text:
    The People of the State of New York, Respondent, v Darryl Jenkins, Appellant.
    Decided October 21, 1986

      APPEARANCES OF COUNSEL

      Barbara L. Hartung and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney, for respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of remitting the case to Supreme Court, Bronx County, for a hearing on defendant’s motion to vacate the judgment of conviction pursuant to CPL 440.10, and for further proceedings in accordance with this memorandum. As so modified, the order is affirmed.

In this robbery prosecution, the only evidence linking defendant to the crime was the identification testimony of a single witness who, it was established on cross-examination, was lying face down on the floor with her head resting on her forearms during the robbery. Thus, a critical issue in the trial was whether this witness had an adequate opportunity to observe the event. Nonetheless, it appears from the papers filed in support of defendant’s motion to set aside the judgment of conviction that trial counsel failed to make use of police reports in her possession which established that two other suspects were identified by this witness as defendant’s accomplices, and that both of these identifications proved to be erroneous. According to defendant’s moving papers, which claimed a denial of his right to effective assistance of counsel, the only reason for this omission was that defendant’s trial counsel believed the evidence to be inadmissible. In denying defendant’s motion without a hearing, the Trial Justice apparently agreed, stating, "Whether or not the witness correctly identified defendant’s alleged accomplices was collateral to the issues at trial.” We disagree.

The evidence was clearly probative of the witness’s ability to accurately recall or to observe the details of the robbery, a material, indeed critical, issue in the trial. Under the circumstances of this case, defense counsel’s failure to use the evidence of prior misidentifications, if due solely to an erroneous belief that such evidence was inadmissible, was so prejudicial to defendant’s cause as to deprive him of meaningful representation (cf. People v Zaborski, 59 NY2d 863). Unlike in People v Satterfield (66 NY2d 796), in this case no tactical explanation for trial counsel’s omission is apparent from the transcript or the papers submitted on the motion pursuant to CPL 440.10. We cannot assume, however, simply on the basis of defendant’s allegations, that no such explanation exists. Accordingly, it was error to deny defendant’s motion without a hearing and the case must be remitted to Supreme Court for the resolution of pertinent factual issues.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified to the extent of remitting the case to Supreme Court, Bronx County, for a hearing and other proceedings in accordance with the memorandum herein and as so modified, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Victor Vincenty, Appellant.
    Decided October 21, 1986
    APPEARANCES OF COUNSEL

      Barry S. Stendig and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Richard E. Haftel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Trial Judge distributed portions of his preliminary instructions to the jury in writing, which included a written outline of the elements of robbery in the first degree. Defendant’s objection to this procedure was preserved for this court’s review as it was sufficiently specific (see, People v Vidal, 26 NY2d 249, 254; People v West, 56 NY2d 662, 663). This procedure violated defendant’s right to a fair trial, and the error cannot be considered harmless (see, People v Townsend, 67 NY2d 815).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and a new trial ordered in a memorandum.


text:
    Herbert G. Cox, Appellant, v Walter H. Edmister et al., Respondents.
    Decided October 21, 1986
   Judge Kaye taking no part.


text:
    Philip Frank et al., Plaintiffs, v R. J. K. Realty Co. et al., Appellants, and Arthur B. Levine, Respondent.
    Submitted August 11, 1986;
    decided October 21, 1986
   Judge Kaye taking no part.


text:
    Abbey Shepard, Appellant, v Ray Longwell et al., Respondents.
    Decided October 21, 1986
   Judge Meyer taking no part.


text:
    Shlomo Sternberg, as Administrator of the Estate of Matthias S. Sternberg, Deceased, Plaintiff, v Radio Corporation of America et al., Defendants, and American Telephone and Telegraph Company, Defendant and Third-Party Plaintiff-Appellant. Citibank, N. A., Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Decided October 21, 1986
   Judge Kaye taking no part.


text:
    Frederic E. Weinberg, Individually and on Behalf of All Others Similarly Situated, Respondent, v Hertz Corporation, Appellant.
    Submitted September 8, 1986;
    decided October 21, 1986
   Judge Kaye taking no part.


text:
    In the Matter of Salamanca Nursing Home, Inc., et al., Appellants. Lillian Roberts, as Commissioner of Labor, Respondent.
    Decided October 23, 1986

      APPEARANCES OF COUNSEL

      Roger P. Gilson for appellants.

      Robert Abrams, Attorney-General (O. Peter Sherwood and Frederick M. Paola of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Petitioners, who operate a nursing home for the aged and infirm, appeal from a determination of the Unemployment Insurance Appeal Board, affirmed by the Appellate Division, that certain part-time professionals working for it, i.e., a medical director, a social services consultant and a dietician consultant, are employees for purposes of unemployment insurance. They contend that to be considered an employer for such purposes a medical facility must actually exercise control over the means and product of the part-time medical professionals’ work.

Generally, control over the results produced by work and the means used to achieve those results determines whether an employer-employee relationship exists (Matter of 12 Cornelia St. [Ross], 56 NY2d 895). However, we have recognized that medical professionals, because of their professional and ethical responsibilities, are not subject to control to the same extent or in the same manner as others (Matter of Goldstein [Roberts], 61 NY2d 937). Thus, we have held that over-all control is sufficient to establish the employee relationship where medical work is concerned (Matter of Concourse Ophthalmology Assoc. [Roberts], 60 NY2d 734).

Notwithstanding this rule, petitioners claim that the supervision they exercise is based upon contractual language mandated by regulation, 10 NYCRR 400.4 (a) (4), reserving institutional control over the work of the medical professionals. They rely on 12 Cornelia St. for the proposition that language in the employment contracts cannot serve as the sole predicate for a determination of an employer-employee relationship. This case differs from 12 Cornelia St., however, because the nursing home’s contractual language is much broader than that mandated by 10 NYCRR 400.4. The agreements provide that "[t]he Salamanca Nursing Home, Inc. retains professional and administrative responsibilities for the services rendered.” The Board’s determination rested not only on these contract provisions but also on testimony by the nursing home administrator that the facility retained the power to hire, evaluate, and discharge these medical personnel, that it set the number of hours the medical personnel worked, their rate of pay and their responsibilities, responsibilities which included developing plans of care for patients and evaluating the work of nursing home personnel.

The factual determination of the Unemployment Insurance Appeal Board is binding on the courts if it is based upon substantial evidence, even if the evidence could also uphold a contrary determination (Matter of MNORX, Inc. [Ross], 46 NY2d 985). Applying the standard of over-all control, the record contains substantial evidence of an employer-employee relationship (Matter of Goldstein [Roberts], supra; Matter of Concourse Ophthalmology Assoc. [Roberts], supra).

Order affirmed, with costs.

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

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


text:
    In the Matter of Dairylea Cooperative, Inc., Respondent, v Joseph Gerace, as Commissioner of the Department of Agriculture and Markets, Appellant.
    Decided October 23, 1986
    APPEARANCES OF COUNSEL

      Michael McCormick for appellant.

      Richard A. Reed for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and that portion of the determination of the Commissioner of the Department of Agriculture and Markets reinstated.

In reviewing the claim of respondent, Dairylea Cooperative, Inc. (as a producer) against the milk producers’ security fund for milk sold by Dairylea to Glen & Mohawk Milk Association (a defaulting dealer), the Commissioner applied as offsets both the value of milk and the value of milk packaging that Dairylea (as a dealer) had purchased from Glen & Mohawk and its subsidiary. Dairylea does not dispute the Commissioner’s authority to make offsets for milk purchased from Glen & Mohawk but does dispute the right to offset amounts owed for packaging. The Appellate Division, in modifying the Commissioner’s determination, limited the offsets to milk, reasoning that, because Dairylea’s claim against the fund was statutorily restricted to "the appropriate uniform price of the milk” (Agriculture and Markets Law § 258-b [5] [b]), offsets should be limited accordingly. While the statute does not expressly settle the issue one way or the other, we conclude that in offsetting Dairylea’s indebtedness to Glen & Mohawk both for milk and for milk packaging, the Commissioner acted within his authority and charge to maintain the integrity of the fund. The Commissioner’s determination was, moreover, reasonable in light of the legislative policy that engendered this limited fund to protect, producers against undue credit risk in their sales to dealers (see, L 1975, ch 526, § 1; see also, Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Mkts., 58 NY2d 1097, 1100), and was supported by evidence in the record. There is no assertion that the Commissioner’s determination was discriminatory.

Chief Judge Wachtler and Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr., 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 insofar as appealed from reversed, etc.


text:
    In the Matter of the Claim of Booker T. Sanders, Appellant, v Samsol Homes, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Decided October 23, 1986

      APPEARANCES OF COUNSEL

      Harry Kresky for appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff, Carlin Meyer and Theresa E. Wolinski of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (120 AD2d 893).

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


text:
    The People of the State of New York, Respondent, v Pedro Bastidas, Also Known as Pedro Criollo, Appellant.
    Submitted September 15, 1986;
    decided October 23, 1986
   Judge Kaye taking no part.


text:
    Incorporated Village of Freeport, Respondent, v Milton Sanders et al., Defendants and Third-Party Plaintiffs-Respondents. Kressner & Schulman et al., Third-Party Defendants-Appellants.
    Decided October 23, 1986
   Judge Kaye taking no part.


text:
    Incorporated Village of Freeport, Plaintiff, v Milton Sanders et al., Defendants and Third-Party Plaintiffs-Respondents. Kressner & Schulman et al., Third-Party Defendants-Appellants.
    Decided October 23, 1986
   Judge Kaye taking no part.


text:
    Clement J. Pacyna, Appellant, v Lee G. Greenley et al., Respondents.
    Submitted October 14, 1986;
    decided October 23, 1986
   Judge Kaye taking no part.


text:
    In the Matter of Maria Poliandro, Respondent, v Salvatore J. Poliandro, Appellant. Maria M. Poliandro, Respondent, v Salvatore Poliandro, Appellant.
    Decided October 23, 1986
   Judge Kaye taking no part.


text:
    3924 Equities, Inc. (Substituted for Concord Realty, Inc.), Respondent, v Felix M. Fadul et al., Appellants.
    Submitted August 18, 1986;
    decided October 23, 1986
   Judge Kaye taking no part.


text:
    Samuel D. Verga et al., Respondents, v Town of Clarkstown, Appellant, et al., Defendant.
    Decided October 23, 1986
   Judge Kaye taking no part.


text:
    In the Matter of Jerome D. Cohen.
    Decided November 11, 1986
   OPINION OF THE COURT

On consideration of continuation of this court’s October 6, 1986 suspension, with pay, of Honorable Jerome D. Cohen from his office of Justice of the Supreme Court, Second Judicial District, it is determined that the suspension continue, without pay, effective immediately.

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


text:
    In the Matter of Patrick T. Maney.
    Decided November 11, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Patrick T. Maney is not suspended from his office of Justice of the East Greenbush Town Court, Rensselaer County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

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


text:
    In the Matter of Francis X. Smith.
    Decided November 11, 1986
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Francis X. Smith is suspended, with pay, effective immediately, from his office of Justice of the Supreme Court, Eleventh Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law § 44 (8) (b), (c).

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


text:
    The People of the State of New York, Appellant, v Caperahim Khan, Respondent.
    Argued October 7, 1986;
    decided November 11, 1986

      APPEARANCES OF COUNSEL

      Denis Dillon, District Attorney (Lawrence J. Schwartz and Anthony J. Gírese of counsel), for appellant.

      David J. Wukitsch for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant’s request for a justification charge, though made after summations and the court’s initial charge, neither of which referred to that defense, was timely (CPL 300.10 [5]). The court’s denial of the request was improper even though the act upon which the defense is based was not intentional (see, People v McManus, 67 NY2d 541; People v Padgett, 60 NY2d 142; People v Huntley, 87 AD2d 488, affd 59 NY2d 868).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Plaintiff, v Alfredo Lewis, Defendant. Alfredo Lewis, Respondent, v Commissioner of Department of Correctional Services of the State of New York, Appellant.
    Argued October 6, 1986;
    decided November 11, 1986
    APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Esther Furman, O. Peter Sherwood and Howard L. Zwickel of counsel), for appellant.

      Alan E. Kudisch for respondent.

      Arnold S. Cohen and Caesar D. Cirigliano for Legal Aid Society and another, amici curiae.

      Janet Packard, Michael Raskin, Robert Selcov, Stephen M. Latimer and David C. Leven for Prisoners’ Legal Services of New York, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Plaintiff, a convicted felon, challenges as a violation of his First Amendment rights the application to him of defendant’s directive requiring that male prisoners receive an initial haircut. Plaintiff is an avowed Rastafarian, wears his hair in dreadlocks, and has not cut his hair for 20 or more years. It is undisputed that he is sincere in his beliefs, that they are of religious nature, and that a haircut would impinge on those beliefs. The challenged directive provides that males received as new commitments have an initial haircut and shave for reasons of health and sanitation as well as to permit the taking of the initial identification photographs; following the initial haircut, there is no restriction on the length of an inmate’s hair. On this appeal, defendant urges only that the initial haircut is essential to prison security in that photographs taken at that time facilitate quick identification of inmates and escapees.

A prisoner retains First Amendment rights "not inconsistent with his status as a prisoner or with legitimate penological objectives of the corrections system.” (Pell v Procunier, 417 US 817, 822.) A regulation challenged on the ground that it impinges on First Amendment rights will be upheld if — giving due deference to the discretion and expertise of prison authorities — the regulation furthers substantial governmental interests of security, order or rehabilitation, and its encroachment on First Amendment freedoms is no greater than necessary to protect the interest involved (Wali v Coughlin, 754 F2d 1015, 1029; Phillips v Coughlin, 586 F Supp 1281, 1283).

Plaintiff urges that the regulation must be stricken because it does not constitute the "least intrusive means” of satisfying defendant’s administrative concern; defendant contends that the regulation should be upheld because it does not represent an "exaggerated response” to his legitimate penological interests. Both lower courts found that, as to plaintiff, the asserted objective of the regulation in issue could be fully achieved simply by pulling his hair back when the initial identification photographs are taken. This affirmed finding is supported by the testimony of a deputy commissioner in the Department of Correctional Services; and a sufficient showing was not made here of administrative burden. In this instance, therefore, defendant’s interest can be readily satisfied without any interference with plaintiff’s beliefs. Thus, whichever test is adopted, on this record the regulation as applied to plaintiff needlessly infringes on his beliefs, and cannot stand.

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

Order affirmed, without costs, in a memorandum.

       The following issues are not reached on this appeal. First, no State constitutional argument is properly presented. Second, plaintiff has agreed to comply with the shave requirement. Third, we do not consider whether Rastafarianism is a religion entitled to First Amendment protection. (See, Overton v Department of Correctional Servs., 131 Misc 2d 295.)


text:
    In the Matter of the Arbitration between Itoman (U.S.A.), Inc., Respondent, and Daewoo Corporation, Appellant.
    Submitted October 7, 1986;
    decided November 11, 1986

      APPEARANCES OF COUNSEL

      Paul Martin Weltz for appellant.

      Joseph Bartfield, Frederick E. M. Ballon and Arthur L. Stoll for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, for further proceedings in accordance with this memorandum.

In December 1983 Itoman (U.S.A.), Inc. (Itoman), a textile importer, agreed through R.D. New & Co. (New) (an international textile broker) to purchase fabric from Daewoo Corporation (Daewoo), a textile exporter in Korea. On December 10, 1983, Daewoo sent New a signed "Confirmation of Order/Sales Note” (Confirmation), on a form providing for arbitration in Korea in accordance with Korean Arbitration Association rules. New added to the Confirmation "For the Account of Itoman (U.S.A.) Inc.”, as well as other provisions. The Confirmation concluded with a statement that it "constitutes a contract between Daewoo Corporation ('Seller’) and the addressee ('Buyer’)”. Beneath this recital, and the words "Read by and agreed to”, New then placed its signature and returned the document to Daewoo in Korea. On December 12, 1983, New sent its own signed salesnote both to Daewoo and to Itoman. The salesnote provided for arbitration in New York subject to the rules of the General Arbitration Council of the Textile Industry. The salesnote was retained, without objection, by both parties and the transaction went forward. In a subsequent dispute over the quality of the fabric, Itoman demanded arbitration in New York in accordance with the salesnote, and Daewoo insisted that arbitration should proceed in Korea in accordance with the Confirmation.

Pursuant to CPLR 7503 (a), Itoman petitioned to compel arbitration in New York, and Daewoo cross-petitioned to compel arbitration in Korea. Special Term granted Roman’s motion to compel, concluding that both buyer and seller had submitted to the terms contained in the salesnote, as ratified by their subsequent acts in furtherance of the transaction, notwithstanding the "second sales note dated December 10, 1983, of confirmation by respondent to the terms patently already agreed to.” The Appellate Division affirmed, without opinion.

Central to resolving where the arbitration should take place is a determination whether the salesnote or the Confirmation controls. Had there been no Confirmation signed by New, but only the broker’s salesnote, we would agree with the courts below that arbitration should proceed in New York. When a sale is negotiated by a broker who sends "bought and sold notes” to both parties containing an arbitration clause, the broker is said to act for both parties. Though they do not expressly agree to arbitration and do not sign the broker’s notes, buyer and seller nonetheless are bound to arbitrate in accordance with those documents when they merely retain them and proceed with the transaction (see, Just In-Materials Designs v I.T.A.D Assoc., 61 NY2d 882; Matter of Woodcrest Fabrics v B & R Textile Corp., 61 NY2d 887; Matter of Huxley [Reiss & Bernhard], 294 NY 146; Matter of Catz Am. Sales Corp. [Holleb & Co.] 298 NY 504, affg 272 App Div 689). The December 10 Confirmation signed by New could, however, have negated this implied ratification and bound Itoman to arbitrate in Korea, assuming New’s authority to act for Ito-man in agreeing to such a term (see, Michel & Co. v Anabasis Trade, 50 NY2d 951; see also, American Utex Intl, v ICC Corp., 74 AD2d 747, affd 52 NY2d 888).

No choice between the conflicting documents can be made on the present record. The record contains three Confirmation forms, each somewhat different and all dated December 10, 1983; the record indicates that further terms were added to the copy signed by New; there is no evidence of when the Confirmation was received or returned to Daewoo; Itoman— which claims it lacked knowledge of the signed Confirmation until this proceeding — denies that the broker had authority of any sort to bind it to arbitration in Korea; Daewoo has disputed that its December 10 agreement was with Itoman. Moreover, the invoices contain reference to a contract not contained in the record. These are among the unresolved issues of fact. In such circumstances, we have no basis for upholding the conclusion below that the salesnote was the first and controlling document, and no choice but to remit the matter for factual determinations necessary for a proper application of the law.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Octavio Peck, Appellant.
    Argued October 8, 1986;
    decided November 11, 1986
    APPEARANCES OF COUNSEL

      Daniel Markewich for appellant.

      Robert M. Morgenthau, District Attorney (Robert M. Horkovich and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that his statement made to police officers at the scene of a robbery should have been excluded from evidence because the People failed to provide him with timely notice or demonstrate good cause for such failure (CPL 710.30). To the extent that defendant’s present contention was preserved for our review, it was waived (CPL 710.30 [3]). Defendant’s additional argument that his trial attorney was so inadequate as to deny him effective assistance of counsel is without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Dominic A. Bretti, Appellant.
    Argued October 8, 1986;
    decided November 11, 1986

      APPEARANCES OF COUNSEL

      Frank Policelli for appellant.

      Ronald Goldstock, Deputy Attorney-General (Thomas D. Thacher, II, and Arthur G. Weinstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At defendant’s trial an accomplice, Mastracco, testified at length as to defendant’s role in orchestrating Dawn Grillo’s murder. The People introduced a taped conversation between Mastracco and defendant, for the purpose of corroborating Mastracco’s testimony (CPL 60.22). Defendant challenges the sufficiency of the corroborating evidence as equivocal. Even though subject to an innocent interpretation, the taped conversation " ' "so harmonize[d] with the accomplice’s narrative as to have a tendency to furnish the necessary connection between the defendant and the crime.” ’ ” (People v Kohut, 30 NY2d 183, 194, quoting People v Morhouse, 21 NY2d 66, 74; see also, People v Farruggia, 61 NY2d 775, 777.)

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

Order affirmed in a memorandum.


text:
    Reina De Urbaez, Appellant, v Lumbermens Mutual Casualty Company, Respondent.
    Argued October 7, 1986;
    decided November 11, 1986

      APPEARANCES OF COUNSEL

      Carl Radin for appellant.

      Michael F. Close for respondent.
   OPINION OF THE COURT

Order reversed, with costs, plaintiff’s motion for summary judgment granted and case remitted to Supreme Court, Bronx County, for further proceedings, for the reasons stated in the dissenting memorandum of Presiding Justice Francis T. Murphy at the Appellate Division (116 AD2d 534, 535-538). We add only that clause 17 of the policy is applicable notwithstanding the fact that the claim against the insurance company is for first-party benefits required by Insurance Law article 51. Under Insurance Law § 5103, no-fault insurance is mandated as a part of every owner’s liability insurance policy and, hence, is included in part I of the policy here to which clause 17 applies.

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


text:
    White Plains Automotive Supply Company, Inc., et al., Appellants, v City of Peekskill, Respondent.
    Argued October 8, 1986;
    decided November 11, 1986

      APPEARANCES OF COUNSEL

      Stanley S. Zinner for appellants.

      William J. Florence, Jr., Corporation Counsel (Frank A. Catalina of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum of the Appellate Division (115 AD2d 728).

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


text:
    In the Matter of Mary V. Beaver, Respondent, v Appeals Board of Administrative Adjudication Bureau, State Department of Motor Vehicles, et al., Appellants.
    Argued October 10, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for appellants.

      Malcolm B. O’Hara and John W. Caffry for respondent.
   OPINION OF THE COURT

Judgment reversed, with costs, and determination revoking petitioner’s motor vehicle operator’s license reinstated for the reasons stated in the dissenting memorandum by Justice T. Paul Kane at the Appellate Division (117 AD2d 956, 958-959).

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


text:
    Susan Grzesiak, an Infant, by her Father and Natural Guardian, Zygmunt Grzesiak, et al., Respondents, v General Electric Company et al., Appellants.
    Argued October 9, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Steven B. Prystowsky and Eric A. Portuguese for appellants.

      Stephen C. Glosser, Pamela Anagnos Liapakis and Jay W. Dankner for respondents.
   OPINION OF THE COURT

Memorandum.

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

Defendants’ contention that the jury’s answers to the interrogatories submitted to them were inconsistent in that its finding of misuse with respect to strict products liability negated foreseeability of the necessity to warn with respect to negligence liability was not raised until its posttrial motion for judgment notwithstanding the verdict and, therefore, is not preserved for review (Barry v Manglass, 55 NY2d 803, 806). Their further claim of inconsistency in that as charged failure to warn was an element of both causes of action is negated by the charge on strict liability which in its concluding portion stated four elements required to be found before the toaster could be found defective using the letters (a), (b), (c) and (d) to separate them but used no disjunctive. Thus defendants may have been found negligent for failure to warn as to a foreseeable use, but not strictly liable because one of the other three elements of liability was not proved. That the word "or” had been used in an earlier portion of the charge in defining a defective product does not require a contrary conclusion, for we cannot assume that the jury was more sensitive to that one word in the earlier portion of the strict liability charge than to the summation of its elements given at its conclusion.

Defendants also argue that there was insufficient evidence of negligence to permit submission of the issue to the jury and that plaintiffs mother’s failure to read the instruction booklet was a supervening cause of plaintiffs injury. Both were questions for the jury on the evidence presented.

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

Order affirmed, with costs, in a memorandum.


text:
    Carol S. Irvine, as Administratrix of the Estate of David T. Irvine, Deceased, Plaintiff, v Robert Meeks, Sr., Defendant and Third-Party Plaintiff-Appellant. County of Jefferson, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Argued October 15, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Jarvis L. Gamble for appellant.

      H. Charles Livingston, Jr., and Michael D. Saunders for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see, Shinder v State of New York, 62 NY2d 945; Napolitano v County of Suffolk, 61 NY2d 863).

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


text:
    The People of the State of New York, Respondent, v Ronald Benn, Appellant.
    Argued October 9, 1986;
    decided November 13, 1986
    APPEARANCES OF COUNSEL

      Martin Diennor for appellant.

      Mario Merola, District Attorney (Susan L. Valle and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Indicted on seven counts, including attempted murder, robbery, criminal use of a firearm and criminal possession of a weapon, defendant was convicted after a jury trial of two counts of robbery in the first degree in connection with an armed robbery at a social club in The Bronx. Defendant seeks reversal of his conviction on the sole ground that, at trial, he was denied effective assistance of counsel. Such a contention, necessarily retrospective, requires proof of true ineffectiveness rather than mere disagreement with strategies and tactics that failed. The overwhelming evidence indicating defendant’s guilt — including his arrest at the scene of the robbery with two accomplices, identification at the trial by no less than five eyewitnesses, and physical evidence including seven bullets in his coat pocket — unquestionably challenged the resources of trial counsel. Having studied the record, we conclude that defendant received meaningful representation.

Defendant’s lawyer and two other lawyers representing codefendants in the joint trial pursued a common strategy: they charged that the three defendants had been framed by the police and club owner, acting in conspiracy, in order to cover up a gambling-related shooting; that the club was a center of vice; that the victims were in fact the villains; and that the jewelry and money allegedly stolen were gambling proceeds. This was not an implausible strategy. Indeed, defendant suggests nothing better. To some extent, this strategy succeeded, for counsel did in fact show (as promised in his opening) that the club was*used for illicit operations — there was evidence that persons entering the club were searched and their weapons temporarily deposited in a gun depot behind the bar, that drugs were used openly, and that gambling operated regularly out of the back room — and he thus planted seeds of doubt about the credibility of the eyewitnesses and the possibility of alternate explanations for the events that occurred.

The present appeal centers not on any theory of defense that was ignored or any particular witness that should have been called. Instead, with the clarity of hindsight, defendant now proceeds from the opening statement, through the weeks of trial, to summation, recounting how counsel might have proceeded differently at every step. Defendant’s arguments on appeal range from differences of opinion as to putting in proof, to minor alleged deficiencies, to exaggeration of the trial record. In all it is plain that there was no ineffective assistance.

We thus need not reach the People’s argument that the prejudice test of Strickland v Washington (466 US 668) should be adopted by this court.

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

Order affirmed in a memorandum.


text:
    Najjar Industries, Inc., and Coppola Bros. Excavation Corp., a Joint Venture, Appellant, v City of New York (Greenpoint Incinerator), Respondent.
    Decided November 13, 1986

      APPEARANCES OF COUNSEL

      J. Robert Ellner for appellant.

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Francis F. Caputo of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division appealed from and the prior nonfinal order of that court brought up for review should be affirmed, with costs (see, CPLR 5501 [b]).

Plaintiff was awarded a contract by the City of New York to construct an air pollution device at the Greenpoint Incinerator in Brooklyn for a fixed price of $5,119,000. Work was to commence on January 5, 1973 and be completed by July 8, 1975. Delays started early in the performance of the contract but work continued until about November 1976 when plaintiff left the still uncompleted job. At that time plaintiff had been paid $4,176,553.

Though the complaint included a cause of action for breach of contract, plaintiff tried its case to the jury on a theory of rescission entitling it to recover damages in quantum meruit. Without objection from plaintiff, the jury was charged on this basis, and it returned a verdict for plaintiff, finding that the city had breached the contract, that plaintiff properly exercised its right to rescind, and that there was no waiver of the right to rescind. Plaintiff was awarded judgment in the amount of $2,088,795.26. On defendant’s appeal, the Appellate Division modified the judgment, affirming the aforementioned jury findings but ordering a new trial as to proof of actual damages (87 AD2d 329). Upon retrial, plaintiff was awarded judgment in the amount of $121,745.44, the Appellate Division affirmed, and a motion for leave to appeal to this court was denied (67 NY2d 602). The present appeal is taken as of right from the first Appellate Division order, pursuant to CPLR 5601 (d).

In its arguments to this court, plaintiff has limited its submission to a single "narrowly focussed issue of law”: "In this action to recover upon the defendant-owner’s (affirmed) material breach of a construction contract, upon the remand for a trial as to damages only, did the Appellate Division properly restrict the plaintiff to proof of damages on a quantum meruit basis only, or should it have permitted proof and recovery of compensatory (contract) damages?” This issue is, however, beyond our review. Having itself deliberately chosen to try its case to the jury on a theory of rescission entitling it to quantum meruit damages, with the charge and verdict premised on this theory, plaintiff cannot now be heard to complain that it should be permitted to pursue the alternate theory alleged in the complaint (see, Martin v City of Cohoes, 37 NY2d 162).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order of the Appellate Division appealed from and the prior nonfinal order brought up for review affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v May Aphaylath, Appellant.
    Argued October 9, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Howard K. Broder of counsel), for appellant.

      Howard R. Relin, District Attorney (Wendy Evans Lehmann of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to Supreme Court, Monroe County, for a new trial.

Defendant, a Laotian refugee living in this country for approximately two years, was indicted and tried for the intentional murder of his Laotian wife of one month. At trial, defendant attempted to establish the affirmative defense of extreme emotional disturbance to mitigate the homicide (Penal Law § 125.25 [1] [a]; see, People v Moye, 66 NY2d 887; People v Casassa, 49 NY2d 668) on the theory that the stresses resulting from his status of a refugee caused a significant mental trauma, affecting his mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore (People v Patterson, 39 NY2d 288, 303, quoted in People v Aphaylath, 117 AD2d 981, 982 [Schnepp, J., dissenting]). Although the immediate cause for the defendant’s loss of control was his jealousy over his wife’s apparent preference for an ex-boyfriend, the defense argued that under Laotian culture the conduct of the victim wife in displaying affection for another man and receiving phone calls from an unattached man brought shame on defendant and his family sufficient to trigger defendant’s loss of control.

The defense was able to present some evidence of the Laotian culture through the cross-examination of two prosecution witnesses and through the testimony of defendant himself, although he was hampered by his illiteracy in both his native tongue and English. Defendant’s ability to adequately establish his defense was impermissibly curtailed by the trial court’s exclusion of the proffered testimony of two expert witnesses concerning the stress and disorientation encountered by Laotian refugees in attempting to assimilate into the American culture. It appears from the record before us that the sole basis on which the court excluded the expert testimony was because "neither one * * * was going to be able to testify as to anything specifically relating to this defendant”. It is unclear from this ruling whether the Trial Judge determined that she had no discretion to allow the testimony because the experts had no knowledge of this particular defendant or that she declined to exercise her discretion because of the experts’ lack of knowledge of the defendant or his individual background and characteristics. Under either interpretation, however, the exclusion of this expert testimony as a matter of law was erroneous because the admissibility of expert testimony that is probative of a fact in issue does not depend on whether the witness has personal knowledge of a defendant or a defendant’s particular characteristics (see, Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 146-147; see generally, Richardson, Evidence §§ 4, 370, at 346 [10th ed]; Fisch, NY Evidence §4 [2d ed]). Whether or not such testimony is sufficiently relevant to have probative value is a determination to be made by the Trial Judge in the exercise of her sound discretion (De Long v County of Erie, 60 NY2d 296, 307).

Accordingly, because the court’s ruling was not predicated on the appropriate standard and the defendant may have been deprived of an opportunity to put before the jury information relevant to his defense, a new trial must be ordered.

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

Order reversed, etc.


text:
    In the Matter of Jack Dejnozka, Appellant, v City of Saratoga Springs et al., Respondents.
    Argued October 10, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Jane K. Finin for appellant.

      Richard F. Mullaney, City Attorney, for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum below. We would add that although the charges preferred against petitioner chiefly concerned disobedience of the Commissioner’s departmental policy, the Commissioner was not obliged to disqualify himself as the hearing officer. The Commissioner had no particular knowledge of material disputed facts. Whether the actual order petitioner disobeyed originated from the Commissioner before being spoken by petitioner’s superior officer is immaterial. Petitioner remained bound to follow the order. Furthermore, the Commissioner’s conduct did not reflect partiality with regard to petitioner’s hearing (see, e.g., People ex rel. Packwood v Riley, 232 NY 283; Matter of Horton v Ames, 75 AD2d 853).

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

Judgment affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Antonio Gonzalez, Respondent.
    Argued October 15, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Peter D. Coddington and Steven R. Kartagener of counsel), for appellant.

      Steven M. Jaeger for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The police officer testified at the suppression hearing that defendant’s postarrest statement included an assertion that he had borrowed the car in which he was arrested from a friend. There was also evidence that defendant had produced the vehicle’s registration from the glove compartment at the officer’s request and that a subsequent check had revealed no stolen vehicle reports. In the absence of contrary proof, the evidence was sufficient to establish defendant’s standing to challenge the seizure and search of a bag that was resting between him and the driver on the front seat of the car. There is no requirement that a defendant testify in order to sustain his burden of proving standing (see, People v Ponder, 54 NY2d 160, 166), and evidence elicited during the People’s direct case may be cited in support of a defendant’s standing claim. Moreover, the fact that the evidence may have been introduced in hearsay form does not render it objectionable, since CPL 710.60 (4) authorizes the use of hearsay at suppression hearings.

Having concluded that defendant’s standing was sufficiently established, we need note only that we find no reason to disturb the Appellate Division’s finding that the officer had neither the driver’s consent to nor an adequate constitutional predicate for the seizure and search of the bag (see, People v King, 61 NY2d 969, 971; People v Krom, 61 NY2d 187, 196; People v Harrison, 57 NY2d 470). Thus, the officer’s observation of the empty glossine envelopes inside a box contained in the bag was unauthorized and cannot be used as a justification for defendant’s arrest and the subsequent search of defendant’s person. Accordingly, the cocaine the officer found as a result of that search was properly suppressed.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Harrell Minley, Appellant.
    Argued October 16, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Charles F. Crimi for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The Supreme Court’s holding in Payton v New York (445 US 573) prohibits the police from crossing the threshold of a suspect’s home to effect a warrantless arrest in the absence of exigent circumstances. The evil to which the rule is addressed is the unsupervised invasion of a citizen’s privacy in his own home. Neither the letter nor the spirit of the Payton rule was violated here, where the police approached defendant’s home, saw defendant, whom they did not know, peeking through a window and directed him to come out. We note that although there were several police officers present and at least one had his gun drawn, there is no indication that defendant was in any way threatened or that he had even seen the officer’s gun before he exited his home and was placed under arrest. Since it is undisputed that the officers had probable cause for his arrest, there is no basis for suppressing the statements he subsequently made at the station house.

Finally, regardless of whether there were exigent circumstances justifying the officer’s subsequent entry into defendant’s home to effect the arrest of his alleged accomplice Winzell Beckett (see, Steagald v United States, 451 US 204), it cannot be said that a reversal of defendant’s conviction is warranted. The only evidence that was found as a result of the entry was a gun. As defendant now acknowledges, even if error, the admission of this gun at his trial was harmless beyond a reasonable doubt.

We have considered the other points raised and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    Deerfield Communications Corporation, Appellant, v Chesebrough-Ponds, Inc., et al., Respondents, et al., Defendants.
    Decided November 13, 1986

      APPEARANCES OF COUNSEL

      James J. Higgins for appellant.

      Alan E. Golomb for respondents.
   OPINION OF THE COURT

Memorandum.

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

Defendant stated three counterclaims: (1) for breach of contract in failing to pay the balance due of the purchase price, (2) for breach of contract in violating geographic restrictions on resale allegedly agreed to orally, and (3) for fraud in the inducement in that plaintiff had no intention of abiding by the geographical restrictions orally agreed to. The second counterclaim was dismissed because the restrictions were not contained in the written contract and the jury returned a verdict of $170,000 on the first counterclaim and $130,000 on the third. The Appellate Division affirmed, without opinion.

The trial court properly denied plaintiffs motion to dismiss the third counterclaim. As we stated in Sabo v Delman (3 NY2d 155, 160) "a promise * * * made with a preconceived and undisclosed intention of not performing it, * * * constitutes a misrepresentation”. Involved in defendant’s third counterclaim, therefore, is not a mere promissory statement as to what will be done in the future (see, Channel Master Corp. v Aluminum Ltd. Sales, 4 NY2d 403; Sabo v Delman, supra). It alleged rather "a representation of present fact, not of future intent” (Citibank v Plapinger, 66 NY2d 90, 94) collateral to, but which was the inducement for the contract, and thus was neither duplicative of the second counterclaim (see, Sager v Friedman, 270 NY 472, 479) nor barred by the general merger clause contained in the contract (Danann Realty Corp. v Harris, 5 NY2d 317; see, Citibank v Plapinger, supra).

Moreover, review of the jury charge makes clear that there was no duplication of damages in the jury’s awards on the first and third counterclaims. The measure of damages recoverable for being fraudulently induced to enter into a contract which otherwise would not have been made is "indemnity for [the] loss suffered through that inducement” (see, Sager v Friedman, 270 NY, at p 481, supra). Here the jury was properly allowed to award damages to defendant on the third counterclaim for the costs to locate the goods, the costs to repurchase the goods, storage fees and disposal costs, and under the first counterclaim for the balance remaining due on the purchase price for the goods sold and delivered.

The court concludes that plaintiffs remaining allegations of error are without merit.

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

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


text:
    The People of the State of New York, Respondent, v Charles Silvers, Appellant.
    Argued October 9, 1986;
    decided November 13, 1986
    APPEARANCES OF COUNSEL

      Cynthia R. Finn and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Jeffrey Scott Sarokin and Amyjane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The People concede that the trial court erred in denying the defendant’s motion to represent himself on the ground that he was not sufficiently versed in the law to do so (see, People v McIntyre, 36 NY2d 10). The People’s alternative argument that the defendant should have been disqualified from acting as his own attorney because of his "deceptive character”, was not preserved for review in the trial court. In any event it is not a rational ground for disqualifying a defendant in a criminal case.

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

Order reversed, etc.


text:
    In the Matter of Memorial Hospital, Appellant, v David Axelrod, as Commissioner of the New York State Department of Health, et al., Respondents.
    Argued October 16, 1986;
    decided November 13, 1986

      APPEARANCES OF COUNSEL

      Jacob H. Herzog and Marilyn S. Raskin for appellant.

      Robert Abrams, Attorney-General (Patrick Barnett-Mulligan, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Commissioner properly interpreted Public Health Law § 2803 (1) (a), which confers upon him "the power to inquire into the operation of hospitals and to conduct periodic inspections of facilities with respect to the fitness and adequacy of the * * * standards of medical care [and] hospital service”, to include the power to observe patients in those facilities. The Department of Health, like all administrative agencies, "is clothed with those powers expressly conferred by its authorizing statute, as well as those required by necessary implication” (Matter of City of New York v State of New York Commn. on Cable Tel., 47 NY2d 89, 92). Where, as here, an agency’s interpretation of a statute is not irrational, unreasonable or inconsistent with the statutory purpose, it is entitled to deference by reviewing courts (Matter of Great Lakes-Dunbar-Rochester v State Tax Commn., 65 NY2d 339, 343). The 1981 amendment to the statute (L 1981, ch 508), which, with regard to hospitals, only deleted the requirement of two inspections and instead left the number of inspections to the discretion of the Commissioner, does not in any way compel a different result.

We have examined petitioner’s other contentions and find them to be without merit.

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

Order affirmed, with costs, in a memorandum.

       The statute was also amended this year in a manner not relevant to this appeal (L 1986, ch 208).


text:
    The People of the State of New York, Respondent, v Joseph Burger, Appellant.
    Submitted October 27, 1986;
    decided November 13, 1986
   Motion for a stay of this court’s remittitur pending a decision of the United States Supreme Court dismissed (see, 28 USC § 2101 [f]; United States Supreme Court rule 44). Cross motion to amend remittitur dismissed as untimely (see, CPLR 2215). [See, 67 NY2d 338.]


text:
    The People of the State of New York, Respondent, v Frank Esposito, Appellant.
    Argued October 6, 1986;
    decided November 18, 1986
    APPEARANCES OF COUNSEL

      Stanley Neustadter for appellant.

      Michael Kavanagh, District Attorney (Joan Lamb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the plea vacated, the motion to suppress granted, and the case remitted to the trial court for further proceedings on the indictment.

The defendant was arrested and taken to the police station where he was advised of his rights and confronted with statements made by the victim and her mother. When he stated "I might need a lawyer”, the police officer referred him to a local telephone directory after determining that the defendant did not have an attorney. The officer also informed the defendant that further legal proceedings would be distressing to the victim. Without the assistance of counsel the defendant made statements in response to police questioning and also signed a consent form authorizing the police to search his cabin.

Prior to trial the defendant moved to suppress the statements and the evidence seized at his cabin. The trial court denied the motion and the defendant pleaded guilty. The Appellate Division affirmed the conviction and the defendant appealed.

The Appellate Division found that the defendant initially invoked the right to counsel but "[ujnder the totality of the circumstances” waived it. The court also found that the police officer’s statements regarding the effect of further legal proceedings on the victim were not coercive.

In view of the finding that the defendant’s initial statement to the police officer regarding an attorney constituted a request for counsel, the motion to suppress should have been granted. The additional findings that the defendant subsequently waived the right, and did so voluntarily, are not controlling — on the contrary, once the defendant invokes the right to counsel guaranteed by NY Constitution, article I, § 6, any waiver obtained in the absence of counsel is ineffective (People v Cunningham, 49 NY2d 203). The rule applies to statements obtained as a result of police questioning (People v Cunningham, supra) and also to evidence seized as a result of an uncounseled consent to search (People v Johnson, 48 NY2d 565). Thus, the motion to suppress should have been granted in its entirety.

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

Order reversed, etc.


text:
    Willow Tex, Inc., et al., Respondents, v George Dimacopoulos et al., Appellants.
    Submitted October 10, 1986;
    decided November 18, 1986
    APPEARANCES OF COUNSEL

      William Paul Jacobs for appellants.

      Louis J. Rotondi for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, judgment granted declaring that plaintiffs have no easement over defendant’s property, and the complaint otherwise dismissed.

Plaintiff Willow Tex, Inc. and defendant George Dimacopoulos are adjoining landowners, the southern boundary of plaintiff’s property (parcel No. 1) running along the northern boundary of defendant’s (parcel No. 2). Located on parcel No. 1 is a factory building extending to the common boundary, with two sets of fire doors at the boundary line. Use of those doors to reach the public road requires passage through an alley and driveway on parcel No. 2. While defendant purchased his parcel in 1976 and plaintiff purchased its parcel in 1980, the present controversy did not erupt until some time later, when plaintiff’s tenant first tried to use the fire doors to gain access to the outside of the building and the public road. Defendant responded by placing a metal bar across one set of doors and thereafter by erecting a wooden fence four inches from them to preclude their use. After plaintiff’s tenant received a summons from the fire department for operating the factory without usable fire doors, plaintiff and its tenant commenced this action seeking damages for trespass and declaration of an easement across parcel No. 2, pleading that there was an easement by implied grant and by prescription; they were subsequently permitted to add a cause of action for an easement by way of necessity.

After a nonjury trial, the court sua sponte amended the pleadings to conform to the proof, and decreed that parcel No. 2 was subject to an easement created by express grant. The decision rested on the fact that in 1966, when parcel No. 2 was owned by I. Abner Davis and parcel No. 1 was leased to his company (Sida Realty Corp.), Davis joined in Sida’s application for a certificate of occupancy for the parcel No. 1 factory building, in which the parties proposed "to legalize cellar and 1st floor exits as shown on amended plans filed herewith” — which included the fire doors. The trial court further ordered defendant to keep the gate at the end of his driveway unlocked from 7:00 a.m. to 9:00 p.m. each day to permit plaintiffs unrestricted egress to the street. Upon cross appeals, the Appellate Division unanimously modified the judgment by ordering defendant to keep the driveway gate unlocked at all times.

The only issue raised by defendant on his appeal as of right from the Appellate Division modification is whether the court erred in concluding that there was an easement by express grant. Defendant prevailed on the additional issues decided below, and thus is not aggrieved by those rulings.

To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license (Clark v Devoe, 124 NY 120, 126). The writing must establish unequivocally the grantor’s intent to give for all time to come a use of the servient estate to the dominant estate. The policy of the law favoring unrestricted use of realty requires that where there is any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement (see, Huggins v Castle Estates, 36 NY2d 427, 430; see also, Crosdale v Lanigan, 129 NY 604, 610). Here, the jointly sought certificate of occupancy, allegedly the source of the easement by express grant, benefited Davis’ own corporation. Although Davis exhibited the intent to permit his corporation to use his driveway for emergency egress, it cannot be inferred that Davis also thereby intended to grant this right to travel across his land to future tenants of parcel No. 1. By joining in Sida’s application for a certificate of occupancy, Davis at most created a license that terminated upon his transfer of parcel No. 2, not an easement (see, Trustees of Freeholders & Commonality v Jessup, 162 NY 122, 126).

The only additional argument raised by plaintiff in this court, in support of affirmance of the Appellate Division order, is that an easement arose by implied grant. For the reasons stated by the trial court (120 Misc 2d 8, 11-12), we agree that this contention is without merit.

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

Order reversed, etc.


text:
    Balfour Concessions, Ltd., et al., Appellants, v City of New York, Respondent.
    Decided November 18, 1986
    APPEARANCES OF COUNSEL

      Samuel Goldstein for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Peter A. Mound of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The action was brought solely to enforce the terms of a settlement agreement reached during trial prior to any determination on the merits of the pending condemnation proceeding (see, Teitelbaum Holdings v Gold, 48 NY2d 51). The only question presented concerns the interpretation of a term in the settlement agreement: whether "lawful interest” means interest at the statutory rate of 6% (see, General Municipal Law § 3-a) prevailing at the time the stipulation was made or interest at whatever rate might be applicable in condemnation proceedings at the time agreed upon for payment, November 1, 1981. Because this is a separate action on the agreement, our decision in Adventurers Whitestone Corp. v City of New York (65 NY2d 83), relied upon by the majority at the Appellate Division, is irrelevant. Nevertheless, as stated by the Appellate Division majority, use of the term "lawful interest” having predated the nisi prius decision in Matter of South Bronx Neighborhood Dev. Plan (110 Misc 2d 571, affd sub nom. Matter of City of New York [Brookfield Refrig. Corp.], 89 AD2d 948, affd 58 NY2d 532) could only signify interest at the 6% statutory rate.

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

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


text:
    In the Matter of Richard C. Delin, Petitioner, and George F. X. McInerney, Appellant, v Edward V. Regan, as State Comptroller and Administrator of the New York State Employees’ Retirement System, Respondent.
    Decided November 18, 1986
   Appeal withdrawn on stipulation dated October 29, 1986.


text:
    Barry J. Stone, Sr., Appellant, v New York State Supreme Court Appellate Division, Third Judicial Department Supreme Court Justices et al., Respondents.
    Submitted October 14, 1986;
    decided November 18, 1986
   Motion for leave to appeal dismissed upon the ground that it does not lie (CPLR 5602).


text:
    Alexander & Alexander of New York, Inc., Appellant, et al., Plaintiff, v Harry W. Fritzen, Jr., et al., Defendants, and James W. Barber, Respondent.
    Argued October 6, 1986;
    decided November 20, 1986
    APPEARANCES OF COUNSEL

      Michael D. Brown for appellant.

      Spiros A. Tsimbinos and Joseph Filardi for respondent.
   OPINION OF THE COURT

Memorandum.

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

This appeal, as limited by plaintiff’s brief, relates only to the first cause of action against defendant Barber for conspiracy to divert business opportunities, and to the fifth cause of action against Barber for interference with plaintiff’s claimed contract relationship with defendants Fritzen and Bikoff. It arises out of defendant Barber’s motion to dismiss under CPLR 3211 or, in the alternative, for summary judgment under CPLR 3212. We conclude that defendant Barber is entitled to summary judgment as to the first cause of action, notwithstanding that there is no affidavit from a person with knowledge of the facts, because no cause of action is stated.

The allegations of the first cause of action are not sufficient. It purports to allege a conspiracy but, as we long ago held, "a mere conspiracy to commit a [tort] is never of itself a cause of action” (Brackett v Griswold, 112 NY 454, 467; accord, Green v Davies, 182 NY 499; Manning v Beck, 129 NY 1, 11; Manning v Turtel, 115 AD2d 712). Allegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort (Brackett v Griswold, supra; Danahy v Meese, 84 AD2d 670, 672). The claimed diversion of business opportunities if regarded as a claim for interference with prospective economic advantage is, however, insufficient because, although it alleges some 25 "overt acts,” it contains no allegation that Barber used improper means or acted solely for the purpose of injuring plaintiff Alexander & Alexander (hereafter A&A) (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183; Brause v First Natl. Real Estate Trust, 26 NY2d 737, affg 25 AD2d 624; Union Car Adv. v Collier, 263 NY 386; see, 2 NY PJI 200 [1986 Supp]).

The fifth cause of action should also be dismissed. Although paragraph 54 of the complaint alleges an explicit agreement on the part of Fritzen and Bikoff to act as agents of both Albert G. Ruben, Inc. (hereafter AGR) and A&A, plaintiff’s briefs before us, as well as the affidavit of its officer submitted in opposition to defendant’s motion to dismiss, contradict the claim of an explicit relationship and make clear that plaintiffs claim is based solely upon the contention that as employces of AGR Fritzen and Bikoff owed a fiduciary duty to plaintiff, a related corporation of AGR. Plaintiff is, therefore, as the Appellate Division held, without standing to sue for tortious interference with the employment relationship of Fritzen and Bikoff.

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Rose Garayua, Respondent, v New York City Police Department et al., Appellants. In the Matter of the City of New York et al., Appellants, v New York City Civil Service Commission et al., Respondents.
    Argued October 15, 1986;
    decided November 20, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Francis F. Caputo and Leonard Koerner of counsel), for appellants.

      Raymond E. Kerno and Richard Hartman for Rose Garayua, respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division in the above-entitled proceedings should be affirmed, with costs.

The city police department and its director of personnel, without objecting to the authority of the city Civil Service Commission to hear the matter de nova, participated in an evidentiary hearing before the Commission on Ms. Garayua’s disqualification, presenting their own witnesses and cross-examining Ms. Garayua’s. Moreover, even after the Commission’s decision was announced, the police department and personnel director continued to treat the Commission as the primary fact finder by moving for a reopening of the case on grounds of "newly discovered evidence” alone.

Having fully taken part in this proceeding, the agency and personnel director charted their own procedural course and cannot now be heard to complain because the Civil Service Commission made findings and exercised its own discretion on the basis of the facts placed before it. At this point, all that a reviewing court may do is examine the Commission’s determination to ensure that its discretionary determination with respect to the penalty was not so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222, 233). Inasmuch as the Commission’s decision to direct Garayua’s reinstatement was within the range of the rational conclusions that could be reached on the basis of the record before it, that decision must be upheld and obeyed.

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

In each case: Order affirmed, with costs, in a memorandum.


text:
    Robert L. Green, Appellant, v Community School Board Number 9 of the Board of Education of the City School District of the City of New York et al., Respondents.
    Argued October 16, 1986;
    decided November 20, 1986

      APPEARANCES OF COUNSEL

      David Jalosky for appellant.

      Miguel Antonio Santiago for Community School Board Number 9, respondent.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Fay S. Ng and Stephen J. McGrath of counsel), for Board of Education of City of New York and another, respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in so much of the opinion in 423 S. Salina St. v City of Syracuse (68 NY2d 474) as relates to failure to file a notice of claim.

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


text:
    In the Matter of the Claim of Diane Koerner, Claimant, v Orangetown Police Department et al., Appellants. Workers’ Compensation Board, Respondent.
    Argued October 16, 1986;
    decided November 20, 1986
    APPEARANCES OF COUNSEL

      Nancy F. McKenna, Raymond C. Green, Carolyn B. Stevens and Debora A. Pitman for appellants.

      Robert Abrams, Attorney-General (Theresa E. Wolinski, O. Peter Sherwood, Peter H. Schiff and Carlin Meyer of counsel), for Workers’ Compensation Board, respondent.
   OPINION OF THE COURT

Memorandum.

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

To be compensable under the provisions of the Workers’ Compensation Law an injury must arise out of the employment, that is, it must be a natural incident of the work, and it must arise in the course of employment (Workers’ Compensation Law § 10; Matter of Malacarne v City of Yonkers Parking Auth., 41 NY2d 189, 193). Decedent’s death while sleeping at home was caused when his wife accidentally shot him with his service revolver. Inasmuch as departmental regulations required that decedent keep the side arm with him during off-duty hours, claimant contends that the Board could reasonably award her benefits for the death occurring in the course of employment.

The death clearly arose out of the employment because the gun’s presence in the house was dictated by the employer’s regulations. However, it did not arise in the course of employment, because the injury was not received while the employee was performing the work for which he was employed (Matter of Malacarne v City of Yonkers Parking Auth., supra, p 193; Matter of Wilson v General Motors Corp., 298 NY 468). An officer may be on duty 24 hours a day, in the broad sense of the term, and required to keep his service revolver with him at all times because of such an order, but to be compensable an injury caused by the revolver must also be sustained by the officer in the performance of his duty (see, Matter of Pucillo v Regan, 62 NY2d 736, affg 98 AD2d 877; Matter of De Jesus v New York State Police, 95 AD2d 454; Matter of Sorli v Levitt, 77 AD2d 773; Peetz v Industrial Commn., 124 Ariz 324, 604 P2d 255; cf. Matter of Washington v New York City Hous. Auth., 24 NY2d 912; Kelly v County of Nassau, 58 AD2d 681; Borough of Aldan v Workmen’s Compensation Appeal Bd., 54 Pa Commw 622, 422 A2d 733). Decedent in this case was sleeping, not performing police duties at the time of the accident. Accordingly, the claim must be dismissed.

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

Order reversed, etc.


text:
    Robert T. Knight et al., Appellants, v Stanley P. Amelkin et al., Constituting the Zoning Board of Appeals of the Town of Huntington, Respondents.
    Decided November 20, 1986

      APPEARANCES OF COUNSEL

      Gordon C. Sammis and Thomas R. Newman for appellants.

      Michael F. Mullen for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to the Zoning Board of Appeals of the Town of Huntington for further consideration.

We have recently held that "[a] decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts is arbitrary and capricious” (Matter of Field Delivery Serv. [Roberts], 66 NY2d 516, 517). Inasmuch as a zoning board of appeals performs a quasi-judicial function when considering applications for variances and special exceptions (see, Matter of Cowan v Kern, 41 NY2d 591, 598-599, rearg denied 42 NY2d 910; Holy Spirit Assn. v Rosenfeld, 91 AD2d 190, lv denied 63 NY2d 603), and completely lacks legislative power (2 Anderson, New York Zoning Law and Practice § 23.59, at 251; 6 Rohan, Zoning and Land Use Controls § 43.01 [2] [b], at 43-8 — 43-9), a zoning board of appeals must comply with the rule of the Field case. Here, petitioners have succeeded in showing the existence of several earlier determinations by the Zoning Board with sufficient factual similarity so as to warrant an explanation from the Board. In particular, the Board should explain why it no longer interprets section 198-44 (C) of the zoning ordinance to be applicable in a case involving intensified use of property, as it apparently did in its July 1982 and November 1981 decisions cited by petitioners. It should also explain why its 1978 determination granting a variance to another owner of a downtown furniture store is different from the application of petitioners. Of course, the Board is not prohibited by our decision today from denying petitioners’ application for a variance from or special exception to the zoning ordinance’s off-street parking requirements. We only hold that because petitioners have shown earlier determinations of the Board reaching contrary results on essentially the same facts, an explanation or, in the alternative, a conforming determination, is required.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Suffolk County, with directions to remand to the Zoning Board of Appeals of the Town of Huntington for further consideration in accordance with the memorandum herein.


text:
    In the Matter of New York City Department of Sanitation, Appellant, v New York City Civil Service Commission et al., Respondents.
    Argued October 15, 1986;
    decided November 20, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Kristin M. Helmers, Leonard Koemer and Stephen J. McGrath of counsel), for appellant.

      Richard Biaggi and Carlos J. Cuevas for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court, New York County, with instructions to remand to the New York City Civil Service Commission for imposition of an appropriate penalty.

Appellant McCormick was dismissed from his job as a New York City Sanitation Department employee for violations of departmental sick leave policies. The New York City Civil Service Commission, reviewing the penalty pursuant to Civil Service Law § 76, modified the penalty of dismissal to a 44-day suspension. The rule, expressed in Matter of City Council v Carbone (54 AD2d 461), allows a court reviewing the decision of a civil service commission to reverse only if the modification of the penalty by the commission is " 'so disproportionate to the offense, in light of all the circumstances, as to be shocking to one’s sense of fairness’ ” (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233). Under the circumstances, the modification of the penalty by the New York City Civil Service Commission was so lenient as to require reversal (see, Matter of Riforgiato v Board of Educ., 86 AD2d 757). The matter should be returned to the New York City Civil Service Commission for imposition of an appropriate penalty (see, Rob Tess Rest. Corp. v New York State Liq. Auth., 49 NY2d 874; Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279).

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

Order reversed, etc.


text:
    In the Matter of Freddy Brown, Appellant, v Nicholas L. Pitaro, as a Justice of the Supreme Court of Queens County, et al., Respondents.
    Submitted October 20, 1986;
    decided November 20, 1986
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    City of Buffalo, Appellant, v Jacek A. Wysocki et al., Respondents.
    Submitted September 29, 1986;
    decided November 20, 1986
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from (CPLR 5602 [a] [1] [ii]) does not finally determine the action within the meaning of the Constitution. The relief sought as to the method and terms of payment has not been determined.


text:
    In the Matter of Robert E., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted September 29, 1986;
    decided November 20, 1986
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that appellant is not presently available to obey the mandate of the court in the event of an affirmance (see, People ex rel. Martinez v Walters, 63 NY2d 727; People ex rel. Wildes v New York State Bd. of Parole, 45 NY2d 961; People v Sullivan, 28 NY2d 900; People v Del Rio, 14 NY2d 165; People v Genet, 59 NY 80).


text:
    Dorothy M. Pacyna, Respondent, v Clement J. Pacyna, Appellant.
    Submitted October 20, 1986;
    decided November 20, 1986
   Motion for reconsideration denied. An order which denies a motion to vacate a final judgment is nonfinal and not appeal-able (Mozarkel v Mozarkel, 224 NY 320, 342; see, Cohen and Karger, Powers of the New York Court of Appeals § 36, at 144 [rev ed]). [See, 68 NY2d 807.]


text:
    Diane Polito, Also Known as Nora D. Polito, Respondent, v Gaetano Polito, Appellant.
    Submitted September 22, 1986;
    decided November 20, 1986
   Motion for leave to appeal dismissed upon the ground that movant has failed to comply with section 500.11 (d) (1) (C) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [CD.


text:
    The People of the State of New York, Appellant, v Everett McCready, Respondent.
    Decided November 20, 1986
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The reversal, while termed one "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.

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


text:
    The People of the State of New York, Respondent, v Samuel Conyers, Appellant.
    Argued October 7, 1986;
    decided November 25, 1986
    APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Donald G. Rehkopf, Jr., of counsel), for appellant.

      Howard R. Relin, District Attorney (Joan A. Psaila of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested in his home November 18, 1980 and charged with two counts of assault, first degree, in connection with the shooting of Thelma Barnes. The arrest was made upon probable cause but without a warrant and thus was illegal under the subsequent decision of the United States Supreme Court in Payton v New York (445 US 573). After the arrest, defendant was placed in a police vehicle, given Miranda warnings and taken to police headquarters where he remained alone for two hours before being questioned by the police. After he had been questioned for approximately an hour, defendant made a statement admitting that he had shot the victim but claiming the shooting was accidental. A written statement was later prepared by the police and signed by him.

Defendant moved to suppress his postarrest statements. The hearing court denied the motion, holding that the arrest was lawful although made without a warrant because Payton was not to be applied retroactively and, alternatively, that even if the arrest was unlawful the illegality had been attenuated by subsequent events. Defendant was tried and convicted as charged. Upon appeal, the Appellate Division noted that subsequent to the hearing court’s decision the Supreme Court decided that Payton was to be applied retroactively (see, United States v Johnson, 457 US 537). It nevertheless affirmed the hearing court’s order denying suppression, agreeing with the court’s finding of attenuation.

When a defendant challenges the admission of statements he has made, claiming they are the product of an illegal arrest, the burden rests on the People to demonstrate that the statements were acquired by means sufficiently distinguishable from the arrest to be purged of the illegality. That determination requires consideration of the temporal proximity of the arrest and the confession, the presence of intervening circumstances and, particularly, the purpose and flagrancy of the official misconduct (People v Johnson, 66 NY2d 398, 407; People v McGrath, 46 NY2d 12, 28-29; Rawlings v Kentucky, 448 US 98, 108; Brown v Illinois, 422 US 590, 603-604). The postarrest administration of Miranda warnings by the police is an important but not a conclusive factor in determining whether the confession was obtained by exploitation of the illegal arrest (Brown v Illinois, supra, p 603).

The hearing court in this case made extensive findings. It noted particularly: that defendant was promptly and fully advised of his Miranda rights at least twice before questioning began and that he waived his rights; that defendant was alone for at least two hours after the arrest in an interview room before questioning started; that when the police subsequently did question defendant the questioning continued intermittently for about an hour before defendant made the challenged statements which were in part exculpatory; and that the conduct of the police at the time of the arrest and throughout the time defendant was in custody was proper. From these facts, and noting that defendant’s warrantless arrest was legal when made, the court concluded that the statement of defendant was an act of free will and could not have been caused by the fact that the arrest became illegal because of a subsequent decision of the Supreme Court (see, People v Graham, 90 AD2d 198, 202, lv denied 59 NY2d 766, cert denied 464 US 896, reh denied 464 US 1005).

Whether defendant’s statements were the fruit of the illegal arrest presented a mixed question of law and fact and inasmuch as the finding of attenuation made by the courts below has support in the record, the matter is beyond our power to review (People v King, 61 NY2d 969; People v Harrison, 57 NY2d 470).

Defendant also contends that the court erred in failing to charge assault, third degree, as a lesser included offense, but we find the issue to be without merit.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Douglas Jamerson, Appellant.
    Decided November 25, 1986

      APPEARANCES OF COUNSEL

      Barry D. Leiwant and Philip L. Weinstein for appellant.

      Elizabeth Holtzman, District Attorney (Rosalyn H. Richter of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Where the only evidence linking a defendant to the crime with which he is charged is identification testimony given pursuant to CPL 60.25, the failure of the identification witnesses to affirmatively state that they were currently certain of the accuracy of their prior identifications does not render that evidence insufficient. Thus, defendant’s contention that the absence of confirmation of the accuracy of the prior identification renders the proof of identity insufficient as a matter of law is without merit.

Notwithstanding that CPL 60.25 may require an affirmative statement by an identification witness that he is currently certain of the accuracy of a prior identification of defendant made on an occasion other than at the time and place of the offense (see, Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 60.25, p 502), such a requirement would only relate to the foundation for the admissibility of the evidence regarding that prior identification. In addition to the other requirements of CPL 60.25, testimony about a prior identification is admissible pursuant to CPL 60.25 (1) (a) (ii), when it was made "under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States”. Because of this guarantee of reliability, CPL 60.25 (2) allows a past identification to be received as evidence-in-chief connecting the defendant with the commission of the crime. Where defendant seeks to attack the reliability of a past identification on the ground that the witness has not affirmatively stated his current certainty of that identification, he must do so in a timely manner to preserve the issue (CPL 470.05 [2]).

Here, where defendant did not object to the failure of the People’s witnesses to state their current certainty of their prior identifications at the time their testimony was admitted, no issue concerning the admissibility of that identification testimony has been preserved for our review.

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

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


text:
    In the Matter of John F. Rakstis, Doing Business as Schell’s Red Cross Pharmacy, Appellant, v David Axelrod, as Commissioner of the New York State Department of Health, Respondent.
    Decided November 25, 1986

      APPEARANCES OF COUNSEL

      Robert J. Krzys for appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Peter H. Schiff and Julie S. Mereson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, and the matter remitted to that court for further proceedings on the petition.

Petitioner, the owner and supervising pharmacist of Schell’s Red Cross Pharmacy in Amsterdam, New York, was fined $12,000 for various alleged violations of Public Health Law article 33, which governs the sale and distribution of controlled substances. The charges concerned faulty record-keeping and unexplained inventory shortages; there was no finding that petitioner was trafficking in controlled substances in violation of law. His petition to review the Commissioner’s determination, brought under CPLR article 78, was dismissed by the Appellate Division solely on the ground that the proceeding was not commenced within the 60-day limitations period prescribed by Public Health Law § 3394 (2). The dismissal of his petition on Statute of Limitations grounds was erroneous.

Public Health Law § 3394 (2) is the fourth in a group of four statutes governing the procedures for revoking, in whole or in part, licenses issued under article 33 (Public Health Law §§ 3390-3394). Those statutes, as we have previously held, are inapplicable to administrative proceedings that are not directed toward the revocation or limitation of such a license (see, Matter of Di Marsico v Whalen, 49 NY2d 822).

Furthermore, section 3394, which sets forth the rules for judicial review of revocation determinations, is applicable, by its terms, only to a "person whose license, certificate, right or privilege is affected” by the determination (Public Health Law § 3394 [2]). Contrary to the Appellate Division’s conclusion, the imposition of a fine, without more, does not constitute an impairment of a "right or privilege” within the meaning of this section. And, although Public Health Law § 3394 (1) speaks of "[a]ll orders and determinations hereunder”, that language, read in context, clearly refers to orders and determinations affecting licenses under Public Health Law §§ 3390-3394, and not to any and all determinations which have as their predicates a violation of one of the substantive mandates of article 33.

Inasmuch as this was clearly an administrative proceeding to impose a fine, the Commissioner’s authority was derived from Public Health Law § 12, and the governing procedural rules, if any, must be found in the related prescriptions of Public Health Law § 12-a. Indeed, the Commissioner expressly invoked his authority under Public Health Law § 12 in ordering the payment of a fine. Thus, the Appellate Division’s reliance on Public Health Law § 3391 (4), which permits the Commissioner to impose a civil penalty in lieu of license revocation, was erroneous (see, Matter of Trump-Equitable Fifth Ave. Co. v Gliedman, 57 NY2d 588, 593). In any event, the $12,000 fine imposed here could not have been levied under section 3391 (4), since that statute limits the permissible levy to $10,000.

Having imposed a fine expressly under Public Health Law § 12, the Commissioner is now bound by the procedural provisions of section 12-a (see, Matter of Di Marsico v Whalen, supra). Since section 12-a does not contain any special restrictions on the time within which a CPLR article 78 proceeding to challenge the determination must be brought, the four-month limitations period prescribed in CPLR 217 governs this proceeding. The proceeding, commenced within four months after the determination was served, was therefore timely and should not have been dismissed on timeliness grounds. Consequently, the matter must be remitted to the Appellate Division for consideration of the petition on its merits.

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

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


text:
    In the Matter of the Claim of Amara Guimarales, Respondent. New York City Board of Education, Appellant; Lillian Roberts, as Commissioner of Labor, Respondent.
    Argued October 10, 1986;
    decided November 25, 1986

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Lucy A. Cardwell and June A. Witterschein of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the matter remitted to the Unemployment Insurance Appeal Board for proceedings in accordance with this memorandum. After claimant was fired from the position she had held for 12 years as a cleaning person in a public school, an arbitration hearing was held to determine whether she had been insubordinate and whether there was just cause for her dismissal. The arbitrator made various findings of fact as to claimant’s actions, and concluded that she had been insubordinate and that there was just cause for her dismissal.

After an initial determination by the Department of Labor that claimant was ineligible for unemployment insurance benefits because she had lost her job due to "misconduct” (see, Labor Law § 593 [3]), a hearing was held before an Administrative Law Judge (ALJ) to determine claimant’s eligibility for such benefits. The AU stated that he was bound by the arbitrator’s factual determinations as to claimant’s conduct as well as the determination that she had been insubordinate. Given those findings, the ALJ made his independent determination that claimant’s actions "rose to the level of misconduct under the Unemployment Insurance Law.” On appeal, the Unemployment Insurance Appeal Board made its own additional findings of fact and concluded that claimant’s conduct did not constitute misconduct. The Appellate Division affirmed stating that "[tjhere was substantial evidence in the record presented * * * to support the Board’s decision not to give the arbitrator’s determination collateral estoppel effect” (109 AD2d, at p 1044 [emphasis added]). Whether collateral estoppel applies is, however, a question of law turning on the identity of the issues involved and whether there was a full and fair opportunity to litigate the issue in the prior proceeding (Ryan v New York Tel. Co., 62 NY2d 494, 500-505). The standard of review by the Appellate Division of the Appeal Board’s collateral estoppel ruling was, therefore, not substantial evidence (CPLR 7803 [4]) but whether the ruling was affected by an error of law (CPLR 7803 [3]).

The Appellate Division and the Appeal Board erred in not giving collateral estoppel effect to the arbitrator’s factual findings regarding claimant’s conduct and to his conclusion of insubordination (see, Matter of Ranni, 58 NY2d 715). The Appeal Board and the ALJ, although bound by the arbitrator’s factual findings regarding claimant’s conduct and his conclusion of insubordination, were free to make their independent additional factual findings and form their own independent conclusion as to whether such conduct constituted "misconduct” for purposes of unemployment insurance. The Appellate Division’s review of the Appeal Board’s decision on that question after remittitur would then be limited to whether the Board’s conclusion as to "misconduct”, a mixed question of law and fact, had a "rational basis” (see, Matter of Fisher [Levine], 36 NY2d 146).

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

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Unemployment Insurance Appeal Board for proceedings in accordance with the memorandum herein.