author: Titone, J. Smith, J. Simons, J.

text:
    [673 NE2d 902, 650 NYS2d 617]
    The People of the State of New York, Respondent, v Newton Knowles, Appellant.
    Argued September 10, 1996;
    decided October 22, 1996

      POINTS OF COUNSEL

      Cynthia Colt, New York City, and Daniel L. Greenberg for appellant.
    The court’s refusal to allow a second Legal Aid attorney to assist appellant at trial denied appellant his constitutional right to assistance of counsel and to equal protection, where the court’s stated reasons for doing so were that one Legal Aid attorney was sufficient and that the barred attorney’s presence at the defense table would gain sympathy for appellant because both appellant and the second Legal Aid attorney — who had prepared to cross-examine one of the prosecution’s most important witnesses — were black and all other attorneys in the case — including two prosecutors — were white. (People v Joseph, 84 NY2d 995; People v Hilliard, 73 NY2d 584; People v Settles, 46 NY2d 154; People v Cunningham, 49 NY2d 203; People v Harris, 77 NY2d 434; People v Hall, 46 NY2d 873, 444 US 848; People v Gomberg, 38 NY2d 307; Gideon v Wainwright, 372 US 335; People v Gonzalez, 47 NY2d 606; People v Jackson, 216 AD2d 323.)

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Bruce Seeliger, John M. Castellano and Robin A. Forshaw of counsel), for respondent.
    None of defendant’s constitutional rights were implicated when the trial court rejected assigned counsel’s request for additional legal assistance. (People v Medina, 44 NY2d 199; United States v Cronic, 466 US 468; McMann v Richardson, 397 US 759; Wheat v United States, 486 US 153; Caplin & Drysdale, Chartered v United States, 491 US 617; People v Sawyer, 57 NY2d 12; Strickland v Washington, 466 US 668; People v Flores, 84 NY2d 184; People v Claudio, 83 NY2d 76; Herring v New York, 422 US 853.)

      Jonathan E. Gradess, Albany, and Alfred O’Connor for New York State Defenders Association, amicus curiae.

    The second seating of criminal trials serves important interests of public defense firms and, appropriately regulated, promotes the fair, orderly and efficient progress of trials. While Trial Judges should have wide discretion to place limits on the practice, there is no justification for its complete prohibition. (People v Hilliard, 73 NY2d 584; Douglas v California, 372 US 353; People v Montgomery, 18 NY2d 993; Batson v Kentucky, 476 US 79; People v Kern, 75 NY2d 638; People v Medina, 44 NY2d 199; People v Sawyer, 57 NY2d 12; People v Sides, 75 NY2d 822; People v Christou, 159 Misc 2d 583; People v McIntyre, 36 NY2d 10.)
   OPINION OF THE COURT

Titone, J.

At the defendant’s trial for the crime of criminal sale of a controlled substance, the trial court refused to permit a second attorney assigned by Legal Aid to the defense to cross-examine a witness or to sit at the defense table. Because nothing on the record suggests that the presence of the second attorney, with whom defendant had established an attorney-client relationship, would have jeopardized the efficiency or fairness of the trial, we conclude that her complete exclusion from the proceedings constituted an abuse of discretion requiring reversal and a new trial.

I.

Robert M. Baum, as head of the Legal Aid Society’s Criminal Defense Division, was appointed to represent defendant at his trial in a buy and bust case. Legal Aid in turn assigned two attorneys — Robert Jones and Melody Glover — to the defense and the pair arranged to share defense responsibilities at trial. Prior to commencement of trial, and in light of that arrangement, Jones, the defense attorney of record, requested that Glover be permitted to cross-examine the arresting officer since she was prepared to do so and would benefit from the opportunity to "actually do litigation.” Jones explained that defendant "has formed a certain attachment to Ms. Glover and myself and I think that that’s also to be considered.” Defense counsel also assured the court that the two attorneys would not "make applications at the same time.”

The court denied the request. The court stated that Jones had appeared for defendant at pretrial hearings without Glover’s assistance, the case was "very simple and straightforward” and the Legal Aid Society "almost always [has] one attorney trying the case when there is one defendant.”

Defense counsel then requested in the alternative that Glover at least be allowed to sit at the counsel table. Although two attorneys appeared for the prosecution and sat at the prosecution table throughout the trial, the court again denied defense counsel’s request, responding:

"I will put on the record and be very frank, this defendant is black, you are white, the other attorneys are white, Ms. Glover is black. I think all you’re doing is trying to put in some type of sympathy, to have a very seasoned appearance * * *. I think you’re trying to gain some undue advantage and I will not permit that. I think your application is made in bad faith” (emphasis supplied).

After a jury trial, defendant was convicted of criminal sale of a controlled substance in the third degree and sentenced.

The Appellate Division "strongly disapprove^] of and [found] totally unacceptable the trial court’s reason for denying defense counsel’s application to have an additional counsel to assist him.” (222 AD2d 456, 457.) Nonetheless, the Court affirmed the conviction on the grounds that defendant’s constitutional rights were not impaired and defendant was not prejudiced by the court’s exclusion of Glover. A Judge of this Court granted defendant’s application for leave to appeal and we now reverse and grant a new trial.

II.

Trial courts possess inherent authority "to impose reasonable rules to control the conduct of the trial” (People v Hilliard, 73 NY2d 584, 586; see also, Chemprene, Inc. v X-Tyal Intl. Corp., 55 NY2d 900). However, in exercising that authority, a court should be "hesitant to interfere in an established attorney-client relationship” (People v Hall, 46 NY2d 873, 875), and may not do so arbitrarily (Fuller v Diesslin, 868 F2d 604, 607 [3d Cir 1989], cert denied sub nom. Perretti v Fuller, 493 US 873; People v Gomberg, 38 NY2d 307, 313). Judicial reluctance to interfere with the strategy of defense counsel serves the paramount goal of securing effective legal representation for a defendant by creating "an atmosphere of trust and respect” between an attorney and client (People v Arroyave, 49 NY2d 264, 270), which is a " 'cornerstone of the adversary system’ ” (Wilson v Mintzes, 761 F2d 275, 279 [6th Cir 1985]). Accordingly, judicial interference with an established attorney-client relationship in the name of trial management may be tolerable only where the court first determines that counsel’s participation presents a conflict of interest or where defense tactics may compromise the orderly management of the trial or the fair administration of justice (see, People v Arroyave, 49 NY2d 264, 271, supra; United States v Panzardi Alvarez, 816 F2d 813, 816 [1st Cir 1987]).

As a matter of routine practice, the law firms and institutional defenders who represent those accused of crimes often make choices as to the number of attorneys who are needed to assist with the defense and the delegation of various tasks to particular defense attorneys. Such choices may be as much matters of strategy as are choices concerning the order in which defense witnesses are to be presented, the identity of the attorney who will make opening statements or the length and scope of cross-examination. To the extent that representation by multiple attorneys at trial is a practice that may occasionally result in disruption, the trial court has discretion to impose reasonable restrictions to ensure the fair and orderly conduct of the proceedings. However, as is true with any strategic choice, the court’s discretion to intervene should be exercised sparingly, particularly when a defendant may have developed a relationship of trust with his or her attorneys.

III.

The trial court in this case interfered with the defense by completely excluding cocounsel from the trial. However, the court did not support this ruling with any threshold findings that her participation would have delayed or disrupted the proceedings, created any conflict of interest, or resulted in prejudice to the prosecution or the defense (cf., People v Hall, 46 NY2d 873, 875). Tellingly, in the trial court’s own estimation, Glover was a "very seasoned” and "competent” attorney and the record establishes that she was fully prepared to proceed with the cross-examination of the police officer without delay. The two defense attorneys also agreed to object only during the questioning of witnesses that they had personally cross-examined — a practice that would eliminate any confusion or delay that would be caused by joint applications made to the court. The record also reveals that defendant expected Glover to cross-examine the arresting officer and desired this strategic arrangement.

Additionally, the court’s stated perceptions that defense counsel was attempting to evoke sympathy from the jury by seeking the assistance of an African-American attorney and that the defense application was made in bad faith find absolutely no record support. The fact that defendant and Glover shared the same race bore no relation to the efficient management of the trial, and the court’s reliance on that factor to exclude Glover from the proceedings was intolerable.

Indeed, nothing in the record contradicts defense counsel’s statements that Glover’s participation was sought in good faith to provide him with assistance in conducting the defense. Given that the court permitted the prosecutor of record to be assisted by a supervisor throughout the trial, no legitimate claim can be made that Glover’s presence at the defense table would have impaired the efficient conduct of the trial.

Thus, the court’s exclusion of Glover on this record can only be characterized as arbitrary and an abuse of discretion, since there was no rational reason to support the ruling. The court’s rigid insistence that cocounsel not conduct any examinations or even assist at the defense table without considering whether her participation would have disrupted the efficient conduct of the trial or resulted in prejudice interfered with defense tactics in violation of defendant’s right to the effective assistance of counsel and constitutes reversible error (People v Joseph, 84 NY2d 995, 998; People v Hilliard, 78 NY2d 584, 587, supra; see also, Wilson v Mintzes, 761 F2d 275, 281, supra).

The dissent mischaracterizes the majority’s holding, stating that it "necessarily holds that defendant was constitutionally entitled to two assigned attorneys” (dissenting opn, at 773) and "implies that if defendant has two counsel at any point” defendant has received "ineffective assistance per se” (dissenting opn, at 774) if the defense is reduced to one attorney. However, this case does not involve the assignment of two attorneys. Legal Aid was assigned by the court to represent defendant and that institution chose to divide the defense responsibilities between two attorneys — a choice that a private firm retained by a criminal defendant would also be free to make. Indeed, that defendant was represented by assigned rather than retained counsel is of no moment in this context, since the issue here is not whether an indigent defendant has a constitutional right to be represented by two attorneys (see, Bell v Watkins, 692 F2d 999, 1009 [5th Cir 1982]), but rather whether the court interfered with an existing attorney-client relationship. Accordingly, in this case we hold simply that in exercising its discretion to manage the courtroom, the court’s interference with the defendant’s established relationship with counsel must be justified by overriding concerns of fairness or efficiency — regardless of whether counsel is assigned or retained and regardless of whether defendant is represented by more than one attorney.

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

Smith, J.

(concurring). The exclusion of the attorney by a State Judge from participating in this case because counsel was African-American was a violation of the Equal Protection Clauses of the Federal (14th Amend) and State (art I, § 11) Constitutions, as well as a clear violation of the public policy of this State to render justice without regard to race. Not only was the attorney not permitted to cross-examine a witness, she was not even permitted to sit at the table with the defendant and the lead attorney because she was African-American.

When the lead defense attorney requested that a second attorney handle the cross-examination of one witness, the trial court’s remarks were as follows:

"I will put on the record and be very frank, this defendant is black, you are white, the other attorneys are white, Ms. Glover is black. I think all you’re doing is trying to put in some type of sympathy, to have a very seasoned appearance, and she has also appeared before me, by the way, and a very, very competent attorney, I would say. I spent three or four days just sitting there watching the trial. I think you’re trying to gain some undo [sic] advantage and I will not permit that. I think your application is made in bad faith.”

This statement alone is sufficient to demonstrate that the court abused its discretion in excluding the attorney from participation in the trial. Whether or not she was the lead attorney is not relevant here.

Ordinarily, a constitutional argument must be preserved at the earliest possible opportunity for it to be reviewed by the Court of Appeals (Cohen and Karger, Powers of the New York Court of Appeals § 169, at 641 [rev ed]; 1 Newman, New York Appellate Practice § 2.02, at 2-10). Here, the defendant made several objections to Supreme Court’s ruling regarding defendant’s request for counsel. It was only after denying defense counsel’s request for the third time that Supreme Court revealed the discriminatory basis for its rulings and counsel again objected. Nevertheless, counsel did not specifically object on the grounds that the ruling was a violation of the equal protection of the laws.

All facts pertaining to the constitutional issue are in the record before us. On appeal to the Appellate Division, the parties fully and explicitly briefed this constitutional issue. Defendant argued that his right to counsel, his right to the equal protection of the laws and the attorney’s right to the equal protection of the laws had been violated. Specifically, the defendant argued the following in his brief to the Appellate Division:

"The trial court’s unjustified exclusion of the second Legal Aid attorney from the trial not only deprived appellant of his constitutional right to counsel and of his constitutional right to equal . protection of the law, but also deprived the Legal Aid attorney of her constitutional right to equal protection. U.S. Const. Amends. VI, XIV; N.Y. Const., Art. I, §§ 6, 11.”

Each of these constitutional arguments was answered in the brief of the prosecutor. The Appellate Division addressed the constitutional issues in the following language:

"We strongly disapprove of and find totally unacceptable the trial court’s reason for denying defense counsel’s application to have an additional counsel to assist him. Despite our disapproval, we do not find that the defendant’s constitutional rights were impaired or that he was prejudiced thereby.” (222 AD2d 456, 457.)

Because the Appellate Division has expressly addressed this issue and decided that defendant’s constitutional rights were not violated, preservation should not prevent review by this Court. Moreover, both parties have addressed the same constitutional issues in their briefs to this Court.

While both the majority and the dissent appropriately condemn the ruling of the Trial Judge, both determine that the equal protection issue argued in the Appellate Division cannot be entertained in this Court because it was not raised at the trial level. There is no dispute as to what happened, a question of law is involved and there appears to be no sound reason for a lack of review by this Court at this time.

This Court has previously held that although raised for the first time on appeal, legal arguments may be reviewed, and indeed, dispositive, when the opposing party has offered no "factual showing or legal counterstep that might have been made if the argument had been tendered below” (People ex rel. Roides v Smith, 67 NY2d 899, 901). Similarly, Supreme Court’s statements in the record are dispositive of defendant’s constitutional appeal and respondents have failed to offer a colorable counterargument that might have been made to the lower court. After denying counsel’s request three times, Supreme Court made it clear that it was unwilling to entertain further objections. Under such circumstances, counsel was justified in not making an additional constitutional challenge to the very Judge whose conduct formed the basis of the challenge to preserve the issue for our review.

Furthermore, we have held that certain issues which impact public policy may be reviewed by this Court despite being raised for the first time on appeal (Matter of Niagara Wheatfield Adm’rs Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68, 72 ["Where a contract provision is arguably void as against public policy, that issue may be raised for the first time at the Appellate Division by a party, or by the court on its own motion”]). In Rose v Mitchell (443 US 545), the Supreme Court held that even where a defendant had been convicted on evidence showing his guilt beyond a reasonable doubt, that conviction could be set aside for racial discrimination in the Grand Jury. The Court stated, "The claim that the court has discriminated on the basis of race in a given case brings the integrity of the judicial system into direct question” (id., at 563; see also, Powers v Ohio, 499 US 400, 412 ["(a)ctive discrimination by a prosecutor (or judge) during (trial) condones violations of the United States Constitution within the very institution entrusted with its enforcement”]).

As also stated by the Supreme Court in Powers, "The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system” (499 US, at 415; see also, People v Kern, 75 NY2d 638, 654 [" 'Discrimination within the judicial system is most pernicious because it is "a stimulant to that race prejudice which is an impediment to securing to (black citizens) that equal justice which the law aims to secure to all others” ’ ”] [citation omitted]; cf., Rose v Mitchell, 443 US 545, 563, supra ["where the allegation is that the state judiciary itself engages in discrimination in violation of the Fourteenth Amendment, there is a need to preserve independent federal habeas review”]). To refuse to consider the constitutional claims of the defendant is to immunize an erroneous determination of the Appellate Division from review, even when the error is of constitutional magnitude.

Racial discrimination is never a valid basis to support an exercise of discretion. Here, the presiding Judge issued a procedural ruling based solely on the skin color of the defendant and his counsel. Such action by a Trial Judge, if allowed to stand, improperly infects our entire judicial process. This grave violation of a clear public policy is properly condemned by this Court (1 Newman, New York Appellate Practice § 2.02, at 2-10), but is also the basis on which this conviction should be reversed.

Once the court in this trial excluded the attorney on the basis of race, reversal was required.

Simons, J.

(dissenting). The majority holds that error was committed when the Trial Judge refused defendant’s request to have a second chair attorney from assigned counsel’s office participate in his trial. It concludes the court’s action unjustifiably interfered with defendant’s constitutional right to counsel and that reversal is required even though defendant suffered no demonstrable prejudice as a result of the ruling. Concededly, defendant in this case received effective assistance of counsel and the Constitution guarantees him no more. Although the action of the court was not justified by the record, any error was harmless and the conviction should be affirmed. I therefore dissent.

A criminal defendant has a right to counsel at all material stages of the proceeding. If he cannot afford an attorney, the court must appoint one to represent him at public expense. The right is guaranteed under both the State and Federal Constitutions (NY Const, art I, § 6; US Const 6th Amend; see, Powell v Alabama, 287 US 45; Gideon v Wainwright, 372 US 335; People v Sawyer, 57 NY2d 12, 18-19, cert denied 459 US 1178). The purpose underlying these guarantees is to insure that those charged with crime are represented by an effective advocate and thus ensure that they receive a fair trial (Wheat v United States, 486 US 153, 159; Strickland v Washington, 466 US 668, 689; United States v Cronic, 466 US 648, 658; and see, People v Claudio, 83 NY2d 76, 79).

If a criminal defendant retains one or more attorneys, the court must respect that choice absent good cause to remove counsel (see, Wheat v United States, supra). Indeed, even when an apparent conflict of interest exists between codefendants, the court must accept defendants’ choice of retained counsel if the choice is knowing and the conflict is waived (People v Gomberg, 38 NY2d 307). A court arbitrarily interfering with a defendant’s chosen retained counsel risks an error of constitutional magnitude (see, Wilson v Mintzes, 761 F2d 275; United States v Panzardi Alvarez, 816 F2d 813, 816; People v Arroyave, 49 NY2d 264).

In the case of assigned counsel, a defendant has no similar right to select an attorney or attorneys. For reasons of practicality and economy, the choice is a matter resting within the absolute discretion of the court (see, 2 LaFave and Israel, Criminal Procedure § 11.4; see also, Annotation, Indigent’s Right to Particular Counsel, 66 ALR3d 996). Moreover, even after the court designates counsel the defendant does not have a categorical right to continue the assignment because he favors the attorney if the court has a supportable basis for ordering a change (People v Hall, 46 NY2d 873; cf., Smith v Superior Ct., 68 Cal 2d 547, 440 P2d 65; and see, Annotation, Change of Appointed Counsel over Objection, 3 ALR4th 1227). "When evaluating whether defendant has been accorded the constitutional right to counsel, the focus is on the adequacy of representation provided, not defendant’s relationship with counsel (Morris v Slappy, 461 US 1, 13-14).

The majority concludes that defendant was denied effective assistance of counsel. But defendant does not claim he received ineffective assistance of counsel or that he did not receive a fair trial. Nevertheless the majority maintains that defendant was entitled to two trial attorneys and that the court’s arbitrary interference with his relationship with one of them denied him effective assistance of counsel (see, majority opn, at 768). Presumably, it believes the constitutional guarantee encompasses that right. At least it identifies no other source— statute or common law — recognizing such a right. Thus, it necessarily holds that defendant was constitutionally entitled to two assigned attorneys and the failure to honor that right constitutes reversible error even in the absence of prejudice. That premise is not legally supportable under existing law. The Federal courts and State courts which have considered the subject have uniformly held that an indigent defendant does not have the right to two or more attorneys and the Supreme Court, when requested to do so, has refused to review those determinations (see, Bell v Watkins, 692 F2d 999, 1009, cert denied sub nom. Bell v Thigpen, 464 US 843; Crum v Hunter, 151 F2d 359, 361, cert denied 328 US 850; People v Padilla, 11 Cal 4th 891, 906 P2d 388, 409-410, cert denied — US —, 117 S Ct 107; Lowe v State, 650 So 2d 969, 974-975 [Fla], cert denied — US —, 116 S Ct 230; State v Pizzuto, 119 Idaho 742, 810 P2d 680, 713, cert denied 503 US 908; Baird v State, 604 NE2d 1170, 1187 [Ind], cert denied 510 US 893; Johnson v State, 292 Md 405, 439 A2d 542, 548; Smith v State, 445 So 2d 227, 230 [Miss]; State v Lord, 286 SW2d 737, 740 [Mo]; DePasquale v State, 106 Nev 843, 803 P2d 218, 220, cert denied 502 US 829; State v Frye, 341 NC 470, 461 SE2d 664, 675, cert denied — US —, 116 S Ct 1359). Nor is the new rule the majority establishes justified by the facts of this case or the purposes and concerns underlying the right to effective assistance of counsel.

Alternatively, the majority’s holding implies that if defendant has two counsel at any point, if his defense team is reduced to one attorney he receives ineffective assistance per se. Such a rule is simply untenable.

In this case, defendant was assigned counsel and, by any accepted standard, his attorney provided him with effective representation resulting in a fair trial. Defendant does not claim otherwise. That should be the end of the matter because defendant received all that he was constitutionally entitled to. The Judge’s remarks when rejecting trial counsel’s request that a second attorney assist him were improper and its stated reasons for believing that the application was made in bad faith were unsupported by the record. But the Judge’s conduct constituted trial error, not constitutional error, and it is subject to harmless error analysis.

The error was clearly harmless because defendant was not prejudiced by it. This was a simple trial on a charge of criminal sale of a controlled substance in the third degree resulting from a police arranged buy and bust. The People swore four witnesses, the undercover officer, the arresting officers and a chemist. The defendant swore one witness, a friend who testified that no sale had taken place. The jury was presented with a relatively brief trial involving only a question of credibility.

On the opening day of the trial, Mr. Jones, the attorney first designated by the Legal Aid Society to represent defendant and the one who had conducted all the prior proceedings without assistance, appeared with Ms. Glover and unexpectedly sought to have her examine one of the police officers. Whether she was there to offset the presence of a new hire sitting in with the Assistant District Attorney or for some other reason is irrelevant. Mr. Jones admitted he had handled the examinations at the preliminary hearings, he acknowledged that the case was "straightforward” and he made no claim that he was incapable of handling the trial without assistance. He sought Ms. Glover’s participation because she had prepared the cross-examination of one witness, because "[t]wo heads are better than one” and because the dual representation would be "mutually rewarding” to both attorneys. Defendant had formed a "certain attachment” with him and Ms. Glover, he said, and was "comfortable” with her handling part of the case. These were the "reasons” advanced to support counsel’s application which provoked the Judge’s remarks. Fortunately, the remarks and the ruling were made in the absence of the jury and could not have had any effect on its deliberations. They do not warrant the reversal of a valid conviction.

Nevertheless, the majority, focusing on the court’s frustration of defendant’s attempt to be represented by two lawyers, concludes that there must be a new trial because the court interfered with defendant’s assigned counsel. However, Ms. Glover was not assigned to represent defendant, the Legal Aid Society was. It designated Mr. Jones, a competent attorney, to appear for defendant and he did so at all material stages of the proceedings. The court did nothing to deprive defendant of that representation and, as noted above, defendant does not claim that his counsel was ineffective. There was constitutional error here only if defendant enjoyed a right under those circumstances to determine that he was entitled to two lawyers and that Ms. Glover should be one of them. Assuming that defendant or the Legal Aid Society could unilaterally determine that he required the assistance of two or more lawyers limited only by the court’s inherent power to control the orderliness of the proceedings — a legal proposition far from settled — and the court’s ruling in this case violated that rule, its actions constituted no more than an abuse of discretion and the error was harmless because defendant received both effective assistance of counsel and a fair trial (see, People v Wicks, 76 NY2d 128; see, People v Schaeffer, 56 NY2d 448).

Finally, it should be noted that the majority has supported its holding by citing cases in which the court has interfered with defendant’s right to retain counsel of his own choosing (see, e.g., People v Arroyave, 49 NY2d 264, supra), in which the court has relieved sole assigned counsel (see, People v Hall, 46 NY2d 873) or in which the court’s conduct deprived defendant of the right to counsel (see, People v Joseph, 84 NY2d 995; People v Hilliard, 73 NY2d 584). None of those circumstances exist here and none of the authorities support the rule the majority now advances.

In sum, defendant was represented by effective counsel and received a fair trial. In view of this, there is no basis to conclude that he received ineffective assistance because the court limited him to one attorney and no need to create a new constitutional right, unrecognized by any other court, merely to verify our unanimous disapproval of the Trial Judge’s conduct.

The order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges Bellacosa, Levine and Ciparick concur with Judge Titone; Judge Smith concurs in result in a separate opinion; Judge Simons dissents and votes to affirm in another opinion.

Order reversed, etc.

       We fully share the concerns of the concurrence regarding racially motivated decision making. However, our law is clear that, in a criminal case, arguments that were not raised or considered in the court of first instance are not "questions of law” within our constitutional review powers (see, NY Const, art VI, § 3; CPL 470.05 [2]; People v Iannelli, 69 NY2d 684; cf., People ex rel. Roides v Smith, 67 NY2d 899). Accordingly, we have no occasion to pass on the defendant’s present equal protection arguments.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [673 NE2d 910, 650 NYS2d 625]
    The People of the State of New York, Respondent, v Julio Fernandez, Appellant.
    Argued October 15, 1996;
    decided November 14, 1996

      POINTS OF COUNSEL

      Mark W. Zeno, New York City, and Daniel L. Greenberg for appellant.
    Attempted transferred intent second degree murder is a nonexistent crime, because (1) it is logically impossible to commit under any circumstances since transferred intent murder is a "result-based” crime that arises only when an unintended result occurs — i.e., the death of an unintended victim — and one cannot intend to bring about an unintended result, and (2) it makes no penological sense, because a defendant charged with that crime can always be more logically charged with the attempted murder of his intended victim, and its availability as an offense would skew the Penal Law’s punishment scheme by exacting disproportionate punishment for the harm or risk of harm inflicted upon unintended victims; appellant’s conviction for that crime, therefore, must be reversed, and that count of the indictment dismissed. (People v Martinez, 81 NY2d 810; People v Campbell, 72 NY2d 602; People v Saunders, 85 NY2d 339; People v Bracey, 41 NY2d 296; People v Miller, 87 NY2d 211; People v Coleman, 74 NY2d 381; People v Dlugash, 41 NY2d 725; People v Foster, 19 NY2d 150; People v Esquilin, 159 AD2d 632.)

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Nancy D. Killian and Joseph N. Ferdenzi of counsel), for respondent.
    I. Appellant’s guilt of attempted murder in the second degree, criminal possession of a weapon in the second degree, and recklesss endangerment in the first degree was established beyond a reasonable doubt by overwhelming evidence. (People v Bleakley, 69 NY2d 490; People v Malizia, 62 NY2d 755, 469 US 932; People v Contes, 60 NY2d 620; People v Bracey, 41 NY2d 296; People v Barnes, 50 NY2d 375; People v Murray, 158 AD2d 400; People v Vasquez, 209 AD2d 203; People v Cross, 197 AD2d 488; People v Woods, 126 AD2d 766.) II. The indictment validly charged appellant with the crime of attempted murder in the second degree. (People v Martinez, 81 NY2d 810; People v Campbell, 72 NY2d 602; People v Iannone, 45 NY2d 589; People v Pepper, 59 NY2d 353; People v Soto, 44 NY2d 683; People v Callahan, 80 NY2d 273; People v Velasquez, 76 NY2d 905; People v Dekle, 56 NY2d 835; People v Luperon, 85 NY2d 71; People v Tucker, 55 NY2d 1.)
   OPINION OF THE COURT

Titone, J.

On this appeal we are asked by defendant to consider whether application of the doctrine of transferred intent renders attempted murder in the second degree a nonexistent crime under the circumstances presented. Concluding that the facts in this case do not implicate the transferred intent doctrine, we hold that defendant’s conviction for attempted murder was properly affirmed.

On August 2, 1990, at approximately 2:00 a.m., Yanira Correa was walking with a group of teenaged friends in the vicinity of 164th Street and River Avenue in the Bronx after leaving a park. Correa was approached by defendant, who was an acquaintance. Defendant asked Correa to return to the park to speak to his brother, but she declined. Defendant then began firing a handgun in the air. A boy in Correa’s group stated to defendant: "Why don’t you shoot at us?” Defendant continued firing additional shots in the direction of the group of teens before running back to the park.

Approximately 15 minutes later, the group reached the vicinity of Grand Concourse and 164th Street. Defendant pulled up in a cab and exited the vehicle with a gun in his hand. Defendant fired three shots directly at the group, striking Correa in the chest, and then fled. Correa was seriously injured. Shortly thereafter, defendant was observed nearby removing a dark, blunt object from his pants and placing it in a garbage can. After responding to the scene, the police retrieved a nine millimeter automatic weapon from the garbage can, and defendant was arrested in the park. Defendant was charged with attempted murder in the second degree and reckless endangerment in the first degree, as well as with varying degrees of assault and criminal possession of a weapon. A jury trial ensued.

The prosecution was unable to identify during trial which member of Correa’s group was defendant’s precise target. Apparently believing that the jury would have to rely on the doctrine of transferred intent to convict defendant of attempted murder if Correa — the actual victim — was not the intended victim, the People requested that the court charge the jury on that doctrine. The court declined the request. The court instructed the jury that, to convict defendant of attempted murder in the second degree, the prosecution must prove beyond a reasonable doubt "[t]hat on or about August 2nd, 1990 * * * the defendant attempted to cause the death of [Correa] or another person in the group at 164th Street and the Grand Concourse, by shooting at him or her with a loaded pistol” and "[t]hat the defendant intended that the conduct cause the death of [Correa] or some other person in that group.” Defendant did not object to this charge. The court reiterated, in response to several jury notes, that the intent element of an attempt would be satisfied where defendant’s intent to kill was directed at "[Ms. Correa] or anyone else in the group.” The jury found defendant guilty of attempted murder in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second degree.

The Appellate Division affirmed. The Court rejected defendant’s argument that the crime of attempted murder in the second degree under a "transferred intent” theory is a nonexistent crime. The Court concluded that, unlike manslaughter in the first degree and assault in the second degree, murder in the second degree "does not contain a strict liability element with respect to the proscribed result. Although the victim was unintended under [a transferred intent] theory, the result— death — was not.” (215 AD2d 234, 234-235.) The Appellate Division also concluded that, "the evidence was legally sufficient to establish that defendant attempted to kill one of the persons in the victim’s group.” (Id., at 235.) The Court pointed to testimony establishing that defendant first fired shots in the air after being rebuffed by Correa to reveal his anger, left the scene after being goaded by one of Correa’s friends to shoot at them, intercepted the group at a different location after changing his clothing, shot directly at Correa and her friends, and was observed moments later discarding the gun. Based on this proof, the Court determined that there was sufficient evidence that defendant "deliberately sought out the victim and her friends with the intention of killing one of them.” (Id., at 235.) Defendant’s appeal reaches us by permission of a Judge of this Court, and we now affirm.

Defendant was convicted of an attempt to commit the substantive crime of second degree murder. A person is guilty of that crime when, ”[w]ith intent to cause the death of another person, he causes the death of such person or of a third person” (Penal Law § 125.25 [1] [emphasis supplied]). Under this provision of the Penal Law, where the resulting death is of a third person who was not the defendant’s intended victim, the defendant may nonetheless be held to the same level of criminal liability as if the intended victim were killed. In other words, the identity of the victim is irrelevant if the requisite intent to kill is established and death of a person results. In such cases, the defendant’s intent to kill the intended victim is said to be "transferred” to the actual victim to establish all of the elements of the completed crime of intentional murder (see, 1 LaFave and Scott, Substantive Criminal Law §§ 3.11, 3.12 [1986]).

The doctrine of "transferred intent” serves to ensure that a person will be prosecuted for the crime he or she intended to commit even when, because of bad aim or some other "lucky mistake,” the intended target was not the actual victim (People v Birreuta, 162 Cal App 3d 454, 460, 208 Cal Rptr 635, 639). The doctrine is rooted in the belief that "such a defendant is no less culpable than a murderer whose aim is good” (id.) and thus should be punished to the same extent (LaFave and Scott, Criminal Law § 35, at 252-257 [1972]). One court has noted that "[t]he underlying rationale for the doctrine also suggests that transferred intent should apply only when, without the doctrine, the defendant could not be convicted of the crime at issue because the mental and physical elements do not concur as to either the intended or the actual victim” (Ford v State, 330 Md 682, 711, 625 A2d 984, 998). The doctrine thus sets up a fiction that should not be employed to "multiply criminal liability, but to prevent a defendant who has committed all the elements of a crime (albeit not upon the same victim) from escaping responsibility for that crime” (id., 330 Md, at 714, 625 A2d, at 999).

Relying on the fact that the transferred intent provisions of. Penal Law § 125.25 (1) permit prosecution for causing the death of an unintended victim, defendant contends that a conviction for attempted murder under these provisions is incompatible with our analysis in People v Campbell (72 NY2d 602). We stated in Campbell that "[bjecause the very essence of a criminal attempt is the defendant’s intention to cause the proscribed result, it follows that there can be no attempt to commit a crime which makes the causing of a certain result criminal even though wholly unintended” (id., at 605). Citing the above-quoted language, defendant argues that he could not be convicted of attempted second degree murder based upon a transferred intent theory because if death had resulted it would have been an "unintended” death, and one cannot attempt to commit a crime that penalizes an unintended result. Defendant misapplies Campbell, and, indeed, his entire focus on the "transferred intent” theory is misplaced.

In Campbell (supra), we considered the viability of prosecution for attempt to commit second degree assault under Penal Law § 120.05 (3). That statute permits a defendant to be penalized for a result — injury to a police officer — regardless of whether that result was intended. We held in Campbell that an attempt to commit such an assault is a nonexistent crime because the intent element of attempt under Penal Law § 110.00 could not coexist with the unintended result element of the assault crime.

The same analysis cannot be applied to an attempted murder prosecution under Penal Law § 125.25 (1). A person cannot be punished for the crime of second degree murder under Penal Law § 125.25 (1) unless the result — death—was intended. Thus, unlike the attempted assault at issue in Campbell, there is no inherent contradiction, as a general proposition, in charging a defendant with attempt to commit second degree murder under Penal Law § 125.25 (1).

Of more direct analytical significance for this case is the fact that because an attempt charge always involves an uncompleted crime, the transferred intent doctrine is ordinarily not implicated. The crime of attempted second degree murder is committed when, with the intent to cause the death of another person, one engages in conduct which tends to effect commission of that crime (see, Penal Law §§ 110.00, 125.25 [1]). Where those elements converge, an attempted murder has occurred, regardless of whether the defendant has killed or even injured his or her intended target. In other words, the crime of attempted murder does not require actual physical injury to a victim at all. Since the focus of the doctrine of transferred intent under Penal Law § 125.25 (1) is the identity of the person whose death actually resulted, this doctrine has no relevance in an attempt case, where an actual death is not an element.

Here, the court instructed the jurors that defendant could be found guilty of attempted murder if they found, beyond a reasonable doubt, that defendant intended to cause the death of either "[Correa] or another person in the group” and committed acts tending to effect the commission of that crime. The jurors were not required by the terms of this instruction to rely on the doctrine of transferred intent to convict, nor should they have been, since there was no death of an unintended victim and thus no need to "transfer” defendant’s intent. In other words, given that injury is not an element of the crime of attempted murder, there was no need to link defendant’s intent to kill to the actual victim — Correa—and there is no reason to become sidetracked by the fact that there was an injured victim in this case.

The only remaining question is whether the evidence was sufficient to support the jury’s verdict. Viewing the evidence in the light most favorable to the prosecution, we agree with the Appellate Division that the evidence is legally sufficient to establish that defendant acted with a murderous intent (see, People v Perez, 64 NY2d 868, 869) and engaged in affirmative acts in furtherance of the commission of that crime (see, People v Campbell, 72 NY2d 602, 605, supra).

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

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.


author: ClPARICK, J.

text:
    [673 NE2d 914, 650 NYS2d 629]
    David Weiner, Individually and as Administrator of the Estate of Dale J. Korn, Deceased, Respondent, v Lenox Hill Hospital, Appellant, et al., Defendant.
    Argued October 17, 1996;
    decided November 19, 1996

      POINTS OF COUNSEL

      Aaronson Rappaport Feinstein & Deutsch, LLP, New York City (Steven C. Mandell of counsel), for appellant.
    Statutorily, only a physician or an assistant supervised by the physician is qualified and obligated to properly screen, interrogate, and physically examine potential donors and their specimens. The physician must resort to his or her professional training, skills, experience and judgment in providing these medical services which bear a substantial relationship to the medical treatment ultimately administered. Thus, whether or not the medical provider has departed from accepted standards in failing to adequately screen, interrogate, examine or test blood donors is beyond the common knowledge of the average lay person. For Statute of Limitations purposes, therefore, respondent’s claims sound in medical malpractice. (Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 374 US 808; Manno v Levi, 94 AD2d 556, 62 NY2d 888; Thornton v Roosevelt Hosp., 47 NY2d 780; Matter of Steinhardt v Johns-Manville Corp., 54 NY2d 1008; Goldsmith v Howmedica, Inc., 67 NY2d 120; Jensen v General Elec. Co., 82 NY2d 77; Mondello v New York Blood Ctr., 80 NY2d 219; Scott v Uljanov, 140 AD2d 830, 74 NY2d 673; Zellar v Tompkins Community Hosp., 124 AD2d 287; Topel v Long Is. Jewish Med. Ctr., 55 NY2d 682.)

      Melito & Adolf sen P. C, New York City (Ignatius John Melito and Jodi A. Catalano of counsel), and Barton & Zasky, for respondent.
    The courts below properly held that the discovery rule of CPLR 214-c applies in negligence actions involving transfusion-associated AIDS, regardless of whether the negligence is committed by blood banks or hospitals. (Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Prego v City of New York, 147 AD2d 165; Tischler v Dimenna, 160 Misc 2d 525; Matter of Plaza v Estate of Wisser, 211 AD2d 111; Coch

      rane v Owens-Corning Fiberglas Corp., 219 AD2d 557; Bleiler v Bodnar, 65 NY2d 65; Sweeney v Presbyterian/ Columbia Presbyt. Med. Ctr., 763 F Supp 50; Smith v Pasquarella, 201 AD2d 782; Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254; Miller v Albany Med. Ctr. Hosp., 95 AD2d 977.)
   OPINION OF THE COURT

ClPARICK, J.

The issue on appeal is whether plaintiffs complaint against a hospital, alleging that the hospital failed to properly safeguard its blood supply from HIV contamination, sounds in medical malpractice or negligence for purposes of selecting the applicable Statute of Limitations. Because the challenged conduct was not linked to the medical treatment of a particular patient, we conclude that the claim sounds in negligence and that plaintiffs complaint is therefore timely.

As alleged in plaintiffs complaint and amplified in a bill of particulars, Dale J. Korn was a patient at Lenox Hill Hospital (Hospital) from October 1984 through January 1985 for treatment of a small bowel obstruction. During the course of treatment, the Hospital administered numerous blood transfusions to Korn. The Hospital obtained eight units of blood used in the transfusions from its own blood bank and seven units from New York Blood Center. At least one of the blood units administered to Korn was contaminated with the HIV virus. In May 1990, Korn was diagnosed with AIDS, and she died of AIDS-related illnesses on June 20, 1990.

In March 1991, plaintiff, as administrator of Korn’s estate, commenced this negligence action against the Hospital and New York Blood Center. Plaintiff alleged that the Hospital was negligent in failing to adequately screen and test the blood used in the transfusions. In its answer to plaintiffs complaint, the Hospital pleaded as an affirmative defense that plaintiffs claim was time barred under CPLR 214-a, the 2/2-year medical malpractice Statute of Limitations. Plaintiff thereafter moved to strike the Statute of Limitations defense, and the Hospital cross-moved to dismiss the complaint as untimely.

Supreme Court granted plaintiff’s motion to strike the Statute of Limitations defense and denied the Hospital’s motion to dismiss the complaint, holding that plaintiffs complaint is timely. The court reasoned that plaintiff’s claim sounds in negligence, not medical malpractice, and is governed by the 3-year limitations period of CPLR 214, which accrued upon Korn’s discovery of her HIV-positive status (see, CPLR 214-c). The Appellate Division affirmed for the reasons stated by Supreme Court, and certified the following question to this Court: "Was the order of the Supreme Court, New York County, as affirmed by this Court, properly made?” For the reasons that follow, we answer the certified question in the affirmative.

To determine which Statute of Limitations governs plaintiffs claim against the Hospital, we must decide whether the claim sounds in medical malpractice or negligence. The Hospital contends that plaintiffs claim sounds in medical malpractice, governed by the 21/2-year limitations period of CPLR 214-a, and that the claim accrued under the common-law accrual rule at the time of injury (see, Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212, 216-218, cert denied 374 US 808; see also, CPLR 214-c [5]). Therefore, according to the Hospital, plaintiffs claim accrued no later than the last blood transfusion administered in January 1985 and expired no later than July 1987, rendering the March 1991 complaint untimely. In response, plaintiff counters that the complaint sounds in negligence, governed by the 3-year limitations period of CPLR 214. Moreover, plaintiff contends that because the injury was "caused by the latent effects of exposure to any substance,” namely HIV, the claim accrued upon discovery of the injury (see, CPLR 214-c [2]). According to plaintiff, therefore, the complaint — filed within one year of Korn’s discovery of her HIV-positive status — is timely.

In analyzing the issue on appeal, we initially note that the distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence and "no rigid analytical line separates the two” (Scott v Uljanov, 74 NY2d 673, 674). Nevertheless, this Court has recognized that although a "hospital in a general sense is always furnishing medical care to patients * * * not every act of negligence toward a patient would be medical malpractice” (Bleiler v Bodnar, 65 NY2d 65, 73). Thus, a claim sounds in medical malpractice when the challenged conduct "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (id., at 72). By contrast, when "the gravamen of the complaint is not negligence in furnishing medical treatment to a patient, but the hospital’s failure in fulfilling a different duty,” the claim sounds in negligence (id., at 73; see, Scott v Uljanov, supra, 74 NY2d, at 675).

Based on these principles, we agree with the courts below that the complaint in this case sounds in negligence, not medical malpractice. Plaintiff’s complaint essentially challenges the Hospital’s "failure to adopt and prescribe proper procedures and regulations” for the collection of blood, a type of claim that we have recognized as sounding in negligence (see, Bleiler v Bodnar, supra, 65 NY2d, at 73). The core issue in this case— the adequacy of the Hospital’s blood testing and screening procedures — does not implicate questions of medical competence or judgment linked to the treatment of Korn, but turns instead on the Hospital’s independent duties as a blood-collection center. Unlike the inquiry in a medical malpractice case, whether the Hospital breached its duty to exercise due care in its blood-collection activities does not in any measure depend on an analysis of the medical treatment furnished to Korn.

Moreover, although the Hospital correctly points out that a physician must supervise the process of blood collection (see, e.g., 10 NYCRR 58-2.1 [s]; 58-2.2 [a]), this requirement does not resolve the question of whether the challenged conduct "bears a substantial relationship to the rendition of medical treatment” to a particular patient, which remains the determinative question on appeal (Bleiler v Bodnar, supra, 65 NY2d, at 72). Notably, the regulatory requirement of physician oversight applies equally to independent blood banks, yet, as the Hospital recognizes, a claim against a blood bank for failure to properly screen and test its blood supply would sound in negligence, not medical malpractice.

Similarly, we reject the Hospital’s argument that plaintiffs claim necessarily sounds in medical malpractice because expert testimony of a medical nature will be required to assist the jury in understanding the particulars of the blood-collectión process (see, Payette v Rockefeller Univ., 220 AD2d 69, 73-74 [analyzing shortcomings of this expert-testimony approach]; see also, McLaughlin, 1990 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-a:1, 1996 Cum Ann Pocket Part, at 124 [same]). In this case, the need for expert testimony signifies only that the technical and scientific nature of the blood-collection process is beyond the ken of the average juror, not that the claim sounds in medical malpractice (see, De Long v County of Erie, 60 NY2d 296, 307).

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine concur.

Order affirmed, etc.

      . The discovery accrual rule of CPLR 214-c, upon which plaintiff relies, provides in pertinent part: "Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury * * * caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body * * * must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214-c [2]). On this appeal, the Hospital does not challenge the conclusion of the courts below that HIV is a "substance” within the meaning of CPLR 214-c (see, Di Marco v Hudson Val. Blood Servs., 147 AD2d 156; Prego v City of New York, 147 AD2d 165; accord, Jensen v General Elec. Co., 82 NY2d 77, 83).

      . Thus, the Hospital’s reliance on Mondello v New York Blood Ctr. (80 NY2d 219), also a case involving the transfusion of HIV-contaminated blood, is misplaced. In Mondello, this Court held that a hospital and an independent blood bank were not united in interest for Statute of Limitations purposes because of the distinct role of each in the collection, distribution, and delivery of blood (id., at 227-228). In this case, however, plaintiff challenges the Hospital in its role as a blood bank.


author: Smith, J.

text:
    [673 NE2d 1228, 651 NYS2d 1]
    In the Matter of Yolanda D. Orange County Department of Social Services, Respondent; Alexander W., Appellant.
    Argued September 5, 1996;
    decided October 22, 1996

      POINTS OF COUNSEL

      Maria Joy Frank, Yorktown Heights, for appellant.
    I. The Family Court did not have jurisdiction over appellant because he was neither the parent nor another person legally responsible for the subject child’s care. (Matter of Jessica C. [Gina C.], 132 Misc 2d 596; Matter of Roman, 94 Misc 2d 796; Matter of Department of Social Servs. [R. Children] v Waleska M., 195 AD2d 507; Matter of Amanda LL. [David NN.], 195 AD2d 708; Matter of Department of Social Servs. [Maria I.] v Manual S., 148 Misc 2d 988; Matter of Robert J., 178 AD2d 1004; Matter of Kyle H., 198 AD2d 913; Matter of Faith AA. [Michelle AA.], 139 AD2d 22; Matter of Joey T. [Maria T. — Joseph B.], 185 AD2d 851; Matter of Commissioner of Social Servs. [Shevonne

      S.] v Jannie S., 188 AD2d 528.) II. The Family Court erred in failing to dismiss the petition at the close of petitioner’s case.

      Richard B. Golden, County Attorney of Orange County, Goshen (Stephen Toole of counsel), for respondent.
    I. The Family Court Judge did not abuse her discretion by retaining jurisdiction over Alexander W., the maternal uncle, who sexually abused Yolanda D. when she visited him in his home unaccompanied by her mother. (Matter of Jessica C. [Gina C.], 132 Misc 2d 596; Matter of Faith GG. [Terry HH.], 179 AD2d 901; Matter of Claudia V. [Mireya V.], 157 Misc 2d 462; Matter of Roman, 94 Misc 2d 796; Matter of Department of Social Servs. [R. Children] v Waleska M., 195 AD2d 507; Matter of Theresa C. [Joseph C.], 121 Misc 2d 15; Matter of Faith AA. [Michelle AA.], 139 AD2d 22; Matter of Anthony YY. [Margaret ZZ.], 202 AD2d 740; Matter of Case, 120 Misc 2d 100; Johnson v Jamaica Hosp., 62 NY2d 523.) II. Family Court did not commit reversible error by denying appellant’s motion to dismiss at the close of petitioner’s case.

      Stuart I. Greenberg, Monroe, Law Guardian for Yolanda D. Appellant Alexander W. was a proper respondent to this action.

      (Matter of Jessica C. [Gina C.], 132 Misc 2d 596; Matter of Kyle H., 198 AD2d 913; Matter of Robert J., 178 AD2d 1004.)
   OPINION OF THE COURT

Smith, J.

The issue presented on this appeal is whether Family Court properly exercised jurisdiction over the appellant, the uncle of the abused child, as a person legally responsible for his niece’s care (see, Family Ct Act § 1012 [a], [g]). Concluding that appellant was a proper respondent in the child protective proceeding pursuant to section 1012 (a) of the Family Court Act, we affirm the order of the Appellate Division.

The respondent on this appeal, the Orange County Department of Social Services (DSS), brought this Family Court Act article 10 proceeding alleging that appellant sexually abused his niece, Yolanda D., during the summer of 1991. The petition alleged that the abuse occurred on numerous occasions at appellant’s Pennsylvania home. After a hearing, Family Court found that appellant had sexually abused his 12-year-old niece during the summer of 1991, and that he had been a person legally responsible for her care during that time. Family Court also found that Yolanda had been sexually abused by the appellant when she was 10 and 11 years old. Yolanda was adjudged an abused child and a dispositional order was entered placing appellant under the supervision of DSS and requiring him to attend a sex offender therapy program. Family Court also directed the entry of an order of protection requiring appellant to stay 1,000 feet away from Yolanda and the other children named in the petition.

Appellant appealed the fact-finding and dispositional orders arguing, in part, that he had not been a proper respondent in the Family Court proceeding because he was not a person legally responsible for Yolanda’s care. The Appellate Division rejected appellant’s jurisdictional challenge, determined that appellant’s role was the "functional equivalent of a parent” and affirmed Family Court’s finding that appellant was a proper respondent under section 1012 (a) of the Family Court Act (218 AD2d 648, 651). We granted appellant’s motion for leave to appeal to this Court.

The sole issue raised by the appellant on this appeal is whether he met the statutory definition of a "person legally responsible” for Yolanda’s care during the summer of 1991. A child protective proceeding is brought against a "respondent,” a term defined by article 10 as "any parent or other person legally responsible for a child’s care who is alleged to have abused or neglected such child” (Family Ct Act § 1012 [a]). Section 1012 (g) further defines "person legally responsible” as

"the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.”

Appellant argues that he did not fit within any of the statutory categories of legally responsible persons at the time the abuse occurred. Initially, appellant contends that he was not a custodian or guardian because he did not have legal custody or guardianship of Yolanda during the summer of 1991. Appellant further claims that he could not be considered Yolanda’s custodian because he was not a regular or continuous member of his niece’s household or the functional equivalent of a parent. As to the catch-all provision in the statute, "any other person responsible for the child’s care at the relevant time,” appellant would limit this category to individuals acting in loco parentis or assuming a parental role toward the child, who are also regular or continuous members of the child’s household. DSS, the respondent on this appeal, contends that the record supports the Appellate Division’s affirmance of the finding that appellant was a person legally responsible for Yolanda’s care.

We note that the term "custodian” has not been limited or modified by any qualifiers such as "nontemporary” or "legal.” Indeed, the legislative history and other commentary indicate that a broader definition than that proposed by appellant was intended (see, Letter from sponsor of an amendment to section 1012 [g] to the Governor, Bill Jacket, L 1972, ch 1015 [stating the intent to include paramours, persons without legal custody of the child, within the jurisdiction of Family Court]; Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 268).

Moreover, to the extent that the statute provides that custodians may include persons found in the "same household” as the child, section 1012 (g) does not preclude a finding that the child’s regular or continuous presence in another person’s household may make that person a custodian (see, Matter of Robert J., 178 AD2d 1004 [grandfather who provided caretaking activities at his home rather than at child’s household found to be a custodian under section 1012 (g)]). Consequently, limiting the scope of "custodian” to embrace only those persons who may be regularly or continuously found in the child’s household is unwarranted given the absence of an express directive to construe the statute restrictively (see, Matter of Maureen G., 103 Misc 2d 109, 114 ["Subdivision (g) amplifies the class of respondents liable under article 10; it is not meant as a limitation”]).

Appellant’s narrow interpretation of "other person responsible for the child’s care” is similarly unsupported by the terms of the statute. By seeking to limit the application of this provision to those persons who may be found in the child’s household on a regular or continuous basis, appellant renders it coextensive with "custodian,” making it superfluous. Since courts must, where possible, give effect to every word of a statute, and "other person responsible” exists side by side with "custodian” in section 1012 (g), a person may be a proper respondent in a child protective proceeding even if that person is not a custodian of the child.

As we must interpret statutes in a manner consistent with and in furtherance of the legislative intent behind the enactment (Catlin v Sobol, 77 NY2d 552, 558), we turn first to the purpose section of article 10 to discern the meaning of "other person responsible for the child’s care.” The stated purpose of article 10 is to

"help protect children from injury or mistreatment and to help safeguard their physical, mental, and emotional well-being. It is designed to provide a due process of law for determining when the state, through its family court, may intervene against the wishes of a parent on behalf of a child so that his needs are properly met” (Family Ct Act § 1011).

Since section 1011 of the Family Court Act casts intervention by a Family Court as an event likely to occur against the wishes of a parent, article 10 proceedings are geared toward protecting the child from injury or mistreatment which may result from abusive or deficient parenting. Subdivisions (a) and (g) of section 1012 embody legislative recognition of the reality that parenting functions are not always performed by a parent but may be discharged by other persons, including custodians, guardians and paramours, who perform caretaking duties commonly associated with parents. Thus, the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents.

Various courts have focused on whether an alleged respondent stands in loco parentis or acts as the functional equivalent of a parent in a household or "family” setting when determining whether that person is legally responsible for the child’s care (see, e.g., Matter of Anthony YY. [Margaret ZZ.], 202 AD2d 740, 741; Matter of Jessica QQ. [Dawn RR.], 200 AD2d 887; Matter of Faith GG. [Terry HH.], 179 AD2d 901, appeal denied 80 NY2d 752; Matter of Commissioner of Social Servs. [R./ S. Children], 168 Misc 2d 11; Matter of Jessica C., 132 Misc 2d 596, 600). Although the analysis required by both approaches appears similar, whether a person stands in loco parentis to a child is a separate inquiry from whether such a person acts as the functional equivalent of a parent.

A person acting in loco parentis intends to assume the responsibility to support and care for the child on a permanent basis (Johnson v Jamaica Hosp., 62 NY2d 523, 529). In contrast, a person may act as the functional equivalent of a parent even though that person assumes temporary care or custody of a child (for example, a paramour may be subject to child protective proceedings as a respondent even if the paramour has no intention of caring for the child on a permanent basis). We therefore reject the argument that article 10 should be applied only to those persons who intend to support and care for a child on a permanent basis. However, the care given the child must be analogous to parenting and occur in a household or "family” setting.

Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court in determining whether a respondent fits within the catch-all category of section 1012 (g). The factors listed here are not meant to be exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination. The weight to be accorded each factor will, of course, be dependent on the circumstances of the particular case but the purpose of the inquiry will remain constant.

A person is a proper respondent in an article 10 proceeding as an "other person legally responsible for the child’s care” if that person acts as the functional equivalent of a parent in a familial or household setting. Finally, article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide extended daily care of children in institutional settings, such as teachers. We are satisfied that the record here supports the finding that appellant was a person legally responsible for Yolanda’s care during the summer of 1991. Appellant, the brother of Yolanda’s mother, characterized his relationship with his niece during the summer of 1991 as "pretty close, you know, as family.” Appellant testified that his niece visited him at his apartment in Pennsylvania six or seven times (approximately every other week) throughout the summer of 1991, and slept overnight at his home on three or four occasions. Appellant’s girlfriend, who lived with the appellant during the relevant time period, testified that the niece visited two weekends a month during the summer of 1991. These visits occurred with the consent of the mother who did not accompany Yolanda when she went to see her uncle in Pennsylvania or when she stayed overnight at appellant’s apartment. Appellant also regularly visited Yolanda’s home in order to attend birthday parties and to visit his mother.

The record supports the finding that appellant was a person legally responsible for Yolanda either as her custodian or as an "other person responsible” for her care. Yolanda, already familiar with her uncle as a regular visitor in her own home, was a regular visitor at appellant’s Pennsylvania apartment during the summer of 1991 while appellant resided there. Thus, appellant was regularly in the same household as Yolanda during the relevant time, an environment he controlled, and he regarded his relationship with Yolanda as close and familial. Moreover, by permitting Yolanda to stay overnight in his home, appellant provided shelter, a traditional parental function, in an area geographically distant from the child’s own household. The confluence of all of these facts indicates that the Appellate Division had an adequate record basis for affirming the finding that appellant was a person responsible for Yolanda’s care during the summer of 1991.

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

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Cipabick concur.

Order affirmed, without costs.

      . In addition to Yolanda D., the petition named four other children who appellant allegedly neglected. This appeal concerns only that portion of the petition pertaining to Yolanda D.

      . The Appellate Division later dismissed appellant’s appeal from the August 21, 1992 fact-finding order as superseded by the dispositional order entered September 28, 1992.

      . The remaining issues with respect to the custodian category are whether the record supports the finding that appellant was a regular or continuous visitor in Yolanda’s household and whether appellant acted as the functional equivalent of a parent. We conclude that the record supports the determination that appellant was Yolanda’s custodian.


text:
    [666 NE2d 1364, 644 NYS2d 491]
    The People of the State of New York, Respondent, v Jeff Thomas, Appellant.
    Argued March 21, 1996;
    decided April 25, 1996

      APPEARANCES OF COUNSEL

      Ronna Gordon-Galchus, Bayside, for appellant.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Cheryl Hone and Steven J. Chananie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

We affirm for the reasons stated by Presiding Justice Mangano at the Appellate Division (213 AD2d 73). We add that our decision in People v Smith (87 NY2d 715) is not to the contrary. Smith stands for a different and more limited proposition involving waiver of inquiry with respect to pending criminal charges on an unrelated matter.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [666 NE2d 552, 643 NYS2d 959]
    In the Matter of United Environmental Techniques, Inc., Respondent, v State of New York Department of Health, Appellant.
    Argued March 19, 1996;
    decided April 25, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, New York City (Barbara K. Hathaway and Victoria Graffeo of counsel), for appellant.

      Andrew M. Friedman, Richmond Hill, and Marvin Friedman for respondent.
   OPINION OF THE COURT

Memorandum.

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

United Environmental Techniques, Inc. sued to compel the State Department of Health to grant it a hearing with respect to the Department’s revocation of the provisional approval for United to operate an asbestos training facility (10 NYCRR 73.8 [a]). Supreme Court granted the petition and the Appellate Division affirmed. This Court granted leave to appeal, and we now reverse. Because United Environmental Techniques, Inc. is a foreign corporation which has failed to file an amended certificate to do business in New York, as required by Business Corporation Law § 1309, it lacked capacity to sue in New York (Business Corporation Law § 1312 [a]) and the courts below should not have ruled on the merits of this matter.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [666 NE2d 553, 643 NYS2d 960]
    The People of the State of New York, Respondent, v Victor Roldan, Appellant.
    Argued March 21, 1996;
    decided April 25, 1996
    APPEARANCES OF COUNSEL

      Lisa Griffin, White Plains, Andrew C. Fine, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Lisa Ellen Mudd, Billie Manning and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of two counts of robbery in the first degree following a jury trial. Eyewitness testimony showed that defendant and an accomplice were engaged in conversation prior to the robbery, and that during the course of the crime, defendant stood by "looking out” over the surrounding area while the accomplice robbed the two victims at knife-point. Police officers added proof that defendant and the accomplice fled the scene together and were apprehended a few blocks away.

The Appellate Division affirmed defendant’s conviction, rejecting his argument that the People’s case rested solely on circumstantial evidence and that the trial court erred in denying the defense request for a circumstantial evidence instruction. A dissenting Justice at the Appellate Division granted leave to appeal, and we now affirm that Court’s ruling upholding the conviction.

A defendant’s request for a circumstantial evidence instruction must be allowed when proof of guilt rests exclusively on circumstantial evidence (see, People v Barnes, 50 NY2d 375, 380). This case involves direct evidence and, thus, does not qualify for the circumstantial evidence instruction. Eyewitness testimony, if believed by the jury, established that defendant engaged in acts which directly proved that at the very least he acted as a lookout while the crime was being committed (see, People v Daddona, 81 NY2d 990, 992). Coupled with conduct before and after the actual commission of the crime, defendant’s accessorial guilt cannot be viewed as premised solely on circumstantial evidence. Thus, the instructional request was properly denied, and the Appellate Division order affirming the conviction should be sustained.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [666 NE2d 554, 643 NYS2d 961]
    In the Matter of the Arbitration between William L. Steck, Jr., Appellant, and State Farm Insurance Company, Respondent.
    Argued March 19, 1996;
    decided April 25, 1996

      APPEARANCES OF COUNSEL

      Lewis & Lewis, P. C., Buffalo (Richard P. Amico of counsel), for appellant.

      Michael T. Hagelin, Buffalo, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to stay arbitration denied.

On August 18, 1992, appellant, while driving a vehicle, was seriously injured in an automobile accident. He recovered $300,000 to settle the claim, the maximum coverage of the tortfeasor driver’s insurance policy. Appellant possessed automobile coverage with respondent State Farm Insurance Company, with liability coverage limits of $100,000/$300,000 and underinsurance coverage of $100,000. Respondent denied appellant’s claim for underinsurance coverage, stating that appellant had recovered fully from the other motorist’s policy and that since that policy exceeded appellant’s policy, appellant was not entitled to underinsurance coverage.

On October 15, 1993, appellant served a demand to arbitrate the underinsurance claim. Respondent served a motion to stay arbitration, dated February 15, 1994, more than four months after service of the demand, and sought a permanent stay of arbitration, maintaining that appellant was not entitled to underinsurance coverage. Supreme Court stayed the arbitration, concluding that appellant was not entitled to underinsurance coverage. The Appellate Division affirmed, with one Justice dissenting, finding that where an insured’s policy limits do not exceed the policy limits of the other vehicle, there is no underinsurance coverage.

CPLR 7503 (c) requires a party, once served with a demand for arbitration, to move to stay such arbitration within 20 days of service of such demand, else he or she is precluded from objecting. In Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264), this Court addressed the issue of whether a motion to stay arbitration may ever properly be entertained outside the 20-day period. In Matarasso, the insured served a demand for arbitration upon the respondent Continental Casualty Company (Continental). Continental responded after 60 days and moved for a stay of arbitration on the ground that the parties never agreed to arbitrate. Matarasso claimed that Continental’s failure to respond within the 20-day period of CPLR 7503 (c) precluded the granting of a stay. In our holding, we articulated an exception to the 20-day period of CPLR 7503 (c) concluding:

"a motion [to stay arbitration] may be entertained when, as here, its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with” (id., at 266).

Here, the parties do not dispute that appellant’s policy contained an agreement to arbitrate. As such, the clear application of the statute and the case law require a reversal in this instance.

Respondent’s argument that because the other vehicle’s insurance exceeds appellant’s insurance, there is no coverage under the underinsurance provisions, relates to whether certain conditions of the contract have been complied with and not whether the parties have agreed to arbitrate. As such, respondent’s contention is outside the exception articulated by this Court in Matarasso and is barred by the CPLR 7503 (c) 20-day period to object to arbitration. The issue of coverage is, therefore, now within the province of the arbiter.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    Insurance Company of North America, as Subrogee of Port Washington Union Free School District, Respondent, v Aetna Casualty & Surety Company, Appellant.
    Submitted February 15, 1996;
    decided April 25, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed that portion of the Supreme Court’s determination denying appellant’s motion to compel the addition of a party, dismissed upon the ground that that part of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Local 381 Pension Fund, Appellant, v Chemical Bank et al., Respondents.
    Submitted February 5, 1996;
    decided April 25, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed so much of Supreme Court’s order as denied appellant’s cross motion for leave to serve an amended complaint and for discovery relief, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Ontario Trucking Association et al., Appellants, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted April 1, 1996;
    decided April 25, 1996
   Judge Simons taking no part.


text:
    [666 NE2d 1351, 644 NYS2d 478]
    The People of the State of New York, Respondent, v Jason Allen, Appellant.
    Argued March 27, 1996;
    decided April 30, 1996

      APPEARANCES OF COUNSEL

      Cahn Wishod & Lamb, L. L. P., Melville (Scott M. Karson of counsel), for appellant.

      James M. Catterson, Jr., District Attorney of Suffolk County, Riverhead (Michael J. Miller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was tried and convicted of grand larceny, among other things, in connection with his forging of a mortgage satisfaction which he then used to obtain a $1.7 million bank loan. "When the People announced their intention to call Matthew Dollinger — outside counsel for the bank’s title insurer — to testify at defendant’s trial, defense counsel informed the court and prosecutor that he and Dollinger represented each other in matters unrelated to defendant’s prosecution. The Assistant District Attorney handling the case agreed not to elicit any testimony from Dollinger about his relationship to defense counsel and Dollinger proceeded to take the stand.

In arguing that the trial court’s failure to conduct any further inquiry in accordance with People v Gomberg (38 NY2d 307) constituted reversible error, defendant overlooks the well-established principle that the mere existence of a conflict or potential conflict between defense counsel and a prosecution witness, standing alone, does not automatically result in the reversal of a conviction (People v Lombardo, 61 NY2d 97). Rather, in order to establish that reversible error occurred, defendant must show that " 'the conduct of his defense was in fact affected by the operation of the conflict of interest’ ” (People v Ortiz, 76 NY2d 652, 657; see also, People v Recupero, 73 NY2d 877, 879). No such showing was made in this case (compare, People v Krausz, 84 NY2d 953).

Defendant’s contention that a telephone conversation he had with his former attorney during which he acknowledged that he had fraudulently used the former attorney’s notary stamp without the attorney’s knowledge was inadmissible on grounds of attorney-client privilege is similarly devoid of merit. We agree with the Appellate Division that defendant failed to satisfy his burden of proving that he had contacted his former attorney for the purpose of obtaining legal advice (see, Matter of Priest v Hennessy, 51 NY2d 62, 69).

Finally, defendant’s argument that the trial court’s warning about the possibility of a perjury prosecution resulting from his testimony prevented defendant from exercising his right to testify is unpreserved for our review (see, Webb v Texas, 409 US 95, 96).

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    [666 NE2d 1352, 644 NYS2d 479]
    In the Matter of Robert J. Cook, Respondent, v City of Utica et al., Appellants.
    Argued March 28, 1996;
    decided April 30, 1996

      APPEARANCES OF COUNSEL

      Roemer, Wallens & Mineaux, L. L. P., Albany (James W. Roemer of counsel), and Joseph H. Hobika, Corporation Counsel of City of Utica, Utica (Charles N. Brown of counsel), for appellants.

      Ainsworth, Sullivan, Tracy, Knauf, Warner & Ruslander, P. C.., Albany (Mary Beth Hynes of counsel), for respondent.

      Donna M. C. Gilberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

      Lombardi, Reinhard, Walsh & Harrison, P. C., Albany (Paul E. Davenport of counsel), for New York State Professional Firefighters Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

Section 363-c of the Retirement and Social Security Law provides for payment of benefits to firefighters who become incapacitated as a result of the performance of their duties. Eligibility for such benefits is determined by the Comptroller (id., § 363-c [d]; § 374 [b]). Firefighters employed by certain municipalities may also be covered by General Municipal Law § 207-a, which requires the employing governmental entity to pay full salary and medical expenses to firefighters who are injured in the performance of their duties. Under the statute, such firefighters who are also granted Retirement System benefits for performance-of-duty or accidental disability (see, Retirement and Social Security Law § 363) are entitled to receive from the employing municipality "the difference between the amounts received [from the Retirement System] and the amount[s] of [their] regular salary or wage” until such time as they reach the point of mandatory retirement (General Municipal Law § 207-a [2]).

Claiming to have suffered disabling psychological harm as a result of his firefighting activities, petitioner applied to the State Retirement System for performance-of-duty disability benefits pursuant to Retirement and Social Security Law § 363-c. The Comptroller determined that petitioner was permanently incapacitated for performance of duty as a result of his service and approved the payment of benefits. Subsequently, respondents held a hearing on petitioner’s preexisting application for disability benefits under General Municipal Law § 207-a. Respondents ultimately denied petitioner supplementary benefits under section 207-a after finding, contrary to the Comptroller’s determination, that petitioner’s disability was not causally related to his employment. Petitioner then commenced the present proceeding to challenge respondents’ determination.

Contrary to the conclusion of the court below, we hold that the Comptroller’s determination on the causal-relationship issue in connection with petitioner’s section 363-c application was not binding on respondents in their separate proceeding to determine petitioner’s eligibility for benefits under General Municipal Law § 207-a. As we noted in Sutka v Connors (73 NY2d 395, 404), Retirement and Social Security Law § 363-c and General Municipal Law § 207-a "represent separate disability systems with differing coverage and consequences.” Further, although the amount of a firefighter’s section 207-a (2) benefits may depend in part on the benefits available to that firefighter under Retirement and Social Security Law § 363-c, there is no specific statutory language or history suggesting that the eligibility determinations for these distinct classes of benefits were not intended to be separately made. We note that municipalities are not parties to proceedings before the Comptroller under Retirement and Social Security Law § 363-c and, accordingly, common-law principles of collateral estoppel cannot be invoked to support the conclusion petitioner seeks.

Inasmuch as respondents were entitled to make their own determination about the extent and cause of petitioner’s illness, their decision denying him section 207-a (2) benefits should be reinstated. Petitioner’s alternative argument that respondents’ determination was not supported by substantial evidence is lacking in merit.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur in memorandum.

Order reversed, etc.


text:
    [666 NE2d 1354, 644 NYS2d 481]
    In the Matter of Firemen’s Fund Insurance Company of Newark, Appellant, v John Hopkins, Jr., Respondent.
    Argued March 19, 1996;
    decided April 30, 1996
    APPEARANCES OF COUNSEL

      Alio & Ronan, Melville (Carol Simonetti of counsel), for appellant.

      Wallace & Witty, P. C., Bay Shore (Jason F. Zimmerman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Respondent John Hopkins, Jr., sustained serious injuries in a July 23, 1989 accident involving a friend’s car in which he was a passenger. The accident allegedly occurred when an unknown individual took control of the vehicle by force and caused it to collide with other automobiles. On June 4, 1992, almost three years after the accident, respondent notified petitioner Firemen’s Fund Insurance Company that he intended to bring an uninsured motorist’s claim under his father’s policy on the ground that the vehicle in question had been stolen at the time of the accident and was thus uninsured. Petitioner sent letters on two occasions requesting respondent to provide details concerning the accident and account for the three-year delay in making the claim. On October 5, 1992, respondent provided petitioner with the requested information concerning the accident, but offered no explanation for the delay. Petitioner did not respond, and respondent served petitioner with a notice of intention to arbitrate his claim.

Petitioner commenced this CPLR article 75 proceeding on February 8, 1993 seeking to permanently stay arbitration on the sole ground that respondent failed to give written notice of his claim "within 90 days or as soon as practicable,” as required by the New York State Automobile Accident Indemnification Endorsement. Supreme Court granted petitioner’s application to permanently stay arbitration. The Appellate Division, with two Justices dissenting, reversed on the law, dismissed the petition, and directed the parties to proceed to arbitration.

An insurer must give written notice of disclaimer on the ground of late notice "as soon as is reasonably possible after it first learns of the accident or of grounds for disclaimer of liability,” and failure to do so "precludes effective disclaimer” (Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029; see, Allstate Ins. Co. v Gross, 27 NY2d 263). An unexplained delay of two months in disclaiming liability for late notice has been held unreasonable as a matter of law (see, Hartford Ins. Co. v County of Nassau, supra).

Petitioner here should have been aware that the claim was untimely upon respondent’s first notification in June 1992. Petitioner never sent any notice of disclaimer and the only communication of its intent to disclaim was contained in the February 1993 petition to stay arbitration, nearly eight months after petitioner first received notice of the accident, and four months after it received the complete record. Thus, as a matter of law, petitioner failed to furnish timely notice of disclaimer. Petitioner’s attorney’s averment that respondent’s claim was denied on November 11, 1992 lacks any evidentiary support in the record. Petitioner’s remaining arguments are unpreserved.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed, with costs, in a memorandum.


text:
    [666 NE2d 1355, 644 NYS2d 482]
    The People of the State of New York, Respondent, v Johnny McCall, Appellant.
    Argued March 27, 1996;
    decided April 30, 1996

      APPEARANCES OF COUNSEL

      Arthur H. Hopkirk, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Axelrod and Morrie Kleinbart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of two counts of criminal sale of a controlled substance in the third degree. Before trial, the court issued a ruling precluding the People from introducing evidence of any "transactions” other than the two charged drug sales. At trial, a police officer testified that four individuals approached defendant after the charged sales occurred and that he observed "some hand movement” but "couldn’t really see what was going on other than they were right around him.” Defendant made a motion for a mistrial, which the court denied. However, the court stated that its in limine ruling, which it acknowledged was ambiguous, had been intended to exclude testimony of hand motions. The court then asked defendant if he wanted the jury to be given a limiting instruction on uncharged crimes, which defendant declined based on his concern that the instruction would highlight the officer’s testimony.

In summation, defense counsel confronted the officer’s testimony relating to the four individuals who approached defendant by asking, "Isn’t it entirely possible what [the officer] saw is people putting change in [defendant’s] cup, somebody giving him a box of cookies so he had something to eat all of which is non-criminal behavior?” During the People’s summation, the prosecutor retorted, "|T]f you want to speculate about whether people were giving [defendant] change, you could also speculate that he was giving those people vials of crack, cocaine * * * gut I suggest to you there is no need for you to speculate about either because it is not about the four people surrounding him. It’s about two counts of sale that the People have proven beyond a reasonable doubt”.

Thereafter, during the court’s instructions to the jury, the Trial Judge stated: “I also wish to point out to you that during the testimony in this case there may have been some allusions to or inferences that something may have happened before the two sales that were pointed out in the way of other illegal conduct or even after the two sales were concluded. Keep in mind there are only two allegations here of sales that you must consider. There are no other allegations of any sales either before or after. You should not consider even the possibility that there was.”

Defendant’s principal argument on appeal is that the trial court, by giving the limiting instruction on uncharged crimes without defendant’s authorization, abridged his “right to chart his own defense” (see, People v DeGina, 72 NY2d 768, 776). However, after the court completed the charge to the jury, defense counsel stated: “The only thing I want to object to is I thought we weren’t going to give any charge or say anything about the four or five individuals. You highlighted * * *. In my opinion, you did highlight it. I just wanted to bring it to your attention. Now, the motion for a mistrial was denied, and the charge brings up the whole issue again.” By simply repeating the objection that an instruction on uncharged crimes would highlight the officer’s testimony, defendant did not preserve for this Court’s review the distinct argument now made on appeal that the trial court usurped his right to chart his own defense (see, CPL 470.05 [2]; People v Nucele, 57 NY2d 818, 819).

Defendant’s remaining argument, that he was unduly prejudiced by the officer’s testimony relating to “hand movement,” is without merit. Even if the officer’s testimony contravened the court’s ambiguous pretrial ruling excluding evidence of “transactions,” its admission was harmless. The officer’s testimony of observed hand movement was equally consistent with the defense position that defendant was engaged in the innocent activity of panhandling, which was also supported by the testimony at trial that defendant, at the time of his arrest, had in his hands a box of cookies and a cup of change.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed in a memorandum.


text:
    John R. Ackermann, Appellant, v Michael Maloney, as Sheriff of Schuyler County, et al., Respondents.
    Submitted March 25, 1996;
    decided April 30, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of Attorney-General of the State of New York et al., Respondents, v One Green 1993 Four Door Chrysler et al., Appellants.
    Submitted March 11, 1996;
    decided April 30, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Salvatore R. Curiale, as Superintendent of Insurance of the State of New York, as Liquidator of Nassau Insurance Company, Respondent, v Ardra Insurance Co., Ltd., et al., Appellants. (And a Third-Party Action.)
    Submitted March 25, 1996;
    decided April 30, 1996
   Motion to dismiss appeal, etc., denied.


text:
    In the Matter of Joseph DeRosa, Appellant, v Michael A. Arcuri, as District Attorney of the County of Oneida, et al., Respondents.
    Submitted March 11, 1996
    decided April 30, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Leslie Elie et al., Appellants, et al., Plaintiffs, v Herman T. Kraus, as General Partner of Hyde Park Associates, Respondent.
    Submitted March 18, 1996;
    decided April 30, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied appellants’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed appellants’ complaint, denied, with $100 costs and necessary reproduction disbursements.


text:
    Mariann Grassel, as Administratrix of the Estate of George Grassel Deceased, Appellant, v Albany Medical Center Hospital et al., Respondents.
    Submitted February 26, 1996;
    decided April 30, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion for renewal or reargument, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Lula XX., an Alleged Incapacitated Person, Appellant-Respondent. Jane Ehrlich, as Chief Executive Officer of the Columbia-Green Medical Center, et al., Respondents. Mental Hygiene Legal Service, as Court Evaluator, Respondent-Appellant.
    Submitted March 11, 1996;
    decided April 30, 1996
   Motion for leave to appeal by appellant Lula XX. dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Cross motion for leave to appeal by Mental Hygiene Legal Service dismissed upon the ground that Mental Hygiene Legal Service is not a party to this proceeding.