text:
    [830 NE2d 1118, 797 NYS2d 790]
    In the Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003. “Doe Law Firm" et al., Appellants; Eliot Spitzer, as Attorney General of the State of New York, Respondent.
    Argued March 29, 2005;
    decided May 3, 2005

      POINTS OF COUNSEL

      Kenneth J. Weinstein, Garden City, and Judah Serfaty for appellants.
    I. The subpoena violates the individual partners’ state constitutional rights against compelled self-incrimination. (Bellis v United States, 417 US 85; United States v Doe, 465 US 605;
      Fisher v United States, 425 US 391; In re Grand Jury Subpoena Duces Tecum Dated Oct. 29,1992, 1 F3d 87; People ex rel. Taylor v Forbes, 143 NY 219; People v P.J. Video, 68 NY2d 296; Boyd v United States, 116 US 616; People v Scott, 79 NY2d 474; People v Dunn, 77 NY2d 19; People v Torres, 74 NY2d 224.) II. Even under Beilis v United States (417 US 85 [1974]) the partnership here is not a “separate entity.” III. The subpoena violates the individual partners’ federal and state constitutional “act of production” privilege against self-incrimination. (Fisher v United States, 425 US 391; In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F Supp 1059; Boyd v United States, 116 US 616; United States v Hubbell, 530 US 27; Prudential Sec. v Brigianos, 233 AD2d 18; [Under Seal] v United States, 634 F Supp 732; United States v Fox, 721 F2d 32; In re Grand Jury Subpoena Duces Tecum Dated Nov. 13, 1984, 616 F Supp 1159.) IV The New York Constitution continues to protect private personal and business papers. (Matter of Grand Jury Subpoena [Bekins Record Stor. Co.], 62 NY2d 324; United States v Doe, 465 US 605; People v Defore, 242 NY 13; People ex rel. Ferguson v Reardon, 197 NY 236; People ex rel. Kenny v Adams, 292 NY 65; People v Laino, 10 NY2d 161; People v Copicotto, 50 NY2d 222; Couch v United States, 409 US 322.) V All or the vast majority of the documents demanded in the subpoena are not “required records.” (Gross v United States, 390 US 62; People v Doe, 59 NY2d 655; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, Y., M.D., P.C. v Kuriansky, 69 NY2d 232.) VI. The subpoena violates the attorney-client and attorney work product privileges of the law firm, the individual partners, and their clients. (In re Grand Jury Proceedings, 219 F3d 175; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, Y, M.D., P.C. v Kuriansky, 69 NY2d 232; Matter of Subpoena Duces Tecum to Doe [Park Assoc.—New York State Attorney Gen., Medicaid Fraud Control Unit], 99 NY2d 434; Matter of Stolar, 196 Misc 2d 175; Matter of Priest v Hennessy, 51 NY2d 62; Diversified Group, Inc. v Daugerdas, 304 F Supp 2d 507; Clarke v American Commerce Natl. Bank, 974 F2d 127; Fochetta v Schlackman, 257 AD2d 546; Teich v Teich, 245 AD2d 41; Matter of Jacqueline F., 47 NY2d 215.) VII. The subpoena violates the law firm and individual partners’ rights under CPLR 2304, CPL 190.50, and Search and Seizure Clauses. (People v Weiss, 176 Misc 2d 496; In re Grand Jury Proceedings, 219 F3d 175; United States v Fox, 721 F2d 32; Corporate Interiors v Pappas, 293 AD2d 640; Abbene v Griffin, 208 AD2d 483; Consentino v Schwartz, 155 AD2d 640; United States v Dionisio, 410 US 1;
      Hale v Henkel, 201 US 43; Oklahoma Press Publ. Co. v Walling, 327 US 186.)

      Eliot Spitzer, Attorney General, New York City (Peter B. Pope, Daniel Smirlock and Robin A. For show of counsel), for respondent.
    I. Because of the commands of article 190 of the Criminal Procedure Law, this Court should not determine the scope of appellants’ Fifth Amendment privilege prior to the production of the subpoenaed evidence. (Matter of Rush v Mordue, 68 NY2d 348; Kastigar v United States, 406 US 441; People v Slavin, 1 NY3d 392; United States v Fox, 721 F2d 32; In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F3d 87; Prudential Sec. v Brigianos, 233 AD2d 18; Matter of Momah v Rogers, 93 NY2d 864; People v Avant, 33 NY2d 265; Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 404 US 823; Matter of Altman v Bradley, 184 AD2d 131.) II. If this Court reaches the issue of appellants’ rights against self-incrimination under the New York State Constitution, it should not craft a rule that allows appellants to veto the giving of grand jury evidence against them by their employees. (Matter of Vanderbilt [Rosner— Hickey], 57 NY2d 66; Big Apple Concrete Corp. v Abrams, 103 AD2d 609; Bellis v United States, 417 US 85; People v P.J. Video, 68 NY2d 296; People v Harris, 77 NY2d 434; Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, Y., M.D., P.C. v Kuriansky, 69 NY2d 232; Matter of Cappetta, 42 NY2d 1066; Matter of Friedman v Hi-Li Manor Home for Adults, 42 NY2d 408; United States v White, 322 US 694; Matter of Havemeyer, 17 NY2d 216.) III. The documents called for in the subpoena are records of an enterprise, not personal records, and compelling their production does not implicate the constitutional privilege against self-incrimination. (People v Hager, 69 NY2d 141; United States v Doe, 465 US 605; Fisher v United States, 425 US 391; Henry v Lewis, 102 AD2d 430; Wilson v United States, 221 US 361; Matter of Sigety v Hynes, 38 NY2d 260; Shapiro v United States, 335 US 1; United States v Hubbell, 530 US 27; Matter of Subpoena Duces Tecum to Doe [Park Assoc.—New York State Attorney Gen., Medicaid Fraud Control Unit], 99 NY2d 434.) IV The documents called for do not implicate the attorney-client privilege and appellants have failed in their burden of proving that they do. (Matter of Grand Jury Subpoena [Bekins Record Stor. Co.], 62 NY2d 324; People v Mitchell, 58 NY2d 368; Matter of Priest v Hennessy, 51 NY2d 62; Matter of Stolar, 196 Misc 2d 175; Matter of Jacqueline F, 47 NY2d 215; Matter of Kaplan [Blumenfeld], 8 NY2d 214; Nab-Tern-Betts v City of New York, 209 AD2d 223; Matter of Williams & Connolly

      v Axelrod, 139 AD2d 806.) V The requested records are not attorney work product. (Hickman v Taylor, 329 US 495; Kinge v State of New York, 302 AD2d 667.) VI. The County Court properly determined that the subpoena does not violate appellants’ Fourth Amendment right to be free from unreasonable search and seizure. (United States v Dionisio, 410 US 1; Hale v Henkel, 201 US 43; Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO [People], 72 NY2d 307; Matter of Hynes v Moskowitz, 44 NY2d 383; In re Nwamu, 421 F Supp 1361; Virag v Hynes, 54 NY2d 437; Blair v United States, 250 US 273.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether individual partners of a small law firm may invoke the privilege against compelled self-incrimination in response to a grand jury subpoena duces tecum, served upon the custodian of records of their firm, seeking production of firm financial and payment records, copies of retainer and closing statements, and various other records. On the central issue before us, we agree with the motion court and Appellate Division that the individual partners cannot invoke the state or federal constitutional privilege against compelled self-incrimination.

FACTS

On June 24, 2003, the Attorney General issued a subpoena duces tecum, on behalf of a Nassau County grand jury, commanding the custodian of records of the appellant law firm to appear before the grand jury on July 7, 2003 and directing the custodian to bring and produce documents relating to the firm’s personal injury cases handled from January 1, 2001 to June 24, 2003. The subpoena, which did not identify the nature of the grand jury proceeding, sought production of the following documents:

“1. All books of record (and accountant’s work[ ]papers and reconciliations), including!,] but not limited to[,] General Ledgers, General Journals, Cash Disbursements Books, Cash Receipts Books, and Petty Cash Books for the period from January 1, 1999 through December 31, 2002.
“2. All financial records, including!,] but not limited to[,] personal lists, memoranda, or other documentation of monies paid and received, check registers, check stubs, cancelled checks, and bank statements for all accounts, including operating, payroll, IOLA and escrow accounts, tax returns!,] including all schedules, attachments, and accountant’s work papers.
“3. Copies of all Retainer Statements filed with the Office of Court Administration by the firm and any partners and associates of the firm.
“4. Copies of all Closing Statements filed with the Office of Court Administration by the firm and any partners and associates of the firm.
“5. Regarding the aforesaid Retainer and Closing Statements, the index-numbered postal cards sent by the Office of Court Administration.
“6. Regarding the aforesaid Closing Statements, any and all records, in whatever form kept, reflecting payments to persons or entities reported to have been paid for services provided from the settlement funds, including, but not limited to, books of account such as general ledger, general journal, cash disbursement books, petty cash register (with supporting documentation), cancelled checks, money orders, correspondence, memoranda, notes, and invoices.
“7. Records of any and all payments made to any persons or entities whose services were provided, relative to those cases for which partners and associates filed Retainer Statements, or were required to file retainer statements but did not or have not yet done so.
“8. Records of any and all payments made to persons or entities whose services were performed for the firm and in connection with no-fault personal injury matters generally and not for one client or group of clients, including for such services as investigation, referral of clients, transportation of clients, outreach, community relations, and publicity, including, but not limited to[,] books of account such as general ledger, general journal, cash disbursement books, petty cash register (with supporting documentation), cancelled checks, money orders, correspondence, memoranda, notes, and invoices.
“9. Records of any and all payments to medical practitioners, medical facilities, or any management or marketing companies representing such practitioners or facilities, for reports, records, or other goods or services.
“10. Any and all contracts, leases or agreements with medical practitioners, medical facilities or any management or marketing companies representing such practitioners or facilities, and all auxiliary documents reflecting such contracts, agreements, or leases, including rental statements, cancelled checks, tax form 1099s and correspondence.
“11. Records of all cash payments to any persons or entities, including cash books, petty cash books, diary entries, memoranda, invoices, and receipts.
“12. Records of any and all debts, open or paid, to or from all the providers of services listed above, and medical facilities, medical practitioners, management or marketing firms, including diary entries, memoranda, lists, and file notations.
“13. Copies of all Retainer Agreements obtained from clients by non-salaried employees or providers of services listed above.
“14. Copies of all Retainer Agreements obtained from clients by any person, within or without the law firm, at a medical facility or medical practitioner[’]s office.
“15. Payroll books, and tax forms 941.
“16. Records showing the names of all present and past Associate Attorneys and Partners.”

On July 17, 2003, by order to show cause, appellants moved to quash the subpoena or modify its scope. Appellants argued that the subpoena violated: the individual partners’ state and federal rights against compelled self-incrimination; the law firm’s and individual partners’ rights against unreasonable searches and seizures; and the attorney-client privilege. Appellants also argued that the subpoena was unduly burdensome and overbroad, and that the statements filed with the Office of Court Administration were confidential pursuant to 22 NYCRR 691.20 (c), and thus not subject to disclosure. Finally, in a supporting affirmation they stated that “[i]f required by this Court, and if given an opportunity to compile a privilege log, Applicants will submit a privilege log, or if compelled, a privilege log along with the compiled documents, for an in camera inspection by the Court only for the purpose of determining the availability of the claimed privileges.”

By order dated September 22, 2003, Nassau County Court denied appellants’ application in its entirety. By order dated May 24, 2004, the Appellate Division unanimously affirmed. Appellants appeal as of right pursuant to CPLR 5601 (b) (1).

DISCUSSION

The constitutional privilege against compelled self-incrimination is a personal one—“it cannot be utilized by or on behalf of any organization, such as a corporation” (United States v White, 322 US 694, 699 [1944]). This privilege “protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by legal process against him as a witness” (id.; see US Const Amend V; NY Const, art I, § 6). Further, “the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity” (Bellis v United States, 417 US 85, 90 [1974], quoting White, 322 US at 699).

Under federal law, it is well settled that a partner in a law firm, even a small law firm, cannot rely on the federal Fifth Amendment privilege against compelled self-incrimination “to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally” (Bellis v United States, 417 US 85, 88 [1974]). The Bellis court—which also had before it a three-partner law firm—set forth two rationales for its holding. First, since the privilege against compelled self-incrimination applies only to natural individuals, neither an artificial organization nor individuals acting as representatives of that organization can invoke the privilege. In support of this rationale, the Bellis court stated,

“In view of the inescapable fact that an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual’s claim of privilege with respect to the financial records of the organization would substantially undermine the unchallenged rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations” (417 US at 90) .

Second, the Beilis court noted the lack of privacy interest a representative of an organization has in organization records (see id. at 91-92). Similarly, with regard to partnerships, the Beilis court noted that “partnerships may and frequently do represent organized institutional activity so as to preclude any claim of Fifth Amendment privilege with respect to the partnership’s financial records” (id. at 93) .

As this Court has never expressly determined whether the New York privilege against compelled self-incrimination (NY Const, art I, § 6) applies to a partnership, and as this Court has, on occasion, afforded greater protection regarding fundamental rights than the Federal Constitution and the United States Supreme Court, we now consider whether Beilis should be adopted in New York.

This Court has adopted a two-pronged “interpretive” and “noninterpretive” analysis of various factors to determine if a provision of our State Constitution should be construed more broadly than its federal analog (see People v P.J. Video, 68 NY2d 296 [1986]). We first review the text of the state and federal constitutional provisions. “If the language of the State Constitution differs from that of its Federal counterpart, then the court may conclude that there is a basis for a different interpretation of it” (id. at 302 [citations omitted]). Here, there is no material textual difference between the relevant constitutional provisions. As such, this Court need only conduct a “noninterpretive” review of the constitutional provisions. A noninterpretive review “proceeds from a judicial perception of sound policy, justice and fundamental fairness” and seeks to discover, for example,

“any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of that individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right” (68 NY2d at 303).

A finding of these factors suggests that a broader reading of the state constitutional provision could be appropriate. Under our “noninterpretive” analysis of the state and federal constitutional provisions, we conclude that none of the factors that would suggest a broader reading of article I, § 6 are present.

Appellants contend that a partnership has a right against self-incrimination based on its unique status, in that a partnership is not a legal entity separate from its member partners. Appellants cite Williams v Hartshorn (296 NY 49, 51 [1946]) in which we stated that “a partnership is not to be regarded as a separate entity distinct from the persons who compose it” (see also People v Zinke, 76 NY2d 8 [1990]; Caplan v Caplan, 268 NY 445 [1935]). For many purposes, it is certainly true that a partnership is not a legally separate entity from its member partners. In the circumstances presented here, our prior cases guide us toward a different conclusion.

For example, in Matter of Friedman v Hi-Li Manor Home for Adults (42 NY2d 408, 416 [1977]), we observed that the right against self-incrimination reflects a policy of protecting an individual’s “right to a ‘private enclave’ ” in which he or she may lead a private life, but the constitutional guarantee against compulsory self-incrimination is concerned mostly with protecting individual civil liberties, and should not be interpreted to “insulate economic or other interests of organizations, incorporated and unincorporated, when to do so would be to frustrate appropriate governmental regulation.” Citing Beilis approvingly, we have also stated that “[i]t is settled that a corporation has no Fifth Amendment privilege and that a custodian of corporate records may not refuse to produce them even though they may incriminate him personally” (Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 69 NY2d 232, 242 [1987]).

Appellants also rely on Matter of Sigety v Hynes (38 NY2d 260, 268 [1975]) for the proposition that in that case, we were not content with relying on the Beilis majority’s definition of a “separate entity” but instead applied the Supreme Court’s prior precedent of United States v White (322 US 694, 701 [1944]), which the Beilis majority “backed away from.”

In Sigety, we stated the White test as whether under all the circumstances, it could be fairly said that a particular type of organization is so impersonal in the scope of membership and activities that it does not represent the purely private interests of its members. We nevertheless applied Beilis while noting the Supreme Court’s observation that in Beilis itself, the result might have been different had it involved a small family partnership. Here, of course, the makeup of the law firm is identical to that in Beilis. Further, the “identity of language [of these provisions] supports a policy of uniformity between State and Federal Courts” (68 NY2d at 304). Accordingly, we hold that article I, § 6 affords a partnership no greater right against self-incrimination than the Fifth Amendment.

Based on the foregoing, we hereby adopt Beilis and hold that an individual partner of a law firm, whose firm was served with a subpoena duces tecum seeking the production of firm records, cannot rely on the constitutional privilege against compelled self-incrimination “to avoid producing the records of a collective entity which are in his possession in a representative capacity, even if these records might incriminate him personally” (Beilis, 417 US at 88). Applying this rule to the present case, appellant law firm is a collective entity under Beilis. It is not a family partnership or association; exists as an independent entity apart from its individual members; is a well structured, not informal, organization set up for conducting an ongoing legal practice; and maintains a distinct set of organizational records. Additionally, the records subpoenaed were organization records held in a representative capacity rather than records of an individual held in a personal capacity—i.e., the subpoena was directed to appellant law firm’s custodian of records.

In further support of our view that appellant law firm is a collective entity, we note that the term “partnership” is defined as “an association of two or more persons to carry on as co-owners a business for profit” (Partnership Law § 10 [1]). Given this definition and the fact that the privilege against compelled self-incrimination is personal (i.e., the privilege protects papers that are a person’s private property or that are in a person’s possession in a purely personal capacity), a partnership and its individual partners, with respect to the papers, effects and records generated in the course of conducting partnership business, should not be afforded the protections provided under the privilege. Based on the foregoing, we conclude that the individual partners of appellant law firm cannot invoke the privilege against compelled self-incrimination in order to avoid producing the documents sought by the instant subpoena. We further conclude that the privilege against compelled self-incrimination may not be invoked by an individual partner subpoenaed to produce records required to be kept by law (see Matter of Grand Jury Subpoena Duces Tecum Dated Dec. 14, 1984, 69 NY2d 232 [1987]).

Moreover, we agree with the lower court rulings rejecting appellants’ claim that the instant subpoena violates appellants’ right to be protected against unreasonable searches and seizures. It is well established that “a subpoena duces tecum, unlike a search warrant, does not have to be supported by probable cause” (Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO [People], 72 NY2d 307, 315 [1988]). Further, under both the State and Federal Constitutions, a subpoena does not violate an individual’s right to be free from unreasonable searches and seizures when the materials sought are relevant to the investigation being conducted and the subpoena is not over-broad or unduly burdensome (id. at 315-316). Moreover, this Court has stated that

“a Grand Jury subpoena duces tecum, unlike an office subpoena, enjoys a presumption of validity that requires the party challenging the subpoena to demonstrate, by concrete evidence, that the materials sought have no relation to the matter under investigation. Bare assertions of the lack of relevancy will not suffice. Rather, given the ranging, exploratory nature and operation of a Grand Jury, the witness served with a subpoena must show that ‘the documents are so unrelated to the subject of inquiry as to make it obvious that their production would be futile as an aid to the’ Grand Jury’s investigation” (Virag v Hynes, 54 NY2d 437, 444 [1981] [citation omitted]).

Appellants did not make a sufficient showing to rebut the presumption of validity afforded the instant subpoena. Appellants did not produce evidence that the subpoena was overbroad or that subpoenaed documents were irrelevant to the grand jury investigation. For example, the subpoena sought documents generated over a 2 k year period, documents that were generally partnership financial records and records required to be kept by law. Nor could appellants show that compliance with the subpoena would have been unduly burdensome.

Next, we consider the lower court rulings that the documents sought in the subpoena are not protected under the attorney-client privilege. The attorney-client privilege protects confidential communications between a lawyer and client relating to legal advice sought by the client (see Matter of Priest v Hennessy, 51 NY2d 62 [1980]; see also CPLR 4503). The person who asserts the privilege has the burden of proving the above elements. Communications regarding “the identity of a client and information about fees paid by the client” are not generally protected under the privilege, nor are communications regarding the payment of legal fees by a third person (51 NY2d at 69).

Here, the lower courts found that the documents sought in the subpoena were not protected by the attorney-client privilege. The courts below considered the subpoena on its face and noted that appellants failed to meet their burden in estabhshing that the records sought were protected under the privilege. However, as the Attorney General conceded at oral argument, nothing prevents appellants from compiling a privilege log and asserting the privilege as to particular documents in the grand jury proceedings.

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs.

      . The schedule of documents subpoenaed indicated that the period covered for the subpoena was “January 1, 1999 to the present (unless otherwise designated).”

      . Respondent, however, provided some general information about what the matter concerned in its brief. Respondent stated, “Because of concerns that dramatic increases in the cost of motor vehicle insurance were attributable to fraud, in 2001[,] Governor [ ] Pataki appointed New York State Attorney General Eliot Spitzer [ ] special prosecutor for auto insurance fraud [see Executive Order (Pataki) No. 109, 9 NYCRR 5.109 (2001)]. Pursuant to this authority, on June 17, 2003, [respondent] filed criminal court complaints in Queens County and Nassau County charging 19 defendants with Conspiracy in the Fourth Degree in violation of Penal Law § 105.10. . . . [T]he cases charged conspiracies among lawyers, medical providers, insurance brokers, and middlemen known as ‘steerers’ to defraud insurance companies providing no-fault insurance.”

      . In Beilis, a former partner of a dissolved three-partner law firm was served with a subpoena directing him to appear before a federal grand jury and to bring all records in his possession pertaining to the dissolved partnership for the years 1968 and 1969. In response to the subpoena, the former partner asserted the federal Fifth Amendment privilege against compelled self-incrimination.

      . Quoting United States v White, 322 US 694, 700 (1944), the Bellis court further stated:
      “The scope and nature of the economic activities of incorporated and unincorporated organizations and their representatives demand that the constitutional power of the federal and state governments to regulate those activities be correspondingly effective. The greater portion of evidence of wrongdoing by an organization or its representatives is usually to be found in the official records and documents of that organization. Were the cloak of the privilege to be thrown around these impersonal records and documents, effective enforcement of many federal and state laws would be impossible. The framers of the constitutional guarantee against compulsory self-disclosure, who were interested primarily in protecting individual civil liberties, cannot be said to have intended the privilege to be available to protect economic or other interests of such organizations so as to nullify appropriate governmental regulations” (id. at 90-91 [citations omitted]).

      . Regarding the difficulty of maintaining a claim of privacy or confidentiality with respect to the financial records of an organized collective entity, the Beilis court stated:
      “Control of such records is generally strictly regulated by statute or by the rules and regulations of the organization, and access to the records is generally guaranteed to others in the organization. In such circumstances, the custodian of the organization’s records lacks the control over their content and location and the right to keep them from the view of others which would be characteristic of a claim of privacy and confidentiality” (id. at 92).

      . In determining that the Beilis law. firm engaged in “organized institutional activity” so as to preclude a Fifth Amendment claim, the Beilis court considered whether the organization: (1) existed “as an independent entity apart from its individual members”; (2) was well structured “and not merely a loose, informal association of individuals”; and (3) maintained “a distinct set of organizational records, and recognize[d] rights in its members of control and access to them” (id. at 92, 93). Additionally, the records subpoenaed must actually be organization records held in a representative capacity rather than records of an individual held in a personal capacity (id. at 93).

      . Article I, § 6 of the New York State Constitution provides, in relevant part that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself or herself.” The Fifth Amendment of the Federal Constitution states, in pertinent part, that “[n]o person shall be . . . compelled in any criminal case to be a witness against himself.”

      . This conclusion is based on the two rationales stated by the Beilis court and specifically on the following language: since “an artificial entity can only act to produce its records through its individual officers or agents, recognition of the individual’s claim of privilege with respect to the [organization’s] financial records would substantially undermine the . . . rule that the organization itself is not entitled to claim any Fifth Amendment privilege, and largely frustrate legitimate governmental regulation of such organizations” (id. at 90).

      . “The standard of reasonableness rather than probable cause is appropriate because of the substantial differences between a search warrant and a subpoena duces tecum. A search and seizure is conducted abruptly, without advance notice, often with force or the threat of force. A subpoena, in contrast, remains at all times under the control and supervision of a judicial officer and may he challenged before compliance through a motion to quash. Moreover, the unannounced search and seizure of documents often results in serious social stigma. A subpoena is served in the same manner as any summons or other legal process and typically no stigma whatsoever attaches if it is enforced” (Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO [People], 72 NY2d at 315 [citations omitted]).

      . Although appellants were given two weeks to comply with the subpoena, respondent thereafter agreed to allow appellants to produce the documents sought on a rolling basis.

      . In Matter of Subpoena Duces Tecum to Jane Doe (99 NY2d 434, 442 [2003]), a case in which a nursing home argued that subpoenaed documents were privileged under New York’s Public Health Law and the federal Nursing Home Reform Act, this Court suggested that “a party seeking to protect documents from disclosure compile a privilege log in order to aid the court in its assessment of a privilege claim and enable it to undertake an in camera review.”


source: Caselaw Access Project

author: G.B. Smith, J.

license: Public Domain

text:
    [830 NE2d 1137, 797 NYS2d 809]
    In the Matter of National Gypsum Company, Inc., Respondent, v Assessor of Town of Tonawanda et al., Appellants, and Kenmore Tonawanda Union Free School District Board of Education, Intervenor-Respondent.
    Argued April 14, 2005;
    decided June 7, 2005

      POINTS OF COUNSEL

      Brown & Kelly, LLP, Buffalo (Karen Cook Serotte and Lisa T Sofferin of counsel), for appellants.
    I. CPLR 403 requires that the notice of petition served on respondent include the time and place of hearing. (Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760; Matter of Eagle v La Rose, 137 Misc 2d 304; Glikman v Horowitz, 66 AD2d 814; Avakian v De Los Santos, 183 AD2d 687.) II. The failure to include the proper time and place of the hearing on the notice of petition when served is a noncurable jurisdictional defect. (Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745; Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 309 AD2d 1251, 1 NY3d 507; Matter of Krenzer v Town of Caledonia Zoning Bd. of Appeals, 233 AD2d 882; Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 144 AD2d 90; Matter of Owen v Comstock, 231 AD2d 898; Matter of DiBenedetto v Nationwide Assoc., 297 AD2d 740; Matter of Oates v Village of Watkins Glen, 290 AD2d 758; Matter of Hawkins v McCall, 278 AD2d 638; Matter of Eagle v La Rose, 137 Misc 2d 304; Parker v Mack, 61 NY2d 114.) III. The hearing date is meaningful as respondent’s substantive rights may be affected if it fails to appear on the assigned return date. (Matter of Fry v Village of Tarrytown, 89 NY2d 714; Matter of Brookview Apts, v Stuhlman, 278 AD2d 825; Matter of First Source Fed. Credit Union v Stuhlman, 275 AD2d 908; Matter of Deering Realty Corp. v Podeyn, 18 AD2d 821; Matter of DHI Mgt. Agency v City of Yonkers, 67 AD2d 913.) IV Change, if any, must be done legislatively. (Ling Ling Yung v County of Nassau, 77 NY2d 568; Matter of Oates v Village of Watkins Glen, 290 AD2d 758.)

      Jerrold F. Janata & Associates, PC., New City (Henry LaCap
      of counsel), for respondent.
    I. The notice of petition, on its face, fully complied with the provisions of CPLR 403. II. Existing case law supports the proposition that the notice of petition fully complied with New York law. (Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 309 AD2d 1251, 1 NY3d 507; Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760; Matter of Krenzer v Town of Caledonia Zoning Bd. of Appeals, 233 AD2d 882; Matter of Vetrone v Mackin, 216 AD2d 839; Travis v New York State Dept, of Envtl. Conservation, 185 AD2d 714; Matter of Hawkins v McCall, 278 AD2d 638; Matter of Common Council of City of Gloversville v Town Bd. of Town of Johnstown, 144 AD2d 90; Matter of Lamb v Mills, 296 AD2d 697; Matter of Oates v Village of Watkins Glen, 290 AD2d 758; Matter of Owen v Comstock, 231 AD2d 898.) III. The changing of the return date by the court did not render this proceeding, initially jurisdictionally sound, jurisdictionally defective. (Matter of Spodek v New York State Commr. of Taxation & Fin., 85 NY2d 760.) IV Real property tax certiorari proceedings and their treatment in the Uniform Rules for Trial Courts support the conclusion that return dates for RPTL article 7 proceedings are not actual dispositive hearing dates. (W.T. Grant Co. v Srogi, 52 NY2d 496; Matter of Great E. Mall v Condon, 36 NY2d 544; Matter of Batavia Enters, v Assessor of Town of Batavia, 72 AD2d 912; Matter of Sears, Roebuck & Co. v Board of Assessors of Town of Union, 182 AD2d 970; Matter of Caldor v Board of Assessors of Town of Colonie, 142 AD2d 57.)
   OPINION OF THE COURT

G.B. Smith, J.

The issue here is whether the notice of petition in a tax certiorari proceeding pursuant to RPTL article 7 was jurisdiction-ally defective where petitioner included a return date that was later changed by court personnel. We conclude that it was not.

On July 16, 2002, petitioner sought to commence the instant tax certiorari proceeding in Supreme Court, Erie County when it filed and served a notice of petition and petition on respondents (collectively the Town) seeking a reduction in the tax assessment of its property located in the Town of Tonawanda for the taxable status date May 1, 2002. The notice of petition stated that the matter would be heard in Supreme Court at 9:00 a.m. “on September 24[,] 2002, or on such other date as specified by the Court, at the opening of Court on that day, or as soon thereafter as counsel can be heard.” The time and place on the petition were chosen by petitioner’s attorney. After the notice of pe-

tition was filed, the Clerk of the Court assigned a return date of August 28, 2002 at 9:30 a.m. before Justice Dillon for the hearing of the petition. On August 20, 2002, eight days before the court-assigned return date, the Town moved to dismiss the instant petition arguing that petitioner failed to obtain personal jurisdiction over the Town because the notice of petition served upon it did not include proper notice of the time and place for the hearing on the petition. Moreover, the Town contended that the inclusion of a “fictitious” hearing date when the notice of petition was filed did not satisfy CPLR 403 (a) and constituted a jurisdictional defect.

Supreme Court agreed with the Town and dismissed the petition. By a 3-2 vote, the Appellate Division reversed and reinstated the petition. The Appellate Division granted leave and certified the following question: “Was the order of this Court, entered June 14, 2004, properly made?” We now answer yes to that question and affirm.

RPTL 700 (2) authorizes the use of special proceedings in tax certiorari matters. RPTL 704 (1) provides, in pertinent part: CPLR 403 (a) provides that “[a] notice of petition shall specify the time and place of the hearing on the petition and the supporting affidavits, if any, accompanying the petition.” A notice of petition must comply with the strict statutory mandates for obtaining personal jurisdiction when served (see Matter of Mendon Ponds Neighborhood Assn. v Dehm, 98 NY2d 745 [2002]). The Fourth Department has concluded that failure to include the time and place on a notice of petition in a tax certiorari proceeding is a jurisdictional defect that will warrant dismissal of the tax certiorari petition (see Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 309 AD2d 1251 [4th Dept 2003], lv granted 1 NY3d 507 [2004], appeal withdrawn 3 NY3d 635 [2004]).

“Any person claiming to be aggrieved by any assessment of real property upon any assessment roll may commence a proceeding under this article by filing a petition ... in the manner set forth in [CPLR 304] together with a notice in writing of an application for review under this article returnable not less than twenty nor more than ninety days after service of such petition and notice, except that in a city having a population of one million or more, such a proceeding shall be commenced by filing of a petition alone.”

Relying on Niagara Mohawk, the Town claims that the failure to insert the actual time and place is tantamount to not inserting any time and place at all. Here, however, there can be no doubt that petitioner fully complied with CPLR 403 (a) because in its notice of petition, it inserted a time and place for the hearing which conformed with the applicable statutory notice requirements (see RPTL 704 [l]). The hearing date fell on a Tuesday during business hours, not on the weekend or a holiday. Under the particular circumstances presented here, we agree with the Appellate Division that the notice of petition is jurisdictionally sound and that the petition should be reinstated. Moreover, we conclude that petitioner has complied with CPLR 403 (a) even though the original return date was changed by court personnel once a Supreme Court Justice was assigned. As the Appellate Division stated, “Any other interpretation of the statute would be patently unfair to a party attempting to commence such a proceeding” (Matter of National Gypsum Co., Inc. v Assessor of Town of Tonawanda, 8 AD3d 953, 954 [4th Dept 2004]; see also Siegel, NY Prac § 553, at 912-913 [3d ed]).

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

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, etc.

      . According to the Town, it found out about the new return date when it called the Erie County Clerk seeking details regarding the September 2002 return date.

      . The dissent in the Appellate Division concluded that the plain language of CPLR 403 (a) requires that the notice of petition include the actual hearing date. It stated, “Even if a fictitious date were to suffice for filing purposes, it would not necessarily follow that service of a petition and notice of petition with a fictitious hearing date would confer personal jurisdiction” (Matter of National Gypsum Co., Inc. v Assessor of Town of Tonawanda, 8 AD3d 953, 955 [4th Dept 2004]). The dissent further concluded, “It cannot be less of a defect to give notice of a hearing date that in fact is later than the actual hearing date than to give no hearing date at all. Furthermore, we note that the fact that [the Town] otherwise knew of the actual hearing date is irrelevant” (id. at 956).

      . Contra, Matter of Sears, Roebuck & Co. v Board of Assessors of Town of Union, 182 AD2d 970 (3d Dept 1992).

      . RPTL 704 (1) provides the statutory notice requirements for the purpose of the instant tax certiorari proceeding. Further, RPTL 704 (1) clearly implies that the petitioner is to select a return date.

      . Professor David D. Siegel, in his treatise, New York Practice, acknowledged the difficulties a petitioner’s lawyer may face in setting a return date but concluded that “the best bet is to set a return day satisfactoiy to statutory notice requirements, even if it appears inevitable that the date selected will be postponed after a judge is assigned” (footnote omitted) (Siegel, NY Prac § 553, at 913 [3d ed]).


author: Rosenblatt, J.

text:
    [831 NE2d 413, 798 NYS2d 356]
    The People of the State of New York, Respondent, v Raul Lopez, Appellant.
    Argued May 5, 2005;
    decided June 16, 2005

      POINTS OF COUNSEL

      Office of the Appellate Defender, New York City (Melissa Roth-stein, Richard M. Greenberg and Rosemary Herbert of counsel), for appellant.
    I. Raul Lopez’s waiver of indictment and guilty plea on a superior court information were unlawful where there was no pending grand jury action and the court had dismissed the indictment lodged against Mr. Lopez on the same felony complaint. (People v Boston, 75 NY2d 585; People v Iannone, 45 NY2d 589; People v Verrone, 266 AD2d 16; People v Libby, 246 AD2d 669; People v Casdia, 163 AD2d 604, 78 NY2d 1024; People v Trueluck, 88 NY2d 546; People v Young, 241 AD2d 690; People v Davis, 171 AD2d 957; People v Robbins, 283 AD2d 152; People v D'Amico, 76 NY2d 877.) II. Raul Lopez was denied effective assistance of counsel when his lawyer advised him to waive indictment and plead guilty on a superior court information after the grand jury had considered the charges against Mr. Lopez but did not vote a true bill against him. (Strickland v Washington, 466 US 668; People v Benevento, 91 NY2d 708; People v Garcia, 75 NY2d 973; People v Rivera, 71 NY2d 705; People v Jenkins, 68 NY2d 896.)

      Robert T Johnson, District Attorney, Bronx (T. Charles Won, Joseph N. Ferdenzi and Peter D. Coddington of counsel), for respondent.
    I. Defendant properly waived indictment and pleaded guilty to a charge contained in a superior court information after the court dismissed the indictment with the understanding that the case would be resubmitted to another grand jury if defendant did not plead guilty. (People v Comfort, 278 AD2d 872; People v Ianniello, 21 NY2d 418; Matter of Hall v Bongiorno, 305 AD2d 508; People v Casdia, 78 NY2d 1024; People v Boston, 75 NY2d 585; People v Aarons, 2 NY3d 547; People v Noe, 170 AD2d 1029; People v D'Amico, 76 NY2d 877; People v Bonnet, 288 AD2d 161; People v Brown, 90 NY2d 872.) II. This Court should not review defendant’s ineffective assistance of counsel claim, since defendant waived his right to appeal as part of his negotiated plea agreement. (People v Hansen, 95 NY2d 227; People v Keizer, 100 NY2d 114; People v Eaton, 14 AD3d 577; People v Watkins, 304 AD2d 987, 100 NY2d 588; People v Verrone, 266 AD2d 16; People v Ford, 86 NY2d 397; People v Benevento, 91 NY2d 708; People v Baldi, 54 NY2d 137; People v Damiano, 87 NY2d 477.)
   OPINION OF THE COURT

Rosenblatt, J.

Defendant challenges his waiver of indictment and guilty plea to a superior court information (SCI). He claims, in essence, that his waiver was illegal solely because he entered it after the court had dismissed a defective indictment against him covering the same charges without granting the People leave to represent. We disagree.

Police arrested defendant and Evelyn Ramirez for selling heroin to an undercover officer. In a felony complaint, the pair was charged with criminal sale of a controlled substance in or near school grounds and criminal sale of a controlled substance in the third degree in violation of Penal Law § 220.44 (2) and § 220.39 (1). After indictment, defendant and the prosecution negotiated a disposition. Defendant was to plead guilty as a second felony offender to the school grounds count (which would carry the minimum sentence of 4x/2 to 9 years imprisonment) but could withdraw his plea in favor of a misdemeanor and time served if he successfully completed an 18-month residential drug treatment program.

The allocution went as planned until the court realized that while defendant’s name was in the caption, he was not named in the body of the indictment. Although the grand jury voted a true bill against defendant, only Ramirez was named in the two counts, which alleged that she acted “in concert with another.” The court adjourned the case, recognizing defendant’s continued interest in the disposition, possibly by way of SCI.

One week later, the parties appeared before the court. Both sides agreed that the court would dismiss the indictment and, upon identical terms, defendant would plead guilty to an SCI.

In the ensuing colloquy, defendant expressly waived his right to be prosecuted by indictment. The court instructed defendant that “because this indictment that I dismissed did not charge you with any crime, this matter would have to he presented, represented to another grand jury, and the grand jury would have to decide, after hearing evidence over again, that there was a legal basis to charge you, there was legally sufficient evidence and reasonable cause to believe that these crimes had been committed and you committed them” (emphasis supplied).

Defendant said he realized he was giving up his right to have a new grand jury consider the matter. Based on the same conditions as the earlier, aborted plea, he pleaded guilty to the school grounds count of the SCI. The court cautioned defendant that his failure in the drug treatment program would result in 4V2 to 9 years in prison.

Defendant did not complete the program. In sentencing him to the agreed term of imprisonment, the court noted that over the course of almost a year, it had given defendant three chances, but he missed appointments, refused to submit urine samples and eventually did not appear for treatment at a local detox center. Defendant appealed to the Appellate Division, arguing that his waiver was invalid. That Court affirmed. A Judge of this Court granted defendant leave to appeal, and we now affirm.

Defendant contends that his guilty plea to the SCI was an impermissible waiver of indictment where no grand jury action was pending. He concedes that had the trial court granted the People leave to re-present, prosecution by SCI would he permissible.

Criminal Procedure Law § 195.10 (2) (b) provides that with the consent of the prosecutor, a defendant may waive indictment and be prosecuted by SCI in “the appropriate superior court, at any time prior to the filing of an indictment by the grand jury” (emphasis supplied), except in class A felony cases. Defendant argues that his waiver was unlawful because he entered it after an indictment was filed rather than before. In advancing the argument, he relies primarily on People v Boston (75 NY2d 585 [1990]) and People v Casdia (78 NY2d 1024 [1991], affg 163 AD2d 604 [1990]).

In Boston, the defendant pleaded guilty to an SCI while an indictment—covering the same charges—was still pending. Even though the defendant “orchestrate[d] the scenario,” we vacated the plea and nullified the waiver because it contravened CPL 195.10 (2) (b)’s command that the waiver be interposed before indictment (75 NY2d at 589). Similarly, in Casdia, when defendant pleaded guilty to the SCI, part of the indictment was defective but a portion of it was extant when defendant entered his waiver.

Here, no part of the indictment remained. Because the indictment was defective, dismissal was required (see CPL 210.20 [1] [a]), and the court dismissed it entirely, with leave to re-present. In these circumstances, we reject defendant’s claim that prosecution by SCI was impermissible.

It was obvious to everyone—confirmed by the court after it saw the grand jury’s vote—that there was a clerical error by which defendant’s name was omitted and that the case would have to be re-presented to another grand jury. As the Appellate Division correctly noted, the court obviously authorized representation even though it did not formally order it, considering that both sides agreed to dispose of the case by SCI on the agreed terms. No magic words were required.

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

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Graffeo, Read and R.S. Smith concur.

Order affirmed.

       The grand jury minutes themselves play no part in our decision.


author: R.S. Smith, J. (dissenting in part). G.B. Smith, J. (dissenting).

text:
    [823 NE2d 824, 790 NYS2d 418]
    The People of the State of New York, Respondent, v Carlos Prado, Appellant.
    Argued November 18, 2004;
    decided December 16, 2004

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, New York City, for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Diane R. Eisner, Leonard Johlove and Anthea H Bruffee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals his conviction following a bench trial for sexual abuse of his stepdaughter. With respect to the issue of alleged judicial bias that divided the Appellate Division, we agree with the majority that defendant’s claim was unpreserved for appellate review (1 AD3d 533, 534 [2003]). Additionally, defendant’s ineffectiveness of counsel claim—that his attorney failed to preserve an objection as to the lack of evidence corroborating his confession as required by CPL 60.50—is without merit. At the close of the evidence, defense counsel made a general motion to dismiss the counts charged, which the trial court denied. While this objection alone would not have been sufficient to preserve the issue for our review (see e.g. People v Gray, 86 NY2d 10 [1995]), when coupled with the trial judge’s specific findings as to corroboration, the question now on appeal was expressly decided by that court (see CPL 470.05).

R.S. Smith, J. (dissenting in part).

I agree with the majority that defendant’s judicial bias claim was not preserved, and that his claim that his confession was insufficiently corroborated was preserved. Unlike the majority, I conclude from this that we should decide the claim that was preserved: Was the confession sufficiently corroborated?

The majority avoids deciding this issue on the ground that defendant, on appeal, makes the mistaken assumption that he did not preserve the corroboration issue, and therefore his argument on corroboration is subsumed in an argument that trial counsel was ineffective. In other words, defendant argues on appeal that: (1) his confession was not adequately corroborated; and (2) trial counsel was ineffective for failing to preserve the point. Since we hold today that the point was preserved, the second half of defendant’s argument is unnecessary.

That, in my opinion, is not a reason not to address the first half. Though defendant did not consecrate a separate point heading in his brief to arguing that his confession was insufficiently corroborated, he has made the argument, fully and ably, in his brief and orally. The question presented is, as Judge George B. Smith’s dissent demonstrates, a difficult and important one. I do not suggest that I either agree or disagree with my namesake’s views on the merits of the question, but I think we ought to decide it.

G.B. Smith, J. (dissenting).

Because defendant’s attorney was ineffective in failing to raise or argue that corroboration of defendant’s confession was lacking and because the trial court made up its mind that the defendant was guilty prior to the bench trial, defendant was denied a fair trial. Accordingly, I dissent and would grant the defendant a new trial.

Defendant was convicted of course of sexual conduct against a child in the first degree and endangering the welfare of a child. He was sentenced to a determinate prison term of seven years and one year respectively.

The evidence against the defendant consisted of two written confessions and a videotaped confession in which he admitted sexual conduct against the child, his stepdaughter, when she was eight years old. The confessions were introduced through a detective. The child, 11 years old at the time of the trial, denied that the defendant abused her. There was no physical evidence of sexual abuse. The court and the prosecutor repeatedly questioned the child witness about the abuse. The court told the prosecutor to impeach the child’s testimony with her grand jury testimony and the prosecution did so, reading questions and answers from that testimony that indicated sexual abuse. The defense attorney objected to the leading questions permitted by the court, “to the way this proceeding is going on,” stating, “I think the witness is being intimidated,” and to the use of the child’s grand jury testimony. The mother of the child testified that the child had told her of the sexual abuse in 2000, three years after it had begun. At the end of the People’s case, defendant moved to dismiss the indictment on the grounds that the People had failed to make out a prima facie case but did not specify why a prima facie case had not been made out (see People v Gray, 86 NY2d 10, 19 [1995]).

Defendant took the stand and denied that any sexual abuse had occurred. He stated that his statements were coerced by the threatening manner of the police and by his discomfort in a cold room due to air conditioning. No motion to dismiss was made at the end of the entire case.

The problem in this case arose when, at trial, the child denied any sexual abuse had occurred. Thus, some evidence other than her testimony was necessary to comply with CPL 60.50 which states:

“A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed.”

The trial court, recognizing that compliance with CPL 60.50 was necessary, indicated that it did not believe the testimony of the child that nothing happened, that the child had been with the defendant when her mother attended Parent/Teacher Association meetings and that there had been a “timely outcry” to the mother even though the child did not tell her mother about the abuse for three years. The court found the defendant guilty.

The Appellate Division affirmed the conviction with two of the five Justices dissenting. The majority concluded that the defendant had not preserved for appellate review the issue of the prosecution’s failure to corroborate the confessions. It further concluded that the presence of the defendant in the home while the mother attended PTA meetings and her daughter’s “timely outcry” corroborated the confessions. The dissent concluded that the defendant had been denied a fair trial by the trial court’s “inappropriate intervention,” stating, “The record demonstrates that the trial judge had made up his mind as to the defendant’s guilt prior to the nonjury trial. Upon being surprised by the complainant’s trial testimony which did not incriminate the defendant, the trial judge took on the role of the prosecutor.” (1 AD3d at 537.) One of the dissenting Justices granted defendant leave to appeal.

On this appeal defendant argues that defendant was denied due process of law when the trial court assumed a prosecutorial role by questioning the child witness to the point of badgering her and asking the prosecutor to impeach the witness with her grand jury testimony. Defendant also argues that defendant was denied his right to the effective assistance of counsel when the attorney failed to argue that the evidence of corroboration was insufficient to comply with CPL 60.50.

The defense attorney did not raise the corroboration issue and did not argue against the court’s conclusion with respect to corroboration. In failing to do so and to cite CPL 60.50, counsel was ineffective.

CPL 60.50 requires that a confession be corroborated by other evidence indicating that the defendant committed the crime. The trial court found that other evidence in the defendant’s presence in the home while the mother attended PTA meetings and in the “timely outcry” of the child to her mother. Presence alone cannot supply the evidence required by CPL 60.50. Moreover, it cannot be seriously contended that there was a prompt outcry in this case when there was no outcry whatsoever for three years (see People v McDaniel, 81 NY2d 10 [1993]; People v Rice, 75 NY2d 929 [1990]). “One limitation on admissibility of such evidence is that, as its name suggests, the complaint must have been made promptly after the crime” (People v McDaniel, 81 NY2d at 17). Moreover, prompt outcry is used to support the testimony of an alleged victim, not to substitute for the witness’s denial that a crime took place (id.). While the testimony of the child witness before the grand jury might have supplied the missing evidence, that testimony was used only for impeachment purposes and the People did not seek its admission as direct evidence.

In addition to counsel’s failure to raise the issue of corroboration, I agree with the dissenters at the Appellate Division that the court at the beginning of the trial indicated that it had made up its mind that the defendant was guilty. The court stated:

“Let me preface this by saying that obviously if Mr. Prado was innocent, had no involvement in this, then it wouldn’t be just for him to plead guilty but let’s face it its no secret here. We all watched the videotape. I don’t see that happening. So I don’t know Mr. Kimmel, do you want take [sic] a minute to speak with him or do you—.”

Moreover, the court assumed the role of a prosecutor. Thus, it was the court that directed the prosecution to impeach the credibility of the 11-year-old witness by using her grand jury testimony. The prosecution did so and the witness’s statements of sexual abuse, made before the grand jury, became part of the record for impeachment purposes. It was not the appropriate role of the trial court to substitute for or to aid the prosecution. In addition, the prosecution did not argue that the testimony before the grand jury could provide the necessary corroboration pursuant to CPL 60.50.

Accordingly, I would reverse and grant the defendant’s request for a new trial.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo and Read concur; Judge R.S. Smith dissents in part in an opinion; Judge G.B. Smith dissents and votes to reverse and order a new trial in a separate opinion.

Order affirmed in a memorandum.


text:
    Credit Suisse First Boston Corporation, Appellant, v William Pitofsky et al., Respondents.
    Submitted December 6, 2004;
    decided December 16, 2004
   Motion to enlarge the record on appeal denied.


text:
    In the Matter of the Estate of Eshagh Eshaghian, Also Known as E. Ike Eshaghian, Deceased. Mahrokh Eshaghian et al., Respondents. David Eshaghian, Nonparty Appellant.
    Submitted November 1, 2004;
    decided December 16, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Surrogate Court’s order denying renewal, 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:
    Edwin Frederick, Respondent, v Josef Fried, Appellant, et al., Defendant. Edwin Frederick et al., Respondents, v Josef Fried, Appellant.
    Submitted December 6, 2004;
    decided December 16, 2004
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    JMD Holding Corp., Respondent, v Congress Financial Corporation, Appellant, et al., Defendant.
    Submitted December 13, 2004;
    decided December 16, 2004
   Motion by Commercial Finance Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Jeffrey Laing, Appellant, v Samuel Cantor, Doing Business as Law Offices of Samuel Cantor, et al., Respondents.
    Submitted October 25, 2004;
    decided December 16, 2004
   Motion, insofar as it seeks leave to appeal against Samuel Cantor, doing business as Law Offices of Samuel Cantor, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Leonard J. Levenson et al., Respondents, v Jonathan Lippman, as Chief Administrator of the Courts, et al., Appellants.
    Submitted November 29, 2004;
    decided December 16, 2004
   Motion by Association of Justices of the Supreme Court of the State of New York et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    In the Matter of Metro Enviro Transfer, LLC, Appellant, v Village of Croton-On-Hudson et al., Respondents.
    Submitted July 29, 2004;
    decided December 16, 2004
   Motion for leave to appeal granted. Motion for a stay granted.


text:
    New York Telephone Company, Respondent, v Supervisor of Town of Oyster Bay et al., Appellants, et al., Defendants. (And a Third-Party Action.) (Action No. 1.) New York Telephone Company, Respondent, v Supervisor of Town of Oyster Bay et al., Appellants, et al., Defendants. (And a Third-Party Action.) (Action No. 2.)
    Submitted December 6, 2004;
    decided December 16, 2004
   Motion by Association of Towns of the State of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Carlos Caban, Appellant.
    Submitted December 6, 2004;
    decided December 16, 2004
   Motion, treated as one for assignment of counsel, granted only to the extent that Robert J. Boyle, Esq., 350 Broadway, Suite 308, New York, NY 10013 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment, subject to the limitations contained in section 500.10 (c) of the Rules of the Court of Appeals (22 NYCRR 500.10 [c]).


text:
    The People of the State of New York, Respondent, v Michael Johnson, Appellant.
    Submitted December 6, 2004;
    decided December 16, 2004
   Motion for assignment of counsel granted and Laura Johnson, Esq., 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 Thomas Kelly, Appellant.
    Submitted November 29, 2004;
    decided December 16, 2004
   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 Raul Lopez, Appellant.
    Submitted November 29, 2004;
    decided December 16, 2004
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Katherine M. Seeber, Appellant.
    Submitted November 29, 2004;
    decided December 16, 2004
   Motion for assignment of counsel granted and Eugene E Grimmick, Esq., 52 Second Street, Troy, New York 12180 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v. Norris Williams, Respondent.
    Submitted November 29, 2004;
    decided December 16, 2004
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Flace, 11th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    In the Matter of Michael T. Sarro, Appellant, v Mary H. Smith, Respondent.
    Submitted November 1, 2004;
    decided December 16, 2004
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela, et al., Respondents.
    Submitted December 13, 2004;
    decided December 16, 2004
   Motion by Gregory V Serio, Superintendent of Insurance of the State of New York, for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    U.S. Underwriters Insurance Company, Respondent-Appellant, v City Club Hotel, LLC, et al., Appellants-Respondents, et al., Respondents.
    Submitted December 13, 2004;
    decided December 16, 2004
   Motion by United Policyholders for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    [823 NE2d 834, 790 NYS2d 428]
    The People of the State of New York, Respondent, v Nicholas Marquez, Appellant.
    Decided December 21, 2004

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City ('William A. Loeb and Robert S. Dean of counsel), for appellant.

      Robert Morgenthau, District Attorney, New York City (Heather Pearson of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further consideration in light of People v Parris (4 NY3d 41 [decided today]).

We hold in Parris that, where a significant portion of minutes of proceedings has been lost, a defendant appealing a conviction after trial is normally entitled to a reconstruction hearing if he has acted with reasonable diligence to mitigate the harm resulting from the mishap. In Parris, the record permitted us to conclude as a matter of law that the defendant had not acted with reasonable diligence. The record in this case, however, does not permit us to rule on that question. On remittal, the Appellate Division should decide (or, if it thinks better, should instruct Supreme Court to decide), after giving the parties an opportunity to make appropriate submissions, whether defendant acted with reasonable diligence, as Parris requires. If he did, a reconstruction hearing should be ordered, and if he did not his conviction should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.


text:
    In the Matter of Samuel J. Abate, Jr., et al., Respondents, v City of Yonkers et al., Respondents, and Town of Greenburgh, Appellant. (Proceeding No. 1.) In the Matter of Town of Greenburgh, Appellant, v City Council of the City of Yonkers et al., Respondents, and Village of Ardsley, Intervenor-Respondent. (Proceeding No. 2.)
    Submitted November 1, 2004;
    decided December 21, 2004
   Motion, insofar as it seeks leave to appeal in Proceeding No. 1, dismissed upon the ground that it does not lie from the Appellate Division order dismissing the appeal to that Court from the determination entered on default (see CPLR 5511); motion, insofar as it seeks leave to appeal in Proceeding No. 2, denied.


text:
    Cheryl Andrea et al., Appellants, v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C. (Habiterra Associates), et al., Respondents, et al., Defendants. (Action No. 1.) Mark Foster et al., Appellants, v Jamestown Public Schools et al., Defendants, and Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C. (Habiterra Associates), et al., Respondents. (Action No. 2.)
    Submitted November 8, 2004;
    decided December 21, 2004
   Motion for leave to appeal, insofar as made by Timothy Moran, denied; motion for leave to appeal otherwise granted.


text:
    Steven Boulukos et al., Plaintiffs, v 213 P.A.S., L.L.P., Defendant. (And a Third-Party Action.) 213 P.A.S., L.L.P, Second Third-Party Plaintiff-Respondent, v City Scaffolding Corp., Second Third-Party Defendant-Appellant.
    Submitted November 1, 2004;
    decided December 21, 2004
   Motion, insofar as it seeks leave to appeal from the Appellate Division order, dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the subsequently entered Supreme Court judgment, dismissed upon the ground that simultaneous appeals do not lie to the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    Jane Hom, Respondent, v George Hom, Appellant.
    Submitted December 13, 2004;
    decided December 21, 2004
   Appeal, insofar as taken from the October 15, 2002 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie, appellant having previously taken an appeal to the Court of Appeals (99 NY2d 569) from the same Appellate Division order from which his appeal is currently taken; appeal, insofar as taken from that portion of the December 8, 2003 Appellate Division order that affirmed the imposition of sanctions, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved; appeal, insofar as taken from the remainder of the December 8, 2003 Appellate Division order, otherwise dismissed, without costs, by the Court of Appeals, suá sponte, upon the ground that the remaining portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Benjamin Hunter, Appellant.
    Submitted November 29, 2004;
    decided December 21, 2004
   Motion for assignment of counsel granted and J. Scott Porter, Esq., 78 Cayuga Street, Seneca Falls, New York 13148-1229 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Murray H. Shulman, Appellant, v Thomas J. Cahill, Respondent.
    Submitted November 15, 2004;
    decided December 21, 2004
   Motion for leave to appeal denied. Motion to enlarge the record on appeal denied. Motion for poor person relief dismissed as academic.


text:
    Shawn Stocklas, Appellant, v Auto Solutions of Glenville, Inc., et al., Respondents. (And Another Related Action.)
    Submitted November 15, 2004;
    decided December 21, 2004
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s motion to renew or reargue, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Jack Vigliotti, Appellant, v John Burge, as Superintendent of Auburn Correctional Facility, et al., Respondents.
    Submitted November 8, 2004;
    decided December 21, 2004
   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 pbor person relief dismissed as academic.


text:
    In the Matter of the Claim of Corine D. Wallace, Appellant, v YWCA of Chemung County et al., Respondents. Workers’ Compensation Board, Respondent. (And Another Related Claim.)
    Submitted November 15, 2004;
    decided December 21, 2004
   Motion, insofar as it seeks leave to appeal as against the YWCA of Chemung County and CNA Insurance Company, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of reconsideration, 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:
    Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted December 20, 2004;
    decided January 6, 2005
   Motion by New York Insurance Association, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    Washington Davis, Appellant, v City of New York, Respondent.
    Submitted November 29, 2004;
    decided January 6, 2005
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal to that Court from Supreme Court’s order denying the motion for renewal and reargument, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    Anne Indemini, Appellant, v Beth Israel Medical Center, Respondent.
    Submitted December 20, 2004;
    decided January 6, 2005
   Motion by Healthcare Association of New York State for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge R.S. Smith taking no part.


text:
    Leonard J. Levenson et al., Respondents, v Jonathan Lippman, as Chief Administrator of the Courts, et al., Appellants.
    Submitted December 27, 2004;
    decided January 6, 2005
   Motion by New York State Defenders Association et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    New York Civil Liberties Union et al., Appellants, v State of New York et al., Respondents.
    Submitted December 27, 2004;
    decided January 6, 2005
   Motion by Alliance for Quality 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:
    The People of the State of New York, Respondent, v Lewis Hill, Appellant.
    Submitted December 27, 2004;
    decided January 6, 2005
   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 Shamel Wilson, Appellant.
    Submitted December 27, 2004;
    decided January 6, 2005
   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:
    Cynthia A. Rekemeyer, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent.
    Submitted December 20, 2004;
    decided January 6, 2005
   Motion by New York Insurance Association, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    In the Matter of Debra A. Sanford, Formerly Known as Debra A. Bennett, Respondent, v James D. Bennett et al., Appellants.
    Submitted December 6, 2004;
    decided January 6, 2005
   Motion to substitute Arlene Bennett, as executrix of the estate of James D. Bennett, as a party respondent herein for respondent James D. Bennett granted.


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Submitted December 20, 2004;
    decided January 6, 2005
   Motion by Allstate Insurance Company et al. for leave to appear amici curiae on consideration of the certified question herein granted and the proposed brief and appendix are accepted as filed.


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Submitted January 3, 2005;
    decided January 6, 2005
   Motion by New York Insurance Association, Inc. for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    Edward VanGuilder, Appellant, v State of New York, Respondent.
    Submitted December 20, 2004;
    decided January 6, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    Parviz Robert Mohassel, Respondent, v Lila Fenwick, Appellant.
    Submitted December 27, 2004;
    decided January 11, 2005
   Motion to strike appellant’s brief denied.


text:
    The People of the State of New York ex rel. John A.J. Hinspeter, Appellant, v Daniel A. Senkowski, as Superintendent of Clinton Correctional Facility, Respondent.
    Submitted November 22, 2004;
    decided January 11, 2005
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Marco Srour, Appellant, v Dwelling Quest Corp., Respondent.
    Submitted January 3, 2005;
    decided January 11, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the appeal taken as of right to the Court of Appeals pursuant to CPLR 5601 (a) does not lie in this action originating in Civil Court.


text:
    In the Matter of Blossom View Nursing Home, Appellant, v Antonia C. Novello, M.D., as Commissioner of Health of State of New York, et al., Respondents.
    Submitted January 3, 2005;
    decided January 13, 2005
   Motion by Concourse Rehabilitation & Nursing Center, Inc. et al. for leave to appear amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Joseph Dalton et al., Appellants-Respondents, v George Patari, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 1.) Lee Karr, Appellant-Respondent, v George Pataki, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 2.)
    Submitted December 20, 2004;
    decided January 13, 2005
   Motion by Standardbred Owners Association, Inc. et al. for leave to appear amici curiae on the appeals herein granted to the extent that the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    Joseph Dalton et al., Appellants-Respondents, v George Pataki, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 1.) Lee Karr, Appellant-Respondent, v George Pataki, as Governor of the State of New York, et al., Respondents-Appellants, et al., Respondents. (Action No. 2.)
    Submitted December 27, 2004;
    decided January 13, 2005
   Motion by New York Thoroughbred Horsemen’s Association, Inc. for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Twenty copies of the brief may be filed and three copies served within 10 days.


text:
    EBC I, Inc., Formerly Known as eToys Inc., Respondent, v Goldman, Sachs & Co., Appellant.
    Submitted January 10, 2005;
    decided January 13, 2005
   Motion by Securities Industry Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Nineteen additional copies of the brief may be filed and two additional copies served within 10 days.


text:
    In the Matter of Eddie J., a Child Alleged to be Neglected. Commissioner of the Administration for Children’s Services of the City of New York et al., Respondents; Conchita J., Appellant. (Proceeding No. 1.) In the Matter of Portia J., a Child Alleged to be Neglected. Commissioner of the Administration for Children’s Services of the City of New York et al., Respondents; Conchita J., Appellant. (Proceeding No. 2.)
    Submitted November 29, 2004;
    decided January 13, 2005
   Motion, insofar as it seeks leave to appeal from the October 2004 Appellate Division order, dismissed upon the ground that such order does not finally determine that proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Paul C. Maggio, Doing Business as Patchogue Nursing Center, Respondent, v Barbara A. DeBuono et al., Respondents.
    Submitted November 1, 2004;
    decided January 13, 2005
   Motion to dismiss appeal denied.


text:
    In the Matter of Town of Riverhead, Appellant, et al., Petitioner, v New York State Board of Real Property Services et al., Respondents.
    Submitted December 13, 2004;
    decided January 13, 2005
   Motion by Sheldon Feiner et al. for leave to file a brief amici curiae on the appeal herein granted. Twenty copies of a brief may be filed and three copies served within 10 days.


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Submitted January 10, 2005;
    decided January 13, 2005
   Motion by Meridian Acupuncture Care for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    Richard J. Timoney, Appellant, v Newmark & Company Real Estate, Inc., Respondent.
    Submitted December 6, 2004;
    decided January 13, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied the motion to enlarge the record on appeal, 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:
    [827 NE2d 280, 794 NYS2d 297]
    In the Matter of C. Ernest Brownell.
    Decided January 18, 2005
   OPINION OF THE COURT

On the Court’s own motion, it is determined that Honorable C. Ernest Brownell is suspended with pay, effective immediately, from his office of Justice of the Junius Town Court, Seneca County, pending disposition of his request for review of a determination by the State Commission on Judicial Conduct.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ceparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    Bates Advertising USA, Inc., Respondent, v 498 Seventh, LLC, Appellant.
    Submitted December 13, 2004;
    decided January 18, 2005
   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 Burke v Crosson, 85 NY2d 10, 18 n 5).


text:
    In the Matter of Derek A. Deal, Appellant, v Eduardo Nieves, as Superintendent of Fulton Correctional Facility, Respondent.
    Submitted January 10, 2005;
    decided January 18, 2005
   Appeal, insofar as taken from that portion of the Appellate Division order that dismissed the appeal from the Supreme Court order denying reargument and renewal, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Lisa DuBose, Respondent, v Anton & Partners, Appellant.
    Submitted January 3, 2005;
    decided January 18, 2005
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeál from the nonfinal order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for a stay dismissed as academic.


text:
    In the Matter of Leo A. Marino, Appellant, v New York City Department of Correction, Records Access Officer, Respondent.
    Submitted November 23, 2004;
    decided January 18, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied. Motion for poor person relief dismissed as academic.


text:
    Prana Partners, Appellant, v Brittbran Realty, Inc., Respondent.
    Submitted December 13, 2004;
    decided January 18, 2005
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Rueben Doulphus R., Jr., a Child Alleged to be Permanently Neglected. Rueben R., Appellant; Catholic Home Bureau for Dependent Children, Respondent.
    Submitted December 27, 2004;
    decided January 18, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed Family Court’s denial of the motion to vacate, 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.

Chief Judge Kaye taking no part.


text:
    In the Matter of Rosemarie Panio, as Chairperson of the Westchester County Republican Committee, RespondentAppellant, v Carolee Sunderland et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents, Nicholas Spano, Respondent-Appellant, and Andrea Stewart-Cousins, Appellant-Respondent. (And Another Proceeding.)
    Submitted January 31, 2005;
    decided February 2, 2005
   Motion by Douglas A. Keliner, Weyman A. Carey, Terrence C. O'Connor, Nero Graham, Jr. and Mark B. Herman for leave to file a brief amici curiae on the appeal herein denied.


text:
    In the Matter of Rosemarie Panic, as Chairperson of the Westchester County Republican Committee, Respondent-Appellant, v Carolee Sunderland et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents, Nicholas Spano, Respondent-Appellant, and Andrea Stewart-Cousins, Appellant-Respondent. (And Another Proceeding.)
    Submitted February 7, 2005;
    decided February 7, 2005
   Motion by New York Republican State Committee for leave to appear amicus curiae herein denied.


text:
    [825 NE2d 584, 792 NYS2d 369]
    Helen Reed et al., Respondents, v Gowanda Nursing Home et al., Defendants, and U-Haul International, Inc., et al., Appellants.
    Argued January 6, 2005;
    decided February 10, 2005
    APPEARANCES OF COUNSEL

      Brown & Tarantino, LLP, Buffalo (Margaret K. Hey of counsel), for appellants.

      Brady & Swenson, Salamanca (Thomas C. Brady 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.

Business Corporation Law § 307 (c) (2) requires a party who has served papers by mail on an out-of-state defendant to file proof of service within 30 days after “receipt of the return receipt signed by the foreign corporation, or other official proof of delivery or of the original envelope mailed.” We are asked to decide whether an affidavit of compliance annexing a copy of the papers served—date and time stamped “Received” by out-of-state defendant U-Haul International, Inc.—is sufficient under the statute. In this case, there can be no doubt that plaintiff provided proof that defendant received the mailing shortly after it was sent by registered mail, return receipt requested, and that plaintiffs received no return receipt. Under the particular circumstances presented here, we agree with the motion court and Appellate Division that the complaint should not be dismissed for want of proper service on defendant U-Haul.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

Order affirmed, etc.


text:
    The Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted January 18, 2005;
    decided February 10, 2005
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    The Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted January 18, 2005;
    decided February 10, 2005
   Motion by KeySpan Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    The Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted January 31, 2005;
    decided February 10, 2005
   Motion by Athari Law Office for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    The Argo Corporation et al., Appellants, v Greater New York Mutual Insurance Company, Respondent.
    Submitted January 31, 2005;
    decided February 10, 2005
   Motion by Crucible Materials Corporation et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    In the Matter of Blossom View Nursing Home, Appellant, v Antonia C. Novello, M.D., as Commissioner of Health of State of New York, et al., Respondents.
    Submitted January 18, 2005;
    decided February 10, 2005
   Motion by New York State Health Facilities Association, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Capitol Records, Inc., Appellant, v Naxos of America, Inc., Respondent.
    Submitted January 31, 2005;
    decided February 10, 2005
   Motion by Recording Industry Association of America for leave to file a brief amicus curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Francis G. D’Ambrosio, Appellant, v Department of Health of the State of New York et al., Respondents.
    Submitted March 1, 2004;
    decided February 10, 2005
   On the Court’s own motion, appeal taken as of right dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    In the Matter of Otis P. Jenkins, Respondent-Appellant, v Judy A. Jenkins, Appellant-Respondent, and Pamela Walton, Respondent. (And Three Other Related Proceedings.)
    Submitted February 7, 2005;
    decided February 10, 2005
   Motion for assignment of counsel granted and Charles J. Keegan, Esq., PO. Box 3128, Albany, New York 12203 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Felix Gomez, Appellant.
    Submitted February 7, 2005;
    decided February 10, 2005
   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 Trevor Green, Appellant.
    Submitted January 24, 2005;
    decided February 10, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Richard Miller, Appellant.
    Submitted February 7, 2005;
    decided February 10, 2005
   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 Robbins, Appellant.
    Submitted January 24, 2005;
    decided February 10, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., 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 Oliver Giola West, Jr., Appellant.
    Submitted January 24, 2005;
    decided February 10, 2005
   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:
    Cynthia A. Rekemeyer, Appellant, v State Farm Mutual Automobile Insurance Company, Respondent.
    Submitted February 7, 2005;
    decided February 10, 2005
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Kaye taking no part.


text:
    Jo’Ell Sheppard-Mobley et al., Respondents, v Leslie King et al., Appellants.
    Submitted December 20, 2004;
    decided February 10, 2005
   Motion by University Associates in Obstetrics and Gynecology, PC. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    State Farm Mutual Automobile Insurance Co., Appellant, v Robert Mallela et al., Respondents.
    Submitted January 24, 2005;
    decided February 10, 2005
   Motion by Allstate Insurance Company et al. for leave to participate in oral argument as amici curiae on consideration of the certified question herein denied.


text:
    In the Matter of Lori Bon, Appellant, v Howard Safir et al., Respondents.
    Submitted December 27, 2004;
    decided February 15, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Interweb, Inc., Appellant, v iPayment, Inc., Respondent.
    Submitted January 10, 2005;
    decided February 15, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    K., Appellant, v B., Respondent.
    Submitted January 18, 2005;
    decided February 15, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York ex rel. Melvin C. Lewis, Appellant, v John Burge, as Superintendent of Auburn Correctional Facility, et al., Respondents.
    Submitted January 3, 2005;
    decided February 15, 2005
   Motion for leave to appeal dismissed upon the ground that this motion for leave to appeal does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Howard Porter, Appellant, v Annette Porter, Respondent.
    Submitted December 27, 2004;
    decided February 15, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    Tomaz Mendes Regatos, Respondent, v North Fork Bank et al., Appellants, et al., Defendant.
    Submitted January 24, 2005;
    decided February 15, 2005
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    David L. Thornton et al., Respondents-Appellants, v Shlomo Baron et al., Defendants, and 390 West End Associates, L.L.C., Appellant-Respondent.
    Submitted January 24, 2005;
    decided February 15, 2005
   Motion to strike material from appellant-respondent’s brief denied.


text:
    In the Matter of Troy Treyshawn J.F., a Child Alleged to be Abandoned. Episcopal Social Services, Respondent; Carl D., Appellant.
    Submitted December 20, 2004;
    decided February 15, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from the Family Court order denying appellant’s motion to vacate a prior order of that court, 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.