source: Caselaw Access Project

license: Public Domain

text:
    [36 NE3d 89, 15 NYS3d 286]
    The People of the State of New York, Respondent, v Stanley A. Brown, Appellant.
    Argued June 4, 2015;
    decided June 25, 2015
    APPEARANCES OF COUNSEL

      Davison Law Office, PLLC, Canandaigua {Mark C. Davison of counsel), for appellant.

      Hannah E.C. Moore and Jacqueline L. Spratt, New York Prosecutors Training Institute, Inc., Albany, and Cindy F. Intschert, District Attorney, Watertown, for respondent.
   OPINION OF THE COURT

Order affirmed, without costs. Defendant’s contentions have not been preserved for this Court’s review.

Concur: Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey.


text:
    [36 NE3d 640, 15 NYS3d 733]
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey, as Acting Commissioner of the New York State Office of Parks, Recreation and Historic Preservation, et al., Respondents. New York University, Third-Party Respondent.
    Argued June 2, 2015;
    decided June 30, 2015

      APPEARANCES OF COUNSEL

      Gibson, Dunn & Crutcher LLP, New York City (Caitlin J. Halligan, Randy M. Mastro, Indraneel Sur, Gabriel K. Gillett, Sarah Vacchiano and Laura F. Corbin of counsel), for appellants.

      Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor, Richard Dearing, Chris Reo and Elizabeth Harris of counsel), for respondents.

      Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C. (Seth P. Waxman, of the District of Columbia bar, admitted pro hac vice, Kelly P. Dunbar, Albinas J. Prizgintas, of the District of Columbia bar, admitted pro hac vice, and Adam I. Klein of counsel), Wilmer Cutler Pickering Hale and Dorr LLP, New York City (Alan E. Schoenfeld of counsel), Bryan Cave LLP, New York City (Philip E. Karmel of counsel), and Cooley

      LLP, New York City (Alan Levine, Celia Goldwag Barenholtz and Michael Blasie of counsel), for third-party respondent.

      Lawrence B. Goldberg, P.C., New York City (Lawrence B. Goldberg of counsel), for Friends of LaGuardia Place, Inc. and others, amici curiae.

      Albert K. Butzel Law Offices, New York City (Albert K. Butzel of counsel), for Michael C. Blumm and others, amici curiae.

      Holwell Shuster & Goldberg LLP, New York City (Richard J. Holwell, Daniel M. Sullivan and Andrew B. Breidenbach of counsel), for New York Civic, amicus curiae.

      Weil, Gotshal & Manges LLP, New York City (Gregory Silbert and Adam B. Banks of counsel), for New York State Legislators, amici curiae.

      Proskauer Rose LLP, New York City (Charles S. Sims and Celia V. Cohen of counsel), for New Yorkers for Parks and others, amici curiae.

      Wade Beltramo, General Counsel, New York State Conference of Mayors and Municipal Officials, Albany, and The Association of Towns of the State of New York, Albany (Sarah Brancatella of counsel), for New York State Conference of Mayors and Municipal Officials and others, amici curiae.

      Derohannesian & Derohannesian, Albany (Paul Derohannesian II of counsel), for Sierra Club, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

The issue before us is whether four parcels of municipal land in the Greenwich Village area of New York City near the campus of New York University (NYU) were impliedly dedicated as public parkland and therefore fall under the protection of the public trust doctrine, which requires approval of the state legislature before the land can be alienated (see Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 654 [2014]; Friends of Van Cortlandt Park v City of New York, 95 NY2d 623, 630 [2001]). We conclude that petitioners have failed to meet their burden of demonstrating the requisite implied dedication.

In July 2012, the New York City Council approved NYU’s plan to expand its campus. The project involves demapping certain areas currently designated as streets on City maps and using them, either permanently or for some part of 20 years, in connection with construction of new buildings. The four disputed parcels, which are Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run, feature open space that has been available to the public for years. Two of the parcels (Mercer Playground and LaGuardia Park) will be inaccessible during construction and have been approved for later dedication as parkland, subject to perpetual easements granted to NYU for utilities and access. LaGuardia Corner Gardens will be affected during construction as well as by shadows that will result from a building being constructed as part of the project. The Dog Run will be moved to a nearby space.

Mercer Playground, which opened in 1999, is a paved children’s skating and biking park. The New York City Department of Parks and Recreation (DPR) developed the playground under a New York City Department of Transportation (DOT) permit “for the temporary use and occupation of the . . . property . . . for playground or park purposes.” The letter of approval for the permit stated that “ [i] t is expressly understood that in the event that [the] DOT requires the occupied property in order to perform capital construction work, [the] DPR shall vacate it and return it to [the] DOT so that such work can take place.” The DPR spent City funds to improve the playground and marked it with DPR signage.

LaGuardia Park sits next to LaGuardia Place and has paved walkways, greenery and a privately-funded statue of former Mayor LaGuardia. Pursuant to the City’s Greenstreet program undertaken in partnership between the DPR and the DOT, the City developed a toddler’s playground called Adrienne’s Garden on this parcel. Like other Greenstreet sites, this development was subject to a memorandum of understanding declaring that it “will always remain as DOT jurisdictional property], available for DOT purposes and uses as needed.” And, in participating in the Greenstreet program, the DPR and the DOT acknowledged that Greenstreet sites such as LaGuardia Park “are not intended to be formal or implied dedicated parklands.”

As for LaGuardia Corner Gardens, volunteers for the nonprofit entity LaGuardia Corner Gardens, Inc. (LGCG), tend to that parcel. Since 1981, the Gardens have been part of the DPR-administered GreenThumb gardens program, and the DPR erected signs there bearing the DPR insignia. At first, the DOT leased the Gardens to LGCG “on a yearly basis, ... renewable only upon consent from the [DOT]” but it later merely licensed the gardens for LGCG’s occupancy “on an interim basis, pending the future development or other use of the [p]remises.” Finally, the Mercer-Houston Dog Run is a fenced-in area that was constructed by NYU in 1979. Since 1981, a nonprofit corporation has operated the Dog Run and granted access only to paying members. The DPR is not involved with the Dog Run.

After the City Council’s approval of NYU’s plan, various individual and institutional opponents of the plan (petitioners) commenced this CPLR article 78 proceeding/declaratory judgment action against the City as well as some of its agencies and officials (the City respondents). Petitioners sought an injunction of the City’s planned transfer of the parcels and a declaration that the City respondents had unlawfully alienated impliedly dedicated public parkland in violation of the public trust doctrine. The City respondents answered and separately cross-moved to dismiss the amended article 78 petition. NYU also answered and cross-moved to dismiss.

Supreme Court, in pertinent part, denied the cross motions as to petitioners’ first cause of action, declared that the City respondents had illegally alienated all parcels except for the Mercer-Houston Dog Run, and enjoined NYU from starting construction on any of the remaining three parcels without legislative authorization. Supreme Court concluded that, because petitioners had shown the public’s acceptance of those three parcels as parkland and the City’s intent to dedicate them as such, the petitioners had demonstrated the City’s implied dedication of the parcels as public parkland and that its subsequent alienation of those parcels violated the public trust doctrine.

The Appellate Division modified the judgment on the law, to the extent of granting the cross motions to dismiss petitioners’ first cause of action, vacating the declaratory and injunctive relief, denying the petition and dismissing the proceeding, and otherwise affirmed (see 121 AD3d 498, 499 [1st Dept 2014]). The Appellate Division concluded that “petitioners . . . failed to meet their burden of showing that the City’s acts and declarations manifested a present, fixed, and unequivocal intent to dedicate any of the parcels at issue as public parkland” (121 AD3d at 499). We now affirm.

In support of their appeal, petitioners again advance their argument that the City’s actions manifest its intent to impliedly dedicate the parcels as parkland. Under the public trust doctrine, a land owner cannot alienate land that has been impliedly dedicated to a public use without obtaining the approval of the legislature (see Union Sq. Park Community Coalition, Inc. v New York City Dept. of Parks & Recreation, 22 NY3d 648, 654 [2014]; Friends of Van Cortlandt Park, 95 NY2d at 630). A party seeking to establish such an implied dedication and thereby successfully challenge the alienation of the land must show that (1) “[t]he acts and declarations of the land owner indicating the intent to dedicate his land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication” and (2) that the public has accepted the land as dedicated to a public use (Niagara Falls Suspension Bridge Co. v Bachman, 66 NY 261, 269 [1876]; see also Holdane v Trustees of Vil. of Cold Spring, 21 NY 474, 477 [1860] [“The owner’s acts and declarations should be deliberate, unequivocal and decisive, manifesting a positive and unmistakable intention to permanently abandon his property to the specific public use”]; Flack v Village of Green Is., 122 NY 107, 113 [1890]; Powell v City of New York, 85 AD3d 429, 431 [1st Dept 2011]).

It remains an open question whether the second prong of the implied dedication doctrine applies to a municipal land owner, but we need not and do not resolve that issue on this appeal because we conclude that the City’s acts are not an unequivocal manifestation of an intent to dedicate the parcels as permanent parkland. With respect to the element of the owner’s intent — the only matter contested in this appeal — if a landowner’s acts are “equivocal, or do not clearly and plainly indicate the intention to permanently abandon the property to the use of the public, they are insufficient to establish a case of dedication” (Holdane, 21 NY at 477-478).

Here, as the Appellate Division noted, several documents created prior to this litigation demonstrate that the City did not manifest an unequivocal intent to dedicate the contested parcels for use as public parks. The permit, memorandum of understanding and lease/license relating to Mercer Playground, LaGuardia Park and LaGuardia Corner Gardens, respectively, show that “any management of the parcels by the [DPR] was understood to be temporary and provisional” (121 AD3d at 499). Thus, those documents’ restrictive terms show that, although the City permitted and encouraged some use of these three parcels for recreational and park-like purposes, it had no intention of permanently giving up control of the property. And, as the Appellate Division observed, the City’s “refus[al] [of] various requests to have the streets de-mapped and rededicated as parkland” (id.) further indicates that the City has not unequivocally manifested an intent to dedicate the parcels as parkland.

That a portion of the public may have believed that these parcels are permanent parkland does not warrant a contrary result. Petitioners did not establish the City’s unequivocal intent to permanently dedicate this municipal property, as there was evidence that the City intended the uses to be temporary, with the parcels to remain under the City’s control for possible alternative future uses.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, with costs, in a memorandum.

       While petitioners assert that both the Supreme Court and the Appellate Division erred in holding that the Mercer-Houston Dog Run was not used as parkland, this argument lacks merit.


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    In the Matter of Christina A. Agola, a Suspended Attorney, Appellant. Grievance Committee of the Seventh Judicial District, Respondent.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Rivera and Fahey taking no part.


text:
    James Brady, Appellant, v Jeffrey Katz et al., Respondents. James Brady, Appellant, v 450 West 31st Street Owner’s Corp. et al., Respondents.
    Submitted May 26, 2015;
    decided June 25, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 979 (2015)]. Motion for a stay dismissed as academic.


text:
    In the Matter of Christopher P. et al., Appellants, v Jason Sidney G. et al., Respondents. (Proceeding No. 1.) In the Matter of Kevin M. et al., Respondents, v Jason Sidney G. et al., Respondents. Christopher P. et al., Nonparty Appellants. (Proceeding No. 2.)
    Submitted May 11, 2015;
    decided June 25, 2015
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Doreen Harris, Also Known as Dorothy Miller, Appellant, v City of New York et al., Respondents.
    Submitted March 30, 2015;
    decided June 25, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. 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:
    Michael Wesley Harris, Appellant, v The Union Theological Seminary in the City of New York, Respondent.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Willie Ivy, Appellant, v Albert Prack, Respondent.
    Submitted June 1, 2015;
    decided June 25, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    KeySpan Gas East Corporation, Respondent, v Munich Reinsurance America, Inc., et al., Defendants, and Century Indemnity Company et al., Appellants.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie. The terms of this Court’s remittitur were not violated.

Chief Judge Lippman and Judge Rivera taking no part.


text:
    Stacy S. Killon, Respondent, v Robert A. Parrotta, Appellant.
    Decided June 25, 2015
   Appeal, insofar as it seeks review of the Appellate Division order entered February 26, 2015, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved. Defendant’s appeal from the February 26, 2015 Appellate Division order brings up for review only the prior nonfinal Appellate Division order entered August 30, 2012 (see CPLR 5601 [d], [a]; Matter of Hertz Corp. [Commissioner of Labor], 100 NY2d 553, 554 [2003]; Curiale v Ardra Ins. Co., 86 NY2d 774 [1995]; Matter of Greatsinger, 66 NY2d 680, 682-683 [1985]; Gilroy v American Broadcasting Co., 46 NY2d 580, 584 [1979]).

Judge Stein taking no part.


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    In the Matter of James Melvin Lee, Appellant, v The People of the State of New York et al., Respondents.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Wilhelm Noel, Appellant, v Bryan Tyler, Respondent.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v James Ballard, Appellant.
    Submitted June 8, 2015;
    decided June 25, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Immanuel Flowers, Appellant.
    Submitted June 22, 2015;
    decided June 25, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., 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, Respondent, v Quanaparker Howard, Appellant.
    Submitted June 8, 2015;
    decided June 25, 2015
   Motion for poor person relief granted.


text:
    The People of the State of New York, Appellant, v Javier Sanchez, Respondent.
    Submitted June 15, 2015;
    decided June 25, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


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    The People of the State of New York, Respondent, v Marino Serrano, Appellant.
    Submitted June 15, 2015;
    decided June 25, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., 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, Respondent, v Mactar Sougou, Appellant.
    Submitted June 8, 2015;
    decided June 25, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., 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, Respondent, v Rita Thompson, Appellant.
    Submitted June 8, 2015;
    decided June 25, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


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    The People of the State of New York ex rel. Cory Reid, Appellant, v C. Augustus, Respondent.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


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    The People of the State of New York ex rel. Nouchie Vellon, Appellant, v Dale Artus, Respondent.
    Submitted May 4, 2015;
    decided June 25, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    PS 157 Lofts LLC et al., Respondents, v Kimberly Austin et al., Appellants.
    Submitted May 18, 2015;
    decided June 25, 2015
   Motion to dismiss appeal granted and appeal dismissed, with $400 costs and $100 cost of motion, upon the ground that the Court of Appeals does not have jurisdiction to entertain an appeal from an order of the Appellate Term of Supreme Court (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for sanctions and other relief denied.


text:
    Steven C. Ridge, Appellant, v Alice Gold et al., Defendants, and Jay Braymiller, Respondent.
    Submitted June 15, 2015;
    decided June 25, 2015
   Motion to dismiss appeal denied.


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    Evelyn Rivera, as Administratrix of the Estate of Wilbur Rodriguez, Deceased, Appellant, v Montefiore Medical Center, Respondent.
    Submitted May 4, 2015;
    decided June 25, 2015
   Motion to dismiss appeal denied.


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    In the Matter of Sheila Robinson, Appellant, v The People of the State of New York et al., Respondents.
    Submitted May 18, 2015;
    decided June 25, 2015
   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.


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    In the Matter of Rodney W., Respondent, v Josephine F., Appellant.
    Submitted May 11, 2015;
    decided June 25, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


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    In the Matter of Akhtar Ali Sheikh, Appellant, v New York City Taxi and Limousine Commission, Respondent.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


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    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants, TIG Insurance Company et al., Respondents.
    Decided June 25, 2015

      See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Certification of questions by the Supreme Court of the State of Delaware, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


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    In the Matter of the Estate of Stanley A. Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted April 13, 2015;
    decided June 25, 2015
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602 [a]).

Chief Judge Lippman taking no part.


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    In the Matter of the Estate of Stanley A. Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted June 8, 2015;
    decided June 25, 2015
   Motion by petitioner-appellant for affirmative relief dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3). Cross motion by respondent-respondent for the imposition of sanctions denied.

Chief Judge Lippman taking no part.


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    In the Matter of John Zanetti et al., Appellants, v New York State Tax Appeals Tribunal et al., Respondents.
    Decided June 25, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


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    Walter R. Beardslee, Individually and as Co-Trustee of the Drusilla W. Beardslee Family Trust, et al., Respondents, v Inflection Energy, LLC, et al., Appellants.
    Submitted May 18, 2015;
    decided June 30, 2015

      See 761 F3d 221.
   Motion for reargument denied [see 25 NY3d 150 (2015)].


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    Atul Bhatara, Respondent, v Hans Futterman, Appellant.
    Submitted April 27, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Carmen Britt, Individually and as Executor of Lula Baity, Deceased, Appellant, v Buffalo Municipal Housing Authority et al., Respondents.
    (Appeal No. 1.)
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fahey taking no part.


text:
    In the Matter of Paul Chandler, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted May 18, 2015;
    decided June 30, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 901 (2015)].


text:
    In the Matter of April K. DeJesus, Appellant, v Rodney N. Haymes, Respondent.
    Submitted May 4, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Echo W. Dixon, Appellant, v Eric T. Schneiderman, Attorney General of the State of New York, Respondent. In the Matter of Echo W. Dixon, Appellant, v Donald G. Uhler, Superintendent, Upstate Correctional Facility, et al., Respondents.
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion, insofar as it seeks leave to appeal from the May 2013 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals for leave to appeal (21 NY3d 1055 [2013]) from the same Appellate Division order from which he currently seeks leave to appeal (see Selinger v Selinger, 90 NY2d 842 [1997]); motion, insofar as it seeks leave to appeal from the March 2015 Appellate Division order, dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    James W. Gilliam II, Appellant, v Virgin Mobile USA, L.P., et al., Respondents.
    Submitted May 18, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it {see NY Const, art VI, § 3 [b]; CPLR 5602 [a]).


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    In the Matter of Travis D. Griffin, Appellant, v City of New York et al., Respondents.
    Submitted May 18, 2015;
    decided June 30, 2015
   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:
    Charles McKie, Appellant, v Flagstar Bank, FSB, Respondent.
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v Rebecca Guthrie, Respondent.
    Submitted May 4, 2015;
    decided June 30, 2015
   Motion for reargument denied [see 25 NY3d 130 (2015)].


text:
    John Pickering-George, Also Known as John Robert Daley, Appellant, v Mathew M. Wambua et al., Respondents.
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion for reargument denied [see 25 NY3d 963 (2015)].


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    Yosif Tsimbler, Appellant, v Millie R. Fell, M.D., et al., Respondents, et al., Defendant. Yosif Tsimbler, Appellant, v Millie R. Fell, M.D., et al., Respondents, et al., Defendant.
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court order denying renewal, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


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    In the Matter of the Claim of Kurt J. Wallenhorst, Appellant. Commissioner of Labor, Respondent.
    Submitted May 4, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of Daniel Youngman, Respondent. RB Humphreys Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted May 11, 2015;
    decided June 30, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


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    In the Matter of Aleria KK. and Others, Children Alleged to be Abused and/or Neglected and/or Severely Abused. Albany County Department for Children, Youth and Families, Respondent; Ralph MM., Appellant.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, affirming the fact-finding order, does not finally determine the proceeding within the meaning of the Constitution.


text:
    Taliv Ali, Appellant, v State of New York, Respondent.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for reargument denied [see 25 NY3d 965 (2015)].


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    Julie Conason et al., Respondents, v Megan Holding, LLC, et al., Appellants.
    Submitted May 18, 2015;
    decided July 1, 2015
   Motion for reargument denied [see 25 NY3d 1 (2015)].

Judges Stein and Fahey taking no part.


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    Esther Dayan, Respondent, v Abraham Dayan, Appellant.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Salvatore Guerrera, Respondent, v Robert J. Zysk, Appellant.
    Submitted May 18, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


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    Ralph Guerrucci, on Behalf of Himself and All Others Similarly Situated, Respondents, v School District of City of Niagara Falls, Appellant.
    (Appeal No. 1.)
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Fahey taking no part.


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    In the Matter of the Adoption of Isabella TT., an Infant. Dalton C. et al., Appellants; Brandon A. et al., Respondents. Friends in Adoption, Inc., Appellant. (Proceeding No. 1.) In the Matter of Brandon A., Respondent, v Melissa TT., Respondent, and Friends in Adoption, Inc., Appellant. Dalton C. et al., Appellants. (Proceeding No. 2.)
    Submitted June 22, 2015;
    decided July 1, 2015
   Motion by the American Academy of Adoption Attorneys et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


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    In the Matter of the Claim of Terri A. Jablonski, Appellant. Commissioner of Labor, Respondent.
    Submitted June 8, 2015;
    decided July 1, 2015
   Motion for reconsideration of this Court’s May 5, 2015 dismissal order denied [see 25 NY3d 981 (2015)].


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    In the Matter of Liz WW., Respondent, v Shakeria XX., Respondent, and Alvin YY., Appellant. (And Other Related Proceedings.)
    Submitted June 1, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Lucinda A. Administration for Children’s Services, Respondent; Luba A., Appellant. (Proceeding No. 1.) In the Matter of Manuel A., Respondent, v Luba A., Appellant. (Proceeding No. 2.)
    Submitted June 1, 2015;
    decided July 1, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 962 (2015)].


text:
    Diane Montagnino et al., Appellants, v Inamed Corporation et al., Defendants, and Alan R. Shons, M.D., Respondent.
    Submitted May 11, 2015;
    decided July 1, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Marc A. Nicometi, Appellant-Respondent, v The Vineyards of Fredonia, LLC, et al., Respondents-Appellants, et al., Defendants. Scott Pfohl et al., Third-Party Plaintiffs, v Western New York Plumbing-Ellicott Plumbing and Remodeling Co., Inc., Third-Party Respondent-Appellant.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for reargument denied [see 25 NY3d 90 (2015)].

Judge Fahey taking no part.


text:
    The People of the State of New York ex rel. James Boutte, Appellant, v Kathleen G. Gerbing, Respondent.
    Submitted June 1, 2015;
    decided July 1, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 903 (2015)].


text:
    In the Matter of Christine Stevenson, Respondent, v Augusto Blanco, Appellant.
    Submitted May 18, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The South Tower Residential Board of Managers of Time Warner Center Condominium, Respondent, v The Ann Holdings, LLC, Appellant.
    Submitted June 8, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Robert Thomas, Respondent, v Rita Gray, Appellant.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 25 NY3d 961 (2015)].


text:
    In the Matter of Jose Vargas, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted May 26, 2015;
    decided July 1, 2015
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).

Judge Stein taking no part.


text:
    [37 NE3d 1147, 16 NYS3d 505]
    In the Matter of Larry L. Helwig, Respondent, v Michael Asklar, Appellant, and Lora Allen et al., as Commissioners of Niagara County Board of Elections, Respondents, et al., Respondents.
    Argued August 25, 2015;
    decided August 26, 2015

      APPEARANCES OF COUNSEL

      Jerome D. Schad, Williamsville, and Law Office of Joseph F. Townsend, Lockport (Joseph F. Townsend of counsel), for appellant.

      Shawn P. Nickerson, North Tonawanda, The Law Office of Henry F Wojtaszek, Niagara Falls and Sinnreich, Kosakoff & Messina, LLP, Central Islip (John Ciampoli of counsel), for Larry L. Helwig, respondent.

      Claude A. Joerg, Lockport, for Lora Allen and another, respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs, for reasons stated in Matter of Angletti v Morreale (25 NY3d 794 [2015] [decided herewith]).

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

Order affirmed, without costs, in a memorandum.


text:
    Raul Barreto, Appellant, et al., Plaintiff, v Metropolitan Transportation Authority et al., Respondents. (And Third-Party Actions.)
    Submitted June 29, 2015;
    decided August 27, 2015
   Motions for reargument denied [see 25 NY3d 426 (2015)].


text:
    In the Matter of Walter E. Carver, Respondent, v State of New York et al., Appellants.
    Submitted August 10, 2015;
    decided August 27, 2015
   Motion by National Center for Law and Economic Justice et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Eighth Judicial District Asbestos Litigation. Joann H. Suttner, as Executrix of Gerald W. Suttner, Deceased, Respondent, v A.W. Chesterton Company et al., Defendants, and Crane Co., Appellant.
    Submitted June 29, 2015;
    decided August 27, 2015
   Motion by Business Council of New York State et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. •


text:
    Hugh Knight, Appellant, v State of New York, Respondent.
    Submitted June 29, 2015;
    decided August 27, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jorge L. Linares, Appellant, v Andrea W. Evans, as Chair of the Division of Parole, Respondent.
    Submitted July 27, 2015;
    decided August 27, 2015
   Motion by Columbia Law School Prisoners and Families Clinic of Morningside Heights Legal Services for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Stein taking no part.


text:
    In the Matter of Jorge L. Linares, Appellant, v Andrea W. Evans, as Chair of the Division of Parole, Respondent.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Tim Brennan et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Stein taking no part.


text:
    The People of the State of New York, Respondent, v Jose Aviles, Appellant.
    Submitted August 17, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and V. Marika Meis, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, New York 10451 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Barksdale, Appellant.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by New York Civil Liberties Union et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Ryan P. Brahney, Appellant.
    Submitted June 22, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Kathryn Friedman, Esq., care of The Sage Law Firm Group, PLLC, PO Box 200, 465 Grant Street, Buffalo, New York 14213 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Submitted August 17, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Danielle Muscatello, Esq., care of Robert DiDio & Associates, 80-02 Kew Gardens Road, Suite 307, Kew Gardens, New York 11415 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lyxon Chery, Appellant.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Prince Clark, Appellant.
    Submitted August 17, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Phillip Couser, Appellant. (And Another Appeal.)
    Submitted July 27, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeals herein.


text:
    The People of the State of New York, Respondent, v Lennie Frankline, Appellant.
    decided August 27, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Submitted July 27, 2015;
    Submitted July 27, 2015;


text:
    The People of the State of New York, Appellant, v Mark Garrett, Respondent.
    Submitted June 29, 2015;
    decided August 27, 2015
   Motion for reargument denied [see 23 NY3d 878 (2014)].


text:
    The People of the State of New York, Respondent, v Stanley Hardee, Appellant.
    Submitted July 13, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jennifer Jorgensen, Appellant.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by National Advocates for Pregnant Women et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v James Miller, Appellant.
    Submitted July 27, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Patterson, Appellant.
    Submitted August 10, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Seymour W. James, Jr., 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, Respondent, v Anthony Perkins, Appellant.
    Submitted August 10, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Romero, Also Known as Robert Rosa, Appellant.
    Submitted July 20, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jagtar Singh, Appellant.
    Submitted June 29, 2015;
    decided August 27, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Omar A. Smalling, Appellant.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted July 27, 2015;
    decided August 27, 2015
   Motion by Institute for Professionals in Taxation for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Council on State Taxation for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rivera taking no part.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Broadband Tax Institute for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Rivera taking no part.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Taxpayers Against Fraud Education Fund for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Chamber of Commerce of the United States of America for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.

Judge Rivera taking no part.


text:
    The People of the State of New York, by Eric T. Schneiderman, Attorney General for the State of New York, et al., Respondents, v Sprint Nextel Corp. et al., Appellants.
    Submitted August 3, 2015;
    decided August 27, 2015
   Motion by Business Council of New York State, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    The People of the State of New York, Respondent, v Bobby Wallace, Appellant.
    Submitted June 29, 2015;
    decided August 27, 2015
   Motion to vacate this Court’s June 12, 2015 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Leonard Williams, Appellant.
    Submitted July 13, 2015;
    decided August 27, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Raymond Pink et al., Respondents, v Matthew Ricci, Defendant, and Rome Youth Hockey Association, Inc., Appellant, et al., Defendants.
    Submitted July 6, 2015;
    decided August 27, 2015
   Motion by Pacific Legal Foundation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    Raymond Pink et al., Respondents, v Matthew Ricci, Defendant, and Rome Youth Hockey Association, Inc., Appellant, et al., Defendants.
    Submitted July 13, 2015;
    decided August 27, 2015
   Motion by New York State Academy of Trial Lawyers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Fahey taking no part.


text:
    In the Matter of Sonara HH., a Child Alleged to be Permanently Neglected. Schoharie County Department of Social Services, Respondent; Robert HH., Respondent. Attorney for the Child, Appellant.
    Submitted June 15, 2015;
    decided August 27, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Sonara HH., a Child Alleged to be Permanently Neglected. Schoharie County Department of Social Services, Appellant; Robert HH., Respondent.
    Submitted June 29, 2015;
    decided August 27, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Wells Fargo Bank, N.A., as Trustee for ABFC 2006-OPT3 Trust, ABFC Asset-Backed Certificates, Series 2006-OPT3, Respondent, v Rotimi Erobobo, Appellant, et al., Defendants.
    Submitted June 15, 2015;
    decided August 27, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    WSC Riverside Drive Owners LLC, Appellant, v Oliver Williams, Respondent.
    Submitted June 15, 2015;
    decided August 27, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Yaniveth R., an Infant, by Her Mother and Natural Guardian, Ramona S., et al., Appellants, v LTD Realty Co. et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted August 17, 2015;
    decided August 27, 2015
   Motion by Defense Association of New York, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Matvey Zelichenko, Appellant, v 301 Oriental Boulevard, LLC, Respondent.
    Submitted July 27, 2015;
    decided August 27, 2015
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    [37 NE3d 1159, 16 NYS3d 515]
    Richard Rivera et al., Appellants, v Fernandez & Ulloa Auto Group et al., Respondents.
    Decided August 27, 2015

      APPEARANCES OF COUNSEL

      The Law Office of Judah Z. Cohen, PLLC, Woodmere {Judah Z. Cohen of counsel), for appellants.

      Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn {Colin F. Morrissey of counsel), for respondents.

      New York State Trial Lawyers Association, New York City {Michael S. Levine of counsel), for New York State Trial Lawyers Association, amicus curiae.
   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. The Appellate Division correctly concluded that plaintiff failed to raise a triable issue of fact as to whether he suffered a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the underlying motor vehicle accident.

Concur: Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey.


author: Pigott, J.

text:
    [40 NE3d 560, 18 NYS3d 583]
    The People of the State of New York, Respondent, v Dupree Harris, Appellant.
    Argued September 11, 2015;
    decided October 15, 2015

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Mark W. Vorkink of counsel), for appellant.
    Appellant, who was charged with bribing three homicide witnesses to change their accounts by giving them each $500, was denied due process when, despite the total lack of evidence linking appellant to the apparently unrelated murder of another homicide witness, Bobby Gibson, by Travis Ragsdale, (A) the court allowed the People to elicit repeatedly on their case-in-chief that Gibson was murdered and that appellant had sought to contact him; and (B) after the defense presented Ragsdale’s confession to killing Gibson over an unrelated dispute, the theory on which Ragsdale had been convicted of that murder, the court allowed the People to argue in summation that appellant was actually responsible for Gibson’s murder. (People v Primo, 96 NY2d 351; People v Mateo, 2 NY3d 383; People v Scarola, 71 NY2d 769; People v Robinson, 68 NY2d 541; People v Cook, 42 NY2d 204; People v Montanez, 41 NY2d 53; People v Stanard, 32 NY2d 143; People v Morris, 21 NY3d 588; People v Ventimiglia, 52 NY2d 350; People v Gines, 36 NY2d 932.)

      Kenneth P Thompson, District Attorney, Brooklyn (Morgan J. Dennehy, Leonard Joblove and Seth M. Lieberman of counsel), for respondent.
    Defendant’s claims — that the trial court improperly admitted testimony regarding Bobby Gibson’s murder and that the trial court improperly admitted testimony that defendant said that he wanted to talk to Gibson — are partially unpreserved. Moreover, defendant has not preserved any claim that particular summation remarks of the prosecutor suggested that defendant was involved in Gibson’s murder. Furthermore, all of defendant’s claims are meritless. (People v Molineux, 168 NY 264; People v Arafet, 13 NY3d 460; People v Robinson, 68 NY2d 541; People v Delacruz, 24 AD3d 109; People v Garcia, 19 AD3d 215; People v Scarola, 71 NY2d 769; People v Wilder, 93 NY2d 352; People v Gonzalez, 99 NY2d 76; People v Becoats, 17 NY3d 643; People v Morris, 21 NY3d 588.)
   OPINION OF THE COURT

Pigott, J.

The order of the Appellate Division should be affirmed.

This case involves the interplay between two murders and three criminal trials; the third trial is the subject of this appeal.

In September 2001, defendant’s half brother, Wesley Sykes, fatally shot Dennis Brown. There were numerous witnesses to the crime, including three teenaged girls. Each girl gave a statement to the police identifying Sykes as the shooter.

While Sykes was awaiting trial, defendant began cultivating a relationship with each girl. Eventually, the girls agreed to go with defendant to Sykes’s attorney’s office and recant their prior identifications. Afterwards, defendant gave each of them money. It is these acts that led to defendant being charged with three counts each of witness tampering (Penal Law § 215.11 [2]) and bribery (Penal Law § 215.00).

As the trial of Sykes for the murder of Brown was about to begin, another eyewitness to the Brown shooting, Bobby Gibson, was shot and killed outside the apartment of one of the three girls. The shooting was so close, she heard the shots and saw Gibson’s body outside her window. Fearing a similar fate, the girls revealed to police that they had taken money from defendant who had asked them to recant their identifications and not testify against Sykes. The girls were then placed in protective custody. They all testified at the Sykes trial and a jury ultimately convicted Sykes of Brown’s murder.

A man named Travis Ragsdale later confessed to the murder of Gibson. He claimed the murder resulted from an alcohol-fueled dispute, and denied that the incident was related to the Brown murder. Ragsdale was ultimately convicted of murder in the second degree for the Gibson killing.

Prior to defendant’s bribery and witness tampering trial, defense counsel moved to preclude evidence of the murder of the witness Gibson, asserting that it was entirely irrevelant to the charges in this case because defendant did not even know the man who shot and killed Gibson. She argued that the admission of the evidence would be prejudicial and make it impossible for defendant to have a fair trial. The prosecutor responded that the two cases were intertwined; that Gibson was killed on the eve of Sykes’s trial; and that the three eyewitnesses at issue in defendant’s trial had come forward because of Gibson’s murder. The prosecutor also explained that all three girls had been relocated in response to Gibson’s death and their bribery allegations against defendant.

The trial court ruled that evidence of Gibson’s murder was necessary for the jury to consider the truthfulness and reliability of the three girls. During voir dire, the court instructed the venire that defendant was not involved in that murder; and at the start of trial, reminded the prosecutor not to “belabor” Gibson’s murder, emphasizing that he was prohibited from bringing in any evidence suggesting that defendant was connected to Gibson’s death. The defense introduced a video statement of Ragsdale wherein he stated that he shot Gibson out of anger and not because he was a witness to the Brown shooting.

In its charge to the jury during the trial, the court gave the following limiting instruction with respect to the Gibson murder:

“[Defendant . . . has not been charged with causing the death of the witness Bobby Gibson. The People have introduced evidence regarding . . . Gibson’s death for the purpose of explaining the state of mind of the three [teenage witnesses] . . . , and to provide the background for their participation in the witness protection program of the District Attorney’s office.
“The defense has introduced the video statements of Travis Ragsdale who has been convicted of the murder of Bobby Gibson for the truth of that statement, and you will evaluate its credibility as you will evaluate the credibility of all the witnesses and determine what witnesses you will give such weight.”

The jury acquitted defendant of all three tampering counts, but convicted him of the bribery counts.

Defendant appealed arguing, as relevant here, that he was deprived of a fair trial because the court allowed the People to elicit evidence of the Gibson murder. He asserted that this evidence was not probative and was extremely prejudicial. Defendant also argued that he was denied due process when the prosecutor suggested repeatedly in summation that he was responsible for Gibson’s death. The Appellate Division, with one Justice dissenting, affirmed (117 AD3d 847 [2d Dept 2014]).

Generally, “all relevant evidence is admissible unless its admission violates some exclusionary rule” (People v Scarola, 71 NY2d 769, 777 [1988]). “Evidence is relevant if it has any tendency in reason to prove the existence of any material fact” (id. at 777). However, “[e]ven where relevant evidence is admissible, it may still be excluded in the exercise of the trial court’s discretion if its probative value is substantially outweighed by the potential for prejudice” (People v Mateo, 2 NY3d 383, 424-425 [2004]; see Scarola, 71 NY2d at 777).

Here, the evidence of Gibson’s murder was relevant for several reasons. It showed the state of mind of the three girls and provided an explanation as to why they abandoned their recantations and told police about their deal with defendant. It also explained why the girls were placed in protective custody prior to the trial. Additionally, it allowed the jury to have all of the relevant facts before it to decide whether to credit defense counsel’s arguments or the three girls’ testimony concerning the charges against defendant.

While possible prejudice could arise from the testimony in that the jury might link defendant to the Gibson murder, that prejudice was minimized by the court’s limiting instruction. The court, in its final charge, made clear that defendant had not been charged with causing the death of Gibson. In addition, the prosecutor had stated plainly in his opening statement and summation that there was no evidence that defendant was involved. Thus, we conclude that the court’s decision to admit the evidence of Gibson’s murder was not an abuse of discretion.

Chief Judge Lippman and Judges Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed.


author: Chief Judge Lippman.

text:
    [41 NE3d 62, 19 NYS3d 205]
    The People of the State of New York, Respondent, v Jose Martinez Baxin, Appellant.
    Argued September 8, 2015;
    decided October 15, 2015

      POINTS OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Julia Busetti of counsel), for appellant.
    Jose Martinez Baxin was deprived of the constitutional and statutory due process rights to which he was entitled in his Sex Offender Registration Act hearing when the hearing court relied, in assessing the disputed points on the risk assessment instrument that were dispositive of the ultimate level two adjudication, upon grand jury minutes that it refused to disclose to the defense. (Doe v Pataki, 3 F Supp 2d 456; People v David W., 95 NY2d 130; People v Gutierrez-Lucero, 103 AD3d 89; Kent v United States, 383 US 541; People ex rel. Ryan v Warden, N.Y. City House of Detention, 113 AD2d 116; Matter of District Attorney of Suffolk County, 58 NY2d 436; People v Howard, 52 AD3d 273; People v Frosch, 69 AD3d 699; People v Szwalla, 61 AD3d 1289; People v Rosario, 9 NY2d 286.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Brian R. Pouliot and Sylvia Wertheimer of counsel), for respondent.
    The Sex Offender Registration Act court properly reviewed the grand jury minutes in camera, where defendant never raised any bona fide factual dispute regarding the risk factor assessment he challenged and where the court did not rely exclusively on the grand jury minutes to assess defendant the risk factor points. In any event, multiple disclosed sources independently established the risk factor. (People v Mingo, 12 NY3d 563; People v Johnson, 11 NY3d 416; Doe v Pataki, 3 F Supp 2d 456; Matter of State of New York v Floyd Y., 22 NY3d 95; Mathews v Eldridge, 424 US 319; People v David W., 95 NY2d 130; People v Gutierrez-Lucero, 103 AD3d 89; People v Erb, 59 AD3d 1020; People v Johnson, 16 AD3d 184; People v Scalza, 76 NY2d 604; LaRossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583.)
   OPINION OF THE COURT

Chief Judge Lippman.

The issue presented by this appeal is whether defendant’s due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching defendant’s Sex Offender Registration Act (SORA) risk level determination. We hold that there was a due process violation, but that, given the overwhelming evidence which was disclosed to defendant in support of the same risk factor, the error was harmless.

Defendant was indicted for six counts of sodomy in the first degree, six counts of sexual abuse in the first degree and endangering the welfare of a child, based upon allegations that he had sexually abused his 10-year-old stepdaughter on at least three occasions. The abuse was alleged to have occurred between February 14, 2001 and February 28, 2001; between March 1, 2001 and March 15, 2001; and on or about April 8, 2001. In April 2009, defendant pleaded guilty to one count of sodomy, relating to conduct that had occurred in February 2001, in full satisfaction of the indictment.

In contemplation of defendant’s release from incarceration, the Board of Examiners of Sex Offenders (Board) prepared a case summary and a risk assessment instrument, assigning defendant 85 points and recommending that he be adjudicated a level two sexually violent offender. As pertinent here, the Board assessed defendant 20 points under risk factor 4 for a continuing course of sexual misconduct. According to the case summary, “the instant offense occurred from February 2001 to April 2001” and there had been “several” incidents between defendant and the subject child.

At his risk level hearing, defendant objected to the assessment of points for a continuing course of sexual misconduct, asserting that he had only pleaded guilty to a single count of sodomy and that the case summary did not provide the requisite clear and convincing evidence to support the imposition of points for that factor. The court reserved decision, but requested that the People provide a copy of the grand jury minutes.

Following the hearing, the People submitted the grand jury minutes, as well as a transcript of defendant’s videotaped confession. The People did not disclose the grand jury minutes to defendant, however, stating their intention to do so only under court order. In the alternative, the People requested that if the court were to require disclosure, defense counsel be ordered to keep the minutes under seal and not to reproduce or disclose them.

In defendant’s confession, he admitted to incidents occurring in February, March and April of 2001. Specifically, he related that he had masturbated in front of the victim on at least four occasions. He admitted that, on at least two occasions, he had the victim put her mouth on his penis. In addition, he stated that he had the victim place her hand on his penis. The record also contains the criminal court complaint, which includes the statement related to police by the victim, “that since the first week of February, 2001, defendant has masturbated in front of [victim] on several occasions, and [that] defendant made [victim] place her mouth on defendant’s penis on three occasions, the last occasion being April 8, 2001.”

At the ensuing court appearance, Supreme Court assessed defendant 85 points and adjudicated him a level two sexually violent offender. The court found sufficient evidence, consisting of the grand jury minutes, the criminal court complaint and defendant’s confession, to support the imposition of points for continuing course of sexual misconduct. The court rejected defendant’s argument that consideration of the grand jury minutes, which were not disclosed to the defense, should have been precluded.

The Appellate Division affirmed, concluding that there was no due process violation in Supreme Court’s reliance, in part, on the grand jury minutes (see 116 AD3d 628 [1st Dept 2014]). The Court observed that the grand jury minutes were cumulative to other evidence that had been disclosed to defendant and that he had failed to establish prejudice. This Court granted defendant leave to appeal (24 NY3d 905 [2014]), and we now affirm, albeit on a different ground.

It is well established that sex offenders are entitled to certain due process protections at their risk level classification proceedings (see People v Lashway, 25 NY3d 478 [2015]; People v David W., 95 NY2d 130 [2000]; Doe v Pataki, 3 F Supp 2d 456 [SD NY 1998]). Doe, for example, recognized that, although “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial . . . the consequences of registration and notification under the Act are sufficiently serious to warrant more than mere summary process” (Doe, 3 F Supp 2d at 470 [internal quotation marks and citation omitted]). Accordingly, that court held that in order to satisfy due process concerns, the offender must be afforded prehearing discovery of the documentary evidence relating to his or her proposed risk level adjudication (see Doe, 3 F Supp 2d at 472).

Likewise, we have observed that “[t]he bedrock of due process is notice and opportunity to be heard” (David W., 95 NY2d at 138, citing Mathews v Eldridge, 424 US 319, 333 [1976]). In that case, we held that the defendant was not accorded a meaningful opportunity to contest his SORA risk level where he was not provided notice that the risk level was being determined or what materials would be relied on in making the determination, and was not permitted to raise objections to the State’s evidence against him (see David W., 95 NY2d at 138). We concluded that the procedures in place were insufficient to prevent an erroneous deprivation of the defendant’s liberty interest (see David W., 95 NY2d at 138; Mathews, 424 US at 335).

In keeping with our precedent, the Correction Law requires that defendant is entitled to prehearing access to the documents relied upon by the Board in reaching a risk level recommendation {see Correction Law § 168-n [3]; People v Lashway, 25 NY3d at 483). Although the statute may not expressly state that defendant is likewise entitled to any materials submitted by the District Attorney in meeting its burden of establishing the facts supporting a risk level determination by clear and convincing evidence, the same due process concerns are presented in that context. Moreover, broad disclosure is consistent with Doe’s recognition that an offender should be accorded discovery “of all papers, documents, and other material relating to his proposed level and manner of notification” (3 F Supp 2d at 472).

Defendant maintains that he was deprived of due process when the hearing court relied on the grand jury minutes in determining his risk level without disclosing those minutes to the defense. The People raise several arguments in opposition, pointing out the State’s general policy of keeping grand jury proceedings secret in the absence of a compelling and particularized need for disclosure and observing that a SORA defendant does not have the right to confront his or her victim and thus cannot use the grand jury minutes to attempt to exploit any prior inconsistent statements.

The absence of disclosure, however, means that defendant simply cannot formulate any meaningful argument against one that the prosecutor postulates is supported by the minutes. And, while there are good reasons for keeping grand jury minutes confidential in the abstract, many of the arguments usually put forth in support of secrecy have much less force in this postconviction context. There is no concern that defendant will flee, that witnesses will be tampered with or that there will be interference with the process of the grand jury (see People v Di Napoli, 27 NY2d 229, 235 [1970]). The possibility of deterring future witnesses from providing grand jury testimony may exist, but is less pressing here, where the possibility of disclosure arises many years after the indictment and conviction, and where the testimony is being used as evidence in chief against the defendant in support of his adjudication as a sex offender.

Given that defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself, we hold that the failure to disclose the grand jury minutes was a due process violation. This is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court’s discretion to limit the release of such minutes (see People v Robinson, 98 NY2d 755, 756 [2002]). Indeed, as the People had suggested in this matter, defense counsel can be instructed to keep the minutes under seal. But, in determining whether due process requires disclosure, courts should keep in mind that the use of the minutes against a defendant for SORA purposes presents a very strong countervailing interest in support of disclosure.

The error here, however, was harmless (see e.g. People v Lashway, 25 NY3d 478, 484 [2015]). There was overwhelming, unchallenged evidence in the form of the case summary, the criminal court complaint and defendant’s own confession, which provided the requisite clear and convincing evidence supporting the assessment of points for a continuing course of sexual misconduct and which had been properly disclosed to defendant.

Defendant’s remaining contention is without merit. Accordingly, the order of the Appellate Division should be affirmed, without costs.

Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, without costs.


author: Fahey, J.

text:
    [41 NE3d 333, 19 NYS3d 468]
    The People of the State of New York, Respondent, v Michael Sans, Appellant.
    Argued September 16, 2015;
    decided October 15, 2015

      POINTS OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Denise Fabiano of counsel), for appellant.
    The accusatory instrument charging appellant with one count of criminal possession of a gravity knife was jurisdictionally defective where it made no reference to the officer’s training and experience and: (1) failed to include any factual allegations that the blade “locked into place by means of a button, spring, lever or other device”; and (2) stated only conclusory allegations that the knife opened with centrifugal force. (People v Dreyden, 15 NY3d 100; People v Dumas, 68 NY2d 729; People v Alejandro, 70 NY2d 133; United States v Irizarry, 509 F Supp 2d 198; People v Terrance, 101 AD3d 624; People v Kin Kan, 78 NY2d 54; People v Best, 57 AD3d 279; Staples v United States, 511 US 600; People v Munoz, 9 NY2d 51; People v Wood, 58 AD3d 242.)

      Kenneth P. Thompson, District Attorney, Brooklyn (Allison Ageyeva and Leonard Joblove of counsel), for respondent.
    The accusatory instrument is facially sufficient because it satisfies the standards of facial sufficiency applicable to a misdemeanor complaint. (People v Maldonado, 86 NY2d 631; People v Mercado, 68 NY2d 874; People v McRay, 51 NY2d 594; People v Suber, 19 NY3d 247; People v Alejandro, 70 NY2d 133; People v Dumay, 23 NY3d 518; People v Guaman, 22 NY3d 678; People v Casey, 95 NY2d 354; People v Dreyden, 15 NY3d 100; People v Terrance, 101 AD3d 624.)
   OPINION OF THE COURT

Fahey, J.

In the accusatory instrument charging defendant, Michael Sans, with a misdemeanor, a police officer stated that he had “observed the defendant remove a knife from the defendant’s pocket, . . . recovered said knife from the defendant,” and “tested the . . . knife and determined that it was a gravity knife, in that it opens with centrifugal force and locks automatically in place.” Upon a guilty plea, the Criminal Court of the City of New York convicted defendant of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). He waived prosecution by information.

On appeal, defendant contended that the accusatory instrument was jurisdictionally defective and sought its dismissal. The Appellate Term affirmed Criminal Court’s judgment, ruling that the accusatory instrument was facially sufficient (40 Misc 3d 141 [A], 2013 NY Slip Op 51464[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1042 [2014]). We now affirm.

The accusatory instrument must be examined under the standard applicable to misdemeanor complaints, given defendant’s waiver of the filing of an information. Under the reasonable cause standard (see generally People v Dumas, 68 NY2d 729, 731 [1986]), the factual part of a misdemeanor complaint must allege “facts of an evidentiary character” (CPL 100.15 [3]) establishing “reasonable cause” to believe that the defendant committed the crime charged (CPL 100.40 [4] [b]).

Defendant principally contends that the accusatory instrument was insufficient under this test because it contained no allegation establishing a prima facie case that the blade of the knife, once released, was “locked in place by means of a button, spring, lever or other device” (Penal Law § 265.00 [5]), as required by the statutory definition of a gravity knife.

The statute provides that, to be prohibited as a gravity knife, a knife must have a blade that is locked into an open position by means of a device. This criterion “ ‘requires that the blade lock in place automatically upon its release and without further action by the user’ ” (People v Dreyden, 15 NY3d 100, 104 [2010], quoting People v Zuniga, 303 AD2d 773, 774 [2d Dept 2003], lv withdrawn 100 NY2d 567 [2003]). It distinguishes a gravity knife from one that “requires manual locking” (Dreyden, 15 NY3d at 104).

Defendant argues that an accusatory instrument alleging possession of a gravity knife must expressly state that the knife locks by means of a device. We disagree. By stating that a knife, once opened, “locks automatically in place,” an accusatory instrument conveys to a defendant that his knife was observed (1) to lock in an open position, rather than merely having a bias towards remaining open, and (2) to lock by means of a built-in device, rather than manually. A mechanism that locks itself by means of such a device is naturally described as locking “automatically.” Indeed, many New York cases have treated locking “by means of a . . . device” (Penal Law § 265.00 [5]) as synonymous with “automatically” locking for these purposes (see e.g. People v Terrance, 101 AD3d 624, 625 [1st Dept 2012], lv denied 20 NY3d 1065 [2013]; People v Neal, 79 AD3d 523, 524 [1st Dept 2010], lv denied 16 NY3d 799 [2011]; Zuniga, 303 AD2d at 774). Moreover, because of the use of the generic term “device” in the statute, there can be no requirement that an arresting officer specify any particular kind of mechanism on the knife that causes it to lock in place.

Our decision in Dreyden is not to the contrary. There, the relevant part of the accusatory instrument stated only that the arresting officer had seen Dreyden “in possession of a gravity knife ... in that [the officer] recovered said gravity knife . . . from defendant’s person” (brief and appendix for defendant-appellant in People v Dreyden, 15 NY3d 100 [2010], available at 2009 WL 6616034, *3 [emphasis omitted]). That conclusory language “failed to give any support or explanation whatsoever for the officer’s belief” (Dreyden, 15 NY3d at 103), thus depriving Dreyden of due notice of the charged crime. Unlike Dreyden, defendant Sans cannot justifiably claim that the language used in the accusatory instrument impaired his “basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy” (People v Casey, 95 NY2d 354, 366 [2000]). A reasonable defendant would have understood that the prosecution would be required to prove that his knife, once opened, locked without further manual action. We conclude that the language used in the accusatory instrument gave defendant “sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (Dreyden, 15 NY3d at 103).

Defendant also suggests that the accusatory instrument insufficiently alleged that the blade of the knife was “released from the handle or sheath ... by the force of gravity or the application of centrifugal force” (Penal Law § 265.00 [5]). This contention lacks validity because the accusatory instrument specified that the officer tested the knife and determined that it opened “with centrifugal force.” Based upon that allegation, it can reasonably be inferred that the officer flicked the knife open with his wrist. In any event, the officer’s failure to specify the precise motion he used to open the knife did not prevent defendant from preparing his defense or avoiding double jeopardy, and therefore did not amount to a jurisdictional defect.

Finally, defendant argues that, to be jurisdictionally valid, the accusatory instrument should have alleged the officer’s training or experience in the identification of gravity knives. He cites our directive in Dreyden that “[a]n arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant’s possession was a gravity knife” (Dreyden, 15 NY3d at 104). Defendant misreads this prescription. We do not mandate that an officer recite that he or she has training and experience in identifying gravity knives or expressly state the origin of his or her skills in that area. Rather, Dreyden requires that an arresting officer explain the basis of his or her conclusion that the defendant’s knife was a gravity knife. The general principle applicable here is that “when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument” (People v Jackson, 18 NY3d 738, 746 [2012]). Here, the accusatory instrument sufficiently pleaded that the police officer exercised his expertise by testing the knife and determining that it opened and locked in the manner proscribed by the gravity knife statute.

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

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

Order affirmed.