text:
    The People of the State of New York, Respondent, v George Booker, Appellant.
    Decided April 30, 1987

      APPEARANCES OF COUNSEL

      Philip H. Dixon for appellant.

      Robert M. Morgenthau, District Attorney (John G. Martin 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. Larcenous intent is not an element of the crime of jostling (People v Nelson, 69 NY2d 302). Defendant’s constitutional challenges are not preserved for this court’s review (see, People v Iannelli, 69 NY2d 684; People v Thomas, 50 NY2d 467, 473).

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Raymond Whitehead, Appellant, v Jacqueline McMickens, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
    Decided April 30, 1987

      APPEARANCES OF COUNSEL

      Raymond E. Kerno and Richard Hartman for appellant.

      Peter L. Zimroth, Corporation Counsel (Stephen J. McGrath of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is an article 78 proceeding in which petitioner, a New York City Correction Officer, seeks to annul the determination of the Commissioner of the Department of Correction suspending the petitioner without pay for 10 days.

The sole issue presented for this court’s review is whether the Commissioner’s finding that petitioner had acted in a "disrespectful and contemptuous manner” toward a supervisor was supported by substantial evidence in the record (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176).

We conclude that the testimony of the superior officer coupled with petitioner’s own account of the incident is sufficient evidence to support a finding of insubordination and disrespectful behavior. This conclusion, along with the other two findings of misconduct which are uncontested, warrants affirmance of the Appellate Division’s order refusing to annul the Commissioner’s disciplinary determination.

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

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


text:
    Dorothy Y. Copeland et al., Appellants, v Weyerhaeuser Company et al., Respondents.
    Submitted March 2, 1987;
    decided April 30, 1987
   Motion for leave to appeal dismissed as untimely (see, CPLR 5611; Farragher v City of New York, 19 NY2d 831), with $20 costs and necessary reproduction disbursements. [See, 124 AD2d 998.]

Judges Simons and Hancock, Jr., taking no part.


text:
    4200 Avenue K Realty Corp., Respondent, v 4200 Realty Co. et al., Appellants.
    Submitted March 9, 1987;
    decided April 30, 1987
   Motion for leave to appeal insofar as taken from the judgment of Supreme Court, dated November 20, 1986, dismissed upon the ground that the final order of the Appellate Division, dated September 29, 1986, is the appealable paper (CPLR 5611).

Motion for leave to appeal insofar as taken from the order of the Appellate Division, dated September 29, 1986, dismissed for untimeliness (CPLR 5513 [b]).

Judge Titone taking no part.


text:
    John Fritz, Respondent, v Consolidated Rail Corporation, Appellant.
    Submitted April 28, 1987;
    decided April 30, 1987
   Appeal taken as of right dismissed, without costs, on the court’s own motion, and motion for leave to appeal dismissed, each upon the ground that no appeal lies to this court from the order of an individual Justice of the Appellate Division (NY Const, art VI, § 3 [b]; CPLR 5601, 5602). Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Anthony Green, Appellant, v Vincent F. Naro, as Supreme Court Justice of Queens County, et al., Respondents.
    Submitted March 16, 1987;
    decided April 30, 1987
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous Appellate Division order absént the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1). Motion for leave to appeal denied.


text:
    Kenneth J. Hemming et al., Appellants, v United States Gypsum Company et al., Respondents.
    Submitted March 9, 1987;
    decided April 30, 1987
   Motion for leave to appeal dismissed as untimely (see, CPLR 5611; Farragher v City of New York, 19 NY2d 831), with $20 costs and necessary reproduction disbursements. [See, 124 AD2d 998.]

Judges Simons and Hancock, Jr., taking no part.


text:
    Nancy J. Monaghan, as Administratrix of the Estate of Hugh M. Monaghan, Deceased, Appellant, v James K. Yang, Respondent.
    Submitted March 16, 1987;
    decided April 30, 1987
   Motion for leave to appeal dismissed for untimeliness, the prior motion for leave to appeal, made to the Appellate Division, not having been timely made (CPLR 5513 [b]; Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    Ann Paglia, Individually and as Administratrix of the Estate of Catherine Barone, Deceased, Appellant, v Jugal K. Agrawal et al., Respondents.
    Submitted March 9, 1987;
    decided April 30, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, denying a motion to vacate a prior dismissal pursuant to CPLR 3404, does not finally determine the action within the meaning of the Constitution. (Le Frois Foods Corp. v Aetna Ins. Co., 74 AD2d 730, mots to dismiss appeal granted 49 NY2d 1043; Til v O’Brien, 53 AD2d 1030, appeal dismissed 40 NY2d 902; Cohen and Karger, Powers of the New York Court of Appeals § 36 [b], at 143-144).


text:
    In the Matter of the Claim of Juan F. Rivera, Respondent. State Line Delivery Service, Inc., Respondent; Lillian Roberts, as Commissioner of Labor, Appellant.
    Submitted March 23, 1987;
    decided April 30, 1987
   Motion for reconsideration of this court’s February 19, 1987 order of dismissal granted. On reconsideration, order of dismissal vacated and motion for reargument denied. [See, 69 NY2d 679, 823.]


text:
    In the Matter of Brian A. Sheridan, an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 6, 1987;
    decided April 30, 1987
   Motion to dismiss appeal granted and appeal dismissed, with costs, upon the ground that no substantial constitutional question is directly involved. Respondent’s motion for a stay and for an order compelling delivery of a copy of the hearing transcript dismissed as academic.


text:
    In the Matter of Richard Vlachos et al., Appellants, v New York City Loft Board et al., Respondents.
    Decided April 30, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved (see, Rules of the Court of Appeals § 500.2 [c] [22 NYCRR 500.2 (c)]).


author: Titone, J.

text:
    In the Matter of Darvin M., Appellant, v Thomas L. Jacobs, as Commissioner of the Office of Probation, et al., Respondents.
    Argued March 23, 1987;
    decided May 5, 1987

      APPEARANCES OF COUNSEL

      Michele S. Maxian and Caesar D. Cirigliano for appellant.

      Peter L. Zimroth, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for Thomas L. Jacobs, as Commissioner of the Office of Probation and another, respondents.

      Elizabeth Holtzman, District Attorney (Barbara D. Underwood and Andrew J. Frisch of counsel), respondent pro se.

      Robert Abrams, Attorney-General (Abigail Peterson, O. Peter Sherwood and Douglas D. Aronin of counsel), for Francis X. Egitto, as Acting Justice of the Supreme Court, respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner brought a proceeding pursuant to CPLR article 78 to prohibit respondents from allowing New York City Department of Probation attorneys to participate as counsel in a probation revocation proceeding brought against him. The Appellate Division properly denied the requested relief. It cannot be said that respondent New York City Department of Probation is clearly acting "in excess of its authorized powers” (Matter of Jacobs v Altman, 69 NY2d 733, 734; see, Matter of State of New York v King, 36 NY2d 59, 62) in functioning as counsel in presenting probation violations at revocation hearings (see, Executive Law §§ 243, 255 [3]; CPL 410.70; 9 NYCRR 352.1 [e]; 352.3 [b] [2]; 352.4 [a] [1]; 355.3 [b] [1]). While a District Attorney may present evidence of alleged violations at revocation hearings, the Department of Probation is not usurping authority vested exclusively in the District Attorney under County Law § 927 by participating as counsel.

A violation of probation giving rise to revocation proceedings is not a "crime” or "offense” (see, Penal Law § 10.00 [1], [6]) which, pursuant to the County Law, must be prosecuted by a District Attorney (see, County Law §§ 700, 927). Nor is a revocation proceeding a "criminal action” (CPL 1.20 [16]) under the Criminal Procedure Law at which a "prosecutor” represents the People (CPL 1.20 [31]). A "criminal action” terminates upon sentencing (see, CPL 1.20 [16]; cf, Matter of Schumer v Holtzman, 60 NY2d 46). A probation revocation, in contrast, is a "criminal proceeding” brought after the completed "criminal action” (see, CPL 1.20 [18]). Its purpose is to determine if defendant’s subsequent acts violate the conditions of the original sentence not whether the acts constitute a crime.

Titone, J.

(dissenting). In holding that probation violation charges may be "presented” to the court by either the Probation Department or the District Attorney, or both, the majority has overlooked the important distinctions between the roles and responsibilities of those two law enforcement agencies. In the process, the majority has redefined the responsibilities of the District Attorney’s office in a manner that relieves it of the duty to represent the People’s interest in the important area of securing appropriate punishment for recidivist probationers. Since the conclusion the majority has reached is neither compelled by the relevant statutes nor supported by sound policy, we must, respectfully, dissent.

We note at the outset that what is at stake here is not the unquestionable right of the Probation Department to appear, by counsel or otherwise, at probation revocation proceedings, but rather the right of that agency to perform the function of prosecutor at such hearings. Although the majority refers to the Probation Department’s right to "participate as counsel” and some of the briefs submitted here and below suggest that the Department is merely seeking an enhancement of its traditional role as advisor to the court, it is clear from the Department’s own submissions that it is asserting, quite forthrightly, a right to manage the prosecution, present and cross-examine witnesses and carry out all of the other functions that would otherwise be performed by a prosecutor. Indeed, the procedural history leaves little doubt about the nature of the activity at issue in this appeal. Petitioner had initially moved in the trial court for an order disqualifying the Probation Department attorney from appearing in a prosecutorial role and, upon denial of that motion, brought the present prohibition proceeding seeking the same specific, narrow relief. Thus, the issue squarely before us is whether, in the absence of the District Attorney, the Probation Department has the power to prosecute probation violations. On the merits of that issue, we would hold in petitioner’s favor, both as a matter of statutory interpretation and as a matter of public policy.

It is clear that the Probation Department cannot enter the proceedings as prosecutor pursuant to an informal agreement if the duty to conduct those proceedings on the People’s behalf is among the duties imposed on the District Attorney by County Law § 700 (1) and § 927 (see, Matter of Schumer v Holtzman, 60 NY2d 46). However, the majority has concluded, based upon its construction of County Law § 700 (1) and § 927 in light of the definitional provisions of the Criminal Procedure and Penal Laws (CPL 1.20 [16], [18], [31]; Penal Law § 10.00 [1], [6]), that the District Attorney’s obligations under the former do not include appearing at probation revocation hearings because such hearings are not "criminal actions” (see, CPL 1.20 [16], [31]) and, further, because "[a] violation of probation giving rise to revocation proceedings is not a 'crime’ or 'offense’ ” within the meaning of Penal Law § 10.00 (1) and (6) (majority mem, at 959). Neither of these conclusions satisfactorily resolves the issue before us.

County Law § 700 (1) and § 927, which impose on the District Attorney "the duty * * * to conduct all prosecutions for crimes and offenses,” make no reference to "criminal actions” (CPL 1.20 [16]) or "criminal proceedings” (CPL 1.20 [18]). Consequently, the classification of probation revocation proceedings as one or the other does not advance analysis. Even more fundamentally, the majority’s conclusion that "[a] violation of probation giving rise to revocation proceedings is not a 'crime’ or 'offense’ ” within the meaning of County Law § 700 (1) and § 927 is unpersuasive. Probation revocation proceedings are conducted not to punish the offender for the charged violation, but rather to determine whether the offender should be punished more severely for the crime of which he was previously convicted. Although the probation violation may be the occasion for the proceeding, it is the prior conviction, and not the violation, that "gives rise to” the proceeding. A probation revocation proceeding is, in actuality, a continuation of the original felony prosecution that the District Attorney initiated, and the District Attorney’s obligation to act as the People’s representative in that phase of the prosecution is part of his or her statutory duty "to conduct all prosecutions for crimes and offenses” (County Law § 700 [1]; § 927).

In a somewhat different context, this court observed that "[a] prosecution for crime, within the meaning of [the identical predecessor provision of the County Law], includes accomplishing the imposition of the punishment. All the means provided by law to bring the conviction, sentence and the adjudged punishment to a criminal offender constitute the prosecution for the crime committed by him” (Matter of Lewis v Carter, 220 NY 8, 15 [emphasis supplied]). While the Lewis holding is not dispositive here, the court’s analysis supports the conclusion that the prosecution of a crime includes not only pursuing the matter through trial or plea and imposition of a revocable probationary sentence, but also continued representation of society’s interest in obtaining appropriate punishment and, more specifically, advocacy of incarceration if, in the District Attorney’s judgment, the defendant’s subsequent behavior demonstrates that probation was not an appropriate disposition.

This is not to suggest that because probation revocation matters fall within the District Attorney’s exclusive statutory duties, the District Attorney must litigate or even physically appear at every hearing. As is true for every aspect of a criminal prosecution, the District Attorney has broad discretion to determine the extent to and manner in which a particular criminal act should be prosecuted (see, e.g., People v Di Falco, 44 NY2d 482). Thus, the District Attorney, cognizant of his or her office’s limited resources, may determine that an individual probation violator does not pose a serious threat to society and that, as a consequence, vigorous prosecution of the violation is not warranted. In such a situation, the District Attorney may simply enter a formal written "appearance” but decline to participate or take an adversarial position. Alternatively, where the danger to society is deemed serious but the practical resources needed to prosecute are lacking, the District Attorney may, in accordance with law, deputize an attorney to prosecute the matter on the People’s behalf (see, Matter of Maisonet v Merola, 69 NY2d 965 [where Probation Department attorney was formally deputized for the purpose of prosecuting probation violation]). What is forbidden by our statutes is not the District Attorney’s exercise of discretion in favor of declining to physically appear or prosecute, but rather the informal delegation to another individual or agency of the exclusive prerogative to exercise such discretion (Matter of Schumer v Holtzman, supra). In other words, under County Law § 700 (1) and § 927, a District Attorney may or may not elect to prosecute, but no other arm of government may enter the proceeding or make that choice in his or her stead.

The reasons for placing the responsibility exclusively in the District Attorney’s hands are underscored by the very arguments that respondents have made in this case. Respondents have argued that since CPL 410.70, which prescribes the procedure for probation revocation hearings, does not specifically designate the District Attorney as the proper prosecuting party, the prosecution of a probation revocation charge may be conducted either by the District Attorney or the Department of Probation, whichever agency has the resources and an interest in pursuing the matter. Indeed, the District Attorney here has asserted a right to "rely on the efforts of the Probation Department’s attorneys” to "conserve her own resources,” and the Probation Department has stated, quite candidly, that it has established an independent unit of attorneys to litigate violations on the Department’s behalf "to fill th[e] gap” created by the "general practice of the district attorneys of the five counties of the City of New York not to appear to litigate such charges on behalf of the State.”

However, to allow whichever agency has the better resources or the most interest in the case to manage the prosecution is to open the door to precisely the type of inconsistent and conflicting policy determinations that undermine public confidence in the criminal justice system. Moreover, the suggestion implicit in the District Attorney’s argument here — that because of limited resources it is preferable in most cases to rely on the energy and commitment of another agency — seems an unacceptable derogation of the trust reposed in that office by the voters.

The District Attorney is a constitutional, elected officer (NY Const, art XII, § 13) charged by law with the responsibility to represent the People of the State of New York and to formulate prosecutorial policy. Formulating such policy includes not only determining which crimes and offenders should be prosecuted (see, People v Mackell, 47 AD2d 209, 217-218, affd 40 NY2d 59), but also assessing, in light of available resources, the manner in and extent to which probationers, who remain within the trial court’s continuing jurisdiction after sentence (see, CPL 410.50 [1]; Bellacosa, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 410.20, at 255), should be punished in order to protect the public. In contrast, in our system, the role of the Probation Department, an unelected administrative agency, is to supervise probationers (see, CPL 410.50 [2]; Executive Law § 255 [2]), enforce the conditions of probation imposed by the sentencing court (9 NYCRR 352.3 [b] [1]), inform the court when a violation has occurred (9 NYCRR 352.3 [b] [2]) and provide information and assistance to the court charged with the ultimate duty of determining whether incarceration is necessary. The agency’s role is, in short, to administer the probation system evenhandedly and fairly. It is simply not the business of that agency to represent the People of the State of New York or to seek justice on their behalf by entering the probation revocation process as a litigant.

Dissatisfied as it may be with the low priority the District Attorney admittedly places on pursuing probation violators, the Probation Department cannot take it upon itself to fill the vacuum it perceives. Under our State’s system, it is the District Attorney’s office which has been vested with the exclusive authority to represent the People, and its duties may not be assumed nor its choice of priorities second-guessed by an administrative agency charged with the entirely separate responsibility of supervising probationers and enforcing the orders of the court.

For all of these reasons, we cannot agree that the District Attorney’s office and the Probation Department are entitled to shuffle the responsibility to prosecute probation violators between themselves simply as a discretionary matter "concerning the allocation of the resources of their respective offices,” as the District Attorney here has argued. And, since the majority’s conclusion is not required by the applicable statutes, we dissent and vote to reverse the Appellate Division order and grant the petition for an order prohibiting the Probation Department from acting as prosecutor in petitioner’s probation revocation hearing.

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

Judgment affirmed, without costs, in a memorandum.

      .Section 927 of the County Law applies to District Attorneys within the five counties of New York City, while section 700 applies to the District Attorneys in the other counties. The provisions are identical with regard to the District Attorney’s duty to prosecute crimes.

      .Certainly, the majority does not intend to suggest that the District Attorney’s responsibilities terminate with the end of the "criminal action” as that term is defined in CPL 1.20 (16). That conclusion would lead to the unacceptable result that the District Attorney has no duty to represent the People in such postjudgment proceedings as appeals (but see, People v Pitsley, 37 AD2d 905; People v Wright, 22 AD2d 754, affd without opn 16 NY2d 736, cert denied 384 US 972) and motions to vacate brought under article 440 of the Criminal Procedure Law.

      .Indeed, the proceedings are conducted under the caption and indictment number assigned to the original criminal action, and the sentence imposed upon revocation must be one that is authorized for the original crime, not for the criminal acts underlying the violation charge (see, CPL 410.70 [5]; Penal Law § 60.01).

      .Even in People v Van Sickle (13 NY2d 61, 62-63), which involved the prosecution of a misdemeanor assault charge by a lay complaining witness, a majority of this court agreed that the County Law "does not necessarily mean that the District Attorney or his deputy must be physically present at every criminal hearing [; but] it [does mean] that * * * the District Attorney, as the elected representative of the people * * * must carry the responsibility [imposed by the statute] and must set up a system whereby he knows of all the criminal prosecutions in his county.”

      .A more plausible interpretation would be that the Legislature did not contemplate the presence of a prosecuting attorney at all at these "summary” proceedings (see, CPL 410.70 [3], [4]). If that were the case, however, there would be even further reason to reject the Probation Department’s present effort to appear in a prosecutorial role.

      .The District Attorney’s brief refers to a "dramatic decline of the effectiveness of probation as a meaningful alternative to incarceration”, due in large measure to staff reductions in the Probation Department and probation officers’ "unmanageable” caseloads. The assertion that "thousands of probationers went virtually unsupervised and an astounding number of them continued to commit crimes” seems more than a little ironic, in view of the present claim that the Probation Department, and not the District Attorney, is pragmatically better equipped to prosecute violations. If, as the District Attorney suggests, the lack of adequate probation supervision is a major cause of recidivism, one can only hope that the Probation Department has taken steps to ensure that its supervisory staff is sufficient to perform that primary function before dedicating its resources to hiring attorneys for the purpose of prosecuting violators.


text:
    In the Matter of Victor Maisonet, Appellant, v Mario Merola, as District Attorney of Bronx County, et al., Respondents.
    Argued March 23, 1987;
    decided May 5, 1987
    APPEARANCES OF COUNSEL

      Michele Maxian and Caesar D. Cirigliano for appellant.

      Mario Merola, District Attorney (Debra Ann Urbano and Billie Manning of counsel), respondent pro se, and for Frank Torres as Justice of the Supreme Court, respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner sought a writ of prohibition pursuant to CPLR article 78 preventing respondents from proceeding with further prosecution of charges of robbery and assault. He contends that such prosecution is barred by both common-law and constitutional collateral estoppel based on a finding in a prior probation revocation proceeding that the Department of Probation failed to prove by a preponderance of the evidence that petitioner had violated his probation by committing the acts underlying the robbery and assault charges. Although the petitioner in this case alleges that his prosecution should be barred by constitutional collateral estoppel, on the face of the petition it is clear that petitioner does not raise a "substantial” claim (cf, Matter of La Rocca v Lane, 37 NY2d 575, 581) of double jeopardy. Thus, the only "substantial” allegation raised in the petition is whether common-law collateral estoppel would bar his prosecution. We hold that under these circumstances, the Appellate Division properly dismissed the petition.

"[T]he extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court * * * acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction” (Matter of Rush v Mordue, 68 NY2d 348, 352). Use of the writ is restricted, especially in criminal cases, "to prevent incessant interruption of pending judicial proceedings by those seeking collateral review of adverse determinations made during the course of those proceedings” (Matter of Rush v Mordue, supra, at 353). To allow "premature appellate review of issues properly reviewable in the regular appellate process would serve only to frustrate the speedy resolution of disputes and to undermine the statutory and constitutional schemes of ordinary appellate review” (Matter of Rush v Mordue, supra). Because petitioner’s claim of collateral estoppel does not implicate the legality of the entire proceeding (cf., Matter of Rush v Mordue, supra) and it is the type of claimed error which may be properly reviewed during the regular appellate process (see, People v Fagan, 66 NY2d 815, 816), dismissal was proper.

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

Judgment affirmed, without costs, in a memorandum.


text:
    In the Matter of Nicholas Marzella, Respondent, v David Munroe et al., Constituting the Zoning Board of Appeals for the Village of Dobbs Ferry, Appellants.
    Decided May 5, 1987
    APPEARANCES OF COUNSEL

      John L. Murray for appellants.

      Robert J. Ponzini for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified.

The Zoning Board of Appeals of the Village of Dobbs Ferry (ZBA) appeals from an order of the Appellate Division which affirmed Special Term’s judgment annulling the ZBA’s decision to deny petitioner’s application for a special building permit to restore a building on his property. Petitioner owns a parcel of land located in the Village of Dobbs Ferry which has two structures located on it. In the front of the lot is a three-family dwelling and in the rear is a one-family house. The prior owner of the land lived in the one-family house and rented out the other building. A local zoning ordinance was passed sometime prior to 1969 which made such use nonconforming since it only permitted one two-family structure on the lot in question. Both the one-family and the three-family dwellings continued to be occupied as existing nonconforming uses until 1969. Between 1969 and 1984 the rear structure remained vacant while the front dwelling continued to be used. In 1984, petitioner purchased the property and applied for a permit to renovate the rear building. Petitioner’s application was denied by the village building inspector and the decision was affirmed by the ZBA. The ZBA held that the use of the property for four families had been abandoned and that under the Dobbs Ferry Code an abandoned nonconforming use cannot be resumed (see, Village of Dobbs Ferry Code § 300-81B).

Abandonment does not occur unless there has been a complete cessation of the nonconforming use (see, Matter of Daggett v Putnam, 40 AD2d 576; Baml Realty v State of New York, 35 AD2d 857; City of Binghamton v Gartell, 275 App Div 457, 460; see also, Barron v Getnick, 107 AD2d 1017, 1018). Here, there was no evidence before the ZBA that the entire nonconforming use had been abandoned. Thus, the petition was properly granted and the determination of the ZBA annulled.

Supreme Court’s order as affirmed by the Appellate Division remitted the matter to the ZBA to determine whether the petitioner’s application sought to improperly extend or enlarge the structure. However, inasmuch as petitioner’s application before the ZBA only sought to restore the rear structure to its former condition, and in light of the ZBA’s request that the matter not be remitted, Supreme Court’s order should be modified by deleting the provision ordering such remittal.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified in accordance with the memorandum herein and, as so modified, affirmed, with costs to petitioner.


text:
    The People of the State of New York, Respondent, v Kevin Hicks, Appellant.
    Decided May 5, 1987
    APPEARANCES OF COUNSEL

      Stanley Levine for appellant.

      Mario Merola, District Attorney (Albert Ceva of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On appeal defendant argues that the trial court erroneously denied his motion to suppress a statement he made to the police. The findings of the suppression court are that defendant and his brother voluntarily came to the police station; defendant was "gratuitously” given Miranda warnings; defendant asked the police "should I speak to a lawyer”; the police responded by asking him if he thought he was in trouble; defendant replied "no” and then gave a statement; and defendant was advised that he was not under arrest but was free to leave. The court expressly determined that defendant was not in custody since a reasonable man would not consider his freedom impaired in any significant way. The foregoing findings are undisturbed.

Defendant’s inquiry did not unequivocally inform the police of his intention to retain counsel. Under these circumstances, his right to counsel did not attach (see, People v Rowell, 59 NY2d 727, 730; People v Johnson, 55 NY2d 931; cf., People v Esposito, 68 NY2d 961, 962).

We have considered defendant’s remaining contentions and find them either unpreserved, unreviewable, or without merit.

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

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


text:
    In the Matter of Steve Miller, Appellant, v New York State Department of Correctional Services et al., Respondents.
    Decided May 5, 1987

      APPEARANCES OF COUNSEL

      Michael J. Howley for appellant.

      Robert Abrams, Attorney-General (William J. Kogan of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (126 AD2d 831).

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


text:
    Carol A. Albano, Individually and as Administratrix of the Estate of John F. Albano, Deceased, Appellant, v Long Island Railroad, Respondent.
    Submitted March 16, 1987;
    decided May 5, 1987
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of John Bien et al., Appellants, v City of Amsterdam et al., Respondents.
    Submitted March 16, 1987;
    decided May 5, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Kawaun Sharleke W. Louise Wise Services, Respondent; Diana D., Appellant.
    Submitted February 16, 1987;
    decided May 5, 1987
   Motion, insofar as it seeks leave to appeal from the November 19, 1986 order of the Appellate Division and insofar as it seeks leave to appeal from so much of the June 30, 1986 order of the Appellate Division as dismissed the purported appeal from the February 2, 1984 oral order of Family Court, dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.

Motion for leave to appeal otherwise denied.

Motion for permission to proceed as a poor person and for assignment of counsel dismissed as academic.


text:
    In the Matter of Daniel G. Cirella, Respondent, v Daniel W. Joy, as Commissioner of the Office of Rent and Housing Maintenance, Rent Control Division, Respondent, and Marjorie Hoog et al., Appellants.
    Decided May 7, 1987

      APPEARANCES OF COUNSEL

      Bernard Mitchell Alter for appellants.

      Alan W. Ginsberg and Dennis Hasher for Daniel W. Joy, as Commissioner of New York State Division of Housing and Community Renewal, respondent.

      Harris L. Present for Daniel G. Cirella, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to the respondent Commissioner.

The trial court’s reliance on Beer v Walters (118 Misc 2d 630) was misplaced, because Beer is not applicable to either tenants in common or rent-controlled situations.

The matter must be remitted, however, because the Laws of 1984 (ch 234) added the requirement that an owner seeking to recover an apartment for personal use prove an immediate and compelling necessity for it and he has not yet done so. Chapter 234 became effective on June 19, 1984, and was expressly made applicable to any tenant in possession at or after the time it took effect, "regardless of whether the landlord’s application for an order [to permit recovery of an apartment] took place before this act shall have taken effect” (L 1984, ch 234, § 4). Inasmuch as the Commissioner’s determination that the landlord was entitled to possession preceded enactment of the statute, the landlord has not established compliance with its provisions. Accordingly, the matter should be remitted to the respondent Commissioner in order to determine the landlord’s present entitlement to a certificate of eviction.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to remand to respondent Commissioner for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Appellant, v Guillermo Lopez, Respondent.
    Decided May 7, 1987

      APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Annette Cohen of counsel), for appellant.

      David C. Yantada and Philip L. Weinstein 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 memorandum of the Appellate Division (123 AD2d 399).

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


text:
    The People of the State of New York, Appellant, v Kenneth Deegan, Respondent.
    Argued March 19, 1987;
    decided May 7, 1987

      APPEARANCES OF COUNSEL

      Ronald Goldstock, Deputy Attorney-General (Arthur G. Weinstein and Martin Marcus of counsel), for appellant.

      Vincent A. Malito for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the indictment reinstated and the matter remitted to the trial court for further proceedings.

The limited issue before us on this pleading motion is the facial sufficiency of the indictment. Even if the alleged coconspirator’s declarations were excluded, for present purposes the remaining evidence before the Grand Jury is sufficient to support an inference that defendant, an elected official, changed his vote on a proposed rate increase for waste removal services in exchange for a promise of future campaign contributions from members of the affected industry. The lower courts, which both held the evidence insufficient, erred in referring to a need to exclude "to a moral certainty” every hypothesis but guilt where the proof is, as here, wholly circumstantial. In invoking that standard, the trial court relied on People v Eckert (2 NY2d 126, 129), which was recently expressly overruled (People v Jennings, 69 NY2d 103, 115, n 2).

As we held in People v Jennings (supra, at 114-116), the proper standard for reviewing the sufficiency of the evidence to support an indictment is "legal sufficiency,” which is defined in CPL 70.10 (1) as "competent evidence which, if accepted as true, would establish every element of an offense charged” (see, CPL 190.65 [1]). In other words, "[i]n the context of the Grand Jury procedure, legally sufficient means prima facie, not proof beyond a reasonable doubt” (People v Mayo, 36 NY2d 1002, 1004).

As applied to a case involving wholly circumstantial evidence, this standard limits the reviewing court’s inquiry to determining whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes. That other, innocent inferences could possibly be drawn from the facts is irrelevant on this pleading stage inquiry, as long as the Grand Jury could rationally have drawn the guilty inference; the standard that every hypothesis but guilt be excluded to a "moral certainty” is to be applied only by the trier of fact. Similarly, on a motion to dismiss an indictment under CPL 210.20 (1) (b), the court may not examine the adequacy of the proof or determine whether there was "reasonable cause to believe” that the charged crimes were committed by the accused (see, CPL 190.65 [1] [b]), since resolution of those questions "is exclusively the province of the Grand Jury” (People v Jennings, supra, at 115).

In light of this conclusion, we should not make an anticipatory ruling as to the admissibility of the other, disputed, evidence. Finally, inasmuch as the inquiry on a motion to dismiss an indictment on grounds of insufficient evidence is a purely legal one (People v Jennings, supra, at 114-115), we reject defendant’s contention that the appeal should be remitted to the Appellate Division for a further review of the facts. The proof before the Grand Jury was legally sufficient within the meaning of CPL 70.10 (1) and 190.65 (1). Consequently, there is nothing remaining for the Appellate Division to review and the matter should be remitted to the trial court for further proceedings on the indictment.

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

Order reversed, indictment reinstated and case remitted to Suffolk County Court for further proceedings on the indictment in a memorandum.


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    Frederic E. Weinberg, Individually and on Behalf of All Others Similarly Situated, Respondent, v Hertz Corporation, Appellant.
    Decided May 7, 1987

      APPEARANCES OF COUNSEL

      Peter M. Fishbein, Myron Kirschbaum, Donald Levinson and James F. Clarity for appellant.

      Sheldon V. Burman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

In a prior motion to dismiss the causes of action based upon General Business Law § 349 (h), defendant argued that a class action was not maintainable, even for actual damages, because under CPLR 901 (b) the representative plaintiff would be required to waive the class members’ right to seek a penalty or the statutorily prescribed minimum damages (General Business Law § 349 [h]; see, e.g., Klapak v Pappas, 79 AD2d 602). Although the trial court at that time denied both defendant’s motion and plaintiff’s cross motion for an order certifying a class action, it expressly rejected defendant’s argument, holding that plaintiff was entitled to seek class relief if certain conditions not relevant here were satisfied. On defendant’s appeal, the Appellate Division affirmed the trial court’s order, without opinion.

Plaintiff’s renewed motion for an order allowing the class action was subsequently denied by the trial court on the ground that the cost of identifying and notifying the class members would be unduly burdensome to defendant. On plaintiff’s appeal, the Appellate Division disagreed with this conclusion and reversed, permitting the action to be prosecuted in the form of a class action. Thereafter, the Appellate Division granted defendant leave to appeal to this court, certifying the following question: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?”

Defendant’s contention that, as a matter of law, a class action for actual damages under General Business Law § 349 may not be maintained was determined against it by the prior nonfinal Appellate Division order. The correctness of that prior order is not reviewable in this appeal from a second nonfinal Appellate Division order, even though the former may have necessarily affected the latter (see, CPLR 5501 [a] [1]). Thus, the only question before us is whether, assuming a class action is available, the Appellate Division abused its discretion in permitting this action to proceed in that form (see, Herrick v Second Cuthouse, 64 NY2d 692, 693; Brady v Ottaway Newspapers, 63 NY2d 1031, 1032-1033).

We conclude that there was no abuse of discretion here. The Appellate Division weighed all of the relevant factors (CPLR 901, 902) and, in contrast to the trial court, found that prosecution of the claims in class action form was "superior to other available methods for the fair and efficient adjudication of the controversy” (CPLR 901 [a] [5]). We see no reason to disturb that inherently discretionary determination.

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

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


text:
    Yvette Boronow, Appellant, v Eugene Boronow, Respondent.
    Submitted April 6, 1987;
    decided May 7, 1987
   Motion to vacate December 15, 1986 order of dismissal granted. [See, 69 NY2d 707.]


text:
    In the Matter of Donald F. Driver, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 13, 1987;
    decided May 7, 1987
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2) (Matter of F. J. Zeronda, Inc. v Town Bd., 37 NY2d 198). Motion for a stay dismissed as academic.


text:
    In the Matter of Daniel M. Flynn, Appellant, v Arthur D. Spatt, as Justice of the Supreme Court of the State of New York, Respondent.
    Decided May 7, 1987
   Appeal, insofar as it may be construed as being taken from the Appellate Division order entered September 22, 1986, dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Grand Jury Subpoenas for Local 17, 135, 257 AND 608 of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO.
    Submitted April 27, 1987;
    decided May 7, 1987
   Appeal taken as of right dismissed, without costs, on the court’s own motion, and motion for leave to appeal dismissed, each upon the ground that the order of the Appellate Division does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of the Claim of Jon Lanaro, Appellant. Pastoral Services of New York, Respondent; Lillian Roberts, as Commissioner of Labor, Respondent.
    Submitted April 13, 1987;
    decided May 7, 1987
   Motion to vacate March 13, 1987 order dismissing the appeal for failure to prosecute granted. [See, 69 NY2d 875.]

On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Charlotte K. Scheer, Respondent, v Daniel H. Koubek, Appellant.
    Submitted March 30, 1987;
    decided May 7, 1987
   Motion to dismiss appeal denied.


text:
    In the Matter of Robert G. Smith, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted March 23, 1987;
    decided May 7, 1987
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal, etc., denied.


text:
    The People of the State of New York, Respondent, v Joseph Vataj, Appellant.
    Argued April 23, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      Mark F. Pomerantz, David T. Grudberg and Warren L. Feldman for appellant.

      Carl A. Vergari, District Attorney (Bruce Edward Kelly, Maryanne Luciano and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The trial court erred in refusing to submit to the jury, for purposes of the corroboration statute (CPL 60.22 [2] [b]), the question whether a prosecution witness was an accomplice to the charged crimes.

Defendant was indicted for the crimes of murder in the second degree and criminal possession of a weapon in the second degree. At trial, the People’s principal witness, Gerald Mullahey, testified that defendant ran a drug operation; that two months prior to the death of the victim Melendez, defendant was approached on two occasions by strangers who wished to purchase narcotics; and that each prospective customer identified Melendez as the person who had informed him that defendant sold drugs. Mullahey also testified that defendant told him that Melendez was "talking to a cop” about drug sales by one of defendant’s friends. Moreover, on two occasions, according to Mullahey, defendant complained that Melendez had a "loose mouth” and was "putting our business out in the street.” A week before the murder, Mullahey said, defendant referred to Melendez and stated that he was going to "have to hurt the kid.” Finally, Mullahey testified that, shortly before the murder and at defendant’s request, he placed two guns — one of which belonged to defendant — in defendant’s sister’s car which was later used to transport Melendez to the murder site. A ballistics test matched a spent bullet recovered from the scene of the crime with a bullet from defendant’s gun.

A witness may be an accomplice for purposes of the corroboration statute if, according to the evidence, he "may reasonably be considered to have participated in * * * [a]n offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22 [2] [b]). Here, different inferences reasonably may be drawn from the proof adduced at trial as to Mullahey’s complicity in preparing for the murder of Melendez (see, People v Dorler, 53 NY2d 831; People v Basch, 36 NY2d 154, 157), and the accomplice role should have been given to the jury for its consideration.

Defendant’s remaining contentions are unpreserved.

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

Order reversed, etc.


text:
    Seaview Association of Fire Island, N. Y., Inc., Respondent, v Howard Williams et al., Defendants, and Renee Roth et al., Appellants.
    Argued April 23, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      Saul Friedberg for appellants.

      Thomas H. Sear and Maria L. Ciampi for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff is an association of homeowners formed more than 30 years ago in Seaview, an unincorporated Fire Island community of some 330 homes largely populated for summer recreation. Plaintiff owns and maintains the streets, walkways and beaches of Seaview. Additionally, it employs a community manager; it provides a rent-free home for a resident doctor in the summer; and it maintains shelters for lifeguards and for the Suffolk County police, as well as snowfences and antierosion devices, a nature area, and recreational facilities such as a ballfield and tennis courts. Seaview property owners are each assessed a share of plaintiff’s annual costs. The assessment covers all services and facilities except the water company and the tennis courts. Defendants are a husband, wife and son who, by deeds, enjoy easements entitling them to the use of ocean beaches and walkways; two of the three defendants are in the real estate business, and are among the only five year-round residents of Seaview. Prior to purchasing their first house in Seaview in 1963, they lived in an adjoining community. They now own seven houses in Seaview, but refuse to pay any of the assessments, contending that as nonmembers of plaintiff association and nonusers of the recreational facilities maintained by plaintiff, they cannot be charged. Plaintiff brought the present action to recover assessments for the years 1976 through 1984. After a five-day bench trial, the court awarded judgment for plaintiff, concluding that there was an implied contract to pay the assessments arising out of defendants’ purchase of property in Seaview with knowledge of the nature of the community and the conditions imposed upon ownership there. The Appellate Division affirmed for the reasons stated by the Trial Judge, one Justice dissenting, and granted leave to appeal to this court. We now affirm.

Where there is knowledge that a private community homeowners’ association provides facilities and services for the benefit of community residents, the purchase of property there may manifest acceptance of conditions of ownership, among them payment for the facilities and services offered. The resulting implied-in-fact contract includes the obligation to pay a proportionate share of the full cost of maintaining those facilities and services, not merely the reasonable value of those actually used by any particular resident (see, Sea Gate Assn. v Fleischer, 211 NYS2d 767, 778, 781). The issues of notice given by plaintiff and actual or constructive knowledge of defendants, gained from familiarity with the area, from signs or from other sources, are largely factual, and were the focus of the trial. There is ample evidence in the record to support the findings of the trial court, affirmed by the Appellate Division, that defendants knew the nature of the community and by their purchase — indeed, successive purchases— impliedly accepted the conditions accompanying ownership of property in Seaview. The issue is thus beyond our review (see, Humphrey v State of New York, 60 NY2d 742).

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

Order affirmed, with costs, in a memorandum.


text:
    Alex E. Penman, Respondent, v Pan American World Airways, Inc., Appellant.
    Argued April 23, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      James S. Frank and Penny Ann Lieberman for appellant.

      Edgar Pauk and Jonathan A. Weiss for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative. As we stated in Matter of Pan Am. World Airways v New York State Human Rights Appeal Bd. (61 NY2d 542), the Statute of Limitations is tolled during the pendency of a complaint with the Division of Human Rights pursuant to CPLR 204 (a) and thus the action is not time barred.

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


text:
    305 East 24th Owners Corp. et al., Appellants, v Parman Co. et al., Respondents. (And a Counterclaim Action.)
    Argued April 28, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      Yvette Harmon and Ellen A. Schwartz for appellants.

      Robert A. Wolf, Maxine Fass and Craig Balsam for respondents.
   OPINION OF THE COURT

Order, insofar as appealed from, reversed, with costs, for the reasons stated in so much of the dissenting in part opinion (122 AD2d 684, 691-703) of Presiding Justice Francis T. Murphy, Jr., at the Appellate Division as pertains to plaintiffs’ motion for summary judgment on the complaint, and that portion of the motion granted. The certified question answered in the negative.

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


text:
    Credit Exchange, Inc., Respondent, v 461 Eighth Avenue Associates, Appellant.
    Argued April 28, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      Glenn Backer for appellant.

      Herbert L. Finkelstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question answered in the affirmative.

We agree with the Appellate Division that triable issues of fact exist as to whether, and to what extent, the increased assessment for the 1985-1986 tax year was attributable to improvements made for the exclusive benefit of the landlord. We view the lease provision at issue in light of the essential purpose of a tax escalation clause in commercial landlord-tenant leases — to pass on to the tenant the proportionate share of increases in real estate taxes (see, 33 NY Jur, Landlord-Tenant, § 187; 1 Friedman, Leases § 5.401 [2d ed]). It is not the aim of such a clause, ordinarily, to impose upon the tenant responsibility for increases in real estate taxes resulting from improvements on the property redounding solely to the benefit of the landlord, such as the addition of two floors as was the case here. (See, People ex rel. Hudson Riv. Day Line v Franck, 257 NY 69; People ex rel. International Nav. Co. v Barker, 153 NY 98; Marano v Corbisiero, 27 Misc 2d 830; see generally, 33 NY Jur, Landlord-Tenant, § 192).

The Appellate Division erred, however, in concluding that plaintiffs were not liable for their proportionate share of the tax increase beyond the expiration date of their lease. Real estate taxes for the tax year 1985-1986 were fixed and imposed as of July 1, 1985, during the term of the lease. Thus, the tenant’s obligation to pay its proportionate share of the increase accrued on that date. The fact that the lease provided for payment of this obligation in installments, some of which fell due beyond the lease term, does not operate to diminish tenant’s obligation (Wall v Hess, 232 NY 472; see, 1 Rasch, New Landlord & Tenant — Summary Proceedings § 430 [2d ed]).

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

Order, insofar as appealed from, affirmed, etc.


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    The People of the State of New York, Appellant, v Ronald J. Evans, Respondent.
    Argued April 29, 1987;
    decided May 28, 1987

      APPEARANCES OF COUNSEL

      Stephen F. Lungen, District Attorney (Anthony M, Giordano of counsel), for appellant.

      Joseph Jaffee and Kenneth C. Klein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court, Sullivan County, should be reversed and the matter remitted to that court to exercise its discretion in determining whether to dismiss the People’s appeal as untimely (CPL 460.70 [2] [c]; Uniform Rules for Trial Cts § 200.33 [c] [22 NYCRR]).

Defendant, Ronald Evans, was charged on September 30, 1984, with driving while intoxicated in violation of section 1192 (2) and (3) of the Vehicle and Traffic Law. On November 19, 1985, on defendant’s motion, the Liberty Town Justice Court ordered suppression of breathalyzer test evidence as having been obtained in violation of defendant’s right to counsel. The People filed a timely notice of appeal from that order with County Court, Sullivan County, on December 11, 1985. On December 19, 1985, before the time for perfecting the appeal had run, defendant moved to strike the notice of appeal. The People opposed defendant’s motion to strike, but they failed to perfect their appeal within the time period prescribed in section 200.33 (b) of the Uniform Rules for Trial Courts. Following denial of this motion, and in opposition to a second motion to dismiss the appeal as untimely, the People sought to excuse their failure to timely comply with the filing requirement on the ground that the time within which to perfect the appeal had been tolled pending resolution by County Court of defendant’s initial motion to strike. Concluding that it had no discretion to entertain an appeal not timely perfected, County Court granted defendant’s motion to dismiss.

CPL 460.70 (2) (c) clearly provides that if an appellant fails to perfect the appeal within the time prescribed, "the court may, either upon motion of the respondent or upon its own motion, dismiss the appeal” (see also, Uniform Rules for Trial Cts § 200.33 [c] [22 NYCRR]). County Court erred in concluding that a dismissal for failure to timely perfect was mandatory. Accordingly, the matter must be remitted for that court to exercise its discretion in determining whether, under the circumstances presented, dismissal of the People’s appeal is warranted.

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

Order reversed and case remitted to Sullivan County Court for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of The Associated Press et al., Respondents, v Howard E. Bell, Individually and as a Justice of the Supreme Court, et al., Appellants.
    Submitted May 26, 1987;
    decided May 28, 1987
   Motion by appellant Chambers for a stay denied as unnecessary in view of the appeal taken by appellant Bell (CPLR 5519 [a] [1]). Case set down for argument on June 1, 1987.


text:
    The People of the State of New York, Respondent, v Johanes Raitelu et al., Respondents. Valer Fersedy, Appellant.
    Decided May 28, 1987
   Treating petitioner’s papers as a notice of appeal, on the court’s own motion, appeal taken as of right dismissed, without costs, and treating petitioner’s papers as a motion for leave to appeal, motion dismissed, upon the ground that this court does not have jurisdiction to entertain an appeal or motion for leave to appeal from an order of the Appellate Term of Supreme Court (NY Const, art VI, § 3 [b]; CPLR 5601, 5602).


text:
    John H. Babigian, Appellant, v Sol Wachtler et al., Respondents, and Robert Abrams, Intervenor-Respondent.
    Argued April 30, 1987;
    decided June 2, 1987

      APPEARANCES OF COUNSEL

      John H. Babigian, appellant pro se.

      Barbara Zahler-Gringer and Michael Colodner for respondents.

      Robert Abrams, Attorney-General (Peter A. Durfree and O. Peter Sherwood of counsel), intervenor-respondent pro se.

   OPINION OF THE COURT

Memorandum.

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

Plaintiff, an unsuccessful candidate for Housing Judge, challenges the constitutionality of CCA 110 (f), contending that— rather than Hearing Officers or Referees — Housing Judges are in fact full-fledged Judges; that the power to appoint Judges is an executive function; and that the statutory provision for appointment by the Chief Administrative Judge therefore violates the doctrine of separation of powers. Both lower courts granted defendants summary judgment, declaring the statute constitutional and dismissing the complaint. The Appellate Division sua sponte granted plaintiff leave to appeal to this court (CPLR 5713).

In this court, neither appellants nor the Attorney-General, as intervenor, challenge plaintiffs standing. Assuming for present purposes that he has standing to maintain this action, on the record before us we agree with the courts below that plaintiff has not discharged his heavy burden of demonstrating the statute’s unconstitutionality (see, e.g., Eaton v New York City Conciliation & Appeals Bd., 56 NY2d 340, 346).

Plaintiff does not challenge the conclusion reached by the court in Glass v Thompson (51 AD2d 69) that housing court officers were "in essence referees * * * nonjudicial officers of the court, appointed to assist it in the performance of its judicial functions” (id., at 74). In fact, plaintiff asserts that the conclusion reached in Glass (supra) is "obviously correct.” Plaintiff’s argument that these officers are in fact Judges centers on the post-1976 amendments to the statute. However, no material enlargement of authority was made by the post-Glass amendments. Thus, plaintiff’s claim, as framed by his own argument, lacks merit.

Finally, we note that the Appellate Division affirmed Supreme Court’s order, without opinion, and sua sponte granted leave to appeal to this court. The Appellate Division’s certification in the absence of any request by the parties bespeaks its conclusion, after having read the briefs, heard the parties and fully considered the appeal, that issues of law of particular significance were presented that merited the attention of this court, as well as the commitment of further time and expense by the litigants. While this court, and the entire appellate function, are better served when the regular review process is followed, including some articulation of the reasoning the intermediate appellate court chose to adopt when it considered the case and reached its result (see, Rufino v United States, 69 NY2d 310), such an articulation is all the more important in those few cases singled out by the Appellate Division for sua sponte certification.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Danny Robinson, Also Known as Brunce Smith, Respondent.
    Decided June 2, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]). The reversal, while termed "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    Elaina Bissell, Appellant, v Pyramid Companies, Respondent. (And a Proceeding.)
    Submitted April 6, 1987;
    decided June 2, 1987
   Motion, insofar as it seeks leave to appeal from so much of the order of the Appellate Division as dismissed the appeal from the Supreme Court order denying plaintiff’s motion for a preliminary injunction, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied.


text:
    John Bozzomo, Jr., Appellant, v City of New York et al., Respondents.
    Submitted April 6, 1987;
    decided June 2, 1987
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    In the Matter of Rita A. Byrne, Respondent, v Office of Court Administration of the State of New York et al., Appellants.
    Submitted April 6, 13, 1987;
    decided June 2, 1987
   Motion by Office of Court Administration of the State of New York and individual appellants for leave to appeal denied.

Motion by Classification Review Board for leave to appeal dismissed as untimely.

Chief Judge Wachtler and Judge Bellacosa taking no part.


text:
    Ella Freidus, Respondent, v Dorothy Eisenberg, as Trustee in Bankruptcy of Todem Homes, Inc., Appellant.
    Submitted April 27, 1987;
    decided June 2, 1987
   Motion to dismiss appeal denied.


text:
    Michael Holtslander, an Infant, by Judith Holtslander, His Parent, et al., Appellants, v C. W. Whalen and Sons et al., Respondents. (Action No. 1.) (And Another Action.)
    Submitted March 30, 1987;
    decided June 2, 1987
   Motion for leave to appeal denied as unnecessary. An appeal taken as of right under CPLR 5601 (a) brings up for review all aspects of the order appealed from.


text:
    Raphael Killeen et al., Appellants, v State of New York, Respondent.
    Decided June 2, 1987
   Appeal pursuant to CPLR 5601 (d) from the January 14, 1987 judgment of the Court of Claims dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the final order of the Appellate Division, dated October 27, 1986, was the final appealable paper from which no appeal was properly taken (see, CPLR 5515 [1]; 5611).


text:
    Garrett Powles, Appellant, v Wean United Corporation, Respondent, et al., Defendant.
    Submitted April 6, 1987;
    decided June 2, 1987
   Motion to dismiss appeal granted and appeal dismissed, with costs and $20 costs of motion, upon the ground that no appeal lies as of right from the Appellate Division order of unanimous affirmance absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Dimitrios Ressis, Appellant, v H. Robert Herman et al., Respondents.
    Submitted March 30, 1987;
    decided June 2, 1987
   Motion for leave to appeal dismissed for untimeliness upon the ground that the prior motion for leave to appeal made at the Appellate Division was not timely made (CPLR 5513 [b]; Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429; § 104, at 436).


text:
    Gertrude Weinstein, as Executrix of Selma S. Hohenstein, Deceased, et al., Respondents, v Walter P. Hohenstein, Appellant, et al., Defendants.
    Decided June 4, 1987

      APPEARANCES OF COUNSEL

      James P. Dollard, Jr., for appellant.

      Fred D. Weinstein and Max Block, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

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

By their separation agreement, defendant (the husband) and plaintiffs decedent (the wife) provided that during her lifetime the wife would have sole use and occupancy of the marital home — a rent-controlled apartment for which there has been no lease for over 10 years — but that on her death the husband would succeed to that right. While the wife was in occupancy, a plan for cooperative conversion was accepted for filing by the Attorney-General. During the exclusive period for existing tenants to purchase the shares allocated to their apartments, the husband and the wife each accepted the sponsor’s offer, but both were rejected. In this litigation commenced by the wife, Special Term granted summary judgment upholding the husband’s right to buy the apartment based on the separation agreement, but the Appellate Division reversed and granted summary judgment to the wife. During pendency of the appeal, the wife died, and her executrix was substituted for her in the action. We now affirm.

Inasmuch as the husband had expressly relinquished his right to possession of the rent-controlled apartment as of the date the cooperative conversion plan was accepted for filing by the Attorney-General (General Business Law § 352-eeee [2] [d] [ix]), he cannot be considered a tenant-in-occupancy entitled to purchase the shares allocated to the apartment during the exclusive period (see, De Kovessey v Coronet Props. Co., 69 NY2d 448; Cooper v 140 E. Assocs., 27 NY2d 115). Our decision in Burns v 500 E. 83rd St. Corp. (59 NY2d 784) is not to the contrary. In that case, the rent-stabilized apartment in question was governed by a lease in the name of the out-of-possession husband. In the rent-control context presented here, the tenancy existed not by virtue of any lease (see, Trachter v Parker 86th Assocs., 115 Misc 2d 271, 275), the last lease having expired years ago, but by operation of the rent-control statute and applicable regulations, which contain a broad definition of the term "tenant” (Administrative Code of City of New York § 26-403 [m]; Rent and Eviction Regulations of the Division of Housing and Community Renewal, 9 NYCRR 2200.2 [o]; see also, Cooper v 140 E. Assocs., supra, at 117-118; cf., Matter of Herzog v Joy, 74 AD2d 372, affd 53 NY2d 821). Having determined that the wife’s tender of an executed subscription for the shares allocated to the apartment should have been accepted by the sponsor, we further hold that her death after the date of the tender does not prevent her estate from maintaining this action (see, EPTL 11-3.1; see also, Grant v Blum, 76 AD2d 823). By contrast with our recent decision in De Kovessey (supra), here the tenant-in-occupancy during her lifetime accepted the offer to purchase the shares.

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

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


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    Harold Bernstein, Respondent, v City of New York, Appellant, et al., Defendant.
    Decided June 4, 1987
    APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Margaret G. King of counsel), for appellant.

      Fred R. Profeta, Jr., and Alan B. Katz for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff slipped and fell while crossing an intersection near a Bronx bus stop, and fractured his kneecap. At the trial of his negligence action, plaintiff testified that after attempting to stand up, he slipped again and fell in the sam,e spot. He then swept away "a dusting of powdered snow” on the street and discovered a sheet of ice two-feet long, six- to seven-inches wide and at most a half-inch thick. A field foreman for the New York City Department of Sanitation testified, by deposition, that the Department had done snow removal and salt-spreading on January 13, 14 and 15 in the area where plaintiff fell. Meteorological data introduced by defendant indicated that on January 13-15, 1982, 8 to 10 inches of snow had fallen at two weather stations in New York City — Central Park and La Guardia Airport — and there were ice pellets and a glaze. Prior to that, there had been no snowfall since January 9, when .4 inches fell in Central Park and .2 inches at La Guardia Airport; by the following morning, however, only trace amounts of snow or ice remained on the ground in Central Park, and none at La Guardia. No measurable precipitation fell between January 9 and January 13; throughout that time, the temperature remained below freezing. Plaintiff introduced no evidence of any variation in weather conditions at the scene of the accident.

At the conclusion of the trial, the court charged the jury— without objection by plaintiff — that it could find defendant liable only if it concluded that plaintiff slipped as a result of a hazardous condition that had formed prior to the January 13 snowfall. Thus, by returning a verdict for plaintiff, the jury necessarily found that the sheet of ice on which he had fallen was formed as the result of the January 9 precipitation.

A jury verdict must be based on more than mere speculation or guesswork (Feblot v New York Times Co., 32 NY2d 486, 494; Digelormo v Weil, 260 NY 192, 199). "Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury” (Ingersoll v Liberty Bank, 278 NY 1, 7; see, Feblot v New York Times Co., 32 NY2d, at 495, supra, citing Digelormo v Weil, 260 NY 192, 199-200, supra; see also, Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 745). If "there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible” (Digelormo v Weil, 260 NY, at 200, supra). Thus, to support the jury’s verdict, the evidence— viewed in the light most favorable to plaintiff — must support plaintiff’s view of the cause of the injury over the opposing view (see, Ingersoll v Liberty Bank, 278 NY, at 7, supra). Plaintiff need not refute remote possibilities; it is enough for plaintiff to show facts and conditions from which the negligence of defendant may be reasonably inferred (see, Negri v Stop & Shop, 65 NY2d 625, 626; Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205; Dillon v Rockaway Beach Hosp., 284 NY 176, 179).

We agree with the City’s contention that there is no evidence in this record from which the jury could rationally have concluded that the ice was caused by the January 9 precipitation rather than the snowfall beginning January 13. To conclude that an ice patch — two feet by six inches by a half inch —resulted from the January 9 snowfall is wholly speculative (see, Hamill v City of New York, 52 NY2d 1045, affg 78 AD2d 792). The evidence indicated nothing more than the possible existence of an unmeasurable trace of snow or ice prior to the January 13 snowstorm. Plaintiff produced no evidence that an ice patch of such dimension could have been formed from such precipitation and could have lasted until January 15. Quite simply, plaintiff has failed to show facts and conditions from which the negligence of defendant could have been reasonably inferred (see, Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205, supra).

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

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


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    Samuel Finkelstein et al., Appellants, v Gloria S. Kins, Respondent.
    Decided June 4, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the Appellate Division, by its February 10, 1987 order, has not validly disposed of the appeal to that court. Justice Fein, as one of the three-Justice majority, could not participate after December 31, 1986, when his term of office expired (NY Const, art VI, § 25 [b]). The appeal, therefore, remains pending at the Appellate Division (NY Const, art VI, § 4 [b]).


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    In the Matter of Benjamin B. Hersh, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Decided June 4, 1987
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of disbarment, denied.

Motion, insofar as it seeks leave to appeal from the order of the Appellate Division denying reargument and leave to appeal to the Court of Appeals, dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


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    Somerset Railroad Corporation, Petitioner, v Owasco River Railway, Inc., Respondent. (Proceeding No. 1.) Owasco River Railway, Inc., Appellant, v Somerset Railroad Corporation et al., Respondents. (Proceeding No. 2.) Anna H. Orszulak, Appellant, v Somerset Railroad Corporation, Respondent. (Proceeding No. 3.)
    Decided June 9, 1987

      APPEARANCES OF COUNSEL

      David F. Kunz for Owasco River Railway, Inc., appellant.

      David J. Seeger for Anna H. Orszulak, appellant.

      Morgan L. Jones, Jr., for Somerset Railroad Corporation, respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division, in view of the concessions of The Owasco River Railway (Owasco) and Supreme Court’s findings, that Owasco had not acquired fee simple ownership of the disputed parcel through a conveyance evidenced by a deed, through an order of condemnation or through adverse possession, but that it had acquired only a prescriptive easement for railroad purposes by virtue of its use of the subject land, which has since been abandoned by Owasco. This record is devoid of any evidence demonstrating affirmative acts of ownership such as cultivation, improvements or enclosures to support a claim to fee simple ownership through adverse possession (see, Di Leo v Pecksto Holding Corp., 304 NY 505, 510-512; RPAPL 522). Owasco introduced no evidence showing that the disputed land served any purpose other than to provide a place for railroad track (cf., O & W Lines v St. John, 20 NY2d 17 [fee simple ownership recognized in a railroad company where, in addition to its use of the land as a right-of-way, it had constructed passenger and freight depots]).

We also agree with the Appellate Division that, on the basis of a deed to Orszulak "excepting” a right-of-way for Owasco’s predecessors from the land conveyed, Orszulak never acquired any right, title or interest in the disputed parcel (see, Corning v Lehigh Val. R. R. Co., 14 AD2d 156).

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

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


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    Anthony Maida et al., Appellants, v Michael Velella et al., Defendants, and Daniel George and Son Funeral Home, Inc., et al., Respondents.
    Decided June 9, 1987

      APPEARANCES OF COUNSEL

      Steven P. Howard for appellants.

      Robert F. Van Der Wagg for Daniel George and Son Funeral Home, Inc., respondent.

      Eric A. Portugese for Pine Law Memorial Park and Cemetery, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by denying defendant Daniel George and Son Funeral Home, Inc.’s motion for summary judgment, and, as so modified, affirmed.

On October 24, 1981, plaintiffs Anthony and Anne Maida were driving their car in a funeral procession which started at the Daniel George and Son Funeral Home, Inc. (Daniel George) and was to proceed to Pine Lawn Memorial Park and Cemetery (Pine Lawn). The Maida’s vehicle was the third vehicle in a procession of eight or nine cars following a hearse driven by Daniel George, Jr., the manager of Daniel George Funeral Home, and a limousine, which was arranged for by the funeral home. Upon entering the cemetery, plaintiffs, following the procession on Pinelawn Memorial Road, stopped at a stop sign at the intersection of Pinelawn Memorial Road and Wellwood Avenue, a four-lane road which bisects the cemetery. Plaintiff Anthony Maida saw a vehicle driven by defendant Michael Velella traveling southbound along Well-wood Avenue but nevertheless continued into the intersection because he thought that he had sufficient time to pass through safely. The oncoming Velella car was not able to stop and struck plaintiffs’ vehicle in the intersection. Plaintiffs were seriously injured.

Plaintiffs sued both Daniel George and Pine Lawn. Each defendant moved to dismiss the complaint as against it or, in the alternative, for summary judgment. In opposition to these motions, plaintiffs alleged that they were unable to clear the intersection to avoid the oncoming car because the cars ahead of plaintiff in the procession had stopped and as a result the plaintiffs’ car was struck.

The Appellate Division correctly held that Pine Lawn’s motion for summary judgment should be granted. Pine Lawn had not undertaken to lead the procession and it had no other relationship with plaintiffs which required it to protect them from the conduct of those leading the procession or of others on public roadways (see, Pulka v Edelman, 40 NY2d 781, 783).

We reach a different result, however, with respect to Daniel George. As the majority below correctly noted, Daniel George, by undertaking to lead the funeral procession, "clearly owed a duty to refrain from creating an unreasonably hazardous situation for those participating in the procession” (124 AD2d, at 563). Whether that duty was breached in stopping the procession before all the cars had crossed Wellwood Avenue, whether such breach was a proximate cause of the accident, and whether defendant could reasonably foresee the consequences of its actions cannot be determined from the papers submitted. Based on the record before us, summary judgment should not have been granted (see, Ugarriza v Schmieder, 46 NY2d 471, 474).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, with costs to plaintiffs against defendant Daniel George and Son Funeral Home, Inc., in accordance with the memorandum herein and, as so modified, affirmed, with costs to defendant Pine Lawn Memorial Park and Cemetery against plaintiffs.


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    Isabel A. McDermott, Respondent, v Fergus McDermott, Defendant, and Fire Department Article 1-B Pension Fund of the City of New York, Intervenor-Appellant.
    Argued June 1, 1987;
    decided June 9, 1987
   Appeal dismissed, without costs, for mootness, the issues having been settled by the McDermotts after determination of the appeal to the Appellate Division.


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    George W. Chamberlain, Appellant, v George Orlandini et al., Respondents.
    Submitted April 13, 1987;
    decided June 9, 1987
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b] [7]).


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    Robert Smith, Respondent-Appellant, v Hooker Chemical & Plastics Corp., Respondent and Third-Party Plaintiff-Respondent. Steel Contracting Corporation, Third-Party Defendant-Appellant.
    Submitted April 13, 1987;
    decided June 9, 1987
   Motion for leave to appeal granted. Cross motion for leave to appeal dismissed upon the ground that plaintiff, having stipulated to reducing the amount of damages to which he is entitled, is not aggrieved by the modification for purposes of appeal (see, CPLR 5511; Cohen and Karger, Powers of the New York Court of Appeals § 96, at 408-409, and n 62; Dudley v Perkins, 235 NY 448, 457).

Judge Simons taking no part.


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    The People of the State of New York, Respondent, v Andrew Kristiansen, Appellant.
    Submitted May 4, 1987;
    decided June 9, 1987
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied with leave to renew within 20 days on "motion papers alleg[ing] facts constituting a legal basis for the motion” (CPL 460.30 [2], [3]).


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    Suffolk Housing Services et al., Appellants, v Town of Brookhaven et al., Respondents.
    Submitted May 11, 1987;
    decided June 9, 1987
   Motion by Robert Bell for leave to file a brief amicus curiae on the appeal herein denied. The motion was not made "sufficiently in advance of the argument of the appeal to allow adequate court review” (Rules of Practice of Court of Appeals § 500.11 [e] [22 NYCRR]).


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    In the Matter of Annie Jessup, Appellant, v Joseph D’Elia, as Commissioner of the Nassau County Department of Social Services, et al., Respondents.
    Decided June 11, 1987
    APPEARANCES OF COUNSEL

      Leonard S. Clark and Jane R. Marcus for appellant.

      Robert Abrams, Attorney-General (Christopher Keith Hall of counsel), for Cesar A. Perales, as Commissioner of the New York State Department of Social Services, respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s application for a grant of Aid to Dependent Children on behalf of her minor son was properly denied by respondents on the ground that petitioner possessed an automobile valued in excess of the statutory and regulatory $1,500 maximum (Omnibus Budget Reconciliation Act of 1981, Pub L 97-35, 42 USC §602 [a] [7] [B]; 45 CFR 233.20 [a] [3]; 18 NYCRR 352.23 [b] [2]). We reject petitioner’s reliance on Matter of Gunn v Blum (48 NY2d 58) because under these circumstances, that holding has been superseded by legislation, both Federal and State. Gunn was premised on the fact that there was neither "statute [nor] regulation authorizing termination of benefits to an entire family unit based on parental refusal to apply nonessential resources to the support obligation” (Matter of Gunn v Blum, supra, at 65, n 4). The passage of the Omnibus Budget Reconciliation Act (Pub L 97-35, 42 USC § 602 [a] [7] [B]) in 1981, with its attendant regulatory amendments, now requires that eligibility for a child within the family unit be determined based upon the family unit’s combined resources, the very statutory framework found lacking in Gunn (see, Pub L 97-35, 42 USC § 602 [a] [7] [B]; 45 CFR 233.20 [a] [3]; 18 NYCRR 352.23 [b] [2]).

Petitioner’s State constitutional claim has been considered and rejected (Matter of Jones v Blum, 64 NY2d 918, affg for reasons stated 101 AD2d 330; Matter of Bernstein v Toia, 43 NY2d 437).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment affirmed, without costs, in a memorandum.


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    The People of the State of New York, Respondent, v Joseph Borges, Appellant.
    Argued April 30, 1987;
    decided June 11, 1987

      APPEARANCES OF COUNSEL

      Alan Epstein and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (David K. Bertan and Lee S. Gayer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to Supreme Court, Bronx County, for a determination whether defendant’s consent to search his apartment was sufficiently an act of free will to purge the primary taint of the illegal arrest.

On this appeal, the People concede that defendant was illegally arrested (Payton v New York, 445 US 573). Defendant does not challenge the determination of the suppression court that his postarrest consent to search his apartment was voluntary (People v Gonzalez, 39 NY2d 122; see, Schneckloth v Bustamonte, 412 US 218). Defendant does claim that the consent, albeit voluntary, was not acquired by means sufficiently distinguishable from the illegal arrest to be purged of the illegality.

When a defendant challenges the admission of evidence obtained by a consensual search, claiming the consent was the product of an illegal arrest, the burden rests on the People to demonstrate that the consent was "acquired by means sufficiently distinguishable from the arrest to be purged of the illegality” (People v Conyers, 68 NY2d 982, 983; Brown v Illinois, 422 US 590, 603-604). Although the voluntariness of the consent is an important factor in the court’s determination of attenuation, it is not dispositive (People v Henley, 53 NY2d 403, 407). Rather, consideration must be given to a variety of factors, including but not limited to the temporal proximity of the consent to the arrest, the presence or absence of intervening circumstances, whether the police purpose underlying the illegality was to obtain the consent or the fruits of the search, whether the consent was volunteered or requested, whether the defendant was aware he could decline to consent, and particularly, the purpose and flagrancy of the official misconduct (cf., People v Conyers, supra; Brown v Illinois, supra; see, 3 LaFave, Search and Seizure § 8.2 [d], at 193-194 [2d ed]). Of course, the relevant factors will vary from case to case and each case must be individually considered on the particular facts and circumstances presented and the determination made with due regard for the purposes sought to be served by the exclusionary rule (see, People v Newton, 69 NY2d 313; Wong Sun v United States, 371 US 471).

Here, although defendant argued that his consent was the direct result of the illegal arrest, the suppression court’s determination was based solely on the threshold issue of voluntariness and it did not indicate specifically that it determined the issue of attenuation after consideration of the above-listed factors. While questions of attenuation generally present mixed questions of law and fact (People v Conyers, supra), where, as here, the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented (People v Morales, 65 NY2d 997, 998).

The matter should therefore be remitted to Supreme Court so that the defendant’s motion can be decided in accordance with these principles. In the event the suppression court finds that the consent was sufficiently an act of free will to purge the primary taint of the illegal arrest, the judgment should be amended to reflect that determination. If the suppression court finds to the contrary, the defendant’s motion to suppress should be granted, the judgment of conviction should be vacated, and the matter remitted for further proceedings on the indictment.

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

Order modified and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


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    Hippolito Villanueva, Respondent, v John D. Simpson, as President and Executive Officer of the New York City Transit Authority, Appellant.
    Decided June 11, 1987

      APPEARANCES OF COUNSEL

      Albert C. Cosenza and George S. Grupsmith for appellant.

      Kathleen Doyle for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review should be reversed and the matter remitted to the Appellate Division for consideration of other issues raised but not considered by that court.

Petitioner, a conductor, was found, by a Hearing Officer, to have violated rules 10 (a) and (b) and 35 of the Rules and Regulations Governing Employees Engaged in the Operation of the New York City Transit System. The charges related to an assault petitioner allegedly committed and to his alleged failure to obey the lawful order of a police officer. The Hearing Officer’s findings and determination were adopted by respondent. On transfer of this proceeding pursuant to CPLR 7804 (g), the Appellate Division annulled respondent’s determination on the ground that there was not substantial evidence to support the determination in that the rules allegedly violated pertain only to conduct while an employee is on duty or on Transit System property or conduct which would interfere with the efficiency and discipline of the Transit System.

A municipality may discipline its employees for actions occurring off duty and off the employer’s premises (see, Matter of Burke v Bromberger, 300 NY 248; People ex rel. Wood v Department of Health, 144 App Div 628, affd 202 NY 610; Matter of Berman v Gillroy, 198 Misc 369, 372, affd 278 App Div 907, affd 305 NY 688, rearg denied 305 NY 797, cert denied 347 US 921). Construing rule 10 as a whole it is clear that its general purpose is to prohibit misconduct of Authority employees, including behavior engaged in while off duty and off Transit System property. There is substantial evidence to support the Authority’s determination that petitioner violated rule 10 and the Appellate Division’s decision annulling the determination on that ground was erroneous (see, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 179; Matter of Collins v Codd, 38 NY2d 269, 270).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), judgment appealed from and order of the Appellate Division brought up for review reversed, with costs, and matter remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


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    In the Matter of Abraham Goldfinger, Respondent, v Leo Lisker, Appellant.
    Submitted May 18, 1987;
    decided June 11, 1987
   Motion to amend remittitur denied, with $20 costs (see, CPLR 7503 [a]). [See, 68 NY2d 225.]


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    In the Matter of Michael W. Sheila W., Appellant; Commissioner of Social Services of the City of New York, Respondent. (Proceeding No. 1.) In the Matter of Tennille W. Sheila W., Appellant; Commissioner of Social Services of the City of New York, Respondent. (Proceeding No. 2.)
    Submitted April 27, 1987;
    decided June 11, 1987
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that it was not taken within the time required by statute (CPLR 5513 [a]).


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    Richard N. Weissman, Appellant, v Sophie Mertz et al., Defendants, and Stanley A. Unger et al., Respondents.
    Decided June 11, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the order of reversal, absent a dissent by at least two Justices or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1; see, CPLR 5514 [a]).