text:
    [41 NE3d 336, 19 NYS3d 471]
    The People of the State of New York, Respondent, v Thomas Barnes, Appellant.
    Argued September 16, 2015;
    decided October 20, 2015

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City {Laura Boyd of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City {Sheila O’Shea and Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

On February 15, 2011, Officer Jamar Lamey was patrolling a New York City Housing Authority building when he observed defendant in the lobby beyond the building’s vestibule and a posted “No Trespassing” sign. When asked, defendant stated that he did not reside at the building, nor was he able to identify any resident who had invited him. Having determined that defendant was neither a tenant nor an invited guest, the officer arrested him for trespassing.

Defendant was charged, by information, with one count of criminal trespass in the second degree (Penal Law § 140.15 [1]), a class A misdemeanor, and one count of criminal trespass in the third degree (Penal Law § 140.10 [e]), a class B misdemeanor. He pleaded guilty to the second-degree charge and was sentenced to time served.

Defendant appealed, arguing that the misdemeanor information was jurisdictionally defective for two reasons. First, he asserted that he could not be charged with second-degree criminal trespass for being in the common area of a public housing authority building because such areas are open to the public. Second, he argued that even if he could be charged with second-degree criminal trespass, the misdemeanor information insufficiently alleged that his presence in the lobby of the building was unlawful.

The Appellate Term rejected defendant’s contentions and affirmed (40 Misc 3d 133[A], 2013 NY Slip Op 51249[U] [App Term, 1st Dept 2013]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1034 [2014]), and we now affirm.

The legislature has established three degrees of non-felonious criminal trespass, with each “becomfing] progressively more serious as they approach criminal trespass in the first degree” (People v Moore, 5 NY3d 725, 727 [2005]).

A person is guilty of simple trespass, a violation, when he or she “knowingly enters or remains unlawfully in or upon premises” (Penal Law § 140.05).

Criminal trespass in the third degree, a class B misdemeanor, is established when a person “knowingly enters or remains unlawfully in a building or upon real property” and one of seven aggravating factors is present (Penal Law § 140.10). As relevant here, one such aggravating factor elevating simple trespass to criminal trespass in the third degree is “where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof” (Penal Law § 140.10 [e]).

Criminal trespass in the second degree, a class A misdemeanor, is committed when a person “knowingly enters or remains unlawfully in a dwelling” (Penal Law § 140.15 [1]). A “dwelling” is defined as “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]).

For all degrees of criminal trespass, “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00 [5]). Where the premises are open to the public, however, a person has license or privilege to enter “unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person” {id.).

At the outset, defendant does not dispute that an apartment building in a public housing project constitutes a “dwelling.” Rather, this appeal turns on the phrase “enters or remains unlawfully.” Defendant argues that a person cannot be prosecuted under the second-degree criminal trespass statute for entering the common areas of a public housing authority building because those areas are open to the public. And “[w]hen [a] property is ‘open to the public’ at the time of the alleged trespass . . . the accused is presumed to have a license and privilege to be present” (People v Leonard, 62 NY2d 404, 408 [1984] [holding that the defendant could not be banished from a State University of New York campus, a publicly-owned and maintained property, absent proof of a lawful order excluding him from the premises]).

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings (see People v Rodriguez, 159 AD2d 201, 202-203 [1st Dept 1990], lv denied 76 NY2d 742 [1990]). The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so.

In light of the statute’s plain language, we decline defendant’s invitation to consult the legislative history of a different statute — third-degree criminal trespass. We resort to legislative history “only where the language is ambiguous or where a literal construction would lead to absurd or unreasonable consequences” (Matter of Auerbach v Board of Educ. of City School Dist. of City of N.Y., 86 NY2d 198, 204 [1995]). There is no ambiguity in the language of Penal Law § 140.15 (1), and defendant has not suggested that our interpretation would lead to an absurd or unreasonable result.

In the alternative, defendant contends that even if the second-degree criminal trespass statute applies, the misdemeanor information charging him with that offense was facially insufficient because it failed to establish that defendant lacked license or privilege to be in the lobby of this particular building.

To be facially sufficient, a misdemeanor information must contain “facts of an evidentiary character” that provide “reasonable cause” to believe the defendant committed the crime charged (CPL 100.15 [3]; 100.40 [1] [b]) and “‘nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof ” (People v Kalin, 12 NY3d 225, 228-229 [2009], citing CPL 100.40 [1] [c]).

The misdemeanor information charging defendant with criminal trespass in the second degree sufficiently alleged that he knowingly entered and remained unlawfully in a dwelling. It stated that Officer Lamey observed defendant in the lobby of an apartment building, beyond the vestibule and a posted “No Trespassing” sign. Moreover, defendant admitted he did not reside at the building and could not identify a resident who had invited him onto the premises. These allegations establish every element of second-degree criminal trespass and provide reasonable cause to believe defendant committed that offense.

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

Order affirmed, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Christopher Bent, Respondent, v Sears, Roebuck, & Co., et al., Appellants.
    Submitted August 17, 2015;
    decided October 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Benjamin Justin Brownlee, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, et al., Respondents.
    Submitted August 31, 2015;
    decided October 22, 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:
    Stephane Cosman Connery et al., Respondents, v Burton S. Sultan, Appellant.
    Submitted August 24, 2015;
    decided October 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Nancy Cruz, Respondent, v Bronx Lebanon Hospital Center, Appellant.
    Submitted September 21, 2015;
    decided October 22, 2015
   Motion to dismiss appeal denied.

Judge Abdus-Salaam 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 September 8, 2014;
    decided October 22, 2015
   Motion to dismiss appeal etc. denied.

Judge Stein taking no part.


text:
    Joan C. Lipin, Appellant, v Danske Bank et al., Respondents. Joan C. Lipin, Appellant, v Danske Bank et al., Respondents, et al., Defendant.
    Decided October 22, 2015
   Appeal dismissed, with costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie.


text:
    In the Matter of Monarch Consulting, Inc., et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, PA, Appellant. In the Matter of National Union Fire Insurance Company of Pittsburgh, PA, Appellant, v Priority Business Services, Inc., Formerly Known as Inland Valley Staffing Services, Respondent. In the Matter of National Union Fire Insurance Company of Pittsburgh, PA, Appellant, v Source One Staffing, LLC, Respondent.
    Submitted October 19, 2015;
    decided October 22, 2015
   Motion by United Policyholders 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.

Chief Judge Lippman taking no part.


text:
    Joseph Mullen, Appellant, v Neil Lockwood, Respondent.
    Submitted August 31, 2015;
    decided October 22, 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 action commenced in town court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Nomura Asset Capital Corporation et al., Respondents-Appellants, v Cadwalader, Wickersham & Taft LLP, Appellant-Respondent.
    Submitted October 20, 2014;
    decided October 22, 2015
   Motion to strike portions of defendant’s brief denied.


text:
    The People of the State of New York, Appellant, v Natanael Sagastumeal Varenga, Respondent.
    Submitted October 19, 2015;
    decided October 22, 2015
   Motion by Randy Hertz 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:
    Stephanie Raab, Respondent, v Kevin Raab, Appellant.
    Submitted August 24, 2015;
    decided October 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Elizabeth Renner, Appellant, v Daniel Costigan, Respondent. (Matter No. 1.) In the Matter of Elizabeth Renner, Appellant, v Daniel Costigan, Respondent. (Matter No. 2.) In the Matter of Daniel A. Costigan, Respondent, v Elizabeth A. Renner, Appellant. (Matter No. 3.) In the Matter of Daniel A. Costigan, Respondent, v Elizabeth A. Renner, Appellant. (Matter No. 4.)
    Submitted July 13, 2015;
    decided October 22, 2015
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of State of New York, Respondent, v Richard TT., Appellant.
    Decided October 22, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Stonehill Capital Management, LLC, et al., Appellants, v Bank of the West, Respondent, et al., Defendant.
    Submitted August 24, 2015;
    decided October 22, 2015
   Motion by Loan Syndications and Trading Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Delsenior Strachan, Appellant, v Linda Gilliam, Respondent. In the Matter of Delsenior Strachan, Appellant, v Linda Gilliam, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Submitted August 17, 2015;
    decided October 22, 2015
   Motions for leave to appeal dismissed upon the ground that the proceedings and the motions have abated because of the death of the appellant.


text:
    Lisa Wolman, Respondent, v Eli Shouela, Appellant.
    Submitted August 17, 2015;
    decided October 22, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Arkadian S. and Others, Children Alleged to be Abused and Neglected. Cayuga County Department of Health and Human Services et al., Respondents; Joshua S., Appellant.
    Submitted September 14, 2015;
    decided October 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 B&M Kingstone, LLC, Respondent, v Mega International Commercial Bank Co., Ltd., Appellant.
    Submitted August 31, 2015;
    decided October 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 Shameckia L. Blue, Respondent, v Darryl F. Caldwell, Appellant, et al., Respondent. In the Matter of Shameckia L. Blue, Respondent, v Darryl F. Caldwell, Appellant, and Lovana E. Byrd-McGuire, Respondent.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Submitted August 31, 2015;
    decided October 27, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court order settling the record on appeal, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Brittany R. and Others, Children Alleged to be Permanently Neglected. Schoharie County Department of Social Services, Respondent; Annemarie R., Appellant.
    Submitted August 24, 2015;
    decided October 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 Celso L. Castillo, Appellant, v John B. Latella, Respondent.
    Submitted September 8, 2015;
    decided October 27, 2015
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by the Rules of the Court of Appeals (see 22 NYCRR 500.22 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Constellation Nuclear Power Plants LLC, Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted September 8, 2015;
    decided October 27, 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.


text:
    Paul Hsu et al., Appellants, v Liu & Shields LLP et al., Respondents.
    Submitted August 24, 2015;
    decided October 27, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as dismissed the appeal from the October 2013 Supreme Court order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    LaSalle National Bank Association, Respondent, v Tatiana Odato, Appellant, et al., Defendants.
    Submitted September 14, 2015;
    decided October 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:
    Lynn Lew, Appellant, v Manhasset Public Library et al., Respondents.
    Submitted August 31, 2015;
    decided October 27, 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:
    Donna M. Matsch, Appellant, v Chemung County Department of Public Works et al., Respondents.
    Submitted August 31, 2015;
    decided October 27, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying 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:
    Wilhelm Noel, Appellant, v Bryan Tyler, Respondent.
    Submitted August 31, 2015;
    decided October 27, 2015
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. Cross motion for the imposition of sanctions denied.


text:
    The People of the State of New York, Appellant, v Terrance L. Mack, Respondent.
    Decided October 27, 2015
   Reargument ordered and case set down for argument during a future session of the Court of Appeals.

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


text:
    Carlayne Sims, Appellant, v City of New York, Respondent.
    Submitted September 8, 2015;
    decided October 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. Motion for poor person relief dismissed as academic.


text:
    S.L., Appellant, v J.R., Respondent.
    Submitted September 8, 2015;
    decided October 27, 2015
   Motion by the Domestic Violence Legal Empowerment and Appeals Project et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Vanita UU., Respondent, v Mahender VV., Appellant. (And Other Related Proceedings.)
    Submitted August 24, 2015;
    decided October 27, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed the Family Court order dismissing the violation petition, dismissed upon the ground that such portion of the order does not finally determine a proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Patricia Warmhold, Appellant, v Michael Zagarino et al., Respondents.
    Submitted August 31, 2015;
    decided October 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. Motion for poor person relief dismissed as academic.


text:
    [41 NE3d 763, 19 NYS3d 799]
    The People of the State of New York, Respondent, v Vincent Izzo, Appellant.
    Argued September 11, 2015;
    decided October 20, 2015

      APPEARANCES OF COUNSEL

      Adam J. Bevelacqua, New York City, for appellant.

      Weeden A. Wetmore, District Attorney, Elmira {Damian M. Sonsire of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to County Court for further proceedings in accordance with this memorandum.

Defendant, who was 21 years old at the time of his arrest, was charged with various sex crimes and other offenses arising out of his contact with three underage girls. He pleaded guilty to two counts of criminal sexual act in the second degree, two counts of unlawful imprisonment in the second degree, two counts of sexual abuse in the third degree, endangering the welfare of a child and aggravated harassment in the second degree. He was placed on interim probation for a period of one year, but soon violated that probation by purchasing a computer, operating a Facebook account under an assumed name, and sending sexually explicit messages to a 17-year-old girl. He admitted to violating the terms of his interim probation and was sentenced to a two-year determinate prison term and three years’ postrelease supervision.

Prior to defendant’s release from prison, his case was returned to County Court for classification pursuant to the Sex Offender Registration Act (see Correction Law art 6-C [SORA]), and upon agreement of the parties, the court determined the SORA classification on written submissions. The Board of Examiners of Sex Offenders had classified defendant through its risk assessment instrument (RAI) as a risk level two offender, assessing him 105 points, which indicates a moderate risk of re-offending. As is relevant here, the Board assessed 30 points under risk factor 3 (number of victims) for three or more victims and 20 points under risk factor 7 (relationship between offender and victim) for his relationships with the underage girls. County Court found that the assessment of 30 points for three victims was supported by clear and convincing evidence, as was the assessment of 20 points under risk factor 7, finding that defendant had “contacted [the girls] repeatedly to build a relationship which could ultimately satisfy his sexual desires.” County Court did not expressly decide defendant’s application for a downward departure.

The Appellate Division, with two Justices dissenting, affirmed (120 AD3d 860 [2014]). It agreed with County Court’s assessment of points under risk factors 3 and 7. Regarding defendant’s downward departure request, the Appellate Division held that although County Court had not expressly referenced that request, it had discussed the factors relied upon by defendant, and thus provided an adequate basis for intelligent appellate review. It concluded that defendant had failed to establish, by a preponderance of the evidence, that a downward departure was warranted. The dissent disagreed with the assessment of points under both risk factors 3 and 7, and concluded that defendant’s application for a downward departure should be remitted.

We affirm the assessment of 30 points under risk factor 3 (Number of Victims) on the basis of three or more victims. The Commentary to the Guidelines states:

“This category focuses upon the number of people whom the offender victimized in the case (or cases) that ultimately resulted in the instant conviction. Clear and convincing evidence of sexual conduct by the actor against victims may be taken into consideration. The existence of multiple victims is indicative of compulsive behavior and is, therefore, a significant factor in assessing the offender’s risk of reoffense and dangerousness” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006]).

One of the complainants testified before the grand jury that she and defendant had engaged in webcam chats, and that during one such chat, defendant was touching himself outside his clothing, below the waist on his penis, while telling her she “could help him with [her] hands to fix it” and that she would “be good at it.” She also testified that on another occasion while they were talking on the webcam, defendant told her he had purchased fuzzy handcuffs and a kinky outfit for her. During the plea allocution, the court described defendant’s conduct as testified to by the complainant. Defendant said he remembered the webchat, but not the other parts, and that maybe sexual matters were discussed, but that was all he remembered. The Judge stated: “For purposes of this plea, . . . you are admitting [to] endangering the welfare of a child by discussing sexual issues, et cetera, with this child.”

Defendant argues that this girl should not be counted as a third victim because his actions towards her were not SORA level sex offenses. The People concede that the facts surrounding defendant’s contact with this girl did not constitute a SORA level offense but assert that she may still be considered a victim under the Guidelines, arguing that defendant’s narrow reading of the term “sexual conduct” would not allow for courts to take into account clearly inappropriate sexual behavior which may be relevant in assessing a defendant’s risk of reoffending. Given that the Guidelines do not mention a SORA level offense in risk factor 3, but instead address the more general term, “sexual conduct,” we agree with the People that the conduct does not have to amount to a SORA level offense in order to be considered. Furthermore, the child can still be a victim under risk factor 3 even though the defendant and the child were not in the same room, but were communicating through a webcam (see People v DeDona, 102 AD3d 58, 63 [2d Dept 2012] [points assessed under risk factor 3 where defendant was communicating by webcam to an undercover officer posing as an underage girl, concluding that risk factor 3 does not require actual, physical sexual contact between the offender and the victim]).

Regarding risk factor 7, the Commentary provides that “[t]he guidelines assess 20 points if the offender’s crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization” and that

“[t]he phrase ‘established or promoted for the primary purpose of victimization’ is adopted from the Act itself. An uncle who offends against his niece generally would not fall into this category. A scout leader who chooses his profession or vocation to gain access to victims and ‘grooms’ his victims before sexually abusing them would qualify” (SORA Guidelines at 12 [citation omitted]).

County Court found that defendant and the victims were not strangers, but assessed 20 points for grooming, finding that it was “apparent that the defendant approached these girls because they were younger, immature, and needy” and that defendant’s “intentions for these girls [was] apparent from his first contact with them.”

The Appellate Division majority was persuaded that there was clear and convincing evidence that defendant engaged in “grooming” behavior. However, the dissent concluded, and we agree, that given the expert evidence (unrebutted by the People) “defendant is significantly lacking in sexual and social maturity, has difficulty in understanding and interpreting social cues, functions socially at the level of a young teenager of roughly the same age as his victims, and would be unable to maintain appropriate relationships with young women of his chronological age” (120 AD3d at 864 [Garry, J., dissenting]), there was no clear and convincing evidence that he purposefully “groomed” the victims for the primary purpose of victimizing them, or, aside from grooming, had any relationship with the girls that would count for factor 7. Accordingly, we agree with defendant that he should not have been assessed points under factor 7. Because the courts below used an incorrect RAI score, we remit to County Court for determination of the downward departure application in accordance with People v Gillotti (23 NY3d 841 [2014]).

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

Order reversed, without costs, and matter remitted to County Court, Chemung County, for further proceedings in accordance with the memorandum herein.


text:
    [41 NE3d 785, 19 NYS3d 821]
    The People of the State of New York, Respondent, v Edwin Mendez, Appellant.
    Decided October 27, 2015
    APPEARANCES OF COUNSEL

      Fitzpatrick, Celia, Harper & Scinto, New York City (C. Austin Ginnings of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City (Margaret E. Knight of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Grace Vee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of assault in the second degree to a new grand jury.

Defendant was charged with assault for his conduct during a street brawl in January 2011. During the ensuing jury trial, the People introduced into evidence several recordings of telephone calls that defendant made while he was in jail awaiting trial. Inasmuch as defendant and the other participants in the calls sometimes spoke in Spanish, the People prepared transcripts of the phone calls that included Spanish-to-English translations. The transcripts themselves were not admitted into evidence but were used as an aid to the jurors while they listened to the recordings. The court told the jurors twice during the course of the trial that the transcripts were not in evidence, but that if they wanted to see the transcripts during deliberations, they should ask to do so, and the court would then bring the jury in the courtroom and distribute the transcripts while the recordings were played back to the jury.

During deliberations, the jurors sent, among other notes, two notes requesting to see the transcripts they were given while they were listening to the tape recordings. The record does not indicate that the trial court informed counsel of these notes or responded to the jury in any way before the jury ultimately found defendant guilty of assault in the second degree.

For reasons stated in People v Silva (24 NY3d 294 [2014], rearg denied 24 NY3d 1216 [2015]), the Appellate Division erred in holding that reversal was not required. Contrary to the Appellate Division’s determination, the jury’s request to see the transcripts did not merely require “the ministerial actions of informing the jury that none of the items they requested were in evidence” (People v Mendez, 116 AD3d 513, 513 [1st Dept 2014]). Inasmuch as a significant portion of defendant’s conversations were conducted in Spanish, the jury could not be expected to understand the recordings without the aid of the transcripts (cf. People v Miller, 8 AD3d 176, 177 [1st Dept 2004], affd as mod 6 NY3d 295 [2006]). Moreover, the trial court expressly invited the jurors to ask for the transcripts during deliberations and told them the procedure by which they could see the transcripts, which involved reassembling the jury in the courtroom. Thus, the jury’s requests for the transcripts required a substantive response, and reversal is required because these “substantive jury notes, marked as court exhibits, were neither revealed to the attorneys nor addressed by the court[ ]” (Silva, 24 NY3d at 300). In light of our holding, we do not reach defendant’s remaining contention.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of assault in the second degree to a new grand jury, in a memorandum.


text:
    [42 NE3d 212, 20 NYS3d 542]
    In the Matter of Jorge L. Linares, Appellant, v Andrea W. Evans, as Chair of the Board of Parole, Respondent.
    Argued September 8, 2015;
    decided October 22, 2015

      APPEARANCES OF COUNSEL

      Alfred O’Connor, New York State Defenders Association, Albany, and Alan Rosenthal, Center for Community Alternatives, Syracuse, for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent.

      Morningside Heights Legal Services, Inc., New York City (Philip M. Genty of counsel), for Columbia Law School Prisoners and Families Clinic, amicus curiae.

      Skadden, Arps, Slate, Meagher & Flom LLP, New York City (Boris Bershteyn and Ramya Ravishankar of counsel), for Tim Brennan and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

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

Petitioner challenges the validity and potential application of certain regulations of the Board of Parole which address risks and needs assessments and related matters (see 9 NYCRR 8002.3 [a]). However, the Board promulgated those regulations after its determination here and has not had an opportunity to consider petitioner’s arguments. Given the impact that a determination of petitioner’s claims will certainly have in this and future cases, the more prudent course is to leave the propriety of the regulations to be raised in the first instance before the Board (see Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 197 [2007]; Schiavone v City of New York, 92 NY2d 308, 317 [1998]; see also Matter of Red Hook / Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452, 461-462 [2005]). Because, under the particular circumstances of this case, none of petitioner’s statutory and regulatory claims are reviewable on appeal at this juncture, we express no opinion on the merits of those claims.

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

Order affirmed, without costs, in a memorandum.


text:
    [42 NE3d 1205, 21 NYS3d 686]
    In the Matter of Noel Olmosperez, Appellant, v Andrea W. Evans, as Chair of the Board of Parole, Respondent.
    Decided October 22, 2015

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Cynthia H. Conti-Cook and Caroline Hsu of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady, Barbara D. Underwood, Andrea Oser and Nancy A. Spiegel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs (see Matter of Linares v Evans, 26 NY3d 1012 [2015] [decided today]; Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, without costs, in a memorandum.


text:
    [42 NE3d 212, 20 NYS3d 542]
    The People of the State of New York, Appellant, v Tyson Sydoriak, Respondent.
    Decided October 27, 2015

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Christopher J. Blira-Koessler of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City (Alexis A. Ascher of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, for reasons stated in People v Nealon (26 NY3d 152 [2015] [decided herewith]).

Chief Judge Lippman (dissenting). I dissent, and would affirm the order of the Appellate Division for the reasons stated in my dissenting opinion in People v Nealon (26 NY3d 152 [2015] [decided herewith]).

Judges Pigott, Abdus-Salaam, Stein and Fahey concur; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Second Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, in a memorandum.


text:
    [41 NE3d 1142, 20 NYS3d 327]
    The People of the State of New York, Respondent, v Alfred Gary, Appellant.
    Argued October 13, 2015;
    decided November 18, 2015

      APPEARANCES OF COUNSEL

      Fahringer & Dubno, New York City (Erica T Dubno, Herald Price Fahringer and Nicole Neckles of counsel), and Law Offices of Thomas F. Liotti, Garden City (Thomas F. Liotti of counsel), for appellant.

      Madeline Singas, Acting District Attorney, Mineóla (Jason R. Richards and Tammy J. Smiley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant stands convicted of conspiracy in the fourth degree. Prior to his nonjury trial upon an indictment charging him with numerous crimes incident to his alleged participation in a scheme to defraud mortgage lenders, defendant, through trial counsel, entered into a stipulation deeming certain enumerated exhibits “admissible as evidence in chief for all purposes.” Among the numerous documents covered by this stipulation was one from a lender file respecting a mortgage loan made for the purchase of a property identified as 185 Friends Lane. That document, exhibit 17C, was a request-for-verification-of-employment form respecting putative loan applicant Frank Martin. The form, signed by “Allen Gary” on November 16, 2006, falsely represented that Mr. Martin was employed by AG Capital Holdings, as its Corporate Finance Manager and that his prospects for continued employment were “[g]ood.” At the bottom of the form was a handwritten notation by an individual identified at trial as a mortgage company loan officer, stating that on January 12th she “spoke w[ith] Gary and he QC all info.”

During his trial testimony as a prosecution witness, erstwhile mortgage broker, codefendant Carlos Irizarry, stated that he filled out the verification-of-employment form in consultation with defendant and then forwarded the form to him for execution. He reported that the form was faxed back to him directly from defendant’s business, the fax number of which was in fact emblazoned on the top of the form. He testified without contemporaneous objection that the handwritten note on the form confirmed that the loan officer had “quality controlled” the information on the form by speaking with defendant on January 12, 2007. It was not until the following day of the trial and after the receipt of considerable intervening testimony, that defense counsel raised a hearsay objection to the receipt in evidence of the handwritten note and Irizarry’s testimony referencing it and moved to strike the objected-to matter from the record. The court denied defendant’s application, observing that the notation had already been the subject of unobjected-to testimony. The court later indicated that it would have ruled differently had defendant’s objection been timely.

Although courts are ordinarily bound to enforce party stipulations (see Matter of New York, Lackawanna & W. R.R. Co., 98 NY 447, 453 [1885]), where a party has in the interests of judicial economy stipulated to the admission of voluminous materials and there are among them scattered items, both prejudicial and ordinarily inadmissible that may reasonably have escaped counsel’s attention, there is no rule preventing an exercise of judicial discretion to relieve the party, at least in part, from the stipulation, particularly where doing so would not significantly prejudice the other side. The trial court here did not take a contrary view in declining to redact the record as defendant requested. It ruled as it did not because it understood the parties’ stipulation categorically to preclude relief of the sort sought, but because significant unobjected-to testimony had already been received respecting the disputed notation on exhibit 17C. While the court might have exercised its discretion differently, its decision not to revisit the issue of the notation’s admissibility cannot under the circumstances be characterized as an abuse of discretion, as would be necessary for it to qualify as a predicate for relief in this Court (see People v Carroll, 95 NY2d 375, 385 [2000]). Although the stipulation was not irreversibly binding, it was at least presumptively enforceable and defendant offered no plausible excuse for failing earlier to seek an exception from its coverage. Assuming that the disputed notation might have reasonably escaped notice before trial — and that is at best questionable — it was prominently referenced in Mr. Irizarry’s testimony, but even then elicited no contemporaneous protest.

This moreover was not a situation in which the receipt of an extrajudicial statement resulted in a denial of the constitutional right of confrontation. The notation was not testimonial hearsay (see Crawford v Washington, 541 US 36 [2004]); at worst its admission ran counter to evidentiary rules of nonconstitutional provenance and was, in light of other evidence in the case received without even belated objection, practically redundant. Indeed, a different exercise of discretion by the trial court to exclude the note and redact record references to it would not have materially altered the evidentiary equation. The lender’s pertinent loan service notes, also admitted pursuant to the parties’ pretrial stipulation, contain essentially duplicative entries in which the loan officer identified as the author of the disputed notation on exhibit 17C represented that she telephoned “AL” Gary’s business on January 12, 2007 and orally confirmed with an individual referred to as “Allen Gary” Mr. Martin’s employment, position and income.

We have considered defendant’s remaining points and find them to be without merit.

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

Order affirmed, in a memorandum.


text:
    Acquest Wehrle, LLC, Appellant-Respondent, v Town of Amherst, Respondent-Appellant.
    (Appeal No. 1.)
    Decided November 18, 2015
   Appeals dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Acquest Wehrle, LLC, Respondent, v Town of Amherst, Appellant.
    (Appeal No. 2.)
    Decided November 18, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Beck Chevrolet Co., Inc., Appellant, v General Motors LLC, Respondent.
    Submitted November 16, 2015;
    decided November 18, 2015

      See 787 F3d 663.
   Motion by Greater New York Automobile Dealers Association, Inc. for leave to appear amicus curiae on consideration of the certified questions 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:
    Luis Caceres et al., Respondents, v Standard Realty Associates, Inc., et al., Appellants. (And a Third-Party Action.)
    Decided November 18, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jennifer Cangro, Appellant, v Gina Marie Reitano, Respondent.
    Decided November 18, 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 Michael Flournoy, Appellant, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
    Submitted September 8, 2015;
    decided November 18, 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.

Judge Stein taking no part.


text:
    Gerald Gardner Wright, P.C. & Associates, Appellant, v Champion Property Management, LLC, et al., Respondents.
    Submitted August 31, 2015;
    decided November 18, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Manufacturers and Traders Trust Company, Plaintiff, v Anne Berthole et al., Defendants, Anthony Berthole, Respondent, and Gladys Menardy, Appellant.
    Decided November 18, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Millennium Holdings LLC, Plaintiff, The Northern Assurance Company of America, Appellant, and Certain Underwriters at Lloyd’s et al., Intervenors-Appellants, v The Glidden Company, Now Known as Akzo Nobel Paints, et al., Respondents.
    Submitted November 16, 2015;
    decided November 18, 2015
   Motion by United Policyholders for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Nancy Waldbaum Nimkoff, Respondent, v Ronald A. Nimkoff, Appellant.
    Submitted August 17, 2015;
    decided November 18, 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 Abdus-Salaam taking no part.


text:
    In the Matter of the Claim of Arlene K. Parris, Appellant. Commissioner of Labor, Respondent.
    Decided November 18, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    The People of the State of New York, Respondent, v Timothy Brewer, Appellant.
    Submitted November 2, 2015;
    decided November 18, 2015
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Cook, Appellant. The People of the State of New York, Appellant, v William Cook, Respondent.
    Submitted November 16, 2015;
    decided November 18, 2015
   Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Kevin Fisher, Appellant.
    Submitted November 2, 2015;
    decided November 18, 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 Zachary T. Guerin, Appellant.
    Submitted October 19, 2015;
    decided November 18, 2015
   Motion to vacate this Court’s August 21, 2015 dismissal order granted [see 26 NY3d 925 (2015)].


text:
    The People of the State of New York, Respondent, v Ronnell Jordan, Appellant.
    Submitted November 16, 2015;
    decided November 18, 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 Kaity Marshall, Appellant.
    Submitted November 2, 2015;
    decided November 18, 2015
   Motion by Innocence Project, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Appellant, v Harold L. Petke, Respondent.
    Submitted September 28, 2015;
    decided November 18, 2015
   Motion to vacate this Court’s September 3, 2015 preclusion order granted.


text:
    The People of the State of New York, Respondent, v Harvert Stephens, Also Known as Havert Stephens, Appellant.
    Submitted November 2, 2015;
    decided November 18, 2015
   Motion for assignment of counsel granted and Philip Rothschild, Esq., Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Stone, Appellant.
    Submitted October 26, 2015;
    decided November 18, 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, Appellant, v Carlos Valentin, Respondent.
    Submitted November 16, 2015;
    decided November 18, 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 respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Brandon Warrington, Respondent.
    Submitted October 26, 2015;
    decided November 18, 2015
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12207 assigned as counsel to the respondent on the appeal herein.


text:
    Kelly G. Sheridan, Respondent, v David E. Sheridan, Appellant. Kelly M. Corbett, Attorney for the Child, Appellant.
    (Appeal No. 1.)
    Submitted November 16, 2015;
    decided November 18, 2015
   Motion for poor person relief granted.


text:
    Blanca Soltero, Appellant-Respondent, v City of New York, Respondent-Appellant.
    Submitted August 24, 2015;
    decided November 18, 2015
   Motions for leave to appeal dismissed upon the ground that the Appellate Division order from which both parties seek leave to appeal has been vacated and superceded by a subsequent order of that Court.


text:
    [41 NE3d 1145, 20 NYS3d 330]
    In the Matter of Estevan Gentil, Respondent, v Ira Margulis, Justice of the Supreme Court of the State of New York, County of Queens, Respondent, and Richard A. Brown, District Attorney, Queens County, Appellant.
    Argued October 14, 2015;
    decided November 19, 2015
    APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Nancy Fitzpatrick Talcott, Robert J. Masters and John M. Castellano of counsel), appellant pro se.

      Law Office of Garnett H. Sullivan, South Hempstead (Gar-nett H. Sullivan of counsel), for Estevan Gentil, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the petition dismissed.

After one juror was found unable to serve, defendant refused to substitute an alternate juror and requested a partial verdict on the one count on which the jury had indicated it had reached a verdict. The Appellate Division granted the petition on the basis that there was no manifest necessity for a mistrial and did not address the issue of consent (120 AD3d 1414 [2014]). Because defendant implicitly consented to a mistrial on two of three counts by requesting a partial verdict and by saying nothing about the court’s plans for retrial (People v McFadden, 20 NY3d 260 [2012]; Matter of Marte v Berkman, 16 NY3d 874 [2011]), we need not reach the issue of manifest necessity.

Fahey, J. (concurring). I agree with the majority that the order of the Appellate Division should be reversed, but for a different reason. A defendant’s consent to a mistrial, and concomitant waiver of double jeopardy protection, “may ... be implied from the circumstances leading up to the dismissal of the jury” (People v Ferguson, 67 NY2d 383, 388 [1986]). This Court has held, however, that whether a defendant has “consented to a mistrial is a factual question” (id. at 389; see Matter of Marte v Berkman, 16 NY3d 874, 875 [2011]). As such, that “factual determination . . . may not be disturbed by this Court if there is any support for that finding in the record” (Marte, 16 NY3d at 875).

In this CPLR article 78 proceeding in the nature of prohibition, however, the Appellate Division made no factual finding with respect to whether defendant consented to the mistrial. Rather, the Appellate Division’s decision was based solely on that Court’s conclusion that “there was no manifest necessity for the declaration of a mistrial” (Matter of Gentil v Margulis, 120 AD3d 1414, 1417 [2d Dept 2014]). Thus, there are no factual findings by a lower court for us to review (cf. Marte, 16 NY3d at 875; Ferguson, 67 NY2d at 389). Furthermore, we have no power to make our own factual determination on this issue (see NY Const, art VI, § 3 [a]; CPLR 5501 [b]).

While the majority relies on the waiver of double jeopardy protection in People v McFadden (20 NY3d 260 [2012]), that case is clearly distinguishable. In McFadden, the defendant affirmatively requested a mistrial (see id. at 262, 264-265). Here, the issue is whether defendant impliedly consented to a mistrial, which presents a factual question (see Marte, 16 NY3d at 875; Ferguson, 67 NY2d at 389).

I would reverse the order of the Appellate Division on the ground that there was manifest necessity for a mistrial on counts two and three of the indictment. As the majority notes, after the trial court determined that one juror was unable to continue deliberations, defendant refused to consent to the substitution of an alternate juror.

For there to be a “manifest necessity” for a mistrial, such that double jeopardy does not bar retrial, the trial court must consider reasonable alternatives to a mistrial (see Ferguson, 67 NY2d at 388; Matter of Enright v Siedlecki, 59 NY2d 195, 199-200 [1983]). Here, the trial court considered reasonable alternatives to a mistrial, except for the taking of a partial verdict on count one (see Matter of Robles v Bamberger, 219 AD2d 243, 247 [1st Dept 1996], lv denied 88 NY2d 809 [1996], mot to dismiss appeal granted 88 NY2d 962 [1996]; cf. Matter of Rivera v Firetog, 11 NY3d 501, 508 [2008], cert denied 556 US 1193 [2009]). Nevertheless, the trial court’s failure to take a partial verdict on count one does not bar retrial on counts two and three.

CPL 310.70 (2) provides that “[following the rendition of a partial verdict. . ., a defendant may be retried for any submitted offense upon which the jury was unable to agree,” with certain exceptions that are not relevant here. Thus, the trial court’s failure to take a partial verdict on count one does not prevent defendant from being retried on counts two and three, inasmuch as the jury was “unable to agree” on counts two and three (CPL 310.70 [2]; see Matter of Dissell v Adams, 115 AD2d 1006, 1008 [4th Dept 1985]).

Defendant’s reliance on the Appellate Division’s dismissal of the entire indictment in Robles is misplaced. In that case, although the jurors indicated that they had reached a partial verdict, there was no indication as to the count upon which the jury had reached a partial verdict before the trial court declared a mistrial and discharged the jury (see Robles, 219 AD2d at 247-248). There, the Appellate Division properly dismissed the indictment in its entirety (see id. at 248). Here, by contrast, the jury clearly stated that it was deadlocked on counts two and three and, by inference, that it had reached a partial verdict on count one only. Defendant therefore may be retried on counts two and three of the indictment (see CPL 310.70 [2]; Dissell, 115 AD2d at 1008).

Chief Judge Lippman and Judges Pigott, Rivera and AbdusSalaam concur; Judge Fahey concurs in result in an opinion in which Judge Stein concurs.

Order reversed, without costs, and petition dismissed, in a memorandum.


text:
    In the Matter of Alexander S., an Infant. Steuben County Department of Social Services, Respondent; David S., Appellant, et al., Respondent.
    Submitted August 24, 2015;
    decided November 19, 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.

Judge Fahey taking no part.


text:
    Bank of New York, on Behalf of the Certificate Holders, CWABS, Inc., Asset-Backed Certificates, Series 2007-7, Respondent, v Jean Penalver et al., Defendants, and Joshua Nesbitt, Appellant.
    Submitted September 8, 2015;
    decided November 19, 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:
    Richard (Ricardo) Cordero, Appellant, v Viviana Barreiro-Cordero et al., Respondents.
    Submitted September 21, 2015;
    decided November 19, 2015
   Motion for leave to appeal etc. dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Lawrence J. Worner, Respondent, v Susan Gavin, Appellant.
    Submitted September 14, 2015;
    decided November 19, 2015
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    [43 NE3d 361, 22 NYS3d 151]
    In the Matter of Anthony Frank Fizzinoglia, Also Known as Anthony F. Fizzinoglia and Another, Deceased. Josephine Paradiso Fizzinoglia, Appellant; Frank Fizzinoglia, Respondent.
    Argued October 21, 2015;
    decided November 18, 2015

      APPEARANCES OF COUNSEL

      McCarthy Fingar LLP, White Plains (Sondra M. Miller, Frank W. Streng and Robert H. Rosh of counsel), for appellant.

      Daniels, Porco and Lusardi, LLP, Carmel (Robert C. Lusardi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this administration proceeding pursuant to Surrogate’s Court Procedure Act § 1001, Surrogate’s Court properly denied petitioner’s motion for summary judgment dismissing object-ant’s claim against the estate. Petitioner did not make a prima facie showing that the prenuptial agreement she and the decedent signed was invalid and unenforceable insofar as it omitted a statement of the parties’ assets and liabilities. Notably, petitioner testified that she was aware when the agreement was executed that the statement was absent, and that, at the time, the decedent’s finances “didn’t matter” to her. Moreover, the record does not contain any indication that the decedent “attempted to conceal or misrepresent the nature or extent of his assets” (Panossian v Panossian, 172 AD2d 811, 813 [2d Dept 1991]).

At trial, Surrogate’s Court properly granted objectant’s motion for judgment as a matter of law under CPLR 4401. Petitioner failed to present prima facie proof that “a fact-based, particularized inequality” (Matter of Greiff, 92 NY2d 341, 346 [1998]) existed between the decedent and herself at the time of the execution of the prenuptial agreement, or meet her resulting burden of proof that the agreement was the product of fraud, duress, overreaching, or other inequitable conduct by the decedent (see generally Christian v Christian, 42 NY2d 63, 71-73 [1977]).

Petitioner’s remaining contentions lack merit in the circumstances of this case.

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

Order affirmed, with costs, in a memorandum.


text:
    [43 NE3d 372, 22 NYS3d 162]
    Ainsworth M. Bennett, Individually and on Behalf of the Estate of Virginia R. Bennett, Deceased, Appellant, v St. John’s Home et al., Respondents.
    Decided November 23, 2015
    APPEARANCES OF COUNSEL

      David E. Woodin, LLC, Catskill {David E. Woodin of counsel), for appellant.

      Underberg & Kessler LLP, Rochester {David H. Fitch of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered as unnecessary. As the issue of the timeliness under CPLR 3212 (a) of defendants’ summary judgment motion was not preserved in Supreme Court, the Court of Appeals lacks power to review either the Appellate Division’s exercise of its discretion to reach the issue, or the issue itself (see Hecker v State of New York, 20 NY3d 1087 [2013]). On the remaining issue presented, the Appellate Division properly held that defendants were entitled to summary judgment.

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


text:
    [43 NE3d 369, 22 NYS3d 159]
    The People of the State of New York, Respondent, v Alma Caldavado, Also Known as Alma Calderaro, Appellant.
    Argued October 15, 2015;
    decided November 23, 2015

      APPEARANCES OF COUNSEL

      Mark M. Baker, New York City, for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Robert J. Masters, Nicoletta J. Caferri and William H. Branigan of counsel), for respondent.

      Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (David B. Hennes, Nathan M. Erickson and Michael P. Sternheim of counsel), Seth Miller, Innocence Network, Tallahassee, Florida (Katherine Judson of counsel), and Dana M. Delger and M. Chris Fabricant, New York City, for Innocence Network, amicus curiae.

      Thomas R. Villecco, Jericho, Mark Fernich, New York State Association of Criminal Defense Lawyers, New York City, and Richard Willstatter, National Association of Criminal Defense Lawyers, White Plains, for National Association of Criminal Defense Lawyers and another, amici curiae.

      Gerald F. Mollen, Benjamin E. Rosenberg and Jamie Masten for District Attorneys Association of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

In 2006, defendant was charged with assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (Penal Law § 260.10 [1]), in connection with injuries sustained by a seven-month-old infant in her care. At defendant’s trial in 2009, the People’s theory was that the infant suffered from shaken baby syndrome (SBS) after defendant violently shook her. The People called 13 medical professionals in support of their case, nine of whom testified as expert witnesses. Defense counsel, relying on a lV2-page opinion by a physician, challenged the People’s witnesses through cross-examination by suggesting that the victim’s injuries were caused by a “re-bleed” of an earlier trauma. Defense counsel did not, however, present any expert testimony at trial to contradict the SBS diagnosis proffered by the People’s witnesses. Following deliberations, defendant was found guilty of both charges. Upon her subsequent appeal, the Appellate Division affirmed (78 AD3d 962, 963 [2d Dept 2010], lv denied 16 NY3d 829 [2011]).

In 2012, defendant moved, pursuant to CPL 440.10 (1) (g) and (h), for an order vacating her conviction on the grounds of newly discovered evidence, ineffective assistance of counsel, and actual innocence. Supreme Court denied defendant’s motion without an evidentiary hearing, and the Appellate Division affirmed (116 AD3d 877, 877 [2d Dept 2014]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1060 [2014]), and we now reverse.

On this record, defendant established that “there were sufficient questions of fact as to whether [counsel] had an adequate explanation” for his failure to pursue certain lines of defense on cross-examination or for his failure to call an expert on defendant’s behalf, and defendant “is therefore entitled to an opportunity to establish that [s]he was deprived of meaningful legal representation” (People v Zeh, 22 NY3d 1144, 1146 [2014]). In this regard, we note that defendant’s CPL 440.10 proffer included statements from two experts, who described additional lines of inquiry that would likely have been advantageous to the defense but were not pursued at trial. In addition, defendant submitted an affidavit from her sister, wherein she indicated that counsel asserted that he would not call an expert at trial because it would be “pointless” to do so in light of the number of experts being called by the People. We are mindful that it is exceedingly rare that a defense attorney’s strategic decision not to present expert testimony amounts to ineffective assistance of counsel (see Harrington v Richter, 562 US 86, 106 [2011]; People v Ross, 119 AD3d 964, 965 [2d Dept 2014]; cf. Hinton v Alabama, 571 US —, —, 134 S Ct 1081, 1089 [2014]). However, in a case such as this, where casting doubt on the prosecution’s medical proof is the crux of the defense, a decision that it would be futile to call an expert based solely on the volume of expert testimony presented by the People is not a legitimate or reasonable tactical choice.

Accordingly, although a hearing is not invariably required on a CPL 440.10 motion, under the circumstances presented here, defendant’s proof raised a question — in the absence of any submissions from defense counsel — as to whether counsel’s alleged deficiencies were merely the result of a reasonable, but unsuccessful, trial strategy (see generally Strickland v Washington, 466 US 668, 690 [1984]; People v Baldi, 54 NY2d 137, 147 [1981]), or whether counsel failed to “pursue the minimal investigation required under the circumstances” (People v Oliveras, 21 NY3d 339, 348 [2013]). Thus, a hearing is necessary to resolve defendant’s claim of ineffective assistance of counsel (see Zeh, 22 NY3d at 1146; People v Jenkins, 68 NY2d 896, 898 [1986]).

The other grounds cited in connection with defendant’s CPL 440.10 motion do not warrant further inquiry upon remittal. Defendant’s proffered submissions did not constitute “newly discovered evidence” within the meaning of CPL 440.10 (1) (g). Furthermore, to the extent defendant’s motion was based on a purported “freestanding actual innocence claim” beyond that provided by CPL 440.10 — such as that recognized by the Second Department in People v Hamilton (115 AD3d 12 [2d Dept 2014]) — we need not pass on the viability of such a claim here; even assuming it is cognizable, defendant failed to demonstrate factual innocence regardless of the applicable standard of proof.

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

Order reversed and case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein.


text:
    [43 NE3d 765, 22 NYS3d 408]
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Decided October 27, 2015

      APPEARANCES OF COUNSEL

      Gleason Dunn Walsh & O’Shea, Albany (Ronald G. Dunn of counsel), and Michael T. Murray, Patrolmen’s Benevolent Association of the City of New York, Inc., New York City (Gaurav I. Shah and David W. Morris of counsel), for appellants.

      Zachary W. Carter, Corporation Counsel, New York City (Ellen Ravitch, Richard Dearing and Pamela Seider Dolgow of counsel), for respondents.

      Greenberg Burzichelli Greenberg P. C., Lake Success (Harry Greenberg and Genevieve E. Peeples of counsel), for Harry Nespoli, amicus curiae.
   OPINION OF THE COURT

Order reversed, without costs, and matter remitted to Supreme Court, New York County, with directions to dismiss the proceeding upon the ground of mootness (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 718 [1980]).

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


text:
    In the Matter of Aminata M.S.-L. Westchester County Department of Social Services, Respondent; Doris L., Appellant. (Proceeding No. 1.) In the Matter of Neferitti M.A.S.-L. Westchester County Department of Social Services, Respondent; Doris L., Appellant. (Proceeding No. 2.)
    Submitted October 13, 2015;
    decided November 23, 2015
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 914 (2015)].


text:
    Ramandeep Badwal, Respondent, v Avtar S. Badwal, Appellant.
    Submitted October 5, 2015;
    decided November 23, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that it does not lie. Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    CF HY LLC, Respondent, v Hudson Yards LLC et al., Defendants, and Baruch Singer, Appellant.
    Submitted October 5, 2015;
    decided November 23, 2015
   Motion for reargument denied [see 26 NY3d 945 (2015)].


text:
    In the Matter of Eileen D’Amico, Respondent, v Christopher Corrado, Appellant.
    Submitted October 13, 2015;
    decided November 23, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 949 (2015)].


text:
    Renee Forbes, Appellant, v Paul J. Giacomo, Jr., et al., Respondents.
    Submitted September 21, 2015;
    decided November 23, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the Supreme Court order denying reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Letitia James, Appellant, v Daniel Donovan, Respondent. In the Matter of Legal Aid Society, Appellant, v Daniel Donovan, Respondent. In the Matter of New York Civil Liberties Union, Appellant, v Daniel Donovan, Respondent. In the Matter of NYP Holdings, Inc., Petitioner, v Daniel Donovan, Respondent. In the Matter of Staten Island Branch of National Association for Advancement of Colored People et al., Appellants, v Daniel Donovan, Respondent.
    Submitted August 24, 2015;
    decided November 23, 2015
   Motions for leave to appeal denied. Motions for a calendar preference dismissed as academic.

Chief Judge Lippman taking no part.


text:
    In the Matter of Li Rong Gao et al., Respondents, v Perfect Team Corp., Appellant.
    Submitted October 5, 2015;
    decided November 23, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as dismissed appeals from the October 2010 and February 2012 Supreme Court orders, dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511); motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    111-38 Management Corp., Appellant, v Diego Benitez, Also Known as Juan D. Benitez, et al., Respondent, et al., Defendant.
    Submitted September 28, 2015;
    decided November 23, 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, Respondent, v Jose Aviles, Appellant.
    Submitted October 5, 2015;
    decided November 23, 2015
   Motion to enlarge the record denied.


text:
    The People of the State of New York, Respondent, v Frank L. Morrison, Appellant.
    Submitted September 28, 2015;
    decided November 23, 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 County Court entered in this proceeding commenced in Town Court (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Rafael Agosto, Appellant, v Paul Chappius Jr., as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted October 5, 2015;
    decided November 23, 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:
    Pedro Antonio Rivera, Appellant, v Earlybird Delivery Systems, LLC, Respondent.
    Submitted October 5, 2015;
    decided November 23, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Village of Southampton, Respondent, v Village of Southampton Police Benevolent Association, Inc., Respondent. Christopher Broich, Nonparty-Appellant.
    Submitted August 31, 2015;
    decided November 23, 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:
    [43 NE3d 762, 22 NYS3d 405]
    The People of the State of New York, Respondent, v Abdelouahad Afilal, Appellant.
    Argued October 20, 2015;
    decided November 24, 2015

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Seth Steed of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Alan Gadlin and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the accusatory instrument dismissed. Defendant was charged with and pleaded guilty to criminal possession of marihuana in the fifth degree (Penal Law § 221.10 [1]). On appeal he challenges the sufficiency of the accusatory instrument, claiming that it fails to allege sufficient facts to establish the “public place” element of section 221.10 (1).

A person is guilty of criminal possession of marihuana in the fifth degree “when [such person] knowingly and unlawfully possesses . . . marihuana in a public place . . . and such marihuana is burning or open to public view” (Penal Law § 221.10 [1]). Public place means

“a place to which the public or a substantial group of persons has access, and includes, but is not limited to, highways, transportation facilities, schools, places of amusement, parks, playgrounds, and hallways, lobbies and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence” (Penal Law § 240.00 [1]).

“A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v Case, 42 NY2d 98, 99 [1977]). Defendant waived prosecution by information and, therefore, the sufficiency of the accusatory instrument is assessed under the standard applicable to a misdemeanor complaint. Under that standard, the complaint must allege “facts of an evidentiary character supporting'or tending to support the charges” (CPL 100.15 [3]), and the factual allegations must “provide reasonable cause to believe that the defendant committed the offense charged” (CPL 100.40 [4] [b]; see People v Dumay, 23 NY3d 518, 522 [2014]).

Here, the People concede that the accusatory instrument could have more precisely pleaded the public nature of defendant’s location by alleging that he was standing on a sidewalk or in a park, when the officer saw him holding a bag of marihuana. We agree that either of these assertions describes a location within the definition of Penal Law § 240.00 (1) (see Penal Law § 240.00 [1] [public place includes “places of amusement, parks, playgrounds”]; People v Campbell, 41 Misc 3d 143[A], 2013 NY Slip Op 52057[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [officer “observed the defendant on a sidewalk which is a public place, and in possession of a quantity of marihuana”], lv denied 22 NY3d 1155 [2014]). Given the absence of such factual allegations, and the instrument’s reliance otherwise on conclusory statements that do no more than track the language of Penal Law § 221.10 (1), the complaint fails to meet the reasonable cause requirement and should be dismissed (see People v Dreyden, 15 NY3d 100, 103 [2010]; CPL 100.40 [4] [b]; Dumay, 23 NY3d at 522).

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

Order reversed and accusatory instrument dismissed, in a memorandum.


text:
    [44 NE3d 196, 23 NYS3d 121]
    The People of the State of New York, Respondent, v Mactar Sougou, Appellant. The People of the State of New York, Respondent, v Rita Thompson, Appellant.
    Decided November 24, 2015

      APPEARANCES OF COUNSEL

      The Legal Aid Society, New York City (Harold V. Ferguson, Jr, of counsel), for appellant in the first above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City (Alan Gadlin and Hilary Hassler of counsel), for respondent in the first above-entitled action.

      The Legal Aid Society, New York City (Harold V. Ferguson, Jr., of counsel), for appellant in the second above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City (Manu Balachandran and Alan Gadlin of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Term should be affirmed.

In each of these appeals defendants contend that their respective plea allocutions were insufficient as a matter of law to establish that they pleaded guilty knowingly and intelligently (see Boykin v Alabama, 395 US 238, 243 [1969]; People v Harris, 61 NY2d 9, 18 [1983]). We disagree and conclude that, in each case, the plea proceeding manifests a constitutionally adequate waiver.

As a preliminary matter, we reject the People’s contention that defendants’ claims are unpreserved and find People v Tyrell (22 NY3d 359 [2013]) dispositive on this issue. As in Tyrell, both defendants pleaded guilty and were sentenced at the same proceeding, and the errors were clear from the face of the record. As a consequence, preservation poses no bar to our review of defendants’ challenges to their guilty pleas (id. at 364).

Turning to the merits, we begin with the established constitutional principle that a guilty plea must be “entered voluntarily, knowingly and intelligently” (People v Haffiz, 19 NY3d 883, 884 [2012]; see Tyrell, 22 NY3d at 365; People v Harris, 61 NY2d 9, 17-18 [1983]). A valid plea encompasses a waiver of the right to trial by jury, the privilege against compulsory self-incrimination, and the right to confront one’s accusers (Boykin, 395 US at 243; Harris, 61 NY2d at 18). However, this Court has rejected the requirement that the trial judge must enumerate all the rights waived during the course of the plea allocution (Harris, 61 NY2d at 18; Tyrell, 22 NY3d at 365). Nevertheless, “the Trial Judge has a vital responsibility ‘to make sure [that the accused] has full understanding of what the plea connotes and of its consequence[s]’ ” (Harris, 61 NY2d at 19, citing Boykin, 395 US at 244). Of course, a trial judge may discharge this duty by direct inquiry of the defendant, but, as we recognized in Tyrell, a valid waiver can be established “where the record shows that the defendant consulted with [defendant’s] attorney about the constitutional consequences of a guilty plea” (22 NY3d at 365, citing North Carolina v Alford, 400 US 25, 29 n 3 [1970], and Hanson v Phillips, 442 F3d 789, 801 [2d Cir 2006]).

A court determining the voluntariness of a plea must review the record as a whole and the circumstances of the plea in its totality (Harris, 61 NY2d at 19). Indeed, “ ‘the voluntariness of [a] plea can be determined only by considering all of the relevant circumstances surrounding it’ ” (Harris, 61 NY2d at 19 [emphasis omitted], quoting Brady v United States, 397 US 742, 749 [1970]). Here, the records in the instant appeals demonstrate that defendants’ pleas were “knowing, voluntary and intelligent” and constitute valid waivers of their constitutional rights.

In Sougou, defendant pleaded guilty to unlicensed general vending (Administrative Code of City of NY § 20-453), a misdemeanor. The court sentenced defendant to a conditional discharge, with three days of community service, and required that he not be arrested for one year, or risk 90 days’ jail time as an alternative sentence.

During the plea, defense counsel stated initially that defendant authorized him to enter a guilty plea for violating section 20-453, and that he had discussed with defendant that any arrests during the conditional discharge period would place defendant at risk of arrest and 90 days’ jail time. The judge then directly addressed defendant and asked specifically whether defendant had discussed the plea and the sentence, as described in open court, with his lawyer; whether defendant was pleading voluntarily and of his own free will; and whether defendant understood that he was giving up his right to a trial and to hearings on the search and seizure evidence. Defendant answered “yes” to each and every question. The record thus affirmatively demonstrates that defendant understood the consequences of his plea, including that he was waiving his right to trial and to challenge evidence against him, and that he discussed both the plea and his sentence with counsel. Therefore, defendant’s challenge to the voluntariness of the plea is without merit (see Harris, 61 NY2d at 20-21 [holding that waivers in People v Ramsey and People v Alicea were valid where the judges advised the defendants of their right to trial, discussed the plea consequences with defendant, and defendant affirmed that the plea was voluntary]).

In Thompson, defendant pleaded guilty to harassment in the second degree (Penal Law § 240.26), a violation, and the court sentenced her to time served and imposed a two-year order of protection. At the plea proceeding, counsel stated that she was authorized to enter a plea of guilty on defendant’s behalf to harassment in the second degree. The judge addressed defendant and asked whether she wanted to enter a plea of guilty to harassment, a violation and not a crime, and whether she understood that by pleading guilty she was giving up her right to trial. Defendant responded affirmatively to the court’s inquiries, and also stated that no one had forced her to enter the plea.

Based on our review of the record, we conclude that the court’s inquiry and defendant’s responses establish that defendant waived her right to trial and fully comprehended the plea. Indeed, defense counsel emphasized “to be very clear for” defendant, that the plea was to “a violation not a crime. It will not add to her criminal record.” Defendant thus understood that by pleading guilty she avoided any further enhancement of her existing criminal record. Granted, the plea proceeding was succinct, but, unlike Tyrell, the record was not silent, and the substance of the plea colloquy is at least equivalent to that of the pleas this Court upheld in People v Ramsey and People v Alicea, two of the cases decided along with Harris (61 NY2d at 20-21).

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

In each case: On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.


text:
    Aurora Loan Services, LLC, Respondent, v Mario Lucero et al., Defendants, and Rosa Soto, Appellant.
    Submitted October 5, 2015;
    decided November 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Vivian Barbagallo, Respondent, v Erick Cotto-Donis, Appellant.
    Submitted November 2, 2015;
    decided November 24, 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 Sharon K. Bland, Appellant, v Gellman, Brydges & Schroff et al., Respondents. Workers’ Compensation Board, Respondent. In the Matter of Sharon K. Bland, Appellant, v Ronco Communications et al., Respondents. Workers’ Compensation Board, Respondent.
    (Claim No. 1.) (Claim No. 2.)
    Submitted October 26, 2015;
    decided November 24, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 948 (2015)].

Judge Stein taking no part.


text:
    Patricia J. Curto, Appellant, v Mark Diehl et al., Respondents.
    Submitted October 19, 2015;
    decided November 24, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 946 (2015)].

Judge Fahey taking no part.


text:
    In the Matter of Dior Polo G., an Infant. Carrie D. Tillman, Appellant; Ronald Rossi et al., Respondents.
    Submitted October 13, 2015;
    decided November 24, 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:
    Sandra L. Hughes, Respondent, v Neville T. Hughes, Appellant.
    Submitted October 26, 2015;
    decided November 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Elvin LeBron, Appellant, v Anthony J. Annucci, as Acting Commissioner of New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 13, 2015;
    decided November 24, 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 Stephanie Lewis, Appellant, v New York City Health and Hospitals Corporation et al., Respondents.
    Submitted October 26, 2015;
    decided November 24, 2015
   Motion, insofar as it seeks leave to appeal against respondents New York City Health and Hospitals Corporation and Bellevue Hospital Center, dismissed as untimely (see CPLR 5513 [b]; 5514 [a]); motion for leave to appeal otherwise denied.


text:
    In the Matter of Gerald E. Loehr et al., Respondents, v Administrative Board of the Courts of the State of New York, Appellant.
    Submitted September 28, 2015;
    decided November 24, 2015
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see CPLR 5601 [b] [1]).

Chief Judge Lippman taking no part.


text:
    In the Matter of Erich Milord, Appellant, v New York State Department of Motor Vehicles, Respondent.
    Submitted November 2, 2015;
    decided November 24, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 904 (2015)].


text:
    In the Matter of Teddy Israel Moore (Admitted as Israel Teddy Moore), a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Respondent.
    Submitted October 13, 2015;
    decided November 24, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 961 (2015)].


text:
    RTN Networks, LLC, Appellant, v Telco Group, Inc., et al., Respondents.
    Submitted September 28, 2015;
    decided November 24, 2015
   Motion, insofar as it seeks leave to appeal from the August 2015 Appellate Division order, 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:
    RW Holdings, LLC, Appellant, v Johanna Mayer et al., Respondents.
    Submitted November 2, 2015;
    decided November 24, 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:
    S. Nicolia & Sons Realty Corp., Appellant, v A.J.A. Concrete Ready Mix, Inc., Doing Business as AJA Concrete, Inc., et al., Respondents.
    Submitted October 13, 2015;
    decided November 24, 2015
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Lyndsey Wilcox, Appellant, v Newark Valley Central School District et al., Respondents, et al., Defendants.
    Submitted October 26, 2015;
    decided November 24, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Yujuan Sheng, Appellant, v Time Warner Cable, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 2, 2015;
    decided November 24, 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:
    [44 NE3d 220, 23 NYS3d 145]
    Switzerland Green, Appellant, v Metropolitan Transportation Authority Bus Company et al., Respondents, et al., Defendants. Tyese Laws, Appellant, v Metropolitan Transportation Authority Bus Company et al., Respondents.
    Decided November 19, 2015

      APPEARANCES OF COUNSEL

      Laurence M. Savedoff, P.L.L.C., Bronx (Laurence M. Savedoff of counsel), for Switzerland Green, appellant.

      Parker Watchman LLP, Port Washington (Jay L.T. Break-stone of counsel), for Tyese Laws, appellant.

      Morris Duffy Alonso & Faley, New York City (Arjay G. Yao of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs; motion of defendants Metropolitan Transportation Authority Bus Company and Isael Reyes for summary judgment denied; and certified question not answered as unnecessary. On this record, whether the emergency doctrine precludes liability presents a question of fact and, therefore, summary judgment for defendants Metropolitan Transportation Authority Bus Company and Isael Reyes was inappropriate.

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


author: Chief Judge Lippman

text:
    [44 NE3d 220, 23 NYS3d 145]
    The People of the State of New York, Respondent, v Stephen Pellegrino, Appellant.
    Decided November 24, 2015
    APPEARANCES OF COUNSEL

      The Legal Aid Society, New York City (Joanne Légano Ross of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Yuval Simchi-Levi and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

A guilty plea is not invalid solely because the trial court failed to recite a defendant’s constitutional rights under Boykin v Alabama (395 US 238 [1969]; see People v Conceicao, 26 NY3d 375 [2015] [decided herewith]). The record as a whole, however, must affirmatively demonstrate that defendant knowingly, intelligently and voluntarily waived those rights (see People v Harris, 61 NY2d 9, 17 [1983]).

The Appellate Term correctly concluded that the record in this case affirmatively shows a knowing, intelligent and voluntary waiver. Although he was initially charged with a felony, defendant pleaded guilty to promoting prostitution in the fourth degree (Penal Law § 230.20), a class A misdemeanor, in exchange for a $250 fine. He discussed the plea with his attorney for two days and personally confirmed that he was pleading guilty of his own free will because he was, in fact, guilty of the charge. The court ensured that defendant was aware of any potential immigration consequences and also that the conviction would add to his criminal record. We are satisfied that these facts establish a knowing, intelligent and voluntary waiver.

Chief Judge Lippman

(dissenting). I dissent for the reasons stated in my dissenting opinion in People v Conceicao (26 NY3d 375 [2015] [decided herewith]).

Judges Pigott, Abdus-Salaam, Stein and Fahey concur; Chief Judge Lippman dissents in an opinion in which Judge Rivera concurs.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, in a memorandum.