text:
    The People of the State of New York, Respondent, v James McDonald, Appellant.
    Submitted December 15, 1986;
    decided January 8, 1987
   Motion for reargument of appeal dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 68 NY2d 1.]

Judge Bellacosa taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Christopher M. Murphy, Appellant, v William A. Danaher, Jr., as Chemung County Judge, et al., Respondents.
    Submitted November 3, 1986;
    decided January 8, 1987
   Motion for leave to appeal denied. Motion for the court to consider certain nonrecord material in connection with petitioner’s motion for leave to appeal denied (Cohen and Karger, Powers of the New York Court of Appeals § 181, at 680; see, Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 298).

Judge Bellacosa taking no part.


text:
    John Shewchun, Appellant, v American Express, Travel Related Service, Inc., Respondent. (And Another Action.)
    Submitted December 8, 1986;
    decided January 8, 1987
   On the court’s own motion, appeal dismissed upon the ground that it does not lie (NY Const, art VI, § 3 [b]; CPLR 5601). Motion for leave to prosecute the appeal as a poor person dismissed as academic.


text:
    Gertrude Weinstein, as Executrix of Selma S. Hohenstein, Deceased, et al., Respondents, v Walter P. Hohenstein, Appellant, et al., Defendants.
    Submitted October 27, 1986;
    decided January 8, 1987
   Motion for leave to appeal and for a stay granted.

Judge Bellacosa taking no part.


text:
    In the Matter of the Arbitration between Benjamin J. Denihan, Petitioner, Arthur J. Bresciani, Jr., et al., Appellants, and Michael G. Denihan, Respondent.
    Decided January 15, 1987

      APPEARANCES OF COUNSEL

      Julius Mager for Arthur J. Bresciani, Jr., and others, appellants.

      Edmund F. Wolk for 3 Mitchell Place, Inc., appellant.

      Alan M. Lebensfeld for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. Insofar as the Appellate Division dismissed petitioner’s application to stay arbitration, we affirm for the reasons stated in the opinion by Justice Leonard H. Sandler (119 AD2d 144). To the extent that the Appellate Division granted an injunction pending determination of the issues raised in the arbitration, we conclude that the Appellate Division did not abuse its discretion.

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


text:
    The People of the State of New York ex rel. Kenneth Goss, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.
    Decided January 15, 1987

      APPEARANCES OF COUNSEL

      Daniel J. Weinstein and Norman P. Effman for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum at the Appellate' Division only insofar as it concludes that habeas corpus does not lie (116 AD2d 968).

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


text:
    In the Matter of Abraham Goldfinger, Respondent, v Leo Lisker, Appellant.
    Submitted January 5, 1987;
    decided January 15, 1987


text:
    Eugenia Griffith, an Infant, by Her Mother and Natural Guardian, Margaret Griffith, et al., Appellants, v City of New York et al., Respondents.
    Submitted December 8, 1986;
    decided January 15, 1987
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the order denying plaintiffs’ motion to renew and reargue, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied.


text:
    Eugenia Griffith, an Infant, by Her Mother and Natural Guardian, Margaret Griffith, et al., Respondents, v City of New York et al., Respondents, and New York City Housing Authority, Appellant.
    Submitted December 15, 1986;
    decided January 15, 1987
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed the order denying defendant Housing Authority’s motion to renew and to reargue, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal otherwise denied.


text:
    In the Matter of General Electric Company, Respondent, v Town of Salina et al., Appellants.
    Decided December 19, 1986
    APPEARANCES OF COUNSEL

      Carter H. Strickland for Town of Salina, appellant.

      Dennis G. O’Hara for Board of Education of the Liverpool Central School District, appellant.

      H. Dean Heberlig, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this tax certiorari proceeding (RPTL 706), the Town of Salina, the Board of Assessment Review and the School District appeal from an Appellate Division order affirming the trial court’s reduction of assessments based on a finding that petitioner General Electric sustained its burden of proving that the assessments for the 1982-1983 and 1983-1984 tax years of its large integrated multibuilding industrial complex were erroneous due to an excessive appraisal of the property’s market value. Despite the difficulties of computing the market value of large industrial complexes, the market value method of valuation is preferred as the most reliable measure of a property’s full value for assessment purposes (see, RPTL 305; Grant Co. v Srogi, 52 NY2d 496, 510; G.R.F., Inc. v Board of Assessors, 41 NY2d 512, 513), and where, as here, evidence of a recent sale price is lacking, market value may be determined with reference to recent sales of comparable properties (Matter of Merrick Holding Corp. v Board of Assessors, 45 NY2d 538; Matter of Great Atl. & Pac. Tea Co. v Kiernan, 42 NY2d 236). While we have expressed a strong preference that such comparables be within close geographic proximity to the property to be appraised, it is for the trial court to determine in the exercise of its sound discretion, whether or not a local market exists for the type of property at issue, and if not, whether there is a broad regional market from 'yvhich comparables may be selected. Where there is support in the record for such findings, it may not be said that reliance on sales beyond the immediate vicinity of the subject property is inappropriate as a matter of law. (Matter of Great Atl. & Pac. Tea Co. v Kiernan, supra, at p 241).

The preference for appraising property based upon local comparables does not necessarily require that large integrated multibuilding industrial complexes, which do not have a local market as a single entity, be subdivided into smaller entities and evaluated on the basis of comparison to local properties similar to the subdivisions (see, e.g., Matter of Xerox Corp. v Ross, 71 AD2d 84, lv denied 49 NY2d 702). The determination of whether to value an integrated multibuilding industrial property as a single entity or as an aggregate of several subdivided entities is essentially a factual determination of the most economically and physically feasible use of the complex, and whether the taxing authority should assess such properties on the basis of a subdivision theory depends upon the circumstances of the particular case and the evidence offered in support of the proposition that the particular facility could be subdivided and sold in parts. As we observed in Great Atl. & Pac. Tea Co. (supra, at p 242) "[t]he ordinary or general rule should not blind us to the fact that the ultimate purpose of valuation, whether in eminent domain or tax certiorari proceedings, is to arrive at a fair and realistic value of the property involved”.

Here, the Appellate Division has affirmed the trial court’s finding that the best use of the General Electric property for assessment purposes was as a single entity because its buildings are fully integrated and dependent upon a privately owned centralized utility system, that the regional comparables relied upon under this theory were sufficiently similar to serve as a guide to the market value of the General Electric complex, notwithstanding differences between these comparables and the General Electric property, that the Board submitted no evidence in support of its subdivision theory such as the cost of converting the complex into separate subdivisions, and that the Board’s local comparables on which it based its valuation were not comparable to any of the purported subdivisions of the complex. The determination of market value is essentially a factual matter (Matter of Shubert Org. v Tax Commn., 60 NY2d 93, 97; Grant v Srogi, 52 NY2d 496, 510, supra) and thus, where, as here, the Appellate Division has affirmed the factual findings of value, which are supported by evidence in the record as a whole, they are beyond our power of review (Matter of Adirondack Mountain Reserve v Board of Assessors, 64 NY2d 727, 728; Matter of Seagram & Sons v Tax Commn., 14 NY2d 314, 317).

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

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


text:
    In the Matter of Thomas L. Jacobs, as Commissioner of the New York City Probation Department, Appellant, v Herbert Altman, as Justice of the New York County Supreme Court, Criminal Term, et al., Respondents.
    Argued January 8, 1987;
    decided January 20, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Helen P. Brown and June A. Witterschein of counsel), for appellant.

      Robert Abrams, Attorney-General (Charles C. Davis, Jr., O. Peter Sherwood and Howard L. Zwickel of counsel), for Herbert Altman, Justice of the New York County Supreme Court, Criminal Term, respondent.

      Michele Maxian and Caesar D. Cirigliano for John Santana, respondent.

      Anthony James, respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division dismissing the petition should be affirmed.

The extraordinary remedy of prohibition lies only where there is a clear legal right, and only when a court acts or threatens to act either without jurisdiction or in excess of its authorized powers in a proceeding over which it has jurisdiction (Matter of Rush v Mordue, 68 NY2d 348, 352; Matter of State of New York v King, 36 NY2d 59, 62). Even in those rare circumstances where an arrogation of power would justify engaging the judicial process in collateral intervention and summary correction, the writ of prohibition does not issue as of right but only in the sound discretion of the court (Matter of Rush v Mordue, supra, at p 354; La Rocca v Lane, 37 NY2d 575, 579). Plainly the court had jurisdiction to entertain the criminal actions before it and the authority to issue orders relating to the disposition of those actions. Prohibition is generally not available to collaterally review an arguable error of law committed in a pending criminal action (Matter of Gold v Gartenstein, 54 NY2d 627; Matter of State of New York v King, supra) or to challenge an illegal sentence (see, People ex rel. Pritchard v Harris, 82 AD2d 842, lv denied 54 NY2d 608). Our determination today should not be read as passing in any way upon the merits of petitioner’s contention that the court has acted improperly, for we merely hold that the extraordinary writ of prohibition is an inappropriate means to address the claimed error.

Nor is it appropriate in the procedural posture of this case to convert this special proceeding to a declaratory judgment action where the District Attorney’s office, an integral participant in the underlying criminal actions (see, e.g., CPL 220.10) and an entity with a significant interest in this proceeding, is not before the court (CPLR 103 [c]; cf. Matter of Morgenthau v Roberts, 65 NY2d 749, 751; Matter of Morgenthau v Erlbaum, 59 NY2d 143, cert denied 464 US 993).

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

Judgment affirmed, without costs, in a memorandum.


text:
    In the Matter of Robert M. Morgenthau, as District Attorney of New York County, Respondent, v Jay Gold, as Judge of the Criminal Court of the City of New York, et al., Appellants, and Legal Aid Society, Intervenor-Appellant.
    Argued January 14, 1987;
    decided January 20, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Jane Levine, Lawrence S. Kahn, O. Peter Sherwood and Colvin W. Grannum of counsel), and Douglas S. Liebhafsky, Bernard W. Nussbaum and Richard H. Weiss for Jay Gold, Judge of the Criminal Court of the City of New York, appellant.

      Steven G. Asin and Caesar Cirigliano for Legal Aid Society, intervenor-appellant.

      Robert M. Morgenthau, District Attorney (Susan Corkery and Amy jane Rettew of counsel), respondent pro se.

   OPINION OF THE COURT

Order reversed, without costs, and petition dismissed upon the ground that mandamus does not lie absent a clear right in petitioner to the relief sought.

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


text:
    County of Nassau, Appellant, v Mario M. Cuomo, as Governor and Chief Executive Officer of the State of New York, et al., Respondents, and New York State Division of Parole, Intervenor-Respondent.
    Argued January 13, 1987;
    decided January 20, 1987

      APPEARANCES OF COUNSEL

      James M. Catterson, Jr., William H. Pauley, III, and Margaret Gibbons-Trefny for appellant.

      Robert Abrams, Attorney-General (David A. Smith, O. Peter Sherwood, Ann Horowitz and Howard Zwickel of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed for the reasons stated by the Appellate Division (121 AD2d 428).

The Appellate Division declared that the county is obliged to accept for detention all alleged parole violators whose parole is supervised in Nassau County. However, Executive Law § 259-i (3) (a) (i) unambiguously provides that Nassau County is responsible for lodging alleged parole violators arrested within the county. Thus, that portion of the declaration should be modified to compel the county to accept for detention all alleged parole violators who are arrested within Nassau County.

The courts below reached their considered decisions concerning the number of days after which the State must accept prisoners based upon a period measured from sentencing (see, Crespo v Hall, 56 NY2d 856; CPL 430.20 [1]), rather than from the date of State-readiness (see, Correction Law §§ 600-a, 601). Both parties now urge for the first time before this court that the State’s obligation to accept a prisoner "forthwith” (CPL 430.20) commences when the prisoner becomes State-ready, rather than upon sentencing, and ask us to determine the lawful period measured from the date of State-readiness. We cannot, however, consider such an issue for the first time on appeal.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Fertico Belgium, S. A., Appellant, v Phosphate Chemicals Export Association, Inc., Respondent.
    Submitted December 15, 1986;
    decided January 20, 1987
   Motion to limit issues on appeal denied.


text:
    Henry Modell and Co., Inc., Appellant, v Ministers, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent.
    Submitted January 5, 1987;
    decided January 20, 1987
   Motion for recall of remittitur and for reargument denied, with $20 costs and necessary reproduction disbursements. [See, 68 NY2d 456.]

Judges Kaye and Alexander taking no part.


text:
    Jacob Kaufman, as a Named Executor of Gussie Kaufman, Deceased, Appellant, v Montefiore Medical Center, Respondent.
    Decided January 20, 1987
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department. A direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Long Island Savings Bank, Appellant, v Alice Savage, Individually and as Administratrix of the Estate of Roxanna Edwards, Deceased, et al., Respondents.
    Argued January 8,1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Robert F. Meehan and Debra R. Wolin for appellant.

      Jeff L. Greenup and Fred L. Wallace for Alice Savage, respondent.
    Francine J. Robinson, as administratrix of the estate of Frances Blackman, deceased, and Herman Dell Farrar, as Executor of Irene Farrar, deceased, respondents, precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (116 AD2d 512).

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


text:
    In the Matter of Walter A. Engel, Jr., Appellant, v Calgon Corporation, a Subsidiary of Merck & Co., Inc., et al., Respondents.
    Submitted January 9, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      James W Cooper for appellant.

      William A. Carmell, Richard J. Reibstein and Joy D. Oberman for Galgón Corporation, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Presiding Justice A. Franklin Mahoney at the Appellate Division (114 AD2d 108; see also, Matter of Guimarales [New York City Bd. of Educ. — Roberts], 68 NY2d 989).

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


text:
    In the Matter of Craftmatic Comfort Manufacturing Corp., Respondent, v New York State Tax Commission, Appellant.
    Argued January 5, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Francis V. Dow, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant.

      Charles B. Chernofsky for respondent.
   OPINION OF THE COURT

Judgment reversed, with costs, and determination of the State Tax Commission reinstated for the reasons stated in the dissenting memorandum by Justice Paul J. Yesawich, Jr., at the Appellate Division (118 AD2d 995, 997-998).

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


text:
    In the Matter of Robert Rowe, a Suspended Attorney and Counselor-at-Law, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Argued January 12, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Robert Rowe, appellant pro se.

      Mark F. Dewan and Robert H. Straus for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In view of the fact that the petitioner was found not guilty by reason of mental disease or defect, as a result of which he is still receiving court-ordered psychiatric care, and the additional fact that the affidavit of his own psychiatrist is not sufficient to raise an issue of fact in support of his mental fitness to practice law, the Appellate Division did not abuse its discretion in denying the application without a hearing.

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Halim Mehmedi, Respondent.
    Argued January 5, 1987;
    decided February 10, 1987
    APPEARANCES OF COUNSEL

      John J. Santucci, District Attorney (Michael O’Brien of counsel), for appellant.

      Anthony V. Lombardino for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted and tried on charges of weapons possession as a result of driving a car in which two loaded, unlicensed guns were found pursuant to a lawful stop and search by police. According to the testimony of the police officer, the search for the guns was predicated on a police officer’s observation of bullets in the console compartment between the front seats which were exposed to his view when the defendant opened the console to look for the car’s registration. The defendant denied that he opened the console and claimed that he had no knowledge that the guns were in the car, which belonged to his brother. After deliberations had commenced, the court received the following inquiry from the jury: "when searching for papers who opened the console[?]” The court reconvened the attorneys, the record reflecting the presence of the defense counsel and the prosecutor but the absence of the defendant. The jury was not returned to the courtroom. The court consulted with counsel in framing the answer to the jury’s question and, over defense counsel’s objection to the wording of the response, it sent a written note to the jury stating: "The police officer said the defendant did. The defendant denies it”. Defense counsel did not object to the failure to return the jury to the courtroom or to defendant’s absence from the proceedings. On the appeal, the Appellate Division reversed and ordered a new trial because the court had proceeded to instruct the jury in the absence of the defendant.

CPL 310.30 provides that, when a deliberating jury requests additional instructions, the court must return the jury to the courtroom and, after proper notice to counsel "and in the presence of the defendant”, give such requested information or instructions as the court deems proper. The People concede the court erred in proceeding contrary to CPL 310.30 and that its error presents a question of law even in the absence of objection (see, People v Ciaccio, 47 NY2d 431, 436-437). They contend, however, that the error was harmless (see, e.g., People v Mullen, 44 NY2d 1; People ex rel. Lupo v Fay, 13 NY2d 253).

Failure to comply with the statutory mandate of CPL 310.30 results in a substantial departure from a statutory provision that affects " 'the organization of the court or the mode of proceedings prescribed by law’ ” (see, People v Ahmed, 66 NY2d 307, 310). Thus, even though counsel may have consented to the procedure, an issue of law is presented for our review.

A defendant has a fundamental right to be present at all material stages of a trial (see, People v Ciaccio, 47 NY2d 431, 436, supra). CPL 310.30 makes a defendant’s right to be present during instructions to the jury absolute and unequivocal (see, CPL 310.30; People v Ciaccio, supra, pp 436-437). Because this defendant was absent during a material part of his trial, harmless error analysis is not appropriate (see, id.; cf. People v Mullen, 44 NY2d 1, supra [Trial Judge’s in-chambers questioning of juror]; People ex rel. Lupo v Fay, 13 NY2d 253, supra [defense argument for mistrial]).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Kenneth A. Kozlowski, Appellant.
    Argued January 7, 1987;
    decided February 10, 1987
    APPEARANCES OF COUNSEL

      Lawrence A. Porcari and Lawrence A. Porcari, Jr., for appellant.

      Carl A. Vergari, District Attorney (Joseph M. Latino and Anthony J Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Appellate Term should be affirmed.

While driving at 3:50 a.m. on May 3, 1983, defendant was observed by a fellow motorist leaving the roadway, striking two fences and a utility pole, and severely damaging his vehicle. The motorist followed defendant to a house, saw him leave the car — unsteadily—and enter the house, and then called the police. He thereafter accompanied the police officer to defendant’s house and pointed out the vehicle, which was parked in the driveway in open view from the street. Investigating the report, the officer walked up the driveway and onto an open-ended porch. He opened the screen door in order to knock on the front door and knocked loudly, and defendant (identified as the driver) came to the door. Defendant (described by the officer as having a strong odor of alcohol on his breath, glassy, bloodshot eyes, slurred speech and unsteady gait) told the officer that he had been drinking, that he had lost control of his car and hit the fences and pole, that he had left the scene and would pay for any damage caused. The officer then arrested defendant for driving while intoxicated and leaving the scene of a property damage accident. The officer apparently entered the house in the course of the arrest. Defendant’s motion to suppress all incriminating evidence, on the basis of article I, section 12 of the New York Constitution and the Fourth Amendment to the Federal Constitution, was denied without a hearing. After a Huntley hearing, the court also denied defendant’s motion to suppress his statements, and defendant pleaded guilty to both charges. The judgment of conviction was affirmed by Appellate Term.

The major thrust of defendant’s argument on this appeal is that, by arresting him at the threshold of his home or in his home, the People violated Payton v New York (445 US 573) (see, 2 La Fave, Search and Seizure § 6.1, at 161, n 61.5 [1986 Supp]). Payton precludes the introduction of evidence obtained as the result of a warrantless, nonconsensual entry into a suspect’s home in order to make an arrest. Here, however, the incriminating evidence was not the product of an illegal arrest; rather, it was obtained in the course of the officer’s investigation and before any arrest (see, Mapp v Ohio, 367 US 643). Nor were defendant’s constitutional rights violated when the officer investigating the reported traffic incident entered upon defendant’s property, knocked on the front door, and asked questions which defendant chose to answer. The police officer reached defendant’s front door by the means defendant had made available for public access to his house, and did not intrude into any area in which defendant had a legitimate expectation of privacy (see, California v Ciraolo, 476 US 207, 90 L Ed 2d 210; see also, Oliver v United States, 466 US 170, 177-178; United States v Santana, 427 US 38, 42). Absent evidence of intent to exclude the public, the entryway to a person’s house offers implied permission to approach and knock on the front door. Thus, where (as here) the police utilized an unobstructed access to defendant’s home for the purpose of making inquiry, no warrant was required by the State or Federal Constitution (see, 1 La Fave, Search and Seizure § 2.3, at 304-305).

Defendant having failed to raise any issue of fact regarding an improper search or seizure, the trial court correctly denied his suppression motion without a hearing.

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

Order affirmed in a memorandum.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Appellant, v Gilbert Ortega, Respondent.
    Argued January 9, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Mario Merola, District Attorney (Kevin D. McLoone and Jeremy Gutman of counsel), for appellant.

      Robert S. Dean and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was found not responsible for the crime of rape in the first degree by reason of mental disease or defect and was committed, in the custody of the Commissioner of Mental Health pursuant to CPL 330.20, to the Mid-Hudson Psychiatric Center, a secure facility. While a second retention order was in effect (CPL 330.20 [9]) defendant was transferred to the Bronx Psychiatric Center, a nonsecure facility, upon a showing that he did "not have a dangerous mental disorder” and that, "consistent with the public safety and welfare of the community and the defendant, the clinical condition of the defendant warranted] his transfer from a secure facility” to a nonsecure facility (CPL 330.20 [11]). While he was at the nonsecure facility he left without authorization and was thereafter indicted for escape in the second degree (Penal Law § 205.10) and escape in the third degree (Penal Law § 205.05). Supreme Court dismissed the indictment (127 Mise 2d 717) and the Appellate Division affirmed, without opinion.

We agree with the courts below that a nonsecure facility does not constitute a detention facility within the meaning of Penal Law § 205.00 (1) and that, therefore, defendant cannot be guilty of escape in the second degree (Penal Law § 205.10). As Supreme Court noted, after defendant was transferred to the Bronx Psychiatric Center upon the finding that he was no longer suffering from a "dangerous mental disorder” (CPL 330.20 [11]), the purpose of his custody in the Commissioner of Mental Health was no longer "security, confinement and prevention of escapes”, but "therapy and rehabilitation” (127 Misc 2d 717, 728, supra; see, People v Walter, 115 AD2d 52, 54). Nor do we read Penal Law § 205.05 in these circumstances to permit prosecution for escape in the third degree. The Legislature plainly did not intend to include such conduct within the scope of this crime; if it had, the Legislature could have indicated its intention in clear terms, as it did in the corresponding section defining escape in the second degree (see, Penal Law § 205.10 [1], [2], [3]).

Hancock, Jr., J.

(dissenting in part). I agree with the majority that an escape from a nonsecure facility by a CPL 330.20 defendant does not constitute the crime of escape in the second degree (Penal Law § 205.10). I would, however, modify the order of the Appellate Division by reinstating the count in the indictment charging escape in the third degree (Penal Law § 205.05) because escape from a nonsecure facility, while not amounting to escape in the second degree (Penal Law § 205.10), is an escape from the custody of the Commissioner of Mental Health, "a public servant pursuant to” an "order of a court” (Penal Law § 205.00 [2]), and hence constitutes the crime of escape in the third degree (Penal Law § 205.05; see, People v Walter, 115 AD2d 52, 55-56; People v Buthy, 85 AD2d 890). The references throughout CPL 330.20 to acquittees, whether committed to a secure facility (see, CPL 330.20 [8]) or nonsecure facility (see, CPL 330.20 [11]), as being in the "custody” of the Commissioner of Mental Health (see, e.g., CPL 330.20 [1], [6], [7], [8], [9], [10], [11], [12], [19]), the use of the word "escape” with reference to an acquittee who absconds (CPL 330.20 [10], [19]), and the use of the word "defendant” to describe an acquittee (see, CPL 330.20 [1]-[21]) all indicate that CPL 330.20 is to be read in the light of Penal Law article 205, and that the Legislature intended that escape from a nonsecure facility by a defendant in the "custody” of the Commissioner under CPL 330.20 should constitute escape in the third degree (Penal Law § 205.05). There is nothing in either CPL 330.20 or Penal Law article 205 evincing a contrary legislative intent.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Walter Shavers, Appellant.
    Argued January 13, 1987;
    decided February 10, 1987
    APPEARANCES OF COUNSEL

      Colleen P. Cassidy and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

At the time of defendant’s custodial interrogation, the interrogating officer had actual knowledge that defendant had been arrested and processed in the officer’s own precinct 6V2 months earlier on felony charges. Because the prior arrest was relatively recent and concerned felony charges, the officer was obligated to make further inquiry (People v Bertolo, 65 NY2d 111, 119; People v Smith, 54 NY2d 954). The determination of the suppression court, affirmed by the Appellate Division and supported by this record was that the officer’s inquiry, "Do you have an attorney”, to which the defendant answered, "no”, was sufficient to satisfy the People’s obligation. Under the circumstances of this case, it was reasonable for the officer to rely on defendant’s denial of counsel, and no additional inquiry was required (People v Lucarano, 61 NY2d 138).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Gary Rothman and Joseph Tekulve, Respondents.
    Argued January 8, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Carol Gette and Mark Dwyer of counsel), for appellant.

      Herald Price Fahringer and Diarmuid White for Gary Roth-man, respondent.

      Gino Josh Singer and Joseph R. Benfante for Joseph Tekulve, respondent.
   OPINION OF THE COURT

Orders affirmed for the reasons stated in the memorandum of the Appellate Division (117 AD2d 535).

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


text:
    Julius Tantleff, as Assignee of Jules Construction Corp., et al., Appellants, v Anthony Truscelli et al., Respondents.
    Argued January 12, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Howard M. Forman for appellants.

      Philip J. Fitzpatrick for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by the late Justice David T. Gibbons at the Appellate Division (110 AD2d 240).

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


text:
    Matthew Woods et al., Appellants, v City of New York et al., Respondents. State of New York, Intervenor-Respondent.
    Argued January 6, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Kenneth E. Gordon and James D. Bilik for appellants.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Lori Finsterwald and June A. Witterschein of counsel), for respondents.

      Robert Abrams, Attorney-General (Christopher Keith Hall, O. Peter Sherwood and Lawrence S. Kahn of counsel), for intervenor-respondent.
   OPINION OF THE COURT

Order insofar as appealed from affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (119 AD2d 469).

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


text:
    In the Matter of John Shirvell, Appellant, v Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued January 9, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Allen M. Kranz for appellant.

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

Judgment affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (117 AD2d 850).

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


text:
    The People of the State of New York, Respondent, v Perry Ford, Appellant.
    Argued January 12, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Henry Winestine and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in a six-count indictment with attempted murder in the first degree as the top count. The indictment was based on the defendant’s alleged attempt to rob a gas station with an accomplice, his alleged commandeering of a police car in which his captured accomplice was held and his shooting at the officer driving the car.

At trial, defendant interposed the defense of mental disease or defect under Penal Law former § 30.05. To rebut testimony on that issue, the prosecution introduced evidence that the defendant, in response to Miranda warnings, asserted his right to remain silent and requested an attorney. Over defense counsel’s generalized objections the People’s lines of inquiry were allowed. On appeal from his conviction, defendant contends that he was denied due process of law by the trial court’s rulings with respect to his silence and to his request for an attorney on the issue of his sanity. Defense counsel’s objection to the testimony in these respects did not adequately alert the Trial Judge to defendant’s present arguments so as to preserve those issues for our review.

Defendant also claims that an alleged pervasive use of the prosecutor’s peremptory challenges to excuse black prospective jurors violated his right to trial by an impartial jury and that the recently mandated procedural safeguards announced in Batson v Kentucky (476 US 79, 106 S Ct 1712) require a reversal and new trial. The instant case is before us on a grant of leave to appeal by a Judge of this court after reconsideration of a denial of that relief prior to the United States Supreme Court ruling in Batson (supra). Batson is not applicable to a case where the normal appellate process has been exhausted, as occurred here (People v Torres, 53 NY2d 213), and it is not mandated by Federal constitutional retroactivity principles (see, Allen v Hardy, 478 US —, 106 S Ct 2878; see also, Griffith v Kentucky and Brown v United States, 479 US —, 93 L Ed 2d 649).

Lastly, we do not consider defendant’s argument that inasmuch as Penal Law § 125.27 has been found unconstitutional Penal Law § 110.05 must also be deemed unconstitutional. This contention was improperly raised for the first time in appellant’s reply brief to this court (see, State Farm Fire & Cos. Co. v LiMauro, 103 AD2d 514, 521-522, affd 65 NY2d 369; 22 NYCRR 500.7 [a] [2] [prohibiting sur reply briefs]).

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

Order affirmed in a memorandum.


text:
    In the Matter of United Community Insurance Company, Appellant, v Shirley Mucatel, Respondent.
    Argued January 14, 1987;
    decided February 10, 1987

      APPEARANCES OF COUNSEL

      Lewis I. Wolf for appellant.

      Lawrence S. Cushner for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion of Justice Ira Gammerman at Special Term (127 Misc 2d 1045). Question certified not answered as unnecessary.

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


text:
    The People of the State of New York, Respondent, v Steven Minor, Appellant.
    Argued January 13, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      David B. Weisfuse and Stephen J. Pittari for appellant.

      Carl A. Vergari, District Attorney (Richard E. Weill and Anthony J. Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The defendant was indicted for selling drugs to an undercover police officer. At the trial he raised an entrapment defense which he sought to prove by testifying with respect to the statements made to him by the paid police informer who introduced him to the undercover officer. In each instance, however, the court sustained the prosecutor’s objection on the ground of hearsay and directed the jury to disregard any testimony concerning the informant’s statements.

As defense counsel noted at trial, the statements were admissible to show inducement and defendant’s state of mind, which was relevant to his contention that he "engaged in the proscribed conduct because he was induced or encouraged to do so by * * * a person acting in cooperation with a public servant, seeking to obtain evidence against him for purpose of criminal prosecution” (Penal Law § 40.05). The prosecutor’s contention that the defendant did not preserve this issue for review is without merit. All of the arguments which the defendant now makes on the appeal relevant to this point were presented to the court at the time he sought to have the evidence introduced.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Willie Rice, Appellant.
    Argued January 7, 1987;
    decided February 12, 1987
    APPEARANCES OF COUNSEL

      Hillard Wiese and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Michael H. Warren and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted on several charges, including murder in the second degree, attempted murder in the second degree and robbery, arising out of the stabbing of Jesse Horton and Lawrence Worley. Horton died of the wounds, but Worley survived the attack and died later in an unrelated subway incident. Defendant was acquitted of the attempted murder of Worley. The robbery charges were dismissed at the close of the People’s case, but defendant was convicted of the murder of Horton.

The Appellate Division affirmed the conviction, without opinion. Defendant on appeal urges that there should be a reversal and a new trial because he was deprived of his right to a fair trial by the misconduct of the prosecuting attorney in deliberately dissembling and telling half-truths for the purpose of misleading defense counsel into believing that Worley was still alive and subject to call as a witness when, as he well knew, Worley was dead. The truth concerning Worley came out during the trial in response to a question asked on cross-examination of one of the People’s witnesses.

The acts of the prosecutor constituted a serious violation of his duties as an attorney (see, e.g., Matter of Padilla, 109 AD2d 247, vacatur denied 67 NY2d 937; Code of Professional Responsibility, DR 7-102 [A] [3], [5]; [B] [2]) and as a prosecutor (see, ABA Standards for Criminal Justice, Prosecution Function, Standard 3-1.1; Code of Professional Responsibility, EC 7-13). Such conduct is reprehensible and cannot be condoned. Under the particular circumstances here, however, including the overwhelming evidence of defendant’s guilt, and the failure of defense counsel at trial or on appeal to identify any prejudice, we conclude that a reversal of the conviction is not warranted. We decline to adopt a per se rule that would require us to reverse the conviction.

Hancock, Jr., J.

(dissenting). The conduct of the prosecutor, in our opinion, amounted to nothing less than a blatant and reprehensible misrepresentation with respect to Worley, deliberately made for the purpose of falsely assuring both the court and defense counsel that Worley was alive and might be called as a witness.

The prosecutor’s role differs from that of a lawyer representing a private client. He "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done” (Berger v United States, 295 US 78, 88). "He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones” (id.) (see also, Code of Professional Responsibility, EC 7-13; ABA Standards for Criminal Justice, Prosecution Function, Standard 3-1.1). It is the prosecutor’s absolute "duty to correct what he knows to be false and elicit the truth” (People v Savvides, 1 NY2d 554, 557), for society gains "not only when the guilty are convicted but when criminal trials are fair” (Brady v Maryland, 373 US 83, 87).

By knowingly making a false statement of fact in violation of the Code of Professional Responsibility (see, DR 7-102 [A] [3], [5], [8]) and by deliberately continuing this fraud on the court and opposing counsel through evasive answers to both (see, DR 7-102 [B] [2]), the prosecutor induced defendant’s attorney to devise and execute a trial strategy based on a crucial circumstance which he knew did not exist — that the only eyewitness to the events prior to the stabbing of Horton was alive and available. It was not until the third day of the trial that Worley’s death was made known and defense counsel found that he had planned the defense, prepared for trial, and carried out the plan for trial based on a false premise. The extent of the damage done is unknowable. "We cannot speculate as to what strategy would have been utilized if [the witness’s] availability were made known, or whether it would have been successful. The issue does not turn on such considerations. A defendant should have the right fully, freely and properly to prepare his defense” (People v Jiminez, 79 AD2d 442, 445).

Egregious misconduct of this kind by the prosecutor " 'undermines confidence, not only in his profession, but in government and the very ideal of justice itself ” (Code of Professional Responsibility, EC 7-13, n 1, McKinney’s Cons Laws of NY, Book 29, Judiciary Law, pp 474-475), offends the dignity of the court and perverts the adversarial system. But worse, such behavior contradicts the purpose of the criminal justice system and deprives defendant of "a trial that could in any real sense be termed fair” (People v Savvides, 1 NY2d 554, 557, supra).

The conduct of the prosecutor warrants a reversal and a new trial.

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

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Jerry Whatley, Appellant.
    Argued January 14, 1987;
    decided February 12, 1987
    APPEARANCES OF COUNSEL

      Robert S. Dean and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of murder, second degree, after a jury trial. He does not deny that he was present at the scene of the crime but he denies that he shot decedent or that he knew of the intention of the shooter to do so. The People submitted circumstantial evidence that: defendant sought out decedent at a social gathering at the home of a friend; he induced him to leave the group to resolve a dispute with decedent’s cousin; the two men left the gathering with two women and went to defendant’s car in which another man was waiting; they took the two women home, then drove directly to a darkened corner of 166th Street and Washington Avenue in The Bronx, where, after a witnessed argument between decedent and one of the two men from defendant’s car over decedent’s "squealing”, an argument which lasted several minutes, decedent was killed by repeated shotgun blasts fired at close range.

Defendant’s actions and the timing of the events of the evening permitted the jury to infer that defendant, decedent and the other man drove directly to the murder scene after dropping off the women, that the two men had a shotgun with them from the outset and that defendant must have known of it because of the difficulty of concealing it in his car. The jury also could consider that the accessory was present for several minutes in the waiting car while the shooter argued with decedent while holding a shotgun and from all this it could fairly find that defendant either shot decedent or participated in the planning to kill him and shared the intent of the shooter to do so.

Defendant also contends that in view of the uncertain identification testimony of the eyewitness to the killing, the court could not properly instruct the jury that it could find him guilty of murder either as an accessory or as a principal. Inasmuch as the indictment charged defendant with murder under an acting in concert theory and there was evidence which, if accepted by the jury, would support a finding that defendant was either the shooter or the driver of the car, the charge was correct (see, People v Duncan, 46 NY2d 74; People v Benzinger, 36 NY2d 29).

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

Order affirmed in a memorandum.


text:
    In the Matter of Milliken & Co. et al., Respondents, v City of New York, Appellant.
    Argued January 15, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Philip Agree, Stephen J. McGrath and Michael McLoughlin of counsel), for appellant.

      Jeffrey B. Bloom for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (119 AD2d 481).

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


text:
    Alouette Fashions, Inc., et al., Respondents, v Consolidated Edison Company of New York, Inc., et al., Defendants, and City of New York et al., Appellants.
    Argued January 15, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Philip Agree, Stephen J. McGrath and Michael McLoughlin of counsel), for appellants.

      Lester J. Kravtiz for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (119 AD2d 481). Question certified answered in the affirmative.

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


text:
    In the Matter of John J. Hop-Wah, Appellant, v Thomas A. Coughlin, as Commissioner of the Department of Correctional Services, et al., Respondents.
    Decided February 12, 1987

      APPEARANCES OF COUNSEL

      John J. Hop-Wah, appellant pro se.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, the institutional findings of guilt nullified, and the proceedings expunged from petitioner’s records (see, Matter of Davidson v Smith, 69 NY2d 677; People ex rel. Roides v Smith, 67 NY2d 899; Matter of Jones v Smith, 64 NY2d 1003).

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


text:
    In the Matter of David H., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided February 12, 1987

      APPEARANCES OF COUNSEL

      Carol Goldstein, Lenore Gittis and John F. McGlynn for appellant.

      Doron Gopstein, Acting Corporation Counsel (Helen P. Brown of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by reversing the adjudication insofar as it is based on the finding of sexual abuse and vacating the dispositional order, and the matter remitted to Family Court, New York County, for a new dispositional hearing in accordance with this memorandum, and, as so modified, affirmed.

Viewing the evidence in the light most favorable to the presentment agency, there is sufficient evidence to support the Family Court’s finding that appellant committed acts which, if committed by an adult, would constitute unlawful imprisonment in the second degree (Penal Law § 135.05). A witness testified that she heard screaming emanating from above the fourth floor minutes before she saw appellant (then 12 years old) pull Amanda (then five years old) down the stairs. From this evidence the court inferred that the force caused the bruise on Amanda’s forearm and the scratches on her neck, as well as the damage to the metal fasteners on her overalls. There was evidence to support the findings that appellant had received no permission from Amanda’s mother to interfere with the child in this manner and was aware of the unlawfulness of his actions.

There is insufficient evidence, however, to support Family Court’s additional finding that appellant committed acts which, if committed by an adult, would constitute attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [1]). Although the presentment agency was not obligated to prove a completed crime, and although the agency did prove use of force, there is no evidence that appellant attempted to subject Amanda to sexual contact (see, Penal Law § 130.00 [3]). Medical examination of the child shortly after the incident revealed no evidence of sexual contact. Family Court found that Amanda was incompetent to give unsworn testimony, and therefore did not consider her statements, and further found that in the circumstances the pubic hair was not reliable evidence against appellant. Finally, the child’s overalls — though dirty and damaged — proved only that appellant unlawfully restrained Amanda, not that he attempted to engage in any sexual contact.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified, without costs, and matter remitted to the Family Court, New York County, for a new dispositional hearing in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Naclerio Contracting Co., Inc., Respondent, v City of New York et al., Appellants.
    Argued January 14, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for appellants.

      Joseph S. Earning and Elizabeth C. Earning for respondent.

      George P. Felleman, Jonathan Sinnreich and Andrew R. Schein for County of Suffolk, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (116 AD2d 463) and the question certified answered in the affirmative.

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


text:
    In the Matter of David C., Appellant, a Person Alleged to be Mentally Retarded. Wassaic Developmental Center, Respondent. (Proceeding No. 1.) In the Matter of Michael C., Appellant, a Person Alleged to be Mentally Ill. Harlem Valley Psychiatric Center, Respondent. (Proceeding No. 2.)
    Argued January 14, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      William M. Brooks, Robert A. Feenick and Francis M. Savastano for appellants.

      Robert Abrams, Attorney-General (Robert L. Schonfeld, Christopher Keith Hall, Thomas P. Dorsey, O. Peter Sherwood and Lawrence S. Kahn of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as it dismissed the appeal by Michael C., should be affirmed, without costs. The Appellate Division did not abuse its discretion in dismissing the appeal to that court for mootness (see, Matter of Anonymous, 55 NY2d 1021).

The appeal by David C. should be dismissed, without costs, for mootness. We decline to adopt petitioner’s contention that all retention proceedings — because they are necessarily short-lived and therefore typically evade review — should be subject to review irrespective of mootness. The fundamental principle that a court’s power to declare the law is limited to determining actual controversies in pending cases is subject to an exception that permits the courts to preserve particular issues which are recurring, substantial and novel, and typically evade review (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-715). Even if we were to accept petitioner’s contention that retention orders typically evade review, no blanket rule could be made for retention proceedings. The determination whether to consider particular issues despite their mootness must depend additionally on the recurring, novel and substantial nature of those issues as they are presented.

Here, we are persuaded that the issue raised — whether an involuntarily retained patient who has not requested a hearing may nonetheless obtain a "rehearing” of a retention order pursuant to Mental Hygiene Law § 15.35 — is not sufficiently substantial or novel to warrant an exercise of this court’s exceptional discretion to retain the appeal despite mootness (see, Matter of Barbara C., 64 NY2d 866, 868; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 715, supra).

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

Order insofar as it dismissed the appeal by petitioner Michael C. affirmed, without costs, and appeal by petitioner David C. dismissed, without costs, in a memorandum.


text:
    Anthony Marino Construction Corp., Plaintiff, v INA Underwriters Insurance Company, Defendant. Sound Electric Corporation, Appellant, v Insurance Company of North America et al., Respondents.
    Decided February 12, 1987

      APPEARANCES OF COUNSEL

      Sherwin Rear for appellant.

      Charles T. Rubin for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. Question certified not answered as unnecessary.

Plaintiff’s failure to file sworn proofs of loss within 60 days after receiving a demand to do so by its insurer, accompanied by proof of loss forms, is a complete defense to plaintiff’s action on the insurance policy (Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201, 216; Insurance Law § 3407 [a]). Plaintiff’s contentions that defendants should be estopped from relying on the proof of loss condition because their demand letter did not state the date by which the proofs had to be filed and because it also contained a demand that plaintiff appear for an examination under oath are without merit (Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., supra; see also, Melendez v United States Fire Ins. Co., NYLJ, Jan. 2, 1987, p 15, col 2). Nor does the fact that defendants, through their attorney, examined one of plaintiff’s employees under oath with regard to its claims constitute a waiver of the proof of loss condition (Maleh v New York Prop. Ins. Underwriting Assn., 64 NY2d 613, 614). Furthermore, the utilization of the untimely filed proofs of loss at the examination does not constitute a waiver of the condition because defendants’ attorney at that time clearly reserved his right to assert at any time that the proofs were untimely filed. We have examined the rest of plaintiff’s arguments and found them to be without merit.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, affirmed with costs, in a memorandum. Question certified not answered as unnecessary. Motion by Anthony Marino Construction Corp. for leave to appear amicus curiae denied.


text:
    Lovisa Construction Co., Inc., Respondent, v City of New York, Appellant, and Morse Diesel, Inc., et al., Respondents.
    Argued January 14, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for appellant.

      Michael P. Goldsmith, Gary M. Axenfeld and Stephen M. Harnik for Lovisa Construction Co., Inc., respondent.

      Tony Berman for Sarcon Construction Corp., respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division in Naclerio Contr. Co. v City of New York (116 AD2d 463, affd 69 NY2d 794 [decided herewith]) and the question certified answered in the affirmative.

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


text:
    The People of the State of New York, Respondent, v Wilfredo Saez, Appellant.
    Decided February 12, 1987

      APPEARANCES OF COUNSEL

      Joel Atlas and Philip L. Weinstein for appellant.

      Mario Merola, District Attorney (Kevin D. McLoone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During their case-in-chief the People called the complainant to the stand. The complainant testified that defendant pulled an object wrapped in paper out of a box, stuck the object in complainant’s side, and demanded money. The complainant stated that he believed the object "was something [defendant] could harm me with * * * A revolver, a shotgun. Something like that”. Complainant, however, only contradicted his Grand Jury testimony, to the extent relevant, by testifying at trial that he never saw what the object was. There was another victim witness who testified to actually seeing the barrel of a shotgun.

The trial court erred in allowing the People to impeach the complainant with his Grand Jury testimony, in which he stated that he actually saw the barrel of the shotgun. A party may impeach its own witness if such witness’ testimony on a material fact tends to disprove the party’s position or affirmatively damages the party’s case (CPL 60.35 [1]; People v Fitzpatrick, 40 NY2d 44, 51). To establish the crime of robbery in the first degree, the People needed only to show that defendant displayed what appeared to be a revolver or shotgun (see, Penal Law § 160.15 [4]). It was not necessary to show that anyone actually saw a revolver or shotgun (see, People v Baskerville, 60 NY2d 374, 381). Therefore, although complainant’s testimony was not as strong as the People desired, it did not affirmatively damage their case by tending to disprove the essential element of the case: that defendant displayed what appeared to be a firearm.

In light of the overwhelming evidence of defendant’s guilt, however, the error was harmless (see, People v Fuller, 50 NY2d 628, 638; People v Crimmins, 36 NY2d 230, 242). We have reviewed defendant’s remaining contentions and conclude that they are without merit.

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

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


text:
    John R. Baliotti et al., Appellants, v Milton Walkes et al., Respondents.
    Submitted December 1, 1986;
    decided February 12, 1987
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    Berkeley Associates Co., Appellant, v Armand Di Nolfi et al., Respondents.
    Submitted December 22, 1986;
    decided February 12, 1987
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain it (NY Const, art VI, § 3 [b] [7]).


text:
    The People of the State of New York ex rel. Patrick Hamilton, Appellant, v Stephen Dalsheim, as Superintendent of Downstate Correctional Facility, Respondent.
    Submitted December 15, 1986;
    decided February 12, 1987
   Motion for leave to appeal dismissed upon the ground that this court does not have jurisdiction to entertain a motion for leave to appeal from the order of Supreme Court (NY Const, art VI, § 3; CPLR 5602). Motion for leave to proceed as a poor person dismissed as academic.


text:
    Anthony Maida et al., Appellants, v Michael Velella et al., Defendants, and Daniel George and Son Funeral Home, Inc., et al., Respondents.
    Submitted December 15, 1986;
    decided February 12, 1987
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Stacie O., Respondent, v Luciano B., Appellant.
    Submitted December 22, 1986;
    decided February 12, 1987
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v Tony Adams, Appellant.
    Argued January 15, 1987;
    decided February 17, 1987

      APPEARANCES OF COUNSEL

      Richard Joselson, David A. Crow and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Sylvia Wertheimer and Amy jane Rettew of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant complains that the trial court erred in charging the jury with respect to circumstantial evidence that some of the facts could be proved with less assurance than others. Although the language isolated by defendant was one of the bases for reversal in People v Ford (66 NY2d 428, 443), the charge as a whole adequately conveyed to the jury the appropriate standards (People v Ford, supra).

Defendant’s remaining contentions are not preserved for our review.

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

Order affirmed in a memorandum.


text:
    David Bani-Esraili, Appellant, et al., Plaintiff, v Marvin S. Lerman, as Executor of Philip Wald, Deceased, Respondent, et al., Defendant.
    Argued January 8, 1987;
    decided February 17, 1987
    APPEARANCES OF COUNSEL

      Martin Diennor and Abraham Fuchsberg for appellant.

      Roger P. McTiernan and Carol Ann Weinman for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this "wrongful birth” action, the trial court properly held that plaintiff could not recover from the estate of defendant doctor the costs of those extraordinary expenses which plaintiff might incur for the continued support and special care of his son, born with thalassemia major, after the child reaches the age of 21. Under New York law, a parent has no legal obligation to continue the support of a child after majority, notwithstanding plaintiffs assertion of a moral obligation to do so in this case (see, e.g., Family Ct Act § 413 [1]; Domestic Relations Law § 32 [3]; Social Services Law § 101 [1]; and see, Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 413, pp 65-66; and see, 1966 NY Legis Ann, at 326-327 [Governor’s Message to Legislature, discussing L 1966, ch 256, entitled "Medical Assistance for Needy Persons”]). Thus, plaintiff may be compensated only in the amount that represents his legally cognizable injury, namely the increased financial obligation arising from the extraordinary medical treatment rendered the child during minority (see, Alquijay v St. Luke’s-Roosevelt Hosp. Center, 63 NY2d 978, 979; Becker v Schwartz, 46 NY2d 401, 413). The argument that public policy is better served by permitting plaintiff to recover the cost of his son’s postmajority extraordinary expenses is more appropriately addressed to the Legislature (see, Alquijay v St. Luke’s-Roosevelt Hosp. Center, 63 NY2d 978, 979, supra).

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

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of Ansonia Associates, Appellant, v State Division of Housing and Community Renewal, Respondent. In the Matter of Beaux Arts Properties, Appellant, v New York State Division of Housing and Community Renewal, Respondent. In the Matter of 24 Fifth Avenue Associates, Appellant, v New York State Division of Housing and Community Renewal, Respondent.
    Decided February 17, 1987

      APPEARANCES OF COUNSEL

      Jeffrey R. Metz for Ansonia Associates, appellant.

      Arthur Richenthal for Beaux Arts Properties and another, appellants.

      Cullen S. McVoy, Iris J. Korman, Edward Chazin and Dennis B. Hasher for respondent.
   OPINION OF THE COURT

Memorandum.

In Matter of Ansonia Assoc. v State Div. of Hous. & Commu nity Renewal, the order of the Appellate Division should, insofar as appealed from, be reversed, with costs. In Matter of Beaux Arts Props. v New York State Div. of Hous. & Community Renewal and in Matter of 24 Fifth Ave. Assoc. v New York State Div. of Hous. & Community Renewal, the orders of the Appellate Division should be reversed, with costs. In each case, the matter is remitted to Supreme Court, New York County, with directions to remand to the Division of Housing and Community Renewal (DHCR) for further proceedings in accordance with this memorandum.

As we recently noted in Matter of Berkeley Kay Corp. v New York City Conciliation & Appeals Bd. (68 NY2d 851), until the enactment of section 43 of the Omnibus Housing Act of 1983 (Administrative Code of City of New York § YY51-3.1 [b], L 1983, ch 403, § 43, recodified as Administrative Code § 26-506 [b], L 1985, ch 907, § 1), DHCR and its predecessor, the Conciliation and Appeals Board (CAB), were without authority to reclassify property for rent stabilization purposes. We held in that case that section 33 (g) of the Amended Code of the Metropolitan Hotel Industry Stabilization Association, Inc., the authority relied on by DHCR for its retroactive rent rollbacks and refunds on a building-wide basis, did not permit such relief. Instead, section 33 (g) authorizes only rent adjustments based upon individual complaints, such as ordering the owner to "refund to the complaining tenants that portion of the past rents which reflect the value of [hotel] services not provided by the owner” (Matter of Berkeley Kay Corp. v New York City Conciliation & Appeals Bd., supra, p 854). Inasmuch as the agency orders before us in these cases direct similar rent rollbacks and refunds on building-wide bases, the owners’ petitions, seeking annulment of the retroactive relief ordered, should have been granted and the matters remitted for further consideration of the individual complaints by DHCR.

In the present cases, as in Berkeley Kay, DHCR and CAB relied on section 43 for prospective reclassification only, in each case expressing the view that prospective reclassification was all that was allowable under that authority. We therefore do not decide, as we did not decide in Berkeley Kay, whether a reclassification premised on section 43 of the Omnibus Housing Act could be made retroactive to the effective date of that act.

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

In Matter of Ansonia Assoc. v State Div. of Hous. & Community Renewal: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, etc.

In Matter of Beaux Arts Props, and Matter of 24 Fifth Ave. Assoc. v New York State Div. of Hous. & Community Renewal: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), orders reversed, etc.


text:
    In the Matter of Benjamin B. Hersh, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted January 19, 1987;
    decided February 17, 1987
   Motion to dismiss the appeal taken as of right from an order of the Appellate Division (117 AD2d 264), dated May 19, 1986, granted, and the appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Alfred A. Higley, Appellant.
    Submitted February 9, 1987;
    decided February 17, 1987
   Motion to dismiss the appeal herein denied. Respondent’s brief to be served and filed on or before April 3, 1987.


text:
    In the Matter of Melvin C. Preddice, Appellant, v Thomas J. Callanan, as Director of the Division of Probation of the State of New York, et al., Respondents.
    Argued January 15, 1987;
    decided February 12, 1987

      APPEARANCES OF COUNSEL

      Richard E. Casagrande and William P. Seamon for appellant.

      Robert Abrams, Attorney-General (William J. Kogan, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this article 78 proceeding, the Appellate Division correctly determined that petitioner was not entitled to reinstatement to his position as a provisional employee with the State Division of Probation and to back pay as a result of a jury determination that he was discharged in bad faith.

Appointments made pursuant to Civil Service Law § 65 are provisional in nature; provisional employees have no expectation of tenure and rights attendant thereto except under the limited circumstances specified in Civil Service Law § 65 (4) (Matter of Becker v New York State Civ. Serv. Commn., 61 NY2d 252; Matter of Haynes v County of Chautauqua, 55 NY2d 814) and therefore they may be terminated at any time without charges preferred, a statement of reasons given or a hearing held (Matter of Riggi v Blessing, 9 AD2d 423, affd 10 NY2d 917; Matter of Benon v LaGuardia, 285 NY 560, 561; Ranus v Blum, 96 AD2d 1144, 1145; Matter of Brathwaite v Manhattan Children’s Psychiatric Center, 70 AD2d 810, 811). While other remedies may be available to provisional employees terminated in violation of a constitutional provision or some statute reinstatement and back pay are not available in this case.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Vernon Edwards, Appellant.
    Argued January 12, 1987;
    decided February 19, 1987

      APPEARANCES OF COUNSEL

      Joel A. Brenner for appellant.

      Carl A. Vergari, District Attorney (Diane E. Selker and Anthony Joseph Servino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted, the judgments of conviction vacated and the indictments dismissed.

Although probable cause determinations that involve questions of fact, or mixed questions of law and fact, are generally beyond the scope of review of this court (see, People v McCray, 51 NY2d 594, 601), where, as here, the issue is the minimum showing necessary to establish probable cause, a question of law is presented (People v Bigelow, 66 NY2d 417, 420-421; People v Johnson, 66 NY2d 398). Although there is a strong judicial preference for search warrants (People v Potwora, 48 NY2d 91, 95; People v Vaccaro, 39 NY2d 468, 472; People v Hanlon, 36 NY2d 549) and courts should not analyze applications in a grudging or hypertechnical manner when determining whether they meet constitutional standards (People v P. J. Video, 65 NY2d 566, 571, revd sub nom. New York v P. J. Video, 475 US 868, 106 S Ct 1610, on remand 68 NY2d 296; People v Hanlon, 36 NY2d 549, 558, supra), a search warrant application must provide the magistrate with information sufficient to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search (People v Bigelow, 66 NY2d, at p 423, supra).

The affidavit submitted in support of the application for the search warrant here fails to meet that minimum standard. That affidavit relied primarily on hearsay information but failed to satisfy the "basis of knowledge” requirement for use of such information (People v Bigelow, 66 NY2d 417, 423, supra; People v Rodriguez, 52 NY2d 483, 490). The results of a pen register and surveillance of defendant’s activities were as consistent with innocence as with guilt (see, People v Yedvobnik, 48 NY2d 910, 911; People v Wirchansky, 41 NY2d 130, 134-135; People v Germano, 91 AD2d 1137, 1138). Finally, the positive reaction at the door of defendant’s apartment by a dog trained to detect the odor of narcotics, even if otherwise lawful and sufficient to establish probable cause, was not "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time” (Sgro v United States, 287 US 206, 210).

In light of this disposition, we find it unnecessary to reach any of defendant’s remaining contentions.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v James Sturgis, Appellant.
    Decided February 19, 1987

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be modified by vacating the sentence and the case remitted to the trial court for resentencing and, as so modified, affirmed.

CPL 380.20 commands that "[i]f an accusatory instrument contains multiple counts and a conviction is entered on more than one count the court must pronounce sentence on each count” (see, People v Abreu, 116 AD2d 655; People v Benoit, 115 AD2d 608; People v Charles, 98 AD2d 780). Upon conviction of two counts of criminal possession of a weapon, third degree, and one count of criminal possession of stolen property, the trial court sentenced defendant to a period of incarceration, "the maximum term not to exceed three years and the minimum term not to exceed one year”, without specifying to which of the three counts that sentence applied. Such a sentence violates the mandate of CPL 380.20, and thus must be vacated and the case remitted to the trial court for resentencing.

We have considered defendant’s remaining contention and find it to be without merit.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order modified by vacating the sentence and case remitted to Monroe County Court for resentencing and, as so modified, affirmed in a memorandum.


text:
    In the Matter of Audell Petroleum Corporation, Appellant, v New York State Tax Commission, Respondent. In the Matter of Skaggs-Walsh, Inc., Appellant, v New York State Tax Commission, Respondent. In the Matter of Ortep Fuel Oil Corporation, Formerly Known as Effron Fuel Oil Corporation, et al., Appellants, v New York State Tax Commission, Respondent.
    Decided February 19, 1987

      APPEARANCES OF COUNSEL

      Fred B. Wander, Thomas F. Gleason and Salvatore D. Ferlazzo for Audell Petroleum Corporation, appellant.

      Roy F. Hutton for Ortep Fuel Oil Corporation, appellant.

      Nicholas J. Damadeo for Skaggs-Walsh, Inc., appellant.

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

Memorandum.

In each proceeding, the judgment of the Appellate Division should be reversed, with costs, the petition granted, the determination of the State Tax Commission annulled, and the matter remitted to Supreme Court, Albany County, with directions to remand to the State Tax Commission for further proceedings in accordance with this memorandum.

Tax Law § 1105 (c) (1) provides that there shall be a tax imposed upon:

"(c) The receipts from every sale, except for resale, of the following services:

"(1) The furnishing of information by printed, mimeographed or multigraphed matter or by duplicating written or printed matter in any other manner, including the services of collecting, compiling or analyzing information of any kind or nature and furnishing reports thereof to other persons, but excluding the furnishing of information which is personal or individual in nature and which is not or may not be substantially incorporated in reports furnished to other persons”.

As the statute and the implementing regulations (see, 20 NYCRR 527.3 [a] [l]-[3]) indicate, it is the sale of the service of furnishing information by a business whose function it is to collect and disseminate information which is taxable under Tax Law § 1105 (c) (1) and not the mere sale of information.

In each of these proceedings challenging sales and use tax assessments arising out of bulk sales of the assets of fuel oil distribution businesses, the State Tax Commission assessed a tax under section 1105 (c) (1) on the transfer of the customer list of each fuel oil business sold. The seller in each sale, however, was not engaged in the business of furnishing information and the record indicates that the seller did not prepare the customer list at the purchaser’s request. The transfer of the customer lists, therefore, under the circumstances presented here, were not, contrary to Matter of Long Is. Reliable Corp. v Tax Commn. (72 AD2d 826, lv denied 49 NY2d 707), taxable under section 1105 (c) (1) (cf. Matter of Mertz v State Tax Commn., 89 AD2d 396 [sale of "direct mail” mailing list taxable under § 1105 (c) (1)]; Names in the News v New York State Tax Commn., 75 AD2d 145 [same]; Matter of Drey Co. v State Tax Commn., 67 AD2d 1055 [same], lv denied 47 NY2d 708).

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

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


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    The People of the State of New York ex rel. Franklin McNair, Appellant, v Otis Bantum, as Warden of the New York City House of Detention for Men, Rikers Island, Respondent.
    Submitted December 29, 1986;
    decided February 19, 1987
   Motion for leave to appeal dismissed upon the ground that movant has failed to show timeliness as required by section 500.11 (d) (1) (C) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Angelina Sinicropi, Appellant, v Edward G. McCabe, as County Attorney of Nassau County, et al., Respondents.
    Decided February 19, 1987
   Appeal from order of the Appellate Division dated October 20, 1986 dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved.

Appeal from order of the Appellate Division dated December 22, 1986 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.


text:
    State Communities Aid Association et al., Appellants-Respondents, v Edward Regan, as Comptroller of the State of New York, et al., Respondents-Appellants.
    Decided February 19, 1987
   Appeal and cross appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that they do not lie as of right to review the prior nonfinal order [see, 112 AD2d 681] of modification, 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).


text:
    State Communities Aid Association et al., Appellants-Respondents, v Edward Regan, as Comptroller of the State of New York, et al., Respondents-Appellants.
    Submitted February 2, 1987;
    decided February 19, 1987
   Motions for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Reich v Bankers Life & Cas. Co. of N. Y., 68 NY2d 729).


text:
    The People of the State of New York, Appellant, v Kenneth R. Facey, Sr., Respondent.
    Argued February 9, 1987;
    decided March 17, 1987

      APPEARANCES OF COUNSEL

      Peter S. Blodgett, Assistant District Attorney, for appellant. Robert B. Shaad for respondent.
   OPINION OF THE COURT

Order affirmed for the reasons stated in the opinion by former Justice Emmett J. Schnepp at the Appellate Division (115 AD2d 11).

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


text:
    In the Matter of George B. Pidot, Respondent-Appellant, v State Tax Commission, Appellant-Respondent.
    Argued February 9, 1987;
    decided March 17, 1987

      APPEARANCES OF COUNSEL

      Kenneth A. Caruso, Robert F. Dobbin, Stanley I. Rubenfeld,

      Andrew W. Regan, Jesse R. Rubin and Lorraine K. Pak for respondent-appellant.

      Robert Abrams, Attorney-General (Denise A. Hartman, O. Peter Sherwood and Peter H. Schiff of counsel), for appellant-respondent.
   OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (118 AD2d 915).

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


text:
    In the Matter of John J. Perez, Appellant, v Benjamin Ward, as Police Commissioner of the City of New York, et al., Respondents. In the Matter of Henry King et al., Appellants, v Jacqueline McMickens, as Commissioner of the New York City Department of Correction, et al., Respondents.
    Argued February 10, 1987;
    decided March 17, 1987

      APPEARANCES OF COUNSEL

      Philip L. Boneta, Linda Flores, Raymond E. Kerno and Richard Hartman for John J. Perez, appellant.

      Raymond E. Kerno and Richard Hartman for Henry King and another, appellants.

      Doron Gopstein, Acting Corporation Counsel (June A. Witterschein and Leonard Koerner of counsel), for respondents.

      Mark T. Walsh, Jr., for New York State Inspection, Security and Law Enforcement Employees, District Council 82, American Federation of State, County and Municipal Employees, AFL-CIO, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

In these article 78 proceedings, the dismissal of police and correction officers was upheld for their refusal to comply with orders to submit to urinalysis in connection with reported drug use. There is no dispute among the parties as to the standard that governs these cases, and therefore this court need not and does not pass on it: these parties have agreed that a public agency may lawfully order an employee to undergo urinalysis on reasonable suspicion of drug use. The central issue is whether, on the facts presented, that standard was satisfied here. We conclude that there was substantial evidence supporting the administrative determinations. As to petitioner Perez, a longtime registered confidential informant —who had repeatedly proven reliable in the past — informed several members of the police department that he had seen petitioner using heroin, and certain of his allegations were verified; on the day prior to the order to submit to urinalysis, the informant reported that he had just seen petitioner using heroin. As to petitioners Melvin and Henry King, again there was a report from a confidential informant regarding use of illegal drugs by them at specified locations; the Inspector General’s office verified certain of the information; and just prior to the urinalysis order the informant advised the Inspector General that he had observed the officers using narcotics at the specified locations.

The penalty of dismissal in these circumstances was not erroneous (see, Pell v Board of Educ., 34 NY2d 222). Petitioners’ remaining contentions lack any merit.

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

In Matter of Perez v Ward: Judgment affirmed, with costs, in a memorandum.

In Matter of King v McMickens: Order affirmed, with costs, in a memorandum.


text:
    Gerald Hirschfeld, Respondent, v Kathy Hirschfeld, Appellant.
    Argued February 10, 1987;
    decided March 17, 1987

      APPEARANCES OF COUNSEL

      Alan P. Goodman for appellant.

      Robert M. Rosen 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.

Exercising their discretion in this matrimonial and custody action, the courts below denied defendant certain discovery she sought, including the right to compel her husband to submit to a psychiatric examination by a physician of her choice under CPLR 3121. The Appellate Division granted leave to appeal to this court and certified the following question as decisive of its determination: "Was the order of this court dated November 25, 1985 properly made?”

Inasmuch as the grant or denial of discovery is a discretionary matter, the scope of our review in this appeal is limited to determining whether the courts below had the power to deny discovery and, if so, whether that discretionary power was abused (Matter of 425 Park Ave. Co. v Finance Adm’r, 69 NY2d 645, 647; Herrick v Second Cuthouse, 64 NY2d 692, 693; Brady v Ottaway Newspapers, 63 NY2d 1031). We conclude that the denial of discovery and grant of a protective order in this case was within the lower courts’ power and that the decisions below did not constitute an abuse of discretion as a matter of law.

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

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v Charles Pearson, Appellant.
    Submitted March 9, 1987;
    decided March 17, 1987
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal will lie from the order of one Justice of the Appellate Division denying leave to appeal to that court.


text:
    Howard Randolph, Individually and as Administrator of the Estate of Bessie Randolph, Deceased, Appellant, v City of New York et al., Respondents, et al., Defendants.
    Argued February 9, 1987;
    decided March 19, 1987

      APPEARANCES OF COUNSEL

      Martin Diennor and Abraham Fuchsberg for appellant.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Alfred Weinstein and Leonard Koerner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating the complaint against defendants Foster and New York City Health and Hospitals Corporation and granting a new trial as against those defendants and, as so modified, affirmed, with costs to plaintiff against defendants Foster and New York City Health and Hospitals Corporation and with costs to defendant City of New York against plaintiff.

As submitted to the jury, the pivotal issue in this case was whether, at 12:45 p.m. on July 17, 1975, the life of plaintiffs decedent could have been saved if blood had been properly transfused. Dr. Foster’s own testimony, the testimony of plaintiffs expert, Dr. Nearenberg, and the portion of the examination before trial of Dr. Cehelsky which was read at trial all indicated that she was alive at that time and that a transfusion could have saved her life. That there was evidence to the contrary does not justify dismissing the complaint on the ground that the jury’s verdict was not based on legally sufficient evidence; rather, such determination is only proper when " 'there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the [contrary] conclusion reached by the jury on the basis of the evidence presented at trial’ (Cohen v Hallmark Cards, 45 NY2d 493, 499)” (Leyva v Levy, 69 NY2d 847 [decided herewith]). A new trial is required because the Appellate Division’s order of reversal was on the facts as well (Cohen v Hallmark Cards, 45 NY2d 493, 498, supra).

The action as against defendant City of New York was, however, properly dismissed. It is an entity separate and distinct from the New York City Health and Hospitals Corporation (Brennan v City of New York, 59 NY2d 791), and plaintiff failed to demonstrate at trial any factual predicate for imposing liability upon the City.

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

Order modified, etc.


text:
    Ann Leyva, Individually and as Administratrix of the Estate of Gustavo E. Leyva, Deceased, Appellant, v Abraham Levy, as Public Administrator of the County of Bronx and as the Administrator of the Estate of James R. Richardson, Deceased, Defendant, and City of New York, Respondent. (Action No. 1.) Charles McNeil et al., Appellants, v Abraham Levy, as Public Administrator of the County of Bronx and as Administrator of the Estate of James R. Richardson, Deceased, Defendant, Drah Cab Corporation et al., Appellants, and City of New York, Respondent. (Action No. 2.) Yvonne Foss, Appellant, v Drah Cab Corporation et al., Appellants, and City of New York, Respondent, et al., Defendant. (Action No. 3.)
    Argued February 10, 1987;
    decided March 19, 1987

      APPEARANCES OF COUNSEL

      Herman Schmertz for Ann Leyva, individually and as administratrix of Gustavo Leyva, deceased, appellant.

      David Farber for Charles McNeil and another, appellants.

      Marian C. Rice for Drah Cab Corporation, appellant.

      Reginald T. Brewster for Yvonne Foss, appellant.

      Down Gopstein, Acting Corporation Counsel (Barry P. Schwartz and Fay Leoussis of counsel), for respondent.
   OPINION OF THE COURT

Order insofar as appealed from affirmed, with costs to the City of New York against the appellants. There was testimony by the police officers who witnessed the entry of the Richardson vehicle that the vehicle entered the properly marked Van Cortlandt Park South ramp, and "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the [contrary] conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499).

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 John Harris, Appellant.
    Argued February 11, 1987;
    decided March 19, 1987

      APPEARANCES OF COUNSEL

      Malvina Nathanson for appellant.

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

Order affirmed for reasons stated in the memorandum at the Appellate Division (118 AD2d 583).

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


text:
    Mary E. Sawh, Appellant, v George Bridges et al., Respondents.
    Decided March 19, 1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed, without costs, upon the ground that the dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York, Appellant, v John T. Glover, Respondent.
    Decided March 19,1987
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed as moot.


text:
    The People of the State of New York, Respondent, v Johanes Raitelu et al., Respondents. Valer Fersedy, Appellant.
    Submitted January 12, 1987;
    decided March 19, 1987
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the order of the Appellate Term (NY Const, art VI, § 3; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Sherman Harden, Appellant.
    Submitted January 12, 1987;
    decided March 19, 1987
   Motion to dismiss the appeal taken by defendant Harden granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of his death (People v Darden, 52 NY2d 1015; People v Mintz, 20 NY2d 753, 770).


text:
    In the Matter of City of Peekskill, Appellant, v Henry G. Williams, as Commissioner of the Department of Environmental Conservation, Respondent.
    Submitted January 12, 1987;
    decided March 19, 1987
   Motion for leave to appeal denied. Motion for a stay denied as unnecessary (CPLR 5519 [a] [1]).