text:
    Charles T. Guarnier, Respondent, v American Dredging Co., Defendant. Howard W. Burns, Jr., Nonparty Appellant.
    Decided January 16, 1992

      APPEARANCE OF COUNSEL

      Howard W. Burns, Jr., pro se.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, without costs, and the sanction imposed pursuant to 22 NYCRR 130-1.1 (c) vacated because the reviewable record of the conduct of the appellant attorney during jury selection, which prompted the imposition of the sanction over two months later, is devoid of the required basis for concluding that the conduct, however else it could be characterized, was "frivolous” within the meaning of the sanctions rule.

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


source: Caselaw Access Project

license: Public Domain

text:
    Milton Berlin, Respondent, v Matthias O. Schlotthauer, Appellant, et al., Defendants.
    Submitted January 13, 1992;
    decided January 16, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Vincent M. Brennan, an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted January 13, 1992;
    decided January 16, 1992
   Motion for extension of time within which to move for reargument granted. Motion for reargument of motion for leave to appeal denied. [See, 78 NY2d 860.]


text:
    In the Matter of Edward J. Kuriansky, as Deputy Attorney-General for Medicaid Fraud Control, Respondent, v Asad Ali et al., Appellants.
    Submitted October 28, 1991;
    decided January 16, 1992
   Motion for leave to appeal by Asad Ali dismissed upon the ground that as to said movant the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2); motion for leave to appeal by the other movants denied.


text:
    In the Matter of Minister, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent, v 198 Broadway, Inc., et al., Respondents, and Henry Modell and Co., Inc., Appellant.
    Submitted January 16, 1992;
    decided January 16, 1992
   Having concluded deliberation on the question initiated by the Court of Appeals on November 19, 1991, on its own motion, pursuant to 22 NYCRR 130-1.1 (d), the Court has determined not to impose sanctions. [See, 78 NY2d 1091.]


text:
    Naftal Associates et al., Respondents, v Town of Brookhaven, Appellant.
    Submitted December 16, 1991;
    decided January 16, 1992
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Joseph Nestor et al., Respondents, v John P. Tilden, Ltd., Appellant.
    Submitted November 12, 1991;
    decided January 16, 1992
   Motion for leave to appeal dismissed as untimely (see, CPLR 2103 [b], [fj; National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939). Cross motion for sanctions denied.


text:
    The People of the State of New York ex rel. Spiros A. Tsimbinos, on Behalf of Mark Greenstein, Appellant, v James M. Catterson, as District Attorney for Suffolk County, et al., Respondents.
    Submitted January 15, 1992;
    decided January 16, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that relator is not restrained in his liberty to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648). Motion for a stay dismissed as academic.


text:
    Rent Stabilization Association of New York City, Inc., et al., Appellants, et al., Intervenor-Plaintiff, v Richard L. Higgins, as Commissioner of the New York State Division of Housing and Community Renewal, Respondent, et al., Intervenors-Defendants.
    Submitted January 13, 1992;
    decided January 16, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when 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:
    Spectrum Systems International Corporation, Respondent, v Chemical Bank, Appellant.
    Submitted January 13, 1992;
    decided January 16, 1992
   Motion to amend remittitur dismissed as untimely (22 NYCRR 500.11 [g] [3]; see, Drzewinski v Atlantic Scafford & Ladder Co., 70 NY2d 999). [See, 78 NY2d 371.]


text:
    Wildenstein & Co., Inc., Plaintiff, v Brent Wallis et al., Defendants.
    Decided January 16, 1992
   Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Stephen DiMaggio, Respondent, v J. K. Cicotti, as a Candidate for the Office of First Ward City Councilor, Appellant, and Angela Longo et al., Constituting the Oneida County Board of Elections, et al., Respondents.
    Submitted January 17, 1992;
    decided January 21, 1992
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming Supreme Court’s order denying the motion to vacate, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    Timothy Jansen, Appellant, v Fidelity and Casualty Company of New York, Respondent.
    Argued January 9, 1992;
    decided February 13, 1992

      APPEARANCES OF COUNSEL

      Antonio Milillo and Jeffrey R. Armstrong for appellant.

      Dianne Bresee Mayberger and Susan M. DiBella for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured while working on a construction site in North Carolina and sued his employer’s workers’ compensátion and liability insurance carrier, defendant Fidelity and Casualty Company of New York. The Appellate Division granted summary judgment to defendant, holding that liability could not be imposed on the carrier in an action by an employee of the insured for injuries sustained in the course of employment where the alleged negligence "arises out of the regular safety inspections of the work site conducted by the insurer in an effort to reduce the risk of loss covered by its insurance policy.” (165 AD2d 223, 224.) We agree.

Under the terms of the insurance contract, defendant had the right but not the obligation to conduct safety inspections of the worksite. Plaintiff argues that once the carrier undertook to perform the safety inspections, it must be held liable for conducting a negligent inspection. While it is true that one who assumes to act, even though not obligated to do so, may thereby become subject to the duty to act carefully (see, Glanzer v Shepard, 233 NY 236, 239), the application of this, principle has been limited to "those situations wherein the action taken is for the benefit of another and not in furtherance of the interest of the one who assumes to act” (Matter of James v State of New York, 90 AD2d 342, 344, affd 60 NY2d 737).

Under the circumstances of this case, it is apparent that the safety inspections were undertaken solely for defendant’s own underwriting purposes — to reduce the risks that might give rise to liability under the policy (see, Home Mut. Ins. Co. v Broadway Bank & Trust Co., 53 NY2d 568, 576, citing Gerace v Liberty Mut. Ins. Co., 264 F Supp 95, 97 [DC]). Plaintiff points to isolated language in the letters sent by defendant’s inspector to the insured to the effect that the inspections were meant to assist the employer. In context, however, the correspondence reveals that the inspections were undertaken in order to assist the employer in its program to reduce the insurer’s exposure to claims; any benefit to the employer was incidental.

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 Lyndon Duane Goodell, Appellant.
    Argued January 9, 1992;
    decided February 13, 1992

      APPEARANCES OF COUNSEL

      Stephen M. Brent for appellant.

      Robert C. Noonan, District Attorney (Kathleen H. Valone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Vehicle and Traffic Law § 1194 (2) (a) (1) provides that any person who operates a motor vehicle within the State shall be deemed to have consented to the administration of a chemical blood alcohol test conducted "at the direction of a police officer * * * having reasonable grounds to believe” that such person was driving in violation of Vehicle and Traffic Law § 1192 (driving under the influence of alcohol or drugs), provided that the test is administered "within two hours after such person has been placed under arrest for any such violation.” Where these conditions are satisfied, the statute furnishes authority for the administration of a blood alcohol test even in the absence of a court order or the suspect’s actual consent.

On this appeal, defendant, whose trial for reckless and vehicular manslaughter included evidence obtained pursuant to Vehicle and Traffic Law § 1194 (2) (a) (1), argues that such evidence should have been suppressed because he had not formally been placed under arrest at the time his blood sample was taken and, thus, the statutory requisites had not been satisfied. However, a formal arrest would have been an empty gesture in defendant’s case, since defendant was unconscious when the police first arrived at the scene of the accident and he remained comatose for approximately two more weeks. Under these circumstances, we decline to hold that the police officer’s failure formally to announce defendant’s arrest was alone sufficient to vitiate his Vehicle and Traffic Law § 1194 (2) (a) (1) authority to direct the administration of a chemical blood alcohol test (cf., People v Almond, 151 AD2d 820 [blood test taken pursuant to Vehicle and Traffic Law § 1194 (1) (now § 1194 [2] [a] [1]) suppressed where police found defendant in a conscious state but, without formally placing him under arrest, waited until subsequent medical treatment rendered him unconscious before administering test]).

We have examined defendant’s remaining contentions and conclude that none of the issues raised warrant reversal.

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

Order affirmed in a memorandum.


author: Titone, J.

text:
    Ambassador Associates et al., Appellants, v James P. Corcoran, as Superintendent of the New York State Insurance Department, et al., Respondents.
    Argued January 8, 1992;
    decided February 13, 1992

      APPEARANCES OF COUNSEL

      Alan M. Gelb, Richard S. Fischbein, Kenneth G. Schwarz, Deborah J. Locitzer and Steven M. Raphael for appellants.

      Sheila L. Birnbaum, Irene A. Sullivan, Timothy G. Reynolds, Lloyd M. Eisenberg and Toni C. Hamburg for Home Insurance Company, respondent.

      James P. Corcoran, as Superintendent of Insurance, respondent precluded.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice David B. Saxe at Supreme Court, New York County (143 Misc 2d 706), and the reasons stated in the memorandum of the Appellate Division (168 AD2d 281).

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

Titone, J.

(dissenting). The Court concludes that defendant Home Insurance Company (Home) — which agreed to provide a second layer of excess insurance coverage to plaintiffs — is not required to "drop down” and close the gap in coverage created by the insolvency of an underlying insurer. Inasmuch as the majority’s holding, in our view, serves only to encourage excess insurers to draft policies which fail to inform policyholders in clear and unequivocal language that they — and not the excess insurer — bear the risk of an underlying carrier going insolvent, we respectfully dissent.

Plaintiffs, the owners of a Queens apartment complex, purchased three layers of liability insurance coverage. The primary carrier provided $1 million in coverage. Mission Insurance Company — now insolvent — provided $10 million in excess of that, and Home agreed to provide a final layer of $15 million.

In 1985, a fire broke out and three tenants commenced a personal injury action seeking damages of $24 million. Although the Mission policy was in force on the day of the fire, that company’s subsequent insolvency led to a dispute between Ambassador and Home as to whether Home had to drop down to fill the gap in coverage. Supreme Court held that Home’s policy was unambiguous and did not require it to drop down (143 Misc 2d 706), and the Appellate Division agreed (168 AD2d 281). We, however, conclude that the critical language in the policy did not clearly inform plaintiffs that they bore the risk of an underlying insurer’s insolvency.

At the heart of this case are two provisions in the policy. The first (the "insuring” clause) provides in relevant part: "[Home] hereby agrees to pay on behalf of the Insured the Ultimate Net Loss in excess of the Underlying Insurance as shown in Item 4 of the Declarations”.

The second (the "maintenance” clause) provides:

"The limits of the Underlying Insurance shall be maintained in full effect during the currency of this policy except for reduction of such limits by exhaustion of aggregate limits (if any) contained therein by paying or by having been held liable to pay for damages for accident(s) or occurrence^), whichever is applicable, during Each Annual Period of this policy. Failure of the Insured to comply with the foregoing shall not invalidate this policy but in the event of such failure, the company shall be liable only to the extent that it would have been held liable had the Insured complied therewith.”

Careful examination of the function and interrelationship of these clauses reveals that plaintiffs’ policy is simply ambiguous on the point of drop down coverage. Therefore, under our rule that "if a policy of insurance is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company” (Hartol Prods. Corp. v Prudential Ins. Co., 290 NY 44, 49), we would grant summary judgment in favor of plaintiffs.

There are essentially two general types of excess insurance policies. Policies falling within the first category typically provide that the insurer is under a duty to pay net loss in excess of the "valid and collectible” underlying insurance. With respect to such policies, the insurer is clearly under an obligation to drop down and fill the void in coverage created by the insolvency of an underlying carrier (see, Gladstone v Ritter Co., 133 Misc 2d 922). Excess insurance policies falling within the second category, in contrast, usually provide that the insurer is obligated to pay net loss in excess of the "limits” or the "amount” of the underlying insurance. As to such policies, the "limit” or "amount” sets a fixed dollar point at which the excess insurer’s liability attaches (see, St. Vincent’s Hosp. & Med. Center v Insurance Co., 117 Misc 2d 665; Molina v United States Fire Ins. Co., 574 F2d 1176).

Here, of course, neither form of operative language is present — the policy merely provides that Home will pay net loss "in excess of the Underlying Insurance.” From this clause alone it is impossible to tell whether Home must pay in excess of what is available from the underlying insurance, or in excess of the limits of the underlying insurance, regardless of availability. This ambiguity alone justifies summary judgment in the insured’s favor (see, United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 232; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398; Breed v Insurance Co., 46 NY2d 351, 353; Miller v Continental Ins. Co., 40 NY2d 675, 678).

Moreover, despite Home’s assertions to the contrary, it is plain to us that it was the policy’s maintenance clause — not its insuring clause — which was intended to protect Home against having to drop down under ordinary circumstances. The maintenance clause required the insured to maintain the "limits” of the underlying insurance policy in effect. If the insured complied, Home would — as a general rule — have a $10 million cushion of "underlying Insurance” to "pay in excess of.” And if the insured did not, Home would be liable only to the extent that it would have been had the insured complied. Here, plaintiffs did meet their obligations by keeping the Mission policy in full force through the date of the loss (see, Donald B. MacNeal, Inc. v Interstate Fire & Cas. Co., 132 Ill App 3d 564, 477 NE2d 1322). Having done so, they should not be denied the benefit of their bargain.

Order affirmed, etc.

       Item 4 of the Declarations provides:
      "Schedule of Underlying Insurance "First Underlying Insurance Policy:
      "Carrier, Policy No. and Term:
      Applicable Limit:
      $10,000,000. Each Occurrence
      "Mission Insurance Co.
      "To be advised
      "10/23/84-85
      $10,000,000. Annual Aggregate”.


text:
    Jeffrey J. Klein, Appellant, v Regina Klein, Respondent.
    Argued January 9, 1992;
    decided February 13, 1992

      APPEARANCES OF COUNSEL

      Joseph DiBenedetto for appellant.

      Eñe A. Seiff, Abigail Pessen and Paul A. Tumbleson for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the orders of Supreme Court, Nassau County, dated June 21,1989 and October 26, 1989, should be reinstated.

The only aspect of the extended matrimonial dispute between the parties before this Court relates to their former marital residence. The parties entered into a stipulation of settlement, which was not merged into and expressly survived the 1987 divorce judgment. Under the terms of the settlement, appellant former husband was entitled to exclusive occupancy of the marital residence until the occurrence of specified events, after which the house was to be sold. Both the settlement and the judgment contained a "no oral modification” clause.

The question now presented is whether the settlement provision concerning the residence was subsequently orally modified to grant respondent former wife the exclusive right to reside in the former marital residence until the occurrence of the events specified in the settlement. The Appellate Division (169 AD2d 817) found a modification of the formal settlement terms sustainable within the principles established in Rose v Spa Realty Assocs. (42 NY2d 338, 343), concluding that the parties’ subsequent conduct was unequivocally referable to an alleged oral agreement between the former spouses. We disagree based on the rationale and principles of Anostario v Vicinanzo (59 NY2d 662).

Whether oral modification of a surviving separation agreement with a no-oral-modification clause is enforceable and may satisfy the Statute of Frauds in certain circumstances, we nevertheless conclude in this case that respondent former wife has not sufficiently presented a basis for application of the narrow partial performance exception to the Statute of Frauds (General Obligations Law § 5-703 [1]; § 15-301 [1]; Anostario v Vicinanzo, supra). She has been residing in the former marital residence and is paying her former husband, the appellant, "rent” in the amount of $1,300 per month. Her conduct in these respects and her former husband’s acceptance of this arrangement are not, as a matter of law on the record before us, "unequivocally referable” to an alleged oral agreement that respondent former wife could remain in the former marital residence until such time as the stipulation of settlement triggers a sale of the house. Although such an oral agreement, if indeed it had been made, would provide one possible motivation for the parties’ conduct, their acts are "equivocal” and can also be "reasonably explained by the possibility of other expectations”, such as the appellant former husband’s expectation that the former wife would reside in the former marital residence for a short period of time, only until she made alternative living arrangements (Anostario v Vicinanzo, 59 NY2d 662, 664, supra). The Statute of Frauds, therefore, bars the former wife’s claim of an alleged oral modification of the terms of the settlement and judgment concerning the sale of the former marital residence. No basis for application of the asserted exception to that bar has been demonstrated, and Supreme Court correctly directed enforcement under the terms of the stipulation of settlement rather than a modification of it.

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

Order reversed, etc.


text:
    Stephen Breitstone, Respondent, et al., Plaintiff, v Hertz Corporation et al., Appellants.
    Submitted February 3, 1992;
    decided February 13, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the stipulation for judgment absolute is illusory and frustrates the purpose of CPLR 5601 (c). Motion for a stay dismissed as academic.


text:
    In the Matter of Anthony Ebron, Appellant, v Carol Berkman, as Justice of the Supreme Court of the State of New York, Respondent.
    Submitted December 9, 1991;
    decided February 13, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Errol Flynn, Appellant.
    Argued January 10, 1992;
    decided February 18, 1992

      APPEARANCES OF COUNSEL

      Kenneth Finkelman and Philip L. Weinstein for appellant.

      Richard A. Brown, District Attorney (Aprilanne Agostino and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by dismissing the indictment as to count 4, leaving the scene of an accident, and, as so modified, affirmed.

Defendant has been convicted of leaving the scene of an accident without reporting (Vehicle and Traffic Law § 600 [1] [a]) and other crimes. At trial, complainant testified that defendant struck the door of complainant’s parked vehicle, assaulted him, and then left the scene of the accident without providing a license or insurance identification card. Defendant testified that the accident occurred when the complainant suddenly opened the door so that it extended into his lane of travel. He claims that he stopped after striking the door but that a fight developed over who caused the accident and that complainant ran away before defendant had a chance to provide the information. Defendant testified that he then drove to his home, two blocks away, intending to report the accident to the police, but that he was arrested before he was able to do so.

Vehicle and Traffic Law § 600 (1) (a) provides, in part, that any person operating a motor vehicle who knowingly causes damage to the personal property of another, "shall, before leaving the place where the accident occurred, stop, exhibit his license and insurance identification card for such vehicle * * * and give his name, residence * * * insurance carrier and insurance identification information * * * to the party sustaining the damage.” The section further provides that where "the person sustaining the damage is not present at the place where the damage occurred,” then the operator "shall report the same as soon as physically able to the nearest police station, or judicial officer” (Vehicle and Traffic Law § 600 [1] [a]). Defendant claims that the trial court committed reversible error when it failed to instruct the jury, in accordance with Vehicle and Traffic Law § 600 (1) (a), that if the "person sustaining the damage is not present at the place where the damage occurred,” the People must prove that the person causing the damage did not "report the same as soon as physically able to the nearest police station, or judicial officer.”

It is well settled that all the elements of an indicted crime which are not conceded by defendant or defendant’s counsel must be charged (see, People v Lewis, 64 NY2d 1031, 1032; People v Walker, 198 NY 329, 334). This is so because " '[n]o matter how conclusive the evidence * * * each of the * * * fundamental facts [is] for the jury to pass upon’ ” (People v Lewis, supra, at 1032; People v Walker, supra, at 334). Here, immediately after apprising the jury of Vehicle and Traffic Law § 600 (1) (a), the court instructed the jury that the People need only prove that defendant did not report the accident at the scene. By instructing the jury in this manner, the court deprived it of the opportunity to pass upon whether complainant had fled the scene of the accident before defendant had an opportunity to exchange information with him and whether defendant had actually attempted to report the accident to the police from his home.

The People contend that the trial court properly declined to charge the disputed element of Vehicle and Traffic Law § 600 (1) (a) because defendant, through his testimony, admitted or conceded that element. On the contrary, it was defendant’s claim that he could not exchange information with the complainant at the scene and that he therefore tried to contact the police. Had the jury believed this evidence, they could have found him not guilty of the Vehicle and Traffic Law charge. Accordingly, the trial court committed reversible error when it deprived the jury of the opportunity to pass upon these facts (see, People v Steele, 26 NY2d 526, 529; People v Brady, 16 NY2d 186, 189-190).

Defendant also raises a Rosario claim. Prior to trial, defendant requested from the People a copy of a motor vehicle accident report filed by the complainant with the Department of Motor Vehicles, claiming that the report constituted Rosario material. We have consistently held that the People’s Rosario obligation to produce the pretrial statements of prosecution witnesses is limited to material which is within their possession or control (see, People v Tissois, 72 NY2d 75, 78; People v Fishman, 72 NY2d 884, 886; People v Reedy, 70 NY2d 826, 827). Material in the possession of a State administrative agency, such as the Department of Motor Vehicles, is not within the control of a local prosecutor; thus the court properly denied defendant’s request.

Inasmuch as defendant has served his sentence, we do not order a new trial of the charges but dismiss count 4 of the indictment charging defendant with violating section 600 (1) (a) of the Vehicle and Traffic Law (see, People v Simmons, 32 NY2d 250; cf. People v Allen, 39 NY2d 916).

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

Order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    Margarita Minino, on Behalf of Herself and All Others Similarly Situated, Respondent, and Maria Ruiz, Intervenor-Respondent, v Cesar Perales, as Commissioner of the New York State Department of Social Services, Appellant, et al., Defendant.
    Argued January 14, 1992;
    decided February 18, 1992

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert J. Schack and Jerry Boone of counsel), for appellant.

      Elizabeth M. Imholz, Marc Cohan and John C. Gray, Jr., for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiffs are legal aliens admitted into the United States under sponsoring affidavits pursuant to 8 USC § 1182 (see also, 22 CFR former 42.91, redesignated 22 CFR 40.7). Within three years of entering the United States, plaintiffs sought public assistance. Defendants denied plaintiffs benefits under the Home Relief program based on the "deeming” provision of Social Services Law § 131-k (3), which provides that for three years after the alien’s entry into this country the income of a sponsor is deemed available to the sponsored alien for determining the alien’s eligibility for Home Relief benefits (see also, 18 NYCRR 349.3, 352.33). The State Department of Social Services administrative directive 81 ADM-55 interprets Social Services Law § 131-k (3) as requiring that the sponsor’s income be deemed available to the alien whether or not it is actually available. According to the administrative directive, aliens who cannot obtain their sponsor’s cooperation to provide income information are not eligible for Home Relief benefits. Plaintiffs’ sponsors refused to provide the required income information and defendants informed plaintiffs that they were not eligible for Home Relief benefits.

Home Relief is a public assistance program designed to aid needy persons who are not receiving assistance from other sources (see, Social Services Law § 131). The program is funded entirely by the State. Defendants do not dispute the holding of the courts below that the deeming provision of Social Services Law § 131-k (3) violates NY Constitution, article XVII, § l’s mandate that the State aid the needy (see, Tucker v Toia, 43 NY2d 1, 9). Defendants contend, however, that the income deeming policy applicable to the Federally funded Aid to Families with Dependent Children program (AFDC) (see, 42 USC § 615), upon which Social Services Law § 131-k (3) is modeled, was intended by Congress to serve the important governmental purpose of discouraging unqualified immigration into the United States. Thus, defendants argue that Federal preemption in the field of immigration mandates that Social Services Law § 131-k (3) be upheld to conform to congressional intent. In effect, defendants claim that the doctrine of Federal supremacy prohibits the State courts from holding a State statute as applied to a State-funded program unconstitutional under the State Constitution because such a ruling would impliedly conflict with Federal legislation. We disagree.

Defendants have failed to show that by enacting the Federal deeming policy concerning aliens’ eligibility for AFDC, Congress intended to preempt State assistance for aliens as a matter of immigration policy. Even though striking down the State deeming policy of Social Services Law § 131-k (3) entitles aliens to receive State public assistance, such action does not constitute a regulation of immigration subject to Federal preemption (see, De Canas v Bica, 424 US 351, 355). The Federal deeming policy was an amendment to the Federal AFDC statute, not the Federal immigration statute. Also, Congress rejected a proposed amendment to the Federal immigration statute that would have made sponsor agreements to support an alien legally binding obligations and instead amended the AFDC statute, suggesting that the Federal deeming provision was not an immigration regulation. Additionally, Congress’ failure to amend other Federal grant-in-aid programs, such as Medicaid, to include a sponsor income deeming provision indicates that Congress has not intended to create a comprehensive Federal benefits policy for sponsored immigrants. Thus, the sponsor income deeming amendment to the Federal AFDC statute does not require this Court to uphold an otherwise unconstitutional restriction on the State’s duty to aid the needy. Moreover, to the extent the purpose of the Federal deeming policy is to reduce the cost of the Federally funded AFDC program, that purpose is in no way thwarted by a State’s decision to expend its own funds in providing for its needy (see, New York Dept. of Social Servs. v Dublino, 413 US 405, 413; Rosado v Wyman, 397 US 397, 420; see also, Matter of Enomoto v Toia, 50 NY2d 826, affg 67 AD2d 1087).

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

Order affirmed, with costs, in a memorandum.


text:
    Bull & Bear Group, Inc., Respondent, v James W. Fuller, Appellant.
    Submitted December 30, 1991;
    decided February 18, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Debra Evans, Appellant, v New York City Housing Authority, Respondent.
    Submitted December 16, 1991;
    decided February 18, 1992
   Motion to dismiss appeal taken as of right granted and appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question.


text:
    Fundex Capital Corp., Respondent, et al., Plaintiff, v Wolf Reichard et al., Appellants, et al., Defendants. Leslie Blond, Nonparty Appellant.
    Submitted December 30, 1991;
    decided February 18, 1992
   Motion, treated as a motion for renewal and/or reargument of motion for leave to appeal, dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 78 NY2d 1007.]


text:
    The People of the State of New York, Respondent, v Neal Giraldi, Appellant.
    Submitted February 3, 1992;
    decided February 18, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).


text:
    Rochester Community Savings Bank, Respondent, v Fred C. Smith, Jr., Appellant.
    Submitted October 15, 1991;
    decided February 18, 1992
   Motion for reargument granted and, upon reargument, motion to amend this Court’s order dated June 13, 1991 dismissing movant’s motion for leave to appeal granted and said order is amended to read: "Motion for leave to appeal denied.” [See, 78 NY2d 909.]


text:
    Anthony Trotta, Respondent, v Benjamin Ward, as Police Commissioner of the City of New York, Appellant.
    Submitted December 16, 1991;
    decided February 18, 1992
   Motion for reargument dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 77 NY2d 827.]

Judge Alexander taking no part.


text:
    The People of the State of New York ex rel. Spiros A. Tsimbinos, on Behalf of Mark Greenstein, Appellant, v James M. Catterson, as District Attorney for Suffolk County, et al., Respondents.
    Submitted February 10, 1992;
    decided February 18, 1992
   Motion to vacate this Court’s January 16, 1992 order of dismissal denied. [See, 79 NY2d 849.]


text:
    In the Matter of Antoine W., a Person Alleged to be a Juvenile Delinquent, Respondent. Presentment Agency, Appellant.
    Argued January 7, 1992;
    decided February 20, 1992

      APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (Stephen J. McGrath and Leonard Koerner of counsel), for appellant.

      Kenneth Rabb and Lenore Gittis for respondent.
   OPINION OF THE COURT

Memorandum.

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

Although the police had an "objective credible reason” for approaching the defendant, the pointed questioning regarding the ownership of the bag and consent to search it was improper because it was not based on a founded suspicion of criminal activity (People v De Bour, 40 NY2d 210, 215). Because the defendant’s consent was a product of the improper police inquiry, the Family Court erred when it found that the defendant had consented to the search of his bag (see, People v Hollman, 79 NY2d 181 [decided today]).

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

Order affirmed, without costs, in a memorandum.


text:
    The People of the State of New York, Appellant, v Roberto Irizarry, Respondent.
    Argued January 7, 1992;
    decided February 20, 1992

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Leonard I. Picker and Norman Barclay of counsel), for appellant.

      Susan Hofkin Salomon and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The police officer’s observations of the defendant in this case provided him with an "objective credible reason” to approach the defendant and ask him questions about his destination and identity (see, People v Hollman, 79 NY2d 181 [decided today]; People v De Bour, 40 NY2d 210, 223). The police officer’s request to search the defendant’s bag was improper, however, because it was not based on a "founded suspicion that criminal activity [was] afoot” (People v Hollman, supra, at 191; People v De Bour, supra, at 223). Because the defendant’s consent was a product of the improper police inquiry, the trial court erred when it found that the defendant had consented to the search of his bag (see, People v Hollman, supra, at 194).

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

Order affirmed in a memorandum.


text:
    The People of the State of New York ex rel. Edwin Gonzalez, Also Known as Edwin Rodriguez, Appellant, v Warden of Anna M. Cross Center, Respondent.
    Decided February 20, 1992

      APPEARANCES OF COUNSEL

      Dominic J. Sichenzia for appellant.

      Robert Abrams, Attorney-General (Burton Herman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, and the certified question not answered as unnecessary.

Defendant was paroled on July 27, 1988. On October 21, 1988, he was stopped by New York City police officers who recovered a gun from him. Defendant was arrested and charged with criminal possession of a weapon, second degree, but the criminal charges were subsequently dismissed. As a result of the arrest, however, a parole revocation proceeding was instituted and defendant’s parole was revoked. Defendant subsequently instituted this habeas corpus proceeding contending that the gun was improperly received at the revocation proceeding. A Mapp hearing was held, the motion to suppress denied and the petition dismissed. On appeal petitioner challenged the suppression ruling.

At the suppression hearing, Officers Pao and Cincotta testified that while investigating a robbery in Brooklyn, they spoke with a homeless man, named Frankie Gonzalez (not related to defendant), whom Officer Pao knew and had spoken with on numerous occasions. In the past, Gonzalez had given information to the police which led to the arrest of another individual for possession of a hypodermic needle. As they were speaking, three men, including defendant, walked toward them. Gonzalez pointed to defendant and told the officers that the man in the middle in the black jacket (defendant) "always carries” a "silver gun” and that he robs drug dealers. When asked how he knew this, Gonzalez stated that he had seen defendant with the gun.

The officers got into their car and drove toward defendant who had turned onto another street and separated from his companions. The police stopped the car across the street from defendant, and the two officers exited with revolvers drawn. Officer Pao had his shield displayed around his neck and the officers further identified themselves by yelling "police”. The defendant then removed a pistol from his jacket pocket and started waving it around. Officer Pao instructed defendant to drop the gun, but defendant placed it back in his jacket and started running. The officers pursued and, at some point, defendant removed his jacket and dropped it. Officer Cincotta stopped to pick up the jacket, and Officer Pao eventually caught up with defendant and placed him under arrest. The gun and a quantity of drugs were recovered from the jacket. Defendant was charged with criminal possession of a weapon, second degree.

Defendant contends that the officers’ approach with drawn guns was illegal because it was based solely on the information given by Gonzalez that he had seen defendant on a prior occasion with a gun. The information, defendant contends, was insufficient to give the officers probable cause to believe that a crime was being or had been committed, and to approach defendant with guns drawn. The Appellate Division determined that the officers were possessed of information sufficient to provide them with reasonable suspicion to perform a forcible stop, and that they thereafter acquired probable cause when defendant displayed a gun.

We find it unnecessary to resolve the issue of the legality of approaching defendant with guns drawn because even if the initial stop of the defendant was unlawful, the evidence thereafter acquired need not be suppressed if there subsequently developed an independent basis supporting probable cause (see, People v Cantor, 36 NY2d 106, 111). In this case, once defendant took his gun out of his jacket and waved it toward the police officers, the officers would have had probable cause. The issue turns, therefore, on whether the gun was displayed as a direct consequence of the allegedly unlawful police action, or whether the gun was revealed as a result of defendant’s independent act (see, People v Boodle, 47 NY2d 398; People v Townes, 41 NY2d 97).

We conclude that defendant’s act of displaying his gun after the officers had identified themselves was the result of his independent act and was not tainted by any alleged prior illegality. The case is distinguishable from People v Cantor (36 NY2d 106, supra) where the defendant drew his gun as he was approached by several plain-clothed unidentified police officers, but replaced the gun and offered no resistance as soon as the officers identified themselves. In that case, defendant’s act directly resulted from being approached in a threatening manner by several men in street clothes.

The facts in this case are closer to those involved in People v Townes (41 NY2d 97, supra) in which the defendant drew his gun and attempted to fire at a plainclothesman who had already identified himself (see also, People v Boodle, 47 NY2d 398, supra [defendant’s act of throwing his revolver out the car window after he had entered the police car was an independent act]). As in Townes, we hold that defendant’s “free and independent action in pulling * * * the gun, taken after and in spite of, or perhaps because of, the plainclothes-mien’s] identification”, dissipated any possible taint of the prior police conduct (People v Townes, supra, at 102).

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

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


text:
    In the Matter of the Congregation B'Nai Jonah, Appellant, v Edward J. Kuriansky, as Deputy Attorney-General of the State of New York, et al., Respondents. (And Another Related Proceeding.)
    Submitted February 18, 1992;
    decided February 20, 1992
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the issues presented have become moot.


text:
    Curtis MacDonald, Inc., Respondent, v Clifford Fur Company, Appellant.
    Submitted January 6, 1992;
    decided February 20, 1992
   Motion for leave to appeal from the Appellate Division order which affirmed Supreme Court’s order denying defendant’s motion to vacate the judgment dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Robert J. Shedrick, Appellant, v Thomas A. Coughlin, as Commissioner of Correctional Services, et al., Respondents.
    Submitted December 9, 1991;
    decided February 20, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Tri-County Taxpayers Association, Inc., et al., Appellants, v Town of Bolton et al., Respondents, and Green Island Associates et al., Intervenors-Respondents.
    Submitted January 13, 1992;
    decided February 20, 1992
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Ronnie Wade, Appellant, v Kevin Fisk, Respondent.
    Submitted December 30, 1991;
    decided February 20, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Willie Walker, Appellant, v Raul Russi, as Chairman of the New York State Board of Parole, Respondent.
    Submitted December 9, 1991;
    decided February 20, 1992
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Appellant, v Robert R. Ashton, Respondent.
    Decided February 20, 1992
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Respondent, v Harold Palacios, Appellant.
    Decided February 25, 1992

      APPEARANCES OF COUNSEL

      Todd D. Greenberg for appellant.

      Richard A. Brown, District Attorney (Elizabeth Fox 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 reversed and case remitted to the Appellate Division, Second Department, for consideration of issues raised, but not passed upon on the appeal to that court. In this Court the People concede, with commendable candor, that they inadvertently misled the Appellate Division when discussing the facts of our recent decision in People v Correa (77 NY2d 930) and that, inasmuch as they failed to declare their readiness for trial in this case, it is indistinguishable from Correa and controlled by it.

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


text:
    The People of the State of New York, Appellant, v Dave Kelly, Respondent.
    Decided February 25, 1992

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Paul Harnisch and Mitchell S. Brill of counsel), for appellant.

      Susan Allee and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (People v Harrison, 57 NY2d 470, 477-479).

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 Walter White, Appellant.
    Argued January 7, 1992;
    decided February 25, 1992

      APPEARANCES OF COUNSEL

      Mitchell J. Briskey and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

That court properly concluded, contrary to defendant’s contention on this appeal, that the trial court did not err in refusing to instruct the jury on the affirmative defense of extreme emotional disturbance (Penal Law § 125.25 [1] [a]).

In order for defendant to be entitled to such an instruction, a court must determine that sufficient credible evidence has been presented for the jury to find, by a preponderance of the evidence, that the elements of the affirmative defense have been established (see, People v Moye, 66 NY2d 887, 890, n). The affirmative defense has two components: an objective element requiring sufficient proof that there was a reasonable explanation or excuse for the emotional disturbance, and a subjective element requiring sufficient proof that the conduct was influenced by an extreme emotional disturbance at the time the alleged crime was committed (see, People v Moye, supra, at 889-890; People v Casassa, 49 NY2d 668, 679, cert denied 449 US 842; Penal Law § 125.25 [1] [a]). This appeal centers on the second element.

We note initially that defendant’s steadfast claim of innocence cannot defeat his entitlement to the instruction solely because an affirmative defense of extreme emotional disturbance would be inconsistent with an outright denial of involvement in the crime (see, People v Butts, 72 NY2d 746, 748). Here, however, defendant’s repeated claims of innocence necessarily impacted upon the sufficiency of the evidence offered to demonstrate that he acted under the influence of extreme emotional disturbance at the time of the homicide.

Viewing the evidence in the light most favorable to the defendant, as we must in considering whether the instruction should have been given, we agree with the Appellate Division that defendant may have met his burden with respect to the first element of the affirmative defense by evidence of a violent and tumultuous relationship with his wife. The fact that defendant had been repeatedly humiliated by her was sufficient to establish the requisite provocation. However, the second element of this defense cannot be inferred from the provocative act itself, which occurred weeks before the homicide.

While the passage of time alone is not sufficient to defeat, as a matter of law, a claim of extreme emotional disturbance (see, People v Patterson, 39 NY2d 288, 303, affd 432 US 197), there nevertheless remains the need for some proof that a temporally remote provocative act affected the defendant at the time of the homicide to such a degree that a jury could reasonably conclude that he acted under the influence of an extreme emotional disturbance. This record is barren of any statement of defendant or other witnesses, or any other evidence, establishing the events which immediately preceded the commission of the crime or defendant’s state of mind at the time the homicide occurred. Thus, any findings the jury might have made in this respect would have been pure speculation.

Defendant concedes that the evidence upon which he relies to support the subjective element of the affirmative defense is largely circumstantial and focuses primarily on his actions after the homicide. As he testified, after he found his wife dead in their apartment, he washed her body, wrapped it in a bedspread and placed it in a closet in their apartment where it remained, decomposing, for one week, as he went about his daily activities of cleaning and cooking for his stepchildren. He contends that this posthomicide circumstantial evidence of highly abnormal activity, considered in the light of the prior tumultuous relationship with the deceased, is probative of his state of mind at the time of the killing such that the jury could have inferred that he was acting under the influence of an extreme emotional disturbance.

We disagree and conclude that this evidence, which relates solely to defendant’s posthomicide conduct, failed to establish the necessary second element of the affirmative defense. Thus, instructing the jury as to the defense, under the circumstances of this case, would have done no more than invite impermissible speculation as to defendant’s state of mind at the time of the killing (see, People v Walker, 64 NY2d 741, 743).

Contrary to defendant’s contention, neither People v Moye (66 NY2d 887, supra) nor People v Roe (74 NY2d 20) requires a different result. In contrast to the paucity of evidence here, in Moye, defendant’s heinous acts, combined with his numerous statements made to the police and the prosecutor regarding his state of mind and the events that transpired immediately prior to the killing, constituted sufficient evidence of a loss of self-control associated with the affirmative defense of extreme emotional disturbance so as to warrant the charge. In Roe, our primary concern was not, as here, defendant’s mens rea but whether an objective assessment of the circumstances surrounding defendant’s discharge of a shotgun was sufficient to support a finding of the serious risk of death required for depraved indifference murder.

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

Order affirmed in a memorandum.


text:
    Lillian Jorge et al., Individually and as Parents of Emory E. White, an Infant, Respondents, v New York City Health and Hospitals Corporation, Appellant.
    Argued January 10, 1992;
    decided February 25, 1992
    APPEARANCES OF COUNSEL

      Victor A. Kovner, Corporation Counsel (William J. Thom and Kristin M. Helmers of counsel), for appellant.

      Michael D’Agostino and Robert D. Becker for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendant’s motion to dismiss granted and the certified question answered in the negative.

In January 1985, plaintiff, who has the genetic trait for sickle cell anemia, began receiving prenatal care at a hospital owned and operated by defendant New York City Health and Hospitals Corporation. Aware that a child of parents who both have the sickle cell trait has a 25% chance of being born with the disease, plaintiff also arranged for the father of her unborn child to be genetically tested for that trait. On January 16, 1985, the father’s test results were erroneously read as negative. Plaintiff, who alleges she otherwise would have terminated her pregnancy, thereafter carried to term, and on August 30, 1985, gave birth to an infant, who two weeks later was discovered to have sickle cell anemia.

On September 11, 1986, plaintiff commenced this action for medical malpractice, seeking damages for the pecuniary expenses to be incurred in the care and treatment of the child during his lifetime. Defendant, in turn, moved to dismiss the action on the ground that it was untimely. In granting that motion, Supreme Court rejected plaintiff’s contention that the one-year-and-90-day Statute of Limitations had been tolled by reason of the continuous treatment doctrine. On appeal, however, a divided Appellate Division reversed.

Contrary to the conclusion reached by the Appellate Division, the continuous treatment doctrine did not serve to toll the Statute of Limitations in this case. That doctrine applies only when the course of treatment which includes the wrongful act or omission has run continuously and is related to the same original condition (see, Nykorchuck v Henriques, 78 NY2d 255, 258-259; McDermott v Torre, 56 NY2d 399, 405; Borgia v City of New York, 12 NY2d 151, 155). Here, however, the alleged act of malpractice — the misreading of the father’s genetic test results — was simply not committed in relation to the ongoing obstetric care that plaintiff received (see, Nykorchuck v Henriques, supra, at 259). Accordingly, the continuous treatment doctrine does not apply, and therefore this action must be dismissed as untimely.

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

Order reversed, etc.

       McKinney’s Uncons Laws of NY § 7401 (2) (New York City Health and Hospitals Corporation Act § 20 [2]; L 1969, ch 1016, § 1, as amended).


text:
    The People of the State of New York, Respondent, v Manuel Jackson, Appellant.
    Decided February 25, 1992
    APPEARANCES OF COUNSEL

      Ira Mickenberg for appellant.

      Robert M. Morgenthau, District Attorney (Myles L. Orosco of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In August 1989, Police Officer Kevin Sherlock, while on routine motor patrol in Manhattan, received a report of an abduction in progress at 125th Street and Morningside Avenue. The report specified that two men in a grey four-door Volvo had kidnapped a third man and were holding him in the back seat of the car. Moments after receiving the transmission, Officer Sherlock spotted a vehicle which matched the description given in the radio run heading south on Morning-side Avenue at 117th Street. He then followed the vehicle and ordered its driver to pull over near 116th Street and Seventh Avenue. Several other officers, including Sergeant Robert Rivera, subsequently arrived at the scene. While Officer Sherlock approached the driver and asked him for his license and registration, Sergeant Rivera proceeded to the passenger side of the automobile, where defendant was sitting. Upon observing a plastic bag at defendant’s feet, the sergeant reached through the window of the car, picked up the bag, and, without opening it, shined his flashlight through it. Detecting what he believed to be marihuana, Sergeant Rivera ordered defendant out of the car. Defendant complied, and was subsequently placed under arrest. The ensuing search of defendant’s person disclosed the presence of a loaded .38 caliber revolver in defendant’s waistband. Defendant was thereafter indicted for criminal possession of a weapon in the third degree. Prior to trial, defendant moved to suppress the physical evidence that had been seized at the time of his arrest. After conducting a Mapp hearing, Supreme Court, New York County, denied defendant’s motion; and defendant subsequently pleaded guilty. On appeal, the Appellate Division affirmed.

Defendant does not dispute that the police had a legitimate basis to stop the vehicle in which he was riding; rather, he contends that the permissible scope of the stop was exceeded when Sergeant Rivera reached into the car and shined his flashlight through the plastic bag. We disagree. Inasmuch as the sergeant’s actions were reasonably necessary, under the circumstances, to ensure that the bag — which was well within defendant’s immediate reach — did not contain a weapon or some other instrumentality that posed a threat to the sergeant’s or his fellow officers’ safety, defendant’s right to be free from unreasonable searches and seizures was not impinged (see, People v Samuels, 50 NY2d 1035, 1037; see also, Terry v Ohio, 392 US 1).

Contrary to defendant’s contention, our holding in People v Torres (74 NY2d 224) does not dictate a contrary result. There, the police proceeded to search a bag located on the front seat of a car that they had just stopped after the suspect had been removed from the vehicle. We concluded that, inasmuch as the police had already isolated the suspect from the bag, the search could not be said to have been "reasonably related to the need to protect the officers’ safety” (id., at 231). Here, by contrast, the rather cursory examination of the bag occurred while defendant was still sitting in the car. Since, at that point, the bag was still within defendant’s reach, the police were justified in examining it.

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:
    The People of the State of New York, Respondent, v Sean Harris, Appellant.
    Decided February 25, 1992

      APPEARANCES OF COUNSEL

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

      Richard A. Brown, District Attorney (Alexander P. Schlinger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant pleaded guilty to attempted burglary in the second degree in satisfaction of an indictment charging him with second degree burglary and criminal mischief. At the plea allocution, defendant, who was represented by counsel, was promised a conditional probationary sentence but was warned that he could be sentenced in absentia to a prison term of 2 Vs to 7 years if he failed to appear for sentencing. Defendant did not appear and the sentencing proceeding was adjourned. Defendant again failed to appear, although his counsel was present. The sentencing court determined after a hearing that defendant’s absence was voluntary and sentenced him to 2 to 6 years in prison. Several months later, defendant was arrested and returned to court on a bench warrant and the sentence was summarily executed. Defendant’s counsel was not present, and defendant did not request an opportunity to explain his absence at sentencing and was not asked to do so.

Defendant argues that he was denied due process and the right to counsel at execution of sentence. Sentencing is a critical stage of a criminal proceeding which implicates the right to counsel (Mempa v Rhay, 389 US 128; People v Perry, 36 NY2d 114, 119). However, where a defendant is sentenced in absentia while represented by counsel, the critical stage of the sentencing process and, hence, the criminal proceeding itself for all nisi prius court purposes, terminates upon the imposition of sentence. Subsequent execution of the sentence is not a critical stage of the defendant’s criminal proceeding (see, People v Scott, 158 AD2d 725, 726; People v Villegas, 146 AD2d 228, 232). Therefore, defendant was not entitled to counsel under the circumstances of this case.

We have examined defendant’s remaining argument and conclude that it is not preserved for our review.

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:
    Coliseum Hotel Associates, Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents. Corporate Property Investors et al., Respondents, and Garden City Enterprises, Respondent-Appellant, v Board of Assessors of the County of Nassau et al., Appellants-Respondents.
    Submitted January 6, 1992;
    decided February 25, 1992
   Motion for leave to cross-appeal in each action dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    John F. Coughlin, Sr., et al., Appellants, v General Electric Company et al., Respondents. (And a Third-Party Action.) (And 23 Other Actions.)
    Submitted February 10, 1992;
    decided February 25, 1992
   Motion for leave to appeal by plaintiffs Coughlin et al. dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal by plaintiffs Ball et al. dismissed as untimely. Motion for a stay dismissed as academic.

Judge Hancock, Jr., taking no part.


text:
    In the Matter of the Guardianship of the D. Children. Elaine G., Appellant; Sonya G. (Deceased) et al., Respondents.
    Submitted January 21, 1992;
    decided February 25, 1992
   On the Court’s own motion, appeal dismissed, without costs, as untimely. Motion for leave to appeal dismissed as untimely.


text:
    William A. Guilford, Appellant, v City of Buffalo et al., Respondents.
    Submitted January 6, 1992;
    decided February 25, 1992
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.


text:
    John Land, Appellant, v City of New York, Respondent, et al., Defendant.
    Submitted January 6, 1992;
    decided February 25, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying plaintiffs postjudgment motion to set aside the verdict 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 with $100 costs and necessary reproduction disbursements.

Judge Alexander taking no part.


text:
    James P. Maloney, Appellant, v Board of Education of the City of Buffalo et al., Respondents.
    Submitted January 13, 1992;
    decided February 25, 1992
   Motion for leave to appeal as against defendant Board of Education dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Apple Health and Sports Clubs, Ltd., Inc., et al., Appellants.
    Submitted February 20, 1992;
    decided February 25, 1992
   Motion to stay the posting of a $500,000 bond and the contempt hearing granted and each are stayed pending the argument and disposition of the appeal.


text:
    The People of the State of New York, Respondent, v Jerry Fulmore, Appellant.
    Submitted February 18, 1992;
    decided February 25, 1992
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (People v Ellis, 71 NY2d 1012; People v Parker, 71 NY2d 887; People v Pacheco, 67 NY2d 631; People v Mintz, 20 NY2d 753, 770).


text:
    The People of the State of New York, Respondent, v Frank Marsicoveteri, Appellant.
    Submitted February 10, 1992;
    decided February 25, 1992
   Motion for leave to appeal dismissed upon the ground that no appeal lies to the Court of Appeals from an order of the Appellate Division denying a motion for a writ of error coram nobis (CPLR 5601, 5602; CPL 450.90; see, People v Tramell, 77 NY2d 893).

Judge Alexander taking no part.


text:
    The People of the State of New York, by Robert Abrams, as Attorney-General of the State of New York, Respondent, v Westchester County S.P.C.C. et al., Defendants, and "A", Appellant.
    Submitted February 10, 1992;
    decided February 25, 1992
   Motion for reargument of motion for leave to appeal denied. Cross motion for imposition of sanctions denied. [See, 79 NY2d 819.]


text:
    Town of Oyster Bay, Appellant, v Syosset's Concern About Its Neighborhood (SCAN), Respondent.
    Decided December 19, 1991

      APPEARANCES OF COUNSEL

      John Venditto, Town Attorney (Helaine B. Freed of counsel), for appellant.

      Laura LaFace-Sapienza and Russell J. Karpp for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and declared that defendant is required to comply with the Town of Oyster Bay Building Code and Town of Oyster Bay Building Zone Ordinance (see, Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500).

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


text:
    The People of the State of New York, Respondent, v Gaspar Francis, Appellant.
    Argued February 14, 1992;
    decided March 26, 1992

      APPEARANCES OF COUNSEL

      Frank Loss and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Alexei Schacht and Patricia Curran of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]). The People argued at trial that the defendant constructively possessed 100 vials of crack cocaine that were found on the floor of a red Camaro. On appeal, the defendant argued that there was insufficient evidence that he exercised dominion and control over the area in which the drugs had been found (People v Sierra, 45 NY2d 56, 60; cf, People v Torres, 68 NY2d 677). The Appellate Division affirmed the conviction, with two Justices dissenting. We conclude that the evidence of constructive possession was legally insufficient and consequently reverse.

On the day of the arrest, defendant attended an afternoon meeting with his parole officer in downtown Manhattan. As he left the meeting, he was followed by several other parole officers. He entered the parking lot adjoining the building and walked up to the passenger side of a red Camaro, in which a woman was seated. At this time, two parole officers detained the defendant and searched the trunk of the car. One of the officers opened the door on the driver’s side and found a package containing 100 vials of crack, wrapped in clear plastic, on the floor of the car.

The evidence connecting the defendant to the cocaine was entirely circumstantial and as a result, the proof at trial was required to be inconsistent with the defendant’s innocence and to exclude to a moral certainty every other reasonable hypothesis (People v Giuliano, 65 NY2d 766, 767-768; People v Benzinger, 36 NY2d 29, 32). Even after viewing the evidence in the light most favorable to the prosecution (People v Contes, 60 NY2d 620), we conclude that the People have not satisfied this requirement. Although the defendant’s parole officer testified she had seen the defendant drive the red Camaro a week before the arrest and had seen it parked in the same lot, no one saw the defendant drive the car on the day of his arrest or at any other time. He did not own the car and it had not been reported as stolen. Nor were the keys to the car or a parking lot claim ticket in his possession at the time of his arrest. Although he did have the car’s registration and insurance card, this is consistent with his having driven the car a week earlier and certainly does not compel the conclusion that he was driving the car on that day. In addition, none of his possessions were found in the car.

Further, the defendant was away from the car, in a meeting with his parole officer, for some two hours prior to his arrest. Indeed, at the time of the arrest, a woman was seated in the car. Although the defendant walked directly to the passenger side of the car, we cannot infer from this alone that the defendant knew the woman seated in the car and that he jointly possessed the cocaine with her. In fact, the evidence presented at trial is fully consistent with a finding that the woman or someone else had placed the cocaine in the car without the knowledge or participation of the defendant.

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

Order reversed, etc.


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    In the Matter of the American Society for the Prevention of Cruelty to Animals et al., Appellants, v Board of Trustees of the State University of New York et al., Respondents.
    Argued February 11, 1992;
    decided March 26, 1992

      APPEARANCES OF COUNSEL

      Gary L. Francione and Eugene Underwood, Jr., for appellants.

      Robert Abrams, Attorney-General (Susan B. Blum and Jerry Boone of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Appellants brought a proceeding under the Open Meetings Law (Public Officers Law §100 et seq.) seeking access to meetings of the Laboratory Animals Use Committee (LAUC) of the State University of New York at Stony Brook. Supreme Court granted the petition but the Appellate Division reversed. We agree with the Appellate Division that the powers of the LAUC derive solely from Federal law (165 AD2d 561, 565-566), and for that reason alone — and passing on no other reason mentioned by the Appellate Division — conclude that the Committee is not a public body as defined in the Open Meetings Law.

Federal law requires that each "research facility” form an Institutional Animal Committee (LAC), which in general is responsible for approving experiments involving animals and inspecting facilities to assure compliance with humane-treatment standards (see, 7 USC § 2143; 9 CFR 2.31). The law requires that the committee be comprised of at least three members, that a majority of members constitute a quorum, and that there be a quorum for all formal actions (7 USC § 2132 [m]; § 2143 [b] [1], [2]).

Public Officers Law § 103 (a) provides that "[e]very meeting of a public body shall be open to the general public,” except for executive sessions (see, Public Officers Law § 105). A "public body,” in turn, is defined as

"any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body.” (Public Officers Law § 102 [2]; emphasis added.)

It is thus evident that the Open Meetings Law excludes Federal bodies from its ambit.

The LAUC’s constituency, powers and functions derive solely from Federal law and regulations. Thus, even if it could be characterized as a governmental entity, it is at most a Federal body that is not covered under the Open Meetings Law.

Appellants’ reliance on a regulation of the New York State Department of Health (10 NYCRR 55-1.4 [b]) is misplaced. That regulation does not grant the "animal care committee” formed thereunder any of the powers similar to an IAC that might render it a governmental body, and therefore the State regulation does not create an entity that is subject to the Open Meetings Law.

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

Order affirmed, with costs, in a memorandum.

      . LAUC is respondents’ name for its LAC. The LAC is alternatively referred to in Federal regulations as an Institutional Animal Care and Use Committee (see, 9 CFR 2.31).

      . The regulation provides that a "laboratory or institution shall have an animal care committee which shall be responsible for the review of the propriety of the procedures used and the scientific justification for the use of animals in experiments, tests, and investigations, including educational demonstrations.”


text:
    Patricia A. Gray, Appellant, v Paul Pashkow, Respondent.
    Argued February 12, 1992;
    decided March 26, 1992

      APPEARANCES OF COUNSEL

      Allan E. Mayefsky and Morton I. Baum for appellant.

      Mark Lewis Schulman for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant’s cross motion for summary judgment denied.

The parties were married in 1958 and their son, Peter, was born in 1959. He suffers from the learning and developmental disability of autism, for which he has had special education and care. The plaintiff mother and defendant father were divorced in 1966. The judgment incorporated their separation agreement of that year, which provided in pertinent part:

"whereas, [Peter] is now attending The Bancroft School in Haddonfield, New Jersey, and has been at said school for some time and [defendant] is defraying all the costs for the care, maintenance, education and medical, dental and surgical treatments and requirements of [Peter], and "whereas, the parties desire * * * to define the financial obligations of [defendant] for the welfare, well being, education, maintenance and care of [Peter] * * *
"thirteenth: (a) [Defendant] covenants and agrees to defray the entire cost for the care, maintenance, education and medical, dental and surgical requirements for [Peter] * * *. (b) [Defendant] covenants and agrees to pay the tuition and incidental expenses of [Peter] while he is attending The Bancroft School at Haddonfield, New Jersey, or any other school that may be suitable for [him].”

Defendant father made payments in accordance with this agreement until 1982. Thereafter, plaintiff mother paid the costs of Peter’s education and care. She sued defendant in 1989 seeking reimbursement of $133,016.87 she paid on behalf of their son for education and care from January 1, 1983 through July 31, 1989, claiming that defendant father was obligated to continue the payments pursuant to their agreement. Defendant asserted as an affirmative defense, inter alia, that he had no obligation to support Peter beyond the age of 21 years.

Supreme Court, Sullivan County, inter alia, denied defendant’s cross motion for summary judgment dismissing the complaint. The Appellate Division on cross appeals modified the Supreme Court order to the extent of granting defendant’s cross motion for summary judgment dismissing the complaint. The court held essentially that the parties’ written contract did not expressly indicate that defendant’s support obligation was to continue beyond their child reaching age 21, and resolved the contract ambiguity in defendant’s favor (173 AD2d 1100). The court reasoned that "while * * * parent[s] may by agreement obligate [themselves] to pay child support for a child over the age of 21 * * * only 'an express agreement in unmistakable terms’ will cause such contractual liability to attach (Hoffman v Hoffman, 122 AD2d 583, 584, lv dismissed 69 NY2d 706)” (173 AD2d 1100, 1101, supra). Two Justices dissented and an appeal as of right was taken.

Irrespective of statutory child support obligations and changes in the law in that respect, this is a case involving a contractual obligation governed by ordinary contractual principles (see, Matter of Meccico v Meccico, 76 NY2d 822). Under those principles, the fact that an agreement is ambiguous does not result in a grant of summary judgment in either party’s favor. In this case, ambiguities incapable of resolution on a motion for summary judgment were created by the words used in the pertinent contractual provision describing: the subject of coverage — "child” and "infant”; the duration of the obligation — "while”; and the location and nature of the special education services — "school” or "suitable” substitute. Defendant is not entitled to summary judgment in the face of these ambiguities.

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

Order reversed, etc.


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    Zoran Cvetichanin, Respondent, v Trapezoid Land Co. et al., Appellants.
    Submitted November 18, 1991;
    decided March 26, 1992
   Motion for leave to appeal dismissed upon the ground that the order of the Appellate Division sought to be appealed from has been recalled and vacated by a subsequent order of the Appellate Division which does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Richard M. Gold (Admitted as Richard Murray Gold), an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted December 30, 1991;
    decided March 26, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Will Washington, Appellant, v Sally B. Johnson, as Superintendent of Orleans Correctional Facility, et al., Respondents.
    Submitted January 21, 1992;
    decided March 26, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Will Washington, Appellant, v Sally B. Johnson, as Superintendent of Orleans Correctional Facility, et al., Respondents.
    Submitted February 3, 1992;
    decided March 26, 1992
   Motion to vacate this Court’s January 15, 1992 rule 500.9 (b) (Rules of Court of Appeals, 22 NYCRR 500.9 [b]) order of dismissal granted. [See, 79 NY2d 852.]


text:
    The People of the State of New York, Respondent, v James L. Rouse, Appellant.
    Argued February 12, 1992;
    decided March 31, 1992
    APPEARANCES OF COUNSEL

      Donald M. Thompson for appellant.

      James B. Vargason, District Attorney, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of murder in the second degree and attempted murder in the second degree. He contends that the trial court committed reversible error when (1) it required him to appear throughout the trial before the jury in leg shackles and, (2) it failed to instruct the jurors to disregard the leg shackles.

Prior to voir dire, defense counsel requested that defendant’s handcuffs and leg irons be removed before defendant appeared before the jury panel. The trial court ruled "that at this point in time I will direct that the handcuffs be taken off. However, in view of the fact that Mr. Rouse has, according to counts [sic] in the paper, made two attempts to escape, there are at least five exits out of the courtroom and it would be — I just don’t think we have got the security on all five of them.”

We have stated that a defendant may not be physically restrained before the jury unless there is a reasonable basis, articulated on the record, for doing so (see, People v Mendola, 2 NY2d 270). Here, the court expressed its concerns with defendant’s escape attempts and the level of security in the courtroom. This evidence was sufficient to justify the court’s refusal to have defendant’s shackles removed.

Defendant contends, however, that the trial court erred when it failed to instruct the jurors to disregard his shackles even though he failed to request such an instruction. He relies upon People v Neu (124 AD2d 885), People v Mixon (120 AD2d 861) and People v Hart (112 AD2d 471).

Generally, if a defendant is required to appear in restraints before the jury the trial court should attempt to minimize the possibility of prejudice by instructing the jury to disregard the restraints (see, People v Palermo, 32 NY2d 222, 226). There are situations, however, where a defendant would not want the jury to be instructed in this regard. For example, a defendant might believe that the restraints were not particularly noticeable, especially if they were on the defendant’s feet under a table, and would not wish the court to call attention to them by giving an instruction (see, e.g., People v Tedesco, 143 AD2d 155, 159). Consequently, where a defendant fails to request an instruction regarding his restraints, a court is under no obligation to instruct the jury to disregard them.

We have considered defendant’s remaining contentions and conclude they present no grounds for reversal.

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 Wayne Kieser, Appellant.
    Decided March 31, 1992
    APPEARANCES OF COUNSEL

      Steven Demetrios Ateshoglou for appellant.

      Richard A. Brown, District Attorney (Alexander P. Schlinger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We agree with that Court’s conclusion that under the circumstances of this case, the failure of defendant’s counsel, who at the time of defendant’s trial was an attorney in good standing and duly licensed to practice law in New Jersey, to secure admission pro hac vice to practice in New York, did not aifect his professional qualifications or competence such as to deprive defendant of his right to counsel under the Federal and New York State Constitutions. Nor did counsel’s temporary suspension to practice law in New Jersey for nonpayment of Bar dues at the time he represented defendant deprive defendant of his right to counsel.

In People v Felder (47 NY2d 287), we held that where the defendant in a criminal proceeding had unknowingly been represented by a layman masquerading as an attorney, but who was not licensed to practice law, the defendant’s right to counsel as guaranteed by the Federal and New York State Constitutions was violated and therefore, his conviction must be set aside whether or not defendant was prejudiced by the representation. We expressly left open, however, the issue of whether a defendant’s representation by a lawyer who was temporarily not entitled to practice law may violate a defendant’s constitutional right to counsel (id., at 294, n 6).

Although the defendant’s right to counsel is guaranteed by the Sixth Amendment of the Federal Constitution and article I, §6 of the New York Constitution (US Const 6th, 14th Amends; NY Const, art I, § 6), not every defect in an individual’s ability to practice law renders his representation a deprivation of that right. Thus, courts have distinguished between those defects that are "technical”, i.e., those resulting from administrative suspension or censure for failure to comply with State Bar rules which have no bearing on the "qualification, competence or moral character of the defendant’s representative” (see, People v Chin Min Foo, 144 Misc 2d 589, 592; see also, United States v Novak, 903 F2d 883 [2d Cir]; Solina v United States, 709 F2d 160 [2d Cir]; Commonwealth v Thomas, 399 Mass 165, 503 NE2d 456; Dolan v State, 469 So 2d 142, 143 [Fla]) and those that are "serious and substantive” (United States v Novak, supra, at 890) such as a representative’s inability to practice law in any State because of a failure to seek admission or where admission to practice has been denied " 'for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character’ ” (People v Chin Min Foo, supra, at 592, quoting Solina v United States, 709 F2d 160, 167, supra).

Here, defendant’s attorney had attended law school and had been duly licensed to practice law in New Jersey until he was temporarily suspended from practice for nonpayment of Bar dues. We conclude that his temporary administrative suspension and his failure to be admitted pro hac vice in New York are "technical” defects which, under the circumstances here, cannot serve to support defendant’s right to counsel claim (see, e.g., United States v Bradford, 238 F2d 395 [2d Cir], cert denied 352 US 1002; People v Medler, 177 Cal App 3d 927, 223 Cal Rptr 401; Commonwealth v Thomas, 399 Mass 165, 503 NE2d 456, supra; Dolan v State, 469 So 2d 142 [Fla], supra; People v Cornwall, 3 Ill App 3d 943, 277 NE2d 766). Defendant’s remaining arguments 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:
    In the Matter of Steven Brostoff, Appellant, v Carol Berkman, as Acting Justice of the Supreme Court of New York County, Respondent.
    Argued February 13, 1992;
    decided March 31, 1992

      APPEARANCES OF COUNSEL

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

      Robert Abrams, Attorney-General (Abigail I. Petersen and Jerry Boone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, an Assistant District Attorney, refused to obey respondent, an Acting Justice of Supreme Court presiding at a calendar call, when she ordered the prosecutor to leave the well area of her courtroom. The verbal exchanges and actions that led the Justice to hold the prosecutor in summary criminal contempt are described in the Appellate Division writings (170 AD2d 364).

Petitioner’s statements and conduct, as reflected in the record before us, satisfied the prerequisites for respondent’s adjudication of summary contempt (contrast, Matter of Williams v Cornelius, 76 NY2d 542, 547). He willfully refused to exit the well area after an explicit and unambiguous judicial order to do so (Judiciary Law § 750 [A] [3], [4]). As this Court has noted in the past, "[hjowever misguided and erroneous the court’s order may have been, petitioner was not free to disregard it and decide for himself the manner in which to proceed” (Matter of Balter v Regan, 63 NY2d 630, 631).

Petitioner’s arguments that his due process rights were violated and that the mandate was defective under Judiciary Law § 752 are also without merit (see, Matter of Kunstler v Galligan, 79 NY2d 775, affg on App Div 168 AD2d 146).

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

Judgment affirmed, without costs, in a memorandum.


text:
    In the Matter of Behrooz Bassim, Appellant, v Thomas Sobol, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted February 10, 1992;
    decided March 31, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Albie S. Ferrucci, an Attorney, Appellant. Committee on Professional Standards, Third Judicial Department, Respondent.
    Submitted March 23, 1992;
    decided March 31, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Felix Ochoa et al., Respondents, v Wylda Amachree, Appellant.
    Submitted February 10, 1992;
    decided March 31, 1992
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the order of Supreme Court denying defendant’s motion to vacate, dismissed upon the ground that that part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied with $100 costs and necessary reproduction disbursements.


text:
    Phillips, Lytle, Hitchcock, Blaine & Huber, Respondent, v Henry E. Wyman, Appellant.
    Submitted January 27, 1992;
    decided March 31, 1992
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Cross motion for imposition of sanctions denied.


text:
    The People of the State of New York, Respondent, v Felix Rodriguez, Appellant.
    Submitted March 2, 1992;
    decided March 31, 1992
   Motion, insofar as it seeks to dismiss the indictment, dismissed upon the ground that the Court of Appeals has no jurisdiction to entertain an original motion seeking such relief; motion, insofar as it seeks to exclude from the record on appeal the transcript of the Grand Jury minutes provided to this Court on or about February 20, 1992, granted.

Judge Alexander taking no part.


text:
    In the Matter of Cornelius Stephens, Appellant, v Legal Aid Society of the County of Westchester et al., Respondents.
    Submitted February 3, 1992;
    decided March 31, 1992
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that it does not lie. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Robert L. Schulz et al., Appellants, v State of New York et al., Respondents.
    Submitted March 23, 1992;
    decided April 1, 1992
   Appeal transferred, without costs, by the Court of Appeals sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other them the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).

Judges Simons and Alexander taking no part.


text:
    Loretta Gaddy, Appellant, v Geoffrey S. Eyler, Respondent.
    Argued February 14, 1992;
    decided April 2, 1992

      APPEARANCES OF COUNSEL

      James M. Woolsey, Jr., for appellant.

      Arete Kontogiannis for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was involved in a motor vehicle accident in June 1987 when, while stopped for a red light, her vehicle was struck from behind. She instituted this action to recover damages for the resulting personal injuries.

After issue was joined, defendant moved for summary judgment contending there was no "serious injury” within the meaning of Insurance Law § 5102 (d). He established a prima facie case that plaintiffs injuries were not serious through the affidavit of a physician who examined her and concluded that she had a normal neurological examination. The burden then shifted to plaintiff to come forward with sufficient evidence to overcome defendant’s motion by demonstrating that she sustained a serious injury within the meaning of the No-Fault Insurance Law (see, Licari v Elliott, 57 NY2d 230, 235; Lopez v Senatore, 65 NY2d 1017). We agree with the Appellate Division that, accepting her allegations and those of her doctors as true, she has failed to do so and thus has not met the statutory threshold for maintaining this action.

Plaintiff claims that she suffered a serious injury because she sustained neck and back injuries which resulted in (1) "permanent consequential limitation of use” or "significant limitation of use,” (2) "permanent loss of use of a body organ, member, function or system,” and (3) "a medically determined injury or impairment of a non-permanent nature” which endured for 90 days or more and substantially limited the performance of her daily activities (see, Insurance Law § 5102 [d]). In support of her claim, she offered the affidavits and medical reports of her treating physician and a neurosurgeon, both of whom concluded that plaintiff sustained a chronic cervical and lumbosacral sprain and strain as a result of the accident.

Plaintiff’s proffered evidence, however, fails to demonstrate a "permanent consequential limitation of use of a body organ or member,” or a "significant limitation of use of a body function or system”. Even fully crediting their affidavits, her own doctors concluded that she had only a minor limitation of movement in her neck and back. We have previously held that a "minor, mild or slight limitation of use [is] classified as insignificant within the meaning of the [no-fault] statute” (Licari v Elliott, 57 NY2d 230, 236, supra; Scheer v Koubek, 70 NY2d 678).

For similar reasons we conclude that plaintiff has failed to substantiate her claim that she sustained a "permanent loss of use of a body organ, member, function or system” because of pain she experiences from movement of her neck or back, which she contends is aggravated by bending or heavy lifting. Although there is evidence of plaintiff’s subjective pain, there is no evidence supporting plaintiff’s claim of permanency (see, Scheer v Koubek, 70 NY2d 678, 679, supra). In his medical report, plaintiff’s neurosurgeon stated that he "imagined” that plaintiff would be unable to engage in significant bending and heavy lifting on a permanent basis, and that he "wouldn’t be surprised” if she had more significant neurological findings in the future, but was unable to diagnosis a specific injury suggestive of continuing intermittent pain or permanent loss of use. Indeed, the expert’s statements reflect the speculative nature of plaintiff’s condition (see, Scheer v Koubek, supra, at 679). Moreover, the mere repetition of the word "permanent” in the affidavit of plaintiff’s treating physician — prepared two years after his last examination and consisting of conclusory assertions tailored to meet the statutory requirements — is insufficient to establish "serious injury” (see, Lopez v Senatore, 65 NY2d 1017, 1019).

Lastly, plaintiff claims that she suffered an injury which prevented her from performing substantially all of her daily activities for a period of 90 days out of the 180 days after the accident. In order to prove "serious injury” under the 90-out-of-180-day rule, plaintiff must prove that she was "curtailed from performing [her] usual activities to a great extent rather than some slight curtailment” (Licari v Elliott, supra, at 236). Here, as in Licari, plaintiff’s usual activities were impeded slightly. She missed two working days as a result of the accident, and upon returning to work was able to maintain most of her daily routine as senior stenographer. She contends that her household and recreational activities were curtailed as a result of the accident, but has submitted no evidence to support that contention. Plaintiff has therefore failed to establish that her injury caused a 90-out-of-180-day curtailment of substantially all her normal activities.

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

Order affirmed, with costs, in a memorandum.