text:
    In the Matter of Taxpayers Opposed to Floodmart, Ltd., Appellant, v City of Hornell Industrial Development Agency et al., Respondents. Polar-BEK & Baker, Intervenor-Respondent. (And a Similar Action.)
    Submitted May 1, 1995;
    decided May 9, 1995
   Motion to vacate stay granted. Motion for other relief denied.


source: Caselaw Access Project

license: Public Domain

text:
    [653 NE2d 616, 629 NYS2d 720]
    The People of the State of New York, Respondent, v Earl Douglas, Appellant.
    Decided May 11, 1995

      APPEARANCES OF COUNSEL

      Jonathan S. Rosenberg, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ellen Sue Handman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Gray, 86 NY2d 10 [decided today]).

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


text:
      [653 NE2d 616, 629 NYS2d 720]
    The People of the State of New York, Respondent, v Samuel Miller, Appellant.
    Decided May 11, 1995

      APPEARANCES OF COUNSEL

      Laura Rossi-Ortiz, New York City, Markel Gimpel, Karl Pflanz and E. Joshua Rosenkranz for appellant.

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

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Gray, 86 NY2d 10 [decided today]).

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


text:
    In the Matter of Bykya Minnie E., Also Known as Bykyra E., a Child Alleged to be Abandoned. St. Dominic’s Home, Respondent; Michael E., Appellant.
    Submitted March 20, 1995;
    decided May 11, 1995
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s order denying appellant’s motion to vacate, dismissed upon the ground that that 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:
    Peter Dalton, as Parent and Natural Guardian of Brian M. Dalton, an Infant, Respondent, v Educational Testing Service, Appellant.
    Submitted February 27, 1995;
    decided May 11, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed so much of Supreme Court’s order as denied defendant’s cross motion for summary judgment, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of George M. E., Appellant, v New York State Family Court et al., Respondents.
    Submitted March 13, 1995;
    decided May 11, 1995
   On the Court’s own motion, appeal, insofar as taken from a Family Court order dated December 15, 1994, dismissed, without costs, upon the ground that it does not lie; appeal, insofar as taken from the March 28, 1995 Appellate Division order, dismissed, without costs, upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution. Motion, insofar as it seeks leave to appeal from a Family Court order dated December 15, 1994, dismissed upon the ground that it does not lie; motion, insofar as it seeks leave to appeal from the March 28, 1995 order of the Appellate Division, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic. Motion for other relief denied.


text:
    In the Matter of the Claim of Marc J. Kelley, Respondent. Jessel Rothman, P. C., Appellant; John F. Hudacs, as Commissioner of Labor, Respondent.
    Submitted March 13, 1995;
    decided May 11, 1995
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Appellant, v Juan Bonilla-Lugo, Respondent.
    Decided May 11, 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 modification 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 * * * modification” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York, Appellant, v Brian Christian, Respondent.
    Decided May 11, 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 modification 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 * * * modification” (CPL 450.90 [2] [a]).


text:
    The People of the State of New York ex rel. Carl DeFlumer, Jr., Appellant, v Wayne Strack, as Superintendent of Fishkill Correctional Facility, Respondent.
    Submitted March 20, 1995;
    decided May 11, 1995
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see, People ex rel. Wilder v Markley, 26 NY2d 648; People ex rel. Dennard v Meloni, 74 NY2d 916.)


text:
    In the Matter of John A. Steel, Appellant, v Francis X. Galdi, as Clerk of the Supreme Court of the State of New York, Appellate Division, First Department, Respondent.
    Submitted February 27, 1995;
    decided May 11, 1995
   Motion, insofar as it seeks leave to appeal from Justice Kupferman’s order denying petitioner’s motion for leave to appeal to the Appellate Division, dismissed upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (NY Const, art VI, § 3 [b]; CPLR 5601, 5602); motion, insofar as it seeks leave to appeal from the Appellate Division order denying poor person relief, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion for other relief denied.


text:
    [652 NE2d 907, 629 NYS2d 161]
    The People of the State of New York, Respondent, v Jose Ocasio, Appellant.
    Argued April 26, 1995;
    decided June 7, 1995

      APPEARANCES OF COUNSEL

      Daniel Hsiung, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Polly Greenberg and Robert M. Raciti of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

While on stakeout in front of a building where drug dealing was suspected, Officer Meehan believed that defendant and his codefendant, Joseph Torres, were "up to no good” when he saw the two men pull up in a car in front of the building, look up and down the street, enter the building briefly, and then drive away. Meehan broadcast a description of the two men to a backup team of officers. When defendant stopped at a red light, an officer walked to either side of the car and tapped on the window, asking for identification. Torres handed the officer a wallet containing a license and credit cards belonging to Seng Ong, depicted on the license to be an Asian man bearing no resemblance to Torres. Torres explained that he had "just got a wallet from somebody” and planned to sell its contents. He could not tell the officer from whom he had obtained the wallet. Both men agreed to be frisked for weapons and to come to the station house. In Torres’ back pocket were checks bearing Seng’s name. At the precinct, an officer reached Seng, who said that he had been robbed 10 minutes earlier at the building Meehan had under surveillance. Meehan, arriving at the precinct, identified defendant and Torres as the men he saw at the building. An inventory search of defendant’s car revealed a weapon and the same amount of cash Seng said had been stolen from him.

We have previously held, as a matter of law, that interference with a moving vehicle is a seizure requiring, at a minimum, reasonable suspicion (People v May, 81 NY2d 725), although approach of a parked car may be undertaken for an objective, credible reason (People v Harrison, 57 NY2d 470, 475-476). Determination whether a seizure occurred here— where the car was neither parked nor moving — requires the fact finder to apply a settled standard: whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom (see, People v Bora, 83 NY2d 531). That involves consideration of all the facts — for example, was there a chase; were lights, sirens or a loudspeaker used; was the officer’s gun drawn, was the individual prevented from moving; how many verbal commands were given; what was the content and tone of the commands; how many officers were involved; where did the encounter take place (id.).

Enough was shown here to create a fact question as to whether a seizure occurred, and the trial court considered the appropriate factors. Defendant’s progress was halted by a stoplight, not the police. The officers approached on foot, displayed badges and asked for identification. No sirens or lights were used to interfere with defendant’s transit; no gun was displayed; and defendant was at no time prevented from departing. Defendant consented to accompany the officers to the precinct, and thus was not forcibly detained. While there may be instances in which approach of a car at a stoplight constitutes a seizure, the courts below, having considered the relevant factors, found no seizure. We cannot say, as a matter of law, that this determination was wrong.

Even where no forcible seizure occurs, privacy interests may still be implicated. An intrusion that does not rise to a seizure must be predicated on more than a hunch, whim, caprice or idle curiosity (People v De Bour, 40 NY2d 210, 217). In the case of a car that has been approached but not seized, as we recently noted in People v Spencer (84 NY2d 749), the police must possess an articulable basis for requesting information. That is supplied by an objective, credible reason not necessarily indicative of criminality (see, e.g., People v Hollman, 79 NY2d 181, 187, 194 [defendant’s placement of bag at distance from himself]; People v Harrison, 57 NY2d 470, 475, supra [dirty condition of rental car]; People v Moore, 47 NY2d 911, revg for reasons stated in dissenting opn 62 AD2d 155, 157-160 [bleeding defendant carrying television in pillow case]; People v De Bour, 40 NY2d 210, 220, supra [defendant’s crossing of street upon sighting of officers]).

The observations of Officer Meehan that prompted him to alert the backup officers about defendant — the nature of the area and the conduct of defendant and Torres — met the minimum requirement. Initial questioning, limited to a request for identification, was consistent with a request for information, which involves basic, nonthreatening questions regarding, for instance, identity, address or destination (People v Hollman, 79 NY2d, at 185, 191). When Torres produced identification clearly not his own, unable to provide a plausible explanation for his possession of it, Torres and defendant consented to accompany the officers to the precinct. Once Seng reported he had just been robbed, and where, the police possessed probable cause for defendant’s arrest. Where the determination of the lower court is supported by the record, it is not to be set aside (People v Harrison, 57 NY2d, at 479).

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

Order affirmed in a memorandum.


text:
    [652 NE2d 909, 629 NYS2d 163]
    The People of the State of New York, Respondent, v Antonio McCowan, Also Known as Anthony Davis, Appellant.
    Argued May 1, 1995;
    decided June 7, 1995

      APPEARANCES OF COUNSEL

      Eugene P. Grimmick, Troy, for appellant.

      Mary O. Donohue, District Attorney of Rensselaer County, Troy (Bruce E. Knoll of counsel), for respondent.
   OPINION OF THE COURT

Memorandum,

The order of the County Court should be reversed and the charges dismissed.

On January 19, 1993, defendant was arraigned in Troy City Court on criminal charges and advised simply that a "preliminary order of protection” was being issued. The written order —barring defendant from any contact with the mother of his child — was not served on him. A preexisting Family Court order permitted defendant to visit his child each Saturday. Bail was set at $500.

Two months later, when the child was not brought to the visitation site at the appointed time, defendant became involved in an altercation with the child’s mother, during which he twice appeared at her home, injuring her and damaging her property. He was arrested and charged with substantive criminal offenses as well as violation of the January 19 order of protection.

At a hearing commenced on April 13, 1993 in Troy City Court, defense counsel stipulated only that an order of protection had been issued on January 19, 1993. When defendant was shown the January 19 order, he stated he had not previously seen it and was familiar only with the Family Court visitation order. To his knowledge, he had not violated the terms of that order, but believed that if he did so, he could be sentenced to six months in jail. At the close of the hearing counsel moved to dismiss on the grounds the order had not been served on his client.

The court found the People had presented "competent proof’ that defendant "willfully failed to obey the order.” Defendant again protested that the only time he had contact with his son and the child’s mother was during the designated Family Court visitation period, and that he had never seen any other order. When the court stated that it issued an order "telling you to stay away from there,” defendant responded, "You might have said that, Your Honor.” Upon sentencing, the court advised defendant the order of protection was still in effect and he again expressed confusion about whether the Family Court visitation order took precedence. The court at that point explained that both orders could be complied with if visitation took place solely at a neutral location.

Pursuant to CPL 530.13 — the provision at issue here — orders of protection may be issued for the protection of victims of crimes as a condition of pretrial release (CPL 530.13 [1]). By statutory mandate, whenever a temporary order of protection is issued under CPL 530.13, the clerk of the court must issue a copy of the order to the defendant. The 1994 amendments to the statutory scheme specify that notice is adequate to support a criminal prosecution stemming from violation of an order if given orally in court (e.g., Penal Law §§ 120.14, 215.51 [L 1994, ch 222, §§ 46, 47]), a change that conforms to our case law (e.g., Matter of McCormick v Axelrod, 59 NY2d 574, 583; People ex rel. Stearns v Marr, 181 NY 463, 470). It is not enough, however, simply to inform a defendant that "an order” has been issued, without also telling defendant, either orally or in writing, the contents of the order and the conduct it prohibits. The People here failed to establish that the substance of the January 19 order (the basis for the violation charges) was conveyed to defendant.

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

Order reversed, etc.

       The Family Protection and Domestic Violence Intervention Act of 1994 (L 1994, ch 222) has significantly amended the statutory scheme governing orders of protection and their violation.


text:
    [652 NE2d 910, 629 NYS2d 164]
    The People of the State of New York, Respondent, v Keith Hightower, Appellant.
    Argued May 1, 1995;
    decided June 7, 1995
    APPEARANCES OF COUNSEL

      Karin S. Riecker, New York City, E. Joshua Rosenkranz, Joseph M. Nursey and Rosemary Herbert for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Andrew J. Shipe and Susan L. Valle of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting the case to Supreme Court, Bronx County, for further proceedings in accordance with the following memorandum and, as so modified, affirmed.

Defendant was arrested while allegedly acting as one of three team members selling crack cocaine. The complaint stated that the arresting officer observed defendant accept United States currency from a customer and then, with a codefendant, escort the purchaser to a third defendant who handed the purchaser a vial of crack cocaine. On appeal defendant’s primary challenge is to a ruling of the trial court denying without a hearing his motion to suppress evidence.

Defendant moved to suppress a beeper the officer found on him at the time of the arrest, alleging that the police lacked a legal basis to arrest and search him. Specifically, he alleged:

"that he did not sell drugs, nor assist the other individuals [with whom he was arrested] to possess or sell drugs. The defendant asserts that the police were either mistaken when they arrested and searched the defendant, or are simply l[y]ing as to the defendant’s role.”

The People’s response stated the time and place of the arrest, that defendant was acting in concert with others in selling cocaine, that the arresting officer was acting with probable cause, and that the search was incident to a lawful arrest. The court denied a pretrial hearing concluding defendant had failed to set forth in his motion papers any factual issue requiring a hearing. Defendant was subsequently convicted of drug charges and the Appellate Division affirmed.

In People v Mendoza (82 NY2d 415), we established certain guidelines for determining whether motion papers were sufficient to warrant a hearing for suppression. We stated that the motion may be summarily denied if " 'the sworn allegations of fact do not as a matter of law support the ground alleged’ ” to require suppression (id., at 421, quoting CPL 710.60 [3] [b]). When testing the sufficiency of defendant’s factual allegations, the court should, we said, consider (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion and (3) defendant’s access to information (id,., at 426).

Applying these criteria, it appears that although defendant denied the police had probable cause, a legal conclusion, he also alleged facts warranting a hearing. He denied that he sold drugs or assisted others in selling or possessing drugs. These allegations were sufficient when considered in the context of the case and in light of the minimal information available to the defendant at the time of the motion limited, as he was, by the bare allegations in the complaint that he had, after receiving money, escorted the purchaser to another defendant from whom the purchaser received cocaine. Based upon that meager information, defendant could do little but deny participation in the sale. Moreover, the People’s responding papers added no further information revealing the factual predicate for defendant’s arrest, other than to suggest that the arresting officer observed him doing that which he plainly denied. By failing to set forth the facts leading to defendant’s arrest, the People failed to render defendant’s flat denial insufficient.

The People insist that defendant must offer an innocent explanation for his conduct or at least respond to the People’s papers. A response would have added little to his claim that he did not sell drugs or assist anyone else to sell or possess drugs, however, and he was not obliged to address the People’s largely conclusory assertions.

We have considered defendant’s claim that he was denied a fair trial and find no ground for reversal.

Accordingly, the matter is remitted for a suppression hearing and, if defendant is successful, dismissal of the indictment, or if he is unsuccessful, for amendment of the judgment to reflect that result.

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

Order modified by remitting the case to Supreme Court, Bronx County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [652 NE2d 912, 629 NYS2d 166]
    The People of the State of New York, Respondent, v Barbara Cole, Appellant.
    Argued April 27, 1995;
    decided June 7, 1995

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be affirmed.

The trial court did not err in including on the verdict sheet a direction regarding the order in which the submitted charges should be considered. This direction implemented CPL 310.20, which authorizes the court to give the jury a verdict sheet containing "the offenses submitted to the jury * * * and the possible verdicts thereon. ” (Emphasis added.) The problem presented by this case is distinguishable from that presented in People v Sotomayer (79 NY2d 1029). The verdict sheet in Sotomayer contained an unauthorized instruction regarding the effect of the justification defense as well as a direction on the order in which the charges should be considered. That combination "created a risk that the jury’s deliberative process would be 'unfairly skewed’ ” (id., at 1030, quoting People v Taylor, 76 NY2d 873, 874).

We also reject defendant’s contention that Penal Law § 125.25 (4), the statute under which she was convicted, is unconstitutionally vague. This Court held in People v Poplis (30 NY2d 85, 88) that "conduct with 'depraved indifference’ to 'human life’ * * * is the kind [of conduct] which has been rather well understood at common law.” In fact, we stated in Poplis that brutality toward a child, such as the conduct with which defendant was charged, "fits within the accepted understanding of the kind of recklessness involving 'a depraved indifference to human life’ ” (id., at 88). Contrary to defendant’s argument, our decision in People v Register (60 NY2d 270, cert denied 466 US 953) did not unsettle this well-established common-law understanding of the "depraved indifference” element. Rather, it merely clarified that that element is an objective aggravating circumstance rather than a part of the crime’s mens rea.

Similarly, the fact that the statute encompasses conduct "which creates a grave risk of serious physical injury or death” (emphasis supplied) does not render the statute unconstitutionally vague, since the type and level of risks to be avoided by the actor are specifically delineated (see, e.g., People v Gomez, 65 NY2d 9). Finally, the differential treatment of those who intentionally set out to injure but cause death (see, Penal Law § 125.20 [1]) and those who recklessly cause death while acting under "circumstances evincing a depraved indifference to human life” does not violate any substantive due process or equal protection rights. The Legislature could rationally conclude that the existence of circumstances evincing "depraved indifference” is an aggravating factor warranting more serious punishment, even where the conduct was accompanied by a reckless rather than an intentional mental state.

Finally, we reject defendant’s suggestion that her conviction should be reversed because of a claimed exclusion from the pretrial Sandoval hearing (see, People v Dokes, 79 NY2d 656), since her claim is lacking in substantive merit.

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

Order affirmed in a memorandum.


text:
    [652 NE2d 914, 629 NYS2d 168]
    Leola Ward, Appellant, v Alan Silverberg, Respondent.
    Argued May 4, 1995;
    decided June 7, 1995
    APPEARANCES OF COUNSEL

      Ginsberg Katsorhis & Fedrizzi, Flushing (Jerome M. Ginsberg and Linda F. Fedrizzi of counsel), for appellant.

      Congdon, Flaherty, O’Callaghan, Reid, Donlon, Travis &

      Fishlinger, Garden City (Christine Gasser of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

To resist defendant’s motion for summary judgment dismissing the complaint, plaintiff in this malicious prosecution action bears the burden of proving that the underlying criminal action brought against her by her optometrist for the alleged theft of a pair of eyeglasses was terminated in her favor (Martin v City of Albany, 42 NY2d 13, 16). This Court has consistently held that a criminal action is "terminated in the accused’s favor” for purposes of a malicious prosecution claim where a judicial determination of the accused’s innocence on the merits of the action has been made (see, Hollender v Trump Vil. Coop., 58 NY2d 420; Halberstadt v New York Life Ins. Co., 194 NY 1).

Here, the criminal charges were based on plaintiff’s alleged failure to pay her optometrist $25 for additional repairs to a pair of frames she had already paid for. The trial court stated that the criminal charges were dismissed "on consent” after a short colloquy between the court and counsel which culminated in a plea by the defense for a dismissal of the charges "in all fairness to this lady.”

Plaintiff has failed to establish that the dismissal in any way involved a determination on the merits of her guilt or innocence or that the prosecutor lacked a reasonable foundation for the charges. Additionally, the court’s statement to plaintiff that she could be sued civilly for the cost of the repairs cannot be equated with a determination that she was innocent of any coexistent criminal charges. Rather, what is evident from the record is that the interests of justice were best served by a dismissal of the criminal prosecution — a termination of the proceeding which is insufficient to sustain a malicious prosecution action. Accordingly, because the question of guilt or innocence remained unanswered here (Ryan v New York Tel. Co., 62 NY2d 494, 504-505), the motion for summary judgment dismissing the malicious prosecution action was properly granted.

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

Order affirmed, with costs, in a memorandum.


text:
    Catherine Smullens, Appellant, v Lawrence MacVean et al., Respondents. (And Another Action.)
    Submitted January 30, 1995;
    decided June 7, 1995
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (CPLR 5511).


text:
    [654 NE2d 1208, 630 NYS2d 960]
    In the Matter of the Arbitration between Oriskany Central School District, Appellant, and Edmund J. Booth Architects, A.I.A., Respondent, et al., Defendant.
    Argued May 3, 1995;
    decided June 8, 1995

      APPEARANCES OF COUNSEL

      Scolaro, Shulman, Cohen, Lawler & Burstein, P. C., Syracuse (Ted H. Williams of counsel), for appellant.

      Sugarman, Wallace, Manheim & Schoenwald, L. L. P, Syracuse (Samuel M. Volcano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On June 1, 1984, plaintiff and defendant architect entered into a contract in which defendant agreed to perform architectural services in connection with the reroofing of the Oriskany Central High School and the Oriskany Elementary School. Article 9 of the contract provided for the arbitration of any disputes within a reasonable time after a dispute arose and with the proviso that no demand for the arbitration of a dispute could be made "after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.” Paragraph 11.3 of the contract stated that the "applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant Date of Substantial Completion of the Work.”

The parties agree that a six-year Statute of Limitations is applicable. Plaintiff argues that since the architect never certified that the work was substantially complete, there was no time bar when it commenced a lawsuit on April 8, 1992, alleging breach of contract for latent defects in the roof. On April 28, 1992, defendant architect served an answer which contained an affirmative defense of the Statute of Limitations and, on July 8, 1992, moved to dismiss the action on the grounds that arbitration was the appropriate remedy. Subsequently, on July 22, 1992, defendant requested that the motion to dismiss be converted into an application for an order compelling arbitration. On August 18, 1992, plaintiff cross-moved to dismiss the defendant’s affirmative defense of the Statute of Limitations.

On February 22, 1993, defendant architect made a written demand for arbitration. Supreme Court, on July 12, 1993, determined that the Statute of Limitations had not expired, stayed the action, and directed arbitration. The Appellate Division reversed, citing the Certificate of Suitability of December 18, 1985 and plaintiffs acceptance of the work on January 29, 1986. This Court granted leave to appeal.

We reject plaintiffs argument that the action is timely. Plaintiff and defendant signed a Certificate of Suitability and Acceptance of Building for Pupil Occupancy, dated December 18, 1985, which contained the statement, "Project was completed per drawings and specifications dated June 5, 1984 and approved Change Orders.” Because no Certificate of Substantial Completion was ever issued, the Certificate of Suitability and Acceptance of Building for Pupil Occupancy was an appropriate substitute here. This certificate complied with the condition for the issuance of a Certificate of Substantial Completion in paragraph 9.8.1 of the General Conditions of the Contract for Construction, incorporated into the contract between plaintiff and defendant by paragraph 11.2, specifically, that the work be substantially complete. Paragraph 8.1.3 of the General Conditions defined the date of substantial completion as "the Date certified by the Architect when construction is sufficiently complete, in accordance with the Contract Documents, so the Owner can occupy or utilize the Work or designated portion thereof for the use for which it is intended.” Moreover, an Application and Certificate for Payment, indicating that the work was complete and that final payment could be made, was signed by the architect on January 9, 1986. The President of the Board of Education and the District Superintendent of Schools also signed the "Board of Education’s Acceptance of Building for Pupil Occupancy” on January 27, 1986. Since the original action was barred by the Statute of Limitations, CPLR 205 (a), which gives a plaintiff whose timely action has been dismissed without prejudice six months in which to commence another action is not applicable. Thus, this action is time-barred.

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

Order affirmed, with costs, in a memorandum.


text:
    [654 NE2d 1209, 630 NYS2d 961]
    The People of the State of New York, Appellant, v Willie Jones, Respondent.
    Decided June 8, 1995

      APPEARANCES OF COUNSEL

      Howard R. Relin, District Attorney of Monroe County, Rochester (Wendy Evans Lehmann of counsel), for appellant.

      Edward J. Nowak, Public Defender of Monroe County, Rochester (James Eckert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed.

The People raised for the first time at the Appellate Division the specific argument that further neurological testing was not necessary to prove a justification defense. Because this argument is unpreserved, the Appellate Division’s conclusion that County Court abused its discretion in denying authorization for further neurological testing is not reviewable in this Court (see, People v Dodt, 61 NY2d 408, 416). Because this unreviewable ruling forms an independent ground for reversal of the judgment of conviction, and because the results of the further neurological evaluation are unknown, we do not reach the question whether County Court abused its discretion in limiting the scope of expert testimony.

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:
    [654 NE2d 1210, 630 NYS2d 962]
    Thomas R. Smith, Appellant, v Shell Oil Company et al., Defendants and Third-Party Plaintiffs-Respondents. Island Pump and Tank Corp., Third-Party Defendant-Respondent.
    Argued May 2, 1995;
    decided June 8, 1995
    APPEARANCES OF COUNSEL

      Sordi & Sordi, Glen Cove (Michael C. Sordi of counsel), for appellant.

      Ahmuty, Demers & McManus, Albertson (Richard J. DaVolio and Frederick B. Simpson of counsel), for Shell Oil Company, defendant and third-party plaintiff-respondent.

      Smith Mazure Director Wilkins Young Yagerman & Tarallo, P. C., New York City (Robert I. Elan of counsel), for Rye Shell Auto Care, Ltd., defendant and third-party plaintiff-respondent.

      Fiedelman & Hoefling, Jericho (Ross P. Masler of counsel), for third-party defendant-respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff was injured when he jumped off an eight-foot A-frame stepladder, which began to tip after he climbed four or five of its stairs to inspect a free-standing, illuminated Shell Oil sign at Rye Shell Auto Care, a Shell service station in Rye, New York. Plaintiff was employed as a maintenance mechanic by third-party defendant Island Pump and Tank Corp. (Island). Island had a contract with Shell Oil Company to effect maintenance and miscellaneous repairs to Shell’s facilities on Long Island and in Weschester County. On the date he was injured, plaintiff had been assigned to fix the sign. After he was injured, plaintiff again climbed the ladder, determined that the sign was not working because four lightbulbs needed to be replaced and thereafter replaced the bulbs.

Plaintiff commenced this action against Shell and Rye Shell, as owner and contractor, relying solely on Labor Law § 240 (1). Defendants interposed an action for indemnification against Island as plaintiff’s employer. Rye Shell, joined by Shell and Island, subsequently moved for summary judgment dismissing the complaint. Plaintiff cross-moved for summary judgment in his favor on the issue of liability. Supreme Court granted defendants’ and Island’s motions for summary judgment, denied plaintiff’s cross motion, and dismissed the complaint, reasoning that the Shell sign was neither a building nor a structure within the meaning of Labor Law § 240. The Appellate Division affirmed on the ground that changing a lightbulb is not repairing as that term is used in Labor Law § 240 (1) (205 AD2d 681). This Court granted plaintiff leave to appeal.

We agree with plaintiff that the Shell sign is a structure as that term is used in the statute. In Lewis-Moors v Contel of N. Y. (78 NY2d 942) we held that a telephone pole with attached hardware, cable and support systems constitutes a structure under Labor Law § 240 (1). Like a telephone pole, the free-standing Shell sign is a " 'production or piece of work artificially built up or composed of parts joined together in some definite manner’ ” (id., at 943, quoting Caddy v Interborough R. T. Co., 195 NY 415, 420), and is therefore a structure.

Summary judgment was properly granted, however, because plaintiff was not engaged in any of the statute’s enumerated activities at the time of the accident. Changing a lightbulb is not "erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (Labor Law § 240 [1]). An illuminated sign with a burnt-out lightbulb is not broken, and does not need repair. Rather it needs maintenance of a sort different from "painting, cleaning or pointing,” the only types of maintenance provided for in the statute.

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

Order affirmed, with costs, in a memorandum.


text:
    [654 NE2d 1211, 630 NYS2d 963]
    The People of the State of New York, Respondent-Appellant, v Robert A. Lawrence, Appellant-Respondent. The People of the State of New York, Respondent, v Robert A. Lawrence, Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Argued April 25, 1995;
    decided June 8, 1995

      APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender of Oneida County, Utica (Esther Cohen Lee of counsel), for appellant-respondent and appellant.

      Michael A. Arcuri, District Attorney of Oneida County, Utica (William M. Weber of counsel), for respondent-appellant and respondent.
   OPINION OF THE COURT

Memorandum.

On defendant’s appeal and the People’s cross appeal, the order of the Appellate Division, reducing defendant’s conviction from criminal possession of a controlled substance in the fifth degree to criminal possession of a controlled substance in the seventh degree, should be modified by reinstating defendant’s conviction and sentence- for criminal possession of a controlled substance in the fifth degree and the case remitted to the Appellate Division, Fourth Department, for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) and, as so modified, affirmed. On defendant’s appeal from the order affirming the denial of his CPL 440.10 motion, the order of the Appellate Division should be affirmed.

On his direct appeal, defendant argues that because the Appellate Division held that there was insufficient evidence to establish that he had actual knowledge of the weight of the cocaine in the vials he possessed to support his conviction for criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06 [5]), there is also insufficient evidence to sustain the conviction for criminal possession of a controlled substance with the intent to sell (Penal Law § 220.16 [1]). Defendant further argues that reversal is warranted based on the admission of the police investigator’s "expert” opinion on purported routine conduct of a drug dealer as evidence that defendant’s conduct was criminal. Neither of these issues has been properly preserved for our review. Consequently, on defendant’s appeal, the Appellate Division order should be affirmed.

On their cross appeal, the People contend that there was sufficient evidence to sustain the conviction for criminal possession of a controlled substance in the fifth degree and that the Appellate Division erred in reducing the conviction "on the law” on that ground. It is now firmly established that when a defendant’s appeal is directed at the People’s failure to prove the defendant had knowledge of the weight of the controlled substance, such challenge must be specifically preserved in order to give rise to a "question of law” (see, People v Hill, 85 NY2d 256, 259; People v Gray, 86 NY2d 10; People v Ryan, 82 NY2d 497; see also, People v Bynum, 70 NY2d 858; People v Dekle, 56 NY2d 835).

Here, defendant failed to interpose any objection that specifically preserved his right to challenge the sufficiency of the People’s evidence regarding his knowledge of the weight of the cocaine. Defendant’s trial motion to dismiss only challenged the sufficiency of proof on the element of possession, alleging that the police inspector was not credible and did not actually observe any controlled substance in defendant’s possession. No reference was made to insufficient proof to establish defendant’s knowledge of the weight of the drugs he possessed. Finally, defendant’s motion to set aside the verdict was insufficient to preserve the objection for our review. Thus, the Appellate Division erred in treating the question of the sufficiency of the People’s proof regarding defendant’s knowledge of the weight of the cocaine as a question of law. Consequently, on the People’s appeal, we reverse and remit to the Appellate Division for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Cona, 49 NY2d 26, 34).

Defendant’s remaining contentions have been considered and are without merit.

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

On appeal No. 1, order modified and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein. On appeal No. 2, order affirmed in a memorandum.


text:
    [655 NE2d 393, 631 NYS2d 280]
    Kim Moss, Appellant, v JNK Capital Ltd., Defendant, and Supermarkets General Corp., Doing Business as Pathmark, Respondent.
    Decided June 8, 1995

      APPEARANCES OF COUNSEL

      Ciarelli & Dempsey, Melville (Patricia A. Dempsey of counsel), for appellant.

      Krai, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola (Henry M. Primavera of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (211 AD2d 769).

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


text:
    The People of the State of New York, Respondent, v Michael Sanchez, Appellant.
    Decided June 8, 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 of mootness as a result of defendant’s plea of guilty.


author: Simons, J.

text:
    [654 NE2d 1213, 630 NYS2d 965]
    The People of the State of New York, Respondent, v Niles Atkins, Appellant.
    Argued April 26, 1995;
    decided June 13, 1995
    APPEARANCES OF COUNSEL

      Robert S. Dean, New York City, and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Elizabeth C. Brennan and Donald J. Siewart of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of Appellate Term should be affirmed.

Defendant was arrested and charged with operating a motor vehicle while impaired by drugs (Vehicle and Traffic Law § 1192 [4]) after he was found behind the wheel of a vehicle which had collided with a parked vehicle. Blood withdrawn from defendant after his arrest tested positively for the presence of phencyclidine, or PCP.

Defendant moved to suppress the results of the blood test, arguing that the test was administered in violation of Vehicle and Traffic Law § 1194 (2) because the blood was withdrawn more than two hours after his arrest. The motion was decided on a brief stipulated account of the facts surrounding the administration of the test, as follows. Defendant was arrested at the scene of the accident and taken to a hospital for examination. Within two hours of his arrest, defendant consented to the administration of a blood test. The test, however, was not administered until two hours and 28 minutes after his arrest. Criminal Court denied the motion, and Appellate Term affirmed, finding the two-hour requirement of Vehicle and Traffic Law § 1194 (2) to be inapplicable because defendant had voluntarily consented to the blood test.

In People v Ward (307 NY 73), this Court held that former section 71-a of the Vehicle and Traffic Law — the predecessor "deemed consent” statute to Vehicle and Traffic Law § 1194— had no application where the defendant expressly and voluntarily consented to a blood test (id., at 76). Noting that the deemed consent statute "was concerned, not with those who consented to take the test, but with those who were required to submit”, we found it "difficult to perceive any necessity for the protections embodied in [the deemed consent statute] where the driver freely volunteers to take the test and have his blood analyzed” (id., at 77). It follows from our decision in Ward that the two-hour limitation contained in Vehicle and Traffic Law § 1194 (2) (a) has no application here where, as found by Appellate Term, defendant' expressly and voluntarily consented to administration of the blood test.

Defendant’s contention that the two-hour limitation in section 1194 (2) (a) was intended by the Legislature to be an absolute rule of relevance, proscribing admission of the results of any chemical test administered after that period regardless of the nature of the driver’s consent, is unpersuasive. This argument is completely undermined by the lack of a corresponding time limit for court-ordered chemical testing under section 1194 (3) (see, People v McGrath, 135 AD2d 60, affd on opn below 73 NY2d 826) or the additional test which the driver must be permitted to have administered by a physician of his or her choosing under section 1194 (4) (b) (see, People v Finnegan, 85 NY2d 53, 59).

Simons, J.

(dissenting). In my view the results of the blood test must be suppressed. The two-hour limitation is a legislative determination on relevance: if the sample has not been taken within two hours the evidence is inadmissible. The rule the majority establishes ignores the probative uses of the test, suggesting that somehow there is less need for a reliable blood test where defendant has "actually” consented to it. An untimely test does not become more reliable, however, just because the driver voluntarily consented.

I base my view on the legislative history of the statute. In 1941, the Legislature amended former section 70 (5) of the Vehicle and Traffic Law to allow, for the first time, the admission at trial of the results of a chemical test for blood alcohol, provided that the test had been administered within two hours of arrest. Because the human body rapidly metabolizes alcohol, the two-hour requirement was enacted to ensure that the results of the blood test constituted probative evidence of the defendant’s blood alcohol level at the time of operation of the vehicle (see, Mem of Assemblyman Peterson [Assembly Sponsor] in support, Bill Jacket, L 1941, ch 726; People v Gursey, 22 NY2d 224, 229). Opposition to the amendment primarily centered on two issues: its constitutionality, and the question of evidentiary relevance. Some opponents thought the bill ought to require a blood test taken within two hours of vehicular operation, not of arrest, in order to provide better evidence of the driver’s level of alcohol consumption (see, Report of Comm on Criminal Courts, Law and Procedure of Assn of Bar of City of NY, Bill Jacket, L 1941, ch 726). The Legislature was aware of this criticism, but also of the practicalities involved in locating, arresting, and arranging to test the driver. Thus, the two-hour limit is, to some extent, a compromise, but one that provided a bright-line evidentiary rule easily applicable by law enforcement and by the courts (see, e.g., People v Brol, 81 AD2d 739; People v Keane, 76 AD2d 963; Matter of White v Melton, 60 AD2d 1000; Matter of White v Fisher, 49 AD2d 450).

The provision enacting a two-hour time limit is thus quite distinct, both in its history and its purpose, from the statutory provisions embodying the concept of deemed consent (see, Matter of Viger v Passidomo, 65 NY2d 705; Matter of White v Fisher, 49 AD2d 450, supra). Even after the Vehicle and Traffic Law was amended to allow the admission into evidence of blood tests performed in accordance with the statutory provisions, relatively few such tests were admitted because of the prevalent view that only a completely voluntary test was constitutionally acceptable, and few drivers voluntarily consented (see, People v Ward, 307 NY 73, 76-77 [discussing legislative history of Vehicle and Traffic Law former § 71-a]). Through the concept of deemed consent, whereby every person operating a motor vehicle on the State’s highways was deemed to have thereby given consent to a blood test at the direction of law enforcement (see, Vehicle and Traffic Law former § 71-a; current Vehicle and Traffic Law § 1194), all testing was effectively rendered "voluntary,” or at least consensual. The Legislature recognized, however, that some drivers, particularly when their faculties were impaired by alcohol, might physically resist the taking of a blood sample. If law enforcement officials were required to employ physical force to obtain the blood sample in those circumstances, the test results would be the product of coercion and would no longer satisfy the demands of due process. In order to obviate the need for physical force, the deemed consent amendment provides the driver with an opportunity to affirmatively withdraw that consent, upon being informed of the consequences of that withdrawal, i.e., suspension of driving privileges and admission of the driver’s refusal to take the test at trial (see, Interim Report of Joint Legis Comm on Motor Vehicle Problems, 1953 McKinney’s Session Laws of NY, at 1912-1928). By this means the statute created, in effect, a constitutionally legitimate device for extracting submission to the test from an otherwise reluctant driver. The consent provision was included to permit a driver who had refused to take the test to subsequently agree to it and avoid suspension, once properly informed of his rights and obligations.

The majority rely upon People v Ward (307 NY 73, supra). That case came before the Court shortly after the deemed consent provisions were added to the Vehicle and Traffic Law in 1953. It presented the question whether the results of the defendant driver’s blood alcohol test were properly admitted where the driver had not been informed of his right to refuse a test. However, defendant Ward had never indicated any reluctance to submit to the blood test; accordingly, we concluded that the protections embodied in the statute had no application to circumstances where the driver without question voluntarily consents to the test, and where there is thus simply no need to warn him of the consequences to induce him to give consent. Significantly, at the time of our decision in Ward, the two-hour limit was contained in an entirely different section of the Vehicle and Traffic Law from the deemed consent provisions, and clearly did not constitute one of the statutory "protections” within the contemplation of that decision. Simply stated, the Ward decision dealt with the issue of coercion, not the two-hour time limit or the probative value of the evidence. The majority, nevertheless, concludes that because the two-hour limit and the deemed consent provisions are now included within the same section of the Vehicle and Traffic Law, the holding of Ward reaches out to embrace as well the two-hour limit, even though that provision was not part of the statute that came before us in Ward.

The statutory history of the 1970 amendment which brought the two-hour limit and the deemed consent provisions into one statutory section is instructive. The primary purpose of the amendment was to render a blood alcohol content of 0.15% not merely prima facie evidence of intoxication, but an independently sufficient basis for the statutory imposition of misdemeanor liability (see, Governor’s Mem approving L 1970, ch 275, 1970 McKinney’s Session Laws of NY, at 3085). Almost as an afterthought, the amendment performed some housekeeping tasks as well, by making "a number of clarifying and conforming amendments” which brought all the conditions for admissibility of chemical tests into one section of the Vehicle and Traffic Law (id., at 3086). Nothing supports the inference drawn by some intermediate appellate courts (see, e.g., People v Mills, 124 AD2d 600, lv denied 69 NY2d 953) and by the majority here that the Legislature thereby intended to fundamentally alter the applicability of the . two-hour limit and restrict its use to only some of the procedural contexts in which it had formerly been applied. The two-hour limit was chosen by the Legislature to validate the probative uses of the results of a blood alcohol test. Those probative uses, and the concomitant need for a relevant blood sample, are not lessened because the driver has "voluntarily” consented to the test.

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

Order affirmed in a memorandum.

      . Vehicle and Traffic Law former § 71-a provided in part: "1. Any person who operates a motor vehicle * * * in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition.”
      The statutory language was substantially similar to that contained in the present Vehicle and Traffic Law § 1194 (2), although the two-hour requirement had not yet been incorporated into the statute.

      . To the extent that defendant argues that his consent to the blood test was not voluntary, that issue was not raised as a basis for suppression before the trial court or otherwise preserved for our review as a matter of law.

       Former section 1194-a permitted the taking of a blood sample pursuant to court order in cases of death or serious injury, even though the driver has refused to submit to the test. No two-hour limit is imposed on court-ordered testing in recognition of "the flexibility which is sometimes necessary to obtain a court order during hours when court is not in session” (see, People v McGrath, 135 AD2d 60, 63, affd on opn below 73 NY2d 826). The subject is now covered by section 1194.


text:
    [654 NE2d 1216, 630 NYS2d 968]
    The People of the State of New York, Respondent, v Dushon Foster, Also Known as Ivien Jones, Appellant.
    Decided June 13, 1995

      APPEARANCES OF COUNSEL

      Paul Skip Laisure, New York City, and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Ellen Sue Handman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

During a Mapp hearing, Officer Davin testified that on January 11, 1990, while sitting in uniform in a marked patrol car parked on West Thirty-third Street in Manhattan, he was approached by a uniformed United Parcel Service driver. The driver pointed to three males walking on the sidewalk about 20 feet from the officer, and told him that the three men had "just robbed someone.” All three suspects, including defendant, wore new leather jackets. Defendant wore a black jacket, his companion wore a brown jacket with the price tags still attached, and the third wore a red jacket.

The officer began following the trio on foot. Shortly thereafter, the trio turned and saw him. Upon seeing the officer, the individual wearing the brown jacket fled across Thirty-third Street toward Fifth Avenue, discarding the jacket as he ran, and disappeared. At the same time, defendant and the individual wearing the red jacket walked about five feet and entered the lobby of the Empire State Building. The officer chased the individual who ran across Thirty-third Street, but lost him.

Upon returning to the area around the Empire State Building, Officer Davin began to describe what had occurred to another police officer. During his narrative, Officer Davin observed defendant and his companion emerge, still wearing the leather jackets, from a different entrance to the lobby. Officer Davin grabbed them, placed them against a wall of the building, and frisked and handcuffed them. After receiving a radio transmission concerning a robbery of jackets from a clothing store located one block away, the officer transported defendant and his companion to the store, where they were identified and arrested. Based upon this testimony, Supreme Court denied defendant’s motion to suppress the physical evidence at the conclusion of the hearing. Defendant was convicted, after a jury trial, of second degree burglary and two counts of second degree robbery, and sentence was imposed. The Appellate Division, with one Justice dissenting, affirmed.

Defendant argues that his detention was unwarranted. The determination that reasonable suspicion existed to justify the detention of defendant involves a mixed question of fact and law (see, People v Hicks, 68 NY2d 234, 238), and is supported by evidence in the record (see, People v Benjamin, 51 NY2d 267, 270). Accordingly, our review of the propriety of the detention is at an end. Defendant also argues that the officer was not justified in handcuffing him. In the circumstances presented, however, the officer was justified in using handcuffs to protect the safety of officers and bystanders (see, People v Allen, 73 NY2d 378, 379-380). Accordingly, the courts below did not err in denying defendant’s motion to suppress the physical evidence.

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:
    [654 NE2d 1218, 630 NYS2d 970]
    Pepi S. Summer, Appellant, v Donald L. Summer, Respondent.
    Decided June 13, 1995

      APPEARANCES OF COUNSEL

      Beckerman & Beckerman, Rochester (Gerald Beckerman and Betsy L. Album of counsel), for appellant.

      Brown & Kelly, Buffalo (Philip B. Abramowitz of counsel), and Frank A. Aloi, Mendon, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by reinstating that portion of Supreme Court’s judgment that awarded plaintiff-wife lifetime maintenance and, as so modified, affirmed.

The Appellate Division’s reliance on Hartog v Hartog (194 AD2d 286, 295, mod 85 NY2d 36) and Harmon v Harmon (173 AD2d 98, 108) for its award of durational maintenance to the wife based on her ability to become self-supporting fails in the light of this Court’s recent modification of Hartog (85 NY2d 36, supra). We held that Domestic Relations Law § 236 (B) (6) (a) requires the court to consider the marital standard of living in making maintenance awards, among other factors (85 NY2d, at 51-52, supra). Although there is no automatic entitlement to lifetime maintenance, the Appellate Division failed entirely to consider the factor of the parties’ marital standard of living. Thus, we modify that Court’s order with respect to the duration of maintenance.

Because Supreme Court’s determination that the wife is incapable of becoming self-supporting at a level roughly commensurate with the marital standard of living more nearly comports with the weight of the evidence, we reinstate its judgment insofar as it awarded the wife permanent maintenance.

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 modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.


author: Titone, J.

text:
    [654 NE2d 1219, 630 NYS2d 971]
    The People of the State of New York, Respondent, v Pasqual Carpenter, Also Known as Pascal Carpenter, Appellant.
    Decided June 14, 1995

      APPEARANCES OF COUNSEL

      Frank Loss, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Washington, 86 NY2d 189 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Judge Titone dissents in an opinion.

Titone, J.

(dissenting). As I stated in People v Washington (86 NY2d 189 [decided herewith]), I believe that material generated by the office of the Chief Medical Examiner (OCME) is subject to disclosure under CPL 240.45. Accordingly, I would reverse the order of the Appellate Division affirming the denial of defendant’s CPL 440.10 motions and remit for a hearing as to whether the undisclosed material was the "duplicative equivalent” of other material that was timely disclosed. I note that in this case and in People v Johnson (85 NY2d 1019 [decided herewith]), the prosecution had given the defense the OCME autopsy reports, but not the audiotapes that were made in connection with the autopsies. This partial disclosure reinforces my view that OCME-created material should be treated as Rosario material, since the People clearly have ready access to it and there is no sound legal reason not to require its disclosure. Indeed, as is evidenced here and in Johnson, the practical result of the majority’s rule will be, quite simply, to authorize the People to pick and choose among the OCME material they will disclose.

Order affirmed, etc.


text:
    [655 NE2d 393, 631 NYS2d 280]
    The People of the State of New York, Respondent, v Steven Smith, Appellant.
    Decided June 14, 1995
    APPEARANCES OF COUNSEL

      Henry R. Deutsch, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Washington, 86 NY2d 189 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Judge Titone dissents for the reasons stated in his dissenting opinions in People v Washington (86 NY2d 189 [decided today]) and People v Carpenter (85 NY2d 1016 [decided today]).


text:
    [655 NE2d 394, 631 NYS2d 280]
    The People of the State of New York, Respondent, v Steven Johnson, Appellant.
    Decided June 14, 1995

      APPEARANCES OF COUNSEL

      Diane E. Courselle, New York City, and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Washington, 86 NY2d 189 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Judge Titone dissents for the reasons stated in his dissenting opinions in People v Washington (86 NY2d 189 [decided today]) and People v Carpenter (85 NY2d 1016 [decided today]).


text:
    [655 NE2d 394, 631 NYS2d 281]
    The People of the State of New York, Respondent, v Carlos Railey, Appellant.
    Decided June 14, 1995

      APPEARANCES OF COUNSEL

      Vaughn-Michael H. Cordes, New York City, and E. Joshua Rosenkranz for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500,4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed (see, People v Washington, 86 NY2d 189 [decided today]).

Concur: Chief Judge Kaye and Judges Simons, Bellacosa, Smith, Levine and Ciparick. Judge Titone dissents for the reasons stated in his dissenting opinions in People v Washington (86 NY2d 189 [decided today]) and People v Carpenter (85 NY2d 1016 [decided today]).


text:
    In the Matter of Cornell Associates Realty, Ltd., et al., Petitioners, and Mary L. Pinckney, Appellant, v Gail S. Shaffer, as Secretary of State of the State of New York, et al., Respondents-Appellants. Domenica Pelkey, Intervenor.
    Submitted April 10, 1995;
    decided June 14, 1995
   On the Court’s own motion, appeal taken by petitioner-appellant Pinckney dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal by respondents-appellants Shaffer and the New York State Department of State denied.

Judge Levine taking no part.


text:
    Donaldson, Lufkin & Jenrette, Inc., et al., Appellants, v Vigilant Insurance Company, Inc., et al., Respondents.
    Submitted April 17, 1995;
    decided June 14, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed that portion of Supreme Court’s order denying plaintiffs’ motion to amend the complaints, dismissed upon the ground that that portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Wilfred Flecha, Appellant, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Submitted April 10, 1995;
    decided June 14, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic. Motion, insofar as it seeks other relief, denied.


text:
    In the Matter of Lake Anne Realty Corp. et al., Respondents, v Planning Board, Town of Blooming Grove, et al., Appellants. (Matter No. 1.) Lake Anne Realty Corp. et al., Respondents, v Town of Blooming Grove et al., Appellants. (Matter No. 2.)
    Submitted April 17, 1995;
    decided June 14, 1995
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally détermine the consolidated action/proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    [655 NE2d 396, 631 NYS2d 282]
    The People of the State of New York, Respondent, v Thomas Bianchi, Appellant.
    Decided June 15, 1995

      APPEARANCES OF COUNSEL

      Allen Fallek, New York City, and Daniel L. Greenberg for appellant.

      Charles J. Hynes, District Attorney of Kings County, Brooklyn (Keith Dolan of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed. The issue whether the police had reasonable suspicion to stop defendant is a mixed question of law and fact. There being evidence in the record to support the determination of the courts below, the issue is beyond further review by this Court (People v Harrison, 57 NY2d 470).

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


text:
    [654 NE2d 1220, 630 NYS2d 972]
    The People of the State of New York, Respondent, v Anthony Graves, Appellant. The People of the State of New York, Respondent, v Darnell Williams, Appellant. The People of the State of New York, Respondent, v Kevin Kane, Also Known as Andre Kane, Appellant.
    Argued April 25, 1995;
    decided June 15, 1995

      APPEARANCES OF COUNSEL

      Ira Mickenberg, New York City, for appellant in the first above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Donald J. Siewert and Alan Gadlin of counsel), for respondent in the first above-entitled action.

      Edith Blumberg, New York City, for appellant in the second above-entitled action.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Alan Gadlin and Donald J. Siewert of counsel), for respondent in the second above-entitled action.

      Hunton & Williams, New York City (Christopher M. Mason of counsel), and Philip L. Weinstein for appellant in the third above-entitled action.

      Richard A. Brown, District Attorney of Queens County, Kew Gardens (John M. Castellano and Steven J. Chananie of counsel), for respondent in the third above-entitled action.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed.

Each of these appeals involves a prosecution arising out of a street-level "buy and bust.” In all three, the trial courts permitted the People to adduce "expert” testimony by police officers regarding the distinctive roles and practices of some street dealers. The apparent purpose of this evidence in People v Graves and People v Williams was to explain to the jury why the defendants did not have "buy money” or drugs on their persons when they were arrested shortly after the alleged sales. In People v Kane, the purpose was to bolster the People’s theory that the defendant had been a participant in the charged narcotics sale even though he had not handled either the drugs or the buy money.

To the extent that the trial objection of the defendant in People v Graves may be construed to rest on grounds of relevance, the objection was properly denied, since proof of the habits of some street drug dealers is at least marginally probative of what others in the same business might do. The argument now made by the defendant in People v Williams that the limited probative worth of this evidence is outweighed by its prejudicial effect was not made by him or any of the other defendants at trial. Similarly, none of the defendants made the argument now made on appeal by the defendant in People v Graves, le., that the practices of street dealers in ridding themselves of incriminating evidence are not a proper subject for "expert” testimony. Accordingly, regardless of their merits, none of those arguments can be considered on these appeals.

Similarly unreviewable is defendant Kane’s present claim that his conviction should be reversed because of the prosecutor’s failure to turn over a police expense report that arguably constituted Rosario material. When the report’s existence was disclosed during the police officer’s testimony, the court deferred further discussion about the prosecutor’s obligation to produce it, instead permitting defense counsel to question the witness about the report’s availability. Counsel did not mention the report again and no sanction either for its belated disclosure or for its nonproduction was sought. Accordingly, any claim for relief defendant might have as a result of the possible violation of his Rosario rights must be deemed abandoned (cf., People v Rogelio, 79 NY2d 843).

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

Orders affirmed in a memorandum.


text:
    Lawrence A. Ancrum et al., Respondents, v William Eisenberg, Appellant.
    Submitted May 22, 1995;
    decided June 15, 1995
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the filed stipulation for judgment absolute is not a valid stipulation within the meaning of CPLR 5601 (c).


text:
    In the Matter of Thomas Chisholm, Appellant, v Frank E. Irvin, as Superintendent of Wende Correctional Facility, et al., Respondents.
    Submitted April 3, 1995;
    decided June 15, 1995
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    Alice Clissuras, Appellant, v Concord Village Owners, Inc., et al., Respondents.
    Submitted May 30, 1995;
    decided June 15, 1995
   Appeal, insofar as taken from the letter of the Clerk of the Appellate Division, Second Department, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the letter is neither a judgment nor an order from which an appeal to this Court may be taken (see, CPLR 5512 [a]; 5602 [a]); appeal, insofar as taken from four orders of the Appellate Division, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the four Appellate Division orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Giovanni Del Gizzo, Appellant, v Board of Regents of the University of the State of New York et al., Respondents.
    Submitted April 17, 1995;
    decided June 15, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying petitioner’s motion for reargument, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that part of the December 13, 1994 Appellate Division order that denied petitioner’s motion for poor person relief and assignment of counsel, dismissed upon the ground that that portion of the December 13, 1994 Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Federal Home Loan Mortgage Corporation, Plaintiff, v New York State Division of Housing and Community Renewal, Defendant.
    Decided June 15, 1995
   Certification of question 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:
    In the Matter of the Dismissal of 1994 Causes for Failure to Perfect. Matter of Heitzer v Coughlin.
    Submitted April 3, 1995;
    decided June 15, 1995
   Motion for leave to appeal dismissed upon the ground that the movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of the Court of Appeals (see, 22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Matthew Lee et al., Petitioners, and Inner City Press/Community on the Move, Inc., Appellant, v New York City Department of Housing Preservation and Development et al., Respondents.
    Submitted April 10, 1995;
    decided June 15, 1995
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that reversed two Supreme Court orders granting provisional relief, dismissed upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    Marine Midland Bank, N.A., Respondent, v Arthur Green et al., Appellants.
    Submitted April 3, 1995;
    decided June 15, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that denied defendants’ motion for leave to appeal to this Court, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied, with $100 costs and necessary reproduction disbursements.


text:
    The People of the State of New York, Respondent, v Barry Gibbs, Appellant.
    Submitted April 10, 1995;
    decided June 15, 1995
   Motion, insofar as it seeks reargument of this Court’s August 27, 1990 order [see, 76 NY2d 851], dismissed as untimely; motion, insofar as it is treated as a motion for leave to appeal from the Appellate Division’s January 22, 1990 order, dismissed upon the ground that it does not lie (see, CPL 450.90; CPLR 5602). Petition for a writ of error coram nobis dismissed. There is no authority for initiating a writ of error coram nobis in the Court of Appeals.


text:
    The People of the State of New York, Respondent, v Ronnie James, Appellant.
    Submitted April 10, 1995;
    decided June 15, 1995
   Motion for leave to appeal dismissed upon the ground that no civil appeal lies to the Court of Appeals from an order entered in a criminal proceeding (see, NY Const, art VI, § 3 [b]; CPL 450.90; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Ricardo Recio, Appellant.
    Submitted April 3, 1995;
    decided June 15, 1995
   Motion for leave to appeal dismissed and, on the Court’s own motion, appeal taken as of right dismissed, each without costs, upon the ground that no civil appeal lies to the Court of Appeals from an order entered in a criminal proceeding (see, NY Const, art VI, §3 [b]; CPL 450.90; CPLR 5601, 5602). Motion for poor person relief dismissed as academic.


text:
    Alan J. Reinach, Respondent, v Arthur M. Wisehart, Appellant.
    Submitted April 3, 1995;
    decided June 15, 1995
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying defendant’s motion for leave to appeal to this Court, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


author: Smith, J.

text:
    [652 NE2d 915, 629 NYS2d 169]
    In the Matter of AT/Comm, Inc., Appellant, v Peter Tufo, as Chair of the New York State Thruway Authority, et al., Respondents.
    Argued March 22,1995;
    decided May 4, 1995

      POINTS OF COUNSEL

      Stein, Zauderer, Ellenhom, Frischer & Sharp, New York City (Sidney H. Stein, Bertrand C. Sellier and Margaret A. Dale of counsel), and Hiscock & Barclay, Albany (Robert L. Adams of counsel), for appellant.
    I. The electronic toll-collectian systems installed by the Thruway Authority involve improvement of the Thruway, thus mandating public bidding. (Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Gerzof v Sweeney, 22 NY2d 297; Elia Bldg. Co. v New York State Urban Dev. Corp., 54 AD2d 337; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Matter of Emigrant Indus. Sav. Bank, 75 NY 388; Matter of New York State Assn. Plumbing-Heating-Cooling Contrs. v Egan, 86 AD2d 100, 56 NY2d 1030, 60 NY2d 882, 102 AD2d 901, 65 NY2d 793; Matter of General

      Bldg. Contrs. v State of New York, 89 Misc 2d 279; Matter of Hanover Sand & Gravel v New York State Thruway Auth., 65 AD2d 860; Monroe Sav. Bank v First Natl. Bank, 50 AD2d 314; Wahle, Phillips Co. v 59th St.-Madison Ave. Co., 153 App Div 17, affd sub nom. Wahle, Phillips Co. v German Theatre, 214 NY 684.) II. Substantial completion of the project does not render the instant appeal moot where the contract is void and the issues raised are novel, significant and will recur. (Matter of Anonymous [Boggs] v New York City Health & Hosps. Corp., 70 NY2d 972, 71 NY2d 994; Matter of Fosmire v Nicoleau, 75 NY2d 218, complaint dismissed sub nom. Nicoleau v Brookhaven Mem. Hosp. Ctr., 181 AD2d 815, 80 NY2d 754; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Matter of Hearst v Clyne, 50 NY2d 707; New York Pub. Interest Research Group v Regan, 91 AD2d 774; Matter of Hanover Sand & Gravel v New York State Thruway Auth., 65 AD2d 860; Matter of McCormick v Axelrod, 59 NY2d 568; Matter of Baumann & Sons v Board of Educ., 46 NY2d 1061; Matter of Stilsing Elec. v County of Albany, 97 AD2d 631.)

      Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Gerard E. Harper, Allan Blumstein, Michael P. Bowen and Anne T. Amann of counsel), Ralph J. Vecchio and Charles P.

      Randall, Albany, for Peter Tufo and another, respondents.
    I. The contract for the installation of electronic equipment at selected toll barriers is not a contract for the "construction, reconstruction or improvement” of the Thruway and thus is not subject to the public bidding requirement of Public Authorities Law § 359. (Matter of Citiwide News v New York City Tr. Auth., 62 NY2d 464; Matter of Exley v Village of Endicott, 51 NY2d 426; Jo & Wo Realty Corp. v City of New York, 157 AD2d 205, 76 NY2d 962; Matter of Ottaviano v New York City Hous. Auth., 176 AD2d 134; Matter of Burroughs Corp. v New York State Higher Educ. Servs. Corp., 91 AD2d 1078, 58 NY2d 609; Matter of Doyle Alarm Co. v Reville, 65 AD2d 916; American Totalisator Co. v Western Regional Off-Track Betting Corp., 44 AD2d 750; Hurd v Erie County, 34 AD2d 289; Matter of Mathalia Motors v City of Oneida, 105 Misc 2d 843; People v Mobil Oil Corp., 48 NY2d 192.) II. The read-only system cannot be an improvement because it is impermanent. III. The read-only contract falls within the "service” exception to competitive bidding statutes. (Matter of Burroughs Corp. v New York State Higher Educ. Servs. Corp., 91 AD2d 1078, 58 NY2d 609; American Totalisator Co. v Western Regional Off-

      Track Betting Corp., 44 AD2d 750.) IV. This appeal is moot because the interim contract has been substantially performed and the remedy sought is unavailable. (Matter of Hearst Corp. v Clyne, 50 NY2d 707; Matter of Capital Disk Greens v City of Albany, 195 AD2d 767, 83 NY2d 752; Elia Bldg. Co. v New York State Urban Dev. Corp., 54 AD2d 337; Matter of General Bldg. Contrs. v State of New York, 89 Misc 2d 279; Matter of United Pioneer Corp. v Office of Gen. Servs., 155 AD2d 849; S. T. Grand, Inc. v City of New York, 32 NY2d 300; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Gerzof v Sweeney, 22 NY2d 297; Matter of LaCorte Elec. Constr. & Maintenance v County of Schoharie, 190 AD2d 899, 81 NY2d 709; Woods Adv. v Koch, 178 AD2d 155.)

      Simpson Thacher & Bartlett, New York City (Thomas C. Rice of counsel), for Amtech Systems Corporation, respondent.
    Appellant’s argument that, if Amtech’s contract with the Thruway Authority were found to violate applicable public bidding rules Amtech cannot be paid for the work it has done, is totally without merit. (S. T. Grand, Inc. v City of New York, 32 NY2d 300; Gerzof v Sweeney, 22 NY2d 297; Elia Bldg. Co. v New York State Urban Dev. Corp., 54 AD2d 337; Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187; Vrooman v Village of Middleville, 106 Misc 2d 945.)
   OPINION OF THE COURT

Smith, J.

In this proceeding, the issue is whether the New York State Thruway Authority was required to seek public bids, under Public Authorities Law § 359, for installation of a provisional electronic toll-collection service. Because the contract did not require public bidding, we affirm.

In 1991, respondent New York State Thruway Authority (NYSTA) together with analogous agencies in New Jersey and Pennsylvania, formed an interagency committee (IAG) to evaluate electronic toll collection (ETC) systems which would be compatible among the three States. The IAG issued a request for proposals for both "read-only” and "read-write” systems. Read-only systems scan for information from a tag affixed to a vehicle windshield, similar to supermarket check-out scanners, and are designed generally for use on bridges and at toll barriers, where tolls are uniform. The read-write systems have the additional capability to register information onto the tag in the car, adjusting the account balance between entry and exit of the toll road. The read-write system is suitable for use where tolls are determined by entry and exit points on the Thruway. Petitioner AT/Comm, and respondent Amtech Systems, both ETC manufacturers, submitted proposals, as did others, for the contract to install ETCs at designated sites along the New York State Thruway. Petitioner and Amtech submitted proposals for a read-write system, but only Amtech submitted a proposal for a read-only system.

In 1993 NYSTA, without public bidding, entered into a $1.7 million contract with Amtech for the manufacture and installation of an interim, read-only system. NYSTA installed the system, pending the IAG’s selection of a fully integrated read-write system which would eventually replace it. This system, known as the "E-ZPass” system, was installed pursuant to a contract for the shorter duration of either two years or the implementation of the read-write ETC selected by the IAG, with options for three one-year renewals by NYSTA.

Petitioner commenced this CPLR article 78 proceeding by order to show cause seeking to enjoin enforcement of the contract between Amtech and NYSTA and to preclude NYSTA from entering into any contract for the implementation of an electronic toll collection system without first conducting public bidding pursuant to Public Authorities Law § 359. Supreme Court dismissed the petition, holding that the contract was not governed by public bidding requirements. The Appellate Division affirmed (200 AD2d 319), agreeing with Supreme Court that section 359 did not apply and that the contract was "more akin to a procurement contract for goods or services governed by Public Authorities Law § 2879 which simply requires the selection of contractors on a 'competitive basis’ ” (supra, at 321-322). This Court granted petitioner’s motion for leave to appeal.

Petitioner contends that the electronic toll collection system installed by NYSTA constitutes an "improvement” of the Thruway within the meaning of Public Authorities Law § 359, thus mandating public bidding. Respondents Amtech and NYSTA counter that the contract for the installation of electronic equipment at selected toll barriers is not a contract for the "construction, reconstruction or improvement” of the Thruway and thus is not subject to the public bidding requirement of Public Authorities Law § 359.

As a threshold matter, respondents Amtech and NYSTA argue that this proceeding is now moot. The contract provides that it expires at the earlier of either a two-year term or when the IAG implements another system. The contract has not yet expired and petitioner has sought to enjoin NYSTA from entering into any contract for an ETC absent public bidding. Nor has either party indicated that IAG has implemented another system. The issue is therefore not moot (see, Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714).

Regarding the merits, the pertinent Public Authorities Law provision, section 359, is entitled, "Construction, reconstruction, and improvement” and applies to the New York State Thruway. Subdivision (1) requires that "[a]ll such work shall be done pursuant to a contract * * * which shall be let to the lowest responsible bidder, by sealed proposals publicly opened, after public advertisement”. Petitioner casts the contract entered between Amtech and NYSTA as one for "improvement” under section 359 (1). Petitioner’s interpretation is incorrect.

There is a difference between improvements that require public bidding under section 359 and those that do not. Public Authorities Law § 359 requires public bidding where the work undertaken is for the construction, reconstruction or improvement of the actual road or passageway used for traffic. The aim of the E-ZPass system was not to improve the roadway but to improve the flow of traffic on it. Technological devices, predominantly electronic scanning equipment and computer hardware and software, readily removable, serve to enhance speedy toll collection. The E-ZPass system was more like a provision of goods and services than a physical improvement of the Thruway.

As we held in Matter of Citiwide News v New York City Tr. Auth. (62 NY2d 464, 472) "competitive bidding requirements impose a substantial restriction upon the activities of public entities and must be extended no further than reasonably contemplated.” This standard is generally balanced against the theme of protecting against fraud, favoritism, corruption, extravagance, and improvidence in the awarding of public contracts (id). In Citiwide, we stressed the necessity of examining the " 'total character of the arrangement’ ” to determine whether the projects under review fall within the ambit of competitive bidding statutes (id., at 472; see, Matter of Exley v Village of Endicott, 51 NY2d 426, 431-432). Here, a similar approach is required.

We agree with the prior courts that the contract here should be viewed as more similar to a "procurement” contract and that NYSTA’s determination was rational. Public Authorities Law § 2879 (2) describes a "procurement” contract as "any written agreement for the acquisition of goods or services of any kind, in the actual or estimated amount of five thousand dollars or more.” The contract here involves Am-tech’s service of providing NYSTA with an interim system in contemplation of a system to be implemented subsequently upon the recommendation of the IAG. The nature of the contract here, for goods and services, is more akin to a procurement contract. It involves equipment leased to NYSTA and expires either by the passage of time or action of the IAG, and attests to the soundness of an interpretation of section 359 as it relates to the facts here, that the contract does not involve "construction”, "reconstruction” or an "improvement” of the Thruway. Additionally, section 2879 requires "competitive” bidding as opposed to public bidding (Public Authorities Law § 2879 [3] [b] [i]). The selection process NYSTA used here easily meets that condition; NYSTA selected Amtech from several contenders who submitted proposals to the IAG.

Notably, the term "thruway” is defined in the Public Authorities Law as follows:

’’The term 'thruway’ shall mean generally a divided highway under the jurisdiction of the authority for mixed traffic with access limited as the authority may determine and generally with grade separations at intersections, and such bridges, buildings, tunnels, and other structures and facilities related thereto as the authority may determine” (Public Authorities Law § 351 [2]).

By this definition, it is apparent that the Legislature viewed the term "thruway” less broadly than petitioner here. The definition focuses generally upon physical structures — bridges, buildings, tunnels — and there is no mention of items more ephemeral in nature. Additionally, although only statutory interpretation is involved here and no deference, in the traditional sense, need be accorded NYSTA’s determination of what constitutes an "improvement” under the statute (see, Matter of Rosen v Public Empl. Relations Bd., 72 NY2d 42, 47-48; Matter of Town of Mamaroneck PBA v New York State Pub. Empl. Relations Bd., 66 NY2d 722, 724), the Legislature gave the Authority some power to determine what the term "thruway” encompasses (Public Authorities Law § 351 [2]).

The Appellate Division, in Matter of Hanover Sand & Gravel v New York State Thruway Auth. (65 AD2d 860), ruled that winter road abrasives (sand and gravel) were not an "improvement” of the Thruway under section 359. The materials at use here, electronic readers, antennae, metal boxes, etc., are admittedly far afield of the abrasives discussed in Hanover, but, analytically, they are closer to that than the structures set forth in the section 351 definition. The abrasives, in a practical and broad sense, "improved” the Thruway. Yet, the Appellate Division correctly held that section 359 did not apply. The same rationale applies here. Undoubtedly patrons’ use of the Thruway will be "improved” by, among other things, the speed of access, the lack of fumbling for correct currency, and more accurate record-keeping, but the Thruway itself will not be "improved” in the more tangible fashion apparently contemplated by the Legislature. Additionally, given the rapid development of technology in the fields of electronics and data processing, the materials provided under this contract for goods and services may be fairly obsolete in a limited span of time. The bulky antennae, metal boxes and readers may soon be replaced by items no larger than the contemporary "beeper.” Such items should not be considered "improvements” under this statute.

The public bidding requirement of section 359 is patterned after section 38 of the Highway Law (see, Mem of NY St Thruway Auth, 1954 McKinney’s Session Laws of NY, at 1498-1499). That statute also requires public bidding for "construction or improvement of a state highway” (Highway Law § 38) and, similarly, defines the term "highway” by reference to its more corporeal characteristics:

"A highway within the meaning of this chapter shall be deemed to include necessary sluices, drains, ditches, waterways, embankments, retaining walls and culverts * * * and also the approaches of any bridge or culvert beginning at the back of the abutments. The pavement over any such bridge or culvert may also be included as a part of the highway provided such pavement is separated from such structure by an earth fill” (Highway Law § 2 [4]).

There is no reference in Highway Law § 38 or Public Authorities Law § 359 to structures which are readily removable.

Public Authorities Law § 359 governs construction, reconstruction, or improvements to the Thruway. The contract at issue here plainly does not address those criteria. It involves leased equipment and provides for maintenance services and even additional technical services if requested. A contract of this nature, contemplating an ongoing relationship with the vendor for elements involving computer software, equipment maintenance, and technical assistance, cannot be construed to fall within the ambit of section 359.

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

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

Order affirmed, with costs.