text:
    [991 NE2d 195, 969 NYS2d 421]
    The People of the State of New York, Respondent, v Timothy Williams, Appellant.
    Argued May 1, 2013;
    decided May 30, 2013

      APPEARANCES OF COUNSEL

      Steven Banks, Legal Aid Society, New York City (Laura Lieberman Cohen of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

On June 5, 2007, an undercover police officer on a buy-and-bust operation joined two other people who approached defendant and asked if anyone was “out.” Defendant responded that they should “wait” and then walked around the corner. He returned and the undercover heard defendant, with his hand in his shirt covering his mouth, tell the group to “go around the corner,” motioning with his head in that direction. The buyers approached a woman sitting on building steps in the middle of the block. The undercover gave the woman $20 in pre-recorded buy money in exchange for two ziplock bags of cocaine. The woman was arrested at the scene, and the marked money and other drugs were recovered from her. Defendant was arrested several minutes later. He did not have drugs, but he did have over $800 in cash in his left front pants pocket, organized in a stack, including eight $10 bills, and 37 $20 bills.

The court refused defense counsel’s agency charge request, noting that the defense in the case was not that defendant had bought drugs on behalf of buyers, but rather that he was not involved in a drug deal at all.

During deliberations, the jury sent several notes requesting further legal instruction. One jury note requested clarification of a legal term, and after asking the jury to return to the courtroom, the court read the note out loud before responding directly to the jury. After considering another jury note asking for a written copy of the court’s charge, the court sent a court officer to “[t]ell them no written instructions allowed. The Court will tell them about [the charge] as often as they need to hear it.”

Defendant was convicted of third degree criminal sale of a controlled substance and criminal sale of a controlled substance in or near school grounds.

The Appellate Division affirmed, holding that there was no reasonable view of the evidence to support an agency charge, and rejecting defendant’s claims that the trial court committed mode of proceedings errors by failing to disclose the contents of a jury note to defense counsel and by delegating to a court officer the task of delivering a message to the jury (88 AD3d 463 [2011]).

It was not error for the trial court to refuse to give an agency charge in this case. A defendant is entitled to a jury charge on the agency defense where “there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer” (People v Echevarria, 21 NY3d 1, 20 [2013] [internal quotation marks omitted], quoting People v Roche, 45 NY2d 78, 86 [1978]). But here, there was no reasonable view of the evidence that defendant acted as a buyer’s agent. He did not have a prior relationship with any of the buyers—much less an individual relationship with the undercover. He instantly knew what to do when asked if anyone was “out,” had 37 $20 bills in his pocket, and covered his mouth with a shirt when speaking about where to procure drugs.

We are not persuaded by defendant’s argument that a mode of proceedings error occurred, when the trial court did not comply precisely with the requirements of People v O’Rama (78 NY2d 270 [1991]; CPL 310.30). Where, as here, defense counsel had notice of a jury note and “failed to object . . . when the error could have been cured,” lack of preservation bars the claim (People v Ramirez, 15 NY3d 824, 826 [2010]; see also People v Ippolito, 20 NY3d 615 [2013]; People v Starling, 85 NY2d 509, 516 [1995]).

Nor did the court commit a mode of proceedings error by delegating delivery of its answer to a jury question to a court officer. That task was in this context practically ministerial and defense counsel consented to the procedure (People v Mays, 20 NY3d 969, 971 [2012]; see also People v Bonaparte, 78 NY2d 26, 31 [1991] [unless a non-judicial officer delivers substantive instructions, the mode of proceedings is not implicated, and the preservation requirement fully applies]).

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

Order affirmed, in a memorandum.


source: Caselaw Access Project

author: Memorandum.

license: Public Domain

text:
    [990 NE2d 129, 967 NYS2d 891]
    The People of the State of New York, Respondent, v Isaac Diggins, Appellant.
    Argued April 24, 2013;
    decided May 30, 2013

      APPEARANCES OF COUNSEL

      Simpson Thacker & Bartlett LLP, New York City (Roy L. Reardon of counsel), and Richard M. Greenberg, Office of the Appellate Defender (Rosemary Herbert of counsel) for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted and the case remitted to Supreme Court for further proceedings on the indictment.

It is well established that a defendant may not, by his absence alone, “waive his right to effective assistance of counsel” (People v Aiken, 45 NY2d 394, 398 [1978]). Although a defendant’s willful absence from trial surely hampers an attorney’s ability to represent the client adequately and must be taken into consideration, under the circumstances of this case, we conclude that counsel’s lack of participation during the jury trial amounted to the ineffective assistance of counsel. On this record, including defendant’s cooperation with his attorney in formulating a defense before absconding, there was a “reasonable basis for an active defense” (United States v Sanchez, 790 F2d 245, 254 [2d Cir 1986]).

Chief Judge Lippman and Judges Graffeo, Pigott and Rivera concur; Judges Read and Smith dissent and vote to affirm, concluding that defendant’s trial counsel pursued a protest strategy (see People v Diggins, 11 NY3d 518, 525 [2008]). Judge Abdus-Salaam taking no part.

Order reversed, defendant’s motion pursuant to CPL 440.10 to vacate the judgment of conviction and sentence granted, and case remitted to Supreme Court, New York County, for further proceedings on the indictment, in a memorandum.


text:
    Tiffany Applewhite et al., Respondents, v Accuhealth, Inc., et al., Defendants, City of New York, Appellant.
    Submitted May 28, 2013;
    decided May 30, 2013
   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:
    Marcia L. Caronia et al., Appellants, v Philip Morris USA, Inc., Respondent.
    Decided May 30, 2013
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Elizabeth Gonzalez, Appellant, v City of New York, Respondent.
    Submitted April 1, 2013;
    decided May 30, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 859 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    In the Matter of Isabelita Gonzalez, Appellant, et al., Petitioner, v Division of Housing and Community Renewal of the State of New York et al., Respondents.
    Submitted March 4, 2013;
    decided May 30, 2013
   Motion for reargument denied [see 20 NY3d 1003 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    In the Matter of Metropolitan Transportation Authority, Respondent. Washed Aggregate Resources, Inc., Appellant.
    Decided May 30, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and Christopher Bramwell, Respondents.
    Submitted April 1, 2013;
    decided May 30, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 1000 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Alexander Dockery, Also Known as John Harris, Appellant.
    Submitted May 6, 2013;
    decided May 30, 2013
   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 Robert Kordish, Appellant.
    Submitted May 6, 2013;
    decided May 30, 2013
   Motion for assignment of counsel granted and Diane V Bruns, Esq., care of Schlather, Stumbar, Parks & Salk, LLR 200 East Buffalo St., Ithaca, New York 14850 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Oathout, Appellant.
    Submitted May 6, 2013;
    decided May 30, 2013
   Motion by John A. Aretakis for leave to appear amicus curiae on the appeal herein etc. dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [1] [iii]).


text:
    The People of the State of New York, Respondent, v Ennis E. Ruffin, Appellant.
    Submitted May 20, 2013;
    decided May 30, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Merlin G. Sage, Appellant.
    Submitted May 20, 2013;
    decided May 30, 2013
   Motion for assignment of counsel granted and Timothy R 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 Floyd L. Smart, Appellant.
    Submitted May 6, 2013;
    decided May 30, 2013
   Motion for assignment of counsel granted and Mark D. Funk, Esq., 144 Exchange Blvd., Ste. 400, 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 Jamel Walston, Appellant.
    Submitted May 13, 2013;
    decided May 30, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Tonya A., Respondent, v Hal H., Appellant.
    Decided May 30, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Jemal Albritton, Appellant, v Brian Fisher, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted April 22, 2013;
    decided June 4, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Anonymous, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided June 4, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Craig S., Appellant, v Donna S., Respondent.
    Submitted May 13, 2013;
    decided June 4, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 862 (2013)].

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Antonio C. Cunha, Respondent, v Rosa E. Urias, Appellant.
    Submitted April 15, 2013;
    decided June 4, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Daltun A.B., an Infant. Steuben County Department of Social Services, Respondent; Daniel B., Jr., Appellant. (And Two Other Proceedings.)
    Submitted April 22, 2013;
    decided June 4, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York ex rel. Prince Backman, Appellant, v Jim Walsh, as Superintendent of Sullivan Correctional Facility, Respondent.
    Submitted May 6, 2013;
    decided June 4, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 863 (2013)].

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York ex rel. Mitchel D.G., Appellant, v Interfaith Medical Center et al., Respondents.
    Submitted May 13, 2013;
    decided June 4, 2013
   Motion for sanctions and other relief denied.


text:
    [991 NE2d 707, 969 NYS2d 849]
    The People of the State of New York, Respondent, v Travis Augustine, Appellant.
    Argued April 30, 2013;
    decided June 6, 2013

      APPEARANCES OF COUNSEL

      Matthew C. Hug, Troy, for appellant.

      Terry J. Wilhelm, District Attorney, Catskill, and New York Prosecutor’s Training Institute, Inc., Albany (Hannah E.C. Moore of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Travis Augustine was convicted after a jury trial of second-degree murder, aggravated cruelty to animals, and fourth-degree criminal possession of stolen property (two counts). The victim, who died from a gunshot wound to the head, was discovered buried in the remote property she owned in Greene County, New York, where she had been living with defendant for several months in a camper; her pet bulldog, shot five times in the head, was buried above her. While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. Defendant claims that his constitutional right to counsel was violated because he was represented by counsel on the VOP at the time, as evidenced by the notation made on an arraignment memorandum by the Town Justice who arraigned him on the VOP

Assuming, without deciding, that defendant’s indelible right to counsel was violated, any error was harmless beyond a reasonable doubt (see People v Lopez, 16 NY3d 375, 386-387 [2011], citing People v Douglas, 4 NY3d 777, 779 [2005]; see also People v Crimmins, 36 NY2d 230, 240-241 [1975]). There is no reasonable possibility that the introduction of the two challenged statements affected defendant’s conviction in view of the other evidence, including two counseled statements to police and testimony of numerous witnesses, that overwhelmingly established his guilt.

Defendant’s claim of insufficient evidence to support his conviction for aggravated cruelty to animals is unpreserved; his remaining claims are without merit.

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

Order affirmed, in a memorandum.


text:
    [991 NE2d 704, 969 NYS2d 846]
    Marcia A. Wild et al., as Coexecutors of Marguerite Horn, Deceased, et al., Respondents, v Catholic Health System, Doing Business as Mercy Hospital of Buffalo, et al., Defendants, and Buffalo Emergency Associates, LLP, et al., Appellants.
    Argued April 24, 2013;
    decided June 6, 2013

      APPEARANCES OF COUNSEL

      Damon Morey LLP, Buffalo (Michael J. Willett and Patrick B. Curran of counsel), for appellants.

      Paul William Beltz, P.C., Buffalo (Debra A. Norton and William A. Quinlan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed, with costs. Defendants Dr. Raquel Martin and her firm, Buffalo Emergency Associates, LLP, challenge a jury verdict in favor of plaintiffs in this medical malpractice action against Dr. Martin and several other institutional and individual defendants, for negligence resulting in injury to plaintiff Marguerite Horn. Defendants claim that the jury charge improperly reduced plaintiffs’ burden of proof. We disagree.

In 2005, decedent, an 83-year-old woman, was rushed to a hospital after her 89-year-old husband, Joseph Horn, found her unresponsive and on the floor of their home. At the hospital, the emergency room physician, defendant Dr. Martin, concluded that Horn had difficulty breathing and may have suffered a stroke. Attempts were made to insert an endotracheal tube in Horn’s throat, including two unsuccessful attempts by Dr. Martin, during one of which Dr. Martin inserted the tube into Horn’s esophagus. After several failed attempts an anesthesiologist successfully intubated her.

During the intubation procedure Dr. Martin observed a subcutaneous emphysema under Horn’s skin. However, not until days later did physicians finally discover that Horn’s esophagus had been perforated during intubation. Surgical attempts at repair proved unsuccessful, and, as a consequence, for the three remaining years of her life, until her death of an unrelated cause, Horn was unable to consume foods or liquids by mouth, and required a feeding tube, as well as the daily assistance of her husband, for her nutritional intake.

A jury found Dr. Martin solely liable and returned a one million dollar plaintiffs’ verdict of $500,000 for the decedent’s pain and suffering and $500,000 for the husband’s loss of consortium. The Appellate Division unanimously affirmed, on plaintiffs’ stipulation to a reduction of the loss of consortium damages to $200,000 (85 AD3d 1715 [2011]).

On appeal, defendants contend that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted this theory, and the charge relaxed the plaintiffs’ burden of proof. Defendants base their argument on the following jury charge language:

“The negligence of any of the defendants may be considered a cause of the injuries to [decedent] if you find the defendants’] actions or omissions deprived [decedent] of a substantial possibility of avoiding the consequences of . . . having a permanent feeding tube. The chance of avoiding the need for a [permanent] feeding tube in order to be substantial does not have to be more likely than not, it does not have to be more than 50 percent, but it has to be more than . . . slight.”

In response, plaintiffs argue that defendants’ challenge based on the viability of a loss-of-chance theory of liability under New York law is unpreserved, and that regardless, the jury charge was proper.

As a threshold matter we agree that the defendants’ challenge to the viability of the loss-of-chance theory as articulated on appeal is unpreserved. The record indicates that defendants did not present the trial court with a direct challenge to the underlying theory of negligence propounded during the trial and eventually charged to the jury. Instead, counsel challenged the jury charge on the ground that the “facts of this case” do not support a loss-of-chance charge, not that such charge is wholly unavailable under New York law. Thus, the concern raised with the trial court was that plaintiffs had failed to present a factual basis for the charge, not that as a legal matter, regardless of the evidence, such a charge was prohibited under New York law. Moreover, defendants’ challenge was asserted as part of counsel’s request for adherence to the Pattern Jury Instructions (PJI) because, counsel argued, the proposed language deviated from the PJI in a way that changed the burden of proof. Thus, the sum and substance of defendants’ argument before the trial judge was that plaintiffs failed to present evidence in support of the charge which sought to instruct the jury on a negligence theory of loss-of-chance, and that the jury charge erroneously reduced the plaintiffs’ burden of proof and relaxed the standard for causation. Defendants’ broad challenge to the loss-of-chance doctrine is unpreserved and is not properly before the Court (see generally Up-Front Indus. v U.S. Indus., 63 NY2d 1004 [1984]; see also Matter of Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II, 20 NY3d 268, 284 [2012]).

We now turn to defendants’ contention, preserved below, that the trial court improperly reduced plaintiffs’ burden of proof. It is well settled that a “plaintiff must generally show that the defendant’s negligence was a substantial factor in producing the injury” to satisfy “the burden of proving a prima facie case” in a medical malpractice action (see Lyons v McCauley, 252 AD2d 516, 517 [2d Dept 1998], lv denied 92 NY2d 814 [1998]; see also Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Here, the trial court recited the proximate cause charge directly from the PJI and explicitly instructed the jury as to plaintiffs’ burden of proof in the case. The court charged the jury using the language from PJI 2:70, as follows: “An act or omission is regarded as a cause of an injury if it was a substantial factor in bringing about the injury. That is, if it had such an effect in producing the injury that reasonable people would regard it as a cause of the injury.” Further, at the outset of the charge, the court instructed the jury that “the burden of the proof in this case rests with the plaintiffs,” and made clear that the plaintiffs had to establish by a preponderance of the evidence defendants’ negligence. Taking this jury charge as a whole, we do not find support for defendants’ contention of an improper alteration of the causation standard or plaintiffs’ burden of proof (Nestorowich v Ricotta, 97 NY2d 393, 401 [2002]).

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

Order affirmed, with costs, in a memorandum.

       The loss-of-chance theory, in certain jurisdictions, “ !grant[s] recovery to patients for deprivation of the opportunity of more beneficial treatment and the resulting gain in life expectancy or comfort, although the evidence fails to establish a reasonable probability that without defendant’s negligence a cure was achievable’ ” (Hill v Novartis Pharms. Corp., 944 F Supp 2d 943, 963 [ED Cal 2013], quoting Williams v Wraxall, 33 Cal App 4th 120, 135, 39 Cal Rptr 2d 658, 667 [1995]).


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents.
    Decided June 6, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Board of Managers of French Oaks Condominium, Respondent, v Town of Amherst et al., Appellants, and Williamsville Central School District, Intervenor-Respondent.
    Submitted April 22, 2013;
    decided June 6, 2013
   Motion to dismiss appeal denied.


text:
    HSBC Bank USA, N.A., as Trustee for the Registered Holders of Renaissance Home Equity Loan Trust 2006-1, Respondent, v Robert T. Ashley et al., Appellants.
    Submitted April 22, 2013;
    decided June 6, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    L&L Associates Holding Corp., Respondent, v Joseph A.F. Sadowski, Appellant, et al., Defendants.
    Submitted April 15, 2013;
    decided June 6, 2013
   Motion for reargument denied [see 20 NY3d 1057 (2013)]. Motion for a stay dismissed as academic.

Judge Abdus-Salaam taking no part.


text:
    Michael Lurie, Appellant, v Holly Lurie, Respondent.
    Submitted April 15, 2013;
    decided June 6, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the portion of Supreme Court’s order denying reargument, dismissed upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Lynn & Cahill, LLP, Respondent, v Nadine Witkin, Appellant.
    Submitted April 8, 2013;
    decided June 6, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Christopher B., Appellant.
    Submitted April 1, 2013;
    decided June 6, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 860 (2013)].

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Appellant, v Mark Russell, Respondent.
    Submitted April 29, 2013;
    decided June 6, 2013
   Motion to vacate this Court’s April 2, 2013 dismissal order granted [see 21 NY3d 910 (2013)].


text:
    In the Matter of Timothy Quinn, Appellant, v Raymond Kelly, Police Commissioner of the City of New York, et al., Respondents.
    Submitted March 18, 2013;
    decided June 6, 2013
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 813 (2012)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Judith Lynn Stenroos, Respondent, v William A. Maecker, Appellant.
    Decided June 6, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies to the Court of Appeals from the order of County Court affirming the Silver Creek Village Court judgment (see NY Const, art VI, § 3 [b]; CPLR 5601).


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

text:
    [995 NE2d 128, 972 NYS2d 166]
    The People of the State of New York, Respondent, v Ray Lam, Appellant.
    Argued April 24, 2013;
    decided June 11, 2013

      APPEARANCES OF COUNSEL

      Steven Banks, Legal Aid Society, New York City (Martin M. Lucente of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Andrew E. Seewald and Eleanor J. Ostrow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Defendant was convicted of unlicensed general vending, in violation of section 20-453 of the Administrative Code of the City of New York, for selling T-shirts in Union Square Park without a vendor’s license. He argues that his conviction should be vacated because the vending of T-shirts containing artistic images was constitutionally protected expression.

Addressing a similar issue, the Second Circuit found that the relevant inquiry is whether the vendor is “genuinely and primarily engaged in artistic self-expression or whether the sale of such goods is instead a chiefly commercial exercise” (Mastrovincenzo v City of New York, 435 F3d 78, 91 [2d Cir 2006]). The court recognized that certain items, including apparel, could simultaneously contain potentially expressive and non-expressive components and, in that situation, a reviewing court must determine which purpose—expression or utility—is dominant (see Mastrovincenzo, 435 F3d at 95).

“Where an object’s dominant purpose is expressive, the vendor of such an object has a stronger claim to protection under the First Amendment; conversely, where an object has a dominant non-expressive purpose, it will be classified as a ‘mere commercial good[ ],’ the sale of which likely falls outside the scope of the First Amendment” (Mastrovincenzo, 435 F3d at 95).

Although Criminal Court may have overemphasized the fact that the T-shirts can be worn as apparel, the Appellate Term reasonably found that their dominant purpose was utilitarian. That court considered, among other factors, the way in which the shirts were displayed and their low, uniform selling price in coming to the conclusion that the T-shirts were primarily commercial goods. We are unable to determine that this conclusion was error as a matter of law.

Since the dominant purpose here was not expressive, it is unnecessary to determine whether the statute leaves open ample alternative channels of communication.

Smith, J. (dissenting).

But for the fact that the key evidence has been destroyed, this would be an interesting and important case. It raises the issue, considered by the Court of Appeals for the Second Circuit in Bery v City of New York (97 F3d 689 [2d Cir 1996]) and Mastrovincenzo v City of New York (435 F3d 78 [2d Cir 2006]), of the degree of First Amendment protection available to visual art that is sold commercially.

But we are unable to address that question in any useful way without looking at, or at least having a clear description of, the T-shirts that defendant was prosecuted for selling. The People, according to their brief, “have been informed by the New York Police Department Property Clerk’s Office that the t-shirts were destroyed some time after trial,” and the record contains neither a photograph nor a description of them. In light of that, I find it hard to understand how the Appellate Term decided that “Criminal Court was warranted in concluding that defendant’s wares were mere commercial goods whose dominant purpose was utilitarian, and not expressive” (People v Lam, 34 Misc 3d 130[A], 2011 NY Slip Op 52327[U], 1 [App Term, 1st Dept 2011]), or how the majority decides that the Appellate Term’s finding was reasonable (majority mem at 959). Presumably, both the Appellate Term and the majority are going on the theory that, since nothing in the appellate record contradicts Criminal Court’s finding, the finding should be accepted.

Since it was the Police Department that destroyed the evidence, I would resolve the doubt in the opposite way, in defendant’s favor. There is testimony from defendant that T-shirts allegedly similar to the ones on which his arrest was based were “a statement on the state of surveillance” and “about the Iraq War.” (Pictures of these allegedly similar T-shirts were admitted into evidence but these pictures too have been lost, apparently by defendant or his counsel.) The testimony is ambiguous, but I would draw the inference, in the absence of better proof, that the T-shirts expressed a clear political message, similar to the message on the jacket worn in Cohen v California (403 US 15 [1971]). On that assumption, it is surely not open to doubt that defendant’s sale of the T-shirts was protected by the First Amendment and article I, § 8 of the New York Constitution. I would hold that the courts below erred in deciding otherwise.

Two other features of this case seem to me to call for comment. First, while I find much to admire in the Second Circuit’s Mastrovincenzo opinion, I am not convinced—and we should not decide, in a case without a useful record—that we should accept its “dominant purpose” test (435 F3d at 95). Here, it does not matter what test is applied: the only issue is whether to assume the facts in the People’s favor, as the majority apparently does, or in defendant’s favor, as I think we should. Certainly, today’s memorandum should not be viewed as committing us to follow Mastrovincenzo.

Secondly, I point out, but do not complain, that neither the Appellate Term nor today’s majority has been punctilious in following the rule of People v LaFontaine (92 NY2d 470 [1998]). LaFontaine holds that neither an intermediate appellate court nor this Court may affirm a judgment in a criminal case “on a ground not decided adversely to the appellant by the trial court” (People v Concepcion, 17 NY3d 192, 195 [2011]). Criminal Court rejected defendant’s First Amendment argument on the ground that “[t]he transferring of an artistic image to the T-shirt changed the art, the non-expressive purpose became dominant.” Neither the Appellate Term nor the majority embraces this simple (and, I think, untenable) “a shirt is a shirt” rationale. The Appellate Term replaced it with what seems to be a balancing test, relying, unlike Criminal Court, on the manner in which the shirts were displayed and their price, and the majority expresses a preference for the Appellate Term’s approach (majority mem at 959-960).

It is not clear to me why LaFontaine permits either the Appellate Term or the majority to proceed in this way; but I welcome the erosion of LaFontaine. This case confirms my belief that the LaFontaine rule is essentially unworkable (see Concepcion, 17 NY3d at 201-207 [Smith, J., dissenting]).

Finally, I express the hope that in future cases counsel and the Property Clerk will bear in mind that exhibits should not be destroyed while an appeal is pending.

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

Order affirmed, in a memorandum.

       We note that, although the T-shirts themselves were apparently destroyed some time after trial, defendant does not argue that their destruction was in bad faith or that he has been prejudiced by their loss. At trial he provided an exhibit consisting of drawings that were representative of the designs on the T-shirts he had been selling—an exhibit that likewise can no longer be found. He also testified concerning the subject matter of his work.


text:
    [992 NE2d 420, 970 NYS2d 492]
    The People of the State of New York, Respondent, v Curtis L. Mason, Appellant.
    Decided June 11, 2013

      APPEARANCES OF COUNSEL

      Mary J. Fahey, Syracuse, for appellant.

      Barry L. Porsch, District Attorney, Waterloo, for respondent.
   OPINION OF THE COURT

Memorandum.

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

On appeal, defendant argued that the jury’s verdict was against the weight of the evidence. The order of the Appellate Division (101 AD3d 1659 [2012]), however, “ ‘manifests] a lack of application of that review power’ ” (People v Romero, 7 NY3d 633, 646 [2006], quoting People v Bleakley, 69 NY2d 490, 496 [1987]). Consequently, we must reverse and remit for a proper consideration of the claim. Defendant’s remaining contention lacks merit.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.


text:
    [993 NE2d 405, 970 NYS2d 919]
    The People of the State of New York, Respondent, v Robert Mitchell, Appellant. The People of the State of New York, Respondent, v Josue Deliser, Appellant.
    Argued May 2, 2013;
    decided June 11, 2013

      APPEARANCES OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Rebekah J. Pazmiño of counsel), for appellant in the first above-entitled action.

      Robert T. Johnson, District Attorney, Bronx (Richard J. Ramsay, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent in the first above-entitled action.

      Lynn W.L. Fahey, Appellate Advocates, New York City (Winston McIntosh of counsel), for appellant in the second above-entitled action.

      Charles J. Hynes, District Attorney, Brooklyn (Diane R. Eisner and Leonard Joblove of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed in People v Mitchell, and the order of the Appellate Division should be reversed and the case remitted to Supreme Court in People v Deliser for further proceedings in accordance with this memorandum.

People v Mitchell

Defendant pleaded guilty to two counts of murder in the second degree. Prior to sentencing, he filed a pro se motion to withdraw that plea, arguing, among other things, that his counsel coerced him into pleading guilty. When asked by the court if defense counsel had anything to say on defendant’s behalf, counsel said: “[0]nly that I do not adopt the merits or factual assertions relative to this [motion].” Defense counsel expressed his concern to the court that if he did not respond to the motion, his silence might be deemed an acknowledgment that there was merit to the claims. In response to this concern, the court indicated it would assign new counsel. The court permitted defense counsel to be heard, and defense counsel took a position contrary to defendant’s claim of coercion. After a proceeding with new defense counsel, the motion was denied. The Appellate Division affirmed the judgment of conviction and sentence (89 AD3d 628 [1st Dept 2011]).

People v Deliser

Defendant pleaded guilty to attempted murder in the second degree and robbery in the first degree in satisfaction of two indictments. He subsequently made a pro se motion to withdraw his plea in both cases, claiming that his pleas had been coerced by, among other things, defense counsel’s alleged undue pressure on him. Asked for his response, defense counsel explained the actions he took on defendant’s behalf. He concluded with the statement that, in his opinion, the People had “two strong cases against [defendant] and I think he made a knowing plea and I think it was in his best interest.”

After reading portions of the plea minutes, the court denied defendant’s motion to withdraw the pleas. The Appellate Division affirmed the judgments of conviction and sentence (85 AD3d 1047 [2d Dept 2011]) concluding, among other things, that defendant’s attorney did not take a position adverse to defendant’s motion to withdraw his pleas.

A Judge of this Court granted defendants leave to appeal.

It is well settled that a defendant has a right to the effective assistance of counsel on his or her motion to withdraw a guilty plea (see People v Boyd, 22 NY2d 707 [1968]; People v Rozzell, 20 NY2d 712 [1967]). The motion court has broad discretion in its fact-finding inquiry on the motion and often a “limited interrogation by the court will suffice” (People v Tinsley, 35 NY2d 926, 927 [1974]). “Only in the rare instance will a defendant be entitled to an evidentiary hearing” (id.).

Thus, when a motion to withdraw a plea is patently insufficient on its face, a court may simply deny the motion without making any inquiry. When certain actions or inaction on the part of defense counsel is challenged on the motion, it may very well be necessary for defense counsel to address the matter when asked to by the court. When doing so, defense counsel should be afforded the opportunity to explain his performance with respect to the plea (see People v Nelson, 7 NY3d 883 [2006]), but may not take a position on the motion that is adverse to the defendant (see People v Kennedy, 22 NY2d 280, 282 [1968]). At that point, a conflict of interest arises, and the court must assign a new attorney to represent the defendant on the motion.

In Mitchell, when defense counsel stated on the record his opposition to the motion, the court providently exercised its discretion in assigning new counsel. The court’s decision to deny defendant’s motion after hearing from new defense counsel is supported by the record.

In Deliser, the court abused its discretion in not assigning new counsel once defense counsel took a position contrary to the one taken by his client on the motion. Thus defendant is entitled to be heard on his plea withdrawal motion with new assigned counsel.

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

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

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

In People v Deliser: Order reversed and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Carl R., Respondent. Gerald G. Wright, Appellant.
    Submitted April 29, 2013;
    decided June 11, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Council of the City of New York, Respondent, v Department of Homeless Services of the City of New York et al., Appellants.
    Submitted May 6, 2013;
    decided June 11, 2013
   Motion to intervene denied.

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


text:
    In the Matter of David Dale, Appellant, v Christopher J. Burns, Justice of the Supreme Court, et al., Respondents.
    Submitted April 22, 2013;
    decided June 11, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    In the Matter of Amy R. Gurvey (Admitted as Amy Rebecca Weissbrod), an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted May 6, 2013;
    decided June 11, 2013
   Motion for reconsideration of this Court’s March 26, 2013 dismissal order denied [see 20 NY3d 1085 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Ronald Mizrahi, Respondent, v Ezra Cohen, Appellant.
    Submitted April 29, 2013;
    decided June 11, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Ben Nehmadi, Appellant, v E. William Davis, Respondent.
    Submitted April 8, 2013;
    decided June 11, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Katisha Beaty, Appellant.
    Submitted May 13, 2013;
    decided June 11, 2013
   Motion for assignment of counsel granted and Harvey L. Greenberg, Esq., 232 Madison Ave., Room 909, New York, NY 10016 assigned as counsel to the appellant on the appeal herein.


text:
    [993 NE2d 1255, 971 NYS2d 234]
    The People of the State of New York, Respondent, v Tawond Leach, Appellant.
    Argued May 29, 2013;
    decided June 25, 2013

      APPEARANCES OF COUNSEL

      Levitt & Kaizer, New York City (Yvonne Shivers of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Thomas M. Ross and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On March 20, 2008, shortly before 7:00 p.m., two shooters fired at and hit a parked sport utility vehicle (SUV) occupied by three young men, brothers who survived the onslaught unhurt. Two of them were able to see the attackers, whom they identified to the police as defendant Tawond Leach and his brother Derek. The victims had grown up and gone to school with the Leach brothers in the same Brooklyn neighborhood where this incident occurred. They told the police that defendant shot at the SUV using a silver gun, and that he and his brother resided in a nearby building. About an hour later, defendant and his brother were arrested when they arrived at their grandmother’s apartment on the second floor of this building. The police recovered a loaded silver gun from a bedroom in the apartment.

Defendant and his brother were charged with multiple counts of attempted murder, attempted assault, reckless endangerment, and weapon possession. Before trial, defendant moved to suppress the gun. At the hearing, his grandmother testified that she was the only one who had keys to her apartment, which had three bedrooms—hers, defendant’s, which was furnished with a single bed, and an “extra” one reserved for the exclusive use of other grandchildren when they visited. She testified that she had nine grandchildren, some lived nearby and two or three slept over in the extra bedroom “quite often.” The extra or guest bedroom was furnished with two twin beds, an armoire and a dresser. The police recovered the gun from this bedroom.

At the hearing’s conclusion, Supreme Court denied the motion to suppress. The judge credited the grandmother’s testimony that the bedroom where the gun was found was an extra or guest bedroom; and that defendant had a separate room and did not stay in the guest bedroom. Given these facts, Supreme Court held that defendant failed to meet his burden of establishing a reasonable expectation of privacy in “a room that wasn’t his, that was used by several other people.”

Defendant was subsequently convicted by a jury of two counts of first-degree attempted assault (Penal Law §§ 110.00, 120.10 [1]), second-degree criminal possession of a weapon (Penal Law § 265.03 [3]) and first-degree reckless endangerment (Penal Law § 120.25). He appealed, claiming for various reasons that the gun should have been suppressed. The Appellate Division unanimously affirmed, agreeing with Supreme Court that defendant lacked standing to contest the search that turned up the gun because he had no reasonable expectation of privacy in the guest bedroom of his grandmother’s apartment (90 AD3d 1073 [2d Dept 2011]). A Judge of this Court granted defendant leave to appeal (19 NY3d 975 [2012]), and we now affirm.

“A defendant seeking suppression of evidence has the burden of establishing standing by demonstrating a legitimate expectation of privacy in the premises or object searched” (People v Ramirez-Portoreal, 88 NY2d 99, 108 [1996]). “A legitimate expectation of privacy exists where defendant has manifested an expectation of privacy [a subjective component] that society recognizes as reasonable [an objective component]” (id. at 108). Whether a defendant demonstrates a legitimate expectation of privacy is a mixed question of law and fact and so, if there is record support for the Appellate Division’s findings, those findings are beyond our review (see People v Jose, 94 NY2d 844 [1999]; People v Ortiz, 83 NY2d 840, 843 [1994]).

Here, there is record support for the lower courts’ findings. There is no question that defendant resided in his grandmother’s apartment. But there is record support for a finding that defendant’s grandmother did not want defendant to have unfettered access to all areas of the apartment. She told the hearing court that defendant had his own bedroom and she reserved the extra or guest bedroom solely for use by other grandchildren when they came to visit. The record was silent as to whether defendant had ever used that bedroom for any purpose. While a contrary finding might also have been reasonable under these circumstances, we cannot say there was no record support for the lower courts’ determination that defendant failed to establish a legitimate expectation of privacy in the guest bedroom.

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

Order affirmed, in a memorandum.

       The jury did not reach a verdict on the two counts of attempted murder, and defendant was not re-tried for these crimes.


text:
    [992 NE2d 1085, 970 NYS2d 742]
    In the Matter of Jean Lang, Appellant, v Raymond Kelly, as the Police Commissioner of the City of New York and as Chairman of the Board of Trustees of the Police Pension Fund, Article II, et al., Respondents.
    Decided June 25, 2013

      APPEARANCES OF COUNSEL

      Jean Lang, appellant pro se.

      Michael A. Cardozo, Corporation Counsel, New York City (Keith M. Snow of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs, and the certified question not answered on the ground that it is unnecessary.

In March 2008, petitioner tripped over computer wires that for several months had been strung on the floor across a locker room doorway in her precinct. In a 6-6 decision, respondent Board of Trustees denied her application for accidental disability retirement benefits (Matter of City of New York v Schoeck, 294 NY 559, 568 [1945] [tie vote of the Board of Trustees will be resolved against applicant]).

We agree with the Appellate Division that the Board of Trustees could find on this record that petitioner’s 2010 statement, which claimed that tape ordinarily secured the wires to the floor but was no longer present on the date she fell, was not credible. Because the record does not establish as a matter of law that petitioner’s injury resulted from an incident that was “sudden, fortuitous . . . unexpected [or] out of the ordinary,” the Board’s determination must be upheld (Matter of McCambridge v McGuire, 62 NY2d 563, 568 [1984]; Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered on the ground that it is unnecessary, in a memorandum.


text:
    In the Matter of Perry Bellamy, Appellant, v New York City Police Department, Respondent.
    Submitted April 15, 2013;
    decided June 25, 2013
   Motion for reargument denied [see 20 NY3d 1028 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    In the Matter of the Claim of Lekan J. Bowen, Appellant. Commissioner of Labor, Respondent.
    Submitted April 29, 2013;
    decided June 25, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Alexander Breytman, Appellant, v Roberta S. Schechter, as Executor of Donald Schechter, Deceased, et al., Respondents, et al., Defendant.
    Submitted May 13, 2013;
    decided June 25, 2013
   Motion for leave to appeal dismissed for failure to demonstrate timeliness as required by the Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2). Motion for poor person relief etc. dismissed as academic.


text:
    In the Matter of Corrina W., Respondent, v Jennifer J. et al., Respondents. Attorney for the Children, Appellant. (And Another Proceeding.)
    Submitted May 6, 2013;
    decided June 25, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Executive Plaza, LLC, Appellant, v Peerless Insurance Company, Respondent.
    Decided June 25, 2013
   Certification of question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    In the Matter of Gena S., an Infant. Genesee County Department of Social Services, Respondent; Karen M., Appellant. In the Matter of Misty S., an Infant. Genesee County Department of Social Services, Respondent; Karen M., Appellant. In the Matter of Shaundra D., an Infant. Genesee County Department of Social Services, Respondent; Karen M., Appellant.
    (Appeal No. 1.)
    (Appeal No. 2.)
    (Appeal No. 3.)
    Submitted April 29, 2013;
    decided June 25, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division order reversing the Family Court order of disposition as to Gena S. and remitting to Family Court for further proceedings, dismissed upon the ground that such order does not finally determine that proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of John Kapon et al., Appellants, v William I. Koch, Respondent.
    Submitted June 10, 2013;
    decided June 25, 2013
   Motion for leave to appeal granted. Motion for a stay granted.

Judge Smith taking no part.


text:
    In the Matter of Kimberly J.G. Westchester County Department of Social Services, Respondent; Chantel J.G.V., Appellant. (And Another Proceeding.)
    Submitted May 6, 2013;
    decided June 25, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    Paul Marinaccio, Sr., Respondent, v Town of Clarence, Defendant, and Kieffer Enterprises, Inc., Appellant.
    Submitted May 6, 2013;
    decided June 25, 2013
   Motion for reargument etc. denied [see 20 NY3d 506 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    The People of the State of New York, Appellant, v Jermaine Dunbar, Respondent.
    Submitted June 10, 2013;
    decided June 25, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Victor Gonzalez, Appellant.
    Submitted June 17, 2013;
    decided June 25, 2013
   Motion for assignment of counsel granted and V Marika Meis, Esq., The Bronx Defenders, 360 East 161st Street, Bronx, New York 10451 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Harold Jones, Appellant.
    Submitted June 3, 2013;
    decided June 25, 2013
   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.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Appellant, v Collin F. Lloyd-Douglas, Respondent.
    Submitted June 10, 2013;
    decided June 25, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raymond Michael, Appellant.
    Submitted June 17, 2013;
    decided June 25, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Eugene Polhill, Respondent.
    Submitted June 10, 2013;
    decided June 25, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Marsha Sibblies, Appellant.
    Submitted June 10, 2013;
    decided June 25, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of RCN Telecom Services of New York, LP, et al., Appellants, v David M. Frankel et al., Respondents.
    Submitted April 29, 2013;
    decided June 25, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Elizabeth A. Spielfogel, Appellant, v Larry R. Spielfogel, Respondent.
    Submitted April 29, 2013;
    decided June 25, 2013
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.

Motion for a stay dismissed as academic.


text:
    Sunrise Check Cashing and Payroll Services, Inc., et al., Respondents, v Town of Hempstead, Appellant.
    Submitted March 25, 2013;
    decided June 25, 2013
   Motion for reargument denied [see 20 NY3d 481 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Town of Oyster Bay, Appellant, v Lizza Industries, Inc., Respondent. (And Other Actions.)
    Submitted June 3, 2013;
    decided June 25, 2013
   Motion by County of Suffolk for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Joseph O. Yebo, Appellant, v Helene M. Cuadra, Respondent.
    Submitted January 7, 2013;
    decided June 25, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 905 (2012)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    [994 NE2d 387, 971 NYS2d 491]
    The People of the State of New York, Respondent, v Isidoro Marra, Appellant.
    Argued May 28, 2013;
    decided June 26, 2013

      APPEARANCES OF COUNSEL

      Girvin & Ferlazzo, P.C., Albany (Salvatore D. Ferlazzo and Stuart M. Cohen of counsel), for appellant.

      Jeffrey S. Carpenter, District Attorney, Herkimer, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Isidoro Marra was convicted by jury verdict of first-degree rape (Penal Law § 130.35 [2] [engaging in sexual intercourse with a person incapable of consent by reason of being physically helpless]). The trial judge sentenced him to a determinate term of imprisonment of 18 years followed by 15 years of postrelease supervision, and imposed a 20-year order of protection. Observing that the case “turned largely upon the credibility of the victim, and the jury evidently believed the victim’s testimony that defendant inserted his penis into her vagina without her consent while she was asleep,” the Appellate Division declined to substitute its credibility determinations for the jury’s and held that the verdict was not against the weight of the evidence (96 AD3d 1623, 1624-1625 [4th Dept 2012]). Additionally, the Court rejected defendant’s claims of evidentiary error and prosecutorial misconduct as unpreserved and, in any event, without merit. But “in light of [defendant’s] age, his lack of a prior criminal record and other mitigating circumstances,” the Appellate Division modified the judgment by reducing defendant’s sentence to a determinate term of imprisonment of 10 years plus a five-year period of postrelease supervision (id. at 1627). A Judge of this Court granted defendant leave to appeal (19 NY3d 998 [2012]), and we now affirm.

Defendant objects to the trial judge’s decision to admit seven photographs taken of the victim at the hospital where she was examined after calling 911 to report a rape. These photographs depict red marks and bruises on her body. As an initial matter, we conclude that defendant preserved the objections he makes on appeal to the admission of these photographs into evidence. The transcript of the hearing on defendant’s motion in limine shows that the trial judge considered whether the photographs were properly authenticated, relevant and not unduly prejudicial. We cannot say the judge abused his discretion by allowing the photographs into evidence in view of the circumstances of this case, including the People’s theory of physical helplessness. Finally, we conclude that defense counsel’s alleged failings, such as his neglect to object to the prosecutor’s comment in summation about condom use, did not amount to ineffective assistance of counsel, and that defendant received meaningful representation.

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

Order affirmed, in a memorandum.


text:
    [993 NE2d 1264, 971 NYS2d 243]
    Island Park, LLC, Appellant, v State of New York, Respondent.
    Argued May 30, 2013;
    decided June 26, 2013

      APPEARANCES OF COUNSEL

      Young/Sommer LLC, Albany (J. Michael Naughton of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Andrew D. Bing, William E. Storrs, Peter H. Schiff and Barbara D. Underwood of counsel), for respondent.

      Elizabeth Dribusch, General Counsel, New York Farm Bureau, Albany (Cynthia Feathers of counsel), for New York Farm Bureau, amicus curiae.
   OPINION OF THE COURT

Memorandum.

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

Claimant brought this action in the Court of Claims to recover compensation for an alleged regulatory taking of its property. The basis for the claim is that the State Department of Transportation required the closure of a railroad crossing that claimant had used to move equipment from one part of its land to another. The record shows that the Department ordered the closure after it determined that the crossing presented a safety hazard. It found that fast-moving trains passed by frequently; that a curve in the tracks limited the distance at which a train could be seen from the crossing; that heavy, slow-moving farm equipment was being transported over the tracks; and that there was a substantial grade at the approaches to the crossing, which made it necessary for crossing vehicles to reduce their speed. In a CPLR article 78 proceeding brought by claimant, the Department’s determination was upheld as being supported by substantial evidence (Matter of Island Park, LLC v New York State Dept. of Transp., 61 AD3d 1023 [3d Dept 2009]).

On this record, the conclusion is inescapable that the closure of the crossing was a proper exercise of the State’s police power. Moreover, claimant has failed to show the extent to which the Department’s action diminished the value of its land, and has not argued that its easement to cross the railroad tracks should be treated for these purposes as an item of property separate from the land itself. Claimant’s claim of a regulatory taking is without merit.

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

Order affirmed, with costs, in a memorandum.


text:
    [993 NE2d 409, 970 NYS2d 923]
    Mia Plaza, an Infant by Her Mother and Natural Guardian, Claribel Rodriguez, Appellant, v New York City Health and Hospitals Corporation (Jacobi Medical Center), Respondent.
    Decided June 26, 2013

      APPEARANCES OF COUNSEL

      Law Offices of Fitzgerald & Fitzgerald, EC., Yonkers (John M. Daly of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The certified question should not be answered on the ground that it is unnecessary.

Plaintiff admittedly served a late notice of claim against defendant without seeking leave of court.

General Municipal Law § 50-e (1) requires that a claimant serve a notice of claim against a public corporation within 90 days after a tort claim arises. However, section 50-e (5) provides that a court, “in its discretion,” may grant an application extending the time to serve a notice of claim as long as the application is made within the limitations period for commencing the action, including any tolls or extensions. CPLR 208 provides that “[i]f a person entitled to commence an action is under a disability because of infancy ... at the time the cause of action accrues, and . . . the time otherwise limited [for commencing the action] is less than three years, the time shall be extended by the period of disability.” Where a medical malpractice action accrues during infancy, the extension is limited to 10 years from the time of accrual (see CPLR 208).

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered on the ground that it is unnecessary, in a memorandum.


text:
    Joan Coccia, Respondent, v Thomas F. Liotti, Appellant.
    Submitted May 15, 2013;
    decided June 26, 2013
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Andrew Corrigan, Appellant, v Stellar Management, LLC, et al., Respondents.
    Submitted May 28, 2013;
    decided June 26, 2013
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Winifred K. Day, Appellant, v One Beacon Insurance, Respondent.
    Submitted May 6, 2013;
    decided June 26, 2013
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 20 NY3d 862 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Winifred K. Day, Appellant, v One Beacon Insurance, Respondent.
    Submitted May 20, 2013;
    decided June 26, 2013
   Motion by the New York State Academy of Trial Lawyers for leave to file a brief amicus curiae on the motion for reargument herein granted and the brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v New York State Teachers’ Retirement System, Respondent.
    Submitted April 8, 2013;
    decided June 26, 2013
   Motion by the Albany Times Union et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Empire Center for New York State Policy, Appellant, v Teachers’ Retirement System of the City of New York, Respondent.
    Submitted April 8, 2013;
    decided June 26, 2013
   Motion by the Albany Times Union et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Abdus-Salaam taking no part.


text:
    In the Matter of A. Dennis Gardner, Respondent, v Coxsackie-Athens Central School District Board of Education, Appellant.
    Submitted May 20, 2013;
    decided June 26, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Kenneth J. Hecker, Appellant, v State of New York, Respondent.
    Submitted May 6, 2013;
    decided June 26, 2013
   Motion for reargument denied [see 20 NY3d 1087 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    In the Matter of Deana R. Mensche, Appellant, v Debra I. Mensche, Respondent.
    Submitted May 13, 2013;
    decided June 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Gary White, Appellant.
    Submitted May 20, 2013;
    decided June 26, 2013
   Motion for reargument denied [see 10 NY3d 286 (2008)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    In the Matter of Debra A. Ramallo, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted May 13, 2013;
    decided June 26, 2013
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Trump Securities, LLC, et al., Respondents, v Purolite Company et al., Appellants, et al., Defendant.
    Submitted May 6, 2013;
    decided June 26, 2013
   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]).

Judge Abdus-Salaam taking no part.


text:
    In the Matter of Earl White, Respondent, v County of Sullivan, Appellant.
    Submitted May 13, 2013;
    decided June 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    [995 NE2d 168, 972 NYS2d 206]
    Christopher J. Alf, Appellant, v The Buffalo News, Inc., Respondent.
    Decided June 27, 2013

      APPEARANCES OF COUNSEL

      Carter Ledyard & Milbum LLP, New York City (John J. Walsh and Michael K. Plumb of counsel), and Harris Beach PLLC, Buffalo (Richard T. Sullivan of counsel), for appellant.

      Hiscock & Barclay, LLP, Buffalo (Joseph M. Finnerty and Karim A. Abdulla of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

This defamation case arose from a series of articles and editorials published by The Buffalo News (News) in 2007 and 2008 concerning a federal investigation, related lawsuits and a guilty plea in federal court by National Air Cargo (NAC), an air freight forwarder, to settle allegations that it had overcharged the federal government on military freight contracts in the continental United States. The newspaper reported that NAC and its owner and chairman, plaintiff Christopher Alf, had admitted that NAC “cheated” the government over a period of several years in the amount of millions of dollars, that NAC would pay almost $28 million in fines and restitution, and that no executives would face jail time. Plaintiff sued for defamation, arguing that the News’s reporting was false and misleading because it reported prolonged wrongdoing as opposed to a single admitted false statement and because the average reader would think that plaintiff had personally engaged in wrongful conduct. Supreme Court granted summary judgment to the newspaper, holding that the News was entitled to the defense of absolute privilege under Civil Rights Law § 74, which provides that “[a] civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding.” The Appellate Division affirmed, with two Justices dissenting (100 AD3d 1487 [4th Dept 2012]). We now affirm as well.

When examining a claim of libel, we do not view statements in isolation. Instead, “[t]he publication must be considered in its entirety when evaluating the defamatory effect of the words” (Dibble v WROC TV Channel 8, 142 AD2d 966, 967 [1988], citing James v Gannett Co., 40 NY2d 415, 419 [1976], rearg denied 40 NY2d 990 [1976]). As both Supreme Court and the Appellate Division held, viewing the articles as a whole, the average reader would conclude that the company, and not plaintiff, pleaded guilty to wrongdoing and that the amount of restitution covered more than the single, admitted incident. As we have said, “newspaper accounts of legislative or other official proceedings must be accorded some degree of liberality. When determining whether an article constitutes a ‘fair and true’ report, the language used therein should not be dissected and analyzed with a lexicographer’s precision” (Holy Spirit Assn. for Unification of World Christianity v New York Times Co., 49 NY2d 63, 68 [1979]). Here, the News provided substantially accurate reporting of the plea agreement and the fines and restitution, as discussed in open court. Thus, all the challenged statements concerning NAC and plaintiff relating to these proceedings are entitled to immunity under Civil Rights Law § 74.

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

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


text:
    [995 NE2d 164, 972 NYS2d 202]
    The People of the State of New York, Respondent, v Derek Chisholm, Appellant.
    Argued May 30, 2013;
    decided June 27, 2013

      APPEARANCES OF COUNSEL

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

      Richard A. Brown, District Attorney, Kew Gardens (Donna Aldea, Robert J. Masters, John M. Castellano and Josette Simmons McGhee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Defendant was convicted of multiple drug and weapon possession charges after a search of his home revealed marijuana and two firearms. Before trial, defendant moved to suppress the evidence and to controvert the search warrant, which was based on the affidavit of a police officer, her testimony, and the oral deposition of a confidential informant who was brought before the issuing magistrate. Defendant also requested a hearing pursuant to People v Darden (34 NY2d 177 [1974]). Supreme Court denied defendant’s motion based on the warrant papers alone and without reviewing the transcript of the confidential informant’s testimony. The Appellate Division affirmed on appeal from the judgment of conviction and sentence, holding that Supreme Court providently exercised its discretion in denying defendant’s application for a Darden hearing (89 AD3d 859, 860 [2d Dept 2011]).

While the courts below properly determined that defendant was not entitled to a Darden hearing (see People v Serrano, 93 NY2d 73, 77 [1999]), we agree with defendant that Supreme Court erred by failing to examine the transcript of the confidential informant’s testimony before the magistrate to determine whether the search warrant was issued upon probable cause and that the formal requirements of CPL 690.40 (1) had been substantially complied with (see id. at 77-78; People v Taylor, 73 NY2d 683, 688-690 [1989]).

The search warrant and supporting affidavit do not by themselves establish probable cause in this case (see People v Serrano, 93 NY2d at 77-78). A warrant application containing information provided by a confidential informant must demonstrate “the veracity or reliability of the source of the information” (id. at 78, quoting People v Griminger, 71 NY2d 635, 639 [1988]; see Spinelli v United States, 393 US 410 [1969]; Aguilar v Texas, 378 US 108 [1964]). There are no “factual averments” in the police officer’s affidavit that could have afforded the magistrate a basis for determining the reliability of the confidential informant (People v Serrano, 93 NY2d at 78). The affidavit does not state that the informant had a proven “track record” of supplying reliable information in the past (People v Johnson, 66 NY2d 398, 403 [1985] [internal quotation marks omitted]), and it is not evident that the informant was under oath when information was given to the officer (see People v Wheatman, 29 NY2d 337, 345 [1971], cert denied sub nom. Marcus v New York, 409 US 1027 [1972], reh denied 409 US 1119 [1973]).

Nor may the reliability of the confidential informant be inferred solely from the statement, set forth in the affidavit, that the informant bought cocaine from defendant. While admissions against penal interest may be sufficient to support a finding of probable cause (see People v McCann, 85 NY2d 951, 953 [1995]), “Much admissions are not guarantees of truthfulness and they should be accepted only after careful consideration of all the relevant circumstances of the case indicates that there exists a basis for finding reliability” (People v Johnson, 66 NY2d at 403-404).

Here, unlike People v McCann, where the informant was a co-defendant, the confidential informant did not provide a “detailed signed statement” that was made “against [the informant’s] penal interests, and with the express understanding that making a false written statement was a crime” (85 NY2d at 953). Instead, the officer’s affidavit merely avers that the confidential informant told her that cocaine was purchased from defendant at his home on three occasions. While these statements were contrary to the informant’s penal interests, the details provided by the informant, other than the location of defendant’s home, were not corroborated by the police (see People v Comforto, 62 NY2d 725, 727 [1984] [police corroboration of informant’s statement contrary to his penal interests “provided a sufficient basis for the magistrate to conclude that the tip was credible”]).

Because neither the search warrant nor the supporting affidavit establishes that the informant was reliable, they did not by themselves establish probable cause (see People v Serrano, 93 NY2d at 78). Thus, Supreme Court “needed the transcript of the examination of the informant in order properly to determine that there was probable cause to issue the search warrant” (id.).

Moreover, by upholding the validity of the warrant without examining the transcript of the confidential informant’s testimony, Supreme Court failed to determine that the magistrate substantially complied with the requirements of CPL 690.40 (1) (see id.). This statute provides that in determining a search warrant application, “the court may examine, under oath, any person whom it believes may possess pertinent information. Any such examination must be either recorded or summarized on the record by the court.” We have made clear that “[t]he suppression court must find that there was substantial compliance with CPL 690.40 (1) in order to provide an ‘assurance of the regularity of the application process and preservation for appellate review of the grounds upon which a search warrant is issued’ ” (People v Serrano, 93 NY2d at 78 [alterations omitted], quoting People v Taylor, 73 NY2d at 689).

Accordingly, we remit this matter to Supreme Court to review the transcript of the confidential informant’s testimony and determine whether the warrant was supported by probable cause and that CPL 690.40 (1) was substantially complied with. On remittal, if Supreme Court concludes that the warrant was not supported by probable cause or that CPL 690.40 (1) was not substantially complied with, then the judgment of conviction and sentence should be vacated and the motion to suppress granted. If, on the other hand, the court concludes that probable cause and compliance with CPL 690.40 (1) were established, then the judgment should be amended to reflect that result.

Smith, J. (dissenting).

In my view, the affidavit submitted in support of the search warrant was sufficient, without testimony from the confidential informant, to support a finding of probable cause and thus to justify the warrant’s issuance. I would therefore hold it unnecessary for Supreme Court to examine the transcript of the informant’s testimony, and would affirm the Appellate Division’s order.

Under the so-called Aguilar-Spinelli test, an application for a warrant based on information from an undisclosed informant must show both the informant’s veracity or reliability and the basis of his or her knowledge (Aguilar v Texas, 378 US 108, 114 [1964]; Spinelli v United States, 393 US 410, 416 [1969]). This two-pronged test, though abandoned by the federal courts (Illinois v Gates, 462 US 213, 238 [1983]), remains the law of New York (People v Griminger, 71 NY2d 635, 639 [1988]). Here, there is no dispute that the affidavit stated the basis for the informant’s knowledge; the issue is whether it sufficiently showed his veracity or reliability.

We held in People v McCann (85 NY2d 951, 953 [1995]) that the reliability of an informant could be inferred from “a detailed signed statement” made “against his own penal interests, and with the express understanding that making a false written statement was a crime.” The statement here was against the informant’s penal interests, and it was detailed, but it was oral rather than written and did not express the informant’s knowledge that a false statement would be criminal. I do not find these distinctions to be decisive.

Some common sense is in order in deciding when to infer that an informant’s statements have been shown to be reliable. Where the informant claims to be the customer of a drug dealer, and is admitting to purchasing drugs from the dealer, the informant is essentially confessing to a crime. Of course, the confession is self-serving in that the informant, almost invariably, expects leniency in exchange for the information he supplies. But he cannot get the leniency by supplying false information. His best hope is to prove to the police that he can be trusted. I think these circumstances sufficiently supported an inference that the information provided by the informant here was reliable, and I therefore conclude that the warrant was properly issued.

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

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

       Because Supreme Court denied defendant’s motion to suppress the evidence and controvert the warrant without reviewing the transcript of the confidential informant’s testimony, remittal to that court is appropriate in this case. However, we are troubled by the People’s failure to see that the court reporter at the magistrate’s hearing timely produced the transcript as directed by the Appellate Division. We trust that the People will implement procedures to prevent this from reoccurring.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted March 25, 2013;
    decided June 27, 2013
   Motion by plaintiffs for reargument granted and case set down for a future session of this Court [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted March 25, 2013;
    decided June 27, 2013
   Motion by New York Committee for Occupational Safety and Health for leave to appear amicus curiae on the motions for re-argument herein granted and the affirmation is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted March 25, 2013;
    decided June 27, 2013
   Motion by Injured Workers Bar Association for leave to file a brief amicus curiae on the motions for reargument herein granted and the brief is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted March 25, 2013;
    decided June 27, 2013
   Motion by New York State AFL-CIO et al. for leave to file a brief amici curiae on the motions for reargument herein granted and the brief is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by New York State Bar Association for leave to file a brief amicus curiae on the motions for reargument herein granted and the brief is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by Workers Injury Law & Advocacy Group for leave to file a brief amicus curiae on the motions for reargument herein granted and the brief is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by The Center for Popular Democracy for leave to appear amicus curiae on the motions for reargument herein granted and the affirmation and brief are accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the motions for reargument herein granted and the affirmation is accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by Make the Road New York et al. for leave to appear amici curiae on the motions for reargument herein granted and the affirmation and brief are accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by The Black Institute for leave to appear amicus curiae on the motions for reargument herein granted and the affirmation and brief are accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted March 25, 2013;
    decided June 27, 2013
   Motion by defendants for reargument granted and case set down for a future session of this Court [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Maria Auqui, as Guardian of the Property of Jose Verdugo, et al., Respondents, v Seven Thirty One Limited Partnership et al., Appellants.
    Submitted April 1, 2013;
    decided June 27, 2013
   Motion by New York Communities for Change for leave to appear amicus curiae on the motions for reargument herein granted and the affirmation and brief are accepted as filed [see 20 NY3d 1035 (2013)].

Judges Rivera and Abdus-Salaam taking no part.


text:
    Luis Casas, Appellant, v Consolidated Edison Company of New York, Inc., Respondent.
    Submitted May 13, 2013;
    decided June 27, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    Elizabeth Cioffi-Petrakis, Respondent, v Panagiotis Petrakis, Appellant.
    Submitted June 3, 2013;
    decided June 27, 2013
   Motion by the American Academy of Matrimonial Lawyers for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed.


text:
    In the Matter of Ronnie Covington, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Decided June 27, 2013
   Appeal transferred, without, costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of Max Crane, Deceased. Alan M. Crane, Respondent; Judith Hollander, Appellant.
    Submitted May 28, 2013;
    decided June 27, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Deutsche Bank Nation Trust Company, Respondent, v Francisco Feliciano et al., Defendants, and Sheila Ellerbe, Appellant.
    Submitted May 28, 2013;
    decided June 27, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Charles R. Livecchi, Appellant, v John Nacca, Respondent.
    Submitted May 20, 2013;
    decided June 27, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Mitchel D.G., Appellant, v Interfaith Medical Center et al., Respondents.
    Submitted June 3, 2013;
    decided June 27, 2013
   Motion to dismiss appeal granted and appeal dismissed, without costs, on the ground that relator has been released and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see CPLR 7002 [a]; see also People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).


text:
    Judith Lynn Stenroos, Respondent, v William A. Maecker, Appellant.
    Submitted June 3, 2013;
    decided June 27, 2013
   Motion for a stay dismissed as academic.


text:
    In the Matter of Maureen S. Hoerger et al., Appellants, v Thomas J. Spota III et al., Respondents.
    Submitted August 21, 2013;
    decided August 21, 2013
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    [995 NE2d 170, 972 NYS2d 208]
    In the Matter of Robert E. Alexander.
    Decided August 22, 2013
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Robert E. Alexander is suspended, with pay, effective immediately, from the office of Justice of the Pembroke Town Court, Genesee County, pursuant to NY Constitution, article VI, § 22 and Judiciary Law § 44 (8).

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


text:
    [995 NE2d 170, 972 NYS2d 208]
    In the Matter of Dagan Lacorte, Appellant, v Howard L. Cytryn et al., Respondents, et al., Respondent. (And Another Proceeding.)
    Argued August 21, 2013;
    decided August 22, 2013

      APPEARANCES OF COUNSEL

      Stroock, Stroock & Lavan, LLP, New York City (Jerry H. Goldfeder of counsel), for appellant.

      Alan Goldston, Scarsdale, for Howard L. Cytryn and others, respondents.

      Jeffrey J. Fortunato, County Attorney, New City (Thomas M. Mascola of counsel), for Rockland County Board of Elections, respondent.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly determined that the validating petition did not sufficiently specify which determinations of the Board petitioner claimed were erroneous (see Matter of Krueger v Richards, 59 NY2d 680, 682 [1983]).

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

Order affirmed, without costs, in a memorandum.


text:
    In the Matter of Council of the City of New York, Respondent, v Department of Homeless Services of the City of New York et al., Appellants.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion by Coalition for the Homeless et al. for leave to appear amici curiae on the appeal herein denied.

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


text:
    Ann C. Cunningham, Respondent, v Julia M. Baldari, Appellant, et al., Defendants. (And a Third-Party Action.) (And Another Action.)
    Submitted May 28, 2013;
    decided August 22, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 862 (2013)].

Judge Abdus-Salaam taking no part.


text:
    Meadowbrook Farms Homeowners Association, Inc., Respondent, v JZG Resources, Inc., Appellant.
    Submitted May 28, 2013;
    decided August 22, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Andrew Blake, Appellant.
    Submitted July 29, 2013;
    decided August 22, 2013
   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 Sandra Diaz, Appellant.
    Submitted August 19, 2013;
    decided August 22, 2013
   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 Joseph Dumay, Appellant.
    Submitted August 19, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Wilson Feliciano, Appellant.
    Submitted July 1, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis Guaman, Appellant.
    Submitted July 1, 2013;
    decided August 22, 2013
   Motion by Evan Kent for leave to appear amicus curiae on the appeal herein denied.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Pamela Hanson, Appellant.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Jackson, Appellant.
    Submitted July 1, 2013;
    decided August 22, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Teofilo Lopez, Also Known as Garcia Lopez, Also Known as Isidoro Garcia, Appellant.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Effrin McNeill, Appellant.
    Submitted August 5, 2013;
    decided August 22, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Graham Reid, Appellant.
    Submitted July 8, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Steven Banks, Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Abdus-Salaam taking no part.


text:
    The People of the State of New York, Respondent, v Wilfredo Reina, Appellant.
    Submitted July 15, 2013;
    decided August 22, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    The People of the State of New York, Respondent, v Amanda Richardson, Appellant.
    Submitted July 8, 2013;
    decided August 22, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Anner Rivera, Respondent.
    Submitted July 29, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Robbs, Appellant.
    Submitted July 8, 2013;
    decided August 22, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Quentin A. Sims, Appellant.
    Submitted July 29, 2013;
    decided August 22, 2013
   Motion for assignment of counsel granted and David C. Schopp, Esq., The Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.