text:
    Victoria Fuller, Appellant, v Gary Robert Collins, Respondent.
    Submitted July 21, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to he appealed from does not finally determine the action within the meaning of the Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    Jeffrey Gural et al., Appellants, v Fred Drasner, Respondent.
    Submitted June 30, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    IDT Corp. et al., Respondents, v Tyco Group, S.A.R.L., et al., Appellants.
    Submitted July 21, 2014;
    decided September 11, 2014
   Motion for reargument denied [see 23 NY3d 497 (2014)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Lillian SS. and Another, Children Alleged to be Neglected. Ulster County Department of Social Services, Respondent; Brian SS., Appellant. (And Another Related Proceeding.)
    Submitted July 14, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Submitted June 30, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Norman J. Mercer, Deceased. BNY Mellon, N.A., et al., Respondents; Howard Mercer et al., Appellants, et al., Respondent.
    Submitted July 7, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Michael Nicholson et al., Appellants, v Incorporated Village of Garden City et al., Respondents.
    Submitted June 30, 2014;
    decided September 11, 2014
   Motion for reconsideration of this Court’s May 8, 2014 dismissal order denied [see 23 NY3d 947 (2014)]. Motion for leave to appeal denied.


text:
    In the Matter of Paul A., Respondent, v Shaundell LL., Appellant. (And Three Other Related Proceedings.)
    Submitted July 14, 2014;
    decided September 11, 2014
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed the Family Court order adjudging appellant in contempt, dismissed upon the ground that such portion of the order does not finally determine that proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Churchill Andrews, Appellant.
    Submitted August 4, 2014;
    decided September 11, 2014
   Motion for reargument denied [see 23 NY3d 605 (2014)].


text:
    The People of the State of New York, Respondent, v Davon Harris, Appellant.
    Submitted September 8, 2014;
    decided September 11, 2014
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Vincent Izzo, Appellant.
    Submitted September 8, 2014;
    decided September 11, 2014
   Motion for poor person relief granted.


text:
    The People of the State of New York, Appellant, v Kenneth Nealon, Respondent.
    Submitted September 8, 2014;
    decided September 11, 2014
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher A. Nicholson, Also Known as John Doe, Appellant.
    Submitted September 2, 2014;
    decided September 11, 2014
   Motion for assignment of counsel granted and Mary P Davison, Esq., care of Davison Law Office, PO Box 652, 61 North Main St., Suite C, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Willie L. Wragg, Appellant.
    Submitted September 2, 2014;
    decided September 11, 2014
   Motion for assignment of counsel granted and Shirley A. Gorman, Esq., PO Box 629, 19 Market St., Brockport, New York 14420 assigned as counsel to the appellant on the appeal herein.


text:
    36 East 57th Street LLC, Respondent, v Simon Falic, Appellant.
    Submitted July 28, 2014;
    decided September 11, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Smith taking no part.


text:
    In the Matter of Curtis Walker, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted July 28, 2014;
    decided September 11, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 905 (2014)].


text:
    [18 NE3d 739, 994 NYS2d 39]
    The People of the State of New York, Respondent, v Richard Perales, Appellant.
    Decided September 16, 2014
    APPEARANCES OF COUNSEL

      Richard Perales, appellant pro se.

      Richard A. Brown, District Attorney, Kew Gardens (.Edward D. Saslaw of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and defendant’s application for a writ of error coram nobis seeking leave to file a late notice of appeal granted and the case remitted to the Appellate Division for further proceedings in accordance with this memorandum.

At his sentencing proceeding, defendant made a challenge to his guilty plea. The court denied the challenge, noting to defense counsel that he could file an appeal on defendant’s behalf. Defense counsel failed to do so, despite letters from defendant inquiring as to the status of the appeal. After not hearing from defense counsel on the issue, defendant made an inquiry with the Appellate Division and learned that a notice of appeal was never filed. Defendant, acting pro se, attempted to get permission to file a late notice of appeal but was procedurally barred from doing so because the one-year time period set by CPL 460.30 had passed (2008 NY Slip Op 89422[U] [2008]). He also made a pro se CPL article 440 motion, which was denied on the ground that it was procedurally barred due to the fact that the issue was apparent from the record.

Under these circumstances, defendant met his entitlement to the relief sought (see People v Syville, 15 NY3d 391 [2010]).

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, defendant’s coram nobis application granted and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the memorandum herein.


text:
    BasicNet S.p.A. et al., Respondents, v CFP Services Ltd., Doing Business as CFP Trade Services, Appellant, et al., Defendants.
    Submitted July 28, 2014;
    decided September 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Cathedral Court Assoc., L.P., et al., Appellants/Third-Party Plaintiffs-Appellants, v Cathedral Properties Corp., Respondent. Kevin Walsh, Third-Party Defendant-Respondent.
    Submitted June 9, 2014;
    decided September 16, 2014
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as dismissed the third-party complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Cijntje Cox, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted July 14, 2014;
    decided September 16, 2014
   Motion, insofar as it seeks leave to appeal from the February 2014 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the May 2014 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Javier C., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided September 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    JP Morgan Chase Bank, N.A., Respondent, v Smith Electrical Contracting, Inc., Defendant, and Stephen Smith, Appellant.
    Submitted July 14, 2014;
    decided September 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Donette Kingston, Appellant, v New York City Police Department et al., Respondents.
    Submitted July 21, 2014;
    decided September 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Kizia Knowles et al., Appellants, v Saint Joseph’s Medical Center et al., Respondents.
    Submitted July 21, 2014;
    decided September 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Alvin W. McLean, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided September 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Alvin W. McLean, Appellant, v New York State Department of Corrections and Community Supervision, Respondent.
    Decided September 16, 2014
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of the Estate of Gino Rolando Monaco, Deceased, Appellant. Eugene Allen Monaco, Respondent.
    Decided September 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Nomura Asset Capital Corporation et al., Respondents-Appellants, v Cadwalader, Wickersham & Taft LLP, Appellant-Respondent.
    Submitted July 21, 2014;
    decided September 16, 2014
   Motion for a stay granted.


text:
    The People of the State of New York ex rel. Jomo Williams, Appellant, v Commissioner of Mid-State Correctional Facility et al., Respondents.
    Submitted July 28, 2014;
    decided September 16, 2014
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Jean Toutpuissant, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided September 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Estate of Stanley Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted August 4, 2014;
    decided September 16, 2014
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion to strike denied.


text:
    Lakeisha Williams, Individually and as Next Friend of Javon Williams, et al., Appellants, v Gladys Carrión, in Her Official Capacity as Commissioner of New York State Office of Children and Family Services, Respondent.
    Decided September 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Wisselman, Harounian and Associates, P.C., Respondent, v Caf Dowlah, Appellant.
    Decided September 16, 2014
   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:
    Shereeann Alayoff, Appellant, v Abraham Alayoff, Respondent.
    Submitted July 7, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Avalon Gardens Rehabilitation and Health Care Center, LLC, Appellant. Commissioner of Labor, Respondent. (And 19 Other Related Proceedings.)
    Decided September 18, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    John Bardes et al., Appellants, v Gallo Pintado et al., Respondents.
    Submitted July 21, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Branic International Realty Corp., Appellant, v Phillip Pitt, Respondent, et al., Respondents.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by The Bronx Defenders, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    City of New York, Respondent, v Zurich American Insurance Company, Appellant.
    Submitted June 30, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Laquana Conrad, Appellant, v Apolonia Alicea et al., Respondents.
    Submitted July 7, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Empire State Realty Trust, Inc. Investor Litigation. Leon Meyers et al., Respondents, and Mary Jane Fales et al., Intervenors-Plaintiffs-Appellants, v Malkin Holdings L.L.C. et al., Respondents.
    Submitted July 7, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Maetreum of Cybele, Magna Mater, Inc., Respondent, v Nancy McCoy, as Assessor of the Town of Catskill, et al., Appellants. (And Two Other Related Proceedings.)
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by Association of Towns of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Merry-Go-Round Playhouse, Inc., Respondent, v Assessor of City of Auburn et al., Appellants.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by Association of Towns of the State 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.


text:
    In the Matter of 155 West 21st Street, LLC, Appellant, et al., Petitioner, v Alistair McMullan, Respondent, et al., Respondent.
    Submitted July 7, 2014;
    decided September 18, 2014
   Motion to expand the record denied.


text:
    The People of the State of New York, Respondent, v Lionel McCray, Appellant.
    Submitted July 21, 2014;
    decided September 18, 2014
   Motion for reargument denied [see 23 NY3d 621 (2014)].


text:
    The People of the State of New York, Respondent, v Terence McCray, Appellant.
    Submitted June 16, 2014;
    decided September 18, 2014
   Motions for reargument denied [see 23 NY3d 193 (2014)].


text:
    The People of the State of New York, Appellant, v Dwight R. DeLee, Respondent.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Graham Reid, Appellant.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by New York Civil Liberties Union for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Samuel Small, Also Known as Samuel Smalls, Appellant.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dennis P. Smalls, Appellant.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Domingo Ramales, Plaintiff, v Pecker Iron Workers of Westchester, Inc., Appellant, and Christ Fellowship Baptist Church et al., Respondents. (And Third-Party Actions.)
    Submitted August 18, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Manuel Reis, Individually and as Administrator of the Estate of Sara Reis, Deceased, Respondent, v Volvo Cars of North America et al., Appellants. (And a Third-Party Action.)
    Submitted August 4, 2014;
    decided September 18, 2014
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 24 NY3d 35 (2014)].


text:
    Fernando Roman et al., Plaintiffs, and Liberty Mutual Insurance Company, as Subrogee of Julia Roman, Appellant, v Silvia B. Cabrera, Defendant, and Frank Lawrence, IV, Respondent.
    Submitted July 28, 2014;
    decided September 18, 2014
   Motion, insofar as it seeks leave to appeal from the March 2014 and May 2014 Appellate Division orders, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the January 2014 Appellate Division order, denied.


text:
    In the Matter of Mary Veronica Santiago-Monteverde, Debtor. Mary Veronica Santiago-Monteverde, Appellant, v John S. Pereira, Chapter 7 Trustee, Respondent.
    Submitted September 15, 2014;
    decided September 18, 2014

      See 747 F3d 153.
   Motion by Brad Hoyhnan et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Mary Veronica Santiago-Monteverde, Debtor. Mary Veronica Santiago-Monteverde, Appellant, v John S. Pereira, Chapter 7 Trustee, Respondent.
    Submitted September 15, 2014;
    decided September 18, 2014

      See 747 F3d 153.
   Motion by New York City Bankruptcy Assistance Project et al. for leave to file a brief amici curiae on consideration of the certified question 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:
    Sue/Perior Concrete & Paving, Inc., Respondent, v Lewiston Golf Course Corporation, Appellant, et al., Defendants.
    Submitted September 15, 2014;
    decided September 18, 2014
   Motion by Seneca Nation of Indians 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:
    Twin Securities, Inc. et al., Appellants, v Advocate & Lichtenstein, LLP, et al., Respondents, et al., Defendant.
    Submitted August 4, 2014;
    decided September 18, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Airionna C. and Others. Monroe County Department of Human Services, Respondent; Shernell E., Respondent. Mary P. Davison, Esq., Attorney for the Children, Appellant.
    Submitted July 21, 2014;
    decided September 23, 2014
   Motion for leave to appeal dismissed upon the ground that appellant, having taken no appeal to the Appellate Division, may not appeal to the Court of Appeals from the Appellate Division order of affirmance.


text:
    In the Matter of Dashaun G. and Another, Infants. Monroe County Department of Human Services, Respondent; Diana B., Respondent; Jonathan G., Intervenor-Appellant.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Keyspan Generation, LLC, et al., Respondents, v Nassau County et al., Appellants. (And Another Action.)
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).

Judge Rivera taking no part.


text:
    New York Telephone Company, Respondent, v Supervisor of Town of Hempstead et al., Defendants/Third-Party Plaintiffs-Appellants. (And Four Other Actions.)
    Submitted July 21, 2014;
    decided September 23, 2014
   Motion by the Town of North Hempstead for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.

Judge Rivera taking no part.


text:
    In the Matter of Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Submitted August 25, 2014;
    decided September 23, 2014
   Motion for a stay granted.


text:
    The People of the State of New York, Appellant, v Jesse Roberites, Respondent.
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion for assignment of counsel granted and William J. Comiskey, Esq., care of Hodgson Russ, LLI) 677 Broadway, Suite 301, Albany, New York 12207 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jesse Roberites, Respondent.
    Submitted August 25, 2014;
    decided September 23, 2014
   Motion to dismiss appeal and for further relief denied.


text:
    The People of the State of New York ex rel. Demetrio Lifrieri, Appellant, v William A. Lee, Respondent.
    Submitted August 25, 2014;
    decided September 23, 2014
   Motion, insofar as it seeks leave to appeal from the April 2014 Appellate Division order, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the June 2014 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Carolyn Mary Schenk, Appellant, v Staten Island University Hospital et al., Respondents, et al., Defendant.
    Submitted December 16, 2013;
    decided September 23, 2014
   Motion for reargument denied [see 22 NY3d 951 (2013)].


text:
    In the Matter of the Claim of Volodymyr I. Tkachyshyn, Appellant. Commissioner of Labor, Respondent.
    Submitted August 25, 2014;
    decided September 23, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 1016 (2014)].


text:
    Verizon New York, Inc., Formerly Known as New York Telephone Company, Plaintiff, v Supervisor of Town of Oyster Bay et al., Defendants and Third-Party Plaintiffs-Respondents. County of Nassau et al., Third-Party Defendants-Appellants.
    Submitted August 4, 2014;
    decided September 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).

Judge Rivera taking no part.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Rockland Business Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by City of Mount Vernon for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Ross J. Pepe, president of Construction Industry Council of Westchester and the Hudson Valley and Building Contractors Association, for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Village of West Haverstraw for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Westchester County Chamber of Commerce, Inc., doing business as The Business Council of Westchester, for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by City of New Rochelle for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Town of Haverstraw for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Hon. Edwin J. Day, Rockland County Executive, for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Village of Ossining for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by Builders Institute of Westchester and the Mid-Hudson Region, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted July 28, 2014;
    decided September 23, 2014
   Motion by City of Yonkers for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted August 4, 2014;
    decided September 23, 2014
   Motion by Community Initiatives Development Corporation for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion by Village of Tarrytown for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion by New York State Economic Development Council for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion by City of Hornell for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    In the Matter of Village of Haverstraw, Appellant. AAA Electricians, Inc., Respondent.
    Submitted August 11, 2014;
    decided September 23, 2014
   Motion by City of Syracuse for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed.


text:
    Washington Mutual Bank, Respondent, v Carolyn Schenk, Appellant, et al., Defendants.
    Submitted February 24, 2014;
    decided September 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [19 NE3d 491, 994 NYS2d 565]
    Jason Pelletier, Appellant, v Brittany Lahm et al., Respondents.
    Decided October 16, 2014

      APPEARANCES OF COUNSEL

      Burke, Miele & Golden, LLP, Goshen (.Phyllis A. Ingram of counsel), for appellant.

      Hannum Feretic Prendergast & Merlino, LLC, New York City (Matthew J. Zizzamia of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and the certified question not answered as unnecessary. The Appellate Division did not err in concluding that the giving of the emergency doctrine charge was proper because “[i]t was for the jury to find whether [defendant driver] was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person” (111 AD3d 807, 809 [2d Dept 2013]).

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


text:
    [20 NE3d 637, 995 NYS2d 692]
    The People of the State of New York, Respondent, v John Rossi, Appellant.
    Argued September 9, 2014;
    decided October 16, 2014

      APPEARANCES OF COUNSEL

      Jillian S. Harrington, New York City, for appellant.

      Kathleen M. Rice, District Attorney, Mineóla (Kevin C. King, Robert A. Schwartz and Laurie K. Gibbons of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On July 11, 2009 at approximately 5:10 a.m., police officers arrived at defendant’s residence in response to a 911 call initiated by defendant’s wife, who reported that defendant had shot himself in the hand. She was unable to tell the officers the gun’s whereabouts.

Two officers entered the residence and observed defendant standing at the end of a hallway, bleeding profusely from his hand. The officers drew their weapons and ordered defendant into the living room where one of the officers frisked him but found no weapon. Defendant’s two children and a third child were in the residence. Although defendant said that he had been cleaning the gun when it discharged, he stated that he did not know where the gun was located. While an EMT was tending to defendant’s wound, the officers searched the residence. A third officer began searching the backyard, eventually discovering a loaded gun near a shed. Defendant was charged with criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).

At the suppression hearing, defendant argued that the search of his premises was unconstitutional because by the time the gun was discovered, the scene was secure and the emergency had ended. The People countered that the testimony established that for the protection of the children who may have come across the gun, the officers needed to secure it and did so contemporaneously with escorting the children from the residence. The suppression court ruled that the warrantless search for and recovery of the gun were lawful. After a jury trial, defendant was convicted as charged and, on appeal, challenged, among other things, the suppression ruling.

A divided Appellate Division affirmed (99 AD3d 947 [2d Dept 2012]). The majority determined that “defendant’s incoherence and evasive answers about the location of the gun and the presence of children on the premises . . . established an ongoing emergency and danger to life, justifying the search for and seizure of the gun” {id. at 950 [citations omitted]). The court further concluded that the suppression testimony established that the officer searching the backyard was aware that other officers were searching the residence but “was not aware that the children were secure and out of danger” (id.). The dissenting Justice asserted that although the initial entry into the house was justified in light of the information that defendant had shot himself and that emergency was extended when the officers learned that there were children in the house, “once the police frisked the defendant and knew that the children did not have the gun, the emergency abated” (id. at 953 [Chambers, J., dissenting]). The dissenting Justice granted defendant leave to appeal.

Application of the “emergency doctrine” involves a mixed question of law and fact that is beyond this Court’s review so long as there is record support for the findings of the courts below (see People v Doll, 21 NY3d 665, 671 [2013], rearg denied 22 NY3d 1053 [2014], cert denied 572 US —, 134 S Ct 1552 [2014]; People v McBride, 14 NY3d 440, 446 [2010], cert denied 562 US 931 [2010]). The Appellate Division majority and dissent both applied the test set forth in People v Mitchell (39 NY2d 173, 177-178 [1976], cert denied 426 US 953 [1976]) and reached conflicting conclusions as to when the emergency ceased. Because there is record support for the majority’s conclusion that the search was lawful under the emergency exception, “ ‘any further review is beyond this Court’s jurisdiction’ ” (People v Dallas, 8 NY3d 890, 891 [2007], quoting People v Molnar, 98 NY2d 328, 335 [2002]).

Defendant’s remaining contentions that his conviction was not based upon legally sufficient evidence and that prosecutorial misconduct deprived him of a fair trial are unpreserved. His claim of ineffective assistance of counsel is without merit.

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

Order affirmed, in a memorandum.


text:
    [21 NE3d 198, 996 NYS2d 569]
    The People of the State of New York, Respondent, v Diane Wells, Appellant.
    Argued September 11, 2014;
    decided October 16, 2014

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City CAndrew C. Fine of counsel), and Law Offices of Gerald L. Shargel, LLP, New York City (Gerald L. Shargel and Ross M. Kramer of counsel), for appellant.

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

Memorandum.

The order of the Appellate Term should be reversed and the order of Criminal Court of the City of New York reinstated.

In October 2006, defendant was convicted of assault in the third degree in Criminal Court of the City of New York but, in March 2010, the Appellate Term reversed the judgment due to an improper jury charge, and remanded the case for a new trial (26 Misc 3d 143[A], 2010 NY Slip Op 50393[U] [App Term, 1st Dept 2010]). The People then sought leave to appeal to this Court.

On May 10, 2010, while the People’s application for leave to appeal was still pending, Criminal Court adjourned defendant’s case until June 21. An assistant district attorney was present at the adjournment. A Judge of this Court denied the People’s leave application on May 14, 2010 (14 NY3d 894 [2010]).

Because of a clerical error in Criminal Court, defendant’s case was not placed on the June 21, 2010 calendar, and no representative of the District Attorney was present in court on that date. Once the District Attorney’s office discovered the miscalendaring in July, and informed Criminal Court, a new calendar date of August 23, 2010 was set. At no time prior to that did the People declare themselves ready for trial.

On August 23, defendant moved to dismiss the accusatory instrument on speedy trial grounds, pursuant to CPL 170.30 (1) (e), arguing that more than 90 days had elapsed since the denial of leave to appeal to this Court. Criminal Court granted defendant’s motion to dismiss, concluding after a fact-finding hearing “that there was unexplained and unexcused prosecutorial inaction with this case” that “lasted longer tha[n] the statutory speedy trial time allotted.”

The Appellate Term reversed, holding that the People had no obligation to advance the case to an earlier date upon receiving the certificate denying leave (36 Misc 3d 144[A], 2012 NY Slip Op 51544[U] [App Term, 1st Dept 2012]). A Judge of this Court granted defendant leave to appeal. We now reverse.

CPL 170.30 (1) is clear. A motion made pursuant to that section must be granted if the People are not “ready for trial within . . . ninety days of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a misdemeanor punishable by a sentence of imprisonment of more than three months and none of which is a felony” (CPL 30.30 [1] [b]). When a defendant’s judgment of conviction is reversed and the case is sent back for a retrial, “the criminal action . . . must be deemed to have commenced on . . . the date the order occasioning a retrial becomes final” (CPL 30.30 [5] [a]).

The parties do not dispute that under CPL 30.30 (5) (a) a new criminal action commenced when a Judge of this Court denied the People leave to appeal from the Appellate Term’s order. The People point to the fact that, under the Criminal Procedure Law, “[i]n computing the time within which the people must be ready for trial ... a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . appeals-, . . . and the period during which such matters are under consideration by the court” must be excluded (CPL 30:30 [4] [a] [emphasis added]).

The People contend therefore that the period from May 10, 2010 to August 23, 2010 is excludable, relying on People v Vukel (263 AD2d 416 [1st Dept 1999], lv denied 94 NY2d 830 [1999]), which held that when a trial court orders an adjournment for control purposes because of the pendency of a defendant’s application for leave to appeal to this Court, the entire period of the adjournment is excludable under CPL 30.30 (4) (a), as time resulting from the appeal. In Vukel, the Appellate Division rejected the argument that the People have “an obligation to advance the case to an earlier date upon receiving the certificate denying leave” (id. at 417).

The mere lapse of time, following the date on which the order occasioning a retrial becomes final, does not in itself constitute a reasonable period of delay resulting from an appeal within the meaning of CPL 30.30 (4) (a). Otherwise, the People would be permitted to delay retrial for the duration of an adjournment in the trial court, no matter how lengthy, even after a Judge of our Court has denied leave to appeal, without consequence under CPL 30.30. Such a rule would be inconsistent with “the dominant legislative intent informing CPL 30.30, namely, to discourage prosecutorial inaction” (People v Price, 14 NY3d 61, 64 [2010]). To the extent Vukel holds otherwise, it should not be followed.

Here, the Appellate Term erred as a matter of law in ruling that the period from May 10, 2010 to August 23, 2010 was automatically excludable as time resulting from an appeal under CPL 30.30 (4) (a). We agree with Criminal Court that the People provided no justification on the record for any “reasonable period of delay” under CPL 30.30 (4) (a) to be added to the 90 days provided under CPL 30.30 (1) (b).

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

Order reversed and the order of Criminal Court of the City of New York reinstated, in a memorandum.


text:
    Amalgamated Bank, Respondent, v Helmsley-Spear, Inc., Defendant, and Schneider & Schneider, Inc., et al., Intervenors-Appellants.
    Submitted June 9, 2014;
    decided October 16, 2014
   Motion to vacate this Court’s May 29, 2014 dismissal order granted [see 23 NY3d 959 (2014)].


text:
    Kelly Ashmore, Respondent, v Benjamin Ashmore, Appellant.
    Decided October 16, 2014
   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 C., an Applicant for Admission to the Bar of the State of New York, Appellant.
    Decided October 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Tadia R. Goddard, Respondent. Summit Health, Inc., Appellant; Commissioner of Labor, Respondent.
    Submitted August 18, 2014;
    decided October 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Anthony J. Hensel, Appellant, v City of Utica et al., Respondents.
    Submitted August 18, 2014;
    decided October 16, 2014
   Motion for reargument of motion for leave to appeal denied [see 23 NY3d 908 (2014)]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Nathaniel Jay, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided October 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Peter A. Leidel et al., Appellants, v John P. Annicelli, Doing Business as Old Stone Hill Road Associates, et al., Respondents.
    Submitted July 28, 2014;
    decided October 16, 2014
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution and the stipulation does not qualify as a final judgment within the meaning of CPLR 5602 (a) (1) (ii) to bring up for review the prior nonfinal Appellate Division order because it was entered into without prejudice.


text:
    Suarna Mehulic, Appellant, v New York Downtown Hospital, Respondent.
    Submitted March 10, 2014;
    decided October 16, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Suarna Mehulic, Appellant, v New York Downtown Hospital, Respondent.
    Submitted March 31, 2014;
    decided October 16, 2014
   Motion for a stay dismissed as academic.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted October 20, 2014;
    decided October 16, 2014
   Motion by Business Council of New York State et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Noel Olmosperez, Appellant, v Andrea W. Evans, as Chair of the Board of Parole, Respondent.
    Submitted October 6, 2014;
    decided October 16, 2014
   Motion for assignment of counsel denied.


text:
    The People of the State of New York, Respondent, v Nugene Ambers, Appellant.
    Submitted October 6, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jose Martinez Baxin, Appellant.
    Submitted October 14, 2014;
    decided October 16, 2014
   Motion for poor person relief granted.


text:
    The People of the State of New York, Appellant, v Dwight R. DeLee, Respondent.
    Submitted October 6, 2014;
    decided October 16, 2014
   Motion by New York State Association of Criminal Defense Lawyers et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Everett M. Durant, Appellant.
    Submitted September 29, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Pettis Hardy, Appellant.
    Submitted October 14, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Todd R. Heatley, Appellant.
    Submitted September 22, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and David M. Abbatoy, Jr., care of The Abbatoy Law Firm, PLLC, 339 East Ave., Suite 300, Rochester, New York 14606 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Mark Jurgins, Appellant.
    Submitted October 14, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Julio Negron, Appellant.
    Submitted October 14, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Joel B. Rudin, Esq., care of Law Offices of Joel B. Rudin, 600 Fifth Ave., 10th Floor, New York, NY 10020 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Vinod Patel, Respondent.
    Submitted September 2, 2014;
    decided October 16, 2014
   Motion for reargument denied [see 23 NY3d 605 (2014)].


text:
    The People of the State of New York, Respondent, v Luciano Rosario, Appellant.
    Submitted October 6, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kareem Washington, Appellant.
    Submitted September 29, 2014;
    decided October 16, 2014
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. David Loyd, Appellant, v John R. Demars, Respondent.
    Decided October 16, 2014
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York ex rel. Gary H. Moore, Appellant, v Superintendent of Coxsackie Correctional Facility, Respondent.
    Decided October 16, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Carlos Rodriguez, Appellant, v Barbara G. Zambelli, Respondent.
    Submitted August 18, 2014;
    decided October 16, 2014
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Mary Veronica Santiago-Monteverde, Debtor. Mary Veronica Santiago-Monteverde, Appellant, v John S. Pereira, Chapter 7 Trustee, Respondent.
    Submitted September 29, 2014;
    decided October 16, 2014

      See 747 F3d 153.
   Motion by City of New York for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, Appellant, v Town of Dryden et al., Respondents.
    Submitted September 8, 2014;
    decided October 16, 2014
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 23 NY3d 728 (2014)].


author: Chief Judge Lippman

text:
    [20 NE3d 987, 996 NYS2d 207]
    In the Matter of Eric Smith, Respondent, v Richard A. Brown, Appellant, et al., Respondents.
    Argued September 17, 2014;
    decided October 21, 2014

      APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Jill A. Gross-Marks and John M. Castellano of counsel), for appellant.

      Patrick Michael Megaro, Uniondale, for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner Eric Smith was charged with weapon possession after the police stopped him for a traffic infraction and discovered that he was carrying a loaded handgun. During jury deliberations, two jurors sent a note to the court reporting that juror 11 had recounted to the entire jury “a conversation he had with a lawyer friend regarding hypothetical cases involving a gun.” After the three jurors were questioned, the court dismissed juror 11 with the consent of defense counsel and the prosecutor.

Following a short recess, the prosecutor requested that a mistrial be declared because only 11 jurors remained. Defense counsel opposed a mistrial and asserted that deliberations could continue with 11 jurors, relying on People v Gajadhar (9 NY3d 438 [2007]). The court declined to proceed with fewer than 12 jurors and granted a mistrial, finding that “the very heart and integrity of the jury process has been compromised by the juror misconduct in this case.”

The People sought to prosecute Smith again and the case was adjourned repeatedly for more than two years. When the trial date finally arrived, the case was again postponed because Smith had commenced this CPLR article 78 prohibition proceeding in the Appellate Division. He claimed that the Double Jeopardy Clause barred a retrial because deliberations could have continued with 11 jurors under Gajadhar and there was no “manifest necessity” demanding a mistrial. The People responded that the article 78 petition was untimely because it was filed more than four months after the mistrial had been declared.

The Appellate Division held that the proceeding had been timely commenced under a “continuing harm” theory and granted the writ of prohibition (see 105 AD3d 965 [2d Dept 2013]). The court concluded that the declaration of a mistrial was an abuse of discretion because the trial court did not consider alternative remedies, such as continuing the proceedings with an 11-member jury; asking the jurors about their ability to remain impartial; or issuing a curative instruction to cure the taint.

We now reverse. A four-month limitations period applies to CPLR article 78 prohibition proceedings (see CPLR 217 [1]; see e.g. Matter of Holtzman v Marrus, 74 NY2d 865, 866 [1989]) and the petition here was filed more than two years after the mistrial was declared. Although a tolling period for continuing harm has been recognized (see e.g. Matter of Johnson v Carro, 24 AD3d 140, 141 [1st Dept 2005], lv denied 7 NY3d 704 [2006]; Taub v Committee on Professional Stds. for Third Jud. Dept., 200 AD2d 74, 77-78 [3d Dept 1994]) and would be adopted by our concurring colleague, we reject its application in this situation. Once the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial, Smith was obligated to initiate his double jeopardy-based article 78 challenge within the statutorily prescribed time frame. On the facts of this case, that period expired well before prohibition was sought, and therefore, the proceeding was barred by the statute of limitations.

Chief Judge Lippman

(concurring in result). I cannot agree with the majority that the petition is untimely. I concur in the result as I also believe that the Appellate Division order should be reversed and the petition dismissed, but I reach that result on the merits.

The majority implicitly rejects respondent’s contention that the statute of limitations starts to run on the date the trial court declares a mistrial. Presumably they do so on the basis that the declaration of mistrial is not a “final and binding” decision to retry the defendant in the criminal case (CPLR 217 [1]; Matter of Holtzman v Marrus, 74 NY2d 865 [1989]; Matter of Edmead v McGuire, 67 NY2d 714 [1986]).

The majority apparently concludes the determination became final and binding “[o]nce the People definitively demonstrated their intent to re-prosecute and the court began to calendar the case for eventual trial” (majority mem at 983). This test is at best uncertain and can only engender unnecessary, protracted litigation on a preliminary issue.

Here, for example, the People repeatedly adjourned the proceedings. The People could have dropped the charges at any time, which would have terminated the possibility of a retrial. The parties were in a holding pattern for over two years.

In any event, there is no reason to bar as untimely a CPLR article 78 petition raising a double jeopardy claim prior to retrial. The majority requires petitioner to go through retrial, conviction, and appeal in order to raise this double jeopardy claim.

I would adopt the holding of the Appellate Division in Matter of Johnson v Carro (24 AD3d 140, 141 [1st Dept 2005], lv denied 7 NY3d 704 [2006]) that respondent’s assertion of authority to retry petitioner is a continuing wrong. The nature of prohibition proceedings, that they address “whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction” (Matter of Town of Huntington v New York State Div. of Human Rights, 82 NY2d 783, 786 [1993] [internal quotation marks and citation omitted]), calls into question “the very applicability of the four-month statute of limitations” of CPLR 217 (1) (Siegel, NY Prac § 566 at 1006 [5th ed 2011]). Unlike article 78 proceedings based on certiorari or mandamus, a prohibition proceeding “is one that implies a lack of jurisdiction on the part of the respondent that would presumably be a continuing one — it can be argued that the four months may be measured from any point during the jurisdiction’s continued exercise” (Siegel, NY Prac § 566 at 1006 [5th ed 2011]).

Nonetheless, petitioner is not entitled to a writ of prohibition since, on the merits, the trial court properly declared a mistrial based on manifest necessity. The jury in this case was thoroughly tainted by gross misconduct justifying mistrial. While the jury panel was focusing on whether the evidence showed “possession of a gun,” juror 11 told the panel “the only thing that we should focus on is whether we believe that the gun was in the car or not.” Juror 11 obtained this advice from his lawyer friend whom he had called the previous night to discuss a “hypothetical situation concerning a gun.” Jurors 7 and 12 sent a note to the court reporting that juror 11 had recounted this to the entire jury. Juror 12 indicated to the court that she was angry about what occurred and uncomfortable with juror ll’s behavior. Juror 11 then admitted his misconduct. Rejecting defense counsel’s request to poll the remaining jury members as to their impartiality, as is the normal course, the court emphasized that juror ll’s actions went “above and beyond” usual misconduct because his disclosure of the lawyer’s advice on an integral issue to the case had “tainted” and “compromised” the “absolute integrity of the jury process” and irreparably infected the entire jury. The court was “absolutely satisfied” that “the very heart and integrity of the jury process ha[d] been compromised,” resulting in an incurable taint to the entire trial. Under the circumstances, it cannot be said that the trial court abused its discretion in declaring a mistrial (see Matter of Rivera v Firetog, 11 NY3d 501, 507 [2008], cert denied 556 US 1193 [2009]; Matter of Enright v Siedlecki, 59 NY2d 195, 200 [1983]).

Judges Graffeo, Read, Smith, Pigott, Rivera and AbdusSalaam concur; Chief Judge Lippman concurs in result in an opinion.

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


text:
    [21 NE3d 207, 996 NYS2d 578]
    The People of the State of New York, Respondent, v Thomas Horton, Appellant.
    Argued September 16, 2014;
    decided October 21, 2014
    APPEARANCES OF COUNSEL

      Tyson Blue, Macedón, for appellant.

      Richard M. Healy, District Attorney, Lyons (Christopher Bokelman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

In June of 2010, investigators in the Wayne County Sheriffs Office planned a controlled, recorded drug purchase. The investigators recruited a young woman (hereafter, the confidential informant) to make the actual buy. She was wired with a microphone, and a camera was concealed in the back seat of her car. On June 10th, she arranged a meeting, apparently with defendant Thomas Horton, and drove to a parking lot to rendezvous with him. When defendant arrived, he was accompanied by another man, Clarence Jackson, who sold the confidential informant a quantity of cocaine, a transaction captured by the hidden camera and recorded by the wire.

On or about April 21, 2011, Jackson was arrested and charged with sale of a controlled substance. That same day, he went to defendant’s house with a copy of the videotape; Jackson explained that he had just been arrested for the sale and that he planned to take a plea. Later that day, the confidential informant contacted one of the investigators who had worked with her on the buy to report that defendant had begun “outing” her on Facebook. In addition to identifying her as an informant, defendant uploaded a clip of the surveillance video to the website YouTube, and provided a link to it on his Face-book page. The video spawned a flurry of discussion and recriminations from defendant and his Facebook friends. Many statements were made by defendant and others denouncing snitches in general and the confidential informant specifically, including warnings that “Snitches get stitches” and “I hope she gets what’s coming to her.”

On April 25, 2011, defendant was arrested for fourth-degree witness tampering, which provides, as relevant, that

“[a] person is guilty of tampering with a witness when, knowing that a person is or is about to be called as a witness in an action or proceeding, (a) he wrongfully induces or attempts to induce such person to absent himself from, or otherwise to avoid or seek to avoid appearing or testifying at, such action or proceeding” (Penal Law § 215.10).

On June 27, 2011, defendant was tried by jury in Town Court and convicted as charged; he was sentenced to one year in Wayne County jail. Defendant appealed to County Court, arguing that there was insufficient evidence that he attempted to prevent the confidential informant from testifying, or that he had any knowledge that she would testify in any proceeding.

County Court affirmed. The judge noted that defendant’s best friend, Jackson, was charged with a drug sale, and knew that the confidential informant had worked with police to secure the charge; that defendant made Facebook posts identifying the confidential informant; and that the confidential informant was able to see these posts and the comments from other Facebook users that the posts generated. A Judge of this Court granted defendant leave to appeal (21 NY3d 1074 [2013]), and we now affirm.

The evidence, seen in the light most favorable to the People, is sufficient to establish that defendant knew that the confidential informant might testify in a proceeding, and that he wrongfully sought to stop her from doing so. After learning about Jackson’s arrest and the confidential informant’s role as a witness against Jackson and, potentially, himself, defendant immediately posted communications on the Internet that the jury might have reasonably inferred were coded threats that were intended to induce the confidential informant not to testify. And in addition to the public postings on Facebook and YouTube, defendant was in contact via Facebook messages (which essentially act as email on the website) with the confidential informant and her mother.

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

Order affirmed, in a memorandum.


text:
    Hassan O.G. Alamin, Appellant, v Shake Uddin et al., Respondents.
    Decided October 21, 2014
   Appeal, insofar as taken from the January 2014 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it is untimely (see CPLR 5513 [a]); appeal, insofar as taken from the May 2014 Appellate Division order, 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 Robert Butler et al., Appellants, v City of Rye Planning Commission et al., Respondents.
    Submitted August 18, 2014;
    decided October 21, 2014
   Motion, insofar as it seeks leave to appeal from the February 2014 Appellate Division order, dismissed upon the ground that it does not lie, appellants having previously moved in the Court of Appeals for leave to appeal (23 NY3d 984 [2014]) from the same Appellate Division order from which they currently seek leave to appeal (see Selinger v Selinger, 90 NY2d 842 [1997]); motion, insofar as it seeks leave to appeal from the May 2014 Supreme Court judgment, dismissed upon the ground that no motion for leave to appeal lies therefrom (see CPLR 5602; Jajoute v New York City Health & Hosps. Corp., 92 NY2d 941 [1998]).

Judge Rivera taking no part.


text:
    In the Matter of Antonio Cole, Appellant, v Nicholas DeRosa, Respondent.
    Submitted August 25, 2014;
    decided October 21, 2014
   Motion to vacate this Court’s July 15, 2014 dismissal order granted [see 23 NY3d 1032 (2014)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Foreclosure of Tax Liens by the County of Ulster, Appellant; ERED Enterprises, Inc., Respondent.
    Submitted September 2, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of David M. Westchester County Department of Social Services, Respondent; Sonia M.-C. et al., Appellants.
    Submitted September 8, 2014;
    decided October 21, 2014
   Motions for leave to appeal denied. Motions for poor person relief dismissed as academic. Motion by Willie H. for a stay dismissed as academic.


text:
    Morgan Delijani, Respondent, v Parham Delijani, Defendant. Sean Sabeti, Nonparty Appellant.
    Submitted September 2, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    International Shoppes, Inc., et al., Respondents, v Arleigh Spencer, Appellant.
    Submitted September 2, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    Michael A. Lawler, Respondent, v KST Holdings Corporation et al., Defendants, and Kevin S. Taillie, Appellant.
    Submitted August 18, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Estate of Hernando Moody, Deceased, Respondent, v Quality Structures, Inc., et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted September 2, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    National Union Fire Insurance Company of Pittsburgh, Pennsylvania, et al., Appellants, et al., Plaintiffs, v Trans-Canada Energy USA, Inc., et al., Respondents. (And Another Action.)
    Submitted August 18, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    National Union Fire Insurance Company of Pittsburgh, Pennsylvania, et al., Appellants, et al., Plaintiffs, v Trans-Canada Energy USA, Inc., et al., Respondents. (And Another Action.)
    Submitted September 8, 2014;
    decided October 21, 2014
   Motion to vacate stay and for other relief denied.

Chief Judge Lippman taking no part.


text:
    Ioannis Pipinias, Respondent, v J. Sackaris & Sons, Inc., Defendant, and Lawrence Mirro, Appellant.
    Submitted September 2, 2014;
    decided October 21, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of R. Rodney Washington, a Suspended Attorney, Appellant.
    Decided October 21, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of James Argentina, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted September 8, 2014;
    decided October 23, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Anthony Branham, Sr., Appellant, v R.V. Ambulette, Inc., et al., Respondents.
    Submitted September 2, 2014;
    decided October 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Donna B. Clark, Appellant, v Farmers New Century Insurance Company, Sued Herein as Farmers Insurance Company, Respondent.
    Submitted September 15, 2014;
    decided October 23, 2014
   Motion, insofar as it seeks leave to appeal from the May 2014 Appellate Division order, denied; motion for leave to appeal from the remaining orders is otherwise dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Michael Fasolo et al., Appellants, v Joseph A. Scarafile, Respondent.
    Submitted September 15, 2014;
    decided October 23, 2014
   Motion, insofar as it seeks leave to appeal from that portion of the August 2014 Appellate Division order affirming so much of Supreme Court’s order as granted the motion to dismiss the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the August 2014 Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Mount Sinai Hospital, as Assignee of Alison Cassani, Respondent, v Dust Transit, Inc., Appellant.
    Submitted September 15, 2014;
    decided October 23, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]).


text:
    The People of the State of New York, Respondent, v Scott Barden, Appellant.
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rashid Bilal, Appellant.
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert J. Cooke, Appellant.
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion for assignment of counsel granted and Mary P Davison, Esq., care of Davison Law Office, 61 North Main St., Suite C, PO Box 652, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Pealer, Appellant.
    Submitted September 29, 2014;
    decided October 23, 2014
   Motion for reargument denied [see 20 NY3d 447 (2013)].


text:
    The People of the State of New York, Respondent, v Christopher E. Walker, Appellant.
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    Patricia Schwartz, Appellant, v Ishaque Nagori et al., Respondents.
    Submitted September 8, 2014;
    decided October 23, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010]).


text:
    In the Matter of State of New York, Respondent, v Enrique T., Appellant.
    Submitted July 28, 2014;
    decided October 23, 2014
   Motion to amend the caption dismissed as academic.


text:
    In the Matter of State of New York, Respondent, v Enrique T. Appellant.
    Submitted October 6, 2014;
    decided October 23, 2014
   Motion by appellant for permission to withdraw the appeal granted and appeal marked withdrawn.


text:
    In the Matter of Trenasia J. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 1.) In the Matter of Raymond J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 2.) In the Matter of Tavia J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 3.) In the Matter of Brije D., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 4.)
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion by The Bronx Defenders et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Universal American Corp., Appellant, v National Union Fire Insurance Company of Pittsburgh, PA., Respondent.
    Submitted October 20, 2014;
    decided October 23, 2014
   Motion by United Policyholders for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    [21 NE3d 558, 997 NYS2d 106]
    The People of the State of New York, Appellant, v Eugene Polhill, Respondent.
    Argued September 18, 2014;
    decided October 28, 2014

      APPEARANCES OF COUNSEL

      Barket, Marion, Epstein & Kearon, LLP, Garden City {Donna Aldea of counsel), and Richard A. Brown, District Attorney, Kew Gardens {John M. Ryan, James C. Quinn and Robert J. Masters of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City {Leila Hull and Allegra Glashausser of counsel), for respondent.

      New York Civil Liberties Union Foundation, New York City {Taylor Pendergrass, Christopher Dunn and Corey Stoughton of counsel), and American Civil Liberties Union Foundation, New York City {Ezekiel Edwards and Brandon Buskey of counsel), for New York Civil Liberties Union and another, amici curiae.

      Barbara S. Gillers, New York University School of Law, New York City, and Patterson Belknap Webb & Tyler LLP, New York City {Eugene M. Gelernter and Amy N. Vegari of counsel), for Legal Ethics Bureau at New York University School of Law, amicus curiae.

      Frank A. Sedita III, Buffalo, Morrie I. Kleinbart, Staten Island, and Donna Milling, Buffalo, for District Attorneys Association of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed for failing to meet the requisites of CPL 450.90 (2) (a).

The Appellate Division determined that Supreme Court should have suppressed the identification evidence because the police lacked reasonable suspicion to stop and detain defendant on the street (102 AD3d 988 [2013]). Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact (see People v Howard, 74 NY2d 943 [1989]). Because the Appellate Division’s reversal was thus not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), its order is not appealable.

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

Appeal dismissed, in a memorandum.


text:
    Dane E. Clayton, Appellant, v New York City Taxi & Limousine Commission et al., Respondents.
    Submitted October 6, 2014;
    decided October 28, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 902 (2014)].


text:
    In the Matter of Raghubir K. Gupta, a Suspended Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Respondent.
    Submitted September 29, 2014;
    decided October 28, 2014
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Lupe Development Partners, LLC, et al., Appellants, v Pacific Flats I, LLC, et al., Defendants. Penny Drue Baird, Nonparty Respondent.
    Submitted August 18, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    New York City School Construction Authority, Respondent, v Admiral Construction, LLC, Appellant.
    Submitted August 18, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Ryan Nicastro, Appellant, v New York Central Mutual Fire Insurance Company, Respondent.
    Submitted September 15, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Raphael Golb, Appellant.
    Submitted July 28, 2014;
    decided October 28, 2014
   Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Nathaniel Willis, Appellant.
    Submitted September 15, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of County Court entered in this proceeding commenced in City Court (see NY Const, art VI, § 3 [b]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Arthur E. Rondeau, Appellant, v Allan Houston et al., Respondents. Arthur E. Rondeau, Appellant, v New York Knickerbockers et al., Respondents.
    Submitted August 11, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Arthur E. Rondeau, Appellant, v Allan Houston et al., Respondents. Arthur E. Rondeau, Appellant, v New York Knickerbockers et al., Respondents.
    Submitted October 6, 2014;
    decided October 28, 2014
   Motion for the imposition of sanctions denied.


text:
    George Bundy Smith, Sr., Appellant, v United Church of Christ et al., Respondents.
    Submitted October 6, 2014;
    decided October 28, 2014
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 902 (2014)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    2301 7th Avenue HDFC, Respondent, v Dana N. Escoffier, Administrator of the Estate of Lovey Branham, Appellant.
    Submitted October 6, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Brad White, Appellant, v Darwin LaClair, as Superintendent of Franklin Correctional Facility, et al., Respondents.
    Submitted September 29, 2014;
    decided October 28, 2014
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kathy Wilson et al., Appellants, v Georgina Bowman, Respondent, et al., Respondents.
    Submitted October 29, 2014;
    decided October 30, 2014
   Motion for leave to appeal denied. The Court of Appeals restates the rule that denial of a motion for leave to appeal is not equivalent to an affirmance and has no precedential value (see Matter of Marchant v Mead-Morrison Mfg. Co., 252 NY 284, 297-298 [1929]).

Judge Read taking no part.


text:
    [21 NE3d 563, 997 NYS2d 111]
    Branic International Realty Corp., Appellant, v Phillip Pitt, Respondent, et al., Respondents.
    Argued October 22, 2014;
    decided November 18, 2014

      APPEARANCES OF COUNSEL

      Rosenberg Calica & Birney LLP, Garden City (Ronald J. Rosenberg and Lesley A. Reardon of counsel), for appellant.

      Goddaard Riverside SRO Law Project, New York City (Martha A. Weithman of counsel), and Manhattan Legal Services, New York City {Jim Provost of counsel), for respondent.

      MFY Legal Services, Inc., New York City {Tanya Kessler, Brian Sullivan, Kevin Cremin and Jeanette Zelhof of counsel), and Covington & Burling LLP, New York City (C. William Phillips and Evie Spanos of counsel), for The Bronx Defenders and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the matter remitted to the Appellate Division with directions to dismiss the proceeding solely on the ground of mootness, and the certified question not answered as unnecessary.

The issues presented in this case are moot because respondent voluntarily vacated the premises. The mootness exception is not applicable under the facts of this case (see e.g. Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]) and therefore the proceeding should be dismissed (see Matter of Park E. Corp. v Whalen, 43 NY2d 735, 736 [1977]).

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

Order reversed, without costs, matter remitted to the Appellate Division, First Department, with directions to dismiss the petition solely on the ground of mootness and certified question not answered as unnecessary, in a memorandum.


text:
    [23 NE3d 1021, 998 NYS2d 753]
    The People of the State of New York, Respondent, v Derrick Hill, Appellant.
    Argued October 16, 2014;
    decided November 18, 2014

      APPEARANCES OF COUNSEL

      Steven Banks, The Legal Aid Society, New York City (<Jonathan Garelick and Scott A. Rosenberg of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

Absent “unusual circumstances,” evidence of a defendant’s silence at the time of arrest is generally inadmissible under common-law evidentiary principles (People v Conyers, 52 NY2d 454, 459 [1981]). And the use for impeachment purposes of a defendant’s silence after receiving Miranda warnings has been deemed impermissible as a matter of due process (see Doyle v Ohio, 426 US 610, 619 [1976]). Under the circumstances presented, we conclude that defendant did not open the door to evidence of his post -Miranda silence and, therefore, Supreme Court erred in permitting its introduction at trial. Nor can the error be viewed as harmless in this case.

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

Order reversed and a new trial ordered, in a memorandum.


text:
    Linda Dauria et al., Appellants, v Castlepoint Insurance Company et al., Defendants, and Frank Campo, Respondent.
    Decided November 18, 2014
   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 Edwin Lopez, Respondent, v Andrea Evans, Appellant.
    Submitted November 3, 2014;
    decided November 18, 2014
   Motion by The Fortune Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided November 18, 2014
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Noel Olmosperez, Appellant, v Andrea W. Evans, as Chair of the Board of Parole, Respondent.
    Submitted October 6, 2014;
    decided November 18, 2014
   Motion to expand the record denied.


text:
    The People of the State of New York, Respondent, v Assad Cedeno, Appellant.
    Submitted October 27, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Crawford, Appellant.
    Submitted November 10, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Zachary T. Guerin, Appellant.
    Submitted November 3, 2014;
    decided November 18, 2014
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Sean John, Appellant.
    Submitted November 17, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lynden Lobban, Appellant.
    Submitted October 27, 2014;
    decided November 18, 2014
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    The People of the State of New York, Respondent, v Matthew P., Appellant.
    Submitted November 10, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jeffrey Mercado, Appellant.
    Submitted November 10, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony V. Pavone, Appellant.
    Submitted October 27, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Paul J. Connolly, care of Law Office of Paul J. Connolly Esq., 2 Wedge Road, Delmar, New York 12054 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ronald D. Rossborough, Appellant.
    Submitted November 17, 2014;
    decided November 18, 2014
   Motion for assignment of counsel granted and Christine Seppeler, care of Law Office of Christine Seppeler, 144 Exchange Blvd., Suite 402, Rochester, New York 14614, assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Julian Silva, Appellant. The People of the State of New York, Respondent, v Pamela Hanson, Appellant.
    Submitted November 10, 2014;
    decided November 18, 2014
   Motion by Thomas P Theophilos for leave to file a brief amicus curiae on the appeals herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [1] [iii]).

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Omar White, Appellant.
    Submitted November 3, 2014;
    decided November 18, 2014
   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:
    [21 NE3d 568, 997 NYS2d 115]
    The People of the State of New York, Respondent, v Tyrone Davis, Appellant.
    Decided November 20, 2014

      APPEARANCES OF COUNSEL

      Feldman & Feldman, Uniondale (Steven A. Feldman and Arza Feldman of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Thomas Constant of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant failed to bring a motion to withdraw his plea under CPL 220.60 (3) or a motion to vacate the judgment of conviction pursuant to CPL 440.10. Nor did his factual recitation negate the intent element of the crime to which he pleaded guilty. His plea therefore does not qualify for the “rare case” exception to the preservation requirement under People v Lopez (71 NY2d 662, 666 [1988]). Consequently, defendant’s challenge to the factual sufficiency of his allocution “was properly rejected by the Appellate Division and its order upholding the plea and conviction should be affirmed” (People v Toxey, 86 NY2d 725, 726 [1995]).

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

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


text:
    [21 NE3d 1009, 997 NYS2d 348]
    The People of the State of New York, Respondent, v William Cullen, Appellant.
    Argued September 17, 2014;
    decided October 23, 2014
    APPEARANCES OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (.Kristen N McDermott of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse {James P. Maxwell and Maria Maldonado of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Complainant, who was born in 1993, discovered the identity of her biological father, defendant William Cullen, in early 2006 when she was 12 years old. She expressed a desire to get to know him, and her mother arranged for the three of them to meet at a restaurant at a local mall. In June 2006, just after complainant turned 13 years old, she moved in with defendant. She resided with defendant until mid-October 2007, and visited him on a few occasions later that fall over a weekend. On December 12, 2007, complainant entered the Cayuga Home for Children (CHC) in Auburn, New York, where she had been placed by Family Court. Later in December 2007, complainant discovered that she was pregnant.

Complainant knew that defendant was the father because, beginning in the summer of 2007, he had forced her to have sex with him, including on her last weekend visit with him in November 2007. At first, she lied that the father was “David,” someone whom she invented. In the spring of 2008, however, complainant dropped a “hint” about defendant’s sexual conduct towards her in a conversation with her mother. She finally fully disclosed the truth to a CHC counselor. She later testified that after her pregnancy was terminated, the counselor kept “drilling,” pressing her to reveal what was wrong, and “eventually [complainant] just popped [because she] couldn’t deal with it anymore . . . [Defendant] just kept not being a father, and . . . everything that he did built up and built up and built up, and [she] ended up just saying everything.”

In March 2009, defendant was indicted for second-degree rape (Penal Law § 130.30 [1]), second-degree incest (Penal Law § 255.26) and other crimes. At his ensuing jury trial, Supreme Court, over objection, allowed the prosecutor to ask complainant’s mother if she “remember [ed] having a conversation with [complainant] . . . regarding conduct by her father,” and when this occurred; and if she remembered “receiving information that [complainant] had made a disclosure to someone at CHC,” and when this occurred. Again over objection, the CHC counselor was asked if she had ever had a conversation with complainant about her father, and if, on April 14, 2008, complainant made a disclosure to her “about some sexual misconduct by [defendant].” The counselor answered “yes” to both questions, and the judge advised the jury that this testimony “[was] not evidence that [defendant] did anything wrong. It just explains the subsequent conduct of the witness. It’s not evidence that [defendant] did anything wrong, it’s hearsay.”

The jury convicted defendant of rape, incest and other sexual crimes; Supreme Court sentenced him to 15 years in prison, to be followed by five years of postrelease supervision. Defendant appealed, and the Appellate Division unanimously affirmed (110 AD3d 1474 [4th Dept 2013]). Citing its earlier decision in People v Ludwig (104 AD3d 1162 [4th Dept 2013]), the court rejected defendant’s claim of improper bolstering because the objected-to testimony of complainant’s mother and the CHC counselor “was not admitted for its truth” (id. at 1475). The Appellate Division also disallowed defendant’s other claims (that pervasive misconduct permeated the prosecutor’s summation; and that the trial judge improperly constructively amended the indictment and admitted evidence of prior bad acts), to the extent preserved, and concluded that defendant had received the effective assistance of counsel. A Judge of this Court granted defendant permission to appeal (22 NY3d 1087 [2014]), and we now affirm.

The trial judge did not abuse his discretion when he allowed the People to elicit testimony about the fact and timing of complainant’s revelations for the nonhearsay purpose of explaining the events kicking off the investigative process that led to the charges against defendant (see generally People v Ludwig, 24 NY3d 221 [2014] [decided today]). Complainant admittedly passed up many opportunities to report defendant’s alleged sexual misconduct, and the defense attributed her accusations to the wrath of a troubled girl trying to get even with defendant for not winning her release from the CHC group home and taking her back to live with him. The jury was therefore permitted to consider evidence of the circumstances of complainant’s delayed disclosure. Finally, we consider defendant’s claim of ineffective assistance of counsel to be without merit.

Chief Judge Lippman (concurring in result). For the reasons stated in my dissent in the companion case of People v Ludwig (24 NY3d 221, 235 [2014]), I disagree with the majority’s reasoning in this case. However, here the court confined the statements to the report alone, and prohibited witnesses from repeating the complainant’s statements concerning the description of the crime itself. Given the overwhelming evidence against defendant in this case and the less prejudicial nature of the error, I would find the error here harmless (People v McDaniel, 81 NY2d 10, 18 [1993]).

Judges Graffeo, Read, Pigott and Abdus-Salaam concur; Chief Judge Lippman concurs in result in an opinion in which Judge Rivera concurs; Judge Smith concurs in result for reasons stated in his concurring opinion in People v Ludwig (24 NY3d 221, 233 [2014] [decided today]).

Order affirmed, in a memorandum.