text:
    Lasidi, S. A., et al., Respondents, v Financiera Avenida, S. A., Appellant, et al., Defendants.
    Argued February 7, 1989;
    decided March 28, 1989

      APPEARANCES OF COUNSEL

      Richard E. Carlton, Michael Straus, Patricia A. Connell and Karen A. Popp for appellant.

      Michael H. Diamond, Samuel Kadet and James W. Kennedy for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the April 7, 1987 order of the Appellate Division brought up for review should be affirmed, with costs.

Plaintiffs, who operate an investment management business in Switzerland, were retained by Abdullah Darwish Ahmed (Darwish) and Riaz Saleem Aslam (Aslam), two officials of the Department of Personal Affairs (DPA) of the United Arab Emirates, to manage certain overseas investments made with funds belonging to His Highness Shaikh Zayed bin Sultan al Nahayan, the Absolute Ruler of Abu Dhabi. The DP A was created by the Shaikh to oversee the management of many of his considerable personal assets. After an initial period during which plaintiffs dealt directly with Darwish and Aslam, the Shaikh’s funds were channeled through defendant Financiera Avenida, S. A. (Avenida), a Panamanian corporation, whose use was suggested by solicitors in London. During the period in question, Avenida had no functioning officers or directors, no corporate records and observed none of the usual corporate formalities. It was operated strictly as an investment conduit by Aslam, whose authority derived from a bearer share certificate and power of attorney for the corporation.

A dispute between the parties eventually arose, with the Shaikh and the DPA claiming that Aslam, Darwish and plaintiffs were engaged in self-dealing and embezzlement. In response, plaintiffs commenced the present action for defamation, and defendant counterclaimed alleging a variety of causes of action based on the premise that plaintiffs had used the Shaikh’s funds in an unauthorized manner.

As part of the discovery process, plaintiffs sought to depose the Shaikh on the questions of his relationship to Darwish and Aslam and whether, in fact, he had either authorized or ratified any of their investment decisions. In support of their request for an examination before trial, plaintiffs cited deposition testimony by Aslam in which he stated that Darwish, who is now in an Abu Dhabi prison, had told him that the Shaikh had personally authorized the disputed investments.

What followed was a series of motions in which Avenida attempted to obtain a protective order on a number of grounds, including the contention that the Shaikh was insulated from any discovery obligations by the international common-law doctrine of "head of state immunity” (see generally, Note, Resolving the Confusion Over Head of State Immunity: The Defined Rights of Kings, 86 Colum L Rev 169; Note, Amenability of Foreign Sovereigns to Federal In Personam Jurisdiction, 14 Va J Intl L 487). The only comment made by the United States Government on the immunity claim was a "suggestion of interest” filed by the United States Attorney General pursuant to 28 USC § 517, suggesting that "any intrusion on the dignity of Shaikh Zayed’s office” be minimized and that "the United States assumes that U.S. courts will not require personal discovery from a foreign head of state in the absence of a demonstrated need.”

The trial court rejected Avenida’s efforts to avoid a deposition of the Shaikh and directed Avenida to comply with plaintiffs’ discovery request. When compliance was not forthcoming, the court invoked the sanction provisions of CPLR 3126 and dismissed Avenida’s counterclaims.

On its appeal from the final judgment dismissing plaintiffs’ complaint, which appeal brings up for review the nonfinal Appellate Division order affirming the dismissal of the counterclaims (see, CPLR 5501 [b]; 5602 [a] [1] [ii]), Avenida argues that the "head of state immunity” doctrine was applicable. Avenida also argues that, in any event, the Shaikh is not a proper party for a deposition under CPLR 3101 (a) (1), which directs disclosure by "a party, or the officer, director, member, agent or employee of a party”. Finally, Avenida contends, in the alternative, that the ultimate sanction of dismissal of its counterclaims was unnecessary and therefore constituted an abuse of discretion. We reject these contentions and, consequently, affirm.

We conclude that Avenida had no independent existence. Therefore, the Shaikh was a proper party for a deposition under CPLR 3101 (a) (1). Avenida had no assets apart from the Shaikh’s personal funds and had no purpose other than to serve as a conduit for the Shaikh’s personal investments abroad. Further, the traditional characteristics of corporations, such as the maintenance of corporate books and management by designated officers and directors, which ordinarily lend corporations a life separate from their investors, were not present here. Finally, the conclusion that Avenida had no separate identity is supported by the fact that, by virtue of his position as Absolute Ruler of Abu Dhabi, the Shaikh has control over his subjects, who run Avenida for his benefit.

Having concluded that Avenida was the Shaikh’s alter ego, we further conclude that Avenida’s affirmative, voluntary action in interposing counterclaims resulted in a waiver of any testimonial immunity that the Shaikh might otherwise have had (see, National Bank v Republic of China, 348 US 356, 361-362; Aboujdid v Singapore Airlines, 67 NY2d 450). The Shaikh cannot seek to recover some $96 million in personal funds by counterclaims brought in an American court through his corporate alter ego while at the same time invoking head of state immunity as a means of insulating himself from discovery on the matters directly related to the substance of those counterclaims.

Finally, the trial court did not abuse its discretion in dismissing Avenida’s counterclaims after its repeated refusals to comply with the orders directing the Shaikh to submit to an examination before trial. Given the nature of the counterclaims, i.e., that plaintiffs and the DPA officials Darwish and Aslam had invested the Shaikh’s funds in an unauthorized manner, it is difficult to understand how plaintiffs could adequately defend without the opportunity to depose the Shaikh, at least on the question of his discussions with Darwish and Aslam regarding their management of his assets. Accordingly, the sanction of dismissal was not unjustified (see, Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 571-572).

Chief Judge Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur; Judge Alexander taking no part.

Judgment appealed from and April 7, 1987 order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.

      . Avenida appealed from the Supreme Court’s denial of its motion for a protective order, but the Appellate Division affirmed and denied Avenida’s subsequent motion for leave to appeal to this court.

      . Avenida previously sought to obtain review of this prior nonfinal order by moving for leave to appeal to this court. However, the motion was dismissed on finality grounds (70 NY2d 693).


source: Caselaw Access Project

license: Public Domain

text:
    Frank Maurizzio, Jr., Appellant, v Lumbermens Mutual Casualty Co., Respondent.
    Argued February 9, 1989;
    decided March 28, 1989

      APPEARANCES OF COUNSEL

      Elyssa M. Fried for appellant.

      Martin J. Semel for respondent.

      Philip C. Pinsky for Nationwide Mutual Insurance Company, amicus curiae.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendant, by declaring that plaintiff is not entitled to recover under his underinsured motorist endorsement and otherwise affirmed.

Plaintiff purchased an automobile insurance policy with a policy limit of $10,000 for bodily injury for any one person injured in an accident involving plaintiff’s automobile. In addition to purchasing this basic coverage, plaintiff paid a $1 premium for an endorsement that permitted recovery in the event that plaintiff was injured in an accident with a "under-insured motor vehicle,” a term defined as a motor vehicle which is covered by insurance but has a "limit for bodily injury liability [that] is less than the limit of liability for this [plaintiff’s] coverage.”

Plaintiff filed a claim under this underinsured motorist endorsement after having allegedly sustained injuries in excess of $20,000 in an accident with another vehicle, which had an insurance policy with a $10,000 limit for bodily injury. When defendant insurance company denied the claim, plaintiff commenced the present lawsuit for a judgment declaring him entitled to coverage. On defendant’s motion, Supreme Court dismissed the complaint for failure to state a cause of action (see, CPLR 3211 [a] [7]) on the ground that, under the plain terms of plaintiff’s policy, the underinsured motorist coverage was unavailable where the insurance policy limits of the offending vehicle were not less than the limits of plaintiff’s own coverage. The Appellate Division affirmed, and plaintiff now appeals by permission of this court.

We agree that plaintiff is not entitled to recover under the terms of his underinsured motorist endorsement. The coverage provided by that endorsement is definitionally not available where, as here, the policy limits of the insured’s vehicle do not exceed the policy limits of the other vehicle or vehicles involved in the injury-causing accident. While it is true that a person who has purchased a policy with a $10,000 limit for bodily injury may never have occasion to recover under an underinsured motorist endorsement such as the one at issue here, that circumstance alone does not justify an interpretation of the underinsurance clause that would create an entirely different form of supplementary coverage than that defined by the Legislature in the State’s Insurance Law (see, Insurance Law § 3420 [f] [2]; see also, Breed v Insurance Co., 46 NY2d 351, 355 [equitable considerations will not allow an extension of coverage beyond the policy’s meaning]). Nor does Matter of United Community Ins. Co. v Mucatel (127 Misc 2d 1045, affd 119 AD2d 1017, affd 69 NY2d 777) compel a contrary result. That case concerned an ambiguity that existed because of a discrepancy between two specific terms within the underinsured motorist endorsement, one of which called for $25,000 in coverage and the other of which provided for an offset that, as a practical matter, limited the available maximum recovery to $15,000 in every case. We affirmed the decision of the Supreme Court, which had resolved the ambiguity in the provisions governing the amount of coverage by refusing to give effect to the offset clause. Here, in contrast, we are not faced with uncertainty over the amount to be recovered in a situation admittedly covered by an underinsurance policy provision. Rather, the issue here is whether underinsurance coverage is applicable inasmuch as the contractual prerequisites for recovery under such a clause have not been satisfied. We decline to extend the rationale in Mucatel to this very different case, where the disputed clause concerns not the amount to be recovered in an admittedly covered situation, but rather whether the coverage is contracted for at all under the Insurance Law.

Finally, although the courts below correctly disposed of the merits of plaintiff’s claim, they erred in the form of the remedy they selected. As was noted in Lanza v Wagner (11 NY2d 317, 334), when a court resolves the merits of a declaratory judgment action against the plaintiff, the proper course is not to dismiss the complaint, but rather to issue a declaration in favor of the defendants (see also, Siegel, NY Prac § 440). Accordingly, the order from which plaintiff appeals must be modified to include a declaration that plaintiff is not entitled to recover on his underinsured motorist claim.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order modified, with costs to defendant, in accordance with the memorandum herein and, as so modified, affirmed.

       The language of this endorsement parallels the language of Insurance Law § 3420 (f) (2), which provides: "Any * * * policy shall, at the option of the insured, also provide supplementary uninsured motorist insurance for bodily injury * * *. [Such] insurance shall provide coverage * * * if the limits of liability under all bodily injury liability bonds and insurance policies of another motor vehicle liable for damages are in a lesser amount than the bodily injury liability insurance limits of coverage provided by such policy.”


text:
    Raphael Killeen et al., Appellants, v State of New York, Respondent.
    Submitted February 14, 1989;
    decided March 28, 1989
   Motion to vacate June 2, 1987 order of dismissal denied. [See, 69 NY2d 1016.]


text:
    In the Matter of William Quinones, Appellant, v Harold J. Rothwax, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted January 23, 1989;
    decided March 28, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, for mootness. Motion for leave to appeal dismissed for mootness.


text:
    In the Matter of Gillmore Sinkler, Appellant, v James V. Murray, as Supervisor of the New York State Division of Parole, Respondent.
    Decided March 28, 1989
   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 [a], [b]).


text:
    In the Matter of Waldo’s, Inc., Appellant, v Village of Johnson City, Respondent.
    Submitted February 21, 1989;
    decided March 28, 1989
   Motion for clarification of stay order and for an undertaking denied. [See, 73 NY2d 868.]

Judge Hancock, Jr., taking no part.


text:
    The People of the State of New York, Respondent, v Wallee Comer, Appellant.
    Argued February 16, 1989;
    decided March 30, 1989

      APPEARANCES OF COUNSEL

      Francis A. Brady, Philip L. Weinstein and Celeste Lacy Davis for appellant.

      Elizabeth Holtzman, District Attorney (Seth M. Lieberman, Barbara D. Underwood and Nikki Kowalski of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant maintains that he is entitled to a new trial because of improper comments by the District Attorney during summation or, failing that, that the matter must be remitted to the Appellate Division so that it may exercise its factual review powers and determine whether the jury’s verdict was against the weight of the evidence (see, CPL 470.15 [5]; People v Bleakley, 69 NY2d 490).

Defendant failed to preserve his claims of error on many of the District Attorney’s comments during summation and the court ruled correctly on those to which proper objections were taken. Moreover, to neutralize any prejudice resulting from the District Attorney’s statements the court gave curative instructions in its charge to the jury. Defendant neither objected to these curative instructions nor requested additional instructions.

Insofar as defendant claims the Appellate Division failed to consider the weight of the evidence, it does not appear, as it did in Bleakley (69 NY2d, at 494-495, supra), that the court misunderstood its obligation to review the weight of evidence or that it failed to do so.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Michael Cole, Appellant.
    Decided March 30, 1989
    APPEARANCES OF COUNSEL

      Joel A. Siegel for appellant.

      Elizabeth Holtzman, District Attorney (Michael Gore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed.

The court should have granted the defendant’s motion to dismiss on speedy trial grounds (CPL 30.30). Defendant’s motion challenged the People’s assertion of readiness as illusory because they were unable to produce the complainant. The sworn allegations of fact essential to support defendant’s motion were conceded by the People when they failed to submit opposition papers contesting these allegations (People v Gruden, 42 NY2d 214). Under these circumstances the court is required by statute to grant the motion (CPL 210.45 [4] [c]; see also, People v Gonzalez, 116 AD2d 735).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.


text:
    The People of the State of New York, Respondent, v Andres Tejeda, Appellant.
    Argued February 7, 1989;
    decided March 30, 1989

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Daniel M. DeLaus, Jr., of counsel), for appellant.

      Howard R. Relin, District Attorney (Elizabeth Clifford of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On January 5, 1984, acting at the behest of defendant’s wife, the police searched defendant’s apartment and the persons present, including defendant and his codefendant Roberto Torres. Although the police confiscated a small amount of marihuana, their search for approximately 20 ounces of cocaine proved fruitless and no arrests were made. Approximately three hours later, defendant brought Torres to the apartment of defendant’s acquaintance Felicia Mortuiccio. Mortuiccio did not know Torres, had not invited either defendant or Torres to her apartment and did not expect the visit. Upon arriving with the defendant, Torres placed a blue bag on the coffee table in the living room and minutes later, Mortuiccio observed a white powdery substance under some plastic inside the bag. Mortuiccio then called defendant’s wife, Carmen Tejeda, for an explanation. Carmen Tejeda advised Mortuiccio to leave the apartment and go to the Tejeda residence, which Mortuiccio did. While at the Tejeda residence, Carmen Tejeda told Mortuiccio that the white substance was cocaine and the police were called.

After talking with Mortuiccio and Carmen Tejeda, the police obtained Mortuiccio’s written consent to search her apartment. When the police entered the Mortuiccio apartment, they observed defendant and Torres walking toward the living room door, a small residue of cocaine on a dish on a coffee table in the living room and grains of rice on the living room floor. Additionally, the search of the apartment revealed a plastic bag containing over one-half ounce of cocaine in a closed end table drawer and approximately 10 ounces of cocaine hidden in a bag of rice in the kitchen refrigerator. Mortuiccio testified that prior to the arrival of defendant and Torres, there was no dish on the table, no rice on the floor and no cocaine in the apartment.

Viewing this evidence in the light most favorable to the People and giving the People the benefit of every reasonable inference to be drawn therefrom (People v Way, 59 NY2d 361, 365; People v Benzinger, 36 NY2d 29, 32), we conclude that the evidence is legally sufficient to support defendant’s conviction for criminal possession of a controlled substance in the third degree (Penal Law §220.16 [12]). After he and Torres had been searched for suspected narcotics possession at his apartment, defendant brought Torres, who was then carrying a white powdery substance, later identified as cocaine, to the controlled environment of Mortuiccio’s apartment and was discovered there in the presence of a small amount of cocaine on the living room coffee table under circumstances evincing an intent to prepare the narcotic for sale (Penal Law § 220.25). In these circumstances, defendant’s knowing possession of the cocaine discovered in the living room end table is sufficiently established.

Further, we agree with the Appellate Division that although the reading of Mortuiccio’s Grand Jury testimony by the prosecutor was not necessary to rebut any evidence introduced by the defense and therefore constituted improper bolstering (see, People v Torres, 134 AD2d 902), this error is harmless (People v Crimmins, 36 NY2d 230).

Defendant’s remaining contentions are either unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


author: Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Benjamin Kou Smith, Appellant.
    Argued February 16, 1989;
    decided March 30, 1989

      APPEARANCES OF COUNSEL

      Edward J. Nowak, Public Defender (Howard K. Broder of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed for the reasons stated in that court’s memorandum (138 AD2d 972).

We would only add that defendant failed to timely raise the issue of whether he was properly sentenced as a second felony offender by not controverting the allegations in the predicate felony statement (CPL 400.21 [3]). Accordingly, any question concerning whether defendant’s prior conviction of kidnapping under 18 USC § 1201 is equivalent to his conviction of a felony in New York has not been preserved for our review.

Hancock, Jr., J.

(concurring). I cannot agree with the Appellate Division that People v Hicks (68 NY2d 234) permitted the police, without probable cause, to use aggressive force to detain defendant for the purpose of transporting him to the victim’s home for identification (contrast, People v Battaglia, 56 NY2d 558, revg on dissent below 82 AD2d 389 [illegal seizure, absent probable cause, to handcuff defendant and place him in police vehicle while attempting to establish probable cause]; and People v Henley, 53 NY2d 403 [illegal seizure, absent probable cause, to confront defendant with gun, handcuff him, and transport him to crime scene to obtain probable cause], with People v Hicks, supra, at 240 [distinguishing Battaglia and Henley, and holding that there was a legal seizure, absent probable cause, only because "Defendant was not handcuffed, there was no show of force, he was permitted to park the car nearby before accompanying the police, he was not taken to the police station, the total time and distance involved were very brief, he was told the specific, limited purpose of the detention, and no information was asked of him after the initial inquiry”]). I concur, however, with the result because, although not argued before the suppression court, the circumstances here (see, 138 AD2d 972, 973) created a level of suspicion which, in my view, constituted probable cause, as a matter of law, so as to justify the intrusion.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander and Bellacosa concur; Judge Hancock, Jr., concurs in result in an opinion in which Judge Titone concurs.

Order affirmed in a memorandum.


author: Bellacosa, J.

text:
    The People of the State of New York, Respondent, v Rafael Agosto, Appellant.
    Argued February 7, 1989;
    decided March 30, 1989

      APPEARANCES OF COUNSEL

      Freda S. Nisnewitz for appellant.

      Elizabeth Holtzman, District Attorney (Sherry Chase-Conant and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On appeal defendant’s chief contention is that the trial court’s failure to respond to a jury note or to notify counsel of its existence constituted error requiring reversal. We agree with the Appellate Division that it did not.

During the first two days of deliberation, the jury sent out several notes which asked for exhibits, readbacks, or additional instructions. All but one of the notes which required the jury to be returned to the courtroom took 30 or more minutes to answer. At 6:50 p.m. on the second day, the court called the jurors in and informed them that they would be sequestered for the night. The court refused a juror’s request that they be allowed to continue deliberating for another hour rather than having to spend the night in a hotel. Deliberations recommenced the next morning and 15 minutes later, at 11:05 a.m., the jury sent out the note in question. It stated: "Your Honor, Mrs. Kaufman and I are Sabbath observers and therefore we would like to request that we be dismissed before sundown to prepare for the Sabbath period. Thank you, Mildred Goldstein”. At 11:25 a.m., the jury announced that they had reached a verdict. The court took the verdict without making any reference to the last note and without informing either counsel of its existence.

CPL 310.30 requires the court to make a meaningful response, in the presence of counsel and the defendant, to any jury request "for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case”. We need not decide whether, as defendant argues, the note in question was a request for purposes of CPL 310.30, because even assuming that it was, there should be an affirmance. It is only where the failure to respond to a jury note "seriously prejudice[s]” defendant that a reversal is required (People v Lourido, 70 NY2d 428, 435). Here, the note did not concern the crimes charged or the evidence in the case, much less any key issue (cf., id.; People v Miller, 6 NY2d 152, 156).

Rather, defendant contends and the dissent finds that there was a significant probability that the jurors were coerced or pressured into returning a guilty verdict because of the court’s failure to respond to the note. This conclusion would necessarily require an assumption that — from the court’s failure to acknowledge the note within 20 minutes of its receipt — the two jurors had inferred that the court was not giving favorable consideration to their request. Nothing in the record supports such assumption. Indeed, from the jury’s experience with previous communications it seems highly unlikely that the two jurors could have attached any significance to the 20-minute delay. Of the several requests, only one had been responded to in less than 20 minutes. In some instances, the delay had been far longer.

Moreover, even if we could speculate that — because of the court’s failure to answer the note within 20 minutes — the two jurors somehow acquired the belief that their request was being ignored, it would be most improbable that such belief could have had an effect on their deliberations. The jury reported at 11:25 a.m. that they had reached a verdict — at least 6 to 7 hours before sundown and certainly before the hour when the two jurors could reasonably be assumed to have felt any pressure to arrive at a verdict. The jury’s announcement of agreement on a verdict 20 minutes after sending the note out and 35 minutes after recommencing deliberations (a consensus presumably having been reached sometime earlier) is certainly not indicative of any pressure from the court’s failure to respond to their note. On the contrary, that the jury reached a verdict so soon would, if anything, appear to be consonant with the sentiment expressed the previous evening that the jury should be given an additional hour to deliberate instead of being adjourned for the night. In sum, assuming that the note could be viewed as a request pursuant to CPL 310.30, it cannot be said that there is a significant probability of any prejudice to defendant — let alone serious prejudice (see, People v Lourido, supra, at 435)— resulting from the court’s failure to respond to it.

Additionally, we find no error in the court’s interested witness charge. The court gave the standard instruction that the jury could consider whether any witness had an interest in the outcome of the case which might affect his or her testimony and that merely because a witness was interested did not mean that he or she was not telling the truth (see, 1 CJI[NY] 7.03). There is no question that defendant was an interested witness as a matter of law as the court appears to have charged (see, People v Ochs, 3 NY2d 54, 56). Nor is there any question that it was proper to instruct the jury that they could determine whether defendant’s wife or any other witness, including those identified by both counsel in their summations, was an interested witness (see, People v Suarez, 125 AD2d 350). While the Trial Judge specifically named defendant’s wife as a witness who could be found to be interested, there is nothing in the court’s. language suggesting that it believed that she was interested or that she was the only witness that the jury could find to be interested. We conclude, based upon a review of the charge as a whole, that the court’s instruction was fairly balanced and stated the applicable rule in clear and understandable language. It could not have misled the jury (cf., People v Crumble, 286 NY 24, 26).

Defendant’s remaining arguments are unpreserved or without merit.

Bellacosa, J.

(dissenting). The majority, in affirming this conviction, adopts the Appellate Division’s central premise that the trial court’s complete failure of compliance with the conceded obligation to respond to a note from the deliberating jury was not prejudicial and did not affect the ultimate verdict (140 AD2d, at 354). Because we believe it is entirely speculative to find lack of prejudice and lack of causal effect in this record, and because the evidence of defendant’s guilt was weak rather than overwhelming as required to excuse a judicial failure to fulfill the statutory obligation with respect to the most sensitive matters pertaining to a deliberating jury, we respectfully dissent and vote to reverse and order a new trial.

In this case, the trial court’s acceptance of the verdict, without notice, without inquiry, and without response to an outstanding jury request, was a patent violation of CPL 310.30 and was prejudicial error which may have spurred the guilty verdict out of this jury. It had been deliberating two and one-half days and had previously sent several deadlock notes.

Defendant stands convicted of criminal possession of a weapon and of a controlled substance. He was arrested in his neighborhood after police arrived to investigate his alleged interference with fire fighting efforts during a heavy snowstorm as he attempted to move his car from its parking place with the aid of neighbors. The officers searched, handcuffed and placed him in the rear of their squad car. The police testimony is that he pulled a revolver on them while en route to the station house. Defendant, testifying on his own behalf, denied possessing or drawing the weapon and maintained that he was the victim of police harassment throughout the episode. In sum, resolution of the case turned on whose version of events the jury believed.

The jury began its deliberation just past noon on Wednesday, the fifth day of the trial. In its final instruction before sending the jury to deliberate, the court emphasized that if there were differing opinions in the jury room, the minority of the jurors should listen to the majority because "it could be that the eleven are right and the one is wrong”. Despite a vigorous defense consisting of defendant’s own testimony and other witnesses on his behalf, and despite sharply conflicting versions among many witnesses as to what had transpired, the Trial Justice apparently anticipated brief deliberations and informed the jurors that lunch would arrive in 45 minutes but that they should not be reluctant to reach a verdict before that time because they were entitled to lunch even if they were no longer deliberating when it came.

The jury was also given the standard "interested witness” instruction. The court defined an "interested witness” and stated that the question of whether a particular witness was "interested” was for the jury to decide. The court then gave a specific illustration: "Obviously, the defendant, Mr. Agosto, has the primary interest in the outcome of the trial. Indeed, he is the defendant. Whether his wife, Primative Agosto, who testified in this trial is concerned for her husband’s future welfare, whether that concern is sufficiently strong to make her interested in the outcome of the case, that is for you to decide applying the definition that the court has given you.”

Defense counsel objected because the instruction mentioned defendant and his wife as interested without correspondingly alerting the jury that the police officers might also be interested in the outcome of the criminal case because of the civilian complaint that they mistreated defendant. The objection was overruled.

The jury deliberated for over 14 hours during the course of the next two and one-half days. During the first two days, the jury sent the Trial Justice eight notes requesting further guidance and information. All eight notes were answered. In three of these notes, the jury stated they were deadlocked— evident manifestation of the closeness of this relatively simple credibility case. In response to these deadlock messages, the trial court pressed the jury to continue deliberating until a verdict was reached. The court prodded the jury that "there can be no reflection upon any juror for changing his own opinion” and urged them not "to pass the buck”.

At 11:05 a.m. on Friday, the third, and as it turned out the last, day of deliberations, the jury sent out a ninth note which read: "Your Honor, Mrs. Kaufman and I are Sabbath observers and, therefore, we would like to request that we be dismissed before sundown to prepare for the Sabbath period. Thank you” (emphasis added). The note was signed by the forelady, Mrs. Goldstein.

The Trial Justice did not inform counsel that he received the note and did not order the jury returned to the courtroom so that he might answer it. At 11:30 a.m., without inquiring about the effect of the outstanding note, if any, the court accepted the jury’s verdict convicting defendant on both counts. At some unknown point and with no notice, so far as the record shows, to the necessary participants, especially counsel, at the critical deliberations time, the note was marked as an exhibit and placed in the court’s case file. This note apparently was not discovered by or disclosed to the defense counsel until defendant’s sentencing.

The precise and mandatory procedure to be followed by courts when deliberating juries request additional information is set forth in CPL 310.30. It provides: "At any time during its deliberations, the jury may request the court for further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and the counsel for the defendant, and in the presence of the defendant, must give such requested information or instruction as the court deems proper” (emphasis added).

The statute vests discretion in the court only as to the tail end of the statutory prescription; that is, to determine how much and what to respond to a request or inquiry from the jury (People v Malloy, 55 NY2d 296, 302). The majority hypothesizes that this note denoting an anxiety about terminating deliberations by a fixed external deadline is governed by CPL 310.30. We believe that to conclude otherwise would render the statute meaningless because the provision could not reasonably be read to require lay jurors to use the statutory words or other legal jargon to prove pertinency "of any other matter”.

In any event, the statute affords no discretion to refuse to answer or, as in this case, to ignore the request entirely. While we agree that the failure to comply with the statutory command to respond to a jury’s request for information during deliberations does not amount to per se reversible error, we strongly disagree that reversal is not required here, where the record supports the conclusion that the lapse seriously prejudiced the defendant (People v Lourido, 70 NY2d 428, 435).

The trial court failed to mention, to give notice to counsel, to inquire about or to respond at all to the jury’s request (see, People v Mehmedi, 69 NY2d 759, 760; People v Ahmed, 66 NY2d 307, 310). These derelictions cannot be pardoned as nonprejudicial in this case. First, the evidence of appellant’s guilt was extremely weak. It was sharply contradicted and of a most suspicious quality arising out of a volatile urban street clash between citizen and police. It came solely from the arresting officers who, according to defense witnesses, provoked the alleged criminal incident. According to the prosecution, the police were called to the scene of a fire during a heavy snowstorm and were informed that defendant’s car was blocking a fire fighting effort. When the police officers approached, defendant was said to be belligerent and refused to produce his license and registration. The police then attempted to arrest defendant. There was a scuffle and physical force was used to subdue him. Defendant’s hands were handcuffed behind his back and he was frisked. No weapons were discovered. Defendant was placed in the back seat of the squad car. On the way to the station house, defendant, with his hands still cuffed behind his back, drew — apparently in Houdini-like fashion — a loaded two-shot derringer from his pants and pointed it at one of the officers. A struggle ensued until the officers were able to overcome the defendant by striking him in the head several times with their nightsticks. When they arrived at the precinct, defendant was strip-searched and was found to be in possession of three tinfoil packets of cocaine.

Defendant’s version of what transpired differed. He admitted the cocaine possession but denied possessing or pulling the gun. Defendant testified that the gun was on the back seat when he was placed in the squad car and that it was one of the officers who retrieved it. They then struck the defendant repeatedly with a nightstick. Defendant also testified that the incident in the squad car was a continuation of the police harassment which had begun at the fire-snowstorm scene. Defendant contended that he did produce identification, but that the police knocked it from his hands and pushed him against the car. Defendant denied ever striking either officer and maintained that the police were the ones who struck him without provocation.

Further, all the defense witnesses contradicted the officers’ version of what happened at the time of defendant’s arrest before he was placed in the squad car. The defense eyewitnesses, including defendant’s wife of 19 years and two of defendant’s neighbors who were helping him move his car, testified that defendant was beaten without provocation when he tendered his car registration to the officers, that he was searched thoroughly before being placed in the squad car, and that defendant never raised a hand to either of the arresting officers. Of course, only the officers and the defendant know what happened in the squad car and they offered completely divergent stories.

This is, thus, a classic credibility case and a very close one at that. It is not surprising, then, that the jury deliberated for two and one-half days after a short trial or that it repeatedly declared itself to be deadlocked. The deliberations came to an abrupt and adverse end for defendant shortly after the ninth and last note was sent expressing the anxiety of two jurors about possible interference with their Sabbath observance. In view of the history as to what had transpired in this trial and in the lengthy prior deliberations, it cannot be reasonably disputed that those jurors were expressing a pertinent and conscientious concern and potential conflict in their responsibilities. Also not susceptible to serious debate is that no one can ever know, because of how the Trial Justice handled the situation, to what extent the jurors’ anxieties accelerated and nudged the unanimous resolution of this case against this defendant. Surely, if there is a doubt or if there is to be a contest of speculations, the convicted defendant should be granted the benefit, for up to the critical moment he was presumed innocent.

Nowhere in this record can any support be found for the bald assumptions of the majority that the jurors were "highly unlikely” to "attach any significance” to the lack of response to the note, that it was "most improbable” that the failure to respond had any effect on the deliberations, and that "a consensus presumably” had formed at some point earlier than the sending of the note (majority mem, at 966). These are not assumptions, in any event, based on reasonable experience of how lay jurors act. The reason there is nothing in the record is the trial court failed to do what the statute commanded. The majority thus inflicts a legal Catch-22 on this defendant and apparently would dispense with the application of an important statutory protection based on how many minutes or hours elapse between a note request and a response or nonresponse. The statute contains no such time test. In sum, the available inferences strongly preponderate that the trial court’s failure to respond to the note substantially prejudiced the defendant and it is far more likely that the guilty verdict, constituting a serious miscarriage of justice in this case, was legally coerced.

While perhaps not reversible error in and of itself, additional prejudice may have been injected into this jury’s deliberations by way of the one-sided interested witness instruction given by the trial court. In this one-on-one credibility duel, the court spotlighted the defendant and his wife as interested witnesses while blinking the significant personal and professional interests of the police officers. The illustration by the Trial Justice to the jury may have vouched for the credibility of the police officers while undermining that of the defendant and his witnesses.

Defendant was seriously prejudiced and was deprived of a fair trial and of an untainted verdict. We should simply hold that a verdict may not be accepted when a jury note of this kind and in these circumstances is outstanding without any inquiry as to whether the request affected the rendition of the verdict.

For these reasons, the order affirming the conviction should be reversed and a new trial should be ordered.

Chief Judge Wachtler and Judges Simons, Alexander and Hancock, Jr., concur; Judge Bellacosa dissents and votes to reverse in an opinion in which Judges Kaye and Titone concur.

Order affirmed in a memorandum.


text:
    Stanley Gluck et al., Appellants, v City of Syracuse et al., Respondents.
    Submitted January 3, 1989;
    decided March 30, 1989
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court order dismissing in part the complaint against the defendants City of Syracuse and its Mayor, Thomas G. Young, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    Alice J. Van Buskirk, as Executor of Harold E. Van Buskirk, Deceased, Appellant, v Suhas Pradhan et al., Respondents. (Appeals Nos. 1 and 2.)
    Submitted January 9, 1989;
    decided March 30, 1989
   Motion for leave to appeal from the Appellate Division order affirming the November 12, 1987 order of Supreme Court, Onondaga County, dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Austin Lemontree, Inc., Appellant, v New York State Liquor Authority, Respondent.
    Submitted March 31, 1989;
    decided April 4, 1989
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (CPLR 5601 [a]). Motion for a stay dismissed upon the ground that no matter is pending before this court.


text:
    The People of the State of New York, Respondent, v Rick Blake, Appellant.
    Decided April 4, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie from the order of a Justice of the Appellate Division entered in this criminal action (CPL 450.90).


text:
    In the Matter of Paul DeLoronde et al., Appellants, v New York State Tax Commission, Respondent.
    Submitted January 30, 1989;
    decided April 4, 1989
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal denied.


text:
    In the Matter of Alan Kane, Petitioner. Harold Freedman et al., Respondents; Irving Tenebaum, Appellant.
    Submitted January 23, 1989;
    decided April 4, 1989
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals.


text:
    North American Philips Corporation et al., Respondents, v Union American (Unionamerican) Insurance Company, Limited, et al., Appellants.
    Submitted January 30, 1989;
    decided April 4, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the July 8, 1987 Supreme Court order denying summary judgment, dismissed upon the ground that that portion of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    In the Matter of Nyack Hospital, Respondent, v Government Employees Insurance Company, Appellant.
    Decided April 4, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies pursuant to leave granted by the Appellate Division from an order affirming the granting of a new hearing (CPLR 5602 [a] [2]; [b] [1]; Cohen and Karger, Powers of the New York Court of Appeals § 61, at 278, n 5).


text:
    Margaret Peterson, Appellant, v Liberty Mutual Insurance Company, Respondent.
    Decided April 4, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right from the nonfinal order of the Appellate Division entered in an action commenced in the District Court, Nassau County (NY Const, art VI, § 3 [b] [7]; CPLR 5601).


text:
    Schenley Industries, Inc., Respondent, et al., Plaintiff, v Martini & Rossi Corporation et al., Appellants, et al., Defendants. (And a Third-Party Action.)
    Submitted January 30, 1989;
    decided April 4, 1989
   Motion for leave to appeal from so much of the Appellate Division order as affirmed the dismissal of the third-party complaint against Meshulam Riklis denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v David Schonfeld, Appellant. (Peerless Insurance Company, Appellant.)
    Submitted January 17, 1989;
    decided April 4, 1989
   Motion by Peerless Insurance Company for leave to appeal granted. Motion by defendant Schonfeld for leave to appeal dismissed upon the ground that defendant was not a party to the proceeding.


text:
    122 West 109 Street Corp., Appellant, v City of New York, Respondent.
    Decided April 4, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, for failure to show compliance with CPLR 321 (a).


text:
    The People of the State of New York, Appellant, v Victor Quinones, Respondent.
    Argued February 8, 1989;
    decided April 6, 1989

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney (Mark Dwyer and Michael Schwartz of counsel), for appellant.

      Mitchell J. Briskey and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant and Scott Horne were taken into custody following an altercation in a jewelry exchange. At the trial, the People did not dispute defense counsel’s right pursuant to People v Rosario (9 NY2d 286), to review the police officer’s memo book and the report relating to Horne’s arrest. Although the People stated that they would have the officer return with these items, and now contend that he did, all the record shows is that the officer returned to the courthouse and turned over other materials but not the memo book or the arrest report. Thus, on the record, with respect to these items, there was not a mere delay but a complete failure to comply with the Rosario rule and a new trial is required, as the Appellate Division held (People v Ranghelle, 69 NY2d 56).

It would be inappropriate, in effect, to suspend final disposition of the appeal by remitting the case for a hearing to determine whether the items never disclosed, and not even in the record, are duplicate equivalents of the materials made available to defense counsel at trial. If the People intended to raise this issue to justify the nondisclosure, they should have included these items in the trial court record so that the point could be resolved on appeal in the normal course (see, e.g., People v Consolazio, 40 NY2d 446; People v Ranghelle, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Respondent, v Ernest Goins, Appellant.
    Argued February 8, 1989;
    decided April 6, 1989

      APPEARANCES OF COUNSEL

      Hilary Lamberton and Philip L. Weinstein for appellant.

      Robert M. Morgenthau, District Attorney (Norman Barclay, Mark Dwyer and Lisa Bernard of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

It is undisputed that in this case the People were obligated to furnish defense counsel with a copy of the police officer’s daily activity report (DAR) pursuant to People v Rosario (9 NY2d 286), and that they should have done so long before both sides had rested (People v Ranghelle, 69 NY2d 56). The People conceded this at the trial and both the trial court and the Appellate Division noted the violation. The only relief offered the defendant by the trial court was to accept the prosecutor’s offer to reopen the case and cross-examine the undercover officer with respect to his activities as reflected in his DAR. Defense counsel’s rejection of this offer was wrongly interpreted by the Appellate Division as a waiver of his right to timely production of the report.

A witness’s prior statement must be furnished to the defendant at a time when it can be useful to the defense (People v Perez, 65 NY2d 154). In this case, during cross-examination of the police officers without the benefit of the report, defense counsel had been led to believe that a discrepancy existed concerning the undercover officer’s activities on the day of the sale, and counsel had structured the defense, rested his case and prepared his summation on the basis of that discrepancy. Introduction of the DAR at that stage could only destroy the defense while bolstering the case for the prosecution, and counsel’s understandable rejection of this offer, the only option made available to him, cannot be deemed a waiver or abandonment of the right to timely disclosure which had already been violated (People v Perez, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum.

Order reversed, etc.


text:
    The People of the State of New York, Appellant, v Richard Knight, Respondent.
    Argued March 22, 1989;
    decided April 6, 1989
   Appeal dismissed upon the ground that the Appellate Division’s determination of reversal 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]). Although the Appellate Division stated that its reversal was on the law, it was based upon a claimed error which was not preserved and does not present a question of law for review by this court (People v Dercole, 52 NY2d 956).

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Kaye.


text:
    Carole A. Donnelly, Appellant-Respondent, v Philip L. Donnelly, Respondent-Appellant.
    Decided April 6, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the double dissent is not on a question of law (CPLR 5601 [a]). On the court’s own motion, cross appeal dismissed, without costs, upon the ground that it does not lie as of right absent a two-Justice dissent on a question of law in favor of appellant, or the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Phillip M. Fries, Appellant, v Joanne Price-Yablin, Respondent.
    Decided April 6, 1989
   Appeal from so much of the Appellate Division order as affirmed Supreme Court’s modification of the prior Supreme Court order awarding support (dated Aug. 6, 1986) dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the remaining portion of the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert Jefferds, Appellant, v Harold W. Ellis, Respondent.
    Decided April 6, 1989
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not grant a new trial or hearing within the meaning of CPLR 5601 (c) (see, Cohen and Karger, Powers of the New York Court of Appeals § 63, at 283-284).


text:
    The People of the State of New York ex rel. Surinder Panshi, Appellant, v Joseph Degan, as Warden of the Queens House of Detention, Queens County, Respondent.
    Submitted March 6, 1989;
    decided April 6, 1989
   Motion for leave to appeal dismissed as moot.


text:
    Helen A. Persons, Respondent, v Thomas Cross et al., Defendants, and Robert Cooke, Appellant.
    Submitted March 20, 1989;
    decided April 6, 1989
   Motion insofar as it seeks leave to appeal from so much of the Appellate Division order as denied summary judgment dismissed upon the ground that that part of the order does not finally determine the action within the meaning of the Constitution; motion otherwise denied.


text:
    NPS Engineers and Constructors, Inc., Respondent, v Underweiser & Underweiser et al., Defendants-Appellants, and Third-Party Plaintiffs. Williamson, Picket, Gross, Inc., Third-Party Defendant.
    Argued March 29, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      Beatrice K. Underweiser for appellants.

      Jeffrey D. Marks and Jay D. Fischer for respondent.
   OPINION OF THE COURT

Order modified, with costs to appellants, by denying plaintiffs motion for summary judgment for the reasons stated in the dissenting memorandum of the late Justice Leonard H. Sandler at the Appellate Division (141 AD2d 412, 414-417). Certified question not answered as unnecessary.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of Irving W. Levine.
    Decided April 27, 1989
   OPINION OF THE COURT

On the court’s own motion, it is determined that Honorable Irving W. Levine is suspended, with pay, effective immediately, from his office of Judge of the Civil Court of the City of New York, Kings County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa.


text:
    In the Matter of the Tenants of Hyde Park Gardens et al., Respondents, v State of New York, Division of Housing and Community Renewal, Office of Rent Administration, Appellant. (And Another Proceeding.)
    Argued March 21, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      Richard Hartzman and Dennis B. Hasher for appellant.

      Richard M. Creditor for respondents.
   OPINION OF THE COURT

Order insofar as appealed from affirmed, with costs, and certified question answered in the affirmative for the reasons stated in so much of the memorandum at the Appellate Division as related to the issue of rent reduction (140 AD2d 351).

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacos a. Taking no part: Judge Kaye.


text:
    National Bank of Pakistan, Plaintiff, v Saeed A. Basham et al., Defendants. National Bank of Pakistan, Respondent, v Fireman’s Fund Insurance Company, Defendant-Appellant and Third-Party Plaintiff. Saeed A. Basham et al., Third-Party Defendants.
    Argued March 22, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      William P. Sullivan, Jr., and Jeffrey M. Winn for appellant.

      Richard S. Last for respondent.

      Jerome Murray and Robert G. Post for Surety Association of America, amicus curiae.

   OPINION OF THE COURT

Order affirmed, with costs, and certified question answered in the affirmative for the reasons stated in the memorandum of the Appellate Division (142 AD2d 532).

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Kaye.


text:
    First Federal Savings & Loan Association of Rochester, Appellant, v Dietz International Public Adjusters, Inc., et al., Respondents.
    Argued March 22, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      Donald Zimmerman and Theodore J. Greene for appellant.

      Lewis I. Wolf for respondents.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum of the Appellate Division (143 AD2d 45).

Concur: Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa. Taking no part: Judge Kaye.


text:
    The People of the State of New York, Respondent, v Raymond D. Roe, Jr., Appellant.
    Argued March 21, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      David Steinberg for appellant.

      Gerald F. Mollen, District Attorney (Joann Rose Parry of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of burglary and robbery after denial of a suppression motion challenging the admissibility of statements made to investigating and arresting police officers allegedly in violation of his rights under Miranda v Arizona (384 US 436) and Payton v New York (445 US 573).

During postarrest Miranda advisements, defendant stated to the police with respect to his right to consult with an attorney, "I have an attorney.” All conversations ceased. The officers, after further investigation, later asked defendant who his attorney was. He responded, "I don’t have an attorney.” Defendant acknowledged he had made a telephone call to an attorney prior to this arrest that day, but stated he was just trying to find out whether the police could secure his military record fingerprints and that he did not discuss the criminal investigation with the attorney. Defendant was reinformed of his Miranda rights and then made incriminating statements.

The suppression court found that defendant did not unequivocally invoke his right to counsel and the Appellate Division affirmed. The resolutions of the lower courts in that respect rest on undisturbed findings supported in the record and are thus beyond the scope of this court’s review.

The arrest having been made outside the defendant’s home, no Payton issue is presented in this case. We have considered the other arguments and they are either unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.

Order affirmed in a memorandum.


text:
    The People of the State of New York, Appellant, v Jean Bernier, Respondent.
    Argued March 22, 1989;
    decided April 27, 1989

      APPEARANCES OF COUNSEL

      Elizabeth Holtzman, District Attorney (Kimberly Muradaz and Barbara D. Underwood of counsel), for appellant.

      Leonard Noisette and Philip L. Weinstein for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury verdict of two counts of robbery and of possession of a weapon arising out of the holdup of the same Brooklyn gas station on three separate occasions.

Defense counsel learned during trial jury selection that a person with respect to whom no CPL 710.30 (1) pretrial notice had been given would be called as the prosecution’s main identifying witness. He then made a motion to preclude the testimony based on lack of notice and surprise. Inasmuch as the People failed to present or establish any excuse for not giving the required notice, the court should have granted the preclusion motion and suppressed the identification testimony (People v O’Doherty, 70 NY2d 479). Instead, it denied the motion on condition that the prosecution make available the officers who investigated the robberies. After speaking with an officer, defense counsel stated on the record that he had "no idea based on the information I have whether [Gedeon the unnoticed witness] made any kind of out-of-court identification and if he did maybe we need a Wade [United States v Wade, 388 US 218] Hearing with respect to that. I have no idea.” (Emphasis added.) When the prosecutor then acknowledged that an out-of-court identification had been made, the court ordered a Wade hearing after which the identification testimony was suppressed. The People next moved and prevailed over defense counsel’s objection to reopen the Wade hearing for the establishment of an independent source, which ultimately permitted the witness to make an in-court identification despite the suppression of his out-of-court identification.

The Appellate Division correctly reversed the conviction and suppressed the in-court identification as well because the trial court had no basis for denying the initial defense motion to preclude for failure of timely statutory notice (CPL 710.30; People v O’Doherty, 70 NY2d 479, supra). The People’s claim that defendant nevertheless waived the preclusion protection pursuant to the exception of CPL 710.30 (3) by making a suppression motion or participating in a suppression hearing is unavailing. The waiver exception cannot become operative in a case such as this when the defendant clearly moved initially to preclude and lost. In any event, he made no suppression motion qualifying under CPL 710.30 (3) (see, People v Amparo, 73 NY2d 728, 729; People v McMullin, 70 NY2d 855).

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur; Judge Kaye taking no part.

Order affirmed in a memorandum.


text:
    In the Matter of Grand Jury Subpoena Duces Tecum Served upon Morano’s of Fifth Avenue, Inc., et al., Respondents. Robert Morgenthau, as New York County District Attorney, Appellant.
    Submitted January 3, 1989;
    decided April 27, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order of November 10, 1988 as reversed the Supreme Court adjudication of Morano’s of Fifth Avenue, Inc. in criminal contempt for failure to comply with the order finally determining a proceeding to which it was a party, 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 (see, Cohen and Karger, Powers of the New York Court of Appeals § 43 [d]; § 45). Motion for leave to appeal otherwise denied.


text:
    In the Matter of Ralph Natale, Appellant, v Richard J. Koehler, as Commissioner of the Department of Correction of the City of New York, et al., Respondents.
    Submitted February 6, 1989;
    decided April 27, 1989
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by section 500.11 (d) (1) (iii) of the Rules of Practice of the Court of Appeals (22 NYCRR 500.11 [d] [1] [iii]).


text:
    In the Matter of Donald R. Scanlon, Appellant, v State Insurance Fund, Respondent.
    Submitted February 6, 1989;
    decided April 27, 1989
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order affirming the August 14, 1987 order of Supreme Court, Madison County, 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:
    Jerry M. Schwartz, Respondent, v Murray B. Felton et al., as Executors of Sigmund Sommer, Deceased, Appellants. (Action No. 1.) Jerry M. Schwartz, Respondent, v Sutton & Towns, Inc., et al., Respondents, and Murray B. Felton et al., as Executors of Sigmund Sommer, Deceased, Appellants. (Action No. 2.)
    Submitted January 23, 1989;
    decided April 27, 1989
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of December 22, 1988, dismissed upon the ground that 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. Cross motions for leave to appeal denied.


author: Simons, J.

text:
    The People of the State of New York, Respondent, v Alan R. Seaberg, Appellant. The People of the State of New York, Respondent, v Darrell Smith, Appellant.
    Argued May 4, 1989;
    decided June 15, 1989

      POINTS OF COUNSEL

      Scott M. Karson for appellant in the first above-entitled action.
    I. The purported waiver of the right to appeal is involuntary, violative of public policy and unenforceable. (People v Pollenz, 67 NY2d 264; McKane v Durston, 153 US 684; Evitts v Lucey, 469 US 387; Griffin v Illinois, 351 US 12; Johnson v Zerbst, 304 US 458; People v Bourne, 139 AD2d 210; Barker v Wingo, 407 US 514; Hadden v Consolidated Edison Co., 45 NY2d 466; Brady v United States, 397 US 742; Miranda v Arizona, 384 US 436.) II. The calibration card on the breathalyzer is inadmissible and its introduction over timely defense objection requires reversal and dismissal of the driving while intoxicated conviction. (People v Freeland, 68 NY2d 699; People v Mertz, 68 NY2d 136; People v Gower, 42 NY2d 117; People v Kinne, 71 NY2d 879; People v Donaldson, 36 AD2d 37.) III. The trial court erred in refusing defense counsel’s request for a missing witness instruction with respect to the prosecution’s failure to call Police Officer McCarthy. (People v Gonzalez, 68 NY2d 424; People v Brown, 34 NY2d 658.) IV. The trial court erred in refusing to submit driving while impaired (Vehicle and Traffic Law § 1192 [1]) as a lesser included offense of driving while intoxicated (Vehicle and Traffic Law § 1192 [2]) under count 1 of the indictment. (People v Glover, 57 NY2d 61; People v Gayle, 131 AD2d 365.) V. Other issues require reversal of the driving while intoxicated conviction. (People v Mertz, 68 NY2d 136; People v Freeland, 68 NY2d 699; People v Crimmins, 36 NY2d 230; Griffin v California, 380 US 609; Malloy v Hogan, 378 US 1; People v Mirenda, 23 NY2d 439; People v Bennett, 65 AD2d 801; People v Whitehurst, 87 AD2d 896; People v Lee, 79 AD2d 641; People

      v Nunez, 74 AD2d 805.) VI. The cumulative effect of the errors requires a new trial.

      Patrick Henry, District Attorney (Glenn Green of counsel), for respondent in the first above-entitled action.
    I. Appellant’s waiver of his right to appeal was knowing, voluntary and intelligent and, therefore, should be enforced as a matter of law and policy. (People v Esajerre, 35 NY2d 463; People v Williams, 36 NY2d 829; People v Thompson, 60 NY2d 513; People v Coles, 62 NY2d 908; People v Stephens, 52 NY 306; People v Lester, 137 AD2d 871, 71 NY2d 898; People v Harvey, 124 AD2d 943, 69 NY2d 746; People v Moore, 123 AD2d 363, 68 NY2d 1002; People v Thomas, 47 NY2d 37; People v Montgomery, 24 NY2d 130.) II. Admission of the calibration card does not require dismissal of count 1. (People v Kinne, 71 NY2d 879; People v Mertz, 68 NY2d 136; People v Kennedy, 68 NY2d 569; People v Ford, 66 NY2d 428; People v Farrell, 58 NY2d 637; People v Nieves, 67 NY2d 125; People v Barr, 75 AD2d 14; People v Richardson, 117 AD2d 825, 67 NY2d 1056; People v Hall, 82 AD2d 838; People v Mitchell, 72 AD2d 920.) III. No missing witness charge was required. (People v Almodovar, 62 NY2d 126; People v Oliver, 108 AD2d 879; People v Baldo, 107 AD2d 751; People v Brown, 34 NY2d 658; People v Crimmins, 36 NY2d 230.)

      Andrea Hirsch and Philip L. Weinstein for appellant in the second above-entitled action.
    I. Appellant’s waiver of his right to appeal must be deemed void because the prosecutor’s conditioning defendant’s guilty plea upon the waiver of his right to appeal, thus preventing review of both his plea and sentence, is contrary to public policy and legislative mandate, the constitutional guarantee of Appellate Division review of all final judgments, and this court’s prior holdings aimed at insuring defendants unhampered access to appellate review of negotiated sentences. (People v Thompson, 60 NY2d 513; People v Pollenz, 67 NY2d 264; People v Pride, 3 NY2d 545; People v Montgomery, 24 NY2d 130; People v Lynn, 28 NY2d 196; People v Rivera, 39 NY2d 519; McKane v Durston, 153 US 684; Evitts v Lucey, 469 US 387.) II. Appellant’s waiver of his right to appeal was ineffectual because, at the time he pleaded, after the amendments to CPL 450.10 and 450.15 became effective and before People v Pollenz was decided, he had no appeal of right to waive. (People v Pollenz, 67 NY2d 264; Johnson v Zerbst, 304 US 458; People v Thomas, 53 NY2d 338; People v Harper, 137 Misc 2d 357; People v Terry, 114 AD2d 657; People v May, 111 AD2d 840; Barker v Wingo, 407 US 514.)

      Elizabeth Holtzman, District Attorney (Andrew J. Frisch and Barbara D. Underwood of counsel), for respondent in the second above-entitled action.
    Defendant did not object in any way to his waiver of appeal at or before sentencing; thus, his challenge to that waiver does not present a preserved question of law for this court’s review. In any event, the law of New York allows defendant to waive appellate review of a negotiated sentence as a condition of a plea agreement. (People v Pollenz, 67 NY2d 264; People v Thompson, 60 NY2d 513; People v Francabandera, 33 NY2d 429; People v Blakley, 34 NY2d 311; People v Williams, 36 NY2d 829, 423 US 873; People v Lopez, 71 NY2d 662; People v Pellegrino, 60 NY2d 636; People v Ahmed, 66 NY2d 307; People v Patterson, 39 NY2d 288, 432 US 197; People v Ventura, 139 AD2d 196.)

      Jonathan E. Gradess and Michael J. Sexton for New York State Defenders Association, amicus curiae in the second above-entitled action.
    Waiver of the right to appeal is void as against public policy. (People v Pollenz, 67 NY2d 264; People v Zuckerman, 5 NY2d 400; People v Speiser, 277 NY 342; People v Williams, 6 AD2d 900; People v Davies, 275 App Div 726; People v Spagnolia, 260 App Div 551; People v Montgomery, 24 NY2d 130; People v Pride, 3 NY2d 545; People v Hairston, 10 NY2d 92; People v Coleman, 30 NY2d 582.)
   OPINION OF THE COURT

Simons, J.

These appeals question whether criminal defendants may waive their rights to appeal as part of a negotiated sentence or plea bargain. In People v Smith, defendant waived his right to appeal as part of a bargained plea entered before trial. In People v Seaberg, defendant waived his right to appeal a judgment entered on a jury verdict in exchange for a favorable sentence. Defendants maintain that such waivers are invalid per se. Defendant Seaberg also contends that even if such waivers are valid, his should not be enforced because it was involuntary. We hold that the right to appeal may be waived as a condition of a sentence or plea bargain and that defendants did so in the cases before us. Accordingly, we affirm the orders of the Appellate Division.

People v Smith

Defendant Smith was charged with several crimes in two separate indictments. The first indictment charged him with the crimes of assault in the second degree, reckless endangerment in the first degree and criminal possession of a weapon in the second and third degrees. The second charged him with first degree robbery and grand larceny in the third degree. Before trial, defendant agreed to plead guilty to robbery in the first degree and attempted criminal possession of a weapon in the second degree in satisfaction of all charges and in exchange for consecutive sentences of 2Vi to IV2 years for the robbery charge and 1 to 3 years for the weapons charge. As part of the bargain, he agreed to waive his right to appeal and judgment was entered as agreed upon. Notwithstanding the waiver, defendant appealed and asserted that his sentence was excessive. The Appellate Division dismissed the appeal.

People v Seaberg

Defendant Seaberg was indicted for two counts of operating a motor vehicle while under the influence of alcohol, as felonies (see, Vehicle and Traffic Law [former] § 1192 [5] [now § 1193 (1) (c)]). The first count of the indictment charged him with operation of a vehicle while he had a blood alcohol content (BAG) of .1 or more (Vehicle and Traffic Law § 1192 [2]) and the second with operating a motor vehicle while in an intoxicated condition (Vehicle and Traffic Law § 1192 [3]). The evidence at trial established that defendant’s BAG shortly after arrest was .19%. The jury found defendant guilty of the felony under count 1 of the indictment, and of the lesser included offense of driving while impaired under count 2. At time of sentence the prosecution, noting defendant’s four prior alcohol-related driving convictions, recommended that he be given an indeterminate sentence of 1 to 3 years’ incarceration. At defendant’s request, however, the proceedings were adjourned to determine his eligibility for a rehabilitation program. After defendant was found eligible, the prosecutor, defense counsel and court agreed upon an arrangement whereby the sentence imposed would be a $500 fine and a conditional discharge. The sentence was conditioned upon defendant successfully completing the rehabilitation program. If he failed to do so, he was to receive a sentence of one-year imprisonment. In exchange for this sentence, defendant agreed to waive his right to appeal. Notwithstanding the waiver, defendant subsequently appealed and asserted several trial errors which he claimed warranted reversal. The Appellate Division dismissed the appeal.

Plea bargaining is now established as a vital part of our criminal justice system. Indeed, as we recognized years ago, the volume of criminal prosecutions is so great that if full trials were required in each case New York’s law enforcement system would collapse (see, People v Selikoff, 35 NY2d 227, 233, cert denied 419 US 1122). Certainly nothing has happened since then to cause us to change that observation. The judicial acceptance of plea bargaining, however, rests upon broader policy considerations. In addition to permitting a substantial conservation of prosecutorial and judicial resources, it provides a means where, by mutual concessions, the parties may obtain a prompt resolution of criminal proceedings with all the benefits that enure from final disposition. The plea bargain, or negotiated sentence, enables the parties to avoid the delay and uncertainties of trial and appeal and permits swift and certain punishment of law violators with sentences tailored to the circumstances of the case at hand (see generally, Santobello v New York, 404 US 257, 261; People v Selikoff, 35 NY2d 227, 233-235, supra). The pleading process necessarily includes the surrender of many guaranteed rights but when there is no constitutional or statutory mandate and no public policy prohibiting it, an accused may waive any right which he or she enjoys (Schick v United States, 195 US 65, 72).

In New York the right to an initial appeal is provided by statute (see, CPL 450.10; see, People v De Jesus, 54 NY2d 447, 449; Matter of State of New York v King, 36 NY2d 59, 63; cf., People v Pollenz, 67 NY2d 264). While important, it is no more fundamental than the right to a jury trial or the privilege against self-incrimination, and courts uniformly recognize waivers of those rights. Moreover, as a practical matter, defendants frequently lose their right to appeal, by forfeit, when they fail to exercise it or abscond. The question is whether something inheres in a defendant’s right to appeal from a judgment of conviction which makes an express waiver of it an unacceptable condition of a sentence or plea bargain.

We have not directly passed on the issue, but we have enforced a waiver of the right to appeal a suppression ruling (People v Williams, 36 NY2d 829, cert denied 423 US 873; and see, People v Esajerre, 35 NY2d 463; People v Irizarry, 32 AD2d 967, affd 27 NY2d 856; People v Stephens, 52 NY 306), and we have indicated that the right to appeal a sentence may be waived (see, People v Thompson, 60 NY2d 513, 520). Those views are consistent with the statements contained in our forfeiture decisions that bargains fairly made should signal an end to litigation, not a beginning (see, e.g., People v Prescott, 66 NY2d 216, 220, cert denied 475 US 1150; People v Taylor, 65 NY2d 1, 5; People v Lynn, 28 NY2d 196, 202). They are also consistent with the decisions in a majority of jurisdictions which sustain such waivers. These authorities suggest that there is no affirmative public policy to be served in fostering appeals or prohibiting their waiver. To the contrary, the final and prompt conclusion of litigation is an important goal of public policy in criminal as well as civil litigation, provided always that the settlement is fair, free from oppressiveness, and sensitive to the interests of both the accused and the People.

Defendants, because of the circumstances of their cases, have asserted somewhat different reasons for contending that waivers are invalid per se. Both recognize that a defendant, by pleading guilty, forfeits the right to challenge the underlying conviction and loses many privileges and protections granted defendants by courts (see, e.g., People v Harris, 61 NY2d 9). Defendant Smith contends, however, that negotiated sentences should be subject to appellate review to protect both the interests of defendants and the interests of society. He asserts that defendants must be protected from misconduct and coercion in the pleading process and ensured fairness in sentencing. These arguments overlook the role of the trial court and its obligation to insure the reasonableness of the bargain struck and of the sentence imposed (see, People v Farrar, 52 NY2d 302, 306; People v McConnell, 49 NY2d 340, 346; People v Selikoff, 35 NY2d 227, 238-240, supra) and the availability of collateral proceedings to review infirmities in the plea bargain which may not appear on the record. Nor are defendants victims of "situational coercion”, compelled to execute waivers as a condition of the plea (see, People v Williams, supra, at 830). Nothing requires a defendant to seek a plea bargain and there is nothing coercive in leaving with the defendant the option to accept or reject a bargain if one is offered.

Defendant Smith contends further that these are matters in which the interests of society transcend the individual concerns of the defendant and, because they do, the waivers should not be enforced. He cites, as illustrative, speedy trial claims, which may not be waived. Society has a recognized interest in speedy trials because trial delay may result in the loss of evidence or an accused’s inability to respond to criminal charges, thereby compelling innocent persons to plead guilty out of necessity. Because of this societal interest, a defendant may not waive such claims (see, People v Blakley, 34 NY2d 311, 314-315; see also, Barker v Wingo, 407 US 514, 519). Similarly, a defendant may not waive the right to challenge the legality of a sentence (see, People v Francabandera, 33 NY2d 429, 434, n 2) or his competency to stand trial (People v Armlin, 37 NY2d 167, 172). These rights are recognized as a matter of fairness to the accused but they also embrace the reality of fairness in the process itself and, therefore, a defendant may not waive them. The right to appeal a validly imposed sentence does not similarly implicate society’s interest in the integrity of criminal process, however, and to the extent that it does, that interest is protected by the procedural and substantive requirements imposed on the Trial Judge before the defendant may be sentenced (see, People v Farrar, supra, at 306; People v McConnell, supra, at 346; People v Selikoff, supra, at 238-240).

Nor do we find merit to defendant’s contention that waivers should not be valid because in plea or sentence bargains the only matter before the appellate court is the excessiveness of sentence and review helps avoid disparity in sentencing while imposing little burden on the system. Whatever benefits review may provide, they are not sufficiently compelling to warrant permitting a defendant to repudiate an agreement of an individualized sentence knowingly and voluntarily accepted.

Finally, such waivers do not interfere with the interest of justice jurisdiction of the Appellate Division (see, People v Bourne, 139 AD2d 210, lv denied 72 NY2d 955). The analogy is to People v Pollenz (supra) which involved a legislative attempt to limit the Appellate Division’s jurisdiction. A defendant’s decision to waive appeal does not interfere with the court’s jurisdiction, however; it is simply a decision not to invoke the court’s review power. By pleading guilty a defendant forecloses the appellate court from reviewing the merits of the plea bargain in the interest of justice and there is nothing inherently wrong in a defendant similarly electing to foreclose review of a negotiated sentence.

Defendant Seaberg advances other grounds for reversal. He contends that his plea after trial is significantly different because defendant Smith, and others like him who have accepted a plea bargain, have admitted guilt whereas he has professed his innocence throughout the trial. Thus, he claims that the public policy reasons for upholding the waiver in plea bargains generally do not apply to him with equal force. We see no basis for distinguishing the two situations (accord, Cubbage v State, 304 Md 237, 498 A2d 632). The courts commonly enforce the waiver of rights, even though the defendant has not admitted guilt (see, e.g., Schick v United States, 195 US 65, 72, supra [trial by jury]; Miranda v Arizona, 384 US 436, 444 [privilege against self-incrimination]; People v McIntyre, 36 NY2d 10, 17 [right to counsel]), and defendant’s appreciation of the value of the right to appeal is far more refined after guilt or innocence has been decided by trial than before.

We conclude that the public interest concerns underlying plea bargains generally are served by enforcing waivers of the right to appeal. Indeed, such waivers advance that interest, for the State’s legitimate interest in finality extends to the sentence itself and to holding defendants to bargains they have made. While a defendant always retains the right to challenge the legality of the sentence or the voluntariness of the plea (see, People v Francabandera, 33 NY2d 434, n 2, supra), the negotiating process serves little purpose if the terms of "a carefully orchestrated bargain” can subsequently be challenged (see, People v Prescott, 66 NY2d 216, 220, supra). Moreover, the People need not particularize "some legitimate State interest” to justify conditioning a plea bargain on defendant’s waiver of the right to appeal (see, People v Ventura, 139 AD2d 196, 203). The validity of the waiver is supported by the interests supporting plea bargains generally. Accordingly, we find no public policy precluding defendants from waiving their rights to appeal as a condition of the plea and sentence bargains and the Appellate Division correctly dismissed defendant Smith’s appeal.

Turning to defendant Seaberg’s appeal, tie asserts that even if waivers are generally valid, the bargain in his case was not legally enforceable. There is support in the record for the Appellate Division’s contrary finding, however, and we therefore affirm its order.

A waiver, to be enforceable, must not only be voluntary but also knowing and intelligent. The trial court determines that it meets those requirements by considering all the relevant facts and circumstances surrounding the waiver, including the nature and terms of the agreement and the age, experience and background of the accused (see, Johnson v Zerbst, 304 US 458, 464; People v Selikoff, 35 NY2d 227, 235, supra; see also, CPL 220.10 [3], [4]). Moreover, in overseeing the process, the court must also consider the reasonableness and the appropriateness of the bargain (see, Santobello v New York, 404 US 257, 262, supra; Brady v United States, 397 US 742, 748-749; People v Farrar, 52 NY2d 302, 306, supra) and its effect on "the integrity of the criminal justice system” before accepting it (People v McConnell, 49 NY2d 340, 346, supra). Manifestly, an unfair bargain or one coerced to conceal error or misconduct does not meet these standards and is subject to vacatur on direct appeal or by appropriate posttrial proceedings. As with plea and sentence bargains generally, prudence suggests that the terms and conditions of the agreement and the defendant’s understanding of them, be placed upon the record to facilitate appellate review (see, People v Selikoff, supra, at 244).

In this case, defendant Seaberg did not personally enter into the court’s colloquy with his lawyer when the details of the bargain were stated. The court should have required him to state his understanding and acceptance of them. Nevertheless, there is ample evidence in the record supporting the Appellate Division’s conclusion that defendant agreed to the bargain and did so voluntarily with a full appreciation of the consequences. Defendant was present at the bench during the court’s colloquy with the prosecutor and defense counsel and heard the entire discussion. Moreover, defendant, through his lawyer, initiated the investigation to determine his eligibility for the treatment program and the matter was adjourned for a period of seven months between the verdict and sentencing for that purpose. The prosecutor, understandably in view of defendant’s prior record, originally opposed a sentence of conditional discharge but reluctantly agreed to it with a fine, conditioned upon defendant completing the treatment program or, upon his failure to do so, being incarcerated for one year. Because of the extended delay, defendant had time to consider this sentence, discuss it with his lawyer and reflect upon the alternatives. Moreover, the terms were highly favorable to him; he received the benefit of a rehabilitative sentence which not only offered him treatment rather than a jail sentence but was substantially less than the offer originally proposed by the prosecution. In addition, the court agreed to grant a certificate of relief from disabilities which conferred several benefits on defendant including, most importantly, the ability to retain contracts awarded his business by the Federal Government. After the bargain was agreed upon, defense counsel informed the court that his client "wholeheartedly” embraced it and before sentence was imposed defendant expressed his gratitude to the court for the favorable treatment, his "sincere” desire to abide by the rules set forth in the proposed sentence and his intention to face up to his drinking problem. There can be little doubt that the bargain was reasonable, that defendant knew and understood the terms of it and that he willingly accepted them.

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

Chief Judge Wachtler and Judges Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

In each case: Order affirmed.

        State v Perkins, 108 Wash 2d 212, 737 P2d 250; Cubbage v State, 304 Md 237, 246-248, 498 A2d 632; Staton v Warden, 175 Conn 328, 334-335, 398 A2d 1176; Weatherford v Commonwealth, 703 SW2d 882 [Ky]; State v McKinney, 406 So 2d 160 [La]; Judy v State, 275 Ind 145, 416 NE2d 95; Gwin v State, 456 So 2d 845, 848-849 [Ala Crim App 1984]; People v Fearing, 110 Ill App 3d 643, 644-645, 442 NE2d 939; People v Charles, 171 Cal App 3d 552, 563, 217 Cal Rptr 402; State ex rel. Adams v Norvell, 1 Tenn Crim App 648, 448 SW2d 454; but see, State v Ethington, 121 Ariz 572, 573-574, 592 P2d 768; People v Butler, 43 Mich App 270, 275, 204 NW2d 325; see also, State v Gibson, 68 NJ 499, 348 A2d 769; see generally, Annotation, Plea Agreement —Waiver of Right to Appeal, 89 ALR3d 864.