text:
    [34 NE3d 851, 13 NYS3d 341]
    The People of the State of New York, Respondent, v Cleveland Lovett, Appellant.
    Argued June 3, 2015;
    decided June 25, 2015

      APPEARANCES OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Margaret E. Knight of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Nicole Coviello and Eleanor J. Ostrow of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

On defendant’s appeal from so much, of the order of the Appellate Division as affirmed Supreme Court’s order denying defendant’s motion for resentencing, the appeal should be dismissed; and the order otherwise appealed from should be affirmed.

On May 29, 2003, defendant Cleveland Lovett was convicted of criminal possession of a controlled substance in the first and third degrees (Penal Law §§ 220.21, 220.16) and first-degree reckless endangerment (Penal Law § 120.25) in connection with a high-speed car chase on the West Side Highway in Manhattan; on August 19, 2003, he was sentenced to an aggregate term of imprisonment of 27V3 years to life. On June 10, 2005, defendant, represented by new counsel, moved pursuant to CPL 440.10 to vacate the judgment. He claimed that his attorney was ineffective because of a failure to object to portions of the final jury charge relating to the People’s burden of proof. That same day, defendant also applied for resentencing under the 2004 Drug Law Reform Act (L 2004, ch 738 [2004 DLRA]). Supreme Court denied both motions.

Defendant appealed both the judgment of conviction and sentence and the orders denying his two postjudgment motions. The Appellate Division, with two Justices dissenting, modified the judgment in one respect, not relevant to this appeal, and otherwise affirmed the judgment and the two orders (116 AD3d 428 [1st Dept 2014]). A dissenting Justice granted defendant permission to appeal to us (2014 NY Slip Op 75464[U] [1st Dept 2014]).

Defendant again argues that he should have been resentenced pursuant to the 2004 DLRA. “It is well established that [n]o appeal lies from a determination made in a criminal proceeding unless specifically provided for by statute,” and courts “may not resort to interpretative contrivances to broaden the scope and application of statutes” governing the availability of an appeal (People v Pagan, 19 NY3d 368, 370 [2012] [internal quotation marks omitted]). In People v Bautista (7 NY3d 838 [2006]), we held that no statutory provision authorizes a defendant to appeal from an Appellate Division order affirming the denial of the defendant’s resentencing application pursuant to the 2005 Drug Law Reform Act (L 2005, ch 643) {id. at 838-839). The 2004 DLRA includes similar language relating to appeals; accordingly, no appeal lies from an order of the Appellate Division affirming the denial of a resentencing application under the 2004 DLRA (see People v Sevencan, 12 NY3d 388, 389 [2009] [dismissal of criminal leave application authorized for publication by the Court]). Faced with this barrier to our review, defendant contends that the Appellate Division’s consolidation of the order denying resentencing with other, appealable orders, transformed the nonappealable order into one that we may consider. We disagree. The Appellate Division’s authority to consolidate appeals stems from its inherent authority to administer and manage its proceedings. The Appellate Division’s use of this inherent authority does not expand or modify the scope of our jurisdiction, which is established by statute.

Defendant also again argues that Supreme Court’s instructions about the People’s burden of proof were confusing and misleading, and that his attorney was ineffective because he failed to object. In light of the precedent existing at the time of trial, however, the error in the court’s jury instructions, if any, was not so obvious that any reasonable lawyer would have objected. Defendant’s remaining claims, raised for the first time on appeal to us, are unpreserved for our review.

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

On defendant’s appeal from so much of the order of the Appellate Division, First Department, as affirmed the order of Supreme Court, New York County, denying defendant’s motion for resentencing, appeal dismissed; order otherwise appealed from affirmed, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [34 NE3d 853, 13 NYS3d 343]
    The People of the State of New York, Respondent, v Kareem Washington, Appellant.
    Argued June 3, 2015;
    decided June 25, 2015

      APPEARANCES OF COUNSEL

      Weil Gotshal & Manges LLP, New York City (Kami Lizarraga and Gregory Silbert of counsel), and Richard M. Greenberg, Office of the Appellate Defender, New York City (Rosemary Herbert of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Kareem Washington was arrested in 2008 in connection with a gunpoint robbery that occurred in the Bronx. Prior to trial, he filed a pro se motion seeking new defense counsel; defendant’s application included a form “Affidavit in Support of Motion for Reassignment of Counsel,” in which he circled every one of the 10 possible grounds of ineffectiveness listed. Defendant also included a “Statement of Facts,” in which he alleged that his attorney “failed to produce . . . discovery materials” and “denied to formulate an Omnibus Motion to contest. . . lack of identification, or to preserve requested pretrial hearings.” Defendant further asserted that his attorney ignored his requests to counter “the lack of identification and the negative results of the DNA test,” and “refused to take heed to defendant’s factual version of events, and to further discuss or develop possible defense strategies beneficial to him.” The motion papers were postmarked May 14, 2011, about six weeks before trial, but defendant mailed the materials to “Part 80,” and the trial was moved to Part 13. Although it is not clear from the record whether defense counsel or the District Attorney actually received the papers prior to trial, defendant did not mention the motion to Supreme Court or counsel before or during trial.

On July 7, 2011, a jury convicted defendant of first-degree robbery (Penal Law § 160.15). At the sentencing hearing on July 28, 2011, the judge advised the People and defense counsel that he had received the pro se motion four days after the guilty verdict. Supreme Court asked defense counsel if he wanted to comment on the motion, to which counsel responded that he “d [id] n’t want to put [him] self in opposition to [defendant].” Counsel added that certain items in the motion were “incorrect,” but he did not elaborate.

The judge then asked defendant why he did not call attention to the motion or any of his complaints. Defendant claimed that he had tried to talk with the judge about the motion before trial, but a court officer prevented him. The judge expressed disbelief about this explanation and noted that, in any event, the defendant “had many, many, many, many other moments after that” when he and the judge “spoke [ ] person to person . . . and [defendant] never raised this.” On the merits, Supreme Court viewed defendant’s allegations skeptically, “based on [his] observations during the course of the trial.” Specifically, the judge addressed defendant as follows:

‘You say things in here that are not true. You say that you had no discovery. It was evident to me [that] you had discovery. It was evident to me you had all the discovery. You complained about negative DNA results. The testimony in the trial is that there [were] positive DNA results. You complained that [your attorney] didn’t discuss strategy with you. I know he discussed strategy with you. I don’t see any thing in here based on my observations during the course of the trial that any of this is true.”

Supreme Court then invited defendant to air his complaints of ineffective assistance. Defendant asserted that defense counsel “never did discuss any strategy” with him before trial, despite defendant’s numerous requests. Defendant also alleged that counsel failed to meet with him before trial, except for a “seven to eight minute [ ]” video conference a week or two beforehand, during which he and his attorney didn’t really “connect.” Apart from this video conference, defendant complained, he “never really had a chance to discuss anything with [counsel] prior to being in court.” Finally, defendant alleged that his attorney provided him only “some of the discovery” that he had sought. Defendant eventually admitted, however, that he did receive the discovery he requested.

Supreme Court next asked defense counsel to respond to defendant’s statements, and counsel explained what he had done prior to trial; specifically, he

“recall[ed] speaking to [defendant] on the phone. The video conference was, in fact, we had one, it was longer than that. The only problem was they had delivered [defendant] late to the conference area and I think it went for about fifteen minutes or so. From the outset, I think it’s pretty clear that strategy here was to indicate to the jury that the identification was incorrect. We challenged identification here during the hearing before the trial, cross-examination dealt with identification. ... I think that was clearly what the strategy was according to what [defendant] was dealing with.”

The judge also asked defense counsel if he discussed trial strategy with his client and if he provided defendant with discovery. Counsel stated that he was “sure” he discussed strategy with defendant before trial, and that he gave defendant “a good deal of discovery,” “everything I had up until the beginning of the trial.”

Supreme Court summarized that while defendant claimed that his attorney “refused to take heed to the defendant’s factual version of events and to further discuss or develop possible defense strategies beneficial to [the defendant] [,] [defense counsel] says that happened and the defense of lack of identification was presented at the trial.” The judge also noted that defense counsel stated that he had given defendant all the discovery materials he possessed, once he had them. The judge commented that the motion was untimely and, in any event, “from what [he] heard from [defendant] and [counsel], [he] would not have granted the motion” because defendant had not been truthful about what his attorney “did and did not do,” and he “accept[ed]” defense counsel’s version of events. Indeed, the judge added, he had observed that defendant “c[a]me into court everyday with discovery in [his] hands[,] . . . consulted] with [counsel] throughout jury selection [and] trial, . . . [and decided not] to testify [after conferring] with [counsel].”

Based on his personal observations and inquiry, Supreme Court denied defendant’s motion and sentenced him as a persistent violent felony offender to an indeterminate prison term of 22 years to life. Defendant appealed, and the Appellate Division affirmed (115 AD3d 451 [1st Dept 2014]). The Court determined that the verdict was not against the weight of the evidence and, relying on People v Nelson (7 NY3d 883 [2006]), that defendant was not deprived of the effective assistance of conflict-free counsel when his attorney explained the actions he took on his client’s behalf. A Judge of this Court granted defendant leave to appeal (24 NY3d 965 [2014]), and we now affirm.

“The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant’s option” (People v Sides, 75 NY2d 822, 824 [1990]). A defendant may be entitled to new counsel, however, “upon showing good cause for a substitution, such as a conflict of interest or other irreconcilable conflict with counsel” (id. [internal quotation marks omitted]). Here, defendant claims that he was entitled to new defense counsel because counsel’s responses to the allegations of ineffectiveness created an actual conflict of interest.

Although an attorney is not obligated to comment on a client’s pro se motions or arguments, he may address allegations of ineffectiveness “when asked to by the court” and “should be afforded the opportunity to explain his performance” (People v Mitchell, 21 NY3d 964, 967 [2013]; Nelson, 7 NY3d at 884). We have held that counsel takes a position adverse to his client when stating that the defendant’s motion lacks merit (Mitchell, 21 NY3d at 966), or that the defendant, who is challenging the voluntariness of his guilty plea, “made a knowing plea . . . [that] was in his best interest” (People v Deliser, 21 NY3d 964, 966 [2013] [decided with Mitchell]). Conversely, we have held that counsel does not create an actual conflict merely by “outlining his efforts on his client’s behalf” (People v Nelson, 27 AD3d 287, 287 [1st Dept 2006], affd Nelson, 7 NY3d at 884) and “defending his performance” (Nelson, 7 NY3d at 884).

Applying these settled principles to the facts in this case, we conclude that defense counsel’s comments in response to the judge’s questions did not establish an actual conflict of interest. Defense counsel did not suggest that his client’s claims lacked merit. Rather, he informed the judge when he met with defendant and for how long, what they discussed, what the defense strategy was at trial and what discovery he gave or did not give to defendant. Thus, he never strayed beyond a factual explanation of his efforts on his client’s behalf.

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

Order affirmed, in a memorandum.


text:
    Aurora Loan Services, LLC, Respondent, v Ria Enaw et al., Appellants, et al., Defendants.
    Submitted May 4, 2015;
    decided June 11, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    James H. Brady et al., Appellants, v Mark S. Friedlander, Also Known as Mark S. Friedlander, Esq., Respondent.
    Submitted April 20, 2015;
    decided June 11, 2015
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Andre Clemmons, Appellant, v Stephen W. Herrick, as Judge of the County Court of Albany County, Respondent.
    Submitted May 11, 2015;
    decided June 11, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Noel Davidson, Appellant, v State of New York, Respondent.
    (Claim No. 118778.)
    Submitted May 4, 2015;
    decided June 11, 2015
   Motion for reargument denied [see 25 NY3d 961 (2015)].


text:
    Noel Davidson, Appellant, v State of New York, Respondent.
    (Claim No. 121749.)
    Submitted May 4, 2015;
    decided June 11, 2015
   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 poor person relief dismissed as academic.


text:
    Forest Mall, LLC, et al., Appellants, v FKF3, LLC, et al., Defendants, and John F. Magee et al., Respondents.
    Submitted April 27, 2015;
    decided June 11, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed plaintiffs’ appeal from the judgment against defendant Mitchell Klein, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Highbridge Broadway, LLC, Appellant, v Assessor of the City of Schenectady, Respondent, and Schenectady City School District, Respondent.
    Submitted March 30, 3015;
    decided June 11, 2015
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion to hold the Schenectady City School District in contempt, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as vacated that part of Supreme Court’s order that directed the Schenectady City School District to issue refunds based on the 2009 to 2011 assessment rolls, granted.


text:
    MEG Holdings, LLC, Respondent, v Sapphire Power Finance LLC, Appellant, et al., Defendant.
    Submitted May 11, 2015;
    decided June 11, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of The Torok Trust, Respondent, v Town Board of Town of Alexandria et al., Respondents. Alexandria Central School District, Appellant.
    Submitted May 18, 2015;
    decided June 11, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Westchester Joint Water Works, Appellant, v Assessor of City of Rye, Respondent, and Rye Neck Union Free School District, Intervenor-Respondent. (And Other Proceedings.)
    Submitted April 27, 2015;
    decided June 11, 2015
   Motion, insofar as it seeks leave to appeal as against the Rye Neck Union Free School District, granted; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    [35 NE3d 480, 14 NYS3d 312]
    Amalgamated Bank, Respondent, v Helmsley-Spear, Inc., Defendant, and Schneider & Schneider, Inc., et al., Intervenors-Appellants.
    Argued June 1, 2015;
    decided June 25, 2015

      APPEARANCES OF COUNSEL

      Herrick, Feinstein LLP, New York City (Christopher J. Sullivan, William R. Fried and Marisa A. Leto of counsel), for intervenors-appellants.

      Emmet, Marvin & Martin, LLP, New York City (Tyler J. Rondel and Mordecai Geisler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

The intervenors lacked standing to bring a motion to vacate the default judgment. “To seek relief from a judgment or order, all that is necessary is that some legitimate interest of the moving party will be served and that judicial assistance will avoid injustice” (Oppenheimer v Westcott, 47 NY2d 595, 602 [1979] [internal quotation marks and citation omitted]). Here, however, the intervenors did not meet the second prong of that test because they failed to identify any facts that give rise to a claim that injustice of any kind would be avoided by vacating the judgment (cf. Bond v Giebel, 101 AD3d 1340, 1342-1343 [3d Dept 2012], appeal dismissed, lv dismissed 21 NY3d 884 [2013]; Lane v Lane, 175 AD2d 103, 105-106 [2d Dept 1991]).

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

Order, insofar as appealed from, affirmed, with costs, in a memorandum.


text:
    [35 NE3d 478, 14 NYS3d 310]
    The People of the State of New York, Respondent, v Richard Gonzalez, Appellant.
    Argued April 28, 2015;
    decided June 25, 2015

      APPEARANCES OF COUNSEL

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

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

Memorandum.

The order of the Appellate Division should be reversed, defendant’s motion to suppress granted, and the indictment dismissed.

Defendant shouted obscenities at police officers in a subway station in Manhattan, provoking looks of surprise and curiosity from some passengers and evasive movements from others. The officers followed defendant to another level of the station, where a police sergeant prevented him from leaving. The sergeant observed an illegal knife on defendant’s person and arrested him.

Defendant moved to suppress the knife on the ground that the police stop had been illegal. Supreme Court denied the motion. Following a jury trial, defendant was convicted of one count of criminal possession of a weapon in the third degree (Penal Law § 265.02 [1]).

On appeal, the parties do not dispute the facts underlying the suppression issue in this case, as described in police testimony credited by the motion court. The parties further agree that if the police had probable cause to arrest defendant for disorderly conduct (see Penal Law § 240.20 [3]), the detention would have been justified. Probable cause determinations typically involve mixed questions of law and fact (see People v Oden, 36 NY2d 382, 384 [1975]) and therefore are beyond this Court’s review power if supported by evidence in the record. Here, however, there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct. “ ‘[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem’ ” (People v Baker, 20 NY3d 354, 359-360 [2013], quoting People v Weaver, 16 NY3d 123, 128 [2011]).

The People’s remaining contention on the suppression issue is without merit. Defendant’s motion to suppress should have been granted. We have no occasion to address defendant’s argument with respect to the mens rea of criminal possession of a weapon (see Penal Law § 265.01 [1]).

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

Order reversed, defendant’s motion to suppress granted and indictment dismissed, in a memorandum.


text:
    [35 NE3d 448, 14 NYS3d 280]
    Alex Irrizarry Deleon, Respondent, v New York City Sanitation Department et al., Appellants.
    Argued April 29, 2015;
    decided June 10, 2015

      APPEARANCES OF COUNSEL

      Zachary W. Carter, Corporation Counsel, New York City (.Elizabeth I. Freedman, Richard Dearing and Francis F. Caputo of counsel), for appellants.

      Block O’Toole & Murphy, LLP, New York City (David L. Scher and Christina R. Mark of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Plaintiff Alex Irrizarry Deleon sued defendants New York City, the City Department of Sanitation and Sanitation Department employee Robert R Falcaro, for personal injuries incurred when a Department of Sanitation street sweeper operated by Falcaro collided with Deleon’s vehicle. According to Deleon, he was in his vehicle on the side of the street when Falcaro came along at a high rate of speed and hit his vehicle from behind. For his part, Falcaro argued that he rear-ended Deleon’s vehicle after Deleon abruptly entered the lane where Falcaro was driving the sweeper.

Deleon moved for summary judgment on the issue of liability and defendants cross-moved for summary judgment. Supreme Court denied Deleon’s motion, granted defendants summary judgment, and dismissed the complaint. The Appellate Division, with one Justice dissenting in part, modified on the law, denying defendants’ motion and otherwise affirmed (Deleon v New York City Sanitation Dept., 116 AD3d 404, 404 [1st Dept 2014]).

The Appellate Division concluded that, under the Rules of the City of New York in effect at the time of the accident, defendants were subject to an ordinary negligence standard of liability. Applying that standard, the majority held that Deleon failed to make out his prima facie case that defendants were the proximate cause of the collision because there were issues of fact as to Deleon’s own negligence. The dissent argued that under the reckless disregard standard of care set forth in Vehicle and Traffic Law § 1103 (b) and adopted at the time of the collision by 34 RCNY 4-02 (d) (1) (iv), Supreme Court properly denied Deleon’s motion and granted defendants summary judgment because the record lacked evidence of Falcaro’s recklessness within the meaning of the statute.

Defendants appeal the Appellate Division’s order of modification and contend they are entitled to summary judgement regardless of what standard of liability is applicable. The Appellate Division certified the question whether the order of the Supreme Court, as modified and otherwise affirmed, was properly made (2014 NY Slip Op 77843[U] [1st Dept 2014]).

As an initial matter, we agree with defendants that the Appellate Division should have applied the recklessness standard of care to the facts of this case. The Vehicle and Traffic Law sets forth a uniform set of traffic regulations known as the “rules of the road” (see Riley v County of Broome, 95 NY2d 455, 462 [2000]). However, under Vehicle and Traffic Law § 1642, the City of New York is authorized to establish additional rules, including rules that supercede those of the State (see Vehicle and Traffic Law § 1642 [a] [“the legislative body of any city having a population in excess of one million, may by local law . . . restrict or regulate traffic on or pedestrian use of any highway”]). At the time of the accident, 34 RCNY 4-02 (d) (1) (iv) provided that Vehicle and Traffic Law § 1103 applies “to any person or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway” and that

“such persons are not relieved from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions of this subparagraph protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.”

In Riley, this Court held that the unambiguous language of Vehicle and Traffic Law § 1103 (b), as further supported by its legislative history, made clear that the statute exempts from the rules of the road all vehicles, including sanitation sweepers, which are “actually engaged in work on a highway” (95 NY2d at 460), and imposes on such vehicles a recklessness standard of care (see id. at 466). The Court further concluded that liability under that standard is established upon a showing that the covered vehicle’s operator “ ‘has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (id. at 466, citing Saarinen v Kerr, 84 NY2d 494, 501 [1994]).

Deleon contends the correct standard is found not in 34 RCNY 4-02 (d) (1) (iv), but in another provision in effect at the time of the accident, namely 34 RCNY 4-02 (d) (1) (iii) (A), titled “Snow plows, sand spreaders, sweepers and refuse trucks.” That subparagraph provided, in relevant part,

“[t]he operator of a New York City Department of Sanitation . . . sweeper . . . , while in the performance of his/her duty and acting under the orders of his/her superior may make such turns as are necessary and proceed in the direction required to complete his/her cleaning . . . operations subject to § 1102 of the Vehicle and Traffic Law [which requires compliance with police and other official traffic instructions]. The provisions of this subparagraph shall not apply while traveling to or from such work locations” (former 34 RCNY 4-02 [d] [1] [iii] [A]).

Deleon essentially argues that by its silence this provision applies a negligence standard to sweeper operators, and that application of subparagraph (iv) here would render subparagraph (iii) meaningless. We disagree because that interpretation is unsupported by the language of the statute.

Subparagraph (iv) applies Vehicle and Traffic Law § 1103 to all operators “actually engaged in work on a highway,” which, as the Court held in Riley includes street sweepers (see Riley, 95 NY2d at 463). Those workers, then, are subject to the recklessness standard, which this Court has described as a “minimum standard of care” (id. at 466 [holding that the legislative history of Vehicle and Traffic Law § 1103 evinces an intent to impose “a minimum standard of care” on operators of vehicles engaged in roadwork]). Even assuming Deleon is correct that subparagraph (iii) adopts a negligence standard, that specific provision applies only in the limited circumstances set forth therein. However, because at the time of the collision Falcaro was operating the sweeper to clean the street and was not engaged in any of the activities referenced in subparagraph (iii), he was engaged in highway maintenance within the meaning of subparagraph (iv) and thus subject to the recklessness standard of care.

Notwithstanding Deleon’s arguments to the contrary, the 2013 amendments which repealed subparagraph (iii) (A) do not support a different interpretation of the statute. Those amendments simply eliminated the language of former subparagraph (iii) (A), and imposed the recklessness standard on workers engaged in work on a roadway, under all circumstances (see 34 RCNY 4-02, Note 5 [“Statement of Basis and Purpose in City Record Mar. 4, 2013”]).

Having resolved the question of the applicable standard of care, we next consider whether defendants were entitled to summary judgment. As we have made clear, the summary judgment movant bears the heavy burden of establishing “a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]; see also CPLR 3212 [b]).

Unlike the majority of our reckless disregard cases, Falcaro was not responding to an emergency, but instead was operating a street sweeper during the ordinary course of his duties. With this in mind, we conclude that defendants failed to meet their burden because material issues of fact remain as to whether Falcaro operated his street sweeper in a reckless manner and the extent of Deleon’s own negligence. As is plain from their respective motions, the parties dispute critical factual details of the collision. Most notably, Deleon alleges he was rear-ended as he sought to move left and away from the curb, whereas Falcaro contends that he was sweeping on the right side of the street when he observed Deleon’s vehicle make “[a] pretty sudden move” from the middle lane of the street towards the right curb. In addition, photographs in the record show damage to the passenger side of Deleon’s vehicle and the sweeper’s right front fender, seemingly consistent with Falcaro’s testimony. However, Falcaro admitted that when he observed Deleon’s vehicle, he did not slow down or apply his brakes in an attempt to avoid the collision, and “hit [Deleon] fairly well,” causing Deleon’s jeep to spin out 180 degrees. If a factfinder concludes that the driver could, but failed to, take evasive action to avoid a forceful collision, a reasonable jury could find that this conduct rises to the recklessness standard. Thus, the Appellate Division properly modified on the law and denied defendants’ motion for summary judgment.

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

Order, insofar as appealed from, affirmed, with costs, and certified question answered in the affirmative, in a memorandum.


text:
    [35 NE3d 476, 14 NYS3d 308]
    The People of the State of New York, Respondent, v Hakim B. Scott, Appellant.
    Argued May 5, 2015;
    decided June 11, 2015

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Steven R. Bernhard and Paul Skip Laisure of counsel), for appellant.

      Kenneth P. Thompson, District Attorney, Brooklyn {Seth M. Lieberman and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In the early morning hours of December 7, 2008, following a night of heavy drinking, José Sucuzhanay and his brother Romel Sucuzhanay were walking home in their Brooklyn neighborhood while supportively holding one another. The brothers crossed in front of an SUV which was stopped at a red light. In the SUV were Keith Phoenix in the driver’s seat, Demetrius Nathaniel in the passenger seat, and defendant Hakim Scott in the backseat. As the brothers passed in front of the SUV, Phoenix yelled homophobic slurs from the car window. In response, one of the brothers either lifted his foot to kick the SUV or actually kicked it. Defendant exited the vehicle, raised a glass beer bottle and smashed it over José’s head, causing José to fall to the ground. Defendant thereafter chased Romel down the block, carrying the remains of the broken bottle. Phoenix, at some point, exited the SUV, removed an aluminum baseball bat from the car and proceeded to beat José with the bat. Defendant, upon returning to the scene, fled in the SUV along with Phoenix and Nathaniel. José was left unconscious and died from his injuries the next day.

At trial, the People asserted two alternative theories of liability: (1) that defendant was acting in concert with Phoenix, and (2) that defendant alone caused José’s death. Following trial, defendant was convicted of manslaughter in the first degree, for the death of José, and attempted assault in the first degree, for his actions toward Romel. Defendant was sentenced to consecutive prison terms of 25 years on the manslaughter conviction and 12 years for attempted assault. The Appellate Division reduced the term of imprisonment for the attempted assault conviction from 12 years to four years, and otherwise affirmed the convictions, holding that the evidence was legally sufficient to sustain the convictions (see People v Scott, 106 AD3d 1030 [2d Dept 2013]). Defendant argues that his conviction for first degree manslaughter should be overturned because the record lacks legally sufficient evidence to support the conclusion that he was acting in concert with Phoenix to cause the death of José.

Penal Law § 20.00 provides that when a principal commits a crime, the principal’s accomplice may be held liable where the accomplice “acting with the mental culpability required for the commission [of the crime] . . . solicits, requests, commands, importunes, or intentionally aids [the principal] to engage in [the commission of the crime].” In People v La Belle (18 NY2d 405 [1966]), we held that to be liable under an acting in concert theory, the accomplice and principal must share a “community of purpose” (id. at 412).

This was a close case. The evidence presented at trial resulted in conflicting testimony about when exactly Phoenix exited the SUV. Nathaniel testified that defendant got out of the car first, then, once defendant ran away chasing Romel, Phoenix exited the vehicle. Romel, however, testified that Phoenix exited at the same time as defendant and, that after defendant hit José with the bottle, Romel could see Phoenix coming toward José with the bat. Thus, under Romel’s version of events, defendant and Phoenix were out of the car at the same time, both acting in a manner intending to cause harm to José. Additionally, another eyewitness testified that he observed Phoenix swing the bat at one of the brothers while defendant was present. Viewing the evidence, as we must, in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Conway, 6 NY3d 869, 872 [2006]), a reasonable jury could infer that a community of purpose existed between defendant and Phoenix. Therefore, legally sufficient evidence exists to support the conclusion that defendant and Phoenix were acting in concert and caused the death of José.

Finally, we reject defendant’s argument that the trial court committed a mode of proceedings error when it gave the jury a supplemental instruction in defendant’s absence, regarding the dates alleged in the indictment.

During jury instructions, as the court was giving the jury the relevant dates for the charges against defendant as stated in the indictment, December 7th and December 8th, the prosecutor interrupted the judge, attempting to correct her by stating that the relevant dates were December 6th and December 7th. The judge then charged the jury using the dates given by the prosecutor. The following day, the court — in the absence of the jury, defendant, and all counsel — stated, on the record to the court reporter, that she had charged the jury on the wrong dates of the alleged crimes, and that the correct dates were December 7th and 8th. The judge stated that she had spoken with the parties who agreed that the jury could be informed of this mistake outside of their presence. Thereafter, in the absence of the attorneys and defendant, the judge informed the jury that she had given them the wrong dates and told them the correct dates of the alleged crimes, noting that both parties agreed that she could make the correction in their absence. Later in the day, when defendant and his counsel were present, the court referenced its earlier supplemental instruction and asked defense counsel if the supplemental instruction was satisfactory, to which defense counsel responded that he had no objection.

Although defendant has a fundamental right to be present during “all material stages of a trial” (People v Mehmedi, 69 NY2d 759, 760 [1987]), the court’s supplemental instruction to the jury — simply clarifying the dates of the crimes in the jury charge, which were the same dates set forth in the indictment — did not require defendant’s presence. Because the court’s instruction was a technical conformance with the indictment that did not require defendant’s presence, no mode of proceedings error occurred.

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

Order affirmed, in a memorandum.


text:
    [35 NE3d 849, 14 NYS3d 779]
    The People of the State of New York, Respondent, v Curtis Basile, Appellant.
    Argued June 2, 2015;
    decided July 1, 2015

      APPEARANCES OF COUNSEL

      Cahill Gordon & Reindel LLP, New York City (Ben A. Schatz, Kerry Burns and Danielle Chattin of counsel), and Seymour W. James, Jr., The Legal Aid Society, New York City (Scott A. Rosenberg, Andrew C. Fine and David Crow of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Nicoletta J. Caferri and John M. Castellano of counsel), for respondent.

      Alston & Bird LLP, New York City (Daniella P. Main of counsel), for Civil Rights Research Center, amicus curiae.

      Proskauer Rose LLP, New York City (Mark D. Harris, Chan-tel L. Febus, Matthew V. Rotbart and Edward J. Canter of counsel), Green & Willstatter, White Plains (Richard D. Willstatter of counsel), and White & White, New York City (Brendan White of counsel), for National Association of Criminal Defense Lawyers and another, amici curiae.

      Virginia F. Coleman, Cambridge, Massachusetts, for Animal Legal Defense Fund and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be affirmed.

Acting on an anonymous tip of potential mistreatment of a dog, a special agent for the American Society for the Prevention of Cruelty to Animals (ASPCA) responded to a residential address in Queens County. As the ASPCA agent later testified at trial, he discovered a long-haired, mixed-breed German shepard, confined to a garbage-strewn backyard by a four-foot lead tied to a fence. The dog looked skinny; its bones were prominent. The animal had fly bites on its ears and there were flies around its head; there was no food, water or nearby shelter. Defendant Curtis Basile, the dog’s owner, surrendered the animal’s custody to the agent and was subsequently charged with violating Agriculture and Markets Law § 353. As relevant to this case, section 353 provides that “[a] person who . . . deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, ... is guilty of a class A misdemeanor . . . .” After a jury trial, defendant was convicted as charged, and Criminal Court sentenced him to three years of probation and 45 days of community service. Upon defendant’s appeal, the Appellate Term affirmed (40 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). We granted leave to appeal (22 NY3d 1137 [2014]), and now affirm as well.

Defendant contends that the trial court erred in refusing to instruct the jury that his conviction under section 353 required proof of a mens rea — specifically, that he knowingly deprived the dog of or neglected or refused to furnish the basic necessities required to maintain the animal’s health. We need not reach this question because, even assuming that defendant is correct, he would not be entitled to relief on this record.

At defendant’s trial, the ASPCA agent recounted the dog’s visibly compromised state of health and living conditions, as described above. Concomitantly, the veterinarian who conducted a physical examination of the dog testified that the animal “had a variety of problems,” the most significant of which was “that he had an emaciated body condition where there’s been extreme weight loss.” In addition, the dog was “flea infested. He had open sores on his ears — something called fly strike[s] from biting flies. He was dirty and he was battling dehydration.” The animal weighed 42.2 pounds, whereas the average weight of a healthy dog of the same type was approximately 60-62 pounds. The veterinarian explained that a dog with such an emaciated body condition has visually prominent skeletal structures due to the loss of fat and muscle tissue. On the animal condition scale, with five being the worst, the dog’s condition was five — i.e., “one step away from death.” To reduce the animal to the state that he observed, the veterinarian testified that it would have taken the dog many weeks of starving — at least four to six — as fat and muscle tissue were burned due to the lack of a proper diet. In sum, it was “clear” the dog was “underweight.” An X ray of the dog’s stomach showed that it contained scattered pieces of foreign matter — possibly dirt, metal or plastic — and chicken bones. There was no underlying disease as a cause of the animal’s emaciation. The dog also had overgrown nails, which indicated that it had not been exercised. In the veterinarian’s opinion, “[a] reasonable quality of life for a dog requires that [the animal] be provided with food, water and shelter, live in a reasonably clean environment and get at least a minimal amount of exercise. This dog was starved, lived in a filthy environment and got no exercise.” Moreover, it is undisputed that defendant told the ASPCA agent that he could not afford to support the dog and he testified at trial that he had not been regularly feeding the animal.

In light of the trial testimony about the dog’s wasted appearance and dirty living conditions as well as defendant’s admissions, there can be no issue on this record whether defendant knowingly deprived the animal of or neglected or refused to furnish the basic necessities required to maintain the dog’s health (see generally People v Koogan, 256 App Div 1078 [2d Dept 1939]). We have reviewed defendant’s remaining arguments and consider them to be without merit.

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

Order affirmed, in a memorandum.

       “A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists” (Penal Law § 15.05 [2]).