text:
    The People of the State of New York, Respondent, v Kevin Browning, Appellant.
    Argued May 1, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Michael Ciaffa, William E. Hellerstein and Susan L. Yarbrough for appellant.

      Eugene Gold, District Attorney (Beth Lasky of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant having failed to object to the prosecutor’s use of the witness’ prior Grand Jury testimony or request any corrective instruction from the court, no question of law has been preserved for our review (CPL 470.05; see People v Robinson, 36 NY2d 224).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Sheila B. McGrath, as Mother and Natural Guardian of Jay Henry, an Infant, et al., Appellants, v Board of Education, South Colonie Central School District, Respondent.
    Argued May 1, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Terence L. Kindlon for appellants.

      Condon A. Lyons for respondent.
   OPINION OF THE COURT

Order affirmed, with costs (Matter of Beary v City of Rye, 44 NY2d 398; Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212; see, also, Thornton v Roosevelt Hosp., 47 NY2d 780).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of the Estate of Bernard Fiumara, Deceased. Bernard P. Fiumara, Appellant; Joseph Alesio et al., Respondents.
    Argued April 30, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Joseph P. Kirley for appellant.

      James Dempsey for respondents.
   OPINION OF THE COURT

Memorandum.

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

In the absence of evidence of a substantial nature inconsistent with any inference to the contrary, the Surrogate properly refused to submit the undue influence claim to the jury (see Matter of Walther, 6 NY2d 49). While the circumstantial evidence adduced at trial may have tended to indicate the existence of an opportunity and a motive on the part of the proponent to exercise undue influence, there was no showing that it in fact was ever exercised. Standing alone, the fact that the will favored one child over the other does not supply this inference (see 1 Page, Wills [Bowe-Parker, rev], § 15.8, p 735). Thus, as a matter of law, contestant’s proofs fell short of establishing a prima facie case (see Matter of Walther, supra, p 55; Children’s Aid Soc. v Loveridge, 70 NY 387, 394-395).

Nor has contestant set forth any reason for us to disturb the jury verdict, affirmed below, that the testator possessed the requisite testamentary capacity at the time the will was executed. The record reveals that the attesting witnesses all testified that, despite his physical infirmity, the testator was lucid and rational on that occasion. Though disputed by contestant’s expert, a neurologist who, on the basis of a single brief examination two months after that date, testified that the testator was suffering from severe senile dementia, there was ample proof to support the jury finding of testamentary capacity.

Finally, as to the claim of prejudicial error in the Surrogate’s sustaining of objections, essentially on unarticulated grounds of form or materiality or inadequate foundation, to a series of questions put by the contestant to his expert witness, the ruling was well within the compass of the Judge’s discretion and, in any event, usually accompanied by a curative suggestion that the questions be properly reframed (see, generally, 3 Page, Wills [Bowe-Parker, rev], § 26.84, p 178).

Chief Judge Cooke, and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed, etc.


text:
    Gasoline Expwy, Inc., Appellant, v Sun Oil Company of Pennsylvania et al., Respondents.
    Argued May 2, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Ruth Peres for appellant.

      David E. Weisberg for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (64 AD2d 647). Question certified answered in the affirmative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Michael Sussman et al., Appellants, v Faith A. Sussman et al., as Personal Representatives of the Estate of George F. Dembow, Deceased, Respondents, et al., Defendant.
    Argued May 1, 1979;
    decided June 5, 1979

      APPEARANCES OF COUNSEL

      Frederick J. Martin and Raymond M. Planell for appellants.

      William J. Greer, Otto C. Jaeger and Emery M. Anderson for respondents.
   OPINION OF THE COURT

Memorandum.

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

The document executed on January 20, 1969 by decedent, George F. Dembow, evinces at most an intention to make a future donative transfer of the proceeds of unspecified securities to certain grandchildren, then infants under 21 years of age. Neither the bonds nor their proceeds were ever physically delivered to the custodian of the grandchildren’s accounts, and therefore, no gift was effected under the Uniform Gift to Minors Act (see EPTL 7-4.1). Having failed as a gift, the transaction may not on this record be upheld as a trust (see Farmers’ Loan & Trust Co. v Winthrop, 238 NY 477, 487). Moreover, the alleged trust corpus was not adequately designated or identified (see Brown v Spohr, 180 NY 201, 209).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    Citibank, N. A., Appellant, v City of New York Finance Administration, Respondent. Chase Manhattan Bank, N. A., Appellant, v Finance Administration of the City of New York et al., Respondents.
    Submitted May 4, 1979;
    decided June 5, 1979
    APPEARANCES OF COUNSEL

      Shearman & Sterling for Citibank, N. A., appellant.

      Dewey, Ballantine, Bushby, Palmer & Wood for Chase Manhattan Bank, N. A., appellant.

      Allen G. Schwartz, Corporation Counsel (Samuel J. Warms of counsel), for respondents.
   OPINION OF THE COURT

In each case: Upon reargument, following remand by the Supreme Court of the United States, judgment reversed, with costs in all courts, and the determination of the City Finance Administration imposing the New York City commercial rent and occupancy tax on petitioner for the period prior to January 1, 1973, annulled (Chase Manhattan Bank, N. A. v Finance Admin. of City of N.Y., 440 US 447).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    David S. Golden, Respondent, v Shirley Golden, Appellant.
    Submitted May 14, 1979;
    decided June 5, 1979
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that appellant is not aggrieved by the modification at the Appellate Division (CPLR 5601, subd [a], par [iii]) and upon the further ground that the dissent is not on a question of law in favor of appellant (CPLR 5601, subd [a], par [i]). Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of appellant’s application to hold respondent in contempt, 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. Motion for leave to prosecute the appeal as a poor person dismissed as academic.


text:
    In the Matter of Charles Beatty, Jr., Respondent, v New York City Transit Authority et al., Appellants.
    Submitted May 7, 1979;
    decided June 5, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of Rob Tess Restaurant Corp., Respondent, v New York State Liquor Authority, Appellant.
    Submitted May 17, 1979;
    decided June 5, 1979
   Motion to vacate statutory stay, etc., granted only to the extent of vacating the statutory stay; motion otherwise dismissed upon the ground that the additional relief sought is not within the scope of this proceeding.


text:
    Barbara Uzielli, Respondent, v L. John Achenbach, II, Appellant.
    Submitted May 7, 1979;
    decided June 5, 1979
   Motion to dismiss the appeal herein denied.


text:
    Floram Yagoda, Respondent, v Charles L. Yagoda, Appellant.
    Submitted April 16, 1979;
    decided June 5, 1979
   On the court’s own motion, appeal taken by plaintiff dismissed, without costs, upon the ground that the modification at the Appellate Division is not in a "respect, which is within the power of the Court of Appeals to review” (CPLR 5601, subd [a], par [iii]; see Patron v Patron, 40 NY2d 582). Motion by defendant for leave to appeal denied. Motion to require defendant to post an undertaking dismissed as academic.


text:
    Louis J. Frank, as Commissioner of the Nassau County Police Department, et al., Respondents, v Arthur Levitt, State Comptroller, as Head of the New York State Policemen’s and Firemen’s Retirement System, et al., Appellants.
    Argued May 3, 1979;
    decided June 7, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for Arthur Levitt, as State Comptroller, appellant.

      Allen M. Kranz for James R. Sutton and others, appellants.

      Edward G. McCabe, County Attorney (Joshua A. Elkin and William S. Norden of counsel), for respondents.

      John W. Park, Corporation Counsel (Kenneth Auerbach of counsel), for City of Binghamton, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the proceeding dismissed.

Petitioner seeks judicial review of determinations of the State Comptroller with respect to applications for benefits under the Policemen’s and Firemen’s Retirement System and of the Comptroller’s underlying position that an application for ordinary disability retirement allowance for a policeman member of the system may not be made by the head of the department in which the policeman member is employed without his consent (Retirement and Social Security Law, § 362, subd a). Subdivision d of section 374 of the Retirement and Social Security Law provides that determinations of the Comptroller "shall be subject to review only as provided in article seventy-eight of the civil practice law and rules” (emphasis added). Accordingly, the present application for judicial relief, denominated an action for a declaratory judgment, should have been treated as an article 78 proceeding (CPLR 103, subd [c]). As such it should have been dismissed on respondents’ motion, on the ground that the proceeding as to George Pearsall was barred by the four-month Statute of Limitations (CPLR 217) and for failure to exhaust administrative remedies as to the other police officers involved.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order reversed, etc.


text:
    52 East 19th Street Company, Respondent, v Quintino Tesciuba, Doing Business as Mutual Trade Enterprises Co., Appellant.
    Submitted April 30, 1979;
    decided June 7, 1979
   Motion to dismiss the appeal taken as of right herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground it does not lie (CPLR 5601). Motion for leave to appeal dismissed upon the ground that the Court • of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1).


text:
    52 East 19th Street Company, Respondent, v Quintino Tesciuba, Doing Business as Mutual Trade Enterprises Co., Appellant.
    Submitted April 30, 1979;
    decided June 7, 1979
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3, subd b, par [7]; CPLR 5602, subd [a], par 1). Cross motion to dismiss appeal taken as of right granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground it does not lie (CPLR 5601).


text:
    Eleanor L. Markland, Respondent, v Franklin J. Markland, Appellant.
    Submitted April 30, 1979;
    decided June 7, 1979
   Motion for leave to appeal denied as unnecessary. An appeal taken as of right under CPLR 5601 (subd [a], par [iii]) brings up for review all aspects of the order appealed from (Dalrymple v Shults Chevrolet, 39 NY2d 795). Motion to submit photocopies of plaintiffs exhibits 1 through 5 in lieu of the missing originals granted, except that page 1 of exhibit 3 be stricken.


text:
    In the Matter of David Bell, Appellant, v Donald Baker, as Sullivan County Treasurer, Respondent, and Robert Abrams, as Attorney-General of the State of New York, Intervenor-Respondent.
    Decided June 7, 1979
   Appeal transferred by the Court of Appeals sua sponte to the Appellate Division, Third Department, without costs, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    The People of the State of New York, Respondent, v Allen Harper, Appellant.
    Argued March 30, 1979;
    decided June 12, 1979
    APPEARANCES OF COUNSEL

      Barbara B. Butler and William E. Hellerstein for appellant.

      Robert M. Morgenthau, District Attorney (Richard Hamburger and Jerrold L. Neugarten of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed. We find no merit to defendant’s contention that he was denied due process of law when the trial court denied his motion for a mistrial made upon the ground that he had been unduly prejudiced when two jurors inadvertently viewed him in handcuffs while returning from lunch recess. The brief and, without question, inadvertent viewing of defendant by these jurors was, by itself, insufficient to deny defendant a fair trial (compare Dupont v Hall, 555 F2d 15, with People v Roman, 35 NY2d 978). Furthermore, defense counsel declined an express invitation by the Trial Judge to deliver a curative instruction, and did not request the substitution of alternate jurors or an examination into the effect of the encounter.

We also reject defendant’s claim that his conviction of the fifth count of the indictment, accusing him of burglary in the first degree, cannot be sustained because the People failed to prove beyond a reasonable doubt that defendant and his accomplices caused physical injury to their victim while "effecting entry” into his dwelling (see Penal Law, § 140.30, subd 2). Our examination of the trial record persuades us that the People did indeed meet their burden of proof on this point.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Daniel McDowell and Charles Dunleavy, Appellants.
    Argued April 25, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Arnold Nussbaum and Samuel Korb for appellant.

      John J. Santucci, District Attorney (Aley Z. Alexander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While defendants did object at trial as to certain questions posed by the prosecutor to defendant McDowell on cross-examination, the objections taken were clearly predicated on the ground that the prosecutor was making improper factual assumptions in the questions, and not that, as now argued, the nature of the questions themselves unduly prejudiced defendants. As the record reveals, on numerous occasions the prosecutor inquired of McDowell whether he had heard prosecution witnesses make certain statements at trial, yet no objection was taken. Defendants having failed to properly state to the trial court the grounds for their objections or object to this line of questioning, this issue is not preserved for our review.

We have considered such of defendants’ remaining contentions as were preserved for appellate review and have found them to be without merit.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Brian Reilly, Appellant.
    Argued April 25, 1979;
    decided June 12, 1979
    APPEARANCES OF COUNSEL

      William H. Roth and William E. Hellerstein for appellant.

      John J. Santucci, District Attorney (Aley Z. Alexander of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Viewing the evidence at trial in the light most favorable to the defendant, we find that the record affords no basis for a charge as to justification. (Penal Law, § 35.15.) Thus, it was not error for the Trial Judge to refuse defendant’s request to so charge the jury. (See People v Stevenson, 31 NY2d 108, 112-113.)

In our view, defendant’s objections during the cross-examination of a codefendant at trial, having made no reference to the issue now raised, were not sufficient to preserve that issue: namely, whether the prosecutor’s allegedly improper cross-examination unduly prejudiced him.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    In the Matter of the Commitment of Female W. (Anonymous) and Another. Spence-Chapin Adoption Service, Respondent; Charlotte Emma W. (Anonymous) et al., Appellants.
    Argued May 3, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Carol Kellermann, John E. Kirklin, Charles J. Tejada and Esther D. Curtwright for Charlotte Emma W., appellant.

      Gertrud Mainzer, guardian ad litem, appellant.

      Frank E. Barranco, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, without costs. In a proceeding seeking to terminate parental rights on the ground of abandonment so as to free a child for adoption, the fundamental inquiry must be whether in fact the parent’s behavior constituted abandonment, and not whether such a finding would be in the "best interests” of the child. This is so because "a court may not terminate all parental rights by offering a child for adoption when there has been no parental consent, abandonment, neglect or proven unfitness, even though some might find adoption to be in the child’s best interests” (Matter of Sanjivini K., 47 NY2d 374).

The decision of the Surrogate in this instance was properly based upon the factual finding made by that court that appellant mother had abandoned her children, and not upon a "best interests of the child” analysis. The court’s statement that its disposition was also in accord with the best interests of the children in no way impairs its conclusion that the children had been abandoned. Indeed, most often a finding of abandonment where there has in fact been an abandonment will also be in the best interests of the child. Here, the finding of abandonment is supported by an abundance of evidence and has been affirmed by .the Appellate Division; hence it may not be upset by this court. This is so regardless of whether this proceeding should be governed by section 384 of the Social Services Law as that statute existed prior to the 1976 amendments (L 1976, ch 666), or by the present statutory scheme embodied in section 384-b of the Social Services Law, for there simply exists insufficient evidence upon which a finding could be made that appellant mother was unable to visit or communicate with her children or that such activities were discouraged by respondent (see Social Services Law, § 384-b, subd 5, par [a]). Hence, we do not reach the issue of the applicability of the 1976 amendments to this proceeding.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


author: Jasen, J. Gabrielli, J.

text:
    The People of the State of New York, Appellant, v William Ermo, Respondent.
    Argued May 3, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      John R. King, District Attorney (Bridget R. Rahilly of counsel), for appellant.

      Samuel Collins, Public Defender (Marshall L. Brenner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was interrogated with respect to two sex offenses committed some seven months apart, a homicide on August 3, 1971 of which he was convicted, and an assault on March 13, 1972. The interrogation was conducted on three separate days, March 14, 15 and 22, 1972, by the same team of police officers. On March 14 and again, but to a lesser extent, on March 15 and 22 questions with respect to the two offenses were interwoven, and on March 22 numerous references were made to the earlier questionings. As the police were aware, the Public Defender was assigned to represent defendant with respect to the March 13 assault prior to the continued interrogation on March 15. The Appellate Division reversed County Court and suppressed the statements made on March 15 and 22 after assignment of counsel and ordered a new trial.

On this record the Appellate Division (61 AD2d 177, 182) was correct in evaluating the police interrogation as an integrated whole, in which the impermissible questioning as to the assault was not discrete or fairly separable, and in concluding that "the assault charge was used by the same team of law enforcement officials as a crucial element in the securing of defendant’s confessions of March 15 and March 22, 1972 to the felony murder”. As the dissenter states, had defendant been interrogated with respect to the homicide alone, it would have been error to have suppressed his statements on the ground that he had an attorney who was not present; defendant’s representation by that attorney was with respect to the different and unrelated assault charge. Examination of the transcripts of the three days of defendant’s interrogation in this case, however, discloses that the police exploited concededly impermissible questioning as to the assault for the purpose and with the effect of advancing their interrogation on the homicide charge. It was on that basis that the court held that any purported waiver of defendant’s right to counsel during the questioning of March 15 and March 22, 1972 was ineffective in the absence of the previously assigned Public Defender and accordingly suppressed the statements made on those dates. (People v Hobson, 39 NY2d 479; cf. People v Carl, 46 NY2d 806.) We do not in any way depart from our holdings in the cases cited by the dissenter, in none of which was there the element of exploitation, the critical factor on which our affirmance depends in this case.

We note additionally that, although it may be said that defendant failed to preserve the error on which the reversal of his conviction is based, the failure to raise his contention does not foreclose our reaching the issue (People v Arthur, 22 NY2d 325, 329).

Jasen, J.

(concurring). I concur in the result reached by the majority.

Were it not for the disposition at the Appellate Division, the error with respect to denial of the right to counsel would not have been preserved for our review. (People v Tutt, 38 NY2d 1011.) It is only because the Appellate Division had jurisdiction to consider the contention, even though the error was not raised at the suppression hearing, and because the Appellate Division predicated its reversal on this error, that defendant may urge the correctness of the Appellate Division’s determination of the question of law involved in support of an affirmance.

Gabrielli, J.

(dissenting). By a bare majority, the Appellate Division has overturned defendant’s murder conviction. I dissent from an affirmance of the order below and vote to sustain the conviction. Because we are here concerned with pure questions of law, it is unnecessary to detail the events leading to the homicide, to which defendant confessed. The sole issue presented is whether his questioning was proper in all the circumstances. No issue is created and there is no question concerning the proper giving of the Miranda warnings and rights.

When the defendant William Ermo was first accused of assaulting a young schoolgirl on March 13, 1972 no one suspected that he was involved in the murder of another girl, Ursula Shiba, some seven months before. Indeed there was no relationship between the assault and the homicide to cause any suspicion. The victims were unrelated, the crimes were months apart, the methods of committing them were very different, and, indeed, only the proximity of the defendant’s address to that of the homicide victim caused the police to even question him about the murder. Nevertheless, the majority relies on the fact that "questions with respect to the two offenses were [so] interwoven” as to invalidate the defendant’s waiver of counsel on the homicide charge and suppress the confession.

This flies in the face of the rule that this court has .consistently followed since we first recognized the so-called Donovan-Arthur rule (see People v Donovan, 13 NY2d 148; People v Arthur, 22 NY2d 325). We have, until today, always held that a defendant may waive counsel without having an attorney present although he is represented by counsel on an entirely unrelated pending charge (see, e.g., People v Stanley, 15 NY2d 30; People v Simons, 22 NY2d 533; People v Hetherington, 27 NY2d 242; People v Taylor, 27 NY2d 327; People v Clark, 41 NY2d 612; People v Coleman, 43 NY2d 222).

As we said in the earlier cases, "the mere fact that the defendant has been arraigned or indicted on one charge does not prevent law-enforcement officials from interrogating him, in the absence of an attorney, about another and different crime — upon which he has been neither arraigned nor indicted — or render inadmissible a confession or other inculpatory statement obtained as a result of such questioning. * * * The reason is clear. With regard to the second crime about which the defendant is questioned, there has not yet been 'the formal commencement of the criminal action’ against him” (People v Simons, supra, p 539; People v Stanley, supra, pp 32-33). The rule was continued and refined in People v Taylor (supra). There a unanimous court stated that the rule precluding a defendant from waiving his right to have an attorney present in the absence of that attorney "does not obtain unless and until the police or prosecutor learn that an attorney has been secured to assist the accused in defending against the speciñc charges for which he is held” (27 NY2d 327, 332, supra; emphasis in original). Where, as here, the charge on which a defendant is being questioned differs from the charge for which he has an attorney there is no legal impediment to questioning him on the former charge even in the absence of an attorney.

This does not mean that the police may accuse someone of a crime as a mere "sham” or a pretext for holding the defendant in connection with the investigation of another crime (People v Taylor, 27 NY2d 327, 331, supra; see, also, People v Vella, 21 NY2d 249). Such a simple ruse to avoid the rules concerning waiver would make the protection of cases such as People v Arthur (22 NY2d 325, supra) and People v Hobson (39 NY2d 479) useless. But in the absence of such conduct the questioning is permitted so long as the proceeding in which the defendant is represented by counsel is unrelated to the charge on which he is being questioned (People v Coleman, 43 NY2d 222, 226, supra).

This is not to say that every slight relationship between the two crimes requires suppression. For example, in People v Taylor (supra), the defendants were incarcerated on a robbery charge when, due to the similarity of that crime to an unsolved robbery-murder, the police questioned one of the defendants, who subsequently confessed. Although undeniably the crimes were similar, and in fact were so similar that the modus operandi of one led to the solution of the other, the crimes were not related in the sense that would require suppression.

Nor are the crimes involved here more closely related than those in Taylor. In fact, Detective Chickering, who first questioned the defendant about the murder, stated that he did so because of the proximity of the defendant’s address to that of the murder victim. Even if, as hypothesized by the Appellate Division, the sexual nature of the assault led the police to suspect that the defendant was involved in the murder, that would be the sole link between the two crimes, and, as in People v Taylor (supra) the mere fact that the crimes were similarly committed would not render the confessions inadmissible.

There is, of course, another situation where the police are not permitted to interrogate a suspect absent his lawyer’s presence. This occurs when the suspect’s attorney has communicated to the police that he will not permit them to interrogate his client (see People v Carl, 46 NY2d 806; People v Ramos, 40 NY2d 610). Obviously, in that situation it makes no difference that the crimes are unrelated, because once a lawyer has informed the police that they are not to interrogate his client he is entitled to have those wishes respected (see People v Byrne, 47 NY2d 117). But since there is no evidence or any indication whatsoever that the defendant’s lawyer communicated with the police in any such manner, those cases are inapplicable as well.

Thus, in the final analysis the result reached by the majority is not in accord with any of the prior cases dealing with this area of the law. It apparently establishes a new standard, whereby the determinative factor becomes whether the questions regarding two crimes are "interwoven”, and not whether the crimes themselves are related. No explanation is given for this change, and the cases do not support it.

This court in an unanimous opinion stated with unmistakable clarity in People v Clark (41 NY2d 612, 615, supra) that: "Representation by counsel in a proceeding unrelated to the investigation is insufficient to invoke” the rule that a person may not be interrogated after a lawyer has entered another proceeding in which he is represented by counsel; and I find it impossible to accept the rationalization of the majority that the case of People v Coleman (43 NY2d 222, 224, supra) stands as authority for their position. There, after being brought from prison where he was being held on "an unrelated charge”, Coleman was subjected to a lineup. This court framed the issue presented as follows: "We are asked to pass on the question of whether a defendant, incarcerated pending trial on a charge for which he was represented by counsel, may waive, in the absence of an attorney, his right to counsel at a lineup, held in an unrelated investigation, in which his presence was secured pursuant to a court order of removal”. This court resolved that issue by stating that: “Today we reach this question and decide that the right to counsel may be waived notwithstanding the absence of counsel whom a defendant had retained with respect to a wholly unrelated charge” (p 226).

By their holding today, the majority, with one fell swoop, is disavowing and overruling well-established precedents which have been founded on logic, law, reason and justice. Those, to name but a few which have formed the -bulwark of stare decisis in this sensitive area of law, are: People v Stanley (15 NY2d 30 [Nov. 25, 1964], supra); People v Simons (22 NY2d 533 [July 2, 1968], supra); People v Hetherington (27 NY2d 243 [Nov. 18, 1970], supra); People v Taylor (27 NY2d 327 [Jan. 6, 1971], supra); People v Clark (41 NY2d 612 [April 7, 1977], supra); and People v Coleman (43 NY2d 222 [Nov. 22, 1977], supra).

For all these reasons, I respectfully dissent and vote to reverse.

Chief Judge Cooke and Judges Jones, Wachtler and Fuchsberg concur; Judge Jasen concurs in result in a separate memorandum; Judge Gabrielli dissents and votes to reverse in another opinion.

Order affirmed in a memorandum.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Michael Spruill, Appellant.
    Argued April 27, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Spiros A. Tsimbinos for appellant.

      John J. Santucci, District Attorney (James Clark Quinn of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The court erred in admitting the defendant’s confession at trial. The People concededly had not given the defendant pretrial notice as required by statute (CPL 710.30) nor, in our view, did they establish "good cause” for filing a late notice. We have previously held that "[l]ack of continuity or other office failure” within the prosecutor’s office does not provide an adequate excuse (People v Briggs, 38 NY2d 319, 324; cf. Santobello v New York, 404 US 257, 259-260). The excuse offered in this case — that the police officer had not informed the prosecutor of the confession prior to trial — is no different in principle. Under similar circumstances we have noted that "[kjnowledge on the part of the police department would, of course, be imputed to the District Attorney’s office. A defendant ought not be penalized because of any inadequacy of internal communication within the law enforcement establishment” (People v McLaurin, 38 NY2d 123, 126).

The other contentions raised by the defendant lack merit. The finding of fact that the defendant was advised of his rights before he made the confession is supported by sufficient evidence and thus is beyond review in this court.

Jasen, J.

(dissenting). In my view, the People have established "good cause” justifying their filing of a late notice of intention to offer at trial an oral statement made by defendant to an arresting police officer. I, therefore, respectfully dissent.

Defendant was tried and convicted before a jury of the crime of robbery in the first degree. At trial during cross-examination, defense counsel asked one of the arresting police officers whether defendant had made any statements at the time of arrest, to which the officer responded: "You want the truth?” An immediate bench conference was held at which it became apparent for the first time that defendant had made inculpatory admissions to the officer concerning disposal of the weapon used in the robbery and the first name of an accomplice. When the court determined that the Assistant District Attorney had been unaware of these statements, the court temporarily dismissed the jury and held a Huntley hearing to determine their admissibility. At the conclusion of the hearing, the court held defendant’s statements admissible, concluding that defendant, after having been properly advised, made a knowing and voluntary waiver of his constitutional rights.

The majority concludes that the trial court erred in admitting defendant’s statements because the People failed to serve defendant with timely notice of intention to offer this evidence at trial pursuant to CPL 710.30. More importantly, the majority further concludes that the People have failed to demonstrate "good cause” for their delay. Support for this novel proposition is garnered from this court’s decision in People v Briggs (38 NY2d 319, 321), in which we held that " 'lack of continuity’ or other office failure” does not constitute "good cause” permitting a late filing of the notice required under CPL 710.30. Without more, the majority equates office failure with the present situation, concluding that the police officer’s failure to inform the District Attorney of defendant’s incriminating statements prior to trial is "no different in principle”. I do not share this view.

The lack of continuity or office failure which we refused to condone in Briggs took the form of a lack of knowledge on the part of the prosecutor as to whether any pretrial notice had been served on the defendant. In holding that "good cause” had not been demonstrated, we echoed the Supreme Court’s admonition in Santobello v New York (404 US 257, 262) that " '[t]he staff lawyers in a prosecutor’s office have the burden of "letting the left hand know what the right hand is doing” ’ ”. (38 NY2d, at p 324, supra.)

The present case is not, however, a case of office failure. Nothing in Briggs suggests that good cause for late filing may not be shown where a prosecutor, in good faith, learns for the first time at trial that one of his witnesses has failed to disclose the full extent of his information about the defendant. Here, the prosecutor had been advised by affidavit that no inculpatory statements had been made by defendant. No one contends that he was anything but legitimately surprised by the officer’s testimony at trial. I believe this is sufficient to constitute "good cause”.

Accordingly, I would affirm the order of the Appellate Division.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Jasen, dissents and votes to affirm in a separate opinion.

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v Bernard Moore, Appellant.
    Argued May 1, 1979; reargued June 5, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Diana Budzanoski and William E. Hellerstein for appellant.

      Mario Merola, District Attorney (Vida M. Alvy of counsel), for respondent.
   OPINION OF THE COURT

Order reversed and the indictment dismissed on so much of the dissenting memorandum by Mr. Justice Leonard H. Sandler at the Appellate Division as relates to the speedy trial issue (63 AD2d 602, 603-606).

Concur: Judges Jones, Wachtler, Fuchsberg and Meyer. Chief Judge Cooke and Judges Jasen and Gabrielli dissent and vote to affirm on the memorandum of the Appellate Division (63 AD2d 602).


author: Jones, J.

text:
    John V. Southworth, Individually and as Executor of Alice K. Southworth, Deceased, Appellant, v State of New York, Respondent. John V. Southworth, Appellant, v State of New York, Respondent.
    (Claim No. 58065.)
    (Claim No. 58835.)
    Argued May 2, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Charles T. Major and Thomas E. Myers for appellant.

      Robert Abrams, Attorney-General (Douglas L. Manley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

For the reasons stated by Mr. Justice Michael F. Dillon in the majority opinion at the Appellate Division, we conclude that the State was not negligent in issuing the interim driver’s license. We note in particular the fact, now conceded by the plaintiff, that the driver was not ineligible under the statutes in effect when the license was issued.

This determination, however, should not be read as suggesting that the State might have been liable if the Motor Vehicle Department had been negligent in issuing the license. Statutes and regulations adopted in the exercise of the police power are, of course, designed to protect the general public from certain known or anticipated harms. But it is settled that the State and its subdivisions acting "for the protection of the general public, cannot be cast in damages for a mere failure to furnish adequate protection to a particular individual to whom it assumed no special duty” (Evers v Westerberg, 38 AD2d 751, affd 32 NY2d 684). It would seem that this principle should apply to the administration and enforcement of State licensing requirements. We also note that when State officials negligently issue a license or fail to revoke it, the State action is generally held not to be the proximate cause of the injury inflicted by the licensee (see State’s Liability for Improperly Licensing Negligent Drivers, Ann., 79 ALR3d, 955).

Jones, J.

(dissenting). I would reverse and reinstate the determination of the Court of Claims on the issue of liability, as would Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division, for the failure of the State to comply with the requirements imposed by the Legislature when it authorized the DWI Counterattack Program.

The experimental driver rehabilitation program in this case cannot be classified as an incidental component of the State’s administration of the routine licensing of operators of motor vehicles. The Legislature in its wisdom (which I am not at liberty to question) has authorized "the establishment of experimental programs of rehabilitative instruction and direction for drivers with poor driving records” (Vehicle and Traffic Law, § 520; L 1968, ch 464), in consequence of which drivers who would not otherwise be permitted to do so may nonetheless be allowed, if participating in the program, to continue to drive on our public highways. Thus, segments of the public are exposed to risks to which they would not be subjected were it not for affirmative action of the State in its inauguration and operation of the driver rehabilitation program. This case, therefore, falls outside the scope of the unquestioned proposition that the State, acting for the protection of the general public, cannot be cast in damages for a failure to furnish adequate protection to a particular individual to whom it assumed no special duty. In the operation of this particularly designed program, involving a significant aggravation of risk as it inescapably does, the State should be held to have assumed a special duty to the traveling public, at least to the extent that there must be substantial compliance with the terms and conditions imposed by the Legislature in its authorization of the inauguration and operation of the program.

The enabling statute explicitly mandates that the advisory board, composed of individuals possessed of particular competences appropriate to the discharge of the important responsibility reposed in the board, shall (1) "establish criteria, subject to the approval of the commissioner, for the selection of those persons to be referred to the commissioner for official participation in the driver rehabilitation programs authorized” and, additionally, (2) "based on criteria developed by the board [shall], select on an impartial basis those persons to be referred to the commissioner for official participation in such driver rehabilitation program” section 522 (subd 2, pars [c], [d]) of the Vehicle and Traffic Law. There is no evidence in this record to support a conclusion that either of these important responsibilities was discharged by the board, either by its own action or by duly and permissibly delegated authority. The State should be held liable for these serious omissions and its failure to comply with the specific statutory commands in implementing a hazardous experimental program authorized by the Legislature which puts back on the highways a motor vehicle operator who because of alcohol-related offenses would otherwise be prohibited from driving, when innocent members of the public are thereby injured in another episode of alcohol abuse on his part.

Chief Judge Cooke and Judges Jasen, Gabrielli and Wachtler concur; Judge Jones dissents and votes to reverse in a separate opinion in which Judge Fuchsberg concurs.

Orders affirmed.


text:
    Arthur G. Smith, Appellant, v George Sarkisian et al., Respondents.
    Argued May 4, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      James W. Fitzsimmons for appellant.

      Kevin F. McDonough for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (63 AD2d 780).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    In the Matter of the Adoption of David A. C. (Anonymous). Kazim M. (Anonymous) et al., Respondents; Abdiel C. (Anonymous), Appellant. In the Matter of the Adoption of Denise C. (Anonymous). Kazim M. (Anonymous) et al., Respondents; Abdiel C. (Anonymous), Appellant.
    Submitted June 8, 1979;
    decided June 12, 1979

      APPEARANCES OF COUNSEL

      Danzig, Bunks & Silk, P. C., for appellant.

      Morris Schulslaper for respondents.
   OPINION OF THE COURT

Upon reargument, following remand by the United States Supreme Court, order reversed, without costs, orders of adoption vacated, and matters remitted to the Surrogate’s Court, Kings County, for further consideration not inconsistent with the opinion of the Supreme Court (Caban v Mohammed, 441 US —, 47 USLW 4462).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    Fair-Tex Mills, Inc., et al., Appellants, v Floyd Baslow et al., Respondents.
    Submitted April 30, 1979;
    decided June 12, 1979
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Special Term’s denial of a motion for a preliminary injunction, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution (Cohen and Karger, Powers of the New York Court of Appeals, § 38, p 156). Motion for leave to appeal otherwise denied.


text:
    In the Matter of Ronald A. Green, Appellant, v County Court of Tompkins County et al., Respondents.
    Argued May 4, 1979;
    decided June 12, 1979
   Appeal dismissed, without costs, for lack of a constitutional question.


text:
    The People of the State of New York, Respondent, v Robert McMahon, Appellant.
    Submitted June 11, 1979;
    decided June 12, 1979
   Motion to dismiss the appeal taken by defendant McMahon granted and said appeal dismissed upon the ground that the criminal prosecution as to said defendant has abated by reason of his death (see People v Prunty, 46 NY2d 1014; People v Mintz, 20 NY2d 753, 770).


text:
    Frank Stellema, on Behalf of Himself and All Others Similarly Situated, Respondent, v Vantage Press, Inc., et al., Appellants.
    Submitted May 29, 1979;
    decided June 12, 1979
   Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion, upon the ground that the question certified does not present a question of law decisive of the correctness of the determination by the Appellate Division.


text:
    The People of the State of New York, Respondent, v Daniel Jamison, Also Known as James Jamieson, Also Known as Daniel Jamieson, Also Known as George Storfs, Appellant.
    Argued April 24, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Andrew C. Fine and William E. Hellerstein for appellant.

      Eugene Gold, District Attorney (Laura A. Brevetti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the present record, it cannot be concluded that the Trial Justice unduly or improperly injected himself into the proceedings, or that he displayed bias or hostility toward the defendant’s case. As previously recognized, neither the nature of our adversary system nor the constitutional requirement of a fair trial preclude a trial court from assuming an active role in the truth-seeking process (see, e.g., People v Moulton, 43 NY2d 944, 945; People v De Jesus, 42 NY2d 519, 523). Often the Judge plays a vital role at trial by clarifying the issues to be resolved and restricting the proof to reasonable bounds (People v De Jesus, supra, at p 523). This power must, of course, be exercised sparingly, without partiality, bias or hostility (People v Carter, 40 NY2d 933, 934; People v Budd, 38 NY2d 988, 989), as excessive interference or the suggestion of an opinion on the part of the Trial Judge might well prove decisive in the minds of the jury (People v De Jesus, supra, at p 524; People v Bell, 38 NY2d 116, 120).

Here, the court intervened in the proceedings evenhandedly, rather infrequently and, so far as appears, only when necessary to aid the jury in understanding the legal and factual issues presented. Neither the defense nor the prosecution was singled out for special treatment, and the defense was not treated in a hostile fashion. In short, we are unable to say that the court exceeded the proper bounds of its supervisory role during the trial. Similarly, that portion of the charge to the jury preserved for review is not beset by prejudicial error.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed in a memorandum.


text:
    Adelyn J. Crawford, Appellant, v State of New York, Respondent.
    (Claim No. 58104-A.)
    Argued May 4, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Leonard Kreinces and Gerald J. Garner for appellant.

      Robert Abrams, Attorney-General (J. Lawson Brown and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (60 AD2d 729).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Westchester County Civil Service Employees Association, Inc., et al., Respondents, v Alfred B. Del Bello et al., Appellants. In the Matter of Thomas Spasiano et al., Respondents, v Albert T. Hayduk et al., Appellants. Thomas Spasiano et al., Respondents, v Alfred B. Del Bello et al., Appellants.
    Argued June 6, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Samuel S. Yasgur, County Attorney (Jonathan Lovett, Kenneth E. Powell and Lester D. Steinman of counsel), for appellants.

      James M. Rose, Arthur H. Grae and Natasha H. Rose for Westchester County Civil Service Employees Association, Inc., and another, respondents.

      B. Anthony Morosco for Thomas Spasiano and others, respondents.
   OPINION OF THE COURT

Order reversed, without costs; in the proceeding the petition is dismissed and in the actions judgment is granted in favor of defendants declaring that Local Law No. 11 is valid and constitutional and may go into effect on July 1, 1979, for the reasons stated in the dissenting opinion by Mr. Justice Frank D. O’Connor at the Appellate Division. Oral application for leave to file a sur reply brief denied.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    Bank Leumi Trust Company of New York, Respondent, v Collins Sales Service, Inc., et al., Appellants.
    Submitted May 1, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      James R. Moffatt for appellants.

      Amos Alter and Stephen F. Harmon for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, with costs, for the reasons stated at the Appellate Division.

We take this opportunity, however, to comment upon defendants’ use of section 9-318 of the Uniform Commercial Code as an affirmative defense in this action. Plaintiff Bank Leumi Trust Co. loaned money to Precision Graphics, Inc., this loan being secured, in part, by an interest in Precision’s accounts receivable. Precision then sold goods to defendant Seseo Designs, Inc., for which Seseo was obligated to pay Precision approximately $8,000 net. It is from this indebtedness which plaintiff, the assignee of the accounts receivable, seeks to satisfy its claim.

Precision, however, owed moneys arising from commission sales to defendant Collins Sales Service, Inc., a corporation having the same principal officer and shareholder as defendant Seseo. By virtue of an agreement between Precision, Seseo and Collins, these parties agreed that Precision would be permitted to set off money owed it by Seseo against its indebtedness to Collins.

In this action, plaintiff, as Precision’s assignee, seeks to pierce this arrangement of payment and reach the receivables due and owing Precision by Seseo. Defendants oppose plaintiffs motion for summary judgment by arguing that the provisions of section 9-318 of the Uniform Commercial Code subject plaintiffs rights to those claims and defenses that the defendants have against Precision. We reject this contention.

Specifically, defendants predicate their entire argument upon the following statutory, language: "Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale * * * the rights of an assignee are subject to (a) all the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom” (Uniform Commercial Code, § 9-318, subd [1], par [a]). By its very terms, this provision subjects the rights of the assignee only to those claims or defenses which the account debtor, defined as "the person who is obligated on an account” (§ 9-105, subd [1], par [a]), has against the assign- or.

It is abundantly clear that only Seseo is an account debtor of Precision, the assignor, Collins being an account creditor by virtue of the money owed it by Precision. Thus, in order to invoke the protection accorded by the statutory section, it was incumbent upon Seseo to come forth with evidentiary facts that it had a claim or defense against Precision arising from their contract for the sale of goods which would negate its obligation to pay Precision. This, defendant Seseo has failed to do.

The reason espoused by Seseo for refusing payment for the goods it received from Precision is not a claim or defense arising from their contract, but, rather, a collateral agreement in which the method of payment of Precision’s obligation to Collins was established. In light of the testimony of Kenneth Collins, principal of both Collins and Seseo, that no intercorporate transactions between Seseo and Collins with respect to those corporations’ dealings with Precision had ever taken place, it is the inevitable conclusion that Collins’ claim against Precision was never assumed by Seseo. Not establishing any claim or defense against Precision, plaintiff’s motion for summary judgment was properly granted plaintiff as against defendant Seseo.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed, with costs, in a memorandum.


text:
    In the Matter of the Claim of Fred O’Reilly, Claimant, v Raymond Concrete Piling, Inc., et al., Appellants, and Special Disability Fund, Respondent. Workers’ Compensation Board, Respondent.
    Submitted May 4, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Phyllis O’Connell for appellants.

      George Cholet and Patrick E. Harnedy for Special Disability Fund, respondent.
   OPINION OF THE COURT

Memorandum.

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

To obtain reimbursement from the Special Disability Fund, a compensation carrier bears the burden of demonstrating that a disability occurring subsequent to a permanent physical impairment resulted in a permanent disability caused by both conditions and which is materially and substantially greater because of the prior impairment than it would have been alone. (Worker’s Compensation Law, § 15, subd 8; Matter of Grieco v Grieco Elec. Co., 52 AD2d 1011.) In the instant case, substantial evidence exists in the record to support the board’s determination that appellants failed to meet this burden.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


text:
    Bonita B. Mashley, Appellant, v John Kerr et al., Respondents, et al., Defendant.
    Argued May 4, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Ernest Abdella and George Abdella for appellant.

      Richard T. Horigan for respondents.
   OPINION OF THE COURT

Memorandum.

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

The trial record testimony does not reveal why plaintiff failed to produce certain medical witnesses. In this circumstance, the court’s charge relative to what inferences may be drawn from such failure was proper (see PJI 1:75). Likewise, the court’s ruling to receive in evidence certain exhibits consisting of accident reports made by the investigating officer may not be disturbed in view of a failure to make timely objection to their receipt, or to take proper exception thereto, other than with respect to the diagram and then on the ground of lack of personal knowledge on the part of the witness, an objection which was promptly obviated and accordingly properly overruled. Thus, in the absence of any preserved claimed errors, the order should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.


author: Gabrielli, J.

text:
    The People of the State of New York, Respondent, v Colleen Irby, Also Known as Colleen MacKenzie, Appellant.
    Argued April 26, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      Nicholas A. Sordi, Jr., for appellant.

      Denis Dillon, District Attorney (Martin I. Saperstein and William C. Donnino of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the conviction for felony murder and remitting that count to County Court, Nassau County, for a new trial, and, as so modified, affirmed.

Our disposition is not, as viewed by the dissenter, based on the refusal of the trial court to charge in accordance with the specific requests made by defense counsel. Rather it is predicated on the persistent refusal of the trial court (to which defense counsel registered timely protest) to charge the jury in any way as to the effect of any police custody or arrest of either participant as related to the felony murder count. As we said in People v Gladman (41 NY2d 123, 129), "the issue of whether the homicide occurred in 'immediate flight’ from a felony is only rarely to be considered as a question of law for resolution by the court. * * * Rather, the question is to be submitted to the jury, under an appropriate charge.” Thus, defendant was entitled to have the jury instructed as to the significance, if any, to be attached to police custody or arrest of either participant, if the jury concluded that there was such custody or arrest. To the extent that by refusing to give such a charge the court determined as a matter of law that any police custody or arrest was irrelevant, it was error.

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

Gabrielli, J.

(dissenting). I am compelled to dissent and vote for affirmance of the order of the Appellate Division sustaining defendant’s conviction of the crime of felony murder.

On October 4, 1975 the defendant and her paramour, John MacKenzie, went to Thelma J’s Boutique in West Hempstead where they talked with Mrs. Mait, the owner. While the defendant went through the process of trying on several dresses, none of which were purchased, MacKenzie sought directions for the bathroom which was located to the rear of the store and which he carefully surveyed for the purpose of accomplishing the upcoming burglary. Three days later at about 2:15 a.m. MacKenzie, accompanied by defendant, pulled into the rear alleyway behind Thelma J’s Boutique, and stopped the car with the car trunk facing the rear bathroom window. On the evening before, he had purchased an ankle holster for a gun he owned. While the defendant acted as a lookout, MacKenzie entered the boutique by the bathroom window and he then brought numerous articles of women’s clothing, including 240 ladies’ blouses, 16 pantsuits and 16 ladies’ coats, into the bathroom and gave these articles to defendant through the bathroom window. She, in turn, placed them in the trunk of the car. At this point Officer Hofknecht, who was on routine patrol duty accompanied by Officer Hayes, saw the car in the alley and spotted the open bathroom window to the boutique. They promptly called for assistance. They then saw the defendant hiding behind the car. Any questioning by the officers took from one to three minutes and was limited to inquiry of what she was doing. No arrest was then made.

Meanwhile Officer Matthew Giglio, who had just arrived pursuant to the radio call, went to the street at the request of the two other officers to "cover the front of the store” and, simultaneously, MacKenzie broke out the front of the store. Officer Giglio, who had not drawn his gun, attempted to stop MacKenzie but at that point MacKenzie, who was attempting to escape from the scene and who was exiting the store and moving away from it, shot Officer Giglio who later died from the wound inflicted by MacKenzie.

Defendant now contends that there should be a reversal in that the court erred in refusing to charge the jury in the following respects as requested by the defendant: (1) "You must determine whether or not the felony of burglary had terminated at the time MacKenzie shot officer Giglio. If you find that officer Giglio had custody or had arrested MacKenzie * * * then you must find that there is no felony murder as the burglary was terminated”; and (2) if Irby (this defendant) "was in custody at the time when Officer Giglio was shot, then she would not be guilty of felony murder”.

We find no error or deficiency in the court’s main charge or its refusal to adopt these specific requests to charge. The defendant willingly and voluntarily involved herself, and indeed fully participated, in a burglary; and, by doing so, she necessarily accepted all the consequences of the felony murder committed either during the course of the burglary or during MacKenzie’s immediate flight from the burglary. Here, it cannot be reasonably argued that Officer Giglio’s momentary intervention as MacKenzie was exiting the boutique and fleeing from the burglary, terminated either the burglary or MacKenzie’s immediate flight therefrom. In People v Jackson (20 NY2d 440, 455), a unanimous court upheld the felony murder conviction upon facts significantly similar and really identical to those here present. There "[t]he defendant was intercepted by Patrolman Ramos as he was emerging from the hotel where the robbery was committed. A scuffle ensued and the police officer was shot only a few short feet from the premises. Thus, unities of time and place between the robbery and the homicide were such that it is inconceivable that a sensible jury would have acquitted”. (See, also, People v Moll, 26 AD2d 654, affd 21 NY2d 706.)

At this point, it is essential to carefully note that the defendant’s request to charge concerning the termination of the burglary was apparently premised upon the definition and the law of felony murder under the prior statute. Subdivision 2 of section 1044 of the former Penal Law provided that a felony murder be committed "by a person engaged in the commission of * * * a felony”. As revised and amended, the Penal Law which became effective September 1, 1967 provides one is guilty of felony murder when "[ajcting either alone or with one or more other persons, he commits or attempts to commit * * * burglary * * * and, in the course of and in furtherance of such crime or of immediate fight therefrom, he, or another participant, if there be any, causes the death of a person” (Penal Law, § 125.25, subd 3; emphasis supplied). It is important to further note that this revision was made in order to "eliminate many technical issues which inevitably arise when it is essential to determine whether the underlying felony was completed at the time of the killing or whether it was still in progress” (Practice Commentaries, McKinney’s Con Laws of NY, Book 39, Penal Law, § 125.25). This court stated in People v Gladman (41 NY2d 123, 127) that "[t]he later New York cases indicate some dissatisfaction with the strict legal rules that had developed and tended to leave the question of escape killings to the jury as a question of fact, under appropriate instructions. The change was to point out 'generally that the killing to be felony murder must occur while the actor or one or more of his confederates is engaged in securing the plunder or in doing something immediately connected with the underlying crime (Dolan v. People, 64 N. Y. 485); that escape may, under certain unities of time, manner and place, be a matter so immediately connected with the crime as to be part of its commission (People v. Gior, 197 N. Y. 152); but that where [not as in this case] there is no reasonable doubt of a complete intervening desistance from the crime, as by the abandonment of the loot and running away, the subsequent homicide is not murder in the first degree without proof of deliberation and intent. (People v. Marwig, 227 N. Y. 382).’ (People v Walsh, 262 NY 140, 148, supra; People v Jackson, 20 NY2d 440, 454, cert den 391 US 928.)” In Gladman, the court, in its analysis, referred to People v Carter (50 AD2d 174, 176) where the Third Department stated: " '[i]t is possible to have a factual situation in a case of felonious homicide where only one conclusion can be drawn as to whether or not the homicide took place during the commission of the felony’ (People v Walsh, 262 NY 140, 147). Generally, however, the matter is a fact question and only rarely may it be decided by the trial court as a matter of law (People v Walsh, supra, p 147; cf. People v Jackson, 20 NY2d 440, 454; People v Sobieskoda, 235 NY 411, 420; People v Nichols, 230 NY 221).” (Emphasis supplied.)

An examination of the first request made by defendant made no mention whatsoever of felony murder liability in the event the killing took place during "immediate flight” and if couched in the terms requested by defendant, it would have been an erroneous charge. That request spoke only to an instruction that the jury were required to acquit if they found the burglary alone had terminated at the moment of the killing.

Advancing one further step, even if the request could be construed as an instruction to acquit the defendant if they found that both the burglary and the immediate flight therefrom had terminated before the killing, the request was unnecessary for that charge had already been given as noted by the instructions given by the court in the main charge wherein the jurors were clearly instructed on the law. First, the Trial Judge read the indictment relating to the felony murder charge and then further paraphrased it stating that she was charged with that crime by "aiding and abetting and being aided and abetted by John MacKenzie * * * on or about October 7, 1975, committed the crime of burglary, and in the course of and in furtherance of such crime, and in immediate flight therefrom, caused the death of Matthew Giglio, a nonparticipant in the crime * * * [specifically, in] the immediate flight therefrom, John MacKenzie shot Matthew Giglio”. The trial court then explained that: "In deciding whether a felony murder has been committed, it makes no difference whether the shooting actually occurred in the course of or in the furtherance of the burglary alleged, or whether it occurred in the immediate flight therefrom. The elements of the crime of murder in the second degree under this count of the indictment are: (1) that at the time and place set forth in the indictment the defendant either acted alone or with one or more person, each aiding and abetting the other, committed or attempted to commit a burglary. (2) That in the course of and in furtherance of the burglary, or of the immediate flight therefrom, the defendant, or another participant in the crime, caused the death of Matthew Giglio. (3) That Matthew Giglio was not a participant in the underlying crime of burglary. If you are not satisfied that the People have proven each and every element beyond a reasonable doubt, then you must find the defendant not guilty of murder in the second degree.”

Addressing the second requested charge relating to defendant’s freedom from criminal liability even if she was in custody at the time Officer Giglio was shot, we are reminded that such a request, absent any reference to the statutory liability for "immediate flight” from a felony, would also have been improper. Going one step further, however, (which we need not do) and assuming that the request contained a direction that defendant should be acquitted because such custody would have terminated both the underlying felony and immediate flight therefrom, such a charge would obviously have been improper. Even though the defendant had no intention of abandoning the crime voluntarily, and even though she was responding to questions pertaining to her identity when conversing with the two officers behind the car, the majority would hold that she could thus be absolved from criminal liability for the actions of the other participant in the crime she helped to commit. This conclusion is contrary to all precedent. (See People v Moll, 21 NY2d 706, supra; People v Keshner, 304 NY 968). In Keshner, the defendant’s conviction of felony murder was sustained by this court. There, defendant’s accomplices had committed arson resulting in the death of a policeman. Prior thereto, defendant was outside the building and he was placed under arrest. Shortly thereafter the fire erupted and the victim’s death ensued. The court rejected defendant’s argument that, because the underlying crime of arson had terminated before the actual fire and resulting death, and because he was arrested prior to the officer’s death, he could not be held responsible. As noted, this court rejected his contention out of hand.

Quite apart from the analysis made of the case before us up to this point, we emphasize that indeed the court did charge, as noted above, that the jury were required to find as a fact whether the murder was in furtherance of the burglary or of the immediate flight. The court did not decide that the homicide had occurred during the course of the burglary as a matter of law. An examination of the charge will promptly reveal that this question was left for the jury to decide. Actually, the questions of participation, termination and of the immediate flight therefrom were all left for the jury to determine. To adopt and embrace defendant’s convoluted argument and interpretation of the felony murder statute would not only defy ordinary logic but would do utter violence to the specific language of the statute and the avowed intent of the Legislature.

Both at common law and by statute in New York (Penal Law, § 125.25) a felonious homicide is considered murder by operation of the legal fiction of transferred intent, and the homicide is characterized as having been committed with malice prepense (People v Luscomb, 292 NY 390, 395; People v Hüter, 184 NY 237; Mansell and Herbert’s Case, 2 Dyer 128.b; 4 Blackstone, Commentaries, 198). "It is the malice of the underlying felony that is attributed to the felon” (People v Wood, 8 NY2d 48, 51). While the mens rea for intentional homicide may be inferred from an intent to commit the felony, the actus reus is proven inferentially as well. Sharing a felonious venture with one who later kills someone, and doing so with the knowledge that a participant is armed, exposes one to criminal liability for the homicide, particularly if it occurred during the commission of the felonious act or in the immediate flight therefrom.

The majority has not addressed the other assigned errors, all of which are without any merit and, hence, they need not be addressed.

In all these circumstances, the defendant’s conviction of the felony murder of the police officer should be upheld, and the order of the Appellate Division should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler and Fuchsberg concur; Judge Gabrielli, dissents in part and votes to affirm in a separate opinion.

Order modified and case remitted to Nassau County Court for a new trial on the felony murder, count in accordance with the memorandum herein and, as so modified, affirmed.

       Defendant was questioned rather casually regarding only her identity for from one to three minutes, and there is no dispute that she was not physically restrained and, indeed, she was left unattended when the two officers heard a shot.


text:
    William J. Morris, Inc., Appellant, v Lanzilotta & Teramo Construction Corp., Defendant, and Fidelity & Deposit Company of Maryland, Respondent.
    Argued May 4, 1979;
    decided June 14, 1979

      APPEARANCES OF COUNSEL

      John A. Dowd for appellant.

      Cecil Holland, Jr., for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division (63 AD2d 969; see, also, Becker v Faber, 280 NY 146, 148-149).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.


text:
    Eileen B. C. Lupert et al., Appellants, v College of Law of Syracuse University, Respondent.
    Submitted June 11, 1979;
    decided June 14, 1979
   Motion for relief pending determination of an application to the Supreme Court of the United States dismissed for lack of jurisdiction to entertain it inasmuch as no matter is presently pending before the Court of Appeals. [See 46 NY2d 939.]


text:
    Maria Marzan, Appellant, v Park Avenue Enclosed Market Merchants Association, Inc., Respondent.
    Submitted May 14, 1979;
    decided June 14, 1979
   Motion to dismiss the appeal herein denied.


text:
    In the Matter of Building Contractors Association, Inc., et al., Respondents, v James H. Tully, Jr., as Commissioner of Taxation and Finance of the State of New York, et al., Appellants.
    Submitted June 4, 1979;
    decided June 14, 1979
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution (cf. Matter of F. J. Zeronda, Inc. v Town Bd. of Town of Halfmoon, 37 NY2d 198).


text:
    In the Matter of John S. (Anonymous) and Others, Alleged to be Permanently Neglected Children.
    Decided June 14, 1979
   Appeal transferred by the Court of Appeals sua sponte to the Appellate Division, Third Department, without costs, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3, subd b, par [2]; § 5, subd b; CPLR 5601, subd [b], par 2).


text:
    In the Matter of the Ancillary Receivership of Interstate Insurance Company. Murphy Pacific Marine Salvage Corporation (Merritt Division), Appellant; Superintendent of Insurance of the State of New York, as Ancillary Receiver of Interstate Insurance Company, Respondent.

      Argued June 4, 1979;
    decided June 26, 1979
    APPEARANCES OF COUNSEL

      Daniel J. Reidy for appellant.

      Herbert Rubin, Edward L. Birnbaum and Howard S. Edinburgh for respondent.
   OPINION OF THE COURT

Memorandum.

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

When its liability insurance carrier, the Interstate Insurance Company, became insolvent, petitioner, Merritt Division of Murphy Pacific Marine Salvage Corporation, was forced to satisfy a judgment out of its own assets. Seeking reimbursement, petitioner filed a claim with respondent, the Superintendent of Insurance, purportedly in accordance with the provisions pertaining to the New York Property and Liability Insurance Security Fund (Insurance Law, § 334). Respondent denied the claim on the ground that the incident out of which liability arose occurred in Virginia waters, while the statute only covers "risks located or resident in” New York (§ 334, subd 2). In this special proceeding in which petitioner seeks to compel payment of its claim out of the fund, both Special Term and the Appellate Division have denied the requested relief. They did so on the basis, inter alia, that the term risk "has a commonly accepted meaning in the insurance business, viz., a 'risk’ is the physical property or person insured” (Matter of Guardian Life Ins. Co. v Chapman, 302 NY 226, 243). Inasmuch as the fund covers only "risks” located in New York, liability stemming from an accident on a ship off the coast of Virginia can reasonably be deemed nonreimbursable.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    The People of the State of New York, Appellant, v Clarence Moore, Respondent.
    Argued May 30, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

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

      Gerald Zuckerman for respondent.
   OPINION OF THE COURT

Ordér reversed for reasons stated in the dissenting opinion by Mr. Justice Samuel J. Silverman at the Appellate Division. (62 AD2d 155, 157-160), and case remitted to the Appellate. Division, First Department, for review of the facts (CPL 470.25, subd'2, par -[d]; 470.40, subd 2, par [b]).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    In the Matter of Thomas P. Sarro, Respondent, v New York City Board of Education et al., Appellants.
    Argued May 30, 1979;
    decided June 26, 1979
    APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Paul T. Rephen and L. Kevin Sheridan of counsel), for appellants.

      Sam Resnicoif, Gordon Schectman, Murray A. Gordon and Henry T. Berger for respondent.
   OPINION OF THE COURT

Memorandum.

The judgment of the Appellate Division should be reversed, with costs, the determination of the board of education confirmed and the petition dismissed.

It was error for the Appellate Division to have reduced the suspension imposed by the board of education from five to three years (Matter of Pell v Board of Educ., 34 NY2d 222, 234; Matter of Bott v Board of Educ., 41 NY2d 265). The courts should show particular deference in matters of internal discipline to determinations made by boards of education which possess a peculiar sensitivity to and comprehension of the complexities and nuances of personnel administration and have responsibility for appropriate accommodation of the points of view of administration, teachers, pupils, parents and the community. (Cf. Matter of Ahsaf v Nyquist, 37 NY2d 182, 184-185; see Matter of Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum; Judge Meyer concurs on constraint of Matter of Pell v Board of Educ. (34 NY2d 222).

Judgment reversed, etc.


text:
    In the Matter of U. S. Pioneer Electronics Corp., Appellant. Nikko Electric Corp. of America, Respondent. In the Matter of U. S. Pioneer Electronics Corp., Appellant. Rotel of America, Inc., Respondent.
    Submitted May 31, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Richard D. Gaines, Theodore R. Patrick and Ronald Abram-son for appellant.

      Robert J. Lynch, Charles F. Schirmeister and Evan S. Widlitz for Nikko Electric Corp. of America, respondent.

      William J. Greer and Emery M. Anderson for Rotel of America, Inc., Respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner has commenced an action in Ohio against a chain of retail hi-fidelity dealers for violations of that State’s Deceptive Trade Practices Act, unfair competition and breach of contract. In aid of that action petitioner seeks the production of documents and the testimony of the sales managers or other appropriate officers or employees of the two corporate respondents as nonparty witnesses. In the Nikko proceeding Supreme Court, Nassau County, vacated a prior ex parte order directing discovery; in Hotel Supreme Court, Westchester County, ordered the requested discovery. On appeal the Appellate Division, "on the law and as a matter of discretion in the interest of justice” in each case, directed parallel discovery to the extent and on the terms particularized in the court’s decisions. It concluded, "[a]s thus limited, petitioner will be able to achieve the disclosure to which it has demonstrated its entitlement, without simultaneously causing undue and unreasonable annoyance, disadvantage or other prejudice to the nonparty witness being examined.” Petitioner now appeals to our court from these two orders.

The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd [a]) rests in the sound discretion of the court to which application is made, subject to review by the intermediate appellate court, here the Appellate Division. Our court will not disturb the determinations made by that court in the absence of a demonstration that as a matter of law there has been an abuse of discretion. (3A Weinstein-KornMiller, NY Civ Prac, par 3103.01.) No such demonstration has been made in either of these cases.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

In each case: Order affirmed.

       Respondent Nikko’s motion to dismiss the appeal in its case was denied on April 3, 1979.


text:
    The People of the State of New York, Respondent, v David Daley, Also Known as David Dailey, Appellant.
    Argued June 1, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Martin W. Gershon for appellant.

      Eugene Gold, District Attorney (Richard A. Finkel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As we recently held in People v Davis (46 NY2d 780), CPL 60.50 does not require corroboration of defendant’s confession to the underlying predicate felony, here attempted robbery. The affirmed factual determination that defendant’s confessions were voluntary places this issue beyond the scope of our review, there being no error of law therein.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Charles Pomponio, Appellant.
    Argued May 29, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Morton N. Wekstein for appellant.

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

Memorandum.

Contrary to the Appellate Division’s determination we hold that the affidavits submitted in support of the application for the wire tap warrant were insufficient to establish probable cause. Essentially the affidavits state that Larry Centore, whose home phone was to be tapped, had a prior criminal record for assault and robbery and one unresolved charge of gambling; that he met regularly with persons who also had criminal records including some gambling convictions; that on three or four occasions some of these individuals visited Centore at his home but the regular meetings occurred at a local restaurant where, on occasion, one or more of these persons was seen carrying brown paper bags, newspapers, or brief cases. These activities may be suspicious but they do not rise to the level of probable cause to believe that Centore was engaged in gambling or that a wire tap on his home phone would yield evidence of illegal gambling. Thus the defendant is entitled to suppression to the extent of precluding the People from introducing, at trial, the telephone conversations which were intercepted and recorded pursuant to the warrant.

However, the defendant’s testimony before the Grand Jury is admissible at trial because it was the product of a voluntary and independent act which is sufficient to dissipate the taint (People v McGrath, 46 NY2d 12, 28, 29). Consequently the motion to dismiss the remaining four counts of the indictment should be denied (People v McGrath, supra).

Accordingly, the order of the Appellate Division reinstating these four counts of the indictment should be affirmed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Frank Ali, Respondent.
    Argued May 30, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Phyllis M. Gershon, Robert M. Pitler and Jerrold L. Neugarten of counsel), for appellant.

      Neil J. Rosini and John C. Sabetta for respondent.
   OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed for the reasons stated in the Appellate Division memorandum. We would add that instead of giving a special supplemental charge to a deadlocked jury, the court in its initial charge might well instruct the jury as to the nature of its duties in the course of deliberation (see PJI 1:28), and then, should the jury fail to reach a verdict, repeat the instruction (see Comment NY PJI 2d, 1:100; ABA, Standards Relating to Trial By Jury, § 5.4).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of the Claim of Meliticia Gonzalez, Appellant. Phillip Ross, as Industrial Commissioner, Respondent.
    Argued June 1, 1979;
    decided June 26, 1979
    APPEARANCES OF COUNSEL

      Constance P. Carden and John E. Kirklin for appellant.

      Robert Abrams, Attorney-General (Irving Jorrisch, Murray Sylvester and Iris A. Steel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal taken by claimant as of right should be dismissed upon the ground that no substantial constitutional question is directly involved. On the court’s own motion leave to appeal should be granted to claimant. The order of the Appellate Division should be reversed and the matter remitted to the Appellate Division with directions to remand for further proceedings in accordance with this memorandum.

The referee found that the claimant had been mailed notice of determination on January 7, 1976. Since the claimant had failed to request a hearing within 30 days after that date (Labor Law, § 620, subd 1, par [a]), the referee sustained the Industrial Commissioner’s contention that claimant’s request for a hearing was untimely. The Unemployment Insurance Appeal Board adopted the findings of the referee.

On this record there is neither testimony nor documentary support for the finding that the claimant had been mailed a notice of determination. To be sure where the record indicates an established and regularly followed office procedure designed to insure that notices to claimants are properly addressed and mailed, a rebuttable presumption arises that the notices are received (see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830). Requisite proof of course in the administrative proceeding need not rise to the quantum required in a judicial action or proceeding so long as it constitutes reasonable evidence of mailing. Here, however, because no proof whatsoever was offered that such a practice had been established or followed, the presumption does not arise.

Since the referee made findings only as to the question of the timeliness of the claimant’s request for a hearing, the matter should be remanded for further proceedings to consider the merits underlying the claim of entitlement to unemployment insurance.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal taken by claimant as of right dismissed, without costs. On the court’s own motion, leave to appeal granted to claimant. Order reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand for further proceedings in accordance with the memorandum herein.


text:
    The People of the State of New York, Respondent, v James Seale, Appellant.
    Argued June 4, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Robert E. Levy for appellant.

      Mario Merola, District Attorney (Robert Lefevre and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the trial court erred in refusing the defendant’s request for a charge on the affirmative defense of entrapment. The trial court was correct in refusing to instruct the jury on this affirmative defense because the defendant failed to raise a factual question as to whether he was actively induced by government agents to commit the criminal act of possession for which he was convicted (Penal Law, § 40.05).

Defendant also contends that he was deprived of his right to counsel, and his right of confrontation because of the inability and failure of defense counsel to adequately examine a key witness, an informant, on matters relating to the informant’s character. This claim was predicated on counsel’s prior representation of that witness in an unrelated criminal proceeding. On this record it cannot be said .that defense counsel’s efforts on behalf of his client in defense of the possession charge were in any way limited in consequence of such prior representation. In addition, the defendant at trial admitted having engaged in the conduct underlying both possession charges. Since the jury convicted him only of these two offenses, any failure of defense counsel to attack the character of the informant could not reasonably have prejudiced the defendant.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    In the Matter of Rappl & Hoenig Co., Inc., Respondent, v New York State Department of Environmental Conservation et al., Appellants.
    Argued June 5, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Robert Abrams, Attorney-General (Murray Susswein, Ruth Kessler Toch and Stanley Fishman of counsel), for appellants.

      Justin L. Vigdor, James S. Grossman and Mark J. Moretti for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division erred, however, in the reasons given for leaving the matter with Special Term. The determination of whether the petitioner’s property could be drained without endangering the environment, as well as other issues concerning the use of the property, may be raised only after a determination that the subject property comes within the Freshwater Wetlands Act (ECL 24-0107, subd 1). If it is determined that the property comes within the purview of the act, questions concerning the use of the property must be considered initially by the Department of Environmental Conservation or the duly empowered local government within the confines of an application for a permit (ECL 24-0703, subd 1; 24-0705, subd 1). Review of such determinations may then be sought either administratively or in the courts (ECL 24-1105).

The sole question for judicial review in this proceeding, brought pursuant to ECL 24-1105, is whether the Freshwater Wetlands Act applies to petitioner’s property. Although the courts below held the act applicable to artificially as well as naturally created wetlands, it does not appear that the necessary factual findings have been made to decide whether the petitioner’s property constitutes a wetland within the meaning of the act. The matter, therefore, is properly before Special Term for consideration of this question.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.


text:
    Margaret Brown, Respondent-Appellant, v City of New York, Appellant-Respondent.
    Argued May 31, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (Bernard Burstein and L. Kevin Sheridan of counsel), for appellant-respondent.

      Thomas R. Newman, Aaron J. Broder and Steven Di Joseph for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from should be affirmed. Viewing the evidence in the record in the light most favorable to the plaintiff (see Parvi v City of Kingston, 41 NY2d 553), we agree with the Appellate Division that she made out a prima facie case. Without more, the record reveals that the testimony of plaintiffs medical expert provided a basis for a finding that defendant’s doctors deviated from accepted medical practice when they failed to further explore the nature of the orange pills plaintiff disclosed she had taken so that they might eliminate the possibility that her symptoms were drug-induced rather than systemic, and that therefore surgery was contraindicated.

As to the cross appeal, the plaintiff having stipulated to the "reduction” of damages, her appeal does not lie and, accordingly, is dismissed (Dudley v Perkins, 235 NY 448).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment affirmed, with costs to plaintiff, and plaintiffs cross appeal dismissed, without costs, in a memorandum.


text:
    In the Matter of the Claim of Edward Boulware, Appellant. Philip Ross, as Industrial Commissioner, Respondent.
    Argued June 1, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      David L. Posner for appellant.

      Robert Abrams, Attorney-General (Irving Jorrisch, Murray Sylvester and Robert A. Feuerstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There is substantial evidence in the record to support the Unemployment Insurance Appeal Board’s determination that claimant’s discharge resulted from misconduct in connection with his employment. The board was entitled to find that claimant’s conduct, in placing an uncovered paint can beneath his desk barely one day after he had received an explicit injunction not to leave open cans' of paint in the office, was not merely inadvertent but a volitional act in disregard of his employer’s specific instruction to the detriment of the latter’s interest. (See Matter of Norman [Ross], 53 AD2d 950; Matter of McGlynn [Levine], 52 AD2d 709).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.


text:
    Kenneth Ramcharan et al., Appellants, v Joseph Angelo et al., Respondents.
    Argued June 4, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Sheila Callahan and Howard Karger for appellants.

      Donald D. Brown, Jr., for respondents.
   OPINION OF THE COURT

Order reversed, with costs, motion for summary judgment granted and the case remitted to Supreme Court, Dutchess County, for assessment of damages for the reasons stated in the dissenting memorandum at the Appellate Division (66 AD2d 774, 776-777). Question certified answered in the negative.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    The People of the State of New York, Respondent, v Sidney Lieberman, Appellant.
    Argued May 30, 1979;
    decided June 26, 1979

      APPEARANCES OF COUNSEL

      Harvey Weinberg, Robert E. Goldman and Edward S. Wactlar for appellant.

      Charles J. Hynes, Deputy Attorney-General (Arthur Weinstein and T. James Bryan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The points which appellant’s present counsel seeks to argue were not preserved for review by his trial attorney. With respect to the claim that the Special Prosecutor acted in excess of his authority, defendant’s omnibus motion made no reference to the point and nothing appears in the moving papers except a passing reference in the reply affidavit. With respect to the speedy trial issue now argued on constitutional grounds, it was not referred to in the notice of motion which mentioned only CPL 30.30. Though defendant’s attorney in oral argument on his motion for reargument did at one point refer to defendant’s "Constitutional rights to a speedy trial”, neither the notice of motion nor the affidavit gave notice of any change in the predicate for the speedy trial motion from CPL 30.30 to constitutional grounds. Under such circumstances, the issues have not been preserved for review (People v Johnson, 42 NY2d 841; People v Tutt, 38 NY2d 1011; People v Adams, 38 NY2d 605).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed in a memorandum.


text:
    Pamela Hedman, Appellant, v City of Rochester, Respondent.
    Argued June 5, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Bernard A. Frank for appellant.

      Louis N. Kash, Corporation Counsel (Michael J. Looby and Michele L. Di Gaetano of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (64 AD2d 817).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.


text:
    Savin Brothers, Inc., Appellant, v State of New York, Respondent.
    (Claim No. 55011.)
    Argued June 6, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Carl E. Buckley and Eugene Schaifel for appellant.

      Robert Abrams, Attorney-General (George M. Thorpe, Shirley Adelson Siegel and Jeremiah Jochnowitz of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by then Presiding Justice John S. Marsh at the Appellate Division (62 AD2d 511).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    In the Matter of Highpoint Enterprises, Inc., Respondent, v Board of Estimate of the City of New York et al., Appellants.
    Argued June 7, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Allen G. Schwartz, Corporation Counsel (L. Kevin Sheridan, Ronald E. Sternberg, Angelo Aiosa and Marvin Mitzner of counsel), for appellant.

      Robert J. DeBoissiere for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.


text:
    In the Matter of Patricia Tyrrell, Respondent, v Lillian Tyrrell, Appellant.
    Argued June 6, 1979;
    decided June 28, 1979

      APPEARANCES OF COUNSEL

      Julius H. Michaels for appellant.

      S. Gerald Davidson and Douglas S. Gates for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for reasons stated in the opinion by Mr. Justice Stewart F. Hancock, Jr., at the Appellate Division (67 AD2d 247).

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer. Taking no part: Judge Fuchs-berg.