author: Memorandum. Chief Judge Lippman (dissenting).

text:
    [979 NE2d 1152, 955 NYS2d 826]
    The People of the State of New York, Respondent, v Jose Alfaro, Appellant.
    Argued September 5, 2012;
    decided October 25, 2012
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Anastasia B. Heeger and Richard M. Greenberg of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sara M. Zausmer, David P. Stromes and Gina Mignola of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of robbery in the first and second degrees, assault in the first degree and gang assault in the second degree. In March 1999, with two putative accomplices, defendant assaulted complainant in the freight elevator lobby of a building in New York City. During the incident, the assailants searched complainant’s pockets, removing various personal effects. When the assailants fled, complainant gave chase and defendant was apprehended shortly thereafter with the assistance of passersby. At the time of his arrest, police officers discovered a cigarette lighter crafted to look like a firearm on defendant’s person and a pair of imitation handcuffs on the ground where defendant had been lying when subdued. A subsequent search at the police precinct recovered a matching pair of handcuff keys in defendant’s jacket pocket.

During pretrial proceedings, defendant moved to preclude the introduction of the novelty handcuffs and keys and the imitation firearm, arguing that the items were not used during the commission of the assault and robbery and, therefore, would only serve as prejudicial propensity evidence in violation of People v Molineux (168 NY 264 [1901]). Supreme Court denied the motion, concluding that the items were part of the “res gestae” of the entire criminal transaction.

Even assuming that the subject items constituted prior uncharged crimes evidence under Molineux, the trial court did not err in denying defendant’s pretrial motion to suppress the imitation handcuffs, keys and gun. The items, which could have been used during the commission of the crimes, were recovered upon defendant’s apprehension shortly after the incident and completed the narrative of this particular criminal transaction (see People v Till, 87 NY2d 835 [1995]; People v Resek, 3 NY3d 385 [2004]; People v Wilkinson, 71 AD3d 249 [2d Dept 2010]). Moreover, they were probative of a material issue at trial, namely, the necessary intent to “use[ ] or threaten[ ] the immediate use of physical force upon another person” during the commission of a robbery (Penal Law § 160.00; see People v Medina, 37 AD3d 240 [1st Dept 2007]; People v Cooper, 238 AD2d 194 [1st Dept 1997]). Furthermore, if the admission was error, as defendant contends, it was harmless error in light of the overwhelming testimony identifying defendant as an assailant (People v Crimmins, 36 NY2d 230 [1975]; see generally People v Arafet, 13 NY3d 460, 467 [2009]; People v Ventimiglia, 52 NY2d 350, 361 [1981]; People v Echavarria, 53 AD3d 859, 863 [3d Dept 2008]).

Defendant’s reliance on People v Gillyard (13 NY3d 351 [2009]) is misplaced. In that case, the defendant was convicted of, as relevant here, criminal impersonation in the first and second degrees for impersonating a police officer. The People successfully admitted a handcuff key, found on the defendant’s person weeks after his arrest and unused during the commission of his crimes, to prove his “access to and familiarity with” handcuffs. We held that it was error to admit the handcuff key because defendant’s “access to and familiarity with” handcuffs was not a material issue at trial. Here, by contrast, the admitted evidence completed the narrative of the criminal incident and was probative of the requisite intent to use or threaten physical force in the commission of a robbery.

Defendant’s remaining contentions have been considered and deemed without merit.

Chief Judge Lippman (dissenting).

In her summation the trial assistant urged that the jury should find the victim’s accusation of defendant credible by reason of defendant’s possession of a cigarette lighter resembling a pistol and toy handcuffs:

“How else do you know that [the victim] was credible and accurate. Well, you know that the defendant was armed with handcuffs. And [a] cigarette lighter as [defense counsel] keeps referring to . . . it. Although I submit to you if I pulled this [lighter] out, you’d be a little frightened.
“I’m not going to sit here and argue to you that he used these things during the robbery and therefore that makes this a more egregious case.
“What I’m going to say is if you could buy a home made kit to be a robber, right next to the ski-mask you would have the gun and handcuffs” (emphasis added).

To avoid precisely this use of the novelty items, defendant moved at the outset of the trial to preclude their introduction in evidence. Defendant’s attorney argued that the items had not been used during the charged offenses and were not relevant to their proof. Rather, the evidence of the items and the circumstances of their recovery would only encourage a conviction impermissibly rooted in the supposition that robbery was defendant’s line— the sort of thing he did. The court nonetheless admitted the evidence, insisting that it was relevant as “part of the whole of the transaction.”

Notably, the People never advanced a theory of relevance to support the receipt of the items. While, subsequent to the court’s ruling, the trial assistant, in response to defense counsel’s argument that the items would not be probative of intent or identity since they were not used during charged crimes, argued that they might have been used if the victim had not resisted and were therefore relevant to proving intent, this fairly abstruse point was not subsequently pursued and, as noted, was not the basis of the court’s ruling. There was, moreover, no intent issue in the case. Defendant conceded that there had been at least an attempted robbery; the core disputed issue was whether defendant had been correctly identified as a perpetrator.

Defendant’s attorney requested an instruction forbidding the jury from making propensity-based inferences from the disputed evidence, reiterating his view that the evidence was admissible only if it was in some specified way directly probative of guilt. The request, however, was rebuffed. The court said, “I’m not going to parcel things out and break it down to minutiae. It doesn’t amount to a hill of beans anyway.” After defendant’s attorney made his record, the court reiterated, “I don’t have to designate [the relevance of the evidence] or place it under any particular rubric. We are just spinning wheels.”

The gist of the common-law rule with which People v Molineux (168 NY 264 [1901]) has become so closely identified is that evidence probative only of a propensity to conduct like that charged is not admissible. Although it may well seem that a person who has offended in some way would be a likely candidate for similar reoffense, the inference of propensity from prior conduct and from there to guilt is so fraught with opportunity for error that it is forbidden as a ground for a criminal conviction. Evidence of other, i.e., uncharged, crimes or bad acts, however, may be admitted where it is in some way directly probative of the charged offense—that is to say, probative without the intermediate inference of criminal propensity. Molineux, of course, describes several ways in which evidence otherwise subject to exclusion as evidence of propensity, might be fairly and reliably used to establish in a reasonably direct and disciplined way an element of the crime charged (id. at 293-310). These theories of relevance are not exclusive, but prosecutors seeking to introduce proof demonstrative of bad propensity routinely attempt to bring such proof within one of the exceptions enumerated in Molineux. Here, however, it does not appear that the prosecutor offered any theory of relevance, much less one rooted in precedent. Rather, the evidence that defendant had on him at the time of his arrest, an imitation gun and keys to a pair of toy handcuffs found at the scene of his apprehension, was deemed admissible upon the ground, advanced by the court but not the prosecutor, that the disputed evidence was “part of the whole transaction.”

The court’s theory was obviously flawed since the novelty items simply were not part of the charged criminal transaction. If they had been, their admissibility would have been clear. It is precisely because they were not and invited speculation about defendant’s criminal inclinations that their relevance, if any, to the underlying transaction and the consequent criminal charges had to be spelled out.

It is true that in narrowly defined circumstances and with limiting instructions the People have been permitted to “complete the narrative” and, in the process, to place before the jury evidence of other crimes or bad acts (see People v Resek, 3 NY3d 385, 389 [2004]). The rationale for the exercise is to aid the jury in “trying to sort out ambiguous but material facts” (id. at 390). But here there was no showing that this jury needed a more complete context properly to evaluate the victim’s inculpatory identification. Indeed, situating that identification in a narrative in which it might well seem to acquire probative heft for reasons rooted in propensity-based speculation and having nothing to do with the identifier’s opportunity for observation and accuracy of recall, was merely a form of bolstering.

Although the People, in retrospect, have espoused the theory now embraced by the majority that the subject novelty items were probative of defendant’s intent to rob, that theory, not having figured in the trial court’s decision to admit the evidence, is not properly available to this Court as a ground for affirmance (CPL 470.15 [1]; People v Concepcion, 17 NY3d 192, 195 [2011]). Moreover, as noted, intent simply was not an issue in this case.

And, while defendant’s identity as a perpetrator was closely disputed, the evidence in question was not permissively probative on that issue either. Under Molineux, it is only where the uncharged behavior demonstrates a signature—i.e., highly idiosyncratic—modus operandi or in some other very specific way tends to demonstrate that the perpetrator of the extraneous act and the charged crime were one and the same, that such proof is admissible to identify the accused as the person who committed the charged crime (168 NY at 313-314). While courts have, since Molineux, been somewhat less strict in applying the identity exception (see e.g. People v Beam, 57 NY2d 241, 252-253 [1982]), that nuance is of little moment here since there is no proof at all of any successive acts; there is no proof of a prior robbery, much less proof of one involving the novelty items at issue, and, even if there had been, its relevance to the charged crimes could not be made out under the Molineux identity exception since, as the prosecutor herself acknowledged, the crimes of which defendant was accused were not committed with those supposedly telltale props. For very good reason, then, the prosecutor never contended that the imitation gun and toy handcuffs were admissible under the Molineux identity exception. She argued instead that defendant’s possession of the novelty items showed that he was a robber and thus that the victim’s accusation that defendant had robbed him was creditworthy. But this was nothing more than an invitation to convict defendant of the charged robbery on the basis of his supposed tendency to rob. Leaving aside that the inference of such a tendency from the possession of novelties is far from ironclad, the further treacherous step of concluding that because defendant had a propensity to rob he must have robbed the victim on the occasion charged is precisely the sort of inference that the law has long forbidden as a ground for criminal liability.

Even if there had been some non-propensity-based rationale for admitting the disputed evidence, it was never explained to the jury. Nor, contrary to the suggestion of the Appellate Division, did the trial court ever undertake to exercise its discretion to determine whether the evidence, if relevant, would be more prejudicial than probative. The trial court, in default of performing these essential prophylactic functions specifically requested by defendant, left the jury to speculate along the lines urged by the trial assistant—that defendant’s possession of the gun-like cigarette lighter and toy handcuffs was indicative of a career in robbery and that the victim’s accusation of defendant, even if doubtful on the basis of what he claimed to have seen and remembered of the incident, was in a general way believable and might well have hit a deserving mark. Obviously, this is not a permissible path to a guilty verdict.

Although the majority would deem any error in the admission of the novelty items harmless in light of the “overwhelming” testimony identifying defendant as one of the victim’s assailants (majority mem at 1076), the use of the term “overwhelming” to describe the evidentiary basis for defendant’s conviction is, on any actual examination of this record, a tad rich. This was in its essential aspect a one-witness identification case. The identifying witness, the victim, by his own account was held prone to the floor during the robbery, and observed his assailants only briefly. Although he thought that three men took part in the assault, he was completely unable to describe two of them, and as to the third, could say only that he was a “kind of white and Hispanic guy.” He was unable to recognize defendant when shown his photograph at trial, and conceded in his trial testimony that “even this guy [referring to defendant] I don’t remember.” It is true that, after his assailants fled, the victim, following an interval of uncertain duration, ran out of the building vestibule where the assault took place and, on scanning the busy rush hour street scene, thought he recognized defendant as one of his assailants, but his identification under those stressful circumstances based upon what could have been no more than a glimpse—the entire incident having, according to the victim, passed very quickly—was far from overwhelming in its proof of defendant’s participation in the robbery. Indeed, the use of the term “overwhelming” with reference to the inculpatory identification in this case is, on the present record, I believe, imprudent and discordant with what we have elsewhere acknowledged respecting the incidence of wrongful conviction attributable to mistaken eyewitness identification (see People v Santiago, 17 NY3d 661, 669 [2011]). To be clear, the issue is not whether the properly admitted evidence was sufficient—it was. It is rather whether in addition to being sufficient it was overwhelming and, as such, on its own equal to the purpose of eliminating to a virtual certainty the hypothesis of defendant’s innocence (see People v Arafet, 13 NY3d 460, 467-468 [2009]). It would seem plain that such a robust predicate did not exist to insulate this verdict from the evidence introduced to show that defendant was by vocation a robber.

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

Order affirmed in a memorandum.

       In Gillyard, although “the evidence [of the handcuff key] could arguably be relevant to show that [the defendant] was convincing as a police officer” (Gillyard, 13 NY3d at 356), the People had sought to introduce the item only on the issue of “access to and familiarity with” handcuffs.

      . Defense counsel could not have been clearer. Before trial he stated on the record, “[my client]’s not disputing there was a robbery. He’s saying he wasn’t the person that did it.” He made the same concession as to what had happened—that there had been a robbery—to the jury. And, in summation, specifically addressing the adequacy of the proof of intent, defense counsel said, “I think it’s pretty obvious what the intent was. They were searching [the victim] to try and rob him. That’s what the intent was.”

      . While there was testimony in addition to that of the victim about the assault and its aftermath—much of which was difficult to harmonize—only the victim identified defendant as one of his assailants.

      . Defendant was not present at his trial, so the in-court identification was attempted using a photograph.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Carlos Abreu, Appellant, v Brian Fischer, Commissioner, New York State Department of Correctional Services, Respondent.
    Submitted September 10, 2012;
    decided October 25, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Carlos Abreu, Appellant, v Michael F. Hogan, as Commissioner of Mental Health, et al., Respondents.
    Submitted June 25, 2012;
    decided October 25, 2012
   On the Court’s own motion, appeal taken from the January 2012 Appellate Division order dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal from the January 2012 Appellate Division order denied.


text:
    In the Matter of Carlos Abreu, Appellant, v Michael F. Hogan, as Commissioner of Mental Health, et al., Respondents.
    Submitted September 10, 2012;
    decided October 25, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the July 2012 Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the July 2012 Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Jennifer Cangro, Appellant, v John Z. Marangos, Respondent.
    Submitted August 13, 2012;
    decided October 25, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. 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:
    Kevin Glassman, Respondent, v ProHealth Ambulatory Surgery Center, Inc., et al., Appellants.
    Decided October 25, 2012
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that they do not lie. The terms of this Court’s remittitur were not violated and an appeal therefore does not lie as of right.


text:
    In the Matter of Wilfredo Gonzalez, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted August 13, 2012;
    decided October 25, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 806 (2012)].


text:
    Highmount Olympic Fund, LLC, Plaintiff, v PIPE Equity Partners, LLC, et al., Defendants. PIPE Equity Partners, LLC, Appellant, v Highmount Olympic Fund, LLC, Respondent.
    Submitted August 20, 2012;
    decided October 25, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the consolidated action within the meaning of the Constitution.


text:
    In the Matter of Louis Jackson, II, Appellant, v Debbra Beach, Respondent.
    Submitted August 6, 2012;
    decided October 25, 2012
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of the Family Court order as denied appellant’s petitions to enforce a prior Family Court order, dismissed upon the ground that such portion of the order does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Respondent, Relative to Acquiring in Fee Simple Certain Real Property Currently Owned by Fallsite, LLC, and Known as: 232 Sixth Street, 700 Rainbow Blvd., 231 Sixth Street, 626 Rainbow Blvd., and 701 Falls Street, City of Niagara Falls, Situated in the County of Niagara, State of New York and Having, Respectively, the Following Tax Sections, Blocks and Lots: 159.09-2-25.122, 159.09-2-25.112, 159.09-2-25.121, 159.09-2-25.111 and 159.09-2-25.211, Together with All Compensable Interests Therein Currently Owned by Fallsite, LLC, et al., Appellants.
    Submitted August 20, 2012;
    decided October 25, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Norwest Bank Minnesota, NA, as Trustee for the Registered Holders of DJL Commercial Mortgage Corp., Commercial Mortgage Pass-Through Certificates, Series 1999-CG-2, Plaintiff, v E.M.V. Realty Corp. et al., Respondents, and RJR Mechanical, Inc., Appellant, et al., Defendants.
    Submitted August 13, 2012;
    decided October 25, 2012
   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:
    The People of the State of New York, Respondent, v Paul Thompson, Appellant.
    Submitted August 13, 2012;
    decided October 25, 2012
   Motion to waive strict compliance with certain requirements concerning appellant’s appendix herein granted to the extent that the appeal may be perfected upon 10 copies of the appendix.


text:
    Rocky Point Drive-In, L.P, Appellant, v Town of Brookhaven et al., Respondents.
    Submitted August 20, 2012;
    decided October 25, 2012
   Motion by Long Island Builders Institute, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted only to the extent that the proposed affirmation is accepted as filed, and for leave to appear amicus curiae on the appeal herein granted only to the extent that three copies of a brief may be served and 19 copies filed within 30 days.


text:
    In the Matter of the Claim of Brian Woods, Appellant, v New York State Thruway Authority et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 6, 2012;
    decided October 25, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


author: Memorandum.

text:
    [979 NE2d 807, 955 NYS2d 547]
    In the Matter of State of New York, Respondent, v Daniel F., Appellant.
    Argued September 4, 2012;
    decided October 30, 2012

      APPEARANCES OF COUNSEL

      Emmett J. Creahan, Mental Hygiene Legal Service, Rochester (Lisa L. Paine of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the order of Supreme Court reinstated.

In this Mental Hygiene Law article 10 proceeding, Supreme Court, after a bench trial, found that respondent is not a dangerous sex offender requiring confinement pursuant to Mental Hygiene Law § 10.11 (d), and ordered his discharge from confinement subject to a regimen of strict and intensive supervision. The Appellate Division reversed concluding that respondent is a dangerous sex offender requiring confinement (77 AD3d 1400 [4th Dept 2010]).

In a case such as this, where a factual disagreement exists between the trial court and the Appellate Division, we review the record to determine which factual findings more nearly comport with the weight of the evidence. Upon review of the record here, we conclude that the findings of Supreme Court more nearly comport with the weight of the evidence (see Matter of Sheila G, 61 NY2d 368, 386 [1984]).

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

Order reversed, etc.


author: Memorandum. Pigott, J. (dissenting).

text:
    [979 NE2d 1158, 955 NYS2d 831]
    Barbara Coleman, by Her Attorney-in-Fact, Mazilee Coleman, on Behalf of Herself and All Others Similarly Situated, Respondent, v Richard F. Daines, M.D., Individually and as Commissioner of the New York State Department of Health, et al., Appellants.
    Argued September 4, 2012;
    decided October 30, 2012

      APPEARANCES OF COUNSEL

      Eric T. Schneiderman, Attorney General, New York City (Richard Dearing, Simon Heller and Barbara D. Underwood of counsel), for Richard F. Daines, appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Jane L. Gordon, Janice Birnbaum and Edward F.X. Hart of counsel), for Robert Doar, appellant.

      Beilin & Associates LLC, White Plains (Aytan Y. Bellin of counsel), for respondent.

      Saima A. Akhtar, Albany, and Susan C. Antos, Linda Hassberg, Central Islip, Bryan Hetherington, Rochester, and Trilby deJung, Steven Banks, Legal Aid Society, New York City (Adviene L. Holder, Judith A. Goldiner and Kenneth R. Stephens of counsel), for Empire Justice Center and another, amici curiae.
   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 November 2007 and January 2008, petitioner Barbara Coleman applied for Medicaid-funded personal care attendant services with the New York City Human Resources Administration (HRA). Having received no response to her request by May 2008, she submitted an application for “temporary medical assistance” benefits pending the ultimate determination of her Medicaid application. Later that month, HRA advised Coleman that she was eligible for Medicaid, but did not specify the number of hours of personal attendant care to which she was entitled. However, by the end of June 2008, HRA granted Coleman 24-hour personal care attendant services beginning on June 30, 2008.

Coleman commenced this hybrid CPLR article 78 proceeding and 42 USC § 1983 action alleging that respondent Robert L. Doar, Commissioner of HRA, failed to make a timely decision regarding her initial Medicaid claim and that Doar and respondent Richard F. Daines, Commissioner of the New York State Department of Health, violated Social Services Law § 133 and her constitutional right to due process by failing to give her notice of the availability of “temporary assistance” benefits at the time of application. With respect to the latter claim, Coleman seeks nominal damages. Supreme Court dismissed the petition on threshold grounds of mootness and failure to exhaust administrative remedies (2009 NY Slip Op 30643[U] [2009]). The Appellate Division reversed, holding that the “likely to recur” exception to the mootness doctrine applied (79 AD3d 554, 559 [1st Dept 2010]). The Appellate Division granted respondents leave to appeal on a certified question.

Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries (see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003]). Thus, an appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties (see City of New York v Maul, 14 NY3d 499, 507 [2010]). An exception to the mootness doctrine may apply, however, where the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts (see id.; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

Here, respondents assert that Coleman’s claims seeking temporary assistance and care services are moot because she is currently receiving all personal care services originally requested. Coleman submits that respondents maintain a policy of not informing applicants of the availability of temporary Medicaid assistance in the form of personal care attendant services and, therefore, do not generally provide or pay for such benefits. Since this policy is alleged to have applied to all similarly situated Medicaid claimants who sought benefits under the same statutory provision as Coleman, we believe this issue is “likely to recur” (Maul, 14 NY3d at 507). In addition, based on the potential ramifications from delays in providing critical benefits and the relatively brief nature of the violation, the question is substantial and will typically evade judicial review.

Pursuant to Dean v Blumenthal (577 F3d 60, 66 [2d Cir 2009]), Coleman’s demand for nominal damages in connection with her alleged constitutional due process violations also survives the mootness challenge. And, we are not persuaded by respondents’ arguments that Coleman’s claims should be dismissed for failure to exhaust administrative remedies. Accepting as true the assertion that respondents maintain policies and procedures as alleged, Coleman’s pursuit of the claims through the administrative process would have been futile (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]).

Pigott, J. (dissenting).

For over four years, petitioner Barbara Coleman has received the “temporary assistance” benefits she requested pursuant to former Social Services Law § 133 and, as the majority impliedly concedes, the issue as to whether she is entitled to those benefits is moot. Because in my view no exception to the mootness doctrine applies in light of the August 30, 2010 amendment to Social Services Law § 133, I respectfully dissent.

In November 2007, Coleman, with the assistance of counsel, applied for Medicaid and submitted to the New York City Human Resources Administration (HRA) requests for home care attendants and 24-hour home attendant services. The application erroneously stated that Coleman owned her own residence. Coleman’s counsel informed the HRA that Coleman had an IRA worth $45,801.91 and that additional documentation would follow.

On January 23, 2008, Coleman’s counsel supplemented Coleman’s application and corrected his original misstatement relative to Coleman’s home ownership. Neither the November 2007 nor January 2008 application requested “temporary assistance and medical assistance.” Indeed, it was not until May 22, 2008 that Coleman demanded, through her counsel, that HRA “immediately” award her “temporary medical assistance in the form of personal care attendants, 24 hours, 7 days a week” while HRA conducted its investigation as to her qualification for personal care attendants. This demand was made pursuant to now former Social Services Law § 133 which provided that “[i]f it shall appear that a person is in immediate need, temporary assistance or care shall be granted pending completion of an investigation.”

One week after Coleman’s demand, HRA found Coleman eligible for Medicaid benefits retroactive to March 1, 2008. Coleman commenced a hybrid CPLR article 78/42 USC § 1983 proceeding asserting, among other things, that the HRA Commissioner and the Commissioner of the New York State Department of Health failed to give her notice of the availability of temporary Medicaid in the form of personal care attendant services pursuant to Social Services Law § 133 and NY Constitution, article XVII, § 1, and that the HRA Commissioner failed to render a decision on requests for temporary medical assistance in a timely manner.

On June 26, 2008, HRA granted Coleman’s request for 24-hour-a-day/seven-day-per-week personal care services. Coleman began receiving the requested services on June 30, 2008. Upon the HRA Commissioner’s cross motion, Supreme Court dismissed Coleman’s claims as moot (2009 NY Slip Op 30643[U] [2009]). The Appellate Division reversed, holding that respondents’ policies of failing to notify Medicaid applicants of the availability of temporary assistance in the form of personal care attendants and failing to timely render a decision as to those services “appl[y] to other similarly situated Medicaid applicants and recipients” and fall within the “likely to recur” exception to the mootness doctrine (79 AD3d 554, 559 [1st Dept 2010]). I disagree.

“[W]here changed circumstances prevent [this Court] ‘from rendering a decision which would effectually determine an actual controversy between the parties involved,’ we will dismiss the appeal or reverse the lower court order and direct that court to dismiss the action” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 811 [2003], quoting Karger, Powers of the New York Court of Appeals § 71 [a] at 426 [3d ed]). “[A]n appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). In some rare situations where the issue is moot, judicial review may be warranted “where the issues are substantial or novel, likely to recur and capable of evading review” (City of New York v Maul, 14 NY3d 499, 507 [2010] [citations omitted]).

Coleman brought her claims under former Social Services Law § 133. While Coleman’s appeal to the Appellate Division was pending, that section was substantially amended to provide as follows:

“Upon application for public assistance or care under this chapter, the local social services district shall notify the applicant in writing of the availability of a monetary grant adequate to meet emergency needs assistance or care and shall, at such time, determine whether such person is in immediate need. If it shall appear that a person is in immediate need, emergency needs assistance or care shall be granted pending completion of an investigation. The written notification required by this section shall inform such person of a right to an expedited hearing when emergency needs assistance or care is denied. A public assistance applicant who has been denied emergency needs assistance or care must be given reason for such denial in a written determination which sets forth the basis for such denial” (emphasis supplied).

It is clear that the claim asserted by Coleman under former section 133 is not capable of repetition, nor will it evade review, because the amended Social Services Law § 133 addresses applicants who are in “immediate need” of “emergency needs assistance or care” who may be entitled to a “monetary grant.” The distinctions between the two provisions may be significant. Under the former section 133, Coleman’s situation arguably did not need to rise to the level of an emergency, whereas under the new section, it must necessarily rise to that level if an applicant is to meet the “immediate need” requirement. Moreover, former section 133 called for the provision of “temporary assistance or care” for qualifying individuals, whereas the current section 133 states that notice shall be provided concerning “the availability of a monetary grant adequate to meet emergency needs assistance or care” (emphasis supplied). On the other hand, future claimants may rely on the newly-added words “under this chapter” as support for their argument that section 133 applies to all benefits available under the Social Services Law—to Medicaid payments as well as to payments for food and shelter. So the claims asserted by Coleman under former section 133 cannot recur in light of this change in the law. Interpretation of a defunct statute under which Coleman is admittedly receiving benefits is of little value to future claimants who must now proceed under the current section 133, and, because Coleman’s section 1983 claim is premised on that defunct statute, that claim is similarly moot. I would therefore answer the certified question in the negative.

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

Order affirmed, etc.

       We express no opinion with respect to any claims that may be brought under the 2010 amendment to Social Services Law § 133.


text:
    [979 NE2d 1177, 955 NYS2d 850]
    The People of the State of New York, Respondent, v Carlos Herring, Appellant.
    Argued September 7, 2012;
    decided October 30, 2012
    APPEARANCES OF COUNSEL

      Diane E. Selker, Peekskill, for appellant.

      Thomas P. Zugibe, District Attorney, New City (Itamar J. Yeger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. During an early morning altercation in a crowded parking lot outside a nightclub in Rockland County, defendant Carlos Herring repeatedly shot and killed one man, wounded another and brandished his revolver at a third man. He was subsequently charged with second-degree murder, second-degree assault, second- and third-degree weapon possession and second-degree menacing. After a trial where defendant presented the defense of justification, the jury acquitted him of menacing and convicted him of the other crimes charged; the judge subsequently sentenced defendant to an aggregate term of 32 years to life in prison, to be followed by five years of postrelease supervision for the determinate sentences imposed for the assault and weapon possession crimes.

Defendant argued on appeal that he was entitled to a new trial because the judge did not respond properly when juror 7 informed her that juror 11 was sleeping during deliberations. The Appellate Division affirmed the judgment of conviction and sentence, concluding that “[ujnder the circumstances of this case, the County Court did not improvidently exercise its discretion in denying the defendant’s motion to discharge a certain juror or for a mistrial based on the alleged inattentiveness of that juror, after making an inquiry of that juror” (80 AD3d 711, 712 [2d Dept 2011]). We agree, and so affirm.

The judge learned that there was a potential problem with a juror during the morning of the second day of deliberations when juror 7 informed her that another juror was sleeping through deliberations. The court brought the jury into the courtroom and repeated the deliberation charge; the jurors then broke for lunch. Before the jury resumed deliberations in the afternoon, the judge asked juror 7 to identify the juror about whom he had complained, and juror 7 named juror 11.

The judge told counsel that she would ask juror 11 if she was suffering from a “significant illness which is preventing her from fulfilling her duties,” but that she would not ask her how much “time or effort she’s putting into deliberations because I think that goes too far into the privacy of that jury room.” Juror 11 was called into the courtroom. She expressed puzzlement as to why she was to be questioned by the judge. When told that “[i]t was reported . . . that perhaps [she was] sleeping during deliberations,” juror 11 declared “I wasn’t”; she unequivocally represented that she was ready, willing and able to discharge her duties as a juror.

The judge denied defendant’s requests for discharge of the juror and a mistrial, noting that juror 11 gave assurances that she was capable of “fulfilling her duties as a sworn juror[,] . . . is capable of serving as a juror, ... is prepared to do that,” and that juror 7 “stated very clearly that the conduct he observed earlier is not continuing.” The judge also “refuse[d] to inquire any further as to who is participating in deliberations, as to how they are participating in deliberations” as this would “invade[ ] the privacy and the province of that jury”; observed that she had “recharged [the jury] on deliberations and how to conduct themselves during deliberations”; and declined to “take the side of any juror” in light of juror ll’s responses to her inquiries. While there are circumstances where a juror’s behavior during deliberations renders that juror grossly unqualified, in this situation the trial judge did not abuse her discretion when she decided that juror 11 was fit to serve on the jury.

We have considered defendant’s other arguments and conclude that they lack merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of Carlos Abreu, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted September 4, 2012;
    decided October 30, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Brenda Andrews et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted August 20, 2012;
    decided October 30, 2012
   Motion for leave to appeal from the July 2012 Supreme Court judgment dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought. The October 2009 Appellate Division order dismissing the complaint was the final appealable paper (see CPLR 5611).


text:
    In the Matter of Centerpointe Corporate Park Partnership 350, Respondent, v Mony, Also Known as the MONY Group and Another, et al., Respondents. Broker Alliance Group, Inc., Appellant.
    Submitted July 30, 2012;
    decided October 30, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of City of New York, Respondent, v American Pipe and Tank Lining Co., Inc., Appellant.
    Submitted August 6, 2012;
    decided October 30, 2012
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion to renew, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    John R. Denza et al., Appellants, v Independence Plaza Associates, LLC, et al., Respondents.
    Submitted August 20, 2012;
    decided October 30, 2012
   Motion by Fifth Avenue Committee et al., insofar as it seeks leave to appear amici curiae on the motion for leave to appeal herein, granted and the proposed brief is accepted as filed; motion, insofar as it seeks leave to appear amici curiae on the appeal herein, dismissed as academic.


text:
    John R. Denza et al., Appellants, v Independence Plaza Associates, LLC, et al., Respondents.
    Submitted August 20, 2012;
    decided October 30, 2012
   Motion by New York State Senator Thomas K. Duane et al., insofar as it seeks leave to appear amici curiae on the motion for leave to appeal herein, granted and the proposed brief is accepted as filed; motion, insofar as it seeks leave to appear amici curiae on the appeal herein, dismissed as academic.


text:
    John R. Denza et al., Appellants, v Independence Plaza Associates, LLC, et al., Respondents.
    Submitted August 20, 2012;
    decided October 30, 2012
   Motion by Office of the Manhattan Borough President Scott M. Stringer et al., insofar as it seeks leave to appear amici curiae on the motion for leave to appeal herein, granted and the proposed brief is accepted as filed; motion, insofar as it seeks leave to appear amici curiae on the appeal herein, dismissed as academic.


text:
    In the Matter of Gregory J. Gilbert, Appellant, v Cindy G. Lafave, Respondent.
    Submitted September 10, 2012;
    decided October 30, 2012
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shawn G. Granger, Respondent, v Danielle D. Misercola, Appellant.
    Submitted August 6, 2012;
    decided October 30, 2012
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    In the Matter of the Claim of David W. Howard, Respondent, v Stature Electric, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted August 13, 2012;
    decided October 30, 2012
   Motion to strike the supplemental appendix and portions of the brief filed by respondent David W. Howard granted to the extent of deeming stricken the material in the brief that refers to the supplemental appendix; motion to strike otherwise denied.


text:
    James L. Kapsis, Appellant, v Michael S. Peragine et al., Respondents.
    Submitted August 27, 2012;
    decided October 30, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    James Lastra, Appellant, v Barnes and Noble et al., Respondents.
    Decided October 30, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Latipac Corp., Appellant, v BMH Realty LLC et al., Respondents.
    Submitted August 27, 2012;
    decided October 30, 2012
   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:
    The People of the State of New York, Respondent, v John Reitano, Appellant.
    Submitted August 27, 2012;
    decided October 30, 2012
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 708 (2010)].


text:
    The People of the State of New York ex rel. Frank Lagano, Appellant, v William A. Lee, Respondent.
    Submitted September 10, 2012;
    decided October 30, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Arkel Wilson, Respondent, v New York City Housing Authority et al., Appellants.
    Submitted August 27, 2012;
    decided October 30, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type provided for in CPLR 5602 (a) (2).


author: Graffeo, J.

text:
    [808 NE2d 336, 776 NYS2d 201]
    The People of the State of New York, Respondent, v Dexter Hemmings, Appellant.
    Argued February 17, 2004;
    decided March 30, 2004

      POINTS OF COUNSEL

      White & White, New York City (Brendan White and Diarmuid White of counsel), for appellant.
    I. The sentence must be vacated because the sentencing judge erred in permitting several nonstatutory “victims” to make inflammatory statements at sentencing over defendant’s objection. (People v Rivers, 262 AD2d 108; People v Julia, 40 AD2d 560; People v Pons, 68 NY2d 264; People v Blaich, 201 AD2d 661; People v Bolson, 185 Misc 2d 753; People v Iovinella, 295 AD2d 753; People v Arroyo, 284 AB2d 735; People v Wright, 187 AD2d 1016; People v Raucci, 136 AD2d 48; People v Branshaw, 177 AD2d 1028.) II. The evidence was insufficient to convict defendant of criminal possession of a weapon in the second degree because the prosecution did not prove “intent to use the same unlawfully against another” under Penal Law § 265.03. (People v Pons, 68 NY2d 264; People v Almodovar, 62 NY2d 126; Jackson v Virginia, 443 US 307; Davis v Strack, 270 F3d 111; People v Ramos, 193 Mise 2d 564; People v Salcedo, 92 NY2d 1019; People v Okafore, 72 NY2d 81; People v Almanzar, 209 AD2d 285; People v Rowe, 271 AD2d 217; People v Howard, 270 AD2d 117.) III. To the extent that any failure of defense counsel to adequately register a protest is deemed to render a claim raised herein unpreserved for appellate review, defendant was denied effective assistance of counsel. (People v Finger, 95 NY2d 894; People v Gray, 86 NY2d 10; People v Benevento, 91 NY2d 708; Strickland v Washington, 466 US 668.)

      Robert T. Johnson, District Attorney, Bronx (Cynthia J. Pree, Joseph N. Ferdenzi and Stanley R. Kaplan of counsel), for respondent.
    I. The court properly allowed Darnell Brown’s family members and his close friend to address the court at sentencing. (People v Albert, 85 NY2d 851; People v Hansen, 99 NY2d 339; People v McClain, 35 NY2d 483; People v Wright, 187 AD2d 1016; People v Rivers, 262 AD2d 108, 94 NY2d 828; People v Hicks, 98 NY2d 185; People v Day, 73 NY2d 208; People v Naranjo, 89 NY2d 1047; People v Iovinella, 295 AD2d 753.) II. Defendant’s conviction of criminal possession of a weapon in the second degree was supported by legally sufficient evidence. (People v LaFontaine, 92 NY2d 470; People v Gray, 86 NY2d 10; People v Finger, 95 NY2d 894; People v O’Hara, 96 NY2d 378; People v Stahl, 53 NY2d 1048; People v Cintron, 95 NY2d 329; People v Contes, 60 NY2d 620; People v Okafore, 72 NY2d 81; People v Russell, 227 AD2d 232; People v Tucker, 55 NY2d 1.) III. Counsel was not ineffective for failing to object that the evidence was insufficient to support a conviction for criminal possession of a weapon in the second degree. (People v Benevento, 91 NY2d 708; Strickland v Washington, 466 US 668.)
   OPINION OF THE COURT

Graffeo, J.

In this case, we must determine whether sentencing courts have discretion to allow more than one person to make a victim impact statement at sentencing, beyond the single statement from the victim or victim’s surrogate mandated in CPL 380.50 (2). We hold that they do and, under the circumstances of this case, conclude that the sentencing court did not abuse its discretion in allowing five people to make statements at defendant’s sentencing.

It is undisputed that, on a night in November 1999, defendant shot and killed Darnell Brown. As a result of the incident, he was charged with murder in the second degree, manslaughter in the first degree, attempted assault in the third degree and criminal possession of a weapon in the second, third and fourth degrees. Defendant testified at his jury trial, pursuing a justification defense. He acknowledged that earlier on the evening of the shooting he had a dispute with Brown over some property he believed Brown had stolen from him. Defendant testified that he went in search of Brown while armed with a loaded handgun and eventually encountered him in the vestibule of Brown’s apartment building. According to defendant, Brown pointed a gun at him and attempted to shoot first but the gun did not discharge. Defendant contended that he and Brown ultimately fought over defendant’s weapon and, in the course of that struggle, defendant fatally shot Brown in self-defense. The jury returned a verdict acquitting defendant of the homicide counts and convicting him of criminal possession of a weapon in the second degree.

At the sentencing proceeding, the prosecutor sought permission to call several of Brown’s family members and a friend to offer victim impact statements. Defense counsel objected on the ground that hearing “any number of impact statements” would “becloud the judicial atmosphere” and confuse the sentencing process. The sentencing court rejected defendant’s argument and concluded that it had discretion to hear the statements. Brown’s mother, the mother of Brown’s child, his uncle, his cousin and a close friend each spoke at the sentencing proceeding and asked that the court give defendant the maximum sentence allowed by law.

The sentence available for criminal possession of a weapon in the second degree under these circumstances ranged from affording defendant, who was 18 years old at the time of the crime, youthful offender status without incarceration to a term of 15 years in prison. In the presentence investigation report, the probation department recommended that defendant be adjudicated a youthful offender, the disposition requested by defense counsel. The People urged that defendant should receive the maximum 15-year prison sentence. Noting that it had consulted a three-judge sentencing panel for a recommendation concerning the appropriate sentence, the court concluded that a youthful offender finding would not be appropriate and imposed a determinate sentence of eight years. Defendant appealed to the Appellate Division, which affirmed his conviction and declined to disturb the sentence. A Judge of this Court granted defendant leave to appeal.

Relying on CPL 380.50 (2), defendant asserts on appeal that the sentencing court lacked authority to hear the victim impact statements from Brown’s family and friend whom he characterizes as “non-statutory” victims. CPL 380.50 (2) (b) provides that where defendant is convicted of a felony, the sentencing court “shall accord the victim the right to make a statement with regard to any matter relevant to the question of sentence.” As defined in the statute, the term victim encompasses the victim of the crime or a surrogate if the victim is deceased, or is unable or unwilling to appear at sentencing (CPL 380.50 [2] [a]).

Defendant’s primary argument is that the statute authorizes a sentencing court to hear a single victim impact statement and that the court exceeded its authority when it allowed more than one victim surrogate to speak at the sentencing proceeding. Upon review of the language and legislative history of CPL 380.50 (2), we disagree.

Enacted in 1992, CPL 380.50 (2) was part of a longstanding effort by victim advocacy groups and others to afford victims a greater voice in the criminal justice process, particularly with respect to sentencing. This reform effort involved strengthening restitution provisions (see Penal Law § 60.27; see generally People v Horne, 97 NY2d 404 [2002]), led to the inclusion of victim impact statements in presentence investigation reports (see CPL 390.30 [3] [b]), and culminated with the enactment of CPL 380.50 (2) granting victims a right to personally address the court at sentencing proceedings (L 1992, ch 307, § 1; see also L 1993, ch 499).

Traditionally, New York courts have exercised broad discretion to determine the appropriate sentence for a particular offense within the range prescribed by law. Before the enactment of CPL 380.50 (2), no statute or decision of this Court precluded a sentencing court from hearing remarks by victims to assist the court in exercising its broad discretion over sentencing— and many courts routinely did. Indeed, at the time the legislation was passed, it was viewed by some as unnecessary, with the Office of Court Administration commenting that “[n]othing in current law prevents a court from permitting a crime victim to make a statement at sentencing in appropriate cases” (Mem of Off of Ct Admin, Bill Jacket, L 1992, ch 307, at 16; see also Mem of New York State Law Enforcement Council, Bill Jacket, L 1992, ch 307, at 36).

CPL 380.50 (2) was significant because it unequivocally granted victims a right to speak at sentencing; “[w]hile some sentencing courts had permitted oral victim impact statement [sic] prior to passage of that legislation, it was not a universally accepted practice” (Mem of Assemblywoman Mayersohn, Bill Jacket, L 1993, ch 499, at 5). Thus, the statute elevated what had previously been a privilege left entirely to the discretion of the sentencing court to “a right that a victim could exercise at his or her discretion” (id.). CPL 380.50 (2) requires the court to allow any victim (or a surrogate) to speak at sentencing. Nothing in the statute’s language or legislative history suggests, however, that the provision was intended to otherwise restrict a sentencing court’s discretionary authority to allow others close to the victim to address the court at sentencing and we therefore decline to read such a limitation into the statute.

As with any exercise of discretion, a court should carefully consider the extent to which additional victim impact statements will assist the court in reaching an appropriate sentencing determination. Multiple statements should not be allowed if the court concludes they will be unduly prejudicial to the defendant or will negatively impact the fair administration of justice. Needless to say, a court remains free, in the exercise of its discretion, to decline a prosecutor’s request to offer more than one victim impact statement or to restrict the number or length of such statements where they would be unhelpful, repetitive, inflammatory or otherwise inappropriate.

In this case, the court did not abuse its discretion in allowing the victim impact statements at the sentencing proceeding. The court noted that it had no reason to believe that the statements offered by the victim’s family members and his friend would be inflammatory or inappropriate. The relatively brief statements consisted largely of descriptions of the incident—facts well known to the sentencing court—and requests for a maximum sentence that were cumulative of one another. Defendant argues that his youth and lack of a serious criminal record militated in favor of a shorter sentence and the court’s imposition of a significant prison term could only have resulted from the improper influence of the victim impact statements. We are unpersuaded that defendant was unduly prejudiced by the remarks and find it significant that the court did not impose the maximum sentence but chose a term of imprisonment well within the permissible range despite the grave circumstances surrounding defendant’s possession of a loaded weapon with the intent to use it unlawfully.

Defendant’s argument that his conviction was not supported by sufficient evidence is not preserved for review (see People v Gray, 86 NY2d 10, 19 [1995]). As for defendant’s contention that he was denied the effective assistance of counsel, we cannot say on this record that defendant’s trial counsel, who secured an acquittal on each of the homicide counts, failed to provide meaningful representation.

Accordingly, the order of the Appellate Division should he affirmed.

Chief Judge Kaye and Judges G.B. Smith, Cipajrick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed.

       At the sentencing proceeding, defense counsel also questioned whether a victim impact statement was appropriate because defendant was convicted only of the weapon possession offense. On appeal, defendant argues that his crime had no victim. We disagree. Defendant was convicted of criminal possession of a weapon in the second degree, which required proof that he possessed a loaded firearm “with intent to use the same unlawfully against another” (Penal Law § 265.03 [2]). Despite defendant’s assertions to the contrary, by convicting defendant of this offense, the jury found that on the night of the shooting defendant carried the gun intending to use it unlawfully. Although defendant suggests that the acquittals negate any unlawful intent, it would be “imprudent to speculate concerning the factual determinations that underlay the verdict[s]” of not guilty on the homicide counts; the jury may have credited defendant’s justification defense, could have concluded the People simply failed to establish defendant’s guilt beyond a reasonable doubt, or might have been exercising leniency (People v Horne, 97 NY2d 404, 413 [2002]). Under the circumstances, it was well within the sentencing court’s discretion to permit people close to Brown to address the court prior to sentencing.


author: ClPARICK, J.

text:
    [808 NE2d 344, 776 NYS2d 209]
    The People of the State of New York, Respondent, v Kenneth Smith, Appellant.
    Argued February 18, 2004;
    decided April 1, 2004

      POINTS OF COUNSEL

      Robert E. Corrigan, Hackensack, New Jersey, for appellant.
    The introduction of expert police testimony outlining how drugs and money are handled in a multiparticipant, street-level drug dealing business, and explaining that the sellers might take various measures to thwart the recovery of buy money and additional drugs, deprived appellant of due process and a fair trial, because the proof depicted a sale made by a single seller, acting alone. (People v Brown, 97 NY2d 500; Cassano v Hagstrom, 5 NY2d 643; People v Taylor, 75 NY2d 277; People v Cronin, 60 NY2d 430; People v Colon, 238 AD2d 18; People v Bethea, 261 AD2d 629; People v Lee, 96 NY2d 157; People v Henson, 33 NY2d 63; People v Suya, 295 AD2d 173; People v Taylor, 247 AD2d 277.)

      Robert M. Morgenthau, District Attorney, New York City {Jennifer Chung and Donald J. Siewert of counsel), for respondent.
    Defendant has failed to preserve his contention that Justice Stackhouse abused his discretion by admitting the undercover officer’s expert testimony at the trial. On the merits, the record does not support defendant’s claim. Any error in this regard was harmless. (People v Brown, 97 NY2d 500; People v Cronin, 60 NY2d 430; People v Kelsey, 194 AD2d 248; People v Tevaha, 84 NY2d 879; People v Stephens, 84 NY2d 990; People v Graves, 85 NY2d 1024; People v Garcia, 83 NY2d 817; People v Bethea, 261 AD2d 629; People v Starling, 85 NY2d 509; People v Clark, 41 NY2d 612.)
   OPINION OF THE COURT

ClPARICK, J.

This appeal presents the question whether the trial court abused its discretion in allowing the introduction of expert testimony as to the money handling aspects of street-level, multi-member narcotics operations where the evidence presented was of a single transaction involving only the defendant and an undercover officer. Under the facts presented, we hold that the trial court abused its discretion. We conclude, however, that the error was harmless and, therefore, affirm the Appellate Division order upholding defendant’s conviction.

On March 3, 1999, a narcotics “buy-and-bust” field team of three was organized to conduct operations in central Harlem. The team included a primary undercover officer in charge of hand-to-hand drug transactions, a “ghost” undercover officer responsible for ensuring the safety of the primary undercover and an arresting officer. On his way to meet other field team members, the “ghost” undercover officer saw defendant across the street on 128th Street between Lenox and Fifth Avenues. Defendant was standing curbside and looking back and forth. As the undercover walked toward Fifth Avenue, defendant began to walk in the same direction. He then stopped at the street corner to look at the undercover.

Concerned that defendant was suspicious of police activity, the undercover crossed over to defendant and asked him if anyone was “working” the street. He then asked defendant for a “dime,” or $10 worth of crack cocaine. After some hesitation, defendant responded “I’ll hook you up” and said he had what the officer wanted. The undercover gave defendant $10 in prerecorded buy money, and defendant reached into his pocket to retrieve a white-topped vial which he gave to the undercover. The vial contained a white powder that later tested positive for cocaine.

After the purchase, the undercover attempted to lure defendant to the location of the other field team members. The undercover told defendant that he needed to get money from his cousin who lived nearby and that, if the “product” was good, he would use the money to buy more. Defendant assured the undercover that he was going to like the cocaine, and the two turned the corner onto Fifth Avenue. After they walked side-by-side about a quarter of the block toward 129th Street, defendant stopped abruptly. Defendant told the undercover that he would “hook up” with him again the following day, and walked back toward 128th Street.

When defendant turned the corner, the undercover radioed his field team that he had made a “positive buy” and described defendant as a black male wearing bright orange pants, a light blue Yankees baseball cap and multiple jackets. He also described the location and direction in which defendant was walking. The field team’s arresting officer arrived minutes later and discovered defendant, who matched the description, standing where the undercover first encountered him. Defendant was arrested and searched. A white-topped vial containing white powder was recovered from defendant’s person, but no prerecorded buy money was found. The substance in the vial tested positive for cocaine. Shortly after defendant’s arrest, and about five minutes after the drug purchase, the undercover made a drive-by confirmatory identification of defendant as the seller.

Defendant was charged in an indictment with criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the third degree (Penal Law § 220.16). In defense counsel’s opening remarks to the jury, she suggested that—because the undercover was preparing to “ghost” another transaction at the time he encountered defendant—the buy-and-bust operation was faulty. The People called the “ghost” undercover officer as a witness and he described the intricacies of street-level narcotics operations. Specifically, over defendant’s objection, the court permitted him to testify as to the different roles and functions performed by persons involved in multi-member street-level narcotic sales and how these individuals worked together. The undercover used this expert testimony to explain why police do not always recover buy money following buy-and-bust operations.

Defendant was acquitted of criminal possession of a controlled substance in the third degree (Penal Law § 220.16), but convicted of criminal sale of a controlled substance in the third degree (Penal Law § 220.39) and criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03), and sentenced, as a second felony offender, to concurrent terms of 4x/2 to 9 years and 1 year, respectively. The Appellate Division affirmed the conviction (304 AD2d 375 [2003]). A Judge of this Court granted defendant leave to appeal and we now affirm.

Relying on this Court’s recent decision in People v Brown (97 NY2d 500 [2002]), defendant argues that the trial court abused its discretion in permitting the introduction of the undercover’s expert testimony on street-level narcotics transactions because the evidence presented was that defendant acted alone. There was no evidence of accomplices.

In Brown, the defendant was arrested following a buy-and-bust operation (97 NY2d 500 [2002]). As no drugs or prerecorded buy money were found on her person, the defendant argued to the jury that the police misidentified her as the seller (see Brown, 97 NY2d at 503). In response to this misidentification defense, the People offered expert testimony regarding multi-level narcotics transactions to explain why those accused of selling narcotics may not have either drugs or prerecorded buy money on their person shortly after a sale (Brown, 97 NY2d at 504-505). We held that such expert testimony may be appropriate as “the average juror is [un]aware of the specialized terminology used in the course of narcotics street sales or the intricacies of how drugs and money are shuttled about in an effort to prevent their discovery and seizure by the police” (Brown, 97 NY2d at 505 [citations omitted]).

Nonetheless, “[w]e caution[ed] that such expert testimony is not necessarily proper in every drug sale case where a defendant asserts a misidentification defense” (97 NY2d at 506). In Brown, an adequate factual basis existed to permit expert testimony on street-level narcotics transactions because the testimony of “the undercover officer detailed the sequence of events and the interactions of the various individuals he encountered before, during and after the cocaine sale” (97 NY2d at 506). The mere absence of drugs or marked money on the accused, however, cannot by itself serve “as an automatic basis to introduce expert testimony addressing the general characteristics of street drug transactions” (97 NY2d at 506).

Here, the undercover did not testify that defendant interacted with other persons before, during or after the sale. Instead, he testified that—at the time of the transaction—“no one but [defendant] was in the area” and that defendant did not “interact” with any other persons. The undercover spoke only with defendant and gave the prerecorded buy money directly to defendant in exchange for a vial that defendant retrieved from his own pocket. Given that no evidence existed that the transaction at issue involved anyone other than defendant, the trial court abused its discretion in permitting the expert testimony regarding multi-individual, street-level narcotics operations.

We conclude, however, that this error was harmless because there is otherwise overwhelming proof of the defendant’s guilt and there is no significant probability that the jury would have acquitted the defendant had it not been for the error that occurred (People v Crimmins, 36 NY2d 230, 242 [1975]).

Excising the improper expert testimony, there was overwhelming evidence that defendant was guilty of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. The undercover gave detailed testimony that he purchased the cocaine from defendant, and that he had a fairly extensive interaction with defendant—walking and talking to him for at least a quarter of a street block after the sale—and that he had made a studied observation of defendant’s face. Soon thereafter, the undercover transmitted to his field team that he made a positive buy and described defendant as a black male wearing bright orange pants, a blue Yankees baseball cap and multiple jackets. The arresting officer arrived at the location within minutes and discovered defendant, fitting the description. A few minutes later, the undercover officer made a drive-by confirmatory identification of defendant as the person from whom he had purchased drugs several minutes earlier.

Further, the arresting officer testified that he recovered narcotics from defendant’s person—a white-topped vial of cocaine, which matched the one defendant sold to the undercover. He also testified, without objection, that the failure to locate prerecorded buy money following a transaction is “not uncommon . . . . It’s often hidden or gotten rid of real fast . . . .” Finally, the police chemist testified that the white substance contained in both the vial used in the sale and the matching vial found on defendant contained cocaine. In light of this overwhelming proof, there is no significant probability that, had it not been for the admission of the undercover’s expert testimony, the jury would have acquitted the defendant (see Crimmins, 36 NY2d at 242).

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed.

      . At trial only the arresting officer and the “ghost” undercover testified.

      . Trial of this matter was held in October 1999, before our Brown decision.

      . The arresting officer testified that he also stopped another man that he saw smoking a crack pipe and walking about 20 feet ahead of defendant, but did not observe any interaction between the two men. Neither did this second man have any of the prerecorded buy money in his possession.