text:
    [670 NE2d 444, 647 NYS2d 160]
    The People of the State of New York, Respondent, v Evaristo Jardin, Appellant.
    Argued June 4, 1996;
    decided July 9, 1996

      APPEARANCES OF COUNSEL

      Marta E. Nelson, New York City, and Daniel L. Greenberg for appellant.

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Robert L. Moore and Joseph N Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following a jury trial, defendant was convicted of rape in the first degree. The evidence was that on June 27, 1990, late at night, the complainant, who knew the 60-year-old defendant, went to his apartment to help him with some homework. After the assistance, when she attempted to leave, defendant forced her to engage in sexual intercourse. Defendant was arrested at the apartment after a neighbor, observing a portion of the attack through a window, reported a possible rape to the police and they arrived while the complainant was still in the apartment. Subsequent testing revealed sperm in the vagina of the complainant but an insufficient quantity to permit DNA testing.

At trial, the complainant testified to forcible penetration. She did not testify, however, that the defendant had ejaculated. Defendant testified that there was consensual oral sex but no intercourse.

Under the facts of this case, we reject the defendant’s contention of a violation of the Due Process Clauses of the Federal and State Constitutions (US Const 14th Amend; NY Const, art I, § 6) by the failure of the prosecution to gather and adequately preserve a sample of semen sufficient for DNA testing. We further reject defendant’s contention that a hearing was required regarding these issues or that the trial court erred in precluding cross-examination with respect to the People’s failure to perform DNA testing.

In this case, identification was never an issue and the People did not offer any DNA evidence on their case. Defendant has not shown that the potential evidence was material, that is, that a sample possesses an exculpatory value evident before its destruction, loss, or failure to preserve, and that defendant was unable to obtain comparable evidence by reasonable means (see, California v Trombetta, 467 US 479, 489; People v Alvarez, 70 NY2d 375). The defendant has thus failed to demonstrate any error in the decisions reached by the trial court.

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

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    AKS Jewelry Manufacturing Corp., Appellant, v Regosin, Edwards, Stone & Feder et al., Respondents.
    Submitted May 28, 1996;
    decided July 9, 1996
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements. [See, 88 NY2d 874.]


text:
    In the Matter of Yovall Augoshe, Appellant, v Melissa A. Lesko, Respondent.
    Submitted May 28, 1996;
    decided July 9, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from the nonfinal order of the Appellate Division entered in a proceeding commenced in Justice Court (see, NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Purandat Chalu et al., Respondents, v Tov-Le Realty Corp. et al., Appellants.
    Submitted May 13, 1996;
    decided July 9, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying defendants’ motion to vacate and affirmed Supreme Court’s amended order adhering to the order denying defendants’ motion to vacate, dismissed upon the ground that those portions of the order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Christina P. and Another, Children Alleged to be Abused and Neglected. Jay Scott P., Appellant; Jefferson County Department of Social Services, Respondent.
    Submitted June 24, 1996;
    decided July 9, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of Clarabelle K., Appellant, v Charles J. Christman, as Commissioner of the Otsego County Department of Social Services, Respondent.
    Submitted May 28, 1996;
    decided July 9, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Sheila Enright, Formerly Known as Sheila Vasile, Respondent, v Carmine Vasile, Appellant.
    Submitted May 28, 1996;
    decided July 9, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Eilene Golf, as Administratrix of the Estate of Floyd Golf, Deceased, Respondent, v New York State Department of Social Services et al., Appellants.
    Submitted May 13, 1996;
    decided July 9, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of the Adoption of Jarrett. Karen Doe et al., Respondents; Jill H. et al., Appellants.
    Submitted June 17, 1996;
    decided July 9, 1996
   Motions by Steven J. and Jill H. for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals. Motions by Steven J. and Jill H. for a stay dismissed as academic. Motions by Steven J. and Jill H. for a preference dismissed as academic.


text:
    Manoj K. Patel, Appellant, v Robert W. Tauber et al., Respondents. (And Three Additional Actions.)
    Submitted April 22, 1996;
    decided July 9, 1996
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Cross motion, treated as a motion for leave to appeal, etc., denied.


text:
    The People of the State of New York ex rel. Nathaniel Sims, Appellant, v Wayne Barkley, as Superintendent of the Riverview Correctional Facility, et al., Respondents.
    Submitted June 24, 1996;
    decided July 9, 1996
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Angelos P. Romas, Appellant, v George Arena et al., Respondents. (And a Similar Action.)
    Submitted May 28, 1996;
    decided July 9, 1996
   Motion for reargument dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 87 NY2d 810.]


text:
    United Services Automobile Association, Respondent, v Salvatore Curiale, as Superintendent of the State of New York Insurance Department, Appellant.
    Submitted June 17, 1996;
    decided July 9, 1996
   Motion for clarification of opinion and amendment of remittitur denied. [See, 88 NY2d 306.]


text:
    In the Matter of Jardin Yter, Deceased. Marie Vogelstein, Appellant; Joel T. Camche, Respondent.
    Submitted June 10, 1996;
    decided July 9, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the Surrogate’s Court orders denying appellant’s motion to vacate the decree and granting respondent’s motion to hold appellant in contempt, dismissed upon the ground that that part of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Terry A. Bastone et al., Respondents, v Darlene Cocco, Appellant, et al., Respondent.
    Submitted August 24, 1996;
    decided August 27, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


text:
    In the Matter of Jerry Castelle, Appellant, v Commissioner of Education et al., Respondents.
    Submitted July 15, 1996;
    decided August 27, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying petitioner’s motion for reconsideration and Supreme Court’s order denying petitioner’s motion to enlarge the record on appeal, dismissed upon the ground that that portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Darlene Cocco, Appellant, v Herbert Moreira-Brown et al., Respondents.
    Submitted August 24, 1996;
    decided August 27, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Motion for leave to appeal denied.


text:
    In the Matter of Elinore Mandell et al., Appellants-Respondents, v Board of Elections in the City of New York, Respondent, and Ferne J. Goldstein, Respondent-Appellant. (Proceeding No. 1.) In the Matter of Ferne J. Goldstein, Respondent-Appellant, v Salvatore Zunno et al., Appellants-Respondents, et al., Respondent. (Proceeding No. 2.)
    Submitted August 22, 1996;
    decided August 27, 1996
   Motion by Mandell et al. for leave to appeal granted. Motion by Goldstein, insofar as it seeks leave to appeal from the Appellate Division order denying the motion to strike, dismissed upon the ground that that order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    Benjamin D. Sherman, Appellant, v Richard E. Jackson, Jr., as Commissioner of the New York State Department of Motor Vehicles, Respondent.
    Submitted August 19, 1996;
    decided August 27, 1996
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]). Motion for a stay dismissed as academic.


text:
    [671 NE2d 538, 648 NYS2d 426]
    In the Matter of Syndia Buchanan et al., Respondents, v Pedro Espada, Jr., Appellant. (And Another Proceeding.) In the Matter of Syndia Buchanan et al., Respondents, v Pedro Espada et al., Appellants. (And Another Proceeding.)
    Argued August 27, 1996;
    decided August 28, 1996

      APPEARANCES OF COUNSEL

      Martin E. Connor, Brooklyn, and Gary Sinawski, New York City, for appellant in the first above-entitled proceeding.

      Joel B. Mayer, New York City, for respondents in the first above-entitled proceeding.

      Thomas J. Spargo, East Berne, and Gary Sinawski, New York City, for appellants in the second above-entitled proceeding.

      Dublirer, Haydon, Straci & Victor, New York City (Paul A. Victor and Richard E. Oquendo of counsel), for respondents in the second above-entitled proceeding.
   OPINION OF THE COURT

Memorandum.

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

Each appellant submitted a designating petition, one as a candidate for State Senator of the 32nd Senatorial District, the second as a candidate for State Assembly Member in the 75th Assembly District, for the Democratic Party primary to be held on September 10, 1996. The designating petition for each candidate also contained the names of other candidates for other State elective offices. Respondents filed separate proceedings seeking to invalidate the respective designating petition for each appellant.

Supreme Court rejected the invalidation efforts. The Appellate Division reversed and invalidated on permeation of fraud grounds and we granted leave to appeal. Appellants contend that these proceedings should be dismissed for failure to join as necessary parties all of the other candidates listed in the designating petitions.

Election Law § 6-134 (3) provides, "All sheets designating the same candidate for nomination for the same public office or party position, when bound together as provided herein, and offered for filing, shall be deemed to constitute one petition for such candidate.” (See also, Matter of Pecoraro v Mahoney, 65 NY2d 1026, 1027 ["Although the statute permits petitions of several candidates to be joined, each candidate’s petition is a petition for a separate office”].)

Since under the circumstances presented here, we treat the designating petitions as unique to each candidate for a particular public office or party position, no other additional parties were necessary to these proceedings challenging the sufficiency of the designating petitions for the appellants (CPLR 1001). Consequently, the courts may consider the merits of respondents’ claims.

Appellants also contend that the Appellate Division erroneously reversed Supreme Court’s finding that the designating petitions were not permeated by fraud. Appellants argue that since the Appellate Division lacked a trial transcript, it lacked a record basis for reversing Supreme Court’s factual finding. The record before the Appellate Division included the Referee’s report which contained an extensive recitation of the testimony before the Referee and the relevant findings of fact, which Supreme Court adopted without additional fact finding. Consequently, the Appellate Division had a sufficient basis on the record here to exercise its factual review powers. Since the inferences drawn by the Appellate Division are supported by the record, it cannot be said, as a matter of law, that the Appellate Division erred in finding that the challenged designating petitions were permeated with fraud and that they should be invalidated.

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

In each case: Order affirmed, without costs, in a memorandum.

        Matter of Richardson v Luizzo (64 AD2d 944, affd 45 NY2d 789) is not to the contrary. There, the designating petition, which listed persons who had not consented to be candidates for various elective positions, was invalidated as a fraud on the enrolled voters of the Republican Party because the document erroneously suggested that the various candidates listed together intended to run together. Unlike the present cases, the sufficiency of a designating petition for any other particular candidate was not at issue.


text:
    [671 NE2d 540, 648 NYS2d 428]
    In the Matter of Elinore Mandell et al., Appellants-Respondents, v Board of Elections in the City of New York, Respondent, and Ferne J. Goldstein, Respondent-Appellant. (Proceeding No. 1.) In the Matter of Ferne J. Goldstein, Respondent-Appellant, v Salvatore Zunno et al., Appellants-Respondents, et al., Respondent. (Proceeding No. 2.)
    Argued August 27, 1996;
    decided August 28, 1996

      APPEARANCES OF COUNSEL

      Kantor, Davidoff, Wolfe, Mandelker & Kass, P. C., New York City (Lawrence A. Mandelker of counsel), for appellants-respondents.

      Aaron D. Maslow, Brooklyn, for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by reinstating the first cause of action of the proceeding by petitioners Mandell, Zunno and Gold to invalidate respondent Goldstein’s designating petition, and remitting to the Board of Elections for further proceedings in accordance with this memorandum and, as so modified, affirmed.

These are two proceedings, one instituted by petitioners Man-dell, Zunno and Gold to invalidate the petition of respondent Goldstein’s candidacy for Surrogate of King’s County and one instituted by petitioner Goldstein to validate her petition, before us by our leave.

In the proceeding instituted by petitioner Goldstein, we agree with the Appellate Division that the record below establishes timely filing and service of the objections and specifications on the part of respondents Mandell and Zunno, regarding the designating petition of petitioner Goldstein, and were properly before Supreme Court, having been raised in their answer to the Goldstein petition to validate her designating petition. Thus, the Appellate Division properly reversed Supreme Court’s judgment granting the petition to validate and remitted to the Board of Elections for consideration of respondents’ objections and specifications.

With respect to the proceeding instituted by petitioners Man-dell, Zunno and Gold to invalidate the Goldstein petition and for other relief, Supreme Court properly dismissed the second cause of action as insufficient as a matter of law. No appeal was taken from the dismissal of petitioners’ third cause of action. Moreover, insofar as the first cause of action alleges that the Goldstein designating petition was invalid as permeated with fraud, it, toó, was legally insufficient.

Petitioners’ first cause of action, however, also alleges that there were insufficient valid signatures to Goldstein’s designating petition based on a line-by-line analysis. As amplified by petitioners’ timely objections and specifications that were submitted with the pleadings (see, supra), these allegations were legally sufficient and should not have been dismissed on that ground. Likewise, it was error to dismiss the first cause of action for failure to join other candidates named in the Gold-stein petition as necessary parties (see, Matter of Buchanan v Espada, Jr., 88 NY2d 973 [decided today]). Therefore, the petitioners’ first cause of action should be reinstated and, as was the case in the proceeding to validate the Goldstein petition, the matter should be remitted to the Board of Elections to determine the merits of petitioners’ objections. We have considered the parties’ remaining contentions and find them unpersuasive.

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

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


text:
    In the Matter of New York Foundling Hospital, Respondent, v Consuela G., Appellant, et al., Respondent.
    Submitted June 24, 1996;
    decided September 5, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    The People of the State of New York, Appellant, v Anthony Mack, Respondent.
    Submitted August 19, 1996;
    decided September 5, 1996
   Motion to dismiss appeal denied.


text:
    In the Matter of Conservative Party of the State of New York et al., Respondents, v New York State Board of Elections, Respondent, and Sue W. Kelly, Appellant.
    Submitted September 5, 1996;
    decided September 6, 1996
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. In this CPLR article 78 proceeding to prohibit the New York State Board of Elections from conducting a primary election, the Court of Appeals takes the opportunity to restate the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see, e.g., Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [Cardozo, Ch. J.]; Two Assocs. v Brown, 70 NY2d 792).


text:
    [671 NE2d 1265, 648 NYS2d 868]
    The People of the State of New York, Respondent, v Ronald Cubino, Appellant.
    Decided September 10, 1996

      APPEARANCES OF COUNSEL

      John Gemmill, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Maura E. Daly of counsel), for respondent.

      Joseph Calluori, New York City, for New York State Association of Criminal Defense Lawyers, amicus curiae.

      Erica Horwitz, New York City, for New York Criminal Bar Association, amicus curiae.

      T. Barry Kingham, New York City, for New York Council of Defense Lawyers, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of one count of criminal trespass in the second degree and one count of burglary in the second degree. On the appeal to the Appellate Division, defendant contended that part of the trial court’s instruction to the jury on reasonable doubt diluted the standard of proof by referencing that standard to decisions jurors might be called upon to make in their personal lives. The Appellate Division affirmed in a plurality decision with two dissenting votes. We now affirm on the appeal to our Court, here by leave of the Presiding Justice at the Appellate Division.

The preferred phrasing to convey the concept and degree of reasonable doubt is illustrated in the Pattern Criminal Jury Instructions: "The doubt, to be a reasonable doubt, should be one which a reasonable person acting in a matter of this, importance would be likely to entertain because of the evidence or because of the lack or insufficiency of the evidence in the case” (CJI 6:20, at 249). The comparative characterization used in the instruction by the trial court in this case was less definitive and potentially more troublesome than the preferred language and such variations should be avoided. As ultimately noted by the plurality memorandum, however, and as emphasized by Justice Mazzarelli in her concurring opinion at the Appellate Division, the objected-to portion of the instruction did not dilute the standard of required proof here nor did it deprive this defendant of a fair trial in the context of the entire balanced and correct set of instructions given.

Appellant’s other arguments have been considered, and we conclude that, to the extent they are even preserved for our review, they are without merit.

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:
    [671 NE2d 1266, 648 NYS2d 869]
    The People of the State of New York, Respondent, v Norma Jean Robinson, Appellant.
    Decided September 10, 1996
    APPEARANCES OF COUNSEL

      Stephen J. Pittari, White Plains, and Jacqueline F. Oliva for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted, as an accomplice, of rape in the first degree and sexual abuse in the first degree. On her appeal to the Appellate Division, defendant contended, among other things, that the trial court’s instruction to the jury on reasonable doubt impermissibly shifted the burden of proof. The majority of the Appellate Division held that this contention was unpreserved (218 AD2d 673, 674). We agree, because to frame and preserve a question of law reviewable by this Court, an objection or exception must be made with sufficient specificity at the trial, when the nisi prius court has an opportunity to consider and deal with the asserted error (CPL 470.05 [2]; People v Robinson, 36 NY2d 224). That was not done here.

We have examined defendant’s remaining contentions and conclude that they are without merit.

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:
    Marlene A. Bedeau, Appellant, v Lawrence A. Santi, Respondent.
    Submitted May 28, 1996;
    decided September 10, 1996
   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:
    Maria Gkanios, Individually and as Mother and Natural Guardian of John P. Gkanios and Another, Infants, Appellant, v J. Rockhill Gray et al., Respondents.
    Submitted June 3, 1996;
    decided September 10, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s orders denying plaintiff’s motions for poor person relief and leave to amend the complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Joseph Greany, Appellant, v Army Carinci, as Mayor of the City of Oneida, et al., Respondents.
    Submitted June 10, 1996;
    decided September 10, 1996
   Motion for leave to appeal dismissed upon the ground that it does not lie (see, CPLR 5602).


text:
    Olga McGuirk, Respondent, v Nadia Ferran, Also Known as Nadia Kannes, et al., Appellants.
    Submitted May 28, 1996;
    decided September 10, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division’s December 28, 1995 order as affirmed Supreme Court’s order releasing plaintiff’s undertaking, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order denying defendants’ motion for reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that that order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Joann Mitchell, Respondent, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, Appellant, and Barbara J. Sabol, as Commissioner of the New York City Department of Social Services, Respondent. In the Matter of Anderson Brown, Respondent, v Mary Jo Bane, as Commissioner of the New York State Department of Social Services, Appellant, and Barbara J. Sabol, as Commissioner of the New York City Department of Social Services, Respondent.
    Submitted May 28, 1996;
    decided September 10, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]; 2103 [b] [2]).


text:
    The People of the State of New York, Respondent, v Rolando Oquendo, Appellant.
    Decided September 10, 1996
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    [671 NE2d 1267, 648 NYS2d 870]
    Anthony Silvestri, Respondent, v Gerald J. Smallberg, Appellant.
    Decided September 12, 1996
    APPEARANCES OF COUNSEL

      Kenneth Mauro, Great Neck, for appellant.

      Warner & Joselson, New York City (Jonathon D. Warner of counsel) for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue presented in this action to recover damages for medical malpractice is whether postjudgment interest accrues on awards for future damages when such awards are paid in a structured judgment pursuant to CPLR 50-A. We answer this question in the affirmative. The Court’s decision in Rohring v City of Niagara Falls (84 NY2d 60) is controlling here. The underlying rationale of Rohring — that a defendant is liable for the full amount of the judgment at the time of the verdict and that the structured payment provisions of CPLR articles 50-A and 50-B do not delay liability, but merely make payment of the judgment incremental (see, 84 NY2d, at 69-70) — applies with equal force to postjudgment interest under CPLR 5003 as it does to postverdict interest under CPLR 5002. The difference in statutory language between sections 5002 and 5003 does not require a contrary result.

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

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, with costs, in a memorandum.


text:
    Elizabeth Barresi, Appellant, v Norbert Kapr, Respondent.
    Submitted September 3, 1996;
    decided September 12, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Jana Birsett, Respondent, v General Accident Insurance Company of America, Appellant.
    Submitted June 24, 1996;
    decided September 12, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of modification, dismissed as untimely (see, CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the judgment entered upon the Appellate Division order, dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought (see, CPLR 5611).


text:
    In the Matter of Ruth L. N. Charles, Respondent, v Thelma G. Lewis, Appellant.
    Submitted June 24, 1996;
    decided September 12, 1996
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see, CPLR 5511). Motion for poor person relief dismissed as academic.


text:
    In the Matter of David B., Respondent, v Linda P., Appellant.
    Submitted June 17, 1996;
    decided September 12, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of John P., Respondent, v Linda P., Appellant.
    Submitted June 17, 1996;
    decided September 12, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for leave to appeal denied.


text:
    In the Matter of Michelle S. and Others, Alleged to be Neglected Children. Donald S., Appellant; Seneca County Department of Social Services, Respondent.
    Submitted July 1, 1996;
    decided September 12, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it was not timely taken. Motion for leave to appeal dismissed as untimely.


text:
    The People of the State of New York, Respondent, v Angel Claudio, Appellant.
    Submitted July 1, 1996;
    decided September 12, 1996
   Chief Judge Kaye taking no part.


text:
    The People of the State of New York, Respondent, v James Melvin Lee, Appellant.
    Submitted September 9, 1996;
    decided September 12, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Appellant, v Harvey Posner, Also Known as Harvey Possner, Respondent.
    Decided September 12, 1996
   On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), appeal dismissed upon the ground that the reversal by the Appellate Division was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]).


text:
    State of New York, Respondent, v Beverly Prince, Also Known as Beverly Davis, Appellant.
    Submitted September 3, 1996;
    decided September 12, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of the Estate of Andy Warhol, Deceased. Edward W. Hayes, Appellant; Andy Warhol Foundation for the Visual Arts, Inc., et al., Respondents.
    Submitted June 24, 1996;
    decided September 12, 1996
   Motion for reargument denied. [See, 88 NY2d 803.] Movant’s relief, if he is entitled to any, must be sought in the Appellate Division.


text:
    [671 NE2d 1268, 648 NYS2d 871]
    Robert L. Davis et al., Appellants, v Naomi Klein, as Executrix of the Estate of Lawrence A. Klein, Deceased, et al., Respondents.
    Decided September 17, 1996

      APPEARANCES OF COUNSEL

      Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (John A. Collins of counsel), for appellants.

      DAmato & Lynch, New York City (Stephen F. Willig of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Robert Davis retained the defendant law firm in March 1987 to represent and appear for him in all proceedings concerning a workers’ compensation claim arising out of an accident which occurred on property allegedly owned by the City of New York. In 1988, plaintiff’s case was allegedly referred by the defendant attorney to another lawyer in the same firm for discussion on commencing a third-party action against the City. Plaintiff was informed at that time that his claim against the City was barred by the Statute of Limitations.

Plaintiff’s workers’ compensation claim was resolved and no further action with respect to the claim against the City was taken until 1991, when plaintiff and his spouse commenced this legal malpractice action. Plaintiffs alleged that defendants committed malpractice by failing to timely institute an action against the City as owner of the property where the accident occurred pursuant to Labor Law §§ 200, 240, 241 (6) and common-law negligence principles. Defendants moved for summary judgment. Supreme Court granted defendants’ motion and dismissed the complaint. The Appellate Division, with one Justice dissenting, affirmed.

In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence (see, Carmel v Lunney, 70 NY2d 169, 173; Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 419, 425; Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 59 AD2d 551, 553, affd 45 NY2d 730, 732). Plaintiffs’ unsupported allegations that the City owned the property in question failed to raise material issues of fact with respect to their underlying claims against the City, and the complaint was properly dismissed.

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, with costs, in a memorandum.


text:
    Antao & Chuang, Appellant, v Sr. Paul Fire & Marine Ins. Co., Respondent.
    Submitted July 8, 1996;
    decided September 17, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of plaintiffs motion to renew, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Long Island Power Authority et al., Respondents-Appellants, v Shoreham-Wading River Central District et al., Appellants-Respondents.
    Submitted July 29, 1996;
    decided September 17, 1996
   Motion for amendment of remittitur or, in the alternative, for reargument denied. [See, 88 NY2d 503.]


text:
    Town of Parishville et al., Respondents, v Contore Company, Inc., et al., Appellants.
    Submitted July 15, 1996;
    decided September 17, 1996
   Motion for reargument of motion for leave to appeal dismissed as untimely (see, 22 NYCRR 500.11 [g] [3]). [See, 87 NY2d 918.]


text:
    Rontee & Co., Respondent, v Sonya Janoff, Also Known as Sonny Gale, Appellant.
    Submitted July 8, 1996;
    decided September 17, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of defendant’s motion to vacate and Supreme Court’s denial of reargument, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the default judgment, dismissed upon the ground that as to that part of the order movant is not a party aggrieved (CPLR 5511); motion for leave to appeal otherwise denied.


text:
    [671 NE2d 1269, 648 NYS2d 872]
    The People of the State of New York, Respondent, v Lorenzo Blakeney, Appellant.
    Decided September 19, 1996

      APPEARANCES OF COUNSEL

      Fried, Frank, Harris, Shriver & Jacobson, New York City (Douglas W. Henkin of counsel), E. Joshua Rosenkrantz and Paul Skip Laisure for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (David L. Jaffe and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On November 4, 1992, defendant Lorenzo Blakeney was arrested with codefendant Shakira Fleming for allegedly selling crack cocaine to an undercover police officer. Twelve days later, on November 16, 1992, defendant was again arrested with Fleming for allegedly committing the nearly identical offense at almost the identical location.

After a jury trial, Supreme Court found defendant guilty of criminal sale of a controlled substance in the third degree and sentenced defendant to an indeterminate term of imprisonment from a minimum of five and one-half years to a maximum of eleven years. The Appellate Division, with one Justice dissenting, affirmed. We now affirm.

Defendant’s claim that he had never seen or known Fleming before his arrest on November 4, 1992, when the arresting officer directed that she be brought to stand next to defendant, opened the door to evidence tending to disprove his account. Thus, it rendered the People’s questions regarding the subsequent arrest with Fleming on November 16, 1992 relevant for "contradiction and response” with respect to the November 4, 1992 existence of their relationship and not simply to impeach his general credibility (see, People v Betts, 70 NY2d 289, 295). The courts below did not err in holding that the defense counsel’s conduct during summation was not incompetent (see, People v Satterfield, 66 NY2d 796, 799-800). Defendant’s claims that Supreme Court displayed prosecutorial bias and impermissibly shifted the burden of proof away from the People in the jury charge are unpreserved for this Court’s review.

The defendant’s remaining claims have been considered and are without merit.

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:
    In the Matter of Anonymous.
    Submitted August 12, 1996;
    decided September 19, 1996
   Chief Judge Kaye taking no part.


text:
    In the Matter of Charles Gandolfo et al., Appellants, v Franklin E. White, as Commissioner of the New York State Department of Transportation, et al., Respondents.
    Submitted July 1, 1996;
    decided September 19, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing respondents’ appeal from Supreme Court’s order granting a preliminary injunction, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution and upon the further ground that appellants are not aggrieved by such order; motion for leave to appeal otherwise denied.


text:
    Great Western Bank, Respondent, v Vincent Terio, Appellant.
    Submitted July 8, 1996;
    decided September 19, 1996
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order granting plaintiffs motion to discontinue the first foreclosure action, dismissed upon the ground that .it does not lie (see, Hull-Hazard, Inc. v Roberts, 73 NY2d 867); motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from that portion of Supreme Court’s order denying defendant’s motions to vacate the judgment of foreclosure and sale and for poor person relief, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Joseph M. M., Jr., Respondent, v Mary Ellen C. M., Appellant.
    Submitted July 8, 1996;
    decided September 19, 1996
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Jose Mundo et al., Appellants, v SMS Hasenclever Maschinenfabrik, Respondent, et al., Defendant. (And a Third-Party Action.)
    Submitted July 8, 1996;
    decided September 19, 1996
   Motion, insofar as it seeks leave to appeal from the May 14, 1996 Appellate Division order that denied appellants’ motion for reargument or, alternatively, leave to appeal to the Court of Appeals, and from so much of the Appellate Division’s February 27, 1996 order as affirmed Supreme Court’s order denying appellants’ motion to renew, dismissed upon the ground that the May 14, 1996 order and the above-stated portion of the February 27, 1996 order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Umberto Ginocchietti, Also Known as Terenzio Giglieri, Appellant.
    Submitted September 9, 1996;
    decided September 19, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Robert Schulz et al., Appellants, v Virginia Galgano et al., Respondents.
    Submitted September 9, 1996;
    decided September 19, 1996
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order denying appellants’ motions for a preliminary injunction and to hold respondent Galgano in contempt, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that that portion of the Appellate Division order does not finally determine the action / proceeding within the meaning of the Constitution; appeal otherwise dismissed, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [673 NE2d 1237, 651 NYS2d 10]
    In the Matter of Hudson Falls Central School District, Respondent, v Saratoga County Industrial Development Agency, Appellant.
    Argued September 11, 1996;
    decided October 10, 1996

      APPEARANCES OF COUNSEL

      Snyder, Kiley, Toohey & Corbett, Saratoga Springs (Michael J. Toohey of counsel), for appellant.

      Bartlett, Pontiff, Stewart & Rhodes, P. C., Glens Falls (J. Lawrence Paltrowitz and James R. Burkett of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the opinion by Justice Thomas E. Mercure at the Appellate Division (217 AD2d 330).

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


text:
    [673 NE2d 1237, 651 NYS2d 10]
    In the Matter of 317 West 145th Street Corp., Respondent, v City of New York Department of Finance et al., Appellants.
    Argued September 11, 1996;
    decided October 10, 1996

      APPEARANCES OF COUNSEL

      Paul A. Crotty, Corporation Counsel of New York City (Francis F. Caputo, Joseph I. Lauer and Elizabeth Dvorkin of counsel), for appellants.

      Kenneth J. Glassman, New York City, for respondent.
   OPINION OF THE COURT

Order reversed, with costs, and petition dismissed (see, Matter of ISCA Enters. v City of New York Dept. of Fin., 77 NY2d 688, rearg denied 78 NY2d 952 [1991], cert denied 503 US 906 [1992]; City of New York v Nelson, 309 NY 94, rearg denied and remittitur amended 309 NY 801 [1955], affd 352 US 103 [1956]).

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


text:
    [673 NE2d 1237, 651 NYS2d 10]
    The People of the State of New York, Respondent, v Michael Dickens, Appellant.
    Argued September 5, 1996;
    decided October 10, 1996

      APPEARANCES OF COUNSEL

      John Gemmill, New York City, and Daniel L. Greenberg, for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Gregory H. Mansfield and Norman Barclay of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The grounds defendant now advances for challenging the lawfulness of the search were not presented to the trial court. We therefore conclude that defendant failed to preserve his present claims for this Court’s review.

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

Order affirmed in a memorandum.


text:
    [673 NE2d 1238, 657 NYS2d 11]
    In the Matter of Jeanine Pirro, as District Attorney of Westchester County, Respondent, v Caesar Cirigliano, as Acting Justice of the Supreme Court, et al., Appellants.
    Argued September 5, 1996;
    decided October 10, 1996

      APPEARANCES OF COUNSEL

      Dennis C. Vacco, Attorney-General, New York City (Michael O. Hueston, Thomas Hughes and Victoria A. Graffeo of counsel), for Caesar Cirigliano, as Acting Justice of the Supreme Court, appellant.

      Bennet Goodman, Yonkers, for Cesar Ramirez, appellant.

      Jeanine Pirro, District Attorney of Westchester County, White Plains (Richard E. Weill of counsel), respondent pro se.

   OPINION OF THE COURT

Judgment affirmed, without costs, for the reasons stated in the memorandum at the Appellate Division (226 AD2d 465).

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


text:
    [673 NE2d 1238, 651 NYS2d 11]
    The People of the State of New York, Appellant, v Donald Lowe, Respondent.
    Argued September 4, 1996,
    decided October 10, 1996

      APPEARANCES OF COUNSEL

      Robert T. Johnson, District Attorney of Bronx County, Bronx (Lisa Ellen Mudd and Billie Manning of counsel), for appellant.

      Elizabeth B. Emmons, New York City, and Daniel L. Greenberg for respondent.
   OPINION OF THE COURT

Order, insofar as appealed from, affirmed. We agree with the majority at the Appellate Division (214 AD2d 1) that there was insufficient evidence to sustain the conviction for criminally negligent homicide.

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


text:
    Fidelity & Deposit Company of Maryland, Respondent, v Rudra Altman et al., Appellants.
    Submitted June 17, 1996;
    decided October 10, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Burke v Crosson, 85 NY2d 10, 18, n 5).


text:
    Todd Jeffs, Appellant, v Janessa, Inc., Doing Business as Dairy Mart, Respondent, et al., Defendant.
    Submitted July 8, 1996;
    decided October 10, 1996
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see, Paglia v Agrawal, 69 NY2d 946.)


text:
    Muriel Olivier et al., Appellants, v Zoe Rosal-Arcillas, Respondent, et al., Defendants.
    Submitted July 15, 1996;
    decided October 10, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Robert W. Pfohl et al., Appellants, v Amax, Inc., et al., Defendants, and American Standard, Inc., et al., Respondents.
    Submitted July 29, 1996;
    decided October 10, 1996
   Motion for reargument granted and, upon reargument, motion for leave to appeal denied. [See, 88 NY2d 931.]


text:
    In the Matter of Masao Yonamine, Appellant, v Charles S. Hirsch, as Chief Medical Examiner, et al., Respondents.
    Submitted February 5, 1996;
    decided October 10, 1996
   Motion, insofar as it seeks leave to appeal from the Supreme Court order dismissing the petition, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3 [b]; CPLR 5602 [a]); motion, insofar as it seeks leave to appeal from the Appellate Division orders denying poor person relief and renewal, dismissed upon the ground that those orders do not finally determine the proceeding within the meaning of the Constitution. Motion for person relief dismissed as academic.


text:
    [673 NE2d 1239, 651 NYS2d 12]
    In the Matter of Ronald C. Robert.
    Decided October 15, 1996
   OPINION OF THE COURT

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

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


text:
    [673 NE2d 1240, 651 NYS2d 13]
    In the Matter of Judith A. Carney.
    Decided October 15, 1996
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Judith A. Carney is suspended with pay, effective immediately, from her office of Justice of the Dansville Town Court, Steuben County, pending disposition of her request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges Simons, Titone, Bella - casa, Smith, Levine and Ciparick.


text:
    Jonathan M. Baker et al., Respondents, v Jody Norman, Also Known as Jody N. Ordioni, et al., Appellants.
    Submitted July 29, 1996;
    decided October 15, 1996
   Motion for leave to appeal dismissed as untimely (CPLR 5513 [b]).


text:
    Purandat Chalu et al., Respondents, v Tov-Le Realty Corp. et al., Appellants.
    Submitted August 26, 1996;
    decided October 15, 1996
   Motion for reargument of motion for leave to appeal denied, with $100 costs and necessary reproduction disbursements. [See, 88 NY2d 959.] Cross motion for sanctions denied.


text:
    In the Matter of Lula XX., an Alleged Incapacitated Person, Appellant. Jane Ehrlich, as Chief Executive Officer of the Columbia-Green Medical Center, et al., Respondents.
    Submitted August 5, 1996;
    decided October 15, 1996
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals. Motion for poor person relief dismissed as academic.


text:
    T. George Silcott, Appellant, v Jerry Smith, Respondent.
    Submitted July 29, 1996;
    decided October 15, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion to vacate the judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Charles A. Slanetz, Jr., Appellant, v North Shore University Hospital, Respondent.
    Submitted July 29, 1996;
    decided October 15, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion for leave to serve an amended summons and second amended complaint, 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.


text:
    [673 NE2d 917, 650 NYS2d 632]
    The People of the State of New York, Respondent, v Alashia Montgomery, Appellant.
    Argued September 12, 1996;
    decided October 17, 1996

      APPEARANCES OF COUNSEL

      Lawrence Mark Stern, New York City, and Jesse Berman for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Alan Gadlin and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People conceded at a Wade hearing that five fillers who were significantly older than the 15-year-old defendant were placed in a lineup with defendant and that the lineup report falsely stated that the fillers were teenagers when their ages actually ranged from 28 to 42. After a Wade hearing, the court determined that the lineup was tainted by undue suggestion and suppressed the lineup identifications emanating therefrom. Citing this Court’s decision in People v Isaacson (44 NY2d 511), defendant contends that reversal of her conviction for second degree murder is warranted because, in addition to suppressing the lineup identifications, the trial court should have imposed a sanction on the People for their misconduct by either dismissing the indictment or suppressing the in-court identifications of defendant made by witnesses who had viewed the tainted lineup.

The transcripts of the pretrial Wade hearing, the trial court’s written Wade decision and other materials in the record reveal that the court and counsel agreed that the Wade hearing was limited to a determination of the issues of suggestiveness and independent source, that the Isaacson claim was beyond the scope of the Wade proceeding and that defendant should raise any prosecutorial misconduct claim by a future Clayton motion (see, People v Clayton, 41 AD2d 204). While defense counsel did claim at the Wade hearing that certain in-court identifications should have been suppressed, that claim was predicated on the different ground that they were tainted by the unduly suggestive lineup and were not derived from an independent source — an issue properly resolved at the Wade hearing. The record supports the determinations of both the suppression court and the Appellate Division that independent sources served as the predicate for those in-court identifications, rendering that issue beyond this Court’s further review.

The record does not establish that the defense ever made a subsequent Clayton motion or in any way sought to litigate the separate question of an appropriate sanction for the People’s misconduct at any other time. Accordingly, that claim is unpreserved for our review.

Defendant’s remaining claims lack merit.

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

Order affirmed in a memorandum.


author: Smith, J.

text:
    [674 NE2d 329, 651 NYS2d 399]
    Stephen Companion, Appellant, v W. Joseph Touchstone, Respondent.
    Argued September 10, 1996;
    decided October 17, 1996

      APPEARANCES OF COUNSEL

      Hancock & Estabrook, L. L. P., Syracuse (Janet D. Callahan of counsel), for appellant.

      Green & Seifter, P. C., Syracuse (Lee Alcott of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (222 AD2d 1087).

Concur: Chief Judge Kaye and Judges Bellacosa, Levine and Ciparick. Judge Smith dissents in the following opinion in which Judges Simons and Titone concur.

Smith, J.

(dissenting). The majority holds that the defendant’s actions constituted a good-faith effort to perform under the real property purchase agreement as a matter of law. Because I believe that on this record good faith is an issue of fact, I dissent.

On March 31, 1993, the parties entered into a contract for the purchase of real property which contained a "mortgage contingency clause” which obligated defendant to "make good faith application for” a $135,000 mortgage without delay. Specifically, the contract provided:

"New Mortgage: By Buyer obtaining at his own cost and expense, a Conventional mortgage in that amount [$135,000] for the maximum term available, but not less than-years, at the Lender’s prevailing rate of interest at time of closing. Buyer shall make good faith application for this mortgage without delay. Written approval for this mortgage must be obtained by 5/15/93 or Seller may cancel this contract at Seller’s option. It is agreed that if this mortgage cannot be obtained, this contract is terminated (null and void) and the deposit shall be refunded in full.”

According to defendant, he contacted one bank during the "mid to later part of April 1993, to schedule an appointment to apply for a mortgage.” Prior to his scheduled meeting, defendant submitted, at the bank’s request, the purchase contract, renovation plans, and his prior year’s income tax return. With less than two weeks remaining before the deadline to apply for the mortgage expired and over a month after signing the purchase contract, defendant met with a bank vice-president on May 3, 1993.

At the meeting, the bank’s vice-president gave defendant a "preliminary opinion” that the bank would not approve a mortgage for $135,000 due to the "ratio of the residential and commercial use of the property”. Nevertheless, the vice-president indicated that the bank would be willing to approve a mortgage for $116,250. The defendant prepared the application for $116,250.

After meeting with the bank vice-president, defendant contacted plaintiff and requested an extension of the mortgage deadline to May 31, 1993. Defendant did not, however, inform plaintiff that the sole pending mortgage application was for only $116,250, approximately $20,000 less than the amount specified under the purchase contract. Plaintiff granted the request. Defendant made no attempt to obtain additional financing or investigate other mortgage arrangements during this time.

When the bank finally issued a mortgage commitment for $116,250, defendant advised plaintiff that the contract was terminated "[b]ased on the bank’s refusal to grant the mortgage specified by the contract.” Plaintiff sued for specific performance and damages. The defendant counterclaimed for the return of the $1,000 deposit.

Supreme Court granted defendant’s motion for summary judgment dismissing the complaint and awarded defendant his contract deposit. A majority of the Appellate Division affirmed Supreme Court’s order stating, "Defendant submitted proof in evidentiary form establishing that he acted in good faith to obtain a mortgage” and that "it would have been futile for defendant * * * to apply for a mortgage” of $135,000 after being told that the bank would not grant it. Two Judges joined in a dissenting opinion which stated:

"In our view, the issue whether defendant acted in good faith to obtain a mortgage should be determined by a jury. Although defendant was not obligated to apply to more than one lender to demonstrate good faith, the sales contract provided that defendant would make application for a mortgage in the amount of $135,000. Defendant made an application to a single lender for a mortgage in the amount of $116,250. Whether that constituted a good faith effort to obtain a mortgage in the amount of $135,000 raises an issue of fact to be resolved by a jury.” (222 AD2d 1087.)

It is well settled that as "long as the purchasers exert a genuine effort to secure the mortgage financing and act in good faith, they are entitled to rely on the contract and may recover their down payment if the mortgage is not, in fact, approved” (Cone v Daus, 120 AD2d 788, 790 [citation omitted]). It is also well settled that good-faith performance may be satisfied as a matter of law by a buyer’s mortgage application to one bank if that is all that the contract requires (see, Ruggeri v Brenner, 186 AD2d 441, lv denied 81 NY2d 704 [good faith found with one mortgage application when contract required buyer to apply to a lending institution of "plaintiffs choice”]; Macho Assets v Spring Corp., 128 AD2d 680, lv denied 69 NY2d 609 [good faith found with one mortgage application when contract required buyer to apply to a lending institution which was selected by purchaser]; Glassman v Gerstein, 10 AD2d 875 [good faith found with one mortgage application when contract required buyer to apply to "o lending institution” (emphasis added)]).

In contrast, summary judgment may be entered against the buyer when it is demonstrated that the buyer’s mortgage application was not made in conformance with the requirements of the purchase agreement. As noted in Silva v Celella (153 AD2d 847), the buyers "had no right to cancel the contract since they had applied for a mortgage in an amount which differed from the amount prescribed in the contract” (id., at 848 [summary judgment granted against buyer when mortgage application exceeded contract amount]; see also, Post v Mengoni, 198 AD2d 487 [plaintiff buyer not entitled to recover down payment where he applied for a mortgage $100,000 greater than that required by the mortgage contingency clause]).

In Tanney v Greaux (174 AD2d 728, mod 78 NY2d 1117) the Court of Appeals determined that good faith was a factual issue to be resolved by a jury. In Tanney, the real property purchase contract provided that the closing would take place within 12 months after the issuance of a building permit by the New York City Department of Housing Preservation and Development. Following the defendants’ application, the City Council enacted a statute which prevented the defendants from obtaining the necessary certification for 18 months. Despite the change in the law, the defendants continued their efforts to obtain certification. The City Council subsequently extended the moratorium for an additional five years. A majority of the Appellate Division determined that there was no factual issue of good faith in failing to cancel the contract immediately upon the decision to extend the moratorium for five years.

The dissenting opinion recognized that the defendants’ continued performance in trying to obtain certification despite the change in the law was inconsistent with a sincere view that performance was excused. The dissent concluded that factual issues were raised as to the buyer’s good faith. On appeal, this Court modified the determination of the Appellate Division for the reasons stated in the dissent (78 NY2d, at 1119).

In fact, courts have continually denied summary judgment when factual issues were raised concerning the sufficiency of a party’s performance under the purchase agreement at issue (see, e.g., Katz v Simon, 216 AD2d 270 [factual issues of good faith and diligence raised concerning reasons for delay in applying for mortgage]; Zwirn v Goodman, 206 AD2d 360 [factual issues raised concerning good faith in submitting incomplete mortgage application]; Wilson v City of Long Beach, 133 AD2d 684 [factual issues raised concerning good faith and due diligence in obtaining necessary permits and financing]; BTS, Inc. v Webny Corp., 157 AD2d 638 [factual issue raised concerning buyer’s good faith when its deteriorated financial position was known to it at the time the agreement was executed]; Blask v Miller, 186 AD2d 958 [factual issue raised as to plaintiffs’ good faith in contracting to purchase property which they possibly could not afford]).

Here, it is undisputed that defendant buyer did not perform as required under the plain language of the agreement. Indeed, defendant never made an application for a mortgage in the amount required by the contract. These facts alone create an issue of fact regarding defendant’s good faith in performing his obligations under the purchase agreement. Moreover, defendant’s actual application and subsequent request for an extension to apply for the mortgage are inconsistent with a finding of good faith as a matter of law. Finally, the defendant’s reliance on a "preliminary opinion” of a bank officer is insufficient to establish a good-faith basis to excuse performance.

Moreover, while the majority of the Appellate Division concluded that it would have been futile for defendant to apply for a mortgage of $135,000 based upon this record, other courts that have examined the issue of "futility” have relied on far more evidence to demonstrate that the failure to obtain a mortgage was beyond the control of the mortgage applicant (see, e.g., Lunning v 10 Bleecker St. Owners Corp., 160 AD2d 178, lv denied 76 NY2d 710 [mortgage revoked upon buyer’s financial losses due to ill health and subsequent death]; Bobrowsky v Landes, 124 AD2d 618 [mortgage revoked upon buyers’ financial losses due to circumstances beyond their control]; Cone v Daus, 120 AD2d 788, supra [mortgage revoked upon water flow deficiency, correction of which was beyond the control of buyers]; Elghanyan v Mundy, 225 AD2d 654 [based on information provided prior to the filing of a formal application, at least two, and possibly four, banks told potential mortgage applicants that mortgage would not be approved based upon "large business losses indicated” on past tax returns]).

Here, defendant delayed in applying for a mortgage and his application was admittedly in "an amount which differed from the amount prescribed in the contract” (Silva, supra, 153 AD2d, at 848). Furthermore, defendant’s continued attempts to perform by requesting an extension of the mortgage deadline without telling the seller about the "futile” circumstances raises a factual issue regarding good faith (Tanney, supra). Finally, the defendant’s reliance on a "preliminary opinion” of a bank officer is insufficient to establish a good-faith basis to excuse performance summarily.

In sum, the language of the contract will govern whether a buyer is entitled to a return of his deposit. Here, defendant did not comply with the language of his purchase contract. Excusing the defendant’s performance represents an inappropriate and extreme expansion of the definition of good faith as a matter of law. Accordingly, I respectfully dissent from the majority’s affirmance of the Appellate Division’s decision. The defendant’s motion for summary judgment should have been denied.

Order affirmed, etc.


text:
    [673 NE2d 918, 650 NYS2d 633]
    The People of the State of New York, Respondent, v James E. Richardson, Appellant.
    Argued September 5, 1996;
    decided October 17, 1996

      APPEARANCES OF COUNSEL

      Shirley A. Gorman, Albion, for appellant.

      Robert C. Noonan, District Attorney of Genesee County, Batavia (Lawrence Friedman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On October 15, 1992, defendant was arrested and charged with rape in the first degree. While in custody at the station house subsequent to his arrest, defendant fled. He was apprehended later that day, charged with escape in the first degree and arraigned on the rape charge. After the arraignment, the presiding Judge requested that the court clerk prepare a securing order. Bail was set at $10,000, which defendant was unable to post, and he was subsequently incarcerated in the county jail. The next day, defendant was returned to court for arraignment on the escape charge. Following this arraignment, defendant was again returned to jail. On November 25, 1992, defendant was transported from jail to court for a conference with his attorney. After the conference, defendant could not be located. Not until later that day was defendant taken back into custody.

A Grand Jury returned an indictment on December 18, 1992 charging defendant with rape in the third degree (count one) and two counts of escape in the first degree (count two relating to the October 15 escape, count three to the November 25 escape). A trial on the indictment ensued, and, at defendant’s request, the crime of escape in the second degree was submitted to the jury as a lesser included offense of escape in the first degree as charged under count two. The jury acquitted defendant of rape and convicted him of escape in the second degree under count two and of escape in the first degree under count three. Defendant was sentenced to a minimum term of l1/s years to a maximum term of 4 years for the escape in the second degree charge under count two and a minimum term of l1/2 years to a maximum term of 41/2 years on the escape in the first degree charge under count three, both sentences to run concurrently.

Defendant’s conviction was upheld on appeal, over a two-Justice dissent (see, People v Richardson, 216 AD2d 915). One of the dissenting Justices granted defendant leave to appeal to this Court. On this appeal, defendant maintains that the Appellate Division erred in holding that (1) he waived any objection to the submission of the lesser included offense of escape in the second degree under count two of the indictment and (2) the evidence was sufficient to convict him of escape in either the first or second degrees.

Defendant argues that the trial court improperly submitted the lesser included offense of escape in the second degree to the jury because the People failed to prove that when he escaped on October 15, 1992 he was under arrest for a class C, D or E felony. However, by affirmatively requesting that the trial court submit the lesser charge to the jury, defendant waived his right to challenge the submission of the lesser charge on appeal (see, People v Ford, 62 NY2d 275, 283). Defense counsel’s objection to the charge was addressed solely to the wording of the charge and was therefore insufficient to revoke this waiver.

Defendant further contends that the evidence was insufficient to convict him of escape in the first degree because the People failed to produce the securing order pursuant to which defendant was in custody on November 25, 1992. Production of the securing order is not, however, necessary to establish this charge. The trial testimony of the court clerk, who indicated that she was directed by the Judge to prepare the securing order after defendant’s arraignment on the rape charge, together with the testimony of the investigator who was present at the arraignment, relating that the Judge set bail and signed a securing order, establishes that defendant was in custody pursuant to court order (see, CPLR 4543).

Defendant’s other arguments are either unpreserved or devoid of merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Robert Binenfeld, Appellant, v New York State Department of Health et al., Respondents.
    Submitted July 29, 1996;
    decided October 17, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513, 5514).


text:
    Elliot C. R. Cook, Appellant, v David Rozenholc & Associates et al., Respondents.
    Submitted July 22, 1996;
    decided October 17, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513 [b]; 5514 [c]).


text:
    Nathan Friedman, Individually and as Administrator of the Estate of Sabina Friedman, Deceased, Appellant, v Queens-Long Island Medical Group, P. C., et al., Defendants, and Health Insurance Plan of Greater New York, Respondent.
    Submitted August 5, 1996;
    decided October 17, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for leave to file a second amended complaint, dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Thomas S. Gulotta, on Behalf of Himself and All Other Real Property Taxpayers in the County of Nassau Similarly Situated, et al., Appellants, v State of New York et al., Respondents. Robert L. King, on Behalf of Himself and All Other Real Property Taxpayers in the County of Monroe Similarly Situated, et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, et al., Respondents. (And an Additional Action.)
    Submitted October 7, 1996;
    decided October 17, 1996
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved and upon the further ground that an Appellate Division order of modification no longer provides a predicate for an appeal as of right (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Nora Z. Ramos, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted September 9, 1996;
    decided October 17, 1996
   Motion for leave to appeal dismissed as untimely (see, CPLR 5513, 5514 [a]).


text:
    Michael H. Vartanian, Appellant, v Research Foundation of State University of New York et al., Respondents, et al., Defendants.
    Submitted August 5, 1996;
    decided October 17, 1996
   Motion, pursuant to CPLR 5520 (a), for an extension of time in which to file in the court of original instance the timely served notice of appeal granted. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    [673 NE2d 1232, 651 NYS2d 5]
    Hirschfeld Productions, Inc., Appellant, v Edwin Mirvish et al., Respondents.
    Argued September 10, 1996;
    decided October 22, 1996

      APPEARANCES OF COUNSEL

      Fischbein • Badillo • Wagner • Harding, New York City (Bruce H. Wiener, Jonathan Young and Andrew B. Bessite of counsel), for appellant.

      Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Jay Cohen and Karen S. Kennedy of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Defendants David and Edwin Mirvish are the president and chairman, respectively, of Mirvish Productions (MP), a Canadian theatrical production company. They also own the Old Vic Theater in London, England, through an entity called Ed Mirvish Enterprises Limited ("Enterprises”). In April 1993, plaintiff Hirschfeld Productions, Inc. (HPI) and MP entered into a joint venture agreement to produce the theatrical production "Hair” at the Old Vic Theater. The agreement was signed by David Mirvish on behalf of MP, and contained the following arbitration clause:

"Should a dispute arise from this agreement or from its interpretation then the Producers agree that such dispute shall be referred to an Arbitrator to be appointed in the absence of agreement between the disputing parties by the President for the time being of the Society of West End Theatre in accordance with U.K. law.”

The play closed soon after opening due to poor box office returns and plaintiff HPI commenced this action against defendants Edwin and David Mirvish individually in their capacities as officers of MP and owners of Enterprises. The complaint asserted claims of tortious interference with contract and breach of fiduciary duty. Defendants moved for an order staying the action and compelling arbitration. Supreme Court denied the motion and the Appellate Division reversed. The question is whether the arbitration clause was meant to cover defendants, nonsignatories, permitting them to compel plaintiff to submit to arbitration.

Inasmuch as the dispute involves an international commercial contract, it is governed by the Federal Arbitration Act and Federal law (see, 9 USC § 201 et seq.; Fletcher v Kidder, Peabody & Co., 81 NY2d 623, 630-631, cert denied 510 US 993 [1993]). The Federal courts have consistently afforded agents the benefit of arbitration agreements entered into by their principals to the extent that the alleged misconduct relates to their behavior as officers or directors or in their capacities as agents of the corporation (Roby v Corporation of Lloyds, 996 F2d 1353, 1360 [2d Cir], cert denied 510 US 945 [1993]; Letizia v Prudential Bache Sec., 802 F2d 1185, 1188 [9th Cir 1986]; Arnold v Arnold Corp., 920 F2d 1269, 1281 [6th Cir 1990]; Pritzker v Merrill Lynch, Pierce, Fenner & Smith, 7 F3d 1110, 1121-1122 [3d Cir 1993]). The rule is necessary not only to prevent circumvention of arbitration agreements but also to effectuate the intent of the signatory parties to protect individuals acting on behalf of the principal in furtherance of the agreement (see, Roby, supra, at 1360; Letizia, supra, at 1188; Arnold, supra, at 1281; Pritzker, supra, at 1122; McCarthy v Azure, 22 F3d 351, 357 [1st Cir 1994]).

Plaintiff’s complaint is directed to misconduct related to HP’s failure to effectively produce and promote the play, not to defendants’ roles as owners of Enterprises. Accordingly, the parties are bound by the agreement between plaintiff and MP to arbitrate their disputes.

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

Order affirmed, with costs, in a memorandum.


text:
    [673 NE2d 1234, 651 NYS2d 7]
    The People of the State of New York, Respondent, v Patricia Cooper, Appellant.
    Argued September 12, 1996;
    decided October 22, 1996

      APPEARANCES OF COUNSEL

      Kevin F. Casey, New York City, and Daniel L. Greenberg for appellant.

      Robert M. Morgenthau, District Attorney of New York County, New York City (Michael T. Altman and Mark Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of criminal possession of a controlled substance in the fifth degree and sentenced, as a second felony offender, to an indeterminate prison term of from 21h years to 5 years. The Appellate Division, with one Justice dissenting, modified defendant’s conviction by reducing the conviction to criminal possession of a controlled substance in the seventh degree based on the absence of any proof that defendant knew she possessed 500 milligrams of cocaine, and remanded for resentencing (see, People v Cooper, 204 AD2d 24). The dissenting Justice granted leave to appeal to this Court (see, id.).

On that appeal, we reversed the order of the Appellate Division and remitted to that Court for consideration of the facts pursuant to CPL 470.25 (2) (d) and 470.40 (2) (b) (see, People v Gray, 86 NY2d 10, 26). We so ordered because defendant had not preserved her claim that the People failed to establish her knowledge of the weight of the drugs, then an element of the crime of possession of a controlled substance in the fifth degree (see, id., at 19-21). Nevertheless, we specifically noted that "even where defendants have failed to adequately preserve claims for appellate review, they may request that the Appellate Divisions apply their 'interest of justice’ jurisdiction under CPL 470.15 (3)” (id., at 22).

Following remittitur, the Appellate Division affirmed defendant’s conviction for criminal possession of a controlled substance in the fifth degree, stating that defendant failed to preserve her challenge to the absence of proof of her knowledge of the weight of the cocaine and that "upon reexamination of the facts * * * [the] record does not warrant consideration of this issue under our 'interest of justice’ authority (CPL 470.15 [3])” (People v Cooper, 216 AD2d 213). The exercise by the Appellate Division of its interest of justice jurisdiction is beyond the review power of this Court (People v Cona, 49 NY2d 26, 32-34; CPL 450.90 [2]).

On this appeal, defendant argues that the Appellate Division’s affirmance indicates that Court’s failure to conduct weight of the evidence review. Defendant asserts that since the Court previously ruled that there was insufficient evidence of her knowing possession of over 500 milligrams of cocaine, had the Court exercised its weight of the evidence review power the same result necessarily would have obtained because if the evidence is legally insufficient it must be against the weight of the evidence. We disagree with defendant’s argument.

"[T]he Appellate Division is constrained to weigh the evidence in light of the elements of the crime as charged without objection by defendant” (People v Noble, 86 NY2d 814, 815). Here, the trial court’s charge to the jury on the elements of criminal possession of a controlled substance in the fifth degree instructed, in relevant part, that if the jurors found that defendant knowingly and unlawfully possessed cocaine and "such cocaine knowingly and unlawfully possessed by the defendant contained [500] milligrams” they could find defendant guilty of that crime. This charge, presented, and later repeated at the jury’s request, without any objection from defendant, did not convey to the jurors that defendant’s knowledge of the precise quantity of cocaine she possessed was a specific element of the charged crime.

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

Order affirmed in a memorandum.


text:
    [674 NE2d 333, 651 NYS2d 403]
    The People of the State of New York, Respondent, v David Perez, Appellant.
    Decided October 22, 1996

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney of New York County, New York City (Michael T. Altman 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. There is support in the record for the undisturbed finding that, under the circumstances of this case, the actions of the arresting officer were lawful.

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


text:
    Carroll Air Services, Inc., Respondent, v Northland Aviation et al., Appellants.
    Submitted August 12, 1996;
    decided October 22, 1996
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying appellant’s motion for an order staying execution of final judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Derrick Fontaine, Appellant, v Queens Supreme Court Judge Flug et al., Respondents.
    Submitted October 15, 1996;
    decided October 22, 1996
   Appeal, insofar as it is taken from that part of the Appellate Division order that denied appellant’s motion for an enlargement of time to perfect the proceeding, dismissed, without costs, by the Court of Appeal, sua sponte, upon the ground that that part of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Foreclosure of Tax Liens by County of Erie. Concepcion Virella, Respondent; Americo Castro, Appellant.
    Submitted July 22, 1996;
    decided October 22, 1996
   Motion for leave to appeal dismissed for failure 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:
    Evelyn Kannatt et al., Appellants, v Valley Forge Insurance Company, Inc., Respondent.
    Submitted August 12, 1996;
    decided October 22, 1996
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied appellants’ motion to amend the complaint, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Renee Meyer, Appellant, v Stephen Meyer, Respondent.
    Submitted July 29, 1996;
    decided October 22, 1996
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that (1) affirmed Supreme Court’s order of February 15, 1994, except insofar as it affirmed the granting of appellant’s motion to resettle the amended judgment, and (2) affirmed that portion of Supreme Court’s order of May 11, 1995, denying appellant’s motion to hold respondent in contempt, 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, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed that part of Supreme Court’s order of May 11, 1995, as directed arbitration, dismissed upon the ground that as to that part of the order, appellant is not a party aggrieved; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Edward Johnson, Appellant.
    Submitted October 15, 1996;
    decided October 22, 1996
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see, NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v James Melvin Lee, Appellant. In the Matter of James M. Lee, Appellant, v Supreme Court of the State of New York, Appellate Division, First Department, Respondent.
    Submitted October 15, 1996;
    decided October 22, 1996
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain the appeal (see, NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    The People of the State of New York ex rel. Peter Rothrock, Appellant, v James Campbell, as Sheriff of Albany County, et al., Respondents.
    Submitted September 23, 1996;
    decided October 22, 1996
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see, NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Philip Storrs et al., Appellants, v Julie Holcomb, as Ithaca City Clerk, Respondent.
    Submitted October 15, 1996;
    decided October 22, 1996
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).