author: Read, J.

text:
    [999 NE2d 1168, 977 NYS2d 723]
    The People of the State of New York, Respondent, v Thomas Brown, Appellant. The People of the State of New York, Respondent, v Joseph Harris, Appellant. The People of the State of New York, Respondent, v Darnell Carter, Appellant.
    Argued October 16, 2013;
    decided November 14, 2013

      POINTS OF COUNSEL

      The Legal Aid Society, Bronx (Lily Goetz of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City (Risa Gerson of counsel), for appellant in the first above-entitled action.
    I. The prosecutor deprived Thomas Brown of a fair trial when, in summation, he shifted and diluted the burden of proof by arguing that the jury must choose between two views of the evidence. (People v Mirenda, 23 NY2d 439; Berger v United States, 295 US 78; People v Zimmer, 51 NY2d 390; People v Whalen, 59 NY2d 273; In re Winship, 397 US 358; People v Johnson, 11 AD3d 224; United States v Khan, 821 F2d 90; People v Crimmins, 36 NY2d 230; People v Alexander, 94 NY2d 382; People v Levandowski, 8 AD3d 898.) II. Thomas Brown’s consecutive sentences for murder and weapon possession are illegal since no evidence established that the perpetrator possessed a loaded weapon at any time other than during the shooting of Jarvis Bradford. (People v Hamilton, 4 NY3d 654; People v Wright, 19 NY3d 359; People v Rosas, 8 NY3d 493; People v Salcedo, 92 NY2d 1019; People v Laureano, 87 NY2d 640; People v Brown, 80 NY2d 361; Matter of Johnson v Morgenthau, 69 NY2d 148; People v Dean, 8 NY3d 929; People v Ramirez, 89 NY2d 444; People v Tineo, 94 AD3d 507.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello, Susan Axelrod and Christopher P. Marinelli of counsel), for respondent in the first above-entitled action.
    I. Defendant’s sentence was lawful. (People v Day, 73 NY2d 208; People v Snyder, 241 NY 81; People v Wright, 19 NY3d 359; Blockburger v United States, 284 US 299; People v Taveras, 12 NY3d 21; People v Laureano, 87 NY2d 640; People v McKnight, 16 NY3d 43; People v Ramirez, 89 NY2d 444; People v Frazier, 16 NY3d 36; People v Arroyo, 93 NY2d 990.) II. The prosecutor’s comments in summation did not constitute burden shifting. (People v Heide, 84 NY2d 943; People v Dawson, 50 NY2d 311; People v Utley, 45 NY2d 908; People v Tonge, 93 NY2d 838; People v Dien, 77 NY2d 885; People v Monroe, 90 NY2d 982; People v Weston, 56 NY2d 844; People v Contes, 60 NY2d 620; People v Santiago, 52 NY2d 865; People v Tevaha, 204 AD2d 92, 84 NY2d 879.)

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Thomas M. Nosewicz of counsel), for appellant in the second above-entitled action.
    I. The firearm taken from the Queens apartment that Joseph Harris had been invited into should have been suppressed because the police had no reason to enter the apartment and upend a couch after Mr. Harris had been removed from the apartment. (Minnesota v Carter, 525 US 83; People v Ramirez-Portoreal, 88 NY2d 99; People v Ortiz, 83 NY2d 840; United States v Poe, 556 F3d 1113; People v Perez, 37 Misc 3d 734; Payton v New York, 445 US 573; Maryland v Buie, 494 US 325; People v Kelly, 62 NY2d 516; California v Trombetta, 467 US 479.) II. Joseph Harris’s consecutive sentences for simple possession and use of a weapon are illegal because all the offenses occurred at the same time and place and involved the same firearm and a single victim. (People v Longshore, 86 NY2d 851; People v Frazier, 16 NY3d 36; People v Taveras, 12 NY3d 21; People v Brown, 80 NY2d 361; People v McCray, 102 AD3d 560; People v McKnight, 16 NY3d 43; People v Battles, 16 NY3d 54; People v Salcedo, 92 NY2d 1019; People v Wright, 19 NY3d 359; People v Hamilton, 4 NY3d 654.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Ellen Stanfield Friedman and Christopher P. Marinelli of counsel), for respondent in the second above-entitled action.
    I. Defendant’s consecutive sentences are legal. (Blockburger v United States, 284 US 299; People v Day, 73 NY2d 208; People v Laureano, 87 NY2d 640; People v McKnight, 16 NY3d 43; People v Taveras, 12 NY3d 21; People v Wright, 19 NY3d 359; People v Ramirez, 89 NY2d 444; People v Snyder, 241 NY 81; People v Frazier, 16 NY3d 36; People v Arroyo, 93 NY2d 990.) II. The hearing court properly denied defendant’s motion to suppress the gun recovered from Ricky Kelly’s apartment. (People v Albro, 52 NY2d 619; People v Francois, 14 NY3d 732; People v Wheeler, 2 NY3d 370; People v Sierra, 83 NY2d 928; People v Bradford, 15 NY3d 329; People v Paulman, 5 NY3d 122; People v Wilkerson, 64 NY2d 749; People v Giles, 73 NY2d 666; People v Borges, 69 NY2d 1031; People v Jose, 94 NY2d 844.)

      David J. Farrugia, Public Defender, Lockport (Mary-Jean Bowman of counsel), for appellant in the third above-entitled action.
    Darnell Carter’s consecutive sentences for possession of a weapon and murder in the second degree are illegal because the offenses were simultaneous and part of the same transaction. (People v Fuentes, 52 AD3d 1297; People v Ramirez, 89 NY2d 444; People v Laureano, 87 NY2d 640; People v Brown, 80 NY2d 361; People v Taveras, 12 NY3d 21; People v Hamilton, 4 NY3d 654.)

      Michael J. Violante, District Attorney, Lockport (Thomas H. Brandt of counsel), for respondent in the third above-entitled action.
    Defendant’s consecutive sentences were legal. (People v Laureano, 87 NY2d 640; People v Wright, 19 NY3d 359; People v Hamilton, 4 NY3d 654; People v Sturkey, 77 NY2d 979; People v Almodovar, 62 NY2d 126; People v Saunders, 85 NY2d 339; People v Salcedo, 92 NY2d 1019.)
   OPINION OF THE COURT

Read, J.

We are asked in these appeals to decide whether a sentence imposed for “simple” knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon. We conclude that these three defendants completed the crime of possession independently of their commission of the later crimes, and therefore consecutive sentencing was permissible.

I

Statutory Background

Penal Law § 70.25 (2) provides as follows:

“When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.”

Before 2006, Penal Law § 265.03, second-degree criminal possession of a weapon, provided that

“[a] person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another: (1) he possesses a machine-gun; or (2) he possesses a loaded firearm; or (3) he possesses a disguised gun” (former Penal Law § 265.03 [emphasis added]).

The Legislature amended the statute in 2006 to include, in addition to specific-intent possession, a so-called “simple” possession provision. Specifically, the statute now reads as follows:

“A person is guilty of criminal possession of a weapon in the second degree when: (1) with intent to use the same unlawfully against another, such person: (a) possesses a machine-gun; or (b) possesses a loaded firearm; or (c) possesses a disguised gun; or (2) such person possesses five or more firearms; or (3) such person possesses any loaded firearm” (Penal Law § 265.03 [emphasis added]; see also L 2006, ch 742).

Further, before 2006 the unlawful possession of a loaded firearm outside one’s home or business was third-degree criminal possession of a weapon. The Legislature elevated this type of possession to a second-degree crime when it amended the Penal Law in 2006.

II

Brown

Around 4:00 a.m. on June 19, 2005, Jarvis Bradford and friends were leaving the Cherry Lounge at 128th Street and Amsterdam Avenue in Manhattan. Bradford and defendant Thomas Brown, who had also been at the club, began arguing. A witness later testified that Brown and Bradford gestured to their waistbands and “make like they had something with them right there at the scene.” Brown walked away and got into the back seat of his van; he also gave the van’s keys to his brother-in-law, Giovanni Alvarado, and instructed Alvarado to wait for Bradford to leave and then to follow. Brown told Alvarado he was going to shoot Bradford. Alvarado did as requested, following Bradford and friends to a nearby McDonald’s.

Bradford left his car and went to the walk-up window to order food. Brown left his van, walked up to Bradford and shot him four times from less than 10 feet away, killing him. Brown ran back to the van, and Alvarado later testified that he had “something that appeared to be a gun” in his left hand as he returned to the van, but Alvarado also testified he “didn’t see exactly.” Alvarado and defendant drove away.

Several days later, Brown and Alvarado traveled to Atlanta, where they remained for several months. Alvarado returned to New York in November 2005 and was arrested for Bradford’s murder. He entered into a cooperation agreement with the People. On May 12, 2006, Brown was arrested in Baltimore for possession of four firearms. He was subsequently extradited to New York, where he was arraigned in New York County on June 26, 2006, for crimes related to the killing of Bradford.

Brown was subsequently convicted after a jury trial of second-degree intentional murder (Penal Law § 125.25 [1]), and third-degree criminal possession of a weapon (former Penal Law § 265.02 [4]). Supreme Court sentenced Brown to consecutive prison terms of 25 years to life for the murder, and three years for the weapon possession.

On appeal, Brown argued that the trial court erred in imposing consecutive sentences. In December 2011, the Appellate Division unanimously affirmed the judgment of conviction and sentence (90 AD3d 575 [1st Dept 2011]). The court concluded that consecutive sentences were properly imposed under Penal Law § 70.25 (2) because the murder and weapon possession were separate acts for sentencing purposes (id. at 576). On June 21, 2012, a Judge of this Court granted defendant leave to appeal (19 NY3d 958 [2012]), and we now affirm.

Harris

On September 25, 2008, Leonard Lewis was driving near West 112th Street and Lenox Avenue in Manhattan. He stopped to talk with a friend, “Alley Mo,” and saw several other individuals whom he knew standing nearby, including defendant Joseph Harris. Twenty minutes later, Harris approached Lewis’s car, and said, “What’s up? You all right?” He shook Lewis’s hand and then shot him five or six times. Harris ran across the street into a housing project. Lewis flagged down a police car and described the incident. Several days later, Lewis picked out Harris as the shooter from a photo array.

On November 3, 2008, Harris was indicted for crimes in connection with the shooting of Lewis. He was later convicted after a jury trial of second-degree attempted murder (Penal Law §§ 110.00, 125.25 [1]), first-degree assault (Penal Law § 120.10 [1]) and two counts of second-degree criminal possession of a weapon (Penal Law § 265.03 [1] [b]; [3] [possession with intent to use unlawfully against another; possession outside one’s home or place of business]). Supreme Court sentenced Harris as a persistent violent felony offender to 45 years to life in prison: 25 years to life for the attempted murder and assault, and 20 years to life for weapon possession with intent to use unlawfully, to run concurrently with each other; and 20 years to life for the weapon possession outside the home or business, to run consecutively to the sentences for attempted murder and assault.

On appeal, Harris argued that the trial court erred in imposing consecutive sentences for the criminal possession of a weapon and the attempted murder and assault. In June 2012, the Appellate Division affirmed (96 AD3d 502 [1st Dept 2012]). The Court remarked that the weapon possession crime

“has no intent [to use] element; accordingly, the issue of whether consecutive sentences require separate unlawful intents is not implicated here. The evidence clearly established that [Harris] was carrying the weapon at the time he encountered and shot [Lewis]. Accordingly, the act of possession was complete before the shooting, and consecutive sentences were authorized by Penal Law § 70.25 (2)” (id. at 503 [citations omitted]).

On September 28, 2012, a Judge of this Court granted defendant leave to appeal (19 NY3d 1026 [2012]), and we now affirm.

Carter

On the evening of March 20, 2009, defendant Darnell Carter was partying with friends at an apartment owned by Robert Briggs in Niagara Falls, New York. That same evening, Briggs went on a date with a woman named Sicory Walker. The two left the apartment and walked to Briggs’s car, which was parked in a parking lot shared with a convenience store. As they were getting into the car, Walker saw several “kids” creeping in a line against the wall of the store. The first in line had something covering his face, and he pointed a gun at Briggs. Briggs ran around the corner. Walker heard several pops and saw the kids run after Briggs.

A few moments earlier, Shenkayla Hollifield had seen Carter in the convenience store and had talked to him. Hollifield left the store with two female companions and saw Carter and two other men run along the side of the building in a line, crouching and running between the building and the cars. Hollifield saw a silver handgun in Carter’s hand, and then as she started to run, heard three shots. The three women jumped in a car and drove away, and as they did, Hollifield saw Carter and the two other men running across the street.

Carter gave a statement to the police that “they gave [the gun] to me just before we went in the store, they wanted me to hold it.” He told police that “he had the gun tucked in the waistband of his pants and . . . somebody took the gun . . . out of his waistband, and that they had fired the gun.” Carter further told the police that “he didn’t go there to rob the guy, but they were going to rob him, and they were going to take everything that he had,” and that he went along “because he thought that they needed him if there was going to be a fight.”

Carter was tried by jury for crimes related to the killing of Briggs; he was convicted of two counts of second-degree murder (Penal Law § 125.25 [1] [intentional murder], [3] [felony-murder]), two counts of first-degree robbery (Penal Law § 160.15), second-degree criminal possession of a weapon (Penal Law § 265.03) and first-degree criminal use of a firearm (Penal Law § 265.09). County Court sentenced him to a prison term of 25 years to life on each second-degree murder conviction, to run concurrently to each other; 25 years on each first-degree robbeiy conviction, to run concurrently to each other and all other sentences; 25 years on the first-degree criminal use of a firearm, to run concurrently to all sentences; and 15 years on the second-degree criminal possession of a weapon conviction, to run consecutively to the second-degree murder sentences and concurrently to all other sentences.

On June 15, 2012, the Appellate Division declared Carter’s sentence illegal insofar as County Court directed the sentence imposed for second-degree weapon possession to run consecutively to the concurrent sentences imposed for the two counts of second-degree murder, modified the judgment accordingly and otherwise affirmed (96 AD3d 1520 [4th Dept 2012]). Noting that Penal Law § 70.25 (2) requires concurrent sentences for “two or more offenses committed through a single act or omission,” the Court concluded that “[h]ere, there was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim” (id. at 1522 [brackets and internal quotation marks omitted]). The People moved for reargument; they also sought leave to appeal to us, which a Judge of this Court granted on October 4, 2012 (19 NY3d 1101 [2012]).

On September 28, 2012, the Appellate Division withdrew its previous decision (98 AD3d 1329 [4th Dept 2012]); on November 9, 2012, the Court granted the motion to reargue and amended the memorandum and order to delete the direction for resentencing (100 AD3d 1472 [4th Dept 2012]). The appeal to us was withdrawn by stipulation (20 NY3d 1059 [2013]). Carter then sought leave to appeal from the Appellate Division’s amended memorandum and order, which a Judge of this Court granted on February 22, 2013 (20 NY3d 1060 [2013]). We now affirm.

III

These three appeals present the same issue: whether the defendants’ “simple” knowing, unlawful possession of a loaded weapon (as opposed to possession with intent to use) was separate from the subsequent use of that weapon to commit a crime. Brown was convicted of third-degree possession before the 2006 amendments, while Harris and Carter were convicted of second-degree possession under the post-2006 version of the law, thus qualifying for the enhanced penalty. All defendants argue that their sentences for possession should run concurrently because there is no evidence they possessed loaded weapons before or after using them against their respective victims, and thus possession was subsumed within use. The People counter that either direct or circumstantial evidence proves that these defendants committed a completed act of possession.

As noted earlier, Penal Law § 70.25 (2), which governs consecutive sentencing, prohibits consecutive sentences where either “a single act [or omission] constitutes two offenses,” or “a single act [or omission] constitutes one of the offenses and a material element of another” (see People v Laureano, 87 NY2d 640, 643 [1996]). In People v Wright (19 NY3d 359, 365 [2012]), which addressed “intent to use” weapon possession, we concluded that consecutive sentences may be imposed “[o]nly where the act of possession is accomplished before the commission of the ensuing crime and with a mental state that both satisfies the statutory mens rea element and is discrete from that of the underlying crime.” The specific issue in Wright was whether “intent to use” second-degree possession was separate from the use of the weapon in a first-degree murder. We concluded that the possession was only complete when the defendant formed the mens rea necessary for committing the two murders for which he was convicted. Thus consecutive sentences were prohibited.

By contrast, in the earlier case of People v Salcedo (92 NY2d 1019, 1021 [1998]), we determined that continuous possession of the weapon was not determinative. There, the defendant had chased his ex-girlfriend down the street with a gun, repeatedly demanding that she go with him. Finally, after she refused again and again to do so, Salcedo shot her dead (id. at 1022). We concluded that the possession was complete because Salcedo had specific intent to use the gun to compel the victim to leave, and only after she resisted did he form the intent to murder her. The Wright court explained that completion is measured by the “point at which” a defendant’s “relevant intent changes” (Wright, 19 NY3d at 366).

As compared with “intent to use” cases, the inquiry in “simple” possession cases necessarily focuses on the separateness of acts. The actus reus in these two murders (Brown and Carter) and one attempted murder (Harris) is the firing of the shots that killed or were intended to kill the victims. To fire the shot, of course, the shooter must possess the gun; thus possession is an element of the actus reus required to be proved in each murder or attempted murder. And the actus reus for “simple” possession is possession alone.

The mens rea for any crime “ ‘can be formed, and need only exist, at the very moment the person engages in prohibited conduct or acts to cause the prohibited result, and not at any earlier time’ ” (People v Muhammad, 17 NY3d 532, 543 [2011] [emphasis added], quoting CJI2d[NY] Culpable Mental States— Intent). The mens rea for “simple” possession is knowing unlawful possession of a loaded firearm. So long as a defendant knowingly unlawfully possesses a loaded firearm before forming the intent to cause a crime with that weapon, the possessory crime has already been completed, and consecutive sentencing is permissible.

These cases easily pass this test. All of these defendants clearly possessed the guns they used to commit their crimes well before firing them. For example, Brown and Alvarado were at the Cherry Lounge, where they were frisked for weapons before entering. After leaving, Brown argued with Bradford briefly, but then went to his van. At that point, he must have possessed the gun because between the Cherry Lounge and the McDonald’s, there were no stops, and no testimony that the gun was otherwise acquired. It is possible that Brown had already formed the intent to kill Bradford before getting back into the van; however, even if that were the case, the gun must have already been in the van (over which Brown had dominion and control) before he initially encountered Bradford.

In Harris’s case, the victim, Lewis, fortuitously encountered Harris, whom he observed talking with a group of people for about 20 minutes before Harris approached and shot Lewis as he sat in his car. This is not a case where someone handed Harris a gun just before he shot Lewis—i.e., where the act of possession was simultaneous with the shooting. Rather, there was evidence that Harris possessed the gun for at least the 20 minutes before he shot Lewis.

As for Carter, the act of possession was certainly complete while he was talking to Hollifield and her friends in the convenience store. Carter’s statement to police showed a general awareness that he was going to participate in a robbery when he went with the group down to the convenience store, although he testified that he did not intend to rob Briggs, just to go along during the robbery in case there was a fight. In any event, Carter was handed the illegal gun later used to murder Briggs as Carter was entering the convenience store some minutes before the murder. At that point, he must have known the gun was to be used in the robbery. And there was a break in the action. Carter stopped in the convenience store while armed to talk to Hollifield and her friends. Only after leaving the store with the group and chasing down Briggs did Carter’s possession become for the purpose of intentional murder.

Clearly, the Legislature intended, when it created the “simple” weapon possession crime, to toughen punishment for gun crimes. This reflects the high priority placed by the Legislature on “ridding New York’s streets of illegal guns” (Senate Mem in Support of L 2006, ch 742, 2006 McKinney’s Session Laws of NY at 2193). And while in most cases where a gun is used to commit a crime, the defendant will be subject to consecutive sentencing, there still exist fact patterns where this will not be the case. In People v Sturkey (77 NY2d 979 [1991]), for example, the defendant seized a police officer’s gun during a scuffle, waved the gun in the air for a few seconds, either dropped or placed it on the floor and then fled. There, the subsequent robbery and possession charges arose from the same single act—the seizure of the gun. We held that although the defendant was properly convicted of both robbery and criminal possession of a weapon, the sentences for the two offenses were required by Penal Law § 70.25 to be concurrent. This fact pattern would yield the same result today.

Finally, Brown also claims that certain comments made by the prosecutor during summation denied his right to a fair trial, and Harris raises a Fourth Amendment challenge to the search that yielded the gun used in the attack on Lewis. We have examined these additional claims and consider them to be without merit.

Accordingly, the orders of the Appellate Division should be affirmed.

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

In each case: Order affirmed.

      . As already noted, before 2006 possession of a loaded gun outside the home or place of business was only third-degree weapon possession.

      . Harris’s crime was post-2006, so he was prosecuted under the enhanced second-degree criminal possession statute.


source: Caselaw Access Project

author: Memorandum.

license: Public Domain

text:
    [988 NE2d 497, 965 NYS2d 762]
    The People of the State of New York, Respondent, v William Monroe, Appellant.
    Argued February 7, 2013;
    decided April 2, 2013

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Claudia S. Trupp and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Frank Glaser and Patrick J. Hynes of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

On November 22, 2005, defendant William Monroe pleaded guilty to third-degree criminal possession of a controlled substance (Penal Law § 220.16 [1]), and third-degree criminal sale of a controlled substance (Penal Law § 220.39 [1]), both class B drug felonies. Defendant was sentenced to an indeterminate term of imprisonment of 4V2 to 9 years for each crime, ordered to run concurrently; he began serving these sentences on January 9, 2006. Defendant was subsequently accused of participating in a narcotics trafficking conspiracy; the 41-count indictment charged him with second-degree conspiracy (Penal Law § 105.15) and several class B drug felonies alleged to have occurred as early as December 21, 2005 and as late as January 4, 2006. On August 10, 2007, defendant appeared before Supreme Court to plead guilty to a single count of conspiracy in full satisfaction of the indictment in exchange for an indeterminate sentence of 6 to 12 years in prison.

At the plea hearing, defendant hesitated when the judge asked him if he needed more time to discuss the decision to plead guilty with his attorney. After a pause in the proceedings for defendant and counsel to confer, the attorney advised the judge that his client was concerned about how the sentence offered by the People related to the sentences he was already serving. At the time, defendant legitimately expected to be released from prison at his earliest parole eligibility date: he had received no disciplinary tickets resulting in lost good time; he was successfully progressing through correctional programming as well as scoring high marks in his pre-general equivalency diploma (GED) classes; his teachers praised him for his interest, attitude and work habits. The attorney then stated his “understanding” that defendant would be “subject to an indeterminate sentence of six to 12 years and it [would] run concurrent to the term that he’s presently serving.” The judge replied, “Yes. And in addition it will run nunc pro tunc. That means the six to 12 will begin on the same day that the four and a half to nine began.” Defendant replied, “I understand.” The judge then specifically represented to defendant, “So it’s an additional year and a half in effect before parole,” and he responded, “Yes, I understand.”

Following enactment of the Drug Law Reform Act of 2009 (L 2009, ch 56, part AAA, § 9, codified at CPL 440.46) (the DLRA), defendant sought relief from his sentences for the class B drug felonies. On April 16, 2010, the DLRA resentencing court granted his application, reducing both concurrent 41/2-to-9-year indeterminate sentences to concurrent determinate sentences of three years, to be followed by two years of postrelease supervision.

In July 2010, defendant moved pursuant to CPL article 440 for an order vacating his plea to conspiracy and the resulting judgment of conviction and sentence, and resentencing him to a reduced determinate term of imprisonment. He argued that his plea was unknowing because induced by a promise that the agreed-to 6-to-12-year indeterminate sentence to be imposed would extend his earliest possible parole date by only a year and a half, as he was specifically assured by the judge at the plea hearing; after resentencing on the class B drug felonies, though, the gap between the minimum terms of incarceration doubled from the year and a half that he had counted on when he pleaded guilty to three years. Supreme Court denied defendant’s motion, concluding that the resentencing for the class B drug felonies, while “reducing] somewhat the benefit [defendant] expected to receive from his plea[, did] not render it unknowing or involuntary”; the Appellate Division affirmed (89 AD3d 429 [1st Dept 2011]). A Judge of this Court granted defendant leave to appeal (19 NY3d 865 [2012]), and we now reverse.

Defendant’s plea to the conspiracy count was induced by the judge’s specific representation to him that he would thereby extend his minimum incarceratory term by a year and a half only. It simply cannot be said on this record that defendant, who was clearly working toward achieving the earliest release date possible, would have pleaded guilty absent this assurance. Generally, “when a guilty plea has been induced by an unfulfilled promise either the plea must be vacated or the promise honored, but . . . the choice rests in the discretion of the sentencing court” (see People v McConnell, 49 NY2d 340, 346 [1980]).

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

Order reversed and case remitted to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein.

       Defendant subsequently received his GED in October 2008.


text:
    [988 NE2d 513, 965 NYS2d 777]
    In the Matter of City of Utica, Respondent, v Richard F. Daines, as Commissioner of Health, et al., Appellants. Utica Ambulance Service, Inc., Doing Business as Kunkel Ambulance Service, Intervenor-Appellant.
    Decided April 2, 2013

      APPEARANCES OF COUNSEL

      Girvin & Ferlazzo, P.C., Albany (Patrick J. Fitzgerald, III, of counsel), for intervenor-appellant.

      Roemer Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly 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, without costs, and the proceeding remitted to Supreme Court, Albany County, with directions to dismiss the proceeding solely on the ground of mootness.

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


author: Memorandum. Chief Judge Lippman (dissenting).

text:
    [988 NE2d 499, 965 NYS2d 764]
    In the Matter of the Arbitration Between the City of Oswego, Appellant, and Oswego City Firefighters Association, Local 2707, Respondent.
    Argued February 13, 2013;
    decided April 2, 2013

      APPEARANCES OF COUNSEL

      Roemer Wallens Gold & Mineaux LLP, Albany (Earl T. Redding of counsel), for appellant.

      Satter & Andrews, LLP, Syracuse (Mimi C. Satter and Sarah E. Ruhlen of counsel), for respondent.

      Hinman Straub P.C., Albany (Joseph M. Dougherty and Jennie L. Shufelt of counsel), for New York State Professional Firefighters Association, I.A.F.F., AFL-CIO, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the petition to vacate the arbitration award granted.

The Collective Bargaining Agreement between petitioner, the City of Oswego, and respondent, Oswego City Firefighters Association, Local 2707, expired on December 31, 2009. For the same reasons given in Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO (20 NY3d 651 [2013] [decided today]), chapter 504 of the Laws of 2009 (part A, § 8) does not permit the firefighters in this case to retain their noncontributory retirement benefit plan. The arbitration award here required the City of Oswego to provide a benefit that is no longer authorized by law and, in the circumstances, “the final result creates an explicit conflict with other laws” and “the strong and well-defined policy considerations” embodied therein (Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999]; see CPLR 7511 [b] [1] [iii]). Consequently, the award must be vacated.

Chief Judge Lippman (dissenting).

For the reasons stated in my dissent in Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO (20 NY3d 651, 659 [2013] [decided today]), I believe the Collective Bargaining Agreement (CBA) between the City of Oswego (the City) and the Oswego City Firefighters Association (the Union) was “in effect” for purposes of chapter 504 of the Laws of 2009 (part A, § 8) and that arbitration of the present dispute was not prohibited.

Additionally, there is no public policy justification under our precedents to vacate the arbitration award here. There are only limited instances where an arbitration award can be vacated, and the City cannot demonstrate that the arbitrator’s award is against public policy. In general, “arbitration is considered so preferable a means of settling labor disputes that it can be said that public policy impels its use” (Matter of Associated Teachers of Huntington v Board of Educ., Union Free School Dist. No. 3, Town of Huntington, 33 NY2d 229, 236 [1973]). Moreover, “an arbitrator’s rulings, unlike a trial court’s, are largely unreviewable” (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]). In Matter of Kowaleski (New York State Dept. of Correctional Servs.) (16 NY3d 85, 90 [2010]), we deemed it “well-settled” that an arbitrator exceeds his or her power only if the “award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (id. [internal quotation marks and citation omitted]; see also CPLR 7511 [b] [1] [iii]). We further noted that “[o]utside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of fact or law” (Kowaleski, 16 NY3d at 91 [internal quotation marks omitted]; see also Matter of Falzone, 15 NY3d at 534). We determined in Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York (94 NY2d 321, 326 [1999]) that

“[a] court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances where an arbitrator makes errors of law or fact, courts will not assume the role of overseers to conform the award to their sense of justice.”

Courts are called, therefore, to exercise restraint in order to preserve the arbitration process and to allow parties to choose a nonjudicial forum to decide their disputes (Matter of Sprinzen [Nomberg], 46 NY2d 623, 630 [1979]).

Only the public policy grounds for vacatur are at issue here. The two-prong test for determining whether an arbitration award violates public policy consists of: (1) “where a court can conclude without engaging in any extended fact-finding or legal analysis that a law prohibits, in an absolute sense, the particular matters to be decided by arbitration, an arbitrator cannot act,” and (2) “an arbitrator cannot issue an award where the award itself violates a well-defined constitutional, statutory or common law of this State” (Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003] [punctuation and citation omitted]).

Here, we cannot say with or without extended legal analysis that the law prohibits arbitration of liability concerning contributions to a public employees’ retirement fund. Though Civil Service Law § 201 (4) and Retirement and Social Security Law § 470 prohibit negotiation of retirement benefits, the statutes say nothing about whether grievances regarding contributions to the New York State Policemen’s and Firemen’s Retirement System are arbitrable.

Nor does the award on its face violate a “well-defined” law of this state. The arbitrator decided that firefighters hired after the effective date of the 2009 retirement law amendment (Retirement and Social Security Law art 22) were permitted to elect a noncontributory plan as enumerated in the CBA and its predecessors dating back to 1993. The Court concludes that the arbitration award must be vacated because the City cannot be obligated to pay the 3% pension contribution on behalf of the newly hired Oswego firefighters. The majority’s rule cannot be described as a “well-defined” law of this state. Public employees have participated in noncontributory pension plans for years and continue to do so under existing CBAs. Only because of today’s ruling in Matter of Yonkers has that rule changed for certain firefighters. Moreover, the courts have long been called upon to refrain from interference with arbitration, even where the arbitrator has committed an error of law or of fact (see Matter of Weinrott [Carp], 32 NY2d 190, 194 [1973]). Here, at most, even if we were to accept the majority’s untenable reading of the statutory language, it would just mean that the arbitrator made a legal error, which is unquestionably not a basis for vacating the award. Since the arbitrator’s award does not conflict with a well-defined rule of law, the City cannot meet the high bar of showing that vacatur of the arbitration award is warranted.

Therefore, I respectfully dissent.

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

Order reversed, with costs, and the petition to vacate the arbitration award granted, in a memorandum.


text:
    In the Matter of Amerriah S. Administration for Children’s Services, Respondent; Chris S., Appellant, et al., Respondent. (And Two Other Proceedings.)
    Submitted January 7, 2013;
    decided April 2, 2013
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from, affirming the Family Court fact-finding order, does not finally determine the proceeding within the meaning of the Constitution. The final paper in this proceeding was the Family Court dispositional order.


text:
    Randy Bond, Appellant-Respondent, v Daniel Giebel et al., Defendants. Progressive Insurance Company, Proposed Intervenor-Respondent-Appellant. (And Another Action.)
    Submitted January 28, 2013;
    decided April 2, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not grant a new trial or hearing within the meaning of CPLR 5601 (c) (see Arthur Karger, Powers of the New York Court of Appeals § 8:3 at 258 [3d ed rev]). Motions for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    Gail Cave, Appellant, v Riverbend Homeowners Association, Inc., et al., Respondents, et al., Defendant.
    Submitted February 25, 2013;
    decided April 2, 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:
    Hamlet at Willow Creek Development Co., LLC, et al., Respondents, v Northeast Land Development Corporation, Respondent, and Pav-Co Asphalt, Inc., et al., Appellants, et al., Defendant. (And a Third-Party Action.)
    Submitted February 19, 2013;
    decided April 2, 2013
   Motion for leave to appeal, insofar as made by William Fehr, dismissed upon the ground that he is not a party aggrieved; motion for leave to appeal otherwise 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:
    Philip F. Hanlon, Appellant, v Michael D. Healy, Respondent.
    Submitted February 11, 2013;
    decided April 2, 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:
    O. Aldon James, Jr., et al., Appellants, v The National Arts Club et al., Respondents.
    Submitted February 19, 2013;
    decided April 2, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Read taking no part.


text:
    The People of the State of New York, Respondent, v Western Express International, Inc., et al., Defendants, and Douglas Latta et al., Appellants.
    Decided April 2, 2013
   Appeal dismissed, -without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie. The terms of this Court’s remittitur were not violated [see 19 NY3d 652 (2012)].


text:
    The People of the State of New York ex rel. Hilary Best, Appellant, v Ann Marie Barbarotta, Respondent.
    Submitted February 25, 2013;
    decided April 2, 2013
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for a stay dismissed as academic.


text:
    In the Matter of Kenneth Robinson, Appellant, v Jeffrey Arlen Spinner et al., Respondents.
    Decided April 2, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Marlene Scher, Appellant, v Paramount Pictures Corp. et al., Respondents.
    Submitted March 4, 2013;
    decided April 2, 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:
    Philip Seldon, Appellant, v Andrew Spinnell, Respondent.
    Submitted March 4, 2013;
    decided April 2, 2013
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 20 NY3d 857 (2013)]. Cross motion for the imposition of sanctions denied.

Judge Rivera taking no part.


text:
    Wells Fargo, N.A., Doing Business as Americas Servicing Company, Respondent, v Ofra Levin, Appellant, et al., Defendants.
    Submitted February 25, 2013;
    decided April 2, 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:
    [988 NE2d 507, 965 NYS2d 771]
    The People of the State of New York, Respondent, v Marvin Byer, Appellant.
    Argued March 18, 2013;
    decided April 25, 2013

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (Bruce D. Austern of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Justin J. Braun, Joseph N. Ferdenzi and Nancy D. Killian of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant claims that his federal and state constitutional rights to a fair trial were violated by the admission of prejudicial evidence. At his trial for murder, arising from the multiple stabbing of his girlfriend’s female friend and the subsequent dismemberment of her body, a police detective testified that during the course of defendant’s initial statement, he told the detective that this was not his first body and that there were nine others. At another point in the trial, the victim’s nephew testified that the victim told him that the defendant had threatened to “cut her up.” Additionally, a social worker testified that defendant’s live-in girlfriend (deceased by virtue of natural causes by the time of trial) had told the social worker about defendant’s history of domestic violence. On the record before us, we find that any errors made were harmless because they did not taint the fairness of the trial and evidence of defendant’s guilt was overwhelming.

The erroneous admissions, if any, did not rise to the level of a constitutional injury such as ineffectiveness of counsel or juror partiality (see People v Arafet, 13 NY3d 460, 467-468 [2009] [erroneous admission of prior bad conduct/crime was subject to nonconstitutional harmless error analysis]; see also People v Mateo, 2 NY3d 383, 399 [2004] [admission of defendant’s statements about his commission of three other murders did not mandate reversal of the conviction]).

Errors of law of nonconstitutional magnitude may be found harmless where “the proof of the defendant’s guilt, without reference to the error, is overwhelming” and where there is no “significant probability . . . that the jury would have acquitted the defendant had it not been for the error” (People v Crimmins, 36 NY2d 230, 241-242 [1975]). Here, the jury heard overwhelming evidence of defendant’s guilt and there was no probability that defendant would have been acquitted had this evidence been excluded.

The overwhelming evidence against defendant included three statements to police, confessing in detail to the crime—including the placement of stab wounds on the victim’s body—about which no specifics were disclosed prior to defendant’s confession. These statements were corroborated by forensic evidence including blood stains in the apartment and dismembered body parts in plastic bags strewn around the neighborhood. Although defendant testified that he falsely confessed out of love, to protect his girlfriend, such a story was utterly incredible. At the time of the murder the girlfriend was on dialysis, debilitated and too weak physically to have repeatedly and fatally stabbed the obese decedent. Nor was there any conceivable motive explaining why the girlfriend would have attacked the victim, a close friend and protector. By contrast, defendant’s confession made his own motive clear: the girlfriend had told him earlier in the day that she wanted to end their relationship and he vented his rage on her friend, the victim, who he thought was interfering in the relationship.

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

Order affirmed, in a memorandum.

       The reference to the nine bodies was not part of defendant’s subsequent signed or videotaped statements. The court instructed the police detective to mention the portion of the statement about the nine bodies only once during his testimony, instructed the jury to consider the statement about the nine bodies only as it related to the voluntariness of defendant’s confession, and reiterated that instruction in its final charge to the jury. Significantly, the prosecutor did not mention the statement during her summation.


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

text:
    [988 NE2d 511, 965 NYS2d 775]
    Teresa Sanchez, Appellant, v National Railroad Passenger Corp., Doing Business as Amtrak, Respondent, et al., Defendant.
    Argued March 21, 2013;
    decided April 25, 2013
    APPEARANCES OF COUNSEL

      Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), for appellant.

      Jeffrey Samel & Partners, New York City (David Samel of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Most personal injury claims are governed by a three-year statute of limitations (see CPLR 214 [5]). Plaintiff has alleged that she was injured while working at Penn Station on February 10, 2005. She commenced this negligence action against defendant National Railroad Passenger Corp. (Amtrak) and another entity on February 6, 2008. Amtrak responded with an affidavit by plaintiffs supervisor and purported business documents indicating that the accident occurred on February 5, 2005. Based on that evidence, Amtrak moved for summary judgment dismissing the complaint on the ground that plaintiffs action was filed one day after the limitations period expired. Plaintiff, in turn, relied on the facts asserted in her complaint and bill of particulars. Both pleadings were verified by plaintiff and she attested in her bill of particulars that the accident happened “on February 10, 2005 at or about 2:30 p.m.” Additionally, plaintiff submitted records pertaining to her workers’ compensation claim, all of which listed February 10, 2005 as the date of the incident.

Supreme Court granted Amtrak’s motion and dismissed the complaint. The Appellate Division affirmed, concluding that the assertions in plaintiffs verified pleadings were insufficient to refute Amtrak’s proof that the accident date was February 5, 2005 (see 92 AD3d 600 [1st Dept 2012]). Two dissenting Justices would have denied summary judgment because the verified pleadings raised an issue of fact regarding the date plaintiff sustained her injuries. Plaintiff now appeals as of right.

We agree with the dissenting Justices that summary judgment is not warranted. Although Amtrak tendered sufficient evidence to establish a prima facie showing of its entitlement to judgment as a matter of law based on the expiration of the statute of limitations (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), plaintiff proffered sufficient proof of a material issue of fact as to the date of injury. CPLR 105 (u) allows the verified complaint and bill of particulars to be considered as affidavits (see e.g. Travis v Allstate Ins. Co., 280 AD2d 394, 394-395 [1st Dept 2001]). In those documents, plaintiff specifically recalled that she was injured on February 10, 2005, which would render this case timely commenced. The conflicting proof pertaining to the incident date presents a question of fact that cannot be resolved in the context of a summary judgment motion. Consequently, Amtrak’s motion must be denied and plaintiff is entitled to reinstatement of the complaint.

Smith, J. (dissenting).

I would affirm the Appellate Division’s order. The record, read as a whole, does not present a genuine issue of fact as to the date of the accident. While plaintiff’s complaint alleged a February 10 accident date, plaintiff admitted at her deposition that she did not remember what day the accident happened. Thus, she failed to show that she could present proof, admissible at trial, that it happened on February 10.

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

Order reversed, with costs, and plaintiff’s complaint reinstated, in a memorandum.


text:
    [988 NE2d 505, 965 NYS2d 770]
    The People of the State of New York, Respondent, v Daniel Floyd, Appellant.
    Decided April 25, 2013

      APPEARANCES OF COUNSEL

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

      Charles J. Hynes, District Attorney, Brooklyn (Rhea A. Grob of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was convicted of second degree felony murder, second degree manslaughter, and second degree criminal possession of a weapon for murdering Leon Hill during the robbery of an underground dice game. Before jury selection, defense counsel informed the judge that defendant’s mother was waiting outside, unable to find a seat in the courtroom. Defense counsel observed, “[c]ertainly, as a public spectator, she has an absolute right to be present ... I can’t think of anything else at this particular point about which I might make a record.”

The trial judge informed defense counsel that because the jury panel was larger than normal, defendant’s mother would need to wait outside the courtroom until he could excuse jurors to create room. Defense counsel replied “right” and informed defendant’s mother.

The Appellate Division found that defendant failed to preserve his objection to his mother’s exclusion from the courtroom and otherwise upheld his convictions (People v Floyd, 95 AD3d 1138, 1139 [2d Dept 2012]). We reverse.

Defendants have a constitutional right to a “public trial” (US Const Amend VI; Presley v Georgia, 558 US 209, 211-214 [2010]). Mere courtroom overcrowding is not an overriding interest justifying courtroom closure, and the trial judge failed to consider reasonable alternatives before excluding defendant’s mother from the courtroom (People v Alvarez, 20 NY3d 75 [2012]; People v Martin, 16 NY3d 607, 612 [2011]). This violation is per se prejudicial and requires a new trial (Martin, 16 NY3d at 613).

Defense counsel properly preserved his objection by raising the issue to the trial court when given the opportunity to “make a record” before jury selection. His statements “unquestionably apprised” the trial judge of the constitutional rights at issue and the obligation to consider reasonable alternatives (People v Garcia, 95 NY2d 946 [2000]).

Chief Judge Lippman and Judges Gkaffeo, Read, Smith, Pigott and Rivera 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 a new trial ordered, in a memorandum.


text:
    Tiffany Applewhite et al., Respondents, v Accuhealth, Inc., et al., Defendants, and City of New York, Appellant.
    Submitted April 22, 2013;
    decided April 25, 2013
   Motion by New York State Conference of Mayors and Municipal Officials for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Julian Arrendal, Plaintiff, v Trizechahn Corporation et al., Defendants. Trizechahn Corporation, Third-Party Plaintiff-Appellant, v Subway Real Estate Corp., Third-Party Defendant-Respondent and Third Third-Party Plaintiff-Respondent. Kashif D. Creary et al., Third Third-Party Defendants-Respondents.
    Submitted March 4, 2013;
    decided April 25, 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:
    Jeana Barenboim et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent. Eugene Winans et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, et al., Plaintiff, v Starbucks Corporation, Respondent.
    Submitted April 22, 2013;
    decided April 25, 2013
   Motion by New York State Restaurant Association, Inc. for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    In the Matter of Joel R. Brandes, a Disbarred Attorney.
    Decided April 25, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved. Judiciary Law § 90 (8) does not provide an independent predicate for an appeal as of right to the Court of Appeals.


text:
    In the Matter of Oleg Cassini, Deceased. Christina Cassini, Respondent; Marianne Nestor Cassini, Appellant.
    Submitted January 7, 2013;
    decided April 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:
    John Doe, Appellant, v Guthrie Clinic, Ltd., et al., Respondents.
    Decided April 25, 2013
   Certification of a 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 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 and Rivera.


text:
    In the Matter of Anthony C. Donofrio, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided April 25, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question. Judiciary Law § 90 (8) does not provide an independent predicate for an appeal as of right to the Court of Appeals.


text:
    Nadia Dos Santos et al., Appellants, v Power Authority of the State of New York, Respondent, et al., Defendant.
    Submitted March 4, 2013;
    decided April 25, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 856 (2013)].

Judge Rivera taking no part.


text:
    EBC I, Inc., Formerly Known as eToys Inc., Appellant, v Goldman Sachs & Co., Respondent.
    Submitted April 22, 2013;
    decided April 25, 2013
   Motion by Securities Industry and Financial Markets Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Maria Gonzales et al., Respondents, v Ihay Zinner et al., Respondents. Esquire Group Estates, LLC, et al., Intervenors-Appellants. (And Another Action.)
    Submitted March 4, 2013;
    decided April 25, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of 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 Shawn Green, Appellant, v Brian Fischer, as Commissioner of Corrections and Community Supervision, Respondent.
    Submitted February 4, 2013;
    decided April 25, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 855 (2013)].

Judge Rivera taking no part.


text:
    In the Matter of the Claim of Patricia Keane, Appellant. Commissioner of Labor, Respondent.
    Submitted February 19, 2013;
    decided April 25, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 854 (2012)].

Judge Rivera taking no part.


text:
    M & C Brothers, Inc., Respondent, v Bradley W. Torum et al., Defendants. Tatiana Neroni, Esq., Nonparty Appellant.
    Decided April 25, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge Lippman taking no part.


text:
    Nella Manko, Appellant, v Elton Strauss et al., Respondents, et al., Defendants.
    Submitted January 22, 2013;
    decided April 25, 2013
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as denied appellant’s motion to renew her prior motion for poor person relief and for the assignment of counsel, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Nella Manko, Appellant, v Shorefront Apartments, LLC, et al., Respondents.
    Submitted March 4, 2013;
    decided April 25, 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Paul Murphy, Respondent, v New York State Division of Housing and Community Renewal, Appellant, and SouthBridge Towers, Inc., Respondent.
    Submitted April 15, 2013;
    decided April 25, 2013
   Motion by City 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. Two copies of the brief must be served and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Jesse Abner, Appellant.
    Submitted April 15, 2013;
    decided April 25, 2013
   Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Alfredo Ariosa, Appellant.
    Submitted April 15, 2013;
    decided April 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, Respondent, v Todd Johnson, Appellant.
    Submitted March 25, 2013;
    decided April 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.


text:
    The People of the State of New York, Respondent, v Ray Lam, Appellant.
    Submitted April 8, 2013;
    decided April 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.


text:
    The People of the State of New York, Respondent, v Anthony Lewis, Appellant.
    Submitted April 15, 2013;
    decided April 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.


text:
    The People of the State of New York, Respondent, v Christopher Martinez, Appellant.
    Submitted April 22, 2013;
    decided April 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.


text:
    The People of the State of New York, Respondent, v Terence McCray, Appellant.
    Submitted April 8, 2013;
    decided April 25, 2013
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12054 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Frederick Pagan, Appellant.
    Submitted April 15, 2013;
    decided April 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, Respondent, v James Pearson, Appellant.
    Submitted March 4, 2013;
    decided April 25, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]).


text:
    The People of the State of New York, Respondent, v Thomas Riley, Appellant.
    Decided April 25, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York, Respondent, v John Rossi, Appellant.
    Submitted March 25, 2013;
    decided April 25, 2013
   Motion for assignment of counsel granted and Jillian S. Harrington, Esq., PO Box 6006, Monroe, New Jersey 08831 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Said Gssime, Appellant, v Daniel F. Martuscello Jr., as Superintendent of Coxsackie Correctional Facility, Respondent.
    Submitted March 4, 2013;
    decided April 25, 2013
   Motion for reconsideration of this Court’s January 15, 2013 dismissal order denied [see 20 NY3d 1005 (2013)].

Judge Rivera taking no part.


text:
    In the Matter of the Claim of David Wyche, Appellant. Commissioner of Labor, Respondent.
    Submitted February 11, 2013;
    decided April 25, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 967 (2012)].

Judge Rivera taking no part.


text:
    [989 NE2d 6, 966 NYS2d 744]
    Timothy A. Roulan, Appellant, v County of Onondaga et al., Respondents.
    Argued March 18, 2013;
    decided April 30, 2013

      APPEARANCES OF COUNSEL

      Jeffrey R. Parry, Fayetteville, for appellant.

      Bond, Schoeneck & King, PLLC, Syracuse (Jonathan B. Fellows and Suzanne M. Messer of counsel), for respondents.

      Alfred O’Connor, Albany, for New York State Defenders Association, amicus curiae.

      New York Civil Liberties Union Foundation, New York City (Mariko Hirose, Alexis Karteron, Christopher Dunn and Arthur Eisenberg of counsel), for New York Civil Liberties Union, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

Article 18-B of the County Law requires each county to put in place a plan for making counsel available to indigent persons entitled to the appointment of counsel, principally criminal defendants. County Law § 722 provides several options for counties to fulfill this obligation, including ‘‘furnishing counsel] pursuant to ... a plan of a bar association” (see County Law § 722 [3]). To this end, Onondaga County has contracted with the Onondaga County Bar Association Assigned Counsel Program, Inc. (ACP) to administer “a plan of a bar association,” which is set out in ACP’s Handbook of Policies, Rules and Procedures (the ACP Plan or the Plan). The ACP Plan calls for creation and maintenance of panels of attorneys who have agreed to its terms. Courts throughout Onondaga County may appoint attorneys from these panels to represent qualifying indigent persons. These attorneys, in turn, submit vouchers for their services to ACT] which reviews the vouchers and forwards them to the appropriate trial court judge for approval.

On April 29, 2008, plaintiff Timothy A. Roulan, an attorney then participating in the ACP Plan, brought suit against defendants Onondaga County and ACT] asserting 10 causes of action— nine for money damages and one for a declaratory judgment. In essence, plaintiff contended that defendants did not pay him as much as he was entitled to receive in the cases to which he was assigned pursuant to the Plan, and so he sought money damages to make up the alleged shortfalls; further, he requested a declaration that the ACP Plan’s “rules and regulations are ultra vires, illegal and a nullity” because, as one example, they usurped the authority of trial judges under County Law § 722 to fix assigned counsel’s compensation.

By order entered October 5, 2010, Supreme Court granted defendants summary judgment dismissing plaintiffs complaint in its entirety (2010 NY Slip Op 33031[U] [2010]). On appeal, plaintiff only sought review of the disposition of his claim for declaratory relief—i.e., he abandoned his claims for money damages. In December 2011, the Appellate Division, with two Justices partially dissenting, upheld the ACP Plan’s validity with one exception (see 90 AD3d 1617 [4th Dept 2011]). Plaintiff now appeals to us by virtue of the two-Justice dissent (see CPLR 5601 [a]).

As an initial matter, plaintiff lacks standing to challenge how the ACP Plan deals with the provision of counsel to unemancipated minors in adult criminal court (generally, he objects to section A under the heading “Assignment by Court and Client Eligibility,” which requires consideration of the minor’s parents’ financial resources), and the assignment of attorneys who were retained by a client who later becomes indigent (section C [4] under the same heading). As amicus curiae New York State Defenders Association points out, plaintiff was never a minor charged with a crime in Onondaga County; nor was he the parent of one. As defendants add, plaintiff has not “cite[d] an example of any case in which he was assigned to represent a minor and was later forced to withdraw because the client’s parents would not provide financial information” called for under the Plan. Similarly, plaintiff did not cite a single case in which he (or anyone else, for that matter) unsuccessfully sought to be assigned to represent a client in a case where he had previously been privately retained.

Plaintiff disapproves of these sections of the ACP Plan, which, at least in theory and as he interprets them, may have caused him to be assigned fewer cases. But personal disagreement and speculative financial loss are insufficient to confer standing (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773-774 [1991] [standing to sue requires injury in fact which is distinct from the general public and falls within the zone of interests protected by the statute at issue]). Because plaintiff lacks standing, the Appellate Division should not have issued any declaration as to the validity of these provisions or features of the Plan.

Finally, we have examined plaintiffs remaining claims and consider them to be without merit. In particular, the ACP Plan does not take away from the courts the ultimate authority to determine assigned counsel’s compensation; it merely provides for a preliminary review and recommendation, which individual trial judges are free to accept or reject.

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

Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.

       The Appellate Division declared section D (2) of the ACP Plan under the heading “Assignment by Court and Client Eligibility” to be invalid, and defendants do not cross-appeal to contest this declaration. The dissenters disagreed with the majority only insofar as they would have also declared invalid section C (4) under the same heading, which is discussed later.

        (n. cont’d)


text:
    Ronald Alleva, Plaintiff, v United Parcel Service, Inc., Defendant and Third-Party Plaintiff-Respondent, et al., Defendants. Pitt Investigations, Inc., Third-Party Defendant-Appellant.
    Submitted March 25, 2013;
    decided April 30, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Robert Cabeza, Appellant, v New York City Police Department, Respondent.
    Submitted March 18, 2013;
    decided April 30, 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:
    Gary Cruz et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v TD Bank, N.A., Respondent. Geraldo F. Martinez et al., Individually and on Behalf of All Others Similarly Situated, Appellants, v Capital One Bank, N.A., Respondent.
    Decided April 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 and Rivera.


text:
    In the Matter of James Curry, Appellant, v Andrea Evans, as Chair of the Division of Parole, et al., Respondents.
    Decided April 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:
    In the Matter of Shawn G. Granger, Respondent, v Danielle D. Misercola, Appellant.
    Submitted March 11, 2013;
    decided April 30, 2013
   Motion to strike addendum to respondent’s brief and references thereto in respondent’s brief granted.


text:
    Nella Manko, Appellant, v Bernard H. Broome et al., Respondents.
    Submitted March 4, 2013;
    decided April 30, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Nella Manko, Appellant, v Bernard H. Broome et al., Defendants, and Professional Evaluation Group, Inc., Respondent.
    Submitted March 4, 2013;
    decided April 30, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic. Cross motion to hold appellant in contempt denied.


text:
    In the Matter of Kevin Martin, Appellant, v Teresa Tate, Respondent.
    Submitted March 18, 2013;
    decided April 30, 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:
    James L. Melcher, Appellant, v Greenberg Traurig, LLP, et al., Respondents.
    Submitted February 25, 2013;
    decided April 30, 2013
   Motion to dismiss appeal denied.


text:
    In the Matter of New York State Health Facilities Association, Inc., on Behalf of its Member Residential Health Care Facilities, Appellant, v James G. Sheehan, as Medicaid Inspector General of the State of New York, et al., Respondents.
    Submitted March 18, 2013;
    decided April 30, 2013
   Motion by LeadingAge New York for leave to appear amicus curiae on the motion for leave to appeal herein granted, and the memorandum of law is accepted as filed.


text:
    The People of the State of New York, Respondent, v Wayne James, Also Known as Carl Wayne James, Appellant.
    Submitted February 25, 2013;
    decided April 30, 2013
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The People of the State of New York ex rel. Rafael Rodriguez, Appellant, v William Lee, Respondent.
    Submitted March 18, 2013;
    decided April 30, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 861 (2013)].

Judge Rivera taking no part.


text:
    In the Matter of the Estate of Gary M. Phillips, Deceased. Kelly E. Heberlein, as Executor of Gary M. Phillips, Deceased, Respondent; Cheril M. Eberth et al., Respondents; Lorrie MacDiarmid, Appellant.
    Submitted March 18, 2013;
    decided April 30, 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:
    Alice Putney et al., Appellants, v The People of the State of New York, Acting By and Through the Power Authority of the State of New York, et al., Respondents.
    Submitted February 25, 2013;
    decided April 30, 2013
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from Supreme Court’s order denying reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Scott VV., Respondent, v Joy VV., Appellant.
    Submitted March 4, 2013;
    decided April 30, 2013
   Motion for leave to appeal denied. Motion for poor person relief and a stay dismissed as academic.


text:
    In the Matter of Town of North Hempstead, Appellant, v County of Nassau et al., Respondents.
    Decided April 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:
    Uniformed Fire Officers Association, Local 854, et al., Respondents, v City of New York, Appellant.
    Submitted March 18, 2013;
    decided April 30, 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:
    Wendy Webb-Weber, Appellant, v Community Action for Human Services, Inc., et al., Respondents, et al., Defendants.
    Submitted February 19, 2013;
    decided April 30, 2013
   Motion to enlarge the record on appeal granted.


text:
    [988 NE2d 1285, 966 NYS2d 773]
    The People of the State of New York, Respondent, v Earl Bell, Jr., Appellant.
    Decided May 2, 2013

      APPEARANCES OF COUNSEL

      Alex Smith, Middletown, for appellant.

      Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass 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 modified by reducing defendant’s conviction of depraved indifference murder in the second degree to manslaughter in the second degree and remitting to County Court, Orange County, for resentencing and, as so modified, affirmed (see People v Bussey, 19 NY3d 231 [2012]).

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


text:
    [989 NE2d 560, 967 NYS2d 322]
    Robert Bloomer, Appellant, v Christine M. Shauger, Respondent.
    Argued March 21, 2013;
    decided May 2, 2013
    APPEARANCES OF COUNSEL

      Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (John G. Rusk of counsel), for appellant.

      Law Offices of Theresa J. Puleo, Syracuse (P. David Twichell of counsel), for respondent.
   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.

Plaintiffs hand was injured because, while plaintiff was holding the halter of defendant’s horse, the horse jerked her head back. According to plaintiff, the horse was reacting to an attempt by defendant to put a lead line on the horse.

Under the rule of Bard v Jahnke (6 NY3d 592 [2006]), plaintiff cannot recover in the absence of a showing that defendant had knowledge of the animal’s “vicious propensity” or “propensity to do any act that might endanger the safety of the persons and property of others” (6 NY3d at 596-597, quoting Collier v Zambito, 1 NY3d 444, 446 [2004]). No such showing was made here. A tendency to shy away when a person reaches for a horse’s throat or face is, as the record shows, a trait typical of horses. The Appellate Division correctly held that a vicious propensity cannot consist of “behavior that is normal or typical for the particular type of animal in question” (Bloomer v Shauger, 94 AD3d 1273, 1275 [2012]).

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

Order affirmed, with costs, and certified question not answered on the ground that it is unnecessary, in a memorandum.


text:
    [988 NE2d 1285, 966 NYS2d 773]
    Arpi Koulajian, Appellant, v Tamara Smith et al., Respondents.
    Decided May 2, 2013

      APPEARANCES OF COUNSEL

      Law Office of Robert F. Danzi, Westbury (Robert F. Danzi of counsel), for appellant.

      DeSena & Sweeney, LLP, Bohemia (Shawn P. O’Shaughnessy of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs. The Appellate Division correctly held that defendants were entitled to summary judgment.

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


text:
    Jeana Barenboim et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent. Eugene Winans et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent.
    Submitted April 29, 2013;
    decided May 2, 2013
   Motion by UNITE HERE! Local 100, Align: Alliance for a Greater New York et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Jeana Barenboim et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent. Eugene Winans et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v Starbucks Corporation, Respondent.
    Submitted April 29, 2013;
    decided May 2, 2013
   Motion by the New York City Hospitality Alliance for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    In the Matter of Sharon K. Bland, Appellant, v Gellman, Brydges & Schroff et al., Respondents. Workers’ Compensation Board, Respondent. (And Another Proceeding.)
    Submitted April 1, 2013;
    decided May 2, 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:
    Theresa Devito, Appellant, v Dennis Feliciano et al., Respondents.
    Submitted April 29, 2013;
    decided May 2, 2013
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Roger Forbes, Appellant, v State of New York, Respondent.
    Submitted April 1, 2013;
    decided May 2, 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:
    Golden City Commercial Bank, Plaintiff, v 207 Second Avenue Realty Corp. et al., Defendants. Michael G. Zapson, as Temporary Receiver of the Rents and Profits of 207 Second Avenue, New York, New York, Nonparty Respondent; Janet Chang, as Successor in Interest, Nonparty Appellant.
    Submitted April 8, 2013;
    decided May 2, 2013
   Motion for reargument denied [see 20 NY3d 1056 (2013)].


text:
    In the Matter of Charles Goodacre, 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 Pensions Fund, Article II, et al., Respondents.
    Submitted April 1, 2013;
    decided May 2, 2013
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 20 NY3d 860 (2013)].


text:
    Nassau County, Appellant, v Metropolitan Transportation Authority et al., Respondents.
    Submitted March 25, 2013;
    decided May 2, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s denial of appellant’s motion for renewal, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Theophilus Y. Ojuola, Appellant, v New York State Division of Human Rights, Respondent.
    Submitted April 1, 2013;
    decided May 2, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 1032 (2013)]. Motion for poor person relief dismissed as academic.

Judge Rivera taking no part.


text:
    The People of the State of New York, Respondent, v Oliverio Galindo, Appellant.
    Submitted April 29, 2013;
    decided May 2, 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, Appellant-Respondent, v Hazel E. Gordon, Respondent-Appellant.
    Submitted April 29, 2013;
    decided May 2, 2013
   Motion for assignment of counsel granted and Aaron A. Louridas, Esq., 25 Egmont Court, Delmar, New York 12054 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Calvin Lee, Appellant, v William A. Lee, Respondent.
    Submitted March 25, 2013;
    decided May 2, 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:
    John Peters, Respondent, v New School, Appellant.
    Submitted March 25, 2013;
    decided May 2, 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:
    Nandkumar Ramkumar, Appellant, v Grand Style Transportation Enterprises Inc. et al., Respondents. Grand Style Transportation Enterprises Inc. et al., Third-Party Plaintiffs-Respondents, v Georgina D. Castillo, Third-Party Defendant-Respondent.
    Submitted April 29, 2013;
    decided May 2, 2013
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Submitted March 18, 2013;
    decided May 2, 2013
   Motions for reargument denied [see 20 NY3d 407 (2013)].

Judge Rivera taking no part.


text:
    [989 NE2d 966, 967 NYS2d 684]
    Mark A. Prine, Appellant, v Adam M. Santee, Appellant, and Anna Torres, Respondent, et al., Defendant.
    Decided May 7, 2013

      APPEARANCES OF COUNSEL

      Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of counsel), for Mark A. Prine, appellant.

      Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Katelyn E. Dieffenderfer and Scott R. Orndoff of counsel), for Adam M. Santee, appellant.

      Law Office of Daniel R. Archilla, Buffalo (Jill Z. Florkowski of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Viewing the evidence in a light most favorable to plaintiff Mark A. Prine and defendant Adam M. Santee (see e.g. Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]), defendant Anna Torres demonstrated her entitlement to summary judgment dismissing the complaint and all cross claims against her. The nonmoving parties failed to raise a triable issue of fact as to whether Torres’s actions as the lead driver in this four-vehicle-chain-reaction accident constituted a contributing cause of the collision (cf. Tutrani v County of Suffolk, 10 NY3d 906, 907-908 [2008]).

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

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


text:
    [990 NE2d 125, 967 NYS2d 887]
    The People of the State of New York, Respondent, v Tyrone Prescott, Appellant.
    Argued March 21, 2013;
    decided May 7, 2013

      APPEARANCES OF COUNSEL

      Gleason, Dunn, Walsh & O’Shea, Albany (Thomas F. Gleason of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers and Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s application for a writ of error coram nobis granted, the Appellate Division’s October 2009 order of affirmance vacated, and the case remitted to the Appellate Division for a de novo determination of the appeal to that Court.

Defendant Tyrone Prescott alleges that he was denied effective assistance of counsel due to an unwaived actual conflict of interest occasioned by his appellate counsel’s representation of defendant’s codefendant, Calvin Martin, at Martin’s sentencing hearing. The People concede the simultaneous representation, but maintain that it is legally inconsequential because it was of a relatively short duration, appellate counsel did not represent Martin by the time defendant’s appeal was perfected, and because it did not operate on defendant’s direct appeal. We disagree.

Defendant retained counsel to represent him on his appeal from his conviction for gang assault, but without defendant’s knowledge or consent, this same counsel represented codefendant Martin at Martin’s sentencing hearing. Martin had served as a prosecution witness, and testified against defendant. At the sentencing hearing, counsel argued for leniency, in part, because of Martin’s cooperation with the prosecution and testimony adverse to defendant.

Counsel thereafter represented defendant on his appeal, wherein he argued that the weight of the evidence did not support the conviction, and specifically sought to discredit codefendant Martin. Counsel argued before the Appellate Division that the Court should reject Martin’s testimony as the words of an admitted liar, who sought to gain from his “incredible” testimony against defendant. Counsel never informed defendant, or the court, that he represented Martin. Nor did he provide defendant the transcript of Martin’s sentencing hearing, even after defendant contacted counsel and inquired as to whether comments at the hearing revealed that Martin lied on the stand. The Appellate Division affirmed defendant’s conviction (66 AD3d 1357 [4th Dept 2009], lv denied 13 NY3d 909 [2009]).

Defendant subsequently learned of his appellate counsel’s representation of Martin and moved for a writ of error coram nobis. The Appellate Division denied the motion for the writ (87 AD3d 1413 [4th Dept 2011]), and a Judge of this Court granted defendant leave to appeal (19 NY3d 866 [2012]).

It is undisputed that appellate counsel represented defendant and his codefendant simultaneously, that appellate counsel argued at Martin’s sentencing hearing for leniency based on Martin’s trial testimony adverse to the defendant, and that defendant neither knew nor had the opportunity to waive any conflict arising from appellate counsel’s representation of defendant and Martin. Under these circumstances, an actual unwaived conflict existed.

An attorney may not simultaneously represent a criminal defendant and a codefendant or prosecution witness whose interests actually conflict unless the conflict is validly waived (see People v Solomon, 20 NY3d 91, 96-97 [2012]; People v Macerola, 47 NY2d 257, 264 [1979]). Simultaneous representation of two clients with conflicting interests means the lawyer “cannot give either client undivided loyalty” (People v Ortiz, 76 NY2d 652, 656 [1990]). Counsel has the duty to inform the client and the court so that the court may ascertain the nature of the conflict and give the client an opportunity to waive it (see People v Wandell, 75 NY2d 951, 952 [1990]; People v Gomberg, 38 NY2d 307, 313-314 [1975]), if indeed it is waivable (People v Carncross, 14 NY3d 319, 328 [2010]).

Here, counsel represented defendant on appeal, and at the same time represented codefendant Martin at Martin’s sentencing hearing. Appellate counsel’s arguments at the sentencing hearing, where counsel argued for leniency based on the codefendant’s cooperation with the prosecution and testimony against defendant, were in direct conflict with his strategy on defendant’s appeal, which depended on discrediting the testimony of the codefendant. Thus, the interests of defendant and codefendant Martin were conflicting.

The conflict is no less significant, nor defendant’s ineffective assistance of counsel claim rendered any less meritorious, because appellate counsel’s representation of Martin ended prior to completion of defendant’s representation. The successive representation concerned substantially related matters, but depended on mutually incompatible legal strategies, which undermined appellate counsel’s loyalties. Moreover, conflicts arise even in cases of successive representation because “[e]ven though a representation has ended, a lawyer has continuing professional obligations to a former client, including the duty to maintain that client’s confidences and secrets (People v Alicea, 61 NY2d 23, 29 [1983]), which may potentially create a conflict between the former client and a present client” (Ortiz, 76 NY2d at 656). Holding otherwise would render an ineffective assistance of counsel claim based on conflict meaningless if the conflicted counsel could merely terminate representation of one party while continuing to represent another.

On these facts, where appellate counsel failed to apprise defendant of this conflict prior to or during the appeal process, in disregard of his duty to his client, and where defendant did not waive the conflict, the writ should be granted.

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

Order reversed, defendant’s coram nobis application granted, the Appellate Division’s October 2009 order of affirmance vacated, and case remitted to the Appellate Division, Fourth Department, for a de novo determination of the appeal to that Court, in a memorandum.


text:
    In the Matter of the Claim of Sophie Ackermann, Appellant. New York City Department of Citywide Administrative Services, Respondent; Commissioner of Labor, Respondent.
    Submitted April 8, 2013;
    decided May 7, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Kimberly Mitchell Converse, Plaintiff, v Dole Food Company, Inc., et al., Respondents, and Leonard’s Express, Inc., Appellant.
    Submitted March 25, 2013;
    decided May 7, 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:
    Pawel Czernicki, Appellant, v Marek Lawniczak, Respondent.
    Submitted April 8, 2013;
    decided May 7, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Raghubir K. Gupta, a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Respondent.
    Submitted April 15, 2013;
    decided May 7, 2013
   Motion for leave to appeal granted. Motion for a stay of so much of the Appellate Division order as suspended appellant from the practice of law granted, without prejudice to an application by petitioner-respondent to the Appellate Division, on notice to appellant, for an interim suspension.


text:
    In the Matter of Thad L. Kempisty, Petitioner, and Michael Kempisty, Appellant, v Town of Geddes et al., Respondents.
    Submitted December 10, 2012;
    decided May 7, 2013
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 19 NY3d 815 (2012)].

Judge Rivera taking no part.


text:
    Nella Manko, Appellant, v Bernard H. Broome et al., Respondents.
    Submitted April 8, 2013;
    decided May 7, 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of New York Times Company et al., Appellants, v City of New York Police Department, Respondent.
    Submitted April 1, 2013;
    decided May 7, 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 Niagara Frontier Transit Metro System, Inc., Respondent, v Amalgamated Transit Union Local 1342 et al., Appellants.
    Submitted April 15, 2013;
    decided May 7, 2013
   Motion by Civil Service Employees Association, Inc. for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Paulina D., Appellant. Charles Barron, as Director of the Department of Psychiatry at Elmhurst Hospital, Respondent.
    Submitted April 22, 2013;
    decided May 7, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    The People of the State of New York, Respondent, v Julio Rodriguez, Appellant.
    Submitted March 4, 2013;
    decided May 7, 2013
   Motion to dismiss appeal denied.


text:
    In the Matter of State of New York, Respondent, v William W., Appellant.
    Decided May 7, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [990 NE2d 129, 967 NYS2d 891]
    In the Matter of Glen R. George, a Justice of the Middletown Town Court, Delaware County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Decided May 30, 2013

      APPEARANCES OF COUNSEL

      Thomas K. Petro, Kingston, for petitioner.

      Robert H. Tembeckjian, New York City, for respondent.
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable Glen R. George is suspended, with pay, effective immediately, from the office of Justice of the Middletown Town Court, Delaware 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.