text:
    The People of the State of New York, Respondent, v Howard Jones, Appellant.
    Argued February 11, 1987;
    decided March 24, 1987

      APPEARANCES OF COUNSEL

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

      Mario Merola, District Attorney (Debra Ann Urbano and Lee S. Gayer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted after a jury trial of robbery, first degree, and sentenced as a persistent violent felony offender to an indeterminate term of imprisonment of 25 years to life. The charge resulted from the early morning assault of Allison Brown in the elevator of her apartment house and the theft of her purse and its contents.

On this appeal defendant’s principal challenge is to the admission of several items of evidence. First, he contends that his unlawful street detention by the police requires suppression of statements he made to them concerning a ripped, stained black skirt he discarded while running from them, his address, and the police observations made during the stop of a fresh cut on his hand. Second, defendant seeks suppression of a blue jacket allegedly worn by him at the time of the robbery, contending that it was seized when the police unlawfully arrested him in his apartment without a warrant.

Insofar as the street detention is concerned, the hearing court found that while, during the early morning hours, two uniformed police officers were investigating another crime in an area of apartment buildings, they observed defendant running. Seeing two other men nearby, the police thought defendant might be the victim of a crime and called to him. Defendant stopped, looked at the officers and then ran away, discarding the skirt as he ran, the police pursued and when they caught him they asked why he had run away when they called and asked about the recovered skirt. He gave his name and nearby address and after they verified that information by a call to his apartment, they released him. The courts below found on this evidence that the police had an articulable reason for their initial attempt to talk with defendant and reasonable suspicion justifying their detention while they questioned him (see, People v Leung, 68 NY2d 734; cf., People v Howard, 50 NY2d 583).

On defendant’s second point, the hearing court found that the entry into defendant’s apartment was made with his consent. Thus, it held the subsequent warrantless arrest inside the apartment was lawful and the jacket properly seized as an incident of that arrest.

These determinations involved mixed questions of law and fact, and because there is evidence in the record to support the hearing court’s findings, undisturbed by the Appellate Division, our review process is at an end (see, People v Harrison, 57 NY2d 470, 477).

Defendant also claims that the trial court improperly permitted the police officers to testify that when they first sought to question him he had in his possession a black skirt, torn and stained, and when he saw them he discarded the skirt and ran from them. The skirt itself was not received in evidence. We find no error in the court’s ruling that the testimony concerning the skirt was relevant to the issue of identification . because the victim had testified that her attacker was carrying something black at the time of the incident and the evidence of defendant’s possession of a similar object at another closely related time helped to link him to the crime.

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v Louis De Jesus, Appellant.
    Argued February 9, 1987;
    decided March 24, 1987

      APPEARANCES OF COUNSEL

      Jane K. Falcon and Philip L. Weinstein for appellant.

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

Memorandum.

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

Defendant’s 11-year-old daughter accused him of having raped and sexually abused her for several years. At trial, defendant contended that these accusations were instigated by the child’s mother, from whom he was separated, in order to gain custody of their four children. To support this argument, defense counsel sought to confront complainant with her account of the alleged sexual attacks to a social worker employed by the Bureau of Child Welfare (BCW), and he demanded that the People provide the defense with these prior relevant statements. The prosecutor objected on the grounds that the statements were "privileged information” and that they were protected by the Family Court Act. The prosecutor further asserted, "there is nothing I possess from BCW which is relevant for this trial.” Defense counsel, in reply, claimed that he was "entitled to any prior statements that are made by a witness, that is applicable to the testimony that is being given by the particular witness before a Court.” The trial court sustained the prosecutor’s objection and denied defendant’s request for the statements. Defendant was convicted of rape, sodomy and sexual abuse, and the Appellate Division affirmed.

"[0]nce a witness testifies for the People, the prosecutor is obligated to turn over to defense counsel the witness’ prior statements relating to 'the subject matter of the witness’ testimony’ ” (People v Perez, 65 NY2d 154, 158, quoting People v Rosario, 9 NY2d 286, 289). Here, defense counsel claimed he had the right to statements of the complainant made to BCW. The prosecutor at that point was obliged at least to specify any objection he may have had to furnishing the requested materials. The prosecutor now specifies two objections, but neither was made in the trial court and therefore neither is preserved for our review (CPL 470.35 [1]). First, the prosecutor’s reference to privilege and the Family Court Act were inadequate to invoke CPLR 4508 (see, Matter of Grattan v People, 65 NY2d 243, 246). Second, the prosecutor’s claim that he possessed nothing relevant from BCW was insufficient to preserve his current contention that Rosario material does not include statements in the custody of the BCW. In both instances, the prosecutor’s failure to raise his present contentions left no opportunity for the Trial Judge to consider these matters. Moreover, in the absence of proper objection there was no occasion for defendant to make a record — for example, with respect to the People’s relation to BCW, or the prosecutor’s possession of BCW records, or who in these circumstances might assert (or waive) any privilege under CPLR 4508 (see, People v Nieves, 67 NY2d 125, 134-136; see also, People v Tutt, 38 NY2d 1011). Inasmuch as we do not reach the merits of the Rosario issue, we have no occasion to pass on the availability of any of the requested materials.

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

Order reversed, etc.

      CPLR 4508 (a) (3) provides that "A person duly registered as a certified social worker * * * shall not be required to disclose a communication made by his client to him, or his advice thereon, in the course of his professional employment * * * except * * * where the client is a child under the age of sixteen and the information acquired by the certified social worker indicates that the client has been the victim or subject of a crime, the certified social worker may be required to testify fully in relation thereto upon any examination, trial or other proceeding in which the commission of such crime is a subject of inquiry”.


text:
    The People of the State of New York, Respondent, v Gilberto Silva, Appellant.
    Decided March 24, 1987
    APPEARANCES OF COUNSEL

      Jonathan M. Kratter and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be modified by reversing defendant’s convictions of robbery in the first and second degrees and ordering a new trial on those counts, and as so modified, affirmed.

While on duty, John Perry — a parking lot attendant — was robbed of money and clothing by three masked men with guns. One of the robbers tied Perry’s hands and feet; the three men then stole a car from the lot and drove away. Perry untied his feet and hailed a police car. After placing Perry in the back seat, the police officers patrolled the area. Perry spotted the stolen car and pointed it out to the police, who, joined by other officers, chased the car and overtook it. Two of the occupants were seized, but the third — defendant—armed with a gun, fled to a nearby housing project, with two officers in pursuit. Defendant fired at one of the officers. When a patrol car approached, defendant fired in its direction, turned into an alley, entered the back door of an auto repair shop, and fired in the direction of the owner and a police officer who had entered from the front. The chase proceeded to the alley where defendant, upon being cornered, fired three shots at close range directly at police officers before being shot himself. Defendant was indicted on charges of attempted murder in the first degree, first and second degree robbery and criminal possession of a weapon.

At trial, prior to summations, defense counsel requested a circumstantial evidence charge with regard to the robbery counts. The prosecutor indicated that he had no objection, and the court agreed to give the charge. Nonetheless, the court did not give the charge, and actually refused to do so when this omission was pointed out by counsel. Defendant was convicted and the Appellate Division affirmed.

Perry was unable to make an identification of defendant and there was no direct evidence linking him to the robbery. Thus, as the People concede, the case against defendant on the robbery counts was wholly circumstantial. It was, therefore, error for the court to refuse to give a circumstantial evidence charge (see, People v Ford, 66 NY2d 428; People v Sanchez, 61 NY2d 1022), and a new trial on those counts is required.

Defendant’s claim that attempted murder in the first degree is a nonexistent crime and that his convictions of that offense must be reduced to attempted murder in the second degree is without merit. Although in People v Smith (63 NY2d 41) we invalidated the mandatory capital sentence imposed by Penal Law § 60.06, we affirmed the defendant’s conviction of murder in the first degree. It was the death sentence, not the crime of first degree murder, that we found unconstitutional. Section 125.27 of the Penal Law, therefore, remains viable as a substantive basis for a charge of attempted murder in the first degree. Defendant’s remaining contentions are without merit.

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 modified, etc.


text:
    The People of the State of New York, Respondent, v Kenneth Sanders, Appellant.
    Argued February 10, 1987;
    decided March 24, 1987

      APPEARANCES OF COUNSEL

      Carol A. Zeldin and Philip L. Weinstein for appellant.

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

Memorandum.

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

Defendant was convicted after a jury trial of several charges including attempted murder and robbery stemming from the holdup of a numbers parlor in Brooklyn. In its charge to the jury the court failed to explain the essential elements of the several charges. Nor did it instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt every element of the offenses charged. Instead, the court after posing the rhetorical question, "Now, what do the People have to prove beyond a reasonable doubt”, proceeded simply to read the statutory definitions of these crimes (compare, e.g., 2 CJI [NY] PL 160.15 [2], at 929). Defendant excepted to the charge and requested "that the court indicate as to each crime charged in the indictment, what the elements are of each crime [and] that they must be proven beyond a reasonable doubt.” The court refused the request to charge and defendant was convicted. The Appellate Division affirmed, without opinion.

The charge was fatally defective. The Criminal Procedure Law mandates that "[i]n its charge, the court must state the fundamental legal principles applicable to criminal cases in general [including] the requirement that guilt be proved beyond a reasonable doubt” (CPL 300.10 [2]) and that "[n]o conviction of an offense by verdict” may stand "unless based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof” (CPL 70.20; emphasis added).

In People v Newman (46 NY2d 126), decided three years before defendant’s trial, we found a charge defective when the court failed to properly advise the jury "that the burden of proving guilt beyond a reasonable doubt attached to each material element of the crimes rather than merely to some generalized concept of the crimes as a whole” (id., at 129; see, 1 CJI [NY] 3.07, 3.07A, at 91). Here, despite our holding in Newman, the trial court gave the jury an obviously inadequate charge and refused an opportunity to correct it when defense counsel objected. Failure to deliver a proper charge on reasonable doubt as mandated by statute (CPL 300.10 [2]; 70.20) is reversible error and, contrary to the People’s contention, cannot be considered harmless (see, People v Britt, 43 NY2d 111, 113).

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

Order reversed, etc.


text:
    In the Matter of Joseph Cahill, Respondent, v Public Service Commission et al., Appellants, and Central Hudson Gas and Electric Corporation, Intervenor-Appellant.
    Submitted February 9, 1987;
    decided March 24, 1987
   Motions for reargument and for clarification denied. [See, 69 NY2d 265.]


text:
    In the Matter of Elizabeth H. B. Carmer, Deceased. Barbara Scoppettone, Respondent; Willis C. Bailey, Appellant.
    Submitted February 16, 1987;
    decided March 24, 1987
   Motion to dismiss the appeal granted and appeal dismissed, with costs, and $20 costs of motion, upon the ground that no appeal lies as of right pursuant to CPLR 5601 (d) to review a prior nonfinal Appellate Division order of modification [see, 111 AD2d 171], 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; Matter of Thompson v City of Poughkeepsie School Dist., 67 NY2d 984).

Judge Titone taking no part.


text:
    In the Matter of Mark E. Casse, Appellant, v New York State Racing and Wagering Board, Respondent.
    Submitted February 9, 1987;
    decided March 24, 1987
   Motion to dismiss the appeal denied.


text:
    In the Matter of Grand Jury Subpoenas Dated June 26, 1986. Anonymous, Appellants; Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, Office of the Deputy Attorney-General for Medicaid Fraud Control, Respondent.
    Submitted January 19, 1987;
    decided March 24, 1987
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    Roger Loft et al., Respondents, v Michele Forzley, Appellant.
    Submitted February 16, 1987;
    decided March 24, 1987
   Motion for leave to appeal dismissed upon the ground that the nonfinal order sought to be appealed from was entered in an action, not a proceeding, and therefore is not one which comes within the provisions of CPLR 5602 (a) (2) (see, e.g., Grace Co. v State Univ. Constr. Fund, 41 NY2d 943).


text:
    The People of the State of New York, Respondent, v Juan Antonio Tirado, Appellant.
    Argued January 8, 1987;
    decided March 26, 1987

      APPEARANCES OF COUNSEL

      Salvatore D. Ferlazzo for appellant.

      Sol Greenberg, District Attorney (Michael J. Connolly of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to County Court, Albany County, for a determination of the facts concerning the handcuffing of defendant, and, as so modified, affirmed.

Although the uncontradicted testimony at the suppression hearing indicated that defendant was handcuffed at some point during his encounter with the police, the suppression court made no finding as to when in relation to the questioning the police actually placed the handcuffs on defendant; indeed, the court made no reference to handcuffs at all. The Appellate Division memorandum is similarly unenlightening since that court merely stated that defendant was frisked and handcuffed and that "[a]t that time” he made his initial damaging admission. The factual question of when defendant was handcuffed is material to the only preserved issue of law —i.e., whether defendant’s statements and the cocaine were the fruit of an illegal arrest. We have no recourse but to remit this case to the suppression court to make the necessary factual findings based on the existing record.

In the event the suppression court finds that defendant was handcuffed before, or at the same time as, he made his initial statement, then in the circumstances presented the suppression motion should be granted, defendant’s plea vacated, and the indictment dismissed. In the event the suppression court finds that defendant made his initial statement before handcuffing, the judgment should be amended to reflect that determination.

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

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


text:
    In the Matter of Charlotte’s Fancy Restaurant, Inc., Doing Business as Waverly & Waverly, Respondent, v City of New York, Department of Consumer Affairs, Appellant.
    Argued February 12, 1987;
    decided March 26, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Elizabeth Dvorkin and June A. Witterschein of counsel), for appellant.

      Charles J. Carreras for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed.

The majority at the Appellate Division properly construed the provision at issue, section B32-297.0 of the Administrative Code of the City of New York. In this context, the court’s review is limited to whether there was substantial evidence in the record to support the Department of Consumer Affairs’ determination that petitioner operated an unlicensed cabaret (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176), and we conclude that there was.

Accordingly, we reverse the judgment, without costs, and remit the proceeding to the Supreme Court for remand to the Department of Consumer Affairs for further proceedings with respect to the fine imposed, which the appellate City concedes it is not appealing and must be redetermined.

We note that shortly after the commencement of these proceedings, the respondent restaurant ceased operations and went out of business; indeed, we had no brief or appearance in this court by that party. Moreover, the Administrative Code provision at issue has been changed. While these developments do not render the appeal technically moot, pursuit of the City’s appeal to this court in these circumstances is unfortunate and warrants the denial of costs.

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

Judgment reversed, without costs, and matter remitted to Supreme Court, New York County, for remand to the Department of Consumer Affairs for further proceedings in accordance with the memorandum herein.


text:
    Richard O. Loengard, Jr., et al., Plaintiffs, v Santa Fe Industries, Inc., et al., Defendants.
    Decided March 26, 1987
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Court of Appeals Rules of Practice (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    CBS, Inc., Appellant, v Ziff-Davis Publishing Co. et al., Respondents, et al., Defendant.
    Submitted January 26, 1987;
    decided March 26, 1987
   Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order affirming the dismissal of two causes of action against defendant Ziff-Davis Publishing Co. dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion, insofar as it seeks leave to appeal from the portion of the Appellate Division order affirming the dismissal of the complaint against defendant Touche Ross & Co. in its entirety denied.

Chief Judge Wachtler taking no part.


text:
    Dove Hunters Pub, Inc., Appellant, v Bernard Posner et al., Doing Business as Keel Holding Co., Respondents.
    Submitted January 5, 1987;
    decided March 26, 1987
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order which affirmed Supreme Court’s order entered on July 31, 1986, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order which affirmed Supreme Court’s order entered on May 28, 1986, denied.


text:
    Joan Oresky et al., Appellants, v Asher Scharf et al., Respondents.
    Decided March 26, 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 unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question.


text:
    In the Matter of Peter Sourian, Respondent-Appellant, v Yvonne Scruggs-Leftwich et al., Appellants-Respondents.
    Decided March 26, 1987
    APPEARANCES OF COUNSEL

      Dennis Hasher for appellants-respondents.

      Maranda E. Fritz for respondent-appellant.
   OPINION OF THE COURT

Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Moreover, inasmuch as section Y51-9.0 (b) of the Administrative Code of the City of New York and section 8608 of McKinney’s Unconsolidated Laws of NY (L 1962, ch 21, § 1 [8]) may not be constitutionally read to expand this court’s jurisdiction, these provisions may not be interpreted to provide a jurisdictional predicate for appeal as of right from the nonfinal order (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Bertram R. Gelfand, as a Judge of the Surrogate’s Court, Bronx County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted March 25, 1987;
    decided March 26, 1987
   Petitioner’s motion to seal the record herein pending review of the Commission’s determination denied (see, Judiciary Law §44 [7]).

Chief Judge Wachtler and Judge Bellacosa taking no part.


text:
    The People of the State of New York, Respondent, v James Motley, Appellant. The People of the State of New York, Respondent, v Warren Wilder, Appellant.
    Argued February 12, 1987;
    decided March 31, 1987

      APPEARANCES OF COUNSEL

      Scott J. Learned for appellants.

      James T. Hayden, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed.

Each defendant pleaded guilty to attempted promoting prison contraband in the first degree in the full satisfaction of an indictment charging promoting prison contraband in the first degree and received a negotiated sentence.

"A guilty plea represents a compromise or bargain struck after negotiation between the defendant and the People. It is meant to mark the end of a criminal case, not a 'gateway’ to further litigation” (People v Prescott, 66 NY2d 216, 219, cert denied — US —, 106 S Ct 1804). Thus, a plea of guilty generally precludes appellate review of nonjurisdictional defects in the proceedings (People v Fernandez, 67 NY2d 686, 688; People v Prescott, 66 NY2d 216, 220, supra). Though a challenge to a jurisdictional defect in an indictment may be made notwithstanding a guilty plea, not every alleged defect is jurisdictional. As noted in People v Iannone (45 NY2d 589, 600): "In essence, an indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime.”

The statute defining the offense charged in each case is Penal Law § 205.25 (2), which provides: "A person is guilty of promoting prison contraband in the first degree when * * * 2. Being a person confined in a detention facility, he knowingly and unlawfully makes, obtains or possesses any dangerous contraband.” The indictment in each case cites the statute by section number and alleges acts which, if proven, would have established the statutory elements of the crime.

In People v Cohen (52 NY2d 584, 586), we held that "[t]he incorporation [in an indictment] by specific reference to the statute [defining the crime charged] operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon” (see also, People v Wright, 67 NY2d 749, revg on dissent at 112 AD2d 38, 39). Although the statute defining the crime charged in this case does not define dangerous contraband, it is not judicial gloss, but another statute, Penal Law § 205.00 (4) that does, indicating that it is "contraband which is capable of such use as may endanger the safety or security of a detention facility or any person therein.” As in Cohen (supra), here incorporation by reference of the statute defining the crime charged constituted allegations of the elements of the crime and their statutory definitions.

The "contraband” component of "dangerous contraband” is further defined in Penal Law § 205.00 (3), which in turn refers to provisions of a "statute, rule, regulation or order”, and defendants claim the controlling rule or regulation may be ineffective because it was not filed as required (see, e.g., Matter of Jones v Smith, 64 NY2d 1003). As contrasted with Matter of Jones v Smith (supra), the failure in this case to file does not nullify the very basis of the proceeding. The enactment on which the criminal action is based is a statute incorporating the substance of the rule or regulation, and not the regulation itself.

We note also that defendants do not claim lack of adequate notice that the sharpened metal shank or rod each was charged with knowingly and unlawfully possessing was prohibited. Consideration of defendants’ present nonjurisdictional challenges to their indictments is therefore precluded by their guilty pleas.

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

In each case: Order affirmed in a memorandum.


text:
    Robert F. Flacke, as Commissioner of Environmental Conservation of the State of New York, Appellant, and Town of Onondaga, Intervenor, v Onondaga Landfill Systems, Inc., Respondent.
    Argued January 7, 1987;
    decided March 31, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Douglas H. Ward, O. Peter Sherwood, Peter H. Schiff, James A. Sevinsky and Lawrence A. Rappoport of counsel), for appellant.

      William J. Leberman and Alan S. Burstein for Onondaga Landfill Systems, Inc., respondent.

      Robert E. Wildridge, receiver pro se.

   OPINION OF THE COURT

Order reversed, with costs, and matter remitted to Supreme Court, Onondaga County, with directions to dismiss plaintiff Flacke’s application for mootness.

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


text:
    The People of the State of New York, Appellant, v Herbert Gordon, Respondent.
    Decided March 31, 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 one "on the law”, was necessarily a determination by the Appellate Division of a mixed question of law and fact.


text:
    Paul Rodriguez, an Infant, by His Mother and Natural Guardian, Alicia Rodriguez, et al., Appellants, v Middle Atlantic Auto Leasing Inc., et al., Respondents, et al., Defendants.
    Decided March 31, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, with costs, upon the ground that the order appealed from, which denied a motion to vacate the final determination of dismissal, does not finally determine the action within the meaning of the Constitution (Le Frois Foods Corp. v Aetna Ins. Co., 74 AD2d 730, mot 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:
    Alan J. Gallant, Appellant, v Joan Gallant, Respondent.
    Decided March 31, 1987
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution, and upon the additional ground that it does not lie as of right pursuant to CPLR 5601 (d) to review a prior Appellate Division order absent a dissent by at least two Justices on a question of law or the direct involvement of a substantial constitutional question (CPLR 5601 [a], as amended by L 1985, ch 300, § 1).

Judge Alexander taking no part.


text:
    In the Matter of Knight-Ridder Broadcasting, Inc., Appellant, v Sol Greenberg, as Albany County District Attorney, Respondent.
    Submitted February 9, 1987;
    decided March 31, 1987
   Motion to dismiss the appeal herein denied.


text:
    The People of the State of New York, Respondent, v David E. McDermott, Appellant.
    Argued February 12, 1987;
    decided April 2, 1987
    APPEARANCES OF COUNSEL

      Joseph J. Balok, Jr., Public Defender (Kevin Moshier of counsel), for appellant.

      James T. Hayden, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

Defendant, a correction officer at Elmira Correctional Facility, appeals from an order of County Court reinstating an information charging him with promoting prison contraband in the second degree by knowingly and intentionally selling whiskey to an inmate (see, Penal Law § 205.20 [1]). The Legislature has specified that contraband is "any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order” (Penal Law § 205.00 [3]). Thus, to establish that the article "promoted” is "contraband”, other statutes and rules must be examined. This information did not identify the particular regulation the prosecution relied upon and defendant, assuming that the regulation involved must be that found in the "Standards for Inmate Behavior”, moved to dismiss. He contended that the information was defective because section 8 of article IV of the State Constitution provides that departmental rules and regulations shall not be effective until filed in the office of the Secretary of State and that the "Standards for Inmate Behavior” had not been filed on the date of the offense as required (see, Matter of Jones v Smith, 64 NY2d 1003). Recorder’s Court agreed and granted defendant’s motion. On appeal, County Court reinstated the information. It found the information sufficient based on the visitation regulations found in 7 NYCRR former § 200.5 (d), which had been filed with the Secretary of State and which do identify alcohol as contraband and forbid visitors from making gifts of it to inmates.

On this appeal defendant contends that County Court erred because, as both courts below found, the "Standards for Inmate Behavior” had not been filed as required by the Constitution, because the rule regulating inmate visitation was not intended to apply to correction officers and could not provide a basis for prosecuting them and because none of the several other regulations or statutes urged by the District Attorney is applicable for similar reasons.

It is fundamental that an information is jurisdictionally defective unless it states every element of the crime with which the defendant is charged and the particular facts establishing that defendant committed it (CPL 100.40 [1] [c]; 100.15 [3]; People v Hall, 48 NY2d 927; People v Case, 42 NY2d 98, 99; People v Harper, 37 NY2d 96, 99). The requirement serves two purposes: to provide notice enabling the defendant to prepare for trial and to distinguish the offense sufficiently to prohibit reprosecution (People v McGuire, 5 NY2d 523, 526; cf., People v Charles, 61 NY2d 321, 326-327 [dealing with indictments]). This information clearly meets legal standards if whiskey is contraband.

The visitation regulation was the only "statute, rule, regulation or order” defining whiskey as contraband prohibited to the inmates by Penal Law § 205.20 (1) at that time. Inasmuch as it was filed at the time of the offense charged, the information properly alleged a crime under the statute because it charged defendant with selling to an inmate an item identified as contraband by a regulation (cf., People v Crisofulli, 91 Misc 2d 424). That the regulation applied to visitation and not the behavior of inmates or correction officers is immaterial: the statute only requires that whiskey be identified as contraband by the official action described (cf., People v Martindale, 6 Misc 2d 85). Defendant claims that the regulation may not be relied upon because a correction officer would not think to examine it when regulating his own conduct, but defendant does not claim that he was unaware whiskey was contraband and even if he did claim ignorance of the regulation that would not affect the validity of the information but only the prosecutor’s claim that defendant acted knowingly in introducing the whiskey into the correction facility.

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

Order affirmed in a memorandum.


text:
    In the Matter of 324 Liquor Corp., Doing Business as Yorkshire Wine & Spirits, Respondent, v Edward J. McLaughlin et al., Appellants.
    Decided April 2, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Christopher Keith Hall of counsel), for appellants.

      Bertram M. Kantor and Seymour Howard for respondent.
   OPINION OF THE COURT

On reargument, following remand by the Supreme Court of the United States, order affirmed, with costs (324 Liq. Corp. v Duffy, 479 US —, 107 S Ct 720).

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


text:
    The People of the State of New York, Respondent, v Francis Bongarzone, Appellant.
    Argued February 7, 1987;
    decided April 2, 1987

      APPEARANCES OF COUNSEL

      Stephen R. Mahler for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted on charges arising out of an automobile accident in which two people were killed. While incarcerated awaiting trial, the defendant allegedly conspired with a fellow inmate to arrange for the murder of an eyewitness to the accident. The inmate, never intending to aid the defendant, informed the police, who arranged for an undercover officer to pose as a hired killer and for a communication to take place between the defendant and the officer. The defendant instructed the undercover officer to contact his mother or sister who would provide a picture of the eyewitness and $300 as the first installment of a "payoff” for the murder. The defendant indicated that he would make arrangements with his family so that they would be expecting to be contacted. Although the police officer, posing as the "hired gun”, telephoned defendant’s mother and sister and arranged to meet them, the meeting never took place. As a result of these conversations, however, all of which were recorded, the defendant was additionally charged with conspiracy and criminal solicitation.

Before trial, the initial charges stemming from the auto accident and the ensuing charges of conspiracy and criminal solicitation, were joined pursuant to CPL 200.20 (2) (b) in a single nine-count indictment. The jury found the defendant guilty on five counts, namely unauthorized use of a motor vehicle in the third degree, leaving the scene of an accident without reporting as a felony, falsely reporting an incident in the third degree, criminal solicitation in the second degree, and conspiracy in the fourth degree. The Appellate Division affirmed.

On appeal from his conviction, defendant contends that the trial court erred by not granting his motion to sever the consolidated indictment. Pursuant to CPL 200.20 (2) (b), two offenses, even though based on separate and distinct criminal transactions, may be joined in the discretion of the trial court if they are of such a nature that proof of either offense would be material and admissible as evidence-in-chief upon the trial of the other. Here, the evidence relating to the automobile accident was material and admissible to establish motive with respect to the conspiracy and criminal solicitation charges. Likewise, the evidence of the conspiracy and of the criminal solicitation was relevant to the issue of defendant’s consciousness of guilt in relation to the automobile accident. Joinder of the offenses was within the scope of the trial court’s discretion and once the offenses were properly joined, the court lacked statutory authority to sever (CPL 200.20 [3]; People v Lane, 56 NY2d 1).

Defendant also claims that it was reversible error to admit the recordings containing his inculpatory statements. These were elicited by the police in the absence of counsel and after counsel had been obtained with regard to the initial indictment. Defendant relies on Maine v Moulton (474 US 159, 106 S Ct 477, in effect overruling People v Mealer, 57 NY2d 214), in which the Supreme Court ruled that postindictment statements elicited in the absence of counsel even where, as here, the statements are elicited as part of an investigation into a new crime, are inadmissible at the trial of the initial indictment but may be admitted at the trial for the new crime. Thus, under Moulton, defendant’s postindictment recorded conversations are admissible as proof of the postaccident conspiracy crimes but inadmissible with respect to the charges relating to the automobile accident.

Our analysis of the Supreme Court’s holding does not disclose that that court considered or created a per se rule governing this kind of error. Thus, accepting that the admission of these statements was in violation of the defendant’s right to counsel, we next turn to whether the admission may be subject to harmless error analysis. As in other right-to-counsel cases, the rationale underlying the Moulton rule is not to bar the use of all postindictment statements made in the absence of counsel, but rather to prevent the use of such statements unfairly to prejudice the defendant’s case (474 US, at —, 106 S Ct, at 489, supra). We conclude that statements in this case admitted in violation of the Moulton decision are subject to the harmless error doctrine under our precedents which are compatible with Moulton and its rationale. Inasmuch as appellant’s recorded conversations contained no reference to the accident itself or to any of the charges arising from it, and evidence of guilt with respect to the initial crimes was direct and overwhelming, the error resulting from the admissions of these statements is harmless beyond a reasonable doubt (People v Krom, 61 NY2d 187; People v Sanders, 56 NY2d 51).

Defendant further argues that his conviction on the conspiracy count should be reversed because the required overt act element was not properly proven. He contends that the recorded conversations between his mother, his sister and the undercover police officer were the only evidence showing that he performed an overt act in the furtherance of the conspiracy and that is not enough. We disagree.

We agree with the courts below that there was sufficient circumstantial evidence upon which to infer the performance of an overt act by the defendant and, in turn, establish a prima facie case of conspiracy. The cogent evidence includes admissible statements made by the defendant to others that he had spoken and would again speak with his sister and his mother to further the conspiratorial objective by providing payment and a photograph of the victim; defendant’s assurance to the undercover officer that he would make the telephone call to his mother immediately; his specific instructions to the undercover officer about following up on his telephone call to his mother; and defendant’s provision of his mother’s phone number to the undercover officer with a description of the instructions he intended to give her. This evidence being sufficient to establish a prima facie case that a conspiracy existed, the evidence concerning the mother’s and sister’s statements which established an overt act was properly received.

Defendant’s argument that the evidence at trial was insufficient for the jury to have made a guilty finding on the criminal solicitation charge is without merit.

Accordingly, the order of the Appellate Division should be affirmed.

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

Order affirmed in a memorandum.


text:
    John E. Forward et al., Appellants-Respondents, v Webster Central School District, Respondent-Appellant, and Town of Webster, Respondent.
    Decided April 2, 1987
   Appeal and cross appeal transferred to the Appellate Division, Fourth Department, without costs, by the Court of Appeals sua sponte. A direct appeal does not lie where questions other than the validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    John L. Grady et al., Appellants, v John R. Tenney, as a Justice of the Supreme Court, Respondent.
    Submitted March 9, 1987;
    decided April 2, 1987
   Motion for leave to appeal and for reconsideration of January 20, 1987 dismissal of appeal taken as of right denied. [See, 69 NY2d 742.]


text:
    Henry Modell and Co., Inc., Appellant, v Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent.
    Submitted March 16, 1987;
    decided April 2, 1987
   Motion to amend January 20, 1987 order denied. [See, 69 NY2d 741.]

Judges Kaye and Alexander taking no part.


text:
    Jancyn Manufacturing Corp., Respondent, v County of Suffolk, Appellant.
    Submitted February 23, 1987;
    decided April 2, 1987
   On the court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    Edie Lerner, as Legal Guardian and Custodian of Adam Lerner and Another, Infants, Respondent, v Phyllis Lerner, Appellant.
    Submitted March 16, 1987;
    decided April 2, 1987
   Motion for leave to appeal and for a stay granted.


text:
    In the Matter of Lillian Michelson, as Executrix of Carmella J. Russo, Deceased, and Another, Appellant, v State of New York Public Service Commission et al., Respondents.
    Submitted February 23, 1987;
    decided April 2, 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 it is not a nonfinal order of the type which is within the meaning of CPLR 5602 (a) (2).


text:
    Common Council of the City of Middletown, Respondent, v Town Board of the Town of Wallkill, Appellant.
    Submitted February 9, 1987;
    decided April 2, 1987
   Motion to dismiss the appeal granted and appeal dismissed, without costs, upon the ground that it does not lie as of right from the unanimous order of the Appellate Division absent direct involvement of a substantial constitutional question, and on the further ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Samuel Weinberg.
    Decided April 3, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that this court’s May 1, 1986 suspension of Honorable Samuel Weinberg from his office of Judge of the Civil Court of the City of New York, pursuant to NY Constitution, article VI, § 22 (í), (g) and Judiciary Law § 44 (8) (b), (c) shall be continued, without pay, effective immediately.

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


text:
    Airmont Homes, Inc., Appellant, v Town of Ramapo et al., Respondents. (Proceeding No. 1.) Hillcrest Eckerson Corp., Appellant, v Town of Ramapo et al., Respondents. (Proceeding No. 2.) Rockland Homes, Inc., Appellant, v Town of Ramapo et al., Respondents. (Proceeding No. 3.) Eric Bergstol et al., Appellants, v Town of Ramapo et al., Respondents. (Proceeding No. 4.) Citizens Realty Dev. Corp., Appellant, v Town of Ramapo et al., Respondents. (Proceeding No. 5.) Ben Ash et al., Appellants, v Town of Ramapo et al., Respondents. (Proceeding No. 6.) Milton B. Shapiro et al., Appellants, v Town of Ramapo et al., Respondents. (Proceeding No. 7.)
    Argued March 20, 1987;
    decided April 23, 1987

      APPEARANCES OF COUNSEL

      Milton B. Shapiro for appellants.

      Samuel Blecher, Town Attorney (Arnold Becker and Mitchell Schecter of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and -the motions to dismiss the proceedings denied.

Petitioners commenced these proceedings in August 1976 pursuant to article 7 of the Real Property Tax Law. Respondent Town of Ramapo did not answer the petitions, relying instead on the automatic statutory denial of petitioners’ allegations (RPTL 712 [1] [if respondent fails to serve an answer within the required time, at least five days prior to the return date unless extended, all allegations shall be deemed denied]). By motion returnable January 11, 1985, respondent sought ex parte relief pursuant to RPTL 718 to dismiss the proceedings for failure to prosecute.

Although the courts below correctly recognized that the proceedings could not be dismissed pursuant to RPTL 718 because they were commenced prior to the effective dates of the statute’s enactment (see, L 1977, ch 152, § 2 [eff Jan. 1, 1978]; L 1976, ch 428, § 2 [eff Jan. 1, 1977]), they erred in granting the ex parte motions to dismiss on the grounds of "gross laches” or failure to prosecute. The procedural device of dismissing a petition for failure to prosecute is a legislative creation, not a part of a court’s inherent power (Cohn v Borchard Affiliations, 25 NY2d 237, 248). Thus, the conceded failure of respondent or the court to afford petitioners adequate written notice constitutes a failure of a condition precedent to the dismissal (CPLR 3216 [b]). We note that although joinder of issue and the lapse of a year since joinder are also conditions precedent to dismissal, the expiration of the period in which respondent is deemed to have interposed by statute its automatic denial of the allegations of the petition (RPTL 712 [1]) suffices in these circumstances to fulfill the requirement that issue be joined.

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

Order reversed, with costs, and motions to dismiss the proceedings denied in a memorandum.


text:
    The People of the State of New York, Respondent, v Louis Garcia, Also Known as Prince Cuba, Appellant.
    Argued March 23, 1987;
    decided April 23, 1987
    APPEARANCES OF COUNSEL

      Elaine D. McKnight for appellant.

      Elizabeth Holtzman, District Attorney (Carol Teague

      Schwartzkopf, Barbara D. Underwood and Steven H. Kessler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Supreme Court granted defendant’s motion to defend himself pro se, but appointed standby counsel (to assist him if necessary. At the suppression hearing, defendant’s standby counsel informed the court that defendant washed to take the stand. Defendant then asked, "Within the Court’s discretion, could I not be questioned by the defense —?” At this juncture, the court afforded defendant the choice of continuing his pro se defense or of having the standby counsel represent him for the balance of the case. The court informed defendant that counsel would not be allowed to represent him solely for the purpose of questioning him on direct examination.

Defendant’s primary contention on this appeal, that he was deprived of his right to counsel by the court’s ruling, lacks merit. A defendant has no right to a hybrid form of representation under either the Federal or State Constitutions (People v Mirenda, 57 NY2d 261; United States v Williams, 791 F2d 1383, 1389; United States v Weisz, 718 F2d 413, 425 [exercise of right of self-representation requires "waiver of the preeminent right to the assistance of counsel”], cert denied 465 US 1027, 1034). Moreover, the trial court did not abuse its discretion in denying defendant’s request (see, People v Mirenda, 57 NY2d, at 266, supra; United States v Klee, 494 F2d 394, 396, cert denied 419 US 835). Here, the court repeatedly advised defendant of the dangers of pro se representation, again extended him the opportunity to elect between his inconsistent rights when he sought to assert them simultaneously at the suppression hearing, and allowed him to testify in narrative fashion on that occasion to facilitate the presentation of his defense.

We also reject defendant’s argument that the Double Jeopardy Clause prohibited the court from correcting its own sentencing error (People v Minaya, 54 NY2d 360, 365-366, cert denied 455 US 1024). His remaining contentions are either unpreserved or lack merit.

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

Order affirmed in a memorandum.


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    In the Matter of the Arbitration between Enlarged City School District of Troy, Respondent, and Troy Teachers Association, Appellant.
    Argued March 19, 1987;
    decided April 23, 1987
    APPEARANCES OF COUNSEL

      Gerard John DeWolf and Bernard F. Ashe for appellant.

      E. Michael Ruberti for respondent.
   OPINION OF THE COURT

Memorandum.

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

As part of their collective bargaining agreement for the 1983 to 1986 school years, petitioner School District and respondent Teachers Association agreed that vacancies in instructional positions would be filled from within the bargaining unit. Petitioner thereafter appointed a nonmember of the bargaining unit to the part-time position of head varsity basketball coach for the 1984-1985 season. Two members of the unit — each of them previously head basketball coach at Troy High School — applied for the position and were rejected. While petitioner alleges that these two members were found unqualified, this allegation is disputed. Following the appointment of the nonmember, respondent association filed a grievance; upon denial of that grievance, it demanded arbitration, claiming that the appointment violated the collective bargaining agreement and seeking immediate appointment of one of the member applicants together with back pay and benefits. In this CPLR article 75 proceeding, petitioner School District seeks to stay arbitration of the dispute on public policy grounds. Special Term denied the application for a stay and ordered arbitration, but the Appellate Division reversed and granted a stay. We granted leave to appeal (68 NY2d 608).

The court’s role in reviewing applications to stay arbitration is of course a limited one: "it is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute * * * Nor should arbitration be stayed merely because the requested remedy, if granted, runs the risk of resulting in an impermissible assumption of the board’s supervisory responsibility, or * * * because it is feared that the arbitrator’s judgment would be improperly substituted for the subjective determination of an applicant’s qualification which is vested in the discretion of the superintendent” (Board of Educ. v Barni, 51 NY2d 894, 895-896). A stay of arbitration on policy grounds is "premature and unjustified”, even though the remedy sought may not, due to policy concerns, be enforceable, where it is possible that the arbitrator may use his broad powers to fashion a remedy "adequately narrowed to encompass only procedural guarantees” (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 411, 418). To justify preemptive judicial intervention in the arbitration process, public policy considerations embodied in decisional law or statutes must "prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator.” (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631; see also, Jones, Arbitration from the Viewpoint of the Practicing Attorney: An Analysis of Arbitration Cases Decided by the New York State Court of Appeals from January, 1973 to September, 1985, 14 Fordham Urb LJ 523, 536.)

Applying these standards, it was error to stay arbitration. Even assuming that the School District must remain the ultimate judge of an applicant’s qualifications, it is not at all clear at this juncture that the arbitrator’s interpretation of the clause in issue, or the arbitrator’s resolution of the present dispute, could only be by a substitution of judgment for that of petitioner, or require petitioner to hire an "unqualified” person. There being possible relief in the arbitration proceeding that would not violate public policy, the court below acted prematurely in staying arbitration.

Petitioner urges further that arbitration must be stayed because the collective bargaining agreement provides that, before submission of a written grievance, the aggrieved party must attempt to resolve it informally, and respondent failed to do so (which respondent disputes). While a written grievance was actually submitted, considered and denied by petitioner, petitioner now asserts that the pre-grievance provision was a condition precedent to arbitration.

Petitioner’s contention is without merit. In effect, the collective bargaining agreement provided a three-step grievance process, beginning with informal discussion and culminating in arbitration. Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration (see, Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 8; Matter of Triborough Bridge & Tunnel Auth. [Dist. Council 37], 44 NY2d 967; Matter of Guilderland Cent. School Dist. [Guilderland Cent. Teachers Assn.], 45 AD2d 85 [Cooke, J.]; see also, Jones, op. cit., 14 Fordham Urb LJ, at 543).

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

Order reversed, etc.

      While not applicable to the present dispute, we note that the Legislature has recently amended the Education Law (see, Education Law § 1711 [L 1986, ch 843]) to permit modification, by a collective bargaining agreement, of the nondelegable duty of a superintendent of schools to assign and reassign teachers, indicating the Legislature’s judgment that some matters deemed "essential to maintaining adequate standards in the classroom” (Matter of Sweet Home Cent. School Dist. v Sweet Home Educ. Assn., 90 AD2d 683, affd 58 NY2d 912) can be the subject of collective bargaining.


text:
    William Iselin & Co., Inc., Respondent, v Fireman’s Fund Insurance Company, Appellant.
    Argued March 17, 1987;
    decided April 23, 1987

      APPEARANCES OF COUNSEL

      Jerome Murray, Robert G. Post and Robert Wang for appellant.

      John E. Beerbower and Peter M. Dodson for respondent.
   OPINION OF THE COURT

Order modified, with costs to defendant, by denying plaintiff’s cross motion to dismiss the fourth, fifth and sixth affirmative defenses and, as so modified, affirmed for the reasons stated in the dissenting in part opinion by Justice Leonard H. Sandler at the Appellate Division (117 AD2d 86, 93-96). Certified question answered in the negative.

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


text:
    Karen V. Molinari, as Executrix of Joseph P. Molinari, Jr., Deceased, Appellant, v Kar-San Development, Ltd., Respondent, et al., Defendants.
    Argued March 18, 1987;
    decided April 23, 1987

      APPEARANCES OF COUNSEL

      Norman E. Frowley and Daniel Donnelly for appellant.

      Anthony A. Dean, Thomas J. Mulligan, Laura E. Longobardi and James P. O’Brien for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice John T. Casey at the Appellate Division (117 AD2d 194).

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


text:
    Peter Sims, as Trustee of Samuel A. Gadsby, Deceased, Appellant, v David Manley et al., Respondents.
    Argued March 25, 1987;
    decided April 23, 1987

      APPEARANCES OF COUNSEL

      Peter Sims, appellant pro se.

      Laurence H. Pearson and David W. Weschler for David Manley, respondent.

      James B. Fishman, Morton B. Dicker, John Kirklin and Lynn M. Kelly for Mary Morris, respondent.
   OPINION OF THE COURT

Memorandum.

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

In reviewing the decision of the Appellate Division it is apparent that the Appellate Division substituted its discretion for that of the Surrogate’s Court’s in reversing that court’s discretionary order transferring to the Surrogate’s Court two summary proceedings pending in the Civil Court, New York County, and consolidating those proceedings with a discovery proceeding brought by petitioner as trustee under decedent’s will. The Appellate Division granted leave to appeal to this court and certified the following question: "Was the order of this Court, which reversed the order of the Surrogates Court, properly made?” Based on the record in this case, we cannot say that there was an abuse of discretion as a matter of law by the Appellate Division in substituting its discretion for that of Surrogate’s Court. Hence, the only remaining question certified is whether the Appellate Division had the power to grant the requested relief (see, Herrick v Second Cuthouse, 64 NY2d 692, 693). We conclude that it had this power, and pass on no other issue.

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

Order affirmed, with costs, and certified question answered in the affirmative in a memorandum.


text:
    The People of the State of New York, Respondent, v Barry Allen, Appellant.
    Argued March 23, 1987;
    decided April 23, 1987

      APPEARANCES OF COUNSEL

      Miriam J. Hibel and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division affirming a judgment of conviction for murder in the second degree should be affirmed.

Defendant’s central contention on this appeal relates in two respects to instructions to the jury on intoxication. There is no error in denying a reinstruction on intoxication in the supplemental charge to the jury inasmuch as the jury did not ask for reinstruction on that issue but only on the elements of the crime charged.

Defendant’s objection to the primary instruction on intoxication is now framed as a violation of due process by importing a burden of proof shift or undue emphasis on credibility. It was not so framed as an objection expressed to the Trial Judge, and is not adequately preserved by the unparticularized objection to the intoxication instruction.

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

Order affirmed in a memorandum.


text:
    Robert Bravato, Respondent, v Berkshire Life Insurance Company, Appellant.
    Argued February 11, 1987;
    decided March 19, 1987

      APPEARANCES OF COUNSEL

      William E. Kelly and Alan W. Borst, Jr., for appellant.

      Howard A. Sieven for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 18, 1974 defendant insurer issued a disability policy to plaintiff, then a practicing chiropractor. The undisputed evidence indicated that plaintiff, whose income was largely derived from Medicaid payments, discontinued his practice in July 1977, when chiropractic services were no longer covered by New York’s Medicaid reimbursement program and he pleaded guilty to Medicaid fraud charges. Plaintiff served five months in prison, and upon release practiced as a chiropractor sporadically until March 1979, when his license was briefly suspended in connection with the fraud charges. Thereafter, he occasionally practiced on friends at home, but earned no income from services as a chiropractor. Plaintiff’s income was derived from employment in his father-in-law’s real estate business.

On May 31, 1980, plaintiff was injured in a boiler explosion in the course of his real estate duties. Defendant paid him disability benefits for three months, until he returned to that work. However, plaintiff claimed that his occupation at that time was as a chiropractor, and that as a result of the explosion his hands were permanently injured and he thus suffered total disability from his occupation. In an action to recover those benefits, a jury found that plaintiff had suffered total disability as a chiropractor, and the Appellate Division affirmed, without opinion.

Central to this appeal is the question whether, at the time of injury, plaintiff’s occupation was as a chiropractor or real estate manager (or agent). Before this court the parties agree that the critical inquiry is as to the insured’s occupation at the time of injury. We therefore need not and do not reach the issue litigated by them below — to wit, whether the governing standard under the policy should be occupation at the time of contract or at the time of injury.

At trial, plaintiff contended that, though temporarily working in the real estate business, his occupation continued to be chiropractic as shown by the fact that he maintained his professional license, equipment and malpractice insurance; sought work as a chiropractor; continued his telephone listings as a chiropractor; and occasionally treated friends in his home. Defendant, by contrast, urged that plaintiff had abandoned the chiropractic practice and that his occupation at the relevant moment was real estate, relying on the facts that plaintiff derived no income as a chiropractor after February 1979; he continued in the real estate business after his professional license had been restored; and at one place in his tax returns for several years he showed his occupation as "managing agent” or "real estate manager.”

Thus, the issue of plaintiff’s occupation at the time of injury was sharply disputed. In charging the jury the trial court, over defendant’s objection, announced that "the court has determined, as a matter of law, that at the time of the accident, the plaintiff, Dr. Bravato, was a chiropractor.” This was error. It is elementary that where, as here, conflicting inferences may reasonably be drawn from evidence, a question of fact is presented for resolution by the jury. On this record, the issue of plaintiff’s occupation at the time of injury should have been submitted for the jury’s determination, not resolved by the court as a matter of law.

Defendant’s remaining contentions lack merit.

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

Order reversed, etc.


text:
    In the Matter of Joan Pearson, Appellant, v Arthur Pearson, Respondent.
    Argued March 24, 1987;
    decided April 23,1987

      APPEARANCES OF COUNSEL

      Ralph S. Joseph and Ronald A. Phillips for appellant.

      Paul V Nowicki for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of Family Court and the prior nonfinal Appellate Division order brought up for review should be affirmed, with costs.

New York is not constitutionally required to give full faith and credit to a foreign judgment which is not final under that State’s laws (see, Barber v Barber, 323 US 77; Sistare v Sistare, 218 US 1, 16), and the New Hampshire judgment at issue here is not final since it is modifiable under New Hampshire law (see, NH Rev Stat Annot § 458:19; Morphy v Morphy, 112 NH 507, 298 A2d 580). Family Court, by granting petitioner’s application pursuant to Family Court Act § 466 (c) (i) for an order enforcing the instant foreign judgment, did not in the circumstances of this case convert it into a New York decree. The powers of Family Court are restricted to those authorized by the language of the statute (Matter of Silver v Silver, 36 NY2d 324, 326). Here, where petitioner merely sought an order enforcing the New Hampshire decree pursuant to Family Court Act §466 (c) (i) rather than an order modifying it pursuant to section 466 (c) (ii), the Family Court enforcement order operated only to enforce the provisions of the foreign decree in accordance with its express terms and not to renew, extend or modify the alimony provision. Thus, upon the expiration of the underlying alimony obligation after three years, there was no longer any obligation in respect thereto under the terms of the order of the issuing State. Thus, Family Court had no authority to act on the decree after its stated expiration date (Matter of Silver v Silver, supra; Wertheimer v Wertheimer, 50 AD2d 879, appeal dismissed 39 NY2d 741). Nor could the mere enforcement of the alimony award by the New York Family Court extent the duration of the award under the law of New Hampshire (see, Clevesy v Clevesy, 118 NJ 112, 383 A2d 705).

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

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.


text:
    In the Matter of Department of Environmental Protection of the City of New York, Respondent, and Environmental Defense Fund, Inc., Intervenor-Respondent, v Department of Environmental Conservation of the State of New York et al., Appellants, and Central Hudson Gas & Electric Corporation, Inc., et al., Intervenors-Appellants.
    Submitted April 21, 1987;
    decided April 23, 1987
   Motions for leave to appeal denied. Motion by Central Hudson Gas & Electric Corporation, Inc., for a stay dismissed as academic. Motion by the Department of Environmental Protection of the City of New York to vacate the statutory stay dismissed as academic. On petitioner’s motion to hold Central Hudson Gas & Electric Corporation, Inc., Donald R. Otis and Carl E. Meyer in contempt: The parties are directed to present evidence on the issues raised on the motion at a hearing before Honorable Joseph F. Gagliardi, who shall report to this court on or before May 29, 1987.


text:
    In the Matter of Ernest J. Conti.
    Decided April 24, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Ernest J. Conti is suspended, with pay, effective immediately, from his office of Justice of the Amsterdam Town Court, Montgomery County, pending disposition of his request for review of a determination of the State Commission on Judicial Conduct.

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


text:
    In the Matter of Jerome D. Cohen.
    Decided April 24, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that the suspension of Honorable Jerome D. Cohen from his office of Justice of the Supreme Court, Second Judicial District, pursuant to NY Constitution, article VI, § 22 (f), (g) and Judiciary Law, § 44 (8) (b), (c), is terminated and that he shall be paid his salary for the period of his suspension without pay.

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


text:
    In the Matter of Bertram R. Gelfand.
    Decided April 27, 1987
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Bertram R. Gelfand is suspended, with pay, effective immediately, from his office of Surrogate, Bronx County, pending disposition of his request for review of a determination of the State Commission on Judicial Conduct.

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


text:
    In the Matter of L. L-M., Appellant, v A.J.J.M., Respondent. Bankers Trust Company, Respondent.
    Argued March 18, 1987;
    decided April 28, 1987

      APPEARANCES OF COUNSEL

      Sally Weinraub, Morton Alpert and Jose T. Moscoso for appellant.

      Alan R. Katz for respondent.
   OPINION OF THE COURT

Memorandum.

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

The motion to hold respondent Bankers Trust Company in contempt was properly denied. Assets of the United Nations Joint Staff Pension Fund, held by the bank, as draweepayor, are immune from seizure pursuant to an order of a court of this State under the doctrine of sovereign immunity (Matter of Means v Means, 60 Misc 2d 538, citing Matter of United States of Mexico v Schmuck, 294 NY 265). The United Nations has not waived immunity, and the bank, in response to a subpoena for information, has already divulged to petitioner that her husband, the beneficiary of the pension and a judgment debtor against whom she seeks to enforce an order of support, has none of his own funds on deposit with it.

Petitioner’s remaining contention on this appeal — that at some point the United Nations funds on deposit with respondent lose their immunity because they become "finally paid” by the bank (UCC 4-213) and take on a character of a debt owed directly to the judgment debtor capable of garnishment — was not timely raised before the court of original instance, and thus has not been preserved for our review.

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

Order affirmed, with costs, and certified question answered in the affirmative in a memorandum.


text:
    Patricia J. Partlow, Appellant, v Bodo H. K. Kolupa, Respondent.
    Submitted March 20, 1987;
    decided April 28, 1987
    APPEARANCES OF COUNSEL

      Dirk A. Galbraith for appellant.

      Bruce G. Dean for respondent.
   OPINION OF THE COURT

Memorandum.

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

This is an action for conversion in which plaintiff seeks to recover silverware, or compensatory damages, and punitive damages from her former husband. She originally asserted the claim in the divorce action against him but in consideration of her husband withdrawing his answer and demand for a jury trial, and as part of the resolution of several other disputed matters, plaintiff executed a written stipulation with defendant in which she withdrew the conversion claim. The withdrawal was "without prejudice to the assertion by plaintiff of such claim and without prejudice to the assertion by defendant of any defense he may make against such claim of plaintiff in a subsequent trial upon the issues of 'equitable distribution’ should it be determined by the Court that such claim of plaintiff is properly maintainable at such trial.” After execution of the stipulation, defendant withdrew his answer, the court granted plaintiff a divorce by default and the parties proceeded to trial on the issue of equitable distribution to settle their property rights.

It is evident that the stipulation preserved plaintiff’s right to litigate the conversion claim only if she asserted it at the equitable distribution phase of the divorce action. Inasmuch as she did not present it to the court at that time, the present action is barred.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Scott Chilton, Respondent.
    Decided April 28, 1987

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney (Robert Mastrocola of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be affirmed.

The suppression court found a lack of probable cause to stop defendant’s van for alleged traffic infractions. On appeal, the County Court properly held that the legality of the stop should be measured against a reasonable suspicion standard (see, People v Sobotker, 43 NY2d 559; People v Ingle, 36 NY2d 413). It affirmed, however, stating that "[t]he objective facts and circumstances did not support the stop as a matter of law based on the evidence the town court had before it” (emphasis added).

Whether a police officer has the requisite reasonable suspicion to believe a defendant had been, is then or is about to be engaged in conduct in violation of the law is generally a mixed question of law and fact which can rarely be resolved as a matter of law (People v Harrison, 57 NY2d 470, 477-478; People v Sobotker, 43 NY2d 559, 563-564, supra). Although the County Court stated that it made its determination that no reasonable suspicion existed "as a matter of law,” it is evident that the court independently assessed the facts in its affirmance. Thus, County Court’s findings on this mixed question of law and fact render the issue beyond the review powers of this court (People v Harrison, supra).

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 Goodstein Construction Corp., Dic-Underhill Industries and Milstein Properties, a Joint Venture, Appellant, v Anthony Gliedman, as Commissioner of the New York City Department of Housing Preservation and Development, et al., Respondents.
    Argued March 16, 1987;
    decided April 28, 1987

      APPEARANCES OF COUNSEL

      Charles G. Moerdler, Edward Tessler, Elizabeth A. Mullins and Elizabeth A. Sherwin for appellant.

      Peter L. Zimroth, Corporation Counsel (June A. Witterschein, Leonard Koerner, Jeffrey Schanback and Steven Anderson of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs. We agree with the reasoning of the Appellate Division that while certain of the alleged conduct may, as we have held (see, Goodstein Constr. Corp. v City of New York, 67 NY2d 990) give rise to a breach of contract action, such allegations do not simultaneously provide a clear legal right to article 78 relief.

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


text:
    The People of the State of New York, Appellant, v Lance Duggan, Respondent.
    Decided April 28, 1987

      APPEARANCES OF COUNSEL

      Stephen F. Lungen, District Attorney (Frank J. Labuda of counsel), for appellant.

      John M. Diuguid for respondent.
   OPINION OF THE COURT

Memobandum.

The order of the County Court should be affirmed.

Defendant was arrested and charged with driving while intoxicated and speeding. A Huntley hearing was held before a Village Justice and on April 28, 1986 the DWI charge was dismissed. The People attempted to appeal that decision to County Court on May 28, 1986 by sending an affidavit of errors, the stenographic transcript, and a memorandum of law to the chambers of a County Court Judge. They were transmitted to the court clerk on June 3, 1986. Thereafter, on defendant’s motion, the appeal was dismissed for failure to timely file a notice of appeal.

It is undisputed that the underlying proceedings in the Village Court were stenographically recorded and transcribed. Thus, the People were required to follow the provisions of CPL 460.10 (2) on their appeal to the County Court. The filing of an affidavit of errors, the stenographic transcript and a memorandum of law with the Judge’s chambers of the County Court did not comply with the mandate of CPL 460.10 (2) which specifically requires the filing of a notice of appeal with the local criminal court from which the appeal is taken.

Contrary to the People’s assertion, CPL 460.10 (6) would not excuse their noncompliance with the statute. That section provides that an appellate court may, in the interest of justice, deem a notice of appeal, an affidavit of errors, or an application for leave to appeal valid when it is premature or when it contains "an inaccurate description of the judgment, sentence or order being or sought to be appealed”. It also allows an appellate court to order service of process on a respondent who, through inadvertence, has not been previously served, but only "[wjhere an appellant files a notice of appeal within the prescribed period”. Because appellant raises no issue concerning premature papers or inaccurate descriptions of the "judgment, sentence or order” and because a notice of appeal was not filed within the prescribed period, CPL 460.10 (6) is inapplicable.

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 Joseph J. Libra, Appellant, v University of the State of New York et al., Respondents.
    Decided April 28, 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 unanimous order of the Appellate Division absent direct involvement of a substantial constitutional question, and upon the further ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Upper Delaware Avenue Association of Delmar, Inc., et al., Respondents, v Charles B. Fritts et al., Constituting the Zoning Board of Appeals of the Town of Bethlehem, Appellants.
    Submitted March 2, 1987;
    decided April 28, 1987
   On the court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie as of right from the Appellate Division order of reversal, absent a dissent by at least two Justices on a question of law or the direct involvement of a substantial constitutional question (CPLR 5601, as amended by L 1985, ch 300, § 1). Motion for leave to appeal denied.


author: Alexander, J.

text:
    In the Matter of Morris Investors, Inc., et al., Respondents, v Commissioner of Finance of the City of New York, Appellant.
    Argued March 24, 1987;
    decided April 30, 1987

      APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Joel A. Newman, Glenn Newman and Stanley Buchsbaum of counsel), for appellant.

      Morton Kaner for respondent.
   OPINION OF THE COURT

Memorandum.

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

On August 15, 1983 — the last day of the four-month limitations period for seeking review of a real property tax deficiency assessment — petitioners commenced an article 78 proceeding to challenge a deficiency assessed against them. Respondent Commissioner moved to dismiss the proceeding because, prior to its commencement, petitioners had failed to deposit the amount of the tax deficiency or post an undertaking, as required by Administrative Code of the City of New York § II46-7.0 (now § 11-2107); respondent’s motion, however, was never actually submitted to the court. The court sua sponte dismissed the petition, "without prejudice and with leave to renew,” on the ground that the proceeding should have been commenced by order to show cause rather than notice of petition. Petitioners deposited the tax and posted the bond and thereafter, on October 19, 1983, commenced the present article 78 proceeding by order to show cause. Respondent again moved to dismiss based upon petitioners’ failure to comply with Administrative Code § II46-7.0 before the first proceeding. Special Term denied the motion on the ground that, under CPLR 205 (a), petitioners were permitted an additional six months after dismissal of the first suit in which to commence a new proceeding. The Appellate Division, by a divided court, affirmed and granted leave to appeal on a certified question.

"If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same transaction or occurrence * * * within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.” (CPLR 205 [a].) This section may be applied in article 78 proceedings (see, CPLR 105 [b]; Matter of Day Surgicals v State Tax Commn., 97 AD2d 865; Matter of Kinsella v Board of Educ., 64 AD2d 738). Respondent urges, however, that petitioners must be denied the benefit of the six-month grace period because they failed to deposit the tax or post an undertaking before serving their first petition, and the proceeding was therefore not "timely commenced” within CPLR 205 (a). We disagree.

CPLR 205 (a), a remedial provision protecting the right of litigants who have given timely notice of the assertion of their claims, "has its roots in the distant past” (Gaines v City of New York, 215 NY 533, 537 [Cardozo, J.]; see, 1 Weinstein-Korn-Miller, NY Civ Prac fl 205.01); "[i]ts broad and liberal purpose is not to be frittered away by any narrow construction.” (Gaines v City of New York, supra, at 539; George v Mt. Sinai Hosp., 47 NY2d 170, 177; Carrick v Central Gen. Hosp., 51 NY2d 242; see also, CPLR 104.) Here, petitioners’ first suit was actually "commenced” (CPLR 304) by service of process upon respondent; that service was made within the four-month limitations period specified by Administrative Code § II46-7.0 (see also, CPLR 217). Thus, the proceeding was "timely commenced” against respondent within the meaning of CPLR 205 (a). That the first proceeding may have been defective for failure to deposit the tax or post a bond does not put it beyond the saving provision of CPLR 205 (a). The statute by its very terms comes into operation in instances where a proceeding has been terminated for some fatal flaw unrelated to the merits of the underlying claim (see, George v Mt. Sinai Hosp., supra, at 177-179), and it is to be liberally construed.

Nor can we agree with respondent that the failure to deposit the tax or post a bond within four months is a condition precedent that nullifies the underlying right to bring an action (see, Siegel, NY Prac § 34). To be distinguished from the Administrative Code provisions in issue here — which specify no particular time limitation for the deposit or undertaking apart from the four-month limitations period for commencement of article 78 proceedings generally — are situations where a right to seek relief is specifically conditioned upon compliance with a particular time requirement rather than, or in addition to, a Statute of Limitations (see, e.g., Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256; Bernardez v Federal Deposit Ins. Corp., 104 AD2d 309, affd for reason stated in App Div mem 64 NY2d 943). Here, the condition of a deposit or undertaking is linked only to the statutory limitations period for bringing suit, and thereby becomes subject to CPLR 205 (a).

Finally, allowing petitioners the six-month grace period provided by CPLR 205 (a) does not undermine the "pay first, litigate later” scheme of tax litigation (dissent, at 937). Taxpayers still must prepay the disputed tax, including interest and penalties, before their actions may be maintained. If indeed the Legislature fears the dire consequences foreseen by the dissent from application of CPLR 205 (a) to this situation, then it lies wholly within the legislative province to make explicit an intention and requirement that the deposit and undertaking themselves be made within a specified time as a condition precedent to suit. Otherwise, a prelitigation requirement tied only to the Statute of Limitations for the underlying action may fall within the liberally construed purview of CPLR 205 (a).

Alexander, J.

(dissenting). In my view, the majority’s holding that CPLR 205 (a) affords petitioners six additional months in which to deposit the amount of a disputed tax or an undertaking in such amount, notwithstanding the contrary provision of section II46-7.0 of the Administrative Code of the City of New York (now § 11-2107), which imposes as a strict condition precedent to judicial review the requirement of depositing the tax or undertaking within four months of receiving notice of the determination of liability, undermines the carefully constructed scheme of the city’s real estate transfer tax law and eviscerates the long-recognized public policy of securing the prompt payment of taxes. I therefore respectfully dissent.

It is a long-accepted premise that a taxpayer challenging an assessment against him may do so only after he has first paid the tax, and we have repeatedly recognized the propriety, indeed necessity, of conditioning the right to judicial review of a determination of tax liability on prepayment of the disputed tax (Matter of Sterling Estates v Board of Assessors, 66 NY2d 122, 125; Grant Co. v Srogi, 52 NY2d 496, 516; Press v County of Monroe, 50 NY2d 695, 704; Harcel Liqs. v Evsam Parking, 48 NY2d 503, 507; Matter of Parsons v State Tax Commn., 34 NY2d 190, 197; see also, Flora v United States, 357 US 63; Dodge v Osborn, 240 US 118; Bull v United States, 295 US 247; see generally, 58 NY Jur, Taxation, § 73). This "pay first, litigate later” condition precedent is soundly predicated upon the axiom that governments need funds to function. The very functioning of government relies on the timely collection of taxes, and just as impermissible "[restraints on the exercise of the taxing power * * * impede the progress of government and deprive it of the moneys it needs to provide essential services to the public” (Grant Co. v Srogi, 52 NY2d, at 516), so does enabling extended delay in the collection of taxes.

As authorized by Tax Law § 1243 (a), the City has expressly and unequivocally established the exclusive procedure for obtaining judicial review of determinations of tax liability assessed under Administrative Code, chapter 46, title II (real property transfer tax [now ch 21]) and has provided in section II46-7.0, as here pertinent, that "the determination of the director of finance shall be reviewable * * * by a proceeding under article seventy-eight of the civil practice law and rules if application therefor is made to the supreme court within four months after the giving of the notice of such determination [and that such a proceeding] shall not be instituted unless: (a) the amount of any tax sought to be reviewed, with penalties and interest thereon, if any, shall be first deposited with the director of finance * * * or (b) at the option of the applicant [an] undertaking filed with the director of finance * * * in a sum sufficient to cover the taxes, penalties and interest thereon * * * in which event the applicant shall not be required to deposit such taxes, penalties and interest as a condition precedent to the application” (emphasis supplied).

Significantly, language identical to that found in section II46-7.0 (see, Tax Law § 1138) has been construed consistently as a strict condition precedent to judicial review (see, M&R Rubbish Removal v Spaterella, 112 AD2d 202; Matter of Morania Oil Tanker Corp. v State Tax Commn., 103 AD2d 965, 966; Matter of Massa v State Tax Commn., 102 AD2d 968; Matter of Top Tile Bldg. Supply Corp. v State Tax Commn., 94 AD2d 885, appeal dismissed 60 NY2d 653; Matter of Penney Co. v State Tax Commn., 86 AD2d 705 [noncompliance with the prepayment condition precedent is not correctable nunc pro tunc], lv denied 56 NY2d 507; cf., Matter of Day Surgicals v State Tax Commn., 97 AD2d 865). Manifestly, the timeliness of prepayment of the tax or undertaking is the operative concern in defining the requirement as a condition precedent. By expressly mandating that a review proceeding must be instituted within four months of notice of the determination and may not be instituted unless the tax or undertaking is deposited first, and by describing this requirement explicitly as a "condition precedent”, section II46-7.0 evinces the clear intent of the City Council, and the State Legislature (see, Tax Law § 1243 [a]), that taxpayers disputing the validity of assessments against them must post the tax or undertaking within four months, and may not delay payment while proceeding through the various stages of litigation (see, Matter of Levinsky v Kraut, 121 AD2d 723).

The majority’s reliance on Cohen v Pearl Riv. Union Free School Dist. (51 NY2d 256) to support its conclusion that section II46-7.0 does not preclude application of the tolling provision in CPLR 205 (a) without an explicit requirement that the deposit of the tax or undertaking be accomplished within a particular time period, independent of the four-month time limitation period for article 78 proceedings, is misplaced. In Cohen, we addressed the question whether the time period in which a claimant may serve a late notice of claim against a public corporation under General Municipal Law § 50-e (5) may be tolled during the infancy of the claimant in accordance with CPLR 208. We held that where the time for commencing an action on the claim (see, General Municipal Law § 50-i) is tolled under CPLR 208, there will be a concomitant tolling of the time during which a late notice of claim may be served (Cohen v Pearl Riv. Union Free School Dist., 51 NY2d, at 263, supra). Crucial to our decision in Cohen was the clear legislative intent expressed in General Municipal Law § 50-e (5) to specifically authorize the late filing of a notice, in the discretion of the court, so long as the extension "shall not exceed the time limited for the commencement of an action” (emphasis supplied). We concluded that the Legislature had made a "conscious choice” to describe the notice period with express and direct reference to the Statute of Limitations for claims against municipalities (see, General Municipal Law § 50-i) and to specifically provide that the court may take into account a tolling for infancy in calculating an appropriate extension in which to file a late notice of claim (General Municipal Law § 50-e [5]; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d, at 263-264, supra).

No such "conscious choice” is discernible here. Indeed, the language in section II46-7.0 (and Tax Law § 1243 [a]), and the underlying policy reason for demanding prepayment of the tax as a condition precedent, strongly evince a contrary intent. Section II46-7.0 specifically provides that a review proceeding must be instituted in the Supreme Court within four months of receipt of notice of the determination, even though the CPLR already prescribes a four-month limitation period for commencement of article 78 proceedings (see, CPLR 217). Inclusion of the additional language indicates a legislative intent to establish a four-month period, independent of the limitation period of article 78 proceedings and unencumbered by tolling provisions ordinarily applicable under the CPLR, as the time within which petitioners must deposit the tax or undertaking. Furthermore, neither chapter 46, title II, nor Tax Law § 1243 (a), provide for an extension or tolling of the four-month period in which to deposit the required tax or undertaking, and it is clear that section II46-7.0 (and another section not relevant here) is the exclusive remedy available to dispute a determination of tax liability under chapter 46, title II (see, § II46-10.0 [now § 11-2110]). The conclusion implicit in the majority’s holding, that by requiring taxpayers to post the tax or undertaking before instituting a review proceeding, section II46-7.0 intends thereby only that the act of payment be accomplished before commencement of the proceeding — no matter when that proceeding is instituted — fails to give effect to " 'the spirit and purpose of the act and the objects to be accomplished’ ” (Ferres v City of New Rochelle, 68 NY2d 446, 451, citing People v Ryan, 274 NY 149, 152; see also, Matter of Lower Manhattan Loft Tenants v New York City Loft Bd., 66 NY2d 298, 304; Sanders v Winship, 57 NY2d 391, 396; Abood v Hospital Ambulance Serv., 30 NY2d 295, 298 [literal language of statute where it does not express statute’s manifest intent need not be adhered to]).

The very purpose of the prepayment requirement is to ensure not only actual payment of the disputed tax, but the prompt deposit of either the tax or an undertaking by those interested in disputing the validity of the assessment. To import the tolling provision of CPLR 205 (a) into section 1146-7.0 is to impermissibly allow delay of the payment of taxes for an additional six months or more, and to eviscerate the essential purpose of the prepayment requirement thereby confounding the City’s ability to execute its fiscal planning. Those considerations underlying the broad remedial purposes of CPLR 205 (a) (see, Carrick v Central Gen. Hosp., 51 NY2d 242; George v Mt. Sinai Hosp., 47 NY2d 170; Gaines v City of New York, 215 NY 533, 537; 1 Weinstein-Korn-Miller, NY Civ Prac If 205.12; cf., Markoff v South Nassau Community Hosp., 61 NY2d 283) have no application here. The prepayment requirement is premised on the timing of its occurrence and has no meaning without reference to the rationale for which it is imposed. That the City Council intended to further the public policy of prompt and certain collection of taxes and to make the payment of the tax requirement a condition precedent beyond the reach of CPLR 205 (a) is clear.

The order of the Appellate Division should therefore be reversed.

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

Order affirmed, etc.

      .The City of New York, acting through its local legislative body, is empowered by the State Legislature to impose and collect certain local taxes (see, Tax Law § 1201).

      .The language of section II46-7.0 of the Administrative Code closely parallels the language of Tax Law § 1243 (a) from whence it was derived. Tax Law § 1243 (a) provides that, as a condition precedent to judicial review of any final determination of the amount of any local tax payable under Tax Law § 1201 (such as the instant City tax), the petitioner must deposit the tax or post a bond before instituting an article 78 proceeding.

      .The majority also cites to Bernardez v Federal Deposit Ins. Corp. (104 AD2d 309, affd for reason stated in App Div mem 64 NY2d 943). Bernárdez, however, confirms that CPLR 205 (a) does not save an action dismissed for failure to comply with a condition precedent. It therefore is consistent with and supports the conclusion that under a proper interpretation the language and rationale for section II46-7.0 of the Administrative Code of the City of New York, petitioner’s challenge is untimely.

      .CPLR 205 (a) provides: "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff * * * may commence a new action upon the same transaction or occurrence * * * within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action.”

      .The six additional months afforded in CPLR 205 (a) begin to run from the dismissal of the proceeding, which may occur at any time during the litigation and not necessarily, as here, soon after the four-month period has expired, thereby allowing for the extension of the period for payment well beyond 10 months.