service to real property, which is enumerated as an item subject to taxation. Accordingly, there is no merit to these contentions.

We also decline to accept petitioner’s argument that the language of Tax Law § 1105 (c) (5) has the effect of making "trash removal from buildings” a subset of the tax exclusion for "interior cleaning and maintenance services performed on a regular contractual basis for a term of not less than thirty days”. Rather, our reading of each clause contained in Tax Law § 1105 (c) (5) confirms that fly ash removal should be considered a taxable service whether it falls within the broad language contained in the first clause of section 1105 (c) (5), and thus is never considered excludable, or whether it falls within the potential exclusion but is then exempted from that exclusion by the final clause of the statute (see, Cecos Intl, v State Tax Commn., 71 NY2d 934 [decided herewith]). The obvious legislative intent was to tax trash removal. The applicable regulation (20 NYCRR 527.7 [b] [2]), stating that all services for trash or garbage removal are taxable, "whether from inside or outside of a building or vacant land” (emphasis added), supports this interpretation of the governing statute (see also, 20 NYCRR 527.7 [a] [1]).

Petitioner’s related argument that fly ash removal is exempt from taxation pursuant to Tax Law § 1115 (a) (12) is also without merit. Section 1115 (a) (12) exempts from tax the receipts from sales of machinery or equipment used for the production of electricity. Plainly, fly ash is not machinery or equipment.

Finally, the Appellate Division correctly held that the fly ash removal does not constitute an unenumerated, and thus nontaxable, transportation service. In this case, the collection, hauling and disposal of the fly ash constitutes an integrated service taxable under the plain language of section 1105 (c) (5) (see, Matter of Penfold v State Tax Commn., 114 AD2d 696, 697). The removal of fly ash to landfills is neither the transportation of a useful product from one location to another, nor an integral step in the erection of a capital improvement (see, Tax Law § 1105 [c] [5]).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Cecos International, Inc., Appellant, v State Tax Commission, Respondent.
    Argued March 15, 1988;
    decided April 26, 1988

      APPEARANCES OF COUNSEL

      Donald J. Holzman and Michael J. Lombardo for appellant.

      Robert Abrams, Attorney-General (Wayne L. Benjamin, O. Peter Sherwood and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent Tax Commission has imposed a sales tax deficiency assessment upon petitioner in the principal amount of $35,910.53, after determining that petitioner was performing the service of trash removal from buildings, a type of maintenance service to real property taxable pursuant to Tax Law § 1105 (c) (5), and that petitioner was performing the service of processing personal property, taxable pursuant to Tax Law § 1105 (c) (2).

Petitioner operates a secure landfill and waste treatment facility for the environmentally sound disposal of chemical wastes in Niagara Falls, New York. Three types of industrial waste are accepted by petitioner. The first type, "bulk waste” is typically contaminated soil. The second is solid or partially solid waste that arrives at the landfill in drums. If the waste is more than 85% solid the drum is placed in the landfill and buried. Because liquid waste may not be buried, however, if the waste in the drum is less than 85% solid it must be treated prior to disposal. It must either be solidified by the addition of a chemical agent known as "speedi-dri” or neutralized and filtrated in petitioner’s waste water treatment facility. The third type is liquid waste which arrives in a tanker rather than drums. Petitioner must use the water treatment facility to dispose of this waste. Petitioner charges customers an additional fee for disposal of the waste that must be solidified or water-purified in order to meet disposal standards.

For many customers petitioner arranges with independent haulers for the transportation of the waste from the customer’s site to petitioner’s facility. If the customer designates the hauler, petitioner makes the arrangements with that hauler. Otherwise, petitioner selects the hauler and adds a 5% to 10% surcharge over the price it is required to pay the hauler.

Respondent Tax Commission correctly determined that petitioner’s freight and disposal charges constituted the taxable maintenance service of trash removal from buildings (Tax Law § 1105 [c] [5]; see, Matter of Rochester Gas & Elec. Corp. v State Tax Commn., 71 NY2d 931 [decided herewith]). By arranging for the hauling of the waste to its facilities, and in fact applying a 5% to 10% surcharge, petitioner has performed this taxable service and it cannot, by merely separating the disposal and freight costs on its invoices, render the freight portion of the charges nontaxable (see, Matter of Penfold v State Tax Commn., 114 AD2d 696, 697). Petitioner’s contention that the removal of the industrial waste does not fall within the definition of trash removal from buildings is also without merit. The applicable regulation (20 NYCRR 527.7 [b] [2]) is quite broad, and through it respondent rationally interprets the governing statute as encompassing, '[a]ll services of trash and garbage removal * * * whether from inside or outside a building or vacant land” (emphasis added) (see also, 20 NYCRR 527.7 [a] [1]).

With respect to invoices for services where the customer brought the industrial waste to - the Cecos landfill and treatment facility, we agree with the Tax Commission that a nontaxable situation occurs only when the waste can be disposed of without further treatment. When treatment is required, a sales tax can be imposed pursuant to Tax Law § 1105 (c) (2), which allows a tax upon the receipts from the sale of the service of "processing * * * tangible personal property, performed for a person who directly or indirectly furnishes the tangible personal property * * * upon which services are performed” (Tax Law § 1105 [c] [2]). Petitioner, referring to the four examples to the applicable tax regulation (20 NYCRR 527.4 [d]), contends that the treatment does not constitute "processing” of personal property within the meaning of Tax Law § 1105 (c) (2) because taxability requires that the tangible personal property be returned to the owner or someone within his dominion and control following processing. Neither the text of the statute nor the language of the regulation, however, so limits the definition of "processing”. Inasmuch as petitioner treated the waste and the cost of treating it was passed on to the customer, "processing for the owner” resulted and the transaction was subject to taxation whether the property was returned to the customer or not. Here, the Commission’s determination should be confirmed because the record indicates that Cecos charges its customers more for waste that must be processed than for waste that does not need processing.

Finally, there is insufficient evidence in the record for us to conclude as a matter of law that petitioner met its burden of establishing that some of the invoices should be free from taxation because they involved neither freight nor processing.

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

Judgment affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Jimmy Martinez, Appellant.
    Argued March 17, 1988;
    decided April 26, 1988

      APPEARANCES OF COUNSEL

      Alex Caspari and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of robbery, first degree, as a result of his armed hold up of a cafe during which he threatened to shoot the cashier, Efraim Gonzalez. After defendant fled the cafe Gonzalez immediately ran into the street where he saw his manager, Nelson Aleman, and told him of the crime. Aleman had seen defendant in the cafe a few minutes earlier and when he spotted him again, across the street, he chased him into the subway and onto a train. Aleman then summoned a transit police officer who arrested defendant.

Identification was the principal issue in the case and thus defendant requested and received a pretrial Wade hearing. At the hearing Gonzalez indicated that he described defendant to police officers who came to the cafe immediately after the robbery and that they wrote down the description. Apparently, this was the first indication defendant or the prosecutor had that any police personnel other than the arresting transit officer might have been involved in the case and that Rosario material undisclosed to defendant might exist (see, People v Rosario, 9 NY2d 286, and codification of the rule at CPL 240.45 [1] [a]). After the jury was sworn, but prior to opening statements, defense counsel moved to preclude Gonzalez from testifying on the ground that the written record of Gonzalez’s statement to the investigating police had not been served upon him.

The court held a hearing to determine whether a writing existed and whether there had been a Rosario violation. Police Officer Reycraft was called and testified that on the night of the crime she and her partner, Officer Mosely, responded to a radio call for a robbery in progress. Seconds later Gonzalez came to the car and gave the two officers a description of the robber and told them he had fled east on 49th Street with Aleman in pursuit. Officer Reycraft testified that she saw Officer Mosely writing for a few seconds while Gonzalez was talking — speed being "very important” — "just to jot down the description and get the initial information.” She did not know what Mosely had written or on what form the entries were made, but apparently Mosely had been writing either in his memo book, on a "scratch 61” sheet or perhaps on both. In any event, Officer Mosely immediately transmitted Gonzalez’s description of the robber over the radio and defendant was given the Sprint tape of that transmission.

Officer Mosely was unavailable at the time of trial and despite repeated and intensive investigations by the police and the District Attorney no one was able to locate any of Mosely’s notes or any follow-up report filed by him.

At the conclusion of the hearing, the court denied defendant’s motion to preclude Gonzalez from testifying. When it submitted the case to the jury, however, the court instructed the jurors that they could draw an adverse inference against the People because of their failure to produce Officer Mosely’s notes. The court’s Rosario rulings are challenged in the present appeal.

Three categories of Rosario violations are apparent from our decisions. The first includes cases involving delay in the disclosure of Rosario material. Reversal is required in such cases if the defense is substantially prejudiced by the delay (People v Ranghelle, 69 NY2d 56, 63). The second includes cases in which the People fail completely to provide the material to the defendant even though they continue to possess it. Such failures constitute per se reversible error requiring a new trial preceded by disclosure of the material (People v Jones, 70 NY2d 547, 553; People v Novoa, 70 NY2d 490, 499; People v Ranghelle, supra, at 63). Finally, there are cases where Rosario evidence has been lost or destroyed and cannot be produced (see, People v Haupt, 71 NY2d 929 [decided herewith]). Just as the People have a duty to produce Rosario material they also have a correlative "obligation to preserve evidence until a request for disclosure is made” (People v Kelly, 62 NY2d 516, 520; see also, United States v Bryant, 439 F2d 642; People v Saddy, 84 AD2d 175). Thus, it is no answer to a demand to produce that the material has been lost or destroyed. If the People fail to exercise care to preserve it and defendant is prejudiced by their mistake, the court must impose an appropriate sanction. The determination of what is appropriate is committed to the trial court’s sound discretion, and while the degree of prosecutorial fault may be considered, the court’s attention should focus primarily on the overriding need to eliminate prejudice to the defendant (People v Kelly, supra, at 520-521).

The trial court decided in this case to deny the sanction requested by defendant — preclusion of the principal witness’ testimony — and instead to sanction the People for their loss by delivery of an adverse inference charge. That relief was appropriate. The People apparently were unaware of the Rosario material until trial, if indeed there was any, and the possibility that defendant was prejudiced by its destruction was remote. Assuming Officer Mosely recorded the description Gonzalez gave him, he contemporaneously broadcasted a description of defendant over the police radio and a tape reciting it was disclosed to defendant. Under the circumstances, whatever risk of prejudice to defendant there might have been was overcome by the adverse inference instruction.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Joseph Cotarelo, Appellant.
    Argued March 27, 1988;
    decided April 26, 1988
    APPEARANCES OF COUNSEL

      Stuart Birbach for appellant.

      William L. Murphy, District Attorney (Yolanda L. Rudich and Karen F. McGee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of robbery in the first degree (Penal Law § 160.15) as a result of holding up a Staten Island delicatessen. During the course of the holdup an alarm was activated summoning the owner of the store. When defendant saw the owner outside, he placed the barrel of his gun at the back of the cashier’s neck and threatened to shoot her if the owner tried to enter the store. Defendant and his accomplice then removed the money from the cash register and made their exit through a door at the back of the store. As they were leaving, one of the robbers fired two shots in the general direction of the front window.

Defendant’s gun was not recovered and in a subsequent investigation police found no bullets, spent cartridges or shells in the store or any damage to the premises caused by the shots. A police report, stating that the gun from which the shots were fired "apparently contained blanks”, was offered in evidence by the defense.

At trial defendant offered no direct proof of his gun’s inoperability but, nevertheless, requested the court to charge the jury on the affirmative defense set forth in Penal Law § 160.15 (4). That section provides that if the accused proves by a preponderance of the evidence that the firearm displayed in the robbery was not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged”, then the most serious crime for which the accused can be convicted is second degree robbery. The trial court refused to give the instruction and defendant was convicted of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the third degree (for an unrelated car theft). A divided Appellate Division affirmed the judgment of conviction.

On appeal, defendant claims that the trial court erred in failing to charge the affirmative defense on operability of the weapon. Before defendant was entitled to the instruction, however, the burden rested on him to make a prima facie showing that the gun was inoperable or unloaded. He failed to do so. The only evidence he points to was the testimony of one of the investigating police officers concerning the absence of cartridges, bullets or damage to the glass in the front of the store and the officer’s assumption in his incident report that the gun "apparently contained blanks”. Even if a prima facie showing was made that only blanks were fired, however, the members of the jury could do no more than speculate that defendant’s gun was not capable of causing death or other serious physical injury, and thus the court properly denied defendant’s request to submit the issue to them.

Defendant’s remaining contentions are either unpreserved or without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Anthony Sparago, Appellant, v New York State Board of Parole et al., Respondents.
    Decided April 26, 1988

      APPEARANCES OF COUNSEL

      Alice O. Mann, Robert Selcov and David C. Leven for appellant.

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

Memorandum.

The order of the Appellate Division should be modified, with costs, and the proceeding remitted to Supreme Court with direction to remand to respondents for recomputation of the time calculations in accordance with this memorandum.

In 1984, while paroled from consecutive sentences imposed in 1980, petitioner was arrested for burglary. He was later convicted of the charges and sentenced to a 3-to-6-year indeterminate term. His parole from the 1980 sentence was revoked because of the burglary charges, but by stipulation between the parties the revocation was subsequently set aside because proper notice of the revocation charges had not been provided (but see, Executive Law § 259-i [3] [d] [iii] [L 1984, ch 413, § 2] [indicating revocation will be automatic in future cases where parolee convicted of crime committed on parole]).

In calculating petitioner’s term of imprisonment, the dates on which he will be eligible for parole and conditional release and the maximum expiration date of his sentences, respondents determined his 1980 and 1984 sentences had to be aggregated. Initially, respondents employed an aggregation method pursuant to which petitioner would serve the balance of the parole supervision time owed under his 1980 sentence after serving his 1984 sentence. His projected conditional release date (see, Penal Law § 70.40 [1] [b]; Correction Law § 803) was based on the maximum term of the 1984 sentence only and his jail time credit (Penal Law § 70.30 [3]) was deducted from the court-imposed minimum and maximum terms. This computation satisfied the aggregation requirements of Penal Law § 70.30 (1) (b), yet the stipulation setting aside his parole revocation was also given effect because he was not exposed to incarceration on the balance of the 1980 sentence.

Respondents subsequently recalculated the aggregated sentence by adding the time remaining on petitioner’s 1980 sentence to the maximum sentence he received under the 1984 sentence. Under this computation the aggregate maximum sentence time was determined to be approximately nine years. Respondents then calculated petitioner’s potential conditional release date based on the aggregate maximum sentence. The consequence to petitioner of the change in calculations was the loss of jail time credit off his minimum sentence, an extension in the time before his conditional release date, and an increase in the maximum time he could spend in custody.

Petitioner commenced this proceeding contending: his 1980 sentence should run concurrently and should not be aggregated with his 1984 sentence; he should not have to serve any time in custody on his 1980 sentence because his parole from that sentence was not revoked; and he was entitled to jail time credit he had not received. Supreme Court dismissed the petition. The Appellate Division reversed, finding petitioner entitled to the jail time credit he sought. The Appellate Division agreed with Supreme Court on the issue now before us, however, holding that because petitioner’s sentences were to run consecutively (see, Penal Law § 70.25 [2-a]), they had to be aggregated (see, Penal Law § 70.30 [1] [b]). It did not address which aggregation method used by respondents was proper, but implicitly held the recalculated sentence was computed using the correct method.

We agree with the Appellate Division that petitioner’s sentences had to be aggregated, but disagree, under these facts, as to the aggregation method which should be used. Petitioner’s maximum potential time under custody should not be increased by the sentence time owed on his 1980 sentence because his parole from that sentence was not revoked. The second method used by respondents in calculating his aggregated sentence is thus erroneous. The initial time calculation, however, did not subject petitioner to additional incarceration for his unrevoked parole sentence and was therefore proper (see, Matter of Concepcion v New York State Bd. of Parole, 71 AD2d 819; see also, Matter of Smith v Chairman of N. Y. State Bd. of Parole, 60 AD2d 775, affd 44 NY2d 982, cert denied sub nom. Henderson v Majors, 439 US 1088; Matter of Piersma v Henderson, 60 AD2d 1001, affd 44 NY2d 982; Matter of Edge v Regan, 55 AD2d 940; People ex rel. Royster v Bombard, 55 AD2d 940). Petitioner is thus to serve his 1984 sentence and then serve his parole supervision time owed on his 1980 sentence. His aggregated sentence should be recomputed employing the first time calculation method. This method not only effectuates the stipulation which provided petitioner’s parole would not be revoked, but also credits him with the 217 days of jail time to which the Appellate Division found him entitled.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to petitioner, and matter remitted to Supreme Court, Albany County, with directions to remand to respondents for recomputation in accordance with the memorandum herein and, as so modified, affirmed.


text:
    The People of the State of New York, Respondent, v Larry Sanders, Appellant.
    Argued March 23, 1988;
    decided April 26, 1988

      APPEARANCES OF COUNSEL

      Beverly Van Ness and Philip L. Weinstein for appellant.

      Robert Abrams, Attorney-General (Diane M. Peress, O. Peter Sherwood, Lawrence Kahn, John Michael Ryan and Edward D. Saslaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals from a judgment entered in New York County convicting him, upon his plea of guilty, of grand larceny in the third degree and sentencing him as a second felony offender to an indeterminate term of from IV2 to 3 years’ incarceration. New York County Supreme Court based its determination of predicate felon status on a 1973 conviction for attempted possession of a weapon in the third degree. That very issue had only recently been resolved against the People in a prior proceeding in Queens County. A Supreme Court Justice there, employing a standard we subsequently disapproved (People v Harris, 61 NY2d 9), found the 1973 conviction unconstitutionally obtained and an invalid basis upon which to adjudicate defendant a predicate felon. Defendant contends that the People should therefore have been estopped from seeking a predicate felon adjudication in the New York County proceeding based upon the 1973 conviction.

Application of the doctrine of collateral estoppel requires, among other things, that there has been a prior proceeding resulting in a valid and final judgment (People v Goodman, 69 NY2d 32, 37; People v Sailor, 65 NY2d 224, 228-229; Matter of McGrath v Gold, 36 NY2d 406; Ashe v Swenson, 397 US 436, 443). Without deciding whether there are other impediments to the application of collateral estoppel here, we note that although there had been a guilty plea entered in the Queens County proceeding, sentence had not yet been imposed, and the People had not had an opportunity to challenge the adverse ruling on appeal. Indeed, defendant still had the opportunity to move to withdraw his plea (see, CPL 220.60 [3]). Thus, at the time of the New York County proceeding, no final valid judgment had been rendered in the prior proceeding (see, CPL 1.20 [15] [defining judgment as conviction and sentence imposed thereon]). Therefore, the People were not estopped from relitigating defendant’s status as a predicate felon at the subsequent proceeding in New York County (People v Sailor, 65 NY2d 224, 228-229, supra; Matter of McGrath v Gold, 36 NY2d 406, 412, supra).

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Joseph Deubler, Appellant, v Andrew F. Siedlecki, as Tioga County Family Court Judge, et al., Respondents.
    Decided April 26, 1988
   Appeal transferred to the Appellate Division, Third Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Cindy M. G., Respondent, v Michael B. A., Appellant.
    Decided April 26, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    Gregg Macey et al., Respondents, v Charles Truman, Appellant.
    Submitted March 14, 1988;
    decided April 26, 1988
   Motion to amend remittitur granted, remittitur recalled and, when returned, it will be amended by deleting the words "with costs” and substituting therefor the words "without costs”. [See, 70 NY2d 918.]


text:
    Board of Education of Monroe-Woodbury Central School District, Respondent, v Abraham Wieder, Individually and as Parent and Natural Guardian of Hudes Wieder, a Handicapped Child, et al., Appellants.
    Submitted February 16, 1988;
    decided April 26, 1988
   Motion to dismiss appeal denied. Case set down for argument during the May-June session.


text:
    Regional Gravel Products, Inc., Respondent, v Marjorie Stanton et al., Appellants. (And Another Action.)
    Submitted February 22, 1988;
    decided April 26, 1988
   Motion for leave to appeal from the Appellate Division order affirming the order of Supreme Court denying the motion to amend the judgment dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied.


text:
    Ruth Shragai, Respondent, v Yehuda Shragai, Appellant.
    Decided April 26, 1988
   Appeal, insofar as taken from so much of the Appellate Division order as affirmed the contempt order, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that that portion of the order appealed from does not finally determine the action within the meaning of the Constitution. Appeal, insofar as taken from so much of the Appellate Division order as affirmed the order and judgment of Supreme Court, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Sandra Tarr, Appellant, v F. Schumacher & Co. et al., Respondents.
    Submitted April 4, 1988;
    decided April 26, 1988
   Motion insofar as it seeks leave to appeal from the Appellate Division order of affirmance dismissed as untimely. Motion insofar as it seeks leave to appeal from the Appellate Division order denying reargument dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Michael Tenenbaum, Doing Business as Resort Nursing Home, et al., Appellants, v David Axelrod, as Commissioner of Health of the State of New York, Respondent.
    Decided April 26, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved (Matter of Shannon B., 70 NY2d 458, 462).


text:
    The People of the State of New York, Respondent, v Samuel N. Knight, Appellant.
    Submitted April 4, 1988;
    decided April 26, 1988
   Motion to vacate March 16, 1988 order dismissing appeal granted .[See, 71 NY2d 891.]


text:
    The People of the State of New York, Respondent, v Arnold Lawson, Appellant.
    Argued March 23, 1988;
    decided April 28, 1988

      APPEARANCES OF COUNSEL

      Leon R. Port for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted with codefendants William Arrington and Kenneth Perkins for criminal sale of a controlled substance in the second degree. The charges arose from their sale of approximately 33 grams of heroin to an undercover police officer on September 16, 1982. Codefendant Arrington was charged in a separate indictment with the sale of a larger quantity of heroin on September 27, 1982. Before trial, Arrington moved for a severance, contending that defendant and Perkins would attempt to elicit testimony about his September 27 sale, that such evidence was inadmissible under the rule of People v Molineux (168 NY 264) and that he would be prejudiced as a result. Defendant joined in Arrington’s motion. Severance was denied but, over defendant’s opposition, the court granted Arrington’s alternative motion for an order precluding the prosecution and his codefendants from referring to the September 27 transaction. Both were convicted at the ensuing joint trial. Defendant now contends that the preclusion order restricting his ability to cross-examine the People’s witnesses about Arrington’s sale of heroin on September 27 violated his Sixth Amendment confrontation rights. His claim is based on the following theory.

At trial, witnesses who testified against defendant identified him as the "boss” of the three men engaged in the September 16 transaction whereas defendant sought to portray himself as an innocent bystander. In summation, defense counsel rhetorically asked the jury why would the "boss” of a drug-selling operation actually appear on the street where the sale took place. This prompted the District Attorney to respond in summation that perhaps defendant involved himself in the September 16 deal because it was a significant transaction involving $1,200. Defendant contends the evidence of the September 27 sale was relevant to rebut this argument. Because the September 27 sale involved a larger quantity of heroin and a higher purchase price, defendant asserts if he were the "boss” it would have been more likely for him to have been present at the later sale. He thus maintains he should have been afforded the opportunity to cross-examine the People’s witnesses to show that although the September 27 sale was of greater significance, he was not present for that transaction.

Evidence that defendant was not a participant in the September 27 sale, offered solely for the purpose of showing defendant was not predisposed to commit the crime, was irrelevant to the charges against him for selling heroin on September 16. As we have noted, "[j]ust as evidence of prior criminal conduct cannot be admitted as evidence-in-chief to establish a predisposition to commit the crime charged (People v Vails, 43 NY2d 364, 368; People v Fiore, 34 NY2d 81, 84; People v Molineux, 168 NY 264, 292), evidence tending to establish that a defendant did not commit uncharged crimes is, because of its irrelevancy, similarly inadmissible as evidence-in-chief to establish that the defendant did not commit the charged crime” (People v Johnson, 47 NY2d 785, 786). Accordingly, the court’s order precluding defendant from attempting to establish what took place during the later sale was entirely proper and did not violate his Sixth Amendment right of confrontation (see, Skinner v Cardwell, 564 F2d 1381, 1389; accord, United States v Jackson, 756 F2d 703, 706).

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

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

Order affirmed in a memorandum.


text:
    Town of Brookhaven, Respondent, v Marian Chun Enterprises, Inc., Appellant.
    Decided April 28, 1988

      APPEARANCES OF COUNSEL

      Bernard Myerson for appellant.

      Allen I. Sak, Town Attorney (Denise F. Molia of counsel), for respondent.

      E. Thomas Boyle, County Attorney (Garrett W. Swenson, Jr., of counsel), for Alice Amrhein, as Commissioner of the Suffolk County Department of Social Services, amicus curiae.

      Jerrold M. Levy for Westchester County Legal Services, Inc., amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Since 1983, the Suffolk County Department of Social Services has provided temporary emergency housing for some of the county’s homeless families at the Lakeview Lodge Motel and similar accommodations. In 1984, the Town of Brookhaven commenced this action against defendant Lakeview Lodge Motel, to permanently enjoin the motel from operating a lodging or rooming house without the appropriate certificate of occupancy. In March 1985, the Town Board amended the Code of the Town of Brookhaven to limit motel accommodation to "transient travelers.” Supreme Court dismissed the action on the merits; the Appellate Division reversed, granting judgment for plaintiff. We granted leave to appeal, granted the motion of the Commissioner of Social Services of Suffolk County to appear amicus curiae, and authorized a submission by Westchester Legal Services pursuant to section 500.4 (h) of the Rules of the Court of Appeals (22 NYCRR 500.4 [h]).

The interests of neither the Commissioner of Social Services of Suffolk County nor any representative of the homeless aid recipients occupying the Lakeview Lodge Motel have been heard below. As the action is presently framed, their interests might be inequitably affected by the outcome of the action (CPLR 1001 [a]; City of New York v Long Is. Airports Limousine Serv. Corp., 48 NY2d 469, 473; First Natl. Bank v Shuler, 153 NY 163, 170; Albert C. v Joan C., 110 AD2d 803, 804). Accordingly, we reverse the order of the Appellate Division, and dismiss the complaint without prejudice pursuant to CPLR 1003 (Matter of Lezette v Board of Educ., 35 NY2d 272, 282).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    Anthony J. Vitale, Respondent, v Robert J. Hagan et al., Appellants, et al., Defendants.
    Argued March 21, 1988;
    decided April 28, 1988

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Edward F. X. Hart, Leonard Koerner and Francis F. Caputo of counsel), for appellants.

      Mark S. Arisohn and Brian D. Copian for respondent.
   OPINION OF THE COURT

Order modified, with costs to defendant City of New York against plaintiff, by dismissing the cause of action for malicious prosecution only as against defendant city for the reasons stated in so much of the dissenting memorandum of Presiding Justice Francis T. Murphy, Jr., at the Appellate Division (132 AD2d 468, 470-472) as relates to the untimely and thus invalid notice of claim and, as so modified, affirmed, with costs to plaintiff against defendant Hagan.

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


author: Titone, J.

text:
    City of New York, Respondent, v Kalikow Realty Company, Appellant.
    Argued March 23, 1988;
    decided April 28, 1988
    APPEARANCES OF COUNSEL

      Martin M. McGlynn for appellant.

      Peter L. Zimroth, Corporation Counsel (Margaret G. King, Edward F. X. Hart and Lucy A. Cardwell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 27, 1972, the City Department of Highways placed a violation on defendant’s premises, stating that the abutting sidewalk was in need of repair. (New York City Charter former § 230 provided that if a property owner failed to cure a violation the City could then make the required repairs at the owner’s expense.) Defendant responded to the City’s notice by letter dated July 10, 1972, as follows:

"We have erected a fence and repaired the sidewalk so as to be in a safe condition. We intend to start construction at the said site within the next year and shall until then and during the entire course of construction maintain the sidewalk in a safe condition.

"Upon completion of our building the sidewalk will be completely reconstructed. We request the City of New York not to proceed with any work as outlined on the violation since such work would of necessity be destroyed at the start of construction.”

Approximately two years later, still during defendant’s construction, a pedestrian was injured when he fell on a broken sidewalk. In the subsequent personal injury action against the City and defendant’s affiliate (the construction contractor), the City alone was held liable for breach of its statutory duty to maintain the sidewalks, and it paid the full amount of the judgment to plaintiff. The City thereafter brought this action against defendant for indemnification. Special Term granted the City’s motion for summary judgment and a divided Appellate Division affirmed. We agree with the Appellate Division majority that, in the particular circumstances before us, the City should be permitted to recover from defendant the full amount of the judgment it paid to plaintiff.

It bears emphasis that the issue before us is limited to who, as between the City and this property owner, should ultimately pay plaintiffs judgment. This case in no way affects either the injured plaintiff, who has already been fully compensated by the City, or the City’s nondelegable duty to maintain its sidewalks, a duty the City concedes. Nor does our holding countenance the City’s breach, as found after trial, of its obligation to maintain its streets in safe condition, or inject any disincentive to performance of that duty. We consider only the narrow circumstances of this property owner’s explicit resistance to the City’s initiation of the repair process, coupled with an assumption of that responsibility and a request for municipal forbearance.

Defendant’s insistence now that the City must share payment of the judgment, instead of indemnifying the City in the whole amount, requires us to ignore defendant’s letter, written in response to the City’s initiation of action to repair the street by service of a violation notice under New York City Charter § 230, unequivocally assuming responsibility to repair and maintain the sidewalk in a safe condition during its construction project. Closely akin to the present situation is Rogers v Dorchester Assocs. (32 NY2d 553), in which we held that a building owner was entitled to indemnification from a company that undertook to inspect, maintain and repair elevator equipment that malfunctioned and injured plaintiff. The building owner’s nondelegable duty to maintain the premises in a safe condition — presenting the same policy considerations as the City’s nondelegable duty to maintain the sidewalks — was not a bar to indemnification by the party who had explicitly assumed that duty (id., at 563).

This case is materially different from either D’Ambrosio v City of New York (55 NY2d 454, 460) or Guzman v Haven Plaza Hous. Dev. Fund Co. (69 NY2d 559). In neither case did one party actually begin action to make certain stated repairs (as evidenced by the City’s violation notice) and in response receive the explicit undertaking of the landowner that it would do so. By denying a right of indemnification in the circumstances presented, the dissent would extend the law beyond any previous decision of this court, and would effectively preclude implied indemnification whenever a nondelegable duty is involved — the very situation when implied indemnification is likely most necessary. There being no legal or policy impediment to an affirmance here, we conclude that the law sensibly should give effect to the particular dealings between the City and this landowner.

Finally, on this record we must reject defendant’s assertion that the City is barred from recovery because it failed to establish an adequate defense of the personal injury action. Defendant fails to identify any error in the findings made by Special Term, upon a review of the trial transcript, that an adequate defense was presented.

Titone, J.

(dissenting). The majority concludes that the City may invoke the common-law doctrine of indemnification to shift the entire responsibility for the pedestrian’s injuries to defendant solely because of defendant’s undertaking to maintain the sidewalk adjacent to its lot in safe condition. Further, in its effort to reconcile this ruling with the court’s recent decision in Guzman v Haven Plaza Hous. Dev. Fund Co. (69 NY2d 559), which involved a similar undertaking, the majority has seized upon the distinction it perceives in defendant’s inducing the City to refrain from making stated repairs by such an explicit undertaking (majority mem, at 959).

In my view this analysis is unsound, because it rewards the City for abdicating its municipal responsibilities on the strength of a bare promise by a private citizen to act in the City’s stead. Since recent decisions of this court, the governing statute, and public policy preclude such a result, I respectfully dissent and cast my vote for reversal.

Initially, there can be little dispute about the basic difference between common-law indemnification and the more recently recognized right of contribution, which was codified in CPLR article 14. As we have repeatedly observed, "where one joint tort-feasor 'is held liable solely on account of the negligence of another, indemnification, not contribution, principles apply to shift the entire liability to the one who was negligent’ ” (Guzman v Haven Plaza Hous. Dev. Fund Co., supra, at 567-568, quoting D’Ambrosio v City of New York, 55 NY2d 454, 462; see, e.g., Glaser v Fortunoff of Westbury, 71 NY2d 643; Rogers v Dorchester Assocs., 32 NY2d 553, 556).

In Rogers v Dorchester Assocs. (supra), on which the majority relies, we concluded that a property owner could recover against an independent contractor who promised to maintain the owner’s elevator on a theory of implied indemnification. We stated that contribution "applies to those who in fact share responsibility for causing the accident or harm, and does not extend further to those who are only vicariously liable [such as] the owner of a building who contracts with an independent contractor exclusively responsible for maintenance of the building or parts of it” (id., at 566). Thus, Rogers, at first blush, would seem to support the majority’s position.

In D’Ambrosio, however, this court abrogated the "special benefit” rule and held that the City could not seek common-law indemnification from the adjacent landowner for "trip and fall” damages resulting from a poorly maintained sidewalk appurtenance, at least in the absence of an undertaking by the property owner "to repair for the benefit of the municipality” (55 NY2d, at 463, supra). In denying the City the right to shift the entire burden of liability to the landowner, the court in D’Ambrosio observed: "If the municipality pays the damages, it is not being compelled to pay for the wrong of another; it is simply being held liable for its own failure to exercise reasonable care” (55 NY2d, at 463, supra).

The effect of a specific undertaking to repair was considered even more recently in Guzman v Haven Plaza Hous. Dev. Fund Co. (supra). In that case, we were called upon to consider whether an out-of-possession landowner held liable for injuries occurring on its premises could seek common-law indemnification from its tenant, which had covenanted to keep the premises in good repair. Despite this express and specific undertaking, we held that the landowner could not claim indemnification from the tenant since its liability was not purely derivative. Rather, the landowner’s responsibility arose from a duty it owed to the injured party: "a duty to remedy the defect, something it was permitted to do under the lease and obliged to do under the Administrative Code” (69 NY2d, at 569, supraX

Thus, the teaching of Guzman is that the mere existence of an undertaking by another to repair and maintain safe conditions is not alone a sufficient ground for permitting the party with primary responsibility to shift the entire burden of liability away from itself. In addition to the existence of such an undertaking, the court must consider whether the agreement conferred exclusive control over the premises on the promisor and totally divested the promisee of its own responsibility for the premises’ safety.

Here, as the majority acknowledges and the City concedes, New York City Charter former § 230 imposed on the City a nondelegable duty to maintain the sidewalk in a safe condition (D’Ambrosio v City of New York, supra; Russell v Village of Canastota, 98 NY 496). Under that statute, however, the City also had a duty to make certain that the property owner kept the sidewalks safe for pedestrian traffic, and a further duty to make repairs itself, in the event the property owner failed to fulfill its statutory responsibilities. Hence, its liability to the injured pedestrian was not solely derivative (cf., Riviello v Waldron, 47 NY2d 297), but rather was based on its own breach of the duty of care that it owed to the pedestrian. Thus, as in Guzman, the undertaking by a third party did not give rise to a common-law right of indemnification unless that undertaking completely divested the City of all responsibility and control.

That question obviously must be answered in the negative. To suggest that the City may be completely divested of all responsibility and control in this situation is inconsistent with the fundamental notion of government’s ultimate duty to maintain its public byways in reasonably safe condition.

Equally strong public policy objections exist in relation to the majority’s suggestion that the City should be permitted to claim indemnification because it was induced by defendant’s undertaking to refrain from making its own repairs. Further, the position the majority espouses runs counter to the policies expressed in New York City Charter former § 230 (now codified at Administrative Code of City of New York § 19-152). Under that provision, the City was authorized to direct a lot owner to construct or repair an adjacent sidewalk. If the owner failed to comply, the City was then authorized to perform the work itself and impose the cost on the lot owner. Nothing in this provision suggests that the City may, by agreement, or inducement, abdicate its responsibility for the sidewalk’s safety to the lot owner. To the contrary, the terms of the provision suggest that even where the lot owner’s parallel obligation to repair the sidewalks is invoked, the City retains an ongoing duty to supervise the lot owner’s performance and intervene in the event that such performance is inadequate.

In short, given its responsibilities as a municipality, the City simply has no right to rely on a private citizen’s promise to keep the streets in good repair. Accordingly, the fact that the defendant in this case asked the City to refrain from carrying out its duties is of no legal significance, and cannot be used by the City as a basis for shifting its liability. Even assuming that the City was lulled into inaction by the defendant’s promise, it still had a continuing duty to take reasonable affirmative steps to keep the sidewalk safe, but it apparently failed to carry out its obligation to ensure that defendant property owner was properly performing in accordance with its undertaking. Since that undertaking did not, and could not, divest the City of the duty imposed on it by law to maintain the public sidewalks in safe condition, "contribution and not common-law indemnity is the applicable rule” (Guzman v Haven Plaza Hous. Dev. Fund Corp., supra, at 569). Consequently, the City’s complaint should have been dismissed insofar as it seeks recovery under a common-law indemnification theory. Its remedy is a claim over for contribution based on apportionment of fault pursuant to Dole v Dow Chem. Co. (30 NY2d 143) and CPLR article 14.

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

Order affirmed, with costs, in a memorandum.

      . The landowner was "permitted to” remedy defects under a lease clause that gave it a right to reenter and make necessary repairs if the tenant failed to do so (69 NY2d, at 564; see also, id., n 2). The landowner’s statutory obligation to repair arose from Administrative Code of the City of New York § 27-128, which made the landowner responsible "at all times for the safe maintenance of the building and its facilities” (see, 69 NY2d, at 565).

      . In response to the majority’s suggestion that our dissenting position forecloses use of common-law or "implied” indemnification in cases involving nondelegable duties, we stress that our conclusion that the City cannot claim indemnification flows not from the nature of its duty to the injured plaintiff but rather from the fact that its liability to the plaintiff was not purely vicarious.


text:
    John G. Garrett, Respondent, v John O’Shea, Appellant.
    Decided April 28, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the appeal does not lie (NY Const, art VI, § 3; CPLR 5601).


text:
    The People of the State of New York, Respondent, v Jose Jiminez, Appellant.
    Submitted October 26, 1987;
    decided April 28, 1988
   On the court’s own motion, appeal dismissed upon the ground that the appellant is not available to obey the mandate of the court in the event of an affirmance. Motion for assignment of counsel dismissed as academic.


text:
    Miles Mogulescu et al., Appellants, v 255 West 98th Street Owners Corp., Respondent.
    Decided April 28, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved, and, as to plaintiff Mogulescu, upon the further ground that the order appealed from does not finally determine the action within the meaning of the Constitution.