author: Smith, J. Graffeo, J.

text:
    [21 NE3d 1023, 997 NYS2d 362]
    Huyen V. Nguyen, Petitioner, v Eric H. Holder, Jr., United States Attorney General, Respondent.
    Argued September 9, 2014;
    decided October 28, 2014
    APPEARANCES OF COUNSEL

      Michael E. Marszalkowski, PC., Buffalo (Michael E. Marszalkowski of counsel), for petitioner.

      United States Department of Justice, Office of Immigration Litigation, Washington, D.C. (.Michael C. Heyse, Stuart F. Delery and Mary Jane Candaux of counsel), for respondent.
   OPINION OF THE COURT

Following certification of a question by the United States Court of Appeals for the Second Circuit and acceptance of the question by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27) (22 NY3d 1150 [2014]), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question answered in the negative. A marriage where a husband is the half brother of the wife’s mother is not void as incestuous under Domestic Relations Law § 5 (3).

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera. Judge Smith concurs in an opinion in which Chief Judge Lippman and Judge Rivera concur. Judge Graffeo concurs in an opinion in which Judges Read and Pigott concur. Taking no part: Judge Abdus-Salaam.

Smith, J.

(concurring). The United States Court of Appeals for the Second Circuit has asked us whether a marriage between a half uncle and half niece is void as incestuous under Domestic Relations Law § 5 (3). I agree, for the following reasons, that we should answer that it is not.

I

Petitioner is a citizen of Vietnam. In January of 2000, at the age of 19, she was married in Rochester, New York to Vu Truong, who was 24 and a naturalized American citizen. Later that year, petitioner was granted the status of a conditional permanent resident in the United States on the basis of her marriage.

According to the factual findings of the United States Board of Immigration Appeals, which the Second Circuit accepted as supported by substantial evidence, petitioner’s mother was born in 1950 to a woman named Nguyen Thi Ba. Twenty-five years later, Nguyen Thi Ba gave birth to Vu Truong. Petitioner’s mother and Vu Truong had different fathers. Thus petitioner’s mother was Vu Truong’s half sister, and petitioner is his half niece.

An immigration judge ordered petitioner removed from the country on the ground that her purported marriage to an American citizen was void, and the Board of Immigration Appeals affirmed. Petitioner sought review of that ruling in the Second Circuit, and the Second Circuit certified the following question to us:

“Does section 5(3) of New York’s Domestic Relations Law void as incestuous a marriage between an uncle and niece ‘of the half blood’ (that is, where the husband is the half-brother of the wife’s mother)?” (743 F3d 311, 317 [2014].)

II

Section 5 of the Domestic Relations Law reads in full:

“A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:
“1. An ancestor and a descendant;
“2. A brother and sister of either the whole or the half blood;
“3. An uncle and niece or an aunt and nephew.
“If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall be deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.”

We must decide whether subdivision (3) of this statute should be read to include a half uncle and half niece (or half aunt and half nephew). There is something to be said on both sides of this question.

In common speech, the half brother of one’s mother or father would usually be referred to as an uncle, and the daughter of one’s half sister or half brother would usually be referred to as a niece; the terms “half uncle” and “half niece” are not in common use. Thus it is perfectly plausible to read subdivision (3) as including half blood relatives. On the other hand, the authors of Domestic Relations Law § 5 (2), when prohibiting brother-sister marriages, went to the trouble of adding the words “of either the whole or the half blood.” No similar words appear in section 5 (3), arguably implying that the legislature did not intend the uncle-niece prohibition to reach so far. The statute is ambiguous. Perhaps the likeliest inference is that the authors of section 5 (3) gave no particular thought to the half uncle/half niece question, since if they had they could easily have clarified it either way.

Nor does New York case law point to any clear conclusion. In Audley v Audley (196 App Div 103 [1st Dept 1921]), the Appellate Division held a marriage between a half uncle and a half niece to be void under section 5 (3). But in Matter of Simms (26 NY2d 163, 166 [1970]) we, without deciding the question, expressed doubt about Audley’s conclusion:

“If the Legislature had intended that its interdiction on this type of marriage should extend down to the rather more remote relationship of half blood between uncle and niece, it could have made suitable provision. Its failure to do so in the light of its explicit language relating to brothers and sisters suggests it may not have intended to carry the interdiction this far.”

Thus there is a holding from the Appellate Division pointing in one direction, and dictum from this Court pointing in the other. Neither is binding on us. I would resolve the issue by considering the nature and the purpose of the statute we interpret.

Domestic Relations Law § 5 is in part a criminal statute: it says that the participants in a prohibited marriage may be fined, and may be imprisoned for up to six months. Penal Law § 255.25, using language very similar to that of Domestic Relations Law § 5 (“ancestor, descendant, brother or sister of either the whole or the half blood, uncle, aunt, nephew or niece”), makes entry into a prohibited marriage a class E felony. Where a criminal statute is ambiguous, courts will normally prefer the more lenient interpretation, and the courts of several other states have followed that rule in interpreting their criminal laws not to prohibit relationships between uncles and nieces, or aunts and nephews, of the half blood (State v Craig, 254 Kan 575, 580, 867 P2d 1013, 1016 [1994]; People v Baker, 69 Cal 2d 44, 50, 442 P2d 675, 678 [1968]; State v Bartley, 304 Mo 58, 62, 263 SW 95, 96 [1924]). The government says that these cases are distinguishable because they were criminal cases; but we are here interpreting a statute that applies in both civil and criminal cases, and it would be strange at best to hold that the same words in the same statute mean different things in different kinds of litigation.

I also conclude that the apparent purpose of section 5 (3) supports a reading that excludes half uncle/half niece marriages from its scope. Section 5 as a whole may be thought of as serving two purposes: it reflects long-held and deeply-rooted values, and it is also concerned with preventing genetic diseases and defects. Section 5 (1) and (2), prohibiting primarily parent-child and brother-sister marriages, are grounded in the almost universal horror with which such marriages are viewed — a horror perhaps attributable to the destructive effect on normal family life that would follow if people viewed their parents, children, brothers and sisters as potential sexual partners. As the Appellate Division explained in Matter of May (280 App Div 647, 649 [3d Dept 1952], affd 305 NY 486 [1953]), these relationships are “so incestuous in degree as to have been regarded with abhorrence since time immemorial.”

There is no comparably strong objection to uncle-niece marriages. Indeed, until 1893 marriages between uncle and niece or aunt and nephew, of the whole or half blood, were lawful in New York (see L 1893, ch 601; Audley, 196 App Div at 104). And 60 years after the prohibition was enacted we affirmed, in May, a judgment recognizing as valid a marriage between a half uncle and half niece that was entered into in Rhode Island and permitted by Rhode Island law. It seems from the Appellate Division’s reasoning in May that the result would have been the same even if a full uncle and full niece had been involved. Thus Domestic Relations Law § 5 (3) has not been viewed as expressing strong condemnation of uncle-niece and aunt-nephew relationships.

The second purpose of section 5’s prohibition of incest is to prevent the increased risk of genetic disorders generally believed to result from “inbreeding.” (It may be no coincidence that the broadening of the incest statute in 1893 was roughly contemporaneous with the development of the modern science of genetics in the late nineteenth century.) We are not geneticists, and the record and the briefs in this case do not contain any scientific analysis; but neither party disputes the intuitively correct-seeming conclusion that the genetic risk in a half uncle, half niece relationship is half what it would be if the parties were related by the full blood. Indeed, both parties acknowledged at oral argument that the risk in a half uncle/half niece marriage is comparable to the risk in a marriage of first cousins. First

cousins are allowed to marry in New York, and I conclude that it was not the legislature’s purpose to avert the similar, relatively small, genetic risk inherent in relationships like this one.

Graffeo, J.

(concurring). Under our long-standing principles of statutory construction, I conclude that a marriage between a half uncle and half niece, or a half aunt and half nephew, is permissible in New York based on the structure of Domestic Relations Law § 5. As this Court observed in Matter of Simms (26 NY2d 163 [1970]), the legislature included language in subdivision (2) of this statute that prohibits a marriage between a brother and sister of “the half blood,” but there is no comparable clause in subdivision (3) voiding marriages between uncles and nieces or aunts and nephews. When the legislature includes a condition in one provision but excludes it from another within the same statute, there arises an “irrefutable inference” that the omission was intentional (Matter of Raynor v Landmark Chrysler, 18 NY3d 48, 56 [2011] [internal quotation marks and citation omitted]; see also McKinney’s Cons Laws of NY, Book 1, Statutes § 240). Hence, the contrast in the plain language of Domestic Relations Law § 5 (2) and (3) compels the conclusion that marriages between half siblings are outlawed but marriages involving half uncles and half nieces or half aunts and half nephews are permissible.

Nevertheless, I write separately to emphasize that the legislature may see fit to revisit this provision. The record before us does not address the question of genetic ramifications for the children of these unions. Some of my colleagues assert that marriages between half uncles and half nieces, or half aunts and half nephews, are no different than marriages between first cousins. Perhaps there is no genetic basis for precluding such unions, but this Court was not presented with any scientific evidence upon which to draw an informed conclusion on this point.

From a public policy perspective, there may be other important concerns. Such relationships could implicate one of the purposes underlying incest laws, i.e., “maintaining the stability of the family hierarchy by protecting young family members from exploitation by older family members in positions of authority, and by reducing competition and jealous friction among family members” (Benton v State, 265 Ga 648, 650, 461 SE2d 202, 205 [1995, Sears, J., concurring]). Similar intrafamilial concerns may arise regardless of whether the uncle or aunt in the marriage is of whole or half blood in relation to the niece or nephew. The issue of unequal stature in a family or cultural structure may not be implicated in this case but certainly could exist in other contexts, and a number of states have retained statutory prohibitions involving such marriages. These considerations are more appropriately evaluated in the legislative process.

        See Ala Code § 13A-13-3 (a) (4); Alaska Stat Ann §§ 11.41.450 (a) (3); 25.05.021 (2); Colo Rev Stat Ann § 14-2-110 (1) (c); 750 111 Comp Stat Ann 5/212 (a) (3); Ky Rev Stat Ann § 530.020 (1); La Civ Code Ann art 90 (A) (2); Minn Stat Ann § 517.03 (1) (3); Mont Code Ann § 40-1-401 (1) (c); NJ Stat Ann § 37:1-1 (a), (b); ND Cent Code Ann § 14-03-03 (3), (4); Or Rev Stat Ann § 106.020 (2); Tex Fam Code Ann § 6.201 (3), (4); Utah Code Ann § 76-7-102 (1) (b) (i); Va Code Ann § 20-38.1 (a) (3); Wash Rev Code § 26.04.020 (1) (b); W Va Code § 48-2-302 (a), (b); Wis Stat Ann § 765.03 (1).


source: Caselaw Access Project

license: Public Domain

text:
    [22 NE3d 184, 997 NYS2d 676]
    In the Matter of Maetreum of Cybele, Magna Mater, Inc., Respondent, v Nancy McCoy, Appointed Assessor of the Town of Catskill, et al., Appellants. (And Two Other Related Proceedings.)
    Argued October 21, 2014;
    decided November 18, 2014

      APPEARANCES OF COUNSEL

      The Vincelette Law Firm, Albany (Daniel G. Vincelette of counsel), for appellants.

      Deborah Schneer, Kingston, for respondent.

      Kathleen N Hodgdon, Albany, for Association of Towns of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Petitioner, a not-for-profit religious corporation that owns real property in the Town of Catskill, commenced proceedings pursuant to CPLR article 78 and RPTL article 7 after respondent Board of Assessment Review for the Town refused petitioner’s 2009, 2010 and 2011 applications for tax-exempt status pursuant to RPTL 420-a. Under that provision, real property owned by a corporation that is “organized or conducted exclusively” for charitable and/or religious purposes, if “used exclusively” for such purposes, “shall be exempt from taxation” (RPTL 420-a [1] [a]). We have defined the term “exclusively” as used in this context “to connote ‘principal’ or ‘primary’ such that purposes and uses merely ‘auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption’ ” (Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244, 249 [1992], quoting Matter of Association of Bar of City of N.Y. v Lewisohn, 34 NY2d 143, 153 [1974]).

After a nonjury trial, where petitioner called four witnesses and respondents called none, the trial court dismissed the petitions on the ground that the religious and charitable uses of the subject property were incidental to petitioner’s primary, nonexempt use of providing affordable cooperative housing. The Appellate Division reversed and granted the petitions, holding that the testimony at trial by petitioner’s witnesses demonstrated that petitioner “uses the property primarily for its religious and charitable purposes” and was therefore entitled to a property tax exemption for the years in question (111 AD3d 1098, 1102 [3d Dept 2013]).

The Appellate Division properly granted the petitions. Petitioner adequately established its entitlement to the RPTL 420-a exemption, as the proof at the trial established that petitioner “exclusively” utilized the property in furtherance of its religious and charitable purposes.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, with costs, in a memorandum.


text:
    [22 NE3d 186, 997 NYS2d 678]
    Elissa Motelson, Individually and as Administratrix of the Estate of Brian Motelson, Deceased, et al., Appellants, v Ford Motor Company et al., Respondents. (And Another Action.)
    Argued October 22, 2014
    decided November 18, 2014

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, LLP, New York City {Brian J. Isaac of counsel), and The Rothenberg Law Firm LLP, New York City {Marc J. Rothenberg of counsel), for appellants.

      Carlton Fields Jorden Burt, P.A. {Wendy F. Lumish, of the Florida bar, admitted pro hac vice, of counsel), and Aaronson Rappaport Feinstein & Deutsch, LLP, New York City {Elliot J. Zucker of counsel), for Ford Motor Company, respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue of whether plaintiffs Gary Motelson and Evan Motelson had suffered and/or would continue to suffer emotional distress, as a result of being placed in a zone of danger wherein they witnessed the death of Steven Motelson, while asserted in the complaint, was not argued to the jury at trial. Nor was this question addressed in Supreme Court’s charge or submitted to the jury on the verdict sheet. Significantly, the questions on the verdict sheet concerning the roof support system asked the jury about the causation of “Steven Motelson’s injuries and death,” and not about harms to any others. Plaintiffs did not object to the jury charge or verdict sheet. In these circumstances, Supreme Court erred when it set aside the jury verdict and ordered a new trial on damages.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, with costs, in a memorandum.


text:
    Arthur Blake, Appellant, v State of New York, Respondent.
    Submitted September 22, 2014;
    decided November 20, 2014
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied reargument of a prior motion, dismissed upon the ground that such part of the Appel-

late Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Rokhaya Cisse, Appellant, v Christopher Graham, Respondent. (Proceeding No. 1.) In the Matter of Christopher Graham, Respondent, v Rokhaya Cisse, Appellant. (Proceeding No. 2.)
    Submitted September 15, 2014;
    decided November 20, 2014
   Motion for leave to appeal granted. Motion for a stay denied as unnecessary (see CPLR 5519 [e]). Motion to vacate stay denied.


text:
    In the Matter of Morton A. Cohen, Appellant, v New York State and Local Employees’ Retirement System, Respondent. (And Another Proceeding.)
    Submitted October 6, 2014;
    decided November 20, 2014
   Motion, insofar as it seeks leave to appeal from the May 2014 Appellate Division judgment, denied; motion, insofar as it seeks leave to appeal from the Appellate Division orders denying reargument or leave to appeal, dismissed upon the ground that such orders do not finally determine the proceedings within the meaning of the Constitution.


text:
    Commonwealth of Pennsylvania Public School Employees’ Retirement System, Together and on Behalf of All Others Similarly Situated, et al., Plaintiffs, and Commerzbank AG, Together and on Behalf of All Others Similarly Situated, Appellant, v Morgan Stanley & Co., Incorporated, et al., Respondents, et al., Defendants.
    Decided November 20, 2014

      See 772 F3d 111.
   Certification of questions 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, Pigott, Rivera and Abdus-Salaam.


text:
    Eric M. Berman, P.C., et al., Respondents, v City of New York et al., Appellants.
    Decided November 20, 2014

      See 770 F3d 1002.
   Certification of questions 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, Pigott and Abdus-Salaam. Taking no part: Judge Rivera.


text:
    Tony Mafes, Respondent, v City of New York et al., Defendants, and Lincoln Tugwell, Appellant.
    Submitted October 14, 2014;
    decided November 20, 2014
   Motion, insofar as it seeks leave to appeal from those portions of the Appellate Division order which (1) dismissed the appeal from so much of Supreme Court’s order as denied reargument and (2) affirmed that portion of Supreme Court’s order as denied appellant’s motion for an extension of time, dismissed upon the ground that those portions of the order do not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Oksoon K., Respondent, v Young K., Appellant.
    Submitted October 20, 2014;
    decided November 20, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 902 (2014)].


text:
    SRN Realty, LLC, Appellant, v Scarano Architect, PLLC, et al., Respondents.
    Submitted September 29, 2014;
    decided November 20, 2014
   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 State of New York, Respondent, v Claude McC., Appellant.
    Submitted October 6, 2014;
    decided November 20, 2014
   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 Elaine D. Ward, Respondent, v City of New York et al., Appellants.
    Submitted October 20, 2014;
    decided November 20, 2014
   Motion for reargument denied [see 23 NY3d 1046 (2014)].


text:
    [22 NE3d 1008, 998 NYS2d 140]
    The People of the State of New York, Respondent, v Kenneth Moore, Appellant.
    Decided October 23, 2014

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, Criminal Appeals Bureau, New York City (.Kristina Schwarz of counsel), for appellant.

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

Memorandum.

The order of the Appellate Term should be reversed, defendant’s guilty plea vacated and the accusatory instrument dismissed. Defendant was charged with four counts of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03). At arraignment, there was a brief discussion between defense counsel, the assistant district attorney and the court concerning the terms of a disposition, which then lead to defendant’s plea and sentencing on the controlled substance counts. The court did not address defendant and defendant did not speak; nor was defendant advised of any constitutional rights he was waiving. Defendant now claims his constitutional rights were violated because the record fails to establish his plea was knowing, voluntary and intelligent.

In People v Tyrell, we held that “[p]resuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused intelligently and understandingly rejected his constitutional rights. Anything less is not waiver” (22 NY3d 359, 365-366 [2013] [citation and internal quotation marks omitted]). The People concede that under Tyrell defendant’s plea must be vacated and, as defendant has completed his sentence, remittal is unnecessary (see id. at 366).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, plea vacated and the accusatory instrument dismissed, in a memorandum.


text:
    [22 NE3d 1009, 998 NYS2d 141]
    In the Matter of Catherine A. Gorman, Appellant, v Kathleen M. Rice, Respondent, et al., Respondent.
    Argued October 16, 2014;
    decided November 18, 2014

      APPEARANCES OF COUNSEL

      Law Office of Harry H. Kutner, Jr, Mineóla {Harry H. Kutner, Jr., of counsel), for appellant.

      Kathleen M. Rice, District Attorney, Mineóla {Barbara Kornblau, Tammy J. Smiley and Yael V Levy of counsel), respondent pro se.
   OPINION OF THE COURT

Memorandum.

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

During the late afternoon of July 8, 2006, defendant Catherine A. Gorman was driving a car on the Meadowbrook Parkway with two 10-year-old girls as her passengers. As defendant attempted to exit the parkway, her car veered out of control and flew in front of another vehicle (one of two or three vehicles driven by members of a family on an outing to a local fair) as she shot over the exit ramp and plowed through a wooded area, ultimately coming to rest on a fence that separated the wooded area from a parking lot. The motorists in the caravan stopped to help; one of these witnesses detected the odor of alcohol emanating from the front seat of defendant’s car; another noticed that defendant smelled of alcohol and that her eyes were watery and bloodshot. Defendant said that she was all right and asked that the police not be notified. When defendant learned that someone in the family party had already called the police, she began walking away from the accident scene, along the side of the parkway, with the two young girls in tow.

The police intercepted defendant and the two children at an exit ramp perhaps one quarter of a mile distant from the accident scene. Based on defendant’s appearance, slurred speech, answers to questions, the odor of alcohol and her performance on standard field sobriety tests, the police concluded that she was intoxicated. Defendant was arrested and brought to the police station, where a breathalyzer test showed a blood alcohol content (BAC) of 0.25%. Defendant was charged with violating Vehicle and Traffic Law §§ 1192 (2) (per se driving while intoxicated [BAC of 0.08% or more]), (3) (driving while intoxicated); 1128 (a) (moving from lane unsafely); and Penal Law § 260.10 (endangering the welfare of a child) (two counts).

During defendant’s second jury trial in District Court in October 2009 (the first ended in a mistrial), defense counsel announced, outside the presence of the jury, that he intended to file a complaint against the judge for alleged pro-prosecution rulings. The judge stated, “I’m declaring a mistrial based on the threats of counsel to file a complaint against me. I’ll be back in five minutes.” When the judge returned, he noted that “[b]efore we broke, I declared a mistrial. I reviewed the record, and it is clear that defense counsel said that my conduct verged on needing a complaint being filed. That being said, I am unable to preside over this trial.” The judge then remarked to defense counsel, “I’m assuming . . . that you agree that ... I should not be able to preside over this trial,” to which defense counsel responded, “Yes, sir.” The court continued that “on consent, I’m going to declare a mistrial.” Defense counsel then objected that he was “not consenting to a mistrial.”

Further discussion ensued among the court and the parties, and the prosecutor suggested that the trial be adjourned to the following week to give everyone “a chance to cool down” so that “[m]aybe [they could] continue the trial.” The judge responded, “Well, I think . . . [it] is really up to the defendant and [defense counsel].” The colloquy continued as follows:

“THE COURT: I just want it to be clear on the record. When I came back, I asked defense counsel that based on his comments if it was his opinion that I would not be able to preside over this trial, and your response was yes.
“Is that your opinion?
“[DEFENSE COUNSEL]: (No audible response).
“THE COURT: I’m not trying to put you on the spot.
“[DEFENSE COUNSEL]: I have to be.
“THE COURT: You were the one who told me that you wanted — you were going to file a complaint against me, and you’re unhappy with the way I am presiding over the trial.
“If you believe that my conduct has been so bad it warrants a complaint to the judiciary committee, then so be it, then you can do it, and I’ll recuse myself.
“But I also don’t want to be in a position where I’m going to preside over this trial, and then when it’s over, you go to the judiciary committee anyway.
“[DEFENSE COUNSEL]: I have never done that in 36 years, 35 and a half years.
“THE COURT: So I think what I’m going to do is I’m going to take five minutes, and you can discuss with your client what you want to do. If you and your client decide you want me to preside over this trial, then I’ll reconsider it.
“[DEFENSE COUNSEL]: Okay, Judge. Thank you. Thank you for the opportunity.”

After this recess, defense counsel stated that upon speaking with his client and her family and “weighing all the options,” they had decided “regrettably . . . to go with the mistrial.” The judge then declared a mistrial “at the request of . . . defendant,” discharged the jury and recused himself. A month later, defendant moved to dismiss the accusatory instrument, principally on double jeopardy grounds. On April 19, 2010, the District Court Judge assigned the motion rejected defendant’s double jeopardy claim, prompting her to bring this CPLR article 78 proceeding to prohibit a retrial.

On August 16, 2010, Supreme Court granted defendant’s CPLR article 78 petition and barred “any prosecution of [defendant] on the [specified] charges ... as constituting a violation of the double jeopardy protection” (29 Misc 3d 610, 618 [Nassau County 2010]). The People timely moved for reargument. After several adjournments upon the request of the parties and oral argument, Supreme Court, by decision dated February 23, 2012, granted reargument and adhered to its original decision (2012 NY Slip Op 33700[U] [2012]). The People appealed, and on May 22, 2013, the Appellate Division unanimously reversed, denied the petition and dismissed the proceeding (106 AD3d 1000 [2d Dept 2013]).

The court held that “Supreme Court erred in determining that the District Court did not retain the discretion to rescind its previous declaration of a mistrial prior to the discharge of the jury” {id. at 1001). And in this case, “the District Court’s initial declaration of a mistrial, made without . . . [defendant’s] consent, was rescinded and, thereafter, a mistrial was declared upon . . . [defendant’s] consent” (id.). After the same panel denied defendant’s motion for reargument and leave to appeal to us (2013 NY Slip Op 79345[U] [2013]), she appealed as of right pursuant to CPLR 5601 (b) (1) (substantial constitutional question directly involved), or, alternatively, sought leave to appeal. On October 22, 2013, we denied the motion for leave to appeal as unnecessary, and granted defendant a stay (22 NY3d 948 [2013]). We now affirm for substantially the reasons stated by the Appellate Division.

Until the jury is discharged, a court may rescind its previous declaration of mistrial (see People v Dawkins, 82 NY2d 226 [1993]). Defendant argues that in this case the trial judge never formally rescinded his initial mistrial ruling, and so whether or not she indicated her consent after that ruling is irrelevant. Certainly, the judge never expressly said, “I rescind my order declaring a mistrial.” But we have never required any particular language to be used to retract a prior order. Here, the record makes clear that the trial judge was leaving the mistrial decision up to defendant. Because she decided to “go with the mistrial,” and thus consented to it, her double jeopardy claim fails. Indeed, if defendant were correct that the judge never rescinded his initial mistrial order, there would have been no need for him to afford defense counsel and defendant time to consult about how they wanted to proceed. Concomitantly, immediately prior to the recess to allow for this consultation, the judge explicitly declared that it was “up to the defendant and [defense counsel]” to decide whether or not they wanted to continue with the trial.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Jose Almonte, Appellant, v Joseph P. Smith, as Superintendent of Shawangunk Correctional Facility, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Archstone, Formerly Known as Archstone-Smith Operating Trust, et al., Appellants, v Tocci Building Corporation of New Jersey, Inc., et al., Defendants, and Liberty Mutual Insurance Company, Respondent. (And Third-Party Actions.)
    Submitted October 20, 2014;
    decided November 24, 2014
   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 Echo Westley Dixon, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of Roy Den Hollander, Appellant, v City of New York Commission on Human Rights, Respondent.
    Submitted October 6, 2014;
    decided November 24, 2014
   Motion to dismiss appeal, treated as a motion for reargument of appellant’s motion for leave to appeal, granted and, upon re-argument, motion for leave to appeal denied [see 24 NY3d 903 (2014)].


text:
    In the Matter of Constantine Jackson, Appellant, v Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 903 (2014)].


text:
    Kristin Mangilit-Pradlik, Plaintiff, and Anthony J. Pradlik, Appellant, v Valvoline Instant Oil Change GE6604-White Plains et al., Respondents.
    Submitted October 27, 2014;
    decided November 24, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Khanh T. Nguyen, Appellant, v Nemet Motors, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Ralph Oyague, Appellant, v Sullivan Correctional Facility, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 902 (2014)].


text:
    The People of the State of New York ex rel. Demetrio Lifrieri, Appellant, v William A. Lee, Respondent.
    Submitted October 27, 2014;
    decided November 24, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 952 (2014)].


text:
    In the Matter of the Claim of Dora I. Ruano, Respondent. Legal Interpreting Services, Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted October 14, 2014;
    decided November 24, 2014
   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 Frank Russell, Appellant, v Brian Fischer, Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
    Submitted October 20, 2014;
    decided November 24, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 909 (2014)].


text:
    In the Matter of Michele M. Simms-Parris (Admitted as Michele Marie Simms-Parris), a Disbarred Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted October 27, 2014;
    decided November 24, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of Ruben Abreu, Appellant. E. Armata, Inc., Respondent; Commissioner of Labor, Respondent.
    Submitted November 3, 2014;
    decided November 25, 2014
   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:
    Rebecca Geffner, Appellant, v Mercy Medical Center et al., Respondents.
    Submitted October 6, 2014;
    decided November 25, 2014
   Motion, insofar as it seeks leave to appeal from the August 2014 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the April 2014 Appellate Division order, as against respondents Mercy Medical Center, Roy A. Rubenstein, Eric A. Shoenfeld, and Harte Placements, Inc., doing business as Nassau-Johrens Registry Agency, dismissed upon the ground that as to said parties such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the April 2014 Appellate Division order, as against the remaining respondents, denied.


text:
    In the Matter of Kevin Griffin, Appellant, v Thomas P. DiNapoli, as State Comptroller, et al., Respondents.
    Submitted October 27, 2014;
    decided November 25, 2014
   Motion for reargument of motion or leave to appeal denied [see 24 NY3d 903 (2014)].


text:
    In the Matter of James Pine, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted October 20, 2014;
    decided November 25, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 904 (2014)].


text:
    Scarola Ellis LLP Appellant, v Elan Padeh, Respondent.
    Submitted October 6, 2014;
    decided November 25, 2014
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Carlayne Sims, Appellant, v United States of America Governing Body et al., Respondents.
    Submitted November 3, 2014;
    decided November 25, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    US Bank, N.A., Respondent, v Clement Morrison, Also Known as Clement A. Morrison, et al., Appellants, et al., Defendants.
    Submitted October 6, 2014;
    decided November 25, 2014
   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:
    [23 NE3d 1021, 998 NYS2d 753]
    In the Matter of Suzanne Lozinak, Respondent, v Board of Education of the Williamsville Central School District, Appellant.
    Decided December 17, 2014

      APPEARANCES OF COUNSEL

      Harris Beach PLLC, Pittsford (Edward A. Trevvett of counsel), for appellant.

      Office of General Counsel, New York State United Teachers, Buffalo (Timothy Connick and Richard E. Casagrande of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and petition dismissed. We cannot say that “the penalty of [termination] . . . shocks the judicial conscience” (Matter of Kelly v Safir, 96 NY2d 32, 40 [2001]; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 234-235 [1974]).

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


text:
    ACE Securities Corp., Appellant, v DB Structured Products, Inc., Respondent.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by CXA-13 Corporation for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    Eric Alexander, Respondent, v Hany Alexander, Appellant.
    Decided December 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Anita L. Apt et al., Appellants, v Morgan Stanley DW, Inc., et al., Respondents, et al., Defendant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by Public Investors Arbitration Bar Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Arto ZZ., Respondent. Commissioner of the New York State Office for People with Developmental Disabilities, Respondent; New York County District Attorney, Appellant.
    Submitted November 10, 2014;
    decided December 16, 2014
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Julie Conason et al., Respondents, v Megan Holding, LLC, et al., Appellants.
    Submitted December 8, 2014;
    decided December 16, 2014
   Motion by Association for Neighborhood and Housing Development et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Victor Jordan, Individually and as Administrator of the Estate of Oswald Jordan, Deceased, Appellant, v Andrew Jordan et al., Respondents.
    Decided December 16, 2014
   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 Lourdes G., Respondent, v Julio P., Appellant.
    Submitted October 27, 2014;
    decided December 16, 2014
   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:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by Buffalo Frofessional Firefighters Association, Local 282, IAFF for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by National Association of Hispanic Firefighters for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted December 8, 2014;
    decided December 16, 2014
   Motion by National Association for the Advancement of Colored People for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by International Municipal Lawyers Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Monroe Equities, LLC, Appellant, v State of New York, Respondent.
    Decided December 16, 2014
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second 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]).


text:
    In the Matter of Yotuhel Montane, Appellant, v Andrea Evans, as Chair of the Division of Parole, Respondent.
    Submitted November 3, 2014;
    decided December 16, 2014
   Motion to dismiss appeal granted and appeal dismissed, without costs, upon the ground that the issues presented have become moot.


text:
    The People of the State of New York, Respondent, v Michael Diack, Appellant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Elias McFarland, Appellant.
    Submitted November 3, 2014;
    decided December 16, 2014
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Federico Perez, Appellant.
    Submitted November 24, 2014;
    decided December 16, 2014
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Victor Soto, Respondent.
    Submitted October 6, 2014;
    decided December 16, 2014
   Motion to vacate the Court of Appeals’ September 8, 2014 dismissal order granted.


text:
    The People of the State of New York, Appellant, v Terrance Williams, Respondent.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by The Center for HIV Law and Policy et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Appellant, v Terrance Williams, Respondent.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by New York Civil Liberties Union et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Appellant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by Peter Vollmer for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Appellant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by Robin Schimminger for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Appellant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by The Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Appellant.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by The Legal Aid Society et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Woodside Manor Nursing Home et al., Appellants, v Nirav R. Shah, M.D., Commissioner of Health, State of New York, et al., Respondents.
    Submitted December 1, 2014;
    decided December 16, 2014
   Motion by LeadingAge New York, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    [24 NE3d 593, 999 NYS2d 357]
    The People of the State of New York, Respondent, v Karen M. Caza, Appellant.
    Decided November 20, 2014

      APPEARANCES OF COUNSEL

      Martin J. McGuinness, Queensbury, for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Defendant’s argument that County Court erred in enhancing her sentence by departing from its conditional promise to make her two terms of imprisonment run concurrently is unpreserved for our review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-493 [2008]).

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott, Rivera and Abdus-Salaam 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.


author: Pigott, J.

text:
    [24 NE3d 1082, 999 NYS2d 818]
    The People of the State of New York, Respondent, v Kelvin Spears, Appellant.
    Argued October 23, 2014;
    decided November 25, 2014

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester {Erin Tubbs of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Kelvin Spears was charged by indictment with one count of sexual abuse in the first degree, a class D felony, for sexual contact with a female child under the age of 11. Defendant pleaded guilty to a reduced charge of sexual abuse in the second degree, a misdemeanor, with a sentence of six years’ probation. Over two months later, defendant appeared at sentencing and requested an adjournment. Defendant’s counsel noted that she had spoken with defendant that morning and was requesting an adjournment to discuss with defendant his interest in withdrawing his plea. The People opposed an adjournment, arguing that defendant had been out of custody for two months and thus had more than enough time to bring a motion before the court prior to sentencing. The People further asserted that there was no indication that defendant did not freely know and understand the terms of his plea.

Supreme Court denied the request, informed defendant that the People moved for sentencing, and asked defendant whether there was a reason he should not be sentenced. Defendant replied that he wanted an adjournment to look at his legal options because it was a very big decision, and he was unable to contact his counsel to address certain issues. Supreme Court stated that based on those statements, defendant’s request was denied, and the court again asked defendant if he had anything further to say. Defendant requested new counsel. Defense counsel stated that defendant had attempted to meet with her the afternoon before, but counsel was unable to meet due to a previously scheduled appointment with a client. However, counsel stated that she did in fact speak with defendant that morning about his interest in withdrawing his plea. Defense counsel again requested an adjournment. Supreme Court again denied the request, stating that defendant had an opportunity to tell the court the basis for the request but no ground had been given other than that it was a big decision, which the court stated was not enough. Defendant was then sentenced in accordance with his plea. The Appellate Division affirmed, stating that Supreme Court “did not abuse its discretion in denying [defendant’s] request for an adjournment at sentencing” (People v Spears, 106 AD3d 1534, 1535 [4th Dept 2013]).

Whether to grant an adjournment is within Supreme Court’s discretion (see Matter of Anthony M., 63 NY2d 270, 283-284 [1984]; People v Singleton, 41 NY2d 402, 405 [1977]). Based upon the colloquy at sentencing, defendant had more than a fair amount of time to speak with counsel regarding his interest in withdrawing his plea. Although defendant was out of custody for two months, having been released on his own recognizance following his plea allocution, the record reflects that he only contacted defense counsel the day before sentencing in order to discuss his plea concerns. Despite defense counsel’s inability to meet with defendant that day, defense counsel stated during sentencing that she had spoken with defendant that morning.

Defendant argues that Supreme Court abused its discretion by denying his request for an adjournment, claiming there was no compelling reason to deny his request and that his fundamental right to assistance of counsel was at stake. Defendant, however, was able to exercise his right to counsel. It is clear from the colloquy defendant conferred with counsel prior to sentencing. Neither defendant nor his counsel was able to articulate to Supreme Court a ground upon which the plea could be withdrawn. If defendant could have articulated such a ground, it appears that the court would have been willing to grant an adjournment, as evidenced by the judge’s queries about defendant’s reason for his request. Although granting an adjournment here would not have resulted in prejudice to the People, absent any indication that defendant had grounds to support a plea withdrawal, Supreme Court’s refusal to grant the adjournment was not an abuse of discretion.

Pigott, J.

(dissenting). When deciding whether a court has properly exercised its discretion, in my view, we must consider more than what a court did at the time it exercised such discretion. Rather, we need to consider the series of events that led up to that point. In this case, those events, which can only be characterized as one-sided, landed defendant before the sentencing court with a simple request for an adjournment that would have affected no one adversely. Nonetheless, the court summarily refused to grant an adjournment. A summary of the events prior to that decision proves why that decision can only be viewed as an abuse of discretion.

Defendant was indicted on February 3, 2009, and charged with sexual abuse in the first degree (Penal Law § 130.65 [3]), a D felony carrying a maximum sentence of seven years. At his arraignment, defendant, supported by his family, was held in lieu of $10,000 cash or a $25,000 surety bond. The court took this action, despite the fact that defendant was employed and the County Pretrial Release Program found him “OR eligible.” In making the bail determination, the court apparently placed more credence in the representations made by the People, who claimed there was a second victim who had “not been . . . presented [to a grand jury but had not] . . . gone away.” The People further noted that defendant “if convicted” faced up to seven years in New York State prison on a violent felony conviction.

The court scheduled a Huntley hearing for some three months later with an admonition to defense counsel that, in the event she had a conflict with the scheduled date, she should “send somebody else over because we have to schedule it.” As a result of the foregoing, defendant spent the next three months in pretrial detention.

On the scheduled hearing date, defendant and his defense counsel were present and prepared to go forward, but no appearance was made by the People or their witnesses, and no explanation given. The court simply noted on the record that “[t]he district attorney has not appeared. No witnesses have appeared. I’m going to adjourn this case to Friday at 11:30 for the Huntley hearing. I know [defense counsel is] scheduled to be here on another matter.” Defense counsel objected to the adjournment, asking instead that the relief sought in defendant’s motion be granted “since the People [were] clearly not ready to proceed with the hearing.” That motion was denied without comment.

Then, on the rescheduled hearing date, a dramatic change occurred. Instead of going forward with the hearing, the People offered defendant a misdemeanor plea with time served, probation and defendant’s immediate release from custody. Defendant accepted the plea, and agreed to an order of protection and a waiver of his right to appeal. He was given “a minute to talk it over [with his girlfriend].” Thereafter, at the direction of the court, defendant withdrew all of his motions, waived his right to appeal, pleaded guilty to the misdemeanor and accepted the various court fee charges.

At the plea colloquy, it was the prosecutor, not the court, who “[took defendant] through his rights.” At the conclusion of that exchange, the court asked the prosecutor: “Any further warnings you want me to give to him?” The prosecutor answered, “No, I think that suffices, Your Honor.” At this point, the court admonished defendant that “[i]n no case will [the court] allow you to withdraw your plea of guilt. If you don’t appear for sentencing, a bench warrant will be issued for your arrest and you could be charged for another crime of absconding for not appearing.” The court then scheduled sentencing, but at the request of the prosecutor who believed he would be “on vacation that week,” sentencing was delayed another two weeks.

The majority places significance on the fact that eight weeks transpired between defendant’s release and his request for an adjournment. However, they make no mention of the fact that defendant was held for over three months in pretrial detention, that a gratuitous adjournment was given to the People at the Huntley hearing, upon their nonappearance without explanation, and that the prosecutor obtained a delay in sentencing, for the asking, based on his vacation time.

These facts, in my view, demonstrate that the court abused its discretion in refusing to grant defendant a simple adjournment of his sentencing, particularly when he had been released from custody and the promised sentence was probation.

In People v Nixon (21 NY2d 338, 355-356 [1967]), this Court noted:

“[I]t would seem that a sound discretion exercised in cases on an individual basis is best rather than to mandate a uniform procedure which, like as not, would become a purely ritualistic device. Indeed, today, there is reason to suspect that many pleading defendants are prepared to give the categorical answers only because they know that this is the route to eligibility for the lesser plea. . . . While the essence of justice may be procedure there can be a point at which the administration of justice becomes only procedure and the essence of justice is lost.”

We echoed that sentiment in a number of later cases. For instance, in People v Fiumefreddo (82 NY2d 536, 543 [1993]), we noted: “On motions to withdraw guilty pleas, the ‘defendant should be afforded reasonable opportunity to present his contentions and the court should be enabled to make an informed determination in accordance with the principles laid down in People v. Nixon.’ ”

Moreover, we have been sensitive to the rights of defendants when it comes to taking a plea, including the consequences thereof (see People v McAlpin, 17 NY3d 936 [2011]; People v Mox, 20 NY3d 936 [2012]; People v Tyrell, 22 NY3d 359 [2013]; People v Mitchell, 21 NY3d 964 [2013]; People v Turner, 24 NY3d 254, 259 [2014] [noting that “the prosecutor, not the court, led the sentencing colloquy and may have misled defendant by telling her that PRS was ‘part of her plea’ ”]). Indeed, in People v Turner, the court, over defendant’s insistence that he was ready to take the plea, adjourned the matter to ensure defendant was fully apprised of the consequences of his plea.

The issue to me is nothing more than whether defendant should be granted an adjournment in light of the facts and circumstances of the case. The undisputed facts reveal that a simple adjournment would have harmed no one and would have demonstrated a balanced approach to defendant’s plea and sentence.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Rivera and Abdus-Salaam concur; Judge Pigott dissents in an opinion.

Order affirmed, in a memorandum.

       The dissent references supposed deficiencies in the plea colloquy; however, defendant has not made such arguments to this Court.

       It was later disclosed that the second “victim” had been “no-billed” by a Monroe County grand jury.


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted November 10, 2014;
    decided December 17, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Leon Behar et al., Respondents, v Quaker Ridge Golf Club, Inc., Appellant.
    Submitted November 3, 2014;
    decided December 17, 2014
   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 Chaim T. New York City Administration for Children’s Services, Respondent; Joshua T., Appellant; Annette T., Respondent. (Proceeding No. 1.) In the Matter of Tziporah T. New York City Administration for Children’s Services, Respondent; Joshua T., Appellant; Annette T., Respondent. (Proceeding No. 2.) In the Matter of Yehuda T. New York City Administration for Children’s Services, Respondent; Joshua T., Appellant; Annette T., Respondent. (Proceeding No. 3.)
    Submitted November 10, 2014;
    decided December 17, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Gloria Deanna Dickerson, Appellant, v United Way of New York City, Respondent, et al., Defendants.
    Submitted November 3, 2014;
    decided December 17, 2014
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 24 NY3d 903 (2014)].


text:
    In the Matter of Empire State Realty Trust, Inc. Investor Litigation. Leon Meyers et al., Respondents, and Mildred Blutstein et al., Intervenors-Plaintiffs-Appellants, v Malkin Holdings L.L.C. et al., Respondents.
    Submitted November 3, 2014;
    decided December 17, 2014
   Motion for reargument of motion for leave to appeal etc. denied [see 24 NY3d 946 (2014)].


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted November 3, 2014;
    decided December 17, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 936 (2014)].


text:
    The People of the State of New York ex rel. Michael Dollison, Appellant, v Michael J. Sposato, Respondent.
    Submitted November 3, 2014;
    decided December 17, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 906 (2014)].


text:
    In the Matter of Brian D. Price, Respondent. NYP Holdings Inc., Doing Business as New York Post, Appellant; Commissioner of Labor, Respondent.
    Submitted November 3, 2014;
    decided December 17, 2014
   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 Brian D. Price, Respondent. NYP Holdings Inc., Doing Business as New York Post, Appellant; Commissioner of Labor, Respondent.
    Submitted December 1, 2014;
    decided December 17, 2014
   Motion by the New York News Publishers Association, Inc., et al. for leave to appear amici curiae on the motion for leave to appeal granted and the brief is accepted as filed.


text:
    In the Matter of Protect the Adirondacks! Inc. et al., Appellants, v Adirondack Park Agency et al., Respondents.
    Submitted November 10, 2014;
    decided December 17, 2014
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the March 2013 Supreme Court order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of State of New York, Respondent, v Anthony N., Appellant.
    Submitted September 29, 2014;
    decided December 17, 2014
   Motion for leave to appeal granted. Motion for poor person relief granted.


author: Smith, J. Abdus-Salaam, J. Pigott, J.

text:
    [25 NE3d 943, 2 NYS3d 30]
    The People of the State of New York, Respondent, v Dwight Giles, Appellant. The People of the State of New York, Respondent, v Sean Hawkins, Appellant.
    Argued November 19, 2014;
    decided December 18, 2014

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Jan Hoth of counsel), for appellant in the first above-entitled action.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sheryl Feldman and Naomi C. Reed of counsel), for respondent in the first above-entitled action.

      Michael W. Warren, Brooklyn, for appellant in the second above-entitled action.

      Kenneth P. Thompson, District Attorney, Brooklyn (Sholom J. Twer sky and Leonard Joblove of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

In People v Giles, the order of the Appellate Division should be affirmed. In People v Hawkins, the order of the Appellate Term should be affirmed.

Defendants’ motions to set aside the verdict pursuant to CPL 330.30 (1) were procedurally improper because they were premised on matters outside the existing trial record, and CPL 330.30 (1) did not permit defendants to expand the record to include matters that did not “appear[ ] in the record” prior to the filing of the motions. We express no opinion on whether a trial court has the authority to consider a CPL 330.30 (1) motion as a premature de facto CPL 440.10 motion in certain cases because defendants here did not ask the trial courts to consider their motions as such, and in each case, the trial court neither deemed the motion to be a premature CPL 440.10 motion nor decided the motion in accordance with the criteria and procedures delineated in CPL 440.30 (cf. People v Wolf, 98 NY2d 105, 118-119 [2002]). In People v Giles, defendant’s challenge to the constitutionality of his sentencing as a persistent felony offender is without merit (see People v Bell, 15 NY3d 935, 936 [2010]; People v Battles, 16 NY3d 54, 59 [2010]; People v Quinones, 12 NY3d 116, 129-130 [2009]).

Smith, J.

(concurring). I join the majority memorandum, and add some comments on each case.

I

In People v Hawkins, I agree with Judge Pigott that a court has power, in a proper case, to entertain a motion under CPL 440.10 even where the motion is made before the entry of judgment — i.e., to overlook the technical defect that the motion is premature. I agree with the majority, however, that the motion in Hawkins cannot be treated as a CPL 440.10 motion, because the proper procedures were not followed.

II

The main purpose of this concurrence is to respond to Judge Abdus-Salaam’s dissenting opinion in People v Giles.

A

In Apprendi v New Jersey (530 US 466 [2000]) and a number of later cases, the United States Supreme Court held that, under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, a defendant’s sentence may not be enhanced beyond what would otherwise be its maximum term on the basis of facts that are not found by a jury beyond a reasonable doubt. One exception has been recognized: under Almendarez-Torres v United States (523 US 224 [1998]), a case left undisturbed by Apprendi (530 US at 489-490) and never subsequently overruled, “the fact of a prior conviction” may be found by a judge (Apprendi, 530 US at 490).

In People v Rosen (96 NY2d 329, 335 [2001]) we interpreted New York’s persistent felony offender statute (PFO statute) to make prior convictions “the sole determinate” of whether a defendant is eligible for enhanced sentencing. We reaffirmed and explained the holding of Rosen in People v Rivera (5 NY3d 61 [2005]) and People v Quinones (12 NY3d 116, 122-131 [2009]) (see also People v Battles, 16 NY3d 54, 59 [2010]; People v Bell, 15 NY3d 935, 936 [2010]).

It seems to me that the statute as we have interpreted it is unquestionably valid under Apprendi and Almendarez-Torres. Indeed, an en banc panel of the United States Court of Appeals for the Second Circuit has unanimously agreed that the statute is constitutional on its face (Portalatin v Graham, 624 F3d 69 [2d Cir 2010]; see id. at 100 [Winter, J., dissenting]). Whether we correctly interpreted the statute in Rosen and later cases is a different question. I admit that that question — one of New York, not federal, law — is fairly debatable, but I am somewhat puzzled that the debate continues after all these decisions and all these years.

B

The substantive part of the PFO statute is found in section 70.10 of the Penal Law. A persistent felony offender is defined as anyone (other than a persistent violent felony offender, see Penal Law § 70.08) “who stands convicted of a felony after having previously been convicted of two or more felonies” (Penal Law § 70.10 [1] [a]). Penal Law § 70.10 (2) authorizes a court that has found a person to be a persistent felony offender to impose the sentence authorized for a class A-I felony when the court “is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest.”

The PFO statute also includes procedural provisions, contained both in the Penal Law and in the Criminal Procedure Law. Under CPL 400.20, an enhanced sentence may not be imposed unless, “based upon evidence in the record of a hearing held pursuant to this section,” the court has found that the defendant is a persistent felony offender and “is of the opinion” contemplated by Penal Law § 70.10 as to defendant’s history and character and the nature and circumstances of his conduct (CPL 400.20 [1]). In directing a hearing, the court must annex to and file with its order the dates and places of the convictions that render the defendant a persistent felony offender and “[t]he factors in the defendant’s background and prior criminal conduct which the court deems relevant for the purpose of sentencing the defendant as a persistent felony offender” (CPL 400.20 [3]). The burden of proof at the hearing is on the People (CPL 400.20 [5]). Defendant’s status as a persistent felony offender must be proved beyond a reasonable doubt, but “[m]atters pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct may be established by any relevant evidence . . . and the standard of proof with respect to such matters shall be a preponderance of the evidence” (id.). If the court chooses the enhanced sentence “the reasons for the court’s opinion shall be set forth in the record” (Penal Law § 70.10 [2]).

If the PFO statute were read — as it could be — to mean that a court may impose an enhanced sentence only after it has found, in a nonjury proceeding, facts “pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct,” it would raise serious problems under Apprendi. Mindful of our obligation to adopt, where possible, an interpretation that renders a statute constitutional, we held in Rosen, and have several times reaffirmed, that that is not what the statute means. We said in Rosen:

“It is clear from the . . . statutory framework that the prior felony convictions are the sole determinate of whether a defendant is subject to enhanced sentencing as a persistent felony offender. Then, the court must consider other enumerated factors to determine whether it ‘is of the opinion that a persistent felony offender sentence is warranted’ (CPL 400.20 [9]). As to the latter, the sentencing court is thus only fulfilling its traditional role — giving due consideration to agreed-upon factors — in determining an appropriate sentence within the permissible statutory range.” (96 NY2d at 335.)

In Rivera, we explained and expanded on Rosen’s holding:

“We could have decided Rosen differently by reading the statutes to require judicial factfinding as to the defendant’s character and criminal acts before he became eligible for a persistent felony offender sentence. If we had construed the statutes to require the court to find additional facts about the defendant before imposing a recidivism sentence, the statutes would violate Apprendi. But we did not read the law that way. Under our interpretation of the relevant statutes, defendants are eligible for persistent felony offender sentencing based solely on whether they had two prior felony convictions. Thus, as we held in Rosen, no further findings are required.” (5 NY3d at 67.)

Once again in Quinones, responding to an argument that the PFO statute was unconstitutional under Cunningham v California (549 US 270 [2007]), we said:

“[Defendant argues that New York’s discretionary persistent felony offender sentencing scheme suffers from the same constitutional infirmity as [the California statute in Cunningham] because the ‘higher persistent felony offender range cannot be imposed without the judicially-found fact that the “nature and circumstances” of the criminal conduct and the “history and character” of the defendant warrant lifetime supervision in the public interest.’ Defendant’s view of New York’s sentencing scheme is inaccurate. . . .
“New York’s sentencing scheme ... is a recidivist sentencing scheme. That is, under New York’s scheme, a defendant is subject to an enhanced sentence based solely on the existence of two prior felony convictions. . . . [I]t is only after a defendant’s eligibility for an enhanced sentence is determined that a judge is given the discretion to choose the appropriate sentence within a sentencing range prescribed by statute.” (12 NY3d at 125, 128-129.)

In short, as we have read the PFO statute, it might as well say: “A defendant with two prior felonies may, in the court’s discretion, be sentenced as provided by law for a class A-I felony. In exercising its discretion, the court shall take into account such facts as it deems relevant pertaining to the defendant’s history and character and the nature and circumstances of his criminal conduct.” Such a statute poses no arguable problem under Apprendi. It enhances the statutory maximum solely on the basis of prior convictions, as Almendarez-Torres permits, and allows the sentencing judge to do what sentencing judges normally do — to choose, in his or her discretion, a sentence equal to or less than the statutory maximum. Perhaps it is unusual to require, as the PFO statute does, that the court conduct an evidentiary hearing, governed by specified burdens of proof, to find the facts that it deems relevant to the exercise of its discretion, and to set forth the reasons for its discretionary decision on the record. But these requirements, unusual or not, are not unconstitutional.

The decision of the Second Circuit in Portalatin confirms that the constitutionality of the PFO statute as we have interpreted it is beyond fair doubt. In Portalatin, the en banc court, by a vote of 9-3, vacated the previous opinion of a three judge panel (Besser v Walsh, 601 F3d 163 [2d Cir 2010]) and denied the habeas corpus petitions of three New York prisoners who claimed that their sentences under the PFO statute violated Apprendi. For present purposes, what I find most significant in Portalatin is that all 12 judges agreed on the facial constitutionality of the statute. While Besser, the panel opinion, can be read as holding the PFO statute unconstitutional on its face, the Portalatin dissenters (including two of the three judges who decided Besser) conceded that any such holding would be incorrect. Judge Winter said: “my colleagues have successfully defended the PFO statute against a facial attack by showing that the predicate felonies may alone justify a Class A-I sentence” (624 F3d at 100 [dissenting op]).

The Portalatin dissenters disagreed with the majority only as to whether the statute had been unconstitutionally applied to the cases before them (see id. at 95).

In short, Rosen and later cases interpret the PFO statute in a way that eliminates any serious question about its constitutionality under Apprendi. Whether we were correct as a matter of New York law to adopt that interpretation is a different, and fairly debatable, question. Certainly, in choosing that interpretation, we were influenced, as we should be, by a desire to save the constitutionality of the statute (see McKinney’s Cons Laws of NY, Book 1, Statutes § 150; Tauza v Susquehanna Coal Co., 220 NY 259, 267 [1917, Cardozo, J.] [“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score” (quoting United States v Jin Fuey Moy, 241 US 394, 401 [1916])]). I think we were right.

It is possible, however, to argue that we went too far, and did not merely interpret the statute but rewrote it in order to save it (see Shechtman, Is Persistent Felony Offender Statute Constitutional?, NYLJ, Jan. 4, 2011). Essentially this argument has been ably made by three dissenting Judges in two of our prior cases (see Rivera, 5 NY3d at 71-76 [Kaye, Ch. J., dissenting]; id. at 76-83 [Ciparick, J., dissenting]; Battles, 16 NY3d at 59-68 [Lippman, Ch. J., dissenting]), and it is ably made again by Judge Abdus-Salaam today. But I respectfully suggest that, at this late date, the question should be considered settled.

Abdus-Salaam, J.

(concurring in People v Hawkins, concurring in part and dissenting in part in People v Giles). As the Court correctly disposes of defendants’ post-verdict motions in these cases, I concur with its memorandum decision in full in People v Hawkins and in part in People v Giles. In Giles, I dissent from the Court’s decision to uphold defendant’s sentence because the trial court made additional fact-findings essential to elevate defendant’s punishment beyond the maximum authorized by the jury’s verdict, in violation of the United States Supreme Court’s Apprendi line of cases (see Apprendi v New Jersey, 530 US 466, 490 [2000]).

Under the familiar Apprendi rule, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt” (United States v Booker, 543 US 220, 244 [2005]; see Apprendi, 530 US at 490). Therefore, where a sentencing statute places a defendant in an entirely different sentencing range based on certain facts, those facts, other than the existence of a prior conviction, must be found by the jury rather than the judge (see Cunningham v California, 549 US 270, 275 [2007]; Booker, 543 US at 234-244). But once the jury has found the facts that place the defendant within a particular statutory sentencing range, the court may exercise its traditional discretion to fashion a particular sentence within the range based on a variety of factual considerations related to the defendant’s background and crimes (see Southern Union Co. v United States, 567 US —, —, 132 S Ct 2344, 2353 [2012]; Cunningham, 549 US at 288-293).

Under Penal Law § 70.10 and CPL 400.20, a court must make two findings of fact before it can impose a sentence within the heightened range specified for persistent felony offenders. First, the court must find, pursuant to the procedures laid out in CPL 400.20, that the defendant “is a persistent felony offender” because he or she “stands convicted of a felony after having previously been convicted of two or more felonies” (Penal Law § 70.10 [1] [a]; see Penal Law § 70.10 [2]; CPL 400.20 [1]). “[A]nd,” second, the court must be “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest” (Penal Law § 70.10 [2]; see CPL 400.20 [1]). To reach the essential and self-evidently fact-driven “opinion,” the court “must then make such findings of fact as it deems relevant to the question of whether a persistent felony offender sentence is warranted” (CPL 400.20 [9]). The People need only prove the existence of the aggravating background and circumstances factors by a preponderance of the evidence (see CPL 400.20 [5]).

This recitation of the statutory terms suffices to show that the relevant statutes violate the Apprendi rule. Although the first essential finding of the existence of the defendant’s prior convictions is not subject to Apprendi’s prohibition (see Booker, 543 US at 244; Almendarez-Torres v United States, 523 US 224, 239-247 [1998]), Apprendi and its progeny bar the sentencing judge from making the second requisite finding that the defendant’s character, history and criminal conduct warrant enhanced sentencing. Because neither a jury verdict nor a guilty plea encompasses the second fact-finding that is a prerequisite to punishment under an elevated statutory sentencing range, the persistent felony offender sentencing statutes improperly require a judge, as opposed to a jury, to find additional facts essential to the defendant’s punishment beyond the maximum authorized by a guilty verdict or plea. On its face, then, the persistent felony offender sentencing scheme violates the Apprendi rule, and those who, like defendant Giles, are sentenced under that scheme are entitled to vacatur of their sentences.

I acknowledge that we have consistently rejected Apprendi challenges to the statutes at issue, basically reasoning that the statutes do not make a judicial fact-finding about the defendant’s character and background a prerequisite for enhanced sentencing but rather entail a mere exercise of traditional judicial discretion to place the defendant within a single broad sentencing range authorized solely by his or her prior felonies (see People v Rivera, 5 NY3d 61, 69 [2005]; People v Rosen, 96 NY2d 329, 334-336 [2001]). But as explained in detail by the partial dissent in People v Battles (16 NY3d 54 [2010]), that interpretation of the New York sentencing regime is no more able to shield it from constitutional challenge than was the California courts’ dubious interpretation of the sentencing scheme invalidated by the Supreme Court in California v Cunningham (see Battles, 16 NY3d at 62-68 [Lippman, Ch. J., dissenting in part]).

Indeed, that is so because the rationale for our prior decisions in this area largely proceeds from a flawed assumption clearly rejected by the Supreme Court in Cunningham. Under that assumption, the sentencing court supposedly does not unlawfully increase the defendant’s maximum punishment by selecting a heightened sentencing range based on facts other than the existence of the defendant’s prior and current convictions instead of choosing a sentencing range based solely on the aforementioned convictions. In either case, the argument goes, the court is really just making a discretionary choice of where to sentence the defendant within a single expanded range encompassing both the range authorized by the convictions and the one authorized by the additional facts (see id.; see also Cunningham, 549 US at 289-293). As the Supreme Court and the Battles dissent observed, this theory does not withstand close scrutiny because the relevant statutory maximum authorized by the jury’s verdict and the defendant’s convictions remains distinct from the one authorized by the supposedly discretionary judicial fact-findings, and “broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of [the Supreme Court’s] decisions” (Cunningham, 549 US at 290; see Battles, 16 NY3d at 66-68).

Aside from relying on the discredited rationale espoused in People v Rosen and People v Rivera, we maintained in People v Quinones (12 NY3d 116 [2009]) that

“[u]nlike the sentencing schemes in Apprendi, Ring, Blakely, Booker and Cunningham, all of which effectively provided for judicial fact-finding of an elements) of an offense as a prerequisite to enhancing a sentence beyond the relevant sentencing range, the New York sentencing scheme, after a defendant is deemed eligible to be sentenced as a persistent felony offender, requires that the sentencing court make a qualitative judgment about, among other things, the defendant’s criminal history and the circumstances surrounding a particular offense in order to determine whether an enhanced sentence, under the statutorily prescribed sentencing range, is warranted.” (Quinones, 12 NY3d at 130 [additional emphasis added].)

But whatever the merit of this elements-related rationale at the time we decided Quinones and, later, Battles, the Supreme Court has recently rejected it and emphasized that a jury, rather than a judge, must find any fact necessary to increase the defendant’s punishment beyond the maximum authorized by a jury verdict or guilty plea, whether or not the fact in question is deemed an essential element of the relevant offense (see Southern Union Co., 567 US at —, 132 S Ct at 2356). Specifically, in Southern Union Co. v United States, the Court rebuffed the government’s argument that Apprendi barred only a judicial finding of separate wrongful acts deserving of punishment and not findings of facts that merely quantify the harm caused by the offense found by the jury, as the Court concluded that there is no “constitutionally significant difference between a fact that is an ‘element’ of the offense and one that is a ‘sentencing factor’ ” (567 US at —, 132 S Ct at 2356). Thus, taken together, Cunningham and Southern Union have demolished the two central pillars of our decisions in Battles and its predecessors.

As federal law has evolved, our Apprendi precedents have devolved into hollow and discredited words supporting a clearly unconstitutional sentencing framework. Therefore, in People v Giles, I would annul the relevant Penal Law and CPL provisions requiring the sentencing court to make fact-findings about defendant’s history, his character and the nature of his criminal conduct, vacate defendant’s sentence and remit to Supreme Court for resentencing.

Pigott, J.

(dissenting). After a bench trial, defendant Hawkins was found guilty of 10 counts each of sexual abuse in the second degree and sexual abuse in the third degree and one count of endangering the welfare of a child. Prior to being sentenced, defendant moved to set aside his verdict on the ground that he was denied the right to a public trial. His motion was supported by affirmations of two attorneys, who averred that they had attempted to enter the courtroom during the proceedings but observed a “Do not enter” sign posted on the courtroom door, and thus could not enter. One of the attorneys further alleged that he had been stopped by a court officer and told not to enter the courtroom. The People opposed the motion by way of an attorney affirmation, arguing that the courtroom was always open, and, alternatively, sought a hearing on the matter.

Criminal Court granted the motion, finding that it was “clear that [the Do not enter] sign was posted.” It noted that “[s]igns of this nature are routinely posted by court staff, and there is nothing to suggest otherwise. While the sign was not viewed by [the] court prior to being posted, and the language excluding observers was not dictated, authorized, or approved by this court, it ultimately falls upon the court to accept responsibility.” The court held that it was constrained to grant the motion to set aside the verdict and ordered a new trial for defendant.

The Appellate Term, with one Justice dissenting, reversed, on the law, and reinstated the verdict (36 Misc 3d 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The court held that defendant’s CPL 330.30 (1) motion should have been denied by Criminal Court because it “was procedurally defective as it was based on a ground which did not appear in the record” (id. at 55). The Appellate Term noted that Criminal Court “did not treat the motion as a ‘de facto CPL 440.10 motion’ ” (id.). The court stated that defendant “should have waited until after sentencing before making an appropriate CPL 440.10 motion, in which matters may be raised which do not appear in the record” (id. at 56). The court continued: “Even if the motion had been treated as a ‘de facto CPL 440.10 motion’ it is not properly before this court, since defendant did not seek leave to appeal from the denial of the motion” (id.). Thus, the court did not reach the merits of defendant’s motion (id.).

Justice Weston dissented. She agreed with the majority that, since defendant’s motion was based on matters outside the record, it was not proper for the court to set aside the verdict pursuant to CPL 330.30 (1) (id.). Nevertheless, in the interest of judicial economy, she would have treated the motion as one to vacate the conviction pursuant to CPL 440.10 and granted leave to appeal from the order denying the motion (id.). I agree with Justice Weston.

Under CPL 330.30 (1), a defendant may move to set aside the verdict on any ground that appears “in the record” that would require a reversal or modification on appeal as a matter of law. Under the statute, the motion may be made “[a]t any time after rendition of a verdict of guilty [but] before sentence” (CPL 330.30). I agree with the majority that because defendant’s claim concerns a nonrecord matter, CPL 330.30 (1) review is not authorized (see majority mem at 1068).

Nonrecord matters are brought by way of a CPL 440.10 motion, which under that statute is permissible after sentencing. There is no clear statutory remedy that provides for an attack on a judgment of conviction based on nonrecord matters after verdict but prior to sentencing. Several courts have remedied this “gap” by considering a defendant’s CPL 330.30 (1) motion as one made under CPL 440.10 (a “de facto CPL 440.10 motion”) “where fairness and judicial economy are not sacrificed” (People v Toland, 2 AD3d 1053, 1055-1056 [3d Dept 2003]; see People v Thompson, 177 Misc 2d 803, 809 [Sup Ct, Kings County 1998]; see also People v Wolf, 98 NY2d 105, 119 [2002] [agreeing with the Appellate Division that defendant’s application was “at best, a de facto CPL 440.10 motion”]).

In my view, the trial court did just that in this case, although it did not expressly say so. Defendant brought to the court’s attention a significant issue: defendant’s right to a public trial had been violated. While a motion pursuant to CPL 440.10 would appear to be premature, the court stated that it had sufficient knowledge to decide the matter immediately. To conclude that the court could not consider the issue at that juncture, thus requiring defendant to wait to be sentenced and then raise the same issue in a post-sentence 440.10 motion, defies the concept of judicial fairness and economy.

The Appellate Term was also incorrect in suggesting that defendant’s appeal was not properly before it from a CPL 440.10 motion because defendant did not seek leave to appeal. Defendant prevailed at the trial level and, therefore, it would have been the People who would have appealed.

For these reasons, I dissent.

Judges Read, Smith, Pigott and Rivera concur; Judge Smith in a separate concurring opinion in which Judges Read and Pigott concur; Judge Abdus-Salaam dissents in part in an opinion in which Chief Judge Lippman concurs.

In People v Giles: Order affirmed, in a memorandum.

Chief Judge Lippman and Judges Read, Smith, Rivera and Abdus-Salaam concur; Judge Smith concurring in a separate opinion; Judge Pigott dissents in an opinion.

In People v Hawkins: Order affirmed, in a memorandum.

       Indeed, based on the majority’s decision today, defendant may now bring a 440.10 motion, some four years after verdict, and with an earlier decision from the trial court holding in his favor.


text:
    John Fayolle, Appellant, v East West Manhattan Portfolio L.P. et al., Respondents.
    Submitted November 3, 2014;
    decided December 18, 2014
   Motion, insofar as it seeks leave to appeal as against East West Manhattan Portfolio L.P, dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise denied.


text:
    Richard N. Golden, Respondent, v Bernadette M. Lynch, Appellant.
    Submitted November 10, 2014;
    decided December 18, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Elizabeth Francis Kerrigan, Individually and as Executrix of Thomas W. Connelly, Deceased, Appellant, v Metropolitan Life Insurance Company et al., Respondents.
    Submitted December 1, 2014;
    decided December 18, 2014
   Motion by United Policyholders for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York ex rel. Kester Sandy, Appellant, v Harold D. Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted November 24, 2014;
    decided December 18, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 909 (2014)].


text:
    In the Matter of the Claim of Norman Samuels, Appellant. New York City Transit Authority, Respondent; Commissioner of Labor, Respondent.
    Submitted November 3, 2014;
    decided December 18, 2014
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 24 NY3d 905 (2014)].


text:
    In the Matter of the Claim of Norman Samuels, Appellant. New York City Transit Authority, Respondent; Commissioner of Labor, Respondent.
    Submitted November 17, 2014;
    decided December 18, 2014
   Motion by Gary Minda for leave to file a brief amicus curiae on the motion for reargument of motion for leave to appeal herein granted and the brief is accepted as filed [see 24 NY3d 905 (2014)].


text:
    In the Matter of the Claim of Norman Samuels, Appellant. New York City Transit Authority, Respondent; Commissioner of Labor, Respondent.
    Submitted November 17, 2014;
    decided December 18, 2014
   Motion by Gary I. Boretsky for leave to file a brief amicus curiae on the motion for reargument of motion for leave to appeal herein granted and the brief is accepted as filed [see 24 NY3d 905 (2014)].


text:
    In the Matter of the Claim of Norman Samuels, Appellant. New York City Transit Authority, Respondent; Commissioner of Labor, Respondent.
    Submitted November 17, 2014;
    decided December 18, 2014
   Motion by Transport Workers Union Local 100 for leave to file a brief amicus curiae on the motion for reargument of motion for leave to appeal herein granted and the brief is accepted as filed [see 24 NY3d 905 (2014)].


text:
    Marta Alvarez, Appellant, v NYLL Management Ltd. et al., Respondents.
    Submitted December 22, 2014;
    decided January 8, 2015
   Motion by New York State Trial Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Paula Andrews, Respondent, v County of Rockland, Appellant.
    Submitted November 17, 2014;
    decided January 8, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of FFT Senior Communities, Inc., Respondent, v Town of Canandaigua et al., Appellants.
    Submitted November 10, 2014;
    decided January 8, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine a proceeding within the meaning of the Constitution.


text:
    Andrew J. Homar et al., Appellants, v American Home Mortgage Acceptance, Inc., et al., Respondents, et al., Defendant.
    Submitted November 17, 2014;
    decided January 8, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.