text:
    [665 NE2d 177, 642 NYS2d 607]
    The People of the State of New York, Appellant, v Demetrius Goss, Respondent. The People of the State of New York, Appellant, v Woodson Avery, Curtis Gaymon and Derek Cole, Respondents.
    Argued February 13, 1996;
    decided April 4, 1996

      POINTS OF COUNSEL

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Raymond C. Herman and John J. DeFranks of counsel), for appellant in the first and second above-entitled actions.
    The prosecution of defendant was timely pursuant to CPL 30.30. (People v England, 84 NY2d 1; People v Stiles, 70 NY2d 765; People v Muhanimac, 181 AD2d 464, 79 NY2d 1052; People v Kendzia, 64 NY2d 331; People v Roberts, 176 AD2d 1200, 79 NY2d 831; People v Correa, 77 NY2d 930; People v Cortes, 80 NY2d 201; People v Tavarez, 147 AD2d 355, 73 NY2d 1022; People v Smith, 82 NY2d 676; People v Corley, 175 AD2d 613.)

      Vincent F. Gugino, Buffalo, Linda S. Reynolds, Barbara J. Davies and Kristin M. Preve for respondent in the first above-entitled action.
    The court below’s upholding of the dismissal of the indictment pursuant to CPL 30.30 was proper. (People v England, 84 NY2d 1; People v Drake, 205 AD2d 996; People v Battaglia, 187 AD2d 808; People v Cortes, 80 NY2d 201; People v Correa, 77 NY2d 930; People v Collins, 82 NY2d 177; People v Liotta, 79 NY2d 841; People v McKenna, 76 NY2d 59; People v Jones, 66 NY2d 529; People v Myers, 171 AD2d 148.)

      Kevin J. Bauer, Buffalo, and Elmore and Givens {John V. Elmore of counsel), for Woodson Avery, respondent in the second above-entitled action.
    The People’s prearraignment statement of readiness, made prior to the expiration of the time provided by CPL 30.30, was not valid and effective because the arraignment was had, as scheduled by the People, at a date subsequent to the expiration of the statutory time period. (People v Kendzia, 64 NY2d 331; People v England, 84 NY2d 1; People v Olivani, 167 AD2d 949; People v Wilson, 86 NY2d 753; People v Smith, 82 NY2d 676; People v Correa, 77 NY2d 930; People v Avery, 214 AD2d 1018; People v Goss, 214 AD2d 1007; People v Ladson, 85 NY2d 926; People v Luperon, 85 NY2d 71.)

      Vincent F. Gugino, Buffalo, Linda S. Reynolds and Barbara J. Davies for Curtis Gaymon and Derek Cole, respondents in the second above-entitled action.
    The indictment was properly dismissed pursuant to CPL 30.30; the order of court below should, therefore, be affirmed. (People v England, 84 NY2d 1; People v Liotta, 79 NY2d 841; People v Collins, 82 NY2d 177; People v Smith, 82 NY2d 676; People v Cortes, 80 NY2d 201; People v Kendzia, 64 NY2d 331; People v Battaglia, 187 AD2d 808; People v Marsh, 127 AD2d 945; People v Correa, 77 NY2d 930.)
   OPINION OF THE COURT

Chief Judge Kaye.

Can the People validly declare readiness for trial pursuant to CPL 30.30 prior to the defendant’s arraignment? In People v England (84 NY2d 1), we deemed a prearraignment statement of readiness ineffective where, solely because of the People’s own conduct, it was impossible to arraign the defendant within the statutory period. England, however, does not hold that the People can never be ready to proceed to trial prior to arraignment. Thus, where it was possible for the defendant to be arraigned — and the trial to proceed — within the six-month period, a prearraignment statement of readiness was valid.

I.

People v Goss

Defendant Goss was charged with first degree assault in a felony complaint filed with the Buffalo City Court on July 19, 1993. On January 14, 1994, an indictment charging defendant with second degree assault and third degree criminal possession of a weapon was filed in Erie County Court, and the People announced their readiness for trial. On that same date, the People sent the defendant a letter advising him of their readiness and that his arraignment date had been scheduled for January 24, 1994. The defendant failed to appear for the scheduled arraignment, and a warrant issued. Defendant was subsequently apprehended and arraigned on February 7, 1994. The People reiterated their readiness on both January 24 and February 7, 1994.

Defendant then moved to dismiss the indictment on the ground that CPL 30.30 had been violated. Relying on People v England (84 NY2d 1, supra), he argued that the People could not validly announce readiness until arraignment and that both the scheduled and actual arraignment dates were more than six months after the commencement of the criminal action. The People claimed no exclusions for this 184-day period. Rather, they distinguished England, arguing that there the prosecution did not declare ready until the last day of the statutory period, whereas here they had stated their readiness on January 14, 1994, five days before the expiration of the six-month period on January 19, 1994.

Following a hearing, the trial court granted defendant’s motion and dismissed the indictment, construing England to hold that the People cannot effectively announce readiness before the defendant has been arraigned. The Appellate Division affirmed, with two Justices dissenting.

People v Avery, Gaymon and Cole

On October 19, 1993, a felony complaint was filed in Buffalo City Court charging all three defendants with third and fifth degree criminal possession of a controlled substance and related offenses. The Erie County Grand Jury returned an indictment against the defendants charging defendants Gaymon and Cole with seventh degree criminal possession of a controlled substance and defendant Avery with various drug and weapon possession offenses. On April 14, 1994, the People filed this indictment in Erie County Supreme Court, declared readiness for trial and sent letters to each defendant informing them of their readiness and that arraignment had been scheduled for April 22, 1994. Defendants Avery and Cole were arraigned on the set date. Defendant Gaymon, however, did not appear and was arraigned on April 25, 1994. At each arraignment, the prosecutor noted that the People were ready to proceed.

The defendants each moved to dismiss the indictment on statutory speedy trial grounds. They maintained that the People’s readiness declaration on April 14,1994 was ineffective because the defendants had not yet been arraigned and that the arraignment dates fell outside the statutory six-month period, which ended on April 19, 1994. Defendant Avery further alleged that it was the People’s responsibility to schedule arraignment and that they had in fact set the April 22, 1994 arraignment date. The People responded to each motion by simply arguing that their statement of readiness on April 14, 1994 was valid, since it was made five days before the expiration of the statutory period and the defendants therefore could have been arraigned before the six months lapsed.

The trial court granted the defendants’ motions and dismissed the indictment in a single decision. Finding that it was the People’s responsibility to arrange for the defendants’ arraignment, it concluded that they should be charged with the period of delay between their statement of readiness and arraignment, citing England. The Appellate Division, with two dissenters, affirmed.

II.

Under CPL 30.30, the People must be ready for trial within six months of the commencement of the criminal action in which a felony is charged (see, CPL 30.30 [1] [a]). In England, we concluded that a declaration of readiness made within the six-month period but prior to arraignment was invalid, where the People had inexplicably waited until the last day of the statutory period to secure an indictment. Because CPL 210.10 (2) requires that an indicted defendant be given at least two days notice of the arraignment date, the People had made "arraignment within the statutory period impossible,” which in turn made trial within the statutory period impossible (id., at 5). Consequently, "the People’s statement of readiness for trial * * * was meaningless” (id.).

Our conclusion in England hinged on the fact that the inability to arraign the defendant and thus proceed to trial within the requisite six months was "wholly as a result of [the People’s] own conduct” (id., at 3). Notably, prior to England, we had recognized that "[d]clays between indictment and the arraignment * * * do not prevent the People from being ready for trial” (People v Correa, 77 NY2d 930, 931; see also, People v Cortes, 80 NY2d 201, 213), and England did not alter the principle that the People can be ready to proceed to trial prior to the defendant’s arraignment. England, rather, carved out a single exception — a declaration of readiness prior to arraignment is illusory in the "unusual circumstances” where arraignment within the statutory time period is impossible and that impossibility is attributable solely to the People (People v England, 84 NY2d at 3).

The People argue in each of these cases that, because it was possible for the defendants to be arraigned within the six-month periods, their prearraignment statements of readiness were valid. We agree. In defendant Goss’ case, the six-month period ended on January 19, 1994. The People filed an indictment and announced their readiness on January 14, 1994, five days before the speedy trial clock expired. As for defendants Avery, Gaymon and Cole, their six-month period lapsed on April 19, 1994. The People filed an indictment and declared readiness for trial on April 14, 1994, also five days prior to the end of the six months. All of the defendants thus could have been arraigned within the statutory period. England therefore does not apply, and the prearraignment declarations of readiness were valid.

This, however, is not the end of the inquiry. The defendants argue that the People were responsible for scheduling their arraignments outside of the six-month period and that they should therefore be charged with that period of time. Even when the People have validly declared their readiness, they will be charged with periods of "postreadiness” delay where "it is the People’s dereliction that is preventing the defendant’s trial from going forward” (People v McKenna, 76 NY2d 59, 64). Thus, we have charged the People with their delay in producing Grand Jury minutes necessary for judicial resolution of a pretrial motion (see, id.). By contrast, postreadiness delay attributable to the court is not charged to the People (see, People v Giordano, 56 NY2d 524, 525 [postreadiness court congestion]).

Arraigning a defendant upon indictment is exclusively a court function. Thus, CPL 210.10 requires the court to arraign an indicted defendant {see also, CPL 210.15). Where a local criminal court has already acquired control of the defendant prior to the filing of the indictment, that section further directs the court to notify the defendant of the arraignment date and to secure the defendant’s appearance on that date (CPL 210.10 [1], [2]). Obviously the court must set its own calendar, and the statute thus contemplates the court scheduling the arraignment, notifying the defendant, and securing the defendant’s attendance. Only where the filing of the indictment constituted the commencement of the criminal action does the statute permit the court to delegate the latter two functions to the People (see, CPL 210.10 [3]).

Where, as in these cases, a felony complaint was previously filed in local criminal court, the Criminal Procedure Law imposes a nondelegable duty on the trial court to arraign the defendant. Neither local practice violative of CPL 210.10 (2) nor consent of the parties can divest the court of this responsibility. Consequently, any delay in arraignment is attributable solely to the court and not charged to the prosecution (see, People v Smith, 82 NY2d 676, 678; People v Giordano, 56 NY2d at 525).

The postreadiness delay in arraigning these defendants, then, should not be included in calculating the total period of prosecutorial delay. Because in each case the People were ready for trial within the statutory period, it was error to dismiss the indictments.

Accordingly, in each case the order of the Appellate Division should be reversed and the indictment reinstated.

Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.

In each case: Order reversed and defendant’s motion to dismiss the indictment denied.


source: Caselaw Access Project

author: Titone, J.

license: Public Domain

text:
    [660 NE2d 1134, 637 NYS2d 355]
    The People of the State of New York, Respondent, v Nathaniel Fields, Appellant.
    Argued October 18,1995;
    decided November 29, 1995

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender of Monroe County, Rochester (Stephen J. Bird of counsel), for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Mark W. Pedersen of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At the trial of defendant on charges of rape (Penal Law § 130.35) and sexual misconduct (Penal Law § 130.20), the victim testified that on April 25, 1990, she and defendant had been smoking cocaine and he coaxed her back to her apartment where he raped and sodomized her. At around 3:30 a.m., in the midst of the crime, the victim told defendant that she was expecting a visit from her friend Kathleen Corey and had to telephone Corey to head her off, and she then placed a call to Corey telling her not to come to the apartment. Corey, who had met the victim when they both volunteered at a rape crisis center, testified that she in fact had no plans to visit her friend but discerned from the way she spoke on the telephone that she was in trouble. Corey therefore phoned the police, who went directly to the apartment. At the apartment, according to the testimony of a police officer, the victim told the officer that defendant, who was there with her, had raped her. Defendant did not testify at trial but argued consent as a defense.

In charging the jury, the Trial Judge provided an extensive instruction regarding the presumption of innocence, the burden of proof and the definition of reasonable doubt. After explaining that the indictment did not constitute evidence, the court stated: "If the evidence in the case reasonably permits a conclusion of either guilt or innocence, you should adopt a conclusion of innocence.” Defendant objected to this last sentence.

Defendant was convicted of both rape in the first degree and sexual misconduct. On appeal defendant raised two issues: first, that on relevancy grounds the trial court erred in admitting certain testimony of Corey and second, that the objected-to sentence in the charge required reversal. The Appellate Division affirmed the conviction, concluding that it was error (though harmless) to admit the evidence and that the charge considered as a whole was not erroneous. We now affirm, though disagreeing with the Appellate Division regarding admission of Corey’s testimony.

After Corey testified that she had met the victim when they both volunteered at a rape crisis center, over defendant’s objection Corey described her duties at the center as being "in charge of one of the support groups for rape victims. I did individual counseling with some of the victims, sometimes going to the hospital with them, attending legal procedures with them, giving them kind of moral support.” Testimony about Corey’s experience at the rape crisis center was plainly relevant both as to why Corey phoned the police and as to the victim’s state of mind at the time of the crime.

Turning to the jury instruction, we do not consider the challenged sentence alone and in a vacuum but instead must read the instruction as a whole to determine if it was likely to confuse the jury as to the proper burden of proof (People v Mosley, 67 NY2d 985, 987; People v Canty, 60 NY2d 830, 831-832). We agree with the Appellate Division that the objected-to sentence, alone and in a vacuum, was improper and should not have been used because, in isolation, a juror might interpret it to authorize a guilty verdict even if the People did not establish the defendant’s guilt beyond a reasonable doubt. The objected-to sentence, however, does not mandate such an inference by the jury, and here the court’s extensive, accurate instructions on the burden of proof and the concept of reasonable doubt safeguarded against such an impermissible inference. Therefore, when considered as a whole, the charge sufficiently conveyed the correct standard.

Titone, J.

(dissenting). I would reverse the judgment and order a new trial because the court’s reasonable doubt charge incorporated language that diluted the People’s burden of proof and, even when read in conjunction with the remainder of the charge, created a substantial risk of confusion.

We are unanimous in the conclusion that the portion of the reasonable doubt charge of which defendant complains was improper. As is implicit in the majority’s holding, the disputed instruction conveys the false impression that the People may prevail if the evidence weighs slightly more heavily in their favor (see, e.g., People v Weatherspoon, 155 AD2d 888; People v Hartle, 151 AD2d 1003; People v Celestin, 150 AD2d 385). Further, the use of the term "innocent” as a substitute for the term "not guilty” is offensive because it suggests that the defense must make some showing and cannot rely solely on the presumption of innocence.

Despite this serious flaw in the court’s charge, the majority concludes that reversal is not required because the charge "as a whole” conveyed the correct standard of proof. In my view, that conclusion does not withstand analysis on this record.

It is true as the majority notes that a reviewing court should not consider a single instruction "alone and in a vacuum” (majority mem, at 823), but that observation does not, standing by itself, resolve the specific issue presented here. No instruction dealing with the "reasonable doubt” standard is ever issued "in a vacuum”; such instructions — whether accurate or misleading — are almost always issued as part of a series of sentences describing what constitutes reasonable doubt. In most cases in which a portion of the reasonable doubt charge is challenged, the trial court has given the boilerplate language contained in the Pattern Jury Instructions and then has added some improvised language of its own. The fact that the standard, previously approved reasonable doubt instruction has also been given cannot alone be sufficient to neutralize an otherwise improper or misleading instruction on the concept. To the contrary, each situation should be examined on its own facts to ascertain whether the erroneous instruction created a risk that the jury would be misled.

In making this assessment, the reviewing court must be sensitive to the fact that reasonable doubt is "a nebulous concept not susceptible of precise definition” (People v Antommarchi, 80 NY2d 247, 251). Consequently, it is necessarily explained in general or abstract terms that some may find difficult to apply (id.). Furthermore, because the standard plays such a vital and, indeed, "indispensable” role in our system of criminal justice (see, In re Winship, 397 US 358, 363), reviewing courts should scrutinize a potentially misleading reasonable doubt charge with particular care.

Here, the trial court first instructed the jury on the general concept of reasonable doubt, defining it as a doubt arising from the evidence or lack thereof for which some reason can be given. It then stated, in somewhat circular fashion, that "[t]he doubt must be one that a reasonable person, acting in a matter such as this, would be likely to have.” The court then went on to enumerate what is not a "reasonable doubt” and explained that "[i]f the People have not proved the [djefendant’s guilt beyond a reasonable doubt, then you should find him not guilty.” The presumption of innocence was correctly charged, and the court reiterated the People’s burden of proving the defendant’s guilt beyond a reasonable doubt. The very last point that the jury heard on the reasonable doubt standard was the instruction which, as we all agree, was improper.

Since the offending instruction came at the end of the reasonable doubt charge, there is a very real danger that the jurors regarded it as the "last word” and the most definitive explanation of the concept. Moreover, there was a substantial risk that the erroneous charge had a disproportionate influence on the jurors’ understanding of reasonable doubt, since it was more vivid than much of the hazy and abstract definition that the court gave. Significantly, most of the remaining charge on reasonable doubt explained the concept by using one or more of the words "reason”, "reasonable” or "doubt” and by explaining what a "reasonable doubt” is not. A juror struggling with the "nebulous” concept of reasonable doubt might well have grasped onto the court’s statement about evenly divided evidence as the most readily understandable explanation of the concept — and the only one that was not self-referential — and might then have applied it without further thought to the other, murkier portions of the court’s reasonable doubt charge.

Significantly, the unobjectionable part of the trial court’s reasonable doubt charge contained no language which contradicted the impermissible inference implicit in the objected-to charge, i.e., that if the preponderance of the evidence favors the People, a guilty verdict is the proper result. Thus, there was no reason for the jurors even to suspect that the foregoing is an erroneous standard (cf., People v Warren, 76 NY2d 773, 775).

For all of the foregoing reasons, I disagree with the majority’s conclusion that the charge here unequivocally conveyed the proper legal standard and that there is no serious risk that the jury was misled by the burden-diluting part of the court’s reasonable doubt charge. Because an error in the reasonable doubt charge vitiates the reliability of the verdict as a whole (see, Sullivan v Louisiana, 508 US 275, 278-281), I would reverse the judgment of conviction and order a new trial.

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Judge Titone dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.


text:
    [661 NE2d 159, 637 NYS2d 687]
    Edward Talvy, Appellant, v American Red Cross in Greater New York et al., Respondents.
    Argued October 25,1995;
    decided November 29, 1995

      APPEARANCES OF COUNSEL

      Wisehart & Koch, New York City (Arthur M. Wisehart of counsel), for appellant.

      Weil, Gotshal & Manges, New York City (Mark A. Jacoby, Lawrence J. Baer and Holly A. Zinn of counsel), for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (205 AD2d 143).

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


text:
    [660 NE2d 1137, 637 NYS2d 358]
    The People of the State of New York, Appellant-Respondent, v Verlon Tuck, Respondent-Appellant.
    Argued October 25,1995;
    decided November 29, 1995

      APPEARANCES OF COUNSEL

      Kevin M. Dillon, District Attorney of Erie County, Buffalo (Donna A. Milling and John J. DeFranks of counsel), for appellant-respondent.

      Vincent F. Gugino, Buffalo, Linda S. Reynolds and Barbara J. Davies for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order óf the Appellate Division, insofar as appealed from by the People, should be reversed and the case remitted to that Court in accordance with CPL 470.25 (2) (d) and 470.40 (2) (b); insofar as the order is cross-appealed by defendant, it should be affirmed.

While in the home of Antoinette Rhodes on an evening in November 1992, defendant placed a loaded, operable handgun to the head of Samuel Radford, who at the time was engaged in a physical altercation with another individual. Defendant discharged the weapon, inflicting a serious head wound to Rad-ford.

After a nonjury trial, defendant was convicted of reckless endangerment in the first degree (see, Penal Law § 120.25). By guilty plea, defendant was also convicted of assault in the second degree for a separate incident occurring on another date. The Appellate Division modified and vacated the reckless endangerment count. A Judge of this Court granted leave to appeal to the People and to the defendant from the respective aggrieving portions of the Appellate Division order.

On the People’s appeal, we reinstate the reckless endangerment count because the proof at trial was legally sufficient to support defendant’s conviction under People v Chrysler (85 NY2d 413). In that case, this Court held that placing a handgun to the temple of a victim and cocking the weapon "created a grave risk of death under circumstances evincing a depraved mind” under Penal Law § 120.25 (id,., at 416). Defendant’s various arguments in an effort to distinguish People v Chrysler are unavailing.

The defendant’s cross appeal dealing with the voluntariness of his guilty plea as to the other criminal conduct and conviction lacks merit and the Appellate Division order should be affirmed in that respect.

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

Order modified by reinstating defendant’s conviction of reckless endangerment in the first degree and remitting to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    In the Matter of Doris Duke, Deceased. Bernard Lafferty et al., as Preliminary Coexecutors, Appellants. Alexander D. Forger et al., as Temporary Administrators, et al., Respondents.
    Submitted November 20,1995;
    decided November 29, 1995
   Motion to dismiss appeal denied. Motion to strike appellants’ joint appendix denied.


text:
    Joseph Marinelli et al., Appellants, v Anthony M. Dattoma, Respondent.
    Submitted August 28,1995;
    decided November 29, 1995
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    In the Matter of 332 East 4th St. Associates, Respondent, v Carl Robertson, Also Known as Carl Milsap, Appellant, and Enobia Barnes et al., Respondents.
    Submitted September 5,1995;
    decided November 29, 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 the nonfinal 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).


text:
    [661 NE2d 151, 637 NYS2d 679]
    Craig R. Robbins, Respondent, v County of Broome, Appellant.
    Argued October 25,1995;
    decided November 30, 1995

      APPEARANCES OF COUNSEL

      Joseph James Slocum, County Attorney of Broome County, Binghamton (Barbara M. Westbrook and Robert G. Behnke of counsel), for appellant.

      Hinman, Howard & Kattell, Binghamton (John G. Dowd and Albert J. Millus, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

From 1976 until 1989, plaintiff Craig Robbins was employed at the Broome County Airport, the last five of those years under the job description title of Operations Officer. His duties related largely to maintenance and safety, including removing snow from the airport runways, monitoring the parking in front of the terminals, and inspecting the runways and other airport facilities to insure compliance with applicable codes and regulations. Of particular relevance here is that, as part of his employment responsibilities, Robbins was a member of the airport’s Crash Fire Rescue (CFR) unit charged with the duty of extinguishing the occasional airplane and fuel truck fire that occurred at the airport. In addition to being on call to respond to such fires, Robbins’ other responsibilities in the CFR unit included maintenance of the fire truck and training of personnel.

In late 1989, Robbins suffered a heart attack which the parties conceded to be work-related. Robbins applied for firefighters’ benefits under General Municipal Law § 207-a which authorizes payment of salary, medical and hospital expenses for job-related injuries suffered by individuals employed by either an organized fire company or a fire department. The County denied Robbins’ request and he filed this lawsuit in April 1990.

Initially, the trial court granted the County’s motion to dismiss on the ground that Robbins was not eligible for benefits under the statute. The Appellate Division, however, reversed (186 AD2d 973) and Robbins’ case went to trial with the jury rendering a verdict in his favor. The trial court instructed the jury that the sole issue was whether "plaintiff [was] a * * * member of an organized fire company.” On appeal for the second time, the Appellate Division affirmed, concluding that: "it [cannot] be said that the jury’s verdict * * * was against the weight of the evidence” (209 AD2d 764). Having granted leave to appeal, we now reverse.

General Municipal Law § 207-a provides that:

"Any paid fireman which term as used in this section shall mean any paid officer or member of an organized fire company or fire department of a city * * * or town, or village or fire district, who is injured in the performance of his duties * * * shall be paid * * * the full amount of his regular salary or wages * * * and * * * for all medical treatment and hospital care.” (General Municipal Law § 207-a [1] [emphasis added].)

In that Robbins concedes that he was not an officer or member of a "fire department” (compare, Matter of Syracuse Hancock Professional Firefighters Assn. v Newman, 110 AD2d 256), the discrete issue here is whether he was nevertheless a paid employee of a "fire company” as that term is used in the statute.

In advocating his eligibility for benefits, Robbins, like the Appellate Division, relies on the colloquial meaning of the word "company” as a "group of people” or "association.” According to Robbins, since the word "company” is defined broadly in the dictionary, its use in General Municipal Law § 207-a must be interpreted to denote any group of people organized to fight fires, which is in keeping with the policy that as a remedial statute General Municipal Law § 207-a must be liberally construed. Under Robbins’ construction, as an employee of the Broome County Airport’s CFR, he would be entitled to firefighters’ benefits under the statute.

Even assuming that the airport fire and rescue squad in which Robbins served could be considered a "fire company,” plaintiffs argument overlooks the specific definition of the term already provided in the statute. General Municipal Law § 100, for example, states that the term fire company, "[a]s used in this article,” means: (1) a "volunteer fire company of a county, city, town, village or fire district fire department” (2) a "[not-for-profit] fire corporation * * * under the general control of, or recognized as a fire corporation by the governing board of a city, town, village or fire district,” or (3) "a fire corporation * * * incorporated under * * * any general or special law * * * under the general control of, or recognized as a fire corporation by the governing board of a city, town, village or fire district” (General Municipal Law § 100 [2] [a]-[c]; see also, General Municipal Law § 204-a [1] [a] [same]; Volunteer Firefighters’ Benefit Law § 3 [2] [a]-[c] [same]).

The Broome County Airport’s CFR does not fall within any of these statutory categories as it was not organized by a county, city, town, village or fire district department (see, County Law § 225-a [5] [county may contract with incorporated fire company]; General City Law § 16-a [city fire company]; Town Law §§ 176-b, 184 [fire district and town fire companies]; Village Law § 10-1006 [village fire company]), nor was it incorporated as a "Type B” not-for-profit fire corporation recognized by the local entity responsible for fire prevention (see, Not-For-Profit Corporation Law § 1402), nor was it incorporated under any other section of the law. "In the absence of some clear indication from the Legislature signaling a departure from the meaning [the statute] has * * * attributed to the phrase” (Matter of Mashnouk v Miles, 55 NY2d 80, 88), we hold that plaintiff was not an officer or member of a fire company entitled to benefits under the statute.

Finally, in addition to the erroneous interpretation of section 207-a, we note that the courts below further erred by submitting the question whether plaintiff was a member of a fire company as a question of fact to the jury. That issue of statutory interpretation should instead have been decided by the court as a matter of law.

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

Order reversed, etc.


text:
    [661 NE2d 996, 638 NYS2d 423]
    In the Matter of Lester C. Hamel.
    Decided November 30, 1995
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Lester C. Hamel is suspended, with pay, effective immediately, from his office of Justice of the Champlain Town Court, Clinton County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith and Levine. Taking no part: Judge Ciparick.


text:
    [661 NE2d 153, 637 NYS2d 681]
    The People of the State of New York, Appellant, v Mike Till, Respondent.
    Argued October 19,1995;
    decided November 30, 1995

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Désirée Dhir Sheridan, Joseph N. Ferdenzi and Susan L. Valle of counsel), for appellant.

      David Samel, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to that Court in accordance with CPL 470.25 (2) (d); 470.40 (2) (b).

Defendant was convicted, following a jury trial, of criminal possession of a loaded weapon (Penal Law § 265.03). The guilty count factually evolved out of an uncharged armed street robbery that allegedly occurred around midnight in The Bronx. After the robbery, during the attempted escape that was proximate in time and location, defendant fired his weapon at an off-duty New York City Housing Authority police officer, who had observed facts that prompted him to intervene and pursue defendant.

The Appellate Division reversed the conviction on the law as to the weapons count, the only one on which the jury rendered a guilty verdict. The jury acquitted defendant of attempted murder and attempted assault. The majority nevertheless concluded as a matter of law both that the evidence was not relevant and that the testimony regarding the antecedent uncharged crime of robbery unduly and prejudicially outweighed any probative value of such evidence (201 AD2d 43). The dissenting Justice at the Appellate Division (201 AD2d, at 48) granted leave to appeal. We now reverse and remit.

A trial court may admit into evidence uncharged crimes when the evidence is relevant to a pertinent issue in the case other than a defendant’s criminal propensity to commit the crime charged. Even then, such evidence is admissible only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant (see, People v Chase, 85 NY2d 493, 502; People v Carter, 77 NY2d 95, 107; People v Hudy, 73 NY2d 40, 55; People v Alvino, 71 NY2d 233, 241). People v Molineux (168 NY 264, 293) prescribes the litany of exceptions that allow uncharged crimes into evidence, under exceptional circumstances, with limiting cautionary instructions. As a corollary, such evidence may be allowed when, as here, it bears on the motive and state of mind in relation to an avoidance of apprehension during immediate flight from a crime and is found to be "needed as background material” (People v Montanez, 41 NY2d 53, 58) or to "complete the narrative of the episode” (People v Gines, 36 NY2d 932, 932-933; see also, People v Morse, 196 NY 306, 310; People v Governale, 193 NY 581, 587).

In this case, the trial court cannot be said to have erred as a matter of law in admitting the background explanation for its expressly instructed limited purpose. The evidence of the uncharged robbery established a motive for defendant’s attempt to kill or assault the off-duty police officer to avoid capture and punishment. Thus, for the jury to have a thorough appreciation of the interwoven events leading to defendant’s culminating criminal conduct and of the competing theories of what happened and why, the closely antecedent, uncharged robbery in this case was relevant and material.

Our disagreement with the Appellate Division’s ruling focuses essentially on its conclusion that undue prejudice occurred as a matter of law. In that connection, however, the Appellate Division misapplied the threshold law question as to whether the evidence of the uncharged crime may be admissible under the circumstances as were presented here. The Appellate Division majority’s analysis falls short also because it disregards the trial court’s explicit emphasis twice, by cautionary instructions to the jury, that the uncharged robbery testimony was provided to it solely "for the purpose of background information” and "for the continuity of the events” and was not to be considered as proof of the crimes at issue. In conjunction with the relevance to motive and state of mind, the evidentiary allowance cannot be said to be error as a matter of law in this case. Notably, the jury rendered a discerning and discrete verdict finding defendant guilty only on the illegal weapons possession count and acquitting him on the others.

The weapons conviction should be reinstated and the case remitted to the Appellate Division for that Court to complete its intermediate appellate review functions, as statutorily required.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa and Levine concur; Judges Smith and Ciparick dissent and vote to affirm for the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division (201 AD2d 43).

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


text:
    [661 NE2d 155, 637 NYS2d 683]
    The People of the State of New York, Respondent, v Louis Glover, Appellant.
    Argued October 17,1995;
    decided November 30, 1995
    APPEARANCES OF COUNSEL

      Isaac D. Hurwitz, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Stanley R. Kaplan and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was brought by police to the station house for questioning regarding a murder investigation. There, he talked freely with police until they confronted him with a bloodstained T-shirt that was recovered outside of his apartment. At that point, defendant informed the police that he wanted to call a friend to get a lawyer. The officer asked the number, and defendant said to call his mother instead. Then, as the officer was about to dial the number, defendant said: "Hang up the telephone. I do not want a lawyer. I’ll talk to you.” Between 30 and 60 seconds passed between the time that defendant first said that he wanted to call a friend and the time when he said he did not want a lawyer. Defendant made several incriminating statements after he said he did not want a lawyer, some spontaneous and others in response to police questioning.

Defendant argues that he is entitled to a new trial because the statements he made to police after allegedly invoking his right to counsel, but before he retained counsel, were admitted into evidence in violation of our decisions interpreting the scope of the right to counsel guarantee of the New York Constitution (art I, § 6) (see, People v Esposito, 68 NY2d 961; People v Cunningham, 49 NY2d 203). We disagree.

When a defendant in custody unequivocally requests the assistance of counsel, any purported waiver of that right obtained in the absence of counsel is ineffective (see, People v Esposito, supra; People v Cunningham, supra). However, when the defendant’s request is not unequivocal, the right to counsel does not attach (see, People v Hicks, 69 NY2d 969, 970; People v Rowell, 59 NY2d 727, 730). Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant (see, People v Johnson, 79 AD2d 201, 204 [Callahan, J., dissenting], revd for reasons stated in dissenting opn below 55 NY2d 931; see also, People v Esposito, supra, at 962).

There is evidence in the record that as part of the same statement in which defendant said he wanted to call a friend to get a lawyer, defendant clearly and unambiguously negated those very words. Thus, the undisturbed finding of the lower courts is supported by evidence in the record and is not reviewable by this Court. As defendant did not unequivocally inform the police that he wanted counsel, defendant’s statements were admissible in evidence.

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

Order affirmed in a memorandum.


text:
    [661 NE2d 156, 637 NYS2d 684]
    The People of the State of New York, Respondent, v Andrew Figgins, Appellant.
    Argued October 24, 1995;
    decided November 30, 1995
    APPEARANCES OF COUNSEL

      Howard K. Broder, Rochester, for appellant.

      Howard R. Relin, District Attorney of Monroe County, Rochester (Alan Cruikshank of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Supreme Court promised defendant that it would sentence him to 21h to 5 years and temporarily release him on his own recognizance in exchange for his guilty plea to attempted burglary in the second degree, provided that he (1) return to court for sentencing in six weeks, (2) not get rearrested during that six-week period while the Probation Department conducted its presentence investigation, and (3) cooperate with the Probation Department in that investigation. Supreme Court advised defendant that in the event any one of these three conditions was violated, the court would not be bound by the plea agreement and could sentence him to 71h to 15 years. Defendant failed to return to court on the scheduled sentencing date and a bench warrant was issued. When defendant was brought into court on the warrant, the People informed the court that defendant had been arrested on two felonies during his presentence release. Supreme Court ordered defendant held without bail pending sentencing. Defendant subsequently moved to withdraw his guilty plea. Supreme Court denied the motion, noting that the colloquy regarding the plea agreement was clear. Supreme Court imposed an enhanced sentence of 31/2 to 7 years.

Defendant’s failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence (see, People v Avery, 85 NY2d 503, 507; People v Seaberg, 74 NY2d 1, 7; People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122). Under these facts, there was no need for Supreme Court to afford defendant an opportunity to challenge the foundation of his postplea arrests in accordance with People v Outley (80 NY2d 702, 713, habeas corpus denied sub nom. Maietta v Irvin, 1995 WL 505558 [SD NY]), based on the independent, legally valid basis for the enhanced sentence.

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

Order affirmed in a memorandum.


text:
    Great Neck Plaza, L.P., as Substituted for The Bank of New York, Respondent, v North Shore Mart, Appellant, et al., Defendants. Thomas P. Puccio, as Executor of the Estate of Saul Birnbaum, Deceased, Nonparty Appellant.
    Submitted October 16,1995;
    decided November 30, 1995
   Motion for leave to appeal, insofar as made on behalf of North Shore Mart, dismissed upon the ground that that movant is not a party aggrieved (CPLR 5511); motion for leave to appeal, insofar as made on behalf of Thomas P. Puccio, dismissed upon the ground that as to that movant, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    David J. Meraner et al., Appellants, v Albany Medical Center et al., Respondents.
    Submitted October 2,1995;
    decided November 30, 1995
   Motion for leave to appeal dismissed upon the ground that this Court does not have jurisdiction to entertain the motion (CPLR 5602 [a] [1] [ii]).


text:
    Arthur T. Mott et al., Appellants, v Incorporated Village of Hempstead, Respondent.
    Submitted September 11,1995;
    decided November 30, 1995
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 costs of motion upon the ground that it was not timely taken (see, CPLR 5513 [a]). Appellants failed to timely file the notice of appeal in the office where the judgment or order of the court of original instance is entered (see, CPLR 5515 [1]).


text:
    The People of the State of New York, Appellant, v Paul Andine, Also Known as Scootermore, Also Known as Prince Smith, Respondent.
    Decided November 30, 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:
    The People of the State of New York, Respondent, v Romulo Gil, Appellant. The People of the State of New York, Respondent, v Jose Pena, Appellant.
    Decided November 30, 1995
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeals 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:
    In the Matter of Catherine Stone, Respondent, v Richard Stone, Appellant.
    Submitted September 18, 1995;
    decided November 30, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s April 16, 1993 order, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [661 NE2d 1378, 638 NYS2d 597]
    Carla C. S’Dao, Appellant, v National Grange Mutual Insurance Company, Respondent.
    Argued October 18, 1995;
    decided December 5, 1995

      APPEARANCES OF COUNSEL

      Kushner, Kushner & Roscetti, P. C., Niagara Falls (Damon A. DeCastro of counsel), for appellant.

      Koren, Bertell & Hoey, Buffalo (Richard J. Lutzel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court reinstated.

Insurance Law § 3420 (f) (2) provides that supplemental uninsured motorist insurance — known colloquially as underinsurance — is available "if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy” (emphasis added). Under this definition, a tortfeasor is "underinsured” if the limits of his or her liability for bodily injury are less than the amount of corresponding insurance purchased by the injured insured (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 684).

As a condition precedent to payment of underinsurance, "the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (Insurance Law § 3420 [¶] [2]). Where plaintiff was a passenger injured in a two-vehicle accident, the question arises whether exhaustion of the limits of liability of all policies held by both tortfeasors is required before the underinsurance coverage in plaintiff’s policy is available.

We conclude that the exhaustion requirement of section 3420 (f) (2) relates back to the statute’s reference to "another motor vehicle” and indicates that the proper focus is on the underinsured status of each individual tortfeasor. Nothing in the statutory language or the policy providing underinsurance at issue here notifies the insured plaintiff that aggregation of the limits of liability held by multiple tortfeasors is a prerequisite to recovery of underinsurance.

Applying these principles, plaintiff, who was injured when the car in which she was riding collided with another vehicle, was entitled to seek underinsurance payments as a covered insured under a policy issued by defendant where one of the offending vehicles was underinsured, and the limits of liability on that vehicle had been exhausted by settlement. The second tortfeasor was not "underinsured,” since the limits of liability on that vehicle were equal to the limits of liability under the policy covering plaintiff. Thus, that adequately insured party’s bodily injury liability coverage should not have been considered to defeat plaintiff’s claim for underinsurance based on the status of the underinsured driver. Accordingly, the Appellate Division erred in denying plaintiff’s motion for summary judgment that she is entitled to seek underinsurance payments under the policy issued by defendant and in granting defendant’s cross motion to dismiss plaintiff’s complaint.

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

Order reversed, etc.

       In 1992, the Insurance Department promulgated Regulation 35-D (see, 11 NYCRR subpart 60-2 et seq.), to assist in interpreting Insurance Law § 3420 (f) (2). Although by its terms the regulation applies only to insurance policies issued or renewed on or after October 1,1993, and thus has no direct application to the case before us, we note that regulation 60-2.3 (e) (prescribed Supplementary Uninsured Motorists Endorsement, Conditions para [9]) provides that the condition precedent to payment is satisfied when the limits of liability "in regard to any one person who may be legally liable for the bodily injury sustained by the insured” (emphasis added) are exhausted.


text:
    [661 NE2d 1380, 638 NYS2d 598]
    The People of the State of New York, Respondent, v Jane Campbell, Appellant.
    Decided December 5, 1995

      APPEARANCES OF COUNSEL

      Rosali Vasquez, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Carol A. Remer-Smith of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Police Officer Basilio Casado testified that on May 31, 1991, Albert Tyson, an employee of the New York City Department of Housing Preservation and Development (HPD) informed him and other police personnel at the 28th precinct that unauthorized persons were within an apartment located in an HPD building that was supposed to be vacant. The police went to the apartment, told several people, including defendant, that they were under arrest for trespassing and searched them in the hallway of the building. The police found seven vials of cocaine in defendant’s pocket. Defendant, after being charged with criminal possession of a controlled substance in the fifth degree, moved to suppress the cocaine and certain statements made by her in the immediate aftermath of the arrest. The suppression court denied her motion. Defendant thereafter pleaded guilty to criminal possession of a controlled substance in the fifth degree. On appeal, the Appellate Division affirmed the conviction, holding that the police had probable cause to arrest defendant.

The determination of probable cause made by the Appellate Division involves a mixed question of law and fact which, there being support for its conclusion in the record, is beyond this Court’s further review (see, People v Diaz, 81 NY2d 106, 108; People v Bigelow, 66 NY2d 417, 420; People v Harrison, 57 NY2d 470, 477-478).

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:
    Diane Randell, Respondent, v Woodmere Health Care and Health Related Facility et al., Appellants.
    Submitted October 2,1995;
    decided December 5, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]).


text:
    [661 NE2d 1381, 638 NYS2d 600]
    Judith A. Williams, as Executor of the Estate of Bruce Taylor, Deceased, Appellant, v State of New York, Respondent.
    Decided December 7, 1995

      APPEARANCES OF COUNSEL

      Mark P. Denbeaux, New City, Andrea Moran, Kingston, and Bruce D. Blatchly, New Paltz, for appellant.

      Dennis C. Vacco, Attorney-General, Albany (Michael S. Buskus, Victoria A. Graffeo and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Claimant’s decedent, Bruce Taylor, was convicted of sale of a controlled substance in 1974. After serving over five years in jail and four years on probation, Taylor successfully moved pursuant to CPL 440.10 to vacate the judgment of conviction on the ground of prosecutorial misconduct, i.e., the false testimony of the arresting police officer and failure to disclose the circumstances in which the informant against defendant was working with the police. Taylor then commenced this action for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b.

To succeed on a claim for unjust conviction and imprisonment, the claimant must prove by clear and convincing evidence that "he did not by his own conduct cause or bring about his conviction” (Court of Claims Act § 8-b [5] [d]).

The trial court found that Mr. Taylor’s testimony at his criminal trial was less than candid as to his familiarity with the drug transaction for which he was arrested and his interactians with his codefendant on the night of his arrest, and that Mr. Taylor had directed his attorney not to call his wife to testify in order to prevent disclosure of her involvement in the crime. Based on those findings, the trial court concluded that Taylor had failed to prove by clear and convincing evidence that he had not caused or brought about his own conviction. The Appellate Division affirmed.

There is evidence in the record that supports the findings below that Taylor directed his attorney not to call his wife to testify in order to protect her, rather than to advance his own cause. Thus, the court’s consideration of that decision was not impermissible consideration of trial strategy (cf., Ivey v State of New York, 80 NY2d 474, 482), and its conclusion that claimant had failed to prove by clear and convincing evidence that he had not caused or brought about his conviction was not in error.

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, without costs, in a memorandum.


text:
    In the Matter of Linda Hollis, Appellant, v Marriott Hotel, Respondent. Workers’ Compensation Board, Respondent.
    Submitted October 10,1995;
    decided December 7, 1995
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]). Motion for poor person relief dismissed, etc., as academic.


text:
    Mount Vernon Fire Insurance Company, Plaintiff, v Creative Housing, Ltd., et al., Defendants.
    Decided December 7, 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:
    Santiago Paris, Appellant, v Waterman Steamship Corporation, Respondent.
    Submitted November 27,1995;
    decided December 7, 1995
   Motion to withdraw the appeal granted and appeal withdrawn, without costs.


text:
    Megan Zureck, an Infant, by Her Natural Guardians, Roger Zureck et al., Appellants, v Adam Wheeler, Appellant, and Frank DeLuca et al., Respondents, et al., Defendants.
    Submitted September 5,1995;
    decided December 7, 1995
   Motion by plaintiffs for leave to appeal denied, with $100 costs and necessary reproduction disbursements. Motion by defendant Wheeler for leave to appeal dismissed as untimely (see, CPLR 5513).


text:
    [662 NE2d 250, 638 NYS2d 932]
    In the Matter of Audrey Bickwid, Respondent, v Steven H. Deutsch, Appellant.
    Argued November 29,1995;
    decided December 21, 1995

      APPEARANCES OF COUNSEL

      Schapiro & Reich, Lindenhurst (Perry S. Reich, Steven M. Schapiro and Wilma Kerner Miller, of counsel), for appellant.
    Respondent, precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the proceeding remitted to the Appellate Division for a determination on the merits.

Appellant, an accountant and expert witness by profession, and his wife were married in 1966 and have four children. In 1985, appellant and his wife were divorced and appellant agreed to pay child support of $1,000 per month. In 1989, appellant applied for a downward modification in child support on the ground that one of his children had turned 21 and another was living with him. Appellant’s former wife, in turn, cross-moved for an upward modification. Appellant’s former wife prevailed and appellant was ordered to pay $47,000 in arrears. Appellant apparently paid approximately half that amount, but claimed inability to pay the remainder.

In July 1992 appellant’s former wife commenced a contempt proceeding in Family Court as a result of appellant’s failure to pay in full. Family Court adjudicated appellant in contempt and appellant was sentenced to 48 days in jail which he served. In the meantime, appellant had successfully appealed from the upward modification which was reversed by the Appellate Division in December 1993 (199 AD2d 1087). Appellant now seeks to appeal the contempt adjudication.

Inasmuch as enduring consequences potentially flow from an order adjudicating a party in civil contempt, an appeal from that order is not rendered moot simply because the resulting prison sentence has already been served (Matter of Williams v Cornelius, 76 NY2d 542). Though civil contempt does not have the same harsh consequences as the summary criminal contempt adjudication at issue in Williams, many of the policy concerns that motivated our decision there are applicable here {id., at 546-547). In fact, given appellant’s occasional engagement as a forensic accountant and expert witness, "the adjudication could no doubt be used to attack [his] credibility * * * in a court of law” (id., at 546) thus jeopardizing his professional reputation and means of earning a living.

Contrary to appellant’s urging, however, we do not reach the merits of his arguments as to the impropriety of the civil contempt adjudication (see, Family Ct Act §§ 453-455). In Williams, we rejected a similar request in order to give both parties an "opportunity to answer on the merits” (id., at 547).

Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Judge Titone taking no part.

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


text:
    [662 NE2d 251, 638 NYS2d 933]
    Frontier Insurance Company, as Subrogee of Thomas Scalea, Appellant-Respondent, v State of New York, Respondent-Appellant. (And Another Related Claim.)
    Argued October 18, 1995;
    decided December 21, 1995

      APPEARANCES OF COUNSEL

      Nixon, Hargrave, Devans & Doyle, L. L. P., Rochester (William S. Brandt and Sarah D. Beisheim of counsel), and DuBois, Billig, Loughlin, Conaty & Weisman, Rock Hill (Jacob R. Billig of counsel), for appellant-respondent.

      Dennis C. Vacco, Attorney-General, Albany (Peter H. Schiff Victoria A. Graffeo, and Michael S. Buskus of counsel), and Sedgwick, Detert, Moran & Arnold, New York City (Joseph K.
      Powers, Jeffrey M. Winn and M. Faith Martin of counsel), for respondent-appellant.

      Mantell & Haskel, New York City (Michael A. Haskel of counsel), for Academic Health Professionals Insurance Association, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, and the certified question answered in the negative.

Claimant Frontier Insurance Company is an insurer of two physicians employed by the State as assistant professors at medical schools of the State University of New York. In unrelated cases, each doctor was served with a complaint alleging medical malpractice in the performance of surgical procedures.

Pursuant to Public Officers Law § 17 (2) (a), the doctors requested the State to defend them. The State denied the requests, claiming that the alleged malpractice did not occur within the scope of the doctors’ public employment. It referred the doctors to policies issued by claimant Frontier, which obligated claimant to defend and indemnify the doctors for incidents of malpractice committed in the course of private practice or when the State denied Public Officers Law § 17 coverage. Frontier defended the doctors against the malpractice actions, negotiated settlements of each, and indemnified the doctors for the amount of those settlements. It then commenced these actions in the Court of Claims, as subrogee of the doctors, alleging that the State wrongfully refused to honor its obligations under Public Officers Law § 17 and demanding judgment against the State for the amounts expended in defending and indemnifying them. The two proceedings were consolidated in the Court of Claims.

As the matter comes to us, the principal issue for determination is whether the claim for defense was amenable to CPLR article 78 review and therefore barred by the four-month Statute of Limitations. We hold that it is.

The Attorney-General’s determination to grant or deny a defense under Public Officers Law § 17 (2) (a) is an administrative decision much like decisions rendered by other administrative agencies in response to an application for a benefit granted by a governmental entity (see, e.g., Matter of Teachers Ins. & Annuity Assn. v City of New York, 82 NY2d 35). Thus, to protect their right to a defense under the statute, the physicians were required to challenge the State’s denial of a defense in a timely article 78 proceeding.

In the context of Public Officers Law § 17 (2) (a), the Attorney-General’s role can be analogized generally to the role of a private insurer from whom the insured demands a defense. An insurer’s duty to defend arises whenever the complaint in the underlying action alleges facts which fall within the policy’s coverage, even if those allegations are false or groundless (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310). The insurer can prevail only if it can be concluded as a matter of law that there is no possible factual or legal basis on which the insurer will be obligated to indemnify the insured (Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 424, quoting Spoor-Lasher Co. v Aetna Cas. & Sur. Co., 39 NY2d 875, 876).

The statutory parameters of the duties to defend and indemnify public employees, as set forth in Public Officers Law § 17, are similar. The State’s broad duty to defend an employee arises whenever it appears that the "alleged act or omission [in fact] occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties” (Public Officers Law § 17 [2] [a] [emphasis added]). As in the private insurance context, the duty to defend may be plainly triggered by allegations of State employment contained in the complaint in the underlying action. But the complaint may be silent on the point if the plaintiff in the underlying action was unaware that the physician was employed by the State or that the acts complained of were committed within the scope of State employment. Because the scope of the State’s obligation to defend a public employee is defined by statute, not contract, the duty may also be triggered by facts in addition to those alleged by the plaintiff in the underlying complaint.

In an article 78 proceeding to determine whether the Attorney-General’s denial was rational, the court can review the facts upon which the Attorney-General relied when he denied the defense and the court may, if necessary, take proof to determine if there are circumstances which do not appear in the pleadings but in which the duty to defend the underlying litigation arises. The rationality of the Attorney-General’s refusal is litigated under the standard articulated in the private insurance context — the denial of a defense is rational only if the court determines that there is no possible factual or legal basis on which the State may be obligated to indemnify the employee, as a matter of law.

Inasmuch as the issue could have been resolved in an article 78 proceeding, the doctors were required to challenge the denial of a defense within the four-month Statute of Limitations applicable to article 78 proceedings. They could not escape that limitation by simply denominating the action a plenary action for indemnification of the costs of the defense, which is entitled to a longer Statute of Limitations (see, Solnick v Whalen, 49 NY2d 224, 229-230; New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201).

However, the Appellate Division correctly denied the State’s motion for summary judgment with respect to the claim for indemnification because the State did not establish, as a matter of law, that the doctors had waived the benefits of subdivision (3) of Public Officers Law § 17.

We have considered the remaining issues raised by the parties and conclude that they are without merit.

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

Order affirmed, etc.


text:
    [662 NE2d 254, 638 NYS2d 936]
    In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, et al., Respondents, v Brookhaven-Comsewogue Union Free School District, Appellant.
    Argued November 29,1995;
    decided December 21, 1995

      APPEARANCES OF COUNSEL

      Cahn Wishod & Lamb, L. L. P., Melville (Eugene L. Wishod and Frederick Eisenbud of counsel), for appellant.

      Vitale, Levitt & McCarthy, P. C., Huntington (Howard E. Gilbert of counsel), for Civil Service Employees Association, Inc., and another, respondents.

      Robert J. Cimino, County Attorney of Suffolk County, Hauppauge (Jeltje deJong of counsel), for Suffolk County Department of Civil Service, respondent.
   OPINION OF THE COURT

Memorandum.

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

Having been appointed from the outset to a permanent position in the classified civil service, petitioner was entitled to be credited with her part-time service for purposes of determining her seniority under Civil Service Law § 80 (1). Contrary to respondent’s argument, an appointment may be "permanent” within the meaning of Civil Service Law § 80 (1) and (2) even if the position calls for only part-time work.

We also reject respondent’s contention that petitioner’s position was seasonal or temporary because she worked only during the 10-month school year for the six years before she was laid off. The only statutory provision for temporary appointment to classified positions is Civil Service Law § 64, and there is no claim that petitioner’s appointment fits within the terms of that statute. Indeed, section 64 forbids successive appointments to the same position, suggesting that the six years of temporary appointments respondent claims occurred would have been illegal.

Finally, because she was improperly laid off, petitioner is entitled to an award of back pay without any deduction for amounts she may have earned before she was restored to her position (Civil Service Law § 77). We decline to adopt respondent’s contention that Civil Service Law § 77 applies only to removals resulting from title B disciplinary hearings, since nothing in the statute’s language suggests such a limitation. Indeed, the statute applies, by its terms, to employees who are removed "in violation of the provisions of this chapter” (emphasis added) and is, in fact, the only provision for awarding relief to a civil service employee who is determined to be entitled to reinstatement. Moreover, respondent’s restrictive interpretation of section 77 would create the unacceptable anomaly that a wholly innocent discharged employee would receive less relief than those discharged for good cause or misconduct. Thus, the statute, including its provision for full reimbursement without offset, was properly applied to petitioner’s case.

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

Order affirmed, with costs, in a memorandum.


text:
    [662 NE2d 255, 638 NYS2d 937]
    Dawn Kellman, Respondent, v 45 Tiemann Associates, Inc., Appellant, et al., Defendants.
    Argued November 28,1995;
    decided December 21, 1995

      APPEARANCES OF COUNSEL

      O’Connell & Gimble, New York City (Elliot L. Evans and Robert Zicklin of counsel), for appellant.

      Schneider, Kleinick, Weitz, Damashek & Shoot, New York City (Brian J. Shoot and Harry Steinberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

An owner of land has a duty under the common law to maintain its premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk” (see, Basso v Miller, 40 NY2d 233, 241). Contrary to defendant landlord’s contentions, its alleged compliance with the applicable statutes and regulations is not dispositive of the question whether it satisfied its duties under the common law (see, Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982).

The Appellate Division correctly concluded that the record presents triable issues of fact, regardless of whether the building is subject to or in compliance with section 53 of the Multiple Dwelling Law or section 27-380 of the Administrative Code of the City of New York. Specifically, questions are presented (1) whether it was foreseeable that tenants would use the fire escape landings to clean windows or for other purposes, and, if so, (2) whether defendant landlord exercised reasonable care to protect tenants from injuring themselves by falling through the unguarded hatchways in fire escape landings.

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

Order affirmed, etc.


text:
    [662 NE2d 256, 638 NYS2d 938]
    The People of the State of New York, Respondent, v Ricky Knight, Appellant.
    Argued November 27,1995;
    decided December 27, 1995
    APPEARANCES OF COUNSEL

      Elizabeth Sack Felber, New York City, and Daniel L. Green-berg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Lisa I. Cuevas, Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant has been convicted of criminal sale of a controlled substance in the third degree as a result of selling crack cocaine to an undercover police officer. The prosecution’s case consisted of testimony of the undercover and arresting officers. The undercover testified that after he purchased the drugs from defendant he radioed the location and descriptions of defendant and his accomplices to the backup team and within minutes was notified that arrests had been made. The undercover then drove by the arrest scene and confirmed that the individuals arrested were in fact the individuals from whom he purchased narcotics.

The arresting officer testified that within minutes after receiving descriptions of defendant and two accomplices they located the individuals matching the descriptions at the location indicated by the undercover and placed them under arrest. At the time of the arrest, defendant had the prerecorded buy money used by the undercover officer in his possession.

The defense was mistaken identity and defendant attempted to establish it by cross-examination of the two police officers. He did not call any witnesses.

At the conclusion of the trial the Trial Judge charged the jury that to convict the defendant, the People had to prove "each and every” element of the crimes charged beyond a reasonable doubt, and that if the jury was satisfied the People had done so, it could find defendant guilty. It also instructed the jury fully on its duty to determine the credibility of the witnesses. Defense counsel objected to the charge, contending that the court had erred in failing to give an expanded charge specifically instructing the jury that the identification of the defendant had to be proven beyond a reasonable doubt.

In People v Whalen (59 NY2d 273, 279), we considered a similar claim and stated that although an expanded identification charge was the "better practice”, particularly when, as there, an alibi defense was presented, the failure to so charge did not constitute reversible error. Whether the charge is appropriate in an individual case is, we said, a matter for the Trial Judge’s discretion.

Contrary to the assertion of defendant here, the jury was not led to believe that mistaken identification was not an issue in this case. The court’s charge was a correct statement of the law which sufficiently apprised the jury that the reasonable doubt standard applied to identification (see, People v Perez, 77 NY2d 928; People v Newton, 46 NY2d 877, 879). Moreover, when evaluated against the background of all the evidence presented, there is little possibility that the failure to expand the charge on identification infected the trial with error (see, People v Andujas, 79 NY2d 113, 118).

Titone, J.

(dissenting). The identity of the person who committed the crime is often the most critical issue that arises during the course of a criminal trial. Yet, despite its importance, the majority holds in a brief memorandum that there is no need to highlight the burden of proof applicable to the identity issue through a specialized instruction. Because I conclude that the charge is a necessary component of any trial in which identification is in issue, I respectfully dissent.

The preserved issue before the Court in this appeal is whether in a case involving identification reversal is required because of the trial court’s refusal to tell the jury that the identity of the perpetrator is an issue that must be proven beyond a reasonable doubt. The issue has a substantial judicial history, but the majority has chosen to foreshorten its discussion of that history and, in the process, has distorted the import of the existing case law. Accordingly, a brief review of the issue’s background is required.

The first major decision by this Court on the identification-instruction issue was People v Newton (46 NY2d 877). In that case, the trial court had instructed that each of the crime elements must be proven beyond a reasonable doubt and that the jury was also required to pass on the issue of identification (id.). Additionally, the court advised the jurors that " ’before you can convict a defendant you must be convinced of his guilt beyond a reasonable doubt’ ” (id., at 879). Concluding that the Trial Judge’s instruction "adequately apprised the jury that the reasonable doubt standard attached to the element of identification,” this Court held that the refusal to charge that principle in haec verba was not reversible error (id.).

Newton, however, was hardly considered the last or even the most definitive word on the question of identification charges. Both before and after this Court considered the question in Newton, the First and Second Departments ruled that a detailed charge should be given directing the jury to consider a variety of specific factors in determining the reliability of the identification testimony (e.g., People v Rothaar, 75 AD2d 652 [2d Dept]; People v Rodriquez, 61 AD2d 914 [1st Dept]; People v Gardner, 59 AD2d 913 [2d Dept]). Even the Third Department, which did not require such an expanded charge as a matter of law, held that "a more thorough instruction on identification [should] be given in the interest of justice” (People v Landor, 92 AD2d 625, 626; accord, People v Whalen, 88 AD2d 1005, revd on other grounds 59 NY2d 273).

The Second Department’s decision in People v Daniels (88 AD2d 392) ultimately became the leading case on the subject. The Daniels panel quoted and gave its approval to the detailed charge recommended in the Pattern Jury Instructions for cases resting solely on identification testimony. The quoted instruction directs the jury to consider the subjective and objective conditions affecting the eyewitness’s ability accurately to observe and remember (1 CJI[NY] 10.01, Part A).

Daniels was followed in a substantial line of Appellate Division decisions (e.g., People v Jakes, 181 AD2d 913, 914; People v Green, 140 AD2d 456; People v Cobb, 137 AD2d 700; People v Lyons, 106 AD2d 471, 473; People v Baez, 103 AD2d 746, 748; People v Bonaparte, 98 AD2d 778; People v Knowell, 94 AD2d 255, 258-259; People v Landor, 92 AD2d 625, 626, supra [3d Dept]; People v McCann, 90 AD2d 554, 556-557; see also, People v Chestnut, 99 AD2d 515). Nonetheless, this Court held in People v Whalen (59 NY2d 273, 279, supra) that the "expanded charge” on identification is not required, although it is the "better practice” to give it when requested by the defense. In upholding the conviction in Whalen, however, the Court was careful to note that "[a] Judge who gives a general instruction on weighing witnesses’ credibility and who states that identification must be proven beyond a reasonable doubt has made an accurate statement of law” (id., at 279 [emphasis supplied]). Further, the Court stressed its own concern about the risk of inaccuracy inherent in eyewitness identification testimony (id., at 279). Thus, contrary to the majority’s assertion, Whalen held only that an expanded charge such as the one recommended in Daniels was a discretionary matter rather than a legal requirement. The Whalen Court certainly did not suggest that a trial court could also exercise its discretion to dispense with a simpler charge directing the jury’s attention to the People’s burden of proving identity beyond a reasonable doubt.

Indeed, most of the post- Whalen Appellate Division decisions assume that that case established such a charge as a minimum legal requirement (see, e.g., People v Washington, 209 AD2d 733, 734 [2d Dept]; People v Felix, 207 AD2d 729 [1st Dept]; People v Rivera, 207 AD2d 420, 421 [2d Dept]; People v Smith, 203 AD2d 396 [2d Dept]; People v Teen, 200 AD2d 785, 786 [3d Dept]; People v Martinez, 186 AD2d 824, 825 [2d Dept]; People v Salaam, 172 AD2d 860 [2d Dept]; People v Moss, 172 AD2d 856, 858 [2d Dept]; People v Vargas, 166 AD2d 360, 361 [1st Dept]; People v Newball, 158 AD2d 553, 554 [2d Dept]; People v Hewlett, 133 AD2d 418, 419 [2d Dept]; People v Rivera, 108 AD2d 829, 830 [2d Dept]; People v Hollis, 106 AD2d 462, 464 [2d Dept]; see also, People v Vasquez, 176 AD2d 444 [1st Dept]). Even this Court noted in People v Williams (66 NY2d 629, 632) that the trial court’s identification charge had been "sufficiently detailed to meet the requirements of People v Whalen ” (emphasis supplied; cf., People v Perez, 77 NY2d 928, 929 [holding that the expanded identification charge was not required and noting that the separate question of whether "the trial court should have instructed the jury that defendant’s identity had to be proven beyond a reasonable doubt” was unpreserved]). Moreover, in People v Warren (76 NY2d 773, 775), the Court upheld a conviction despite the Trial Judge’s refusal to give the alibi burden of proof charge that was required in People v Victor (62 NY2d 374), in part because the Judge had given the identity-must-be-proven-beyond-a-reasonable-doubt charge referred to in Whalen and that charge was sufficient to convey, the necessary information regarding the People’s burden of proof. Thus, it can hardly be said that Whalen and our subsequent case law provides support for the majority’s present holding that the charge in issue is not legally required in a case where identity is a contested issue.

Inasmuch as there is no precedent that constrains us to conclude otherwise, I would hold that, contrary to the majority’s conclusion, a trial court’s refusal to give a requested instruction that identity must be established beyond a reasonable doubt constitutes reversible error in a case where the identification issue has been raised. There is certainly no sound jurisprudential reason to deny a request for such a charge, since it represents an accurate statement of law (see, People v Whalen, supra), is not at all burdensome and does not pose a risk of confusion. Moreover, there are some very persuasive reasons for insisting upon the administration of this charge or its equivalent.

Although the standard charge to the jury describes the People’s burden of proof and associates that burden with the statutory elements of the charged crime, there is nothing in particular that would alert the jury to the fact that identity is also an element that must be proven to the same level of certainty. Further, the need for some instruction that focuses the jury’s attention on the level of scrutiny that must be applied to the People’s identification evidence is manifest because, as has often been discussed, "evidence as to identity based on personal impressions, however bona fide, is perhaps of all classes of evidence the least to be relied upon” (Borchard, Convicting the Innocent, at 271-272, n 6 [1932]; see also, O’Connor, "That’s the Man”: A Sobering Study of Eyewitness Identification and the Polygraph, 49 St John’s L Rev 1). Finally, an instruction that identity is an element that must be proven beyond a reasonable doubt is often useful to ensure that an otherwise barebones charge conveys "as a whole” the essential legal principles (see, e.g., People v Warren, supra; People v Whalen, supra). Accordingly, the better rule would be to simply require that such a charge be given in any case where identification is in issue. Since no such charge was given here, I vote to reverse.

Judges Simons, Bellacosa, Smith, Levine and Ciparick concur; Judge Titone dissents and votes to reverse in an opinion in which Chief Judge Kaye concurs.

Order affirmed in a memorandum.

       Significantly, the majority’s writing has not identified any portion of the charge that was given in this case that would provide guidance on that point.


author: Smith, J.

text:
    [662 NE2d 260, 638 NYS2d 942]
    The People of the State of New York, Respondent, v Tyrone Morgan, Appellant.
    Argued November 27,1995;
    decided December 27, 1995

      APPEARANCES OF COUNSEL

      Adrienne Hale, New York City, and Daniel L. Greenberg for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

The only issue that this Court can decide is whether the trial court abused its discretion as a matter of law in not granting defense counsel’s trial request for a new or updated examination of defendant’s competency to stand trial. After defendant’s arrest and before his trial, he was examined four different times over several month intervals to determine his competency (CPL 730.30 [1]). In November 1990, after the fourth examination, the trial court found him fit to proceed. At the outset of the jury selection process in March 1991 and throughout the trial, defense counsel moved repeatedly for an additional competency examination. Defendant, a homeless man with a long history of psychiatric illness, was convicted after a jury trial of depraved indifference murder for stabbing another homeless man to death after a quarrel.

Ordering a competency examination under CPL 730.30 (1) lies within the sound discretion of the trial court {see, People v Russell, 74 NY2d 901, 902). A defendant is presumed competent (People v Gelikkaya, 84 NY2d 456, 459), and the court is under no obligation to issue an order of examination (CPL 730.10 [2]) unless it has "reasonable ground * * * to believe that the defendant was an incapacitated person” (People v Armlin, 37 NY2d 167, 168). Moreover, "[t]he law of this State is well settled that a defendant is not entitled, as a matter of right, to have the question of his capacity to stand trial passed upon * * * if the court is satisfied from the available information that there is no proper basis for questioning the defendant’s sanity” (id., at 171 [citation omitted]).

Based on these well-settled authorities and the variety of factors assembled in the particular record of this case, this Court cannot say that the trial court abused its discretion as a matter of law in failing to order an additional examination or that the Appellate Division erred as a matter of law in affirming that decision.

The trial court was entitled to give weight to the findings and conclusions of competency derived from the most recent examination. The Judge also saw the defendant actively participating in every aspect of his case, including a continuing flow of oral and written communications with his attorney. Additionally, the Judge personally interacted with the defendant on several occasions, including plea discussions, in which the defendant evinced a particularized understanding of the nature of the proceedings and what was unfolding.

The functional effect of the analysis proposed by the dissent would virtually compel trial courts to grant a competency examination as a matter of law or risk reversal for "abuse of discretion” whenever an "experienced defense attorney” makes repeated requests for one. Such an analysis gives too much appellate weight to a single factor and fails to credit all the other factors weighed by the trial court and the Appellate Division. While a trial court may "depend to some extent on counsel to bring issues into focus” (Drope v Missouri, 420 US 162, 176-177, n 13), defense counsel’s observations and representations, without more, do not and should not serve as an automatic substitute for the court’s statutory discretion (id.; People v Rodriguez, 79 AD2d 576, 577, affd 56 NY2d 557; see also, Griffin v Lockhart, 935 F2d 926, 930). In any event, counsel’s representations here consisted simply of personal observations and lay opinion that the defendant was an incapacitated person.

To be sure, defendant’s diagnosis as a paranoid schizophrenic and his 27 previous hospitalizations for mental illness are factors also properly weighed by the trial court in deciding whether to grant a competency examination. Nonetheless, a defendant’s history of psychiatric illness alone does not serve to mandate relief to the defendant (see, People Gelikkaya, 84 NY2d 456, supra; People v Gensler, 72 NY2d 239, 245), nor do repeated conclusory protestations by defense counsel (People v Rodriguez, 79 AD2d 576, affd 56 NY2d 557, supra). This is especially so here, where the court, far from ignoring defendant’s history, had already ordered four previous examinations (see, Drope v Missouri, 420 US 162, 180, supra). Finally, the Trial Judge’s opportunity to observe the defendant and his behavior personally is also entitled to some deference and weight (People v Russell, 74 NY2d 901, 902, supra; see also, People v Charon, 113 AD2d 950, 951).

The combination of all factors — not any one factor — for and against defendant on this issue, was before the trial court and is dispositive of our review function in this case. This Court has no basis to further review or substitute its views for the lower court determinations.

Smith, J.

(dissenting). A defendant who lacks the mental capacity to stand trial and to aid in his defense cannot be convicted without violating due process (Pate v Robinson, 383 US 375). The defendant here was convicted despite clear indications that a CPL article 730 examination into his mental competency to stand trial was required. Therefore, I dissent and would require a new trial, if, following an examination pursuant to article 730, defendant is found fit to proceed.

The trial court should have granted defendant’s repeated requests for an examination for several reasons. The primary reason for reversing here is the trial court’s abuse of discretion in denying the hearing. The court stated, in essence, that it had observed the defendant’s demeanor, spoken with him and thus found him fit to proceed. Such reasoning was specifically rejected in Pate v Robinson (supra). There, the Supreme Court of the United States noted, "While Robinson’s demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue” (383 US, at 386). Moreover, the court spoke only briefly with the defendant at the beginning of the trial. That colloquy was insufficient to conclude that the defendant was competent to stand trial.

Second, defendant had a prior history of approximately 28 hospitalizations for psychiatric reasons. The psychiatric reports reveal that defendant suffered from chronic paranoid schizophrenia. In fact, defendant was twice found mentally incompetent to stand trial in this case. He was found unfit to stand trial on July 2,1990. Five months later, on November 11, 1990, he was found fit to stand trial. On May 8, 1991, six months after having been found fit to stand trial, he was again found unfit. On October 21, 1991, five months later, he was again found fit to stand trial. The trial commenced on March 12, 1992. The different conclusions within months of each other required an examination at the time of the actual trial. It was error to rely on an examination held five months before trial.

The third reason why a mental examination was required in this case was the repeated request of the defense attorney, an officer of the court who had handled numerous cases involving mental competency. The attorney had moved to confirm the reports of the psychiatrist stating that the defendant was fit to proceed with the trial in October 1991. At the beginning of jury selection, however, and throughout the trial and sentence, the defendant’s attorney requested an article 730 examination. The court repeatedly refused to grant it.

All of the cases cited by the majority are authority for directing a hearing under the facts of this case. In People v Gelikkaya (84 NY2d 456), defendant was impeached with his Grand Jury testimony. No issue of his competency to stand trial had been made until after his Grand Jury testimony, at his arraignment on the indictment. This Court found no abuse of discretion in the use of the Grand Jury testimony to impeach the defendant. Significantly, the trial court in Gelikkaya ordered a psychiatric hearing as soon as a competency issue was raised, and the defendant was found unfit to proceed. It was not until 15 months later that he was found fit. In People v Russell (74 NY2d 901), this Court found no abuse of discretion where the trial court denied a request for a competency hearing. It is significant, however, that the request was made only after the People’s case had been concluded, that there was no psychiatric history and that the defendant had represented himself for some part of the proceedings, giving the court much more of an opportunity to assess his competency than that here. In People v Armlin (37 NY2d 167), despite a plea of guilty, this Court remanded the case for a hearing on defendant’s fitness to proceed after two previous orders of the trial court for a psychiatric examination had not been complied with.

Accordingly, I would reverse and remand for a new trial, with a psychiatric examination on defendant’s fitness to be held prior to any new trial.

Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Levine and Ciparick concur; Judge Smith dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.

       While the majority asserts that the "functional effect” of the dissent’s analysis would virtually compel a competency hearing whenever an experienced attorney requests one, this is simply not the case. Viewing the entire record in this case, I conclude that there was an abuse of discretion.


text:
    [663 NE2d 318, 639 NYS2d 1006]
    In the Matter of Douglas K. Murphy, Appellant, v Village of Dolgeville et al., Respondents.
    Argued November 30,1995;
    decided December 27, 1995

      APPEARANCES OF COUNSEL

      Philip V. Córtese, Amsterdam, for appellant.

      Mark R. Rose, Village Attorney of Village of Dolgeville, Little Falls, for Village of Dolgeville and another, respondents.

      Barbara J. Samel, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae.

   OPINION OF THE COURT

Memorandum.

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

General Municipal Law § 207-m provides that "whenever the base salary of the permanent full-time police officer * * * who is the highest ranking subordinate to the head of the police department in such unit, is increased, the salary of the permanent full-time head of the police department shall be increased by at least the same dollar amount.” Petitioner, the Chief of Police of the Village of Dolgeville, has received pay increases each time the base salary of the highest ranking subordinate position in his department, Patrolman Grade I, was increased even though that position was vacant when the salary increases were instituted. The position has since been filled by Officer Scott Stefanec who rose through the ranks of the department from Patrolman Recruit to Patrolman Grade I, and is now the petitioner’s highest ranking subordinate. Petitioner argues here that General Municipal Law § 207-m mandates that he receive an additional pay increase equal to the sum of those received by Stefanec as he rose through the ranks. We disagree.

The purpose of General Municipal Law § 207-m is to prevent the compression of salaries as between police department heads who are not members of negotiating units, and their subordinates who are (see, Bill Jacket, L 1977, ch 827, Mem Supporting A 7913; 1986 Opns St Comp No. 86-23; 1984 Opns St Comp No. 84-20). The problem of salary compression does not arise from an individual’s rise through the ranks and consequent increase in pay pursuant to a set pay scale but rather from an increase in the pay scale itself whereby the base salary for the highest ranking subordinate position becomes equal to or greater than that of the department head. Thus, section 207-m is best interpreted to require that the head of the department receive a salary increase whenever the base salary of the highest ranking subordinate position is increased, whether or not the position itself is filled. Accordingly, petitioner has received all that he was entitled to under the General Municipal Law, and his petition was properly dismissed.

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

Order affirmed, with costs, in a memorandum.


text:
    [663 NE2d 319, 639 NYS2d 1007]
    The People of the State of New York, Respondent, v Daniel Dillon and Roy Hetzel, Appellants.
    Decided December 27, 1995

      APPEARANCES OF COUNSEL

      Gary Abramson, Goshen, for Daniel Dillon, appellant.

      Gurda, Gurda & Smith, Middletown (Alex Smith of counsel), for Roy Hetzel, appellant.

      Francis D. Phillips, II, District Attorney of Orange County, Goshen (David R. Huey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During the course of a high-speed automobile chase having its inception in a traffic violation, the pursuing State Trooper observed the passenger in the fleeing vehicle, defendant Dillon, throw two small bags onto the roadway. The chase continued for another 10 to 15 miles until the driver, defendant Hetzel, was eventually stopped. Approximately 3.94 ounces of a white powder containing cocaine and eight hypodermic needles were recovered from the roadside at the point where the bags had been thrown.

There was sufficient circumstantial evidence from which the Grand Jury could have inferred that defendants Dillon and Hetzel had knowledge that the cocaine weighed more than the statutory minimum of an aggregate two ounces, and therefore, County Court erred in reducing count one of the indictment from criminal possession of a controlled substance in the second degree (Penal Law § 220.18 [1]) to criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03).

Given the lesser standards for measuring the sufficiency of Grand Jury instructions (see, People v Darby, 75 NY2d 449, 454; People v Calbud, Inc., 49 NY2d 389, 394; see also, CPL 190.30 [7]), we also conclude that the instructions in this case were adequate.

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.