text:
    Lombard & Co., Inc., Respondent, v German De La Roche, Appellant.
    Submitted October 27, 2008;
    decided November 24, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 782 (2008)].


source: Caselaw Access Project

license: Public Domain

text:
    Samson Odumbo, Respondent, v Gamage D. Perera, Appellant.
    Submitted October 14, 2008;
    decided November 24, 2008
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 11 NY3d 761 (2008)].


text:
    In the Matter of the Claim of Rajagopala S. Raghavendra, Appellant. Commissioner of Labor, Respondent.
    Submitted September 22, 2008;
    decided November 24, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The Trustees of Princeton University, Respondent, v National Union Fire Insurance Co. of Pittsburgh, Pa., Appellant, et al., Defendant.
    Submitted October 14, 2008;
    decided November 24, 2008
   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:
    Joel B. Waterman, Appellant, v Weinstein Memorial Chapel et al., Respondents.
    Submitted October 27, 2008;
    decided November 24, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 745 (2008)].


text:
    In the Matter of Goldie Willoughby, Appellant, v Martin P. Murphy et al., Respondents.
    Submitted September 22, 2008;
    decided November 24, 2008
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    [900 NE2d 544, 872 NYS2d 63]
    The People of the State of New York, Appellant-Respondent, v Raymond C. George, Respondent-Appellant.
    Argued October 21, 2008;
    decided November 25, 2008

      APPEARANCES OF COUNSEL

      McNamee, Lochner, Titus & Williams, P.C., Albany (David J. Wukitsch of counsel), for respondent-appellant.

      James Sacket, District Attorney, Schoharie, for appellant-respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Contrary to the People’s contention, defendant properly preserved for our review his challenge to the legal sufficiency of his depraved indifference murder conviction (see People v Hawkins, 11 NY3d 484 [2008] [decided today]).

The Appellate Division properly evaluated defendant’s sufficiency challenge in light of our current decisional law on depraved indifference murder (see People v Jean-Baptiste, 11 NY3d 539 [2008] [decided herewith]). We agree with the Appellate Division that the evidence was insufficient to establish that defendant acted with depraved indifference to human life, but was legally sufficient to convict him of the lesser included offense of manslaughter in the second degree (Penal Law § 125.15 [1]).

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

Order affirmed in a memorandum.


text:
    [900 NE2d 545, 872 NYS2d 64]
    The People of the State of New York, Respondent, v Roberto Castellano, Also Known as Roberto Castelan, Appellant.
    Argued October 21, 2008;
    decided November 25, 2008
    APPEARANCES OF COUNSEL

      Patterson Belknap Webb & Tyler LLP, New York City (Matthew J. Shepherd, Lisa E. Cleary, Norman Kee and Leonard Braman of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Mary Jo Blanchard, Joseph N. Ferdenzi, Karen Swiger and Lawrence H. Cunningham of counsel), for respondent.
   OPINION OF THE COURT

Order affirmed. Defendant’s argument that the evidence presented at trial was insufficient to support his conviction for depraved indifference murder is unpreserved for this Court’s review (see People v Hawkins, 11 NY3d 484 [2008] [decided today]).

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


text:
    In the Matter of Charles Berkman, an Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Submitted October 20, 2008;
    decided November 25, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    Michael Cardo, Appellant, v Board of Managers, Jefferson Village Condo 3, Respondent.
    Submitted October 20, 2008;
    decided November 25, 2008
   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:
    Craig Crawford, Respondent, v Liz Claiborne, Inc., et al., Appellants.
    Submitted October 20, 2008;
    decided November 25, 2008
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 11 NY3d 810 (2008)].


text:
    Marco Julio Enriquez, Respondent, v Home Lawn Care and Landscaping, Inc., et al., Defendants, and James Egloff, Appellant.
    Submitted October 14, 2008;
    decided November 25, 2008
   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:
    Vicky R. Gabay, Respondent, v Irving Bender et al., as Personal Representatives of William Gottlieb and Molly Bender, Deceased, Appellants. Allan H. Carlin, Esq., Nonparty Appellant.
    Submitted October 20, 2008;
    decided November 25, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 760 (2008)].


text:
    Infinity Consulting Group, Inc., Appellant, v Town of Huntington, Respondent.
    Submitted October 20, 2008;
    decided November 25, 2008
   Motion for reconsideration of this Court’s September 16, 2008 dismissal order denied [see 11 NY3d 781 (2008)].


text:
    Nextel of New York, Inc., Respondent, v 87-10 51st Avenue Owners Corporation, Appellant.
    Submitted October 14, 2008;
    decided November 25, 2008
   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:
    [901 NE2d 740, 873 NYS2d 247]
    In the Matter of Partnership 92 LP et al., Appellants, v State of New York Division of Housing and Community Renewal, Respondent.
    Decided December 2, 2008

      APPEARANCES OF COUNSEL

      Shaw & Binder, P.C., New York City (Robert H. Gordon of counsel), for appellants.

      David B. Cabrera, New York City, and Martin B. Schneider for respondent.
   OPINION OF THE COURT

Memorandum.

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

By its terms, the Rent Regulation Reform Act of 1997 (L 1997, ch 116) applies to any proceeding that was pending before the New York State Division of Housing and Community Renewal at the time of its enactment, as this case was (see Matter of Gilman v New York State Div. of Hous. & Community Renewal, 99 NY2d 144, 149 [2002]). Moreover, there was ample basis on this record for the Division to conclude that, in arguing for a higher base rent, the owner had relied on an illusory tenancy. It was therefore appropriate for the agency to apply the default formula to set the base rent since no reliable rent records were available (see Thornton v Baron, 5 NY3d 175, 181 [2005]).

Chief Judge Kaye 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:
    Peter G. Cafferty et al., Appellants, v John E. Cahill, as Real Property Tax Service Director for Broome County, et al., Respondents, et al., Defendants.
    Submitted September 15, 2008;
    decided December 2, 2008
   On the Court’s own motion, appeal insofar as taken from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellants’ motion to amend the complaint, dismissed, without costs, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s denial of appellants’ motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Theresa Cannalonga, Appellant, v Robert Doar, as Commissioner of the Office of Temporary and Disability Assistance of the New York State Department of Family Assistance, et al., Respondents.
    Submitted October 6, 2008;
    decided December 2, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s motion for class certification, dismissed upon the ground that such part of the 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 Theresa Cannalonga, Appellant, v Robert Doar, as Commissioner of the Office of Temporary and Disability Assistance of the New York State Department of Family Assistance, et al., Respondents.
    Submitted October 27, 2008;
    decided December 2, 2008
   Motion by the Empire Justice Center 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 DeRaffele Manufacturing Co., Inc., Respondent, v Kaloakas Management Corp. et al., Appellants.
    Submitted September 22, 2008;
    decided December 2, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellants’ motion to renew, 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:
    Anna Marie DeSimone, Respondent, v Royal GM, Inc., et al., Appellants.
    Submitted October 14, 2008;
    decided December 2, 2008
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying appellants’ postjudgment motion to set aside the verdict, 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:
    Michael D. Diederich, Jr., Appellant, v Nyack Hospital et al., Respondents, et al., Defendants.
    Submitted October 14, 2008;
    decided December 2, 2008
   Motion, insofar as it seeks leave to appeal against Tyrone Mc-Neill, the Orangetown Police Department and the Town of Orangetown, dismissed upon the ground that as to these parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Jones taking no part.


text:
    In the Matter of the Claim of James Hare, Appellant, v Champion International et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 3, 2008;
    decided December 2, 2008
   Appeal, insofar as taken from the order of the Appellate Division denying reconsideration or 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 order of affirmance, 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 (see CPLR 5601).


text:
    In the Matter of Joy Builders, Inc., et al., Appellants, v Town of Clarkstown et al., Respondents.
    Submitted November 17, 2008;
    decided December 2, 2008
   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 Mehrdad Kahen et al., Respondents, v Tyrone Woutersz et al., Respondents, and Rosemary Toriola, Appellant.
    Submitted November 10, 2008;
    decided December 2, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Land Master Montg I, LLC, et al., Respondents, v Town of Montgomery et al., Appellants, et al., Respondents. (Matter No. 1.) In the Matter of Roswind Farmland Corp. et al., Respondents, v Town of Montgomery et al., Appellants, et al., Respondents. (Matter No. 2.)
    Submitted November 17, 2008;
    decided December 2, 2008
   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 Mamaroneck Beach & Yacht Club, Inc., et al., Respondents, v Zoning Board of Appeals of Village of Mamaroneck et al., Appellants, et al., Respondents.
    Submitted September 15, 2008;
    decided December 2, 2008
   Motion by Federated Conservationists of Westchester County, Inc. for leave to file a brief amicus curiae on the motions for leave to appeal herein granted and the brief is accepted as filed.


text:
    Annette Meiselman, Appellant, v Lonnie Fogel et al., Respondents.
    Submitted November 13, 2008;
    decided December 2, 2008
   Motion for reconsideration of this Court’s September 16, 2008 dismissal order denied [see 11 NY3d 783 (2008)].


text:
    MHR Capital Partners LP et al., Appellants, v Presstek, Inc., Respondent, et al., Defendant.
    Submitted September 29, 2008;
    decided December 2, 2008
   Motion to dismiss the appeal herein denied.


text:
    Polina Mullayeva, Appellant, v Robert Mullayev, Respondent.
    Submitted October 6, 2008;
    decided December 2, 2008
   Motion for leave to appeal dismissed upon the ground that it does not lie (see CPLR 5602).


text:
    St. Lawrence Factory Stores, Appellant, v Ogdensburg Bridge and Port Authority, Respondent.
    Submitted September 15, 2008;
    decided December 2, 2008
   Motion by Richard A. Lord, Esq. for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein denied.


text:
    St. Lawrence Factory Stores, Appellant, v Ogdensburg Bridge and Port Authority, Respondent.
    Submitted September 8, 2008;
    decided December 2, 2008
   Motion by General Building Contractors of New York State, Inc. for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    In the Matter of the Estate of James E. Selvy, Deceased. Allan Selvy, Appellant; Valerie Taylor et al., Respondents.
    Submitted October 14, 2008;
    decided December 2, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Timothy Shockome, Respondent, v Yevgenia Shockome, Appellant.
    Submitted September 15, 2008;
    decided December 2, 2008
   Motion by Justice for Children 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 Rosemary Toriola, Appellant, v Supreme Court State of New York Appellate Term 2nd and 11th Judicial Districts et al., Respondents.
    Submitted November 10, 2008;
    decided December 2, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const art VI, §3 [b]; CPLR 5601).


text:
    [901 NE2d 743, 873 NYS2d 250]
    Saramilia Gaston et al., Respondents, v American Transit Insurance Company, Appellant.
    Argued February 14, 2008;
    decided December 16, 2008

      APPEARANCES OF COUNSEL

      Marjorie E. Bornes, New York City, for appellant.

      William D. Fireman, P.C., New York City (William D. Fireman and Steven Herschkowitz of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying plaintiffs’ motion for summary judgment and, as so modified, affirmed.

In this Insurance Law § 3420 action, defendant insurer should not have been collaterally estopped from litigating the issue of whether the car that collided with the bus in which the injured plaintiffs were traveling was insured on the date of the accident. Three prior judgments involving different parties’ claims arising from the same bus accident were submitted to the court. The plaintiffs proffered two default judgments that resolved the coverage issue against the insurer while the insurer demonstrated that the same coverage question had been adjudicated in a third proceeding resulting in a judgment in the insurer’s favor. In light of these conflicting judgments on the same issue, application of the doctrine of collateral estoppel was not warranted (see Restatement [Second] of Judgments § 29 [4]). Since plaintiffs’ arguments in opposition to the insurer’s cross motion for summary judgment were not addressed by either of the courts below, we decline to grant the insurer’s cross motion for summary judgment.

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

Order modified, etc.

       Plaintiff Nicole Jean died during the pendency of this appeal. Following proceedings in Surrogate’s Court, Supreme Court substituted Stephanie Jean, the administratrix of her estate, as a plaintiff and amended the caption to reflect both the substitution and the fact that the former infant plaintiff, Saramilia Gaston, is now over the age of 18.


text:
    [901 NE2d 741, 873 NYS2d 248]
    In the Matter of Omni Recycling of Westbury, Inc., Respondent, v Town of Oyster Bay et al., Appellants.
    Argued November 18, 2008;
    decided December 16, 2008

      APPEARANCES OF COUNSEL

      Giaimo Associates, LLP, Kew Gardens (Joseph O. Giaimo of counsel), for Glove Company, Inc., appellant.

      Gregory J. Giammalvo, Town Attorney, Oyster Bay (Frank M. Scalera of counsel), for Town of Oyster Bay and another, appellants.

      Anthony E. Core, P.C., Westbury (Anthony E. Core and Jacqueline Caputo of counsel), for respondent.

      Michael E. Kenneally, Jr., Albany, for Association of Towns of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the petition denied in the entirety.

It has long been recognized that public work contracts that require the exercise of specialized or technical skills, expertise or knowledge are not subject to the sealed, competitive bidding requirements under General Municipal Law § 103 (see e.g. People v Flagg, 17 NY 584 [1858]) and may instead be awarded using the request for proposals (RFP) process set forth in General Municipal Law § 104-b. In May 2004, respondent Town of Oyster Bay passed a resolution authorizing the use of section 104-b procedures for the procurement of goods and services not subject to competitive bidding, and the Town’s Department of Public Works issued an RFP for “Services for the Recycling of Newspaper, Mixed Paper and Corrugated Cardboard” and “Services for the Recycling of Commingled Glass, Ferrous and NonFerrous Metal and Rigid Plastic Containers.” Proposals were solicited from nine companies, which were eventually narrowed to petitioner Omni Recycling of Westbury, Inc. and respondent Giove Company. The Town obtained independent review of the two submissions by a consultant, conducted a public hearing and awarded the contract to Giove.

Omni then initiated this proceeding, arguing that the Town should have used the competitive bidding process under section 103. We. conclude, however, that based on the description of the particular services to be rendered in the RFP, this recycling contract fell within the special skills exception to the “lowest responsible bidder” requirement of section 103 (1) and therefore was properly awarded using an RFP process consistent with the section 104-b procedures adopted by the Town.

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

Order, insofar as appealed from, reversed, etc.

       General Municipal Law § 103 (1) provides, in part, that “[ejxcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded ... to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section.”


text:
    Frank Adamo, as Executor of the Estate of Norma Rose, Deceased, et al., Appellants, v Brown & Williamson Tobacco Corporation, as Successor in Interest to American Tobacco, et al., Respondents, et al., Defendant.
    Submitted December 8, 2008;
    decided December 16, 2008
   Motion to substitute Frank Adamo, as Executor of the Estate of Norma Rose, as a party appellant herein for appellant Norma Rose granted.


text:
    Vivia Amalfitano et al., Respondents, v Armand Rosenberg, Appellant.
    Submitted December 1, 2008;
    decided December 16, 2008
   Motion by James J. Melcher for leave to file a brief amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Doris Brownley et al., Appellants, v Robert Doar, as Commissioner of the New York State Office of Temporary and Disability Assistance, Respondent, et al., Defendants.
    Submitted November 24, 2008;
    decided December 16, 2008
   Motion by Community Service Society of New York et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Paula Fasso et al., Respondents, and Independent Health Association, Inc., Intervenor-Appellant, v Ralph J. Doerr, M.D., Respondent.
    Submitted December 1, 2008;
    decided December 16, 2008
   Motion by the New York State Health Plan Association, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted December 1, 2008;
    decided December 16, 2008
   Motion by Team French Spirit et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted December 8, 2008;
    decided December 16, 2008
   Motion by City of Valencia, Spain 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 24 copies filed within seven days.


text:
    Irving Hosten, Appellant, v Dele Oladapo, Respondent.
    Submitted October 27, 2008;
    decided December 16, 2008
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Mario Miguel Jaramillo, Appellant, v Weyerhaeuser Company et al., Respondents, et al., Defendant.
    Submitted November 24, 2008;
    decided December 16, 2008
   Motion by Pacific Legal Foundation for leave to file a brief amicus curiae on consideration of the certified question 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, Appellant, v Paul Boyd, Respondent.
    Submitted November 24, 2008;
    decided December 16, 2008
   Motion for assignment of counsel granted and Dominic J. Sichenzia, Esq., One Old Country Road, Suite 390, Carle Place, New York 11514 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Bajro Hoti, Appellant.
    Submitted December 1, 2008;
    decided December 16, 2008
   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. Anthony Gill, Respondent, v Gary Greene, as Superintendent of Great Meadow Correctional Facility, Appellant.
    Submitted December 8, 2008;
    decided December 16, 2008
   Motion to vacate this Court’s November 21, 2008 preclusion order granted.


text:
    The People of the State of New York ex rel. Anthony Gill, Respondent, v Gary Greene, as Superintendent of Great Meadow Correctional Facility, Appellant.
    Submitted December 1, 2008;
    decided December 16, 2008
   Motion by District Attorneys Association of the State of New York for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    [902 NE2d 952, 874 NYS2d 399]
    In the Matter of Paul G. Kenny, Appellant, v Thomas P. DiNapoli, as New York State Comptroller, Respondent.
    Decided December 17, 2008

      APPEARANCES OF COUNSEL

      Annette G. Hasapidis, South Salem, for appellant.

      Andrew M. Cuomo, Attorney General, Albany (William E. Storrs, Barbara D. Underwood, Andrew D. Bing and Peter H. Schiff of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In the context of accidental disability retirement benefits, we have defined an accident as a “sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact” and we have indicated that “an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982]). In this case, the Comptroller denied the application for accidental disability retirement benefits because petitioner, who slipped on a wet ramp while exiting a restaurant, knew that the ramp was wet and therefore knew of the hazard that led to his injury before the incident occurred. In other words, the Comptroller was not persuaded that the incident involved an “unexpected event.” Because the Comptroller’s conclusion is supported by substantial evidence in the record, the determination was properly confirmed.

Chief Judge Kaye 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), judgment affirmed, with costs, in a memorandum.


author: Jones, J.

text:
    [903 NE2d 256, 874 NYS2d 859]
    The People of the State of New York, Appellant-Respondent, v Alfred Ford, Respondent-Appellant.
    Argued November 19, 2008;
    decided December 17, 2008

      APPEARANCES OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City (Patrick J. Hynes and Hilary Hassler of counsel), for appellant-respondent.

      Legal Aid Society Criminal Appeals Bureau, New York City (Steven Banks, Andrew Fine and John Schoeffel of counsel), and Kaye Scholer LLP (Max R. Schwartz, Michael A. Rogoff, Paula R. Ramer and John S. Cabalan of counsel), for respondent-appellant.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reinstating defendant’s conviction for first-degree robbery and remitting to that court for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]), and, as so modified, affirmed.

A grand juiy returned a single indictment charging defendant Alfred Ford with first-degree robbery and lesser offenses related to two successive robberies in May 2004 in elevators of residential buildings on Park Avenue in Manhattan. Before trial, defendant unsuccessfully sought to sever the trials of the two crimes on the ground that the proof of his identity in the second robbery was stronger than that in the first, and the jury would thus be unable to consider the proof of each incident separately. Ultimately, defendant was convicted of two counts of first-degree robbery, one with respect to each incident.

On appeal, defendant contended that Penal Law § 160.15 (3) requires the People to establish defendant’s “actual possession” of a dangerous instrument, and there was insufficient evidence that he had actually possessed a knife during one of the robberies. Second, he argued that the trial court erroneously denied his severance motion. The People responded that, viewing the evidence in light of the unobjected-to instruction—which did not require the jury to find that defendant actually possessed the knife—the evidence of first-degree robbery was legally sufficient. Alternatively, the People argued that the evidence was legally sufficient to establish that defendant actually possessed a knife. As for severance, the People took the position that joinder was proper because there was no material variance in the quantity of proof relating to each crime, and the jury would be able to consider the evidence as to each crime separately.

The Appellate Division modified the judgmept of conviction, reduced the defendant’s conviction for first-degree robbery to third-degree robbery, and remanded the case to Supreme Court for resentencing on that count. The court concluded that although the charge as given alerted the jury to the “actual possession” element of the crime, the evidence of actual possession was legally insufficient. Further, the Appellate Division rejected defendant’s severance claim. A Judge of this Court granted both the People and defendant leave to appeal.

In its charge to the jury, the trial court explained that, to find defendant guilty of first-degree robbery, the jury would have to find

“[f]irst, that on May 31, 2004 . . . the defendant . . . forcibly stole property from [the victim]; second, that in the course of the commission of the crime or in the immediate flight therefrom, the defendant used or threatened the immediate use of a knife; [and] third, that under the circumstances the knife was a dangerous instrument.”

The Appellate Division concluded that this charge adequately alerted the jury to the “actual possession” element of the crime, principally by virtue of the single reference to “ ‘the knife,’ rather than a hypothetical knife” (People v Ford, 44 AD3d 515, 516 [1st Dept 2007]). We cannot agree. More than a subtle verbal clue was necessary for the jury to be put on notice of its obligation to decide whether defendant actually possessed a knife; it is not enough for an instruction merely to imply the elements of a crime. Simply put, the charge in this case did not use the term “actual possession,” or in any other way convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the “actual possession” requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law (see Pena, 50 NY2d at 407; see generally People v Johnson, 70 NY2d 819 [1987]).

Because there was no objection to the charge, however, the legal sufficiency of defendant’s conviction must be viewed in light of the court’s charge as given without exception (see People v Sala, 95 NY2d 254 [2000]; People v Dekle, 56 NY2d 835 [1982]). Viewed as such, the evidence was legally sufficient to establish defendant’s guilt of first-degree robbery. During the course of the robbery, defendant stated, “I got a knife,” while simultaneously moving his hand toward his pants pocket. These acts, considered together, provide legally sufficient evidence to establish that defendant “used or threatened the immediate use” of a knife in the course of the robbery, as the trial court charged. As a result, defendant’s conviction for first-degree robbery should be reinstated.

Our recent decision in People v Jean-Baptiste (11 NY3d 539 [2008]) does not warrant a different result. There, defendant’s motion to dismiss for legal insufficiency—which related to the elements of the crime—apprised the trial judge of any potential error in the charge. The judge in responding made a clear disposition on the law; he incorporated into the charge what he had already told defense counsel reflected the law. Under these circumstances, an objection to the charge itself would have been superfluous and futile, and would not have advanced the sound policy reasons underlying the preservation requirement (see People v Hawkins, 11 NY3d 484 [2008]).

Here, by contrast, the legal sufficiency objection was based on the perceived inadequacy of the proof, not on an interpretation of an element of the offense. The objection to sufficiency was merely “denied”; the trial judge did not clearly make a distinction between whether he was denying the motion because the evidence was insufficient to establish possession, or because he considered proof of actual possession to be unnecessary. As a result, defense counsel was required to object to the jury charge—which, as already noted, did not instruct the jurors that they had to find that defendant actually possessed the knife in order to convict him of first-degree robbery—in order to avoid having the sufficiency of the evidence supporting his conviction evaluated in light of the charge as given.

Finally, we reject defendant’s claim that the trial court erroneously denied his severance motion. Defendant failed to establish good cause for severance under section 200.20 (3) (a) of the Criminal Procedure Law because there was no material variance in the quantity of proof for the separate incidents. Moreover, the evidence as to the two crimes was presented separately and was readily capable of being segregated in the minds of the jury. The incidents occurred on different dates and the evidence as to each incident was presented through entirely different witnesses.

Jones, J.

(dissenting in part). The question before the Court— whether there was legally sufficient evidence to support defendant’s first-degree robbery conviction (see Penal Law § 160.15 [3])—is here on the People’s appeal. Defendant was charged in a single indictment with two robberies, one occurring on May 24 and one on May 31, 2004. I agree with the majority in holding that the trial court properly exercised its discretion in denying defendant’s motion to sever the trials of the two robberies under CPL 200.20 (3) (a).

However, I disagree with the majority’s conclusion, with respect to the May 31, 2004 robbery, that there was legally sufficient evidence that defendant committed a robbery in the first degree (Penal Law § 160.15 [3] [which requires use or threatened use of a “dangerous instrument”]) and that the Appellate Division erred by concluding that the “charge adequately alerted the jury to the ‘actual possession’ element of the crime.” The majority argues that defendant failed to preserve his claim of legal insufficiency because he did not object to the jury charge. Specifically, the majority contends that although defendant moved for a trial order of dismissal based on insufficient evidence of a knife, he was required to object to the jury charge as given, and that having failed to object to the jury charge, defendant loses his claim of legal insufficiency. Put differently, the majority contends that to preserve his claim of insufficiency, defendant should have requested that the court instruct the jury that robbery in the first degree required proof of an actual knife.

The jury charge was not incorrect. The trial court, as part of its charge to the jury, instructed that a “dangerous instrument means any instrument, which under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.” Reading this definition in conjunction with the portion of the charge quoted by the majority (majority mem at 877-878) makes clear that in order for defendant to be convicted of robbery in the first degree, the People must prove that he actually possessed a knife.

The majority’s approach leads to a bizarre result. Under their view, the lack of evidence of a “dangerous instrument” (a knife) is held to be legally sufficient “evidence” because the jury charge was erroneous and defendant failed to make an objection, ask for a correction or seek clarification he was entitled to. If the court had given the clearer charge, defendant would be allowed to argue sufficiency—an issue that he preserved—under the correct view of the law. However, because the charge didn’t “adequately alert the jury” to the correct view of the law, the case must be decided as though the incorrect view of the law, left open by the charge, was correct. This, frankly, makes no sense.

In support of their position, the majority cites People v Sala (95 NY2d 254 [2000]) and People v Dekle (56 NY2d 835 [1982]). The majority’s reliance on Sala and Dekle is misplaced and their position is in conflict with People v Jean-Baptiste (11 NY3d 539 [2008]), a case recently decided by this Court. In Jean-Baptiste, we noted (at 544) that

“the defendant made a specific motion to dismiss for legal insufficiency at trial, anticipating the change in the law brought by [People v Feingold (7 NY3d 288, 294 [2006]), which overruled People v Register (60 NY2d 270 [1983]) and held that ‘depraved indifference to human life is a culpable mental state’]. The principle the People cite is inapplicable when, as in this case, defense counsel made a specific motion for a trial order of dismissal. Having made that motion, defense counsel did not additionally have to take an exception to the court’s depraved indifference murder charge” (citation omitted).

As Jean-Baptiste points out, Sala and Dekle are distinguishable from that case—as they are from this one—because in those two cases the defendants advanced a different legal theory on appeal than the one they advanced before the trial court.

The instant case is analogous to Jean-Baptiste. Defendant Ford made a motion for a trial order of dismissal. As in Jean-Baptiste, the instant charge as given was not erroneous or at very least, did not misstate the law. Additionally, the objection made at trial as to the legal insufficiency was clearly stated and understood by the court and the People and was the same argument made on appeal.

In this case, the People charge that defendant possessed a knife as a dangerous instrument. They rely on defendant’s statement to the victim that he had a knife, along with a gesture towards his pants pocket, to meet the statutory requirement of possession of a dangerous instrument. The victim testified that he never saw a knife; nor was a knife recovered, even though defendant was arrested a short time after the crime. Also, the injuries sustained by the victim were from punches delivered by the defendant.

A verbal threat by a defendant that he possesses a dangerous instrument, standing alone, is clearly insufficient to establish the “dangerous instrument” element of robbery in the first degree (see People v Moore, 185 AD2d 825 [2d Dept 1992]; People v White, 155 AD2d 934 [4th Dept 1989]; People v Robare, 109 AD2d 923 [3d Dept 1985]). There must be proof of an actual knife. Assuming that there could be cases in which a defendant’s admission would be sufficient proof that a knife was actually present, this is not such a case. In White, the defendant threatened the victim by saying that he had a razor, but the victim never saw a razor nor was a razor recovered (see 155 AD2d at 934). The court, in reducing the burglary in the first degree conviction to burglary in the third degree, held “there was no valid line of reasoning and permissible inferences to lead a rational person to the conclusion that defendant had actual possession of a razor” (id., citing People v Bleakley, 69 NY2d 490, 495 [1987]). The same can be said of the possession of a knife under these facts.

As the Appellate Division aptly pointed out, a defendant to be guilty of this offense must not only use or threaten the use of a dangerous instrument, he must actually possess a dangerous instrument (see People v Pena, 50 NY2d 400, 407 [1980], cert denied 449 US 1087 [1981]).

Based on the foregoing, I would affirm the order of the Appellate Division and find that the defendant was only guilty of robbery in the third degree.

Chief Judge Kaye and Judges Ciparick, Graffeo and Read concur in memorandum; Judge Jones dissents in part and votes to affirm in an opinion in which Judges Smith and Pigott concur.

Order modified, etc.

      . Penal Law § 160.15 (3) provides that “[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [w]ses or threatens the immediate use of a dangerous instrument” (emphasis added). In People v Pena (50 NY2d 400, 407 [1980]), we indicated that the “use or threatened use” language requires proof of actual possession.

      . Because of our disposition of this appeal, we need not decide and express no opinion as to whether the proof in this case was sufficient to establish actual possession.

       In fact, the People, who are appellants here, never objected to the jury charge as given.


text:
    [901 NE2d 749, 873 NYS2d 256]
    Todd Schosek, as Administrator of the Estate of Jesse J. Schosek, Deceased, et al., Appellants, v Amherst Paving, Inc., et al., Respondents.
    Decided December 17, 2008

      APPEARANCES OF COUNSEL

      Michael L. Kobiolka, Eden, for Todd Schosek, appellant.

      Michael G. Cooper, Hamburg, for Kelly Schosek, appellant.

      Kenney Shelton Liptak Nowak LLP, Buffalo (Brian MacDonald of counsel), for Amherst Paving, Inc., 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, insofar as appealed from, reversed, with costs, and that part of defendant Amherst Paving, Inc.’s motion that sought summary judgment dismissing the complaint against it denied. A triable issue of fact exists as to whether Amherst Paving created or exacerbated a dangerous condition.

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


text:
    Arrello Barnes, Appellant, v State of New York, Respondent.
    Submitted November 3, 2008;
    decided December 17, 2008
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Kevin Glassman, Respondent, v Pro Health Ambulatory Surgery Center, Inc., et al., Appellants.
    Submitted December 1, 2008;
    decided December 17, 2008
   Motion by the New York State Association of Ambulatory Surgery Centers, Inc. for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Kevin Glassman, Respondent, v Pro Health Ambulatory Surgery Center, Inc., et al., Appellants.
    Submitted November 3, 2008;
    decided December 17, 2008
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Iftikhar Ahmad Khan, Appellant, v Omne Staffing, Inc., et al., Respondents. Workers' Compensation Board, Respondent.
    Submitted November 10, 2008;
    decided December 17, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 707 (2008)].


text:
    The People of the State of New York ex rel. Dante Griffin, Appellant, v New York State Division of Parole et al., Respondents.
    Submitted November 10, 2008;
    decided December 17, 2008
   Motion for leave to appeal dismissed upon the ground that relator has been released on postrelease supervision and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).


text:
    Deonarine Ramnarain, Appellant, v Chandradat Ramnarain, Respondent, et al., Defendant.
    Submitted November 3, 2008;
    decided December 17, 2008
   Motion, insofar as it seeks leave to appeal from the December 2007 Appellate Division order, dismissed upon the ground that it does not lie, appellant previously having moved for leave to appeal to the Court of Appeals from the Appellate Division order from which leave to appeal is currently sought (10 NY3d 785 [2008]); motion, insofar as it seeks leave to appeal from the September 2008 Supreme Court order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution and thus does not constitute a final judgment within the meaning of CPLR 5602 (a) (1) (ii).


text:
    In the Matter of Leopold Siao-Pao, Appellant, v Robert Dennison, as Acting Chairman of the New York State Division of Parole, Respondent.
    Submitted November 3, 2008;
    decided December 17, 2008
   Motion for reargument denied [see 11 NY3d 777 (2008)].


text:
    Alice Whalen, Respondent, v DeGraff, Foy, Conway, Holt-Harris & Mealey, Now Known as DeGraff, Foy, Kunz & Devine, LLP, Appellant.
    Submitted November 3, 2008;
    decided December 17, 2008
   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:
    [903 NE2d 261, 874 NYS2d 864]
    The People of the State of New York, Respondent, v Tebrue James, Appellant.
    Argued November 19, 2008;
    decided December 18, 2008
    APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City (Christopher P. Marinetti and Alan Gadlin of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Because there was no reasonable view of the evidence to support a conviction of the lesser included offense of robbery in the third degree (Penal Law § 160.05), Supreme Court did not err in declining to submit that charge to the jury.

Defendant and three companions—Davis, Scott and Flores— approached the victim as he left his high school in Manhattan. After briefly conversing with him, Scott and Flores crossed the street to act as lookouts, while defendant and Davis closely surrounded and backed him against a wall. Defendant pressed his hip into the victim’s waist, revealing what appeared to be a gun. At trial, the victim testified that he clearly saw the barrel and handle of a black gun. Defendant and Davis then took the victim’s money and iPod.

Scott, who testified at trial for the People under a cooperation agreement, said that during the robbery he continued to look up and down the street, but he later crossed the street to tell defendant and Davis to hurry up. Although he claimed never to have seen defendant display a gun, he heard Davis say to the victim, “better give up all of [your] stuff, because [defendant] had a gun.” After the robbery was complete, the victim called 911. The police arrived and defendant and his cohorts were apprehended nearby and identified by the victim. Defendant had $53—the amount of money taken from the victim—and Flores had the victim’s iPod. No handgun was recovered. Defendant, Davis and Flores were tried jointly. Defendant argued that a conviction on the lesser charge would be permissible if the jury were to credit Scott’s testimony that he saw no gun and conclude that defendant robbed the victim without a gun. Supreme Court denied defendant’s request to charge the jury on robbery in the third degree as a lesser included offense of robbery in the first degree (Penal Law § 160.15 [4]), referring to the second count of the indictment—robbery in the second degree (Penal Law § 160.10 [1]) (aided by another actually present).

Defendant was convicted of both robbery in the first degree and robbery in the second degree. The Appellate Division affirmed the conviction, with one Justice dissenting, holding that while robbery in the third degree is a lesser included offense of robbery in the first degree, there was no reasonable view of the evidence to support the lesser included charge. Further, the Appellate Division held that the jury could not be permitted to parse the victim’s testimony to conclude that defendant did not use a gun during the robbery.

To establish a charge on a lesser included offense, a defendant must show both that the greater crime cannot be committed without having concomitantly committed the lesser by the same conduct, and that a reasonable view of the evidence supports a finding that he or she committed the lesser, but not the greater, offense (see People v Van Norstrand, 85 NY2d 131, 135 [1995], citing People v Glover, 57 NY2d 61, 63 [1982]; People v Scarborough, 49 NY2d 364 [1980]; CPL 1.20 [37]; 300.50 [1]).

Although robbery in the third degree is a lesser included crime of robbery in the first degree, here there is no reasonable view of the evidence to support a jury finding that defendant committed robbery in the third degree and not robbery in the first degree. The victim testified that defendant had a gun. No other evidence, viewed reasonably, contradicted that testimony. Although Scott claimed not to have seen defendant with a gun from his vantage points—across the street and upon nearing defendant—even he acknowledged overhearing Davis say to the victim that defendant had a gun.

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

Order affirmed in a memorandum.


text:
    [901 NE2d 752, 873 NYS2d 258]
    The People of the State of New York, Respondent, v Dionis Collado, Appellant.
    Decided December 18, 2008

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City (Paula-Rose Stark of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified to the extent of remitting this matter to Supreme Court for resentencing, and otherwise affirmed.

Because Supreme Court failed to pronounce the term of defendant’s mandatory postrelease supervision in his presence, this matter must be remitted to Supreme Court for a resentencing proceeding (see People v Sparber, 10 NY3d 457, 469-471 [2008]). We have considered defendant’s remaining arguments, concerning the propriety of his arrest, and conclude that they are meritless.

Chief Judge Kaye 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 modified by remitting to Supreme Court, New York County, for resentencing and, as so modified, affirmed, in a memorandum.


text:
    [901 NE2d 752, 873 NYS2d 259]
    Ines DeJesus, Appellant, v New York City Housing Authority, Respondent.
    Decided December 18, 2008

      APPEARANCES OF COUNSEL

      Trolman, Glaser & Lichtman, P.C., New York City (Michael T. Altman of counsel), for appellant.

      Cullen and Dykman LLP, Brooklyn (Joseph Miller 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 affirmed, with costs. In this slip and fall case, plaintiff failed to raise a triable issue of fact that defendant caused or created, or had constructive notice of a dangerous recurring condition.

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


text:
    In the Matter of Anonymous, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted November 17, 2008;
    decided December 18, 2008
   Appeal, insofar as taken from that portion of the Appellate Division order that denied a motion to transfer the matter to the First Department and to issue certain subpoenas, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the 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:
    In the Matter of Anonymous, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted December 8, 2008;
    decided December 18, 2008
   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:
    Victor Batshever, Appellant, v Avery E. Okin, Respondent.
    Submitted November 17, 2008;
    decided December 18, 2008
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 807 (2008)].


text:
    In the Matter of Chet Allen Bottorff, Appellant, v Anthony F. Shaheen, as Justice of the Supreme Court, Oneida County, et al., Respondents.
    Submitted December 1, 2008;
    decided December 18, 2008
   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 Bruce B., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted November 10, 2008;
    decided December 18, 2008
   Motion for leave to appeal dismissed upon the ground of mootness.


text:
    Credit-Based Asset Servicing and Securitization, LLC, Respondent, v Marie Louise Chaudry, Appellant, et al., Defendants.
    Submitted November 24, 2008;
    decided December 18, 2008
   Motion for reargument dismissed as untimely (see 22 NYCRR 500.24 [b]) [see 7 NY3d 915 (2006); 100 NY2d 615 (2003)].


text:
    In the Matter of Joy Gartmond, Appellant, v Thomas Conway, Respondent.
    Submitted December 8, 2008;
    decided December 18, 2008
   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:
    The People of the State of New York, Respondent, v Tyrone Maye, Appellant.
    Submitted November 10, 2008;
    decided December 18, 2008
   Motion to vacate preclusion order denied.


text:
    The People of the State of New York ex rel. Carpeah R. Nyenekor, Appellant, v Carl E. Dubois, Respondent.
    Submitted December 8, 2008;
    decided December 18, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Carpeah R. Nyenekor, Appellant, v Peggi Healy, Respondent.
    Submitted December 8, 2008;
    decided December 18, 2008
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Samuel Schwartz, Appellant, v Chatchavan Suebsanguan, Defendant, and Gordon D. Lutchman et al., Respondents.
    Submitted November 17, 2008;
    decided December 18, 2008
   Motion for reargument dismissed as untimely (see 22 NYCRR 500.24 [b]) [see 6 NY3d 805 (2008)].


text:
    In the Matter of Vanessa Ann G.-L. Nassau County Department of Social Services, Appellant; Calvin L.L., Respondent, et al., Intervenors.
    Submitted November 17, 2008;
    decided December 18, 2008
   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. The Appellate Division order denying the motion to dispense with the father’s consent to the adoption was rendered within the termination of parental rights proceeding and that proceeding remains pending.


text:
    [901 NE2d 756, 873 NYS2d 756]
    In the Matter of Nora S. Anderson.
    Decided December 29, 2008
   OPINION OF THE COURT

On the Court’s own motion, it is determined that the Honorable Nora S. Anderson is suspended, with pay, from the office of Surrogate, New York County, effective January 1, 2009, pursuant to NY Constitution, article VI, § 22 and Judiciary Law § 44 (8).

Concur: Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones. Taking no part: Chief Judge Kaye.


text:
    [901 NE2d 756, 873 NYS2d 263]
    The People of the State of New York, Appellant, v Elvis Silvestry, Respondent.
    Decided January 13, 2009
    APPEARANCES OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Edward D. Saslaw of counsel), for appellant.

      Sally Butler, Bayside, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether the circumstances of a particular case rise to the level of reasonable suspicion is a mixed question of law and fact, beyond our review if the determination is supported by the record. Here record evidence supports the lower courts’ determination that the police lacked such suspicion (People v De Bour, 40 NY2d 210 [1976]).

The People’s other contentions lack merit.

Acting Chief Judge Ciparick and Judges 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:
    Robert Callahan et al., Appellants, v Hugh L. Carey et al., Defendants, and Edward I. Koch et al., Respondents. Louise F. Eldredge et al., Appellants, v Edward I. Koch et al., Respondents.
    Submitted December 22, 2008;
    decided January 13, 2009
   Motion for leave to waive the filing fee required by section 500.3 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.3) granted.


text:
    In the Matter of City of New York, Appellant, Relative to the Melrose Commons Urban Renewal Area, Phase II. Kaiser Woodcraft Corp., Respondent.
    Submitted December 1, 2008;
    decided January 13, 2009
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 11 NY3d 353 (2008)].


text:
    George Eremeyev et al., Appellants, v Manhattan Eye, Ear & Throat Hospital, et al., Respondents.
    Submitted November 17, 2008;
    decided January 13, 2009
   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:
    Miliha Ferluckaj, Respondent, v Goldman Sachs & Co., Appellant, et al., Defendant. Goldman Sachs & Co., Third-Party Plaintiff, v American Building Maintenance Co., Third-Party Defendant.
    Submitted January 5, 2009;
    decided January 13, 2009
   Motion by Defense Association of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted January 5, 2009;
    decided January 13, 2009
   Motion by Deutscher Challenger Yacht Club 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:
    Alan M. Goldston, as Assignee of Goldston & Schwab, LLP, Respondent, v Bandwidth Technology Corp. et al., Appellants.
    Submitted November 3, 2008;
    decided January 13, 2009
   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 J.W. Hardy, Jr., Appellant.
    Submitted December 29, 2008;
    decided January 13, 2009
   Motion for assignment of counsel granted and James S. Hinman, Esq., 16 East Main Street, Suite 260, 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 L. Dennis Kozlowski, Appellant.
    Submitted December 8, 2008;
    decided January 13, 2009
   Motion for reargument denied [see 11 NY3d 223 (2008)].


text:
    The People of the State of New York, Respondent, v Charles Lloyd, Appellant.
    Submitted December 15, 2008;
    decided January 13, 2009
   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 Anthony Wayne Smith, Appellant.
    Submitted January 5, 2009;
    decided January 13, 2009
   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 Mark H. Swartz, Appellant.
    Submitted December 8, 2008;
    decided January 13, 2009
   Motion for reargument denied [see 11 NY3d 223 (2008)].


text:
    The People of the State of New York, Respondent, v David C. Williams, Appellant.
    Submitted December 29, 2008;
    decided January 13, 2009
   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 ex rel. Walter J. Roache, Appellant, v George B. Alexander, as Chair of the Division of Parole, et al., Respondents.
    Submitted November 17, 2008;
    decided January 13, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Dean Ross, Appellant, v Eric Nelson et al., Respondents.
    Decided January 13, 2009
   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:
    Josephine T. Rossi, Appellant, v Budget Rent A Car/Budget Car and Truck Rental, Respondent, et al., Defendants.
    Submitted December 8, 2008;
    decided January 13, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 709 (2008)].


text:
    In the Matter of Walter Self, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted December 8, 2008;
    decided January 13, 2009
   Motion for reargument denied [see 11 NY3d 810 (2008)].


text:
    [901 NE2d 1274, 873 NYS2d 522]
    Trinity Associates, Inc., Respondent, v Telesector Resources Group, Inc., Doing Business as Verizon Services Group, Inc., Appellant.
    Decided January 15, 2009

      APPEARANCES OF COUNSEL

      Dewey & LeBoeuf, New York City (Alan B. Howard, of counsel), and Ledy-Gurren Bass & Siff, LLP (Nancy Ledy-Gurren of counsel), for appellant.

      Greenfield Stein & Senior, LLP, New York City (Paul T. Shoemaker 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 affirmed, with costs. Evidence supports the jury’s conclusions that the 2001 correspondence modified the 1999 agreement and that defendant Verizon Services Group, Inc. breached the agreement as modified.

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


text:
    Jiovon Anonymous, an Infant, by His Father and Legal Guardian, Thomas Anonymous, et al., Respondents, v City of Rochester et al., Appellants.
    Submitted December 8, 2008;
    decided January 15, 2009
   Motion to vacate stay denied. Motion for a preference granted. Cross motion for a stay dismissed as academic.


text:
    Arts4All, Ltd., Appellant-Respondent, et al., Plaintiff, v Judith L. Hancock, Respondent-Appellant and Third-Party Respondent. Daniel Y.C. Ng et al., Third-Party Defendants.
    Submitted October 20, 2008;
    decided January 15, 2009
   Motion by Arts4All, Ltd. to dismiss the appeal taken as of right by Hancock granted and the appeal dismissed, without costs, upon the ground that the two-Justice dissent is not on a question of law and no substantial constitutional question is directly involved. On the Court’s own motion, appeal taken as of right by Arts4All dismissed, without costs, upon the ground that the two-Justice dissent is not on a question of law.


text:
    In the Matter of Devontay M., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Devon M., Appellant, et al., Respondent. In the Matter of Devontaya M., a Child Alleged to be Neglected. Administration for Children’s Services, Respondent; Devon M., Appellant, et al., Respondent.
    Submitted December 8, 2008;
    decided January 15, 2009
   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 Gloria Marie S., a Child Alleged to be Permanently Neglected. Alex S., Appellant; Leake & Watts Services, Inc., Respondent, et al., Respondent.
    Submitted November 24, 2008;
    decided January 15, 2009
   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:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by New York Yacht Club 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:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by the San Diego Yacht Club Sailing Foundation et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted Januáry 12, 2009;
    decided January 15, 2009
   Motion by William I. Koch for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Golden Gate Yacht Club, Appellant, v Société Nautique de Genève, Respondent, and Club Náutico Español de Vela, Intervenor-Defendant.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by Team French Spirit et al. for leave to file a second brief amici curiae on the appeal herein denied.


text:
    Norma Gorman et al., Respondents, v Town of Huntington, Appellant.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by the Association of Towns of the State of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Mario Miguel Jaramillo, Appellant, v Weyerhaeuser Company et al., Respondents, et al., Defendant.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by Product Liability Advisory Council Inc. for leave to appear amicus curiae on consideration of the certified question 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:
    In the Matter of Kimalin Jones et al., Appellants, v Niagara Falls Housing Authority et al., Respondents.
    Submitted November 17, 2008;
    decided January 15, 2009
   Motion for leave to appeal denied. Motion for a stay dismissed as academic. Motion for poor person relief dismissed as academic.


text:
    James E. Kelley et al., Respondents, v Margaret Zavalidroga, Appellant.
    Submitted November 10, 2008;
    decided January 15, 2009
   Motion for leave to appeal etc. dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    James E. Kelley et al., Respondents, v Margaret Zavalidroga, Appellant.
    Submitted December 22, 2008;
    decided January 15, 2009
   Motion for leave to appeal etc. dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    In the Matter of Jaye Miller, Appellant, v Richard Shaw, Respondent.
    Submitted November 17, 2008;
    decided January 15, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 706 (2008)].


text:
    The People of the State of New York, Appellant, v James Kadarko, Respondent.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the respondent on the appeal herein.


text:
    Jeanne Schimicci, Appellant, v Dermpath, Inc., et al., Respondents. (And a Third-Party Action.)
    Submitted December 1, 2008;
    decided January 15, 2009
   Motion for reargument of motion for leave to appeal denied [see 11 NY3d 710 (2008)].


text:
    In the Matter of 10 East Realty, LLC, et al., Respondents, v Incorporated Village of Valley Stream et al., Appellants.
    Submitted January 12, 2009;
    decided January 15, 2009
   Motion by New York State Conference of Mayors and Municipal Officials for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Herbert Altman et al., Appellants, v New York Board of Trade, Inc., Respondent, et al., Defendant.
    Submitted December 8, 2008;
    decided January 20, 2009
   Motion for leave to appeal dismissed upon the ground that movant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2).


text:
    Lydia Cicero et al., Respondents, v Great American Insurance Company et al., Appellants.
    Submitted December 1, 2008;
    decided January 20, 2009
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court order denying the motion to amend the answer, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Delphi Restoration Corporation et al., Respondents, v Sunshine Restoration Corporation, Defendant, and Utica First Insurance Company, Appellant.
    Submitted December 1, 2008;
    decided January 20, 2009
   Motion for leave to appeal dismissed upon the ground that the judgment sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Andrea Goldfein, Respondent, v Uvayd Cab Corp. et al., Appellants.
    Submitted December 8, 2008;
    decided January 20, 2009
   Motions for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain a motion for leave to appeal from a nonfinal order of the Appellate Division denying leave to appeal to that Court from an order entered on an appeal from another court (see NY Const, art VI, §3 [b] [7]; CPLR 5602 [a]).


text:
    Salvatore Iadicicco et al., Plaintiffs, and Violet Iadicicco, Individually and as Parent and Natural Guardian of Augie Iadicicco, an Infant, Appellant, v Occidental Chemical Corporation et al., Respondents.
    Submitted November 24, 2008;
    decided January 20, 2009
   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 Jerry Katzman, Appellant, v New York State Department of Health et al., Respondents.
    Submitted December 8, 2008;
    decided January 20, 2009
   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:
    Leeward Isles Resorts, Limited, Respondent, v Charles C. Hickox, Appellant.
    Submitted October 27, 2008;
    decided January 20, 2009
   Motion for leave to appeal dismissed upon the ground that the March 2008 Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution. The April 2008 Supreme Court order disposing of the remaining causes of action, which is the final paper in this action, cannot serve as the final paper pursuant to CPLR 5602 (a) (1) (ii) to bring up for review the prior nonfinal Appellate Division order because a motion for leave to appeal from that Supreme Court order would be untimely (see CPLR 5513 [b]).


text:
    Lynette Lemaster, Individually and as Parent and Natural Guardian of Nichole Lemaster and Others, Infants, Appellant, et al., Plaintiff, v Occidental Chemical Corporation et al., Respondents.
    Submitted November 24, 2008;
    decided January 20, 2009
   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:
    Charlene McLean, as Mother and Natural Guardian of Briana Hall, an Infant, et al., Respondents, v City of New York, Appellant, et al., Defendants.
    Submitted December 22, 2008;
    decided January 20, 2009
   Motion to vacate preclusion order granted.


text:
    Mother Zion Tenant Association et al., Appellants, v Shaun Donovan, as Commissioner of the New York City Department of Housing Preservation and Development, Respondent, et al., Respondent.
    Submitted December 1, 2008;
    decided January 20, 2009
   Motion, insofar as it seeks leave to appeal as against Shaun Donovan, as Commissioner of the New York City Department of Housing Preservation and Development, dismissed as untimely; motion, insofar as it seeks leave to appeal as against Mother Zion Associates, L.R, denied.


text:
    New York Coalition for Quality Assisted Living, Inc., et al., Appellants, v Antonia C. Novello, as Commissioner of Health, Respondent.
    Submitted January 12, 2009;
    decided January 20, 2009
   Motion by Empire State Association of Assisted Living, Inc. for leave to file a memorandum of law amicus curiae on the motion for leave to appeal herein granted and the memorandum of law is accepted as filed.


text:
    Michael Orlikowski et al., Respondents, v Cornerstone Community Federal Credit Union et al., Appellants.
    Submitted December 1, 2008;
    decided January 20, 2009
   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. Terence Boddie, Appellant, v New York State Division of Parole, Respondent.
    Decided January 20, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Maurice Bryant, Appellant, v Robert E. Ercole, Respondent.
    Decided January 20, 2009
   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 Ignacio Reynoso, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Decided January 20, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Steven Solomon, Appellant, v Urban Dental Management, Inc., et al., Respondents.
    Submitted November 17, 2008;
    decided January 20, 2009
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s order denying appellant’s postjudgment motion to set aside the verdict, 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:
    [902 NE2d 435, 874 NYS2d 1]
    In the Matter of Robert B. Bernstein, Appellant, v Paul J. Feiner, as Town Supervisor of the Town of Greenburgh, et al., Respondents.
    Argued January 13, 2009;
    decided January 22, 2009

      APPEARANCES OF COUNSEL

      Robert B. Bernstein, Hartsdale, appellant pro se.

      Timothy W. Lewis, Town Attorney, Greenburgh (Richard L. Marasse of counsel), for respondents.

      Keane & Beane, P.C., White Plains (Nicholas M. Ward-Willis and Richard L. O’Rourke of counsel), for intervenorsrespondents.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.

Although petitioner’s facial and as-applied challenges to the Finneran Law (L 1982, ch 891) were addressed by the Appellate Division, they are not substantial. Petitioner’s facial challenge, insofar as it is predicated on New York Constitution article VIII, § 3, was not raised at the Appellate Division and therefore was not directly involved.

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

Appeal dismissed, without costs, in a memorandum.


text:
    In the Matter of John A. Aretakis, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Submitted January 12, 2009;
    decided January 22, 2009
   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 a stay dismissed as academic.


text:
    Gerda B. Cassara, Respondent, v James I. Wynn, Also Known as James Wynn, Sr., Appellant.
    Submitted December 1, 2008;
    decided January 22, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Richard J. Condon, as Special Commissioner of Investigation for the New York City School District, Respondent, v The Inter-Religious Foundation for Community Organization, Inc., Appellant. In the Matter of Richard J. Condon, as Special Commissioner of Investigation for the New York City School District, Respondent, v Lucius Walker, Jr., Appellant.
    Submitted December 8, 2008;
    decided January 22, 2009
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Decana Inc. et al., Appellants, v Spyro C. Contogouris et al., Defendants, and North Fork Bank et al., Respondents. (And a Third-Party Action.)
    Submitted November 17, 2008;
    decided January 22, 2009
   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 Edmund Orok Edem, Appellant, v Jane Pearl, as Justice of the Supreme Court of the State of New York, et al., Respondents.
    Submitted December 15, 2008;
    decided January 22, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    William Garcia, Respondent, v Leon C. Davis, Defendant, and Danbury Fair Hyundai, LLC, Appellant.
    Submitted December 1, 2008;
    decided January 22, 2009
   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:
    Humphreys & Harding, Inc., Respondent, v Universal Bonding Insurance Company, Defendant and Third-Party Plaintiff-Respondent. Welch Construction Corp. et al., Third-Party Defendants-Appellants.
    Submitted November 24, 2008;
    decided January 22, 2009
   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:
    Mark Hynes, Appellant, v Sonido, Inc., Respondent.
    Submitted December 8, 2008;
    decided January 22, 2009
   Motion for reargument denied [see 11 NY3d 827 (2008)].


text:
    In the Matter of State of New York, Appellant, v Randy M., Respondent. (Proceeding No. 1.) The People of the State of New York ex rel. Randy M., Respondent, v Superintendent of Ulster Correctional Facility et al., Appellants. (Proceeding No. 2.)
    Submitted December 29, 2008;
    decided January 22, 2009
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


author: Smith, J.

text:
    [903 NE2d 1146, 875 NYS2d 826]
    The People of the State of New York ex rel. Anthony Gill, Respondent, v Gary Greene, as Superintendent of Great Meadow Correctional Facility, Appellant.
    Argued January 6, 2009;
    decided February 12, 2009

      POINTS OF COUNSEL

      Andrew M. Cuomo, Attorney General, Albany (Barbara D. Underwood, Andrea Oser, Nancy A. Spiegel and Frank Brady of counsel), for appellant. I.
    The Third Department’s interpretation of Penal Law § 70.25 (2-a) is not mandated by the text and is contradicted by the history, purpose and long-standing interpretation by the courts of this state. (People ex rel. Batista v Walsh, 48 AD3d 845; People v Ingber, 248 NY 302; People v Baum, 16 AD2d 716; Matter of Browne v New York State Bd. of Parole, 10 NY2d 116; People v Konigsberg, 137 AD2d 142, 72 NY2d 912; People v Colavito, 28 AD2d 548; People v Bostick, 67 AD2d 930, 46 NY2d 1078; Akins v Smith, 480 F Supp 248, 622 F2d 572; Matter of Rolon v Senkowski, 160 AD2d 1072; Matter of Moore v Goord, 34 AD3d 909, 8 NY3d 807.) II. Judicial pronouncement of how a new sentence relates to undischarged prior sentences is not required by general statutory or constitutional principles governing sentencing. (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Sparber, 10 NY3d 457; Earley v Murray, 451 F3d 71; Wilson v McGinnis, 413 F3d 196; United States v Parkins, 25 F3d 114, 513 US 1008; Matter of Browne v New York State Bd. of Parole,
      10 NY2d 116; McCarthy v Doe, 146 F3d 118.) III. Any change in the long-standing appellate interpretation of Penal Law § 70.25 (2-a) should apply prospectively. (People v Martello, 93 NY2d 645; People v Mitchell, 80 NY2d 519; People v Pepper, 53 NY2d 213; People v Favor, 82 NY2d 254.)

      Legal Aid Society, New York City (Robert C. Newman, Steven Banks and William D. Gibney of counsel), for respondent. I. The Appellate Division correctly held that the Department of Correctional Services, an administrative agency, lacked statutory authority to run respondent’s sentence consecutively when the sentencing court did not so order. (Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358; People v Sparber, 10 NY3d 457; People v Selikoff, 35 NY2d 227; People v Catu, 4 NY3d 242; People v Ford, 86 NY2d 397; People v Perry, 36 NY2d 114; Matter of Murray v Goord, 1 NY3d 29; Middleton v State of New York, 54 AD2d 450, 43 NY2d 678; People v DeValle, 94 NY2d 870.) II. The legislative history of the statute does not support appellant’s contention that the Department of Correctional Services had the authority it asserted here. (People v Ingber, 248 NY 302; Matter of Browne v New York State Bd. of Parole, 10 NY2d 116.) III. The Appellate Division correctly relied on Earley v Murray (451 F3d 71 [2d Cir 2006]), which ruled that under the Federal Constitution, a clerical or administrative “alteration” to a judicially-pronounced sentence “is of no effect.” (People v Sparber, 10 NY3d 457; Hill v United States ex rel. Wampler, 298 US 460; Greene v United States, 358 US 326; People v Perry, 36 NY2d 114; People v Merejildo, 45 AD3d 429; People v Curley, 285 AD2d 274, 97 NY2d 607; Wilson v McGinnis, 413 F3d 196; Apprendi v New Jersey, 530 US 466; McMillan v Pennsylvania, 477 US 79.) IV. The Court should not embrace appellant’s suggestion that any ruling in respondent’s favor should apply only prospectively. (People v DeValle, 94 NY2d 870; Wilson v McGinnis, 413 F3d 196; United States v Parkins, 25 F3d 114; United States v Neely, 38 F3d 458; People v Favor, 82 NY2d 254; Hill v United States ex rel. Wampler, 298 US 460; Matter of Ettari v Fischer, 54 AD3d 460; People ex rel. Julio v Walters, 88 AD2d 259, 58 NY2d 881; People v Morales, 37 NY 262; People ex rel. Posada-Osorio v Hammock, 58 NY2d 978.)

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Morrie I. Kleinbart, Anthony Girese and Ann C. Sullivan of counsel), for District Attorneys Association of the State of New York, amicus curiae.
    An affirmance would upset 30 years of reliance on an understanding of Penal Law § 70.25 (2-a) that mandated consecutive sentences by operation of law for a repeat felony offender subject to an undischarged prior sentence, and cause enormous damage to the criminal justice system. (Matter of Rolon v Senkowski, 160 AD2d 1072; People ex rel. Batista v Walsh, 48 AD3d 845; Matter of Gray v Goord, 37 AD3d 904; Matter of Jackson v Smith, 36 AD3d 1067; Matter of Collins v Woodruff, 32 AD3d 1139; Matter of Moore v Goord, 34 AD3d 909; Matter of Valentin v Smith, 30 AD3d 862; Matter of Myles v Smith, 32 AD3d 1142; Matter of El-Aziz v Goord, 27 AD3d 861, 7 NY3d 704; Matter of Soriano v New York State Dept. of Correctional Servs., 21 AD3d 1233.)
   OPINION OF THE COURT

Smith, J.

We hold that, when a court is required by statute to impose a sentence that is consecutive to another, and the court does not say whether its sentence is consecutive or concurrent, it is deemed to have imposed the consecutive sentence the law requires.

I

In 1994, Anthony Gill was sentenced as a second felony offender to an indeterminate term of 2½ to 5 years for criminal possession of stolen property. Before then, he had been convicted and sentenced twice for earlier crimes, for manslaughter in 1982 and for several larceny-related offenses in 1993. Neither of Gill’s previous sentences had been discharged by 1994; he had been paroled on the first, and had absconded from a temporary release program while serving the second.

It is undisputed that the court that sentenced Gill in 1994 was required by Penal Law § 70.25 (2-a) to impose a prison term to run consecutively to his previous, undischarged sentences. It is also undisputed, however, that that court did not say, orally or in any document, that the sentence it imposed was either consecutive to or concurrent with the previous ones. The court was simply silent on that subject. The Department of Correctional Services (DOCS) calculated Gill’s release date on the assumption that the 1982, 1993 and 1994 sentences were consecutive to each other.

In 2006, Gill, pro se, began this proceeding against the Superintendent of the prison where he was held, seeking a writ of habeas corpus. He asserted that his 1994 sentence was, as a matter of law, concurrent with his earlier ones, because the sentencing court had not said otherwise. Supreme Court dismissed the petition without reaching the merits of this claim, on the ground that even if Gill were correct he would not have been entitled to habeas corpus.

Gill appealed to the Appellate Division, which converted his proceeding to one under CPLR article 78, reversed Supreme Court and annulled DOCS’s determination that Gill’s sentences ran consecutively (People ex rel. Gill v Greene, 48 AD3d 1003 [3d Dept 2008]). The Appellate Division agreed with Gill “that DOCS had no authority to calculate his sentences consecutively where the court did not do so” (id. at 1005). The Appellate Division granted the Superintendent permission to appeal to this Court, and we now reverse.

II

There is no question that, as the Appellate Division acknowledged and as Gill concedes, the sentencing court was required in 1994 to impose a consecutive sentence. Gill was sentenced under the second felony offender statute, Penal Law § 70.06, and his sentence was therefore governed by Penal Law § 70.25 (2-a), which says:

“When an indeterminate . . . sentence of imprisonment is imposed pursuant to section . . . 70.06 . . . and such person is subject to an undischarged indeterminate or determinate sentence of imprisonment imposed prior to the date on which the present crime was committed, the court must impose a sentence to run consecutively with respect to such undischarged sentence.”

But Gill argues, and the Appellate Division held, that though the court was required to impose a consecutive sentence it did not do so, and that DOCS cannot correct the court’s error.

Gill relies on Matter of Garner v New York State Dept. of Correctional Servs. (10 NY3d 358 [2008]), in which we held that, where a court omits to impose a required term of postrelease supervision (PRS), the error can be corrected only by a court, not by correctional authorities. He also relies on Earley v Murray (451 F3d 71 [2d Cir 2006]), in which the Court of Appeals for the Second Circuit held that it violated due process for DOCS to correct a sentencing court’s error in failing to impose a term of PRS. But the analogy Gill draws between consecutive sentencing and PRS is flawed.

The problem in Garner and Earley was that a part of the sentence—the PRS term—was never imposed. In each case, the court imposed a term of imprisonment, and said nothing about PRS. That was indeed an error that only a court could correct. But here, the sentence at issue—a term of imprisonment for 2½ to 5 years—was imposed. All that was omitted was the characterization of the sentence as either concurrent or consecutive.

That characterization is provided by the statute, Penal Law § 70.25 (2-a), which says the sentence must be consecutive. Nothing in the statute and nothing in the Constitution requires the sentencing court to say the word “consecutive,” either orally or in writing. Nothing in the statute even requires that the sentencing court be made aware that the prior sentences are undischarged. Unlike the petitioners in Garner and Earley, who were told nothing about PRS by the courts that sentenced them, Gill was told in plain terms that he was being sentenced to 2V2 to 5 years in prison. He was never given any reason to think that part or all of that sentence would be effectively nullified, by running simultaneously with sentences he had already received. Indeed, nothing in the record here shows the court knew that previous undischarged sentences existed.

We read the words of Penal Law § 70.25 (2-a)—“the court must impose a sentence to run consecutively with respect to such undischarged sentence”—to mean that any sentence imposed by the court shall run consecutively to the undischarged sentence, whether the sentencing court says so or not. This reading is supported by subdivision (1) of Penal Law § 70.25, in which the Legislature provided rules for interpreting sentences that might otherwise be thought either consecutive or concurrent. Section 70.25 (1) says that as a general rule—with exceptions that include cases subject, as this one is, to section 70.25 (2-a)—sentences “shall run either concurrently or consecutively . . . in such manner as the court directs at the time of sentence.” The statute goes on to provide a default rule: “If the court does not specify the manner in which a sentence imposed by it is to run,” the sentences shall run concurrently in certain classes of cases, and consecutively in others (Penal Law § 70.25 [1] [a], [b]). But where, as in this case, the court has no choice about which kind of sentence to impose, no default rule for interpreting the court’s silence is provided by statute, because none is necessary. The court is simply deemed to have complied with the statute.

In short, the sentencing court here committed no error and there was none for DOCS to correct. DOCS properly interpreted Gill’s 1994 sentence as being consecutive to his previous undischarged sentences, as Penal Law § 70.25 (2-a) requires.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the petition dismissed.

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

Order reversed, etc.