author: Rivera, J.

text:
    [32 NE3d 393, 10 NYS3d 178]
    The People of the State of New York, Respondent, v Anthony N. Pacherille, Appellant.
    Argued March 23, 2015;
    decided May 12, 2015

      APPEARANCES OF COUNSEL

      Frank Policelli, Utica, for appellant.

      John M. Muehl, District Attorney, Cooperstown, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In satisfaction of a four-count indictment, defendant pleaded guilty to attempted murder in the second degree. Under the plea agreement, he was promised a sentence of 11 years in prison, followed by five years of postrelease supervision. He waived his right to appeal.

At sentencing, County Court was presented with letters from the community, defendant’s sentencing memoranda and psychiatric reports, a letter from the victim and the presentence report concerning defendant’s prospects for rehabilitation. Upon consideration of all the information before it, County Court denied defendant’s request to be adjudicated a youthful offender. While acknowledging defendant’s mental illness, County Court determined that the illness did not outweigh the “seriousness of the crime he committed [nor] its impact on the victim and the community.” As a result, the court concluded that the interests of justice would not be served by granting defendant youthful offender status {see CPL 720.20 [1] [a]). Defendant was then sentenced in accordance with the plea agreement. The Appellate Division affirmed (106 AD3d 1136 [2013]).

As we have repeatedly observed, a plea of guilty generally “marks the end of a criminal case, not a gateway to further litigation” (People v Taylor, 65 NY2d 1, 5 [1985]). The plea bargaining process includes “the surrender of many guaranteed rights” (People v Seaberg, 74 NY2d 1, 7 [1989]), such as the right to a trial by jury and to confrontation (see People v Hansen, 95 NY2d 227, 230 [2000]).

A defendant may also waive the right to appeal as a condition of a plea bargain (see Seaberg, 74 NY2d at 5). “[Generally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process’ ” (People v Lopez, 6 NY3d 248, 255 [2006], quoting Hansen, 95 NY2d at 230). This Court has recognized that the right to a speedy trial, challenges to the legality of a court-imposed sentence, questions about a defendant’s competency to stand trial, and whether the waiver was obtained in a constitutionally acceptable manner cannot be foreclosed from appellate review (see People v Callahan, 80 NY2d 273, 280 [1992]).

In People v Rudolph (21 NY3d 497, 499 [2013]), we held that under CPL 720.20 (1) “where a defendant is eligible to be treated as a youthful offender, the sentencing court ‘must’ determine whether he or she is to be so treated.” We further held that “compliance with this statutory command cannot be dispensed with, even where [a] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request” (id.). Thus, we created a narrow exception that when a sentencing court has entirely abrogated its responsibility to determine whether an eligible youth (see CPL 720.10 [1], [2]) is entitled to youthful offender status, an appeal waiver would not foreclose review of the court’s failure to make that determination. Here, the sentencing court did, indeed, consider defendant’s youthful offender status upon his request.

It is well settled that once considered, a youthful offender adjudication is a matter left to the sound discretion of the sentencing court and therefore any review is limited (see CPL 720.20 [1] [a]). As we held in Lopez,

“when a defendant enters into a guilty plea that includes a valid waiver of the right to appeal, that waiver includes any challenge to the severity of the sentence. By pleading guilty and waiving the right to appeal, a defendant has forgone review of the terms of the plea, including harshness or excessiveness of the sentence” (People v Lopez, 6 NY3d 248, 256 [2006]).

To the extent defendant appeals the harshness of his sentence or the sentencing court’s exercise of discretion in denying youthful offender status, his appeal waiver forecloses the claim.

We therefore conclude that a valid waiver of the right to appeal, while not enforceable in the face of a failure to consider youthful offender treatment, forecloses appellate review of a sentencing court’s discretionary decision to deny youthful offender status once a court has considered such treatment. Accordingly, our review of County Court’s denial of defendant’s request is precluded by his appeal waiver, the validity of which he does not contest (see People v Brabham, 83 AD3d 1225, 1225 [3d Dept 2011]).

Rivera, J.

(dissenting). In People v Rudolph, we held that CPL 720.20 (1) mandates “a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forgo it as part of a plea bargain” (21 NY3d 497, 501 [2013]). We thus foreclosed any role for a negotiated plea constraining youthful offender (YO) determination because the legislative mandate that “a court decide whether [YO] treatment is justified” provides an opportunity for juveniles to “have a real likelihood of turning their lives around,” and therefore “is just too valuable, both to the offender and to the community, to be sacrificed in plea bargaining” (id.).

The majority acknowledges that Rudolph prohibits the defendant’s waiver of YO consideration, but holds that a defendant may expressly waive the right to appellate review of the sentencing court’s denial of YO status (majority mem at 1023). I disagree with this interpretation of the statute and Rudolph. Allowing for such a waiver merely serves to reestablish YO consideration as a legally valid “chip” to be leveraged in the plea bargaining process. The majority’s decision thus undermines the legislative intent of CPL 720.20 (1), ignores the considerations we highlighted in Rudolph regarding the life-changing impact of YO treatment for juvenile offenders, and flies in the face of hard data on the ability of juveniles to fully understand their legal rights and the consequences of their choices. I therefore dissent.

Defendant, who is White and at the time of the crime was a high school student, was charged with various hate crimes for the attempted murder of an African-American fellow student. Just prior to the attack, defendant composed a suicide note that included a diatribe against African-Americans, Jews, and people of other racial and ethnic groups. Under the plea arrangement, the People and defendant agreed that he would plead to attempted murder in the second degree, as a non-hate crime, in full satisfaction of the indictment, and in exchange for an 11-year sentence recommendation.

In extending the plea offer, the People demanded that defendant admit that he chose the victim due to his race, that defendant wrote the suicide note and that he agree to its introduction into evidence as part of the record, and that he not allege that he was the victim of bullying or make any other excuses for his actions. The People also required that defendant waive his right to appeal. During the plea allocution defendant pleaded guilty to attempted murder in the second degree, and admitted that he had shot the victim “because he was African American.” As agreed, defendant made no mention of bullying by the victim.

Prior to sentencing, defendant submitted a lengthy memorandum requesting that the court grant YO treatment, arguing that his crime was the result of mental illness, a mitigating factor. Then at the sentencing hearing, defense counsel argued that defendant should be adjudicated a youthful offender, pointing to defendant’s mental illness and asserting that the victim had bullied defendant in the past. The presentence report prepared by the Otsego County Probation Department recommended that defendant not be adjudicated a youthful offender, and the prosecutor also objected to a YO finding.

County Court denied YO treatment and, pursuant to the plea agreement, imposed a determinate sentence of 11 years, with five years’ postrelease supervision. At the sentencing hearing, the court stated it considered the seriousness of the crime and its racist and bigoted nature. The court further discussed defendant’s mental illness, and concluded, “[although his psychological needs are a mitigating factor to be considered in determining the length of his sentence, the Court feels obligated to note that his mental illness does not justify his conduct.” The court then stated:

“Today [defendant] asks the Court to vacate, that is essentially erase his conviction, and sentence him to little or no additional jail time as a youthful offender.
“The Court has considered this request and denies it. Due to the violent nature of his crime and its resulting harm and his admission during the plea allocution [that] his actions were racially motivated, the Court cannot say the interests of justice would be served by granting youthful offender status or by not imposing the agreed upon sentence.”

The Appellate Division affirmed defendant’s conviction (People v Pacherille, 106 AD3d 1136, 1137 [3d Dept 2013]). As relevant to the matter before us, the Court concluded that defendant’s waiver of his right to appeal foreclosed his abuse of discretion challenge to County Court’s denial of his request for YO treatment. After the Appellate Division rendered its decision, and while defendant’s application for leave to appeal was pending before this Court, we issued our decision in People v Rudolph.

Pursuant to CPL 720.20 (1), “[u]pon conviction of an eligible youth, ... at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender.” We held in Rudolph that this legislative mandate grants every eligible juvenile offender a right to a YO determination (21 NY3d at 501). We also held that this right is “different,” and stands in a unique position to other rights afforded to defendants because it carries the potential for “a fresh start, without a criminal record” (id.). We therefore concluded that unlike other rights, “even very important ones” that a defendant may readily give up, the right to YO consideration cannot be waived, either implicitly, by defendant’s mere silence in failing to request YO consideration, or expressly, as part of a plea bargain (id.). In so holding, we gave force to the mandatory language of CPL 720.20 (1), and overruled People v McGowen (42 NY2d 905 [1977]), which had required an eligible youth to assert the right to a youthful offender adjudication or risk waiving it.

Our decision in Rudolph was based on the explicit statutory language of CPL 720.20 (1), and grounded in what we recognized as the singular importance of the opportunities attendant to a YO designation: the conviction being “vacated and replaced by a youthful offender finding”; a limit on the maximum sentence in a felony case; the sealing of records; and the avoidance of certain disabilities, “including disqualification from public office and public employment” (id. at 500-501). There can be no serious disagreement about the impact of a YO determination on a juvenile. It is nothing short of the opportunity for a young offender to become “a law-abiding, productive member of society” (id. at 501; see also id. at 505 [Graffeo, J., concurring] [“article 720 permits the sentencing court to vacate a criminal conviction that has been lawfully obtained — an extraordinary benefit unlike any other right granted in the Criminal Procedure Law. In adopting such a procedure, the legislature meant to ameliorate the sometimes harsh effect of trying eligible youth in adult courts”]).

Given our interpretation in Rudolph of the mandatory language of CPL 720.20 (1) that YO determinations are nonwaivable, as well as our recognition of the unparalleled role that a YO determination serves in our criminal justice system, I would find the Appellate Division erroneously concluded that defendant waived appellate review of the County Court’s denial of YO status. To prohibit a plea bargain that forecloses statutorily-mandated YO consideration by the sentencing court, but permits a plea bargain that forecloses review as to whether the court, abused its discretion in denying YO treatment, undermines the legislative goals of section 720.20 (1). Counter to the purpose of that section, it would mean little to an eligible youth to be considered for YO treatment only to be left with no recourse to challenge a court’s wrongful denial. Moreover, to permit a waiver of appellate review would allow a prosecutor to do indirectly what we said in Rudolph the statute explicitly forbids, namely, to bargain with a defendant for the right to judicial consideration of YO status and the opportunity for a new beginning (Rudolph, 21 NY3d at 501). Our decision in Rudolph could not be more direct in its conclusion that YO determinations are exempt from waivers negotiated as part of a plea. The defendant’s nonwaivable right extends to appellate review of a denial of YO status. To hold otherwise, as the majority does, risks derogation of a defendant’s right to the opportunity for the precious “fresh start,” which is the essence of the YO process.

Apart from the legislative goals and purposes that we identified in Rudolph as the basis for prohibiting waiver of YO consideration, further support for a decision that defendant cannot waive appellate review is found in society’s and the United States Supreme Court’s recognition of the limited capacity of juveniles to make decisions with the type of loaded future consequences that characterize an appeal of a negative YO determination. “It is generally accepted and well established that young people and adults mature at different rates and that children simply do not have the capacity to fully appreciate the world and the consequences of their actions and choices” (People v Perez, 23 NY3d 89, 109 [2014, Rivera, J., dissenting]). As the United States Supreme Court has stated, “children generally are less mature and responsible than adults [;] . . . often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them[;] [and] . . . are more vulnerable or susceptible to . . . outside pressures than adults” (J. D. B. v North Carolina, 564 US —, —, 131 S Ct 2394, 2403 [2011] [citations and internal quotation marks omitted]). Indeed,

“Studies have established that juveniles are unable to fully understand and appreciate their legal rights (see e.g. Graham v Florida, 560 US 48, 68 [2010] [‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’]). The neuroscience research data confirms juveniles do not possess the maturity necessary to make decisions that, in the case of criminal convictions, carry lifelong consequences (see e.g. Nitin Gogtay et al., Dynamic Mapping of Human Cortical Development During Childhood Through Early Adulthood, Proc Natl Acad Sci, vol 101, No. 21 at 8177 [May 25, 2004] ;[] Linda Spear, The Behavioral Neuroscience of Adolescence, 108-111 [2009]). The inescapable conclusion is that the inherent differences between young people and adults impact on a defendant minor’s ability to appreciate and respond to the requirements of the appellate review process (see e.g. Laurence Steinberg et al., Age Differences in Future Orientation and Delay Discounting, Child Dev, vol 80, No. 1 at 30, 35-36 [Jan./Feb. 2009])” (Perez, 23 NY3d 89, 109-110 [Rivera, J., dissenting]).

The majority’s decision is at odds with the United States Supreme Court and society’s understanding based on this research, which makes plain that juveniles are not adults and should not be treated as such. We cannot ignore that “developments in the body of knowledge concerning juvenile development underscore the need for judicial procedures that are solicitous of the interests of vulnerable youth, especially under New York’s current youthful offender process in which guilt is determined in the context of a criminal justice system designed for adults” (see Rudolph, 21 NY3d at 506).

Nonetheless, the majority stands mute in the face of this reality. Instead, the majority relies on People v Lopez (6 NY3d 248 [2006]) in support of its conclusion that defendant may waive appellate review of an unfavorable YO determination. However, we have never applied Lopez in the context of a YO finding, and we should not do so in this case.

In Lopez, this Court reiterated that “generally, an appeal waiver will encompass any issue that does not involve a right of constitutional dimension going to ‘the very heart of the process’ ” (id. at 255, quoting People v Hansen, 95 NY2d 227, 230 [2000]). Such waivers, the Court noted, facilitate “prompt, effective resolution of criminal litigation” (id.) and, “in connection with a negotiated plea and sentence,” reflect the defendant’s agreement “to end the proceedings entirely at the time of sentencing and to accept as reasonable the sentence imposed” (id.). The Court therefore held that “[a] defendant may not subsequently eviscerate [a plea] bargain by asking an appellate court to reduce the sentence in the interest of justice” (id. at 255-256). The Court highlighted the “important goals of fairness and finality in criminal matters are accomplished only insofar as the parties are confident that the ‘carefully orchestrated bargain’ of an agreed-upon sentence will not be disturbed as a discretionary matter” (id. at 256).

The Lopez Court’s concern with the integrity of the plea bargain process is simply not present in the YO context because a defendant cannot barter the right to YO consideration. As CPL 720.20 (1) provides, every convicted eligible youth must be considered for youthful offender status. In Rudolph, we made clear that a guilty plea could not eliminate, by its terms, this statutorily-mandated YO determination by the sentencing court. Thus, there is no carefully orchestrated plea bargain “eviscerated” by appellate consideration because there is no bargain related to a YO finding. Moreover, while a prosecutor may back away from a plea agreement in those cases where the court grants YO status, a prosecutor cannot avoid a court’s determination that an eligible youth should benefit from YO treatment (Rudolph, 21 NY3d at 502).

As a practical and policy matter, the administrative efficiency concerns and the desire for finality referenced by Lopez are no more compelling than the assurance that a trial court has properly considered a youthful offender’s opportunity for YO status. Appellate review is essential to the statutory mandate that a court must consider YO for every eligible youth so that every eligible youth has a chance at avoiding a criminal record and the disastrous consequences that flow therefrom.

Apart from whether defendant could have waived or, in fact, did waive his appellate rights of review, defendant argues his plea agreement prevented him from presenting evidence of mitigating circumstances in support of his request for YO treatment. Although the majority does not address this contention, other than to conclude that County Court actually considered defendant’s request for YO treatment (majority mem at 1023), defendant’s argument finds some support in the record.

It is undisputed that defendant’s plea required that he admit a racial motivation for the crime, and it is this admission of a race-based motive that the court considered in denying YO status. However, if the plea prevented defendant from presenting a basis for a favorable YO determination, the plea would run counter to our holding in Rudolph. Thus, regardless of whether defendant could waive appellate review of the sentencing court’s discretionary consideration of YO treatment, the Appellate Division should have considered whether the plea, as structured, foreclosed defendant’s arguments that his actions were not racially motivated, or otherwise limited his ability to adequately present mitigating factors impacting defendant’s behavior.

The Appellate Division here denied defendant the opportunity to argue that the plea violated the right to YO consideration afforded him under CPL 720.20 (1), as recognized in our holding in Rudolph. The majority concludes that juveniles may waive this right, even when the challenge is that the plea forecloses arguments favorable to the defendant’s request. For the reasons I have stated, I find that decision unsupported by law, reason, society’s understanding of the difference between young people and adults, and the ever-increasing appreciation of our criminal justice system’s impact on young lives. I dissent.

Judges Read, Pigott, Abdus-Salaam and Fahey concur; Judge Rivera dissents in an opinion in which Chief Judge Lippman concurs; Judge Stein taking no part.

Order affirmed, in a memorandum.

      . Available at http.7/www.ncbi.nlm.nih.gov/pmc/articles/PMC419576/pdf/ 1018174.pdf (last accessed Apr. 20, 2014).

      . In briefing to this Court, neither the People nor defendant addressed the waiver of appellate review of youthful offender consideration. Indeed, the prosecutor’s statements during oral argument suggest that he interpreted Rudolph to prohibit such waiver.


source: Caselaw Access Project

license: Public Domain

text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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text:
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   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:
    [32 NE3d 927, 10 NYS3d 492]
    In the Matter of Daniel Kasckarow, Appellant, v Board of Examiners of Sex Offenders of State of New York, Respondent.
    Argued March 23, 2015;
    decided May 7, 2015

      APPEARANCES OF COUNSEL

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

      Eric T. Schneiderman, Attorney General, New York City {Claude S. Platton, Barbara D. Underwood and Cecelia C. Chang of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In 1998, petitioner Daniel Kasckarow was charged in Florida with the felony offense of indecent assault for committing an act of sexual battery on a child under the age of 16 {see Fla Stat §§ 794.011 [1] [h]; former 800.04 [3]). Petitioner, who contends he was 18 years old at the time of the offense and engaged in consensual sex with a 15-year-old high school classmate, entered a plea of nolo contendere to the charge. The Florida court withheld adjudication, entering an order of supervision and placing petitioner on “sex offender probation” for four years. In 2001, he was granted early termination, but was still required to register under Florida’s sex offender registration laws for the rest of his life (see Fla Stat § 943.0435 [1] [a] [1] [a] [I]; [11]).

Petitioner subsequently notified New York authorities of his status as a sex offender in Florida, and of his intent to move to New York (Correction Law § 168-k [1]). The Board of Examiners of Sex Offenders determined that petitioner was required to register in New York under the Sex Offender Registration Act (SORA) because he had been convicted of a sex offense within the meaning of Correction Law § 168-a. As relevant here, SORA defines a “sex offender” as “any person who is convicted” of a “sex offense” (Correction Law § 168-a [1], [2]), and a “sex offense” includes “a conviction of . . .a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (id. § 168-a [2] [d] [ii]).

Petitioner brought this CPLR article 78 proceeding to challenge the Board’s determination. He argued that the disposition of his Florida felony did not constitute a “conviction” within the meaning of SORA for two reasons: he pleaded nolo contendere and the Florida court withheld adjudication. Supreme Court dismissed the petition, holding that “a nolo contendere plea is generally deemed a conviction” and “nothing unique about SORA . . . suggests that a nolo contendere plea should be treated differently for purposes of SORA registration” (33 Misc 3d 1028, 1032-1033 [Sup Ct, Kings County 2011]). Further, although SORA does not define “conviction,” CPL 1.20 (13) states that “conviction includes the entry of a plea of guilty to an accusatory instrument (or counts thereof)” (id. at 1031 [internal quotation marks omitted]). Because petitioner’s guilty plea was a conviction, “the fact that adjudication was withheld ha[d] no bearing on whether the Florida crime constitute [d] a conviction for purposes of SORA” (id. at 1033). The Appellate Division affirmed (106 AD3d 915 [2d Dept 2013]), and we granted petitioner leave to appeal (22 NY3d 851 [2013]). We now affirm.

Petitioner again contends that because nolo contendere pleas are not recognized in New York, they cannot serve as the basis for a conviction within the meaning of SORA. We held in People v Daiboch (265 NY 125 [1934]), however, that the entry of a nolo contendere plea in another jurisdiction, followed by a judgment placing the defendant on probation for two years, was a prior conviction for purposes of sentencing the defendant as a second offender. Although Daiboch did not involve SORA, we confronted the same issue presented by this case: whether a defendant’s out-of-state nolo contendere plea for which a nonincarceratory sentence was imposed qualifies as a conviction in New York. Nolo contendere pleas, like Alford pleas, are “no different from other guilty pleas” (Matter of Silmon v Travis, 95 NY2d 470, 475 [2000] [recognizing that an Alford plea may generally be used for the same purposes as any other conviction]). And because New York defines a conviction to include the entry of a guilty plea, regardless of the subsequent sentence or judgment, the ultimate disposition of petitioner’s Florida conviction is irrelevant. New York distinguishes between a conviction and a “judgment of conviction,” the latter of which includes “a conviction and the sentence imposed thereon” (CPL 1.20 [15]). As we have previously observed, the legislature intended the Criminal Procedure Law to provide the “definitive meaning” of the term “conviction” for other criminal statutes, and it meant what it said when it defined “conviction” separately from a judgment or sentence (People v Montilla, 10 NY3d 663, 668 [2008]).

We have reviewed petitioner’s remaining arguments and consider them to be without merit.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, without costs, in a memorandum.

       The record does not reveal the exact age of the victim or the circumstances of the sexual encounter in Florida.


author: Read, J.

text:
    [32 NE3d 921, 10 NYS3d 486]
    ACA Financial Guaranty Corp., Appellant, v Goldman, Sachs & Co., Respondent, et al., Defendants.
    Argued March 26, 2015;
    decided May 7, 2015
    APPEARANCES OF COUNSEL

      Kasowitz, Benson, Torres & Friedman LLP, New York City (Marc E. Kasowitz, Daniel R. Benson, Andrew K. Glenn, Trevor J. Welch and Kara F. Headley of counsel), for appellant.

      Sullivan & Cromwell LLP, New York City (.Richard H. Flapper, Theodore Edelman, William B. Monahan and Jessica P. Stokes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that Court and the certified question answered in the negative.

Plaintiff ACA Financial Guaranty Corp. commenced this action against defendant Goldman, Sachs & Co., alleging that defendant fraudulently induced plaintiff to provide financial guaranty for a synthetic collateralized debt obligation, known as ABACUS. In its complaint, plaintiff alleges that defendant fraudulently concealed the fact that its hedge fund client Paulson & Co., which selected most of the portfolio investment securities in ABACUS, planned to take a “short” position in ABACUS, thereby intentionally exposing plaintiff to substantial liability; had plaintiff known this information, it would not have agreed to the guaranty.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), contending, among other things, that plaintiff failed to sufficiently plead the “justifiable reliance” element of its fraud in the inducement and fraudulent concealment claims. Supreme Court denied the motion, but the Appellate Division reversed the order, granted defendant’s motion and dismissed the amended complaint. We now reverse.

To plead a claim for fraud in the inducement or fraudulent concealment, plaintiff must allege facts to support the claim that it justifiably relied on the alleged misrepresentations. It is well established that

“if the facts represented are not matters peculiarly within the [defendant’s] knowledge, and the [plaintiff] has the means available to [it] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, [the plaintiff] must make use of those means, or [it] will not be heard to complain that [it] was induced to enter into the transaction by misrepresentations” (Schumaker v Mather, 133 NY 590, 596 [1892]; see DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 154 [2010]).

Moreover, “when the party to whom a misrepresentation is made has hints of its falsity, a heightened degree of diligence is required of it. It cannot reasonably rely on such representations without making additional inquiry to determine their accuracy” (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 279 [2011], quoting Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 100 [1st Dept 2006], lv denied 8 NY3d 804 [2007]). Nevertheless, the question of what constitutes reasonable reliance is not generally a question to be resolved as a matter of law on a motion to dismiss (DDJ Mgt., LLC, 15 NY3d at 156).

In its complaint, plaintiff alleges that it sought assurances from defendant about Paulson’s role in ABACUS. Specifically, plaintiff alleges that it emailed defendant asking how Paulson intended to “participate” in the transaction. Plaintiff further alleges that defendant affirmatively misrepresented to plaintiff that Paulson would be the equity investor in ABACUS. Thus, at this pleading stage, plaintiff has sufficiently alleged justifiable reliance.

Contrary to defendant’s claim, our holding in Centro Empresarial Cempresa S.A. (17 NY3d 269) does not impose a duty on plaintiffs to insist on a “prophylactic provision” in agreements. Centro involved a release that accompanied a multimillion-dollar purchase agreement (see id. at 274). The plaintiffs in Centro “knew that defendants had not supplied them with the financial information to which they were entitled, triggering ‘a heightened degree of diligence’ ” (Pappas v Tzolis, 20 NY3d 228, 232-233 [2012], quoting Centro Empresarial Cempresa S.A., 17 NY3d at 279). Despite this knowledge, the plaintiffs in Centro neither insisted on a prophylactic provision nor exercised due diligence by seeking the information to which they were entitled. Unlike in Centro, plaintiff here claims that defendant knew that Paulson was taking a position contrary to plaintiff’s interest, but withheld that information, despite plaintiff’s inquiries. Further, unlike the release in Centro, there was no written agreement between plaintiff and defendant in which a “prophylactic provision” could have been inserted.

Accepting the allegations of the complaint as true and providing plaintiff the benefit of every possible favorable inference as we must do on a motion to dismiss (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]), plaintiff has sufficiently pleaded justifiable reliance for the causes of action for fraud in the inducement and fraudulent concealment. Additionally, defendant failed to submit documentary evidence that conclusively established the lack of justifiable reliance (see CPLR 3211 [a] [1]).

Read, J.

(dissenting). In early 2007, Goldman, Sachs & Co. structured and marketed a synthetic collateralized debt obligation (CDO) called ABACUS 2007-AC1. This product was tied to the performance of a reference portfolio of subprime residential mortgage-backed securities, which are pools of home loans that have been securitized. Synthetic CDOs are typically divided into tranches based on the level of credit risk. Notes in the most senior tranche have the lowest risk of nonpayment due to defaults in the underlying collateral (here, the mortgages) and therefore bear the lowest interest rate. Conversely, notes in the most junior or “first loss” tranche of the synthetic CDO’s capital structure are the first to experience losses from defaults, and therefore have the highest potential rate of return.

Goldman put ABACUS together at the behest of its hedge fund client, Paulson & Co. ACA Management, a wholly owned subsidiary of ACA Financial Guaranty Corp., a bond insurer (collectively, ACA), participated in ABACUS as the third-party portfolio selection agent responsible for choosing the portfolio of reference obligations. Working with Paulson, ACA selected a portfolio of 90 subprime residential mortgage-backed securities that met the transaction’s eligibility criteria; i.e., they were issued in 2006 and early 2007 and rated Baa2 by Moody’s Investors Service. Paulson allegedly originally proposed 49 of the 90 securities ultimately selected by ACA for ABACUS. ACA unconditionally guaranteed payment for up to $909 million, which referenced the most senior tranche of ABACUS notes.

After the housing market collapsed and ABACUS failed, ACA sued Goldman for common-law fraudulent inducement and fraudulent concealment. ACA alleges that Goldman misrepresented that Paulson had “pre-committed to take a long position in ABACUS” even though Goldman knew all along that Paulson was, in fact, “the sole short investor.” ACA claims it never would have insured ABACUS notes if it had known that Paulson had an economic incentive to select reference obligations that would fail.

The outcome of this appeal turns entirely on whether ACA has adequately pleaded the element of “justifiable reliance” necessary to sustain its fraud claims against Goldman. The majority concludes that ACA has done so, pointing to allegations that ACA “emailed [Goldman] asking how Paulson intended to ‘participate’ in the transaction,” and that Goldman “affirmatively misrepresented to [ACA] that Paulson would be the equity investor in ABACUS” (majority mem at 1045). But it is not enough for a sophisticated party like ACA to plead that it relied on Goldman’s alleged misrepresentations; to state a cause of action for fraud, that reliance must have been justifiable, meaning that ACA must allege the “reasonable steps” that it took “to protect itself against deception” (DDJ Mgt., LLC v Rhone Group L.L.C., 15 NY3d 147, 154 [2010]). Here, ACA manifestly took no steps to safeguard its interests. And there was an obvious and easy step that ACA might have taken; ACA might have simply asked Paulson directly what its investment position was in ABACUS.

We first articulated our rule over a century ago:

“[I]f the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations” (Schumaker v Mather, 133 NY 590, 596 [1892] [emphasis added]).

This rule has been “frequently applied in recent years where the plaintiff is a sophisticated business person or entity that claims to have been taken in” (DDJ Mgt., 15 NY3d at 154). Thus, where a plaintiff alleges that it has taken an arguably adequate reasonable step to protect itself against the fraud complained of, we have held that it was for the trier of fact to determine if the plaintiff’s reliance was justifiable. Conversely, where a plaintiff has neglected to allege a reasonable protective step, we have held that the complaint failed, as a matter of law, to plead justifiable reliance.

DDJ Mgt. is an example of the first kind of case. There, the plaintiffs were four companies that loaned $40 million to American Remanufacturers Holdings, Inc. (ARI or the company), a remanufacturer of automobile parts. When ARI failed to repay the loans, the plaintiffs sued the company’s stock owners, their corporate affiliates and individuals acting on their behalf (collectively, the stock owners), accusing them of “defrauding] [the] plaintiffs into making the loans” (id. at 151). In particular, the plaintiffs alleged that the stock owners presented them with false and misleading financial statements that were designed to inflate ARI’s earnings.

We assumed for purposes of the appeal that the complaint “adequately allege [d] that [the stock owners] made material misrepresentations,” which meant that “[t]he [only] question . . . [was] whether, if the complaint’s allegations are true, a jury could find that [the] plaintiffs justifiably relied on those misrepresentations” {id. at 152). The stock owners argued there could be no justifiable reliance because the plaintiffs did not make a reasonable inquiry into the truth of their representations.

The financial documents that the company provided the plaintiffs “contained some features that might have aroused concern in a skeptical reader who examined them carefully,” and the plaintiffs did not ask questions about these aspects of the financial statements or look at ARI’s records {id.). Yet, the plaintiffs “insist[ed] that ARI represent and warrant, in substance, that the financial statements were accurate” as a condition of closing {id. at 153).

We concluded that, on these facts, “[the] plaintiffs made a significant effort to protect themselves against the possibility of false financial statements: they obtained representations and warranties to the effect that nothing in the financials was materially misleading” {id. at 156); and that “where a plaintiff has gone to the trouble to insist on a written representation that certain facts are true, it will often be justified in accepting that representation rather than making its own inquiry” {id. at 154). Accordingly, we held that the plaintiffs had adequately alleged justifiable reliance, and “whether they were justified in relying on the warranties they received is a question to be resolved by the trier of fact” {id. at 156).

Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V. (17 NY3d 269 [2011]) is an example of the second kind of case — where the complaint fails as a matter of law because a plaintiff has neglected to allege that it took reasonable steps to protect itself against fraud. There, the plaintiffs, purportedly relying on false financial information supplied by the defendants, agreed to sell business units to the defendants at a set “floor price.” Although they were entitled to the financial information necessary to value these business units properly, the plaintiffs neither demanded access to it nor sought assurances as to its accuracy in the form of representations and warranties, which we had recently explicitly held in DDJ Mgt. might substitute for investigating the facts represented. The plaintiffs’ failure to take these obvious “reasonable steps to protect [themselves] against deception” (DDJ Mgt., 15 NY3d at 154) proved fatal to their fraud claim.

The majority treats representations and warranties as unworthy of serious consideration here because, “there was no written agreement between [ACA] and [Goldman] in which a ‘prophylactic provision’ could have been inserted” (majority mem at 1045). But if assurance that Paulson was taking a net long position in ABACUS was as critical to ACA’s commercial decision-making as it now claims, ACA surely could have and would have conditioned its financial guaranty on Goldman (or Paulson, for that matter) entering into an agreement containing written representations and covenants. And in any event, Goldman points out, the guaranty was effectuated and governed by eight separate agreements involving ACA, Goldman and the bank that intermediated the transaction, and “ACA’s contracts with [the bank], and [the bank’s] corresponding contracts with Goldman . . . , could all have included prophylactic provisions concerning Paulson’s investment position, if that were important to ACA at the time.”

The federal courts, applying our New York rule, have likewise determined justifiable reliance to be lacking in situations where a plaintiff does not bother to consult a source of information that might have revealed the alleged fraud. Lazard Freres & Co. v Protective Life Ins. Co. (108 F3d 1531 [2d Cir 1997]) involved an attempted sale of millions of dollars in bank debt between two large and sophisticated companies. The seller allegedly made false statements with respect to the content of a certain report on the debtor’s financial condition, and because the deal was time-sensitive, the buyer made an oral commitment to purchase before reviewing the report. One of the questions on appeal was whether the buyer reasonably relied on the seller’s representations of the contents of the report. The Second Circuit opined that the buyer should have, and easily could have, protected itself from misrepresentation by demanding to see the report as a condition of closing (id. at 1543).

In discussing the law, the court observed that “ [i] t is well established that ‘[w]here sophisticated businessmen engaged in major transactions enjoy access to critical information but fail to take advantage of that access, New York courts are particularly disinclined to entertain claims of justifiable reliance’ ” (id. at 1541, quoting Grumman Allied Indus., Inc. v Rohr Indus., Inc., 748 F2d 729, 737 [2d Cir 1984]). The Second Circuit went on to note that this was especially true in “situations in which the relevant facts were easily accessible to the relying party,” citing instances where the plaintiffs could have “made simple inquiries” or “examine [d] the corporate records before assuming the obligations” (id. at 1542 [internal quotation marks omitted]).

In Grumman, the plaintiff alleged misrepresentations and failure to disclose material facts relating to the testing of buses. Although the plaintiff “enjoyed unfettered access to [the defendant]^ plants, personnel and documents; and . . . possessed the legal, technical and business expertise necessary to make effective use of that access,” it “neither inquired into the results of [the defendant’s] testing, nor asked to scrutinize testing reports” (748 F2d at 737-738). The Second Circuit therefore rejected the plaintiff’s fraud claim based on “the unambiguous case law and the undisputed facts” (id.). In doing so, the court acknowledged the general “principle that access bars claims of reliance on misrepresentations” (id. at 737 [emphasis added]), and cited cases where experienced businessmen were barred from claiming fraud when they relied solely on verbal assurances despite “undisputed access to . . . corporate records” (id. at 738).

Here, ACA alleges that, after its first meeting with Paulson on January 8, 2007, it was unsure how Paulson meant to “participate” in the transaction. But unlike outside investors in ABACUS, who had no way to know that Paulson was involved in the transaction in any way, ACA was on the inside. ACA and Paulson worked together for a month to assemble the 90 subprime residential mortgage-backed securities in the reference portfolio. Further, ACA’s Senior Credit Committee did not give conditional approval of the financial guaranty until March 31, 2007, and the guaranty was not consummated until May 31, 2007. Yet, during that five-month stretch of unfettered access to Paulson, ACA never once asked Paulson about its investment position in ABACUS. ACA easily could have done so, and, optimally, would have demanded a written representation from Goldman and/or Paulson before issuing the financial guaranty essential to the transaction. Instead, like the plaintiffs in Centro, hazard Freres and Grumman, ACA merely relied on what it says Goldman told it without actually checking the source (i.e., asking Paulson), or taking any other “reasonable steps to protect itself against deception” (DDJ Mgt., 15 NY3d at 154).

ACA, a sophisticated financial entity, protests that it was not reasonable to query Paulson about its investment position in ABACUS because Paulson most likely would have lied, and, in any event, whether Paulson would have disclosed the truth is a factual issue that cannot be resolved on a motion to dismiss. But whether Paulson would have lied or not is irrelevant. The representations and warranties obtained by the plaintiffs in DDJ Mgt. were, after all, allegedly false. What matters is that the plaintiffs there took the arguably adequate reasonable step of requesting and obtaining representations and warranties to protect themselves against potential fraud. The DDJ Mgt. plaintiffs — unlike ACA — therefore were able to allege facts from which a trier of fact might find justifiable reliance.

Savvy commercial and financial players and inventive lawyers abound in New York. Our venerable rule requiring that the reliance necessary to establish fraud must be justifiable is designed to make sure that the courts “reject! ] the claims of plaintiffs who have been so lax in protecting themselves that they cannot fairly ask for the law’s protection” and “may truly be said to have willingly assumed the business risk that the facts may not be as represented” {DDJ Mgt., 15 NY3d at 154 [internal quotation marks omitted]). Because ACA cannot, as a matter of law, establish justifiable reliance on the basis of the facts alleged in its amended complaint, I respectfully dissent.

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

Order reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that court and certified question answered in the negative, in a memorandum.

       ACA’s complaint quotes the following email sent to a Goldman employee involved in the transaction by an ACA participant in ACA’s initial meeting with Paulson: “I have no idea how it went — I wouldn’t say it went poorly, not at all, but I think it didn’t help that we didn’t know exactly how [Paulson] want[s] to participate in the space. Can you get us some feedback?”


text:
    [33 NE3d 1280, 12 NYS3d 11]
    In the Matter of Elizabeth McGovern, Appellant, v Mount Pleasant Central School District, Respondent.
    Argued April 28, 2015;
    decided June 4, 2015

      APPEARANCES OF COUNSEL

      Rutkin & Wolf PLLC, Bronx (Jason M. Wolf of counsel), for appellant.

      Ingerman Smith, LLP, Harrison (Emily J. Lucas of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner Elizabeth McGovern was employed as a teacher by respondent Mount Pleasant Central School District, commencing September 1, 2008. On June 30, 2011, before the end of her three-year probationary period, the District terminated McGovern’s employment, based on the Superintendent of Schools’ recommendation not to grant tenure. McGovern brought this CPLR article 78 proceeding seeking annulment of the District’s determination, reinstatement with tenure and back pay. In its answer to the petition, the District asserted as an affirmative defense that McGovern had not served a timely notice of claim as required by Education Law § 3813 (1). McGovern’s sole argument in opposition to the affirmative defense was that a “[n]otice of [c]laim is not a condition precedent to a special proceeding properly brought pursuant to CPLR [a] rtide 78 seeking judicial enforcement of a legal right derived through enactment of positive law.” Supreme Court agreed and directed that McGovern be reinstated with back pay pending a hearing to determine whether she was denied tenure and terminated from her probationary employment in bad faith.

On the District’s appeal, the Appellate Division reversed and remitted the matter to Supreme Court for entry of a judgment denying the petition and dismissing the proceeding (114 AD3d 795 [2d Dept 2014]). The Court ruled that the positive-law exemption on which McGovern relied was not relevant to the situation of a probationary teacher seeking to compel a school district to grant tenure. The Appellate Division also expressed its view that section 3813 (1) does not apply when a litigant seeks only equitable relief, but observed that McGovern asked for damages in the form of back pay in addition to an equitable remedy, and brought her lawsuit to advance a private right rather than vindicate a public interest. We granted McGovern leave to appeal (23 NY3d 903 [2014]), and now affirm.

On appeal to us, McGovern contends that she is exempt from section 3813 (l)’s notice-of-claim requirement for two reasons: the monetary damages that she demands are merely incidental to her primary claim for equitable relief; and/or she seeks to enforce tenure rights by estoppel. Even if the Appellate Division may have considered one or both of these arguments, McGovern did not raise them at Supreme Court; therefore, they are unpreserved for our review (see generally Brown v City of New York, 60 NY2d 893, 894 [1983]). Although the District only asserts a lack of preservation with respect to the second argument, we determine independently whether an issue is properly before us (see Halloran v Virginia Chems., 41 NY2d 386, 393 [1977]).

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, with costs, in a memorandum.

       McGovern does not contest the propriety of the Appellate Division’s ruling on the positive-law exception.


text:
    [33 NE3d 1287, 12 NYS3d 17]
    The People of the State of New York ex rel. Bourlaye T., Appellant, v William J. Connolly, Superintendent of Fish-kill Correctional Facility, Respondent.
    Argued April 29, 2015;
    decided June 4, 2015
    APPEARANCES OF COUNSEL

      Michael D. Neville, Mental Hygiene Legal Service, Mineóla {Ana Vuk-Pavlovic and Dennis B. Feld of counsel), for appellant.

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

Memorandum.

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

In 1988, petitioner, a foreign national, pleaded guilty to attempted murder in the second degree, rape in the first degree, sexual abuse in the first degree, burglary in the first degree, and attempted burglary in the second degree. He was sentenced to a prison term of 12 to 36 years.

After serving approximately 25 years in prison, petitioner was conditionally released from the custody of the New York State Department of Corrections and Community Supervision (DOCCS) and placed in the custody of the United States Department of Homeland Security, Immigration and Customs Enforcement (ICE) for deportation from the United States. Contemporaneously, he began serving a term of parole under the supervision of the New York State Division of Parole. In December 2012, petitioner was released to federal immigration parole after federal officials were unable to procure the necessary documentation to deport him. Following his release, petitioner was taken into custody by state parole officers and transported to a state correctional facility, despite the fact that there were no allegations that he had violated a condition of his parole.

In January 2013, petitioner commenced this proceeding pursuant to CPLR article 70 seeking a writ of habeas corpus, contending that he was being confined unlawfully. On the same day, the State filed a civil management petition pursuant to Mental Hygiene Law article 10 and received judicial authorization to temporarily retain petitioner in custody pending a probable cause hearing. Following the hearing, the court found probable cause to believe that petitioner was a “sex offender requiring civil management” (Mental Hygiene Law § 10.06 [k]) and directed that he be committed to a secure treatment facility pending trial.

The State moved to dismiss the habeas proceeding on the ground that it had been rendered moot by the entry of the probable cause order, which allowed the State to detain petitioner pending trial. Supreme Court granted the State’s motion and dismissed the proceeding. The Appellate Division affirmed {see 119 AD3d 825 [2d Dept 2014]).

Petitioner argues that Supreme Court wrongfully denied and dismissed as moot his petition for a writ of habeas corpus because he remains in State custody pursuant to an illegal arrest. He also contends that the illegal arrest rendered the article 10 proceeding against him jurisdictionally void, and, therefore, the proceeding cannot justify his continued incarceration. While the State does not defend as lawful the procedure utilized for petitioner’s initial return to custody, it maintains that the issue is insignificant because the probable cause order provides an independent and superseding basis for his confinement.

As noted by the State, petitioner’s habeas petition challenges only his initial arrest and detention. Since petitioner is currently being held pursuant to the probable cause order, the initial detention no longer serves as the authority for his continuing confinement. Therefore, the issue raised in this habeas proceeding is academic (see Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]).

Nor does this appeal present a question that would warrant our application of an exception to the mootness doctrine. The State articulated that it has since corrected its practices relating to the commencement of civil commitment proceedings against sex offenders facing deportation. Furthermore, the article 10 proceeding itself is the proper forum for petitioner to challenge the validity of the probable cause order and the underlying article 10 petition {see Mental Hygiene Law §§ 10.06-10.08, 10.13).

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order affirmed, without costs, in a memorandum.

      . ICE could not deport petitioner any earlier, as federal law prohibits the removal of incarcerated aliens (see 8 USC § 1231 [a] [4]).

      . In the event ICE is unable to deport an alien after six months of post-removal order detention, he must be released on a form of parole supervision (see Zadvydas v Davis, 533 US 678, 701 [2001]).


text:
    In the Matter of Diana Sachs Aylward et al., Respondents, v Assessor, City of Buffalo, et al., Appellants.
    Decided June 4, 2015
   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 Fahey taking no part.


text:
    Beck Chevrolet Co., Inc., Appellant, v General Motors LLC, Respondent.
    Decided June 4, 2015

      See 787 F3d 663.
   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 Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey.


text:
    In the Matter of Anthony Bottom, Also Known as Jalil Muntaqim, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, et al., Respondents.
    Decided June 4, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Tremain Cason, Appellant, v Kirby Sy Smith, III, et al., Respondents.
    Submitted February 17, 2015;
    decided June 4, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of County of St. Lawrence, Respondent, v Nirav R. Shah, as Commissioner of Health, et al., Appellants. (And Two Other Related Proceedings.)
    Submitted May 18, 2015;
    decided June 4, 2015
   Motion for a stay denied as unnecessary. The automatic stay provisions of CPLR 5519 (a) (1) apply.

Judges Stein and Fahey taking no part.


text:
    CRP/Extell Parcel I, L.P., Respondent, v Andrew M. Cuomo et al., Respondents, and 3to4, LLC, et al., Appellants.
    Submitted May 18, 2015;
    decided June 4, 2015
   Motion for a stay denied.


text:
    Edwin Davis et al., Appellants, v South Nassau Communities Hospital et al., Respondents.
    Submitted June 1, 2015;
    decided June 4, 2015
   Motion by Healthcare Association of New York State, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Entergy Nuclear Operation, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted May 11, 2015; decided
    June 4, 2015
   Motion by Riverkeeper, Inc., et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of V. Anthony Maggipinto, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided June 4, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Luis Pena, Appellant, v New York State Gaming Commission, Respondent. (And Another Proceeding.)
    Decided June 4, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Anthony Badalamenti, Appellant.
    Submitted May 11, 2015;
    decided June 4, 2015
   Motion for assignment of counsel granted and Marianne Karas, Esq., 980 Broadway, Suite 324, Thornwood, New York 10594 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Curtis Basile, Appellant.
    Submitted May 26, 2015;
    decided June 4, 2015
   Motion by Animal Legal Defense Fund et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Alma Caldavado, Also Known as Alma Calderaro, Appellant.
    Submitted May 11, 2015;
    decided June 4, 2015
   Motion by Innocence Network for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Glenford C. Hull, Appellant.
    Submitted May 11, 2015;
    decided June 4, 2015
   Motion for assignment of counsel granted and Jonathan I. Edelstein, Esq., care of Edelstein & Grossman, 501 Fifth Avenue, Suite 514, New York, NY 10017 assigned as counsel to the appellant on the appeal herein.

Judge Stein taking no part.


text:
    The People of the State of New York, Respondent, v Eric A. Jackson, Appellant.
    Submitted May 18, 2015;
    decided June 4, 2015
   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 Ronel Joseph, Appellant.
    Submitted May 11, 2015;
    decided June 4, 2015
   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 Patrick Morgan, Appellant.
    Submitted June 1, 2015;
    decided June 4, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Timothy Muldrow, Appellant.
    Submitted May 11, 2015;
    decided June 4, 2015
   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.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Steve Williamson, Appellant.
    Submitted May 18, 2015;
    decided June 4, 2015
   Motion for disclosure denied (see Rules of Ct of Appeals [22 NYCRR] § 510.18 [a]).


text:
    In the Matter of Platinum Pleasures of NY, Inc., Respondent, v New York State Liquor Authority, Appellant.
    Decided June 4, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Richard Rivera et al., Appellants, v Fernandez & Ulloa Auto Group et al., Respondents.
    Submitted June 1, 2015;
    decided June 4, 2015
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Tatiana Soubbotin, Appellant. Commissioner of Labor, Respondent.
    Decided June 4, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Stein taking no part.


text:
    Robert Carey, Respondent, v Burton P. Schwab, Appellant.
    Submitted April 6, 2015;
    decided June 9, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Stein taking no part.


text:
    Frank A. Cicci, Appellant, v Chemung County et al., Respondents, and Village of Elmira Heights et al., Appellants.
    Submitted April 20, 2015;
    decided June 9, 2015
   Motion by plaintiff, insofar as it seeks leave to appeal as against defendants David J. Noonan and Steven Pickering, dismissed upon the ground that as to those defendants the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Cross motion for leave to appeal, insofar as made by defendants Village of Elmira Heights and A. Rick Churches, Village of Elmira Heights Chief of Police, dismissed upon the ground that they are not parties aggrieved (see CPLR 5511); cross motion for leave to appeal, insofar as made by defendants David J. Noonan and Steven Pickering, dismissed upon the ground that as to these defendants, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Rural Community Coalition, Inc., et al., Appellants, v Village of Bloomingburg et al., Defendants, Town of Mamakating et al., Appellants, and Shalom Lamm et al., Respondents.
    Submitted May 11, 2015;
    decided June 9, 2015
   Motion by the Town of Mamakating et al. for leave to appeal etc. denied. Motion by Rural Community Coalition, Inc., et al. for leave to appeal denied.


text:
    In the Matter of Luz Solla, Respondent, v Elizabeth Berlin, as Executive Deputy Commissioner of the New York State Office of Temporary and Disability Assistance, et al., Appellant, et al., Respondents.
    Submitted April 6, 2015;
    decided June 9, 2015
   Motion for reargument denied [see 24 NY3d 1192 (2015)]. Motion for poor person relief dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    In the Matter of Ricardo Suarez et al., Appellants, v Melissa Williams et al., Respondents.
    Submitted May 26, 2015;
    decided June 9, 2015
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    In the Matter of Vivienne Bobbi-Hadiya S., an Infant. Makena Asanta Malika McK., Appellant; Administration for Children’s Services et al., Respondents, et al., Respondent. (And Another Proceeding.)
    Submitted April 27, 2015;
    decided June 9, 2015
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    [33 NE3d 1289, 12 NYS3d 19]
    In the Matter of Delroy S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Argued April 29, 2015;
    decided June 4, 2015

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Raymond E. Rogers and Tamara A. Steckler of counsel), for appellant.

      Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor and Richard Dearing of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, without costs, and the matter remitted to Family Court for further proceedings in accordance with this memorandum.

In this juvenile delinquency proceeding, 11-year-old Delroy was charged in Family Court with the commission of acts that, if done by an adult, would constitute, among other things, assault in the first degree and third degree, and attempted assault in the first, second and third degrees. The charges arose out of an altercation that Delroy had with the 12-year-old complainant, during which the complainant was stabbed. Delroy moved to suppress a statement that he had made to the police officers who responded to the scene, as well as a knife recovered from Delroy’s apartment. According to the testimony at the suppression hearing, when the officers responded to the location of the incident, they saw the complainant and a crowd of people, including Delroy’s adult sister. Delroy’s sister stated that her brother had been bullied by the complainant, that the two boys had fought and that Delroy had stabbed the complainant.

Delroy’s sister took the officers to Delroy’s apartment. Once inside, the officers saw Delroy. Without administering Miranda warnings, one of the officers asked Delroy “what happened[?]” and Delroy responded, in sum and substance, that he got into a fight with the complainant, who was bothering him, that he went to go find his brother, that he could not find his brother, and that he came back with a knife and stabbed the complainant.

Family Court denied the suppression motion, noting that Delroy’s adult sister invited the police into the home, and took the lead with respect to recovery of the knife. After the fact-finding hearing, at which Delroy interposed a justification defense, Family Court concluded that Delroy had committed the delinquent acts of second-degree assault, fourth-degree criminal possession of a weapon, petit larceny and fifth-degree criminal possession of stolen property. The court adjudicated him a juvenile delinquent and placed him on probation for a period of 18 months.

The Appellate Division held that Delroy’s statement should have been suppressed on the ground that it was the product of a custodial interrogation without Miranda warnings because, under the circumstances, “a reasonable 11 year old would not have felt free to leave” (113 AD3d 448, 448 [2014]). However, it concluded that admission of the statement was “harmless beyond a reasonable doubt” in that “there was overwhelming evidence that both established [Delroy’s] guilt of the assault and weapon charges and disproved his justification defense” (id.). The Appellate Division modified the order of disposition only to the extent of vacating the findings as to petit larceny and criminal possession of stolen property as unsupported by the evidence and dismissing those counts.

There is no basis to disturb the Appellate Division’s holding that this was a custodial interrogation, and that the statement should have been suppressed.

We disagree with the Appellate Division’s conclusion that the error was harmless. A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” (People v Crimmins, 36 NY2d 230, 237 [1975]). “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” (People v Goldstein, 6 NY3d 119, 129 [2005], cert denied 547 US 1159 [2006] [citations omitted]).

The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” (People v Watts, 57 NY2d 299, 301 [1982], citing Penal Law § 35.15 [2] [a]), and that “defense is qualified by a duty to retreat” (id.). The People bear the burden of disproving the defense of justification beyond a reasonable doubt (see Matter of Y.K., 87 NY2d 430, 433 [1996]).

The complainant testified that on the day of the incident, he entered Delroy’s building and seized a scooter from Delroy that he thought was his. The two boys engaged in a “tugga-war fight” over the scooter. The complainant was older, taller, heavier and stronger than Delroy. The complainant left Delroy’s building, but then returned to Delroy’s home with his twin brother and 9 or 10 friends and engaged in a fight with Delroy. The complainant admitted that he started the second fight by yelling at Delroy, and that his friends were cheering him on. The complainant’s brother testified that while the complainant had his hands above Delroy’s chest on his neck, the group was yelling “get him.” Delroy did not use the knife until after this potentially deadly force was used on him. While the People argue that the complainant’s brother testified that Delroy was able to get out of the choke hold and step back five or six feet before pulling out the knife, and the complainant testified that Delroy might have been 12 feet away when he took out the knife, we note that the complainant also testified that he didn’t know if Delroy was underneath him when he felt the knife stabbing him. Moreover, even if Delroy had in fact stepped some feet away from the complainant, that would not prove that the complainant was done with beating on the much smaller Delroy, especially given the crowd that had gathered around to cheer on the combating boys. Contrary to the Appellate Division’s conclusion, there was not overwhelming evidence that Delroy knew that, with complete personal safety, he could have retreated (see Penal Law § 35.15 [2] [a]).

Furthermore, the People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Given the uncontroverted testimony that there were two fights (the first when the complainant took the scooter from Delroy, and the second when the complainant was stabbed), the police officer’s summary of Delroy’s statement appears to conflate the two separate fights, and creates the impression that Delroy paused in the course of one fight to secure a knife with which to stab the complainant. Regardless of whether the police officer accurately recounted the statement, or did indeed conflate the two fights, the improper admission of Delroy’s statement undermined, if not eviscerated, Delroy’s justification defense.

Accordingly, the failure to suppress the statement was not harmless.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Order, insofar as appealed from, reversed, without costs, and matter remitted to Family Court, Bronx County, for further proceedings in accordance with the memorandum herein.


text:
    [34 NE3d 349, 12 NYS3d 598]
    Sharen Branch, as Administratrix of the Estate of Robert Bastian, Deceased, Appellant, v County of Sullivan, Respondent.
    Argued May 7, 2015;
    decided June 9, 2015

      APPEARANCES OF COUNSEL

      Sussman and Watkins, Goshen (Michael H. Sussman of counsel), for appellant.

      The Law Offices of Bryan R. Kaplan, Monticello (Bryan R. Kaplan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In the early morning hours of November 8, 2007, 17-year-old Robert Bastían (decedent) was socializing with fellow students in the dormitory where he resided on the campus of Sullivan County Community College (SCCC or the College) when he experienced sudden cardiac arrest and died. In January 2009, plaintiff Sharen Branch, decedent’s mother and the administratrix of his estate, commenced this wrongful death action against defendant Sullivan County (the County); she alleged that the County negligently failed to equip decedent’s dormitory with an automated external defibrillator and/or to have an emergency medical response plan in place. The County is SCCC’s local sponsor. A community college’s local sponsor assumes three responsibilities and duties: (1) to formulate a plan for establishing the college; (2) to partially finance the college’s capital and annual operating costs; and (3) to hold title to the college’s real property in trust for its exclusive use and purposes, as determined by its board of trustees (see 8 NYCRR 604.1; see generally Education Law art 126).

After joinder of issue and discovery, the County moved for summary judgment to dismiss the complaint, arguing that it owed no duty of care to decedent because it did not own or manage SCCC, or own, manage or maintain the dormitory where he was living when he fell ill. In support of its motion, the County submitted deeds showing that the Sullivan County Community College Dormitory Authority (the Dormitory Authority), a not-for-profit corporation, owned the dormitory where decedent resided. The County also submitted the deposition testimony and affidavit of the Sullivan County Treasurer, who averred that while the County “provide [d] economic support for [SCCC’s] budget,” it played “no role in the management, policy making decisions [or] day[-]to[-]day operations” of either SCCC or the dormitory. As particularly relevant to its motion, the County noted that Education Law § 6306 (5) assigns responsibility for management of a community college’s buildings and facilities to its board of trustees.

Plaintiff, in opposition to the County’s motion, submitted an affirmation from counsel, accompanied by a memorandum of law. Plaintiff argued that because SCCC was a “department” of the County, the County was liable for the College’s negligent failure to place a defibrillator on campus; plaintiff also argued that the County, as the owner of the real property on which the College’s facilities sit, assumed a duty to provide for the safety of SCCC’s students and breached that duty by not “insuring] that [the] property was equipped with defibrillators or that the capital or operating budgets which [the County] annually reviewed, and had to approve, contained appropriations for the purchase of the same and the training of staff in their use.”

Noting that the affirmation by plaintiff’s counsel was “conclusory” and merely repeated the complaint’s allegations, Supreme Court concluded that plaintiff had not raised any triable issue of fact to rebut the County’s prima facie showing of entitlement to summary judgment, and so granted the County’s motion and dismissed the complaint (45 Misc 3d 1210[A], 2012 NY Slip Op 52510[U], *3 [2012]). Upon plaintiff’s appeal, the Appellate Division affirmed (112 AD3d 1119 [3d Dept 2013]). The Court rejected plaintiff’s argument that the County’s role as local sponsor somehow made SCCC an “alter ego of [the County, which] should be treated as a department of [the County] for liability purposes” {id. at 1119). The Appellate Division emphasized that the College’s board of trustees, not the County, was responsible for day-to-day operations and management at SCCC. Moreover, the Court observed, the County did not own the building where decedent was fatally stricken down, and “in the absence of ownership, occupancy, control or special use of the property by [the County], it did not owe decedent a duty” {id. at 1120 [internal quotation marks omitted]). We granted plaintiff leave to appeal (23 NY3d 905 [2014]), and now affirm.

While the County exercises significant influence and control over SCCC’s finances, only the College’s board of trustees is authorized to manage SCCC’s facilities; therefore, it alone is charged with the duty of care (see Jackson v Board of Educ. of City of N.Y., 30 AD3d 57, 60-61 [1st Dept 2006]; see also Matter of Weinstein v Caso, 44 AD2d 690 [2d Dept 1974]). And here, the County additionally established that it did not even own the dormitory where decedent’s accident occurred (see Jackson, 30 AD3d at 60 [“(l)iabilty for a dangerous condition on property may only be predicated upon occupancy, ownership, control or special use of such premises” (internal quotation marks and citation omitted)]). Plaintiff also argues that the College’s trustees are officers of the County, which is therefore liable for their negligent acts pursuant to County Law § 53; and that the County’s transfer of the dormitory to the Dormitory Authority was invalid. These theories of liability, which were not advanced in Supreme Court, are unpreserved for our review.

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

Order affirmed, with costs, in a memorandum.

       Each community college is governed by a board of trustees with 10 members; five members are appointed by the local sponsor, four members are appointed by the governor, and one member is a student elected by the students of the college (Education Law § 6306 [1]). The board of trustees of a community college is responsible for “the care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of [the] college and of all other property belonging to [the] college and used for carrying out its purposes, and . . . shall have power to protect, preserve and improve the same” (Education Law § 6306 [5]).


text:
    [34 NE3d 51, 12 NYS3d 23]
    The People of the State of New York, Respondent, v Michael Rutledge, Appellant.
    Decided June 9, 2015

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City, for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Sylvia Wertheimer of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR), order reversed, defendant’s motion to suppress granted, and case remitted to Supreme Court, New York County, for further proceedings on the indictment (see People v Dunbar, 24 NY3d 304 [2014]).

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


text:
    [34 NE3d 51, 12 NYS3d 23]
    In the Matter of Anonymous, for Admission as an Attorney and Counselor-at-Law, Appellant.
    Decided June 9, 2015

      APPEARANCES OP COUNSEL

      Tarik Davis, Brooklyn, for appellant.

      Maria Matos, Committee on Character and Fitness, New York City, for respondent.
   OPINION OF THE COURT

Appeal dismissed without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (see CPLR 5601 [a]).

Concur: Chief Judge Lippman and Judges Read, Pigott, Abdus-Salaam, Stein and Fahey. Judge Rivera dissents and votes to retain jurisdiction on the ground that the two-Justice dissent is on a question of law and supports an appeal as of right pursuant to CPLR 5601 (a).


text:
    Leon Behar et al., Appellants, v Glickenhaus Westchester Development, Inc., Respondent.
    Submitted April 27, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Gerard Corsini, Appellant, v Elizabeth Morgan, Also Known as Betsy Morgan, et al., Respondents, et al., Defendants.
    Submitted April 20, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Robert Coward, Appellant, v New York State Board of Parole, Respondent.
    Decided June 10, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Stuart Dizak, Appellant, v Albert Prack, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted April 27, 2015;
    decided June 10, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 916 (2015)].

Judges Stein and Fahey taking no part.


text:
    Gregory Mavente, Respondent, v Albany Medical Center Hospital et al., Respondents. Timothy J. Carter et al., as Trustees of the Plumbers & Steamfitters Local No. 7 Welfare Fund, Proposed Intervenors-Appellants. (Action No. 1.)
    Submitted April 27, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Gregory Mavente, Respondent, v Ellis Hospital et al., Respondents, et al., Defendants. Timothy J. Carter et al., as Trustees of the Plumbers & Steamfitters Local No. 7 Welfare Fund, Proposed Intervenors-Appellants. (Action No. 2.)
    Submitted April 27, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant.
    Submitted April 13, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant.
    Submitted May 11, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Beverly Weston, Appellant. Commissioner of Labor, Respondent.
    Submitted April 27, 2015;
    decided June 10, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [34 NE3d 368, 12 NYS3d 617]
    Calvin E. Thomas, Respondent, v New York City Housing Authority, Appellant.
    Decided June 4, 2015

      APPEARANCES OF COUNSEL

      Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick J. Lawless of counsel), for appellant.

      Burns & Harris, New York City (Blake G. Goldfarb of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that Court, and certified question answered in the negative. The allegations in the notice of claim were not sufficient to put defendant on notice of the allegations in the bill of particulars concerning the handrail.

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