text:
    The People of the State of New York, Respondent, v Joseph Giuliano, Appellant.
    Argued April 25, 1985;
    decided June 11, 1985

      APPEARANCES OF COUNSEL

      Mark M. Baker and Barry Ivan Slotnick for appellant.

      Mario Merola, District Attorney (Peter S. Baranowicz and Jeremy Gutman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the conviction vacated and the indictment dismissed.

Defendant was accused of killing Frank Cirillo during the early morning of Sunday, March 7,1982. He was convicted, after a jury trial, of manslaughter in the first degree, and a divided Appellate Division affirmed. On appeal, defendant contends that the evidence adduced at trial, which was entirely circumstantial, was insufficient to establish his guilt beyond a reasonable doubt.

The well-settled standard of proof in circumstantial evidence cases is that the facts from which the inference of defendant’s guilt is drawn must be inconsistent with the defendant’s innocence and must exclude to a moral certainty every other reasonable hypothesis (People v Sanchez, 61 NY2d 1022,1024; People v Way, 59 NY2d 361, 365; People v Bearden, 290 NY 478, 480). Viewing the evidence in the light most favorable to the prosecution, and giving it the benefit of every reasonable inference to be drawn therefrom, this court must now determine whether the jury reasonably concluded that the prosecution met this standard. Application of these principles minimizes “a danger legitimately associated with circumstantial evidence — that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree” (People v Benzinger, 36 NY2d 29, 32; accord, People v Kennedy, 47 NY2d 196, 202; People v Cleague, 22 NY2d 363, 367).

Here, the inferences that could be drawn from the evidence are consistent with innocence as well as guilt, and there are logical gaps in the People’s case that cannot be bridged by the drawing of reasonable, permissible inferences from the evidence. Accordingly, we conclude that the jury’s verdict was not supported by sufficient evidence.

The People’s case was built around four episodes summarized below: events at the Park Tavern the night of the murder; defendant’s contacts with a derringer; a conversation at the Spirits Pub two days after the murder; and an exchange between defendant and his father at the station house.

THE PARK TAVERN

Defendant arrived at the Park Tavern, on Morris Park Avenue in The Bronx, late in the evening of Saturday, March 6, 1982, accompanied by his friend of several years, Joseph Olivieri. Olivieri’s wife, Debra, arrived at the Tavern at about 11 p.m. Debra had been shopping with Frank Cirillo, with whom she had had a relationship while Olivieri was in jail for robbery. Frank Petrucci then came into the Tavern with Eddie Cullen. Cullen told Debra that Cirillo, who had driven Cullen and Petrucci to the Tavern at his suggestion, was outside in the car and wanted to speak with her. Debra, seated at the bar with her husband and the defendant, refused.

Some time later, another patron, John Bardino, asked the bartender, Ralph Mazzella, for a rag, stating that someone had been hurt outside. Mazzella testified that at that moment he did not see defendant at the bar, although defendant could have been anywhere inside the crowded, noisy Tavern. Bardino soon returned, announced that someone had been shot, and asked that an ambulance be called. Mazzella testified that Olivieri asked defendant, “What the fuck did you do?” Mazzella heard no more of this conversation, and did not know to what Olivieri’s question related. While Olivieri was at the telephone calling an ambulance, he heard someone say “I shot him,” and he further testified that “it might have been the voice of Joe Giuliano.” Petrucci, too, heard someone say, “I shot him, I think he is dead,” but had no idea who made the statement. Similarly, Cullen heard a voice state “I shot the kid.” At trial, Cullen testified repeatedly that he did not recognize the voice or see the declarant, although he had expressed the view in his testimony before the Grand Jury, read into the trial record for impeachment purposes, that he believed the statement had been made by defendant. After the shooting defendant remained in the Tavern for at least 45 minutes. The next day, Olivieri asked defendant, “Joey, what happened last night?” Defendant, according to Olivieri, replied, “I don’t want to talk about it because I been pretty high and I didn’t know exactly what had happened.”

THE DERRINGER

Cirillo was shot behind the left ear with a single .22 caliber bullet. He was found seated behind the steering wheel of his station wagon, his head slumped forward. His window was open some 3 to 4 inches. No powder burns were found on the body or the car. No shell casings were found, and no murder weapon was recovered. Olivieri testified that about a week before the crime, he and Cullen were present as defendant adjusted the barrel of a .22 caliber antique derringer and returned it to its owner, Cirillo. Cullen, by contrast, testified that he had sold the derringer to Cirillo, reacquired it, and then sold the gun to defendant after he adjusted the barrel about a month before the crime.

The People’s ballistics expert, Detective Steven Colangelo, testified that the fatal bullet could have been fired by a .22 caliber rifle, semiautomatic pistol or a derringer — a range including hundreds of thousands of guns. According to Colangelo, a derringer is by nature a “closeup gun” or “defensive type weapon,” very inaccurate and of little use at distances greater than 10 yards. From the absence of powder burns at the crime scene, Colangelo deduced that the weapon had been fired at a distance of at least 18 to 24 inches.

THE SPIRITS PUB

Two days after Cirillo’s death, on Tuesday, March 9, 1982, Patricia Salargo was at the Spirits Pub when two men, neither of whom she had seen before, entered. She spoke with one of them — a “John Travolta type” — to whom she was not really paying that much attention. He sat next to her “at exactly the bar,” and “said that he had quit smoking and he was depressed about breaking up with his girl friend and about his future was planned and he didn’t feel so bad about breaking up with his fiancee as he did as having the boy she was out with done away with or blown away or I don’t exactly know the end of this.” (There was no evidence that defendant had a fianceé.) Salargo did not identify defendant as the man who had made these statements to her. She testified, however, that of all the people she had spoken with that night, the man with whom she had the conversation at the bar was the only person she had never met before.

Salvatore Avila was also at the Spirits Pub that night, having arrived at about 3:30 p.m. At about 8:00 p.m., after consuming nine beers, he saw two strangers walk into the Pub. Avila testified that he spoke with one of them, identified as defendant, for 20 to 30 minutes. Avila knew Salargo, and noted that most or all of the patrons at the Spirits Pub spoke with her during the evening. He testified that he observed Salargo in conversation with one of the two strangers at the cigarette machine, but Avila did not know which of the two it was.

Eight witnesses, friends and family of defendant, testified that defendant was at home with them the evening of March 9.

THE STATION HOUSE

Defendant was taken into custody on April 13, 1982, and was visited at the station house by his father. Two police officers testified that they overheard defendant say to his father, “If I ever find out who ratted me out, I will kill the guy,” to which his father responded, “That is what you are here for, because of your fucking temper.” Nearly eight months later, on the eve of trial, the two officers first advised other law enforcement personnel of this exchange. Defendant’s father, in his trial testimony, denied having had the conversation.

Based on these facts, we conclude that the conviction cannot stand. The inference of guilt is not the only one that can fairly and reasonably be drawn from the facts, and the evidence does not exclude beyond a reasonable doubt every reasonable hypothesis of innocence.

The evidence regarding the events at the Park Tavern is at best equivocal. Although the bartender testified that he did not see defendant when Bardino entered the Tavern asking for a rag, he acknowledged that defendant could have been anywhere else in the Tavern. Olivieri’s question to defendant, overheard by the bartender shortly after the announcement that someone had been shot, is susceptible of numerous interpretations. It would be speculative to infer from this testimony, unaccompanied by any evidence of the context in which the question was asked, that Olivieri believed defendant was responsible for Cirillo’s shooting (if indeed Olivieri’s belief had probative value). The People attach significance to an unidentified patron’s statement, overheard by Olivieri, Cullen and Petrucci, that he had shot Cirillo, but none of the witnesses could identify with any degree of certainty the person who spoke those words.

Similarly, any inference drawn from the evidence regarding the derringer would be speculative, particularly in light of the testimony that the fatal bullet could have been fired from any of hundreds of thousands of guns. A conclusion that a derringer was used would, moreover, be at variance with the testimony regarding the inherent inaccuracy of derringers and the absence of powder burns on the body, indicating that the murder weapon had been fired from a distance.

Nor do the events in the Spirits Pub point unequivocally to defendant’s guilt. Salargo testified that an unidentified stranger sat beside her at the bar and confessed to a murder. Avila testified that he saw Salargo speaking with one of two strangers at the cigarette machine. No one placed defendant at the bar, and no one identified defendant as having spoken to Salargo even at the cigarette machine.

Finally, defendant’s conversation with his father in the station house does not support the conviction. Defendant’s statement that he would kill the person “who ratted [him] out” could as readily be a threat to seek vengeance against the person responsible for his arrest as an acknowledgement that he had murdered Cirillo. Any statement of defendant’s father that it was defendant’s temper that landed him in jail hardly points to guilt, particularly where there is no evidence of an incident or motive which might have provoked an outburst of temper.

To convict defendant of having killed Frank Cirillo on this record, a trier of fact would have had to engage in speculation, draw unwarranted conclusions based on probabilities of low degree, and leap logical gaps in the evidence. We conclude that no rational trier of fact could have found that elements of the crime were established beyond a reasonable doubt, and therefore reverse the order of the Appellate Division, vacate the conviction and dismiss the indictment.

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

Order reversed, etc.


source: Caselaw Access Project

author: Meyer, J.

license: Public Domain

text:
    In the Matter of Brian F. Malone, an Attorney, Appellant. Committee on Professional Standards, Third Judicial Department, Respondent.
    Argued April 29, 1985;
    decided June 11, 1985

      APPEARANCES OF COUNSEL

      Albert J. Brackley for appellant.

      Mark S. Ochs and George B. Burke for respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the memorandum of the Appellate Division (105 AD2d 455).

Concur: Chief Judge Wachtler and Judges Simons, Kaye and Alexander. Judge Meyer dissents and votes to reverse in an opinion in which Judge Jasen concurs. Taking no part: Judge Titone.

Meyer, J.

(dissenting). My difference with the majority turns on the fact that the false testimony sanctioned by respondent was given before respondent as an investigating official. Clearly, therefore, no court or government agency or official was deceived. And although others being investigated, who were represented at the taking of Lewis’ statement through the attorney for their union, were for the time being deceived, there was a valid governmental purpose (protection of Lewis as a witness whose physical being, if not life, was believed to be in danger) and before the matter went to hearing before the arbitrator Lewis’ true statement was voluntarily revealed to the union attorney.

DR 1-102 (A) (4) provides that, “A lawyer shall not * * * Engage in conduct involving dishonesty, fraud, deceit or misrepresentation”, and Judiciary Law § 487 makes it a misdemeanor for an attorney to be “guilty of any deceit or collusion * * * with intent to deceive the court or any party”. But Penal Law § 35.05 provides that “conduct which would otherwise constitute an offense is justifiable and not criminal when: 1. such conduct is * * * performed by a public servant in the reasonable exercise of his official powers, duties or functions”. Moreover, the Supreme Court has acknowledged that “there are circumstances when the use of deceit is the only practicable law enforcement technique available” (United States v Russell, 411 US 423, 436), as have the courts of this State (People v Archer, 68 AD2d 441, affd 49 NY2d 978, cert denied 449 US 839; Matter of Nigrone v Murtagh, 46 AD2d 343, affd 36 NY2d 421).

I do not blink the difference between criminal and ethical standards. But ethical standards in my view are not breached when the official before whom a sworn statement is made is not deceived and the others involved, under investigation for assaulting convicts in their charge, are deceived only long enough to assure that the witness who was prepared to break the code-of-silence reaches the arbitration hearing without having been subject to similar assault, if not worse. To hold otherwise, as has the Appellate Division (105 AD2d, at p 458), in part because “it is not entirely clear that the ‘means’ chosen by respondent to protect Lewis’ identity was the only alternative available”, will not end the practice; it will simply shift it from prosecutors to nonlawyers who are not subject to the same professional oversight as are lawyers. With respect to the conduct of respondent Malone, who was meticulous in protecting the rights of the others before the arbitrator, the distinction thus drawn is overly precious in an area which is, or at least should be, a matter of professional judgment.

At the risk of being repetitive, no official was deceived, the others under investigation were not deceived in any way that affected their rights, and the deception engaged in was engaged in in order to, and only so long as necessary to, protect not only the physical well-being of Lewis but his testimony as well, a matter of some importance to the administration of justice, as respondent not unreasonably concluded. To protect him from criminal responsibility but censure him professionally for doing what our justice system otherwise sanctions is simply wrong. I, therefore, dissent.

Order affirmed, etc.


text:
    In the Matter of Margaretann Ries, Appellant, v Theodore R. Dusanenko, Individually and as Supervisor of the Town of Clarkstown, Respondent.
    Decided June 13, 1985

      APPEARANCES OF COUNSEL

      Edward Benson for appellant.

      Herschel Greenbaum for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to Special Term for a hearing to determine the exact terms under which petitioner was hired.

Petitioner’s separate compensation for preparing transcripts of hearings before the Zoning Board of Appeals would not violate section 9-1 of the Code of the Town of Clarkstown if at the time she was hired it was agreed that she would be paid a yearly salary for her other duties as the secretary to the Board of Appeals plus an hourly sum for hearing transcripts. The official description of petitioner’s job does not establish that such an agreement is barred. While it requires her to attend “all Regular and Special Meetings and Public Hearings,” it requires her to transcribe only “minutes of all meetings,” and she is seeking payment for hearing transcripts.

The question remains one of fact that cannot be determined on the unverified pleadings and other papers. Accordingly, a hearing is required to determine the compensation arrangements that were reached when petitioner was hired.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Rockland County, for a hearing in accordance with the memorandum herein.


text:
    In the Matter of Larry Coleman, Appellant, v Philip Coombe, Jr., as Superintendent of Eastern Correctional Facility, et al., Respondents.
    Decided June 13, 1985

      APPEARANCES OF COUNSEL

      Robert Selcov and David C. Leven for appellant.

      Robert Abrams, Attorney-General (Robert Hermann and Linda J. Cohen of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, respondents’ determination annulled and the matter remitted to the Department of Correctional Services for a new hearing.

Respondents’ regulations provide that an inmate facing disciplinary proceedings “may call witnesses on his behalf provided their testimony is material, is not redundant, and doing so does not jeopardize institutional safety or correctional goals” (7 NYCRR 254,5 [a]). In petitioner’s proceeding, he requested that his brother be called as a witness to give testimony in mitigation of the penalty to be imposed. His request was denied on the grounds that the testimony would be irrelevant and unnecessary because petitioner had admitted violating the inmate rules. This was error because testimony in mitigation of the penalty to be imposed or raising a possible justification defense to the charged violation is relevant and material evidence (see, Matter of Cook v Coughlin, 97 AD2d 663, 664; Matter of De Mauro v LeFevre, 91 AD2d 1156, 1157; Matter of Santana v Coughlin, 90 AD2d 947, 948; Matter of Martin v Coughlin, 90 AD2d 946; see also, Matter of Garcia v LeFevre, 64 NY2d 1001,1003). Insofar as no other grounds provided for in the regulation were raised for refusing to call petitioner’s brother as a witness, his request should have been granted. In view of our determination we do not decide whether the refusal to call petitioner’s requested witness violated his due process rights (see, Wolff v McDonnell, 418 US 539).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, respondents’ determination annulled and matter remitted to Supreme Court, Albany County, with directions to remand to the Department of Correctional Services for a new hearing, in a memorandum.


text:
    In the Matter of George F. Sinnott, Appellant, v John P. Finnerty, as Suffolk County Sheriff, et al., Respondents.
    Decided June 13, 1985

      APPEARANCES OF COUNSEL

      Vincent A. Malito for appellant.

      Martin Bradley Ashare, County Attorney (Marion T. McNulty of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the petition reinstated, and the matter remitted to the Appellate Division for consideration of the proceeding on the merits.

In connection with departmental charges filed against him, appellant was suspended for 30 days without pay, pursuant to section 75 (3) of the Civil Service Law. After a hearing, appellant was found guilty by respondents, whose letter of determination provided for a reprimand and censure, and refused to remit the prehearing suspension. The Appellate Division dismissed appellant’s article 78 petition, concluding that no appeal lies under Civil Service Law § 76 (1) from a reprimand or the refusal to remit a payless prehearing suspension. Appellant does not challenge the dismissal with respect to the reprimand (see, Matter of Winn v Department of Hosps., 20 AD2d 856).

Civil Service Law § 75 (3), permitting a 30-day prehearing suspension without pay, also provides that upon a finding of guilt a posthearing penalty or punishment may include a suspension without pay, and the time during which an officer or employee has previously been suspended without pay may be considered as part of the penalty. Here, respondents’ refusal, in their letter of determination, to remit the 30-day prehearing suspension, may be considered a penalty or punishment within Civil Service Law § 76 (1), of which review may be sought.

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

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


text:
    In the Matter of the Claim of Joan Carpino, Claimant, v Treasure Chest Restaurant et al., Appellants. Workers’ Compensation Board, Respondent.
    Decided June 13, 1985

      APPEARANCES OF COUNSEL

      Gerard A. Navagh for appellants.

      Robert Abrams, Attorney-General (Robert Hermann, Carlin Meyer and Michele M. Woodard of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to appellants, and matter remitted to the Appellate Division, Third Department, with directions to remand to the Workers’ Compensation Board for determination as to other issues, including the threshold issue of whether the employer was given timely notice of the injury or death for which compensation is claimed {see, Workers’ Compensation Law § 18) and, as so modified, affirmed.

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


text:
    In the Matter of Linda F. Fargnoli, Respondent, v Donald Faber, Respondent, and Tonni Faber et al., Appellants.
    Submitted May 28, 1985;
    decided June 13, 1985
   Motion to vacate the Court of Appeals order of dismissal dated May 9, 1985 denied. [See, 65 NY2d 631.]


text:
    In the Matter of Jacob L. Greatsinger, Deceased. John J. Jennings et al., Appellants; Walter G. Farrell et al., Respondents.
    Submitted May 13, 1985;
    decided June 13, 1985
   Motion to vacate the Court of Appeals order of dismissal dated April 22, 1985 granted. [See, 64 NY2d 1129.]


text:
    Silverstein Properties, Inc., et al., Respondents, v Paine, Webber, Jackson & Curtis, Inc., Appellant.
    Argued May 28, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Erskine D. Henderson, Allen G. Reiter and Henry P. Wasserstein for appellant.

      Stephen J. Fallis and Mary Jo Reich for respondents.
   OPINION OF THE COURT

Memorandum.

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

The parties entered into a lease which requires the tenant to pay a fixed rent and an additional amount representing a percentage of the increase in operating expenses. The lease provides that the landlord is obligated to furnish the tenant with statements relating to this additional rent and further provides as follows:

“The statements thus furnished to Tenant shall constitute a final determination as between Landlord and Tenant of real estate taxes and Expenses for the periods represented thereby, unless Tenant within thirty (30) days after they are furnished shall give a written notice to Landlord that it disputes their accuracy or their appropriateness, which notice shall specify the particular respects in which the statement is inaccurate or inappropriate.

* * *

“Any such dispute shall be resolved by arbitration”.

It is conceded that the landlord furnished the statements as required by the contract, but that the tenant did not give the landlord written notice of dispute within 30 days after the landlord furnished the statements. Nevertheless, the tenant subsequently demanded arbitration and when the landlord moved to stay arbitration for failure to give the notice within the time prescribed, the tenant raised a number of issues regarding the motion and further claimed that these issues were for the arbitrator.

The trial court denied the motion to stay but the Appellate Division reversed.

We have previously noted that the critical question in such cases is whether the arbitration clause is broad or narrow (Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 NY2d 358, 363-364). Although a broad arbitration clause will generally be deemed to reserve for the arbitrator all questions regarding compliance with time restrictions for demanding arbitration, that is not true where parties have chosen a narrow clause limiting the arbitrator’s powers to a particular dispute. Here it is clear that the parties have employed a narrow clause limiting the arbitrator to deciding substantive disputes commenced within the time fixed by the contract. Thus the Appellate Division correctly held that any dispute concerning the tenant’s compliance with that time restriction should be decided by the courts.

On the merits we agree with the Appellate Division, for the reasons stated in its memorandum, that the tenant’s demand was untimely and that arbitration should be stayed.

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

Order affirmed, with costs, in a memorandum.


text:
    National Bank of North America, Respondent, v Anthony Alizio et al., Appellants, et al., Defendants.
    Argued May 30, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Joel Spector for Anthony Alizio and another, appellants.

      Sydney Friedler for Irving Eisenberg and another, appellants.

      David W. Shapiro and Robert E. Kushner for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the memorandum opinion of that court.

We add only that plaintiff was entitled to summary judgment on its cause of action seeking reimbursement for the amounts it paid under the letter of credit, despite its failure to issue sight drafts as contemplated by the parties, as it was both the issuer and the beneficiary of the letter of credit. In addition it is noted that defendants neither contested at Special Term plaintiff’s assertion that the moneys were in fact disbursed to pay for obligations of the partnership, nor alleged that they were in any way prejudiced by the plaintiff’s method of drawing on the letter of credit.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Felipe Cantre, Appellant.
    Argued June 4, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Paul H. Senzer for appellant.

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

Order affirmed. For the reasons stated in the opinion by Presiding Justice Milton Mollen at the Appellate Division (95 AD2d 522), we agree that the Aguilar-Spinelli test was met. It is not necessary to pass upon the applicability of the Illinois v Gates test (462 US 213).

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

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


text:
    In the Matter of New York State Association of Plumbing-Heating-Cooling Contractors, Inc., Appellant, v John C. Egan, as Commissioner of General Services of the State of New York, et al., Respondents.
    Argued June 4, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      George F. Carpinello for appellant.

      Robert Abrams, Attorney-General (Richard J. Dorsey, Robert Hermann and Peter H. Schiff of counsel), for John C. Egan, as Commissioner of General Services of the State of New York and others, respondents.

      Joseph F. Legnard for Dominick Dan Alonzo, Inc., respondent.

      La Verne F. O’Dell for Roger P. Kennedy General Contractor, Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs, to convert the action to one for relief under State Finance Law article 7-A and for declaratory relief, and to remit to Special Term for trial as to the article 7-A relief demanded and, as so modified, affirmed.

The Appellate Division having on the prior appeal declined to convert the article 78 proceeding to an action for declaratory relief and ordered joinder of the contractors in order “to expedite a final, complete resolution of this dispute and avoid a multiplicity of subsequent actions involving the claims of all interested parties” (86 AD2d 100; 105), we agree with the Appellate Division (102 AD2d 901, 902) that it was error for Special Term to limit conversion of the proceeding to a declaratory judgment action and to hold that amendment of the supplemental petition was unauthorized.

That the pleading was entitled “supplemental petition” instead of being redrafted as a complaint pursuant to State Finance Law article 7-A or a combined petition and complaint is irrelevant. The court should have ignored any mischaracterization in that respect in light of the allegations that petitioner’s members would “suffer injury as taxpayers as a result of the wrongful and illegal expenditure of State funds” and the demand that sums paid the contractors be returned to the State and that petitioner be awarded reasonable counsel fees (Matter of Altona Citizens Comm. v Town of Aliona, 54 NY2d 908, affg 77 AD2d 954).

While the order to join the contractors did not extend the Statute of Limitations as to them (Talbot v KMZ Enters., 43 NY2d 687, affg 52 AD2d 995), it was error to apply the four-month limitation period applicable to article 78 proceedings (CPLR 217) to so much of the supplemental petition as sought to enforce petitioner’s citizen-taxpayer’s right of action for return of illegally paid funds. As to that cause of action the governing period of limitations is one year (CPLR 215 [4]), which had not run at the time of service of the supplemental petition. Nor under the circumstances of this case — the original proceeding having been begun on the day the contract, later held illegal, was awarded — can petitioner properly be held guilty of laches (cf. Matter of General Bldg. Contrs. v Egan, 106 AD2d 688; Matter of General Bldg. Contrs. v Board of Trustees, 42 AD2d 660).

Dismissal of the complaint against the respondent contractors on the papers alone was also error. Although the papers do not suggest that there was fraud or collusion on the part of the contractors, that fact does not foreclose recovery from them to the extent that petitioner can show after trial that the State paid more under these contracts than it would have had to pay had the bidding procedure mandated by State Finance Law § 135 been followed (Elia Bldg. Co. v New York State Urban Dev. Corp., 54 AD2d 337; Matter of General Bldg. Contrs. v State of New York, 89 Misc 2d 279; cf. S. T. Grand, Inc. v City of New York, 32 NY2d 300; Gerzof v Sweeney, 22 NY2d 297; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187). To hold otherwise is completely to undermine the legislative mandate. Section 123-e (1) of that law permits the court in a taxpayer’s action to grant such relief as “may seem just and proper”, but the determination made by Special Term should not have been made on the papers alone. By like token it should not have foreclosed recovery by petitioner of attorney fees prior to trial (State Finance Law § 123-g [1]; Gerzof v Sweeney, 22 NY2d, at p 308).

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

Order modified, with costs to appellant, and case remitted to Supreme Court, Albany County, for trial in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Thomas H. Smith, III, Appellant, v Board of Education of the Wallkill Central School District et al., Respondents. In the Matter of Henry Cutler, Appellant, v Board of Education of the Poughkeepsie City School District et al., Respondents.
    Argued May 28, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Bernard F. Ashe, Ira Paul Rubtchinsky and Rocco Salimando for appellants.

      George R. Bartlett, Jr., and Theodore J. Bennett for Board of Education of the Wallkill Central School District and another, respondents.

      David S. Shaw for Board of Education of the Poughkeepsie City School District and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellants, Thomas Henry Smith, III, and Henry Cutler, were tenured teachers employed by respondents — Smith as a mathematics teacher and Cutler in elementary education. Respondents suspended them without pay, pending hearings pursuant to section 3020-a of the Education Law, because their provisional certificates expired and they failed to obtain permanent certification. Nearly 10 months after his suspension on May 21, 1981, Smith received a new provisional certificate in business education, retroactive to September 1, 1981. Cutler, suspended on September 1,1982, the following month received a certificate of qualification in industrial arts, which was retroactive to the date of his suspension. In these article 78 proceedings, both appellants seek back pay from the effective dates of their new certificates, claiming the payless suspensions were unlawful. Appellant Smith additionally seeks reinstatement.

On the issue of back pay, in Matter of Jerry v Board of Educ. (35 NY2d 534), we held that a tenured teacher could not be suspended without pay pending a section 3020-a hearing absent explicit statutory authorization. We found such authorization in Matter of Meliti v Nyquist (41 NY2d 183), involving a tenured but uncertified — and therefore unqualified — teacher, whom it would have been illegal to pay (see, Education Law §§ 3009 [1], 3010). Here, neither appellant was certified to teach on the day he was suspended. The defect in Smith’s credentials was not remedied by the provisional certification, which, though retroactive to September 1,1981, still left a gap between his suspension and his certification. Neither was Cutler’s suspension rendered unlawful because of the issuance of a retroactive certificate of qualification, which did not authorize him to teach (see, 8 NYCRR 80.2 [Q). Since appellants were unqualified to teach when respondents suspended them, in neither case did subsequent certification render the suspensions unlawful.

On the issue of Smith’s claim to be restored to his teaching position, his failure over a period of 15 years to take the necessary steps to acquire and maintain permanent certification constitutes substantial evidence which supports respondent’s determination (see, Matter of Linton v Board of Educ., 47 NY2d 726, 727; Matter of Amos v Board of Educ., 43 NY2d 706, affg 54 AD2d 297; see also, Matter of Bali v Board of Educ., 68 AD2d 360, 366 [Simons, J., dissenting in part], appeal dismissed 48 NY2d 630).

We do not reach respondents’ argument that appellants’ new certificates were for subjects outside their tenure areas and therefore ineffective to qualify them to teach.

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

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


text:
    Harold S. Dowling, Respondent, v Consolidated Carriers Corp. et al., Respondents, and Queens Transit Corp. et al., Appellants. (And a Third-Party Action.)
    Argued May 29, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Peter K. Overzat for Queens Transit Corp. and others, appellants.

      Douglas A. Cooper and Steven S. Weiss for Green Bus Lines, Inc., and another, appellant.

      Robert S. Markfield for Harold S. Dowling, respondent.

      Michael N. Stevens and Stuart E. Kahan for Consolidated Carriers Corp. and others, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Whether the truck in which respondent was a passenger could have been brought to a safe stop had appellants’ buses not been standing in the expressway breakdown lane — assuming, for purposes of appellants’ motion, that the buses were there unlawfully — is a triable issue of fact which precludes summary judgment.

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

Order affirmed, etc.

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


text:
    The People of the State of New York, Respondent, v John Ahern, Appellant.
    Argued May 31, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Joseph A. Phillips for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was arrested on December 7, 1979 and charged with possession of a sawed-off shotgun, slightly over 26 inches in length. The Grand Jury indicted him for criminal possession of a weapon in the third degree in violation of Penal Law § 265.02 which, at the time, prohibited possession of, among other weapons, a “sawed-off shotgun or other firearm of a size which may be concealed upon the person” (Penal Law § 265.00 [3]). Defendant moved to dismiss the indictment, arguing that, as a matter of law, the gun was not “concealable.” The court denied the motion, finding it “both possible and feasible for an individual to secrete such a weapon under outer garments such as a full length coat or, even a knee length jacket” (104 Mise 2d 13, 14). Defendant was tried, convicted and, on July 16,1980, sentenced to a prison term of two to four years. On appeal, defendant claims the benefit of a 1982 amendment to section 265.00 (3), which defined firearm in part as a sawed-off shotgun less than 26 inches long.

The amendment to the statute was designed primarily to eliminate the confusion regarding the concealability of sawed-off shotguns, thereby simplifying adjudication of prosecutions for their possession (see generally, People v Williams, 90 AD2d 193,195; People v Cortez, 110 Misc 2d 652). Under these circumstances, and absent any indication that the Legislature intended the amendment to apply retroactively, it will not operate “in favor of an offender tried and sentenced to imprisonment before its enactment” (People v Oliver, 1 NY2d 152, 163). Nor can we say that the gun was not concealable as a matter of law (see, People v Tucker, 102 AD2d 535; People v Williams, supra; People v Davis, 112 Misc 2d 138, 141-144).

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.

       On the motion to dismiss the indictment, the court assumed that the gun was 27 inches long. The ballistics report and testimony at trial indicated that the length was 26V2 inches.


text:
    Mia Lancaster, Appellant-Respondent, v Tyrone Kindor, Respondent-Appellant.
    Argued June 4, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Mia Lancaster, appellant-respondent pro se.

      Matthew A. Tedone and Martin S. Rothman for respondent-appellant.
   OPINION OF THE COURT

Order affirmed, without costs, for reasons stated in the Per Curiam opinion at the Appellate Division (98 AD2d 300).

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

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


text:
    Miguel Garcia, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued May 29, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Howard S. Davis for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Edward F. X. Hart and Larry Sonnenshein of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. We agree with the Appellate Division that there is no evidence “that ought reasonably to satisfy a jury that the fact[s] sought to be proved [are] established” (Blum v Fresh Grown Preserve Corp., 292 NY 241, 246).

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

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


text:
    In the Matter of Allstate Insurance Company, Respondent, v Pearl Libow, Appellant.
    Argued May 30, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      James Cohen and Daniel Cohen for appellant.

      J. Irwin Shapiro and Daniel Kolko for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by former Justice Seymour Boyers at the Appellate Division (106 AD2d 110). We note, however, that the regulations of the Superintendent of Insurance (11 NYCRR 60.1 [a]) construe Vehicle and Traffic Law § 311 (4) (a) which contains language equivalent to the former Insurance Law § 167 (2-a) (now codified at § 3420 [f] [1]) at issue here.

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

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


text:
    The People of the State of New York, Respondent, v Sharon David, Also Known as Jeanne Klemann, Appellant.
    Argued May 31, 1985;
    decided June 28, 1985

      APPEARANCES OF COUNSEL

      Andrea G. Hirsch and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Ann B. Miele of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The sentencing court exceeded its power in sentencing the defendant to lifetime probation because the prerequisites mandated by the Legislature were not met (Penal Law § 65.00 [1] [b]). Hence, the sentence was illegal and therefore reviewable despite the District Attorney’s failure to object (see, People v Fuller, 57 NY2d 152, 156-157, n 3; People v Drummond, 40 NY2d 990, 992, cert denied sub nom. New York v Luis J., 431 US 908).

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

Order affirmed in a memorandum.

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


text:
    Kenneth H. Loughry, Respondent, v Lincoln First Bank, N. A., et al., Appellants.
    Submitted May 6, 1985;
    decided June 28, 1985
   Motion to dismiss the appeal granted only with respect to the appeal by defendants Lee and Dovidio, and the appeal by those defendants dismissed, without costs, upon the ground that they are not aggrieved by the modification at the Appellate Division (CPLR 5601 [a] [iii]); motion otherwise denied.


text:
    The People of the State of New York, Respondent, v Roberto Osuna, Appellant.
    Argued May 31, 1985;
    decided July 2, 1985

      APPEARANCES OF COUNSEL

      Monica Drinane and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Richard P. Marin and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of robbery in the first degree based primarily on identification testimony by the victim and inculpatory statements he made to the victim after being arrested. We agree with the majority at the Appellate Division that the error in admitting the testimony that the defendant’s sister said to him, just after his arrest, “Oh no, not again. What did you do this time?” was harmless. Whatever interpretation the jury may have given to this remark, we cannot conclude in view of all the evidence that there is a significant probability that it would have acquitted the defendant had it not been for this error (see, People v Crimmins, 36 NY2d 230, 242). The portion of the rebuttal testimony of the Assistant District Attorney which defendant now claims deprived him of a fair trial was not objected to at trial and is thus beyond our review. Defendant objected only to the narrative form of this witness’s testimony, which was not sufficient to preserve a contention that the substance of a portion of the testimony was improper.

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

Order affirmed in a memorandum.

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


text:
    In the Matter of American Savings Bank, Formerly Known as Franklin Savings Bank of New York, Respondent, v State Tax Commission, Appellant.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow and Robert Hermann of counsel), for appellant.

      Douglas J. McClintock for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to Supreme Court, Albany County, with directions to remand to respondent for recomputation in accordance with Matter of American Sav. Bank v Michael (64 NY2d 397). We note that pursuant to Tax Law § 1455 (b) (2), the alternative minimum tax base should be computed by applying the statutory 3.5% rate to the account balance using the bank’s compounding and crediting practices without consideration of interest forfeited by depositors due to early withdrawal.

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


text:
    In the Matter of V. Michael Liccione, as Deputy Commissioner of the Oneida County Department of Social Services, on Behalf of Wendy A., Appellant, v John H., Respondent.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Kenneth L. Bobrow for appellant.

      Leslie R. Lewis for respondent.
   OPINION OF THE COURT

Memorandum.

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

This proceeding was commenced by the Commissioner of Social Services on behalf of petitioner who gave birth to a child out of wedlock on July 9, 1982. The attending physician at the time of birth testified at trial that the child was born approximately four weeks prematurely, and calculated the expected date of birth to be August 4, 1982. Hospital records indicating that the birth was premature also were introduced into evidence. Petitioner testified that she first had intercourse with respondent on November 14,1981, and admitted having sexual intercourse with a third party on October 9, 1981. She also testified that she had a menstrual period on November 1 through November 5, 1981 and that this was the last normal period she had prior to giving birth in July. Respondent did not testify at the trial.

The Trial Judge’s assessment of the credibility of the witness’ testimony is to be afforded great weight, and respondent’s refusal to testify allows the strongest inferences to be drawn against him which the opposing evidence permits. (Noce v Kaufman, 2 NY2d 347; Matter of Commissioner of Social Servs. [Patricia A.] v Philip De G., 59 NY2d 137.) Given the testimony that a normal menstrual period occurred between the two disputed dates of conception and the medical testimony that the child was born prematurely, which testimony places the date of intercourse with respondent within an accepted period of gestation, we agree that the determination of Family Court adjudging respondent to be the father is supported by clear and convincing evidence.

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

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


text:
    In the Matter of American Transit Insurance Company, Appellant, v James P. Corcoran, as Superintendent of Insurance of the State of New York, et al., Respondents.
    Argued June 3, 1985;
    decided July 2, 1985

      APPEARANCES OF COUNSEL

      Peter R. Cella, Jonathan L. Rosner and Philip Bisceglia for appellant.

      Robert Abrams, Attorney-General (O. Peter Sherwood, Robert Hermann and Jane Levine of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice E. Leo Milonas.

In affirming, we note that respondents have not objected to the use of prohibition as a means of challenging respondent Superintendent’s action in appointing respondent Liebowitz to hear the charges against it. Prohibition is not available to prevent administrative action unless the agency is acting in a judicial or quasi-judicial capacity (see, Siegel, NY Prac § 559; 23 Carmody-Wait 2d, NY Civ Prac § 145:210) and even then it is generally not appropriate if another avenue of judicial review may be pursued without irreparable injury to the applicant (see, Matter of City of Newburgh v Public Employment Relations Bd., 63 NY2d 793). The Superintendent’s appointment in this case could have been challenged by an article 78 certiorari proceeding after the hearing and therefore a motion to dismiss the petition should have been made and granted (see also, Hecht v City of New York, 60 NY2d 57).

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

Order affirmed, with costs, in a memorandum.


text:
    C. Jeffrey Dufur, Respondent, v Matthew Lavin et al., Defendants, and Bowling Green Lanes, Inc., Appellant.
    Argued May 29, 1985;
    decided July 2, 1985

      APPEARANCES OF COUNSEL

      Roger J. Cusick for appellant.

      Morris J. Bloomberg and John J. Criscione for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with so much of the opinion of Presiding Justice A. Franklin Mahoney as found plaintiff Dufur was entitled to judgment against defendants Bowling Green Lanes, Inc., Lutz and Wilson (101 AD2d 319). The issue of apportionment between defendant Lavin and the remaining defendants is not before us on this appeal (see, 63 NY2d 894), but inasmuch as plaintiff Dufur’s right to recover has been affirmed, he may enter a separate judgment thereon, moving before Trial Term to sever the cross claims if he is so advised, and seek satisfaction of it from one or all of defendant joint tort-feasors (CPLR 1404; Kelly v Long Is. Light. Co, 31 NY2d 25, 30; see generally, 1 NY PJI2d, at 612 et seq.).

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

Order affirmed, with costs, in a memorandum.


text:
    Maureen Marchello, an Infant, by Her Mother and Natural Guardian, Mary Marchello, Appellant, v Lenox Hill Hospital et al., Respondents.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Steven DiJoseph and Edward P. Dunphy for appellant.

      Scott F. Morgan for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (107 AD2d 566).

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


text:
    The People of the State of New York, Respondent, v Augustus Reddick, Appellant.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

      Elizabeth Holtzman, District Attorney (Thomas E. Greiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after trial of burglary, attempted petit larceny, criminal mischief, and possession of burglar’s tools. He contends that the court erred in permitting testimony that the police found jewelry and money in his possession as he left the ransacked apartment and admitting those items in evidence when the People did not claim or prove that the items were stolen. He claims further that the error was exacerbated when the prosecutor, in summation, commented about the items and that these errors deprived him of his constitutional right to a fair trial. The Appellate Division found the error to be harmless as a matter of law and affirmed the convictions. On appeal to this court, the People contend that harmless error is a mixed question of law and fact which this court may not review and defendant renews his only preserved argument that the errors deprived him of a fair trial.

Contrary to the People’s contention, the correctness of the Appellate Division harmless error determination raises a question of law reviewable in this court (see, e.g., People v Goodman, 54 NY2d 451; People v Glenn, 52 NY2d 880; People v Crimmins, 36 NY2d 230, 242). On the merits, we agree with the Appellate Division that the evidence of guilt was overwhelming and the errors harmless. Defendant was apprehended with a screwdriver in his pocket leaving the ransacked and damaged apartment by a police officer responding to a burglary in progress report. Under the circumstances, there is no significant probability that the jury would have acquitted defendant had the errors not occurred (People v Crimmins, supra).

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

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


text:
    The People of the State of New York, Respondent, v Wilfred Roopchand, Appellant.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Robin J. Nichinsky and William E. Hellerstein for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the Per Curiam opinion at the Appellate Division (107 AD2d 35).

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


text:
    Craig Werner, Appellant, v Sun Oil Company, Defendant and Third-Party Plaintiff-Respondent, and Wayne Pump Company, Respondent. Mary MacDougall, Doing Business as Walt’s Service Station, Third-Party Defendant-Respondent.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Anthony V. Barbiero for appellant.

      David Holmes for Sun Oil Company, respondent.

      Michael J. Roe for Wayne Pump Company, respondent.

      Marian C. Rice for Mary MacDougall, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed with costs, and a new trial granted.

While a witness’s qualification to testify as an expert rests in the discretion of the trial court, and its determination will not be disturbed in the absence of serious mistake, an error of law or abuse of discretion (Meiselman v Crown Hgts. Hosp., 285 NY 389, 398; Tarlowe v Metropolitan Ski Slopes, 28 NY2d 410, 414), here the trial court improperly denied plaintiff the opportunity to lay a foundation for qualification of his witness as an expert. In upholding the trial court’s dismissal of the case at the close of plaintiff’s evidence, the Appellate Division observed that plaintiff had “failed to show that the pumps with which [the proffered expert] was familiar were similar to the one on which plaintiff sustained his injury” (106 AD2d, p 570). But the trial court’s ultimate refusal to permit the witness to be asked — until first qualified as an expert in industry practices — whether the gas pumps with which he was familiar used glass faces, in effect denied plaintiff an opportunity to make the requisite showing.

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

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


text:
    Robert Walker et al., Appellants, v Town of Lockport et al., Defendants, and Dickinson’s Equipment, Inc., et al., Respondents.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Philip S. Gellman for appellant.

      Bruce Kevin Koren for Dickinson’s Equipment, Inc., respondent.

      Thomas W. Bender for BMW of North America, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (109 AD2d 1102).

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


text:
    Donald Chipman, Appellant, v Donald Steinberg, Defendant, and Jerome J. Garfield, Respondent.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Henry B. Gutman and Charles E. Bachman for appellant.

      John B. Bartels, Jr., for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 343).

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


text:
    The People of the State of New York, Respondent, v Harry Albino, Appellant.
    Decided July 2, 1985

      APPEARANCES OF COUNSEL

      Donald Chase for appellant.

      Robert Morgenthau, District Attorney (Andrew J. Turro of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for reasons stated in the memorandum at the Appellate Division (104 AD2d 317).

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


text:
    The People of the State of New York, Respondent, v David Levine, Appellant.
    Argued June 4, 1985;
    decided July 2, 1985

      APPEARANCES OF COUNSEL

      Norman A. Olch for appellant.

      Robert M. Morgenthau, District Attorney (John Latella and Robert M. Pitler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The circumstantial evidence was sufficient to support the jury’s verdict of guilty of murder in the second degree. The record shows that defendant lived in an apartment adjoining the victim’s and he could have had access to her apartment either through the door or across a ledge and through a partially opened window. He used a credit card belonging to the victim to buy a pair of shoes within two or three hours after the victim had been strangled and stabbed to death in her bedroom. He falsely stated that he found a wallet containing the credit card in a park at a time after he used the card to buy the shoes and that he had thrown the wallet away. The victim’s wallet containing her other credit cards was found, pursuant to a search warrant, in a box in defendant’s bedroom. The victim had not reported her credit cards missing, and when her body was discovered, her purse was found on her living room table, opened, with no money or credit cards inside. Upon examination of defendant following his arrest, scratch marks were observed on his back.

Defendant’s false statements are not only evidence of consciousness of guilt of some crime, but also show defendant’s attempts to distance himself from the time and place of the murder (see, People v Benzinger, 36 NY2d 29,33-34). These facts taken all together, in combination with the evidence of motive, are inconsistent with defendant’s innocence and exclude to a moral certainty every other reasonable hypothesis (see, People v Marin, 65 NY2d 741; People v Bearden, 290 NY 478, 480; see also, People v Baskerville, 60 NY2d 374, 382-383 [discussing the inference that may be drawn from recent possession of the fruits of a crime]).

We have considered defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.

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


text:
    American Association of Bioanalysts, Respondent-Appellant, v David Axelrod, as Commissioner of Health of the State of New York, Appellant-Respondent. (Action No. 1.) Hospital Association of New York State, Inc., et al., Respondents, v David Axelrod, as Commissioner of Health of the State of New York, et al., Appellants. (Action No. 2.)
    Decided July 2, 1985
   Appeal and cross appeal in action No. 1 and appeal in action No. 2 each dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Joseph J. Harris, Plaintiff, v Sam Bonacci, Jr., et al., Defendants and Third-Party Appellants-Respondents. Richard E. Chase, Third-Party Respondent-Appellant, et al., Third-Party Defendants.
    Decided July 2, 1985
   Cross appeal by third-party respondent-appellant Chase dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that said cross appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601 [a] [iii]).


text:
    In the Matter of Charles Keffer, Appellant, v Theodore Reid, as Superintendent of Fishkill Correctional Facility, et al., Respondents.
    Decided July 2, 1985
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that an appeal does not lie pursuant to CPLR 5601 (d) from a final judgment entered upon the default of the aggrieved party (CPLR 5511).

Judge Titone taking no part.


text:
    James J. Kiernan, Respondent, v City of New York et al., Defendants, Salvatore Russo, Inc., Respondent, and Mario Raccasi, Appellant.
    Submitted May 20, 1985;
    decided July 2, 1985
   Motion to dismiss the appeal granted and the appeal dismissed as untimely taken (CPLR 5513 [a]), with costs and $20 costs of motion to respondent Salvatore Russo, Inc.


text:
    In the Matter of Lorenzo F. Padilla, an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 24, 1985;
    decided July 2, 1985
   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, treated as one for leave to appeal and for a stay, granted to the extent of granting leave to appeal. Motion for a stay denied.


text:
    Frank M. Petrella, Appellant, v Robert J. O’Connor et al., Respondents.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Peter M. Kooshoian for appellant.

      Anthony M. Nosek for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. Inasmuch as plaintiff failed to allege a propensity of the cat from which injury naturally flowed or such an unreasonable risk of danger that a duty to warn was owed, no triable issue was raised.

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


text:
    In the Matter of James Shearod, Individually and on Behalf of Other Special Education Teachers Similarly Situated, Appellant, v Board of Cooperative Educational Services of Nassau County et al., Respondents.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Stanley A. Immerman for appellant.

      Marshall D. Sweetbaum and David R. Kay for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 743).

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


text:
    The People of the State of New York, Appellant, v Phillip Conner, Also Known as Phillip Connor, Respondent.
    Decided July 5, 1985
    APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (William J. Troy, III, of counsel), for appellant.

      Allen S. Stim for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The courts below found that the delays in question did not arise from the action or with the consent of the defendant or for the defendant’s convenience. (CPL 30.30 [4] [b].)

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


text:
    Lefkothea Christou, Appellant, v George Christou, Respondent, et al., Defendants.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Wilfred E. Hoffmann for appellant.

      Eric M. Alderman for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (109 AD2d 1058).

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


text:
    In the Matter of Bio-Tech Mills, Inc., Appellant, v Henry G. Williams, as Commissioner of the Department of Environmental Conservation, Respondent.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Lewis B. Oliver, Jr., for appellant.

      Robert Abrams, Attorney-General (Francis J. Keehan and Robert Hermann of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, with costs, for the reasons stated in the opinion by Justice Robert G. Main at the Appellate Division (105 AD2d 301).

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


text:
    Virginia Hernandez, as Administratrix of the Estate of Aida Hernandez, Deceased, et al., Appellants, v Consolidated Edison Company of New York, Inc., Respondent, et al., Defendants.
    Argued February 6, 1985;
    decided July 5, 1985

      APPEARANCES OF COUNSEL

      Paul F. McAloon for appellants.

      William E. Hegarty, Thomas J. Kavaler, Stanley K. Shapiro and Lisa Schilit for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (see, Strauss v Belle Realty Co., 65 NY2d 399; see also, Nicholson v City of New York, 271 App Div 899, affd 297 NY 548). Question certified not answered as unnecessary.

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye; Judges Jasen and Meyer on constraint of Strauss v Belle Realty Co. (65 NY2d 399). Taking no part: Judges Alexander and Titone.


text:
    John Crane, Plaintiff, v City of New York, Appellant, and Consolidated Edison Company of New York, Inc., Respondent.
    Argued February 6, 1985;
    decided July 5, 1985
    APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein and Leonard Koerner of counsel), for appellant.

      William E. Hegarty, Ernest J. Williams, John R. Vaughan, Thomas J. Kavaler and Stanley K. Shapiro for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when, on the night of the 1977 power blackout, he fell on some irregular cobblestones on a New York City street. He brought this action against the city, for failure to keep the streets in good repair or provide adequate warnings, and against Con Edison, for its negligence in causing the blackout. The city cross-claimed against Con Edison for indemnity or contribution. The court dismissed plaintiff’s action against Con Edison because the utility owed him no duty. That ruling has not been challenged in this court. Con Edison then moved to dismiss the city’s cross claim. The court granted the motion and adhered to its decision upon reargument. The Appellate Division unanimously affirmed, without opinion.

On appeal, the city has abandoned its claim for indemnity. However, citing Garrett v Holiday Inns (58 NY2d 253) and Nolechek v Gesuale (46 NY2d 332), it seeks contribution based on Con Edison’s alleged independent duty to the city to prevent foreseeable exposure to potential tort liability. Assuming, for argument’s sake, that Garrett and Nolechek are applicable, imposition of a duty here would circumvent the policy goals expressed in Strauss v Belle Realty Co. (65 NY2d 399), and we therefore decline to do so.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judges Jasen and Meyer on constraint of Strauss v Belle Realty Co. (65 NY2d 399); Judges Alexander and Titone taking no part.

Order affirmed, with costs, in a memorandum.


text:
    Miguel Rivera et al., Appellants, v Muhammad Parvez et al., Respondents.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Albert A. Juron for appellants.

      Audrey Rogers for National Railroad Passenger Corporation, respondent.

      Keogh & Keogh for Muhammed Parvez and another, respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (108 AD2d 640).

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


text:
    In the Matter of John P., Appellant, v David Axelrod, as Commissioner of Health of the State of New York, et al., Respondents.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Francis J. Offermann, Jr., for appellant.

      Robert Abrams, Attorney-General (Alan W. Rubenstein, Robert Hermann and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (106 AD2d 908; see also, CPLR 6313).

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


text:
    Lakeside Concrete Corp., Appellant, v Pine Hollow Building Corp. et al., Respondents, et al., Defendants.
    Decided July 5, 1985

      APPEARANCES OF COUNSEL

      Vincent G. Berger, Jr., for appellant.

      Nathan Horowitz for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (104 AD2d 551).

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


text:
    Ebony Oil Corporation, Respondent, v Robert Brooks, Appellant.
    Submitted June 3, 1985;
    decided July 5, 1985
   Motion for leave to appeal dismissed upon the ground that (1) no appeal lies from the order of the Appellate Division insofar as it dismissed an appeal from the February 21, 1984 default judgment (CPLR 5511); and (2) the remaining portions of the order of the Appellate Division do not finally determine the action within the meaning of the Constitution.


author: Titone, J.

text:
    In the Matter of Wayne Prospect et al., Respondents, v Peter F. Cohalan, as County Executive of Suffolk County, Appellant. Long Island Lighting Company, Intervenor-Appellant. In the Matter of the Town of Southampton et al., Respondents, v Peter F. Cohalan, as County Executive of Suffolk County, Appellant. Long Island Lighting Company, Intervenor-Appellant.
    Argued June 27, 1985;
    decided July 9, 1985

      APPEARANCES OF COUNSEL

      Robert M. Calica and Thomas P. Schulz for appellant.

      K. Dennis Sisk, W. Taylor Reveley, III, Kathy E. B. McCleskey, David R. Marshall, Rosalind M. Gordon and Anthony F. Earley, Jr., for intervenor-appellant.

      Irving Like and Lester B. Lipkind for Wayne Prospect and others, respondents.

      Stephen B. Latham, John F. Shea, III, and Lawrence M. Storm for Town of Southampton and others, respondents.

      Robert Abrams, Attorney-General (Alfred L. Nardelli, Fabian Palomino, Peter Bienstock and Mary M. Gundrum of counsel), for the State of New York, amicus curiae.

      Lou Lewis for Shoreham-Wading River Central School District, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

Article 2-B of the Executive Law, notwithstanding its articulated policy of involving local chief executives in the development and implementation of disaster preparedness programs (Executive Law § 20 [1] [b]), does not vest in them the ultimate responsibility for the preparation of county disaster plans.

Section 23 (1) specifically provides that “[e]ach county * * * is authorized to prepare disaster preparedness plans.” It is clear that the delegation of power to each county is to its legislative, not its executive branch. In other sections of article 2-B, the context clearly indicates that references to the “county”, without more, signify the legislative branch. Section 27 (1), for example, provides in pertinent part that “[e]very county * * * shall have [the] power to provide by local law * * * for its continuity”. Similarly, section 28-a (1) provides that, in the event of a declaration of a State disaster emergency, “any county * * * shall prepare a local recovery and redevelopment plan, unless the legislative body of the municipality shall determine such plan to be unnecessary or impractical.” In stark contrast, when the Legislature intended to vest authority of any kind in a county executive, it has specified the role of the chief executive, defined as “a county executive or manager of a county” (Executive Law § 20 [2] [f] [1]) (see, e.g., Executive Law § 24 [1]; § 25 [1], [2], [3], [4], [6]; § 26 [1], [3]).

Moreover, the use of the term “is authorized” in section 23 (1) unequivocally signals a legislative intent that the preparation of county plans is optional, not mandatory. The provisions authorizing the chief executive of a county to act upon the declaration of a radiological accident do not necessarily presuppose the existence of a plan (Executive Law §§ 24, 25, 26, 28 [1]; § 29-b [2]). We read Executive Law § 20 (1) (b) as merely manifesting a policy preferring consideration of the county executive’s views in the development of disaster preparedness programs, which policy implicitly recognizes that primary responsibility for such development is lodged elsewhere and agree with the conclusion of the Appellate Division that the term “county” in Executive Law § 23 (1) does not include “county executive”.

If the challenged executive order is merely a vehicle for the gathering of information to enable the county executive to perform his statutorily mandated functions of taking “an active and personal role in the development and implementation of disaster preparedness programs” (Executive Law § 20 [1] [b]) and giving “advice and assistance” to the local legislative body or other duly appointed planning authority (Executive Law § 23 [5]), it is clearly authorized under the statute. However, we read Executive Order 1-1985 as representing a first step toward the implementation of a plan and therefore we find it to be a clear usurpation of the legislative function (cf. Under 21 v City of New York, 65 NY2d 344).

Titone, J.

(dissenting). The issue before us is not whether Executive Law § 23 (1) confers ultimate responsibility for the promulgation of a disaster preparedness plan upon the executive branch or the legislative branch of county government, for the challenged executive order does not purport to promulgate such a plan. It simply directs the Commissioner of Police and the Commissioner of Planning to study a proposed plan that is not in effect and may never go into effect. The real question, then, concerns the proper role of the judiciary in this emotionally charged dispute. Because the County Executive clearly possesses express and implied authority to issue the executive order in question and the alleged illegal acts sought to be enjoined have not taken place and are contingent upon future events that may or may not come to pass, the purported challenge is “nonjusticiable as wholly speculative and abstract” (Matter of New York State Inspection, Security & Law Enforcement Employees v Cuomo, 64 NY2d 233, 240). Accordingly, the order of the Appellate Division should be reversed and the petitions dismissed.

This litigation revolves around a nuclear power plant located at Shoreham on Long Island. It appears that the plant cannot become operational in the absence of an emergency evacuation plan. The Suffolk County Legislature has consistently taken the position that no plan would be feasible and eventually passed a resolution, signed by the present County Executive, appellant Peter Cohalan, which “terminated” Suffolk County’s “radiological emergency planning process” and directed that “no local radiological emergency plan * * * be adopted or implemented”.

Blocked by local governmental obstinance, the utility submitted its own plan to the Nuclear Regulatory Commission. After the Commission rejected the plan as beyond the utility’s legal powers, appellant Cohalan issued Executive Order 1-1985, which reads as follows:

“By the power vested in me under Article II-B of the New York State Executive Law and § 302 of the SUFFOLK COUNTY CHARTER, I hereby determine that it is necessary for me to cause to be reviewed and evaluated the Local Emergency Response Plan for Suffolk County presently before the United States Nuclear Regulatory Commission and the Federal Emergency Management Agency.

“I therefore direct the Commissioner of Police and Commissioner of the Suffolk County Planning Department to use whatever resources of the government of the County of Suffolk are necessary in order to complete a review and evaluation of the above Local Emergency Response Plan and carry out and cause to be conducted a test and exercise of the above said Plan in conjunction with the Local Emergency Response Organization (LERO). I further direct that agents of the County of Suffolk assume the function of command and control with implementation of police powers of the County of Suffolk over the conduct of said test and exercise.”

Charging that Cohalan betrayed them, petitioners, several individual Suffolk County legislators and four Suffolk County towns, brought separate suits to annul the executive order on the ground that it usurps the power of the Suffolk County Legislature to develop and implement a disaster preparedness plan. They have been successful at Special Term and at the Appellate Division, obtaining a judgment, which the Appellate Division affirmed, declaring the executive order void and enjoining Cohalan, his agents and employees from taking any action “to enforce, implement or carry out the directives, policies, or terms” of the order “or any directive or instruction relating thereto.” We conclude that the determinations below rest upon a speculative premise concerning future events and, therefore, would reverse.

There can be no doubt that the Suffolk County Executive has the power — indeed the responsibility — to review the utility’s proposal. Executive Law § 20 (1) (b) expressly declares State policy to be that “local chief executives take an active and personal role in the development and implementation of disaster preparedness programs and be vested with authority and responsibility in order to insure the success of such programs”. In “preparing such plans,” the State Legislature has specified that “cooperation, advice and assistance” be sought from “local government officials, regional and local planning agencies, [and] police agencies” (Executive Law § 23 [5]). That is all Executive Order 1-1985 does.

Under the Suffolk County Charter, the county executive is chief administrative officer and administrative head (Suffolk County Charter § 302), and, as such, is obligated “to manage the operations of the divisions of the executive branch” (Matter of New York State Inspection, Security & Law Enforcement Employees v Cuomo, 64 NY2d 233, 239, supra). In addition to other responsibilities, the charter directs the county executive to “present to the county legislature from time to time such information and recommendations concerning the affairs of the county as he may deem necessary or as the county legislature may by resolution request” (Suffolk County Charter § 303 [g]).

Although County Executive Cohalan has acted within the parameters of these statutory and charter provisions, the argument is made that since the Suffolk County Legislature has consistently expressed its intention not to approve any plan, the courts should now hold that, as a matter of statutory construction, the power to promulgate and implement a disaster preparedness plan is solely a legislative function, and, inasmuch as the Suffolk County Legislature will not do so, the County Executive’s powers are vitiated. This begs the question.

County Executive Cohalan has not promulgated any plan. His executive order merely directs that a proposal be evaluated. After the proposal is studied, he may well conclude that it is not viable and that will end the matter. If, on the other hand, he concludes that the proposal is workable and should be implemented, he could submit it to the Suffolk County Legislature for its consideration and agree to abide by its determination. Again, the question of statutory construction would be moot. Only if County Executive Cohalan implements the proposal by executive fiat in the face of legislative disapproval will the issue pressed upon us be ripe for judicial resolution. By no stretch of logistic legerdemain can it be read as some sort of first step toward a grandiose scheme to impose the plan on the county.

There are other “ifs” here as well. We are told that it is absolutely certain that the Suffolk County Legislature will withhold its consent. But the only thing absolutely certain in political matters is that nothing is absolutely certain. Attitudes are shaped by current events. Another energy crisis, with its long gasoline lines and brownouts, may cause a quick change in legislative consensus. The legislators could, at least theoretically, be swayed by expert reports, especially if, by virtue of some sort of Federal preemption, it is determined that the plant is to open (cf. British Airways Bd. v Port Auth., 564 F2d 1002 [local noise limitation standard utilized to bar SST invalidated]). A resolution, by definition, is “an act of a temporary character not prescribing a permanent rule of government” (Matter of Collins v City of Schenectady, 256 App Div 389, 392; emphasis supplied), which “continues for a reasonable period only, and in such a case a formal repeal is not, of course, required to terminate its operation (5 McQuillin, Municipal Corporations [3d ed], § 15.42)” (Quaglia v Incorporated Vil. of Munsey Park, 54 AD2d 434,439, affd 44 NY2d 772). Indeed, this litigation itself, fueled by the adoption of a more flexible posture by the County Executive, is itself telling. In short, we are reminded of Byron’s Julia, who “whispering, ‘I shall ne’er consent,’ consented” (Don Juan, Canto I, stanza 117).

All these “ifs” render it both unnecessary and improper for us to express any view on whether a disaster preparedness plan may be put into effect absent the imprimatur of the local legislature. Courts should not involve themselves in challenges to executive acts where “the harm sought to be enjoined is contingent upon events which may not come to pass [because] the claim to enjoin the purported hazard is nonjusticiable as wholly speculative and abstract” (Matter of New York State Inspection, Security & Law Enforcement Employees v Cuomo, 64 NY2d 233, 240, supra). To paraphrase our holding in New York Public Interest Research Group v Carey (42 NY2d 527, 531), until the County Executive attempts to implement a plan in the teeth of legislative opposition, any declaration on our part “ ‘would be premature’ ” (quoting Borchard, Declaratory Judgments, at 63; see also, Connor v Siebert, 56 NY2d 674). “Jurisdiction exists that rights may be maintained. Rights are not maintained that jurisdiction may exist” (Matter of Berkovitz v Arbib & Houlberg, 230 NY 261, 274).

An actual antagonistic assertion of rights which are ripe for adjudication is an indispensable safeguard, essential to the integrity of the judicial process (see, Self-Insurer’s Assn. v State Indus. Commn., 224 NY 13 [Cardozo, J.]). “This is not merely a question of judicial prudence or restraint; it is a constitutional command defining the proper role of the courts under a common-law system” (New York Public Interest Research Group v Carey, 42 NY2d 527, 529-530, supra).

The Suffolk County Legislature’s pertinacity cannot, in any sense, interdict the County Executive from undertaking his obligation to “take an active and personal role in the development and implementation of disaster preparedness programs” (Executive Law § 20 [1] [b]). When the study is completed, the county legislature must at least “listen” to his report, even if it does not like what it “hears” (see, Suffolk County Charter § 303 [g]). The Suffolk County Legislature’s resolutions on the subject constitute but temporary, ministerial declarations, not legislation finally and unequivocally disapproving the proposed plan (see, City of Troy Unit of Rensselaer County Ch. of Civ. Serv. Employees Assn. v City of Troy, 36 AD2d 145,147, ajffd, 30 NY2d 549; Quaglia v Incorporated Vil. of Munsey Park, supra; Matter of Collins v City of Schenectady, supra; cf. Matter of Jewett v Luau-Nyack Corp., 31 NY2d 298, 305-306).

Perhaps the Suffolk County Legislature can curb the County Executive’s ability to function in this area through the power of the purse, by refusing to allocate sufficient funds for the project. But even that question is not before us. At this stage, the County Executive is plainly within his powers, and the “lawful acts of executive branch officials, performed in satisfaction of responsibilities conferred by law, involve questions of judgment, allocation of resources and ordering of priorities, which are generally not subject to judicial review. * * * This judicial deference to a coordinate, coequal branch of government includes one issue of justiciability generally denominated as the ‘political question’ doctrine” (Matter of New York State Inspection, Security & Law Enforcement Employees v Cuomo, 64 NY2d 233, 239, supra).

Acceptance of the Suffolk County Legislature’s argument here would establish a farreaching and mischievous precedent that cannot be confined to litigation involving a power plant in Suffolk County. It would abrogate the separation of powers doctrine at the local level, and, in its place, substitute a parliamentary system (see, People v Tremaine, 281 NY 1), because it would enable the legislative branch to turn a power of consent or confirmation into a power of appointment. To strip the executive of his power to designate a police commissioner, for example, the legislature need only pass a resolution to the effect that it will not confirm anyone other than “X” and if the executive attempted to seek or interview other applicants, the legislators need only call upon the judiciary to enjoin him from acting in contravention of its resolution. Through this artifice, the executive would be compelled to nominate “X”, the legislature’s “nominee” (see, Suffolk County Charter § 1202 [a]; cf. Matter of County of Suffolk, 43 NY2d 968, revg 56 AD2d 301).

The United States Supreme Court recently rebuffed similar attempts by Congress to straight] acket the President through the use of the legislative veto (Immigration & Naturalization Serv. v Chadha, 462 US 919). In Chadha, the court invalidated Immigration and Nationality Act § 244 (c) (2) (8 USC § 1254 [c] [2]) which authorized either House of Congress, by resolution, to overturn the decision of the executive branch, pursuant to authority delegated by Congress to the Attorney General, to allow a particular deportable alien to remain in this country. It reasoned that this legislative veto provision violated integral parts of the constitutional design for the separation of powers. As so well put, “The hydraulic pressure inherent within each of the separate Branches [of Government] to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted” (Immigration & Naturalization Serv. v Chadha, supra, p 951). There is no reason why this court should hold otherwise.

We would prefer not to express our thoughts on what the 1978 State Legislature thought on a question that they possibly never thought about. By applying established rules of nonjusticiability, we give time for the political process to operate. Having identified a gap in the legislation, it would be best to allow the State Legislature to fill it (see, McKinney’s Cons Laws of NY, Book 1, Statutes § 193 [b]).

To find, as does the majority, that Executive Order 1-1985 constitutes an impermissible “first step” in implementing the plan, is, in actuality, an inquiry into the County Executive’s state of mind. It is.basic law, however, that the courts have no power to investigate the motives of the executive branch, absent a demonstration of fraud or the like (see, 2 McQuillin, Municipal Corporations §§ 10.35, 10.36,10.37 [3d ed rev]). On this record, petitioners have not overcome the presumption that the executive has acted with the sole purpose of accomplishing permissible constitutional and statutory goals (see, 2 McQuillin, Municipal Corporations § 10.35 [3d ed rev]).

For these reasons, the order of the Appellate Division should be reversed and the petitions dismissed.

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

Order affirmed, without costs, in a memorandum.

       Although the parties have not urged nonjusticiability, since the issue implicates subject matter jurisdiction (Matter of New York State Inspection, Security & Law Enforcement Employees v Cuomo, 64 NY2d 233, 241, n 3), we raise the issue on our own motion (Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324; Siegel, NY Prac § 8).


text:
    Joseph J. Harris, Plaintiff, v Sam Bonacci, Jr., et al., Defendants and Third-Party Plaintiffs-Appellants. Richard E. Chase, Third-Party Defendant-Respondent, et al., Third-Party Defendants.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Sanford Robert Shapiro for appellants.

      Bruce E. Hansen for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (109 AD2d 1072).

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


text:
    In the Matter of Filmways Communications of Syracuse, Inc., Respondent, v Alan Douglas, as Building Inspector of the Town of Onondaga, Appellant.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      John P. Kinney for appellant.

      John B. Hood and Jeffrey G. Wright for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the opinion by Justice James H. Boomer at the Appellate Division (106 AD2d 185). We note in addition that in this case, the variance was granted prior to the effective date of SEQRA; therefore, whether the granting of a variance would otherwise trigger the review process mandated by the act is not before us at this time.

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


text:
    In the Matter of Jeanne Musorofiti, Respondent, v Board of Education of South Huntington Union Free School District, Appellant.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Lawrence W. Reich for appellant.

      John J. Naun and James R. Sandner for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (108 AD2d 863).

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


text:
    Daniel Sitomer, Appellant, v Melohn Properties Management, Respondent.
    Decided July 9, 1985

      APPEARANCES OF COUNSEL

      Daniel J. Sitomer, appellant pro se.

      Jeffrey R. Metz for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (108 AD2d 706; see, Bennett v Rockrose Dev. Corp., 64 NY2d 1155; Blum v West End Assoc., 64 NY2d 939; Fox v 85th Estates Co., 63 NY2d 1009; Vance v Century Apts. Assoc., 61 NY2d 716).

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


text:
    The People of the State of New York, Respondent, v Mark S. Colwell, Appellant.
    Argued May 31, 1985;
    decided July 9, 1985

      APPEARANCES OF COUNSEL

      Thomas J. Fox, Public Defender (Thomas A. Saitta of counsel), for appellant.

      Patrick H. Mathews, District Attorney (Gerald F. Mollen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On April 19, 1982, police arrested defendant for harassment and learned from the records that he had been charged with burglary in 1981. Without asking defendant about the status of the burglary charge, investigators questioned him about two unrelated sex crimes which had been committed in February 1981 and April 1982. After waiving his Miranda rights, defendant made incriminating statements as to both crimes. With respect to the 1981 burglary charge, defendant had entered a guilty plea on November 6, 1981, and at the time of the questioning, was represented by counsel on appeal from the burglary conviction. Defendant now argues that the police should be charged with knowledge that he was represented by counsel on the unrelated appeal. Accordingly, he claims, under People v Rogers (48 NY2d 167) he should not have been questioned in the absence of counsel.

Where an individual is actually represented on a pending charge brought to the attention of the police, custodial interrogation on any crime, even if unrelated, is prohibited (People v Ferrara, 54 NY2d 498, 507; People v Rogers, supra). The question here is whether this rule should be extended to the situation where the defendant is represented not on a “pending charge” but on an appeal from a criminal conviction. While we agree with the Appellate Division that it should not, we affirm the defendant’s conviction on a different basis from that articulated below.

A primary concern underlying Rogers was that a defendant could incriminate himself on the pending charge, on which he is represented, even though the questions ostensibly concern unrelated charges. As this court noted, “it is the role of [the] defendant’s attorney, not the State, to determine whether a particular matter will or will not touch upon the extant charge” (People v Rogers, 48 NY2d 167, 173, supra). This same concern is not present where the defendant already stands convicted and is represented only on an appeal from the conviction. After conviction and sentence, prosecutorial authorities do not have the same motivation to gather evidence incriminating the defendant on charges for which he has already been convicted, and an appellate court generally considers only the issues raised by the record of the judgment of conviction. In most cases, a statement bearing on charges that are already the subject of a conviction would be of little use to the prosecution as a case wends it way — often for years — through the appellate process.

Of course, an appellate attorney would hardly abandon a client being questioned on unrelated charges, and statements made after conviction may well become significant if there is a new trial. But in deciding whether to extend the Rogers rule to the situation before us, we also cannot lose sight of the State’s “significant interest in investigating and prosecuting criminal conduct” (People v Rogers, 48 NY2d 167, 173, supra). We conclude that any interest in extending the right to counsel rule articulated in Rogers throughout the often-protracted duration of an appeal is outweighed by the legitimate interest in law enforcement.

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

Order affirmed in a memorandum.