text:
    The People of the State of New York, Respondent, v Charles McLaurin, Appellant.
    Submitted February 6, 1995;
    decided February 16, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


source: Caselaw Access Project

license: Public Domain

text:
    [648 NE2d 787, 624 NYS2d 367]
    In the Matter of Daniel Sullivan, Respondent, v Allyn Sielaff, as Correction Commissioner of the City of New York, Appellant.
    Decided February 21, 1995

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City
      (Deborah R. Douglas and Kristin M. Helmers of counsel), for appellant.

      Daniel Sullivan, respondent pro se.

   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (205 AD2d 459).

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


text:
    The People of the State of New York, Respondent, v Raymond Blackwell, Appellant.
    Decided February 21, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    [647 NE2d 1356, 623 NYS2d 848]
    The People of the State of New York, Respondent, v James Albert, Also Known as James Albert, Jr., Appellant.
    Decided February 23, 1995

      APPEARANCES OF COUNSEL

      Peter Perlman, New York City, Mark E. Gimpel and E. Joshua Rosenkranz for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Jonathan Svetkey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The issues defendant seeks to raise on this appeal were either unpreserved or waived at trial. Defense counsel failed to object to the manner in which the trial court investigated suggestions of juror misconduct and outside influence. Counsel also acquiesced in the scope and content of the court’s inquiry. Counsel made a timely motion for a mistrial when it was disclosed that information pertaining to the case was overheard by a juror outside the jury room and was then repeated to other jurors. However, counsel subsequently withdrew the request for relief, and the court took remedial measures on the assumption that counsel no longer desired a mistrial. Counsel’s subsequent effort to renew the mistrial motion, which was motivated by a simple change of heart rather than by any concern about the adequacy of the court’s remedial instructions, thus came too late, since it was made after the problem to which it was addressed had been cured in a manner that counsel himself had evidently found satisfactory. Finally, because none of the arguments raised on defendant’s CPL 330.30 (1) motion were raised prior to verdict, those arguments did not furnish a proper predicate for setting aside the verdict.

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

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


text:
    Lawrence A. Ancrum et al., Respondents, v William Eisenberg, Appellant.
    Submitted February 14, 1995;
    decided February 23, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the State Constitution (art VI, § 3 [b] [3], [4]) and the CPLR (5601 [c]; 5602 Ob] [1]) do not authorize a grant of leave to defendant on a certified question in these circumstances (see, Maynard v Greenberg, 82 NY2d 913).


text:
    In the Matter of Anonymous, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted December 27, 1994;
    decided February 23, 1995
   Motion for leave to appeal from that part of the Appellate Division order dated October 28, 1994 that denied appellant’s cross motion to vacate or stay a prior order of that Court and for discovery dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal, etc., otherwise denied.


text:
    William E. Burkhart, Jr., Appellant, v Douglas L. Emmons, Respondent.
    Submitted December 19, 1994;
    decided February 23, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying plaintiffs motion to amend his complaint, 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:
    Frances Consorti, Individually and as Executrix of John Consorti, Deceased, Plaintiff, v Owens-Corning Fiberglas Corp., Defendant.
    Decided February 23, 1995
   Certification of question by the United States Court of Appeals from the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.


text:
    In the Matter of Roberto Hernandez, Appellant, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Program, Green Haven Correctional Facility, et al., Respondents.
    Submitted December 19, 1994;
    decided February 23, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Long Island Pine Barrens Society, Inc., et al., Appellants, v Planning Board of the Town of Brookhaven et al., Respondents. Allan V. Rose, Individually and/or Doing Business as AVR Realty Co. et al., Intervenor-Respondent.
    Submitted November 21, 1994;
    decided February 23, 1995
   Motion, insofar as it seeks leave to appeal as against intervenor-respondent, dismissed upon the ground that as to intervenor-respondent, the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Carmelita Mangno, Appellant, v Elizabeth Mangno, Individually and as Executrix of Michael Mangno, Deceased, et al., Respondents.
    Submitted November 21, 1994;
    decided February 23, 1995
   Motion, insofar as it seeks leave to appeal as against respondent, Mangno, dismissed upon the ground that as to that respondent, the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lorenzo F. Padilla, Appellant, v Thomas A. Brawn et al., Respondents.
    Submitted November 21, 1994;
    decided February 23, 1995
   Motion, insofar as it is treated as seeking reargument of the motion for leave to appeal dismissed by this Court’s order dated September 27, 1994, denied [see, 84 NY2d 864]; motion, insofar as it is treated as seeking leave to appeal from the Appellate Division order dated November 4, 1994, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks other relief, denied.

Judge Smith taking no part.


text:
    Lyndon P. Sharrow, Plaintiff-Respondent, v Dick Corporation et al., Defendants and Third-Party Plaintiffs-Respondents. G & H Steel Service, Inc., Third-Party Defendant-Appellant.
    Submitted January 30, 1995;
    decided February 23, 1995
   Motion by plaintiff-respondent to dismiss appeal taken by appellant G & H Steel Service, Inc. denied.


text:
    Judith Silber, Appellant, v Max Silber, Respondent.
    Submitted December 12, 1994;
    decided February 23, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order dated July 19, 1991, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from that portion of Supreme Court’s judgment confirming the May 5, 1991 award entered upon the stipulation of the parties, dismissed upon the ground that plaintiff is not a party aggrieved (CPLR 5511); motion for leave to appeal otherwise denied.


text:
    In the Matter of Independence Party of New York et al., Respondents, v Board of Elections in the City of New York et al., Respondents, and Nelson A. Denis et al., Appellants. (And Two Additional Proceedings.)
    Submitted March 13, 1995;
    decided March 13, 1995
   On the Court’s own motion, appeal dismissed upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for a stay dismissed as academic.

Judge Simons taking no part.


text:
    [649 NE2d 1193, 626 NYS2d 49]
    The People of the State of New York, Respondent, v Raymond Williams, Appellant.
    Argued February 15, 1995;
    decided March 23, 1995

      APPEARANCES OF COUNSEL

      Sally Wasserman, White Plains, for appellant.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Christopher Michael Shaw and Maryanne Luciano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

As the Appellate Division found, and the People now concede, the undercover officer’s viewing of a single photograph of defendant two days after the officer participated in a buy and bust operation could not be characterized as a mere confirmatory identification. Although the hearing court took evidence on an independent source for the officer’s in-court identification testimony, defendant failed to raise the contention he now urges: that the People could not establish an independent source in the absence of corroborative testimony of the backup officers. His claim is therefore unpreserved.

Nor was the officer’s brief viewing of defendant insufficient to establish independent source. Duration of the officer’s opportunity to observe was only one of several factors considered by the lower court in reaching its determination that the identification was reliable, an undisturbed finding supported by the record and therefore beyond our review.

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

Order affirmed in a memorandum.


text:
    [649 NE2d 1194, 626 NYS2d 50]
    The People of the State of New York, Respondent, v Stanley Dickerson, Appellant.
    Argued February 7, 1995;
    decided March 23, 1995
    APPEARANCES OF COUNSEL

      Joseph O. Holmes, New York City, and Philip Weinstein for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (John F. Carroll and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the defendant’s plea of guilty vacated, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

By felony complaint, defendant was charged with criminal possession of a weapon in the second degree and unlawful possession of marihuana, following his arrest for unlawful possession of a loaded .38 caliber firearm. After the People presented their case to the Grand Jury but before an indictment was voted, defendant agreed to waive his right to prosecution by Grand Jury indictment and to plead guilty to attempted criminal possession of a weapon in the third degree by way of a superior court information, in full satisfaction of all pending charges. The People, on that same day, filed a superior court information charging defendant with attempted criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01).

The People’s consent to this resolution and disposition of the case was conditioned on defendant’s being sentenced to two years to life imprisonment, if the court determined he was a persistent violent felony offender. Supreme Court accepted the plea and approved the plea terms, and adjudged defendant a class E violent felony offender (see, Penal Law § 70.02 [1] [d]). Defendant’s two prior convictions for criminal possession of a weapon thus earned him a sentence as a persistent violent felony offender (see, Penal Law § 70.08), and he was given two years to life. The Appellate Division affirmed and a Judge of this Court granted defendant leave to appeal.

Defendant’s adjudication as a class E violent felony offender and subsequent sentence as a persistent violent felony offender based on his plea to the top count of the superior court information contravenes an express threshold qualification in CPL 220.20. The sentence and plea must, therefore, be vacated.

In pertinent part, Penal Law § 70.08 (1) (a) defines a persistent violent felony offender as "a person who stands convicted of a violent felony offense as defined in subdivision one of section 70.02.” Defendant pleaded guilty to attempted criminal possession of a weapon in the third degree which, under Penal Law § 70.02 (1) (d), constitutes a class E violent felony offense only when defendant is convicted of such charge as "a lesser included offense * * * as defined in section 220.20 of the criminal procedure law.” CPL 220.20 (1) in turn defines a "lesser included offense” as one where the defendant pleads "to an offense of lesser grade than one charged in a count of an indictment.” Thus, according to the plain statutory language, a class E violent felony offense is reserved for accuseds who plead guilty to attempted criminal possession of a weapon in the third degree as a lesser included offense under an indictment charging a greater offense (see, CPL 220.20 [1]; Penal Law § 70.02 [1] [d]).

Inasmuch as defendant did not plead guilty to a lesser included offense and since he pleaded guilty to the top count of a superior court information, he was ineligible for the sentence Supreme Court imposed upon him as a persistent violent felony offender. The People’s consent to this plea agreement was predicated on defendant receiving a sentence of two years to life if he were found to be a persistent felony offender. Since the form of disposition was not authorized and since we vacate the sentence, the People should be permitted, if so advised, to withdraw their consent to the plea agreement (see, People v Cameron, 83 NY2d 838, 840, citing People v Farrar, 52 NY2d 302, 307-308; CPL 195.10).

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

Order reversed, etc.


text:
    [649 NE2d 1195, 626 NYS2d 51]
    The People of the State of New York, Respondent, v Victor Russo, Appellant.
    Argued February 8, 1995;
    decided March 23, 1995

      APPEARANCES OF COUNSEL

      Abigail Everett, New York City, and Philip Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Amy Appelbaum and Roseann B. MacKechnie 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 felony murder for his involvement in a robbery in which two shop employees were shot and killed by another perpetrator. The sum and substance of appellant’s only preserved appellate issue is that he was denied effective assistance of counsel because his lawyer neglected, arguably inadvertently, to make an on-the-record request for a jury instruction on the affirmative defense to felony murder (see, Penal Law § 125.25 [3]). The Appellate Division upheld defendant’s conviction, rejecting the ineffective assistance of counsel claim. .

We agree with the Appellate Division that defense counsel’s failure to request the affirmative defense instruction does not constitute ineffective assistance of counsel, in and of itself, under the entire circumstances of this case (see, People v Hobot, 84 NY2d 1021; People v Flores, 84 NY2d 184, 187-188; People v Baldi, 54 NY2d 137, 147). In resolving this issue, we only assume and do not decide the debatable underlying question as to whether defendant would have been entitled to the instruction on the reasonable view of the whole record evidence, even if the request had been made.

We further conclude that defendant’s claims that the sentencing court abused its discretion and violated his due process rights by stating that it would not consider the negotiated sentence unless defendant waived his right to appeal are unpreserved.

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

Order affirmed in a memorandum.


text:
    [649 NE2d 1196, 626 NYS2d 52]
    J. R. Loftus, Inc., Respondent, v David R. White et al., Appellants.
    Argued February 15, 1995;
    decided March 23, 1995

      APPEARANCES OF COUNSEL

      Harvey and Harvey, Harvey & Mumford, Albany (Jonathan P. Harvey of counsel), for appellants.

      Cusick, Hacker & Murphy, Latham (James E. Hacker of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs to abide the event, and a new trial ordered.

Plaintiff contractor sued defendants to recover damages for breach of an oral contract involving construction of a house. Plaintiff prevailed after a jury trial, and the Appellate Division affirmed in a 3-2 decision. An appeal as of right ensued (CPLR 5601 [a]).

The trial evidence disclosed that the parties had agreed to plaintiff’s $90,000 fee for construction of the house, a payment schedule, and a completion date. The parties also agreed that the defendants would pay for the construction on a cost-plus basis. The record is unclear and in dispute as to whether the parties agreed to a one-year warranty provision as an essential term of the oral contract. Also in dispute is whether the $90,000 fee (1) was contingent upon plaintiff’s completing construction of the house, and (2) represented both plaintiff’s overhead and profit or, rather, plaintiff’s anticipated net profit. Shortly after plaintiff performed preparatory work on the building site, but before beginning actual construction on the house, plaintiff discovered that defendants had hired another contractor.

The trial court instructed the jury on the subjective and objective elements of contract formation, but did not specifically charge the jury with respect to the legal consequences of the disputed warranty provision. The jury rendered a special verdict for plaintiff in the amount of $96,221.20 — the $90,000 agreed upon fee plus plaintiff’s out-of-pocket expenses — and 50% of court fees. Supreme Court entered judgment for plaintiff minus the court fees, and the Appellate Division affirmed.

A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial (see, Moore v New York El. R. R. Co., 130 NY 523). The order of the Appellate Division, therefore, must be reversed and a new trial ordered, because the trial court failed to instruct the jury properly on the legal principles pertinent to the one-year warranty provision.

The trial court failed to apprise the jury of a potentially dispositive legal precept, namely, the Statute of Frauds (General Obligations Law § 5-701 [a] [1]). The issue is relevant and in dispute. Had the jury found, on proper instruction, as defendant requested, that the parties agreed to a one-year warranty to run from the completion of construction, the contract would not have been capable of completion within one year from its making. Thus, the jury would have been required to find that an enforceable contract did not exist (see, General Obligations Law § 5-701 [a] [1]; see also, Halpern v Shafran, 131 AD2d 434, 435-436). One cannot determine from the verdict whether the jury even considered the contested warranty provision. The parties’ testimony regarding a warranty provision necessitated an instruction, the lack of which, in turn and in the full context of what was charged to the jury, requires a new trial.

Since there must be a new trial, we also emphasize the need for definitive jury instructions concerning the proper measure of damages. In that respect, plaintiff bears the "burden of proving the extent of the harm suffered” (see, Berley Indus, v City of New York, 45 NY2d 683, 686). While a plaintiff may recover damages when the measure of damages is unavoidably uncertain or difficult to ascertain, a reasonable connection between a plaintiffs proof and a jury’s determination of damages is nevertheless necessary (see, id.; see also, Spitz v Lesser, 302 NY 490, 492-494).

In the event the defendant owners are found to have breached an enforceable contract, the general measure of damages for the plaintiff contractor is expectancy damages (see, Rosen v Equitable Paper Bag Co., 286 NY 410, 418; Dobbs, Remedies § 12.24, at 912 [1973]). Notwithstanding the cost-plus formula of the putative contract, plaintiff would not ordinarily be entitled to recover overhead expenses unless they were caused by defendants’ breach. If the parties intended the $90,000 fee to encompass both overhead during construction and profits as well, then awarding plaintiff that full amount would be improper. Consequently, the jury on a new trial should be properly instructed so that any damage award plaintiff may recover will accurately reflect only anticipated profit or full contract price less the cost of performance.

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

Order reversed, etc.


text:
    [649 NE2d 1198, 626 NYS2d 54]
    The People of the State of New York, Respondent, v William A. Herner, Appellant.
    Argued February 15, 1995;
    decided March 23, 1995

      APPEARANCES OF COUNSEL

      Ronald C. Valentine, Public Defender of Wayne County (Peter J. Pullano, Rochester, of counsel), for appellant.

      Richard M. Healey, District Attorney of Wayne County, Lyons (Melvin Bressler, Rochester, of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was charged in an indictment with robbery in the first and second degrees based on allegations that he, acting in concert with another, forcibly stole property from Shar’s Petland Store in Ontario, New York. Pursuant to CPL 710.30 (1) (b), the People gave notice to the defendant that they intended to offer evidence of a previous lineup identification of the defendant by the complainant. Following a Wade hearing, County Court determined that the complainant would be permitted to identify the defendant at the time of trial as the one who committed the robbery and would also be permitted to give testimony regarding the identification of defendant in a lineup (see, CPL 60.30). The court determined that there was nothing impermissibly suggestive about the lineup procedure.

Prior to trial the prosecutor was preparing the victim for her trial testimony and permitted her to view a photograph of the lineup where she had previously identified defendant and asked her if she remembered the lineup. The victim indicated that she did and preparations continued. The victim again viewed the photograph the morning of her trial testimony. During the trial, it was learned that the complainant was shown a photo of the lineup the night before her trial testimony. The court then allowed defendant to have a hearing outside the presence of the jury at which complainant was questioned relative to the manner in which the photo was shown to her and whether there was any suggestibility. Following the hearing, the court denied defendant’s oral motion to suppress identification testimony based on a failure to give notice pursuant to CPL 710.30. Subsequently, after a jury trial, defendant was convicted of robbery in the first degree and robbery in the second degree.

The Appellate Division affirmed, determining that showing the earlier lineup photograph to the complainant before her trial testimony was preparatory, requiring no notice under CPL 710.30.

We agree with the trial court and the Appellate Division that no notice was required because there was no identification procedure under CPL 710.30. The prosecutor’s showing the victim a photograph of the lineup was clearly preparation for trial.

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

Order affirmed in a memorandum.


text:
    [649 NE2d 1199, 626 NYS2d 55]
    James Kiker, as Administrator of the Estate of Grace Kiker, Deceased, Appellant, v Nassau County et al., Respondents.
    Argued February 8, 1995;
    decided March 23, 1995

      APPEARANCES OF COUNSEL

      Bruce G. Clark & Assocs., New York City (Peter L. Gale of counsel), for appellant.

      Owen B. Walsh, County Attorney of Nassau County, Mineola (Marilyn L. Olshansky of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

After a jury trial in a wrongful death action brought by plaintiff, a verdict was rendered against defendant County of Nassau for $325,000. Judgment was entered on September 22, 1989, by the Nassau County Clerk for the sum awarded plaintiff plus interest from the date of death. The Clerk erroneously calculated interest at an annual rate of 9% instead of 6%, as required by General Municipal Law § 3-a (2). The interest was entered in a total dollar amount, $266,337.50, and the rate at which the interest had been calculated was not shown on the document. Apparently the error was not discovered by the County until November 1991. However, the judgment against the County had already been affirmed by the Appellate Division (175 AD2d 99), and the appeals process was over.

The County then sought, by order to show cause, correction of the judgment pursuant to CPLR 2001 and 5019 (a), to reflect the statutory rate. Supreme Court denied the County’s motion and held that while the law was clear and unambiguous that the correct rate of interest was 6%, the court lacked power to make the correction. The Appellate Division reversed (204 AD2d 400) holding that the assessment of interest by the County Clerk had enlarged the scope of the judgment beyond that authorized by the verdict. Alternatively, the Court held that the error committed by the County Clerk was ministerial in nature and could be corrected by the court of original jurisdiction.

We agree with the Appellate Division that a mistake made by a clerk in assessing the amount of interest on a judgment may be corrected by the court of original jurisdiction — even after the appeals process has been completed — where the rate of interest was not a matter of contention between the parties, was not determined by the court, and the proper rate was clearly directed by statute. CPLR 5019 (a) provides that "[a] judgment or order shall not be stayed, impaired or affected by any mistake, defect or irregularity in the papers or procedures in the action not affecting a substantial right of a party. A trial or an appellate court may require the mistake, defect or irregularity to be cured.” Thus, trial and appellate courts have the discretion to cure mistakes, defects and irregularities that do not affect substantial rights of parties.

While the correct rate of interest to be applied to a verdict can constitute a substantive right of a party (see, e.g., Matter of City of New York [Roteeco Corp.], 33 NY2d 970 [where rate of interest is litigated and determined by a Judge, any challenge to the interest rate must be made on direct appeal]; Matter of McKenna v County of Nassau, 61 NY2d 739, 741-742 [questions of law regarding interest rates must be raised on direct appeal]), no substantive right of the parties is affected by the rate of interest applied to the judgment here. The correct rate of interest was not contested by the parties; it was dictated by statute. Moreover, the trial court never decided what rate should be applied. Rather, the County Clerk erroneously applied the wrong rate due to a ministerial error. Indeed, plaintiff cannot show that his rights are affected when the right he is now claiming, a right to a 9% interest on his judgment, has never existed. Accordingly, the Appellate Division correctly determined that the trial court has the power to correct this ministerial error.

Finally, we note that loches of a party making an application for relief under CPLR 5019 (a) may always be considered. In this case, however, plaintiff has made no showing of prejudice attributable to the delay of the County in seeking to correct this error.

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

Order affirmed, with costs, in a memorandum.


text:
    Mark Abend et al., Respondents, v Argo Corporation, Appellant.
    Submitted December 19, 1994;
    decided March 23, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to vacate the judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Gloria R., Appellant, v Alfred R. et al., Respondents.
    Submitted December 12, 1994;
    decided March 23, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellant’s motion to enlarge the record, dismissed upon the ground that that portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v William Jones, Appellant.
    Submitted February 21, 1995;
    decided March 23, 1995
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    The People of the State of New York, Respondent, v Peter Corso, Appellant.
    Submitted February 27, 1995;
    decided March 23, 1995
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15 or from an order of a single Justice denying leave to appeal to the Court of Appeals pursuant to CPL 460.20.


text:
    [649 NE2d 1201, 626 NYS2d 57]
    Bridgford Hunt, as President of the Board of Managers of the Elysabeth Condominium, Plaintiff-Respondent-Appellant, v Peter Sharp et al., Defendants and Counterclaim Plaintiffs-Appellants-Respondents. Bridgford Hunt et al., Additional Counterclaim Defendants-Respondents-Appellants.
    Argued February 14, 1995;
    decided March 28, 1995

      APPEARANCES OF COUNSEL

      Audrey S. Feinberg, Irvington, for appellants-respondents.

      Brown Raysman & Millstein, New York City (Kenneth M. Block and John C. Ohman of counsel), for respondents-appellants.
   OPINION OF THE COURT

Memorandum.

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

There is support in the record for the findings of the courts below that plaintiff board of managers acted in bad faith and without basis in law when it refused defendants’ request for permission to alter the building’s structure so as to connect defendants’ existing basement garage to an affiliated basement garage in an adjacent building (see, Humphrey v State of New York, 60 NY2d 742, 743-744). We also agree with the Appellate Division’s conclusion that defendants are not entitled to recover their attorneys’ fees from the individual board members whose alleged misconduct purportedly led the board to bring this action against them.

Under the "American rule,” to which this State adheres (see, e.g., Chapel v Mitchell, 84 NY2d 345), the prevailing litigant ordinarily cannot collect its reasonable attorneys’ fees from its unsuccessful opponents (see, Alyeska Pipeline Co. v Wilderness Socy., 421 US 240, 247; Hooper Assocs. v AGS Computers, 74 NY2d 487, 491). Contrary to defendants’ contentions, the narrow exception that has previously been recognized where recovery is sought from a third-party wrongdoer is inapplicable in these circumstances (see, Shindler v Lamb, 25 Misc 2d 810, affd 10 AD2d 826, affd 9 NY2d 621). Whatever the proper scope of that exception, it is unavailable where, as here, the purported "third-party” wrongdoer is, either legally or as a practical matter, the same as the claimant’s opponent in the main action. Although an unincorporated association and its individual board members may be conceptually separated for some legal purposes (see, e.g., Gem Music Corp. v Taylor, 294 NY 34; Polin v Kaplan, 257 NY 277; McCabe v Goodfellow, 133 NY 89), no such separation is possible in this case, where the alleged third-party wrongdoers, all individual board members, committed the claimed wrong in their capacities as managers of the association that initiated the main action.

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

Order affirmed, without costs, in a memorandum.


text:
    [649 NE2d 1203, 626 NYS2d 59]
    The People of the State of New York, Respondent, v Roberto Clark, Appellant. The People of the State of New York, Respondent, v Gregory Williams, Appellant.
    Argued February 15, 1995;
    decided March 28, 1995

      APPEARANCES OF COUNSEL

      Paul Skip Laisure, New York City, E. Joshua Rosenkranz and Howard A. Pincus for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Christine R. Cardi and Sylvia Wertheimer of counsel), for respondent in the first above-entitled action.

      Bertan & LaRaus, White Plains (David K. Bertan of counsel), for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Susan Gliner and Mark Dwyer of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division in each case should be affirmed.

In each of these appeals, defendants challenge the factual finding that their respective pretrial showup identificatians were not unduly suggestive. In Clark, the record supports the determination that the identifications were not the product of police suggestion but rather spontaneous. One of the two robbery victims observed the perpetrator in a neighborhood market, asked the manager for his address, and then contacted the police with this information. Subsequently, the victims were escorted by the police to the address, where they immediately identified the defendant as their assailant when he opened the apartment door. We agree with the courts below that this procedure was not unduly suggestive and that complainants’ identifications were spontaneous (see, People v Newball, 76 NY2d 587, 591; People v Duuvon, 77 NY2d 541, 543; cf., People v Dixon, 85 NY2d 218).

In Williams, the record reveals that the showup was the result of happenstance. An individual contacted the victim, who had been raped and sodomized two weeks earlier in the lobby of her apartment building, claiming to have her passport and identification cards. These items were stolen from her apartment approximately 12 days after the rape. Based on a description provided by a neighbor whom this individual approached in an attempt to locate the victim and the caller’s admission that he had been looking for her at the apartment building, the victim believed this person was her attacker.

After conferring with the police, she arranged to meet this individual outside of a subway station to recover her property. The complainant was transported to the designated meeting place by two detectives in an unmarked police vehicle. After canvassing the area several times, the detectives spotted an individual, who matched the complainant’s prior descriptions, standing by himself atop the stairs leading down to the subway. After parking their car and instructing the complainant to remain inside, the detectives followed the suspect, who had descended into the subway station. The detectives approached the suspect at the public phone he appeared to be using. A scuffle developed when the suspect pushed one of the detectives in response to their questions. The detectives placed him under arrest and a search of his pockets yielded the complainant’s passport and identification cards. During this time, a commotion had erupted near the token booth because of a problem with subway service, prompting the detectives to remove the defendant from the station. The complainant observed the detectives emerge from the station with defendant, and immediately recognized and identified him to the detectives as her attacker. The complainant confirmed this identification when the detective who was holding defendant indicated, in response to her inquiry, that defendant’s teeth were crooked, a feature she repeatedly attributed to her attacker.

Given the erratic circumstances of the detectives’ encounter with defendant, the resulting "showup” identification procedure was unavoidable, the product of a fast-paced, uncontrollable situation (see, People v Rivera, 22 NY2d 453, 455, cert denied 395 US 964; People v Dixon, 85 NY2d 218, supra). To the extent that the undisturbed findings of the courts below involve mixed questions of law and fact, which are amply supported by the record evidence, this Court’s review is concluded (see, People v Oeller, 82 NY2d 774, 775).

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

In each case: Order affirmed in a memorandum.


text:
    Tracie D. Fleitz, Appellant, v Stuart D. Fleitz, Respondent.
    Submitted January 17, 1995;
    decided March 28, 1995
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    Bruce M. Korabel et al., Respondents, v Jacqueline L. Natoli, Appellant.
    Submitted January 23, 1995;
    decided March 28, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Mark La Bounty, Appellant, v Paul Russi, as Chairman of the Division of Parole, et al., Respondents.
    Submitted February 14, 1995;
    decided March 28, 1995
   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. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Benedetto Schepis, Respondent.
    Submitted March 13, 1995;
    decided March 28, 1995
   Motion to dismiss People’s appeal or to direct additional filings by the People denied; motion, in the alternative, for defendant-respondent to be allowed to file seven copies of the entire record on appeal granted.


text:
    Jacqueline Schozer, Respondent, v William Penn Life Insurance Company of New York, Appellant.
    Submitted January 17, 1995;
    decided March 28, 1995
   Motion, treated as a motion to amend remittitur, denied. [See, 84 NY2d 639.]


text:
    Anthony C. J. Seudath et al., Appellants, v Dorothy Mott et al., Respondents.
    Submitted December 27, 1994;
    decided March 28, 1995
   Motion for leave to appeal dismissed upon the ground that the movants have failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    West-Fair Electric Contractors et al., Plaintiffs, v Aetna Casualty & Surety Company et al., Defendants.
    Decided March 28, 1995
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    [650 NE2d 405, 626 NYS2d 747]
    The People of the State of New York, Respondent, v Wayne Harrison, Appellant.
    Argued February 15, 1995;
    decided March 30, 1995

      APPEARANCES OF COUNSEL

      Abigail Everett, New York City, and Philip L. Weinstein for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Barbara Thomashower, Leonard Joblove and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following the shooting death of a fellow party-goer in 1990, defendant was charged with two counts of second degree murder, intentional murder and depraved indifference murder, under a theory of acting in concert, and one count each of criminal possession of a weapon in the second and third degrees. The verdict sheet listed count one as intentional murder, count two as first degree manslaughter, a lesser included offense of intentional murder, count three as depraved indifference murder, and count four as second degree manslaughter, a lesser included offense of depraved indifference murder.

The court instructed the jurors that counts one and two were to be considered in the alternative, as were counts two and three; thus, it obliged the jury to consider its verdict on first degree manslaughter before considering its verdict on second degree depraved indifference murder. After deliberating, the jurors returned to the courtroom and asked for the charges to be defined, whether count three was a "worse” crime than count two, and whether they could convict on both counts two and three. The court answered the last question by stating "[y]es, it can be 'guilty’ or 'not guilty’ as I gave it to you on that sheet.” It also advised the jury not to consider which crime was the worse. The court recessed for dinner and after the dinner recess, before supplemental instructions were given, the prosecutor requested the court to alter the charge to avoid a possible repugnant verdict. The court denied the prosecutor’s request and reinstructed the jury on the counts and the elements of each.

The next day, the court itself expressed concern over a possible repugnant verdict, and declared its intent to give the jury a new verdict sheet. Defense counsel objected, maintaining that it was improper to attempt to correct a possibly repugnant verdict solely by changing the verdict sheet without recharging the jury. Nevertheless, the court summoned the jury and provided it with a new verdict sheet correctly instructing the jury on the order in which it should consider the counts and stated that the jury should now “approach this a little differently.” The court did not instruct the jury on inconsistent verdicts, nor did it explain that it had incorrectly answered the jury’s earlier question when it advised the jurors they could find defendant guilty of both count two and count three. The jury subsequently requested a recharge on every count except that of intentional murder.

After the weekend recess, the court recharged the jury at length, reminding them to consider first degree manslaughter, “an intentional crime,” only if they first acquitted defendant of depraved indifference murder, “a reckless crime.” It did not inform the jury that the two mental states were contradictory and that that was the reason they could not convict for both offenses. After further deliberations, the jury again requested instructions on “the difference between depraved indifference and recklessness” and acting in concert. After receiving a further instruction, the jury returned a verdict finding defendant guilty of depraved indifference murder.

CPL 300.40 (5) provides that if the court submits to the jury two inconsistent counts of an indictment, either of which would be supported by legally sufficient trial evidence, the court may submit them in the alternative and advise the jury to convict of one or the other. “In such case, the court must direct the jury that if it renders a verdict of guilty upon one such count it must render a verdict of not guilty upon the other.” The statute does not direct the trial court to instruct the jury why the counts are inconsistent — or, indeed, even to explicitly instruct the jury that the counts are inconsistent— but only to instruct the jurors that a verdict of guilty on one such count requires a verdict of not guilty on the other.

Here, the trial court not only failed to direct the jury as mandated by CPL 300.40 on the original verdict sheet, it explicitly misinstructed the jurors, when questioned, by informing them that they could convict on both intentional manslaughter and depraved indifference murder. It eventually furnished a corrected verdict sheet, which properly directed the jury on the order of its deliberations, and also orally told the jurors "the second count as I gave it to you of course will not be considered until after the third count”. It did not explain that a verdict of guilty on either intentional manslaughter or depraved indifference murder required a verdict of not guilty on the other, although that was the effect of the directions on the amended verdict sheet. In short, although the court’s instructions were incorrect and its efforts to correct them confusing, ultimately the court did supply the jury with an adequate road map to a proper application of the law of lesser included and alternative offenses, and specifically reminded it that they could not consider first degree manslaughter unless they had first acquitted defendant of depraved indifference murder. Thus, the court technically complied with the requirement of CPL 300.40 (5).

Nevertheless, the correction of the original charge came after the jury had begun its deliberations and the error cannot be ignored because there is simply no way to determine if the jury continued to be influenced by an erroneous instruction on a material point. In Smulczeski v City Ctr. of Music & Drama (3 NY2d 498), the trial court had erroneously charged the jury on the nature of the duty imposed by a statutory provision; later in the charge, the court instructed the jury properly. On appeal, we found it impossible to conclude "that this subsequent charge cured the error previously committed so that the jury deliberated on the case and rendered its verdict with a complete and accurate understanding of the applicable law” (id., at 501). We particularly noted that "[t]he Trial Judge at no time withdrew his prior erroneous instruction,” and we stated that " '[t]o obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it’ ” (id., quoting Chapman v Erie Ry. Co., 55 NY 579, 587).

The need for clarity is even more important when the error is corrected after the jury has begun deliberating under the erroneous instruction. Defendant contends that the jury’s original question whether it could convict of both intentional manslaughter and depraved indifference murder indicated that the jury, at this point in its deliberations, had already decided that defendant was guilty of intentional manslaughter. Based on the original verdict sheet, the jury may well have deliberated on intentional manslaughter and concluded defendant was guilty and, before moving on to consider depraved mind murder, posed its question to the court. At the time the jury asked the trial court which crime was "worse”, a question which could be read to suggest that the jury wanted to convict defendant of both offenses but, if the answer to whether it could in fact do so was "no”, then it intended to convict defendant of the more heinous offense. Inasmuch as it is impossible to determine the basis for the jury’s verdict, there must be a reversal.

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

Order reversed, etc.


text:
    [650 NE2d 1316, 627 NYS2d 315]
    Batoul Herbert et al., Appellants, v Morgan Drive-A-Way, Inc., et al., Respondents, et al., Defendant. (Action No. 1.) (And Another Action.)
    Decided March 30, 1995

      APPEARANCES OF COUNSEL

      Cynthia Feathers, Saratoga, and Eli B. Bosch, Kingston, for appellants.
    Respondents precluded.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order, insofar as appealed from, reversed, with costs, motion by defendants Morgan Drive-A-Way, Inc. and Errol K. Miller for summary judgment dismissing the complaint of plaintiffs Batoul Herbert and Donald Herbert as against them in action No. 1 denied and certified question answered in the affirmative for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division (202 AD2d 886, 888-889).

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


text:
    [650 NE2d 408, 626 NYS2d 750]
    The People of the State of New York, Respondent, v David Huertas, Appellant.
    Submitted February 16, 1995;
    decided March 30, 1995

      APPEARANCES OF COUNSEL

      Edward D. Czaja, Naples, for appellant.

      R. Michael Tantillo, District Attorney of Ontario County, Canandaigua (Jeffrey R. Taylor of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The alleged agreement between defendant and the prosecutor was never placed on the record or approved by the County Court Judge. Accordingly, defendant cannot now insist that the courts recognize or enforce it (see, People v Curdgel, 83 NY2d 862, 864; People v Danny G., 61 NY2d 169). Since his codefendant pleaded guilty before trial, it cannot be said that the People obtained any concrete benefit from defendant’s agreement to testify against that individual. Defense counsel’s claim that defendant’s agreement to testify may have induced the codefendant to plead guilty is too speculative to warrant granting defendant the relief he seeks.

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

Order affirmed in a memorandum.


text:
    [650 NE2d 1316, 627 NYS2d 315]
    The People of the State of New York, Respondent, v Chris Gibbs, Appellant.
    Decided March 30, 1995

      APPEARANCES OF COUNSEL

      Stanley Neustadter, New York City, for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for so much of the reasoning of the memorandum of the Appellate Division as concluded that "the permissive adverse inference charge given by the court was an appropriate exercise of discretion under the circumstances” (207 AD2d 288).

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


text:
    Paul Bent, Appellant, v Andersen Corporation, Respondent, and North American Van Lines, Defendant and Third-Party Plaintiff. Thurber Lumber Co., Inc., Third-Party Defendant-Respondent.
    Submitted January 3, 1995;
    decided March 30, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying plaintiff’s postjudgment motion to set aside the jury verdict, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Donald Cherico et al., Appellants, v Bank of New York, Respondent, et al., Defendants.
    Submitted March 27, 1995;
    decided March 30, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Audrey Cordts, Appellant, v Capital District Transportation Authority, Respondent.
    Submitted December 27, 1994;
    decided March 30, 1995
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (Cohen and Karger, Powers of the New York Court of Appeals § 101, at 429).


text:
    GSL Enterprises, Inc., Appellant, v 31 West 34th Street Associates et al., Respondents.
    Submitted December 27, 1994;
    decided March 30, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of plaintiff’s motion for a preliminary injunction, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Nancy Maher et al., Appellants, v John L. Heathwood et al., Respondents.
    Submitted January 9, 1995;
    decided March 30, 1995
   Motion, insofar as it seeks leave to appeal as against defendant Heathwood, dismissed upon the ground that as to that defendant, the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Manhattan Associates, Respondent, v Mikos Voulgarelis, Appellant.
    Submitted March 6, 1995;
    decided March 30, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court does not have jurisdiction to entertain the appeal (NY Const, art VI, § 3; CPLR 5601).


text:
    Alfred D. Miller, Appellant, v Hills Department Store, Respondent.
    Submitted January 9, 1995;
    decided March 30, 1995
   Motion, treated as a motion for reargument of the appeals dismissed by this Court’s order dated September 8, 1988, and the motion for leave to appeal dismissed in part and denied in part by this Court’s order dated September 8, 1988, dismissed as untimely (22 NYCRR 500.11 [g] [3]). [See, 72 NY2d 932.]


text:
    In the Matter of Penfield Tax Protest Group et al., Appellants, v Linda Yancey, as Assessor to the Town of Penfield, et al., Respondents.
    Submitted March 27, 1995;
    decided March 30, 1995
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed that portion of Supreme Court’s order denying petitioners’ motion to amend the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the order appealed from does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Douglas Nelson, Appellant, v John P. Keane, as Superintendent of Sing Sing Correctional Facility, Respondent.
    Submitted January 23, 1995;
    decided March 30, 1995
   Motion for leave to appeal dismissed upon the ground that the proceeding and the motion have abated because of the death of the petitioner.


text:
    Pirro & Monsell, P. C., Respondent, v Ralph Freddolino, Appellant.
    Submitted January 9, 1995;
    decided March 30, 1995
   Motion for leave to appeal dismissed upon the ground that the May 23, 1994 Appellate Division order was the final appealable paper from which no timely appeal or motion for leave to appeal was properly taken (see, CPLR 5611, 5513 [b]).


text:
    In the Matter of Justo Richards, Appellant, v Justices, Supreme Court, County of Kings, et al., Respondents.
    Submitted January 23, 1995;
    decided March 30, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the letter sought to be appealed from is neither a judgment, nor an order, from which an appeal to this Court may be taken (see, CPLR 5512 [a]; 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Mary Sands, Individually and on Behalf of All Others Similarly Situated, Appellant, v Ticketmaster-New York, Inc., Doing Business as Ticketmaster, Respondent, et al., Defendants.
    Submitted December 19, 1994;
    decided March 30, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order which affirmed that portion of Supreme Court’s order denying plaintiffs cross motion for permission to amend her complaint, 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. Motion to supplement the record on appeal denied.


text:
    In the Matter of Troy Sneed, Appellant, v Richard A. Goldberg, as Justice of the Supreme Court, Kings County, Respondent. (Proceeding No. 1.) In the Matter of Troy Sneed, Appellant, v Brian Cozier, as Justice of the Supreme Court, Kings County, Respondent. (Proceeding No. 2.)
    Submitted January 3, 1995;
    decided March 30, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument and renewal in proceeding No. 2, dismissed upon the ground that that order does not finally determine proceeding No. 2 within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    [650 NE2d 1320, 627 NYS2d 319]
    Timothy L. Nickels, Individually and as President of the Police Benevolent Association, Inc., Housing Police Department, City of New York, Appellant, v New York City Housing Authority et al., Respondents.
    Argued March
    23, 1995;
    decided April 4, 1995

      APPEARANCES OF COUNSEL

      Solomon Rickman Greenberg, P. C., Lake Success (Theodore C. Rickman, Harry Greenberg and Robert J. Burzichelli of counsel), and Heyward & Hilton, P. C. (Robert Heyward and Kenneth Hilton, of the New Jersey Bar, admitted pro hac vice, of counsel), for appellant.

      Jeffrey Schanback, New York City, for New York City Housing Authority and others, respondents.

      Paul A. Crotty, Corporation Counsel of New York City (Elizabeth Dvorkin and Leonard Koerner of counsel), for City of New York, respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Milton L. Williams at the Appellate Division (208 AD2d 203).

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


text:
    [650 NE2d 409, 626 NYS2d 751]
    The People of the State of New York, Appellant, v Linda Smith, Respondent.
    Argued February 8, 1995;
    decided April 4, 1995

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (Robin A. Forshaw and Steven J. Chananie of counsel), for appellant.

      Elizabeth Sack Felber, New York City, and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that Court for its consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b).

The trial court neither exceeded its authority nor placed defendant on illegal "interim probation” by postponing defendant’s sentence after her plea of guilty and placing her with a private drug treatment program (see, People v Avery, 85 NY2d 503 [decided today]).

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

Order reversed and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Allan and Allan Arts, Ltd., Doing Business as Gateway Playhouse, Appellant-Respondent, v Gloria M. Rosenblum, Respondent-Appellant.
    Submitted January 17, 1995;
    decided April 4, 1995
   Motion for leave to appeal denied. Cross motion for leave to appeal and for the imposition of sanctions denied.


text:
    Danna Metro Heating Corp., Respondent-Appellant, v Mobil Oil Corporation et al., Appellants-Respondents.
    Submitted February 14, 1995;
    decided April 4, 1995
   Motion by appellants-respondents for leave to appeal denied. Cross motion by respondent-appellant Danna Metro Heating Corp. for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.

Judge Simons taking no part.


text:
    Joan V. Harris, Appellant, v Paul Hirsh, Respondent.
    Decided April 4, 1995
   Chief Judge Kaye taking no part.


text:
    In the Matter of Jaclyn P. and Another. Nassau County Department of Social Services, Respondent; Robert P., Appellant.
    Submitted January 23, 1995;
    decided April 4, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    Jerome Levin, Appellant, v Grande Memorials and Monuments, Inc., et al., Respondents. Jerome Levin, Appellant, v Pickles & Pies, Inc., et al., Respondents. Jerome Levin, Appellant, v Poland Spring Distributing Corp. et al., Respondents.
    Submitted January 23, 1995;
    decided April 4, 1995
   Motion in each action for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine that action within the meaning of the Constitution. Motion in each action for additional relief denied.


text:
    Angelina Libardi, Respondent, v City of New York, Appellant, and Steven Kogel, Respondent, et al., Defendants.
    Submitted February 14, 1995;
    decided April 4, 1995
   Motion for renewal of motion for leave to appeal granted [see, 84 NY2d 1025, 850]; motion for leave to appeal denied. Cross motions for the imposition of sanctions, etc., denied.


text:
    In the Matter of Rochester Telephone Corp. et al., Appellants, v Public Service Commission of the State of New York et al., Respondents.
    Submitted March 13, 1995;
    decided April 4, 1995
   Motion to dismiss appeal denied without prejudice to renewal of the motion upon oral argument.

Judge Levine taking no part.


text:
    Seminole Realty Co., Respondent, v Susan Greenbaum, Respondent, and Elayne Kesselman et al., Appellants.
    Submitted February 21, 1995;
    decided April 4, 1995
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from an order of the Appellate Division entered in a proceeding commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    Joseph A. Suozzi, Appellant, v Alan Parente et al., Respondents, et al., Defendants.
    Submitted February 6, 1995;
    decided April 4, 1995
   Motion, insofar as it seeks leave to appeal as against defendant estate of Griffin dismissed upon the ground that as to that defendant the order of the Appellate Division does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.

Judge Ciparick taking no part.


text:
    [650 NE2d 846, 626 NYS2d 999]
    In the Matter of Bank Leumi Trust Company of New York, Respondent, v Dime Savings Bank of New York, FSB, Respondent, and Warren McCain, Appellant.
    Argued March 29, 1995;
    decided April 27, 1995

      APPEARANCES OF COUNSEL

      Melvin S. Hirshowitz, New York City, for appellant.
    No appearance for respondents.
   OPINION OF THE COURT

Memorandum.

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

Under CPLR 5205 (c) (1) and (2) as amended in 1989 (L 1989, ch 84), an Individual Retirement Account (IRA) created pursuant to 26 USC § 408 (d) (3) as a result of rollovers from either "a Keogh (HR-10), retirement or other [qualified section 401] plan established by a corporation” is exempt from a judgment creditor’s levy. That exemption, which was in effect at the time this enforcement proceeding was instituted, applied to the IRA account that respondent McCain maintained at respondent Dime Savings Bank, since the account was created as a result of a timely rollover of the funds that were previously held in McCain’s former employer’s qualified Pension, Profit and Stock Bonus Plan pursuant to section 401 (k) of the Internal Revenue Code (see, 26 USC § 402 [c] [3]; § 408 [d] [3] [A] [i]). The fact that the IRA account was created before the 1989 amendment became effective is of no moment, since the controlling event in this context is petitioner judgment creditor’s effort to levy against this presently exempt fund. Accordingly, the courts below erred in granting the petition.

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

Order reversed, etc.


text:
    [650 NE2d 846, 626 NYS2d 999]
    The People of the State of New York, Respondent, v Kenny Ladson, Appellant.
    Argued March 30, 1995;
    decided April 27, 1995

      APPEARANCES OF COUNSEL

      Kimberliane Podlas, New York City, and Philip L. Weinstein for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Appellant claims that he was denied his statutory ready trial right (CPL 30.30) and, thus, that his indictment should be dismissed. His trial motion alleged in bare conclusory terms that "his [constitutional right to a speedy trial ha[d] been denied.” The People urged denial of the motion on the ground that there was no CPL 30.30 violation in that defendant was "absent” within the statutory exclusion period (see, CPL 30.30 [4] [c]). The People claimed defendant’s location was unknown and that he also attempted to avoid apprehension. Defendant did not respond and never identified "any legal or factual impediments to the use of [this] exclusion[ ]” (People v Luperon, 85 NY2d 71, 78). The trial court denied defendant’s motion and the Appellate Division affirmed the conviction, after a jury verdict, for criminal possession of a weapon (202 AD2d 212).

Appellant’s argument before this Court, on an appeal from the Appellate Division order, is that his location was presumptively known to the police when he was arrested on an unrelated charge, despite the use of different names, Social Security numbers and other varying identification aspects. Since that issue and legal theory were never raised before the trial court, the contention is not preserved (see, CPL 470.05 [2]; People v Luperon, supra).

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

Order affirmed in a memorandum.


text:
    [650 NE2d 847, 626 NYS2d 1000]
    The People of the State of New York, Respondent, v Michael Cook, Appellant.
    Argued February 15, 1995;
    decided April 27, 1995

      APPEARANCES OF COUNSEL

      Marsha Weinstein, Kew Gardens, for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Alyson J. Gill and Roseann B. MacKechnie of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Following a jury trial, defendant was acquitted of two counts of robbery (Penal Law § 160.15 [1], [2]), and convicted of one count of assault in the first degree (Penal Law § 120.10 [4]). During the course of jury deliberations, the jury addressed several written inquiries to the trial court, including requests that parts of the testimony and the court’s instructions be read back. After responding to a jury request not at issue on this appeal, the court informed the parties that it had received another note, this one from a single member of the jury stating that the jury was at an "emotional impasse.”

At that point, defense counsel asked to approach the bench, but was told that he could not and that he should not interrupt the court. Counsel continued to protest, noting that he had not seen the note. However, the court, without responding to counsel, read the note aloud and then instructed the jury to decide the case on the evidence, without letting emotions enter into their deliberations.

After the jury left the courtroom to continue deliberating, the court and defense counsel engaged in a colloquy during which the court ruled that defense counsel had absolutely no right to suggest or comment on the response to the jury’s "emotional impasse” note, and peremptorily directed counsel not to attempt to assert such right. The court also refused defense counsel’s request for an opportunity to make a record of his objections.

On appeal, the Appellate Division, citing this Court’s decision in People v O’Rama (78 NY2d 270), held that although the Trial Judge erred by refusing defense counsel the opportunity to suggest responses to the note from the juror, the error was harmless in light of the overwhelming evidence of defendant’s guilt (202 AD2d 443). We agree that the trial court committed error but are unable to agree that the error was harmless.

In O’Rama, we held that the failure of a trial court to inform defense counsel of the exact contents of a juror’s note deprived defendant of the "meaningful notice” required by CPL 310.30. Meaningful notice, we said, requires not only that counsel be present in the courtroom when the court delivers its response to jurors’ requests for information or instruction, but also "that counsel has the opportunity to be heard before the response is given” (People v O’Rama, supra, at 277; cf., People v Starling, 85 NY2d 509 [decided today]).

The trial court’s error in O’Rama, i.e., failure to disclose the exact content of a substantive inquiry by a deliberating jury, "had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial” (id., at 279) and was, thus, inherently prejudicial. This Court concluded in O’Rama, therefore, that the error was reversible even without a showing of specific prejudice. In the instant case, the court entirely deprived defendant of his right to have specific input into the court’s response to the single juror’s note. Moreover, just as in O’Rama, the court’s response to the juror’s note "was, unquestionably, intended to have an effect on the deliberative process” (People v O’Rama, supra, at 280). Thus, the court’s denial of defendant’s opportunity to participate in the charging decision was inherently prejudicial. As such, the conviction must be reversed and a new trial ordered.

We also agree with defendant that the property recovered from defendant’s clothing by a police officer before defendant was arrested, identified as a participant in the robbery, or connected in any identifiable way to the crime being investigated must be suppressed. There is nothing in the record to support the trial court’s finding that the officer who searched the clothing found on the hospital floor in the same room with defendant "was directed to a room where the other individual was who was involved in the shooting in the robbery.” Nor was the search conducted pursuant to a warrant, by consent, or incident to arrest (see, People v Loria, 10 NY2d 368). And contrary to the People’s assertions, neither the trial court nor the Appellate Division found probable cause to search the clothing. The search was therefore illegal, and the evidence seized improperly admitted at trial.

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

Order reversed, etc.

       The juror’s note in O’Rama also reflected that the jury was having difliculty in deliberations. The court responded with an Allen charge.


text:
    [651 NE2d 913, 628 NYS2d 45]
    The People of the State of New York, Respondent, v Tyrone Bembry, Appellant.
    Decided April 27, 1995

      APPEARANCES OF COUNSEL

      Stanley Neustadter, New York City, and Richard A. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed for the reasons stated in the memorandum of the Appellate Division (209 AD2d 270).

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


text:
    Rita Kiernan, Appellant, v Long Island Rail Road, Respondent.
    Submitted February 21, 1995;
    decided April 27, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements.


text:
    Nyack Hosp., as Assignee of John Debinski and Others, et al., Respondents, v State Farm Mutual Automobile Insurance Company, Appellant.
    Submitted January 3, 1995;
    decided April 27, 1995
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from pursuant to CPLR 5602 (a) (1) (ii) does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Audrey A. Vrooman, Respondent, v George Dentes, as District Attorney of Tompkins County, Respondent. Debra L. Dennett, Appellant.
    Submitted January 9, 1995;
    decided April 27, 1995
   Motion for leave to appeal dismissed upon the ground of mootness.


text:
    [650 NE2d 849, 626 NYS2d 1002]
    The People of the State of New York, Appellant, v Mike Williams, Also Known as Andrew Chisolm, Also Known as Thomas Chisolm, Respondent.
    Argued March 30, 1995;
    decided May 2, 1995

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Raphael J. Berman and Peter D. Coddington of counsel), for appellant.

      Green & Willstatter, White Plains (Theodore S. Green of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to that Court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]) and issues raised but not considered on the appeal to that Court.

The question presented is whether defendant was improperly denied the right to be present when his counsel moved, in his absence, to withdraw a prior motion to controvert the findings of competency by medical experts who had examined defendant at the court’s request, pursuant to CPL 730.30, and joined in the People’s motion to confirm those reports. Counsel did so because the psychiatrist who examined defendant at his request agreed that defendant was competent to stand trial.

A defendant has a constitutional and statutory right to be present at all material stages of the trial (Snyder v Massachusetts, 291 US 97; People v Mullen, 44 NY2d 1; Maurer v People, 43 NY 1; CPL 260.20). We have interpreted those stages to include impanelling the jury, introduction of evidence, summing up to the jury, the charge of the court, and receiving and recording the verdict (see, Maurer v People, supra). Moreover, we have held that a defendant has a right to be present at ancillary proceedings when he or she may have "something valuable to contribute” (People v Morales, 80 NY2d 450, 456) and when defendant’s presence would have a "substantial effect on [his or her] ability to defend against the charges” (People v Sloan, 79 NY2d 386, 392). For example, we have required the defendant’s presence at Sandoval hearings (People v Dokes, 79 NY2d 656), the voir dire of prospective jurors (People v Sloan, supra) and a hearing on a motion to suppress (People v Anderson, 16 NY2d 282). In such situations, the defendant may possess unique factual knowledge necessary to refute offers of proof by the People, or may assist counsel in evaluating and acting upon events which unfold during the course of the proceeding. By contrast, we have held the defendant’s presence is not required where counsel presses legal positions to which the defendant has nothing of value to contribute, such as precharge conferences (People v Velasco, 77 NY2d 469), discussions of the sufficiency of a read back (People v Rodriguez, 76 NY2d 918), or conferences addressing the declaration of a mistrial (People v Ferguson, 67 NY2d 383, 390). We conclude that this ancillary proceeding involving the withdrawal of a motion to controvert prior findings of competency, based upon counsel’s legal judgment that the defense has an insufficient basis to contest them, was a proceeding at which defendant’s presence was not required.

Appellate counsel makes much of the fact that defendant’s trial lawyer — after acknowledging that his expert found defendant competent to proceed — stated that the expert found "some psychological problems, apparently my client may be operating under some delusions”. Under those circumstances, counsel claims, defendant’s presence was required so that the court could observe him and inquire further into his condition. At the time defense counsel moved to withdraw his motion, the court had before it the medical reports of four experts concerning defendant’s condition, as well as counsel’s statement of the latest results of a fifth examination, and the court had recently observed defendant in the courtroom. If the court was satisfied of defendant’s competence to proceed on the basis of this evidence, it was not obliged to hold a hearing or to order defendant produced. Insofar as defense counsel’s statement concerning delusions may have raised additional issues for the court, it had the authority, and the continuing obligation, to address that evidence at any time it believed circumstances warranted a hearing (see, CPL 730.30; People v Gensler, 72 NY2d 239, 244-245; People v Armlin, 37 NY2d 167, 171; People v Bangert, 22 NY2d 799).

In sum, the proceeding before the court involved only an application to withdraw a prior motion to contest. There was no hearing and no significant factual inquiry beyond that which had transpired earlier in the proceedings. Under such circumstances, defendant’s absence did not violate his constitutional or statutory right to be present.

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

Order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    [650 NE2d 851, 626 NYS2d 1004]
    Albany-Plattsburgh United Corporation, Respondent, v John L. Bell, Appellant.
    Argued March 21, 1995;
    decided May 2, 1995

      APPEARANCES OF COUNSEL

      Thom & Gershon, Albany (Robert F. Doran of counsel), for appellant.

      Harvey and Harvey, Harvey & Mumford, Albany (Jack D. Harvey and Jonathan P. Harvey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be modified, without costs, by denying plaintiff’s motion for summary judgment and remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

The part of the controversy before us concentrates on the status of defendant Bell’s shareholder appraisal rights in Norpco Restaurant, Inc. It arises out of the purported merger of Norpco into plaintiff Albany-Plattsburgh United Corporation (APUC).

Appellant Bell was a minority shareholder in two corporations — -Norpco Restaurant, Inc. and Butcher Block of Albany, Inc. The only other shareholder in those corporations, David White, is the current sole shareholder of APUC. White incorporated APUC in early 1992 to facilitate the merger between Norpco and Butcher Block. Under the merger plans, Bell’s interest in each corporation was to be cashed out. The plans were to be submitted to a shareholders’ vote at meetings on March 18, 1992. Notices were sent to the shareholders. As required by Business Corporation Law § 605 (a), each notice included a copy of Business Corporation Law § 623.

On March 13, 1992, Bell sued to block the merger meeting, interposing lack of compliance with a preincorporation agreement. A temporary restraining order precluded any merger vote at the March meetings, and they were adjourned with no new meeting date being fixed. When the temporary injunction was lifted, the adjourned meetings were renoticed and rescheduled for August 3, 1992. Another copy of Business Corporation Law § 623 was not included in the notice this time. The meetings were held, and the merger was approved upon White’s casting his shares in favor and defendant’s casting his shares against. Immediately after the votes were cast, defendant served a notice of election to dissent as to the Norpco matter.

One month later, plaintiff APUC commenced the instant action seeking, among other things, a declaration that Bell lost his appraisal rights with respect to Norpco by failing to assert his demand prior to the vote at the August 3rd meeting (see, Business Corporation Law § 623 [a]). Supreme Court denied both APUC’s motion for summary judgment and Bell’s cross motion to dismiss the complaint. The Appellate Division modified by granting APUC’s motion and declared that defendant-appellant Bell lost his appraisal rights in Norpco shares because he failed to dissent prior to the vote, as required by Business Corporation Law § 623 (202 AD2d 800). The Appellate Division did not address Bell’s contentions regarding the invalidity of the merger itself (id., at 801). This Court granted defendant Bell leave to appeal.

Notably, a third action involving these disputants and these related matters also emerged with respect to Bell’s claim that White misappropriated corporate assets and that, therefore, the merger was void for that reason as well.

We conclude that the order of the Appellate Division should be modified, but not on the merits of the Business Corporation Law § 623 issue, which we do not reach. The validity of the preincorporation agreement must be resolved prior to addressing the legal efficacy of APUC’s actions leading up to and culminating in the Norpco merger vote. The preincorporation aspect is pleaded in Bell’s answer to APUC’s complaint in the instant case. Until the preincorporation issue is addressed, the interrelated merits of the statutory construction issue under Business Corporation Law §623 involving whether Bell lost his appraisal rights in Norpco cannot be resolved. These issues are logically and prudentially inseparable. On remittal of this case, all aspects should be considered to avoid inconsistent results, especially since the parties appear to have made no effort up to now before courts with discretionary power in this respect to consolidate the controversies.

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

Order, insofar as appealed from, modified, etc.


text:
    [650 NE2d 853, 626 NYS2d 1006]
    The People of the State of New York, Respondent, v Calvin D. McCann, Appellant.
    Argued March 30, 1995;
    decided May 2, 1995

      APPEARANCES OF COUNSEL

      Griffith J. Winthrop, Canandaigua, for appellant.

      Donald A. Schneider, District Attorney of Yates County, Penn Yan, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant contends that the Trial Judge in this case should have recused himself from ruling on the validity of a search warrant he issued while sitting as a Town Court Justice, and that the Judge’s failure to recuse constituted reversible error. We disagree. Nothing in Judiciary Law § 14 compels such recusal. The decision is a matter of individual conscience for the court (see, People v Moreno, 70 NY2d 403, 405; see also, People v Liberatore, 79 NY2d 208, 217 [a Judge may entertain a motion to suppress evidence seized pursuant to an eavesdropping warrant he or she has issued]; People v Tambe, 71 NY2d 492, 506 [a Judge issuing a search or eavesdropping warrant may entertain a motion to suppress evidence seized pursuant to it]). We additionally reject defendant’s argument that a rule prohibiting Judges from entertaining motions to suppress evidence seized pursuant to the warrants they have issued is necessary to protect the integrity of trials. "There is no basis to conclude that [Judges who review their own search warrants] fail to give suppression motions anything less than fair and impartial consideration and further review is available by the Appellate Division which possesses the same power in such matters as does the suppression court” (People v Tambe, supra, at 506).

In addition, the trial court properly denied defendant’s motion to suppress evidence seized pursuant to the search warrant. The application for the search warrant contained a detailed signed statement by a codefendant, Charles Burkett, which was itself sufficient to establish probable cause. Both the basis of Burkett’s information and his reliability could be inferred from the statement because Burkett made the statement based on his own observations and involvement with the crime, against his own penal interests, and with the express understanding that making a false written statement was a crime (see, People v Johnson, 66 NY2d 398, 403-404; People v Comforto, 62 NY2d 725; People v Hanlon, 36 NY2d 549). Moreover, there is no evidence in the record to support defendant’s present claim that Burkett’s statement was the product of a search conducted the day before the statement was given. Thus, we need not address the legality of that search.

We have examined defendant’s other claims and find them to be unpreserved, without merit, or beyond the review power of this Court.

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

Order affirmed in a memorandum.


text:
    Nathaniel Abdullah et al., Appellants, v City of New York, Respondent.
    Submitted March 27, 1995;
    decided May 2, 1995
   Motion for leave to appeal, insofar as it is made by Nathaniel Abdullah purportedly on behalf of Garry Williams, dismissed upon the ground that Abdullah is not Williams’ authorized legal representative; motion for leave to appeal otherwise dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Darryl T., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted January 30, 1995;
    decided May 2, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s order denying appellant’s motion to vacate, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Jeanne Graber, Appellant, v LeCesse Brothers Contracting, Inc., Respondent, et al., Defendants. (And Two Similar Actions.)
    Submitted February 21, 1995;
    decided May 2, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order denying plaintiff’s motion to set aside the determination granting defendants’ motions to dismiss the complaint, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of George Jemzura et al., Appellants, v Carl J. Mugglin, as Justice of the Supreme Court, Respondent.
    Submitted March 13, 1995;
    decided May 2, 1995
   Motion for reargument of appellant George Jemzura’s motion for reconsideration of this Court’s December 1, 1994 dismissal order dismissed insofar as made by George Jemzura on behalf of Raymond Jemzura on the ground that George Jemzura is not Raymond’s authorized legal representative; motion for reargument otherwise denied. [See, 84 NY2d 1025.]


text:
    William L. June, Jr., et al., Appellants, v James Laris et al., Respondents. (And a Third-Party Action.)
    Submitted February 27, 1995;
    decided May 2, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying plaintiffs’ motion to amend their complaint, 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, with $100 costs and necessary reproduction disbursements.


text:
    Deborah Martz, Appellant, v Incorporated Village of Valley Stream, Respondent.
    Submitted January 9, 1995;
    decided May 2, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of plaintiff’s cross motion, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Gerald Nelson, Appellant, v Board of Collective Bargaining, City of New York Department of Sanitation, Respondent.
    Submitted February 6, 1995;
    decided May 2, 1995
   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). Motion for poor person relief dismissed as academic.


text:
    [650 NE2d 854, 626 NYS2d 1007]
    The People of the State of New York, Respondent, v Earl Dunn, Appellant.
    Argued March 30, 1995;
    decided May 4, 1995
    APPEARANCES OF COUNSEL

      James D. Lieata, Public Defender of Rockland County, New City (Clare McCue Cincotta, Barbara Blanchard and Lois Cappelletti of counsel), for appellant.

      Kenneth Gribetz, District Attorney of Rockland County, New City (Lisa B. Cohen and Deborah Wolikow Loewenberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of the first degree manslaughter and aggravated sexual abuse in the first degree of a fellow inmate at Rockland Psychiatric Center. Following the assault, he was seized by hospital personnel and transferred to the custody of the State Police. While under guard of a hospital security officer — and, as the lower court found, without any conduct on the part of the officer that was likely to elicit a statement — defendant made certain inculpatory statements that the hearing court ruled spontaneous, and therefore admissible. While defendant argued that subsequent statements were involuntary because defendant’s mental incapacity made it impossible for him to understand the consequences of a Miranda warning, he did not raise either at the suppression hearing or as a ground for objection to the admission of the evidence at trial his present contention on appeal: that as a result of his mental incapacity, he was incapable of uttering his initial, "spontaneous” statement. Although the Appellate Division considered, in the interests of justice, whether defendant’s mental incapacity might render him particularly vulnerable to coercion, that issue is not preserved for us as a question of law.

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

Order affirmed in a memorandum.


text:
    [650 NE2d 855, 626 NYS2d 1008]
    Mary E. Clinger, Respondent, v New York City Transit Authority, Appellant.
    Decided May 4, 1995

      APPEARANCES OF COUNSEL

      Albert C. Cosenza, New York City (Steve S. Efron of counsel), for appellant.

      Fried, Frank, Harris, Shriver & Jacobson, New York City (Anthony E. Satula, Jr., and Jeffrey Schreiber of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion for summary judgment granted, the complaint dismissed and the certified question answered in the negative.

On March 20, 1991, plaintiff was attacked as she walked at rush hour through an isolated and little-used subway tunnel. At the time of this incident, the tunnel was undergoing renovations, and construction materials had been deposited at various locations within the tunnel. Plaintiffs assailant dragged her behind a large metal plate which had been temporarily positioned against the tunnel wall, where she was beaten, raped and robbed. The tunnel had been the site of numerous violent felonies in the year preceding this attack, including two previous rapes, and eight months before the attack the local community board had recommended to defendant Authority that the tunnel be closed. Plaintiff sought to recover damages from defendant Authority, asserting that defendant had been negligent (1) in storing the construction materials in such a way as to create a dangerous condition that permitted her to be assaulted, and (2) in failing to act on the recommendation to close the tunnel, given its extensive history of criminal activity.

Whether the Authority is shielded from liability depends on whether in this instance it acted in a governmental or a proprietary role (see, Weiner v Metropolitan Transp. Auth., 55 NY2d 175). In Miller v State of New York (62 NY2d 506, 511-512) we stated that the dual role of a governmental or quasi-governmental entity creates "a continuum of responsibility” extending from completely proprietary acts of simple maintenance and repair to completely governmental functions, like "the maintenance of general police and fire protection.” Plaintiffs claim, in essence, is that a proprietary act (the location of the metal plate) intersected with a governmental act (the failure either to close the tunnel or to properly police it), to create the conditions under which she was attacked. Defendant’s act was so overwhelmingly governmental in nature, however, as to place the source of its asserted liability well toward the "governmental function” terminus of the Miller continuum (see, Bonner v City of New York, 73 NY2d 930; Rivera v New York City T'r. Auth., 184 AD2d 417). Accordingly, defendant is immune from liability.

Moreover, plaintiffs claim is independently, and fatally, flawed by her inability to establish that the location of the metal plate, rather than the general lack of security in the tunnel, was the proximate cause of her injuries. Two previous rapes, and an incident of sexual abuse, had occurred in the tunnel prior to this attack, all in the absence of any negligently placed construction materials. Plaintiffs claim is so speculative on the issue of causation as to mandate dismissal as a matter of law (see, Matter of Crichlow v New York City TV. Auth., 184 AD2d 395; Khodai v New York City TV. Auth., 176 AD2d 524).

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, defendant’s motion for summary judgment granted, complaint dismissed and certified question answered in the negative, in a memorandum.


text:
    Jack W. Leason, Respondent, v Arthur G. Hageman, Appellant.
    Submitted January 17, 1995;
    decided May 4, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the October 25, 1994 Appellate Division order that affirmed Supreme Court’s judgment dated September 27, 1993, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the October 25, 1994 Appellate Division order and the December 15, 1994 Appellate Division order do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Manuel Carmona, Appellant.
    Decided May 4, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    Daniel A. Yalango, an Incompetent, by Alan P. Goldberg, the Committee of His Property, Appellant, et al., Plaintiff, v A. John Popp et al., Defendants; O’Connell and Aronowitz, P. C., Respondent.
    Submitted January 17, 1995;
    decided May 4, 1995
   Motion by respondent O’Connell and Aronowitz, P. C. for clarification of this Court’s opinion and for amendment of remittitur denied. [See, 84 NY2d 601.] This Court’s opinion established that respondent was required to return all moneys retained in excess of the statutory fee to appellant. The issue of interest accrual was never addressed in the parties’ submissions to this Court, and is not appropriately raised for the first time on this motion.