author: Pigott, J.

text:
    [958 NE2d 874, 934 NYS2d 746]
    The People of the State of New York, Respondent, v Edwin Santiago, Appellant.
    Argued September 13, 2011;
    decided October 20, 2011

      POINTS OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Jeffrey I. Dellheim and Steven Banks of counsel), for appellant.
    It was an abuse of discretion for the trial court to deny the defense request to call an identification expert, since there was no corroborating evidence connecting appellant to the crime, and there were grave weaknesses in the identification evidence. (People v LeGrand, 8 NY3d 449; People v Abney, 13 NY3d 251; People v Young, 7 NY3d 40; Ferensic v Birkett, 501 F3d 469; United States v Brownlee, 454 F3d 131; United States v Smithers, 212 F3d 306; United States v Rodriguez-Berrios, 573 F3d 55; United States v Rodriguez-Felix, 450 F3d 1117; United States v Martin, 391 F3d 949; United States v Hall, 165 F3d 1095.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Patrick J. Hynes and Alan Gadlin of counsel), for respondent.
    The trial court exercised sound discretion in ruling that expert testimony on psychological factors that may affect the accuracy of eyewitness identifications was not required in this case. (People v LeGrand, 8 NY3d 449; People v Banks, 16 Misc 3d 929; People v Lee, 96 NY2d 157; People v Kello, 96 NY2d 740; People v Abney, 13 NY3d 251; People v Young, 7 NY3d 40; People v Zohri, 82 AD3d 493, 16 NY3d 901; United States v Williams, 522 F3d 809; People

      v Maldonado, 97 NY2d 522; United States v Libby, 461 F Supp 2d 3.)
   OPINION OF THE COURT

Pigott, J.

In this case, turning on the accuracy of eyewitnesses’ recognition of an assailant’s partially concealed face, we consider whether two additional eyewitness identifications sufficiently corroborated the victim’s identification of the defendant, so as to render expert testimony on eyewitness recognition memory unnecessary. We conclude that they did not, and that it was error to exclude much of the proposed testimony.

I

In the early morning of January 10, 2003, a woman waiting for a train at a Manhattan subway station was attacked by a stranger. She had noticed the man when, after they made eye contact on the platform, he stepped behind a pillar before approaching her. When he was an arm’s length away from her, the man asked whether she was “working.” When she inquired what he meant, he asked if she was an escort. After she looked away and said “No,” the man began assaulting her. She closed her eyes while raising her hands to protect herself. She could not tell whether her assailant had a weapon. After about 10 seconds, the attack stopped, and the assailant fled.

The victim was assisted by workers at the station, who, along with the police, searched fruitlessly for the assailant. An ambulance transported her to a hospital where she was treated. At the hospital, the victim gave detectives a description of her attacker, a Hispanic male, late 20s or early 30s, five feet, eight inches to five feet, nine inches tall, with a mustache and a goatee. To one detective, the victim described her assailant’s “brown[/]yellow mustache.”

The man was wearing a winter jacket, a hooded sweatshirt or “hoodie,” jeans, and a “winter hat.” The jacket, hoodie and hat together covered the assailant’s head in such a way that his face was concealed “[dram the middle of his top lip, down, and from the top of his eyebrows up.” The victim could not see her assailant’s hair, except for his eyebrows and mustache. On the day after the attack, the victim was interviewed by a police artist who created a sketch of the perpetrator.

Police detectives visited the subway station in search of eyewitnesses. Edwin Rios, who had seen the assault, described the assailant as a Hispanic male in his mid to late 20s, with a goatee, wearing a hood. The assailant had passed Rios after the attack, carrying a knife. Later, police located another witness, Pablo Alarcon, who had noticed the assailant beforehand because the man’s facial expression made Alarcon nervous. After the attack, Alarcon saw the assailant put a knife away as he fled. Alarcon also described the perpetrator as a Hispanic male with a goatee. Police officers showed Rios a copy of the artist’s sketch of the perpetrator; Rios thought it was “[m]ore or less” accurate.

On January 19, 2003, a plainclothes police officer patrolling a subway station in Brooklyn noticed a man in a winter jacket, jeans and winter cap selling Metrocard “swipes.” Later, the officer saw the same man engaged in the same activity at the next stop. The officer arrested the man, defendant Edwin Santiago, and his photograph made its way to the detective squad investigating the January 10 attack.

An array comprising photographs of six men and including defendant’s arrest photograph was shown to Alarcon on January 22. He claimed not to recognize defendant or any of the other men in the array. The victim viewed the photographic array on January 24. She testified that, when she saw the photograph of Santiago, it felt as if her “heart stopped and [she] got really scared and [ ] said that that was him.”

Santiago, who had been released, was rearrested the following day, at a shelter for the homeless. A photograph taken after the second arrest shows Santiago with a dark mustache and goatee. He was 30 years old and five feet, five inches in height.

On January 26, the victim identified Santiago in a six-person lineup. According to the victim, when she saw defendant, she felt “really scared” — it was, once again, as if her “heart stopped” and she “knew it was him.” On the same day, Alarcon viewed the lineup. As he later explained at defendant’s suppression hearing and trial, he recognized defendant as the perpetrator of the attack with an “eighty percent” feeling of confidence in his identification, but, because he was concerned about his immigration status, he told the police that he did not recognize anyone. The following day, Alarcon saw a photograph of Santiago in handcuffs, accompanied by police officers, in a Spanish-language newspaper; the article made it clear that Santiago had been identified by the victim of the subway attack and arrested.

Santiago was indicted by a grand jury on a first-degree assault charge on February 6, 2003.

II

No physical evidence linked defendant to the assault. As it appeared at the time of the indictment, the People’s case would be built entirely on the victim’s identification. Attempting to secure expert testimony from Professor Steven Penrod on the psychological factors affecting the accuracy of eyewitness identification, Santiago filed a motion in limine on June 26. The People countered by arguing, among other things, that much of the proposed expert testimony was within the common understanding of jurors, or inapplicable to the facts of the case.

Supreme Court granted defendant’s motion to the extent of ordering a Frye hearing (see Frye v United States, 293 F 1013 [DC Cir 1923]), to determine whether the principles Professor Penrod proposed to describe in his testimony had gained general acceptance in their scientific fields. During subsequent motion practice, defendant gave provisional, summaries of Penrod’s expected testimony. He would testify concerning studies that support various principles proposed by psychologists in the field of eyewitness recognition — exposure time (the amount of time available for viewing a perpetrator affects the witness’s ability to identify the perpetrator); cross-racial and cross-ethnic inaccuracy (non-Hispanic Caucasian eyewitnesses are generally less accurate in identifying Hispanic people than in identifying other non-Hispanic Caucasians); weapon focus (a victim’s focus on the weapon used in an assault can affect ability to observe and remember the attacker); lineup fairness (similarity of fillers to the suspect increases identification accuracy); lineup instructions (police instructions indicating that the police believe the perpetrator to be in the lineup increase the likelihood of false identification); forgetting curve (the rate of memory loss for an event is greatest right after the event and then levels off over time); postevent information (eyewitness testimony about an event often reflects not only what the witness actually saw but also information the witness obtained later); wording of questions (eyewitness testimony about an event can be affected by how questions put to the witness during investigation are worded); unconscious transference (eyewitnesses sometimes identify as the culprit an individual familiar to them from other situations or contexts); simultaneous versus sequential lineups (witnesses are more likely to make mistakes when they view simultaneous lineups than when they view sequential lineups); eyewitness confidence issues (an eyewitness’s confidence level is not a good predictor of eyewitness accuracy, but eyewitness confidence is the major determinant in whether an identification is believed by jurors), and confidence malleability (eyewitnesses’ confidence levels can be influenced by factors unrelated to identification accuracy).

After defendant’s case was transferred to a different Supreme Court Justice, defendant renewed his motion to admit expert testimony. On December 19, 2003, Supreme Court denied defendant’s motion, without holding a Frye hearing. While noting that there was “no corroboration of the victim’s identification,” Supreme Court nonetheless ruled that the case was not “an appropriate one for an expert identification witness” (2 Misc 3d 652, 653 [Sup Ct, NY County 2003]). Supreme Court found that the case did not involve a cross-racial identification as contemplated by the psychological literature, and that weapon focus was not relevant because the victim was not aware of any weapon. Supreme Court further reasoned that testimony about how lineup instructions can influence an identification would be inappropriate, because the victim here “must have realized that the person whose photograph she selected would be in the lineup” (id. at 654). The court rejected expert testimony on postevent information, the forgetting curve, the wording of questions, and eyewitness confidence issues (including confidence malleability), on the ground that “by helping to create the sketch and approving its final version, the victim went on the record, for better or worse, about the facial features of her attacker long before any of those topics potentially could influence her line-up identification” (id. at 654). The court found evidence about simultaneous versus sequential lineups inappropriate on the basis that “¡j]urors are not experts on constitutional law and procedure, and cannot be educated about those topics during a trial” (id. at 655). In addition, Supreme Court noted that, in Frye hearings in other cases, postevent information and unconscious transference had been found to be not generally accepted within the relevant scientific community. Supreme Court concluded by inviting the parties to “suggest ways to address, during jury selection and in the final instructions, the topic of a witness’s confidence if one side feels that the court’s charge on ‘certainty’ is not adequate to cover ‘confidence’ ” (id. at 655). Defense counsel objected to the ruling.

III.

On December 21, 2003, Alarcon told an assistant district attorney that he had in fact recognized someone in the January 2003 lineup. Shown photographs of that lineup, he identified defendant as the person he had recognized from the attack. On January 20, 2004, Rios was shown a new lineup, in which he identified Santiago.

Following a suppression hearing, at which his motions were denied, Santiago was tried before a jury. The victim identified Santiago at the trial, insisting that there was no doubt in her mind that he was her assailant. Rios and Alarcon also identified defendant; the latter repeated that he was only “eighty percent sure” of his identification. The jury heard about the prior photographic and lineup identifications.

After the defense rested, Santiago renewed his objection to Supreme Court’s refusal to admit the expert testimony, moving to reopen his case. Supreme Court denied the motion.

Defense counsel’s summation stressed that certainty of identification was not equivalent to accuracy of identification. As promised, Supreme Court’s final charge told the jury to “[k]eep in mind that the witness’s confidence or lack of confidence in his or her testimony is not necessarily indicative of accuracy of identification.”

On February 5, 2004, the jury found Santiago guilty of assault in the first degree. Supreme Court convicted him accordingly, sentencing him to 25 years imprisonment, to be followed by five years postrelease supervision.

Santiago timely appealed, raising several issues he has since abandoned, as well as the argument we now consider — his claim that Supreme Court abused its discretion in denying his request for expert testimony on eyewitness identification. On May 6, 2010, a fractured Appellate Division affirmed Supreme Court’s judgment (75 AD 3d 163 [2010]). Two Justices concluded that there was no abuse of discretion; another concurred, in an opinion expressing the view that any error was harmless. The two dissenting Justices would have held that Supreme Court abused its discretion, and one of the dissenting Justices granted defendant leave to appeal to this Court (2010 NY Slip Op 81574[U] [2010]). We now reverse.

IV

A trial court may, in its discretion, admit, limit, or deny the testimony of an expert on the reliability of eyewitness identification,

weighing a request to introduce such expert testimony “against other relevant factors, such as the centrality of the identification issue and the existence of corroborating evidence” (People v Lee, 96 NY2d 157, 163 [2001]). Because mistaken eyewitness identifications play a significant role in many wrongful convictions, and expert testimony on the subject of eyewitness recognition memory can educate a jury concerning the circumstances in which an eyewitness is more likely to make such mistakes, “courts are encouraged ... in appropriate cases” to grant defendants’ motions to admit expert testimony on this subject (People v Drake, 7 NY3d 28, 31 [2006], citing People v Young, 7 NY3d 40 [2006]).

In People v LeGrand (8 NY3d 449 [2007]), we set out standards governing the discretion of trial courts in regard to the admission of expert testimony on eyewitness identification. Le-Grand established a two-stage inquiry for considering a motion to admit such testimony. The first stage is deciding whether the case “turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime” (LeGrand, 8 NY3d at 452). If the trial court finds itself with such a case, then it must proceed to the second stage, which involves the application of four factors. The court must decide whether the proposed “testimony is (1) relevant to the witness’s identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror” (id.). If, on the other hand, sufficient evidence corroborates an eyewitness’s identification of the defendant, then there is no obligation on the part of the trial court to proceed to the second stage of analysis, because testimony concerning eyewitness identifications is unnecessary (see e.g. Young, 7 NY3d at 45).

In LeGrand, one witness to a murder, who saw the perpetrator close up, identified the defendant as the killer in a photographic array and in a lineup, conducted seven years later. Two other witnesses, who identified the defendant at trial after they had failed to identify him in a photographic array, had seen his photograph in the array again in the district attorney’s office the night before they testified. No physical evidence connected defendant to the killing. Defendant sought to introduce expert testimony on research concerning factors that may influence the perception and memory of eyewitnesses and the reliability of their identifications. The trial court, after a Frye hearing, precluded the testimony on the ground that the expert’s conclusions were not generally accepted in the relevant scientific community.

We held that, with respect to much of the requested expert testimony on eyewitness identifications, the hearing court abused its discretion in failing to admit the testimony. In particular, we ruled that there was sufficient evidence to confirm that the principles underlying the expert’s proposed testimony regarding the lack of correlation between confidence and accuracy of identification, confidence malleability, and the effect of postevent information on identification accuracy were generally accepted by social scientists and psychologists working in the field, and that testimony concerning these issues should not have been precluded (LeGrand, 8 NY3d at 458). By contrast, we ruled that there was insufficient evidence to confirm that the principles underlying the expert’s testimony on weapon focus were generally accepted by the relevant scientific community, so that this testimony was properly excluded (id.).

We returned to the theme of expert testimony on eyewitness identification in People v Abney and People v Allen (13 NY3d 251 [2009]). In Abney, a teenage girl was robbed of a necklace, on a subway station stairway, by a stranger wielding a large knife. The only evidence against defendant was the eyewitness identifications (in a photographic array and in a lineup) of the girl. Defendant requested permission to elicit expert testimony about the effects of event stress, exposure time, event violence and weapon focus, cross-racial identification, lineup instructions, and double-blind lineups. In Allen, two masked men robbed a barbershop; one carried a knife. Two witnesses recognized the robber with the knife as an individual whom they knew from the neighborhood, and then identified defendant as that person in a photographic array. Defendant sought to elicit testimony from an expert concerning the effects of event stress, weapon focus, lack of correlation between confidence and accuracy, and unconscious transference. In both cases, expert testimony on eyewitness identifications was excluded.

In Abney, where “it was clear that there was no evidence other than [the victim’s] identification to connect defendant to the crime, and she did not describe him as possessing any unusual or distinctive features or physical characteristics” (13 NY3d at 268), we held that the trial court abused its discretion in failing to allow expert testimony on the subject of witness confidence and in refusing to hold a Frye hearing with regard to the expert’s proposed testimony on the effect of event stress, exposure time, event violence and weapon focus, and cross-racial identification.

In Allen, on the other hand, the case against defendant did not depend exclusively on one eyewitness’s identification, and we ruled that the trial court acted within its discretion.

“Allen is not a ‘case [that] turns on the accuracy of eyewitness identifications [where] there is little or no corroborating evidence connecting the defendant to the crime’ (LeGrand, 8 NY3d at 452). Critically, [a second eyewitness] independently identified defendant as the knife-wielding robber who searched him and stood nearby throughout the course of the robbery. And defendant was not a stranger to either [eyewitness].” (13 NY3d at 269.)

Whether a victim’s or other eyewitness’s identification of a defendant is sufficiently corroborated by other eyewitness identifications, so that the trial court need not proceed to the second stage of the LeGrand analysis, is dependent on the circumstances of the case. In LeGrand, no physical evidence linked the defendant to the crime, and the two doubtful eyewitness identifications did not sufficiently corroborate the identification of the eyewitness who saw the perpetrator close up. However, even when the evidence that a defendant was the perpetrator of a crime consists entirely of eyewitness identifications, the case is not necessarily one in which “there is little or no corroborating evidence” (8 NY3d at 452). Thus, in Allen, we held that the second eyewitness’s identification of the defendant constituted evidence corroborating an eyewitness identification (13 NY3d at 269). We reached that conclusion because the corroborating identification possessed strong indicia of accuracy. In particular, the defendant in Allen was known to the second eyewitness, who recognized him during the robbery (id.).

V

In the present case, when Supreme Court denied Santiago’s in limine motion in December 2003, the evidence disclosed by the People consisted of the victim’s identifications of him in a photographic array and a lineup. At that time, as Supreme Court noted, the case turned on the accuracy of a single eyewitness identification and there was no corroborating evidence connecting the defendant to the crime. The issue therefore becomes whether the four factors enumerated in the second stage of the LeGrand analysis apply to the proposed testimony.

Supreme Court abused its discretion when it refused to allow testimony on studies showing that eyewitness confidence is a poor predictor of identification accuracy and on studies regarding confidence malleability. Undoubtedly, such testimony is relevant to this case in which the primary evidence against defendant — the only evidence at the time of Supreme Court’s first ruling — was the victim’s identification, and she expressed her recognition with subjective certainty. Moreover, the principles concerning confidence about which the expert was to testify are generally accepted within the relevant scientific community, and are beyond the ken of the average juror (Abney, 13 NY3d at 268; LeGrand, 8 NY3d at 458). For similar reasons, Supreme Court abused its discretion when it excluded expert testimony on the effects of postevent information on eyewitness memory (see LeGrand, 8 NY3d at 458).

Given that the People did not dispute that the victim is a non-Hispanic Caucasian, the proposed testimony on inaccuracy of identifications of Hispanic people by non-Hispanic Caucasians appears relevant, and is beyond the ken of the average juror. Supreme Court should also have given more adequate consideration to whether the proposed testimony concerning exposure time, lineup fairness, the forgetting curve, and simultaneous versus sequential lineups was relevant to this case and beyond the ken of the average juror, and if necessary held a Frye hearing, to determine whether these factors are generally accepted as reliable within the relevant scientific community.

By contrast, testimony concerning weapon focus, the effects of lineup instructions, wording of questions, and unconscious transference would have been irrelevant. The victim was not aware that her assailant had a weapon, and the record contains no evidence of improper lineup instructions, suggestive wording, or the presence of defendant’s image in photographs the victim saw prior to identifying him in the photographic array she viewed. In these respects, exclusion was proper.

II

A separate question is whether Supreme Court abused its discretion when, after the defense had rested, the court denied defendant’s renewed request to call an expert witness on eyewitness identification. By this time, the People had introduced evidence of Alarcon’s and Rios’s identifications of defendant, in addition to the victim’s.

The People argue that, because of this additional evidence, this is not a case in which “there is little or no corroborating evidence connecting the defendant to the crime” (Le-Grand, 8 NY3d at 452), and consequently it could not have been an abuse of discretion to exclude the requested expert testimony. We disagree.

Here, as in LeGrand, several factors call the corroborating identifications into question. Like the victim, Alarcon saw only part of the perpetrator’s face. Alarcon identified defendant as the perpetrator with only 80% confidence. It is also possible that Alarcon’s December 2003 identification, using the photographs of the January 2003 lineup, was tainted by his memory of the photograph of defendant he had seen in the Spanish-language newspaper. Moreover, Rios’s identification of defendant may have been influenced by his memory of the police artist’s sketch of the assailant, calling into question the independence of this evidence from the victim’s own identification. Taking into account all these circumstances, we do not consider the corroborating evidence sufficient to obviate the second stage of the LeGrand analysis.

Supreme Court, therefore, having erred in certain respects in denying defendant’s pretrial motion to admit expert testimony regarding eyewitness testimony, erred in the same respects in denying defendant’s end-of-trial motion to reopen the case and admit the expert testimony. Moreover, in its second ruling, Supreme Court should have given specific consideration to the proposed testimony concerning unconscious transference. That testimony would have been relevant, given that Alarcon saw a photograph of Santiago, and Rios saw a sketch of the perpetrator based on the victim’s description, and familiarity with these images may have influenced these eyewitnesses’ identifications.

Finally, Supreme Court’s errors were not harmless. Trial error is only harmless when there is overwhelming proof of the defendant’s guilt and no significant probability that the jury would have acquitted the defendant were it not for the error (People v Crimmins, 36 NY2d 230, 242 [1975]). Here, the proof of defendant’s guilt was not overwhelming; therefore, the errors cannot be regarded as harmless. We need not decide the probability that the verdict would have been different if the expert testimony had not been excluded.

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

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Jones concur.

Order reversed, etc.

      . We decided otherwise, with respect to postevent information, in People v LeGrand (8 NY3d 449, 458 [2007]).

      . However, we ruled that expert testimony on lineup instructions and double-blind lineups would have been irrelevant to the victim’s identification of defendant.

      . While we had not yet decided LeGrand at the time Supreme Court reached its decision, the trial court should have held a Frye hearing to investigate the scientific acceptability of the principles related to eyewitness confidence and postevent information.

      . We note that the fact that the victim assisted in the creation of an artist’s sketch of her attacker does not render the expert testimony irrelevant.


source: Caselaw Access Project

author: Jones, J. Read, J.

license: Public Domain

text:
    [958 NE2d 884, 934 NYS2d 756]
    The People of the State of New York, Respondent, v Carlos Ventura, Appellant. The People of the State of New York, Respondent, v Damian Gardner, Appellant.
    Argued September 8, 2011;
    decided October 25, 2011

      POINTS OF COUNSEL

      Appellate Advocates, New York City (Erin R. Collins and Lynn W.L. Fahey of counsel), for appellant in the first above-entitled action.
    Appellant was entitled to have the Appellate Division consider his appeal, which raised only a dismissal issue, despite his involuntary deportation. (People v Pride, 3 NY2d 545; Griffin v Illinois, 351 US 12; Evitts v Lucey, 469 US 387; People v Crimmins, 36 NY2d 230; People v Rivera, 39 NY2d 519; People v Montgomery, 24 NY2d 130; People v Harrison, 85 NY2d 794; People v Borum, 8 NY2d 177; People v Bleakley, 69 NY2d 490; In re Winship, 397 US 358.)

      Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for respondent in the first above-entitled action.
    The Appellate Division properly exercised its discretion by dismissing defendant’s appeal because he was not available to obey the mandate of the court. (People v Diaz, 7 NY3d 831; People v Genet, 59 NY 80; People v Parmaklidis, 38 NY2d 1005; People v Del Rio, 14 NY2d 165, 379 US 939; People v Watson, 99 NY2d 570; People v Johnson, 99 NY2d 570; People v Mongen, 76 NY2d 1015; People v Headley, 72 NY2d 931; People v Jiminez, 71 NY2d 963; People v Sullivan, 28 NY2d 900.)

      Appellate Advocates, New York City (Erica Horwitz and Lynn W.L. Fahey of counsel), for appellant in the second above-entitled action.
    Appellant, a first offender with an American wife and young child, who was convicted of misdemeanor drug possession based on the same evidence for which he was acquitted of felony charges, was entitled to have the Appellate Division consider his appeal, which raised only a dismissal issue, despite his involuntary deportation. (People v Pride, 3 NY2d 545; Griffin v Illinois, 351 US 12; Evitts v Lucey, 469 US 387; People v Bleakley, 69 NY2d 490; People v Callahan, 80 NY2d 273; People v Pollenz, 67 NY2d 264; In re Winship, 397 US 358; Speiser v Randall, 357 US 513; Davis v United States, 160 US 469; People v Antommarchi, 80 NY2d 247.)

      Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for respondent in the second above-entitled action.
    The Appellate Division properly exercised its discretion to dismiss defendant’s appeal. (People v Diaz, 7 NY3d 831; People v Genet, 59 NY 80; People v Parmaklidis, 38 NY2d 1005; People v Del Rio, 14 NY2d 165, 379 US 939; People v Watson, 99 NY2d 570; People v Johnson, 99 NY2d 570; People v Mongen, 76 NY2d 1015; People v Headley, 72 NY2d 931; People v Jiminez, 71 NY2d 963; People v Sullivan, 28 NY2d 900.)

      Immigrant Defense Project, New York City (S. Isaac Wheeler of counsel), for Immigrant Defense Project and another, amici curiæ in the first and second above-entitled actions.
    I. The routine dismissal of appeals in reliance on People v Diaz (7 NY3d 831 [2006]) critically undervalues the importance of intermediate appellate review for noncitizen defendants. (Evitts v Lucey, 469 US 387; Griffin v Illinois, 351 US 12; Mojica v Reno, 970 F Supp 130; United States v Pantin, 155 F3d 91; Pino v London, 349 US 901; Marino v Immigration & Naturalization Serv., 537 F2d 686; Planes v Holder, 652 F3d 991; Garcia-Maldonado v

      Gonzales, 491 F3d 284; United States v Saenz-Gomez, 472 F3d 791; Walcott v Chertoff, 517 F3d 149.) II. Denial of intermediate appellate review to defendants seeking a new trial erroneously presumes that a deported defendant would not be able to reenter the country for a new trial. (People v Diaz, 7 NY3d 831; People v Rosario, 26 AD3d 212; People v Zapata, 31 AD3d 1047; Pickering v Gonzales, 465 F3d 263; Saleh v Gonzales, 495 F3d 17; Renteria-Gonzalez v Immigration & Naturalization Serv., 322 F3d 804; Discipio v Ashcroft, 417 F3d 448; Cardoso-Tlaseca v Gonzales, 460 F3d 1102; Luna v Holder, 637 F3d 85; Pruidze v Holder, 632 F3d 234.) III. The complexities of immigration law and the paucity of records of immigration court proceedings counsel against a rule requiring the intermediate courts to determine whether a conviction was a but-for cause of appellant’s removal. (Drax v Reno, 338 F3d 98; Martinez v Mukasey, 551 F3d 113; Garcia v Holder, 638 F3d 511; Brown v Ashcroft, 360 F3d 346; United States v Hamdi, 432 F3d 115.)
   OPINION OF THE COURT

Jones, J.

In these criminal proceedings, the Appellate Division, pursuant to CPL 470.60 (1), dismissed defendants’ direct appeals from their judgments of conviction prior to their hearing and disposition. Both defendants filed timely notices of appeal, but were involuntarily deported by the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) while their appeals were pending. The common issue presented is whether the Appellate Division abused its discretion in dismissing these appeals. We hold it did.

Following a jury trial, defendant Carlos Ventura was convicted of criminal possession of stolen property in the third degree, unauthorized use of a vehicle in the third degree, and unlawful operation of a motor vehicle on a public highway. Ventura filed a timely notice of appeal and submitted an appellate brief asserting that the evidence was legally insufficient to establish that he knowingly operated a stolen motor vehicle, and that his conviction was against the weight of the evidence.

On July 23, 2008, Ventura, a citizen of the Dominican Republic and a legal permanent resident of the United States, was paroled to the custody of ICE. He was subsequently deported on September 12, 2008, prior to the resolution of his appeal which was scheduled for oral argument on January 8, 2009. After defense counsel apprised the prosecution and the Appellate Division of the deportation, the People moved to dismiss the appeal on grounds that Ventura was “unavailable to obey [the court’s] mandate.” The Appellate Division granted the motion to dismiss. A Judge of this Court granted defendant leave to appeal.

Defendant Damian Gardner was convicted of criminal possession of a controlled substance in the seventh degree. He filed a timely notice of appeal and appellate brief, contending that the evidence was legally insufficient to prove guilt beyond a reasonable doubt. Gardner, a first-time offender, completed a 60-day term of incarceration and was transferred to the custody of ICE. On February 26, 2009, prior to the determination of his appeal, Gardner was deported to Jamaica. The People’s motion to dismiss Gardner’s pending appeal, on the ground that he was no longer subject to the mandate of the court, was granted. A Judge of this Court granted defendant leave to appeal.

Defendants contend that the dismissal of their appeals was fundamentally unfair because their deportations were not purposeful absences that would disentitle them to appellate review. The prosecution responds that the Appellate Division did not err as it adhered to precedent and well settled principles compelling the dismissal of appeals pursued by physically absent defendants. We find the People’s position unavailing as these appeals present circumstances materially distinguishable-from our precedent. As such, we reverse in both cases.

Pursuant to CPL 450.10, which codifies a criminal defendant’s common-law right to appeal to an intermediate appellate court, Ventura and Gardner had an absolute right to seek appellate review of their convictions (see People v Montgomery, 24 NY2d 130, 132 [1969] [“every defendant has a fundamental right to appeal his conviction”]). By dismissing the appeals because of the ostensible inability of defendants to obey the mandate of the court, the Appellate Division abused its discretion. Generally, courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that “it [is] essential to any step, on behalf of a person charged with [a] felony after indictment found, that he should be in custody; either actual ... or constructive” as “[t]he whole theory of criminal proceedings is based upon the idea of the defendant being in the power, and under the control of the court, in his person” (People v Genet, 59 NY 80, 81 [1874]). Accordingly, dismissals have been predicated primarily on a policy-based rationale that courts should not aid in the deliberate evasion of justice through continued consideration of appeals (Degen v United States, 517 US 820, 824 [1996]; Ortega-Rodriguez v United States, 507 US 234, 242 [1993]; People v Sullivan, 28 NY2d 900 [1971]; People v Hernandez, 266 AD2d 116 [1st Dept 1999]; People v Johnson, 191 AD2d 279 [1st Dept 1993]).

Here, this policy concern is not present. Ventura and Gardner were involuntarily removed from the country and their extrication lacked the scornful or contemptuous traits that compel courts to dismiss appeals filed by those who elude criminal proceedings. Rather, they, and other similarly situated defendants, have a greater need to avail themselves of the appellate process in light of the tremendous ramifications of deportation.

More significantly, the complete lack of intermediate appellate review materially distinguishes the instant appeals from prior cases. The People allude to this Court’s precedent in People v Del Rio (14 NY2d 165 [1964]), People v Parmaklidis (38 NY2d 1005 [1976]) and People v Diaz (7 NY3d 831 [2006]) as plainly dispositive of the instant appeals. However, in those cases, the dismissed appeals were pending before this Court and the defendants had already received considered intermediate appellate review, in satisfaction of their statutory right. While it was within this Court’s discretion, as a court of permissive appellate jurisdiction, to dismiss those appeals, the Appellate Divisions do not enjoy such unencumbered latitude. The invariable importance of the fundamental right to an appeal, as well as the distinct role assumed by the Appellate Divisions within New York’s hierarchy of appellate review (see NY Const, art VI, § 5; see e.g. CPLR 5501 [c]), makes access to intermediáte appellate courts imperative.

As we have previously recognized:

“Unlike this court which, with few exceptions, passes on only questions of law, intermediate appellate courts are empowered to review questions of law and questions of fact. They do so in both civil cases and criminal cases. Indeed, this unique factual review power is the linchpin of our constitutional and statutory design intended to afford each litigant at least one appellate review of the facts” (People v Bleakley, 69 NY2d 490, 493-494 [1987] [citations omitted]).

While the avenues of appeal to this Court are limited and its purview strictly prescribed, the intermediate appellate courts possess expansive power given their fact-finding function as well as their ability to reach unpreserved issues pursuant to their “interest of justice” authority (see CPL 470.15 [6]). As such, these broad review abilities empower the Appellate Divisions to play a uniquely critical role in the fair administration of justice, especially when a defendant’s path of appeal is often foreclosed after a final determination by the intermediate appellate court (see Karger, Powers of the New York Court of Appeals § 1:1 [3d ed rev 2005]).

The People direct us to an apparent point of tension stemming from the discretionary authority of the Appellate Divisions to dismiss appeals prior to their disposition. CPL 470.60 (1) provides that

“[a]t any time after an appeal has been taken and before determination thereof, the appellate court in which such appeal is pending may, upon motion of the respondent or upon its own motion, dismiss such appeal upon the ground of mootness, lack of jurisdiction to determine it, failure of timely prosecution or perfection thereof, or other substantial defect, irregularity or failure of action by the appellant with respect to the prosecution or perfection of such appeal.”

While we acknowledge the broad authority of the intermediate appellate courts to dismiss pending appeals (see Taveras, 10 NY3d at 233), this discretionary power cannot be accorded such an expansive view as to curtail defendants’ basic entitlement to appellate consideration. As a matter of fundamental fairness, all criminal defendants shall be permitted to avail themselves of intermediate appellate courts as “the State has provided an absolute right to seek review in criminal prosecutions” (Montgomery, 24 NY2d at 132).

Finally, in our view, the perceived inability to obey the mandate of the court is not implicated here. In other jurisdictions, defendants who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court (see People v Puluc-Sique, 182 Cal App 4th 894, 899, 106 Cal Rptr 3d 365, 369 [Ct App 2010]). Moreover, disposition of the discrete appellate issues would result in either an affirmance or outright dismissal of the convictions; neither outcome would require the continued legal participation of defendants.

Accordingly, the orders should be reversed and the cases remitted to the Appellate Division for consideration of the merits of the appeal to that court.

Read, J.

(dissenting in Ventura and concurring in Gardner). Criminal Procedure Law § 470.60 vests the Appellate Division with discretion to dismiss a pending appeal, subject to our review for legal error or abuse of discretion only. The majority now holds that it is always an abuse of discretion for the Appellate Division to dismiss the criminal appeal of an involuntarily deported noncitizen on the sole basis of unavailability. I respectfully dissent. While I concur in the result in Gardner on abuse-of-discretion grounds, I would affirm in Ventura.

I

The majority offers three rationales for its holding: (1) involuntarily deported noncitizen defendants have a “great[ ] need” for their appeals to be heard because of the “tremendous ramifications of deportation” (majority op at 680); (2) every criminal defendant possesses a statutory right to intermediate appellate review (id. at 682); and (3) in other jurisdictions, involuntarily deported noncitizens “who continue prosecution of their appeals through representation of counsel are not deemed unavailable to obey the mandate of the court” (id.). These suggested rationales do not furnish a basis for us to replace the Appellate Division’s statutorily conferred discretion to dismiss a pending criminal appeal with a categorical rule that strips the court of this discretion when the defendant happens to be an involuntarily deported noncitizen.

First, deportation indisputably entails “tremendous ramifications.” By definition, someone who is involuntarily deported would have preferred to continue to reside in this country, presumably because of the unwelcome “ramifications” of removal. But that is not a reason for a criminal appeal to go forward in those cases where the appeal’s outcome would have no bearing on the defendant’s immigration status — i.e., cases in which the conviction being appealed did not cause the defendant’s deportation or prevent or complicate his potential return to the United States. Where the Appellate Division has information indicating that such a causal connection exists, I agree that it would be an abuse of discretion to dismiss the appeal on the sole basis of the defendant’s unavailability. But absent such information, the Appellate Division may, if it so chooses, dismiss the appeal of a defendant who is involuntarily physically absent from the jurisdiction, and we are not authorized to second-guess this discretionary decision.

Second, no one disputes that all defendants have “an absolute right to seek appellate review of their convictions” at the Appellate Division (majority op at 679). But this right is qualified by the Appellate Division’s “broad discretion” to dismiss a criminal appeal, “whether on a party’s motion or sua sponte, for any reason that will cause or has caused substantial interference with the appellate process” (Preiser, Practice Commentaries, McKinney’s Cons Laws of NY, Book 11A, CPL 470.60, at 352), as already noted.

In People v Diaz (7 NY3d 831 [2006]), we ourselves exercised the discretion afforded “the appellate court” by Criminal Procedure Law § 470.60 (1) to dismiss the appeal of an involuntarily deported noncitizen on the ground that he was not presently available to obey the court’s mandate. As was also the case with defendants Ventura and Gardner, the dismissal in Diaz was without prejudice to a subsequent motion to reinstate the appeal in the event the defendant was permitted to reenter the country and returned to New York.

Apparently unwilling to overrule a recent precedent, the majority observes that we are “a court of permissive appellate jurisdiction” while the Appellate Division “do[es] not enjoy such unencumbered latitude” and assumes a “distinct role . . . within New York’s hierarchy of appellate review” because of its “fact-finding function [and] ability to reach unpreserved issues” (majority op at 681). But Criminal Procedure Law § 470.60 (1) makes no distinction on any basis (much less differences in appellate review powers) between our discretionary authority to dismiss a pending criminal appeal and the Appellate Division’s.

Finally, the majority cites only one decision of an intermediate appellate court in a sister state — People v Puluc-Sique (182 Cal App 4th 894, 106 Cal Rptr 3d 365 [2010]) — as evidence that other jurisdictions adhere to the new rule it has fashioned, and even this case is not on point. In Puluc-Sique, the People argued that the court was required to dismiss the defendant’s appeal because deportation placed him beyond the jurisdiction of California’s courts (182 Cal App 4th at 899, 106 Cal Rptr 3d at 369). The court rejected this proposition, but did not adopt the majority’s position — i.e., that a court may never dismiss the criminal appeal of an involuntarily deported noncitizen on the sole basis of unavailability. Instead, the court concluded that “[a]ppellate disentitlement is a discretionary doctrine that must be applied in a manner that takes into account the equities of the individual case,” and that the equities present in this particular individual case did not favor dismissal of the defendant’s appeal (182 Cal App 4th at 901, 106 Cal Rptr 3d at 370 [emphasis added]).

Indeed, although the arguably relevant out-of-state cases are few in number, not one of our sister states takes the approach adopted by the majority. Instead, these decisions appear to turn on whether the conviction being appealed caused the defendant’s deportation or prevented or complicated his potential return to the United States. For example, over 20 years ago the Supreme Court of Washington in State v Ortiz (113 Wash 2d 32, 774 P2d 1229 [1989]) reversed the intermediate appellate court’s judgment dismissing an involuntarily deported noncitizen’s criminal appeal, but on the basis that the conviction sought to be appealed precluded the defendant’s return to this country (see also Cuellar v State, 13 SW3d 449, 451 [Tex App 2000] [appeal of narcotics conviction is not moot where conviction prevents individual from reentering United States or obtaining visa]; People v Garcia, 89 P3d 519, 520 [Colo App 2004] [appeal dismissed as moot “because defendant is no longer in the United States and is subject to a permanent bar on attempted reentry into this country, he will not serve his sentence here, and thus, the outcome of the appeal has no practical effect upon him”]).

Here, defendant Damian Gardner was deported for overstaying his visa. The People informed the Appellate Division, however, that defendant’s wife, an American citizen, had “filed an 1-485 petition [with the United States Immigration and Customs Enforcement] requesting that defendant’s immigration status be adjusted, but that the petition was denied because of defendant’s criminal record”-, and that “defendant’s conviction did affect his immigration status in that his wife’s petition may have been granted had he not been convicted of the crime in this case” (emphasis added). In light of these circumstances, I conclude that the Appellate Division abused its discretion when it dismissed Gardner’s appeal on the sole basis of his unavailability to obey the court’s mandate. Conversely, there is nothing in the record to suggest that the conviction for which defendant Carlos Ventura sought review — as opposed to his unrelated, and unappealed, judgment of conviction and sentence for burglary — caused his deportation or would prevent or complicate his potential return to the United States. Nor is there any other information in the record that would support a determination on our part that the Appellate Division abused its discretion when it dismissed Ventura’s appeal on the ground that he was unavailable to obey the court’s mandate.

II

The majority’s decision seems to be motivated, at least in part, by a suspicion that the Appellate Divisions have interpreted Diaz to endorse the dismissal of the criminal appeals of involuntarily deported noncitizen defendants on unavailability grounds in all cases, without exception. To the extent this is so (and I do not see evidence of it), the proper corrective for blanket dismissals is not a rule requiring the blanket denial of dismissals, which is what the majority has created. Criminal Procedure Law § 470.60 sets the standard: the Appellate Division possesses discretion to consider dismissal motions on their individual merits, subject to our review for legal error or abuse of discretion. Even assuming that we may properly curb the Appellate Division’s discretion in a way that section 470.60 does not, this would seem to be very poor policy: especially in an era of increasing case loads and fiscal constraints, the Appellate Division should be able to decide not to spend its time on an appeal whose outcome would have no practical effect because the defendant has been deported from this country and enjoys no discernible prospects for reentry.

Chief Judge Lippman and Judges Ciparick and Smith concur with Judge Jones; Judge Read dissents and votes to affirm in a separate opinion in which Judges Graffeo and Pigott concur.

In People v Ventura: Order reversed, etc.

Chief Judge Lippman and Judges Ciparick and Smith concur with Judge Jones; Judge Read concurs in result in a separate opinion in which Judges Graffeo and Pigott concur.

In People v Gardner: Order reversed, etc.

       “Neither of these appeals implicate the so-called fugitive disentitlement doctrine, which allows appellate courts to dismiss appeals of fugitive defendants who are at large while their appeals are pending, the rationale being that the defendant’s escape dis-entitles the defendant to call upon the resources of the Court for determination of his claims. Considerations underlying the doctrine include, among other things, that the courts should not expend resources hearing an appeal when any judgment they would issue could not be enforced, nor should courts be required to adjudicate the merits of a criminal case after the convicted defendant who has sought review escapes from the restraints placed upon him pursuant to the conviction” (People v Taveras, 10 NY3d 227, 232 [2008] [citations and internal quotation marks omitted]).

      . Defendants did not advocate for the categorical rule fashioned by the majority. They instead argued only that “a defendant who has a pending direct appeal prior to deportation and raises only dismissal issues is entitled to have that appeal decided on the merits by the Appellate Division” (emphasis added). As a result, the People had no notice that the Court was considering the unqualified rule it has now adopted, and consequently no opportunity to brief us about any practical problems or infelicitous effects of such a rule.

      . There would seem to be little chance for this to happen, though, because the Second Circuit has traditionally followed the finality rule whereby an alien has the right to exhaust all direct appeals before the underlying criminal conviction can serve as the basis for removal (see Walcott v Chertoff, 517 F3d 149, 155 [2d Cir 2008] [“(t)he decision to appeal a conviction . . . suspends an alien’s deportability . . . until the conviction becomes final”]). Amici curiae contend, however, that the case law in the Second Circuit is less settled than Walcott seems to indicate, and that United States immigration authorities may be expected to continue to seek to remove defendants whose appeals are pending in the Appellate Division and, in any event, often transfer such defendants to other jurisdictions where the finality rule has been eliminated.


text:
    [950 NE2d 137, 926 NYS2d 401]
    The People of the State of New York, Respondent, v Shawn Hunter, Appellant.
    Argued April 28, 2011;
    decided June 2, 2011

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Matthew J. Clark of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Joseph D. Waldorf of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for consideration of issues raised but not determined on the appeal to that court.

It is well settled that a defendant seeking suppression of evidence obtained as the result of an alleged illegal search must prove standing to challenge the search (see People v RamirezPortoreal, 88 NY2d 99, 108 [1996]). At issue in this appeal is the related question of whether the People must timely object to a defendant’s failure to prove standing in order to preserve that issue for appellate review. We previously answered this question in the affirmative in People v Stith (69 NY2d 313 [1987]), and reiterate that holding today.

In October 2005, officers effected a warrantless entry into an apartment, apprehended defendant and recovered buy money from a “buy and bust” transaction that defendant had engaged in with an undercover officer. Defendant moved to suppress the buy money, claiming that it was obtained as the result of an unlawful warrantless entry and search of his home. The People countered that the entry was justified under the doctrines of “exigent circumstances” and/or “hot pursuit.” They also contended that the search of the apartment was supported by the written consent of the tenant, defendant’s mother.

At the suppression hearing, the People called two police officers who were engaged in the pursuit; defendant called no witnesses. Supreme Court denied defendant’s motion to suppress, upholding the warrantless entry based upon the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. Since the issue of defendant’s standing was not raised, the court had no occasion to rule on that issue.

Defendant then pleaded guilty to criminal possession and sale of a controlled substance in the third degree and promptly appealed his conviction arguing that Supreme Court erred in its suppression ruling. The Appellate Division affirmed the conviction, albeit on a ground that had not been presented to the suppression court, holding that defendant “failed to establish that he had standing to challenge the search of the apartment in which he was arrested” (70 AD3d 1343, 1344 [4th Dept 2010]). In light of that determination, the court declined to consider defendant’s remaining arguments. A Judge of this Court granted defendant leave to appeal and we now reverse.

In People v Stith, this Court refused to consider the People’s argument that the defendant lacked standing to challenge the legality of the seizure of a weapon, noting that such argument “was raised for the first time at the Appellate Division and thus is not preserved for our review” (69 NY2d at 320). Since our pronouncement in Stith, however, three of the four appellate departments have issued rulings counter to this holding, concluding that because it is the defendant’s initial burden to establish standing, the People may raise defendant’s lack of standing for the first time on appeal (see People v McCall, 51 AD3d 822, 822 [2d Dept 2008], lv denied 11 NY3d 856 [2008]; People v Hooper, 245 AD2d 1020, 1021 [4th Dept 1997]; People v Banks, 202 AD2d 902, 904 [3d Dept 1994], revd on other grounds 85 NY2d 558 [1995]; but see People v Graham, 211 AD2d 55, 57-58 [1st Dept 1995], lv denied 86 NY2d 795 [1995] [finding unpreserved the People’s contention that the defendant lacked standing to challenge a search, noting that the People failed to raise the issue in either their motion opposing suppression or at the hearing]). To the extent that those and similar decisions may be read to not require the People to timely object to a defendant’s lack of standing so as to preserve that issue for appellate review, they are no longer to be followed.

Here, the People did not challenge defendant’s claim that he possessed a legitimate expectation of privacy in his mother’s apartment, and therefore did not assert a claim that defendant lacked standing. Given that the primary reason for “demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court’s attention”' (People v Gray, 86 NY2d 10, 20 [1995]), the People are required to alert the suppression court if they believe that the defendant has failed to meet his burden to establish standing (see People v Carter, 86 NY2d 721, 722-723 [1995] [setting forth the premise that a defendant “must allege standing to challenge the search and, if the allegation is disputed, must establish standing” (emphasis supplied)]). The preservation requirement serves the added purpose of alerting the adverse party of the need to develop a record for appeal. Here, because the People failed to preserve the issue, the Appellate Division erred in entertaining it.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order reversed, etc.


text:
    [949 NE2d 497, 925 NYS2d 406]
    Wendy Hazen, Appellant, v Board of Education of City School District of City of New York et al., Respondents.
    Decided June 2, 2011

      APPEARANCES OF COUNSEL

      Wendy Hazen, appellant pro se.

      Michael A. Cardozo, Corporation Counsel, New York City (Julian L. Kalkstein of counsel), for respondents.
   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 (see Matter of Hickey v New York City Dept. of Educ., 17 NY3d 729 [2011] [decided today]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [952 NE2d 993, 929 NYS2d 1]
    In the Matter of Helen Hickey, Appellant, v New York City Department of Education, Respondent. In the Matter of Rachel Cohn, Appellant, v Board of Education of the City School District of the City of New York et al., Respondents.
    Argued April 28, 2011;
    decided June 2, 2011

      APPEARANCES OF COUNSEL

      Richard M. Krinsky, Brooklyn, for appellant in the first above-entitled proceeding.

      Sherry B. Bokser, New York City, Richard E. Casagrande, Ariana A. Gambella and Stroock & Stroock & Lavan, LLP, for appellant in the second above-entitled proceeding.

      Michael A. Cardozo, Corporation Counsel, New York City (Dona B. Morris and Francis F. Caputo of counsel), for respondents in the first and second above-entitled proceedings.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed, with costs, and the certified questions should not be answered upon the ground that they are unnecessary.

Petitioners Hickey and Cohn, two tenured teachers in the New York City school system, commenced these CPLR article 78 proceedings against the Board of Education for orders compelling respondent to expunge “letters of reprimand” from their personnel files for failure to follow Education Law § 3020-a procedures. The letter placed in Hickey’s personnel file indicated that she demonstrated incompetence and “unsatisfactory professional attitude” in preparing students for a field day. The letter placed in Cohn’s file detailed a complaint filed with, and substantiated by, the Department of Education’s Office of Equal Opportunity; the complaint stemmed from an incident where Cohn allegedly told the principal at her school, during a heated discussion, to watch her “Latin temper.” Both letters were placed in petitioners’ files in 2008 and indicated that the matter “may lead to further disciplinary action.” Respondent contends that the letters were properly placed in petitioners’ files because, pursuant to the 2007-2009 Collective Bargaining Agreement (CBA), petitioners’ union waived the section 3020-a procedure with respect to the placement of letters of reprimand in tenured teachers’ files and agreed to replace it with a different procedure described in Article 21 A.

In each case, Supreme Court granted the petitions and directed expungement of the disciplinary letters from petitioners’ files. The Appellate Division reversed the orders and denied the petitions (Matter of Hickey v New York City Dept. of Educ., 74 AD3d 458 [2010]; Matter of Cohn v Board of Educ. of the City School Dist. of the City of N.Y., 74 AD3d 457 [2010]).

Education Law § 3020 (1) provides: “No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020]-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement.” While “discipline” is not defined in the statute, section 3020-a (4) (a) authorizes a hearing officer to impose as a penalty “a written reprimand, a fine, suspension . . . without pay, or dismissal.” Section 3020 (4) (a) further states:

“Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020]-a of this article . . . may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after [June 10, 2002].”

In this case, we assume, though we do not decide, that the letters petitioners complain of here constitute “discipline” for purposes of this statute.

Pursuant to section 3020, a CBA negotiated between respondent and the United Federation of Teachers, petitioners’ union, can modify or waive the section 3020-a procedures. We agree with the Appellate Division that, insofar as Article 21A of the 2007-2009 CBA addresses the procedure governing placement of written reprimands in tenured teachers’ files, it effectuated a limited waiver of Education Law § 3020-a procedural rights. Article 21A of the 2007-2009 CBA details due process and review procedures concerning teachers’ files. Subdivision (1) advises that “[n]o material derogatory to a teacher’s conduct, service, character or personality shall be placed in the files unless the teacher has had an opportunity to read the material.” It further provides that the teacher shall acknowledge reading “such material by affixing his/her signature . . . with the understanding that such signature . . . does not necessarily indicate agreement with its content.” Subdivision (2) grants teachers “the right to answer any material filed” and the “answer shall be attached to the file copy.” Subdivision (5) prohibits members from grieving material in the file, “except that if accusations of corporal punishment or verbal abuse against a UFT-represented employee are found to be unsubstantiated, all references to the allegations will be removed from the employee’s personnel file.” It further emphasizes: “the teacher shall have the right to append a response to any letter. If disciplinary charges do not follow, the letter and response shall be removed from the file three years from the date the original material is placed in the file.” Article 21A is a broad provision that clearly encompasses written reprimands and the disciplinary letters at issue here fell within the purview of Article 21 A. Comparison of the statute and the CBA provision reveals that the procedure in Article 21A is significantly different than, and incompatible with, the procedure in Education Law § 3020-a, meaning that the parties to the contract could not have intended both procedures to simultaneously apply. Their history of collective bargaining indicates, with respect to the placement of written materials in tenured teachers’ files, petitioners’ union was well aware that, by adopting Article 21 A, it was agreeing to substitute that procedure for other due process procedures that had previously been in place. Therefore, there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law § 3020-a in this limited arena. Because the letters at issue are not subject to section 3020-a procedures, petitioners are not entitled to have them expunged.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

In each case: Order affirmed, etc.


text:
    Bleecker Street Tenants Corp., Respondent, v Bleeker Jones LLC et al., Appellants, et al., Defendants.
    Submitted April 4, 2011;
    decided June 2, 2011
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 16 NY3d 272 (2011)].


text:
    In the Matter of the Claim of Otilia Caballero, Appellant, v Fabco Enterprises et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted April 11, 2011;
    decided June 2, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 780 (2011)].


text:
    W. James Camperlino, Appellant, v Town of Manlius Municipal Corporation et al., Respondents, and Benita Rogers et al., Intervenors-Respondents.
    Submitted April 4, 2011;
    decided June 2, 2011
   Judge Pigott taking no part.


text:
    Jeanette Chirico, Respondent, v Joel Amaker, Appellant.
    Submitted April 4, 2011;
    decided June 2, 2011
   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:
    Doris Krieger et al., Appellants, v McDonald’s Restaurant of New York, Inc., et al., Respondents. Michael Rucker, Appellant, v McDonald’s Restaurant of New York, Inc., et al., Respondents.
    Submitted March 14, 2011;
    decided June 2, 2011
   Judge Pigott taking no part.


text:
    In the Matter of Latrell S., a Child Alleged to be Neglected. Suffolk County Department of Social Services, Respondent; Christine K., Appellant. (And Another Proceeding.)
    Submitted April 4, 2011;
    decided June 2, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Joseph Montesano, Individually and as President of Rochester Firefighters, Inc., Local 1071, IAFF, AFL-CIO, as Trustee of Rochester Firefighters Association Mutual Aid Fund and on Behalf of all Other Similarly Situated Individuals Providing Fire Protection to City of Rochester, et al., Respondents, v Floyd A. Madison, as Chief of Fire Department of City of Rochester and as Administrator of Firefighters’ Insurance Fund of City of Rochester, et al., Appellants.
    Submitted April 4, 2011;
    decided June 2, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed the Supreme Court order granting in part respondents’ motion for an order of contempt against appellants, dismissed upon the ground that such order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Claim of Sue Ann Paivanas, Appellant, v The Resource Center et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted April 11, 2011;
    decided June 2, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 781 (2011)].


text:
    The People of the State of New York, Respondent, v Hans Alexander, Appellant.
    Submitted May 31, 2011;
    decided June 2, 2011
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jorge Pagan, Appellant.
    Submitted May 9, 2011;
    decided June 2, 2011
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v James F. Phillips, Respondent.
    Submitted May 31, 2011;
    decided June 2, 2011
   Motion for assignment of counsel granted and Mark Diamond, Esq., Box 287356 Yorkville Station, New York, NY 10128 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Gilberto Sosa, Respondent.
    Submitted May 23, 2011;
    decided June 2, 2011
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Frederick E. Walker, Appellant.
    Submitted May 23, 2011;
    decided June 2, 2011
   Motion for assignment of counsel granted and James S. Hinman, Esq., 16 East Main Street, Suite 260, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    U.S. Electronics, Inc., Appellant, v Sirius Satellite Radio, Inc., Respondent.
    Submitted May 31, 2011;
    decided June 2, 2011
   Motion by the Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Viking Capital Partners, LLC, Respondent, v Enterprise Bay Ridge, LLC, et al., Defendants. James K. Noonan, Nonparty Appellant.
    Submitted March 7, 2011;
    decided June 2, 2011
   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:
    [952 NE2d 1003, 929 NYS2d 11]
    Rachel L. Arfa et al., Appellants, v Gadi Zamir et al., Respondents, et al., Defendants. (And Other Actions.)
    Argued April 27, 2011;
    decided June 7, 2011

      APPEARANCES OF COUNSEL

      Schlam Stone & Dolan LLP, New York City (David J. Katz of counsel), for appellants.

      Wolf Haldenstein Adler Freeman & Herz LLP, New York City (Eric B. Levine and Alan A.B. McDowell of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

In June 2005, plaintiffs Rachel Arfa and Alexander Shpigel executed a general agreement with defendant Gadi Zamir regarding management of their real estate business. The agreement contained a provision in which each party released the others and their related entities from “any and all claims, demands, actions, rights, suits, liabilities, interests and causes of action, known or unknown, which they have ever had, have or may now have, which in any way pertain to or arise from any matters, facts, occurrences, actions or omissions which occurred prior to” the date of the contract. This general release, which plaintiffs allege was part of a negotiated agreement meant to ease an antagonistic relationship and keep Zamir “from destroying the value of the real estate portfolio,” prevents plaintiffs from now bringing an action for fraud based on misrepresentations predating it.

Plaintiffs have failed to allege that the release was induced by a separate fraud (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269 [2011] [decided today]). Additionally, they have failed to allege that they justifiably relied on Zamir’s fraudulent misstatements in executing the release. By their own admission, plaintiffs, who are sophisticated parties, had ample indication prior to June 2005 that defendant was not trustworthy, yet they elected to release him from the very claims they now bring without investigating the extent of his alleged misconduct (see Centro, 17 NY3d at 278; DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 153-154 [2010]). Dismissal of plaintiffs’ fraud cause of action is therefore appropriate.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order affirmed, etc.


text:
    [953 NE2d 277, 929 NYS2d 204]
    Christopher Scott, Appellant, v Rockaway Pratt, LLC, Respondent.
    Decided June 7, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Society, Brooklyn (Stephen Myers, Patrick J. Langhenry and Steven Banks of counsel), for appellant.

      Sidrane & Schwartz-Sidrane, LLP, Hewlett (Steven D. Sidrane 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 reversed, with costs, order of Supreme Court, New York County, reinstated, and certified question answered in the negative. Supreme Court (24 Misc 3d 1231 [A], 2009 NY Slip Op 51684[U]) properly held that calculation of the amount of rent overcharge should be made by reference to a 1982 rent reduction order, which remained in effect during the four-year limitations period (see Matter of Cintron v Calogero, 15 NY3d 347 [2010]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    [952 NE2d 1059, 929 NYS2d 66]
    James V. Aquavella, M.D., P.C., et al., Appellants, v Ralph S. Viola, M.D., Respondent.
    Decided June 7, 2011
    APPEARANCES OF COUNSEL

      Calihan Law, PLLC, Rochester (Robert B. Calihan of counsel), for appellants.

      Chamberlain D'Amanda Oppenheimer & Greenfield, LLP, Rochester (J. Michael Wood, Michael A. Sciortino and Michael T. Harren of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly determined that the proffered writings failed to satisfy the statute of frauds (see General Obligations Law § 5-701 [a] [1]). The writings, taken together, fail to contain all of the essential terms of the alleged agreement. Specifically, the writings make no mention of the alleged incorporation of the written agreement’s noncompete clause into the subsequent oral agreement between the parties.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

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 in a memorandum.


text:
    [952 NE2d 1004, 929 NYS2d 12]
    The People of the State of New York, Respondent, v Jazzmone Brown, Appellant.
    Argued April 26, 2011;
    decided June 7, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Timothy P. Murphy, David C. Schopp and Barbara J. Davies of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers and Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Jazzmone Brown was convicted, after a jury trial, of murder in the second degree and other crimes, for the shooting of Salomon DeJesus, in Buffalo in 2002.

Defendant’s principal argument on appeal is that his trial counsel’s failure to object to certain remarks made by the prosecutor in summation constituted ineffective assistance of counsel and deprived him of a fair trial. The People do not contest defendant’s characterization of the remarks as an improper “safe streets” appeal — one that attempts to obtain a conviction unfairly, by suggesting to the jury that the community must be protected from the defendant (see People v Galloway, 54 NY2d 396, 401 [1981]). The People also concede that the prosecutor’s suggestion that defendant sold drugs was irrelevant and not inferable from the evidence. However, the People insist that reversal is not warranted, and we agree.

To prevail on his ineffective assistance of counsel claim on the basis of this single failure to object, defendant must show both that the objection omitted by trial counsel is a winning argument, here one that would have required a mistrial (see People v Turner, 5 NY3d 476, 481 [2005]), and that the objection was one that no reasonable defense lawyer, in the context of the trial, could have thought to be “not worth raising” (id.). In this case defendant failed to meet his burden of demonstrating a lack of strategic or other legitimate reasons for his defense lawyer’s failure to object (People v Rivera, 71 NY2d 705, 709 [1988]). It is entirely plausible that counsel chose not to object because the prosecutor’s remarks impugned the People’s witnesses as well as defendant and therefore were consistent with his own theory that the People’s witnesses were simply not credible. It was their veracity, not defendant’s, that was at issue.

Defendant also challenges the lineup in which he was identified by two witnesses as unduly suggestive. However, the fact that the witnesses knew that the suspect whom they had tentatively identified from a photographic array would be in a lineup did not, under the circumstances of this case, “present a serious risk of influencing the [witnesses’] identification of defendant from the lineup” (People v Rodriguez, 64 NY2d 738, 741 [1984]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed in a memorandum.


author: Jones, J.

text:
    [952 NE2d 1006, 929 NYS2d 14]
    The People of the State of New York, Respondent, v Thomas Sirico, Appellant.
    Argued May 4, 2011;
    decided June 7, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Society, Appeals Bureau, Riverhead (John M. Dowden, Robert L. Cicale and Robert C. Mitchell of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Anne E. Oh of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following a jury trial, defendant was convicted of murder in the second degree (Penal Law § 125.25 [1] [intentional murder]). The charges arose after defendant, an experienced archery hunter, shot an arrow from his compound bow towards his neighbor’s yard, fatally striking the victim. On appeal, defendant principally contends that he was entitled to an intoxication charge (see Penal Law § 15.25). That section provides, in its entirety:

“Intoxication is not, as such, a defense to a criminal charge; but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.”

An intoxication charge is warranted if, viewing the evidence in the light most favorable to the defendant, “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis” (People v Perry, 61 NY2d 849, 850 [1984]; see also People v Farnsworth, 65 NY2d 734, 735 [1985]). A defendant may establish entitlement to such a charge “if the record contains evidence of the recent use of intoxicants of such nature or quantity to support the inference that their ingestion was sufficient to affect defendant’s ability to form the necessary criminal intent” (People v Rodriguez, 76 NY2d 918, 920 [1990]). Although a “relatively low threshold” exists to demonstrate entitlement to an intoxication charge, bare assertions by a defendant concerning his intoxication, standing alone, are insufficient (People v Gaines, 83 NY2d 925, 927 [1994]).

Here, there is insufficient evidence to support an inference that defendant was so intoxicated as to be unable to form the requisite criminal intent. Indeed, the uncontradicted record evidence, including defendant’s own account, supports the conclusion that his overall behavior on the day of the incident was purposeful. Accordingly, defendant was not entitled to an intoxication charge.

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

Jones, J.

(dissenting). It is uncontroverted that defendant, on the day of the criminal incident, consumed two large glasses (approximately 12 to 15 ounces each) of Southern Comfort whiskey and ingested a Xanax pill. Shortly thereafter, he threatened friends and neighbors with a bow and arrow, fired an arrow into the side of a truck, and then fatally shot the victim — actions that call into question defendant’s state of mind. Thus, given this record evidence and the “relatively low threshold” a defendant is required to meet for entitlement to a jury charge of intoxication, I respectfully dissent and would reverse the Appellate Division.

People v Perry (61 NY2d 849, 850 [1984]) established that “[a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis.” Certainly, given the low evidentiary bar set for the entitlement to a charge of intoxication, that rule was subject to abuse and we have rejected conclusory and “bare assertion[s] by a defendant that he was intoxicated” (People v Gaines, 83 NY2d 925, 927 [1994]). Accordingly, there must be objective evidence in the record,

“such as the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether [the defendant] consumed alcohol on an empty stomach, whether his [or her] drinks were high in alcoholic content, and the specific impact of the alcohol upon his [or her] behavior or mental state” (id.).

The record evidence in this case satisfies the rule of Perry and Gaines and may serve to negate the mens rea element of intent for murder in the second degree (see Penal Law §§ 15.25, 125.25 [1]). Thus, it was error for the trial court to deny defendant’s request for a charge of intoxication.

The People contend that defendant’s testimony establishes that an issue with the mechanism of his prosthetic leg, and not intoxication, precipitated the fatal firing of the bow and arrow. However, it should be emphasized that in determining whether a theory of defense should be charged, a defendant is entitled to the “most favorable view of the record” (People v Steele, 26 NY2d 526, 529 [1970]), and a trial court is obligated to charge a theory of defense where it is supported by a reasonable view of the trial evidence (see People v Butts, 72 NY2d 746, 750 [1988]). Here, contrary testimony should not preclude the charge of intoxication where there is a reasonable view of the record evidence that would support such an instruction (see Perry, 61 NY2d at 850-851 [Court held that intoxication should be charged “although defendant testified that he was aware of his actions”]; People v Smith, 43 AD3d 475, 475-476 [2d Dept 2007] [court held that defendant was entitled to a charge of intoxication based on evidence that he was observed drinking vodka even though two detectives testified that he was “walking fine” and they did not detect any signs of inebriation]).

A trial court simply cannot forgo its obligation to properly charge a theory of defense when there is record support. Ultimately, whether a jury credits or discredits the testimony of defendant in rendering its factual determinations is a matter beyond our purview. But before reaching its final decision, the trier of fact should be presented with all relevant instructions, as supported by the record, for its due consideration.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith and Pigott concur; Judge Jones dissents and votes to reverse in an opinion.

Order affirmed in a memorandum.


text:
    In the Matter of Donna Black, Appellant, v John Paul Watson, Respondent.
    Submitted April 11, 2011;
    decided June 7, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Family Court’s order as adjudged that respondent did not willfully violate a prior order of the court, 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:
    Glencord Building Corp. et al., Respondents, v Elena Strujan, Appellant, et al., Defendant.
    Submitted April 25, 2011;
    decided June 7, 2011
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Robert Snyder, Appellant, et al., Plaintiff, v Allstate Insurance Company, Respondent.
    Submitted April 18, 2011;
    decided June 7, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the Supreme Court order dismissing the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    [952 NE2d 1010, 929 NYS2d 18]
    The People of the State of New York, Respondent, v Allen Albergotti, Appellant.
    Argued April 26, 2011;
    decided June 9, 2011

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Matthew C. Williams and Frank Glaser of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed.

Defendant pleaded guilty to second-degree forgery in satisfaction of charges related to his use of a forged traveler’s check in a retail store. In exchange, defendant was promised a second felony offender sentence of 2 to 4 years — the minimum for a class D felony, provided he return to court, “stay out of trouble,” and cooperate with the Department of Probation. If he did not fulfill the conditions, he was warned he could be subject to a prison term of up to 25 years to life as a discretionary persistent felony offender. The court adjourned the case several weeks for sentencing. Probation sent two letters to defendant instructing him to report for an interview. Defendant neither contacted Probation nor appeared for an interview.

On the day of his scheduled sentencing hearing, defendant came to court in the morning, as required, and conferred with counsel. However, he left without notifying his attorney or the court and failed to answer the calendar call at both the morning and afternoon sessions. The court issued a bench warrant.

At a subsequent hearing, the judge informed defendant that the promised sentence was no longer available because of his failure to comply with the plea terms. Defendant was thereafter sentenced to a term of to 5 years in prison. On appeal to the Appellate Division, defendant argued, among other things, that the “court’s imposition of an enhanced sentence violated due process” because the court “failed to conduct an adequate ‘inquiry’ to ensure that it was correct in its belief that [he] had violated the conditions of his plea.”

The Appellate Division found that this argument was not preserved (People v Albergotti, 72 AD3d 401, 401 [1st Dept 2010]) and that, in any event, the court conducted a sufficient inquiry under People v Outley (80 NY2d 702, 713 [1993] [holding that when an issue is raised concerning the validity of a postplea charge, “the court must conduct an inquiry at which the defendant has an opportunity to show that the (alleged violation of the plea terms) is without foundation”]) (id.).

Although defendant did not specifically complain to the court in terms of the inadequacy of the inquiry pursuant to Outley, his arguments regarding the alleged sentencing error are readily discernible from the hearing transcript. Accordingly, we find preservation, reach the merits and uphold the Appellate Division’s alternative holding that the sentencing court conducted a sufficient inquiry to satisfy our standard in Outley. The court was not required to conduct an evidentiary hearing to determine the veracity of defendant’s excuses (see Outley, 80 NY2d at 712-713). Both defendant and his counsel were given ample opportunity to refute the court’s assertions that defendant had violated the plea terms. That the court chose not to credit defendant’s account of events is not a ground for reversal.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed in a memorandum.


text:
    [952 NE2d 1060, 929 NYS2d 67]
    Ben Umeze, M.D., Respondent, v Fidelis Care New York et al., Appellants.
    Decided June 9, 2011
    APPEARANCES OF COUNSEL

      Sedgwick, Detert, Moran & Arnold LLP, New York City (Michael H. Bernstein and John T. Seybert of counsel), for appellants.

      Law Offices of Joseph N. Obiora, Jamaica (Joseph N. Obiora of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants’ motion to dismiss the complaint pursuant to CPLR 3216 granted unconditionally, and the certified question answered in the negative.

Supreme Court abused its discretion by declining to grant defendants’ motion to dismiss without condition. Plaintiff failed to establish a (1) justifiable excuse for his failure to timely file a note of issue and (2) meritorious cause of action (see CPLR 3216 [e]; see also Baczkowski v Collins Constr. Co., 89 NY2d 499 [1997]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.


text:
    [952 NE2d 1008, 929 NYS2d 16]
    The People of the State of New York, Respondent, v Steve Johnson, Appellant.
    Argued May 2, 2011;
    decided June 9, 2011
    APPEARANCES OF COUNSEL

      Legal Aid Society, Criminal Appeals Bureau, New York City (Allen L. Fallek and Steven Banks of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this complex case involving multiple attempted murder, kidnaping and other charges, defendant did not dispute his involvement in the criminal transaction but pursued an insanity defense. During voir dire, a prospective juror who had written a college research paper on the insanity defense stated that she would be able to set aside her personal views on that topic and apply the law as instructed by the court. However, in response to subsequent questioning by counsel, she indicated that she had a “strong bias” in connection with the defense, “might be biased in the way that [she] interpreted] the evidence” in that regard, and was not certain that she would be able to give both sides a fair trial. Despite these troubling statements, the trial court did not undertake further inquiry of the juror and denied defendant’s “for cause” challenge. Defendant therefore used a peremptory challenge to excuse the juror, subsequently exhausting all peremptory challenges.

As we have stressed in the past,

“[w]hen potential jurors themselves say they question or doubt they can be fair in the case, Trial Judges should either elicit some unequivocal assurance of their ability to be impartial when that is appropriate, or excuse the juror when that is appropriate. The worst the court will have done in most cases is to have replaced one impartial juror with another impartial juror” (see People v Johnson, 94 NY2d 600, 616 [2000] [internal quotation marks and citation omitted]).

Here, given the absence of follow-up questioning by the court after the juror expressed uncertainty concerning her ability to fairly consider a major issue in this case, the conviction must be reversed and the matter remitted for a new trial.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

Order reversed, etc.


text:
    [952 NE2d 1061, 929 NYS2d 68]
    In the Matter of the Estate of Rocky H. Aoki, Also Known as Hiroaki Aoki, Deceased. Keiko Ono Aoki, Respondent, v Kana Aoki Nootenboom et al., Appellants, et al., Respondent.
    Decided June 9, 2011
    APPEARANCES OF COUNSEL

      Holland & Knight, LLP, New York City (Joseph P. Sullivan of counsel), for appellants.

      Rosenberg Feldman Smith, LLP, New York City (Richard B. Feldman, Michael H. Smith and McKenzie A. Livingston 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 the certified question answered in the affirmative. We agree with the Appellate Division that Surrogate’s Court did not abuse its discretion by setting a December 2009 deadline for the completion of discovery and limiting the identity and number of individuals to be deposed.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    In the Matter of the Claim of Maria M. Almonte, Appellant. Commissioner of Labor, Respondent.
    Submitted April 25, 2011;
    decided June 9, 2011
   Motion for reconsideration of this Court’s March 31, 2011 dismissal order denied [see 16 NY3d 824 (2011)].


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar, Appellant.
    Submitted April 25, 2011;
    decided June 9, 2011
   Motion for reconsideration of this Court’s February 15, 2011 dismissal order denied [see 16 NY3d 759 (2011)].


text:
    Baygold Associates, Inc., Appellant, v Congregation Yetev Lev of Monsey, Inc., Respondent. Monsey Park Home for Adults, Appellant, v Israel Orzel, Respondent, et al., Defendants.
    Submitted April 4, 2011;
    decided June 9, 2011
   Judge Jones taking no part.


text:
    Jose Caride et al., Respondents, v Alejandro Alonso et al., Appellants. (And a Third-Party Action.)
    Submitted May 9, 2011;
    decided June 9, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 806 (2011)].


text:
    In the Matter of the Claim of Marie L. Gentile, as Widow of Jay Alan Gentile, Deceased, Appellant, v Sovereign Motor Cars et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted May 16, 2011;
    decided June 9, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 824 (2011)].


text:
    Jose Miguel Moran, Respondent, v 200 Varick Street Associates, LLC, Respondent, and Wolff Olins, LLC, et al., Appellants.
    Submitted May 9, 2011;
    decided June 9, 2011
   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:
    Otu A. Obot, Appellant, v Medaille College, Respondent.
    Decided June 9, 2011
   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:
    Otu A. Obot, Appellant, v National Fuel Gas Distribution Corporation, Respondent.
    Decided June 9, 2011
   Appeal, insofar as taken from the Appellate Division order that affirmed the February 2010 Supreme Court order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order that affirmed the March 2010 Supreme Court order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Alexandre Van Damme, Respondent, v Nahum Gelber, Appellant, and Arij Gasiunasen Fine Art of Palm Beach, Inc., Doing Business as Gasiunasen Gallery, Respondent. (And a Third-Party Action.)
    Submitted May 9, 2011;
    decided June 9, 2011
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 16 NY3d 708 (2011)].