author: Rivera, J.

text:
    [48 NE3d 944, 28 NYS3d 663]
    The People of the State of New York, Respondent, v Christopher A. Nicholson, Also Known as John Doe, Appellant.
    Argued January 13, 2016;
    decided February 18, 2016

      POINTS OF COUNSEL

      Davison Law Office PLLC, Canandaigua (Mary P. Davison of counsel), for appellant.
    I. The decision of the Appellate Division majority to affirm despite reversible error that occurred when the trial court permitted rebuttal testimony on a collateral matter was an act outside its authority under the Criminal Procedure Law, had no record basis, and was an abuse of discretion as a matter of law. (People v Concepcion, 17 NY3d 192; People v LaFontaine, 92 NY2d 470; People v Oden, 36 NY2d 382; People v Pavao, 59 NY2d 282; People v Harris, 57 NY2d 335; People v McLaughlin, 291 NY 480; People v Hanley, 5 NY3d 108; People v Zabrocky, 26 NY2d 530; People v Jenkins, 24 NY3d 62; People v Kims, 24 NY3d 422.) II. The trial court abused its discretion as a matter of law or failed to exercise discretion by permitting a social worker to testify about Child Sexual Abuse Accommodation Syndrome, after the jurors’ answers during voir dire demonstrated that the topic was not outside their ken. (People v Carroll, 95 NY2d 375; People v Donk, 259 AD2d 1018, 93 NY2d 924; People v DeLong, 206 AD2d 914; People v Spicola, 16 NY3d 441; People v Williams, 20 NY3d 579; People v Diaz, 20 NY3d 569; De Long v County of Erie, 60 NY2d 296; People v Ciaccio, 47 NY2d 431.) III. The trial court erred by admitting prejudicial evidence of prior bad acts at trial without issuing a limiting instruction to the jury. (People v Bassett, 55 AD3d 1434; People v Stanard, 32 NY2d 143; People v Scarola, 71 NY2d 769; People v Molineux, 168 NY 264; People v Alvino, 71 NY2d 233; People v Resek, 3 NY3d 385; People v Hudy, 73 NY2d 40; People v Santarelli, 49 NY2d 241; People v Ventimiglia, 52 NY2d 350; People v Wlasiuk, 32 AD3d 674.) IV. Mr. Christopher Nicholson was denied a fair trial based on lack of effective assistance of trial counsel. (United States v Cronic, 466 US 648; People v Claudio, 83 NY2d 76; People v Benevento, 91 NY2d 708; Strickland v Washington, 466 US 668; Hill v Lockhart, 474 US 52; Murray v Carrier, 477 US 478; People v Ennis, 11 NY3d 403; People v Baldi, 54 NY2d 137; Rosario v Ercole, 601 F3d 118; People v Turner, 5 NY3d 476.)

      Sandra Doorley, District Attorney, Rochester (Geoffrey A. Kaeuper of counsel), for respondent.
    I. The trial court properly allowed defendant’s ex-wife to testify in rebuttal as to the relationship between defendant and defense witness Jill Marincic. (People v Anonymous, 96 NY2d 839; People v LaFontaine, 92 NY2d 470; People v Concepcion, 17 NY3d 192; People v Howard, 22 NY3d 388; People v Vandover, 20 NY3d 235; People v Guay, 18 NY3d 16; People v Harris, 98 NY2d 452; People v Lam, 21 NY3d 958.) II. The court did not abuse its discretion in allowing the People to present expert testimony about Child Sexual Abuse Accommodation Syndrome. (People v Cronin, 60 NY2d 430; People v Williams, 20 NY3d 579; People v Spicola, 16 NY3d 441; People v Carroll, 95 NY2d 375; People v Keindl, 68 NY2d 410.) III. The trial court’s Molineux ruling was a proper exercise of discretion, and defendant’s claim as to a limiting instruction is not preserved for review. (People v Allweiss, 48 NY2d 40; People v Morris, 21 NY3d 588; People v Bennett, 52 AD3d 1185, 11 NY3d 734; People v Watson, 281 AD2d 691, 96 NY2d 925; People v Cook, 93 NY2d 840; People v Bayne, 82 NY2d 673; People v Payne, 3 NY3d 266; People v Hines, 97 NY2d 56.) IV. Defendant received meaningful representation of counsel. (People v Baldi, 54 NY2d 137; People v McGee, 20 NY3d 513; People v Santiago, 22 NY3d 740; People v Howard, 22 NY3d 388; People v Turner, 5 NY3d 476; People v Ford, 46 NY2d 1021; People v Benevento, 91 NY2d 708; People v Henry, 95 NY2d 563.)
   OPINION OF THE COURT

Rivera, J.

In this appeal we clarify that the Appellate Division does not exceed its statutory authority or run afoul of our decisions in People v LaFontaine (92 NY2d 470 [1998]) and People v Concepcion (17 NY3d 192 [2011]) when it relies on the record to discern the unarticulated predicate for the trial court’s evidentiary ruling. On the merits, we reject defendant’s claim that the trial court committed reversible error by admitting rebuttal testimony intended to provide evidence of defendant’s sole witness’s bias or motive to fabricate. We further reject his challenges to several other trial court evidentiary rulings, as well as his assertion that his trial counsel was ineffective. Therefore, the Appellate Division order should be affirmed.

L

Defendant, Christopher Nicholson, challenges his conviction, after a jury trial, on one count of course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1]), arising from his sexual abuse of his daughter, D.N. The evidence at trial demonstrated that defendant and his first wife have two children, D.N. and a son, who is 18 months’ D.N.’s senior. After defendant and his wife separated in 1995, D.N.’s mother had physical custody of the children and defendant had regular visitation at his home. D.N., who was 16 years old at the time of trial, testified that commencing in 1998 when she was six years old, and until she turned eight, her father repeatedly raped her.

Over defense counsel’s objection the court permitted D.N. to testify about defendant’s violent nonsexual conduct towards her and her brother, ostensibly for purposes of explaining why D.N. delayed reporting the sexual abuse. The court also permitted D.N.’s mother to testify about certain aspects of these incidents. According to this testimony, in 1998, D.N. was in kindergarten and defendant would often pick up the children from a school they attended near his residence. One day in April, defendant arrived at the children’s school enraged over some confusion regarding who would pick them up that day. Defendant entered the principal’s office where the children were waiting, grabbed the children by the neck and pulled them out of the school. During the drive back to his home defendant smacked D.N. across the face and punched her brother. D.N. testified that she felt afraid because she thought that defendant’s rage “would become so bad that maybe one day he would kill us.”

Mother testified that after learning about this incident, she called the police and got a temporary no-contact order against defendant from Family Court. However, she eventually permitted the children to resume visitation with defendant.

D.N. and her mother both testified to another violent incident involving defendant’s son on October 1, 1998. D.N. stated that on that day defendant threw her brother and his clothes out of defendant’s home, and left him waiting in the rain for mother to pick him up. Describing what precipitated the ejection from defendant’s residence, D.N. testified that defendant beat and hit her brother before throwing him out because he stood up for his mother against defendant’s verbal negative statements about her. Following this incident, D.N.’s brother never again visited defendant’s home.

However, D.N. continued to visit defendant and, at his request, on occasion stayed overnight. While she did not generally remember details of the several sexual assaults, she testified to two in particular, including the first, which occurred on Halloween of 1998 when she was in the first grade. On that day defendant forbade D.N. to go trick-or-treating with the family, and told her to stay home and help with a party he was planning. D.N. acquiesced because she was afraid of defendant. After D.N. finished helping with the party setup she went to her room upstairs and read until she fell asleep. After the party ended, D.N. woke up to defendant yelling for her. She went downstairs and found herself alone with defendant. He then started hitting her in the face and pulling her by her arms. D.N. testified that defendant was incoherent and very angry, and she felt “very fearful” after he hit her because she “didn’t know what was going to happen next.”

Defendant slammed D.N. onto the living room floor and proceeded to rape her. Afterwards, D.N. was in extreme pain and when defendant stopped she ran back to her room and hid under the bed, where she fell asleep until the following day when she went back to her mother’s home. D.N. testified that at the time she did not tell her mother about the first rape because she was afraid defendant would hurt or sexually abuse her, or fulfill threats he made to kill her mother.

D.N. described another rape which she remembered because it occurred on New Year’s Eve 1999. On that night, defendant left D.N. alone while he went to a bar with friends. When he returned he called for her, and she came downstairs. She was frightened by the look in his eyes, and believed he was going to hurt her so she tried to run away, but he caught up with her, grabbed her and tackled her as she entered the living room. Defendant then proceeded to rape her, and afterwards left her on the floor and went upstairs. D.N. did not call her mother because she “was told not to.” She further testified that she did not tell anyone about the rape the next day “because I figured it would keep continuing and there was nothing that I could do about it” and because she wanted to make sure her mother would not get hurt. In response to the prosecutor’s question as to why D.N. did not tell her mother about what was going on in general, D.N. answered that she stayed silent because she believed defendant when he “continuously threatened me and said that he would kill my mother and make me watch.” She further testified that she “felt like [she] could never overcome” the fear he had instilled in her.

Defendant continued to rape D.N. throughout her first, second and third grade years, and up until a few weeks before her eighth birthday. At trial she testified that she told her mother at that time “that I didn’t want anything to do with my father anymore because I was tired of him hitting me and being mean to me and I just wanted to be home with mommy and my brother.” Although D.N. wanted no contact with defendant, he called constantly wanting to know why she no longer visited him.

In 2008, when D.N. was in the 11th grade, she disclosed the sexual abuse to her school counselor. She testified that she waited to reveal the abuse even after she lived with her mother, and no longer saw defendant, because she was afraid he would come after her and her other family. D.N. explained that she eventually decided to come forward because she wanted to protect her younger sister from defendant doing the same to her, because she “wanted people to know the truth ... so that he can’t go and do it to someone else,” and because she wanted someone to help her keep from killing herself.

Prior to this disclosure, D.N. was extremely depressed and suicidal. Unable to deal with the pain inside and the lies she told about how no one ever hurt her, she began to medicate and self mutilate by cutting herself with razors and knives. After she told the counselor, D.N. received psychiatric inpatient services.

The People also presented expert testimony from a social worker on Child Sexual Abuse Accommodation Syndrome (CSAAS). The expert testified that it is very common for child victims of sexual abuse to delay disclosure because they believe that they are to blame for the abuse, or that their silence protects other individuals from the consequences of the disclosure. He also testified that children who have been abused can have difficulty remembering specific details due to disassociation, where the child attempts to “not remember” the traumatic event.

After the People rested, defendant called as his sole witness his former girlfriend, Jill Marincic. She testified that they were romantically involved from 1995 until around 2003 or 2004, and that they lived together in a house her father helped them purchase in 1998. This was the house where D.N. stayed when she visited defendant. Marincic further testified that from 1998 to 2000 she never witnessed or heard any violence against D.N. during her stays at the house.

On cross-examination, Marincic claimed that since her breakup with defendant she had not been romantically involved with him. She admitted that she visited him in jail up to four times a month, that he called her from jail at least once a week, and that he discussed the trial with her. She further admitted that she has a friend relationship with defendant, cares about him, and did not want him to go to jail. In addition, she acknowledged that although she knew about the charges, she did not go to the police and tell them she was present in the house at the times the sexual abuse allegedly occurred. She also stated that she and defendant broke up because she cheated on him and that after their breakup he began a relationship with his future second wife, who at the time of trial he had recently divorced.

The prosecutor then elicited the following testimony:

“[Prosecutor:] And that’s when you came back into the Defendant’s life, correct?
“[Witness:] No. I had always been friends with him all along, even when he was married with her. We are still friends, but that’s it.
“[Prosecutor:] And you are friends of the nature where you go and visit him in jail; isn’t that correct?
“[Witness:] Yes, I’ll visit him.”

Afterwards, the prosecutor sought to call defendant’s second ex-wife as a rebuttal witness. The court permitted the witness over defense counsel’s objection based on the following colloquy:

“[Court]: [Prosecutor], what is the expectation regarding the testimony?
“[Prosecutor]: The witness testified specifically she has been friends with the Defendant the entire time, including the time after she broke up with him, and he was with [rebuttal witness] up to the
present date. I am calling the [rebuttal] witness to rebut that statement that they were friends this entire time, because that’s not correct.
“[Court]: That is the limited purpose, that they were or were not friends during that period; is that what you are saying?
“[Prosecutor]: That’s right.
“[Defense Counsel]: So we are clear, she is not asking whether this witness and [defendant] were friends.
“[Court]: I understand.
“[Defense Counsel]: She is trying to rebut the assertion by Ms. Marincic that [defendant] and Ms. Marincic were friends.
“[Court]: That’s correct. If this witness has information regarding that limited testimony, it is proper rebuttal.
“[Defense Counsel]: Except it is not relevant. Again, it is a collateral matter. Whether or not they [were] friends after 2003 is collateral to the issues that we have at hand here. It becomes irrevelant and distracting at this point. If that’s the sole purpose of calling a witness to say that in her opinion they weren’t still friends, these other two people weren’t still friends, how is that relevant to the testimony we just heard? That is the one and only purpose they are calling her for, and the Court is allowing it for what purpose?
“[Court]: During what period of time?
“[Defense Counsel]: That would have to be from 2003 on.
“[Court]: Why?
“[Defense Counsel]: Which is almost three years after any allegations that are before this jury to consider.
“[Court]: Does the testimony postdate the time period involved?
“[Prosecutor]: Yes, [Y]our Honor, but I was asking this witness about her present relationship with the Defendant, and she indicated that she has been friends with him since that time period to [the] present date.
“[Court]: And the rebuttal witness will controvert; that is what you are saying?
“[Prosecutor]: Yes, [Y]our Honor.
“[Court]: Supposedly.
“[Prosecutor]: Yes.
“[Court]: Then it is proper rebuttal. This is brought out on the Defendant’s case. It is proper rebuttal, again, limited to that narrow scope of testimony. Is that the sole purpose of the witness?
“[Prosecutor]: Yes, IY]our Honor.
“[Court]: All right. I understand your argument, [defense counsel], but I don’t agree with it so long as that is the offer of proof regarding the proposed testimony. Have the jury enter.”

The People’s rebuttal witness testified that she was previously married to defendant, but they were now divorced, and she had met defendant after he broke up with Marincic. She further testified that Marincic and defendant spoke at the beginning of her own relationship with defendant but, to the best of her knowledge, such contact ceased when she expressed her displeasure to defendant. The rebuttal witness also attempted to testify that Marincic had sought to “get back” with defendant, but those questions were objected to and the answers stricken from the record.

The jury returned a guilty verdict on the sole count of course of sexual conduct against a child in the first degree. The court originally sentenced defendant to an indeterminate term of 11 to 22 years’ incarceration, but upon resentence reduced the term to a determinate 16 years followed by five years of post-release supervision.

The Appellate Division affirmed in a 3-2 decision (118 AD3d 1423 [4th Dept 2014]). The Court rejected defendant’s claims that the trial court should have precluded evidence of prior bad acts, that testimony regarding CSAAS was irrevelant and unnecessary, and that his trial counsel was ineffective. A majority of the Court also concluded that the trial court properly granted the People’s request to present evidence that the defense witness lied about her friendship with defendant because such proof was relevant to her bias or motive to fabricate. The dissenting Justices would have reversed and granted a new trial based on the trial court’s error in allowing the People to call a witness to testify solely about collateral matters (id. at 1426-1427). A Justice of the Appellate Division granted defendant leave to appeal. We now affirm.

IL

Defendant raises the same claims of trial court error that he asserted unsuccessfully before the Appellate Division. For the reasons discussed below we hold these claims, to the extent preserved, to be without merit.

A. Appellate Division Authority under CPL 470.15

Defendant contends that the Appellate Division exceeded its authority under CPL 470.15 (1), and violated the rule set forth in this Court’s holdings in LaFontaine and Concepcion, because the Court based its decision that the People’s rebuttal witness testimony was admissible on a ground different from that of the trial court. According to defendant, the trial court’s sole basis for permitting the rebuttal testimony was for the limited purpose of establishing that Marincic lied when she testified that she was friends with defendant during the time he was married to his second wife, up until the time of trial. He complains that the Appellate Division affirmed on the wholly separate ground that the rebuttal testimony permitted an inference of Marincic’s bias or motive to fabricate. The People respond that the rule in LaFontaine and Concepcion is not implicated here because the Appellate Division did not render its decision on an “entirely distinct alternative ground” from the trial court. Rather, both courts rejected defense counsel’s argument that the rebuttal evidence was collateral.

Under CPL 470.15 (1), “[u]pon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.” This provision is “a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” (LaFontaine, 92 NY2d at 474 [citations omitted]). Thus, CPL 470.15 (1) “bars [the Appellate Division] from affirming a judgment, sentence or order on a ground not decided adversely to the appellant by the trial court” (Concepcion, 17 NY3d at 195). Such a restriction applies in equal force to this Court which itself has “no broader review powers” (id., citing CPL 470.35 [1]).

Defendant relies on a flawed and overly narrow construction of the statutory limits of 470.15 (1) as applied to the Appellate Division’s review of the trial court’s evidentiary ruling. The record indicates the trial court determined that testimony in contravention of the defense witness’s statement that she was defendant’s friend was admissible as “proper rebuttal.” Defendant’s challenge to that ruling required the Appellate Division to consider whether the People’s articulated purpose — to establish the lack of a friendship relationship — was permissible given the defense witness’s testimony. Defendant argues that the People sought only to demonstrate that the defense witness lied, which constituted a collateral matter. Defendant is, of course, correct that the People sought to present evidence that the defense witness was not telling the truth about her relationship with defendant. However, the Appellate Division’s review of defendant’s challenge required that it do more than recognize the obvious. The Appellate Division had to determine whether the purported lie had a particular meaning given the defense witness’s testimony on direct and cross-examination.

Where a trial court does not identify the predicate for its ruling, the Appellate Division acts appropriately in considering the import of the trial judge’s stated reasoning. Moreover, nothing in the language of CPL 470.15 (1), or this Court’s construction of that provision as discussed in LaFontaine and Concepcion, prohibits an appellate court from considering the record and the proffer colloquy with counsel to understand the context of the trial court’s ultimate determination, as it did in defendant’s case. Unlike the case where the Appellate Division renders a decision on grounds explicitly different from those of the trial court, or on grounds that were clearly resolved in a defendant’s favor — the type of appellate overreaching prohibited by CPL 470.15 (1) (see Concepcion, 17 NY3d at 195) — the Appellate Division here affirmed the evidentiary ruling on the ground relied on by the trial court, namely to establish the defense witness lied that she and defendant were merely friends, as well as the unspoken, record-supported inferences that can be drawn from that testimony. We therefore conclude that the Appellate Division acted within its statutory appellate review power.

Any other interpretation of CPL 470.15 (1) would require a trial judge to state every analytic step underlying a determination to admit or deny evidence, no matter how obvious the reasoning from the record. This approach demands a heretofore unexpected level of descriptive technical exactitude. It would require the judiciary to participate in a laborious exercise, without obvious commensurate benefit to the parties or our system of justice. We do not mean that a trial court’s evidentiary rulings may go unexplained, that the Appellate Division may hypothesize the basis for a judge’s determination where a record is wholly devoid of reason, or that an appellate court may comb through the entirety of a record solely to cobble together some theory for the trial court’s conclusion. There must be sufficient articulation of a “reviewable predicate” (cf. Concepcion, 17 NY3d at 195, citing LaFontaine, 92 NY2d at 472 [Appellate Division may consider “only reviewable predicates” for the lower court’s decision]). Thus, where the trial court’s decision is fully articulated the Appellate Division’s review is limited to those grounds, but where the trial court gives a reason and there is record support for inferences to be drawn from that reason, the Appellate Division does not act beyond the parameters legislatively set forth in CPL 470.15 (1) when it considers those inferences.

Defendant argues, in the alternative, that even if the Appellate Division acted within the proper scope of its authority, there is no basis for the inference that the rebuttal testimony was intended to demonstrate Marincic’s romantic involvement with defendant. On cross-examination, the prosecutor elicited testimony from Marincic that while defendant was in jail she visited him almost once a week, and initially spoke with him daily by telephone, although she claimed that over time the conversations became less frequent and occurred weekly. She also admitted that she spoke with him about the case, and knew about the charges against him, and admitted that she cared for him. This testimony suggested that her interest in defendant was more than platonic and that they had a close and intimate relationship. Nevertheless, the prosecutor’s pointed question about whether Marincic reentered defendant’s life upon his divorce eventually led to her testimony that she was friends with defendant all along, even when he was married, and that they were friends at the time of trial “but that’s it.” The People’s proffer in support of the rebuttal testimony that she was not a friend thus aligned with the prosecutor’s cross-examination that sought to demonstrate that defense witness and defendant were romantically involved.

Moreover, apart from the potential bias suggested by Marincic’s admission that she was defendant’s friend and that she cared for him, the People had much to gain by presenting evidence that permitted an inference of a romantic relationship between defendant and Marincic. In other words, by demonstrating that Marincic was intentionally mischaracterizing her relationship with defendant, the prosecutor could argue that she harbored a bias more significant than a friendship, and one that would lead to fabrication of testimony under oath.

The Appellate Division’s conclusion that this inference was appropriate and based on testimony that was “proper rebuttal” has record support. We therefore have no basis to disturb this determination.

B. Expert Testimony on Child Sexual Abuse Accommodation Syndrome

Defendant claims that the trial court abused its discretion when it permitted testimony from the People’s expert on CSAAS. Defendant’s claim is quite limited. He does not challenge the admissibility of expert testimony on CSAAS as a general matter, that a determination on the admission and scope of such testimony is ultimately within the discretion of the trial court, or the expert qualifications of the People’s witness. Instead, defendant’s sole contention is that expert testimony on CSAAS was unnecessary and irrevelant once voir dire demonstrated that the prospective jurors in his case understood the reasons for a child sexual assault victim’s delayed disclosure of the perpetrator’s acts. The People argue that the expert testimony admitted in this case is wholly permissible under our case law and nothing in the voir dire indicates otherwise.

Admission of expert testimony is left to the sound discretion of the trial court and “dependent on whether the expert testimony ‘would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror’ ” (People v Williams, 20 NY3d 579, 583-584 [2013], quoting De Long v County of Erie, 60 NY2d 296, 307 [1983]). We have previously held that expert testimony on CSAAS is admissible, like other psychological syndromes, because it helps to explain victim behavior that might be puzzling to the jury (id. at 583-584; People v Spicola, 16 NY3d 441, 465 [2011]). The expert educates the jury on a scientifically-recognized “pattern of secrecy, helplessness, entrapment [and] accommodation” experienced by the child victim (Spicola, 16 NY3d at 453 [internal quotation marks omitted]). This includes assisting the jury to understand “why a child may wait a long time before reporting the alleged abuse” (Williams, 20 NY3d at 584, citing Spicola, 16 NY3d at 466-467), fail to report at all, and deny or recant claims of sexual assault (Spicola, 16 NY3d at 453-454). As we recognized in Spicola, the testimony is properly admitted for the legitimate purpose to counter an inference that the victim is not credible (id. at 465).

As the record demonstrates, D.N. disclosed the sexual assaults 10 years after defendant first raped her in the living room of his home. Under our case law, CSAAS expert testimony was appropriate to assist the jury in assessing D.N.’s credibility by “explaining victims’ subsequent behavior that the factfinder might not understand, such as why victims may accommodate abusers and why they wait before disclosing the abuse” (Williams, 20 NY3d at 584). Nevertheless, defendant argues that the voir dire responses demonstrate that the jury did not require expert testimony on the reasons for delayed reporting because a child victim’s behavior was apparently within the ken of the jurors in his case. We reject this claim on multiple grounds.

First, defendant has failed to demonstrate that the members of the empaneled jury actually held an appropriate understanding of this syndrome since not every prospective juror affirmatively responded to questions regarding behavior associated with CSAAS. Second, there is no consistent juror viewpoint discernable from voir dire. Those who responded to questioning said that they would not be shocked or surprised by a child’s delay in disclosure, and provided a variety of reasons for why they felt this way. For example, in response to counsel’s question, one prospective juror explained delayed disclosure as attributable to a very traumatic experience, another said the victim could have been frightened and embarrassed, and yet another asserted that people express feelings differently. Given the range of answers, the Judge did not abuse his discretion in determining that expert testimony describing a pattern of complex psychological behaviors would provide useful information upon which to judge D.N.’s testimony.

Third, even if responses from certain prospective jurors appear to reflect a basic appreciation of some of the behaviors described by CSAAS, that does not translate into a high level of comprehension of “the dynamics of sexually and physically abusive relationships within a family” at issue in this case and which are generally not as familiar to the lay juror (People v Taylor, 75 NY2d 277, 288 [1990]). Here, the expert described the five categories of CSAAS and explained why a child victim might delay disclosure of her father’s sexual abuse, as well as what might eventually motivate a victim to reveal the abuser’s conduct. Furthermore, the expert testified about matters not explored during voir dire, such as “disassociation,” whereby the victim disassociates the mind from the experience, which ultimately affects a child victim’s recollection of events. Thus, the expert’s testimony, grounded in his professional knowledge and training, provided relevant information outside the ken of the jurors and was properly admitted.

C. Evidence of Prior Bad Acts

Defendant claims that the trial court erred by admitting, without a limiting instruction, evidence of the defendant’s prior bad acts, specifically violent actions observed or experienced by the victim, which the prosecutor argued would explain that she delayed reporting out of fear of defendant’s potential violent reaction towards her, her mother, and her brother. Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988]). Evidence is considered relevant “if it has any tendency in reason to prove the existence of any material fact” (id.). However, even relevant evidence is not admissible if “its probative value is substantially outweighed by the potential for prejudice” (People v Harris, 26 NY3d 1, 5 [2015], quoting People v Mateo, 2 NY3d 383, 424-425 [2004]).

The record demonstrates that the testimony was relevant to explain the victim’s delayed disclosure, and was limited to her personal observations and experiences. Given the trial court’s careful balancing of the probative value of the testimony against its potential for prejudice, we hold that there was no abuse of discretion in admitting this evidence.

Defendant’s additional claim that the court’s failure to provide a limiting instruction to the jury constitutes reversible error is unpreserved because defendant failed to make a specific request for such instruction (People v Becoats, 17 NY3d 643, 650 [2011] [“this Court does not consider claims of error not preserved by appropriate objection in the court of first instance”]). Defendant claims, however, that under People v Payne (3 NY3d 266, 273 [2004]), the issue is properly before us because the trial court had an opportunity to review the issue and understood the need for a curative instruction. Defendant’s reliance on Payne is misplaced because in that case the Court held that where the trial court reserves decision on a defendant’s motion to dismiss, the preservation rules do not bar review of defendant’s claim. Here, the court did not admit the testimony contingent on its instruction to the jury. Nor did the court otherwise state at any point that it would give a limiting instruction. Instead, the Judge ruled that he was allowing D.N.’s testimony on the prior bad acts to explain her delayed disclosure, and “if necessary” he could provide an appropriate limiting instruction. Since counsel never asked for such instruction, there was no request for the trial court to reserve judgment on, no claim of trial error for the court to review, and no opportunity for the court to grant the relief sought. Defendant’s failure renders his present claims unpreserved.

IIL

Defendant asserts numerous complaints about his defense counsel’s representation in support of his claim that he was denied a fair trial, under both the Federal and State Constitutions, due to his lawyer’s mistakes. The People assert that no errors establish the level of ineffectiveness warranting reversal of defendant’s conviction. We agree.

Under the federal standard ineffective assistance of counsel requires both that “counsel’s performance was deficient” and that the “deficient performance prejudiced the [defendant]” (Strickland v Washington, 466 US 668, 687 [1984]). However, under our State Constitution “[t]he core of the inquiry is whether defendant received meaningful representation” (People v Benevento, 91 NY2d 708, 712 [1998] [internal quotation marks omitted]). In making that assessment, the Court must view counsel’s performance in its totality (see People v Baldi, 54 NY2d 137, 147 [1981]). Defendant, of course, bears the burden of establishing his claim that counsel’s performance is constitutionally deficient (People v Barboni, 21 NY3d 393, 406 [2013]). Thus, defendant must demonstrate the absence of strategic or other legitimate explanations for counsel’s alleged failure (People v Satterfield, 66 NY2d 796, 799-800 [1985]). However, a reviewing court must be careful not to “second-guess” counsel, or assess counsel’s performance “with the clarity of hindsight,” effectively substituting its own judgment of the best approach to a given case (Benevento, 91 NY2d at 712). The test is “reasonable competence, not perfect representation” (People v Modica, 64 NY2d 828, 829 [1985] [citation and internal quotation marks omitted]).

Turning to defendant’s specific complaints, defendant alleges that counsel was ineffective for failing to object to evidence of defendant’s prior bad acts elicited from the victim’s mother, in violation of the court’s ruling permitting such testimony solely from the victim. Defendant complains that the mother testified about the school incident in April and defendant’s ouster of their son from his residence in October. Although the mother’s testimony on these matters arguably exceeded the court’s ruling, this does not warrant a finding of ineffectiveness given that the jury heard from D.N. about these two incidents, and the mother’s testimony about events on these dates did not relate to the sexual abuse.

Moreover, during defense counsel’s summation, he sought to use the mother’s testimony to defendant’s advantage to support his argument that D.N. lied. Specifically, counsel reminded the jury that the victim immediately complained to her mother about the April incident, that her mother went to the police about defendant, and that as a consequence D.N. did not have to see defendant for quite some time. He argued that because D.N. had no difficulty complaining in April and had observed her mother’s handling of defendant’s conduct at that time, it was not believable that D.N. would feel incapable or fearful of reporting the physical and sexual abuse until years after the fact. Defendant’s related complaint that counsel should have requested limiting instructions similarly fails because he has not demonstrated that counsel lacked a strategic use for the testimony. Thus, these two grounds are insufficient bases to conclude defendant was deprived of meaningful representation (Benevento, 91 NY2d at 712).

Defendant next complains that counsel failed to object to the prosecutor’s summation comments which he contends amounted to vouching for the victim’s credibility and prosecutorial misconduct. We reject this claim because although the comments were arguably inappropriate, they were not sufficiently egregious to warrant reversal for ineffectiveness (see People v Wragg, 26 NY3d 403, 411-412 [2015] [summarizing cases where the prosecutor committed reversible error during summation by “making misleading representations about physical evidence, encouraging inferences of guilt based on facts not in evidence, and improperly conveying guilt in uncharged crimes”]).

Defendant also claims that counsel failed to investigate or call an expert to rebut the People’s expert witness. According to defendant, counsel should have called a witness to “debunk” the People’s expert’s theory. However, because this Court has held that CSAAS is recognized within the scientific community and the expert here testified generally about CSAAS, and not about its application to D.N. or her specific allegations of sexual abuse, there is no apparent failure in defense counsel’s choice not to call his own expert. To the extent defendant argues CSAAS lacks scientific validity and that counsel should have presented evidence to that effect through a rebuttal expert, or during cross-examination of the People’s expert, defendant’s challenges to counsel’s preparedness depend on matters dehors the record and are not reviewable on direct appeal (People v Cass, 18 NY3d 553, 556 [2012]).

Defendant’s remaining claims are similarly unreviewable on the record before us. His assertion that counsel failed to properly investigate the case, including failing to subpoena medical records — which the People claim do not exist — relies on extraneous facts. Furthermore, defendant’s final contention that counsel failed to impeach the victim about the inconsistencies between her trial and her grand jury testimonies is not without some significance, but requires consideration of matters outside the record to determine whether this was trial strategy. For example, counsel could have determined that the jury would treat D.N.’s inconsistencies as an example of understandable memory lapses given the years between the abuse and her testimony, or as an example of the effects of the abuse on her memory and recollection.

In summary, whether considered independently or in combination, none of these complaints about defense counsel’s representation support a conclusion that he was ineffective based on the totality of the representation under the State Constitution (Baldi, 54 NY2d at 147). As a consequence, he also fails to meet the higher threshold for ineffectiveness under the federal standard (People v Caban, 5 NY3d 143, 156 [2005]).

Accordingly, the Appellate Division order should be affirmed.

Judges Pigott, Abdus-Salaam, Stein and Fahey concur; Chief Judge DiFiore and Judge Garcia taking no part.

Order affirmed.

       The Appellate Division, in defendant’s separate appeals, affirmed his original conviction and affirmed as modified the resentence. The current appeal is from the affirmed judgment on his conviction.


source: Caselaw Access Project

license: Public Domain

text:
    [38 NE3d 798, 17 NYS3d 56]
    Branic International Realty Corp., Appellant, v Phillip Pitt, Respondent, et al., Respondents.
    Decided September 1, 2015

      APPEARANCES OF COUNSEL

      Rosenberg Calica & Birney LLP, Garden City {Ronald J. Rosenberg, Lesley Reardon and Judah Serfaty of counsel), for appellant.

      Jeanette Zelhof, MFY Legal Services Inc., New York City {Martha A. Weithman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative (see Branic Intl. Realty Corp. v Pitt, 24 NY3d 1005, 1007 [2014], citing Matter of Park E. Corp. v Whalen, 43 NY2d 735, 736 [1977]).

Concur: Chief Judge Lippman and Judges Pigott, Rivera, Stein and Fahey; Judge Abdus-Salaam taking no part.


text:
    Aries Financial, LLC, Appellant-Respondent, v 12005 142nd Street, LLC, et al., Respondents-Appellants, et al., Defendants.
    Submitted June 1, 2015;
    decided September 1, 2015
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Benjamin Justin Brownlee, Appellant, v Anthony J. Annucci, Commissioner New York State Department of Corrections and Supervision, et al., Respondents.
    Submitted June 15, 2015;
    decided September 1, 2015
   On the Court’s own motion, appeal 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 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Jessica Graham, Appellant, v Charles T. Rawley, Respondent.
    Submitted July 27, 2015;
    decided September 1, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kevin Griffin, Appellant, v Thomas P. DiNapoli, as State Comptroller, et al., Respondents.
    Submitted June 22, 2015;
    decided September 1, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 1037 (2015)].


text:
    In the Matter of Jack J. Grynberg et al., Respondents, v BP Exploration Operating Company Limited et al., Appellants.
    Submitted June 8, 2015;
    decided September 1, 2015
   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.


text:
    David Kassel, Appellant, v James P. Donohue et al., Respondents, et al., Defendants.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Stephanie Lewis, Appellant, v New York City Health and Hospitals Corporation et al., Respondents.
    Decided September 1, 2015
   Appeal, insofar as taken against respondents New York City Health and Hospitals Corporation and Bellevue Hospital Center, dismissed, without costs, by the Court of Appeals, sua sponte, as untimely taken (see CPLR 5513 [a], [d]); appeal, insofar as taken against respondent New York State Division of Human Rights, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Martha S. and Another, Children Alleged to be Neglected. Genesee County Department of Social Services, Respondent; Linda M.S., Appellant.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from so much of the Family Court order as was entered on appellant’s consent, dismissed upon the ground that, as to that portion of the Appellate Division order, appellant is not a party aggrieved (see CPLR 5511); motion for leave to appeal otherwise denied.


text:
    In the Matter of J. Ezra Merkin, Respondent, v Richard Born et al., Appellants.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court order denying the motion to renew, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Ronald Payne, Appellant, v City of New Rochelle et al., Respondents, et al., Defendants.
    Submitted June 8, 2015;
    decided September 1, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602 [a]).


text:
    The People of the State of New York ex rel. The Nonhuman Rights Project, Inc., on Behalf of Tommy, Appellant, v Patrick C. Lavery, Individually and as an Officer of Circle L Trailer Sales, Inc., et al., Respondents.
    Submitted March 23, 2015;
    decided September 1, 2015
   Motion by the Center for the Study of The Great Ideas, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Stein taking no part.


text:
    The People of the State of New York ex rel. The Nonhuman Rights Project, Inc., on Behalf of Tommy, Appellant, v Patrick C. Lavery, Individually and as an Officer of Circle L Trailer Sales, Inc., et al., Respondents.
    Submitted May 4, 2015;
    decided September 1, 2015
   Motion by Justin F. Marceau for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Stein taking no part.


text:
    The People of the State of New York ex rel. The Nonhuman Rights Project, Inc., on Behalf of Tommy, Appellant, v Patrick C. Lavery, Individually and as an Officer of Circle L Trailer Sales, Inc., et al., Respondents.
    Submitted June 1, 2015;
    decided September 1, 2015
   Motion by Laurence H. Tribe for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Stein taking no part.


text:
    The People of the State of New York ex rel. The Nonhuman Rights Project, Inc., on Behalf of Tommy, Appellant, v Patrick C. Lavery, Individually and as an Officer of Circle L Trailer Sales, Inc., et al., Respondents.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion by the Center for Constitutional Rights for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Stein taking no part.


text:
    The People of the State of New York ex rel. Darren Williams, Appellant, v Charles Kelly, Jr., Respondent.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant.
    Submitted June 15, 2015;
    decided September 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant.
    Submitted June 22, 2015;
    decided September 1, 2015
   Motions for leave to appeal dismissed upon the ground that they do not lie. Motions for poor person relief dismissed as academic.


text:
    Rafia Ahmed, Individually and as Executrix of Nafis Ahmed, Deceased, Appellant, v John Pannone, M.D., et al., Respondents, et al., Defendant.
    Submitted August 3, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 964 (2015)].


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted June 22, 2015;
    decided September 3, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Renea E. Aussicker, Respondent. Park Ride Fly USA, Appellant; Commissioner of Labor, Respondent.
    Submitted July 13, 2015;
    decided September 3, 2015
   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.


text:
    Mary Beebe et al., Appellants, v St. Joseph’s Hospital Health Center, Defendant, and Associates for Women’s Medicine, PLLC, et al., Respondents.
    Submitted July 6, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 1035 (2015)].


text:
    Inez Bielecki, Appellant, v Richard Bielecki, Respondent.
    Submitted June 22, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 1035 (2015)].

Judge Fahey taking no part.


text:
    CF HY LLC, Respondent, v Hudson Yards LLC et al., Defendants, and Baruch Singer, Appellant.
    Submitted June 22, 2015;
    decided September 3, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]). Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    Jeffrey Chiara, Respondent, v Town of New Castle et al., Appellants.
    Submitted July 20, 2015;
    decided September 3, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of City of Long Beach, Appellant, v Sun NLF Limited Partnership, Respondent, and Louis Bombart et al., Respondents.
    Submitted July 13, 2015;
    decided September 3, 2015
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    Patricia J. Curto, Appellant, v Mark Diehl et al., Respondents.
    Submitted July 13, 2015;
    decided September 3, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fahey taking no part.


text:
    Dorothy M. Faison, as Administratrix of the Estate of Percy Lee Gogins, Jr., Deceased, Appellant, v Tonya Lewis, Also Known as Tonya Taylor and Another, et al., Defendants, and Bank of America, N.A., Respondent.
    Submitted June 29, 2015;
    decided September 3, 2015
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 25 NY3d 220 (2015)].


text:
    Dorothy M. Faison, as Administratrix of the Estate of Percy Lee Gogins, Jr., Deceased, Appellant, v Tonya Lewis, Also Known as Tonya Taylor and Another, et al., Defendants, and Bank of America , N.A., Respondent.
    Submitted July 13, 2015;
    decided September 3, 2015
   Motion by the New York State Land Title Association, Inc. for leave to appear amicus curiae on the motion for reargument herein granted and the brief is accepted as filed.


text:
    Wayne Haberman, Appellant, v Jack Meyer et al., Respondents.
    Submitted July 6, 2015;
    decided September 3, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the April 2013 Supreme Court order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Nora Iacono, Appellant, v Anthony Pilavas et al., Respondents.
    Submitted July 20, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 909 (2015)].


text:
    Peggy Morris, Appellant, v M.P. Santini, Inc., et al., Respondents.
    Submitted June 29, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 907 (2015)].


text:
    Rural Community Coalition, Inc., et al., Appellants, v Village of Bloomingburg et al., Defendants, Town of Mamakating et al., Appellants, and Shalom Lamm et al., Respondents.
    Submitted July 20, 2015;
    decided September 3, 2015
   Motions for reargument of motion for leave to appeal denied [see 25 NY3d 1063 (2015)].

Judge Stein taking no part.


text:
    St. Lawrence Factory Stores, Appellant, v Ogdensburg Bridge and Port Authority, Respondent.
    Submitted June 29, 2015;
    decided September 3, 2015
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 25 NY3d 907 (2015)].


text:
    74 Eldert, LLC, Respondent, v Sharp Realty, LLC, et al., Defendants, and Cie Sharp, Appellant.
    Submitted July 13, 2015;
    decided September 3, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Baxter Street Condominium, Respondent, v LPS Baxter Holding Co., LLC, Appellant. (And Two Other Actions.)
    Submitted May 26, 2015;
    decided September 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    In the Matter of Sharon K. Bland, Appellant, v Gellman, Brydges & Schroff et al., Respondents. Workers’ Compensation Board, Respondent. In the Matter of Sharon K. Bland, Appellant, v Ronko Communications et al., Respondents. Workers’ Compensation Board, Respondent.
    (Claim No. 1.)
    (Claim No. 2.)
    Submitted June 15, 2015;
    decided September 10, 2015
   Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.

Judge Stein taking no part.


text:
    Annabelle Sarah Bond, Respondent, v Warren Lichtenstein, Appellant.
    Decided September 10, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Eileen D’Amico, Respondent, v Christopher Corrado, Appellant.
    Submitted July 20, 2015;
    decided September 10, 2015
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Family Court’s June 2013 order awarding custody and visitation, 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 a proceeding within the meaning of the Constitution.


text:
    Robert Davis, Appellant, v State of New York, Respondent.
    Decided September 10, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Gilberto Diaz, Appellant, v New York State Commission on Judicial Conduct, Respondent.
    Submitted June 29, 2015;
    decided September 10, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion seeking leave to appeal from the letter dismissing the complaint (see NY Const, art VI, § 22; Judiciary Law § 44 [7]; CPLR 5602).


text:
    Willie B. Hodge, Appellant, v County of Westchester, Respondent.
    Decided September 10, 2015
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Robert Jones, Appellant, v Kevin Hickey, as Assistant Attorney General of the State of New York, Respondent.
    Decided September 10, 2015
   Appeal from the March 2015 Appellate Division order of affirmance dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Robert Jones, Appellant, v Kevin Hickey, as Assistant Attorney General of the State of New York, Respondent.
    Decided September 10, 2015
   Appeal from the May 2015 Appellate Division order denying leave to appeal to this Court dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Constantine Korelis, Appellant, v Conriv Realty Corp. Respondent.
    Decided September 10, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    Carla L. Mura, Now Known as Carla L. Piccarreto, Appellant, v David James Mura, Respondent. Mark Chauvin Bezinque et al., Respondents.
    Submitted June 15, 2015;
    decided September 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Quintin A. Nowlin, Appellant, v Frederikus P. Vanroon et al., Respondents.
    Submitted June 29, 2015;
    decided September 10, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Everett M. Durant, Appellant.
    Submitted August 31, 2015;
    decided September 10, 2015
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Rodolfo Hernandez, Appellant.
    Submitted September 8, 2015;
    decided September 10, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Earl Jones, Appellant.
    Submitted August 31, 2015;
    decided September 10, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Elliot Parrilla, Appellant.
    Submitted September 8, 2015;
    decided September 10, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Chris Price, Appellant.
    Submitted August 31, 2015;
    decided September 10, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Charles Smith, Appellant.
    Submitted September 8, 2015;
    decided September 10, 2015
   Motion by New York State Association of Criminal Defense Lawyers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Tamla Pope, Appellant, v City of New York et al., Respondents.
    Decided September 10, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    In the Matter of Renaissance Economic Development Corporation, Respondent, v Jin Hua Lin, Appellant.
    Submitted June 29, 2015;
    decided September 10, 2015
   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.


text:
    In the Matter of Tammy Robinson, Appellant. Commissioner of Labor, Respondent.
    Submitted June 29, 2015;
    decided September 10, 2015
   Motion, insofar as it seeks leave to appeal from the February .2015 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the April 2015 Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Hans Schmid, Appellant, v Eileen Knauer et al., Respondents.
    Decided September 10, 2015
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of State of New York, Respondent, v Dennis K., Appellant.
    Submitted August 17, 2015;
    decided September 10, 2015
   Motion to vacate this Court’s July 14, 2015 preclusion order granted.


text:
    In the Matter of Emma Torres. Emma Torres, Appellant, v Dara Freed, as Executrix of Bernard Cohen, Deceased, Respondent, and Fidelity and Deposit Company of Maryland, Respondent. Joel B. Mayer Esq., Nonparty Respondent.
    Submitted July 6, 2015;
    decided September 10, 2015
   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.


text:
    Utica Mutual Insurance Company, as Subrogee of Harris Berenson et al., Appellant, v Style Management Associates Corp. et al., Respondents, et al., Defendants.
    Submitted August 24, 2015;
    decided September 10, 2015
   Motion to expand the record denied.


text:
    In the Matter of the Claim of Sheri H. Wilner, Respondent. Primary Stages Company Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted July 6, 2015;
    decided September 10, 2015
   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.


text:
    Scott Young, Appellant, v State of New York et al., Respondents.
    Submitted June 29, 2015;
    decided September 10, 2015
   Motion for leave to appeal dismissed upon the ground that the April 15, 2015 letter sought to be appealed from is not a judgment or an order from which an appeal to the Court of Appeals may be taken (see CPLR 5512 [a]; 5602).


text:
    Yuliya Angelova, Respondent, v Vladislav Ruchinsky, Appellant.
    Submitted August 10, 2015;
    decided September 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 911 (2015)].


text:
    Philip Caprio et al., Respondents, v New York State Department of Taxation and Finance et al., Appellants, et al., Defendant.
    Submitted August 17, 2015;
    decided September 17, 2015
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 25 NY3d 744 (2015)].


text:
    Steven Carrington, Appellant, v PH Superintendent Moore, as Hearing Officer, et al., Respondents.
    Submitted June 15, 2015;
    decided September 17, 2015
   Motion to vacate this Court’s May 18, 2015 dismissal order granted [see 25 NY3d 1068 (2015)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    Regina Farage, Appellant, v Lance Ehrenberg, Esq., Respondent.
    Submitted July 27, 2015;
    decided September 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jacquelin M., Appellant, v Joseph M., Respondent.
    Submitted July 27, 2015;
    decided September 17, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Law Offices of J. Stewart Moore, P.C., Appellant, v Sherman Trent et al., Respondents, et al., Defendants.
    Submitted July 6, 2015;
    decided September 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Ling Chen, Appellant, v Reuters America Holdings, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 10, 2015;
    decided September 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Alma Caldavado, Also Known as Alma Calderaro, Appellant.
    Submitted September 14, 2015;
    decided September 17, 2015
   Motion by National Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Alma Caldavado, Also Known as Alma Calderaro, Appellant.
    Submitted September 14, 2015;
    decided September 17, 2015
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York ex rel. Nouchie Vellon, Appellant, v Dale Artus, Respondent.
    Submitted August 10, 2015;
    decided September 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 1186 (2015)].


text:
    Eric T. Schneiderman et al., Respondents, v Mujahid Pervez, et al., Defendants, and Nadia Pervez et al., Appellants.
    Submitted July 6, 2015;
    decided September 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    In the Matter of Sierra Club et al., Appellants, v Village of Painted Post et al., Respondents.
    Submitted September 14, 2015;
    decided September 17, 2015
   Motion by Railroads of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Sierra Club et al., Appellants, v Village of Painted Post et al., Respondents.
    Submitted September 14, 2015;
    decided September 17, 2015
   Motion by Gas Free Seneca et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Sierra Club et al., Appellants, v Village of Painted Post et al., Respondents.
    Submitted September 14, 2015;
    decided September 17, 2015
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Eamon Teague, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted August 31, 2015;
    decided September 17, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    In the Matter of The Torok Trust, Respondent, v Town Board of Town of Alexandria et al., Respondents. Alexandria Central School District, Appellant.
    Submitted July 27, 2015;
    decided September 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 1098 (2015)].


text:
    CRP/Extell Parcel I, L.P., Respondent, v Andrew M. Cuomo et al., Respondents, and 3to4, LLC, et al., Appellants.
    Submitted August 17, 2015;
    decided September 22, 2015
   Motion to enlarge the record granted.


text:
    Shura Glinskaya, Appellant, v Allen Zelman, as Administrator of the Estate of Joseph Berger, Deceased, Respondent, et al., Defendants.
    Submitted July 6, 2015;
    decided September 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Michael Wesley Harris, Appellant, v The Union Theological Seminary in the City of New York, Respondent.
    Submitted August 10, 2015;
    decided September 22, 2015
   Motion for reconsideration of this Court’s June 25, 2015 dismissal order denied [see 25 NY3d 1182 (2015)].


text:
    Littleton Construction Ltd., Appellant, v Huber Construction, Inc., et al., Respondents.
    Submitted August 17, 2015;
    decided September 22, 2015
   Motion to enlarge the record denied.

Judge Fahey taking no part.


text:
    In the Matter of the Estate of Magda Cordell McHale, Deceased. Denise Kelleher et al., Respondents; Evan McHale, Appellant. Charitable Beneficiaries, Interested Party-Respondent.
    Submitted July 27, 2015;
    decided September 22, 2015
   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.


text:
    In the Matter of Jerald Miller, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted August 17, 2015;
    decided September 22, 2015
   On the Court’s own motion, appeal 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 dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Teddy Israel Moore, Admitted as Israel Teddy Moore, a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Respondent.
    Submitted August 10, 2015;
    decided September 22, 2015
   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.


text:
    In the Matter of Rene Munoz, Appellant, v Angela Lewis, Respondent.
    Decided September 22, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie.


text:
    The People of the State of New York, Respondent, v Cleveland Lovett, Appellant.
    Submitted August 10, 2015;
    decided September 22, 2015
   Motion for reargument denied [see 25 NY3d 1088 (2015)].


text:
    PII Sam, LLC, Respondent, v Vincent Mazzurco, Appellant, et al., Defendants. Susan Yeh, Nonparty-Respondent.
    Submitted August 17, 2015;
    decided September 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    PS 157 Lofts LLC et al., Respondents, v Kimberly Austin et al., Appellants.
    Submitted August 10, 2015;
    decided September 22, 2015
   Motion for reargument denied [see 25 NY3d 1186 (2015)].


text:
    In the Matter of the Claim of Paul Schwenger, Appellant, v NYU School of Medicine et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 29, 2015;
    decided September 22, 2015
   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.


text:
    Kenneth P. Silverman, Appellant, v Daily News, L.P., et al., Respondents, et al., Defendants.
    Decided September 22, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Wells Fargo Bank, N.A., Respondent, v Gershon Krauss et al., Defendants, and BAC Home Loans Servicing, L.P., Formerly Known as Countrywide Home Loans Servicing, L.P, Appellant.
    Submitted July 13, 2015;
    decided September 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Yan Ping Liang, Appellant, v Wei Xuan Gao et al., Respondents.
    Submitted August 17, 2015;
    decided September 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [39 NE3d 473, 17 NYS3d 672]
    Shiby Abraham, as Administrator of the Estate of Shibu Abraham, Deceased, Appellant, v Chelsea Piers Management, Inc., Respondent.
    Decided September 17, 2015

      APPEARANCES OF COUNSEL

      Herman Kaufman, Rye, and Weitz & Luxenberg, P.C., New York City (Lawrence B. Goldhirsch of counsel), for appellant.

      Rivkin Radler LLP, Uniondale (Cheryl F. Korman of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question answered in the affirmative. The Appellate Division properly concluded, under the circumstances presented here, that the decedent’s actions were not foreseeable.

Concur: Chief Judge Lippman and Judges Pigott, AbdusSalaam, Stein and Fahey; Judge Rivera taking no part.


text:
    [40 NE3d 563, 18 NYS3d 586]
    The People of the State of New York, Respondent, v James R. Poleun, Appellant.
    Argued September 9, 2015;
    decided October 15, 2015

      APPEARANCES OF COUNSEL

      David J. Farrugia, Public Defender, Lockport (Joseph G. Frazier of counsel), for appellant.

      Michael J. Violante, District Attorney, Lockport (Laura T. Bittner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant pleaded guilty to one count of possession of a sexual performance by a child (Penal Law § 263.16), in full satisfaction of the charges against him. He was sentenced to an indeterminate term of IV3 to 4 years.

As defendant neared his expected release, the Board of Examiners of Sex Offenders prepared a risk assessment instrument (RAI) assessing him 100 points — a presumptive level two classification — but recommended an upward departure to a risk level three designation. A hearing on defendant’s classification was scheduled and defendant was assigned counsel.

Prior to the hearing, County Court had received two letters from defendant stating that he did not wish to attend. In one of the letters, defendant expressed a fear that, if he was transferred from Great Meadow Correctional Facility where he was presently incarcerated to the Attica Correctional Facility in anticipation of his hearing, he would suffer personal injury at the hands of the correction officers. He further stated that he explained these fears to his lawyer and that he was hopeful that his lawyer would address the things he believed were wrong in the RAI.

At the hearing, defense counsel acknowledged that his office had spoken to defendant regarding his absence and counsel handed the court a waiver of appearance executed by defendant. With defense counsel’s consent and defendant’s waiver of appearance, the court proceeded with the hearing in defendant’s absence. County Court granted the People’s request for an upward departure and adjudicated defendant a level three sex offender. Defendant appealed, arguing, among other things, that his waiver of appearance was not made knowingly, intelligently, and voluntarily.

We agree with the Appellate Division that defendant failed to preserve the challenge to his waiver of appearance. Defense counsel, who represented defendant at the Sex Offender Registration Act hearing, did not raise any objection to the validity of defendant’s waiver of appearance. Rather, at the hearing, he provided the court with an executed waiver and agreed to proceed with the hearing in defendant’s absence. We further reject defendant’s contention that this is one of the “rare casefs]” in which preservation is not required (cf. People v Lopez, 71 NY2d 662, 666 [1988]).

Defendant’s remaining contentions are without merit.

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam and Stein concur; Judge Fahey taking no part.

Order affirmed, without costs, in a memorandum.


text:
    Dawn L. Baker, Appellant, v Jeffrey P. Baker, Respondent.
    Submitted July 27, 2015;
    decided October 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Bank of America National Association, as Successor by Merger to LaSalle Bank National Association, as Trustee for Morgan Stanley Loan Trust 2006-3AR, Respondent, v Juan Patino, Appellant, et al., Defendants.
    Submitted July 27, 2015;
    decided October 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Brunelle & Hadjikow, P.C., Respondent, v James G. O’Callaghan, Appellant.
    Decided October 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Carson W., a Child Alleged to be Abused. Oswego County Department of Social Services, Respondent; Jamie G. et al., Appellants.
    Submitted July 6, 2015;
    decided October 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    John C. McPhillips, Appellant, v State of New York, Respondent.
    Submitted August 10, 2015;
    decided October 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted September 21, 2015;
    decided October 15, 2015
   Motion by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted September 28, 2015;
    decided October 15, 2015
   Motion by Environmental Working Group et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted October 13, 2015;
    decided October 15, 2015
   Motion by Product Liability Advisory Council, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Appellant, v Dru Allard, Respondent.
    Submitted September 28, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Herman H. Bank, Appellant.
    Submitted September 28, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Nnamdi Clarke, Respondent.
    Submitted October 5, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Steven Finkelstein, Appellant.
    Submitted October 13, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Tyrell Ingram, Appellant.
    Submitted October 5, 2015;
    decided October 15, 2015
   Motion for assignment of counsel and waiver of the Rules of Practice of the Court of Appeals granted only to the extent that Stanley E. Neustadter, Esq., Cardozo Law School, Criminal Appeals Clinic, 55 Fifth Ave., New York, NY 10003 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Marcellus Johnson, Appellant.
    Submitted September 28, 2015;
    decided October 15, 2015
   Motion by Legal Aid Society for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Kendall Lawson, Appellant.
    Submitted October 13, 2015;
    decided October 15, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Isma McGhee, Also Known as Izzy, Appellant.
    Submitted September 28, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rafael Then, Appellant.
    Submitted September 21, 2015;
    decided October 15, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of RAM I LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent, et al., Respondent.
    Submitted October 13, 2015;
    decided October 15, 2015
   Motion by Small Property Owners of New York, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Regency Oaks Corporation, Respondent, v Norman-Spencer McKernan, Inc., Appellant.
    Submitted October 10, 2015;
    decided October 15, 2015
   On the Court’s own motion, appeal dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    In the Matter of Town Board of Town of Brighton, on Behalf of Town of Brighton, et al., Respondents, v West Brighton Fire Department, Inc., Appellant.
    Submitted August 3, 2015;
    decided October 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fahey taking no part.


text:
    In the Matter of Dean Gary Weber, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted August 17, 2015;
    decided October 15, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    Xiu Jian Sun, Appellant, v State of New York Department of Motor Vehicles, Respondent.
    Decided October 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Candido Baez, Respondent, v Richard A. Brown, Queens County District Attorney, Appellant.
    Submitted July 27, 2015;
    decided October 20, 2015
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Lillian Evans, Appellant, v New York State Office of Children and Family Services, Respondent.
    Submitted August 17, 2015;
    decided October 20, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Neville Francis, Appellant, v Jewelry Box Corporation of America et al., Respondents, and Special Fund for Reopened Cases, Respondent. Workers’ Compensation Board, Respondent.
    Submitted August 17, 2015;
    decided October 20, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Travis D. Griffin, Appellant, v City of New York et al., Respondents.
    Submitted August 17, 2015;
    decided October 20, 2015
   Motion for reargument denied [see 25 NY3d 1191 (2015)].


text:
    Douglas L. Leight et al., Plaintiffs, and John H. Masten, Appellant, v W7879 LLC et al., Respondents.
    Submitted August 10, 2015;
    decided October 20, 2015
   Motion to dismiss appeal denied.


text:
    Midfirst Bank, Respondent, v Lillian Evans, Appellant, et al., Defendants.
    Submitted August 17, 2015;
    decided October 20, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Ronald D. Rossborough, Appellant, v Hala Y. Alatawneh, Respondent.
    Submitted July 27, 2015;
    decided October 20, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed the dismissal of the application to adjudicate respondent in violation of prior visitation orders, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Angelo Ruotolo, Appellant, v Fannie Mae et al., Respondents.
    Submitted July 27, 2015;
    decided October 20, 2015
   Motion to dismiss appeal granted, without costs, and appeal dismissed upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Isabel Videa, Appellant, v New York City Housing Authority, Respondent.
    Submitted August 24, 2015;
    decided October 20, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    [41 NE3d 66, 19 NYS3d 209]
    In the Matter of Anthony Bottom, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Argued September 11, 2015;
    decided October 22, 2015

      APPEARANCES OF COUNSEL

      Wyoming County Attica Legal Aid Bureau, Warsaw (Norman P. Effman of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner Anthony Bottom appeals from a judgment confirming a disciplinary determination of respondent, the Acting Commissioner of the Department of Corrections and Community Supervision (DOCCS), that petitioner violated DOCCS rule 113.22. That rule states, “[a]n inmate shall not use or possess an article in an area where its use or possession [is] prohibited” (7 NYCRR 270.2 [B] [14] [xii]). Our review of petitioner’s challenge is limited to determining whether the prison disciplinary determination is supported by substantial evidence (CPLR 7803 [4]; People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). Substantial evidence “means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (id. at 139, quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]).

Here, the administrative record establishes that while petitioner was an inmate at Attica Correctional Facility, he was subjected to a routine frisk as a part of a library callout, during which he was found to be in possession of two, loose United States postage stamps, in direct violation of the Attica facility provision prohibiting loose stamps in the law library. At the tier III disciplinary hearing, petitioner conceded the facts as charged, including that he was in possession of the stamps. Although he claimed he was unaware of the facility provision at the time of the incident, he admitted that the provision was set forth in the Attica inmate handbook. On its face, the record provides substantial evidence of respondent’s determination.

Nonetheless, petitioner contends that the determination is not supported by substantial evidence that he violated an enforceable rule. As a threshold matter, petitioner has not preserved for our consideration his claim that the facility provision is unenforceable because, at the time of the incident, it had not been filed with the Secretary of State, as required by article IV, § 8 of the New York State Constitution (“No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state”). Petitioner admits that he failed to raise the constitutionality of the provision during the administrative proceedings and in his CPLR article 78 petition. Thus, his claim is not properly before us (see Matter of Barbara C., 64 NY2d 866, 868 [1985] [dismissing appeal where the constitutional questions raised on appeal were not raised or preserved in the trial court]; Matter of Rosa v Fischer, 87 AD3d 1252, 1253 [3d Dept 2011] [claim, not raised in an article 78 petition, was unpreserved], lv denied 19 NY3d 802 [2012]; Matter of Mingo v Annucci, 49 AD3d 1106, 1107 [3d Dept 2008] [claim raised for the first time on appeal was unpreserved], lv denied 11 NY3d 707 [2008]; see also Matter of Khan v New York State Dept. of Health, 96 NY2d 879 [2001] [stating that in the article 78 context, the Appellate Division’s power of review is the same as the Court of Appeals’]).

Petitioner’s preserved claims that, in fact, he did not violate the facility provision because he was found to be in possession of the loose stamps outside the library premises, and that any mistake on his part was unintentional, are without merit. Prison rules state explicitly that inmates who attempt “to violate institutional rules of conduct . . . [are] punishable to the same degree as violators of such rules . . . [and] may be cited for attempts . . . whether or not the text of an actual rule contains such term[ ]” (7 NYCRR 270.3 [b]). Petitioner testified during the disciplinary hearing that he was carrying the loose stamps while on his way to the law library. Thus, by his own admission, he is guilty of an attempt to violate the provision, and as a consequence rule 113.22. Furthermore, whether petitioner was aware that he was in violation of a restriction on loose stamps is irrevelant because rule 113.22 applies regardless of the inmate’s intent.

The Appellate Division order should be affirmed because substantial evidence supports respondent’s disciplinary determination that petitioner violated an enforceable prison rule, based on the misbehavior report, petitioner’s admissions, and the Attica law library provision (see People ex rel. Vega, 66 NY2d at 139; Matter of Bryant v Coughlin, 77 NY2d 642, 647 [1991]).

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam, Stein and Fahey concur.

Judgment affirmed, without costs, in a memorandum.