text:
    [952 NE2d 1026, 929 NYS2d 34]
    The People of the State of New York, Respondent, v Jeffrey D. Gibson, Appellant.
    Argued May 3, 2011;
    decided June 14, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino, Barbara J. Davies and David C. Schopp of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery and Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Jeffrey Gibson was suspected of robbing an Erie County gas station at gunpoint in July 2005. He was subsequently arrested on a bench warrant stemming from an unrelated matter in which his indelible right to counsel had attached by virtue of an attorney’s entry into the case. While incarcerated, defendant asked to speak to a detective he had known for several years. The detective brought defendant from his cell to an office for the conversation.

Hoping to obtain a DNA sample from defendant, the detective brought out a pack of cigarettes and defendant asked to smoke one. The detective obliged and the two men smoked while defendant discussed problems he was having with a landlord. They did not discuss the gas station robbery or any other criminal matter. Eventually, defendant extinguished the cigarette in an ashtray and he was returned to his cell. The detective took possession of the ashtray and the cigarette butt left by defendant.

The DNA from defendant’s saliva was extracted from the cigarette remains and was found to conclusively match the DNA found on an article of clothing that was believed to have been worn by the person who robbed the gas station. Defendant was indicted for the robbery and, following a jury trial, he was convicted of robbery in the first degree. The Appellate Division affirmed (74 AD3d 1700 [4th Dept 2010]) and a dissenting Justice granted leave to appeal (15 NY3d 780 [2010]).

Under the circumstances of this case, the collection of defendant’s DNA while he was in custody did not contravene his indelible right to counsel. The People do not dispute that the attachment of that right precluded the police from questioning defendant about any criminal matter (see People v Burdo, 91 NY2d 146, 150 [1997]). But the detective here did not ask defendant about a criminal case, and his actions — displaying a pack of cigarettes and providing one to defendant at his request — were not reasonably likely to elicit an incriminating response (see e.g. People v Ferro, 63 NY2d 316, 321 [1984], cert denied 472 US 1007 [1985]). The DNA that defendant voluntarily deposited on the cigarette butt was not a “response” or “statement” subject to exclusion under New York’s right to counsel rules because the transfer of bodily fluids was not a communicative act that disclosed “the contents of defendant’s mind” (People v Havrish, 8 NY3d 389, 395 [2007], cert denied 552 US 886 [2007]). Nor did the detective coerce defendant into providing the DNA evidence or subject him to the functional equivalent of an uncounseled decision to consent to a search (see People v Esposito, 68 NY2d 961, 962 [1986]; People v Johnson, 48 NY2d 565, 568-569 [1979]). Rather, defendant initiated the interaction by summoning the detective, requesting a cigarette and abandoning the cigarette butt. Based on these facts, County Court aptly noted that the detective simply “capitalized on the situation that manifested itself through . . . defendant’s own actions.”

Defendant’s remaining contentions, to the extent they are reviewable, lack merit.

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

Order affirmed in a memorandum.

       The People do not contend that defendant’s right to counsel had not been triggered in the matter for which he was in custody when the facts relevant to this appeal occurred (cf People v Lopez, 16 NY3d 375, 385 n 6 [2011]).


source: Caselaw Access Project

license: Public Domain

text:
    [952 NE2d 1022, 929 NYS2d 30]
    The People of the State of New York, Respondent, v Emar Abrams, Appellant.
    Argued May 2, 2011;
    decided June 14, 2011
    APPEARANCES OF COUNSEL

      Emar Abrams, pro se, and Mitchell S. Kessler, Cohoes, for Emar Abrams, appellant.

      Anna E. Remet, Special Prosecutor, Kingston, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On October 12, 2006, Tiffany Abrams and her two young sons were in their Ulster County apartment along with defendant, Emar Abrams, the boys’ father and Tiffany’s estranged husband. Defendant did not live at the apartment, but was supposed to watch the children that day while Tiffany was at work. Tiffany and defendant were “arguing back and forth” when she went into her bedroom to try to fix the “frozen” computer for her older son before she left for work. She sat down in front of the computer monitor as defendant continued to badger her. A shot was fired from behind Tiffany, and a bullet whizzed past her ear, shattering the monitor’s screen and lodging in the bedroom wall. Defendant fled, and Tiffany, with her two children in tow, ran to her sister’s apartment. Tiffany appeared upset and disheveled to her sister; tiny glass shards were visible in her arm. She told her sister that defendant had shot at her. Tiffany’s sister called the police.

Meanwhile, defendant took a taxi to the apartment complex where his girlfriend, Tanisha Torres, resided. After he arrived at the apartment, defendant disappeared into Tanisha’s bedroom and reappeared with a lockbox that she kept there. Defendant gave the lockbox to Tanisha and asked her to “remove” it. Tanisha decided that the safest place for the lock-box would be her parents’ house, so she put the lockbox in a bag and called her mother to come pick her up and take her there. Before hiding the lockbox in the toolshed in her parents’ backyard, Torres looked inside the box and saw a handgun. Tanisha’s mother drove Tanisha back to her apartment, where defendant had remained.

Tanisha’s mother called her husband, Tanisha’s father, who left work to go home and look in the toolshed. He saw that things were “out of place” in the shed — to which apparently only he and Tanisha had a key — discovered the lockbox, pried it open with a crowbar, saw the gun and closed the lockbox back up. Not wanting a gun in the shed, Tanisha’s father tossed the lockbox into the woods, and then told the police where to find the gun. Ballistics testing subsequently determined that the bullet lodged in Tiffany’s bedroom wall was fired from the gun stashed away in the lockbox.

Police set up a barricade at Tanisha’s apartment complex, and defendant was eventually persuaded to surrender. He was arrested and charged with weapon possession crimes, reckless endangerment, menacing and endangering the welfare of a child. Before trial, the newly-elected district attorney, who had previously represented defendant “either on the charges pending before the court or on other charges,” asked County Court to appoint a special prosecutor. County Court granted the motion.

The special prosecutor learned that Tiffany was unwilling to testify and intended to invoke her constitutional privilege against self-incrimination. Just before opening statements, he disclosed the terms of an agreement pursuant to which Tiffany had been granted immunity from prosecution for perjury in the event her trial testimony conflicted with her grand jury testimony. The special prosecutor said that he had granted Tiffany immunity after consulting with the district attorney to see if, as special prosecutor, he was authorized to immunize a witness from prosecution, and obtaining the district attorney’s “permission.” Defendant objected on the ground of the district attorney’s conflict of interest. The trial judge approved the grant of immunity.

The jury convicted defendant of all the counts of the original indictment, except menacing, which was dismissed by the special prosecutor at trial. The trial judge sentenced defendant, a prior felony offender, to determinate prison terms that aggregated to 13½ years, to be followed by five years of postrelease supervision. Defendant appealed, and the Appellate Division affirmed (73 AD3d 1225 [3d Dept 2010]). A Judge of this Court granted defendant leave to appeal (15 NY3d 746 [2010]), and we now also affirm.

A prosecutor possesses discretion to decide when to immunize a witness from prosecution, and County Court is a competent authority to confer immunity when expressly requested by the district attorney to do so (CPL 50.30). Further, section 701 (4) of the County Law declares that special district attorneys (i.e., special prosecutors) “shall possess the powers and discharge the duties of the district attorney during the period for which he or she shall be appointed.”

In seeking immunity for Tiffany, the special prosecutor therefore acted within his discretionary authority. He conferred with the district attorney merely to confirm that he was empowered to grant immunity to a witness, and that the district attorney would honor the grant. In short, the district attorney’s “permission” did not vest the special prosecutor with any more authority than he already enjoyed. As the Appellate Division observed, the record does not suggest that the district attorney shared confidential information with the special prosecutor, or that he prompted or influenced the special prosecutor’s decision to immunize Tiffany from prosecution. “To warrant vacatur of the conviction, [a] defendant must establish actual prejudice or a substantial risk of an abused confidence” (People v English, 88 NY2d 30, 34 [1996]), and defendant has not shown either circumstance to be the case here.

We have examined defendant’s other claims and consider them to be meritless.

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

Order affirmed in a memorandum.


text:
    [952 NE2d 1024, 929 NYS2d 32]
    Congregation Rabbinical College of Tartikov, Inc., Respondent, v Town of Ramapo et al., Appellants.
    Argued May 2, 2011;
    decided June 14, 2011

      APPEARANCES OF COUNSEL

      Michael L. Klein, Town Attorney, Suffern (Janice Gittelman of counsel), for appellants.

      Scheinert & Kobb, LLC, Nanuet (Joel L. Scheinert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

New York’s Real Property Tax Law exempts from taxation real property owned by a religious corporation if it is “used exclusively for carrying out thereupon” a religious purpose (RPTL 420-a [1] [a]). Plaintiffs property in the Town of Ramapo, Rockland County, had been deemed tax exempt for several years before the Town revoked the exemption in 2007. Plaintiff protested. Supreme Court ruled in favor of the Town (23 Misc 3d 1117[A], 2009 NY Slip Op 50797[U] [2009]), but the Appellate Division reversed (72 AD3d 869 [2010]), correctly noting that when a municipality seeks to revoke a previously granted tax exemption, it bears the burden of proving that the real property is now subject to taxation (Matter of New York Botanical Garden v Assessors of Town of Washington, 55 NY2d 328, 334 [1982]). Here, the sole use of the subject property, by the previous owner and by plaintiff, has been the operation of a summer camp with a religious curriculum. The Town failed to establish that the primary use of the property was not in furtherance of plaintiffs religious purposes (see Matter of Yeshivath Shearith Hapletah v Assessor of Town of Fallsburg, 79 NY2d 244, 250 [1992]).

Although the Town argues that a contractor hired by plaintiff was actually the entity “using” the property and exclusively operating the camp, we hold that the Appellate Division correctly concluded otherwise. The contract indicated that the contractor was managing the camp on behalf of the plaintiff and the Town stipulated to the fact that plaintiff retained general supervision and control over the camp’s operation, including the right to approve the hiring of camp personnel, the purveyors of kosher food for camp lunches, and the religious curriculum. Moreover, an economic profit made by a religious corporation “does not by itself extinguish a tax exemption” (Matter of Adult Home at Erie Sta., Inc. v Assessor & Bd. of Assessment Review of City of Middletown, 10 NY3d 205, 216 [2008]).

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

Order affirmed, with costs, in a memorandum.


text:
    [952 NE2d 1064, 929 NYS2d 71]
    Louise DiGiulio, Individually and as Executrix of Albert DiGiulio, Deceased, Appellant, v Gran, Inc., Doing Business as New York Health & Racquet Club, et al., Respondents. (And a Third-Party Action.)
    Decided June 14, 2011

      APPEARANCES OF COUNSEL

      Decolator, Cohen & DiPrisco, Garden City (David S. Gould of counsel), for appellant.

      Morgan Melhuish Abrutyn, New York City (Douglas S. Langholz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

Assuming arguendo that General Business Law § 627-a implicitly created a duty for defendants to use the automated external defibrillator (AED) the section required them to provide at their facility, plaintiff cannot recover because she failed to raise a triable issue of fact demonstrating that defendants’ or their employees’ failure to access the AED was grossly negligent (see General Business Law § 627-a [3]; Public Health Law § 3000-a). Defendants also did not breach any common-law duty to render aid to the decedent.

Plaintiffs remaining contention lacks merit.

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

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


text:
    [952 NE2d 1064, 929 NYS2d 71]
    The People of the State of New York, Respondent, v Joseph R., Appellant.
    Decided June 14, 2011

      APPEARANCES OF COUNSEL

      O’Sullivan & Zacchea, PLLC, Kew Gardens (Daniel R. DeMarco of counsel), for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Thomas Constant 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, and case remitted to the Appellate Division, Second Department, with directions to dismiss the People’s appeal to that court. No statute authorized the appeal by the People to the Appellate Division from the County Court judgment adjudicating defendant a youthful offender.

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


text:
    In the Matter of Daniel T.-H. Alison Kamhi, Respondent, et al., Respondents. Westchester County Commissioner of Social Services, Nonparty Appellant.
    Submitted April 18, 2011;
    decided June 14, 2011
   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:
    Phillip Johnson, Appellant, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted April 11, 2011;
    decided June 14, 2011
   Motion for leave to appeal dismissed upon the ground that this motion does not properly lie to the Court of Appeals directly from the judgment of Supreme Court (see CPLR 5602).


text:
    Ross Lelin, Respondent, v Manohar K. Shrestha, Appellant, et al., Defendant.
    Submitted May 16, 2011;
    decided June 14, 2011
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Jason McDonald, Respondent, v UICC Holding, LLC, Appellant.
    Submitted April 18, 2011;
    decided June 14, 2011
   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:
    1091 River Avenue LLC, et al., Appellants, v Platinum Capital Partners, Inc., Respondent.
    Decided June 14, 2011
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as dismissed the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remainder of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.


text:
    R&R Capital LLC et al., Respondents, v Linda Merritt, Appellant. Hogan & Hartson, LLP, Intervenor-Respondent.
    Submitted April 11, 2011;
    decided June 14, 2011
   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 B.-H. Mercyfirst, Appellant, et al., Petitioner; Robert H., Respondent. (And Three Other Proceedings.)
    Submitted April 11, 2011;
    decided June 14, 2011
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Raymond C. Smith, Respondent, v Albany County Sheriff’s Department et al., Appellants. Workers’ Compensation Board, Respondent.
    Submitted April 18, 2011;
    decided June 14, 2011
   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:
    Trump on the Ocean, LLC, Appellant, v State of New York, Respondent.
    Submitted April 25, 2011;
    decided June 14, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the Court of Claims order dismissing the claim, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    [952 NE2d 1068, 929 NYS2d 74]
    The People of the State of New York, Respondent, v Richard D. DiGuglielmo, Appellant.
    Argued May 31, 2011;
    decided June 23, 2011

      APPEARANCES OF COUNSEL

      Mayer Brown LLP, New York City (Andrew H. Schapiro, Scott A. Chesin, Allison M. Stowell and Ames C. Grawert of counsel), for appellant.

      Janet DiFiore, District Attorney, White Plains (Raffaelina Gianfrancesco, Richard Longworth Hecht and Maryanne Luciano of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Assuming that defendant made a specific request for the material alleged to be exculpatory, we find no reasonable possibility that any failure to disclose it contributed to the verdict (see People v Vilardi, 76 NY2d 67, 77 [1990]). Moreover, we reject defendant’s claim that the evidence supporting his conviction of depraved indifference murder is legally insufficient because of our decision in People v Feingold (7 NY3d 288 [2006]). The standard enunciated in Feingold simply does not apply retroactively to cases on collateral review (see Policano v Herbert, 7 NY3d 588, 603-604 [2006]), and defendant’s claim that such a result violates the Federal Due Process Clause is without merit (Wainwright v Stone, 414 US 21, 23-24 [1973]).

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

Order affirmed in a memorandum.


text:
    In the Matter of Bela Borcsok, Appellant, v New York State Board of Parole, Respondent.
    Submitted May 2, 2011;
    decided June 23, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Carrie B., Appellant, v Josephine B., Respondent.
    Decided June 23, 2011
   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 Gale Lee Davis, Appellant, v City of New York Comptroller et al., Respondents.
    Submitted May 2, 2011;
    decided June 23, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Deshawn D.O. Administration for Children’s Services, Respondent; Maria T.O., Respondent, and Sidney O., Appellant.
    Submitted April 4, 2011;
    decided June 23, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, affirming the fact-finding order, does not finally determine the proceeding within the meaning of the Constitution.


text:
    Alice Laraine Dimery, Appellant, v Ulster Savings Bank, Respondent.
    Decided June 23, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Arlene S. Garland, as Executrix of Richard T. Shanor and Ganelle M. Shanor, Deceased, Appellant, v RLI Insurance Company, Respondent, et al., Defendant.
    Submitted May 16, 2011;
    decided June 23, 2011
   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 Tommy R. Jackson, Appellant, v William Walsh, Onondaga County Court Judge, et al., Respondents.
    Submitted May 2, 2011;
    decided June 23, 2011
   Motion to vacate this Court’s March 31, 2011 dismissal order granted and appeal reinstated [see 16 NY3d 826 (2011)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Margarita Morales, Appellant, v Perfect Dental, P.C., et al., Respondents.
    Submitted May 2, 2011;
    decided June 23, 2011
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the July 2009 Supreme Court order, 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:
    The People of the State of New York, Respondent, v Tobias Boyland, Appellant.
    Submitted April 18, 2011;
    decided June 23, 2011
   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 Corey Gamble, Appellant.
    Submitted June 6, 2011;
    decided June 23, 2011
   Motion by appellant pro se to relieve Richard M. Greenberg, Office of the Appellate Defender, as counsel to the appellant herein denied.


text:
    The People of the State of New York, Respondent, v William George, Appellant.
    Submitted June 20, 2011;
    decided June 23, 2011
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Saleem Khan, Appellant.
    Submitted June 13, 2011;
    decided June 23, 2011
   Motion, pursuant to CPL 460.60 (3), to extend the time for argument or submission of the appeal and to continue the stay granted and stay continued until determination of the appeal.


text:
    The People of the State of New York, Appellant, v James Perry, Respondent.
    Submitted June 6, 2011;
    decided June 23, 2011
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raoul South, Appellant.
    Submitted June 20, 2011;
    decided June 23, 2011
   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 Tony William, Appellant.
    Submitted June 20, 2011;
    decided June 23, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Valrick Johnson, Appellant, v Joseph E. McCoy, as Superintendent of Cayuga Correctional Facility, Respondent.
    Submitted May 2, 2011;
    decided June 23, 2011
   Judge Pigott taking no part.


text:
    In the Matter of Conrad Pons, Appellant, v Anthony J. Annucci, as Deputy Commissioner of Correctional Services, Respondent.
    Submitted April 4, 2011;
    decided June 23, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying poor person relief, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Estate of Kevin W. Stanley, Deceased. Diane R. Stanley, Appellant; Lawrence J. Mattar, Esq., et al., Respondents.
    Submitted May 2, 2011;
    decided June 23, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the March 2011 Surrogate’s Court order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed, without costs, upon the ground that the March 2011 Surrogate’s Court order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Town of Huntington, Respondent, v County of Suffolk, Appellant.
    Submitted March 28, 2011;
    decided June 23, 2011
   Motion for leave to appeal denied. Motion for a stay etc. dismissed as academic.


text:
    Town of Oyster Bay, Appellant, v Galen D. Kirkland, as Commissioner of the New York State Division of Human Rights, et al., Respondents.
    Decided June 23, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Veritas Capital Management, L.L.C., et al., Plaintiffs, v Thomas J. Campbell, Defendant. Thomas J. Campbell, Appellant, v Robert B. McKeon, Respondent, et al., Defendants.
    Submitted May 2, 2011;
    decided June 23, 2011
   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:
    Sherrie Weaver, Claimant, and David Sheps, Appellant, v State of New York, Respondent.
    Submitted April 25, 2011;
    decided June 23, 2011
   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 World Trade Center Bombing Litigation. Steering Committee, et al., Respondents, v The Port Authority of New York and New Jersey, Appellant.
    Decided June 23, 2011
   Concur: Judges Ciparick, Graffeo, Read, Pigott and Jones. Taking no part: Chief Judge Lippman and Judge Smith.


text:
    Myron Zuckerman, Respondent, v Sydell Goldstein et al., Appellants.
    Submitted April 18, 2011;
    decided June 23, 2011
   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:
    [952 NE2d 1075, 929 NYS2d 81]
    Rezplex, L.L.C., Respondent, v New York City Department of Housing Preservation and Development et al., Appellants.
    Decided June 28, 2011

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Larry A. Sonnenshein of counsel), for appellants.

      Goodman & Leopold, L.L.P., New York City (Howard B. Leopold of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Petitioner’s nonownership of the property where the City repaired a collapsing retaining wall was adequately raised in petitioner’s December 11, 2001 protest, which stated: “We are not aware of any emergency repair done at [petitioner’s] premises.” Thus we need not decide whether the issue was one that could be raised for the first time after the administrative ruling.

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

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


text:
    In the Matter of Carlos Abreu, Appellant, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided June 28, 2011
   Appeal, insofar as taken from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the Appellate Division judgment dismissing the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Joel L. Amaker, Sr., Appellant, v Elizabeth V. Wright, P.C., Respondent.
    Submitted May 9, 2011;
    decided June 28, 2011
   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:
    Brad H. et al., Appellants, v City of New York et al., Respondents.
    Submitted May 16, 2011;
    decided June 28, 2011
   Motion to supplement the record on appeal denied.


text:
    In the Matter of Michael Diederich, Jr., Individually and on Behalf of all Taxpayers of the County of Rockland, Appellant, et al., Petitioner, v Christopher St. Lawrence, Defendant, and Holland & Knight, LLP, et al., Respondents.
    Decided June 28, 2011
   Appeal, insofar as taken from the Appellate Division order denying the motion for reargument or leave to appeal, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Skip Funt, Appellant, v Human Resources Administration of the City of New York, Respondent.
    Submitted May 9, 2011;
    decided June 28, 2011
   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:
    GoSmile, Inc., Respondent, v Jonathan B. Levine, D.D.S., Appellant.
    Submitted May 16, 2011;
    decided June 28, 2011
   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:
    Mary Grandy, Respondent, v James A. McKay et al., Appellants. (Action No. 1.) Frances I. Sindlinger, Respondent, v James A. McKay et al., Appellants. (Action No. 2.)
    Decided June 28, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    Charles R. Kirby et al., Appellants, v Suburban Electrical Engineers Contractors, Inc., Respondent, et al., Defendants.
    Submitted May 16, 2011;
    decided June 28, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Nydia Santiago, Appellant.
    Submitted June 6, 2011;
    decided June 28, 2011
   Motion to strike portions of defendant’s brief denied.


text:
    In the Matter of Marvin Pollack, Appellant; State of New York et al., Respondents.
    Submitted May 9, 2011;
    decided June 28, 2011
   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:
    Sea Trade Maritime Corp., Appellant, v Hellenic Mutual War Risks Association (Bermuda) Ltd. et al., Respondents, and George Christy Peters, Appellant, et al., Defendants. (And a Third-Party Action.)
    Submitted May 9, 2011;
    decided June 28, 2011
   Motion to vacate this Court’s March 23, 2011 order of dismissal granted [see 16 NY3d 826 (2011)]. On the Court’s own motion, appeal, insofar as taken from that portion of the December 2010 Appellate Division order as affirmed so much of Supreme Court’s judgment recognizing the foreign arbitration awards and recognizing the foreign judgment, dismissed, without costs, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, upon the ground that the remaining portion of the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal, insofar as it seeks leave to appeal from that portion of the December 2010 Appellate Division order as affirmed so much of Supreme Court’s judgment recognizing the foreign arbitration awards and recognizing the foreign judgment, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the December 2010 Appellate Division order and the March 2011 Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of State of New York, Respondent, v Daniel F., Appellant.
    Submitted February 28, 2011;
    decided June 28, 2011
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    Town of Putnam Valley et al., Respondents, v Thomas Cabot et al., Defendants, and Alexander Kaspar, Appellant.
    Submitted May 9, 2011;
    decided June 28, 2011
   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:
    [952 NE2d 1080, 929 NYS2d 85]
    The People of the State of New York, Respondent, v Michael Mungro, Appellant.
    Decided June 30, 2011

      APPEARANCES OF COUNSEL

      Charles J. Greenberg, Tonawanda, for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People did not violate defendant’s right to a speedy trial pursuant to CPL 30.30 by failing to request his presence in New York from federal custody in Ohio until his prosecution there was completed and he began serving his sentence. The People had no statutory authority to request defendant’s presence until such time (see CPL 580.20, art IV [a]) and, therefore, should not be penalized for the period of time that defendant was unavailable for trial in New York (see People v Vrlaku, 73 NY2d 800, 802 [1988]).

Defendant’s claim that the evidence was legally insufficient to support the verdict is unpreserved, and his ineffective assistance of counsel claim is without merit.

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

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


text:
    In the Matter of Deborah Bush, Appellant, v Division of Human Rights et al., Respondents.
    Submitted May 31, 2011;
    decided June 30, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Foreclosure of Tax Liens by County of Sullivan. County of Sullivan, Respondent; Judith Ann Fay et al., Appellants.
    Submitted May 23, 2011;
    decided June 30, 2011
   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 Shawn Green, Appellant, v Mark L. Bradt, as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted May 31, 2011;
    decided June 30, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 709 (2011)].


text:
    In the Matter of Shawn Green, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent. (And Another Related Proceeding.)
    Submitted May 31, 2011;
    decided June 30, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 710 (2011)].


text:
    In the Matter of the Estate of Vera Hyra, Deceased. Bank of New York, as Executor of Vera Hyra, Deceased, Respondent; Bogdan Wislocki et al., Appellants. (And a Related Action.)
    Submitted May 16, 2011;
    decided June 30, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding or the action within the meaning of the Constitution.


text:
    In the Matter of Keith Knight, Appellant, v Norman Bezio, as Director of Special Housing and Inmate Disciplinary Program, Respondent.
    Submitted May 23, 2011;
    decided June 30, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Laurence L. Leff, Ph.D., as Administrator of the Estate of Eve Lewis, Deceased, et al., Appellants, v TIAA-CREF Life Insurance Company, Respondent.
    Submitted May 23, 2011;
    decided June 30, 2011
   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 Lorraine D., Appellant, v Widmack C. et al., Respondents. (And Other Proceedings.)
    Submitted May 23, 2011;
    decided June 30, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which affirmed so much of Family Court’s order denying that branch of appellant’s motion as sought to vacate the part of Family Court’s prior order determining custody, dismissed upon the ground that such portion of the Appellate Division order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided June 30, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Nella Manko, Appellant, et al., Petitioner, v New York State Division of Housing and Community Renewal, Office of Rent Administration, Respondent.
    Decided June 30, 2011
   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 (CPLR 5601).


text:
    Fortune Mizrachi, Respondent, v Danny Mizrachi, Appellant.
    Submitted May 23, 2011;
    decided June 30, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Clifford Graham, Appellant, v Kevin Walsh, Sheriff of the Onondaga County Sheriffs Department, Respondent.
    Submitted May 31, 2011;
    decided June 30, 2011
   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:
    Joyce Pickett et al., Appellants, v Federated Department Stores, Inc., Respondent.
    Submitted May 29, 2011;
    decided June 30, 2011
   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:
    Norman Pickett et al., Appellants, v Romles Gibbs et al., Respondents.
    Submitted May 23, 2011;
    decided June 30, 2011
   Judge Jones taking no part.


text:
    In the Matter of William C.B., an Infant. Erie County Department of Social Services, Respondent; Judy B., Appellant.
    Submitted May 23, 2011;
    decided June 30, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Family Court’s order terminating appellant’s parental rights, denied; motion for leave to appeal otherwise dismissed upon the ground that the other Appellate Division order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    New York Coalition for Quality Assisted Living, Inc., Appellant, v MFY Legal Services, Inc., et al., Respondents.
    Submitted August 1, 2011;
    decided August 24, 2011
   Motion by the Center for Constitutional Rights et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    New York Coalition for Quality Assisted Living, Inc., Appellant, v MFY Legal Services, Inc., et al., Respondents.
    Submitted August 1, 2011;
    decided August 24, 2011
   Motion by Disability Advocates, Inc., et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Carlos Ventura, Appellant. The People of the State of New York, Respondent, v Damian Gardner, Appellant.
    Submitted August 1, 2011;
    decided August 24, 2011
   Motion by Immigrant Defense Project et al. for leave to file a brief amici curiae on the appeals herein granted and the proposed brief is accepted as filed.


text:
    Carmen Valdez, Individually and as Mother and Natural Guardian of Ceasar Marti and Another, Appellant, v City of New York et al., Respondents.
    Submitted August 1, 2011;
    decided August 24, 2011
   Motion by New York City Bar Association et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Diane Yatauro et al., Appellants, v Edward P. Mangano et al., Respondents, and William T. Biamonte, Appellant.
    Submitted August 24, 2011;
    decided August 24, 2011
   Motion by Carrie M. Solages for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Clifton Dixon, Appellant, v Matthew J. Clyne et al., as Commissioners of the Albany County Board of Elections, Respondents.
    Decided September 1, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [954 NE2d 77, 929 NYS2d 788]
    The People of the State of New York, Respondent, v Willie Holmes, Jr., Appellant.
    Decided September 8, 2011

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Geoffrey Kaeuper 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 and case remitted to the Appellate Division, Fourth Department, for consideration of issues raised but not determined on the appeal to that court (see People v Hunter, 17 NY3d 725 [2011]).

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


text:
    Assured Guaranty (UK) Ltd., in the Right of Itself and of Orkney Re II PLC, Respondent, v J.P. Morgan Investment Management Inc., Appellant
    Submitted July 25, 2011;
    decided September 8, 2011
   Motion by Public Investors Arbitration Bar Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Assured Guaranty (UK) Ltd., in the Right of Itself and of Orkney Re II PLC, Respondent, v J.P. Morgan Investment Management Inc., Appellant.
    Submitted July 25, 2011;
    decided September 8, 2011
   Motion by Cornell Securities Law Clinic for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Defendants, and Disability Management Services, Respondent.
    Submitted June 13, 2011;
    decided September 8, 2011
   Motion for reconsideration of this Court’s May 3, 2011 dismissal order denied [see 16 NY3d 870 (2011)].


text:
    Barbara Coleman, by Her Attorney-in-Fact, Mazilee Coleman, on Behalf of Herself and All Others Similarly Situated, Respondent, v Richard F. Daines, M.D., Individually and as Commissioner of the New York State Department of Health, et al., Appellant.
    Submitted August 8, 2011;
    decided September 8, 2011
   Motion by Empire Justice Center et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Gloria Doomes, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Ana Jiminian, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Kelli Rivera, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent.
    Submitted August 15, 2011;
    decided September 8, 2011
   Motion by Product Liability Advisory Council, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Elias E., Appellant.
    Submitted June 6, 2011;
    decided September 8, 2011
   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:
    Simon Lorne, Plaintiff, and Ludmilla Lorne, Appellant, v 50 Madison Avenue LLC et al., Respondents, et al., Defendants.
    Submitted June 6, 2011;
    decided September 8, 2011
   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 Orange County Department of Social Services, on Behalf of Doris Zieran, Respondent, v Mark Marvin, Appellant.
    Submitted June 6, 2011;
    decided September 8, 2011
   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:
    The People of the State of New York, Respondent, v Monroe B. Bussey, Appellant.
    Submitted July 18, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Alex Smith, Esq., 6 North Street, Middletown, New York 10940 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Mickey Cass, Appellant.
    Submitted August 15, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Raymond Clyde, Respondent.
    Submitted September 6, 2011;
    decided September 8, 2011
   Motion by New York State Association of Criminal Defense Lawyers 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 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Delroy Colville, Appellant.
    Submitted July 25, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Lynn WL. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Quinton Dais, Appellant.
    Submitted August 8, 2011;
    decided September 8, 2011
   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 Derrick Gause, Appellant.
    Submitted July 18, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Mary Davison, Esq., care of Davison Law Office, 61 North Main Street, Suite C, PO Box 652, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Willie Holmes, Jr., Appellant.
    Submitted July 25, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Leo Leonard, Appellant.
    Submitted August 29, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Stuart M. Cohen, Esq., PO Box 598, Rensselaer, New York 12144 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jeffery H. Miller, Respondent.
    Submitted July 11, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Vernon Mingo, Appellant.
    Submitted June 27, 2011;
    decided September 8, 2011
   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-Appellant, v Akinlowo Omowale, Appellant-Respondent.
    Submitted July 11, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant-respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christopher Porgo, Appellant.
    Submitted June 13, 2011;
    decided September 8, 2011
   Motion to strike portions of appellant’s reply brief denied. Judge Graffeo taking no part.


text:
    The People of the State of New York, Respondent, v Christopher Porgo, Appellant.
    Submitted August 1, 2011;
    decided September 8, 2011
   Judge Graffeo taking no part.


text:
    The People of the State of New York, Respondent, v Luis Ramos, Appellant.
    Submitted July 5, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Lamarr Reid, Respondent.
    Submitted July 11, 2011;
    decided September 8, 2011
   Motion for assignment of counsel granted and Bruce Evans Knoll, Esq., PO Box 2072, Empire State Plaza, Albany, New York 12220 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis R. Rivera, Appellant.
    Submitted June 27, 2011;
    decided September 8, 2011
   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 Malik Yusuf, Also Known as Yusuf M. Ashford, Appellant.
    Submitted August 8, 2011;
    decided September 8, 2011
   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 ex rel. Aaron Jabot, Appellant, v Mark Bradt et al., Respondents.
    Submitted June 6, 2011;
    decided September 8, 2011
   Motion for leave to appeal dismissed upon the ground that this motion for leave to appeal does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Lillian Roberts, as Executive Director of District Council 37, American Federation of State, County and Municipal Employees, AFL-CIO, et al., Appellants, v David A. Paterson, as Governor of the State of New York, et al., Respondents.
    Submitted September 6, 2011;
    decided September 8, 2011
   Motion by New York State AFL-CIO 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 filed within seven days.


text:
    Roni LLC et al., Appellants, v Rachel L. Arfa et al., Respondents.
    Submitted August 1, 2011;
    decided September 8, 2011
   Motion by Larry E. Ribstein for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 19 copies filed within seven days.


text:
    In the Matter of Norman E. Roth et al., Appellants, v City of Syracuse et al., Respondents. (And Other Proceedings.)
    Submitted May 31, 2011;
    decided September 8, 2011
   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 (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    In the Matter of Terrace Court, LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent. Robert Katel et al., Intervenors-Respondents.
    Submitted July 18, 2011;
    decided September 8, 2011
   Motion by New York State Tenants & Neighbors Coalition, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Terrace Court, LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent. Robert Katel et al., Intervenors-Respondents.
    Submitted August 1, 2011;
    decided September 8, 2011
   Motion by Community Housing Improvement Program of New York Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    In the Matter of Rocio Zamora, Respondent, v New York Neurologic Associates et al., Appellants. Workers’ Compensation Board, Appellant.
    Submitted August 22, 2011;
    decided September 8, 2011
   Motion by Injured Workers Bar Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 19 copies filed within seven days.


text:
    [954 NE2d 1155, 930 NYS2d 530]
    The People of the State of New York, Appellant, v Marcelle E. Williams, Respondent.
    Decided September 13, 2011

      APPEARANCES OF COUNSEL

      Michael C. Green, District Attorney, Rochester (Kelly Christine Wolford of counsel), for appellant.

      Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The orders of the Appellate Division should be affirmed.

The reasonableness of a seizure, the existence of probable cause or reasonable suspicion, the classification of a detention as an arrest and the attenuation of evidence from police misconduct are all mixed questions of law and fact that are beyond this Court’s review unless there is no record support for the determinations of the court below (see e.g. People v Wheeler, 2 NY3d 370, 373 [2004]; People v Brannon, 16 NY3d 596, 602 [2011]; People v Gomcin, 8 NY3d 899, 901 [2007]; People v Farrell, 59 NY2d 686, 688 [1983]; People v Divine, 6 NY3d 790, 791 [2006]). Here, although different conclusions may not have been unreasonable, the record supports the Appellate Division’s determination that defendant was arrested without probable cause (see People v Ryan, 12 NY3d 28, 30-31 [2009]; cf. People v Hicks, 68 NY2d 234, 240 [1986]) and that the seizure of evidence from him was neither attenuated from the illegal arrest nor derived from a source that was sufficiently independent of it. Since it is reasonably possible that the introduction of the impermissibly seized evidence affected the verdict, defendant is entitled to vacatur of the conviction and a new trial (see e.g. People v Crimmins, 36 NY2d 230, 237 [1975]). An unrelated conviction must be overturned as well because it was premised on a guilty plea for which defendant was promised a sentence that would run concurrently with the punishment imposed in this case (see People v Fuggazzatto, 62 NY2d 862, 863 [1984]).

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

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


text:
    Isidro Abascal, Appellant, v City of New York, Respondent.
    Submitted June 20, 2011;
    decided September 13, 2011
   Motion for reargument of motion for leave to appeal denied (see 16 NY3d 882 [2011]).


text:
    In the Matter of Joshua Bernstein, a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Petitioner.
    Decided September 13, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Deborah Bush, Appellant, v Division of Human Rights et al., Respondents.
    Submitted July 25, 2011;
    decided September 13, 2011
   Motion for reargument of motion for leave to appeal denied (see 17 NY3d 786 [2011]).


text:
    In the Matter of Cheyenne M., an Infant. Erie County Department of Social Services, Respondent; Charlie M., Appellant, et al., Respondent.
    Submitted June 13, 2011;
    decided September 13, 2011
   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:
    Charles L. Davis, Appellant, v Russell Firman, M.D., et al., Respondents.
    Submitted June 20, 2011;
    decided September 13, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    William Held Jr., as Chairman of Contractors Compensation Trust, et al., Appellants, v State of New York Workers’ Compensation Board et al., Respondents.
    Submitted June 6, 2011;
    decided September 13, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.


text:
    In the Matter of Tyrone Houston, Appellant, v Matthew J. D’Emic et al., Respondents.
    Submitted July 11, 2011;
    decided September 13, 2011
   Motion to vacate this Court’s June 15, 2011 dismissal order denied [see 17 NY3d 790 (2011)].


text:
    In the Matter of Island Waste Services, Ltd., Appellant, v Tax Appeals Tribunal of the State of New York et al., Respondents.
    Submitted June 20, 2011;
    decided September 13, 2011
   Judge Pigott taking no part.


text:
    In the Matter of Niagara County, on Behalf of its Residents, et al., Appellants, v Power Authority of State of New York et al., Respondents.
    Submitted May 16, 2011;
    decided September 13, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order which denied petitioners’ motion for leave to serve a complaint and discovery demands, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Anthony Attea, Appellant.
    Submitted August 15, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Charles J. Greenberg, Esq., PO Box 102, Buffalo, New York 14207 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Norman Cajigas, Appellant.
    Submitted August 22, 2011;
    decided September 13, 2011
   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 Sandy Fernandez, Appellant.
    Submitted September 6, 2011;
    decided September 13, 2011
   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 Robert C. Halter, Appellant.
    Submitted August 8, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carlos Herring, Appellant.
    Submitted August 15, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Diane E. Selker, Esq., 701 Nelson Avenue, Peekskill, New York 10566 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Richard Kelley, Appellant.
    Submitted August 15, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Zahira Matos, Appellant.
    Submitted August 22, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jason Naradzay, Appellant.
    Submitted July 5, 2011;
    decided September 13, 2011
   Motion for reargument dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.24 [b]) [see 11 NY3d 460 (2008)]. Motion for relief ancillary to the motion for reargument denied.


text:
    The People of the State of New York, Respondent, v David Plunkett, Appellant.
    Submitted June 20, 2011;
    decided September 13, 2011
   Motion to vacate this Court’s June 1, 2011 dismissal order granted [see 17 NY3d 790 (2011)].


text:
    The People of the State of New York, Respondent, v Gilberto Ramos, Appellant.
    Submitted August 29, 2011;
    decided September 13, 2011
   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 Donald Stanley, Appellant.
    Submitted August 29, 2011;
    decided September 13, 2011
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Jessie Velez, Respondent.
    Submitted August 1, 2011;
    decided September 13, 2011
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Western Express International, Inc., et al., Defendants, and Douglas Latta, Appellant.
    Submitted September 6, 2011;
    decided September 13, 2011
   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 appellant Douglas Latta on the appeal herein.


text:
    The People of the State of New York, Respondent, v Leroy Williams, Appellant.
    Submitted August 22, 2011;
    decided September 13, 2011
   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 Ledarrius Wright, Appellant.
    Submitted August 22, 2011;
    decided September 13, 2011
   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 ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Submitted July 5, 2011;
    decided September 13, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 703 (2011)].


text:
    Farid Popal, Appellant, v Harvey J. Slovis, Esq., Respondent.
    Submitted June 27, 2011;
    decided September 13, 2011
   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 Stray from the Heart, Inc., Appellant, v Department of Health and Mental Hygiene of the City of New York et al., Respondents.
    Submitted July 5, 2011;
    decided September 13, 2011
   Motion by the Animal Legal Defense Fund for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Stray from the Heart, Inc., Appellant, v Department of Health and Mental Hygiene of the City of New York et al., Respondents.
    Submitted June 27, 2011;
    decided September 13, 2011
   Motion by the Office of the Manhattan Borough President for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    Joseph Timmons et al., Appellants, v Barrett Paving Materials, Inc., Respondent. (And Other Actions.)
    Submitted June 13, 2011;
    decided September 13, 2011
   Motion, insofar as it seeks leave to appeal as against Schneider Brothers Corporation, dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise denied.


text:
    In the Matter of Eric Wolfe, Appellant, v Raymond W. Kelly, as Commissioner of the New York City Police Department, et al., Respondents.
    Decided September 13, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Accurate Realty, LLC, Respondent, v Samuel C. Donadio et al., Appellants.
    Submitted July 5, 2011;
    decided September 15, 2011
   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 Ayela S. Administration for Children’s Services, Respondent; Rosalie C., Appellant. (And Another Proceeding.)
    Submitted June 6, 2011;
    decided September 15, 2011
   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:
    Danielle Biton, Appellant, et al., Plaintiff, v Aloft Corporate Travel, Inc., et al., Respondents.
    Submitted May 31, 2011;
    decided September 15, 2011
   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 ancillary relief denied.


text:
    Danielle Biton et al., Appellants, v Ameena Meer et al., Respondents.
    Submitted May 31, 2011;
    decided September 15, 2011
   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 ancillary relief denied.


text:
    Crystal Biton, Also Known as Saphyre Redford, et al., Appellants, v State Farm Insurance Company et al., Respondents.
    Submitted May 31, 2011;
    decided September 15, 2011
   Motion for leave to appeal and ancillary relief denied.


text:
    Danielle Biton, Appellant, v State of New York et al., Respondents. Saphyre Redford et al., Appellants, v AG Cuomo et al., Respondents.
    Submitted May 31, 2011;
    decided September 15, 2011
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department,, upon the ground that a direct appeal does not lie where questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b]; CPLR 5601 [b] [2]). Motion for leave to appeal dismissed upon the ground that this Court does not have jurisdiction to entertain the motion (NY Const, art VI, § 3 [b]; CPLR 5602 [a]). Motion for ancillary relief denied.


text:
    Crystal Biton, Also Known as Saphyre Redford, Appellant, v Joe Turco et al., Respondents.
    Submitted May 31, 2011;
    decided September 15, 2011
   Motion for leave to appeal and ancillary relief denied.


text:
    In the Matter of Michael Buxenbaum, Jr., Respondent, v Rachel Fulmer, Appellant.
    Submitted June 27, 2011;
    decided September 15, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kathleen M. Clark, Respondent, v Michael J. Clark, Appellant.
    Submitted July 5, 2011;
    decided September 15, 2011
   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 the Foreclosure of Tax Liens by County of Sullivan. County of Sullivan, Respondent; Judith Ann Fay et al., Appellants.
    Submitted August 15, 2011;
    decided September 15, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 787 (2011)].


text:
    Robin Custodi et al., Respondents, v Town of Amherst et al., Defendants, and Peter Muffoletto et al., Appellants.
    Submitted August 15, 2011;
    decided September 15, 2011
   Motion to vacate this Court’s July 28, 2011 preclusion order granted.


text:
    In the Matter of Christopher Ellison, Appellant, v Andrea Evans, Respondent.
    Submitted June 20, 2011;
    decided September 15, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    John Ennis, Appellant, v State of New York, Respondent.
    Submitted June 20, 2011;
    decided September 15, 2011
   Motion, insofar as it seeks leave to appeal from the March 9, 2011 Appellate Division order denying claimant’s motion to vacate the dismissal of his appeal, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the June 28, 2010 Appellate Division order, denied.


text:
    Galasso, Langione & Botter, LLP et al., Respondents, v Thomas F. Liotti, Defendant and Third-Party Plaintiff-Appellant. Frederick K. Brewington, Third-Party Defendant-Respondent.
    Submitted July 5, 2011;
    decided September 15, 2011
   Motion, insofar as it seeks leave to appeal from the April 2011 Appellate Division order imposing sanctions and so much of the February 2011 Appellate Division order as affirmed Supreme Court’s order dismissing the third-party complaint and affirmed Supreme Court’s order awarding sanctions in favor of third-party defendant Frederick K. Brewington, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the orders sought to be appealed from do not finally determine an action within the meaning of the Constitution.


text:
    In the Matter of Said Gssime, Appellant, v New York State Division of Parole, Respondent.
    Submitted July 18, 2011;
    decided September 15, 2011
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Germelia Joseph, Respondent, v George Athanasopoulos et al., Defendants, and HDMJ Restaurant, Inc., Appellant.
    Decided September 15, 2011
   Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.


text:
    N.J.R. Associates, a New York Limited Partnership, Appellant, v Nicole Tausend, a Limited Partner of N.J.R. Associates, Respondent.
    Submitted June 13, 2011;
    decided September 15, 2011
   Motion for leave to appeal granted. Motion for a stay pending disposition of the appeal granted.


text:
    The People of the State of New York, Respondent, v Kevin Chestnut, Appellant.
    Submitted September 12, 2011;
    decided September 15, 2011
   Motion for assignment of counsel granted and Lynn W.L. Fahey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis Feliciano, Appellant.
    Submitted June 20, 2011;
    decided September 15, 2011
   Motion for reargument denied [see 17 NY3d 14 (2011)].


text:
    The People of the State of New York, Appellant, v Christopher B. Washington, Respondent.
    Submitted June 27, 2011;
    decided September 15, 2011
   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:
    Henry A. Platsky, Appellant, v Stanley Lave, Respondent.
    Submitted July 11, 2011;
    decided September 15, 2011
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Progressive Northeastern Insurance Company, Plaintiff, v State Farm Insurance Companies et al., Defendants, Gabe’s Auto, Appellant, and Charter Oak Fire Insurance Company, Respondent.
    Submitted July 18, 2011;
    decided September 15, 2011
   Motion for leave to appeal dismissed as untimely (CPLR 5514 [a]; 2103 [b] [2]; Engel v Lichterman, 62 NY2d 943 [1984]; Matter of Park E. Corp. v Whalen, 38 NY2d 559 [1976]).


text:
    Sovereign Bank, Respondent, v Oscar Calderone, Appellant.
    Submitted June 20, 2011;
    decided September 15, 2011
   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:
    Pinhas Zachery, Respondent, v Crystal Biton, Appellant.
    Submitted May 31, 2011;
    decided September 15, 2011
   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 ancillary relief denied.


text:
    Maninder Bhugra, Appellant, v Massachusetts Casualty Insurance Company et al., Respondents.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    William E. Burkhart, Jr., Appellant, v Steven V. Modica et al., Respondents.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Foreclosure of Tax Liens by County of Schuyler. County of Schuyler, Respondent; Edward Solomon Jr., Respondent, and Solomon Financial Center, Inc., Appellant. Margaret E. Starbuck, as County Treasurer of the County of Schuyler, et al., Respondents.
    Submitted June 6, 2011;
    decided September 20, 2011
   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 Lisa Harbatkin, Appellant, v New York City Department of Records and Information Services et al., Respondents.
    Submitted August 8, 2011;
    decided September 20, 2011
   Motion by Advance Publications, Inc., et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Adrian McCain, Appellant, v State of New York, Respondent.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Danny Montes, Appellant, v Norman Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted August 1, 2011;
    decided September 20, 2011
   Motion to vacate this Court’s June 15, 2011 dismissal order granted [see 17 NY3d 790 (2011)].


text:
    In the Matter of Frederick J. Neroni, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted August 22, 2011;
    decided September 20, 2011
   On the Court’s own motion, appeal, insofar as taken from the order of disbarment, dismissed upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed upon the ground that the other orders appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for leave to appeal from the order of disbarment denied.


text:
    The People of the State of New York, Respondent, v Tobias Boyland, Appellant.
    Submitted July 11, 2011;
    decided September 20, 2011
   Motion for reargument granted and, upon reargument, this Court’s June 23, 2011 order vacated and the following substituted in its place: Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted [see 17 NY3d 775 (2011)].


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted July 18, 2011;
    decided September 20, 2011
   Motion for reargument granted to the extent that, upon reargument, this Court’s June 23, 2011 order is vacated and the following is substituted in its place: Motion by appellant pro se to relieve Richard M. Greenberg, Office of the Appellate Defender, as counsel to the appellant herein granted [see 17 NY3d 775 (2011)]. Motion for other relief denied.


text:
    The People of the State of New York, Respondent, v Corey Gamble, Appellant.
    Submitted September 19, 2011;
    decided September 20, 2011
   On the Court’s own motion, Alan J. Pierce, Esq., granted leave to appear as amicus curiae on the appeal herein.


text:
    The People of the State of New York ex rel. Rudolph Rossi, Appellant, v Norman A. Bezio, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    S.M. Pires, Appellant, v Frota Oceanica Brasileira, S.A., Respondent, et al., Defendants.
    Submitted June 13, 2011;
    decided September 20, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The RGH Liquidating Trust, on Behalf of Reliance Group Holdings, Inc., and Others, Appellant, v Deloitte & Touche LLP et al., Respondents.
    Submitted August 1, 2011;
    decided September 20, 2011
   Motion for reargument denied [see 17 NY3d 397 (2011)].


text:
    In the Matter of Michael J. Ross, Appellant, v New York State Board of Parole, Respondent.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Seneca Nation of Indians, Appellant, v State of New York et al., Respondents.
    Submitted July 5, 2011;
    decided September 20, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Jose Vaello, Appellant, v William Connolly, as Superintendent of Fishkill Correctional Facility, Respondent.
    Decided September 20, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Arbitration Between Buffalo Professional Firefighters Association, Inc., IAFF Local 282, Respondent, and City of Buffalo, Appellant.
    Submitted July 11, 2011;
    decided September 22, 2011
   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 Destiny F., a Neglected Child. St. Lawrence County Department of Social Services, Respondent; Angela F., Appellant.
    Submitted July 18, 2011;
    decided September 22, 2011
   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:
    Monica Hazell, Appellant, v State of New York et al., Respondents.
    Submitted June 20, 2011;
    decided September 22, 2011
   Motion for leave to appeal etc. 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 Michelle Hissam, Appellant, v James Hissam, Respondent. (And Another Related Proceeding.)
    Submitted July 11, 2011;
    decided September 22, 2011
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order holding appellant in violation of a prior order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Frank D. Maki, Appellant, v Bassett Hospital et al., Respondents.
    Decided September 22, 2011
   Appeal, taken from the May 6, 2011 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Frank D. Maki, Appellant, v Bassett Hospital et al., Respondents.
    Decided September 22, 2011
   Appeal, insofar as taken from that part of the June 9, 2011 Appellate Division order that affirmed the portion of the Supreme Court order granting defendants’ motion for summary judgment and dismissing the complaint, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal otherwise dismissed upon the ground that the remaining part of the June 9, 2011 Appellate Division order, and the other orders appealed from, do not finally determine the action within the meaning of the Constitution.


text:
    Janulyn McKanic, Appellant, v Amigos del Museo del Barrio, Respondent.
    Submitted August 29, 2011;
    decided September 22, 2011
   Motion for reargument of motion for leave to appeal denied [see 17 NY3d 705 (2011)].


text:
    In the Matter of World Trade Center Bombing Litigation. Steering Committee et al., Respondents, v The Port Authority of New York and New Jersey, Appellant.
    Submitted August 1, 2011;
    decided September 22, 2011
   Concur: Judges Ciparick, Graffeo, Read, Pigott, Jones, Prudenti* and Mercure.

Taking no part: Chief Judge Lippman and Judge Smith.

       Designated pursuant to NY Constitution, article VI, § 2.


text:
    [957 NE2d 265, 932 NYS2d 775]
    The People of the State of New York, Respondent, v Nadirah Brown, Appellant.
    Argued September 8, 2011;
    decided October 13, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero, Barbara J. Davies and David C. Schopp 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 modified by reducing defendant’s conviction for reckless assault in the second degree (Penal Law § 120.05 [4]) to criminally negligent assault in the third degree (Penal Law § 120.00 [3]), and by remitting to the Appellate Division for further proceedings in accordance with this memorandum, and as so modified, affirmed.

On August 12, 2007, defendant’s then 15-year-old nephew, Antoine S., and his younger sister were at defendant’s home, where they often spent the night. On that particular evening, the three of them were inside defendant’s kitchen heating water on the stove top in order to prepare a hot bath for defendant’s husband. At some point, Antoine began to engage in horseplay, splashing defendant and his sister with water from the sink. Defendant, in turn, spattered her nephew with water and, according to Antoine and his sister, noted that she was the “queen of pranks.” Antoine then left the kitchen to watch television in a different room. Shortly thereafter, defendant retrieved a pot of water that had been placed on the stove and poured the water onto Antoine. When the water made contact with Antoine, his skin started to bubble. Defendant applied a topical cream onto Antoine’s skin in an effort to alleviate his pain. Defendant contacted Antoine’s mother and accompanied him and his mother to the hospital. Antoine sustained first- and second-degree burns as a result of this incident.

Following a nonjury trial, County Court acquitted defendant of intentional assault in the first degree (Penal Law § 120.10 [1]), but convicted her of second-degree reckless assault and endangering the welfare of a child (Penal Law § 260.10 [1]). On appeal, defendant argues that the evidence was legally insufficient to support her conviction for reckless assault. Defendant also maintains that the Appellate Division failed to conduct a weight of the evidence review pursuant to CPL 470.15 (5). Finally, defendant contends that she was denied effective assistance of counsel.

‘ ‘A verdict is legally sufficient when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007] [internal quotation marks omitted]). Applying this standard, we conclude that the People failed to prove beyond a reasonable doubt that defendant acted recklessly. Penal Law § 15.05 (3) provides that

“[a] person acts recklessly with respect to a result . . . when [s]he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur . . . The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”

While there is record support for a finding that defendant here acted with criminal negligence when she lifted the pot of water from the stove and poured it over Antoine, the evidence does not support County Court’s conclusion that defendant was “aware of’ and “consciously disregarded]” a known risk that her behavior would cause Antoine’s skin to burn.

Although we have reduced defendant’s conviction to third-degree assault on legal sufficiency grounds, defendant is entitled to a weight of the evidence review by the Appellate Division (see People v Bleakley, 69 NY2d 490, 496 [1987]). Indeed, the People concede that, in this case, since defendant argued weight of the evidence at the Appellate Division and the order of that court “ ‘manifests] a lack of application of that review power’ ... we must reverse and remit for a proper assessment of the weight of the evidence” (People v Romero, 7 NY3d 633, 646 [2006], quoting Bleakley, 69 NY2d at 496).

We have considered defendant’s ineffective assistance of counsel claim and conclude, so far as the record before us permits review, that “viewed in totality and as of the time of the representation, [counsel] provided meaningful representation” (People v Benevento, 91 NY2d 708, 712 [1998]). To the extent that defendant raises arguments concerning counsel’s representation that are outside the record, the proper vehicle for such arguments is a CPL 440.10 motion.

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

Order modified, etc.

       CPL 470.15 (5) provides that “[t]he kinds of determinations of reversal or modification deemed to be on the facts include, but are not limited to, a determination that a verdict of conviction resulting in a judgment was, in whole or in part, against the weight of the evidence.”


text:
    [956 NE2d 1266, 932 NYS2d 421]
    Dominic Bonomonte, Appellant, v City of New York, Respondent.
    Decided October 13, 2011

      APPEARANCES OF COUNSEL

      Apicella & Schlesinger, New York City (Alan C. Kestenbaum of counsel), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative. Even assuming, as plaintiff alleges, that the City of New York owed plaintiff a duty and breached that duty, the City was entitled to summary judgment dismissing the complaint because it established, as a matter of law, that any negligence on its part was not a proximate cause of plaintiff’s injuries (see Sheehan v City of New York, 40 NY2d 496, 503 [1976]).

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

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