text:
    In the Matter of Wegmans Enterprises, Inc., et al., Appellants, v Eugene Lansing, as Chairman of the Town of DeWitt Zoning Board of Appeals, et al., Respondents.
    Argued September 8, 1988;
    decided October 20, 1988

      APPEARANCES OF COUNSEL

      David M. Garber for appellants.

      Joseph W. Jerry and Bruce B. Roswig for respondents.
   OPINION OF THE COURT

Memorandum.

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

Zones which qualify for special exception permits represent a threshold legislative acceptance that the specified use accords with the general municipal zoning plan (Matter of Lee Realty Co. v Village of Spring Val., 61 NY2d 892, 893; Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028, 1029). Unlike the unnecessary hardship standard governing variances, a special exception permit is available upon a showing of compliance with legislatively imposed conditions pertaining to the intended use (Matter of North Shore Steak House v Board of Appeals, 30 NY2d 238, 243-244). Failure to meet any one of the conditions set forth in the ordinance is, however, a sufficient basis upon which the zoning authority may deny the permit application (Matter of Tandem Holding Corp. v Board of Zoning Appeals, 43 NY2d 801, 802).

The uses permitted in the Town of DeWitt’s Special Business Transitional District include "[r]etail stores, professional offices, business offices, personal service establishments, mortuaries and undertaking establishments, provided that no business is conducted out-of-doors” (DeWitt Town Code § 53-26 [A] [4]; § 53-23 [D] [1]). The Board found, with substantial evidence in the record, that petitioners’ otherwise qualifying uses nevertheless failed to comply with at least two legislated preconditions, i.e., the impact of unspecified intended uses of a planned 20,000 square foot structure as being reasonably compatible in all respects with the neighborhood and the adverse affects of aggravated traffic conditions. The courts may not, therefore, disturb the Board’s denial of the special permit in this case.

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

Order affirmed, with costs, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Lee O. Montalbo, Appellant, v Marie L. Montalbo et al., Respondents, et al., Defendant.
    Submitted August 1, 1988;
    decided October 20, 1988
   Motion insofar as it seeks leave to appeal from the order of the Appellate Division denying the motion for 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:
    Novak & Co., Inc., Appellant, v New York City Housing Authority, Respondent. (And a Third-Party Action.)
    Decided October 20, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that it does not lie as of right to review the prior nonfinal Appellate Division order of modification, absent a dissent by at least two Justices on a question of law or the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    In the Matter of William H. Rice, Appellant, v Schuyler County Civil Service Commission et al., Respondents.
    Submitted July 25, 1988;
    decided October 20, 1988
   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 it is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Walter Wiszniewski, as Administrator of the Estate of Mary Wiszniewski, Deceased, Respondent, v New York State Department of Social Services, Defendant, and Onondaga County Department of Social Services, Appellant.
    Submitted July 25, 1988;
    decided October 20, 1988
   Motion for leave to appeal dismissed upon the ground that the order sought to be appeal from does not finally determine the proceeding within the meaning of the Constitution and it is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    The People of the State of New York, Respondent, v Stuart Kramer, Appellant.
    Argued September 6, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Peter Lushing and Barry A. Schwartz for appellant.

      Elizabeth Holtzman, District Attorney (Brian D. Foley and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

There is no merit to defendant’s contention in this case that the evidence was insufficient to sustain the conviction on the insurance fraud counts. In view of the fact that the fraud involved satisfying the no-fault threshold, without which there would have been no legal claims, the entire sum of the settlements was the product of the fraud for purposes of this statute. Thus in this case there was sufficient evidence to warrant denial of the motion to dismiss.

We also reject the defendant’s claim that the court violated Judiciary Law § 5 by responding to the jury’s request on Sunday while it was deliberating. The exceptions contained in this section with respect to a deliberating jury logically include authority to read back testimony as requested by the jury because this is an integral part of jury deliberations (see, CPL 310.30). We have considered defendant’s other contentions and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    National Bank and Trust Co. of North America, Ltd., Appellant, v Banco De Vizcaya, S. A., Respondent.
    Argued September 8, 1988;
    decided October 13, 1988

      APPEARANCES OF COUNSEL

      Michael J. Hutter, Jerrold T. Doros and David H. Fromm for appellant.

      Eliot Lauer and Benard V. Preziosi, Jr., for respondent.
   OPINION OF THE COURT

Memorandum.

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

The doctrine of forum non conveniens permits a court to dismiss an action when, although it may have jurisdiction over a claim, the court determines that "in the interest of substantial justice the action should be heard in another forum” (CPLR 327). The doctrine is flexible, requiring the balancing of many factors in light of the facts and circumstances of the particular case (Banco Ambrosiano v Artoc Bank & Trust, 62 NY2d 65, 73; Silver v Great Am. Ins. Co., 29 NY2d 356, 361). This task is committed to the sound discretion of the courts below and, unless they have excluded consideration of relevant circumstances, there has been no abuse of discretion reviewable by this court (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 479; Varkonyi v Varig, 22 NY2d 333, 337-338).

On this record, the failure of Special Term to explicitly address the issue in its written decision does not establish that the courts below refused to consider the factors relating to the availability of an alternative forum. Nor does it appear that the lower courts neglected any of the other considerations proffered by plaintiff or otherwise committed legal error.

Accordingly, there is no basis for us to disturb their decision to dismiss the action.

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Felix Torres, Appellant.
    Argued September 14, 1988;
    decided October 18, 1988

      APPEARANCES OF COUNSEL

      Peter J. Fabricant for appellant.

      Elizabeth Holtzman, District Attorney (Miriam R. Best and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was tried in Kings County on various narcotics-related charges. After the case had been submitted to the jury, the Trial Justice left the courthouse to preside over another matter in Queens County. During his absence, the jury sent out a note indicating that it had reached an impasse and was unable to reach a verdict. Having been informed of the problem by telephone, the Trial Justice directed a court officer to tell the jury that it should "continue to deliberate” and to advise defense counsel of the jury’s note. Neither the attorneys nor defendant was present when the court officer spoke to the jury. The court officer’s remarks were not recorded.

Reversal of this conviction is required because the Trial Justice improperly delegated a judicial duty to a nonjudicial staff member at a critical stage of the proceedings and thus permitted trial proceedings to be conducted in his absence (People v Ahmed, 66 NY2d 307). Contrary to the People’s contention, an instruction to continue deliberations when the jury has indicated its inability to reach a verdict is not a mere "ministerial” matter.

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

Order reversed, etc.


author: Titone, J.

text:
    In the Matter of Waterside Associates et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents.
    Argued September 13, 1988;
    decided October 20, 1988

      APPEARANCES OF COUNSEL

      Elliot G. Sagor and Oscar G. Chase for appellants.

      Robert Abrams, Attorney-General (Ezra I. Bialik and O. Peter Sherwood of counsel), for respondents.

      Gary H. Gutchess, Gary Komarow and William H. Ethier for New York State Builders Association, Inc., and another, amici curiae.

   OPINION OF THE COURT

Memorandum.

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

In an article 78 proceeding in the nature of mandamus to compel, the Statute of Limitations commences running when, after a demand, a body or officer " 'refuse[s] * * * to act or to perform a duty enjoined by law’ ” (Matter of De Milio v Borghard, 55 NY2d 216, 220 [quoting Austin v Board of Higher Educ., 5 NY2d 430, 442]). In the present proceeding seeking mandamus to compel, petitioners’ claim is time barred because the proceeding was not commenced within four months from the time of respondent Department of Environmental Conservation’s (DEC) refusal to honor an alleged "non-wetlands letter” pertaining to petitioners’ land.

Here the essence of petitioners’ claim is that DEC unlawfully refused to process a State Pollution Discharge Elimination System (SPDES) permit application pending future mapping of wetlands, in derogation of a previously issued nonwetlands letter. The petition, which seeks to compel DEC to henceforth generally honor the alleged nonwetlands letter, and to refrain from further designation of wetlands on the disputed property, has as its sole basis the assertion that DEC’S refusal to process the permit application constituted a rejection of the letter.

Moreover, it is important to note that, immediately preceding DEC’S issuance of the document stating its refusal to process the SPDES permit application pending further mapping, DEC officials met with petitioners’ representatives and indicated that further wetland designations on the property were possible. Thus any statement of its intentions by DEC on the face of the document, appearing ambiguous to an outsider, could not appear unclear to one with knowledge of the recent discussions between DEC and petitioners.

In light of the allegations in the petition, and events leading up to the refusal to process the SPDES permit, we therefore conclude that under the particular circumstances of this case the refusal to process the permit pending future mapping of wetlands was an unequivocal rejection of the nonwetlands letter by DEC, and thus commenced the running of the limitations period to challenge this rejection. The present proceeding, however, was not initiated within four months of the date of the refusal to issue the permit, and thus is barred by the Statute of Limitations.

Titone, J.

(dissenting). There are no "particular circumstances” in this case that warrant unusual or specialized treatment (see, majority mem, at 1011). This case, like any other, simply presents a set of individualized facts to which well-established methods of legal analysis must be applied. Since I cannot agree with the manner in which the majority has applied the undisputed legal principles to the facts in this case, I respectfully offer my dissenting views.

The time for commencing a mandamus proceeding against a public officer or agency begins to run when the officer or. agency refuses a specific demand to perform a duty enjoined by law (Matter of De Milio v Borghard, 55 NY2d 216, 220; Austin v Board of Higher Educ., 5 NY2d 430, 442). The refusal must be unequivocal, for anything less would impose an unfair burden on potential litigants (see, Matter of Castaways Motel v Schuyler, 24 NY2d 120, 126; Matter of Fischer v Roche, 81 AD2d 541, affd on opn below 54 NY2d 962; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 7804.02, at 78-110; see also, City of New York v State of New York, 40 NY2d 659, 670 [statute requires "clear and formal statement”]). Further, a contrary rule would burden the courts by encouraging potential claimants to sue at the first hint of a dispute, thereby breeding premature and, in many instances, unnecessary litigation.

Indeed, it was for these reasons that the drafters of CPLR 217, which governs the time within which an article 78 proceeding must be brought, rejected a provision that would have fixed accrual at the moment a demand was "expressly or impliedly” refused. As the drafters concluded, a " 'petitioner should not have to bear the risk of guessing correctly as to when a court would find an implied refusal had occurred’ ” (8 Weinstein-Korn-Miller, op. cit, at 78-110 & n 25, quoting 1961 Senate Finance Comm Rep, at 64; 5 NY Adv Comm Rep, at A-153 [advance draft 1961]; see, Matter of Castaways Motel v Schuyler, supra, at 126-127). Ironically, that is precisely the result that the majority’s analysis in this case suggests.

The purpose of petitioners’ proceeding was to compel the Department of Environmental Conservation (DEC) to honor the February 2, 1982 "nonwetlands” letter that it issued pursuant to ECL 24-0703 (5). The majority identifies respondent’s form letter declining to process petitioners’ application for a State Pollution Discharge Elimination System (SPDES) permit as the "refusal” necessary to trigger the running of the four-month limitations period for this proceeding. However, the situation was so fraught with ambiguity that this letter simply cannot be deemed an "unequivocal” abrogation of the prior "nonwetlands” letter.

First, the application that led to the issuance of the letter concerned a SPDES permit, not a freshwater wetlands permit. Thus, while it is true that the requested SPDES permit could not have been issued if the parcel in question were a designated wetland (see, ECL 24-0705), petitioners’ application could hardly be considered a clear and direct demand that DEC adhere to its earlier "nonwetlands” letter. At most, the application could be construed to contain an implicit assumption, based on the commitment in the "nonwetlands” letter, that the parcel in question was eligible for development.

Second, the agency’s response to the application was a mere form letter with checked boxes indicating not that petitioners’ application had been rejected, but rather that it was "incomplete” due, at least in part, to "pending mapping of freshwater wetlands at project site.” There was no clear statement that additional, as opposed to previously designated, parcels were to be "mapped” as wetlands. Indeed, the February 2, 1982 "nonwetlands” letter was not even mentioned. This was hardly the clear and explicit refusal to honor the earlier "nonwetlands” letter that CPLR 217 demands.

Finally, the DEC form letter contained an obvious error, in that it indicated a mistaken belief that both a SPDES and a freshwater wetlands permit were being sought. Under similar circumstances, this court has held that an applicant is entitled to treat the agency’s notice as equivocal and seek correction or clarification (Matter of Brayer v Lapple, 44 NY2d 741). The same analysis should apply here. Given the ambiguity of the agency’s notice, petitioners were entitled to seek clarification on the theory that the February 2, 1982 "nonwetlands” letter had simply been overlooked.

Apparently mindful that the DEC notice was not in itself unequivocal, the majority has attempted to bolster its holding by relying on earlier discussions between petitioners’ representatives and DEC officials in which the possibility of additional wetlands designations was discussed. However, like the DEC’s form letter response to petitioners’ SPDES application, these discussions, which apparently also included no mention of the February 2, 1982 "nonwetlands” letter, furnished, at best, no more than a hint that the agency might be preparing specifically to repudiate that letter.

Most disturbing of all is the majority’s reliance on its own estimate of the impact that these discussions might have had on petitioners’ subjective state of mind. Acknowledging that the DEC document might appear on its face to be "ambiguous to an outsider” (majority mem, at 1010), the majority goes on to assume that it must have had a clear and unequivocal meaning to petitioners because of the implications of the prior discussions. I fail to see how an ambiguous form letter, coupled with the ambiguous implications of informal discussion, can add up to a clear and explicit agency refusal sufficient to satisfy CPLR 217. Further, resort to speculation about the subjective understanding of the litigants is precisely the type of uncertainty that the drafters of CPLR 217 were trying to avoid.

Under the majority’s analysis, not only do the parties bear the risk of guessing whether the court will infer a refusal from the objective "surrounding circumstances”; they also bear the risk that the court will itself attempt to guess at what the parties "must have” inferred from all of the circumstances of which they were subjectively aware. In my view, that result is directly contrary to the intentions of CPLR 217’s drafters, as well as the existing case law. Accordingly, I would hold that the DEC notice was too equivocal to constitute a refusal, that the agency’s first clear refusal to comply with the duty imposed by ECL 24-0703 (5) was its answer to petitioners’ petition and, finally, that petitioners’ proceeding was not barred by the Statute of Limitations.

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

Order affirmed, with costs, in a memorandum.

      . ECL 24-0703 (5) provides: "Prior to the promulgation of the final freshwater wetlands map in a particular area and the implementation of a freshwater wetlands protection law or ordinance, no person shall conduct, or cause to be conducted, any activity for which a permit is required * * * unless he has obtained a permit from the commissioner under this section. Any person may inquire of the department as to whether or not a given parcel of land will be designated a freshwater wetland subject to regulation. The department shall give a definite answer in writing within thirty days of such request * * * such an answer in the negative shall be a complete defense to the enforcement of this article as to such parcel of land” (emphasis supplied).

      . The majority also relies on the fact that the failure to process the SPDES application was the sole basis in the petition for petitioners’ complaint that DEC has failed to abide by the letter (majority mem, at 1010). I do not find this fact to be particularly compelling, however, since, in the absence of a more direct refusal by the agency, the agency’s actions in connection with the SPDES application were the only concrete facts that petitioners could cite in support of their demand for relief. Such evidentiary allegations should not be equated with the underlying alleged wrong on which the request for relief was founded — i.e., the agency’s refusal to honor its February 2, 1982 "nonwetlands” letter.


author: Alexander, J. Hancock, Jr., J.

text:
    In the Matter of David E. Graham, Jr., Appellant, v Thomas A. Coughlin, III, as Commissioner of the Department of Correctional Services, Respondent.
    Argued September 9, 1988;
    decided October 20, 1988

      APPEARANCES OF COUNSEL

      Gerald V. Hayes and Peter L. Maroulis for appellant.

      Robert Abrams, Attorney-General (John Q. Driscoll, O. Peter Sherwood and Peter H Schiff of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (135 AD2d 1014), noting that Public Officers Law § 30 (1) (e) was not amended to conform with the 1979 amendment to Judiciary Law § 90 (4) (e), this being a statutory policy choice for the Legislature.

Concur: Chief Judge Wachtler and Judges Simons, Titone and Bellacosa. Judge Alexander concurs in result in a memorandum. Judge Hancock, Jr., concurs in result in an opinion in which Judge Kaye concurs.

Alexander, J.

(concurring). I, too, would affirm the order of the Appellate Division, because in my view the Federal felony of which defendant was convicted would also constitute a felony under New York law. Accordingly, I concur in so much of Judge Hancock’s concurrence as demonstrates that identity.

Hancock, Jr., J.

(concurring). I agree that there should be an affirmance, but only because the Federal felony of which petitioner was convicted would also constitute a felony under New York law. I disagree, for reasons of both statutory construction and policy, with the position taken by the Appellate Division and now adopted by the majority of this court, that the term "felony” as used in Public Officers Law § 30 (1) (e) encompasses any felony in any jurisdiction. In my view, the statute does not mandate automatic termination of a civil servant where his conduct, albeit a felony in another jurisdiction, would amount to only a misdemeanor or be wholly innocent activity under our own law.

Petitioner was charged by a Federal information with one count of mail fraud as an aider and abettor, a felony (18 USC §§ 2, 1341). Following his guilty plea and conviction, petitioner was discharged from State employment as a correction officer pursuant to Public Officers Law § 30 (1) (e) providing for automatic termination upon "conviction of a felony”. Petitioner instituted this article 78 proceeding, challenging his discharge on the ground that the crime for which he was convicted would only constitute a misdemeanor under New York law. Petitioner’s contention is that he did not have any fraudulent intent but, instead, merely "provide[d his friend] with means or opportunity” to commit mail fraud, the equivalent of committing only criminal facilitation in the fourth degree, a class A misdemeanor (Penal Law § 115.00).

As respondent has argued throughout this litigation, however, the Federal crime to which petitioner actually pleaded guilty and was convicted amounts to insurance fraud in the fourth degree, a class E felony (Penal Law § 176.15). An essential element of aiding and abetting mail fraud is a sharing in the principal’s fraudulent intent (Armco Indus. Credit Corp. v SLT Warehouse Co., 782 F2d 475, 485 [5th Cir]; see also, Nye & Nissen v United States, 336 US 613, 619; United States v Kyle, 257 F2d 559 [2d Cir], cert denied sub nom. Gardner v United States, 358 US 927). This is identical to the mental culpability required for insurance fraud ("knowingly and with intent to defraud” [Penal Law § 176.05]) and, by contrast, considerably greater than that entailed in criminal facilitation ("believing it probable that he is rendering aid” [Penal Law § 115.00]). For this reason, I agree that petitioner’s automatic termination under Public Officers Law § 30 (1) (e) was warranted and, accordingly, vote to affirm.

I cannot accept the proposition, adopted by the majority, that automatic termination under the statute should be triggered by the conviction in another jurisdiction of a crime which would not amount to a felony under New York law (see also, Judiciary Law § 90 [4] [e]; and Education Law § 6509 [5] [a]; contrast with Penal Law § 400.00 [1]; and Real Property Law § 440-a). The only previous occasion this court has had to address this issue was in Matter of Keogh v Wagner (15 NY2d 569). There, we affirmed, albeit without opinion, a decision of the Appellate Division construing the term "felony” to be as "conceded by all * * * restricted to crimes which are felonies under the laws of the State of New York” (20 AD2d 380, 383; see also, 1978 Opns Atty Gen 37). This construction was consistent with a long line of precedents in which this court had uniformly given a similar interpretation to other such provisions. It was not until Matter of Chu (42 NY2d 490) that the interpretation adhered to in our prior rulings was subject to any doubt.

In Chu, applying the same provision of the Judiciary Law previously construed in Matter of Donegan (282 NY 285; see, n 3, supra), we upheld the disbarment of an attorney on the ground that he had been convicted of a Federal felony. The majority of our court concluded that there was little reason to distinguish between Federal and New York felonies for the purpose of professional discipline. Significantly, the majority was quick to add that the underlying crime in the case was committed in this State and that "there is a New York State felony of substantially the same elements” (42 NY2d, at 494, supra). Indeed, three members of our court expressly relied on this latter rationale as the sole basis for their concurrence (see, 42 NY2d, at 495, supra [Wachtler, J., concurring]). Subsequently, however, in Matter of Thies (45 NY2d 865), a majority of this court, over the dissent of the three Judges who had concurred in Chu, abandoned the rule in Donegan and held that the conviction of a Federal felony is always a "felony” under the disbarment provision of the Judiciary Law— whether or not there is an analogous crime under New York law.

The Legislature immediately overruled Chu and Thies and restored the Judiciary Law to the construction given it in Donegan (L 1979, ch 674). In an amendment to Judiciary Law § 90 (4), the term "felony” was expressly defined as an offense classified as a felony under New York law or one so classified under the laws of another jurisdiction if it would also constitute a felony in this State (see, para [e] of § 90 [4]).

Ironically, in the present case, the majority of this court, agreeing with the Appellate Division, relies on that corrective legislation to support a contrary reading of the Public Officers Law. Because "the Legislature has not similarly amended the Public Officers Law”, the court below concluded, "there is no reason to read such a limit[ed definition of 'felony’] into Public Officers Law § 30 (1) (e).” (135 AD2d, at 1015.) But, of course, the Legislature had no reason to amend the Public Officers Law. That statute had never been judicially construed — or misconstrued, in the Legislature’s view — in the way the Judiciary Law had been. Indeed, as previously discussed, this court had always, until Chu and Thies, interpreted the unqualified term "felony” in various statutes exactly as the Legislature defined that term in the post-Chu and Thies amendment.

Legislative clarification of a statutory term, for the specific purpose of overruling a recent judicial interpretation, is a forceful indication that, in the Legislature’s view, the court misread its original intent (see, McKinney’s Laws of NY, Book 1, Statutes § 193, at 359; 82 CJS, Statutes, § 384, at 899-900). Additionally, such legislative action, like the amendment to Judiciary Law § 90 (4), cannot logically be deemed any indication that the long-established interpretations of similar statutory provisions, in complete agreement with the recent amendment, are somehow erroneous and ought now to be changed (see, McKinney’s Statutes § 191, at 353; 82 CJS, Statutes, § 384, at 898). Hence, contrary to the position urged by respondent, and now adopted by the majority of this court, basic principles of statutory construction seem, in my view, to compel the conclusion that the unqualified term "felony”, as used in Public Officers Law § 30 (1) (e), should be read consistent with both our long line of precedents and the legislative overruling of Chu and Thies — the sole exceptions to that long line.

There are also strong policy reasons for adhering to that statutory construction. The Legislature has mandated the automatic discharge of convicted officeholders to assure the public that those employed in government service are "individuals of moral integrity in whom they may, without second thought, place their confidence and trust” (Matter of Toro v Malcolm, 44 NY2d 146, 152). Public Officers Law § 30 (1) (e) strikes a balance, however, between the public’s interests and that of its officers: the statute’s drastic remedy is imposed only where the offense committed by a public officer is sufficiently egregious to be classified a "felony”. Hence, it seems to me quite clear that the operation of this remedy adopted by this State’s Legislature, to ensure the integrity of this State’s public officers, should only be triggered by crimes which this State’s Legislature has unambiguously chosen to consider as felonious conduct (see, Matter of Thies, supra, at 867 [Wachtler, Fuchsberg and Cooke, JJ., dissenting]; Matter of Donegan, supra, at 290-291; People ex rel. Atkins v Jennings, 248 NY 46, 52).

While the term "felony” is uniformly employed to denominate those offenses which a given jurisdiction considers serious, there is, of course, no absolute uniformity among jurisdictions as to which offenses they so consider. The same conduct may be classified a felony in one jurisdiction and yet a misdemeanor or entirely innocent in another. As we have previously noted, this classification of crimes simply "represents the view which the given jurisdiction takes of the gravity of the offense” (Matter of Donegan, supra, at 290 [emphasis in original]). Our own Legislature may well view as merely venial, acts which other jurisdictions deem abhorrent. Moreover, New York constitutional or community standards— e.g., our State notions of free expression, religious liberty or privacy — may even render certain conduct entirely lawful which another State would treat as criminal (see, Matter of Chu, supra, at 495 [Wachtler, J., concurring]; Matter of Donegan, supra, at 289-290).

It makes little sense, therefore, to incorporate wholesale into Public Officers Law § 30 (1) (e) every felony of other jurisdictions. In the absence of clear legislative expression to do just that, the employment of a public officer in this State ought not to be subject to automatic termination for a conviction by another jurisdiction of a "felony” which, in the view of our own Legislature, is not so flagrant as to deserve that appellation. The proper construction of the unqualified term "felony” in Public Officers Law § 30 (1) (e) is that which had always been given by this court in its interpretation of analogous provisions (see, Matter of Donegan, supra; People ex rel. Atkins v Jennings, supra).

Clearly, if the majority agreed with my interpretation of Public. Officers Law § 30 (1) (e), no amendment would be necessary. The majority has rejected this view, however, and accepted what I respectfully submit is the erroneous rationale of the Appellate Division. Legislative action is now called for to correct what, under the present interpretation, is an unfair statute.

Order affirmed, etc.

      . At the time of petitioner’s Federal conviction, section 176.15 was denominated insurance fraud in the second degree; it was changed to the fourth degree by a subsequent amendment (see, L 1986, ch 515). It was then, as now, a class E felony.

      . Insurance fraud in the fourth degree (Penal Law § 176.15), a class E felony, includes the additional element that whatever was wrongfully taken have a value "in excess of’ $1,000. In this case, it is undisputed that the sum of money fraudulently obtained from the insurance company exceeded $6,000.

      . In Sims v Sims (75 NY 466) we held that a statute, providing that "[n]o person sentenced upon conviction for a felony, shall be competent to testify” (Rev Stat of NY, part IV, ch 1, tit 7, § 23) pertained only to felonies under New York law and, therefore, that the out-of-State conviction in question did not disqualify the witness (id., at 469-470; see also, National Trust Co. v Gleason, 77 NY 400, 410 [same]). In People v Gutterson (244 NY 243) we held that a predicate "crime”, for the purpose of an enhanced sentencing statute for repeat offenders (former Penal Law § 2189), must be a crime "punishable under the laws of this State”, unless the Legislature unambiguously intended otherwise (244 NY, at 250, supra), and, therefore, that the Federal conviction involved could not be counted. In People ex rel. Atkins v Jennings (248 NY 46) we restricted the condition placed on a commutation of sentence order — i.e., that the prisoner shall not be "convicted of any felony” after release — to offenses which would be a felony in New York. "If the [out-of-State] offense for which relator was convicted would be cognizable by our laws as a misdemeanor or not at all,” we said, "it cannot be included in the standard of crime that the Governor had in mind” (248 NY, at 52, supra). Likewise, in Matter of Cohen (278 NY 584, affg 254 App Div 571) we affirmed a decision of the Appellate Division construing the term "felony”, as used in Surrogate’s Court Act § 94 (presently SCPA 707 [1] [d]) to disqualify an executor, as not applying to a person convicted of a felony in another jurisdiction. Finally, in Matter of Donegan (282 NY 285) we held that "convictfion] of a felony”, as employed in Judiciary Law former § 88 (presently § 90 [4]) providing for the automatic disbarment of an attorney, did not include conviction of a Federal felony which would only constitute a misdemeanor under New York law.

      . There can be no question that the Legislature’s purpose was to undo what it believed to be a misinterpretation of the statute (see, Bill Jacket, Assembly 6252-A, especially Governor’s Approval Mem [in 1979 McKinney’s Session Laws of NY, at 1822], Attorney-General’s Mem for Governor, Sponsor’s Mem of Arthur J. Cooperaran, and Mem of Office of Court Administration).


text:
    Manuel H. Rivera, Respondent, v New York City Health and Hospitals Corporation, Appellant, and New York City Transit Authority, Respondent.
    Argued September 15, 1988;
    decided October 25, 1988
    APPEARANCES OF COUNSEL

      Peter L. Zimroth, Corporation Counsel (Michael S. Adler and Francis F. Caputo of counsel), for appellant.

      Ignatius John Melito for Manuel H. Rivera, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and a new trial granted.

Plaintiff, a psychiatric patient with suicidal tendencies, was severely injured when he jumped in front of a subway train. On this appeal, plaintiff argues that defendant, New York City Health and Hospitals Corporation (HHC), which was treating plaintiff for his mental illness, was negligent in failing to record plaintiffs suicidal tendencies in transfer documents before transferring him to Manhattan Psychiatric Center (MPC). MPC examined plaintiff on the morning of his transfer to that facility and immediately released him, advising him to seek treatment at Bronx Psychiatric Center.

At trial, where plaintiff prevailed as against HHC, the court refused HHC’s request that the jury be instructed that it must exonerate HHC if it concluded that MPC discharged plaintiff before reading the transfer forms at all. The issue of this key causation element was vigorously contested at trial, and upon this record was an arguably dispositive question of fact for the jury. Consequently, the refusal to charge was error, which could not be deemed harmless.

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

Order reversed, etc.


text:
    In the Matter of Frank McMurray, Respondent, v New York State Division of Housing and Community Renewal et al., Respondents, and George Wild et al., Appellants.
    Decided October 25, 1988

      APPEARANCES OF COUNSEL

      Andrew S. Fisher for appellant.

      Daniel E. Konig and Dennis Hasher for New York State Division of Housing and Community Renewal, respondent.

      Robert J. Kaplan for Frank McMurray, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Notwithstanding the validity of the certificate of eviction issued by respondent Division of Housing and Community Renewal (DHCR), we conclude that Supreme Court improperly tolled the running of the 20-year period. Chapter 234 of the Laws of 1984 defines a landlord’s right to evict tenants occupying rent-controlled apartments (Administrative Code of City of New York § 26-408 [b] [1]; L 1984, ch 234, as amended). The statute specifically limits this right by providing that when the tenant falls within one of the three protected categories the subdivision permitting eviction "shall not apply” (Administrative Code § 26-408 [b] [1]). Construing the 20-year requirement as a Statute of Limitations and tolling the accrual of time is, as the agency itself argues, inconsistent with this statutory language. Since the statute creates the landlord’s right to evict tenants protected by the rent control law, it is consistent with the legislative intent to construe the limitation that the tenant be in occupancy for less than 20 years as a condition precedent to the maintenance of an eviction proceeding. So viewed, the limitation cannot be tolled (Romano v Romano, 19 NY2d 444, 447; Kahn v Trans World Airlines, 82 AD2d 696, 699). This interpretation serves the broad remedial purpose of the statute which was intended to protect elderly, long-term and disabled tenants from the hardships of eviction (see, L 1984, ch 234, Governor’s Bill Jacket, Mem of NY Assembly, 1984 NY Legis Ann, at 109). Accordingly, a tenant in possession who accumulates the requisite 20 years of occupancy before the validity of a certificate of eviction is finally determined by the courts is protected from eviction. Petitioner, therefore, who became a 20-year tenant during the pendency of judicial proceedings and who the Appellate Division found did not unduly delay the proceedings, is exempt from eviction.

Moreover, respondents-appellants’ contention that the Appellate Division improperly considered the fact that petitioner became a 20-year tenant after the entry of Supreme Court’s judgment is without merit. The statute providing for judicial review of DHCR determinations expressly authorizes the reviewing court to consider new evidence when requested to do so by the agency (Administrative Code § 26-411 [a] [2]). Here, in view of DHCR’s position that petitioner was exempt from eviction even though he reached 20 years in occupancy after the issuance of the certificate of eviction, there was no need to remit the matter to the agency for further administrative action. (Compare, Matter of Levine v New York State Liq. Auth., 23 NY2d 863, 864; Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757.)

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa 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:
    TSS-Seedman’s, Inc., Respondent, v Elota Realty Company, Appellant. (Action No. 1.) TSS-Seedman’s, Inc., Respondent, v Elota Realty Company, Appellant. (Action No. 2.)
    Argued September 13, 1988;
    decided October 25, 1988

      APPEARANCES OF COUNSEL

      Robert M. Calica and Myra P. Lapidus for appellant.

      Ignatius John Melito and Susan C. Zuckerman for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff tenant and defendant landlord entered into two leases for separate parcels of real property. Each lease contained a notice of default and termination clause which stated, in part, that, in the event the tenant defaults in its payment of rent, the landlord "may give written notice to the Tenant”, specifying the default and stating that the lease shall expire and terminate on a prescribed date which must be at least five days after the giving of the notice. The clause further provided that "upon the date specified in such notice * * * this lease and the term hereby demised and all rights of the Tenant under this Lease shall expire and terminate”. As a result of separate disputes, plaintiff, in violation of the leases, withheld partial payment of its rents. The landlord, however, did not serve notices as required by the termination clauses. When negotiations between the parties failed, plaintiff commenced the instant actions to enjoin defendant from taking any steps to declare plaintiff in violation of the leases. While the actions were pending, plaintiff paid defendant all withheld rents. We conclude that defendant’s acceptance of the rental payments prior to serving the notices of default resulted in each lease remaining in full force and effect. Thus, the Appellate Division properly granted plaintiff’s motions for injunctions and denied defendant’s cross motions for summary judgment.

The termination clauses in the leases were conditional limitations. As such they provided that if a notice of default were sent, the leases would automatically expire on the happening of a specified contingency, the arrival of the termination date fixed in the notice (see, Perrotta v Western Regional Off-Track Betting Corp., 98 AD2d 1, 5; 2 Rasch, New York Landlord and Tenant §§ 23:29, 23:30 [3d ed]; 14 Carmody-Wait 2d, NY Prac § 90:15). Under the particular clauses here, it is not the tenant’s conduct which, at the option of the lessor, operates on the lease to effect its termination as in some termination clauses (see, Perrotta v Western Regional OffTrack Betting Corp., supra, at 5). Rather, it is by the passage of time — the period of time specified in the termination notice —that the lease automatically comes to an end; without service of a notice specifying the date of expiration of the lease there can be no termination and the lease remains in effect (see, 2 Rasch, New York Landlord and Tenant § 23:29 [3d ed]). It is undisputed that defendant accepted all withheld rent prior to service of the termination notices and thus the rental delinquencies were remedied. Since the notices were sent at a later time when there were no outstanding rental defaults to which the notices could apply, they were ineffective.

We reject defendant’s contention that the notices were effective because the withheld rents were paid pursuant to a stipulation made before the motion court under which the parties reserved the rights being asserted in their respective motions. These reserved contentions related to the different issue being addressed by the parties — i.e., whether the tenant had been vested with an implied right to cure its defaults because of the past conduct of the parties and was, therefore, entitled to a Yellowstone injunction during which it could effect a cure (see, First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630). As noted, defendant’s acceptance of the rent resulted in the leases remaining in effect and removed any ground for implementing the conditional limitations by service of termination notices. The contested issue pertaining to the right to cure was thus rendered academic.

Finally, we reject defendant’s contention that, because the leases contained "nonwaiver” clauses, acceptance of the withheld rents did not prevent it from terminating the leases. Under the circumstances present here, acceptance of the rent waived the default.

Titone, J.

(dissenting). By holding that defendant landlord’s right to send termination notices was extinguished by plaintiff’s payment of past-due rents, the majority has rewritten the parties’ agreement and, in effect, created a new cure period wholly outside the written understanding of the parties. Because this decision injects a level of uncertainty into the law governing landlord-tenant relations, I respectfully dissent.

The majority’s holding rests on the fact that at the time plaintiff paid defendant the past-due rents it had improperly withheld, the leases had not. yet been terminated. As the majority points out, termination of the leases could be effectuated only by the issuance of written notices specifying the nature of the defaults and setting forth the dates on which the leases would expire. Since no such notices had been issued, the lease remained in effect.

The issue in this case, however, is not whether the leases had actually been terminated prior to the tenant’s payment of back rent, but rather whether the landlord’s right to terminate could be extinguished by such tardy payment. That question may be answered affirmatively only if some lease provision — or legal tenet — gave plaintiff a right to cure a default in rent payment. Absent a source for a right to cure, plaintiff’s defaults were irreversible and defendant had the right to proceed with its lease remedies regardless of plaintiff’s subsequent actions.

Neither of the leases in issue provide a specific source for a right to remedy a default in rent payments, and the majority has not suggested otherwise. Both of the leases provided that "if default shall be made in the due and punctual payment of any net rent * * * and such default shall continue for a period of 5 business days * * * then and in any such event Landlord at any time thereafter may give written notice to Tenant * * * and upon the date specified in such notice * * * this Lease shall expire and terminate” (emphasis supplied). No further opportunity for "cure” beyond the five-day grace period specified in this paragraph was provided.

To be sure, the leases made the formal issuance of a notice of default a condition precedent to the lease’s termination. However, this procedural requirement should not be confused with the landlord’s substantive right to terminate the tenancies. Under the plain language of the leases, this right became fixed and unconditional after the tenant defaulted and failed to remedy the default during the five-day grace period. Thereafter, defendant was privileged to issue notices of default, and thereby terminate plaintiffs tenancies "at any time.”

Under this analysis, it makes no difference that "the rental delinquencies were remedied” prior to the service of the default notices (majority mem, at 1027). Under the terms of the lease, plaintiffs breaches were complete long before such payment was made. In the absence of a cure provision, those breaches could no longer be "remedied,” and it is irrelevant that "there were no outstanding rental defaults to which the notices could apply.” The notices were properly applicable to the completed default resulting from plaintiffs failure to pay rent within the required five-day grace period.

The majority’s ultimate conclusion — that the notices were ineffective because the breaches had previously been remedied —can be reached only by reading into the parties’ leases a post-grace-period right to cure that neither party contemplated at the time the leases were executed. In effect, the majority has held that, regardless of the lease provisions, the law will imply a right to cure that extends until such time as the landlord acts upon the tenant’s default. I cannot agree to such a result, however, since it violates the well-established principle that, absent a showing of fraud, mutual mistake or other acceptable basis of reformation, the court is powerless to read into a lease a right to cure beyond the rights specified in the lease itself (First Natl. Stores v Yellowstone Shopping Center, 21 NY2d 630, 637; cf., Mann Theatres Corp. v Mid-Island Shopping Plaza Co., 94 AD2d 466, affd 62 NY2d 930 [right to cure created through the parties’ subsequent writings]; Wuertz v Cowne, 65 AD2d 528 [same]).

Equally flawed is the majority’s conclusion that defendant’s acceptance of past-due rent constituted a waiver of its already vested right to issue default notices and terminate the leases. First, apart from a cryptic reference to "the circumstances present here” (majority mem, at 1027), the majority does not explain why the leases’ "nonwaiver” clauses do not foreclose a finding of waiver (cf., Jefpaul Garage Corp. v Presbyterian Hosp., 61 NY2d 442). Second, even assuming that the "non-waiver clauses” are ineffective in this situation, the majority’s conclusion ignores the plain terms of the court-ordered stipulation, under which the payments were made and accepted. The stipulation provided that "neither the plaintiff nor the defendant have waived the respective rights that they have asserted in their respective motions, including the landlord’s claim that it is entitled to serve a notice terminating the leases” (emphasis supplied). In view of this clear language, treating defendant’s acceptance of past-due rents as a waiver of its right to terminate the leases by sending notices of default is patently unfair (cf., Jefpaul Garage Corp. v Presbyterian Hosp., supra, at 446-447).

In sum, neither defendant’s acceptance of past-due rents nor its delay in sending notices of default divested defendant of its absolute right under the terms of the leases to hold plaintiff to its defaults. Accordingly, I would reverse the order of the Appellate Division and reinstate the judgments at Special Term, which declared that defendant had a right to terminate plaintiff’s leases.

Chief Judge Wachtler and Judges Simons, Alexander, Hancock, Jr., and Bellacosa concur; Judge Titone dissents and votes to reverse in an opinion; Judge Kaye taking no part.

Order affirmed, with costs, in a memorandum.

      . The notice provisions of the leases,- which required that the date specified for lease termination be no less than five days after the date of the notice (see, majority mem, at 1026), were apparently designed to ensure the tenant at least five days’ notice of termination, presumably so that the tenant could make arrangements to vacate the premises in an orderly fashion. In contrast, the entirely separate reference in the leases to a continuance of the default "for a period of 5 business days” was evidently intended to afford the tenant a short grace period for paying its rent.

      . The majority begs the question when it posits that before the default notices were sent "the rental delinquencies were remedied” (majority mem, at 1027), "there were no outstanding rental defaults” (id.) and the tenant had "removed any ground for implementing the conditional limitations” (id.). All of those conclusions rest on an assumption that the tenant had a right to cure — an assumption which I find unjustifiable in light of the leases’ language.

      . The majority’s holding assumes that the parties’ agreement was as follows: "[I]f default shall be made in the due and punctual payment of any net rent * * * and such default shall continue for a period of 5 business days * * * then and in any such event Landlord at any time thereafter may give written notice to Tenant * * * and upon the date specified in such notice * * * this Lease shall expire and terminate unless the tenant has previously remedied its default” (emphasized words added).

      . There is no support for the majority’s assertion that the "reserved contentions” referred to in the parties’ stipulation related only to the question whether the tenant had an implied right to cure that could provide a predicate for a Yellowstone injunction (majority mem, at 1027). As the above-quoted language makes clear, the parties reserved all of "the respective rights that they have asserted in their respective motions”. While the plaintiff tenant’s motion may have been confined to requests for injunctive relief, the defendant landlord’s cross-motions for summary judgment clearly encompassed the contentions that (1) the tenant "ha[d] breached the lease[s]”; (2) "there is no curative period for the correction of such admitted failure to pay”; and (3) "the defendant landlord is entitled to take [the] steps permitted by the lease * * * to declare the lease terminated” (defendant’s notice of cross motion). I am at a loss to understand why the majority has not treated the stipulation reserving rights as extending these contentions.


text:
    In the Matter of Robert Amsterdam et al., Respondents, v David T. Goldstick et al., Appellants, and Department of Housing Preservation and Development of the City of New York, Respondent.
    Decided October 25, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that a direct appeal does not lie (NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Equitable Life Assurance Society of the United States, Respondent, et al., Plaintiff, v John H. Kliever, Appellant.
    Submitted July 25, 1988;
    decided October 25, 1988
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the denial of a motion to dismiss 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:
    Elise J. MacDonald, Respondent, v Herbert Fischman et al., Appellants.
    Submitted August 8, 1988;
    decided October 25, 1988
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the Appellate Division order dismissing an appeal from a determination entered upon default (CPLR 5511).


text:
    Larry Plac, Appellant, v State of New York, Respondent.
    (Claim No. 74450.)
    Decided October 25, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that no appeal lies as of right from the unanimous determination of the Appellate Division absent the direct involvement of a substantial constitutional question.


text:
    The People of the State of New York, Respondent, v Wayne E. Shaw, Appellant.
    Decided October 27, 1988
    APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender, for appellant.

      Barry M. Donalty, District Attorney (Donald R. Gerace of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

The defendant, arrested for driving while intoxicated, consented to taking a breathalyzer test. Prior to trial he moved to suppress the test results claiming that his Sixth Amendment rights were violated because he was not advised of his right to counsel when requested to take the test.

The trial court granted the defendant’s motion and suppressed the results of the test (127 Misc 2d 530). On appeal by the People, the County Court reversed (133 Misc 2d 862). The defendant has appealed claiming that he was entitled to be informed of his right to counsel at the time he was asked to take the test because this constituted a "critical stage” in the proceedings under the Sixth Amendment. He notes that the statute only requires the police to inform the defendant of his right to refuse and the adverse consequences of doing so and urges that an attorney is necessary to advise him of the adverse consequences of consent so that he may make a fully informed choice.

The defendant has no constitutional right to refuse to consent to such a search (Schmerber v California, 384 US 757). The right is entirely statutory and, by its terms, may be waived without an attorney’s assistance (Vehicle and Traffic Law § 1194 [2]). The Sixth Amendment does not require that the defendant be afforded counsel at this stage in the proceedings. Although the defendant was called upon to waive a statutory right, it was not a critical stage in the proceedings within the meaning of the Sixth Amendment because no judicial proceedings had been initiated against the defendant at that time (Kirby v Illinois, 406 US 682; People v Claudio, 59 NY2d 556). The defendant’s suggestion that he should be afforded the same rights as a person placed in a police lineup (United States v Wade, 388 US 218) is unavailing because the same rule applies to such proceedings; the right to counsel does not attach at a lineup prior to judicial intervention (Kirby v Illinois, supra; cf., People v Coleman, 43 NY2d 222).

Finally, we note that in this State, a defendant who has been arrested for driving while intoxicated, but not yet formally charged in court, generally has the right to consult with a lawyer before deciding whether to consent to a sobriety test, if he requests assistance of counsel (People v Gursey, 22 NY2d 224). But when, as here, an attorney’s assistance has not been requested, the fact that the defendant has made an uncounseled waiver of the statutory right to refuse the test, provides no basis for suppressing the results.

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

Order affirmed in a memorandum.


text:
    Robert Smithson, Appellant, v Ilion Housing Authority et al., Respondents. (And Two Additional Proceedings.)
    Argued September 15, 1988;
    decided October 27, 1988

      APPEARANCES OF COUNSEL

      Armond J. Festine and R. Richard Decatur for appellant.

      James H. Huyck, III, for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly determined that petitioner —an employee terminable at will — failed to show that his employment was terminated for a constitutionally impermissible reason (see, Murphy v American Home Prods. Corp., 58 NY2d 293, 305). Nor did the Appellate Division abuse its discretion in concluding that violation of the Open Meetings Law, in the circumstances presented, did not require the annulment of the Board’s determination dismissing petitioner from his employment (Public Officers Law § 106 [2]; § 107; see, Matter of Sanna v Lindenhurst Bd. of Educ., 58 NY2d 626).

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

Order affirmed, with costs, in a memorandum.


text:
    The People of the State of New York, Respondent, v Kirk Hughes, Appellant.
    Argued September 7,1988;
    decided October 27, 1988

      APPEARANCES OF COUNSEL

      Eric M. Alderman for appellant.

      Robert E. Wildridge, District Attorney (Edward J. McQuat, Anthony J Gigliotti and Mary D. Fahey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In People v Hughes (59 NY2d 523) we affirmed the reversal of defendant’s convictions for first degree rape and second degree assault because the trial court had improperly permitted the jury to consider the victim’s testimony concerning recollections which had been induced by hypnosis. We held that, on defendant’s retrial, the victim could be permitted to testify to facts recalled prior to her hypnosis if the prosecution demonstrated by clear and convincing proof that the victim’s prehypnotic recollections were not "unduly influenced by the hypnotic sessions” (59 NY2d, at 548, supra). Accordingly, we directed the trial court to conduct a hearing to determine the admissibility of events recalled by the victim before she was hypnotized. We specifically noted two matters to be examined and resolved at the pretrial stage: "the extent of the witness’s prehypnotic recollection (which would establish the boundaries of admissible testimony) and whether the hypnosis was so impermissibly suggestive as to require exclusion of in-court testimony with respect to such prehypnotic recollection” (id., at 546).

On remand, however, the trial court admitted the victim’s testimony as to her prehypnotic recall without considering expert testimony, or any other evidence, on the question of whether the hypnotic procedures that had been employed were so impermissibly suggestive as to have tainted the victim’s prior recollections. As the Appellate Division unanimously agreed, the trial court thus failed to comply with the guidelines we outlined in Hughes I. Though the court conducted a hearing and considered testimony about the victim’s prehypnotic statements from the investigating police officer, the victim and her husband, it heard no expert testimony whatsoever on the suggestiveness of the hypnotic procedures that had been used — it refused defendant’s request to appoint an expert and the prosecution did not present one of its own. Moreover, although the court viewed that portion of a videotape showing the victim’s interview, prior to hypnosis, about her prehypnotic recollection, the court did not view that portion covering the hypnotic session itself. As we explained in Hughes I, the required proof "will necessarily vary from case to case” (59 NY2d, at 547, supra). The scope of the hearing rests within the discretion of the trial court and depends on both the hypnotic procedures employed and the events occurring prior to hypnosis (id., at 546-547). Exercise of that discretion, however, did not permit the trial court here to hold a hearing in which nothing more was to be shown than that which was already known when we remanded the case for the hearing.

Nevertheless, we agree for the reasons stated by the majority at the Appellate Division that the trial court’s error was harmless and does not require a reversal. We would note that, on the second trial, the victim’s testimony did not involve the critical fact of her assailant’s identity.

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.

      . All proceedings relating to the first trial of defendant will be referred to as Hughes I and those relating to the trial and other proceedings after remand as Hughes II.

      . The entire videotape of the hypnotic session was received into evidence during the Hughes II hearing as well as in the hearing in Hughes I.


text:
    Joseph A. Carino, Appellant, v Earl Pilon et al., Constituting the Zoning Board of Appeals of the Town of Deerfield, et al., Respondents.
    Submitted August 22, 1988;
    decided October 27, 1988
   On the court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Dorothy M. Pacyna, Respondent, v Clement J. Pacyna, Appellant.
    Submitted August 22, 1988;
    decided October 27, 1988
   Upon appellant’s motion, appeal transferred, without costs, to the Appellate Division, Fourth 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:
    Clement J. Pacyna, Appellant, v Lee G. Greenley et al., Respondents.
    Submitted August 22, 1988;
    decided October 27, 1988
   Upon appellant’s motion, appeal transferred, without costs, to the Appellate Division, Fourth 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:
    In the Matter of Joseph M. Pecorello, Appellant, v Deborah R. P. Snodgrass, Respondent.
    Decided October 27, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution, and upon the further ground that the double dissent is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of the Claim of Eugene Robinson, Respondent. New York Times Newspaper Division of the New York Times Company, Appellant; Thomas F. Hartnett, as Commissioner of Labor, Respondent.
    Submitted August 22, 1988;
    decided October 27, 1988
   Motion for leave to appeal dismissed upon the ground that employer is not a party aggrieved by the order of the Appellate Division (CPLR 5511).


text:
    Bella Taieb et al., Respondents, v Hilton Hotels Corporation et al., Appellants.
    Decided October 27, 1988
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that defendants-appellants have not stipulated for judgment absolute and in this case any such stipulation would be illusory and would frustrate the purpose of CPLR 5602 (b) (2) (iii) (Goldberg v Elkom Co., 36 NY2d 914).


text:
    In the Matter of Christopher Watt, Appellant, v Town of Gaines, Respondent.
    Submitted July 11, 1988;
    decided October 27, 1988
   Motion by petitioner for leave to appeal otherwise dismissed and cross motion by the Town of Gaines for leave to appeal dismissed, each upon the ground that the remaining portions of the order sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Robert Stephens, Respondent.
    Decided October 27, 1988
   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]).