author: Chief Judge Lippman. (concurring).

text:
    [927 NE2d 542, 901 NYS2d 122]
    The People of the State of New York, Respondent, v Angel L. Cruz, Appellant.
    Argued February 18, 2010;
    decided April 6, 2010

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Stephen X. O’Brien of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Defendant was charged with two counts of assault in the first degree for allegedly stabbing two men during a brawl outside a bar. At trial, defendant interposed the defense of misidentification. During deliberations, the jury submitted a note requesting to see the written statement prepared by a police officer and signed by defendant in which he made certain admissions. Although the exhibit was ostensibly only to be used to refresh the police officer’s recollection, Supreme Court received and marked this exhibit in evidence over the objection of defense counsel. Later, Supreme Court, outside the presence of the jury, reversed its ruling and determined that this written statement was not evidence, re-marking it as a court exhibit. Supreme Court failed to instruct the jury accordingly, however. The jury retired to deliberate and first requested certain exhibits that had been marked in evidence, which were provided. Later, the jury requested to see the written statement signed by defendant, which it also believed was in evidence. Nothing in the record suggests that the judge received the jury note or discussed its contents with the parties.

Defendant appealed from the judgment convicting him of two counts of first-degree assault citing a violation of CPL 310.30 and People v O’Rama (78 NY2d 270 [1991]). The Appellate Division initially reserved decision on defendant’s appeal and remitted the case to Supreme Court for a reconstruction hearing to determine “whether there was a jury note and, if so, what action was taken with regard to the jury note” (People v Cruz, 42 AD3d 901 [4th Dept 2007] [internal quotation marks, brackets and citations omitted]).

At the reconstruction hearing, the trial judge stated that he had no independent recollection of receiving the particular jury note at issue. He discussed his standard practice with the parties and noted that he generally allows juries to review exhibits admitted in evidence upon their request without reconvening, provided that the parties are in agreement as they were here. Significantly, he stated that, had he been told that the jury in this case requested a court exhibit not in evidence, he would have reconvened the proceeding in the presence of defendant. The Appellate Division, applying the presumption of regularity, affirmed the judgment (People v Cruz, 57 AD3d 1453 [4th Dept 2008]).

Typically, “[a] presumption of regularity attaches to judicial proceedings” (People v Velasquez, 1 NY3d 44, 48 [2003]; see also People v Harrison, 85 NY2d 794, 796 [1995]). Here, the Appellate Division erred in holding that the presumption had not been overcome. The record shows that there was a significant, unexplained irregularity in the proceedings in that defendant established that the jury requested an exhibit not in evidence; it was reasonable for the jury to believe the exhibit to be in evidence, since it heard the trial court receive the item, but was not privy to the court’s subsequent reversal of that ruling; and the request was never brought to the judge’s attention. Thus, there is no basis in the record to conclude that the jury was informed by anyone that the item was not in evidence, and the jury may have received the exhibit in error.

We conclude that defendant met his burden of rebutting the presumption of regularity by substantial evidence. That evidence includes the trial judge’s statement at the reconstruction hearing that he never saw the note, that he did not reconvene with counsel, and that he did not know if the exhibit was ever shown to the jury. Nor can we agree with the Appellate Division’s determination that, even if the jury received this unadmitted exhibit in error, such error was harmless, since the exhibit contradicted defendant’s misidentification defense at trial "(cf. People v Bouton, 50 NY2d 130, 137 [1980]).

We need not reach defendant’s remaining arguments.

Chief Judge Lippman. (concurring).

At trial, each of the two assault victims gave testimony to the effect that defendant stabbed him outside a “little bar” in Rochester on the night of February 2, 2003. In addition, the arresting officer testified that upon arriving at the scene he observed defendant with a knife in his hand. Defendant and his father, on the other hand, testified that defendant had been misidentified—that a fight had broken out inside the bar and that defendant, his father and his uncle were attempting to extricate themselves and leave the scene when the police arrived. Defendant denied possessing a knife or stabbing anyone on the occasion charged.

After his arrest, defendant gave a statement to a police officer. The statement, as transcribed by the officer, included the phrase, “I took the knife from him and started kicking his ass.” Defendant disputed whether he had, in fact, said this and in pretrial proceedings it was stipulated, in lieu of a Huntley hearing, that the statement could be used to impeach defendant but would not be admissible for the truth of the matter asserted on the People’s case. Defendant was confronted with the above-quoted portion of his statement on cross-examination and immediately afterward the prosecutor requested that the entire statement, which had been marked for identification as exhibit 28, be admitted in evidence for the jury’s examination. The court, over defendant’s objection and in the presence of the jury, purported to accede to this request. Subsequently, after defendant’s re-direct testimony and out of the jury’s presence, the court said it had been mistaken and that it had not intended to receive exhibit 28 as evidence. Although the exhibit was, accordingly, not received, the jury was not advised that the evidentiary ruling announced in its presence had been countermanded.

On the People’s rebuttal case, the police officer who had taken defendant’s statement testified, and in connection with his testimony the prosecutor again sought admission of the statement. The court responded, “At the present time I will receive it only as a Court Exhibit,” and directed that the statement be marked “Court Exhibit 1.”

The record reflects that the jury, while deliberating, sent the court a note requesting a readback of certain testimony and to see specified evidentiary exhibits. The court directed that the note be marked “Court Exhibit 2.” The note was read to and discussed with counsel and afterward the jury was advised that the requested testimony would be read back by the court reporter. As to the exhibits, the court stated that he assumed that they had already been delivered.

There is nothing in the trial minutes indicating that any further communication was received from the jury until it informed the court that it had reached a verdict.

In preparing defendant’s appeal, counsel found among the trial exhibits a jury note marked as “Court Exhibit 3” in which the “report signed by Angel Cruz” was requested. Defendant argued that, inasmuch as there was no indication that the note was disclosed to counsel or responded to by the court, the requirements of CPL 310.30 and People v O’Rama (78 NY2d 270 [1991]) had not been met. Defendant contended that this failure constituted a mode of proceedings error involving a matter of substance and that reversal was therefore required (see id.). Although noting that “it appears on the record before us that there was a jury note” and that “the record is silent with respect to the court’s response to the note,” the Appellate Division did not conclude that there had been a mode of proceedings error, as defendant urged; it instead held the appeal in abeyance and remitted the matter for a reconstruction hearing to determine if there was a jury note and what, if anything, was done in response to any such note (42 AD3d 901 [4th Dept 2007]).

At the subsequently held “reconstruction hearing” (really just a conversation between the court and counsel with some testimony from the court reporter), no one had any independent recollection of the events at issue, which had transpired some four years before. The court was of the view that the trial had been accurately recorded and, although he had no memory at all of the events in question, he thought it probable that he never received the jury note. He initially expressed the view that the requested exhibit must simply have been given to the jury as a matter of course. But, upon being reminded by counsel that the exhibit had not been received in evidence, he said that, in that case the exhibit would not have been given to the jury, because that wasn’t done. The court did say, however, that if he had been given the note, “we would have reconvened because it’s not a People’s exhibit, it’s not a defense exhibit.” At the hearing’s conclusion, the court offered the unsolicited view that, in the absence of substantial evidence to the contrary, the presumption of regularity would require the conclusion that the jury had not been given the unadmitted court exhibit.

The record of this very useful exercise in hand, the Appellate Division resumed its consideration of defendant’s appeal. The court affirmed defendant’s convictions, concluding that although there had been a jury note and the note had not been addressed by the trial court, the defendant had not been seriously prejudiced as a result. In reaching this conclusion the Appellate

Division relied on pre-O’Rama decisions, evidently requiring a showing of “serious prejudice,” whose continued vitality is marginal at best after O’Rama (see O’Rama, 78 NY2d at 279 [rejecting People’s argument in reliance upon People v Agosto (73 NY2d 963, 966 [1989]) and People v Lourido (70 NY2d 428, 435 [1987]) that a showing of specific prejudice was essential to support reversal for noncompliance with CPL 310.30]), and found significant the trial court’s statements to the effect that unadmitted court exhibits were not typically given to the jury (57 AD3d 1453 [4th Dept 2008]).

I agree with and join in the result the Court has reached directing a reversal and a new trial, but the outcome of this appeal should not turn upon whether the jury was given the unadmitted court exhibit, something which we cannot know on this record and upon which the presumption of regularity manifestly does not shed any light. The fundamental problem in this case is that there is no record as to how the jury note requesting an unadmitted, potentially inculpatory statement by defendant was dealt with. This is precisely the kind of problem that compliance with CPL 310.30 and People v O’Rama is meant to obviate and there appears no reason why this appeal should not be decided on the ground that those authorities were not complied with; the completely dispositive issue properly before us is whether defendant’s right to be present and participate in his defense with the assistance of counsel was violated by the patent absence of any notice to defendant and his counsel of the jury note or of an opportunity to be heard in accordance with the mandate of CPL 310.30 and O’Rama.

There was not at the time of defendant’s trial in 2003 any question as to what a trial court must do upon receiving a jury note requesting instruction on a substantive matter. CPL 310.30 and People v O’Rama, decided more than a decade before, are painstakingly clear in this regard: notice to counsel and an opportunity to be heard as to how the jury’s inquiry should be dealt with are indispensable in satisfaction of a defendant’s basic entitlement to be present and participate with the assistance of counsel at all critical stages of the trial, and their denial will ordinarily be viewed as inherently prejudicial and reversible, even where there is no showing of specific prejudice (O’Rama, 78 NY2d at 279-280). The trial court was well aware of this and, in fact, stated at the reconstruction hearing that, if he had received the jury note requesting an unadmitted exhibit, he would have reconvened the trial and addressed the note with counsel.

As the trial court retrospectively recognized, the inquiry was plainly upon a matter of substance. The jury’s request for defendant’s statement suggested rather strongly that it believed defendant’s entire transcribed post-arrest statement had been admitted as evidence and should therefore be available to it. Indeed, the jury must have so concluded from the court’s apparent grant in its presence of the prosecutor’s request that the statement be received in evidence—an evidentiary ruling never to its knowledge retracted. Any competent defense counsel, upon learning of such a request for an unadmitted, potentially inculpatory statement by his or her client, would at a minimum urgently request that the jury be instructed by the court that the statement was not in evidence. The People’s contention that the jury note would not have merited discussion, is, in the present context, untenable.

Nor should it avail the People or deter this Court in applying O’Rama that the note may not have been brought to the trial judge’s attention. Here, it should be noted parenthetically that the presumption of regularity works very much against the inference the People would draw, since it would appear highly irregular that the court, having directed that the prior jury note be marked “Court Exhibit 2,” would have had no part at all in the marking of the jury note at issue as “Court Exhibit 3”; it does not seem likely that the exhibit became a “court exhibit” without the court’s knowledge. In any case, even if the jury note had been dealt with entirely by nonjudicial court personnel, who either supposed wrongly that the note sought an admitted exhibit, which could simply be given to the jury without further ado, or equally wrongly supposed, as the People do now, that the note raised no properly judicial concerns, the result from the defendant’s perspective is the same. Whether by reason of the actions of the trial judge or nonjudicial court personnel, defendant was denied notice of and the opportunity to participate in framing a response to a jury inquiry upon a substantive matter, and the jury went uninstructed upon that matter, which, involving as it did an issue as crucial as the admissibility of defendant’s post-arrest statement to the police—an issue that was supposed to have been resolved by stipulation in lieu of a Huntley hearing—was quintessential one that required a “meaningful” response from the trial court under this Court’s precedents (see O’Rama, 78 NY2d at 276; People v Malloy, 55 NY2d 296, 301 [1982]).

* Denied upon second application for reconsideration with leave to renew within 30 days after the Court of Appeals renders a decision in People v Correa (70 AD3d 532 [2010]).

Judges Graffeo, Read, Smith and Pigott concur in memorandum; Chief Judge Lippman concurs in result in an opinion in which Judges Ciparick and Jones concur.

Order reversed, etc.

       Indeed, the record in this case reflects that, prior to the commencement of deliberations, the parties agreed to allow the jury to review exhibits admitted in evidence upon its request.

       The court, of course, also directed that the first court exhibit, defendant’s statement, be marked as such.


source: Caselaw Access Project

license: Public Domain

text:
    [926 NE2d 593, 900 NYS2d 239]
    John R. Linton et al., Respondents, v Muhammad Nawaz et al., Appellants.
    Decided April 6, 2010

      APPEARANCES OF COUNSEL

      Baker, McEvoy, Morrissey & Moskovits, P.C., New York City (Stacy R. Seldin of counsel), for appellants.

      Law Offices of Mark S. Gray, New York City (Peter J. Eliopoulos of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In this personal injury case in which a taxi struck the plaintiff, the evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria (see Insurance Law § 5102 [d]). Since plaintiff established that at least some of his injuries meet the “no-fault” threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.

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

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


text:
    In the Matter of ArcelorMittal Lackawanna LLC et al., Respondents, v City of Lackawanna, Respondent, and City of Lackawanna School District, Intervenor-Respondent. County of Erie, Proposed Intervenor-Appellant.
    Submitted February 16, 2010;
    decided April 6, 2010
   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:
    George Brown et al., Respondents, v Reinauer Transportation Companies, LLC, et al., Appellants.
    Submitted January 25, 2010;
    decided April 6, 2010
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, 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:
    Charles Christiano et al., Appellants, v Solovieff Realty Co., L.L.C., et al., Respondents, et al., Defendant. (And a Third-Party Action.)
    Submitted February 1, 2010;
    decided April 6, 2010
   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 (see Paglia v Agrawal, 69 NY2d 946 [1987]).


text:
    Continental Casualty Company et al., Appellants, v PricewaterhouseCoopers, LLP, Respondent. Eagle Partners, L.P., et al., Appellants, v PricewaterhouseCoopers, LLP, Respondent. Jeremy M. Jones et al., Appellants, v PricewaterhouseCoopers, LLP, Respondent.
    Submitted March 8, 2010;
    decided April 6, 2010
   Motion to enlarge the record on appeal herein granted.

Chief Judge Lippman taking no part.


text:
    Patricia J. Curto, Appellant, v Peter P. Vasilion et al., Respondents.
    Submitted March 1, 2010;
    decided April 6, 2010
   Motion for reargument etc. denied [see 13 NY3d 716 (2010)].


text:
    In the Matter of E., an Applicant for Admission to the Bar, Appellant. Committee on Character and Fitness, Respondent.
    Decided April 6, 2010
   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 Elena D.B. Patrick J. Carr et al., Respondents; Elena B.S. et al., Appellants. Anne Penachio et al., Nonparty-Respondents.
    Decided April 6, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Inter-City Tire and Auto Center, Inc., a New Jersey Corp., Appellant, v Sterling National Bank et al., Respondents.
    Submitted February 1, 2010;
    decided April 6, 2010
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying a motion to vacate, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal, dismissed as untimely (see CPLR 5513 [b]). Cross motion for the imposition of sanctions denied.


text:
    Constantinee L. Jackson, Appellant, v State of New York, Respondent.
    Decided April 6, 2010
   Appeal dismissed, without costs, by the Court of Appeals sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Larry TT. James Conway, as Superintendent of Attica Correctional Facility, et al., Respondents; Larry TT., Appellant. (Proceeding No. 1.) In the Matter of State of New York, Respondent, v Larry TT., Appellant. (Proceeding No. 2.)
    Submitted January 19, 2010;
    decided April 6, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellant’s motion to dismiss the Mental Hygiene Law article 10 proceeding, 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:
    In the Matter of the Claim of David S. Malone, Appellant, v VRD Decorating et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted February 16, 2010;
    decided April 6, 2010
   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:
    Peter McCluskey, Appellant, v Gabor and Gabor et al., Respondents.
    Decided April 6, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Ngoyi Paul Ngoyi, an Attorney, Appellant. Committee on Professional Standards, Respondent.
    Decided April 6, 2010
   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:
    The People of the State of New York, Respondent, v Timoteo Ramirez, Appellant.
    Submitted March 1, 2010;
    decided April 6, 2010
   Motion for assignment of counsel granted and Norman A. Olch, Esq. relieved as counsel and Diane V Bruns, Esq., care of Schlather, Stumbar, Parks & Sack, 200 E. Buffalo Street, Ithaca, New York 14850 assigned as counsel to the appellant on the appeal herein in his stead.


text:
    The People of the State of New York, Respondent, v Timoteo Ramirez, Appellant.
    Submitted March 8, 2010;
    decided April 6, 2010
   Motion to vacate this Court’s February 16, 2010 dismissal order granted [see 14 NY3d 769 (2010)].


text:
    In the Matter of Zhuang Li Cai, Appellant, v M.D. Jamil Uddin, Respondent.
    Submitted March 1, 2010;
    decided April 6, 2010
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 715 (2010)].


text:
    [926 NE2d 1228, 900 NYS2d 723]
    L&L Painting Co., Inc., et al., Appellants, v Contract Dispute Resolution Board of the City of New York et al., Respondents.
    Decided April 29, 2010

      APPEARANCES OF COUNSEL

      Georgoulis & Associates PLLC, New York City (Michael McDermott of counsel), for appellants.

      Michael A. Cardozo, Corporation Counsel, New York City (Alan G. Krams of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. The City of New York Contract Dispute Resolution Board rationally determined that a discrepancy between a diagram and notes on the contract drawing that is the subject of this dispute created an ambiguity in the contract terms, which petitioner L&L Painting Co., Inc. failed to clarify prior to bidding as the contract required. Therefore, the Board rationally disapproved the claim for additional compensation.

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

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


text:
    [927 NE2d 1062, 901 NYS2d 578]
    The People of the State of New York, Respondent, v Steven Acevedo, Appellant.
    Argued March 22, 2010;
    decided April 29, 2010

      APPEARANCES OF COUNSEL

      Law Offices of Mickey A. Steiman, Hyde Park (David L. Stein-berg of counsel), for appellant.

      William V. Grady, District Attorney, Poughkeepsie (Bridget Rahilly Steller of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On November 7, 1997, County Court rendered judgment convicting defendant of criminal possession of a controlled substance in the first degree, an A-I drug felony, for which he received an indeterminate prison term of 15 years to life; criminal sale of a controlled substance in the third degree, for which he received an indeterminate prison term of 121/2 to 25 years; criminal possession of a controlled substance in the third degree, for which he received an indeterminate prison term of 12V2 to 25 years; and criminal possession of a weapon in the third degree (two counts), for which he received a determinate prison term of five years on each count. The sentences for the drug possession and sale convictions were imposed to run concurrently. The weapon possession convictions were imposed to run concurrently with each other, but consecutively to the drug convictions. By order entered August 23, 1999, the convictions and sentences were affirmed by the Appellate Division (People v Acevedo, 258 AD2d 140 [2d Dept 1999]). A Judge of this Court denied defendant leave to appeal from this order (94 NY2d 819 [1999]).

In 2005, defendant moved before County Court to be resentenced pursuant to the Drug Law Reform Act of 2004 (L 2004, ch 738, § 23) (DLRA). Defendant argued (1) he was entitled to a reduction of his sentence for the A-I drug felony, and (2) the resentencing court should direct that the sentences imposed for the weapon possession convictions run concurrently to the A-I offense, rather than consecutively. On October 11, 2005, County Court, after a hearing, granted defendant’s motion to the extent of reducing the sentence for the A-I drug conviction from an indeterminate prison term of 15 years to life to a determinate prison term of 15 years (and five years’ postrelease supervision). However, the court declined to direct that the other sentences be served concurrently. That is, the court left undisturbed the original sentencing court’s direction that the sentences for the weapon possession convictions run consecutively to those imposed for the drug convictions. By order entered April 7, 2009, the Appellate Division affirmed the resentence (61 AD3d 692 [2d Dept 2009]). A Judge of this Court granted defendant leave to appeal from this order (12 NY3d 912 [2009]).

At issue is whether the trial court had authority to modify the conditions of a sentence by changing its terms from consecutive to concurrent once it granted defendant’s DLRA application for resentencing. Defendant argues that the court is so empowered pursuant to Penal Law § 70.25 (1), which reads as follows:

“[W]hen multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs at the time of sentence.”

Defendant further argues that the sentencing court, in adjusting the term of imprisonment pursuant to the DLRA, is authorized to change a consecutive sentence to concurrent, as in Matter of Murray v Goord (1 NY3d 29 [2003]), where we held that the sentencing discretion of Penal Law § 70.25 (1) devolves on the last judge in the sentencing chain.

Defendant’s reliance on Penal Law § 70.25 (1) and Murray v Goord is misplaced. The purpose of the DLRA is to ameliorate the harsh sentences required by the original Rockefeller Drug Law. When a court imposes a reduced sentence under the amended statute it does not impose an “additional term of imprisonment” as contemplated by Penal Law § 70.25 (1). Nor is the DLRA proceeding used to modify the original term of resentence as occurred in Murray v Goord. The DLRA proceeding is meant to effect an alteration of the existing sentence as authorized by law. As such, “a court that resentences a defendant pursuant to the 2004 DLRA does not possess the authority, conferred by Penal Law § 70.25 (1), to determine whether the sentence is to be served concurrently or consecutively with respect to other sentences” (People v Vaughan, 62 AD3d 122, 128 [2d Dept 2009]).

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

Order affirmed in a memorandum.


text:
    Cayuga Indian Nation of New York, Respondent, v David S. Gould, Cayuga County Sheriff, et al., Appellants.
    Submitted April 26, 2010;
    decided April 29, 2010
   Motion for renewal granted and, upon renewal, motion by Day Wholesale, Inc. for leave to file a brief amicus 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 five days.


text:
    Joehau Collazo, Respondent, v Metropolitan Suburban Bus Authority et al., Appellants, et al., Defendants.
    Submitted February 22, 2010;
    decided April 29, 2010
   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:
    Richard Doin et al., Respondents, v Champlain Bluffs Development Corporation, Appellant, et al., Defendants.
    Submitted February 16, 2010;
    decided April 29, 2010
   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:
    John Giordano, Appellant, v Market America, Inc., et al., Respondents.
    Decided April 29, 2010
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Howard Hoffman, Respondent, v Parade Publications et al., Appellants.
    Submitted April 26, 2010;
    decided April 29, 2010
   Motion by National Employment Lawyers Association/New York et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted March 29, 2010;
    decided April 29, 2010
   Motion by Pro Bono Publico Bar Association, Inc. for leave to file a brief amicus curiae on the appeal herein dismissed as untimely (see Rules of Ct of Appeals [22 NYCRR] § 500.23 [a] [1] [iii]).


text:
    In the Matter of Kese Industries et al., Respondents, v Roslyn Torah Foundation et al., Appellants, et al., Respondents.
    Submitted March 15, 2010;
    decided April 29, 2010
   Motion to vacate this Court’s February 16, 2010 preclusion order granted.


text:
    In the Matter of Kips Bays Towers Condominium, Appellant, v Commissioner of Finance et al., Respondents.
    Submitted February 16, 2010;
    decided April 29, 2010
   Motion by the Council of New York Cooperatives and Condominiums 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:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants. Lifemark S.A., Intervenor-Appellant.
    Decided April 29, 2010
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York, Respondent, v Herbert Aponte, Appellant.
    Submitted April 26, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Shareef Evans, Appellant.
    Submitted April 26, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v William Hassell, Appellant.
    Submitted March 29, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Joseph Hecker, Appellant.
    Submitted March 29, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Hadji S. Hill, Appellant.
    Submitted April 5, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Haynes Jacob, Appellant.
    Submitted April 26, 2010;
    decided April 29, 2010
   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 John Lingle, Appellant.
    Submitted April 19, 2010;
    decided April 29, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rahsheem Moss, Appellant.
    Submitted April 12, 2010;
    decided April 29, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Tony Weaver, Appellant.
    Submitted April 5, 2010;
    decided April 29, 2010
   Motion for poor person relief granted only to the extent that Ronald C. Valentine, Esq., Wayne County Public Defender, 26 Church Street, Lyons, New York 14489 is assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Genaro Campos, Appellant, v James Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted February 16, 2010;
    decided April 29, 2010
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 934 (2010)].


text:
    In the Matter of Marvin Pollack, Appellant. State of New York et al., Respondents.
    Submitted March 1, 2010;
    decided April 29, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Ronald Rivers, Appellant, v George Alexander, as Chair of the Division of Parole, Respondent.
    Submitted March 1, 2010;
    decided April 29, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    68-49 Woodhaven Boulevard Holding Corp., Appellant, v Exxon Mobil Corporation, Formerly Known as Mobil Oil Corporation, Defendant and Third-Party Plaintiff Respondent. AC Woodhaven Inc. et al., Third-Party Defendants-Appellants.
    Submitted February 1, 2010;
    decided April 29, 2010
   Motion for leave to appeal, insofar as made by third-party appellants, dismissed upon the ground that they are not parties aggrieved (see CPLR 5511); motion for leave to appeal otherwise denied.


text:
    [927 NE2d 552, 901 NYS2d 132]
    The People of the State of New York, Respondent, v Gary Alford, Appellant.
    Decided May 4, 2010

      APPEARANCES OF COUNSEL

      Paul J. Connolly, Delmar, for appellant.

      P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by providing that the sentence imposed on count four of the indictment run concurrently with the sentences imposed on counts one and three of the indictment, and, as so modified, affirmed.

Penal Law § 70.25 (2) provides, “[w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences . . . must run concurrently.” Here, counts one and four of the indictment both charged defendant with predatory sexual assault against a child. A person is guilty of that crime when he or she, being 18 years old or more, commits one of several lesser crimes and the victim is less than 13 years old (Penal Law § 130.96). Count one alleged that defendant committed the lesser crime of criminal sexual act in the first degree on or about March 12, 2007 by engaging in anal sexual conduct with the victim. Count four alleged that defendant committed the lesser crime of course of sexual conduct against a child in the first degree by engaging in at least two acts of sexual conduct with the victim between August 2006 and March 2007. Because it is impossible to determine whether the act that formed the basis for the jury’s guilty verdict on count one—anal sexual conduct occurring on March 12, 2007—was also one of the two or more acts that formed the basis for its guilty verdict on count four, County Court should have ordered the sentences on those counts to run concurrently.

If the People wish to seek consecutive sentencing in a case such as this, they should request a form of verdict that will require the jury to explicitly delineate that an act constituting one offense is not a material element of another offense.

Defendant’s remaining contention is without merit.

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

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified in accordance with the memorandum herein and, as so modified, affirmed.


text:
    [928 NE2d 683, 902 NYS2d 499]
    The People of the State of New York, Respondent, v John P. Daly, Appellant.
    Argued March 22, 2010;
    decided May 4, 2010

      APPEARANCES OF COUNSEL

      Law Offices of Thomas F. Liotti, Garden City (Thomas F. Liotti and Drummond C. Smith of counsel), for appellant.

      Kathleen M. Rice, District Attorney, Mineola (Andrea M. DiGregorio and Tammy J. Smiley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether violations of People v Rosario (9 NY2d 286 [1961]) and/or Brady v Maryland (373 US 83 [1963]), resulting in the reversal of convictions on certain counts, also require reversal of convictions on other, jointly tried counts is a question to be resolved on a case-by-case basis. Reversal of the jointly tried counts is required only if there is a “reasonable possibility that the evidence supporting the . . . tainted counts influenced the guilty verdicts on the other [counts]” (People v Baghai-Kermani, 84 NY2d 525, 532 [1994]).

Here, there is no reasonable possibility that the evidence supporting the tainted counts, which related to a robbery and shooting at an off-track betting parlor, had a spillover effect on the other guilty verdicts, relating to an attempted robbery and shooting at a gas station. The documents that the People failed to disclose related exclusively to the off-track betting parlor counts. Moreover, there was strong, independent proof of the defendant’s guilt on the gas station counts, including evidence that the defendant’s revolver was the source of the bullet removed from the shooting victim; that the owner of the gas station and the victim identified defendant; that the owner, the victim and an attendant all recognized the perpetrator as a person they had previously seen at the gas station, who drove a pickup truck with the same identifying features as the defendant’s truck; and that the defendant was identified in a lineup as the perpetrator of the gas station crimes. A thorough review of the record reveals no reasonable possibility that the Rosario and Brady violations had an impact on defendant’s ability to defend against the gas station counts or otherwise influenced the verdicts on those counts.

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

Order affirmed in a memorandum.


text:
    [927 NE2d 553, 901 NYS2d 133]
    Life Receivables Trust, Plaintiff, v Goshawk Syndicate 102 at Lloyd’s, Respondent, and Life Settlement Corporation, Doing Business as Peach Tree Life Settlements, Appellant.
    Decided May 4, 2010

      APPEARANCES OF COUNSEL

      Greenberg Traurig LLP, Albany (Israel Rubin of counsel), for appellant.

      Barger & Wolen LLP, New York City (Evan L. Smoak of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. The certified question should not be answered as unnecessary.

The Appellate Division properly concluded that the scope and validity of the parties’ arbitration agreement, including issues of arbitrability, are for the arbitration tribunal to determine (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 45-47 [1997]; Contec Corp. v Remote Solution, Co., Ltd., 398 F3d 205, 211 [2d Cir 2005]). Although Hall Street Associates, L.L.C. v Mattel, Inc. (552 US 576 [2008]) prohibits parties from expanding, by their own agreement, the scope of judicial review beyond that authorized by the Federal Arbitration Act, clear and unmistakable evidence exists in this case that the parties agreed to arbitrate questions of arbitrability, including whether the parties’ arbitration agreement is invalid under Hall Street Associates or whether the apparently offending provision could be severed from the remainder of the agreement.

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

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


text:
    In the Matter of Anonymous, a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 26, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.

Chief Judge Lippman taking no part.


text:
    In the Matter of Srinivas Bonthu, Respondent, v Bharathi Bonthu, Appellant.
    Submitted March 1, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Josh Brown, Appellant, v Brian Fischer et al., Respondents.
    Decided May 4, 2010
   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:
    Cargill Financial Services International, Inc., Appellant, v Bank Finance and Credit Limited, Also Known as OJSC Bank Finance and Credit, Respondent.
    Submitted March 8, 2010;
    decided May 4, 2010
   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:
    Cargill Financial Services International, Inc., Appellant, v Bank Finance and Credit Limited, Also Known as OJSC Bank Finance and Credit, Respondent.
    Submitted April 5, 2010;
    decided May 4, 2010
   Motion by the Federal Reserve Bank of New York 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 James D. Christo (Admitted as James Douglas Christo), an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted April 5, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Ernest Curry, Appellant, v Nassau County Sheriff’s Department et al., Respondents.
    Submitted March 1, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of Deborah Davis, Appellant. Commissioner of Labor, Respondent.
    Submitted April 5, 2010;
    decided May 4, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 703 (2010)].


text:
    In the Matter of Hawa Diallo, Respondent, v Mohammed Diallo, Appellant.
    Submitted March 8, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    853 Seventh Avenue Owners, LLC, Appellant, v W & HM Realty Co., LLC, Also Known as W & HM Realty Partners LLC, Respondent. (And a Related Proceeding.)
    Submitted March 8, 2010;
    decided May 4, 2010
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Supreme Court’s order denying the motion to modify or vacate the order rendered in the declaratory judgment action, 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:
    Elm Sea Realty Corp., Respondent, v Emily Chicoy et al., Appellants, et al., Defendant.
    Submitted March 8, 2010;
    decided May 4, 2010
   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 Erin C., Respondent-Appellant, v Peter H., Appellant-Respondent.
    Submitted January 4, 2010;
    decided May 4, 2010
   On the Court’s own motion, appeal by Peter H. dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]). Motion by Erin C. for leave to appeal denied.


text:
    Health Insurance Plan of Greater New York, Appellant, v Photobition New York, Inc., Respondent, et al., Defendants.
    Submitted March 8, 2010;
    decided May 4, 2010
   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 Level 3 Communications, LLC, Respondent, v Anthony DeBellis, Appointed Assessor for the City of Mount Vernon, et al., Appellants, et al., Respondents.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Mauhoi Tung, Appellant, v Henry Chiu D.D.S., Doing Business as Mott Street Dental Services, P.C., Respondent.
    Submitted March 29, 2010;
    decided May 4, 2010
   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:
    Millennium Partners, L.P., Appellant, v Select Insurance Company, Respondent, et al., Defendant.
    Decided May 4, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Dennis Steinke, Appellant.
    Submitted February 22, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]).


text:
    The People of the State of New York ex rel. Clifford Graham, Appellant, v Kevin E. Walsh, Sheriff, County of Onondaga, Respondent.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Eric Kirkland, Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    The People of the State of New York ex rel. Nelson Rodriguez, Appellant, v James Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York ex rel. Narzel Talbert, Appellant, v James T. Conway, Respondent.
    Submitted March 22, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York ex rel. Anthony Tislon, Appellant, v David Rock, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Decided May 4, 2010
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    The People of the State of New York ex rel. Dexter Washington, Appellant, v David F. Napoli, as Superintendent of Southport Correctional Facility, Respondent.
    Decided May 4, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved. In this case, appellant’s challenge to his status as a second violent felony offender was decided below on the basis that this claim had already been unsuccessfully litigated and was therefore barred by collateral estoppel.


text:
    In the Matter of Gail Price, Appellant, v Southwest Airlines, Inc., Respondent.
    Submitted March 22, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Prime Income Asset Management, Inc., et al., Appellants, v American Real Estate Holdings, L.P., et al., Respondents.
    Submitted March 8, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    Iqbal Singh, Appellant, v City of New York Division of Housing Preservation and Development, Respondent.
    Decided May 4, 2010
   On the Court’s own motion, appeal dismissed, without costs, 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). Motion for leave to appeal denied.


text:
    In the Matter of Liquidation of Union Indemnity Insurance Company of New York. Superintendent of Insurance of the State of New York, Respondent; Robert A. Spira, Appellant.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    David Wadler, Appellant, v City of New York et al., Respondents.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 14 NY3d 192 (2010)].

Chief Judge Lippman taking no part.


text:
    In the Matter of the Estate of Louise Wright, Claimant. Leon Wright, Appellant, v City of Rochester et al., Respondents, et al., Defendants.
    Submitted March 15, 2010;
    decided May 4, 2010
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from the order of Supreme Court dismissing the complaint, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [928 NE2d 409, 902 NYS2d 27]
    Diomara DeJesus, an Infant, by Her Father and Natural Guardian, Francisco DeJesus, Appellant, v Jose J. Alba et al., Respondents.
    Decided May 6, 2010
    APPEARANCES OF COUNSEL

      Seligson, Rothman & Rothman, New York City (Martin S. Rothman of counsel), for appellant.

      Picciano & Scahill, P.C., Westbury (Gilbert J. Hardy of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. The Appellate Division properly concluded that no triable issues of fact existed whether defendant driver acted prudently under the circumstances.

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


text:
    [929 NE2d 364, 903 NYS2d 302]
    The People of the State of New York, Respondent, v Rance P. Scully, Appellant.
    Argued March 23, 2010;
    decided May 6, 2010

      APPEARANCES OF COUNSEL

      Frank J. Nebush, Jr., Public Defender, Utica (Mark C. Curley and Esther Cohen Lee of counsel), for appellant.

      Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In March 2002, an investigator with the Utica Police Department applied for a warrant to search the second floor of premises located in the City of Utica for drugs, drug paraphernalia, and illegal weapons. The application also requested permission to search two John Does, who were described, and “any other person who may be found to have such property in his possession or under his control at the time of the execution of said warrant.” The basis for the application was a confidential informant’s statement, as well as the investigator’s own probe.

On March 15, 2002, City Court issued the search warrant. When the investigator arrived at the first-floor rear door of the premises to execute the search warrant, he heard someone walking down the stairs. Then, a man from behind the door “asked [him] what [he] wanted, [and the investigator] told him one, meaning one $20.00 piece of crack cocaine.” After this man opened the door, the investigator “walked into what would be a common hallway,” and whispered “I’m a police officer.” The investigator searched the man and found a .38 caliber American deringer loaded with two live rounds in the front pocket of his sweatshirt. In the man’s front pants pocket, the investigator found ammunition and approximately $847 in United States currency. This man was also carrying photographic identification that bore defendant Ranee Scully’s name. Meanwhile, other police officers proceeded up the stairs to the second floor, entered the apartment, and searched it. They found a clear plastic sandwich baggy containing several smaller plastic baggies, each tied in a knot and each containing a quantity of an off-white, chunky substance; two plastic baggies containing a greenish-brown vegetation; a single-edged razor blade; and a partially-smoked, hand-rolled cigarette containing a greenish-brown vegetation.

Defendant was arrested based on the weapon on his person. After being advised of his Miranda rights, he agreed to answer questions. When asked “[D]o you live here,” defendant responded “I stay here.” When the question was repeated, he said “I’m staying here with a friend.” When asked whose gun he had, defendant answered “mine.” And when queried where he got the gun, defendant replied “I found it and I’ve been carrying it because some people around here have been threatening me and I wanted to protect myself.” Defendant admitted that he did not have a permit for the gun, but he denied knowledge of the crack in the apartment.

In May 2002, defendant was indicted for weapon possession, criminal possession of a controlled substance, and unlawful possession of marihuana (a violation). He moved to suppress “any evidence allegedly seized from [him] upon the grounds such seizure was unconstitutional and improperly and illegally conducted, and was in violation of [his] Constitutional Rights.” In the supporting affidavit, defendant’s attorney stated, upon information and belief, that “the evidence obtained in this case was obtained by way of a search warrant,” and that “the information placed before the Judge was not sufficient to satisfy the requirements for probable cause for the issuance of the warrant as it related to this Defendant.” In opposition, the People argued, among other things, that defendant’s boilerplate allegations “fail[ed] to establish that the defendant has suffered any constitutional or statutory violations.” The Judge denied suppression without a hearing. In October 2002, defendant was convicted in absentia, after a jury trial, of criminal possession of a weapon in the fourth degree, criminal possession of a controlled substance in the third and fifth degrees, and unlawful possession of marihuana. Defendant appealed, and the Appellate Division affirmed, as modified in a way not pertinent to this appeal (61 AD3d 1364 [4th Dept 2009]).

In People v Burton (6 NY3d 584, 588 [2006]), we noted that although “individuals possess a legitimate expectation of privacy with regard to their persons,” the mere assertion “that contraband was recovered from [a] defendant [does] not create an issue of fact as to whether the search and seizure were the result of a Fourth Amendment violation” (id. at 589). Rather, the defendant “must additionally assert that the search was not legally justified and there must be sufficient factual allegations to support that contention” (id. at 591). Before us, defendant argues only that County Court should have granted a suppression hearing because he alleged that the officer searched him on the basis of a search warrant that had been issued without probable cause. But, defendant did not supplement his original motion papers with factual allegations to support his claim that probable cause was lacking. Therefore, he failed to raise an issue of fact to warrant a suppression hearing as to the weapon.

Next, “a defendant seeking to challenge a search and seizure . . . [is] required to demonstrate a personal legitimate expectation of privacy in the searched premises” (People v Wesley, 73 NY2d 351, 357 [1989]). In this case, defendant did not assert a privacy interest in the apartment in his motion papers or at oral argument. He merely argued that the search warrant was issued without probable cause, and that he did not match the description of the individuals named in the warrant. Thus, he did not meet his burden to establish standing to seek suppression of the drugs found in the apartment.

Defendant’s remaining claims are unpreserved for our review.

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

Order affirmed in a memorandum.


text:
    [929 NE2d 387, 903 NYS2d 325]
    Parker Realty Group, Inc., Appellant, v A. Michelle Petigny, Individually and as President of Eastern Parkway Holdings LLC, Respondent, et al., Defendants.
    Decided May 6, 2010

      APPEARANCES OF COUNSEL

      Kip Lenoir, New York City, for appellant.

      Howard L. Sherman, Ossining, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. Recovery under the theory of quantum meruit is

not appropriate where, as here, an express contract governed the subject matter involved (Miller v Schloss, 218 NY 400, 406-407 [1916]; see also Julien J. Studley, Inc. v New York News, 70 NY2d 628, 629 [1987]). Additionally, plaintiff failed to establish that the parties modified their exclusive brokerage agreement. In the absence of a valid governing exclusive brokerage agreement, plaintiff was not entitled to a commission on the sale to the ultimate buyer, as it was not the procuring cause of the sale (see Greene v Hellman, 51 NY2d 197, 206 [1980]).

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

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


text:
    In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Appellants, v City of Albany et al., Respondents.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Advance Publications, Inc. et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Cunntrel A. and Others. Onondaga County Department of Social Services, Respondent; Jermaine D.A., Appellant, et al., Respondent.
    Submitted March 8, 2010;
    decided May 6, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of East Meadow Union Free School District, Respondent, v New York State Division of Human Rights, Appellant.
    Submitted March 22, 2010;
    decided May 6, 2010
   Motion by Advocates for Children of New York, Inc., et al. for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Leonard Eidlisz, Respondent, v New York University et al., Appellants.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by American Council on Education et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Allen S. Gold, Respondent, v Rockville Centre Police Department et al., Defendants, and County of Suffolk et al., Appellants.
    Submitted March 29, 2010;
    decided May 6, 2010
   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 and is not an order of the type provided for in CPLR 5602 (a) (2). CPLR 5602 (a) (2) applies only to proceedings, not to actions.


text:
    Doreen Harris, Appellant, v Department of Housing Preservation and Development et al., Defendants, and NAPCO Holding LLC, Respondent.
    Submitted March 22, 2010;
    decided May 6, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602).


text:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Institute for Justice for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Columbia University 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:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by East Harlem Alliance of Responsible Merchants for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of TucK-It-AwAY, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by City 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:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Senator Bill Perkins for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Parminder Kaur et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant. In the Matter of Tuck-It-Away, Inc., et al., Respondents, v New York State Urban Development Corporation, Doing Business as Empire State Development Corporation, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Ben Totushek for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Kendra C.R., a Child Alleged to be Permanently Neglected. Charles R., Appellant; Abbott House Family Services, Inc., Respondent.
    Submitted March 22,
    2010; decided May 6, 2010
   Motion, insofar as it seeks leave to appeal as against Abbott House Family Services, Inc., dismissed as untimely (see CPLR 5513 [b]); motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Arbitration between Barbara Kowaleski, Appellant, and New York State Department of Correctional Services, Respondent.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO 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:
    In the Matter of Angela Labita, Also Known as Angelica J. Labita, Deceased. Katherine D’Alessandro, Appellant; Nicolina D. Hayhurst, Respondent. Katherine D’Alessandro, Appellant, v Midway Nursing Home, Respondent.
    Submitted March 29, 2010;
    decided May 6, 2010
   Motion for reargument denied [see 14 NY3d 749 (2010)].


text:
    Legacy Development, Appellant, v Victor Liberatore et al., Respondents.
    Submitted February 16, 2010;
    decided May 6, 2010
   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 Jamel Bell, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Phillips, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Sean Smith, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ivin Williams, Appellant.
    Submitted May 3, 2010;
    decided May 6, 2010
   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. Lucious Muldrow, Appellant, v James T. Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted March 22, 2010;
    decided May 6, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Lorenzo Ramsey, Appellant, v James Conway, Superintendent of Attica Correctional Facility, Respondent.
    Submitted March 8, 2010;
    decided May 6, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Saverio C. Pugliese, Respondent, v Ben Mondello, Also Known as Ben R. Mondello, Jr., Appellant.
    Submitted March 29, 2010;
    decided May 6, 2010
   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:
    U.S. Bank National Association, Respondent, v Jessica Angel Quiroz et al., Defendants, and Helen Quiroz, Appellant.
    Submitted March 29, 2010;
    decided May 6, 2010
   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 Barry Wetherall et al., Respondents, v Town of Islip Zoning Board of Appeals et al., Respondents, and Jerome Feder et al., Proposed Intervenors-Appellants.
    Submitted March 15, 2010;
    decided May 6, 2010
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from that portion of Supreme Court’s order that denied the motion to intervene, 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:
    In the Matter of Robert Wooley, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted May 3, 2010;
    decided May 6, 2010
   Motion by the Legal Aid Society et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [929 NE2d 396, 903 NYS2d 333]
    J. Virgil Waggoner et al., Appellants, v Kenneth A. Caruso et al., Respondents.
    Decided May 11, 2010

      APPEARANCES OF COUNSEL

      Lally Mahon & Rooney LLP, New York City (James J. Mahon of counsel), for appellants.

      Patterson Belknap Webb & Tyler, LLP, New York City (Frederick B. Warder III and Rosanne E. Felicello of counsel), for Kenneth A. Caruso, respondent.

      Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas and David G. Keyko of counsel), respondent pro se.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division properly held that plaintiffs J. Virgil Waggoner and J.VW. Investment Ltd. of Dominica did not state a claim for legal malpractice insofar as they failed to allege that, but for defendants’ alleged malpractice, they would have successfully recovered the $10 million investment in an underlying proceeding (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]). The court also properly dismissed plaintiffs’ claim in this case for breach of fiduciary duty as duplicative of the claim for legal malpractice.

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

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


text:
    [929 NE2d 396, 903 NYS2d 333]
    The People of the State of New York, Respondent, v Derek Backus, Appellant.
    Argued March 25, 2010;
    decided May 11, 2010

      APPEARANCES OF COUNSEL

      DJ & JA Cirando, Syracuse (John A. Cirando, Robert A. Durr, Bradley E. Keem and Elizabeth deV. Moeller of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell and Victoria M. White of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, and so much of the order as authorized County Court to entertain a motion by the People to vacate the plea and set aside the conviction should be vacated.

The People have not appealed from so much of the order as vacated the sentence imposed by County Court. We thus have no power to grant the People affirmative relief, and we therefore do not consider the People’s argument that the consecutive terms imposed by County Court for vehicular assault and for driving while intoxicated were permissible (People v Carpenito, 80 NY2d 65, 68 [1992]). Defendant’s sentence having been vacated, County Court is required to resentence defendant in accordance with the law, and lacks power to vacate the conviction or the plea (Matter of Kisloff v Covington, 73 NY2d 445, 451-452 [1989]; Matter of Campbell v Pesce, 60 NY2d 165, 169 [1983]).

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

Order, insofar as appealed from, reversed and that part of the Appellate Division order that allowed for a motion by the People to vacate the plea and set aside the conviction vacated in a memorandum.


text:
    [929 NE2d 397, 903 NYS2d 334]
    Susan Midler, Respondent, v Richard Crane, M.D., Appellant.
    Decided May 11, 2010

      APPEARANCES OF COUNSEL

      Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Steven J. Ahmuty, Jr., of counsel), for appellant.

      Ruskin Moscou Faltischek, Uniondale (Douglas A. Cooper of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division majority that, on the facts of this case, there was no inconsistency between the findings that defendant was not negligent in failing to diagnose the plaintiffs condition and that he was negligent in failing to monitor her. However, the jury’s verdict was inconsistent in finding that defendant’s failure to monitor the patient was a substantial factor in causing her injury, while the negligence of a nonparty, Dr. Curtis, in failing to transmit his urinalysis results to defendant was not.

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

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


text:
    Astoria Federal Savings & Loan Association/Fidelity New York FSB, Respondent, v Marilyn Lane, Appellant, and Frances Turner et al., Intervenors-Respondents.
    Submitted April 5, 2010;
    decided May 11, 2010
   Motion for leave to appeal denied. Cross motion for sanctions etc. denied.


text:
    Sislyn Benjamin, Appellant, v New York City Department of Health, Respondent.
    Submitted April 5, 2010;
    decided May 11, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    City of New York, Respondent, v Golden Feather Smoke Shop, Inc., et al., Defendants, and Monique’s Smoke Shop et al., Appellants.
    Decided May 11, 2010
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Nella Manko, Appellant, v Dana Mannor et al., Respondents, et al., Defendants.
    Decided May 11, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Frank Miraglia, Respondent, v H & L Holding Corp., Defendant and Third-Party Plaintiff. Lane & Sons Construction Corp., Third-Party Defendant-Appellant.
    Submitted April 12, 2010;
    decided May 11, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 766 (2010)].


text:
    Pamela Mitchell, as Executrix of Sarah Fincher, Deceased, Respondent, v Erie County Medical Center Corporation, Appellant.
    Submitted April 5, 2010;
    decided May 11, 2010
   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:
    Natural Organics Inc., Appellant, v Anderson Kill & Olick, P.C., et al., Respondents.
    Submitted March 29, 2010;
    decided May 11, 2010
   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 O., Respondent, v M., Appellant.
    Submitted April 5, 2010;
    decided May 11, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    James O’Donnell, Appellant, v Buffalo-DS Associates, LLC, et al., Respondents.
    Submitted March 29, 2010;
    decided May 11, 2010
   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, Appellant, v Jason D. Liggins, Respondent.
    Submitted April 5, 2010;
    decided May 11, 2010
   Motion for substitution of assigned counsel granted and Robert H. Kirchner, Esq., care of Bond Schoeneck & King, PLLC, One Lincoln Center, Syracuse, New York 13202 is assigned in the place and stead of Richard P Ferris, Esq., as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York ex rel. Michael Chavis, Appellant, v New York State Department of Correctional Services, Respondent.
    Decided May 11, 2010
   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. Ralph Hall, Appellant, v David Rock, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Decided May 11, 2010
   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. Edward Van Steenburg, Appellant, v Joseph Wasser, as Sullivan County Sheriff, Respondent.
    Submitted March 8, 2010;
    decided May 11, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the dismissal of the habeas corpus proceeding, denied; motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Maurica Tallarida, Appellant, v City of Corning et al., Respondents.
    Submitted March 29, 2010;
    decided May 11, 2010
   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:
    Douglas Warney, Appellant, v State of New York, Respondent.
    (Claim No. 114826.)
    Submitted March 29, 2010;
    decided May 11, 2010
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    Douglas Warney, Appellant, v State of New York, Respondent.
    (Claim No. 114826.)
    Submitted March 29, 2010;
    decided May 11, 2010
   Motion by the American Psychological Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 24 copies filed within 30 days.


text:
    In the Matter of Scott M. Zucker, an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted May 3, 2010;
    decided May 11, 2010
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    [931 NE2d 69, 905 NYS2d 100]
    The People of the State of New York, Respondent, v Desirie Wilson, Appellant.
    Decided June 3, 2010

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Adrienne Gantt of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Kayonia L. Whetstone of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a nonjury trial, defendant was convicted of attempted aggravated harassment in the second degree, a misdemeanor. She appealed her conviction, which was affirmed by the Appellate Division in a divided decision. One of the Appellate Division dissenters granted defendant leave to appeal.

In this Court, contending that her misdemeanor case was tried in Supreme Court, defendant argues for the first time that the trial court lacked the subject matter jurisdiction to adjudicate the matter because it was prosecuted on a misdemeanor information and not an indictment or superior court information (SCI) issued upon waiver of indictment. The People dispute defendant’s claim, asserting that the case was resolved in New York City Criminal Court, Bronx County, and was presided over by a New York City Criminal Court Judge who was also an Acting Supreme Court Justice. In addition, the People maintain that Supreme Court possesses the subject matter jurisdiction to try misdemeanors, regardless of whether they are charged in a misdemeanor information, an indictment or an SCI.

Defendant’s claim that the trial court lacked subject matter jurisdiction to issue a judgment of conviction may be considered on appeal, despite her failure to timely raise the issue, because it falls within an exception to the preservation rule (see People v Casey, 95 NY2d 354, 365 [2000]; see e.g. People v Nicometi, 12 NY2d 428 [1963]). Even assuming that defendant’s case was tried in Supreme Court, she is not entitled to reversal of her conviction on jurisdictional grounds because Supreme Court possesses concurrent subject matter jurisdiction over the trial of unindicted misdemeanor offenses (see People v Correa, 15 NY3d 213 [2010] [decided herewith]). Anticipating this holding, defendant argues in the alternative that, even if Supreme Court may resolve misdemeanor charges, the transfer of her case from New York City Criminal Court to Supreme Court was impermissible since court rules creating the Criminal Division of the Supreme Court in Bronx County and directing the reassignment of certain misdemeanor cases to that court for trial were not in effect on the date of her conviction (see id.; 22 NYCRR parts 42, 142). Given that Supreme Court had the power to hear the case, the transfer error defendant alleges is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised (see People v Carvajal, 6 NY3d 305, 312 [2005] [“venue issues—which relate only to the proper place of trial, rather than to the power of the court to hear and determine the case—are waivable”] [emphasis and citation omitted]). Because defendant did not object in the trial court to the (purported) transfer of her case to Supreme Court, we may not consider this alternative claim.

Finally, we have reviewed defendant’s challenge to the jurisdictional sufficiency of the accusatory instrument and find it to be lacking in merit.

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

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

       Defendant does not argue that reversal is warranted because her appeal was heard by the Appellate Division rather than the Appellate Term.


text:
    [930 NE2d 263, 904 NYS2d 342]
    Kevin Glassman, M.D., Respondent, v ProHealth Ambulatory Surgery Center, Inc., et al., Appellants.
    Argued May 4, 2010;
    decided June 3, 2010

      APPEARANCES OF COUNSEL

      Rivkin Radler LLP, Uniondale (Evan H. Krinick, Cheryl F. Korman, David A. Manko, Stuart M. Bodoff and Benjamin P.

      Malerba, III, of counsel), and Friedman Kaplan Seiler & Adelman LLP, New York City, for appellants.

      Littler Mendelson, P.C., New York City (David M. Wirtz, Barbara A. Gross and Meredith L. Bronfman of counsel), for respondent.

      Susan C. Waltman, New York City, for Greater New York Hospital Association, amicus curiae.

      Greenberg Traurig, LLP, Albany (Cynthia E. Neidl of counsel), and Greenberg Traurig, LLP, New York City (Francis J. Serbaroli of counsel), for New York State Association of Ambulatory Surgery Centers, Inc., amicus curiae.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the October 2008 order of the Appellate Division brought up for review should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this memorandum.

Even assuming that the provision of the employment contract allowing defendant to collect fees emanating from plaintiffs off-site anesthesiology services is inconsistent with 10 NYCRR 401.2 (b), which provides that “[a]n operating certificate shall be used only by the established operator for the designated site of operation,” we conclude that the provision is merely malum prohibitum and, therefore, enforceable in this breach of contract action (see Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 127-128 [1992]; see also Charlebois v Weller Assoc., 72 NY2d 587 [1988]). Forfeitures by operation of law are disfavored, and allowing parties to escape their contractual obligations, freely entered into, “is especially inappropriate where there are regulatory sanctions and statutory penalties in place to redress violations of the law” (Lloyd Capital Corp., 80 NY2d at 128).

Here, Public Health Law § 2806 (1) (a) authorizes the Department of Health to revoke, suspend, limit or annul an ambulatory surgery center’s operating certificate where it “has failed to comply with the provisions of this article or rules and regulations promulgated thereunder.” Additionally, the State Board for Professional Medical Conduct has the power to impose sanctions for fee-splitting arrangements that violate statutory prescriptions (see Education Law § 6530 [19]; § 6531; see also Public Health Law §§ 230, 230-a). Neither agency has been involved in this matter, nor has plaintiff identified an overarching public policy that mandates voiding the contract (see gener-

ally Albany Med. Coll. v McShane, 66 NY2d 982 [1985], rearg denied 67 NY2d 757 [1986]). For this reason, Supreme Court shall consider whether defendant is entitled, under the terms of the agreement, to a setoff derived from the funds, if any, held by plaintiff, against the amount of recovery in this case. We see no reason to disturb the remaining conclusions of the courts below.

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

Judgment appealed from and the October 2008 Appellate Division order brought up for review reversed, etc.


text:
    [929 NE2d 403, 903 NYS2d 339]
    Neal Flomenbaum, Appellant, v New York University, Respondent.
    Decided June 3, 2010

      APPEARANCES OF COUNSEL

      Foley & Lardner LLP, New York City (Barry G. Felder of counsel), for appellant.

      Nancy Kilson, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. Plaintiff failed to present sufficient evidence to raise a triable issue of fact regarding whether defendant New York University breached the parties’ underlying contract (Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Plaintiffs remaining contentions lack merit.

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

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


text:
    In the Matter of Madeline Acosta, Respondent, v New York City Department of Education et al., Appellants.
    Submitted June 1, 2010;
    decided June 3, 2010
   Motion by the Legal Aid Society et al. to join as amici curiae in the brief to be filed by Community Service Society et al. granted.


text:
    In the Matter of Madeline Acosta, Respondent, v New York City Department of Education et al., Appellants.
    Submitted May 24, 2010;
    decided June 3, 2010
   Motion by Senators Neil D. Breslin et al. to join as amici curiae in the brief to be filed by Senator Bill Perkins granted.


text:
    Mark Baranek, Appellant, v Karin Baranek, Respondent.
    Submitted February 16, 2010;
    decided June 3, 2010
   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:
    Carlos Duque, Appellant, v Pace University, Respondent and Third-Party Plaintiff-Respondent. ISS International Services Systems, Inc., Third-Party Defendant-Respondent.
    Submitted March 29, 2010;
    decided June 3, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Lindsay Grobman, Respondent, v Rhonda Chernoff et al.,Defendants, and Rhonda Globman et al., Appellants.
    Submitted May 10, 2010;
    decided June 3, 2010
   Motion to supplement the record on appeal granted.


text:
    Ralph Hall, Appellant, v Jacoby and Meyers Law Offices, Inc., Respondent.
    Submitted March 22, 2010;
    decided June 3, 2010
   Motion for reargument denied [see 14 NY3d 757 (2010)].


text:
    Jericho Group Ltd., Appellant, v Midtown Development, L.P., et al., Respondents.
    Submitted May 3, 2010;
    decided June 3, 2010
   Motion to strike denied.

Chief Judge Lippman taking no part.


text:
    Arnold Joseph Mars, Appellant, v Robert Z. Dobrish et al., Respondents, et al., Defendant.
    Submitted April 5, 2010;
    decided June 3, 2010
   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:
    The People of the State of New York, Respondent, v Miguel Andrade, Appellant.
    Submitted May 24, 2010;
    decided June 3, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Jesse Brabham, Respondent.
    Submitted May 17, 2010;
    decided June 3, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth Brown, Appellant.
    Submitted May 10, 2010;
    decided June 3, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Brunner, Appellant.
    Submitted May 17, 2010;
    decided June 3, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Luis Feliciano, Appellant.
    Submitted May 24, 2010;
    decided June 3, 2010
   Motion for assignment of counsel granted and Joseph Lee Matalon, Esq., care of Matalon Shweky Elman PLLC, 450 Seventh Ave., 33rd Floor, New York, NY 10123 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Fredrick Jenkins, Appellant.
    Submitted May 24, 2010;
    decided June 3, 2010
   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 George Jordan, Appellant.
    Submitted May 17, 2010;
    decided June 3, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Sean Smith, Appellant.
    Submitted May 10, 2010;
    decided June 3, 2010
   Motion for an order pursuant to CPLR 1012 (b) (2) permitting movant City of New York to file a brief and participate in oral argument of the appeal granted in each respect.


text:
    The People of the State of New York ex rel. Andrew McDaniels, Appellant, v Michael Corcoran, Superintendent, Cayuga Correctional Facility, et al., Respondents.
    Submitted May 12, 2010;
    decided June 3, 2010
   Motion for leave to appeal dismissed upon the ground that relator has been released from custody 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]).