text:
    [999 NE2d 507, 977 NYS2d 144]
    The People of the State of New York, Respondent, v Carlos Santiago, Jr., Appellant.
    Argued September 10, 2013;
    decided October 15, 2013

      APPEARANCES OF COUNSEL

      Timothy P Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for appellant.

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by vacating the second felony offender adjudication and remitting to County Court for resentencing and, as so modified, affirmed.

On May 23, 2008, defendant Carlos Santiago, Jr. was convicted by a jury of two counts of first-degree sexual abuse (Penal Law § 130.65 [1]) and one count of second-degree unlawful imprisonment (Penal Law § 135.05). At the sentencing hearing held on June 30, 2008, the People requested that defendant be sentenced as a second felony offender because of his felony conviction in Pennsylvania in January of 1993 for third-degree murder (see Penal Law § 70.06 [1] [b] [i]; 18 Pa Cons Stat Ann § 2502 [c]). Pennsylvania law defines third-degree murder as all kinds of murder other than murder in the first degree and murder in the second degree (see 18 Pa Cons Stat Ann § 2502 [c]); and defines first-degree and second-degree murder, in turn, as “an intentional killing,” and a killing “committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony” (18 Pa Cons Stat Ann § 2502 [a], [b]).

Defense counsel objected first that there was no “nexus” between the Pennsylvania felony and the State of New York; second, that defendant was 15 at the time of the Pennsylvania conviction, and “[h]ad he been in New York, he would have been entitled, I believe, to a [youthful offender status], which, of course, he didn’t get in Pennsylvania.” The prosecutor responded simply that “a youthful offender adjudication [was] not mandatory, especially given the nature of the previous conviction.” Observing that the legislature has directed that prior foreign felony convictions are to be considered as predicate felonies for enhanced sentencing, County Court adjudicated defendant a second felony offender. The judge sentenced him to two consecutive prison terms of seven years for the sexual abuse convictions, and one prison term of one year for the unlawful imprisonment conviction, to be followed by 15 years of post-release supervision.

On appeal, defendant argued that the Pennsylvania conviction could not serve as a predicate felony conviction because he was 15 years old when convicted, and, by virtue of Penal Law § 30.00, a 15 year old cannot be prosecuted for second-degree manslaughter or any other New York offense encompassed by the Pennsylvania crime of third-degree murder. The Appellate Division concluded that “[i]nasmuch as defendant failed to contend before the sentencing court that the Pennsylvania conviction would not constitute a conviction in New York based on his age at the time of the crimes, he failed to preserve his contention for [appellate] review,” and declined to reach it in the interest of justice (96 AD3d 1495, 1497 [4th Dept 2012]). The Court did, however, modify the judgment as a matter of discretion and in the interest of justice by reversing one of defendant’s two sexual abuse convictions and, as so modified, affirmed. A Judge of this Court subsequently granted defendant leave to appeal (19 NY3d 1105 [2012]).

As an initial matter, we conclude that this case falls within the narrow exception to our preservation rule permitting appellate review when a sentence’s illegality is readily discernible from the trial record (see People v Nieves, 2 NY3d 310, 315-316 [2004]). In People v Samms (95 NY2d 52, 55-56 [2000]), we explicitly invoked this exception to review a challenge to an enhanced sentence. There, the defendant was sentenced for the felony serving as a predicate after he committed the crimes underlying the conviction for which he was sentenced as a second violent felony offender. As the statute plainly requires the opposite chronological sequence, the defendant’s enhanced sentence was unauthorized. Neither the defendant, the People, nor the trial court had noticed the problem, although the relevant dates were in the record and undisputed. Importantly, we remarked that in such a circumstance, there was no need to resort to outside facts, documentation or foreign statutes, and thus the record was sufficient for the exception to apply. Likewise here, there was no question as to defendant’s date of birth and the date of his conviction for the Pennsylvania crime, both of which appeared in the presentencing report reviewed by both parties and County Court. And at the sentencing hearing defense counsel called attention to the fact that defendant was 15 years old when he was convicted in Pennsylvania. Accordingly, defendant’s claim fits within the exception to preservation described in Nieves and Samms.

Penal Law § 30.00 (1) specifies that a person must be at least 16 years old to be criminally responsible for his conduct. Penal Law § 30.00 (2) lists crimes that are exceptions to this age requirement, but second-degree manslaughter is not among them. So assuming as we must for purposes of this appeal that third-degree murder in Pennsylvania is equivalent to second-degree manslaughter in New York, defendant’s Pennsylvania conviction was not a predicate felony conviction within the meaning of Penal Law § 70.06 (1) (b) (i) because he could not even have been prosecuted for second-degree manslaughter in New York at the age of 15.

The key feature, for purposes of sentence enhancement, is the infancy statute’s categorical nature. For those offenses that do not appear in Penal Law § 30.00’s list of exceptions, neither the trial court nor the People have discretion to prosecute an infant defendant; it is simply impermissible. This distinguishes infancy from affirmative defenses such as insanity, duress or self-defense in which the defendant must make a showing, as well as youthful offender status where the trial court must make a discretionary determination about a defendant’s status at adjudication (see CPL 720.10 [3]). In short, a prior foreign prosecution of an infant defendant runs afoul of the sentencing enhancement statute’s requirement that the prior conviction must be for “an offense for which a sentence to a term of imprisonment in excess of one year . . . was authorized and is authorized in this state” (Penal Law § 70.06 [1] [b] [i]).

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

Order modified by vacating the second felony offender adjudication and remitting to Monroe County Court for resentencing and, as so modified, affirmed, in a memorandum.

       The parties agree that the statutory elements of Pennsylvania’s crime of third-degree murder are equivalent to those of the New York felony offense of second-degree manslaughter (see People v Gonzalez, 61 NY2d 586, 589 [1984] [describing the method for determining whether a prior out-of-state conviction is a predicate felony conviction within the meaning of New York’s sentencing statutes]). Accordingly, we assume this to be the case for purposes of this appeal, and express no opinion as to whether, in fact, the elements of Pennsylvania’s crime of third-degree murder match those of the New York felony of second-degree manslaughter.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    [998 NE2d 801, 976 NYS2d 1]
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Argued September 12, 2013;
    decided October 15, 2013
    APPEARANCES OF COUNSEL

      Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for appellant.

      Burke, Gordon & Conway, White Plains (Ashley E. Sproat of counsel), for Bisnath Bissessar and another, respondents.

      Mauro Lilling Naparty LLP, Woodbury (Matthew W. Naparty and Timothy J. O’Shaughnessy of counsel), for Grand Style Transportation Enterprises Inc. and another, respondents.

      Michael Jaffe, New York City, for New York State Trial Lawyers Association, amicus curiae.

      McGaw, Alventosa & Zajac, Jericho (Andrew Zajac, Dawn C. DeSimone, Seamus G. Flaherty and Jonathan T. Uejio of counsel), and James M. Begley, New York City, for Defense Association of New York, Inc., amicus curiae.

      Marc D. Craw, Albany, for New York Insurance Association, Inc., amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint reinstated.

The record raises a triable issue of fact as to whether plaintiff has offered “some reasonable explanation” for the cessation of physical therapy treatment for his injury (Pommells v Perez, 4 NY3d 566, 574 [2005]). Plaintiff was asked at his deposition when he was last treated, and he replied that “they cut me off like five months.” The Appellate Division held that a “bare assertion that insurance coverage for medically required treatment was exhausted is unavailing without any documentary evidence of such or, at least, an indication as to whether an injured claimant can afford to pay for the treatment out of his or her own funds” (94 AD3d 484, 485 [2012]).

We stated in Pommells that a plaintiff claiming “serious injury” within the meaning of the No-Fault Law “must offer some reasonable explanation” for terminating treatment (4 NY3d at 574). We did not require any particular proof regarding that explanation, although we recognized that there is “abuse of the No-Fault Law in failing to separate ‘serious injury’ cases, which may proceed to court, from the mountains of other auto accident claims, which may not” (Pommells, 4 NY3d at 571; see Perl v Meher, 18 NY3d 208, 214 [2011]).

The Appellate Division’s requirement that plaintiff either offer documentary evidence to support his sworn statement that his no-fault benefits were cut off, or indicate that he could not afford to pay for his own treatment, is an unwarranted expansion of Pommells. Plaintiff testified at his deposition that “they” (which a reasonable juror could take to mean his no-fault insurer) cut him off, and that he did not have medical insurance at the time of the accident. While it would have been preferable for plaintiff to submit an affidavit in opposition to summary judgment explaining why the no-fault insurer terminated his benefits and that he did not have medical insurance to pay for further treatment, plaintiff has come forward with the bare minimum required to raise an issue regarding “some reasonable explanation” for the cessation of physical therapy. Additionally, the “qualitative assessment of . . . plaintiffs condition” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350-351 [2002]) rendered by the physician who performed arthroscopic surgery on plaintiffs knee was that plaintiffs meniscal tear injury was causally related to the car accident, and that the meniscus has permanently lost its stability with onset of scar tissue, instability, loss of range of motion, and pain, which plaintiff will have for the rest of his life.

On this record, summary judgment should not have been granted.

Smith, J.

(dissenting). “[T]he legislative intent underlying the No-Fault Law was to weed out frivolous claims and limit recovery to significant injuries” (Dufel v Green, 84 NY2d 795, 798 [1995]). Since the statute was enacted, false claims of “serious injury” have done much to undermine the legislative goal. A number of courts, including ours, have pointed out that the no-fault system is riddled with abuse (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861 [2003] [“Between 1992 and 2001, reports of suspected automobile insurance fraud increased by 275%, the bulk of the increase occurring in no-fault insurance fraud”]; Pommells v Perez, 4 NY3d 566, 571 [2005] [“Abuse . . . abounds”]; Perl v Meher, 18 NY3d 208, 214 [2011] [“No-fault abuse still abounds today”]; Fair Price Med. Supply Corp. v Travelers Indent. Co., 9 Misc 3d 76, 78 [App Term, 2d Dept. 2d & 11th Jud Dists 2005] [“the steep increase in fraudulent no-fault benefits claims”], affd 42 AD3d 277 [2d Dept 2007], affd 10 NY3d 556 [2008]; id., 9 Misc 3d at 83 [Golia, J., dissenting] [“fraudulent claims are an ever increasing issue”]; Metroscan Imaging PC. v GEICO Ins. Co., 8 Misc 3d 829, 831-832 [Civ Ct, Queens County 2005] [“unfortunately well documented . . . deluge of fraudulent claims”]).

In an attempt to keep this problem under some sort of control, we have been less indulgent in the no-fault area than in many others in assessing the quality of proof needed to defeat a summary judgment motion where, as here, defendants have made a prima facie showing that a claim lacks merit. Thus, a plaintiffs own description of his or her symptoms is not enough; “we have required objective proof of a plaintiffs injury” (Toure v Avis Rent A Car Sys., 98 NY2d 345, 350 [2002]). Indeed, even a doctor’s opinion is not enough unless it is supported “by an objective basis” (id. at 351). We have approved of the approach of courts who treat serious injury claims with “skepticism,” and have said that “failure to grant summary judgment . . . where the evidence justifies dismissal, burdens court dockets and impedes the resolution of legitimate claims” (Pommells, 4 NY3d at 571-572).

It is true that even the most demanding approach cannot assure the summary dismissal of every baseless claim. If plaintiffs and their witnesses are willing to say under oath whatever they have to say to get past summary judgment, they will succeed in doing so, and then “the role of skeptic is properly reserved for the finder of fact, or for a court that . . . has factual review power” (Perl, 18 NY3d at 215). But we nevertheless can and should enforce stringent standards, to assure at least that the summary judgment threshold is not too easy to overcome.

In Pommells, we adopted a rule designed to make unjustifiable recoveries more difficult in so-called “gap in treatment” cases. The rule is that “a plaintiff who terminates therapeutic measures following the accident, while claiming ‘serious injury,’ must offer some reasonable explanation for having done so” (4 NY3d at 574). Today the majority dilutes this rule, finding that plaintiffs ambiguous and self-serving statement at his deposition—“they cut me off like five months”—is a sufficient “reasonable explanation.” We should demand more than this.

If there is indeed a reasonable explanation for plaintiffs cessation of physical therapy, he should have had no trouble in offering much better proof of it. He could have submitted an affidavit in opposition to summary judgment, identifying his no-fault carrier, attaching a copy of the written communication, or describing the oral one, in which the carrier cut him off, and saying what, if any, reason the carrier gave. For all that appears in this record, the carrier might have refused to continue paying for therapy because it did not think plaintiff had an injury serious enough to justify it. Plaintiff could also have said in an affidavit, if he could truthfully do so, that he did not have other insurance or other resources that would cover the cost of treatment.

In declining to impose these simple requirements—all of which a plaintiff with a real explanation for a gap in treatment should find easy to meet—the majority lowers the barriers that courts have erected against baseless no-fault claims. I therefore dissent.

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

Order reversed, with costs, and the complaint reinstated, in a memorandum.


text:
    ACA Financial Guaranty Corp., Appellant, v Goldman, Sachs & Co., Respondent, et al., Defendants.
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Inez Bielecki, Appellant, v Richard Bielecki, Respondent.
    Submitted August 12, 2013;
    decided October 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Theodore Bohn, Appellant, v 176 W. 87th St. Owners Corp. et al., Respondents, et al., Defendants. (And Other Actions.)
    Submitted July 15, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal as against Steinhardt Management, Inc., dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order affirming Supreme Court’s denial of appellant’s disqualification motion and affirming Supreme Court’s grant of nonparty respondent Robert Cantor’s motion to quash a subpoena, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Rivera taking no part.


text:
    In the Matter of Rickey Clark, Appellant, v Philip Heath, Respondent.
    Submitted August 5, 2013;
    decided October 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Lavar Davis, Appellant, v Albert Prack, as Acting Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted June 10, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division judgment, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument and reconsideration, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Sam Esposito, Appellant, v Raymond Kelly, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted August 19, 2013;
    decided October 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Shawn Khouri, Appellant, v William Lee, as Superintendent of Green Haven Correctional Facility, Respondent.
    Submitted August 5, 2013;
    decided October 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Edward Koehl, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted August 12, 2013;
    decided October 15, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Marcus CC., Appellant, v Erica BB., Respondent. (Proceeding No. 1.) In the Matter of Maria DD., Respondent, v Marcus CC., Appellant, et al., Respondent. (Proceeding No. 2.)
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    In the Matter of Suarna Mehulic, Appellant, v State Board for Professional Medical Conduct, Respondent.
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it is untimely (see CPLR 5513 [a]).


text:
    In the Matter of Kenneth Myers, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Emmanuel Patterson, Appellant, v Andrea W. Evans, Chairwoman, New York State Division of Parole, et al., Respondents.
    Submitted August 19, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v James R. Pine, Appellant.
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Josefina Phillips, Appellant, v City of New York, Respondent.
    Submitted August 12, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s dismissal of the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining part of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Ruth Marie Pollack, Appellant, v Matthew G. Kiernan, Clerk of the Court, et al., Respondents.
    Submitted June 17, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal from the April 2013 Appellate Division order dismissing the proceeding, denied; motion, insofar as it seeks leave to appeal from the remaining five orders, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602). Motion for ancillary relief dismissed as academic.

Chief Judge Lippman and Judge Abdus-Salaam taking no part.


text:
    In the Matter of Victor Sowell, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided October 15, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Constantine Spathis, Respondent, v Alina Dulimof-Spathis, Appellant.
    Submitted July 15, 2013;
    decided October 15, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the April 2012 Supreme Court order, dismissed upon the ground that such portion of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Charles Watson, Appellant, v New York State Department of Corrections and Community Supervision, Respondent.
    Submitted August 26, 2013;
    decided October 15, 2013
   Motion for leave to appeal dismissed upon the ground that the order appealed from does not finally determine the action/ proceeding within the meaning of the Constitution.


text:
    [999 NE2d 1144, 977 NYS2d 699]
    Ayodele Sandiford, Respondent, v City of New York Department of Education et al., Appellants, et al., Defendants.
    Argued September 10, 2013;
    decided October 17, 2013

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Susan Greenberg, Mordecai Newman, Leonard Koerner and Larry A. Sonnenshein of counsel), for appellants.

      Meenan & Associates, LLC, New York City (Colleen M. Meenan and Shelley-Ann Quilty of counsel), for respondent.

      Ritz Clark & Ben-Asher LLP, New York City (Miriam F. Clark of counsel), for National Employment Lawyers Association/New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

Plaintiff has introduced evidence sufficient to withstand defendants’ motion for summary judgment dismissing her discrimination and retaliation claims under provisions of the New York City and New York State Human Rights Laws (Administrative Code of City of NY §§ 8-101, 8-107 [1], [7], [13] [a], [b]; Executive Law § 296 [1] [a], [e]) arising out of her termination for misconduct as a school aide by the principal of PS 181 in Brooklyn.

Triable issues of fact exist as to whether the principal’s stated reason for terminating plaintiff was “merely a pretext for discrimination” (see Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]), and whether, absent a discriminatory motive, the referral of plaintiff to the Office of Special Investigations and the principal’s subsequent decision to terminate plaintiff would have occurred (see Michaelis v State of New York, 258 AD2d 693, 694 [3d Dept 1999], lv denied 93 NY2d 806 [1999]; Raskin v Wyatt Co., 125 F3d 55, 60 [2d Cir 1997]). Defendants are of course correct that evidence only that the principal made stray discriminatory comments without any basis for inferring a connection to the termination would be insufficient to defeat defendants’ motion (see Forrest, 3 NY3d at 308 [comments made years before the plaintiff’s termination failed to raise a triable issue of fact in light of the clear evidence of plaintiffs misconduct]). But that is not the case here. Plaintiff has offered evidence of, among other things: defendant principal’s repeated homophobic remarks directed at plaintiff; his decision to report to the Department of Education (DOE) allegations that plaintiff had engaged in misconduct while working at an after-school program that he did not supervise; his close relationship with the alleged victims of the misconduct; his independent decision to terminate plaintiffs employment; and the after-school program supervisor’s opinion that plaintiff had not engaged in any misconduct worthy of reporting to the DOE. This is sufficient to deny defendants’ motion for summary dismissal.

There are triable issues of fact also with respect to assertions that the principal retaliated against plaintiff for complaining to the DOE about his treatment of her (see Forrest, 3 NY3d at 312-313).

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

Order affirmed, with costs, and certified question answered in the affirmative, in a memorandum.

      . Plaintiff grieved her termination under her union’s collective bargaining agreement. In a grievance decision dated over one year after her termination, the Chancellor of the Department of Education ordered her reinstated with back pay less two weeks and a letter to her file warning her not to engage in misconduct.

      . Because there are triable issues of fact as to plaintiffs discrimination claim under the State Human Rights Law, to which the McDonnell Douglas Corp. v Green burden shifting framework applies (411 US 792, 802-804 [1973]), it is unnecessary to address whether the Local Civil Rights Restoration Act of 2005 modified that framework and eased a plaintiffs burden in the context of a New York City Human Rights Law discrimination claim (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34-44 [1st Dept 2011], lv denied 18 NY3d 811 [2012]; and see Furfero v St. John’s Univ., 94 AD3d 695, 697 [2d Dept 2012]).


text:
    [999 NE2d 1148, 977 NYS2d 703]
    The People of the State of New York, Respondent, v Reyes Rodriguez, Appellant.
    Argued September 12, 2013;
    decided October 17, 2013
    APPEARANCES OF COUNSEL

      Law Office of Arnold J. Levine, New York City (Arnold J. Levine of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, and the indictment dismissed.

Defendant was convicted on one count of robbery in the first degree and two counts of conspiracy. The principal witnesses against him were accomplices, and their testimony required corroboration under CPL 60.22. The People introduced corroborative evidence that would have been sufficient under People v Reome (15 NY3d 188 [2010]). However, at the trial of the case (which took place before the Reome decision), the jury was instructed, without objection from the People, that “the corroborative evidence must be truly independent of and may not draw its weight and probative value from the accomplice’s testimony.” The People thus accepted the more demanding test for corroborative evidence set forth in People v Hudson (51 NY2d 233 [1980]) (see People v Malagon, 50 NY2d 954, 956 [1980]; People v Bell, 48 NY2d 913, 915 [1979]). Reome overruled Hudson, but that does not help the People here.

Under the Hudson standard, the corroborating evidence was insufficient. The evidence that was “independent” of the accomplice testimony in the Hudson sense proved, at most, that defendant had driven a minivan that was the same color as a car that was used to commit some of the crimes charged. This by itself did not tend “to connect the defendant with the commission” of the crimes (CPL 60.22 [1]).

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

Order reversed and indictment dismissed, in a memorandum.


text:
    [999 NE2d 535, 977 NYS2d 172]
    The People of the State of New York, Respondent, v Donny P. Beaty, Appellant.
    Argued September 4, 2013;
    decided October 17, 2013

      APPEARANCES OF COUNSEL

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

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following a jury trial, defendant was convicted of, among other crimes, rape in the first degree (Penal Law § 130.35 [1]) and burglary in the first degree (Penal Law § 140.30 [2]), arising from an incident that occurred on March 10, 2007. On that date, the victim returned home from a night out, charged her cell phone, and fell asleep on her couch. Three hours later, she was awoken by someone saying “shhhh” in her ear. The victim sat up and observed a man—later identified as defendant—lying on the couch beside her. The victim smelled alcohol on his breath. She screamed at him to leave. Defendant began choking her and a struggle ensued. They fell to the floor and defendant raped her. He then threw a blanket over the victim’s head and fled. The victim looked for her cell phone so she could call the police, but it was missing.

The victim then ran to her parents’ house and her mother called the police. An officer responding to the victim’s apartment observed two vertical cuts in the porch screen approximately eight inches apart, along with “smudges” consistent with someone having placed their hands against the window. The victim underwent a sexual assault examination later that morning.

Ten days later, an investigator, while questioning defendant about an earlier home invasion that had occurred on the same street, asked defendant about the rape. The investigator eventually obtained a warrant to search defendant’s apartment, and recovered from a drop-ceiling tile in defendant’s bedroom a cell phone that the victim identified as hers.

After having been shown the cell phone, defendant gave investigators a written, signed statement. In the statement, he claimed that

“[f|or the last two years, I’ve realized that I have a problem with alcohol. If I drink too much, I am taken over by a spirit that takes control of my body and my thoughts. It’s something that I can’t control. It only happens when I drink alcohol. I don’t remember the exact night, but one night earlier this month I was out drinking all over. I remember going to Lux bar on South Avenue and other places. I got drunk. The next thing I remember is knocking on the front window of the house across the street from my house.”

Defendant did not admit to raping the victim, but, instead, stated that he entered the house through a window and fell asleep on the couch, only to be awoken by a woman screaming at him, prompting him to flee. That morning, he found a cell phone in his clothing but could not remember how he had come to possess it, and he hid it in the ceiling.

The trial court denied defendant’s request for an intoxication charge. The jury convicted defendant as charged. The Appellate Division affirmed, holding, as relevant to this appeal, that because the only record evidence of defendant’s intoxication was his self-serving statements and the victim’s testimony that she smelled alcohol on defendant’s breath, he failed to establish his entitlement to an intoxication charge (89 AD3d 1414, 1417 [4th Dept 2011]). A Judge of this Court granted defendant leave to appeal.

Although intoxication is not a defense to a criminal offense, a defendant may offer evidence of intoxication whenever relevant to negate an element of the charged crime (see Penal Law § 15.25). An intoxication charge should be issued when, viewing the evidence in a light most favorable to defendant (see People v Farnsworth, 65 NY2d 734, 735 [1985]), “there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to [an] element ... on that basis” (People v Perry, 61 NY2d 849, 850 [1984]). In order to meet this “relatively low threshold,” defendant must present evidence

“tending to corroborate his claim of intoxication, such as the number of drinks, the period of time during which they were consumed, the lapse of time between consumption and the event at issue, whether he consumed alcohol on an empty stomach, whether his drinks were high in alcoholic content, and the specific impact of the alcohol upon his behavior or mental state” (People v Gaines, 83 NY2d 925, 927 [1994]).

Here, the evidence was insufficient to allow a reasonable juror to harbor a doubt concerning the element of intent on the basis of intoxication. Defendant’s bare assertions concerning his intoxication were, by themselves, insufficient (see People v Sirico, 17 NY3d 744, 745 [2011]). Nor did his statement to police and the victim’s testimony that she smelled alcohol on his breath corroborate defendant’s claim. While he may, indeed, have consumed alcohol prior to the events leading up to the crimes alleged, the evidence established that defendant’s conduct was purposeful. He cut a hole in a screen to gain entry, instructed the victim to be quiet, threw a blanket over her head, and stole her cell phone so she could not call the police. Given this evidence, the court correctly ruled an intoxication charge was not warranted.

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

Order affirmed, in a memorandum.


text:
    [999 NE2d 1146, 977 NYS2d 701]
    The People of the State of New York, Respondent, v Robert Kordish, Appellant.
    Decided October 17, 2013
    APPEARANCES OF COUNSEL

      Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Diane V. Bruns of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings in accordance with this memorandum.

Where, as in New York, a state provides for an appeal as of right from a criminal conviction, the United States Constitution compels the state to provide an indigent defendant with an attorney to represent the defendant on appeal (see Evitts v Lucey, 469 US 387, 393-394 [1985]; Douglas v California, 372 US 353, 356-357 [1963]). Furthermore, where “an indigent defendant seeks appellate review that (1) involves some consideration of the ‘merits,’ and (2) involves claims that have not yet ‘been presented by [appellate counsel] and passed upon by an appellate court,’ ” thereby rendering the defendant ill equipped to represent himself, the appellate court must assign counsel to the defendant at state expense (Taveras v Smith, 463 F3d 141, 147, 150-152 [2d Cir 2006], quoting Douglas, 372 US at 356; see also Halbert v Michigan, 545 US 605, 611-617 [2005]). As recognized by the Second Circuit in Taveras (supra) under New York law, whether the indigent defendant’s first-tier appeal should be dismissed as a matter of discretion on grounds of fugitive disentitlement constitutes a “threshold issue to be decided in the disposition of a former fugitive’s first-tier appeal as of right,” and thus the Appellate Division cannot exercise its discretion to dismiss the appeal without providing the defendant with a lawyer (463 F3d at 150-151 [internal quotation marks omitted]).

In this case, the Appellate Division erroneously failed to assign counsel to represent defendant before dismissing his first-tier appeal as of right based on his failure to timely perfect it. Notwithstanding the Appellate Division’s rule mandating automatic dismissal of an untimely perfected appeal (see 22 NYCRR 670.8 [f]), its decision to dismiss the appeal here remained a discretionary determination on the merits of a threshold issue on defendant’s first-tier appeal, rather than an automatic bar to appeal (see CPL 460.70 [2] [c]; 470.60 [1]; People v Evans, 69 NY2d 997, 998-999 [1987], revg 132 Misc 2d 615 [Sullivan County Ct 1986]). And an appellate court had not yet passed on, nor had counsel presented, defendant’s appellate claims with respect to dismissal or any other matter, thus leaving defendant ill equipped to represent himself. Because the factors cited in Douglas, Halbert and Taveras are present in the instant case, the Appellate Division was required to assign defendant an attorney upon a showing of indigence in order to enable him to oppose the court’s motion to dismiss his first-tier appeal as of right, and the court’s failure to appoint counsel to represent defendant without considering his indigency or the merits of dismissal warrants reversal and reinstatement of defendant’s appeal. Upon remittal to the Appellate Division, that court should decide whether defendant is indigent pursuant to CPLR 1101. If defendant establishes his indigence, the court must assign counsel to litigate the dismissal motion, and the court should determine, in its discretion, whether dismissal is appropriate.

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 and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Federation of Defense and Corporate Counsel for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by New York State AFL-CIO 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. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by County of Suffolk for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by New York State Bar Association 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:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Workers’ Injury Law & Advocacy Group for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Real Estate Board of New York 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:
    Bayerische Landesbank, Plaintiff/Counterclaim Defendant-Respondent, v 45 John Street LLC, Defendants/ Counterclaim Plaintiffs-Appellants, et al., Defendants.
    Submitted August 26, 2013;
    decided October 17, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Deborah Burns et al., Appellants, v Carlos Carballada, in His Official Capacity as Commissioner of Neighborhood and Business Development of City of Rochester, et al., Respondents.
    Submitted September 9, 2013;
    decided October 17, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Marcia L. Caronia et al., Appellants, v Philip Morris USA, Inc., Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013

      See 715 F3d 417.
   Motion by Product Liability Advisory Council, Inc. for leave to file a brief amicus curiae on consideration of the certified questions 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:
    Marcia L. Caronia et al., Appellants, v Philip Morris USA, Inc., Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013

      See 715 F3d 417.
   Motion by American Chemistry Council et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Marcia L. Caronia et al., Appellants, v Philip Morris USA, Inc., Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013

      See 715 F3d 417.
   Motion by Business Council of New York State, Inc., et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Marcia L. Caronia et al., Appellants, v Philip Morris USA, Inc., Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013

      See 715 F3d 417.
   Motion by American Legacy Foundation et al. for leave to file a brief amici curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    In the Matter of Harold George et al., Appellants, v New York State Department of Corrections and Community Supervision, Respondent.
    Submitted August 26, 2013;
    decided October 17, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Donnell Jefferson, Appellant, v Joshua Stubbe, Respondent.
    Submitted August 19, 2013;
    decided October 17, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Herbert Kolbe et al., Appellants, v Christine J. Tibbetts, as Superintendent of Schools of Newfane Central School District, et al., Respondents.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Herbert Kolbe et al., Appellants, v Christine J. Tibbetts, as Superintendent of Schools of Newfane Central School District, et al., Respondents.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by New York State School Boards Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    In the Matter of Jose Lanfranco, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted September 3, 2013;
    decided October 17, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]). Motion for poor person relief dismissed as academic.


text:
    Deirdre Loy, Respondent, v Louis L. Loy, Appellant.
    Submitted September 9, 2013;
    decided October 17, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted September 9, 2013;
    decided October 17, 2013
   Motion by National Association of Hispanic Firefighters for leave to file a brief amicus curiae on the motion by defendants for leave to appeal herein granted and the brief is accepted as filed.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted September 9, 2013;
    decided October 17, 2013
   Motion by Lawyers’ Committee for Civil Rights Under Law, insofar as it seeks to file a brief amicus curiae on the motion by defendants for leave to appeal herein, granted and the proposed brief is accepted as filed; motion, insofar as it seeks leave for movant to appear amicus curiae on the appeal herein, denied as premature (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [3]).


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted September 16, 2013;
    decided October 17, 2013
   Motion by International Municipal Lawyers Association et al., insofar as it seeks to file a brief amici curiae on the motion by defendants for leave to appeal herein, granted and the proposed brief is accepted as filed; motion, insofar as it seeks leave for movants to appear amici curiae on the appeal herein, denied as premature (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [3]).


text:
    The People of the State of New York, Appellant, v Dwight R. DeLee, Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Lambda Legal Defense and Education Fund, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Anthony Oddone, Appellant.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Innocence Project, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Johnny Shorter, Appellant.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    Town of Oyster Bay, Appellant, v Lizza Industries, Inc., Respondent. (And Other Actions.)
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by DRI-The Voice of the Defense Bar for leave to file a brief amicus curiae on the appeals 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:
    William J. Jenack Estate Appraisers and Auctioneers, Inc., Appellant, v Albert Rabizadeh, Respondent.
    Submitted October 15, 2013;
    decided October 17, 2013
   Motion by Sotheby’s, Inc., 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.


author: Rivera, J.

text:
    [999 NE2d 1149, 977 NYS2d 704]
    The People of the State of New York, Respondent, v Jocelyn Clermont, Appellant.
    Argued September 11, 2013;
    decided October 22, 2013

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Allegra Glashausser of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Suzanne H. Sullivan and John M. Castellano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed. In the event defendant prevails on the suppression issue, the conviction should be vacated and the indictment dismissed; alternatively, if the People prevail, the judgment should be amended to reflect that result.

Defendant was charged with weapon possession offenses after he was found in possession of a gun as a consequence of a street encounter with the police. Three days before the suppression hearing, his assigned counsel made an application to be relieved as counsel, stating that his associate had quit, he was overwhelmed with work and could not competently represent defendant. Counsel restated these concerns on the record before the hearing commenced and the court stated that the motion would be granted after counsel completed the hearing. Thereafter, the hearing ensued, the court denied suppression, new counsel was appointed and the case proceeded to trial where defendant was convicted of criminal possession of a weapon in the second and third degrees.

On appeal, defendant sought reversal of his conviction based on the ineffective assistance of his first attorney. The Appellate Division affirmed the judgment in a divided decision (95 AD3d 1349 [2d Dept 2012]). The majority concluded that counsel’s representation had not fallen below the constitutional standard but the dissent disagreed, reasoning that multiple errors by the attorney in relation to defendant’s suppression application warranted remittal of the case to Supreme Court. The Appellate Division dissenter granted defendant leave to appeal to this Court (19 NY3d 1030 [2012]).

We agree with the dissent that defendant is entitled to relief. In his written motion requesting a hearing, counsel misstated the facts relating to the arrest, indicating that defendant had been involved in a motor vehicle stop rather than a street encounter with police. At the suppression hearing, the attorney did not marshal the facts for the court and made no legal argument. This, coupled with his failure to make appropriate argument in his motion papers or to submit a post-hearing memorandum, meant that the defense never supplied the hearing court with any legal rationale for granting suppression. Moreover, after the court issued a decision describing the sequence of events in a manner that differed significantly from the testimony of the police officer (the only witness at the hearing) and was adverse to the defense, defendant’s attorney made no motion to reargue or otherwise correct the court’s apparent factual error. Counsel never ascertained whether the court decided the motion based on the hearing proof or a misunderstanding of the officer’s uncontradicted testimony.

And this is not a case where any of these errors can be explained as part of a strategic design (assuming one could be imagined), given that defense counsel asked to be relieved, informing the court that he was unable to provide competent representation to defendant. Thus, although the attorney secured a hearing, his representation in relation to the application as a whole was deficient in so many respects—both before, during and after the proceeding—that defendant was not afforded meaningful representation at a critical stage of this prosecution.

The People contend that, even assuming counsel was deficient, the conviction should be affirmed because there is record support for the order denying suppression and defendant has failed to establish prejudice. We are unpersuaded. In this case it is not necessary for us to discuss the merits of the suppression issue to decide the ineffective assistance claim, other than to note that, on appeal, the parties have presented substantial arguments for and against suppression and the issue is close under our complex De Bour jurisprudence. The suppression motion could have been dispositive of the entire proceeding given that defendant was charged solely with weapon possession offenses stemming from his encounter with police and, had suppression been granted, the indictment would have been dismissed. In light of the litany of errors made by defense counsel, including the failure to offer legal argument concerning suppression or to attempt to correct the significant factual anomaly in the decision, our confidence in the fairness of the proceeding is substantially undermined. Relief is therefore appropriate under our meaningful representation standard, which does not invariably require a strict showing of prejudice (People v Stultz, 2 NY3d 277, 284 [2004]). We conditionally modify the judgment by remitting this matter to Supreme Court for further proceedings on the suppression application, to include legal argument by counsel for both parties and, if defendant so elects, reopening of the hearing.

Rivera, J.

(dissenting). I do not consider this issue “close under our complex De Bour jurisprudence” (majority mem at 934). Based on the record before us, the detective’s testimony makes clear that, as a matter of law, suppression is warranted. To say that Supreme Court could have concluded otherwise and found requisite reasonable suspicion is to say that Supreme Court could have committed reversible error by reaching a legal conclusion for which there is no record support. I would grant that branch of defendant’s motion to suppress physical evidence and dismiss the indictment. Accordingly, I dissent.

Defendant was arrested and charged with criminal possession of a weapon. Prior to defendant’s trial, counsel moved as part of an omnibus motion to suppress the weapon, a gun seized shortly after defendant’s arrest. However, in that branch of defendant’s omnibus motion that sought suppression of physical evidence, counsel recited a wholly different factual scenario from the events actually leading up to defendant’s arrest and the seizure of the gun. Counsel incorrectly stated that police officers approached defendant while he was seated in an automobile, and that after they forcibly removed him from the vehicle, a gun fell out onto the ground. This was a complete fiction. The correct facts were that the officers had observed defendant walking on the street, arrested him after a chase on foot, and seized the gun from a private yard near where he was arrested. Additionally, because counsel’s legal argument was based on these incorrect facts, he also failed to tailor the legal standards to the specifics of defendant’s case. Although counsel’s motion papers stated that he was “unaware of many of the relevant facts necessary to [his] preparation of the defense,” and requested permission to submit a post-hearing memorandum, “so that [he] might more effectively represent the interests of [defendant],” he never filed such memorandum.

Counsel thereafter sought to extricate himself from the case, apparently because he was unable to provide competent representation as a consequence of staffing issues in his office. Three days prior to the hearing on the suppression motion, defense counsel moved to be relieved from representing the defendant. He informed the court that due to his associate’s unexpected resignation, he had an overwhelming amount of work, much of which involved matters that conflicted with his state cases. He stated that he did not have “sufficient time and/or resources to competently represent” all of his clients.

Counsel renewed his motion to withdraw on the morning of the hearing, stating that his practice was predominately in immigration law, and that he was scheduled for another criminal trial that very same day. The court did not rule on the motion, but instead asked counsel if he could proceed with the “hearing today and get the case to a trial posture.” Counsel agreed to proceed, but informed the court that he would make his motion to be relieved at the end of the suppression hearing.

The People’s sole witness at the suppression hearing was the arresting detective, a 10-year veteran of the New York City Police Department, currently assigned to the Queens Gang Squad, where he had worked for approximately six years. He testified that on the night of defendant’s arrest, at about 9:15 p.m., he was driving an unmarked police car on a routine patrol of an area in Queens, known to the police as a “gang location.” The detective was on patrol with his partner when he observed defendant and another man walking down the street. He saw defendant make what the detective described as “constant adjustments to his right waistband area.” He then stopped the car, got out, displayed his shield and identified himself to the defendant. Defendant turned and ran away, and the detective ran after him down a driveway and through a backyard area. During the chase, the detective saw defendant take a gun from his waistband area and throw it to the ground. The detective caught defendant, arrested him and retrieved the gun from the yard where it had been tossed.

Upon cross-examination, defense counsel’s only questions regarding the events leading up to the officer’s foot chase of the defendant focused on why the officers were patrolling the neighborhood and whether defendant was alone. Counsel did not call any witnesses, did not make an opening or closing statement, and in response to the court’s inquiry as to whether he wished to be heard, counsel stated that he would rely on the record.

The court immediately issued an oral decision denying suppression of the gun, and informed counsel there would be a written decision forthcoming. The court then relieved defense counsel and asked him to appear at the next court date the following month, to transfer the case to new assigned counsel.

In its subsequent written order, the court made key incongruous statements and findings. The court’s findings of fact correctly stated that defendant threw the gun to the ground while he was running from the detective. However, in its conclusions of law, the court stated that the detective’s foot chase was justified because he had observed defendant throw the gun prior to the chase. This error was never corrected.

Defendant appeals from the Appellate Division order, and contends counsel’s failure to present an unassailable argument, challenging the lawfulness of the detective’s actions resulting in the foot chase and seizure of the gun, constitutes ineffective assistance of counsel. Defendant argues that because the police lacked reasonable suspicion to chase him, the gun would have been suppressed, and there would have been insufficient evidence to convict him of the sole charges of which he was found guilty, namely the weapons charges. I agree.

The right to the effective assistance of counsel is guaranteed by both the Federal and New York State Constitutions (see US Const 6th Amend; NY Const, art I, § 6). Under the Federal Constitution, a defendant is entitled to representation that satisfies “an objective standard of reasonableness” (Strickland v Washington, 466 US 668, 688 [1984]). Under Strickland, a defendant claiming ineffective assistance of counsel “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (id. at 694). Under our State’s Constitution, to prevail on the claim that he was denied effective assistance of counsel, defendant must demonstrate that his attorney failed to “provide meaningful representation . . . [and] must demonstrate the absence of strategic or other legitimate explanations for counsel’s allegedly deficient conduct” (People v Caban, 5 NY3d 143, 152 [2005] [internal quotation marks and citations omitted]). The state standard of meaningful representation does not require a defendant to fully satisfy the prejudice test of Strickland. Our State’s prejudice component focuses on the fairness of the process as a whole, rather than its particular impact on the outcome of the case (id. at 155-156). Counsel’s representation is “viewed in totality” (People v Turner, 5 NY3d 476, 480 [2005], citing People v Baldi, 54 NY2d 137, 147 [1981]). Under both the federal and state standards it is possible for a single error to constitute performance that “is so ‘egregious and prejudicial’ as to deprive a defendant of his constitutional right” (Turner, 5 NY3d at 480, citing People v Caban, 5 NY3d 143, 152 [2005], and Murray v Carrier, 477 US 478, 496 [1986]).

In Turner we held that the failure to raise a defense that is “clear-cut” and “completely dispositive,” in the absence of a reasonable explanation, “is hard to reconcile with a defendant’s constitutional right to the effective assistance of counsel” (5 NY3d at 481). The defense counsel in Turner failed to argue that prosecution for manslaughter as a lesser-included offense was barred by a five-year statute of limitations; we therefore concluded counsel was ineffective. Defendant here analogizes his case to Turner, claiming that his counsel failed to assert a dispositive argument that the police did not have justification to chase him, and that this argument would have ensured the suppression of the gun and the dismissal of the charges. I agree.

In order to justify police pursuit, the officers must have “reasonable suspicion that a crime has been, is being, or is about to be committed” (People v Holmes, 81 NY2d 1056, 1058 [1993]). Reasonable suspicion encompasses a “quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (People v Martinez, 80 NY2d 444, 448 [1992] [citation omitted]). We have found that “[f] light, combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” (Holmes, 81 NY2d at 1058). “Flight alone, however, or even in conjunction with equivocal circumstances that might justify a police request for information, is insufficient to justify pursuit” (id. [citations omitted]).

Nearly two decades ago, in a case on all fours with the present appeal, we held that flight in combination with a defendant grabbing at his waistband, “does not support a determination that the officers had reasonable suspicion to pursue defendant” (see People v Sierra, 83 NY2d 928, 930 [1994]). In Sierra, we found no reasonable suspicion to pursue a fleeing defendant where “the officers knew only that, after exiting from the back seat of a livery cab that had been stopped for defective brake lights, defendant grabbed at his waistband” (id. [emphasis added]).

Years later, we reiterated that flight must be accompanied by other suggestive conduct in order to support reasonable suspicion justifying a seizure (People v Pines, 99 NY2d 525, 527 [2002], citing Martinez, 80 NY2d at 447-448). In Martinez, we acknowledged that the “[defendant had a right to refuse to respond to a police inquiry and his flight when the officers approached could not, in and of itself, create a reasonable suspicion of criminal activity” (id. at 448 [citation omitted]). Only after aggregating other compelling circumstances—namely that defendant was observed “removing an instrument known to the police to be used in concealing drugs”—did we find reasonable suspicion (id.).

In Pines, police in an unmarked police vehicle followed defendant and his companion. Noticing the police, defendant continued down the street, but his gaze remained fixed upon the trailing police vehicle. When the police came closer, defendant “maneuvered in such a way as to keep his right side out of the view of the officers until, when the [police] drove up parallel to the two, defendant abruptly turned and began walking in the opposite direction abandoning his companion” (99 NY2d at 526). We held this suspicious behavior, coupled with “defendant plac[ing] his right arm against the side of his bubble jacket bunching it up by reaching underneath with his hand in a cupping motion, reminding the testifying officer of how he himself would sometimes adjust a gun under a jacket,” was sufficient to support reasonable suspicion (id.).

Here, the detective testified at the suppression hearing that he observed defendant adjusting his waistband. By the detective’s own testimony, there was absolutely no indicia of a weapon or criminal activity. There was no cupping motion, bunched up jacket suggestive of a concealed weapon, no disconcerting facial movements, such as bulging eyes, or an attempt to hide by the defendant to conceal his movements from the police. This case is not analogous to Pines; there, police were faced with substantially more facts warranting “an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity [was] at hand” (Martinez, 80 NY2d at 448 [citation omitted]).

The People seek to distinguish the defendant’s case from our prior case law, by arguing that defendant’s presence in an area known for gang activity, along with the waistband adjustments, justify the police conduct. However, we have previously rejected the argument that presence in a high crime vicinity alone justifies a police encounter (see People v McIntosh, 96 NY2d 521, 526-527 [2001] [“(t)he fact that an encounter occurred in a high crime vicinity, without more, has not passed De Bour and Hollman scrutiny”]). Our concern as to sweeping assumptions concerning individuals in particular neighborhoods is not new, or unfounded:

“Arrests are made of individuals, not of neighborhoods. When we single out the latter, more likely than not congested areas peopled in the main by those who are socially and economically deprived, we subject all its residents, the vast majority of whom are sure to be free of criminal taint, to an immeasurably greater risk of invasion than those who live elsewhere” (People v McRay, 51 NY2d 594, 606-607 [1980, Fuchsberg, J., concurring]).

Faced with what was a strong and compelling defense, counsel’s failure to properly challenge the detective’s lack of reasonable suspicion was not merely poor judgment or a harmless mistake. It was the error that mattered most because it allowed the People to proceed to trial with the single most important piece of evidence, the gun that was the basis for the weapons possession charges.

This case, like Turner, involves an error by counsel of such magnitude that on its own deprived defendant of his rights to a level of constitutionally acceptable representation, and evinced an egregious breach of minimal professional standards. Such error, again, is very rare. In People v McGee (20 NY3d 513 [2013]), we found counsel was not ineffective where he failed to move to dismiss an indictment based on insufficient evidence. Distinguishing Turner, we found counsel was not ineffective for failing to raise the sufficiency argument because it could not be “fairly characterized as clear-cut and dispositive in defendant’s favor” (id. at 518, citing People v Brunner, 16 NY3d 820, 821 [2011], and People v Borrell, 12 NY3d 365, 369 [2009]). Similarly, in Borrell, defendant was convicted on two separate occasions, after jury verdict, and sentenced simultaneously to two consecutive terms in prison. Counsel had failed at sentencing to contest the legality of the sentences. Finding the argument’s merit had “far from clear prospects,” we held “[c]ounsel was not ineffective for failing to raise an issue of such uncertain efficacy” (12 NY3d at 369). In Brunner, defendant argued counsel failed to make a meritorious argument under CPL 30.30. We found “although defendant’s arguments . . . are substantial, there is nothing clear cut about . . . his claim[;] its success . . . depended on the resolution of several novel issues” (16 NY3d at 821).

On the face of the record, defendant’s argument was both clear-cut and dispositive in defendant’s favor (cf. McGee, 20 NY3d at 518; Borrell, 12 NY3d at 369; and Brunner, 16 NY3d at 821). The argument that the police lacked reasonable suspicion to pursue him would have, as a matter of law, resulted in the suppression of the gun (see People v Wilkerson, 64 NY2d 749, 750 [1984] [“if the evidence is discovered as a direct consequence of the unlawful police conduct, then it must be suppressed”]). There is simply no record support for a contrary finding. Moreover, there is no reasonable explanation for counsel’s failure to raise this argument.

The majority and I agree that counsel’s conduct was constitutionally deficient, and that defendant is entitled to relief. This is where our agreement ends because I believe that there is no legal support for denying the motion to suppress, and therefore the indictment must be dismissed. As I have explained, this is not the close call the majority believes it to be.

The majority’s decision to remit to allow new counsel to argue the merits of suppression on the existing record or, if the defendant so chooses, to reopen the hearing, is based on the assumption that the People’s case has merit. It simply does not. However, having signaled that it does, it has strengthened the People’s position, and as a consequence undermined the defendant’s arguments. Selecting to proceed on the existing suppression record thus is a dangerous proposition for the defendant. Choosing alternatively to reopen the hearing is a course no less perilous for the defendant. As we stated in People v Havelka, “[a] remand with the benefit of hindsight derived from an appellate court opinion offers too facile a means for establishing probable cause after the event. . . Tailoring the evidence at the rehearing to fit the court’s established requirements, whether done unconsciously or otherwise, would surely be a considerable danger” (45 NY2d 636, 643-644 [1978]). Essentially, this second “bite at the apple” allows the People to shore up their case.

The majority concludes that a person standing on the street, who makes the most innocent of movements—in this case adjusting a waistband—is subject to inquiry simply because that person is walking in a neighborhood known to the police for its gang activity. I cannot agree with the underlying assumption that persons stopped by police in such an area of the community are more likely to be engaged in criminal activity than those who walk or live in any other neighborhood. We have already rejected this assumption and today’s decision ignores the wisdom of our prior case law. I dissent.

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

Order modified by remitting to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [1 NE3d 296, 978 NYS2d 95]
    In the Matter of State of New York, Respondent, v Enrique D., Appellant.
    Argued September 12, 2013;
    decided October 22, 2013

      APPEARANCES OF COUNSEL

      Marvin Bernstein, Mental Hygiene Legal Service, New York City (Sadie Zea Ishee and Diane Temkin of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, New York City (Valerie Figueredo, Steven C. Wu and Barbara D. Underwood of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and a new trial ordered.

Respondent Enrique D. has an extensive history of sex offenses. In July 2009, as Enrique D. neared release from prison, where he had most recently been serving a sentence of 2 to 4 years for attempted sexual abuse in the first degree (Penal Law §§ 130.65, 110.00), petitioner State of New York commenced this civil management proceeding pursuant to Mental Hygiene Law article 10. At the ensuing jury trial to determine whether Enrique D. suffered from a mental abnormality, his attorney sought to call as a witness a former girlfriend, Naomi N. The attorney told the trial judge that Naomi N. would testify as to “whether [Enrique D.] ever offended against her, ever tried to offend against her, any boundaries that she had that he respected or didn’t respect.” He argued that this testimony was relevant “to the second element of the . . . mental abnormality [finding], which is [Enrique D.’s] ability to control himself.”

The trial judge denied the request, but stated that Enrique D.’s expert could testify about any information provided by Naomi N. which he relied upon in reaching his diagnosis and opinion. The judge added that she would reserve decision as to whether to allow Naomi N. herself to testify in addition to the expert. Later during the trial, Enrique D.’s attorney again asked the judge to allow Naomi N. to testify, and the judge again denied the request on the same basis—that anything relevant that Naomi N. might have to say could come in through Enrique D.’s expert.

The State’s expert diagnosed Enrique D. with “paraphilia, not otherwise specified (NOS)—non-consent,” meaning that he was sexually aroused by forcing unwilling women to engage in sexual conduct. The expert further testified that Enrique D. was unable to control his sex-offending behavior. Enrique D.’s expert, by contrast, did not diagnose him with paraphilia NOS, and added that the “non-consent” diagnosis was controversial within the psychiatric community; the expert did not refer to any information provided by Naomi N.

The jury returned a unanimous verdict finding that Enrique D. suffered from a mental abnormality as defined in Mental Hygiene Law § 10.03 (i). Following a dispositional hearing, Supreme Court adjudged Enrique D. a dangerous sex offender in need of confinement. On appeal, the Appellate Division affirmed (98 AD3d 847 [1st Dept 2012]), concluding that Supreme Court had not committed reversible error in rejecting Naomi N.’s testimony. In the Court’s view, the fact “that [Enrique D.] may not have sexually abused one former girlfriend—and there was evidence in the proceeding that he had at least 26 sexual partners—does not tend to disprove that his behavior manifested a pattern of sexually abusing nonconsenting women” (id. at 848). We granted Enrique D. leave to appeal (20 NY3d 857 [2013]), and now reverse.

In the circumstances of this case, Supreme Court abused its discretion by precluding Naomi N. from testifying. Mental Hygiene Law § 10.08 (g) provides that a respondent in an article 10 proceeding “may, as a matter of right, testify in his or her own behalf, call and examine other witnesses, and produce other evidence in his or her behalf.” This provision manifestly does not limit a respondent to expert witnesses. The pertinent question is whether a witness—expert or lay—has material and relevant evidence to offer on the issues to be resolved.

Here, Naomi N.’s rejected testimony was relevant to the State expert’s diagnosis of paraphilia NOS—non-consent. The jury was asked to decide whether Enrique D. suffered a condition, disease, or defect that predisposed him to commit sex offenses, and whether that condition caused him serious difficulty in controlling his sex-offending conduct. With respect to the first prong, Naomi N.’s testimony would have called into question whether Enrique D. exhibited a long-standing fixation on non-consenting women; as to the second, her testimony was relevant to show whether he experienced difficulty controlling his sexual behavior.

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

Order reversed, without costs, and a new trial ordered, in a memorandum.


text:
    [999 NE2d 174, 976 NYS2d 696]
    Robert K. Monette et al., Appellants, v Christina L. Trummer et al., Defendants, and Jim Ball Pontiac-Buick-GMC, Inc., Respondent.
    Decided October 22, 2013

      APPEARANCES OF COUNSEL

      Dwyer, Black & Lyle, LLP, Olean (Jeffrey A. Black of counsel), for appellants.

      Law Offices of Destín C. Santacrose, Buffalo (Christopher R. Turner of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On these facts, we agree with the Appellate Division majority that defendant dealer satisfied its initial burden of proving that it was not an owner of the vehicle in question under Vehicle and Traffic Law § 128. Plaintiffs failed to raise a genuine issue of fact to support a contrary finding.

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, with costs, in a memorandum.


text:
    Kelly L. Ashmore, Respondent, v Benjamin Ashmore, Sr., Appellant.
    Decided October 22, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Concerned Home Care Providers, Inc., et al., Appellants, v State of New York et al., Respondents.
    Decided October 22, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Emigrant Mortgage Company, Inc., Appellant, v Douglas Westervelt, Jr., Respondent, et al., Defendants.
    Submitted August 5, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Wajma Farhadi, Respondent, v Sher Ahmad Qureshi, Appellant.
    Submitted August 26, 2013;
    decided October 22, 2013
   Motion, insofar as it seeks leave to appeal from the September 2011 Supreme Court order, dismissed upon the ground that it does not lie (see NY Const, art VI, § 3; CPLR 5602); motion for leave to appeal otherwise dismissed upon the ground that the Appellate Division orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Catherine Flanagan, Respondent, v Stephen Flanagan, Appellant.
    Submitted September 3, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Mark Ford et al., Appellants, v New York State Racing and Wagering Board, Respondent.
    Submitted September 9, 2013;
    decided October 22, 2013
   Motion for leave to appeal denied upon the ground that an appeal lies as of right.


text:
    In the Matter of Stephanie Gonnard, Respondent, v James Guido, Appellant.
    Decided October 22, 2013
   Appeal, insofar as taken from that portion of the Appellate Division order affirming so much of Family Court’s order as granted the petition and modified custody, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved (see CPLR 5601 [b] [1]); appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601; NY Const, art VI, § 3).


text:
    In the Matter of Catherine A. Gorman, Appellant, v Kathleen M. Rice, Nassau County District Attorney, Respondent, et al., Respondent.
    Submitted August 26, 2013;
    decided October 22, 2013
   Motion for leave to appeal denied as unnecessary. Motion for a stay granted.


text:
    Lidia Hughes, Respondent, v Andre Hughes, Appellant.
    Submitted September 16, 2013;
    decided October 22, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Jacobson Family Investment, Inc., et al., Appellants, v National Union Fire Insurance Company of Pittsburgh, PA, et al., Respondents.
    Submitted July 22, 2013;
    decided October 22, 2013
   Motion, insofar as it seeks leave to appeal on behalf of MDG 1994 GRA.T, LLC and BSJ Foundations, LLC, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Abdus-Salaam taking no part.


text:
    Kevin Kerveng Tung, P.C., Appellant, v JP Morgan Chase & Co. et al., Respondents.
    Submitted September 9, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Constantine Korelis, Appellant, v Conriv Realty Corp., Respondent.
    Decided October 22, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    In the Matter of Juan C. Lara, Respondent, v Michelle B. Sullivan, Appellant.
    Submitted August 19, 2013;
    decided October 22, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed that part of Family Court’s order adjudging appellant in civil contempt for violating a prior custody 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. Motion for poor person relief dismissed as academic.


text:
    Robert D. Moore et al., Appellants, v Richard S. Johnson et al., Respondents.
    Submitted August 19, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    149 Madison LLC, Respondent, v Paul J. Bosco, Appellant.
    Submitted September 23, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The People of the State of New York, Respondent, v Hiram Beaver, Appellant.
    Submitted September 3, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of County Court entered in this proceeding commenced in Town Court (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York, Respondent, v Earl Hayes, Appellant.
    Decided October 22, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. David J. Safran, Appellant, v Elizabeth A. O’Meara, as Superintendent of Gouverneur Correctional Facility, Respondent.
    Decided October 22, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Pinnacle Charter School et al., Appellants, v Board of Regents of the University of the State of New York et al., Respondents.
    Submitted September 3, 2013;
    decided October 22, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Pinnacle Charter School et al., Appellants, v Board of Regents of the University of the State of New York et al., Respondents.
    Submitted October 7, 2013;
    decided October 22, 2013
   Motion by Community Charter School to intervene denied.


text:
    Carolyn Mary Schenk, Appellant, v Staten Island University Hospital et al., Respondents, et al., Defendant.
    Submitted August 26, 2013;
    decided October 22, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Renee Sciara et al., Respondents, v Surgical Associates of Western New York, P.C., et al., Appellants. Usha Chopra, M.D., Nonparty Appellant.
    Submitted July 29, 2013;
    decided October 22, 2013
   Motion to dismiss defendants’ appeal granted and the appeal dismissed, with $400 costs and $100 costs of motion, upon the ground that defendants are not parties aggrieved. Defendants remain respondents on the appeal by Usha Chopra, M.D., and may submit a brief and present argument on that appeal.


text:
    Christopher Selletti, Defendant, v Thomas F. Liotti, Appellant. Jeffrey Levitt, Nonparty Appellant.
    Submitted July 29, 2013;
    decided October 22, 2013
   Motion by Thomas F. Liotti, 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. Motion by Jeffrey Levitt for leave to appeal denied.


text:
    Kelvin Then et al., Appellants, v New York City Transit Authority, Respondent, et al., Defendant.
    Submitted September 9, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Alexandre Van Damme, Respondent, v Nahum Gelber, Appellant, et al., Defendant. (And a Third-Party Action.)
    Submitted September 3, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of William Vega, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted September 16, 2013;
    decided October 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jomo Williams, Appellant, v R.A.W. et al., Respondents.
    Submitted September 16, 2013;
    decided October 22, 2013
   Motion for a stay dismissed as academic.


text:
    [999 NE2d 1189, 977 NYS2d 744]
    DLJ Mortgage Capital, Inc., Appellant, v Thomas Kontogiannis et al., Defendants, and Chicago Title Insurance Company, Inc., et al., Respondents.
    Decided November 14, 2013

      APPEARANCES OF COUNSEL

      Hahn & Hessen LLP, New York City (John P. Amato, Robert J. Malatak and Annie Power of counsel), for appellant.

      Herrick, Feinstein LLP, New York City (Arthur G. Jakoby and Adam J. Stein of counsel), for Chicago Title Insurance Company, Inc., respondent.

      DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains CMichael J. Schwarz and Lee S. Wiederkehr of counsel), for United General Title Insurance Co., Inc., respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. As a matter of law, DLJ, as a third-party purchaser of mortgages on the secondary mortgage market, cannot rely on pre-closing documents to establish that a proper conveyance and recording of the underlying property occurred or that title insurance for the property was issued (see Citibank v Chicago Tit. Ins. Co., 214 AD2d 212, 219 [1st Dept 1995], Iv dismissed 87 NY2d 896 [1995]). The Appellate Division correctly determined that any such reliance was unjustifiable.

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, with costs, and certified question answered in the affirmative, in a memorandum.