text:
    Donald J. Jones et al., Appellants, v Town of Carroll et al., Respondents.
    Submitted May 4, 2009;
    decided June 11, 2009
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order does not finally determine the action within the meaning of the Constitution, and the so ordered stipulation does not qualify as a final judgment within the meaning of CPLR 5602 (a) (1) (ii) to bring up for review the prior nonfinal Appellate Division order because it was entered into without prejudice.

Judge Pigott taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    Linda Marso, Appellant, v Henry Novak, M.D., et al., Respondents.
    Submitted May 18, 2009;
    decided June 11, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 704 (2009)].


text:
    Mid-Valley Oil Company, Inc., Appellant, and Westport Insurance Corporation, as Subrogee of Mid-Valley Oil Company, Inc., Intervenor-Plaintiff, v Hughes Network Systems, Inc., Defendant and Third-Party Plaintiff-Respondent. North Star Video, Inc., Third-Party Defendant-Respondent.
    Submitted March 30, 2009;
    decided June 11, 2009
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order denying a motion for leave to amend the complaint, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Maurice Oparaji, Appellant, v The New York Mortgage Company, LLC, Respondent.
    Submitted April 6, 2009;
    decided June 11, 2009
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev]).

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Avery Pettigrew, Appellant.
    Submitted April 20, 2009;
    decided June 11, 2009
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    The People of the State of New York ex rel. John Trisvan, Appellant, v Harold Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted May 18, 2009;
    decided June 11, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 705 (2009)].


text:
    In the Matter of Margaret M. Potter et al., Appellants, et al., Petitioner, v Town Board of Town of Aurora et al., Respondents. (Appeal No. 1.) In the Matter of Margaret M. Potter et al., Appellants, v Town Board of Town of Aurora et al., Respondents. (Appeal No. 2.)
    Decided June 11, 2009
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Mitchel D. Ramos, Respondent, v Alicia Court Enterprises, Inc., et al., Defendants. County of Westchester, Nonparty Appellant.
    Submitted April 13, 2009;
    decided June 11, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    State Farm Mutual Automobile Insurance Company, Appellant, v John Robert Langan, as Administrator of the Estate of Neil Conrad Spicehandler, Deceased, Respondent.
    Decided June 11, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Sharon Wechsler, Appellant, v Norman Wechsler, Respondent.
    Decided June 11, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division does not have the power to grant leave to appeal to the Court of Appeals on a certified question from an order granting a new trial or hearing (see CPLR 5601 [c]; 5602 [b] [1]; Maynard v Greenberg, 82 NY2d 913 [1994]).

Chief Judge Lippman taking no part.


text:
    [913 NE2d 409, 885 NYS2d 23]
    In the Matter of Manuel Gomez, Respondent, v Raymond W. Kelly, as Police Commissioner of the State of New York, et al., Appellants.
    Decided June 24, 2009

      APPEARANCES OF COUNSEL

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

      Worth, Longworth & London, LLP, New York City (Howard B. Sterinbach of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, and petition dismissed in its entirety. We cannot say that “the penalty . . . imposed by the Commissioner shocks the judicial conscience” (Matter of Kelly v Safir, 96 NY2d 32, 40 [2001]).

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


text:
    [912 NE2d 551, 884 NYS2d 335]
    In the Matter of Port Authority Police Benevolent Association, Inc., et al., Appellants, v Laura L. Anglin, as Deputy Comptroller of the State of New York, et al., Respondents.
    Argued June 2, 2009;
    decided June 24, 2009
    APPEARANCES OF COUNSEL

      Tuttle Law Firm, Latham (James B. Tuttle of counsel), for appellants.

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

Memorandum.

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

For a period of time after the events of September 11, 2001, petitioner, a member of the Port Authority Police Department of New York and New Jersey, was required to work 12-hour shifts and all vacation, regular days off, personal days, and compensatory time off were cancelled. Pursuant to the collective bargaining agreement, petitioner was paid time-and-a-half for all overtime hours and for all paid vacation days worked. Petitioner retired in 2003 and respondent New York State and Local Police and Fire Retirement System excluded from his final average salary a part of the payments made for working scheduled vacation days.

Petitioner filed the instant CPLR article 78 proceeding and upon transfer from Supreme Court, the Appellate Division confirmed the determination of the Deputy Comptroller and dismissed the petition. The majority below found respondent’s determinations to be rational as the excluded payments constituted payments for loss of time off from work rather than for “work in excess of [the employees’] regularly established hours of employment” (54 AD3d 495, 497 [2008]). The dissent below perceived no difference between payment for overtime work and that for working on paid vacation days (id. at 498 [Kavanagh, J., dissenting]).

The instant dispute is over the exclusion, in appellant’s final average salary for the purpose of calculating retirement benefits under Retirement and Social Security Law §§ 302 and 431 and General Municipal Law § 90, of time-and-a-half payments arising from the first eight hours of work performed on a day that would have otherwise been a paid vacation day for appellant. General Municipal Law § 90 states that overtime compensation may be paid to public employees “for all time such [employees] are required to work in excess of their regularly established hours of employment” (emphasis added) and “[t]he amounts received as overtime compensation . . . shall be regarded as salary . . . for any of the purposes of any pension or retirement system.” However, the Retirement and Social Security Law specifically excludes from the computation of retirement benefits “lump sum payments for deferred compensation, sick leave, accumulated vacation or other credit for time not worked” (Retirement and Social Security Law § 431 [1]), “or any form of termination pay” (Retirement and Social Security Law § 302 [9] [d]).

Normally on a paid vacation day, petitioner receives eight hours of straight pay, included as a part of his salary, notwithstanding that petitioner does not have to work his regularly scheduled eight hours for that day. In addition to the above mentioned straight pay, when petitioner was required to work on a paid vacation day, he received time-and-a-half pay for the first eight hours and the same rate for any overtime. Respondent’s exclusion of the first eight hours and inclusion of the last four hours of time-and-a-half pay are consistent with the plain language of General Municipal Law § 90 as the first eight hours of work on a paid vacation day do not constitute “work in excess of . . . regularly established hours of employment.” Therefore, respondent correctly distinguished the disputed payments from those payments which were included in petitioner’s final average salary (i.e., payments for working regular days off, four extra hours on scheduled work days, and four extra hours on vacation days worked) as the latter payments were for work outside of petitioner’s regularly scheduled hours of employment while the former payments were for work within those hours (see General Municipal Law § 90).

Matter of Hohensee v Regan (138 AD2d 812 [3d Dept 1988]) and Matter of Hoffman v New York State Policemen’s & Firemen’s Retirement Sys. (142 AD2d 854 [3d Dept 1988]) are consistent with the result in this case. Periodic and lump-sum payments for working normal hours on vacation days were excluded from computation of retirement benefits in Hohensee and Hoffman because petitioners in those cases made a voluntary election to forgo vacation and work instead. In our view, petitioners Hohensee and Hoffman’s excluded payments could not be considered includable “overtime” not only because working on vacation days was not “required” (i.e., mandatory) but also because the actual hours worked were within “regularly established hours of employment” rather than “in excess” of such hours (see General Municipal Law § 90).

In all these cases, inclusion of additional payments for working vacation days, whether compulsory or not, would amount to crediting the hours in a paid vacation day twice: once, because the eight hours of straight time as a part of the regular salary is already included in final average salary for pension purposes, and again, because any additional payments for working those same hours would also be included. We, therefore, conclude that respondent’s exclusion of the disputed payments avoids this anomalous result and is consistent with the Retirement and Social Security Law and General Municipal Law.

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

Judgment affirmed, with costs, in a memorandum.

       Under section 374 (b) of the Retirement and Social Security Law, “[t]he comptroller shall have exclusive authority to determine all applications for any form of retirement or benefit provided for in [the Policemen’s and Firemen’s Retirement System],” of which it is undisputed that the Port Authority police officers are a part.


text:
    In the Matter of Suzanne Avery et al., Appellants, v Sandra A. Aery, as Assessor of the Town of Harrietstown, et al., Respondents, et al., Respondents.
    Submitted April 27, 2009;
    decided June 24, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Claudia Childs, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted May 4, 2009;
    decided June 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Shawn Green, Appellant, v Keith Dubray, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted May 11, 2009;
    decided June 24, 2009
   Motion for reargument denied [see 12 NY3d 703 (2009)].


text:
    In the Matter of Carl A. Gutzmer, Appellant, v Myriam L. Santini, Respondent.
    Submitted April 6, 2009;
    decided June 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    IDT Corporation, Respondent, v Morgan Stanley Dean Witter & Co. et al., Appellants.
    Submitted May 11, 2009;
    decided June 24, 2009
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 12 NY3d 132 (2009)].

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, Respondent, v Avery V. Baker Jr., Appellant.
    Submitted June 8, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Mitchell S. Kessler, Esq., 63 Pike Creek Drive, Cohoes, New York 12047 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Eric D. Carr, Appellant.
    Submitted June 15, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Covington, Appellant.
    Submitted June 22, 2009;
    decided June 24, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Vincent Fiammegta, Appellant.
    Submitted June 8, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Peter J. Maliszewski, Appellant.
    Submitted June 22, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Mary Davison, Esq. care of Davison Law Office, PO Box 652, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Robert Mothersell, Appellant.
    Submitted June 22, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Gerald T. Barth, Esq., Frank H. Hiscock Legal Aid Society, 351 South Warren Street, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Steve Rosado, Appellant.
    Submitted June 15, 2009;
    decided June 24, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Derrick Tigner, Appellant.
    Submitted June 15, 2009;
    decided June 24, 2009
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Jose Tolentino, Appellant.
    Submitted June 15, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Patrick Zephrin, Respondent.
    Submitted June 8, 2009;
    decided June 24, 2009
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York ex rel. Walter J. Roache, Appellant, v S.A. Connell, as Superintendent of Oneida Correctional Facility, Respondent.
    Submitted May 11, 2009;
    decided June 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Victor J. Runner, Respondent, v New York Stock Exchange, Inc., et al., Appellants.
    Decided June 24, 2009
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument [see 568 F3d 383 (2009)].

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


text:
    Tyrone Worrell, Appellant, v Parkway Estates, LLC, Defendant, and 1299 Eastern, LLC, Respondent.
    Submitted May 4, 2009;
    decided June 24, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [913 NE2d 936, 885 NYS2d 244]
    The People of the State of New York, Respondent, v James McGrantham, Appellant.
    Decided June 25, 2009

      APPEARANCES OF COUNSEL

      Frankie & Gentile, P.C., Mineóla (Joseph A. Gentile of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Rhea A. Grob of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by dismissing the count of the indictment charging defendant with criminally negligent homicide; and, as so modified, affirmed.

There was evidence before the grand jury that, in the early morning hours of March 29, 2006, defendant was driving eastbound on Cropsey Avenue in Brooklyn and intended to enter the westbound lanes of the Belt Parkway. Defendant, who was sober and had not been speeding, missed the entrance ramp and mistakenly drove onto the exit ramp for westbound traffic. Attempting to correct his mistake, defendant slowly made a U-turn across the three westbound lanes of traffic. He had almost completed the turn when a westbound motorcycle struck his driver’s side door. The 20-year-old operator of the motorcycle was killed.

Viewing the evidence in the light most favorable to the People, defendant’s motion seeking to dismiss the count of the indictment charging him with criminally negligent homicide must be granted. Defendant’s decision to make a U-turn across three lanes of traffic to extricate himself from a precarious situation was not wise, but it does not rise to the level of moral blameworthiness required to sustain a charge of criminally negligent homicide (see People v Cabrera, 10 NY3d 370, 378 [2008]). The evidence was sufficient, however, to support the charge that defendant engaged in reckless driving by driving his vehicle “in a manner which unreasonably interfere [d] with the free and proper use of the public highway, or unreasonably endangere[d] users of the public highway” (Vehicle and Traffic Law § 1212).

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

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


text:
    [912 NE2d 1056, 884 NYS2d 677]
    Bernadette Gotay, Respondent, v David Breitbart et al., Defendants, and Michael Handwerker et al., Appellants.
    Decided June 25, 2009

      APPEARANCES OF COUNSEL

      Furman Kornfeld & Brennan LLP, New York City (A. Michael Furman of counsel), for Michael Handwerker, appellant.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Patrick J. Lawless and Richard E. Lerner of counsel), for Handwerker Honschke and Marchelos and others, appellants.

      Gerald J. Mondora, Rye Brook, for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, motions for summary judgment by defendants-appellants granted and certified question answered in the negative. Plaintiffs legal malpractice claim was not brought within the applicable statute of limitations period, and defendants-appellants established as a matter of law that the continuous representation doctrine does not apply.

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


text:
    Aames Funding Corporation, Respondent, v Leonard W. Houston, Appellant, et al., Defendants.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Francis M. Alessandro, a Judge of the New York City Civil Court, Bronx County, Petitioner. State Commission on Judicial Conduct, Respondent.
    Submitted June 15, 2009;
    decided June 25, 2009
   Motion to enlarge the record denied.

Chief Judge Lippman taking no part.


text:
    Barbara A. Bielli, Respondent, v Girard Bielli, Appellant.
    Submitted May 11, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Winford Kent Bishop, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted May 26, 2009;
    decided June 25, 2009
   Motion for reconsideration of this Court’s April 7, 2009 dismissal order denied [see 12 NY3d 801 (2009)].

Chief Judge Lippman taking no part.


text:
    Joseph Casavecchia, Sr., Respondent, v William W. Mizrahi et al., Appellants.
    Submitted April 13, 2009;
    decided June 25, 2009
   Motion, insofar as Hills of Heartland, LLC and Casa Mason Corp. seek leave to appeal from the Appellate Division order that affirmed Supreme Court’s order holding defendant William W. Mizrahi in contempt, dismissed upon the ground that said appellants are not aggrieved by such order; motion, insofar as William W. Mizrahi seeks leave to appeal from the Appellate Division order that affirmed Supreme Court’s order holding him in contempt, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 702 (2009)].

Chief Judge Lippman taking no part.


text:
    Yoko Hense, Respondent, v Michael A. Hense, Appellant.
    Decided June 25, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Javone C., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted May 11, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Kahlil S., an Infant. Erie County Department of Social Services, Appellant; Mamie W.-K., Respondent. In the Matter of Terrell Z., Jr., an Infant. Erie County Department of Social Services, Appellant; Mamie W.-K., Respondent.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for leave to appeal, insofar as it relates to Kahlil S., dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511); motion for leave to appeal, insofar as it relates to Terrell Z., Jr., dismissed upon the ground that the issues presented have become moot. Motion for a stay dismissed as academic.


text:
    In the Matter of Kole HH. and Another, Children Alleged to be Neglected. Broome County Department of Social Services, Respondent; Thomas HH., Appellant, et al., Respondent.
    Submitted May 11, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Pamela B. Lee, Respondent, v Kenneth Lee, Appellant.
    Submitted May 4, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Alexis Llorente, Plaintiff, and Carmen Lee, Appellant, v City of New York et al., Respondents, et al., Defendants.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Salvador Diaz, Appellant.
    Decided June 25, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Major Harden, Appellant.
    Submitted May 11, 2009;
    decided June 25, 2009
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that denied the motion to strike portions of the People’s Appellate Division brief, 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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Benjamin Perez, Respondent, v Grissel Sepulveda, Appellant.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Steven B. Samuel, Esq., et al., Respondents-Appellants, v Druckman & Sinel, LLP et al., Appellants-Respondents.
    Submitted May 4, 2009;
    decided June 25, 2009
   Motion to resettle, amend and clarify the opinion and remittitur or, in the alternative, for reargument denied [see 12 NY3d 205 (2009)].

Chief Judge Lippman taking no part.


text:
    Dale R. San Marco et al., Appellants, v Village/Town of Mount Kisco, Respondent.
    Submitted June 8, 2009;
    decided June 25, 2009
   Motion to vacate this Court’s May 20, 2009 dismissal order granted [see 12 NY3d 850 (2009)].


text:
    Jasvir Singh, Appellant, v Abdu Mohamed et al., Respondents.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed so much of the November 2007 Supreme Court order as denied appellant’s motion for renewal, dismissed upon the ground that such part 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 Anselmo Soto, Jr., Appellant, v Brian Fischer, Respondent.
    Decided June 25, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Vista Properties, LLC, Respondent, v Rockland Ear, Nose & Throat Associates, P.C., Appellant, et al., Defendants.
    Submitted May 18, 2009;
    decided June 25, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    [913 NE2d 407, 885 NYS2d 21]
    In the Matter of Thomas Anderson et al., Appellants, v Town of Chili Planning Board et al., Respondents.
    Decided June 30, 2009

      APPEARANCES OF COUNSEL

      Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of counsel), for appellants.

      Keith E. O’Toole, Spencerport, for Town of Chili Planning Board, respondent.

      Ward Norris Heller & Reidy LLP, Rochester (Jeffrey J. Harridine of counsel), for Metalico Rochester, Inc., respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, respondent Planning Board’s determinations issuing a conditional use permit and a negative declaration annulled and matter remitted to Supreme Court, Monroe County, with directions to remand to the Planning Board for further proceedings for the reasons stated in the dissenting memorandum at the Appellate Division (59 AD3d 1017, 1019-1020 [2009]).

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


text:
    [913 NE2d 937, 885 NYS2d 245]
    Rachael J. Butler, an Infant, by Her Parent and Guardian, Mary J. Butler, et al., Appellants, v City of Gloversville et al., Defendants, and Gloversville Enlarged School District et al., Respondents.
    Argued June 4, 2009;
    decided June 30, 2009

      APPEARANCES OF COUNSEL

      Zwiebel and Fairbanks, P.C., Kingston (Alan S. Zwiebel of counsel), for appellants.

      Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the complaint reinstated against all defendants.

Plaintiff, a young girl, fractured her clavicle and femur after falling off a playground slide on property owned and maintained by defendants. It is undisputed that at other playgrounds operated by defendants, protective ground cover, such as pea stone, had been installed around playground equipment to lessen injuries, as recommended in the U.S. Consumer Product Safety Commission’s (CPSC) Handbook for Public Playground Safety and the American Society for Testing and Materials’ (ASTM) Standard Consumer Safety Performance Specification for Playground Equipment for Public Use. Plaintiff brought this personal injury action alleging that the proximate cause of her injuries was defendants’ failure to use a recommended ground cover consistent with the guidelines.

Defendants City of Gloversville and Enlarged School District of Gloversville moved for summary judgment and dismissal of plaintiff’s complaint. Supreme Court denied the motion, concluding that the affidavit submitted by plaintiff’s expert raised an issue of fact requiring a trial. The Appellate Division reversed and granted summary judgment to all defendants, searching the record as to those defendants who had not moved. Although the Court held that there was an issue of fact regarding defendants’ duty to install ground cover, it concluded that defendants’ expert established that the lack of an adequate ground cover was not the proximate cause of plaintiff’s injuries. Two Justices dissented, finding that the conflicting expert opinions presented questions of fact that precluded summary judgment.

In our view, defendants failed to meet their initial burden of making a “prima facie showing of entitlement to judgment as a matter of law” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendants’ expert calculated that plaintiff generated 480 foot-pounds of energy when she landed on the ground. Relying on prior research tests in which he used rubber mats, defendants’ expert stated that protective surfaces were not sufficiently energy-absorbent to have prevented plaintiff’s fractures. Despite the fact that the CPSC and ASTM guidelines were based on the use of various ground covers in addition to rubber mats, the expert opined that plaintiff would have been injured even if the other types of recommended ground covers had been installed. He did not, however, provide a scientific or mathematical foundation to substantiate this assertion, nor did he address the shock-absorbing capacity of pea stone, the ground cover used by defendants at their other playgrounds. Summary judgment was therefore not warranted since defendants failed to sufficiently demonstrate that their alleged negligence was not a proximate cause of plaintiff’s injuries (see generally Romano v Stanley, 90 NY2d 444, 451-452 [1997]).

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

Order reversed, etc.


text:
    Katharine Allison, Appellant, v William B. Allison, Respondent.
    Submitted May 26, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Amir J.-L., an Infant. Administration for Children’s Services, Respondent; Phillip J.-L., Appellant.
    Submitted May 18, 2009;
    decided June 30, 2009
   Motion, insofar as it seeks leave to appeal as against the Administration for Children’s Services, dismissed as untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal as against the Law Guardian, dismissed for failure to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2). Motion for poor person relief dismissed as academic.


text:
    Natalia Anikushina, Respondent, v Courtney D. Moodie, Defendant, and Consolidated Delivery Logistics, Inc., et al., Appellants.
    Submitted May 26, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    In the Matter of Martin Banks, Appellant, v Robert Dennison, as Chair of the New York State Division of Parole, et al., Respondents.
    Submitted June 1, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    In the Matter of Lee Bordeleau et al., Appellants, v State of New York et al., Respondents.
    Decided June 30, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Bridge Capital Corp. et al., Respondents, v Todd E. Ernst et al., Defendants, and Sigurd A. Sorenson, Appellant and Third-Party Plaintiff-Appellant. 257/117 Realty LLC, Third-Party Defendant-Respondent.
    Submitted May 26, 2009;
    decided June 30, 2009
   Motion for a stay dismissed as academic.


text:
    In the Matter of Daniel D. and Another, Children Alleged to be Neglected. John D., Appellant; Commissioner of the Administration for Children’s Services, Respondent.
    Submitted May 18, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Davontae D. and Others, Infants. Monroe County Department of Human Services, Appellant; Celia D., Respondent.
    Submitted June 8, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Felix F. Donkor, Appellant. Commissioner of Labor, Respondent.
    Submitted May 18, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Shawn Green, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, et al., Respondents.
    Submitted June 15, 2009;
    decided June 30, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 703 (2009)].

Chief Judge Lippman taking no part.


text:
    IDT Corp. et al., Appellants, v Tyco Group, S.A.R.L., et al., Respondents.
    Submitted June 22, 2009;
    decided June 30, 2009
   Motion to strike portions of appellants’ reply brief denied.

Chief Judge Lippman taking no part.


text:
    In the Matter of Imani M., a Child Alleged to be Permanently Neglected. Dutchess County Department of Social Services, Respondent; Derrick J., Appellant.
    Submitted May 26, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Michael Jean, Appellant, v Christina Vilar Jean, Respondent.
    Submitted May 11, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, affirming an order which denied a motion to amend a prior final determination, does not finally determine the action within the meaning of the Constitution (see Karger, Powers of the New York Court of Appeals § 4:16, at 96 [3d ed rev]).


text:
    In the Matter of John D. Justice, Appellant, v Michael Hogan, as Commissioner of New York State Office of Mental Health, Respondent.
    Decided June 30, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of John D. Justice, Appellant, v Terry King, Executive Director of Saving Grace Ministries, Inc., Respondent.
    Submitted May 18, 2009;
    decided June 30, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Edward A. Maron et al., Appellants, v Sheldon Silver, as Speaker of the State Assembly, et al., Respondents, et al., Respondent.
    Submitted January 5, 2009;
    decided June 30, 2009
   Motion for leave to appeal denied as unnecessary.

Chief Judge Lippman taking no part.


text:
    In the Matter of Mayank V. Munsiff, a Suspended Attorney, Appellant. Grievance Committee for the Second and Eleventh Judicial Districts, Respondent.
    Decided June 30, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Oyster Bay Associates Limited Partnership et al., Appellants, v Town Board of Town of Oyster Bay et al., Respondents. Birchwood Civic Association at Jericho, Inc., et al., Intervenors-Respondents.
    Submitted May 26, 2009;
    decided June 30, 2009
   Motion by Long Island Association for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Paul Palmieri, Respondent, v Town of Babylon, Appellant.
    Submitted June 1, 2009;
    decided June 30, 2009
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent-Appellant, v Julio Borrell, Also Known as Julio Cesar Borrell, Appellant-Respondent.
    Submitted June 15, 2009;
    decided June 30, 2009
   Motion for reargument denied [see 12 NY3d 365 (2009)].


text:
    The People of the State of New York, Respondent, v Richard Maldonado, Appellant.
    Submitted May 11, 2009;
    decided June 30, 2009
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no civil appeal lies from an Appellate Division order entered in a criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Eugene A. Mullins, Appellant.
    Decided June 30, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    In the Matter of Abdullah Y. Salahuddin, Appellant, v Donald Selsky, as Director of Special Housing/Inmate Disciplinary Programs, Respondent.
    Submitted June 8, 2009;
    decided June 30, 2009
   Motion for reargument of motion for leave to appeal denied [see 12 NY3d 812 (2009)].


text:
    In the Matter of Montgomery Blair Sibley, an Attorney, Appellant. Grievance Committee of the Seventh Judicial District, Respondent.
    Submitted June 1, 2009;
    decided June 30, 2009
   Motion for reconsideration of this Court’s May 12, 2009 dismissal order denied [see 12 NY3d 849 (2009)].


text:
    Louis E. Thyroff et al., Appellants, v Nationwide Mutual Insurance Company et al., Respondents.
    Decided June 30, 2009
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Wen-Yu Zhou Wahab, Respondent, v Chassis Kassim Wahab, Appellant.
    Decided June 30, 2009
   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).


author: Per Curiam. Read, J. (dissenting).

text:
    [912 NE2d 553, 884 NYS2d 337]
    The People of the State of New York, Respondent, v Ingvue E. Buchanan, Appellant.
    Argued May 7, 2009;
    decided June 30, 2009

      POINTS OF COUNSEL

      Thomas Theophilos, Buffalo, for appellant.
    The use of an electric stun belt to physically and psychologically restrain appellant during his jury trial deprived him of a fair trial and due process of law. (Deck v Missouri, 544 US 622; United States v Durham, 287 F3d 1297; Gonzalez v Pliler, 341 F3d 897; United States v McKissick, 204 F3d 1282; United States v Edelin, 175 F Supp 2d 1; Zygadlo v Wainwright, 720 F2d 1221; People v Thomas, 125 AD2d 873.)

      David W. Foley, District Attorney, Mayville {Lynn S. Hodgens of counsel), for respondent.
    I. Stun belts are not visible restraints and should be subject to a distinct analysis. (Holbrook v Flynn, 475 US 560; Illinois v Allen, 397 US 337; People v Mendola, 2 NY2d 270; Deck v Missouri, 544 US 622; People v Rouse, 79 NY2d 934; United States v Miller, 531 F3d 340; Kennedy v Cardwell, 487 F2d 101; United States v Edelin, 175 F Supp 2d 1; People v Harper, 47 NY2d 857; People v Dugan, 238 AD2d 922.) II. The trial court articulated a reasonable basis for the stun belt on the record. {United States v Gray, 292 F Supp 2d 71; United States v Durham, 287 F3d 1297; Deck v Missouri, 544 US 622; United States v Edelin, 175 F Supp 2d 1; People v Stokes, 290 AD2d 71.) III. Defendant was not prejudiced by wearing the belt. {United States v Miller, 531 F3d 340; People v Paul, 229 AD2d 932; People v Gilmore, 12 AD3d 1155; People v Burton, 278 AD2d 910; People v Allaway, 13 AD3d 715; People v Benito, 256 AD2d 221; People v Abrams, 203 AD2d 723; United States v McKissick, 204 F3d 1282.)
   OPINION OF THE COURT

Per Curiam.

We hold that a stun belt may not be used to restrain a defendant in a criminal case without a finding of specific facts justifying the use of such a restraint.

I

Defendant was charged with the murder, by strangulation, of a 14-year-old girl. After jury selection and before opening statements, the trial judge said “it is my policy in cases of this nature, this degree of seriousness, to have the defendant either in leg shackles, which I don’t like to do, or the belt that can deliver a shock should there be a problem.” Addressing defendant directly, the court added: “I do believe it is necessary not just for you .... This is something I would do for anybody charged with murder.” Defendant’s counsel and defendant himself objected strenuously. When defendant said, “I have done nothing to warrant this,” the court replied: “I can’t disagree with you. You have not done anything to warrant that.” But the court decided to require a stun belt “in the interest of being overly cautious for security.” The court also asked an officer who was present: “The Sheriff’s Department’s position is you would like that to remain on?”, to which the officer answered, “Yes.”

At the end of the first day of trial, defendant complained that the belt was uncomfortable, and the court ordered that he be examined. At the beginning of the next trial day, the court said it had received a report to the effect that the defendant “has no medical reason not to use the shock belt” and ordered the belt kept on. To defendant’s continued protests, the court replied that it had to rely on “the security experts,” and again assured defendant that the court’s ruling was nothing personal; the court said that even “an innocent man on trial for murder” could be dangerous. Defendant thus wore a stun belt under his clothing for the duration of his trial.

Defendant was convicted of second degree murder, and the Appellate Division affirmed, with two Justices dissenting (53 AD3d 46 [2008]). An Appellate Division Justice granted leave to appeal, and we now reverse.

II

Defendant argues that the use of the stun belt deprived him of due process of law, relying on Deck v Missouri (544 US 622, 626 [2005]), in which the United States Supreme Court held that the Due Process Clause prohibits a state from confining a defendant in “visible shackles” during a criminal trial, unless a “special need,” based on facts specific to the case, is shown. The People argue that Deck is distinguishable because the stun belt here was not visible to the jury. We need not reach the constitutional issue, however, for we conclude as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason.

We have no doubt that there are cases in which a court may properly find, considering the nature of the charged offense, the defendant’s history and other relevant factors, that a stun belt is necessary, but those factors must be considered before that finding is made. Thus, we adopt the rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint. A formal hearing may not be necessary, but the trial court must conduct a sufficient inquiry to satisfy itself of the facts that warrant the restraint. Where it does so, a trial court has broad discretion in deciding whether a restraint is necessary for courtroom security.

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

Read, J. (dissenting).

I agree with the majority that the trial judge in this case should have explained on the record why, to safeguard courtroom security, he ordered defendant to wear a stun belt during trial. In this case, however, the presumption of innocence was not implicated by the judge’s failure to inquire about the particular need for use of a stun belt and to make factual findings on the record. Defendant—a man in his thirties who apparently stands more than six feet tall and weighs over 300 pounds—repeatedly protested that the stun belt was uncomfortable (a complaint that the judge ordered a physician to evaluate), and that he should not have to wear this restraint because he was presumed to be innocent. But defendant failed to show that the stun belt was visible to the jury or otherwise compromised the fundamental fairness of the trial; he never objected that the stun belt impaired his ability to communicate with his attorney or meaningfully participate in his defense. Since I therefore do not believe that defendant has shown any actual prejudice, I would affirm his conviction (see e.g. State v Bowen, 340 Or 487, 496, 135 P3d 272, 279 [2006], cert denied 549 US 1214 [2007]).

Chief Judge Lippman and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur in per curiam opinion; Judge Read dissents and votes to affirm in a separate opinion.

Order reversed, etc.


author: Jones, J.

text:
    [912 NE2d 555, 884 NYS2d 339]
    The People of the State of New York, Appellant, v Victor Gomez, Respondent.
    Argued June 4, 2009;
    decided June 30, 2009

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney, New York City {Jung Park and Mark Dwyer of counsel), for appellant.
    Officer Vettell properly conducted an inventory search of Victor Gomez’s car, which began at the scene and continued at the precinct. (People v Johnson, 1 NY3d 252; People v Jackson, 279 AD2d 357; People v Figueroa, 6 AD3d 720; Illinois v Lafayette, 462 US 640; People v Galak, 80 NY2d 715; Colorado v Bertine, 479 US 367; Florida v Wells, 495 US 1; People v Dickens, 218 AD2d 584, 88 NY2d 1031; United States v Thompson, 29 F3d 62; United States v Skillern, 947 F2d 1268, 503 US 949.)

      DLA Piper LLP (US), New York City (Christopher C. Land of counsel), and Legal Aid Society (Steven Banks, David Crow and Andrew Fine of counsel) for respondent.
    I. The People of the State of New York’s appeal should be dismissed because the Appellate Division’s determination to reverse based on the failure to demonstrate that a valid inventory search was conducted was grounded on a mixed question of law and fact. (People v McCready, 68 NY2d 981; People v Harrison, 57 NY2d 470; People v Hallman, 92 NY2d 840; People v Esquilin, 91 NY2d 902; People v Galak, 80 NY2d 715; People v Johnson, 1 NY3d 252; People v Hartman, 294 AD2d 446, 100 NY2d 568; People v Montilla, 268 AD2d 270, 95 NY2d 830; People v Reddick, 265 AD2d 855, 95 NY2d 822; People v Powell, 92 NY2d 886.) II. The Appellate Division properly determined that a warrantless search of a vehicle is not sustainable as an inventory search if the procedures of an inventory search are not described, there is no testimony that an inventory of all items was taken, and if the only “inventory” taken is incriminating evidence. (People v Galak, 80 NY2d 715; Colorado v Bertine, 479 US 367; Florida u Wells, 495 US 1; South Dakota v Opperman, 428 US 364; People v Johnson, 1 NY3d 252; People v Gonzalez, 62 NY2d 386; Illinois v Lafayette, 462 US 640; People v Robinson, 97 NY2d 341; People v Minto, 272 AD2d 558; People v Colon, 202 AD2d 708.)
   OPINION OF THE COURT

Jones, J.

The issue before us is whether the People met their initial burden of establishing a valid inventory search. We hold that they have not.

On June 23, 2005, at approximately 12:45 a.m., two New York City Police Department (NYPD) officers were on patrol in a marked police car in Manhattan (area of 107th Street and Amsterdam Avenue) when one officer noticed a 1999 Dodge Stratus driving erratically. This officer conducted a computer search of the vehicle’s license plate and found that defendant Victor Gomez owned the vehicle, but that his driver’s license (and driving privileges) had been suspended. The officers stopped the vehicle, confirmed that defendant, the sole occupant of the vehicle, was driving with a suspended license, arrested defendant for same and impounded the vehicle. Defendant was cuffed and placed in the patrol car.

One of the arresting officers, who recognized defendant from a prior incident in which defendant had threatened to shoot the officer and himself, and other officers began searching the car. Because the door on the driver’s side was blocked due to the way it was parked, an officer accessed the car through the passenger side and conducted a cursory search of the car’s interior, recovering nothing. The police also searched the trunk of defendant’s car and found a paper bag containing a powdered substance that appeared to be cocaine, a plastic bag with white residue, an electric scale and a small manilla envelope containing red pills. Because a crowd was gathering at the scene, it was decided that the search would be continued at the precinct. While driving defendant’s car to the station, an officer discovered 45 empty plastic “baggies” in the driver’s side door panel.

Defendant, who was charged with criminal possession of a controlled substance in the third degree and criminally using drug paraphernalia in the second degree, moved to suppress the items recovered during the search of his vehicle. After a combined Mapp, Huntley, Dunaway hearing in which the arresting officer who searched defendant’s car testified, Supreme Court denied defendant’s motion, finding that it was reasonable, under the circumstances, for the police to conduct an inventory search of defendant’s vehicle. Subsequently, defendant, in satisfaction of the indictment, pleaded guilty to criminal possession of a controlled substance in the third degree and was sentenced, as a second felony offender, to a determinate prison term of 3V2 years.

In a 4-1 decision, the Appellate Division reversed the conviction, granted defendant’s motion to suppress the evidence and dismissed the indictment (50 AD3d 407 [2008]). According to the majority, the People failed to (1) “establish the content of any standardized procedure for inventory searches promulgated by the [NYPD]” (id. at 409), (2) come forward with evidence that the search of defendant’s car was conducted in accordance with any such standardized procedure and (3) establish that the police created any meaningful inventory list—“the hallmark of an inventory search” (id., quoting People v Johnson, 1 NY3d 252, 256 [2003])—of the items found in defendant’s car. The dissenting Justice argued that defendant’s claims were not preserved for appellate review and that even if they were, the People met their initial burden of establishing a valid inventory search. A Justice of the Appellate Division granted the People leave to appeal, and we now affirm.

In People v Galak (80 NY2d 715 [1993]), this Court noted:

“The analysis of what constitutes a reasonable inventory search begins with the language of the Fourth Amendment, which protects citizens not from all searches by governmental actors but only from those that are ‘unreasonable’. In its modern Fourth Amendment jurisprudence, the Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual’s right to be free from arbitrary interference by law enforcement officers (United States v Brignoni-Ponce, 422 US 873, 878 [remaining citations omitted])” (80 NY2d at 718).

Further,

“[a]n inventory search is . . . designed to properly catalogue the contents of the item searched. The specific objectives of an inventory search, particularly in the context of a vehicle, are to protect the property of the defendant, to protect the police against any claim of lost property, and to protect police personnel and others from any dangerous instruments (Florida v Wells, 495 US 1, 4 [1990]). . . . ‘[A]n inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence’ (id.). To guard against this danger, an inventory search should be conducted pursuant to ‘an established procedure clearly limiting the conduct of individual officers that assures that the searches are carried out consistently and reasonably’ (People v Galak, 80 NY2d 715, 719 [1993]). The procedure must be standardized so as to ‘limit the discretion of the officer in the field’ (id.). While incriminating evidence may be a consequence of an inventory search, it should not be its purpose” (Johnson, 1 NY3d at 256).

In short, when determining the validity of an inventory search, “two elements must be examined: first, the relationship between the search procedure adopted and the governmental objectives that justify the intrusion and, second, the adequacy of the controls on the officer’s discretion” (Galak, 80 NY2d at 719).

As relevant to the particular case, courts may take judicial notice of the standardized search procedure. While this procedure need not be offered into evidence, a description of what the procedure requires must be proffered.

Here, the People did not sustain their initial burden of establishing a valid inventory search. Although the NYPD has a standardized, written protocol governing inventory searches in its Patrol Guide and the arresting officer testified that he was familiar with it, the People offered no evidence that the police officers conducted this search in accordance with the protocol. Even assuming it was reasonable for the officers to search the immediate area of the passenger compartment of defendant’s car for contraband to ensure the safety of the officer driving the car back to the police precinct, the People did not establish the circumstances under which opening and searching a closed trunk or a door panel would be justified under the protocol.

Moreover, our jurisprudence requires that a police officer prepare a meaningful inventory of the contents of an accused’s car (see Johnson, 1 NY3d at 256; Galak, 80 NY2d at 720). Here, although the arresting officer filled out a voucher—a form police officers use to list items held as evidence—and forfeiture paperwork, the People failed to establish that no other items aside from the contraband were found in defendant’s vehicle. Our determination is not based on the officer’s failure to prepare the inventory search form prescribed under the Patrol Guide protocol. Such an inflexible rule could unnecessarily hamstring police officers in the exercise of their duties. Thus, the failure to use an inventory search form, while a technical defect, is not fatal to the establishment of a valid inventory search as long as (1) the search, in accordance with the “standardized procedure,” is designed to produce an inventory and (2) the search results are fully recorded in a usable format. Simply put, the search at bar was not designed to produce an inventory.

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

Judges Cipakick, Gbaffeo, Read, Smith and Pigott concur; Chief Judge Lippman taking no part.

Order affirmed.

      . On or about June 22, 2005, when one of the arresting officers responded to a domestic dispute at the home of defendant’s mother, defendant made these threats. Although this officer neither searched for nor recovered a gun, he took defendant to Bellevue Hospital for treatment.

      . According to the People, defendant has completed his sentence and is at liberty.


author: Chief Judge Lippman.

text:
    [912 NE2d 1041, 884 NYS2d 662]
    The People of the State of New York, Respondent, v Wayne Decker, Appellant.
    Argued May 7, 2009;
    decided June 9, 2009

      POINTS OF COUNSEL

      Law Office of Ronald L. Kuby, New York City (Ronald L. Kuby of counsel), for appellant.
    Wayne Decker’s due process rights were violated by the People of the State of New York’s decision to wait 15 years to indict. (United States v Marion, 404 US 307; United States v Mejias, 417 F Supp 585, 552 F2d 435, cert denied sub nom. Padilla-Martinez v United States, 434 US 847; United States v Dukow, 453 F2d 1328; People v McCrorey, 180 Misc 2d 75; Barker v Wingo, 407 US 514; People v Taranovich, 37 NY2d 442; People v Blakley, 34 NY2d 311; People v LaRocca, 172 AD2d 628; People v Vernace, 96 NY2d 886; People v Harrison, 23 AD3d 689.)

      Daniel M. Donovan, Jr., District Attorney, Staten Island (Anne Grady and Morrie I. Kleinbart of counsel), for respondent.
    The People of the State of New York acted in good faith in instituting the prosecution despite the passage of time; hence, defendant was not denied due process. (Barker v Wingo, 407 US 514; People v Romeo, 12 NY3d 51; People v Singer, 44 NY2d 241; United States v Gouveia, 467 US 180; United States v Marion, 404 US 307; People v Taranovich, 37 NY2d 442; People v Bryant, 65 AD2d 333; United States v Lovasco, 431 US 783; People v Lesiuk, 81 NY2d 485; Rochin v California, 342 US 165.)
   OPINION OF THE COURT

Chief Judge Lippman.

On December 3, 1987, the body of Victoria Mason was found in her apartment. She had been beaten to death with a baseball bat. Defendant Wayne Decker was the only suspect. Although he was questioned by police at the time, the police found the evidence against him to be of doubtful quality and decided not to prosecute.

The case was reopened 15 years later, in 2002, when the police attempted to get physical evidence through modern scientific techniques. Several items were tested for fingerprints and the presence of DNA, but did not ultimately yield any further evidence. In the course of the investigation, however, the police reinterviewed the original witnesses and decided to prosecute defendant, using the same evidence that was available in 1987.

Defendant moved to dismiss the indictment based on the lengthy preindictment delay. In response, the Assistant District Attorney (ADA) provided an affirmation stating that the District Attorney’s office had decided not to prosecute the case in 1987 because it was based largely upon circumstantial evidence and they wanted to conduct further investigation. The ADA maintained that there were two problems: (1) witnesses were afraid to assist in the investigation or to testify because of defendant’s reputation for intimidating and threatening witnesses and (2) the witnesses were drug addicts and many of them had their own convictions or pending criminal cases. Given these factors, the prosecutors determined that they would need additional independent evidence in order to prosecute defendant. By 2002, however, witnesses had overcome their drug addictions and were willing to testify.

Supreme Court denied defendant’s motion to dismiss the indictment without a hearing, finding that the 15-year preindictment delay did not deprive defendant of due process of law. Defendant was then convicted of second-degree murder after a jury trial. The Appellate Division affirmed (51 AD 3d 686 [2d Dept 2008]). A Judge of this Court granted defendant leave to appeal (11 NY3d 831 [2008]) and we now affirm.

An unjustified delay in prosecution will deny a defendant due process of law (see People v Staley, 41 NY2d 789, 791-792 [1977]; People v Winfrey, 20 NY2d 138, 143 [1967]). However, “a determination made in good faith to delay prosecution for sufficient reasons will not deprive defendant of due process even though there may be some prejudice to defendant” (People v Vernace, 96 NY2d 886, 888 [2001]). Where there has been extended delay, it is the People’s burden to establish good cause (see People v Singer, 44 NY2d 241, 254 [1978]).

We have previously identified several factors to be analyzed when determining whether there has been undue delay:

“(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay” (People v Taranovich, 37 NY2d 442, 445 [1975]).

Although the Taranovich factors specifically applied to a defendant’s right to a speedy trial, they have likewise been employed to determine whether there has been a violation of the due process right to prompt prosecution (see Vernace, 96 NY2d at 887; Staley, 41 NY2d at 792).

Although not determinative,

“the extent of the delay[ ] is of critical importance because ‘all other factors being equal, the greater the delay the more probable it is that the accused will be harmed thereby.’ [However, there] is no specific temporal period by which a delay may be evaluated or considered ‘presumptively prejudicial’ ” (People v Romeo, 12 NY3d 51, 56 [2009] [citations omitted]).

It is undisputed that the 15-year delay in this case was indeed substantial, a fact that weighs in favor of defendant. On the other hand, a long delay may also work against the prosecution as the passage of time can make it more difficult for the People to meet their burden of proof (see Vernace, 96 NY2d at 888).

The People decided to defer prosecution for several reasons, including the witnesses’ fear of testifying against defendant. The prosecution also wanted to conduct further investigation, given the condition of the witnesses and the lack of physical evidence against defendant. The subsequent decision to bring charges, albeit many years later, was not an abuse of the significant amount of discretion that the People must of necessity have, and there is no indication that the decision was made in anything other than good faith.

The underlying charge here is murder, inarguably a very serious offense. In addition, defendant remained at liberty on the murder charge until after his indictment and, since he was not arrested during the initial investigation, was not subject to the anguish (see Singer, 44 NY2d at 253 n 2) or public opprobrium often surrounding pending charges (see Vernace, 96 NY2d at 888).

Finally, there is no indication that the defense was significantly impaired by the delay. With a 15-year delay, it is likely that some degree of prejudice will result—given that memories fade, potentially making it more difficult for a defendant to establish an alibi or other defenses. The rehabilitated witnesses definitely made a better appearance at trial than they would have in 1987, but the jury was aware of their past conduct and the witnesses were subject to cross-examination.

Balancing all of these factors, we conclude that defendant was not deprived of his due process right to prompt prosecution. Although the delay may have caused some degree of prejudice to defendant, the People satisfied their burden of demonstrating that they made a good faith determination not to proceed with the prosecution in 1987 due to, what was at the time, insufficient evidence.

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

Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

Order affirmed.

       Notably, this right is somewhat more expansive than the corresponding right under the Federal Constitution. In order to have an indictment dismissed for preindictment delay based on a violation of Fifth Amendment due process, a defendant must show both that the government caused the delay in order to obtain a tactical advantage and that actual prejudice resulted (see United States v Gouveia, 467 US 180, 192 [1984]).