text:
    [983 NE2d 751, 959 NYS2d 674]
    The People of the State of New York, Respondent, v Hector Martinez, Appellant.
    Argued October 9, 2012;
    decided December 18, 2012

      APPEARANCES OF COUNSEL

      Stanley E. Neustadter, New York City, for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello and Vincent Rivellese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, by vacating defendant’s conviction of depraved indifference murder, dismissing that count of the indictment and remitting to Supreme Court for resentencing and, as so modified, affirmed, with leave to the People, if so advised, to present a charge of manslaughter in the first degree to a new grand jury.

On this direct appeal, defendant argues that the evidence was legally insufficient to establish his guilt of depraved indifference murder. Viewed in the light most favorable to the People, defendant, after an altercation with Lee, obtained a gun, chased him down, and fired four or five shots at him at near point-blank range—acts inconsistent with a conviction for depraved indifference murder.

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

Smith, J. (concurring). I join the majority memorandum, and will explain in this opinion my reasons for doing so.

I

Defendant, a drug dealer, became involved in an argument with Lavert Lee, a would-be purchaser of drugs. The argument escalated into a physical fight, in which defendant and Lee slapped each other, and a friend of defendant hit Lee with a bottle. While the friend and Lee continued to fight, defendant ran into a nearby building and came back with a gun. Lee fled into another building, and defendant followed him. Defendant fired four or five shots, killing Lee with a bullet to the chest and wounding a bystander whom Lee tried to use as a shield.

These events happened in 1991. Defendant was a fugitive until 1995, when he was arrested and brought to trial on an indictment charging him with intentional murder (Penal Law § 125.25 [1]), depraved indifference murder (Penal Law § 125.25 [2]), assault and weapons offenses.

After the close of the evidence, defendant moved to dismiss the depraved indifference murder count, arguing that the evidence showed, if anything, an intentional homicide: “Either the jury will believe that this defendant. . . intentionally went and got a gun, [and] shot and killed Lavert Lee . . .. Or if he didn’t, then they’re going to say that none of this is true.” Defense counsel added: “I don’t think there’s any set of facts the People have pointed to that would indicate that the defendant committed the crime with reckless disregard. It’s been the People’s contention throughout that he intended to do this crime.” The trial court denied the motion, concluding that “the facts in evidence are certainly consistent with a charge of reckless disregard.”

The jury acquitted defendant of intentional murder, but convicted him of depraved indifference murder, assault and criminal possession of a weapon. Defendant filed a timely notice of appeal but, for reasons the record does not illuminate, did not file a brief in the Appellate Division for 14 years—until 2009. The Appellate Division, with one Justice dissenting, affirmed, rejecting defendant’s argument that the evidence, while it would support a finding that he killed Lee intentionally, was insufficient to establish depraved indifference murder (People v Martinez, 84 AD3d 550 [1st Dept 2011]).

The Appellate Division noted that defendant did not object to the Court’s instructions to the jury on the elements of depraved indifference murder, and concluded that his argument “must be evaluated according to the court’s charge as given without objection” (id. at 553). Because the jury, the Appellate Division said, “was instructed in light of then-applicable law,” specifically People v Register (60 NY2d 270 [1983]), his argument must be evaluated under “the Register standard” (id.). Apparently applying Register, the Appellate Division concluded that “nothing on the record warrants setting aside the jury’s conclusion that defendant acted with depraved indifference rather than intentionally” (id. at 555).

A dissenting Appellate Division Justice concluded “that defendant fully preserved the issue of whether the evidence is sufficient to support conviction of depraved indifference murder” (id. at 562). Analyzing the record in light of more recent cases, the dissenter found “no reasonable view of the evidence that will support conviction for depraved indifference murder” (id. at 564). The dissenting Justice granted defendant leave to appeal to this Court.

II

Murder in the second degree is defined in Penal Law § 125.25. Subdivision (1) defines the most common form of the crime, intentional murder, which occurs when a person “[w]ith intent to cause the death of another person, . . . causes the death of such person or a third person” (Penal Law § 125.25 [1]). Subdivision (2) defines depraved indifference murder, committed when a person “[ujnder circumstances evincing a depraved indifference to human life . . . recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). The meaning of the second subdivision has presented a vexing problem for the New York courts.

The history of our depraved indifference murder jurisprudence, beginning with our 1983 decision in Register, is described in Policano v Herbert (7 NY3d 588 [2006]). As Policano explains, Register held that the statutory language “under circumstances evincing a depraved indifference to human life” did not identify a culpable mental state, or mens rea. Rather, under Register the “depraved indifference” language stated “a definition of the factual setting in which the risk creating conduct must occur” (Register, 60 NY2d at 276, quoted in Policano, 7 NY3d at 597). Thus we held in Register that “recklessness, pure and simple, is the mens rea for depraved indifference murder” (Policano, 7 NY3d at 597)—a crime, we said, “distinguishable from manslaughter, not by the mental element involved but by the objective circumstances in which the act occurs” (Register, 60 NY2d at 278, quoted in Policano at 597).

The jurisprudence developed under Register, “epitomized” by our decision in People v Sanchez (98 NY2d 373 [2002]), had two features of special importance in cases involving “fatal one-on-one shootings or knifings” (Policano, 7 NY3d at 599). First, “the question of the defendant’s state of mind” was thought “to be a classic matter for the jury,” so that a defendant could be found to have acted recklessly even where there was “compelling circumstantial evidence of intent to cause death” (id.). Secondly, when “a defendant’s actions created an almost certain risk of death,” that was viewed as sufficient in itself to support a finding of “circumstances evincing a depraved indifference to human life” (id. at 600). As we put it in Sanchez: “defendant’s shooting into the victim’s torso at point-blank range presented such a transcendent risk of causing his death that it readily meets the level of manifested depravity needed to establish murder under Penal Law § 125.25 (2)” (98 NY2d at 378, quoted in Policano, 7 NY3d at 598, 600). Sanchez, though not decided until 2002, was consistent with many earlier Appellate Division decisions (e.g. People v Keefer, 197 AD2d 915, 916 [4th Dept 1993]; People v Tankleff, 199 AD2d 550, 554 [2d Dept 1993], affd 84 NY2d 992 [1994]; People v Robinson, 205 AD2d 836, 836 [3d Dept 1994]; People v Cole, 233 AD2d 247, 247-248 [1st Dept 1996]; People v Crawford, 295 AD2d 361 [2d Dept 2002]).

Thus, under the Register regime, a conviction of depraved indifference murder could be upheld where a defendant had attacked and killed a single victim with a gun or knife, even where the evidence strongly pointed to intentional murder. As a result, it became commonplace in such cases for prosecutors to charge both intentional and depraved indifference murder in one indictment, leaving it to the jury to choose between them. Judge Rosenblatt, dissenting in Sanchez, observed that “depraved indifference murder counts have become routine escorts to intentional murder counts” (98 NY2d at 401 [Rosenblatt, J., dissenting]). He appended to his opinion a chart showing that, in 2001 and for several years previously, indictments joining intentional and depraved indifference murder had accounted for roughly half of all murder indictments in New York (id. at 416 [Appendix to op of Rosenblatt, J.]).

Our law changed in the four years following the decision in Sanchez (see People v Hafeez, 100 NY2d 253 [2003]; People v Gonzalez, 1 NY3d 464 [2004]; People v Payne, 3 NY3d 266 [2004]; People v Suarez, 6 NY3d 202 [2005]; People v Feingold, 7 NY3d 288 [2006]). We summarized this series of cases in Policano:

“Our interpretation of . . . ‘under circumstances evincing a depraved indifference to human life’ . . . gradually and perceptibly changed from an objectively determined degree-of-risk standard (the Register formulation) to a mens rea, beginning with our decision in Hafeez in 2003, continuing in our decisions in Gonzalez, Payne and Suarez in 2004 and 2005, and ending with our decision in Feingold in 2006. ... As the many concurring decisions and dissents in these cases and the dissent in this case illustrate, individual judges hold differing views as to where along this trajectory a majority of the Court may have effectively passed the point of no return—the limit beyond which, hard as we may have tried, it was simply not possible to reconcile our developing case law with Register and Sanchez. There is no doubt, however, that a majority of the Court explicitly overruled Register and Sanchez in Feingold, holding that ‘ “depraved indifference to human life” is a culpable mental state’ (7 NY3d at 296)” (7 NY3d at 602-603).

Under our more recent cases, depraved indifference murder convictions may no longer be upheld where the evidence of intent to kill is compelling. We have emphasized that intent to kill and “depraved indifference to human life” are incompatible states of mind, and that the latter is rarely found in homicide cases. We said in Payne “that depraved indifference murder may not be properly charged in the overwhelming majority of homicides that are prosecuted in New York” (3 NY3d at 270). We added that, “[wjhile we have identified instances in which a killing could qualify as depraved indifference murder, a pointblank shooting is ordinarily not one of them” (id.).

Our abandonment of the Register-Sanchez approach to depraved indifference murder raised the important question of how to deal with defendants who, like defendant in this case, were convicted of that crime while Register remained the law. We answered this question in Policano in 2006, and in People v Jean-Baptiste (11 NY3d 539 [2008]). In Policano, considering the case of a defendant seeking to attack collaterally a depraved indifference murder conviction that had become final in 2001, we concluded that our “post-Sanchez case law” did not apply “retroactively” to such cases (7 NY3d at 603). But in Jean-Baptiste, we held that our new “standard as articulated in Feingold should apply to cases brought on direct appeal in which the defendant has adequately challenged the sufficiency of the proof as to his depraved indifference murder conviction” (11 NY3d at 542).

Jean-Baptiste’s qualifying language, “in which the defendant has adequately challenged the sufficiency of the proof,” is a critical part of our post-Sanchez jurisprudence. The general rule that we will review claims only where they have been properly preserved for review attains special importance in this context. The preservation rule, like our retroactivity holding in Policano, serves to prevent the unnecessary overturning of convictions of “ [defendants who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute” (Suarez, 6 NY3d at 217 [concurring op of G.B. Smith, Rosenblatt and R.S. Smith, JJ.], quoted in Policano, 7 NY3d at 604).

Since the present case is, fortuitously, still on direct appeal 17 years after it was tried, whether defendant is entitled to the benefit of the post-Sanchez changes in the law depends on whether he adequately preserved at trial the argument he now urges upon us. I conclude that he did.

m

In moving to dismiss the depraved indifference murder count at trial, defense counsel told the trial judge: “Either the jury will believe that this defendant . . . intentionally . . . shot and killed Lavert Lee . . .. Or if he didn’t, then they’re going to say that none of this is true.” He specifically said that no evidence “would indicate that the defendant committed the crime with reckless disregard” and that the People’s contention was that defendant “intended to do this crime.” This is essentially the argument defendant now makes—an argument that usually failed in the Register era: that a blatantly intentional killing cannot constitute depraved indifference murder. Defendant thus adequately anticipated the post-Sanchez developments in the law, which drew a bright line between intent and depraved indifference.

The People argue that defendant’s preservation was flawed because he did not articulate at trial the exact holding of Feingold, the case that finally overruled Register: Feingold held that “depraved indifference to human life is a culpable mental state” (7 NY3d at 294). But we have never required that defense counsel anticipate future decisions with such precision. Defense lawyers cannot be expected to be clairvoyant. We have reversed depraved indifference murder convictions in many post-Sanchez cases, where the trials took place before Feingold was decided. In none of these cases did defense counsel explicitly argue at trial that depraved indifference is a “culpable mental state.” Had we insisted on the kind of preservation that the People now suggest is necessary, those cases could not have been decided as they were.

Relying on People v Sala (95 NY2d 254, 260 [2000]) and People v Dekle (56 NY2d 835, 836-837 [1982]), the People also argue, and the Appellate Division held, that defendant is bound by the law as stated in Register because he failed to object to the trial court’s charge to the jury on the elements of depraved indifference murder. In the view of the Appellate Division majority, defendant’s “claim as to the insufficiency of evidence supporting a finding of depraved indifference murder must be evaluated according to the court’s charge as given without objection” (84 AD3d at 552-553). I disagree for two reasons.

First, we made clear in Jean-Baptiste that a defendant who has “made a specific motion to dismiss . . . anticipating the change in the law brought by Feingold” is not also required “to take an exception to the court’s depraved indifference murder charge” (11 NY3d at 544). We distinguished Sala and Dekle on the ground that, in those cases, defendants were advancing on appeal theories different from any they had advanced at trial (id.). And secondly, while it is true that Register was the law at the time the trial court in this case charged the jury, the court’s charge did not incorporate, to any significant degree, the features of Register that we later overruled. Specifically, there is no mention in the charge of the Register rule that depraved indifference refers to objective circumstances, rather than to defendant’s state of mind. Thus it is not apparent what aspect of the charge the Appellate Division thought defendant should have objected to.

IV

Applying our post-Sanchez cases, I have no difficulty in concluding that the evidence is insufficient to support defendant’s conviction of depraved indifference murder. We said in Payne that a typical “one-on-one shooting . . . can almost never qualify as depraved indifference murder” (3 NY3d at 272); we there made an exception for “the type of circumstances in . . . Sanchez” (id.), but Sanchez has since been overruled. This case is not one of those rare ones, as People v Roe (74 NY2d 20 [1989]) perhaps was, in which one person aims and fires a gun at another while remaining indifferent to the result (see Payne at 272 n 2).

On the contrary, this case bears a strong resemblance to Sanchez, Gonzalez, Payne and Suarez in that it might seem to many that the evidence showed defendant to be guilty of intentional murder. But it did not seem so to the jury here or in any of those other cases: in each of them, the defendant was acquitted of intentional murder. The law is now clear that depraved indifference murder cannot serve as a substitute for a rejected intentional murder charge, where there is no evidence to support a finding of depraved indifference. I therefore concur in holding that defendant’s conviction of depraved indifference murder cannot stand.

Pigott, J. (dissenting).

On May 3, 1991, defendant, while standing outside, fired four or five shots into a vestibule occupied by three people. One of those occupants, Lee, had been involved in an altercation with defendant minutes earlier. I suspect that one of the victims of the shooting, Anthony Ovando, would dispute the majority’s characterization that the shooting occurred at “near point-blank range” (majority mem at 972), since the testimony adduced by the People at trial established that Lee used Ovando as a human shield, resulting in Ovando taking fire to his waist.

In my view, the proof adduced by the People at trial, viewed in the light most favorable to the People, was sufficient to uphold defendant’s conviction for depraved indifference murder (see People v Suarez, 6 NY3d 202, 214 [2005] [shooting into a crowd a “(q)uintessential example” of depraved indifference murder]; People v Jernatowski, 238 NY 188, 192 [1924] [“when the defendant fired two or more shots into the house where he knew there were human beings he committed an act which the jury certainly could say was imminently dangerous and which evinced a wicked and depraved mind regardless of human life and which amply supplied the evidence of malice and felonious intent”]).

One need only consider the number of shots fired, the number of occupants in the small vestibule and the fact that these occupants were trying to gain access to the apartment building when defendant fired the shots to discern that such facts “were sufficient to present a question for the jury concerning whether defendant evinced ‘a depraved indifference to human life’ ” (People v Fenner, 61 NY2d 971, 973 [1984], citing Penal Law § 125.25 [2]; see People v Campbell, 33 AD3d 716, 719 [2d Dept 2006], lv denied 8 NY3d 879 [2007] [holding that the defendant who fired five shots at three fleeing men was guilty of depraved indifference murder since “(a) rational jury could reasonably conclude that the defendant did not care whether harm would result when he commenced his shooting spree in the direction of the three fleeing men”]). Given the facts with which the jury was presented, its guilty verdict was hardly irrational and should not be disturbed.

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

Order modified by vacating defendant’s conviction of depraved indifference murder, dismissing the count of the indictment charging depraved indifference murder, and remitting to Supreme Court, New York County, for resentencing and, as so modified, affirmed, with leave to the People, if so advised, to present a charge of manslaughter in the first degree to a new grand jury, in a memorandum.

       In addition to Hafeez, Gonzalez, Payne, Suarez, Feingold and Jean-Baptiste, see People v Atkinson (7 NY3d 765 [2006]); People v Mancini (7 NY3d 767 [2006]); People v Swinton (7 NY3d 776 [2006]); People v Taylor (15 NY3d 518 [2010]); and People v Prindle (16 NY3d 768 [2011]).


source: Caselaw Access Project

author: Smith, J. and Pigott, J. (dissenting).

license: Public Domain

text:
    [982 NE2d 614, 958 NYS2d 694]
    The People of the State of New York, Appellant-Respondent, v Louis Riley, Respondent-Appellant.
    Submitted July 16, 2012;
    decided December 18, 2012

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Andrew E. Seewald of counsel), for appellant-respondent.

      Robert S. Dean, Center for Appellate Litigation, New York City (Bruce D. Austern of counsel), for respondent-appellant.
   OPINION OF THE COURT

Motion for reargument granted and, upon reargument, the decision of June 28, 2012 adhered to (see 19 NY3d 944 [2012]). CPL 470.15 (4) (a) and (b) do not eliminate the necessity of preservation in the trial court to challenge legal sufficiency of the evidence on appeal (People v Gray, 86 NY2d 10, 20 [1995]). Moreover, contrary to the contention the People press upon re-argument, CPL 470.15 (4) (b) does not alter, for issues of legal sufficiency of the evidence, the well-settled rule that an order reversing or modifying on an unpreserved issue is an exercise of discretion in the interest of justice and not appealable to this Court (CPL 450.90 [2] [a]; see People v Bonilla-Lugo, 85 NY2d 965 [1995], and People v Christian, 85 NY2d 965 [1995] [decided the same day as People v Gray]). The People’s appeal in this case was properly dismissed.

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

Smith, J. and Pigott, J. (dissenting).

Judges Smith and Pigott dissent in part and, upon reargument, vote to retain the People’s appeal for the reasons stated in Judge Pigott’s dissenting in part opinion of June 28, 2012 (19 NY3d 944, 947 [2012]) and upon the further reason that the modification by the Appellate Division, on an unpreserved issue of legal sufficiency of the evidence, should be deemed to be upon the law (CPL 470.15 [4] [b]) and appealable by the People (CPL 450.90 [2] [a]).


text:
    In the Matter of Jerrick Allison, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted November 5, 2012;
    decided December 18, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Alson Alston, Appellant, v New York City Commission on Human Rights et al., Respondents.
    Submitted November 13, 2012;
    decided December 18, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 1021 (2012)].


text:
    In the Matter of Eugene Chmura, an Attorney, Appellant. Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts, Respondent.
    Submitted November 26, 2012;
    decided December 18, 2012
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of The New York County Lawyers’ Association et al., Appellants, and The New York Criminal Bar Association, Inc., et al., Intervenors-Petitioners-Appellants, v Michael R. Bloomberg, in His Official Capacity as Mayor of the City of New York, et al., Respondents, and The Legal Aid Society of New York, Intervenor-Respondent-Respondent.
    Submitted November 19, 2012;
    decided December 18, 2012
   Motion by The New York County Lawyers’ Association et al. for reargument denied [see 19 NY3d 712 (2012)].


text:
    In the Matter of The New York County Lawyers’ Association et al., Appellants, and The New York Criminal Bar Association, Inc., et al., Intervenors-Petitioners-Appellants, v Michael R. Bloomberg, in His Official Capacity as Mayor of the City of New York, et al., Respondents, and The Legal Aid Society of New York, Intervenor-Respondent-Respondent.
    Submitted December 10, 2012;
    decided December 18, 2012
   Motion by The New York Criminal Bar Association, Inc. et al. for reargument denied [see 19 NY3d 712 (2012)].


text:
    The People of the State of New York ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Submitted November 5, 2012;
    decided December 18, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Deepak Trivedi, Appellant, v Robert Golub, Defendant, and Flushing Hospital Medical Center, Respondent.
    Submitted October 29, 2012;
    decided December 18, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; CPLR 2103 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    247 East 32nd LLC et al., Respondents, v Katherine Gasparich, Appellant.
    Submitted November 2, 2012;
    decided December 18, 2012
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    [983 NE2d 1239, 960 NYS2d 55]
    The People of the State of New York, Respondent, v Marche Johnson, Appellant.
    Decided January 8, 2013

      APPEARANCES OF COUNSEL

      Adam H. Van Buskirk, Aurora, for appellant.

      Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The Appellate Division correctly held that the resentencing court’s error in allowing defendant to proceed pro se was harmless in these narrow circumstances, where the proceeding involved a single question of law and standby counsel argued that issue on defendant’s behalf (see People v Wardlaw, 6 NY3d 556, 559 [2006]; People v Adams, 52 AD3d 243, 243-244 [1st Dept 2008]).

Defendant’s argument that the People were not entitled to withdraw their consent to a resentence without a period of post-release supervision (PRS) should be rejected (see Penal Law § 70.85). After the consent was given, defendant requested an adjournment and the court informed him that it was holding its resentencing decision “in abeyance.” The People were under no continuing obligation to consent to a resentence that did not include PRS. When the People withdrew their consent, the resentencing court was compelled to impose PRS in accordance with Penal Law § 70.45 (see People v Sparber, 10 NY3d 457, 471-472 [2008]).

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

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:
    Patricia J. Curto, Appellant, v New York State Thruway Authority et al., Respondents.
    (Claim No. 116804-A.)
    Submitted November 5, 2012;
    decided January 8, 2013
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 811 (2012)].


text:
    Winifred K. Day, Appellant, v One Beacon Insurance, Respondent.
    Submitted November 19, 2012;
    decided January 8, 2013
   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 Santo Gonzalez, Appellant, v Dominick Venettozzi, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted November 13, 2012;
    decided January 8, 2013
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 812 (2012)].


text:
    In the Matter of Shawn G. Granger, Respondent, v Danielle D. Misercola, Appellant.
    Submitted December 10, 2012;
    decided January 8, 2013
   Motion by respondent for poor person relief granted.


text:
    Lillian N. Nall et al., Appellants, v Estate of Dawn Powell, Deceased, et al., Respondents, et al., Defendants.
    Submitted November 13, 2012;
    decided January 8, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of the motion to amend the complaint, 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:
    The People of the State of New York, Respondent, v Joel Hernandez, Also Known as Haze, Appellant.
    Submitted December 17, 2012;
    decided January 8, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Anthony S. Pignataro, Appellant.
    Submitted December 10, 2012;
    decided January 8, 2013
   Motion for assignment of counsel granted and Charles J. Greenberg, Esq., 3840 East Robinson Road, Amherst, New York 14228-2001 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Adrian P. Thomas, Appellant.
    Submitted December 24, 2012;
    decided January 8, 2013
   Motion for assignment of counsel granted and Jerome K. Frost, Esq., 287 North Greenbush Road, Troy, New York 12180 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Howard Glenn Blake, Alleged to be Larry W. Barnett, Appellant, v George E. Pataki, as Governor of the State of New York, Respondent.
    Submitted November 19, 2012;
    decided January 8, 2013
   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:
    Princetel, LLC, Appellant, v Christopher M. Buckley et al., Respondents.
    Submitted November 26, 2012;
    decided January 8, 2013
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Sonya Shapiro et al., Appellants, v Town of Ramapo et al., Respondents.
    Submitted November 19, 2012;
    decided January 8, 2013
   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 Elbert Welch, Appellant, v Charles J. Hannigan, Former Niagara County Court Judge, et al., Respondents.
    Submitted October 29, 2012;
    decided January 8, 2013
   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:
    In the Matter of Elbert Welch, Appellant, v James P. Punch et al., Respondents.
    Submitted October 29, 2012;
    decided January 8, 2013
   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:
    In the Matter of John L. Weslowski, Respondent, v C. Scott Vanderhoef et al., Appellants.
    Submitted November 19, 2012;
    decided January 8, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Clifton K. Williamson, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted November 13, 2012;
    decided January 8, 2013
   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:
    [985 NE2d 127, 961 NYS2d 363]
    In the Matter of Commissioner of Social Services, on Behalf of Elizabeth S., Appellant, v Julio J., Respondent.
    Decided January 10, 2013

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Deborah A. Brenner of counsel), for appellant.

      George E. Reed, Jr., White Plains, for respondent.

      Lawyers For Children, Inc., New York City (Brenda S. Soloff of counsel), for Elizabeth S.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the order of Family Court reinstated, and the certified question answered in the negative.

Before a party can be estopped from denying paternity or from obtaining a DNA test that may establish that he is not the child’s biological parent, the court must be convinced that applying equitable estoppel is in the child’s best interest (Matter of Shondel J. v Mark D., 7 NY3d 320 [2006]). The party seeking to prove paternity, whether by estoppel or otherwise, must do so by clear and convincing evidence. Here, although the Appellate Division stated that its reversal was on the law, that Court, considering the same evidence as Family Court, made different factual findings to support its conclusion that the Commissioner of Social Services had not proven by clear and convincing evidence that respondent Julio J. should be estopped from denying paternity. Accordingly, we review the record to determine which set of findings more nearly comports with the weight of the evidence (see Matter of Jamie M., 63 NY2d 388, 393 [1984]).

We conclude that the evidence more nearly comports with Family Court’s findings that the child, who was eight years old at the time of the hearing, knows respondent, with his encouragement, as her father; that a relationship existed insofar as the child was concerned; and that the child relied on respondent to be her father sufficiently such that it would be to her detriment for the court to direct DNA testing. Upon those findings, Family Court properly decided that respondent should be equitably estopped from asserting nonpaternity.

Chief Judge Lippman and Judges Graffeo, Read and Pigott concur; Judge Smith dissents and votes to affirm, concluding that the findings of the Appellate Division more nearly comport with the weight of the evidence.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, without costs, order of Family Court, New York County, reinstated, and certified question answered in the negative, in a memorandum.


text:
    In the Matter of Brandon R., an Infant. Chrystal R., Appellant; Children’s Aid Society, Respondent.
    Submitted October 15, 2012;
    decided January 10, 2013
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of the Claim of Kevin Brennan, Appellant, v Village of Johnson City et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 19, 2012;
    decided January 10, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Maxim Chifrine, Appellant, v Vilena Bekker et al., Respondents. (Proceeding No. 1.) In the Matter of Irina Chifrine, Appellant, v Vilena Bekker et al., Respondents. (Proceeding No. 2.)
    Submitted December 3, 2012;
    decided January 10, 2013
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 814 (2012)].


text:
    In the Matter of the Arbitration between City of Oswego, Appellant, and Oswego City Firefighters Association, Local 2707, Respondent.
    Submitted January 7, 2013;
    decided January 10, 2013
   Motion by New York State Professional Firefighters Association, I.A.F.F., AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Arisleda Duarte, Respondent, v City of New York, Appellant.
    Submitted January 7, 2013;
    decided January 10, 2013
   Motion by Columbia Law School Prisoners and Families Clinic of Morningside Heights Legal Services for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Arisleda Duarte, Respondent, v City of New York, Appellant.
    Submitted January 7, 2013;
    decided January 10, 2013
   Motion by Prisoners’ Rights Project of the New York City Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Gabriel J. and Another, Children Alleged to be Neglected. O’Neill H. et al., Respondents; Dainee A., Appellant. (And Another Proceeding.)
    Submitted November 13, 2012;
    decided January 10, 2013
   Motion for leave to appeal from the October 2012 Appellate Division order dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Gabriel J. and Another, Children Alleged to be Neglected. O’Neill H. et al., Respondents; Dainee A., Appellant. (And Another Proceeding.)
    Submitted December 24, 2012;
    decided January 10, 2013
   Motion for leave to appeal from the November 2012 Appellate Division order denied.


text:
    Maria Harakidas et al., Respondents, v City of New York et al., Defendants, and Brazal South Holdings, LLC, Appellant.
    Submitted December 10, 2012;
    decided January 10, 2013
   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:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and Christopher Bramwell et al., Respondents.
    Submitted November 26, 2012;
    decided January 10, 2013
   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:
    Mary Olsen et al., Appellants, v Stellar West 110, LLC, Respondent.
    Submitted November 5, 2012;
    decided January 10, 2013
   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 Jason Everett Panzer, Appellant, v Melissa Jean Wood, Respondent.
    Submitted November 26, 2012;
    decided January 10, 2013
   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:
    The People of the State of New York, Respondent, v Earl Bell, Jr., Appellant.
    Submitted January 7, 2013;
    decided January 10, 2013
   Motion for assignment of counsel granted and Alex Smith, Esq., 6 North Street, Middletown, New York 10940 assigned as counsel to the appellant on the appeal herein.


text:
    Akwesasne Convenience Store Association et al., Appellants, v State of New York et al., Respondents.
    Decided January 15, 2013
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Rita Cusimano, Appellant, v Strianese Family Limited Partnership et al., Respondents, and Bernard Strianese et al., Intervenors-Respondents, et al., Respondents.
    Submitted November 13, 2012;
    decided January 15, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to renew, dismissed upon the ground that such part of the 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 an Investigation of the Departmental Disciplinary Committee for the First Judicial Department into the Professional Conduct of an Attorney and Counselor-at-Law, Respondent; Susan Anonymous, Appellant.
    Decided January 15, 2013
   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 Diamond Lee P., a Child Alleged to be Permanently Neglected. Paula C., Also Known as Paula T., Appellant; Cardinal McCloskey Services, Respondent.
    Submitted November 26, 2012;
    decided January 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of G & C Transportation, Inc., et al., Appellants, v Jean-Ann McGrane et al., Respondents.
    Decided January 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Georgitsi Realty, LLC, Appellant, v Penn-Star Insurance Company, Respondent.
    Decided January 15, 2013

      See 702 F3d 152.
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Isabelita Gonzalez, Appellant, et al., Petitioner, v Division of Housing and Community Renewal of the State of New York et al., Respondents.
    Submitted November 19, 2012;
    decided January 15, 2013
   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. Motion for a stay dismissed as academic.


text:
    In the Matter of Isabelita Gonzalez, Petitioner, and Emadelin Omar, Appellant, v Division of Housing and Community Renewal of the State of New York et al., Respondents.
    Submitted December 24, 2012;
    decided January 15, 2013
   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. Motion for a stay dismissed as academic.


text:
    Jane Hauck et al., Appellants, v Lillian Lombardo, Respondent, et al., Defendant.
    Submitted December 3, 2012;
    decided January 15, 2013
   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 Katie Kickertz, Respondent, v New York University, Appellant.
    Submitted December 3, 2012;
    decided January 15, 2013
   Motion for a stay dismissed as academic.


text:
    In the Matter of Katie Kickertz, Respondent, v New York University, Appellant.
    Submitted December 17, 2012;
    decided January 15, 2013
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Eric Landon, Respondent, v Kroll Laboratory Specialists, Inc., Appellant.
    Submitted December 10, 2012;
    decided January 15, 2013
   Motion by Robert N. Isseks and Bloom & Bloom, P.C. to withdraw as counsel for respondent on the appeal herein granted.


text:
    In the Matter of Marvin P., Appellant, v Kathleen M. Rice, Nassau County District Attorney, et al., Respondents.
    Submitted December 17, 2012;
    decided January 15, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Nineteen Eighty-Nine, LLC, Plaintiff, v Icahn Enterprises L.P. et al., Defendants. Carl C. Icahn et al., Appellants, v Geoffrey Raynor et al., Respondents.
    Decided January 15, 2013
   Appeal, insofar as taken from that portion of the Appellate Division order which affirmed Supreme Court’s denial of appellants’ motion to amend the complaint, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Said Gssime, Appellant, v Daniel F. Martuscello Jr., as Superintendent of Coxsackie Correctional Facility, Respondent.
    Decided January 15, 2013
   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 Shade B., an Infant. Administration for Children’s Services, Respondent; Denzil B., Appellant, et al., Respondent.
    Submitted November 19, 2012;
    decided January 15, 2013
   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:
    Wei Xu, Appellant, v Fangruo Chen, Respondent.
    Submitted December 10, 2012;
    decided January 15, 2013
   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 Yary, an Infant. Carol W., Petitioner; Leake & Watts Services, Inc., et al., Respondents. In the Matter of Yary, an Infant. Leake & Watts Services, Inc., Respondent; Carmen A., Appellant, et al., Respondent.
    Submitted January 7, 2013;
    decided January 15, 2013
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


author: Graffeo, J. (dissenting).

text:
    [983 NE2d 768, 959 NYS2d 689]
    In the Matter of George A. Amedore, Jr., Appellant-Respondent, v Gregory Peterson, Respondent, and Cecilia F. Tkaczyk, Respondent-Appellant, et al., Respondents. (And Another Proceeding.)
    Decided January 16, 2013

      APPEARANCES OF COUNSEL

      Lewis & Fiore, New York City (David L. Lewis of counsel), for appellant-respondent.

      Law Office of James E. Long Esq., Albany (James E. Long of counsel), for Cecilia F. Tkaczyk, respondent-appellant.

      Lanny E. Walter, Saugerties, for Barbara Bravo and another, respondents.
   OPINION OF THE COURT

Appellant-respondent having moved for leave to appeal to the Court of Appeals and for a stay in the above causes; and respondent-appellant having moved for leave to appeal to the Court of Appeals in the above causes; upon the papers filed and due deliberation, it is ordered, that the motions for leave to appeal are denied; and it is further ordered, that the motion for a stay is dismissed as academic.

Concur: Chief Judge Lippman and Judges Read, Smith and Pigott. Judge Graffeo dissents in an opinion.

Graffeo, J. (dissenting).

This case presents a significant issue of statutory interpretation that should be resolved by our Court. Under the current Election Law, we do not have early voting in New York. Every voter must appear at a designated polling place to cast a vote on election day unless the voter falls into one of the few narrow categories for whom alternative voting methods are permitted by statute. We have traditionally required strict compliance with these procedures, even when an inadvertent error by a board of elections has proved detrimental to the voter (see Matter of Gross v Albany County Bd. of Elections, 3 NY3d 251 [2004]).

This case involves a particular alternative voting method— the use of special ballots by poll workers. Their use is governed by Election Law § 11-302, which provides:

“The board of elections shall provide such voter a special ballot not earlier than two weeks before the election and not later than the close of the polls on election day. Such cast ballots may be delivered to an office of such board of elections or to any board of inspectors not later than the close of the polls on election day.”

Since the statute precludes a board of elections from supplying a special ballot to a poll worker more than two weeks before election day and then directs that the ballot be cast no later than the close of the polls, a strong argument can be made that the statute requires special ballots to be cast no earlier than the two weeks preceding the election. Yet, here, where special ballots were both given to poll workers and cast more than two weeks prior to the election, the Appellate Division concluded that there was no violation of the Election Law, thereby allowing the votes to be canvassed.

I appreciate that a violation of the Election Law is not dispositive of whether a vote will be counted and, if an error occurred in this case, it is attributable to the board of elections that distributed the special ballots. But we have said in the context of absentee balloting that an exception to statutory compliance that would permit the canvassing of ballots in contravention of the Election Law whenever a voter reasonably relies on the actions of a board of elections, “would swallow the rule, effectively relieving election officials of their obligation to adhere to the law” (Gross, 3 NY3d at 260). Here, because the lower courts reached contrary conclusions regarding the proper interpretation of Election Law § 11-302,1 believe further appellate review is warranted.


text:
    [985 NE2d 1225, 963 NYS2d 164]
    Jose Montas, Appellant, v JJC Construction Corporation et al., Respondents.
    Argued January 2, 2013;
    decided February 7, 2013
    APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & DeCicco, LLP, New York City (Michael H. Zhu and Brian J. Isaac of counsel), for appellant.

      Mitchell Silberberg & Knupp LLP, New York City (Lauren J. Wachtler of counsel), for JJC Construction Corporation, respondent.

      Michael A. Cardozo, Corporation Counsel, New York City (Omar Nasar, Francis F. Caputo and Margaret G. King of counsel), for City of New York and another, respondents.
   OPINION OF THE COURT

Memorandum.

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

On September 11, 1999, while walking in the Bronx after dark with his cousin near a concrete barrier and fence cordoning off roadway construction, plaintiff Jose Montas stepped over a two-by-four piece of lumber and into what he characterized as “sand and construction debris,” which allegedly caused him to lose his footing and fall, thereby injuring his right knee. Defendants City of New York and the New York City Department of Transportation (collectively, the City) had contracted with defendant JJC Construction Corporation (JJC) to perform the roadway work (reconstruction of an overpass) near the accident site.

At trial, plaintiff identified photographs of the area where he fell, which showed whitish sand or a chalky substance on the ground just outside the confines of JJC’s work site. He testified that this material was similar to the sand and debris that caused him to slip; plaintiff also testified that while he “felt the sand underneath [his] foot when [he] fell down,” he did not actually see what caused him to fall. In trying to identify the material on which he slipped to the “best of [his] ability,” plaintiff asserted that what he called sand must have come from the cutting of concrete at JJC’s work site. The City’s project engineer, subpoenaed as a witness by plaintiff, testified that the scaffolding shown in the photograph that plaintiff said depicted the area where he fell ran along an adjacent building, which was faced with brick, where another contractor was performing construction work; further, he never observed or received any complaints about sand or debris in the area where plaintiff fell. The defense called JJC’s president, who identified the material shown in the pictures as debris from the nearby building that was undergoing brick pointing work (removing and replacing old mortar). Plaintiff testified that he believed the building in question had a wood facade, and that he had not seen any construction work there. Photographs produced at trial showed that the building’s facade was, in fact, brick.

Defendants moved for a directed verdict at the end of plaintiff’s case, and again at the close of evidence. Supreme Court granted the second motion and dismissed the complaint. The judge concluded that plaintiffs (and his cousin’s) testimony that the sand originated from JJC’s cutting and chopping of concrete for the roadway project was “more suggestion than proof,” and was insufficient, especially in light of the testimony about the nearby pointing project, for the case to go to the jury.

The Appellate Division affirmed, with two Justices dissenting (92 AD3d 559 [1st Dept 2012]). The majority agreed with the trial court, noting that

“[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury” (id. at 560 [internal quotation marks omitted]).

The dissenting Justices saw two possible sources for the debris— JJC’s concrete work and the nearby brick pointing work—and argued that the jury should have resolved the issue. Plaintiff appeals as of right by virtue of the two-Justice dissent, and we now affirm.

The issue presented on this appeal is whether there was any proper basis on which a jury might have found in plaintiff’s favor on his negligence claim. Here, there was not. Plaintiff slipped on sand in a public roadway; he did not submit á sample or photograph of the material allegedly causing him to fall, and his proof essentially consisted only of his (and his cousin’s) insistence that one of two nearby contemporaneous construction projects must have been the source of the sand. As the Appellate Division observed, “it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the [jury] as to the cause of the accident would be based upon sheer speculation” (id. at 561).

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

Order affirmed, with costs, in a memorandum.


text:
    [985 NE2d 1227, 963 NYS2d 166]
    The People of the State of New York, Respondent, v Carl Watson, Appellant.
    Argued January 3, 2013;
    decided February 7, 2013

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn and Katherine A. Levine of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Camille O’Hara Gillespie and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant fatally shot Livingston Powell, and was prosecuted for murder. His defense was justification. Defendant testified at trial that he panicked and shot Powell when he saw Powell reach for his waist. There was no evidence that Powell had a weapon at the time.

Under Penal Law § 35.15, defendant’s shooting of Powell could have been justified only if defendant reasonably believed that Powell was “using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]); however, even if defendant did have such a reasonable belief, the justification defense would not be available if defendant was “the initial aggressor” (Penal Law § 35.15 [1] [b]).

Seeking to prove that the initial aggressor was Powell, not defendant, defendant requested issuance of a subpoena to the district attorney’s office. Defendant sought disclosure of Powell’s “criminal record, and specific acts of violence”; he asked for not only acts known to defendant “but also those unknown.” The trial court ruled that evidence of acts not known to defendant would be inadmissible—a ruling clearly correct under our decisions in Matter of Robert S. (52 NY2d 1046 [1981]) and People v Miller (39 NY2d 543 [1976]). Defendant asks us to reconsider Robert S. and Miller, and to hold that a defendant claiming justification may offer evidence of an alleged victim’s violent acts, even those not known to the defendant, to establish that the alleged victim had a propensity for violence.

This case, we conclude, does not present the issue defendant asks us to consider. There is no way a jury could conclude, on this record, that Powell was the “initial aggressor,” no matter how great his propensity for violence, for the simple reason that Powell did not have a gun. Defendant’s evidence could show, at most, that defendant reasonably believed Powell to be the initial aggressor. We assume, without deciding, that such a reasonable belief could sustain a justification defense; even on that assumption, evidence of acts that defendant did not know about was irrelevant, because such acts could not have influenced what defendant reasonably believed.

We express no opinion as to whether Robert S. and Miller should be reconsidered in a case that properly presents that issue.

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

Order affirmed, in a memorandum.


text:
    Tiffany Applewhite et al., Respondents, v Accuhealth, Inc., et al., Defendants, and City of New York, Appellant.
    Decided February 7, 2013
   Reargument ordered and case set down for argument during a future session of the Court of Appeals.

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


text:
    Geoffrey Bond et al., Respondents, v Thomas A. Turner et al., Appellants, and Village of Lakewood, Respondent.
    Submitted December 24, 2012;
    decided February 7, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 904 (2012)].


text:
    Viola Carol, Appellant, v Madison Plaza Associates, LLC, Respondent, et al., Defendant.
    Submitted December 24, 2012;
    decided February 7, 2013
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied the motion for leave to amend the complaint, dismissed upon the ground that such portion of the Appellate Division 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 Francis Moulton, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted December 24, 2012;
    decided February 7, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    In the Matter of Niaja A.W. Administration for Children’s Services et al., Respondents; Paulette G., Appellant, et al., Respondent.
    Submitted December 24, 2012;
    decided February 7, 2013
   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:
    Parviz Noghrey, Respondent-Appellant, v Town of Brookhaven et al., Appellants-Respondents.
    Submitted November 26, 2012;
    decided February 7, 2013
   Motion for reargument denied [see 19 NY3d 1023 (2012)].


text:
    The People of the State of New York, Respondent, v Nature G. Finch, Appellant.
    Submitted January 22, 2013;
    decided February 7, 2013
   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 Gunther J. Flinn, Appellant.
    Submitted January 14, 2013;
    decided February 7, 2013
   Motion for assignment of counsel granted and Martin P McCarthy II, Esq., care of Muldoon & Getz, Esqs., 144 Exchange Boulevard, Suite 402, 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 Josefina Jimenez, Appellant.
    Submitted January 28, 2013;
    decided February 7, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Albert Olin, Appellant.
    Submitted May 21, 2012;
    decided February 7, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Appellant, v Vinod Patel, Respondent.
    Submitted January 14, 2013;
    decided February 7, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Cheryl Santiago, Appellant.
    Submitted January 22, 2013;
    decided February 7, 2013
   Motion for assignment of counsel granted and Malvina Nathanson, Esq., 40 Exchange Place, Suite 2010, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Patrick Williams, Appellant.
    Submitted February 4, 2013;
    decided February 7, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    In the Matter of 677 New Loudon Corporation, Doing Business as Nite Moves, Appellant, v State of New York Tax Appeals Tribunal et al., Respondents.
    Submitted December 3, 2012;
    decided February 7, 2013
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 1058 (2012)].


text:
    [984 NE2d 922, 960 NYS2d 724]
    The People of the State of New York, Respondent, v Jarvis Lassalle, Appellant.
    Argued January 10, 2013;
    decided February 12, 2013

      APPEARANCES OF COUNSEL

      Kevin J. Bauer, Albany, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant, facing multiple felony charges, pleaded guilty to one count of robbery in the first degree. He was adjudicated a second felony offender and was sentenced to 15 years’ imprisonment, to be served concurrently with another sentence. At his 2006 plea, he was not advised that his sentence included five years of postrelease supervision. Defendant now maintains that he received ineffective assistance of appellate counsel when his attorney did not brief that issue in his 2008 direct appeal (see People v Louree, 8 NY3d 541 [2007]; People v Catu, 4 NY3d 242 [2005]).

On the present record, defendant has not shown that there was no strategic or other legitimate basis for appellate counsel’s failure to raise what would have been a dispositive argument against the plea bargain (see People v Rivera, 14 NY3d 753, 754 [2010]; People v Turner, 5 NY3d 476, 480 [2005]). For all that appears in this record, counsel did not make the argument because defendant did not want to withdraw his plea if the other ground for his appeal proved unsuccessful. We note however that where a defendant in a coram nobis points to a clear error on the face of the County Court record, there are avenues to more fully explore potentially meritorious claims (see e.g. People v D'Alessandro, 13 NY3d 216, 220-221 [2009]; People v Bachert, 69 NY2d 593, 600 [1987]). If a new coram nobis petition is filed, the Appellate Division should consider whether those avenues should be followed.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order affirmed, in a memorandum.


text:
    [984 NE2d 923, 960 NYS2d 725]
    In the Matter of the Arbitration between Shenendehowa Central School District Board of Education, Appellant, and Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, Local 864, et al., Respondents.
    Argued January 3, 2013;
    decided February 12, 2013

      APPEARANCES OF COUNSEL

      Whiteman Osterman & Hanna LLP, Albany (Beth A. Bourassa of counsel), for appellant.

      Daren J. Rylewicz, Albany, for respondents.

      Jay Worona, Latham, Kimberly A. Fanniff and Jacinda H. Conboy for New York State School Boards Association, and another, amici curiae.

      Michael E. Bergeron, Latham, and Richard E. Casagrande for New York State United Teachers, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Grievant school bus driver, in her tenth year of employment, tested positive for marijuana after a random drug test. As a result, the School District terminated her employment and respondent union filed a grievance on her behalf. The parties agreed to arbitrate whether grievant’s termination was a violation of the parties’ collective bargaining agreement and, if so, the appropriate remedy. The arbitrator concluded that the School District had violated the agreement and that the penalty of discharge was too severe. He then directed the School District to reinstate grievant without back pay, subject to certain conditions, including evaluation by a substance abuse professional and a negative drug test. The School District commenced this proceeding pursuant to CPLR 7511, seeking to vacate the portion of the arbitration award directing reinstatement and to modify the award by imposing the penalty of termination.

We have recognized “three narrow grounds that may form the basis for vacating an arbitrator’s award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, 123 [2010] [citations and internal quotation marks omitted]). None of these grounds has been established here.

The arbitrator’s decision did not exceed a specific limitation on his power; nor was it irrational. Rather, he determined that, contrary to the School District’s argument, the parties’ agreement did not require the penalty of termination in these circumstances and that the District did not in fact have a zero tolerance policy. The consequent determination that reinstatement with conditions was the appropriate penalty did not violate public policy (see Eastern Associated Coal Corp. v Mine Workers, 531 US 57 [2000]). “That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty” (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 920 [2011]).

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order affirmed, with costs, in a memorandum.

       This effectively imposed, at that time, a six-month unpaid suspension.


text:
    [984 NE2d 317, 960 NYS2d 343]
    In the Matter of Perry Bellamy, Appellant, v New York City Police Department, Respondent.
    Decided February 12, 2013

      APPEARANCES OF COUNSEL

      Perry Bellamy, appellant pro se.

      Michael A. Cardozo, Corporation Counsel, New York City (Sharyn Rootenberg and Larry A. Sonnenshein of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, without costs, and certified question not answered on the ground that it is unnecessary. In denying the subject Freedom of Information Law request, the Appellate Division did not abuse its discretion.

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott. Taking no part: Judge Rivera.


text:
    Vittorio Antonini et al., Respondents, v Orazio Petito et al., Appellants.
    Submitted January 22, 2013;
    decided February 12, 2013
   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 Rivera taking no part.


text:
    Philip Caprio et al., Appellants, v New York State Department of Taxation and Finance et al., Respondents, et al., Defendant.
    Decided February 12, 2013
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).

Judge Rivera taking no part.


text:
    County of Suffolk, Appellant, v Long Island Power Authority et al., Respondents.
    Submitted January 14, 2013;
    decided February 12, 2013
   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 Rivera taking no part.


text:
    In the Matter of John Doe, Appellant, v New York State Commission on Judicial Conduct, Respondent.
    Submitted December 17, 2012;
    decided February 12, 2013
   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 Rivera taking no part.


text:
    In the Matter of the Claim of Tuhin S. Dutta, Appellant. Commissioner of Labor, Respondent.
    Submitted January 22, 2013;
    decided February 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 915 (2012)].

Judge Rivera taking no part.


text:
    Kateri Residence, a Not-For-Profit Corporation, et al., Respondents, v Antonia C. Novello, M.D., as Commissioner of Department of Health of State of New York, et al., Appellants.
    Submitted January 7, 2013;
    decided February 12, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution.

Judge Rivera taking no part.


text:
    In the Matter of Daniel Z. Rapoport et al., Executors of the Estate of Boris Lurie, Deceased. American Friends of New Communities in Israel Inc. et al., Proposed Intervenors-Appellants; Richard Nadelman et al., Respondents, and Boris Lurie Art Foundation, Respondent, et al., Respondent.
    Submitted December 10, 2012;
    decided February 12, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order affirming the order that denied the motion to intervene, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that absent an order of intervention, movants are not parties to the proceeding and thus lack capacity to challenge that part of the order.

Judge Rivera taking no part.


text:
    Judith May, Appellant, v Lorenzo Scotto-D’Abusco, Respondent.
    Submitted December 17, 2012;
    decided February 12, 2013
   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 the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602).

Judge Rivera taking no part.


text:
    In the Matter of Theophilus Y. Ojuola, Appellant, v New York State Division of Human Rights, Respondent.
    Submitted January 14, 2013;
    decided February 12, 2013
   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.

Judge Rivera taking no part.


text:
    The People of the State of New York ex rel. Dominic M. Franza, Appellant, v Michael Sheahan, as Acting Superintendent of Southport Correctional Facility, Respondent.
    Submitted January 7, 2013;
    decided February 12, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.

Judge Rivera taking no part.


text:
    In the Matter of Mohamed Saad-El-Din et al., Individually and as Parents and Guardians of Student with a Disability R., an Infant, et al., Appellants, v David M. Steiner, as Commissioner of Education, et al., Respondents.
    Decided February 12, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Rivera taking no part.


text:
    Stephen Sicilia, Plaintiff, v City of New York et al., Respondents, and JB Electric LLC, Appellant. (And Third-Party Actions.)
    Submitted January 7, 2013;
    decided February 12, 2013
   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 Rivera taking no part.


text:
    In the Matter of Christopher Stein, Appellant, v Ithaca Police Department et al., Respondents.
    Submitted January 7, 2013;
    decided February 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 852 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Ben Gary Treistman, Appellant, v Suzanne Mary Cayley, Respondent.
    Decided February 12, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).

Judge Rivera taking no part.


text:
    Deepak Trivedi, Appellant, v Robert Golub, Defendant, and Flushing Hospital Medical Center, Respondent.
    Submitted January 14, 2013;
    decided February 12, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 984 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Jack Vigliotti, Appellant, v State of New York Executive Division of Parole, Respondent.
    Submitted December 24, 2012;
    decided February 12, 2013
   Motion for leave to appeal dismissed upon the ground that the issue presented has become moot. Motion for poor person relief dismissed as academic.

Judge Rivera taking no part.


text:
    In the Matter of Village of Chestnut Ridge et al., Appellants, et al., Petitioners, v Town of Ramapo et al., Respondents.
    Submitted December 3, 2012;
    decided February 12, 2013
   Motion, insofar as it seeks leave to appeal against Mosdos Chofetz Chaim, Inc., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Rivera taking no part.


text:
    Women’s Interart Center, Inc., Plaintiff, v New York City Economic Development Corporation et al., Defendants. Women’s Interart Center, Inc., Appellant, v Clinton Housing Development Fund Corp., Respondent, and City of New York, Intervenor-Respondent.
    Submitted December 3, 2012;
    decided February 12, 2013
   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 Rivera taking no part.


author: Pigott, J. (dissenting).

text:
    [985 NE2d 889, 962 NYS2d 579]
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Argued January 8, 2013;
    decided February 14, 2013

      APPEARANCES OF COUNSEL

      Mauro Lilling Naparty LLP, Woodbury (Richard J. Montes and Matthew W. Naparty of counsel), for appellants.

      Law Offices of Annette G. Hasapidis, South Salem (Annette G. Hasapidis of counsel), and Schwartz, Goldstone & Campisi, LLP, New York City (Herbert Rodriguez, Jr., of counsel), for respondents.

      Michael Jaffee, New York City, and Brian J. Isaac for New York State Trial Lawyers Association, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, defendants’ motion to preclude plaintiffs from litigating the issue of plaintiff Jose Verdugo’s accident-related disability beyond January 24, 2006 granted, and the certified question answered in the negative.

Plaintiff, a food service deliveryman, was injured on December 24, 2003 when a sheet of plywood fell from a building under construction owned by defendant Seven Thirty One Limited Partnership. Plaintiff was compensated for treatment of his head, neck, and back injuries, as well as post-traumatic stress disorder and depression. While receiving workers’ compensation (WC) benefits, plaintiff commenced this personal injury action in Supreme Court in 2004. The following year, in December 2005, while this action was pending, the insurance carrier for plaintiff’s employer moved the Workers’ Compensation Board (WCB) to discontinue plaintiffs benefits on the grounds that he was no longer disabled as a result of the accident. In January 2006, in a WC proceeding, an Administrative Law Judge (ALJ) reviewed the evidence and expert testimony submitted by the plaintiff and the insurance carrier. The ALJ found that Jose Verdugo no longer suffered any disability as of January 24, 2006 and terminated his benefits. Plaintiff appealed, but on February 1, 2007, a full panel of the WCB affirmed the finding that plaintiff’s disability ended on January 24, 2006, and that plaintiff required no further medical treatment thereafter, other than for post-traumatic stress disorder.

In April 2009, the defendants in the instant personal injury action moved to preclude plaintiffs from relitigating the duration of his work-related injury on the grounds that the issue was already fully litigated and decided in the WC administrative proceeding. While the motion was pending in Supreme Court, the plaintiffs’ attorney commenced a separate Mental Hygiene Law article 81 proceeding to appoint a guardian for Jose Verdugo. This proceeding was uncontested and a guardian was appointed.

The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the WCB (Brugman v City of New York, 102 AD2d 413, 415 [1st Dept 1984], affd 64 NY2d 1011 [1985]). Collateral estoppel applies if the identical issue sought to be precluded was necessarily decided in an earlier action, at which the party opposing preclusion had a full and fair opportunity to contest the issue [id. at 415-416). Although legal conclusions and conclusions of mixed law and fact are not entitled to preclusive effect, findings of fact that are necessary for an administrative agency to reach are entitled to such effect (see Hinchey v Sellers, 7 NY2d 287, 293 [1959]; Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [3d Dept 1986], affd 69 NY2d 753 [1987]). The issue disputed on this appeal is whether the WCB decided a necessary issue of fact about the duration of Jose Verdugo’s disability and, if so, whether the plaintiffs had a full and fair opportunity to contest the determination (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

The determination of the WCB should be given preclusive effect as to the duration of plaintiffs disability, relevant to lost earnings and compensation for medical expenses. The issue of continuing benefits before the administrative agency necessarily turned upon whether Jose Verdugo had an ongoing disability after a certain date, which is a question of fact, as distinguished from a legal conclusion and a conclusion of mixed law and fact.

We also find that plaintiffs had a full and fair opportunity to litigate the issue of ongoing disability in the 2006 WC proceedings. Plaintiff was represented by counsel, submitted medical reports, presented expert testimony, and cross-examined the defendants’ experts regarding the issue of whether or not there was an ongoing disability.

Plaintiffs attempt to use the guardianship order in this appeal to buttress the contention that Jose Verdugo is still disabled and argue that such an order raises an issue of fact as to the duration of his disability. We disagree. The issue of plaintiffs incapacity was not opposed at the guardianship proceeding (in which defendants were not a party) and was based on evidence presented only by plaintiffs.

Pigott, J. (dissenting).

Following workers’ compensation hearings, held in March through May 2006, a Workers’ Compensation Law Judge (WCLJ) ruled that plaintiff Jose Verdugo had no “causally related disability since January 24, 2006,” the date on which benefits had been stopped pending the proceeding. The WCLJ refused to credit the testimony of a neurologist and a psychiatrist that Verdugo suffered from disorders that include post-concussion syndrome, depression, and post-traumatic stress disorder, and is “totally disabled.” Both experts had testified that Verdugo had extreme anxiety about walking, with one specifying that his agitation was especially strong near construction sites.

On appeal, the Workers’ Compensation Board (WCB) rescinded the denial of Verdugo’s claim of post-traumatic stress disorder, but denied his claims of depression and for injuries to the head, neck, and back, accepting the WCLJ’s credibility determinations. The Board concluded that Verdugo “had no further disability after January 24, 2006 and no further need for treatment.”

Based on the Board’s ruling, defendants seek to estop Verdugo from litigating the issue of whether he “was no longer disabled after January 24, 2006,” in a personal injury action. The majority holds that Verdugo is precluded from litigating the duration of his work-related disability, “relevant to lost earnings and compensation for medical expenses” (majority mem at 1037). The majority implicitly allows that Verdugo may still litigate lost earnings and medical expenses from the accident date to January 24, 2006, as well as all other consequences of defendants’ alleged negligence after January 24, 2006, whether it be ongoing pain and suffering, loss of enjoyment of life and his wife’s claim for loss of society and companionship. I would hold that litigation may proceed on the issue of Verdugo’s ability to work, as well as the other consequences of the alleged negligence.

It is well-settled that, while factual issues that are “necessarily decided in an administrative proceeding are given collateral estoppel effect[,] ... an administrative agency’s final conclusion, characterized as an ultimate fact or a mixed question of fact and law, is not entitled to preclusive effect” (Akgul v Prime Time Transp., 293 AD2d 631, 633 [2d Dept 2002]; see also e.g. O’Gorman v Journal News Westchester, 2 AD3d 815, 816-817 [2d Dept 2003]). The same is true, of course, of an administrative agency’s purely legal conclusions. Such ultimate conclusions “are imbued with policy considerations as well as the expertise of the agency” (Matter of Engel v Calgon Corp., 114 AD2d 108, 110 [3d Dept 1986]). The majority accepts the doctrine, observing that “legal conclusions and conclusions of mixed law and fact are not entitled to preclusive effect” (majority mem at 1037); but the majority fails to apply this principle to the case before us.

Here, the WCB reached a conclusion about whether Verdugo had an ongoing physical or psychological disability, preventing him from returning to his job—and nothing more. Disability for the purposes of workers’ compensation is an ultimate conclusion. The question that the Board was asked to decide, on which Verdugo’s receipt of benefits depended, was whether he could return to work—a very narrow issue dependent on type of work and a claimant’s present condition vis-a-vis that occupation. If that is not an ultimate conclusion, it’s difficult to think what would be.

Moreover, a workers’ compensation disability determination requires “great discretion in [the Board] to rule . . . based on what considerations the [Board] believes are most appropriate” (Engel, 114 AD2d at 110). A determination concerning work-related disability is imbued with the policy considerations of the WCB, and for that reason cannot be the basis of collateral estoppel. The decision of the WCB relieves the compensation carrier of any further payments under its policy for the time being and therefore truncates any lien recovery that might flow from the personal injury action. The suggestion that this administrative decision means anything more is misguided.

Furthermore, in my view, the disability issue itself is a mixed question of law and fact. Our analysis of mixed questions has its origins in the criminal law, where we have defined a mixed question as one in which both a question of fact and a question of law are found, “the truth and existence of the facts and circumstances bearing on the issue being a question of fact, and the determination of whether the facts and circumstances found to exist and to be true constitute [a particular legal concept] being a question of law” (People v Oden, 36 NY2d 382, 384 [1975] [analyzing probable cause]). The same analysis applies here. The WCB had to reach a conclusion based on both questions of fact, such as whether Verdugo had a particular injury to the brain or body, and a question of law, namely whether the facts amounted to a disability preventing Verdugo from returning to his work. The conclusion that Verdugo was not disabled, i.e., was able to work again, is a mixed question requiring a legal determination based on the facts.

Finally, the majority’s decision fails to consider the practical short-cuts in reasoning that are employed by Workers’ Compensation Law judges—including here, where the WCLJ precluded one psychiatrist’s testimony on technical grounds, and gave short shrift to another’s because the WCLJ thought he had found an inconsistency concerning the degree to which Verdugo feared construction sites. Verdugo had visited the psychiatrist’s office despite construction in progress in the vicinity. Since the expert did not claim that Verdugo becomes paralyzed when walking near construction sites, but only that he grows very anxious and frightened, there simply is no inconsistency.

As the amicus expresses it, a “simple trip ... to a Workers’ Compensation Hearing will demonstrate the wisdom of the Appellate Division majority’s decision.”

For all these reasons, the case law requires us to rule that the WCB’s finding that Verdugo could return to work does not preclude litigation of the issue, and therefore I would affirm the Appellate Division’s order. Accordingly, I respectfully dissent.

Chief Judge Lippman and Judges Graffeo, Read and Smith concur; Judge Pigott dissents and votes to affirm in an opinion; Judge Rivera taking no part.

Order reversed, with costs, defendants’ motion to preclude plaintiffs from litigating the issue of plaintiff Jose Verdugo’s accident-related disability beyond January 24, 2006 granted, and certified question answered in the negative, in a memorandum.

       Plaintiffs are Maria Verdugo and Maria Auqui, who is the guardian of Jose Verdugo.

       Given the WCB’s determination that medical benefits are required for post-traumatic stress disorder, its ruling does not preclude litigation of that claim, as the majority appears to concede (see majority mem at 1036).


text:
    [985 NE2d 136, 961 NYS2d 372]
    The People of the State of New York, Respondent, v Carlos Abreu, Appellant.
    Decided February 14, 2013

      APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City (Timothy C. Stone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Carlos Abreu completed the offense of second-degree weapon possession, with the requisite intent, before committing the act constituting first-degree felony murder. Accordingly, the sentences for those crimes could be run consecutively (see People v Salcedo, 92 NY2d 1019, 1020-1021 [1998]). Additionally, the alleged evidentiary errors could not have affected the verdict in light of the overwhelming evidence of defendant’s guilt and, thus, any such error would be harmless.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera 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, in a memorandum.


text:
    [985 NE2d 898, 962 NYS2d 587]
    In the Matter of Brian Ward, Respondent, v City of Long Beach, Appellant.
    Argued January 2, 2013;
    decided February 14, 2013

      APPEARANCES OF COUNSEL

      Corey E. Klein, Corporation Counsel, Long Beach (Robert M. Agostisi of counsel), for appellant.

      Law Offices of Louis D. Stober, Jr., L.L.C., Garden City (Louis D. Stober, Jr., of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a lieutenant in the City of Long Beach Fire Department, claimed to have suffered a work-related injury in October 2003. He filed for disability retirement with the State pursuant to Retirement and Social Security Law § 363-c. The State Comptroller granted that application and shortly thereafter petitioner retired from active duty. In May 2008, petitioner sought supplemental disability pension benefits from the City pursuant to General Municipal Law § 207-a. The Fire Commissioner denied the request, without explanation, and that determination was later upheld on appeal by the City’s Corporation Counsel. Petitioner brought a CPLR article 78 proceeding, and Supreme Court annulled respondent’s determination and directed respondent to pay petitioner the subject benefits. The Appellate Division affirmed.

In reviewing the City’s determination—one that was made without a hearing—the issue is whether the action taken had a “rational basis” and was not “arbitrary and capricious” (see e.g. Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, 280 [2010]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable (id.).

The City’s denial was based on statements made by petitioner’s estranged wife in the midst of a divorce and Corporation Counsel’s personal observations of petitioner. Petitioner was given no notice of the allegations nor an opportunity to respond to them, despite the substantial contrary record evidence, including medical findings, that led to the approval of petitioner’s application for disability benefits from the State. Under these circumstances, we agree with the Appellate Division that the City’s justification for its denial lacks the requisite rational basis and is, therefore, arbitrary and capricious.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order affirmed, with costs, in a memorandum.


text:
    American Building Supply Corp., Appellant, v Petrocelli Group, Inc., Respondent, et al., Defendant.
    Submitted January 7, 2013;
    decided February 14, 2013
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 730 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Jessie James Barnes, Appellant, v Julie Finocchio, Assistant District Attorney, et al., Respondents.
    Decided February 14, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Rivera taking no part.


text:
    Wanda Deregowska-Michalak, Appellant, v Piot Zdzislaw Michalak, Respondent.
    Submitted December 31, 2012;
    decided February 14, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602).

Judge Rivera taking no part.


text:
    Kristin Kahkonen Dupree, Respondent-Appellant, v James E. Giugliano, Appellant-Respondent.
    Submitted January 7, 2013;
    decided February 14, 2013
   Motion for reargument denied [see 20 NY3d 921 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Tyrone L. Jackson, Appellant, v Appellate Division, First Department, et al., Respondents.
    Submitted November 13, 2012;
    decided February 14, 2013
   Motion for reargument of motion for leave to appeal denied [see 9 NY3d 810 (2007)].

Judge Rivera taking no part.


text:
    In the Matter of Eric J. Koch, D.O., Respondent, v James G. Sheehan, New York State Medicaid Inspector General, Appellant.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by Medical Society of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Ervido B. Mejia, Appellant, v Roosevelt Island Medical Associates, Doing Business as Coler-Goldwater Hospital & Nursing Facility, et al., Respondents.
    Submitted January 7, 2013;
    decided February 14, 2013
   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 Rivera taking no part.


text:
    The People of the State of New York, Respondent, v Juan L. Almestica, Appellant.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Derrick Deacon, Respondent.
    Submitted November 19, 2012;
    decided February 14, 2013
   Motion to dismiss appeal granted and the appeal dismissed upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]).

Judge Rivera taking no part.


text:
    The People of the State of New York, Respondent, v Angel DeJesus, Appellant.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Elvin Munoz, Appellant.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by Professor James J. Park for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by Professor Kate Stith for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by AARP for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by North American Securities Administrators Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.