text:
    [974 NE2d 661, 950 NYS2d 615]
    The People of the State of New York, Respondent, v Carlos Miranda, Appellant.
    Decided June 26, 2012

      APPEARANCES OF COUNSEL

      Bronx Defenders, Bronx (Kathryn E. Miller of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

At 11:30 p.m. on October 5, 2006, in Soundview Park in the Bronx, a New York City police officer observed a knife on defendant’s person, and seized it, while he was issuing defendant a summons for trespass and questioning him about his presence in the park after hours. The knife turned out to be a gravity knife, and defendant was charged with criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). Defendant moved to suppress the knife as the fruit of an unlawful search and seizure. Supreme Court granted the motion on the ground that, at the time the officer took the knife, he lacked probable cause to believe that defendant had committed a crime. The Appellate Division reversed, finding that the officer was entitled to seize the knife when he saw it (76 AD3d 466 [2010]).

We agree with the Appellate Division. Where a knife (even if not necessarily an illegal one) becomes plainly visible to a police officer in the course of an authorized common-law inquiry due to the suspect’s own movement and no intrusive conduct on the officer’s part, the officer is permitted to seize it, so long as the ensuing intrusion is “minimal” and “consonant with the respect and privacy of the individual” (People v De Bour, 40 NY2d 210, 221 [1976]). Here, the officer observed that defendant was armed while questioning him late at night in a high crime area after determining that he was trespassing; under these circumstances, it was reasonable for the officer to retrieve the knife and make an arrest when it turned out to be unlawful (see De Bour, 40 NY2d at 220-221; see also People v Wyatt, 14 AD3d 441 [1st Dept 2005], lv denied 4 NY3d 837 [2005]).

Our recent decisions in People v Brannon and People v Fernandez (16 NY3d 596 [2011]) are not controlling. The officer here, unlike the officers in those cases, was already engaged in a lawful encounter with defendant prior to spotting the knife, and was thus not required to have a reasonable suspicion that the knife he observed was a gravity knife before he took it.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones 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.

        “A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises” (Penal Law § 140.05). “A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00 [5]). Trespass is a violation (Penal Law § 140.05). Where a police officer has probable cause to believe that a person has committed a violation, the decision to issue a summons as opposed to making an arrest is within the officer’s discretion (see CPL 150.20 [1]; see also People v Lewis, 50 AD3d 595 [1st Dept 2008]; People v Soto, 297 AD2d 581 [1st Dept 2002]).


source: Caselaw Access Project

author: Memorandum.

license: Public Domain

text:
    [973 NE2d 179, 950 NYS2d 84]
    The People of the State of New York, Respondent, v Danny Martin, Appellant.
    Decided June 26, 2012

      APPEARANCES OF COUNSEL

      Willkie Farr & Gallagher LLP, New York City (Mei Lin KwanGett and James F. Caputo of counsel), and Legal Aid Society of New York (Denise Fabiano and Steven Banks of counsel) for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed (see People v De Bour, 40 NY2d 210 [1976]). Whether Detective Barnes had a founded suspicion to approach defendant, or probable cause to arrest him involve mixed questions of law and fact, beyond our review if the determination is supported by the record. Because such record evidence exists here, the issues are beyond further review by this Court.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones 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:
    Brenda Andrews et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted April 30, 2012;
    decided June 26, 2012
   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 Jeffrey Baker, Respondent, v Poughkeepsie City School District et al., Appellants.
    Submitted April 30, 2012;
    decided June 26, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 714 (2012)].


text:
    Robert A. Denenberg, Individually and as Administrator of Robert A. Denenberg, a Sole Proprietorship Defined Benefit Pension Plan, Appellant, v Warren Rosen et al., Respondents, and John Repetti et al., Appellants. (And Other Actions.)
    Submitted April 23, 2012;
    decided June 26, 2012
   Motions, insofar as they seek leave to appeal against defendants Bankers Life of New York, Kenneth R. Hartstein, ECI Pension Services, LLC, Economic Concepts Inc., Richard C. Smith, and Bryan Cave, LLI] denied; motions, insofar as they seek leave to appeal against other parties, dismissed upon the ground that, as to such other parties, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Angel Diaz, Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Decided June 26, 2012
   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:
    Eastside Exhibition Corp., Appellant, v 210 East 86th Street Corp., Respondent.
    Submitted April 9, 2012;
    decided June 26, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 617 (2012)].


text:
    In the Matter of A. Dennis Gardner, Respondent, v Coxsackie-Athens Central School District Board of Education, Appellant.
    Submitted April 30, 2012;
    decided June 26, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type provided for in CPLR 5602 (a) (2).


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted June 4, 2012;

    decided June 26, 2012

   Motion by American Bankers Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Smith taking no part.


text:
    Kathryn Jordan, Appellant, v Bates Advertising Holdings, Inc., Formerly Known as AC & R Advertising, Inc., Respondent.
    Submitted April 30, 2012;
    decided June 26, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 911 (2012)].

Chief Judge Lippman taking no part.


text:
    Howard Kagan, Appellant, v HMC-New York, Inc., et al., Respondents.
    Decided June 26, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Judith Klein, Appellant, v New York City Administration for Children’s Services, Respondent.
    Submitted March 26, 2012;
    decided June 26, 2012
   Motion for reargument etc. denied [see 18 NY3d 806 (2012)].


text:
    Kolel Damsek Eliezer, Inc., Respondent, v Victor Schlesinger et al., Appellants, et al., Defendants.
    Submitted May 23, 2012;
    decided June 26, 2012
   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 Marcus Mungo, Appellant, v Norman Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided June 26, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Louis Leddick, Appellant.
    Submitted June 18, 2012;
    decided June 26, 2012
   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 Miguel Mejias, Appellant.
    Submitted June 18, 2012;
    decided June 26, 2012
   Motion for assignment of counsel granted and John R. Lewis, Esq., 36 Hemlock Drive, Sleepy Hollow, New York 10591 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Monroe, Appellant.
    Submitted June 18, 2012;
    decided June 26, 2012
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Morrison, Appellant.
    Submitted June 4, 2012;
    decided June 26, 2012
   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 Tyrone Prescott, Appellant.
    Submitted June 11, 2012;
    decided June 26, 2012
   Motion for assignment of counsel granted and Thomas F. Gleason, Esq., care of Gleason, Dunn, Walsh & O’Shea, Esqs., 40 Beaver Street, Albany, New York 12207 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Hilbert Stanley, Appellant.
    Submitted June 4, 2012;
    decided June 26, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Derron Stephens, Appellant.
    Submitted June 18, 2012;
    decided June 26, 2012
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    In the Matter of State of New York, Respondent, v Richard R., Appellant.
    Decided June 26, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Submitted June 18, 2012;
    decided June 26, 2012
   Motion by Reinsurance Association of America for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Jazmine Weisman et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted April 30, 2012;
    decided June 26, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Jazmine Weisman et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted May 14, 2012;
    decided June 26, 2012
   Motion for a stay dismissed as academic.


text:
    [973 NE2d 1277, 950 NYS2d 503]
    In the Matter of Chinese Staff and Workers’ Association et al., Appellants, v Amanda M. Burden, as Director of the New York City Department of City Planning, et al., Respondents.
    Argued May 30, 2012;
    decided June 27, 2012
    APPEARANCES OF COUNSEL

      South Brooklyn Legal Services, Brooklyn (Rachel Hannaford and John C. Gray of counsel), for Chinese Staff and Workers’ Association, appellant.

      Asian American Legal Defense and Education Fund, New York City (Bethany Y. Li of counsel), for Church of God of Brooklyn and others, appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Elizabeth S. Natrella, Leonard Koerner, Carrie Noteboom and Haley Stein of counsel), for respondents.

      Natural Resources Defense Council, Inc., New York City (Mitchell S. Bernard, Nancy S. Marks and John D. Wood of counsel), for Natural Resources Defense Council and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

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

The subject of this appeal concerns a rezoning proposal for Sunset Park, a predominantly residential neighborhood in Brooklyn. Following public hearings, the Department of City Planning (DCP), the lead agency here, prepared an environmental assessment statement (EAS) and issued a negative declaration, concluding that the proposed rezoning would not have an adverse impact on the environment. Petitioners Chinese Staff and Workers’ Association et al. commenced this CPLR article 78 proceeding, seeking to annul the negative declaration on the ground that DCP’s environmental review of the proposed rezoning was not in compliance with the New York State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.; 6 NYCRR 617.1 et seq.) and the City Environmental Quality Review (CEQR) rules (43 RCNY 6-01 et seq.; 62 RCNY 5-01 et seq.). Supreme Court denied the petition to annul DCP’s determination and dismissed the proceeding (27 Misc 3d 1219[A], 2010 NY Slip Op 50804[U] [2010]). The Appellate Division, with two Justices dissenting, affirmed (Matter of Chinese Staff & Workers’ Assn. v Burden, 88 AD3d 425 [1st Dept 2011]). Petitioners appeal as of right pursuant to CPLR 5601 (a).

It is well settled that SEQRA “is a legislative attempt to ensure that state and local agencies consider the environmental impact of their proposed actions” (Matter of Spitzer v Farrell, 100 NY2d 186, 190 [2003]). An agency’s “initial determination . . . under SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986]). “In making its initial determination, the agency will study many of the same concerns that must be assessed in an EIS, including both long- and short-term environmental effects” (Farrell, 100 NY2d at 190). Where an agency determines that an EIS is not required, it will issue a “negative declaration” (id.). “Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion” (id. [internal quotation marks and brackets omitted]).

“Judicial review of a lead agency’s SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination ‘was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ ” (Akpan v Koch, 75 NY2d 561, 570 [1990], quoting CPLR 7803 [3]). “In assessing an agency’s compliance with the substantive mandates of the statute, the courts must ‘review the record to determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination’ ” (id., quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]).

Applying this standard here, we conclude that the DCP neither abused its discretion nor was arbitrary or capricious when it issued a negative declaration determining that the proposed rezoning in this case would have no significant adverse effect on the environment. In its EAS, DCP identified the relevant areas of environmental concern, took a hard look at them and made a reasoned elaboration of the basis for its determination.

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

Order affirmed, with costs, in a memorandum.


author: Memorandum. Graffeo, J. (dissenting).

text:
    [973 NE2d 1272, 950 NYS2d 498]
    The People of the State of New York, Respondent, v Amber Maracle, Appellant. The People of the State of New York, Respondent, v Amber Maracle, Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    Argued May 29, 2012;
    decided June 27, 2012

      APPEARANCES OF COUNSEL

      Lipsitz Green Scime Cambria, LLP, Buffalo (Timothy P. Murphy of counsel), for appellant in the first and second above-entitled actions.

      Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers and Donna A. Milling of counsel), for respondent in the first and second above-entitled actions.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be reversed, and the matter remitted to that Court for further proceedings consistent with this memorandum.

Defendant, a bookkeeper/receptionist for a fence installation business, was indicted on one count of grand larceny in the second degree (Penal Law § 155.40 [1]) and four counts of forgery in the second degree (Penal Law § 170.10 [1]) for stealing money from her employer. She was assigned counsel at her arraignment and entered a plea of not guilty to the charges. On April 20, 2009, a month after her arraignment, defendant, unemployed and pregnant (and mother of three), appeared and, upon counsel’s advice, pleaded guilty to the entire indictment.

The court, prior to any presentence investigation, advised defendant that should she come up with one half of the restitution owed—$23,000—by the time of sentencing, it would sentence her to five years’ probation during which time she would be required to pay the remaining balance. She was further advised that if she failed to come up with the initial $23,000, there would be no promise as to her sentence but she wouldn’t be able to withdraw her plea. The court advised defendant that, by pleading guilty, she was “voluntarily waiving [her] right to appeal [her] conviction in this case” (emphasis supplied). The court scheduled sentencing for September 25, 2009.

In the interim, the probation department interviewed defendant and recommended, based upon its investigation, a period of probation rather than incarceration. In September 2009, defendant appeared at sentencing without having made any restitution payments. Assigned counsel stated that defendant “knows . . . she’s going to prison . . . [and] understands that the Court’s commitment was contingent, that the contingency was not met, and that the only alternative is to put her in prison.” But at the earlier plea hearing the court had not stated that prison for defendant was a certainty if she failed to make any payments. Rather, defendant was simply told that if she “fail[ed] to comply with any of these conditions, especially the condition of paying one half restitution by the sentence date, that there will be no promise as to your sentence and you will not he able to withdraw your plea” (emphasis supplied). Thus, the sentencing court still had the option of imposing a sentence of probation, as recommended in the presentence investigation, with a restitution order. Instead, it (mistakenly) sentenced defendant to the maximum terms of 5 to 15 years for four counts of grand larceny in the second degree, and neglected to sentence her at all relative to the four counts of forgery. At the conclusion of sentencing, the court advised this defendant, who had presumably waived her right to appeal, that she had 30 days within which to file a notice of appeal.

Upon receiving notice from the Department of Corrections and Community Supervision that defendant had been sentenced improperly, the sentencing court recalled defendant from prison and sentenced defendant to the maximum term on each and every count of the indictment—5 to 15 years’ imprisonment on the sole grand larceny count and to 7 years’ imprisonment on the second degree forgery counts. The court, again, advised defendant that she had 30 days within which to file a notice of appeal.

In Appeal No. 1, the Appellate Division dismissed the appeal to that Court insofar as it pertained to sentencing on the conviction of four counts of forgery in the second degree and otherwise affirmed the judgment of conviction and sentence. In Appeal No. 2, the Appellate Division affirmed defendant’s resentencing on the forgery counts. The Appellate Division concluded that defendant’s waiver of her right to appeal encompassed her challenge to the severity of the sentence (85 AD3d 1652 [4th Dept 2011]; 85 AD3d 1654 [4th Dept 2011]). A Judge of this Court granted leave from both orders of the Appellate Division.

The plea colloquy fails to establish that defendant knowingly and intelligently waived her right to appeal the severity of her sentence, and, as a result, the matter should be remitted to the Appellate Division so that it may, should it so choose, exercise its interest of justice jurisdiction (see CPL 470.15 [6] [b]).

While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right to appeal the harshness of her sentence. She seeks only the right to appeal the harshness of the sentence that went from one of probation to a maximum sentence of imprisonment on each count of the indictment because she failed to comply with a condition set by the court.

The CPL makes clear the distinction between a conviction and a sentence. A “conviction” is defined as “the entry of a plea of guilty to, or a verdict of guilty upon, an accusatory instrument other than a felony complaint, or to one or more counts of such instrument” (CPL 1.20 [13]). “Sentence” is defined as “the imposition and entry of sentence upon a conviction” (CPL 1.20 [14]). Both the “conviction” and the “sentence” comprise the “judgment,” which is “completed by the imposition and entry of the sentence” (CPL 1.20 [15]). As such, although defendant waived her right to appeal the conviction, she never expressly waived her right to appeal the sentence.

Unlike the situation in People v Hidalgo (91 NY2d 733, 737 [1998]), it is not clear that “the trial court engaged in a full and adequate colloquy, and [that] defendant expressly waived her right to appeal without limitation.” It is evident from the colloquy that the court, at most, apprised defendant that if she did not pay one half of the restitution by sentencing, there would be no promise as to her sentence and that she would not be able to withdraw her plea—something she is not seeking. There was no mention of defendant not being able to appeal the harshness of her sentence.

The most critical error that occurred here, and the one that distinguishes this case from Hidalgo, is that during the plea colloquy in this case, the court did not explain that the appeal waiver would bar defendant from not only challenging the sentence she hoped to receive, i.e., five years’ probation, but also any sentence that the court would impose in the event defendant failed to meet the court’s condition of paying $23,000 by the date of sentencing. It cannot be said that, at the time of her plea colloquy five months before the imposition of sentence, defendant knowingly and intelligently waived her right to appeal a sentence that, at that point, had not yet been declared by the court. In that respect, this case is more analogous to our holding in People v Johnson (14 NY3d 483 [2010]).

In Johnson, the court promised the defendant that he would be adjudicated a youthful offender in exchange for his guilty plea (and waiver of his right to appeal), but, after reviewing the presentence report, reconsidered that promise at sentencing, claiming that youthful offender status would have been “inappropriate” given the nature of the offense (id. at 485). The court denied defendant youthful offender treatment. We held that because the trial court failed to apprise the defendant that it was reserving its approval of the plea agreement until it reviewed the presentencing report, the defendant could not have knowingly and intelligently waived his right to appeal the court’s determination to sentence the defendant as an adult (thereby subjecting defendant to a greater prison sentence). Thus, when the court announced that it was imposing a greater sentence than the defendant had expected, “it was incumbent on the court to elicit defendant’s continuing consent to waive his right to appeal,” although it was unnecessary for the court “to reallocute defendant on his decision to plead guilty” (Johnson, 14 NY3d at 487).

Indeed, it was not necessary here (as it was in Johnson) to offer plea withdrawal at all. She had conceded her guilt at the plea hearing, the court apprised her that she would not be able to withdraw her plea, and the record supports a conclusion that she knowingly and intelligently pleaded guilty to all counts of the indictment. Absent the knowing waiver of defendant’s right to appeal her sentence, the Appellate Division was deprived of its right to review the harshness of that sentence and therefore, the matter is remitted to that Court for that purpose.

We reject defendant’s ineffective assistance of counsel claim based on the record before us (see People v Baldi, 54 NY2d 137, 147 [1981]). To the extent that defendant seeks to advance such a claim or to challenge the voluntariness of her plea on matters outside the record, she may do so “by affidavit in support of a CPL 440.10 motion” (People v Gravino, 14 NY3d 546, 558 [2010]).

Graffeo, J. (dissenting).

I respectfully dissent because the majority’s rationale conflicts with the rule established in People v Hidalgo (91 NY2d 733 [1998]) and there is no compelling justification for eroding that precedent.

The majority’s rationale is especially troubling since the plea colloquy in Hidalgo was similar to the colloquy in the case now before us. The defendant in Hidalgo was informed about the possible sentencing options under her plea agreement since no specific sentencing promise was made and she also waived the right to appeal her “conviction” (id. at 735):

“the court: I understand as part of this plea arrangement you are giving up your right to appeal this conviction-, is that correct? . . .
“defendant hidalgo: Yes.
“the court: Do you understand that means you cannot come back to this Court or to any court to set aside this conviction once I accept the plea? . . .
“defendant hidalgo: Yes.
“the court: Have you discussed that with your attorney? . . .
“defendant hidalgo: Yes” (emphasis added).

Although we acknowledged that Hidalgo “did not explicitly waive her right to challenge her sentence during the plea colloquy” (id. at 737), we unanimously concluded that the “general unrestricted waiver encompassed her right to challenge her sentence as harsh and excessive,” despite the fact that she “did not know her specific sentence at the time of the waiver” and entry of a guilty plea (id.).

When defendant in this case pleaded guilty under an agreement that avoided a term of incarceration, she was similarly unaware of the particular sentence that would be imposed in the event that she failed to adhere to the terms of the plea bargain. Like Hidalgo, defendant expressly waived her right to appeal the “conviction,” without reference to the sentence—a colloquy functionally identical to the colloquy in Hidalgo-.

“the court: As a condition of this plea, the DA is requiring that you waive your right to appeal your conviction in this case. Have you had an opportunity to discuss this with your attorney?
“the defendant: Yes.
“the court: Do you understand that this case will be over and that it will go no further?
“the defendant: Yes.
“the court: Having this in mind, are you voluntarily waiving your right to appeal your conviction in this case?
“the defendant: Yes” (emphasis added).

Because defendant’s waiver of the right to appeal the “conviction” is indistinguishable from Hidalgo—more precisely, in both cases “[t]here was no mention of [the] defendant not being able to appeal the harshness of her sentence” (majority mem at 928)—pursuant to the rule set forth in Hidalgo, defendant’s waiver should be viewed as including her right to challenge the sentence as excessive. The Appellate Division therefore properly declined to consider the merits of defendant’s argument.

The only practical difference between this case and Hidalgo is that Hidalgo did not violate her plea bargain, but that fact played no part in the rationale we adopted. As a result of the majority’s attempt to reach a different result, the outcome is that appellate review of an excessive sentence claim will be barred if a defendant abides by the terms of a plea agreement but appellate review will be permitted if the defendant, like Maracle, breached the plea bargain. Why should a non-compliant defendant be rewarded because she did not adhere to the terms of the agreement while a defendant who complies with the terms of a conditional plea will be foreclosed from further judicial review of the sentence imposed?

There is no reasoned basis for the majority to circumvent Hidalgo—it clearly held that a reference to “conviction” includes the sentence. That probably explains why defendant has not raised the argument that the majority adopts. I believe that stare decisis is an important principle premised on the rule of law (see e.g. People v Taylor, 9 NY3d 129, 148 [2007]; People v Bing, 76 NY2d 331, 338 [1990]; People v Hobson, 39 NY2d 479, 488 [1976]) and that altering this established precedent may be fraught with unanticipated consequences.

Indeed, undermining the validity of these waivers could have ramifications beyond the scope of this particular case. For years, judges accepting guilty pleas have justifiably relied on Hidalgo’s unequivocal declaration that a waiver of appeal from a “conviction” encompasses a challenge to the harshness of a sentence that the defendant was informed about before consenting to the waiver. Consequently, waivers that refer to the “conviction” alone are most likely common. Courts considering such waivers will now have to decide whether Hidalgo or Maracle controls in each situation and the unfortunate result will be inconsistent decisions in the trial and intermediate appellate courts.

Defendant’s knowing, voluntary and intelligent waiver of her right to challenge the sentence as excessive does not mean that she is bereft of any potential remedy. In light of the facts of this case, nothing prevents her from filing a motion under article 440 of the Criminal Procedure Law to challenge the effectiveness of her legal representation in connection with the guilty plea or the sentencing proceeding based on the status of her financial resources, her family’s situation at the time of the plea or her plans to acquire the necessary restitution funds, none of which are revealed in the present record (see e.g. People v Gravino, 14 NY3d 546, 558 [2010]). Although the record before us does not indicate that counsel provided less than meaningful representation, an article 440 motion would provide defendant an opportunity to show that it was impossible for her to comply with the restitution condition of the plea agreement, that her attorney knew or should have known about her inability to pay and that it was unreasonable for the lawyer to recommend acceptance of the plea bargain.

For all of these reasons, I would affirm the order of the Appellate Division enforcing the appellate waiver.

Chief Judge Lippman and Judges Ciparick, Smith, Pigott and Jones concur in memorandum; Judge Graffeo dissents and votes to affirm in a separate opinion in which Judge Read concurs.

Orders reversed, etc.

       The defendant rejected the court’s offer to withdraw his plea and proceed to trial.

        People v Johnson (14 NY3d 483 [2010]), cited by the majority, is not analogous to this case. The waiver of appeal in Johnson was elicited in exchange for a promise of youthful offender treatment. We held that the court’s withdrawal of the promise nullified the waiver as a simple matter of quid pro quo (see id. at 487). Here, in stark contrast, the court strictly abided by the terms of the plea agreement and did not contradict any condition attached to the appellate waiver.


text:
    [976 NE2d 223, 951 NYS2d 697]
    The People of the State of New York, Respondent, v Lina Sinha, Appellant.
    Argued May 30, 2012;
    decided June 27, 2012

      APPEARANCES OF COUNSEL

      Law Offices of Joel B. Rudin, New York City (Joel B. Rudin, Gerald L. Shargel and Terri S. Rosenblatt of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted of several charges stemming from relationships she allegedly had with two underage students who attended a school where defendant was a teacher.

After her conviction, defendant moved, pursuant to CPL 440.10, to vacate her conviction, on the grounds, among others, that the People had violated their disclosure obligation by belatedly disclosing several e-mails, and by failing to disclose certain other information, which might have been used to impeach one of the alleged victims.

On a consolidated appeal, the Appellate Division, exercising its interest of justice jurisdiction, modified by reversing the conviction of bribing a witness, remanded that charge for a new trial and otherwise affirmed the judgment of Supreme Court (People v Sinha, 84 AD3d 35 [1st Dept 2011]). The Court found that the prosecution “failed to fulfill basic disclosure obligations that are essential to a fair trial,” but also found that failure did not affect the remaining counts of defendant’s conviction (id. at 38). On appeal to this Court, defendant argues that the disclosure failures by the prosecution require all the remaining counts of the conviction be reversed.

We have stated that whether Brady violations that result in the reversal of some counts also require reversal of the convictions on other counts is “a question to be resolved on a case-by-case basis” (People v Daly, 14 NY3d 848, 849 [2010]). “Reversal of the jointly tried counts is required only if there is a ‘reasonable possibility that the evidence supporting the . . . tainted counts influenced the guilty verdicts on the other [counts]’ ” (id., quoting People v Baghai-Kermani, 84 NY2d 525, 532 [1994]).

The disclosure errors in this case related only to the impeachment of one of the two alleged victims, and the trial judge carefully instructed the jury to decide each count, pertaining to each victim, separately. In addition, there was strong evidence of defendant’s guilt with respect to the remaining convictions that pertained only to the first victim who testified as to the history of his relationship and specific incidents of sexual abuse. As to the misdemeanor counts, criminal impersonation and false reporting, defendant essentially conceded her guilt at trial and overwhelming evidence supported those convictions. Thus, under the circumstances of this case, reversal was not required on the remaining counts as there is no reasonable possibility that the evidence supporting the alleged tainted count had a spillover effect on the other convictions.

Defendant further argues that her judgment of conviction and sentence should be reversed because the People failed to provide printouts, prior to trial, of several e-mails recovered from the hard drive of her computer.

CPL 240.20 (1) (c) provides that, upon a demand of the defendant, the prosecutor shall disclose and make available

“[a]ny written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.”

Here, the prosecution provided defense counsel a “mirror” copy of the contents of defendant’s computer’s hard drive, as well as exact copies of other computer disks recovered from defendant’s apartment. In addition, they supplied the forensic report prepared by a detective who analyzed the hard drive, which explained the software and methodology used to analyze it, as well as another forensic report, which noted that certain on-line names had been found and printouts of several files of interest, including e-mails and photographs. The reports did not specifically identify, however, an e-mail the prosecution used at trial.

The People properly complied with section 240.20 when they gave defense counsel copies of the forensic reports, prepared by the investigators who analyzed the hard drive. Those were the only “reports or documents” concerning scientific tests or experiments performed on the hard drive. Were the documents at issue of such a nature that they could only have been produced through the expertise of a qualified expert, our decision might be different; but there is no showing that this was the case here. The fact that the People did not print out the specific e-mail, which was available to defense counsel on the mirror copy of the hard drive, cannot be said to be a violation of the statute.

Defendant’s remaining contentions are without merit.

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

Order affirmed in a memorandum.


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Centennial Elevator Industries, Inc., Respondent, v Ninety-Five Madison Corp., Defendant, and Rita Sklar, Appellant.
    Submitted May 7, 2012;
    decided June 27, 2012
   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 City of Rochester for a Warrant to Inspect 449 Cedarwood Terrace, City of Rochester, County of Monroe, State of New York. Jill Cermak et al., Appellants, v City of Rochester, Respondent.
    Submitted May 14, 2012;
    decided June 27, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of the City of Rochester for a Warrant to Inspect 187 Clifton Street, City of Rochester, County of Monroe, State of New York. Florine Nelson et al., Appellants, v City of Rochester, Respondent.
    Submitted May 14, 2012;
    decided June 27, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    William Corsello et al., Respondents-Appellants, v Verizon New York, Inc., Formerly Known as New York Telephone Company, et al., Appellants-Respondents.
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion for reargument denied [see 18 NY3d 777 (2012)].


text:
    In the Matter of Rory Dolan, Appellant, v Martin I. Efman, Acting Judge of Suffolk County Court, Respondent.
    Decided June 27, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Sam Futersak, Appellant, v Sheldon Perl, Also Known as Shloime Perl, et al., Respondents.
    Submitted May 7, 2012;
    decided June 27, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 943 (2012)].


text:
    In the Matter of Gracie Point Community Council, by Its President, Anthony Ard, et al., Appellants, v New York State Department of Environmental Conservation et al., Respondents.
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion by Residents for Sane Trash Solutions for leave to appear amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed.


text:
    Peter Graziano, on Behalf of Himself and All Others Similarly Situated, Appellant, v Andrea W. Evans, as Chair of the New York State Division of Parole, et al., Respondents.
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 810 (2012)].


text:
    Kaufmann’s Carousel, Inc., Appellant, v Carousel Center Company LP et al., Respondents. (And Other Actions.)
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 975 (2012)].


text:
    The People of the State of New York, Respondent, v Padraic Keating, Appellant.
    Submitted May 14, 2012;
    decided June 27, 2012
   Motion for reargument denied [see 18 NY3d 932 (2012)].


text:
    Tony Perpignan, Appellant, v First Franklin Financial Corp., Respondent.
    Submitted May 7, 2012;
    decided June 27, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 976 (2012)].


text:
    In the Matter of Linda Salvati, an Incapacitated Person. Julie Stoil Fernandez, Appellant. George J. McCormack, Nonparty Respondent.
    Submitted May 7, 2012;
    decided June 27, 2012
   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 Remus Smith, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted May 7, 2012;
    decided June 27, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    George Bundy Smith, Sr., Individually and on Behalf of Twenty Plus Members of Grace Congregational Church of Harlem, Inc./United Church of Christ, Appellant, v United Church of Christ et al., Respondents.
    Submitted April 9, 2012;
    decided June 27, 2012
   Motion for leave to appeal etc. dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602).


text:
    George Bundy Smith, Sr., Individually and on Behalf of Twenty Plus Members of Grace Congregational Church of Harlem, Inc./United Church of Christ, Appellant, v United Church of Christ et al., Respondents.
    Submitted June 4, 2012;
    decided June 27, 2012
   Motion, insofar as it seeks leave to appeal from that part of the May 2012 Appellate Division order that affirmed so much of the February 2011 Supreme Court order as dismissed all causes of action against defendants United Church of Christ, Revs. Geoffrey Black, Rita Root, Freeman Palmer, Dr. Michael Ward Caine, Noel Vanek, Dr. Donald Wells, and Gladys A. Philibert as personal representative of the estate of Reverend David Tucker, denied; motion for leave to appeal etc. otherwise dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602).


text:
    Swedbank, AB, New York Branch, Respondent, v Hale Avenue Borrower, LLC, et al., Appellants, et al., Defendants.
    Submitted May 7, 2012;
    decided June 27, 2012
   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 Michael Thompson, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Decided June 27, 2012
   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 Paulette Y. Ucci, Respondent, v David G. Ucci, Appellant.
    Submitted May 7, 2012;
    decided June 27, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Christopher M. Uhl, a Disbarred Attorney, Appellant. Committee on Professional Standards, Respondent.
    Decided June 27, 2012
   Appeal, insofar as taken from the Appellate Division order denying the motion to vacate the order of disbarment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division order of disbarment, 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 Raymond L. Young, Respondent, v Deborah Young, Appellant, et al., Respondent.
    Submitted May 7, 2012;
    decided June 27, 2012
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    [973 NE2d 1289, 950 NYS2d 515]
    Illinois Union Insurance Company, Respondent, v Assurance Company of America, Appellant.
    Decided June 28, 2012

      APPEARANCES OF COUNSEL

      Coughlin Duffy LLP, New York City (Robert W. Muilenburg and Steven D. Cantarutti of counsel), for appellant.

      Hodgson Russ LLP, Buffalo (Kevin D. Szczepanski and Lisa Bauer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by granting judgment declaring in accordance with this memorandum and, as so modified, affirmed. The certified question should be answered in the negative.

In this insurance coverage dispute, to which California law applies, plaintiff Illinois Union Insurance Company had a duty to defend the insured in the underlying action because Illinois Union did not “eliminate the possibility that the insured’s conduct falls within the coverage of the policy” (Montrose Chem. Corp. v Superior Ct., 6 Cal 4th 287, 301, 861 P2d 1153, 1161 [1993]). Under the circumstances of this case, however, we agree with Illinois Union that pursuant to equitable contribution principles, it is entitled to reimbursement from defendant Assurance Company of America for an equal share of the costs associated with Illinois Union’s defense of the claims in the underlying action.

Chief Judge Lippman and Judges Ciparick, Grappeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, etc.


author: Memorandum. Pigott, J. (dissenting in part).

text:
    [973 NE2d 1280, 950 NYS2d 506]
    The People of the State of New York, Appellant-Respondent, v Louis Riley, Respondent-Appellant.
    Argued May 31, 2012;
    decided June 28, 2012

      APPEARANCES OF COUNSEL

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

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

Memorandum.

On defendant Louis Riley’s appeal, the order, insofar as appealed from, should be affirmed. The People’s appeal should be dismissed upon the ground that the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]).

A few months before trial, the copper pipes defendant was accused of stealing were returned to their rightful owner without the notice to defendant required by Penal Law § 450.10. Defendant argues that the defense team was prejudiced as a result because deprived of an opportunity to examine the pipes and independently assess their value; he seeks reversal and a new trial on account of the trial court’s denial of his request for an adverse inference instruction as a sanction for the unnoticed return of the stolen pipes.

But a sanction for the return of stolen property without the requisite notice is required only when the district attorney does not demonstrate an absence of prejudice (see Penal Law § 450.10 [10]). Further, “the choice of ‘appropriate’ action is committed to the sound discretion of the trial court” (People v Kelly, 62 NY2d 516, 521 [1984]). Here, the People advised defense counsel to arrange a mutually convenient time to examine the copper pipes about six weeks before they were returned, and defense counsel did not follow up; the police retained a representative sample, which was admitted into evidence without objection; and defense counsel was provided with nearly 200 photographs of the copper pipes and the buildings. As a result, the trial court did not abuse its discretion by determining that defendant did not suffer prejudice and declining to impose a sanction.

Regarding the People’s appeal, the dissent concludes that we may “review[ ] a legal issue, with respect to a ruling or instruction of a criminal court during a trial or proceeding where, as here, the question was reached by the Appellate Division in the exercise of its discretionary power to reach an unpreserved legal issue” (dissenting op at 948). This notion is, to say the least, novel as it is flies in the face of the Criminal Procedure Law and thus four decades’ worth of our precedent (see e.g. People v Albro, 52 NY2d 619, 623 n [1981] [noting that a recent amendment to CPL 450.90 (2) (a), while providing more flexibility in some respects, “does not operate to provide an appeal where the reversal or modification was at least partially based upon discretion exercised in the interests of justice”]; People v Baumann & Sons Buses, Inc., 6 NY3d 404, 407 [2006] [“As the intermediate appellate court reversed the conviction on the basis of an unpreserved error, and therefore as a matter of discretion in the interest of justice, its order is not appealable to this Court”]).

Just two years ago, in People v Caban (14 NY3d 369 [2010]), we recognized that “under our precedents, an Appellate Division reversal that is based on an unpreserved error is considered an exercise of the Appellate Division’s interest of justice power, not reviewable in our Court”; therefore, “if defendant [Caban] failed to preserve the alleged error, she would benefit from her mistake, for we would be required to dismiss the People’s appeal” (id. at 373 [emphasis added]). This is, of course, precisely the situation we find ourselves in here, where—unlike Ca-ban—we all agree that the alleged error was, in fact, unpreserved.

Pigott, J. (dissenting in part).

The issue that the majority believes it cannot address is a legal, rather than a factual, one; that much is certain. And it is an open question that deserves our attention. The Appellate Division, finding no New York case on point, was forced to seek persuasive authority from intermediate courts in Texas and Florida. Yet the majority dismisses the People’s appeal, because the issue was not preserved in the trial court, so that the precedent in New York remains the one that the First Department chose from out-of-state sources.

As a preliminary matter, the Court of Appeals “is not bound by the Appellate Division’s characterization of [an] order, and must ‘determine for itself whether a reviewable legal question exists” (People v D’Alessandro, 13 NY3d 216, 219 [2009], quoting People v Giles, 73 NY2d 666, 670 [1989]). Here, although the Appellate Division stated that it was modifying Supreme Court’s judgment “on the facts” (85 AD3d 431, 432 [2011]), its rationale is entirely legal. The Appellate Division seems to have thought it was engaged in weight of the evidence review (see id.)-, but it did not “weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Rather, its decision turned on a purely legal issue—whether labor costs can be included as part of “the cost of replacement” contemplated by Penal Law § 155.20 (1). Because the issue was not preserved, the Appellate Division could have reached the issue only “[a]s a matter of discretion in the interest of justice” (CPL 470.15 [3] [c]; see CPL 470.15 [6] [a]).

The majority believes that under the current statutory scheme, the lack of preservation means that the legal issue that the Appellate Division decided is not a question that we can reach. This odd circumstance results from a restrictive reading of “question of law” in CPL 470.05. That statute provides that

“[flor purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]).

The majority infers, so the argument goes, that the unpreserved issue in this case is beyond our review because other statutes require that, upon an appeal to the Court of Appeals from an order of an intermediate appellate court reversing or modifying a criminal court’s decision, we may consider and determine only “question[s] of law” (with certain further provisos not pertinent here) (CPL 470.35 [2] [a], [b]; see also CPL 450.90 [2] [a]) and questions concerning the legality of the intermediate court’s corrective action {see CPL 470.35 [2] [c]; see also CPL 450.90 [2] [b]). I disagree with this inference.

In my view, when the Legislature wrote the provision stating that a “question of law ... is presented” to an appellate court upon preservation in the trial court (CPL 470.05 [2]), it intended to ensure that an appellate court would have no obligation to pass on an unpreserved non-fundamental issue pertaining to a criminal conviction, but that the Appellate Division could do so as a matter of discretion (CPL 470.15 [6] [a]). We have for many years interpreted CPL 470.05 (2) to require that a question must have been preserved in the trial court before we may reach it (see e.g. People v Robinson, 36 NY2d 224, 228 [1975]; People v Michael, 48 NY2d 1, 5-6 [1979]; People v Cona, 49 NY2d 26, 33 [1979]; People v Albro, 52 NY2d 619, 623 n [1981]; People v Dercole, 52 NY2d 956, 957 [1981]). As the majority notes, this interpretation arises from “our precedents” (majority mem at 946, quoting People v Caban, 14 NY3d 369, 373 [2010]). There is nothing in CPL 470.05 that prohibits this Court from reviewing a legal issue, with respect to a ruling or instruction of a criminal court during a trial or proceeding where, as here, the question was reached by the Appellate Division in the exercise of its discretionary power to reach an unpreserved legal issue. The fact that the nisi prius court did not rule on an important question of law does not, in my view, give the Appellate Division license to decide the issue of law without fear of review, as the Appellate Division has done here. Indeed, I doubt very much that the Appellate Division would generally seek such authority, being far more comfortable knowing that this Court will be the final arbiter. I cannot accept that the Legislature intended to bring about the unfortunate procedural circumstance in which the Appellate Division decides a legal issue for the State, yet we are powerless to reach it.

As for the disposition of defendant’s appeal, I agree with the majority’s analysis, but, as I have explained, I cannot agree with its dismissal of the People’s appeal. Consequently, I dissent.

Chief Judge Lippman and Judges Ciparick, Grafpeo, Read and Jones concur in memorandum; Judge Pigott dissents in part in an opinion in which Judge Smith concurs.

On defendant’s appeal, order, insofar as appealed from, affirmed, and People’s appeal dismissed, etc.

       There are well-known exceptions when the alleged error is so fundamental that it affects “the organization of the court or the mode of proceedings prescribed by law” (People v Patterson, 39 NY2d 288, 295 [1976]; see also People v Agramonte, 87 NY2d 765, 769-770 [1996]), or concerns the lawfulness of a sentence (People v Samms, 95 NY2d 52, 55-57 [2000]).


text:
    Jay Abrams et al., Appellants, v Suzanne Berelson, Respondent.
    Decided June 28, 2012
   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:
    Arnav Industries, Inc., Respondent, v Jody Pitari, Appellant.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev]).


text:
    Jessie J. Barnes, Appellant, v State of New York, Respondent.
    (Claim No. 100753.)
    Submitted May 21, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Victor Y. Batshever, Appellant, v Daniel Black et al., Respondents.
    Submitted June 11, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 830 (2012)].


text:
    Beth Abraham Health Services, Respondent, v Mildred Eccleston-Johnson, Appellant.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Charla R. Bikman (Admitted as Charla Ruth Bikman), a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted June 11, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Michael Buxenbaum, Jr., Respondent, v Rachel Fulmer, Appellant.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 801 (2012)].


text:
    Larry Carr, Appellant, v Pamela D. Hayes et al., Respondents, et al., Defendant.
    Submitted June 11, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 802 (2012)].


text:
    Hovsep Gregorian, Respondent, v New York Life Insurance Company, Appellant.
    Submitted June 4, 2012;
    decided June 28, 2012
   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 Sinclair Haberman et al., Respondents, v Zoning Board of Appeals of City of Long Beach et al., Appellants, et al., Respondent.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action/proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Diedrich Holtkamp et al., Appellants, v Parklex Associates et al., Defendants. Flemming Zulack Williamson Zauderer, LLP, et al., Proposed Defendants-Respondents.
    Submitted May 21, 2012;
    decided June 28, 2012
   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 Jacob H. and Another, Children Alleged to be Neglected. Commissioner of Social Services of the City of New York, Respondent; Logann K., Appellant.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    J. D’Addario & Company, Inc., Appellant, v Embassy Industries, Inc., Respondent.
    Submitted May 29, 2012;
    decided June 28, 2012
   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:
    Ana Lawson, Appellant, v City of New York et al., Respondents.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for leave to appeal from the Supreme Court judgment entered upon the Appellate Division order dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought (see CPLR 5611).


text:
    In the Matter of Alfredo Lugo, Appellant, v Andrea W. Evans, as Chair of the Division of Parole, Respondent.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 975 (2012)].


text:
    In the Matter of Robert E. MacLaren, Appellant, v City of Norwich Housing Authority et al., Respondents.
    Submitted May 21, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Marvin H. Handler, M.D., P.C., Appellant, v Thomas P. DiNapoli, as Comptroller of the State of New York, Respondent, et al., Respondent.
    Submitted May 29, 2012;
    decided June 28, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    In the Matter of Murphy & O’Connell, Appellant, v Tax Appeals Tribunal et al., Respondents.
    Decided June 28, 2012
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Kyle Navarra, an Infant, by His Parents and Natural Guardians, Debbie Navarra and Another, et al., Appellants, v Four Winds Hospital-Westchester, Respondent.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Fidencio Pelaez, Respondent, v Alan Silverstone et al., Appellants, and State Insurance Fund et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion, insofar as it seeks leave to appeal purportedly on behalf of Silverbrook Farm, Inc. dismissed upon the ground that Silverbrook Farm, Inc. must appear by an attorney (see CPLR 321 [a]); motion, insofar as Alan Silverstone and Janice Silver-stone seek leave to appeal from that part of the Appellate Division order as affirmed the decision of the Workers’ Compensation Board denying reconsideration or full Board review, dismissed upon the ground that such portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal by Alan Silverstone and Janice Silverstone otherwise denied.


text:
    The People of the State of New York, Respondent, v Adam Melzer, Appellant.
    • Submitted May 29, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 803 (2012)].


text:
    The People of the State of New York, Respondent, v Rafael Rodriguez, Appellant.
    Submitted May 29, 2012;
    decided June 28, 2012
   Motion for reargument denied [see 19 NY3d 166 (2012)].


text:
    The People of the State of New York, Respondent, v Richard C. Wiedeman, Appellant.
    Submitted May 21, 2012;
    decided June 28, 2012
   Motion for reargument of motion for leave to appeal denied [see 18 NY3d 805 (2012)].


text:
    In the Matter of Michael F. Ramsey, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Juan Y. Sheng, Appellant, v State of New York Division of Human Rights et al., Respondents.
    Submitted June 4, 2012;
    decided June 28, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of South Island Orthopaedic Group, P.C., Appellant, v Thomas P. DiNapoli, as Comptroller of the State of New York, et al., Respondents.
    Submitted May 29, 2012;
    decided June 28, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Jill Williams et al., Respondents, v State of New York, Appellant.
    Submitted June 11, 2012;
    decided June 28, 2012
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 18 NY3d 981 (2012)].


text:
    [974 NE2d 1169, 950 NYS2d 727]
    Maxine Mallory, as Executor of the Estate of Matthew Mallory, Deceased, Appellant, v Allstate Insurance Company, Respondent.
    Decided August 28, 2012

      APPEARANCES OF COUNSEL

      Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola (Norman H. Dachs of counsel), for appellant.

      Feldman, Rudy, Kirby & Farquharson, P.C., Jericho (Brian R. Rudy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff sought compensation pursuant to decedent’s homeowner’s insurance for fire damage. Defendant sought to raise three affirmative defenses based on plaintiff’s alleged breach of the insurance policy. Under the facts of this case, the Appellate Division correctly determined that an insurer’s failure to comply with 11 NYCKR 216.6 (c) in processing a claim does not preclude that insurer from relying upon a policy exclusion to disclaim coverage.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

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


text:
    Maria Auqui et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted July 30, 2012;
    decided August 28, 2012
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Bronx Committee for Toxic Free Schools et al., Respondents, v New York City School Construction Authority et al., Appellants.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion by New Partners for Community Revitalization for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Barbara Coleman, by Her Attorney-in-Fact, Mazilee Coleman, on Behalf of Herself and All Others Similarly Situated, Respondent, v Richard F. Daines, M.D., Individually and as Commissioner of the New York State Department of Health, et al., Appellants.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion by Empire Justice Center et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Dashawn W. and Others, Children Alleged to be Abused. Antoine N., Appellant; Ronnelle B., Respondent; Administration for Children’s Services, Respondent.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion for poor person relief granted.


text:
    Mark Dzielski et al., Respondents, v Essex Insurance Company, Appellant, et al., Defendant.
    Submitted July 16, 2012;
    decided August 28, 2012
   Motion to amend remittitur denied [see 19 NY3d 871 (2012)].


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted August 20, 2012;
    decided August 28, 2012
   Motion by Thomas E Liotti for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Roselyne Gisors, Appellant, v New York City Department of Education for the City School District Region 10 et al., Respondents.
    Submitted May 29, 2012;
    decided August 28, 2012
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Hudson Valley Federal Credit Union, Appellant, v New York State Department of Taxation and Finance et al., Respondents.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion by Association of Towns of the State of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 10 copies filed within seven days.

Judge Smith taking no part.


text:
    The People of the State of New York, Respondent, v James Alcide, Appellant.
    Submitted July 16, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Donny P. Beaty, Appellant.
    Submitted August 13, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Timothy E 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 Thomas Brown, Appellant.
    Submitted July 30, 2012;
    decided August 28, 2012
   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 Marvin Byer, Appellant.
    Submitted August 20, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jean Cantave, Appellant.
    Submitted July 23, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Derek Chisholm, Appellant.
    Submitted July 9, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Josue Deliser, Appellant.
    Submitted July 9, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Richard Diaz, Appellant.
    Submitted August 13, 2012;
    decided August 28, 2012
   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 James E. Guilford, Appellant.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Gerald T. Barth, Esq., Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Roosevelt Jennings, Appellant.
    Submitted July 23, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Marche Johnson, Appellant.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Adam H. Van Buskirk, Esq., 3100 State Route 90, Aurora, New York 13026 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Lester Q. Jones, Appellant.
    Submitted July 9, 2012;
    decided August 28, 2012
   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 Thomas Lee, Appellant.
    Submitted July 23, 2012;
    decided August 28, 2012
   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 Franklin McPherson, Appellant.
    Submitted August 20, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Jonathan I. Edelstein, Esq., 271 Madison Avenue, 20th Floor, New York, NY 10016 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Mitchell, Appellant.
    Submitted June 25, 2012;
    decided August 28, 2012
   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 Chadon Morris, Appellant.
    Submitted July 30, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v George Oliveras, Respondent.
    Submitted July 9, 2012;
    decided August 28, 2012
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Frantzy J. Rodney, Appellant.
    Submitted June 25, 2012;
    decided August 28, 2012
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Reece Rudolph, Appellant.
    Submitted July 23, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Jack H. Weiner, Esq., 1488 State Route 203, Chatham, New York 12037 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nicholas Sanchez, Appellant.
    Submitted July 2, 2012;
    decided August 28, 2012
   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 Mikal Smith, Appellant.
    Submitted July 30, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Leonard J. Levenson, Esq., 255 Broadway, Room 1804, 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 Chester J. Thomas, Appellant.
    Submitted July 23, 2012;
    decided August 28, 2012
   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 Eddie Thompson, Jr., Appellant.
    Submitted July 30, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Jack H. Weiner, Esq., 1488 State Route 203, Chatham, New York 12037 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Julio Velez, Appellant.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Mark Diamond, Esq., PO Box 287356 Yorkville Station, New York, NY 10128 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert L. Worden, Appellant.
    Submitted July 16, 2012;
    decided August 28, 2012
   Motion for assignment of counsel granted and Timothy E 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:
    In the Matter of Jacqueline Perez, Respondent, v John B. Rhea, as Chairman of the New York City Housing Authority, Appellant.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion by Housing Court Answers, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted July 23, 2012;
    decided August 28, 2012
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of 677 New Loudon Corporation, Doing Business as Nite Moves, Appellant, v State of New York Tax Appeals Tribunal et al., Respondents.
    Submitted August 6, 2012;
    decided August 28, 2012
   Motion by CMSG Restaurant Group, LLC for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Aurora Associates, LLC, Respondent, v Laura Marquez, Appellant, et al., Respondents.
    Submitted June 11, 2012;
    decided August 30, 2012
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in Civil Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    Bankers Trust Company of California, N.A., Respondent, v Mary Lee Ward, Appellant, et al., Defendants.
    Submitted June 11, 2012;
    decided August 30, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 837 (2012)].


text:
    Fariha Basalel, Appellant, v Youni Gems Corporation et al., Defendants, and David Aharoni et al., Respondents.
    Submitted June 11, 2012;
    decided August 30, 2012
   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:
    John B. Bell, Appellant, v New York State Higher Education Services Corporation, Respondent.
    Submitted June 18, 2012;
    decided August 30, 2012
   Motion for reargument denied [see 19 NY3d 837 (2012)].


text:
    In the Matter of Beverly YY., an Incapacitated Person. Patricia ZZ., Appellant; Robert Irving Miller, Jr., as Guardian of the Property of Beverly YY., et al., Respondents.
    Submitted June 11, 2012;
    decided August 30, 2012
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 709 (2011)].


text:
    Jennifer Cangro, Appellant, v Phyllis C. Solomon, Respondent.
    Submitted June 18, 2012;
    decided August 30, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Farm Family Casualty Insurance Company, Appellant, v Habitat Revival, LLC, et al., Respondents.
    Submitted June 18, 2012;
    decided August 30, 2012
   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:
    Israel Grossman et al., Appellants, v New York Life Insurance Company, Respondent. (And a Third-Party Action.)
    Submitted June 4, 2012;
    decided August 30, 2012
   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 Harry Josifidis, Appellant, v Richard F. Daines, as Commissioner of Health, et al., Respondents.
    Submitted June 4, 2012;
    decided August 30, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 801 (2012)].


text:
    In the Matter of Marquis B., Appellant, v Rason B. et al., Respondents.
    Submitted June 4, 2012;
    decided August 30, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Julio C. Borrell, Appellant, v New York State Board of Parole, Respondent.
    Submitted June 18, 2012;
    decided August 30, 2012
   Motion, insofar as it seeks leave to appeal from the June 2011 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved in this Court for leave to appeal (17 NY3d 718 [2011]) from the same Appellate Division order from which leave to appeal is currently sought (see 166 Archer Ave. Co., LLC v New York City Health & Hosps. Corp., 15 NY3d 839 [2010]); motion, insofar as it seeks reargument of appellant’s motion for leave to appeal from the June 2011 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved for reargument (18 NY3d 904 [2012]) of the same motion as to which re-argument is currently sought (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [e]).


text:
    In the Matter of Gina Marie Reitano. Jennifer Cangro, an Alleged Incapacitated Person, Appellant, v Mary V. Rosado, Respondent.
    Submitted July 23, 2012;
    decided August 30, 2012
   Motion for reconsideration of this Court’s April 26, 2012 dismissal order denied [see 18 NY3d 985 (2012)]. Motion for leave to appeal denied.


text:
    Rite Capital Group, LLC, et al., Respondents, v LMAG, LLC, et al., Defendants, and Zeg Enterprises, Inc., Appellant.
    Submitted June 11, 2012;
    decided August 30, 2012
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Lori Schlessinger et al., Appellants, v Valspar Corporation, Respondent.
    Decided August 30, 2012

      See 686 F3d 81.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Bruce S. Simon, Respondent, v Amy E. Simon, Appellant.
    Submitted May 29, 2012;
    decided August 30, 2012
   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:
    Everett Stembridge, Appellant, v New York City Department of Education, Respondent.
    Submitted June 11, 2012;
    decided August 30, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 802 (2012)].


text:
    In the Matter of Walter Adelman, Appellant, v Michael A. Gary, Respondent.
    Submitted July 16, 2012;
    decided September 6, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Isaac Ainetchi et al., Appellants, v 500 West End LLC, Respondent.
    Submitted July 23, 2012;
    decided September 6, 2012
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 805 (2012)].

Chief Judge Lippman taking no part.


text:
    American Building Supply Corp., Appellant, v Petrocelli Group, Inc., Respondent, et al., Defendant.
    Submitted September 4, 2012;
    decided September 6, 2012
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted July 9, 2012;
    decided September 6, 2012
   Motion for leave to appeal dismissed upon the ground that it does not lie from the Appellate Division order, appellant having previously moved for leave to appeal to the Court of Appeals (93 NY2d 1000 [1999]) from the same Appellate Division order from which leave to appeal is currently sought (see 166 Archer Ave. Co., LLC v New York City Health & Hosps. Corp., 15 NY3d 839 [2010]).


text:
    Archer Capital Fund, L.P., Respondent, v Eagle Realty, LLC, et al., Appellants, et al., Defendants.
    Submitted June 18, 2012;
    decided September 6, 2012
   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:
    Archer Capital Fund, L.P., Respondent, v GEL, LLC, et al., Appellants, et al., Defendants.
    Submitted June 18, 2012;
    decided September 6, 2012
   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:
    Kelly Ashmore, Respondent, v Benjamin Ashmore, Appellant.
    Submitted August 6, 2012;
    decided September 6, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 807 (2012)].

Chief Judge Lippman taking no part.


text:
    In the Matter of Kuba Brown, as President of Local 94-94A-94B, International Union of Operating Engineers, AFL-CIO, Appellant, v John C. Liu, as Comptroller of the City of New York, Respondent.
    Submitted June 25, 2012;
    decided September 6, 2012
   Motion by Service Employees International Union, Local 32BJ, for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of David Burr, Appellant, v Timothy B. Howard, Sheriff of Erie County, Respondent.
    Submitted June 18, 2012;
    decided September 6, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Julie Ann Chang, Respondent, v Yu-Jen Chang, Appellant.
    Submitted June 25, 2012;
    decided September 6, 2012
   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 Lindwood Collins, Appellant, v Brian S. Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted June 25, 2012;
    decided September 6, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 803 (2012)].


text:
    Marlino Gress et al., on Behalf of Themselves and All Other Similarly Situated Persons, Respondents, v Byron Brown, as Mayor, City of Buffalo, et al., Respondents, and Buffalo Fiscal Stability Authority, Appellant.
    Submitted September 4, 2012;
    decided September 6, 2012
   Motion by the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of the Claim of Gaudenzia Hroncich, Respondent, v Con Edison et al., Appellants, and Special Disability Fund, Respondent. Workers’ Compensation Board, Respondent.
    Submitted June 18, 2012;
    decided September 6, 2012
   Motion by the City of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the proposed brief is accepted as filed, and for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    In the Matter of Richard Lazzari, Respondent, v Town of Eastchester et al., Appellants, and Paula Redd Zeman, as Commissioner of the Westchester County Department of Human Resources, et al. Respondents.
    Submitted September 4, 2012;
    decided September 6, 2012
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Liberty Square Realty Corp., Appellant, v The Doe Fund, Inc., et al., Respondents.
    Submitted July 2, 2012;
    decided September 6, 2012
   Motion to vacate this Court’s June 4, 2012 dismissal order denied [see 19 NY3d 956 (2012)].

Judge Ciparick taking no part.


text:
    The People of the State of New York, Respondent, v Michael Thomas, Also Known as Neil Adams, Appellant.
    Submitted August 27, 2012;
    decided September 6, 2012
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. David A. Burr, Appellant, v David Rock, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted June 18, 2012;
    decided September 6, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Injah Tafari, Appellant, v Brian S. Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted June 25, 2012;
    decided September 6, 2012
   Motion, insofar as it seeks leave to appeal from the May 2012 Appellate Division order denying reconsideration, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the March 2012 Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]). Appellant’s motion for reconsideration at the Appellate Division did not extend his time to move for leave to appeal to the Court of Appeals.


text:
    In the Matter of Michael Thompson, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, et al., Respondents.
    Submitted July 30, 2012;
    decided September 6, 2012
   Motion for reconsideration of this Court’s June 27, 2012 dismissal order denied [see 19 NY3d 941 (2012)].


text:
    In the Matter of Efstathios Valiotis et al., Appellants, v State of New York et al., Respondents.
    Submitted June 18, 2012;
    decided September 6, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Joel Vig, Appellant, v New York Hairspray Co., L.P., Respondent.
    Submitted July 30, 2012;
    decided September 6, 2012
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 807 (2012)].


text:
    In the Matter of Jazmine Weisman et al., Appellants, v New York City Housing Authority, Respondent.
    Submitted July 30, 2012;
    decided September 6, 2012
   Motion for reargument of motion for leave to appeal denied [see 19 NY3d 921 (2012)]. Motion for a stay dismissed as academic.


text:
    [976 NE2d 233, 951 NYS2d 706]
    In the Matter of Asset Protection & Security Services, LP, Respondent, v Service Employees International Union, Local 200 United, Appellant.
    Decided September 11, 2012

      APPEARANCES OF COUNSEL

      Drew Blanton, Rochester, for appellant.

      Anspach Meeks Ellenberger, LLP, Buffalo (Steven E. Carr and Matthew K. Pelkey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the petition to vacate the arbitrator’s award dismissed, and the cross petition to confirm the arbitrator’s award granted in the entirety.

Petitioner failed to meet its heavy burden to establish that the arbitrator exceeded his authority by ordering petitioner to reinstate grievant Kristin Osterman with back pay (see CPLR 7511 [b]; North Syracuse Cent. School Dist. v North Syracuse Educ. Assn., 45 NY2d 195, 200 [1978]). Although the collective bargaining agreement between the parties limits an arbitrator’s authority to award lost wages where an employee is “placed on unpaid administrative leave or suspended during an investigation mandated by [the Bureau of Immigration and Customs Enforcement] for an employee action,” petitioner failed to establish that the circumstances of grievant’s termination fell within the terms of that provision.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, etc.


text:
    In the Matter of Jessie J. Barnes, Appellant, v Ronald Harling, Superintendent, Monroe County Jail, Respondent.
    Submitted July 9, 2012;
    decided September 11, 2012
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    In the Matter of the Estate of Albert N. Eisenberg, Deceased. Law Offices of Seema Verma PLLC, Appellant; Citigroup, Inc., et al., Respondents.
    Submitted June 18, 2012;
    decided September 11, 2012
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.