author: Ciparick, J.

text:
    [942 NE2d 1039, 917 NYS2d 614]
    The People of the State of New York, Respondent, v Sean Smith, Appellant. City of New York, IntervenorRespondent.
    Argued November 15, 2010;
    decided December 16, 2010

      POINTS OF COUNSEL

      Center for Appellate Litigation, New York City (Bruce D. Austern and Robert S. Dean of counsel), for appellant.
    Appellant’s gun offender registration pursuant to New York City’s recently enacted Gun Offender Registration Act is appealable on direct appeal, and should be vacated as a matter of law, because New York City’s new registration law is preempted by New York state law, which prosecutes gun offenses, maintains a record of offenders, and supervises offenders upon release. (Incorporated Vil. of Nyack v Daytop Vil., 78 NY2d 500; Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; Albany Area Bldrs. Assn. v Town of Guilderland, 74 NY2d 372; Anonymous v City of Rochester, 13 NY3d 35; People v Speakerkits, Inc., 83 NY2d 814; Ba Mar v County of Rockland, 164 AD2d 605; New York State Club Assn. v City of New York, 69 NY2d 211, 487 US 1; People v Judiz, 38 NY2d 529; DJL Rest. Corp. v City of New York, 96 NY2d 91; Matter of Ardizzone v Elliott, 75 NY2d 150.)

      Cyrus R. Vance, Jr., District Attorney, New York City (Martin J. Foncello and Mary C. Farrington of counsel), for respondent.
    Defendant cannot contest the legality of the New York City Gun Offender Registration Act on direct appeal from the judgment of conviction. In any event, this groundbreaking local law is not preempted by state law. (People v Stevens, 91 NY2d 270; People v Marra, 13 NY2d 18; People v Gersewitz, 294 NY 163; People v Zerillo, 200 NY 443; People v Nieves, 2 NY3d 310; United States v Spallone, 399 F3d 415; People v Guerrero, 12 NY3d 45; People v Kearns, 95 NY2d 816; People v Hernandez, 93 NY2d 261;
      Matter of Garner v New York State Dept. of Correctional Servs., 10 NY3d 358.)

      Michael A. Cardozo, Corporation Counsel, New York City (Julie Steiner and Barry B Schwartz of counsel), for intervenorrespondent.
    Pursuant to the New York State Constitution and Municipal Home Rule Law, the City’s Gun Offender Registration Act—requiring gun offenders, whether or not sentenced to a term of imprisonment, to register with the City’s Police Department—is a proper exercise of its police powers to regulate the safety and well-being of its citizens. It is neither expressly nor impliedly preempted by nor otherwise inconsistent with the provision of the Executive Law relating to the record-keeping on all inmates released from prison. (Jancyn Mfg. Corp. v County of Suffolk, 71 NY2d 91; DJL Rest. Corp. v City of New York, 96 NY2d 91; New York State Club Assn. v City of New York, 69 NY2d 211, 487 US 1; Consolidated Edison Co. of N.Y. v Town of Red Hook, 60 NY2d 99; Matter of Lansdown Entertainment Corp. v New York City Dept. of Consumer Affairs, 74 NY2d 761; New York City Health & Hosps. Corp. v Council of City of N.Y., 303 AD2d 69; People v Judiz, 38 NY2d 529.)
   OPINION OF THE COURT

Ciparick, J.

In September 2006, defendant Sean Smith was charged in a New York County indictment with one count each of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, unlawful possession of marijuana, and unlicensed driving. He ultimately pleaded guilty to both weapons charges and unlicensed driving in full satisfaction of the indictment. In exchange for his guilty plea, defendant was promised prison terms of five years for each felony weapon charge and 15 days for unlicensed driving, all to run concurrently, and five years of postrelease supervision. At his plea hearing, Supreme Court informed defendant that he would be required to register as a gun offender pursuant to New York City’s Gun Offender Registration Act (GORA).

In January 2009, defendant appeared for sentencing. When asked by the sentencing court if the People had anything to say, the prosecutor stated:

“Your Honor, the People rely on the promised sentence of five years in jail and five years [of] post-release supervision and Gun Offender Registration.
“And. I have provided . . . [the GORA] registration [form] to defense counsel.”

Defense counsel requested that defendant receive credit for time served, but did not otherwise object to the sentence as stated by the prosecutor. When the court pronounced defendant’s sentence, it stated that he was subject to GORA and advised him of his obligations thereunder. At no time during the sentencing hearing did defendant challenge the legality of GORA or its application to him.

Defendant appealed from the judgment of conviction and sentence, arguing for the first time that GORA was preempted by state law. The Appellate Division, First Department, unanimously affirmed, concluding that “the registration and other requirements of GORA are not part of the sentence, or otherwise part of the judgment. Instead, they are analogous to the requirements of the Sex Offender Registration Act (SORA), and a SORA determination . . . may not be reviewed on an appeal from a criminal judgment” (People v Smith, 69 AD3d 450, 450-451 [1st Dept 2010]). Thus, the Court stated, it was affirming the judgment of conviction and sentence “on the ground that no reviewable issue ha[d] been raised” (id. at 451).

A Judge of this Court granted defendant leave to appeal, and we now affirm.

Based on the New York City Council’s finding that gun offenders pose “unique dangers” to the citizens of New York City, the City Council, effective March 24, 2007, adopted GORA, a regulatory scheme to monitor gun offenders residing within the city (see Council of City of NY Intro No. 362, Comm on Pub Safety, Rep of Governmental Affairs Div, Background [June 27, 2006]; Local Law No. 29 [2006] of City of NY). GORA states that a person convicted of specified gun offenses in a court in New York City is a “gun offender” subject to registration with the New York Police Department (NYPD) (see Administrative Code of City of NY § 10-602 [d], [e]). Among other things, GORA requires that a gun offender register at the time sentence is imposed (see id. § 10-603 [a]) and personally appear at the NYPD Gun Offender Monitoring Unit within 48 hours of the date of conviction or the date of release from prison, whichever is later (see id. § 10-603 [d]). Failure to comply with GORA requirements is a misdemeanor punishable by a fine up to $1,000 and/or up to one year of imprisonment (see id. § 10-608).

The threshold question on this appeal is whether GORA registration is subject to appellate review pursuant to CPL 450.10. “Appealability of determinations adverse to a defendant cannot be presumed because ‘a defendant’s right to appeal within the criminal procedure universe is purely statutory’ ” (People v Nieves, 2 NY3d 310, 314 [2004]). As relevant here, Criminal Procedure Law § 450.10 “authorizes a defendant to appeal from a judgment in a criminal case, which brings up for review many of the orders and rulings that precede or are part of it” (Nieves at 314). A judgment is “comprised of a conviction and the sentence imposed thereon and is completed by imposition and entry of the sentence” (CPL 1.20 [15]).

In People v Stevens (91 NY2d 270 [1998]) and People v Kearns (95 NY2d 816 [2000]), we held that the registration and notification requirements of SORA—regardless whether the specific risk level determination was made at the time of sentencing or post-judgment—are not a “traditional, technical or integral part of a sentence” that becomes incorporated within the judgment of conviction (Stevens, 91 NY2d at 276; Kearns, 95 NY2d at 818). Accordingly, SORA registration and notification requirements are not reviewable on direct appeal from a judgment of conviction and are not individually appealable within the criminal proceeding (Kearns, 95 NY2d at 818).

We agree with the Appellate Division that GORA’s registration and notice requirements, like SORA’s, are not a “traditional, technical or integral” part of defendant’s sentence or subsumed within the judgment of conviction. Notably, neither the Penal Law nor the Criminal Procedure Law directs or authorizes a sentencing court to impose GORA registration as part of a defendant’s sentence. If the sentencing court here had omitted advising defendant of his obligation to register as a gun offender, defendant would have nonetheless remained obligated to register under the terms of GORA (see Administrative Code of City of NY § 10-603 [a] [“A gun offender shall register with the department at the time sentence is imposed”]). In other words, pursuant to the terms of GORA, the registration of a gun offender is an administrative matter between the City of New York, the NYPD, and the offender, not a component of a gun offender’s sentence to be imposed by the sentencing court.

Defendant’s reliance on Nieves (2 NY3d 310 [2004]) and People v Hernandez (93 NY2d 261 [1999]) is misplaced. In both cases, we concluded that the matter sought to be appealed—initial certification as a sex offender by the trial court upon conviction and orders of protection issued during a sentencing proceeding—were part of the judgment of conviction and therefore appealable (Nieves, 2 NY3d at 312; Hernandez, 93 NY2d at 267-268). Significantly, in both cases, the challenged issues were “actually and temporally” part of the judgment of conviction (Hernandez, 93 NY2d at 270; see also Nieves, 2 NY3d at 315 [“CPL 530.13 (4) authorizes a court to issue permanent orders of protection for the benefit of victims and witnesses ‘(u)pon conviction of any offense.’ By using this language, the Legislature signaled that orders of protection issued at sentencing are part of the final adjudication of the criminal action involving defendant”]). Moreover, certification as a sex offender upon conviction and orders of protection issued at the time of sentencing are made part of the order of commitment, which is incorporated into the certificate of conviction (see e.g. Kearns, 95 NY2d at 818). Notably, the GORA registration and notice requirements do not appear on defendant’s “Uniform Sentence and Commitment” form, further supporting our conclusion that such requirements are not part of a defendant’s sentence.

In short, like SORA registration and notice requirements, GORA registration and accompanying notice requirements cannot be deemed a technical or integral part of a defendant’s sentence nor be incorporated into the judgment of conviction. Accordingly, GORA registration is not reviewable on direct appeal from a judgment in a criminal proceeding.

Defendant further argues that GORA is preempted by Executive Law § 259-a. Because we conclude, as did the Appellate Division, that the imposition of GORA registration is not reviewable on direct appeal, we need not reach that argument. We observe, however, that there are appropriate means by which GORA could be challenged as preempted by state law, including a CPLR article 78 proceeding or a declaratory judgment action.

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

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

Order affirmed.

      . After Stevens was decided, the Legislature amended SORA to provide the People and the defendant the right to take a civil appeal challenging a risk level determination (see Correction Law § 168-d [3], as amended by L 1999, ch 453, § 6; see also Kearns, 95 NY2d at 818).

      . The distinction between SORA registration and notice requirements, which we have held to be not part of a judgment of conviction and thus not appealable, and the initial certification as a sex offender by the trial court upon conviction, which we have held comprises part of a sentence, is clearly articulated in People v Hernandez (93 NY2d at 270).


source: Caselaw Access Project

author: Pigott, J. Jones, J. (dissenting).

license: Public Domain

text:
    [942 NE2d 219, 917 NYS2d 10]
    Tammy D. Johnson, Individually and as Mother and Natural Guardian of Arjaye Johnson, an Infant, et al., Appellants, v City of New York et al., Respondents. (And Another Action.)
    Argued October 20, 2010;
    decided November 23, 2010

      POINTS OF COUNSEL

      Gutterman & Speiser, New York City (Barry A. Gutterman of counsel), and Kliegerman & Joseph, LLP (Michael P. Joseph of counsel), for appellants.
    Defendants’ motion for summary judgment was improperly granted by the majority in the Appellate Division, First Department. (Haddock v City of New York, 75 NY2d 478; Lubecki v City of New York, 304 AD2d 224, 2 NY3d 701; Summerville v City of New York, 257 AD2d 566, 94 NY2d 755; Rodriguez v City of New York, 189 AD2d 166; Schuster v City of New York, 5 NY2d 75; Ezra v Life Ins. Co. of N. Am., 298 AD2d 267; Cuevas v City of New York, 32 AD3d 372; Bitici v New York City Tr. Auth., 245 AD2d 157; Cassagnol v Williamsburg Plaza Taxi, 234 AD2d 208; Velez v City of New York, 157 AD2d 370, 76 NY2d 715.)

      Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson and Francis F. Caputo of counsel), for respondents.
    The City of New York is immune from liability in negligence as a matter of law where, in response to being shot at on a public street, the police acted in accordance with police guidelines for the use of deadly physical force. (McLean v City of New York, 12 NY3d 194; Lauer v City of New York, 95 NY2d 95; Tango v Tulevech, 61 NY2d 34; McCormack v City of New York, 80 NY2d 808; Arias v City of New York, 22 AD3d 436; Lubecki v City of New York, 304 AD2d 224; Rodriguez v City of New York, 189 AD2d 166; Merenda v Consolidated Rail Corp., 248 AD2d 684; Diaz v New York Downtown Hosp., 99 NY2d 542; Galapo v City of New York, 95 NY2d 568.)
   OPINION OF THE COURT

Pigott, J.

On May 27, 2005 at approximately 6:30 p.m., New York City Police Officers Williams and Loor received a complaint from a pedestrian that two men had just attempted to rob him with a gun. The officers pursued one of the suspects from 125th Street, along Lenox Avenue, onto 126th Street. Officer Williams transmitted the attempted robbery complaint over the radio while Officer Loor drove their police cruiser to the corner of 126th Street and Lenox Avenue, parking two car lengths away from the suspect. When the officers got out of the cruiser and ordered the suspect to drop his weapon, he pointed the gun at them and started shooting. The officers returned fire and sought cover behind a trailer on the south side of the street; the suspect hid behind a van farther up 126th Street on the same side.

Officer Loor then ran from the south side of 126th Street to the north side, positioning himself behind a tree directly across the street from the suspect. The suspect fired at Officer Loor, who responded in kind. According to the pretrial testimony, Officer Loor did not see any bystanders in the area while he was shooting, and the area near the suspect was clear of pedestrians. Officer Williams—who continued using the trailer for cover— observed the suspect back onto the sidewalk from behind the van and, having a view of the suspect’s profile and being concerned for Officer Loor’s safety, fired one or two shots at the suspect. She testified that she did not observe any pedestrians in the area when discharging her weapon.

During the melee, three other officers appeared on the scene. Officer Garcia heard a scream from the direction of Lenox Avenue. He walked toward the commotion and observed the suspect shoot at Officers Williams and Loor and then hide behind the van. Officer Garcia took cover in a brownstone well on the north side of the street. He had a clear view of the suspect and fired at him out of concern for Officer Loor, who was taking fire; Officer Garcia did not see any pedestrians or bystanders on the street.

Officers Beddows and Eckert separately responded to the scene. Officer Beddows took cover on the north side of the street behind a cruiser. He observed the suspect firing shots from behind the van. Officer Beddows had a clear view when he fired two shots at the suspect, and he saw no pedestrians on the street other than the suspect.

Officer Eckert positioned his cruiser in front of the van. He observed only the suspect and did not see any other pedestrians on the block. He walked toward the rear of his cruiser and took cover behind a car on the south side of the street. During the exchange of gunfire between Officer Loor and the suspect, the suspect moved to the sidewalk and Officer Eckert, having a clear view, fired one shot at the suspect. Officer Eckert reholstered his weapon and saw Officer Loor walking toward the suspect, who was lying face down on the ground. Officers Loor and Eckert met near the suspect and Officer Loor kicked the firearm away from the suspect’s hand.

Plaintiff Tammy Johnson was playing with her 18-month-old daughter and socializing with neighbors on 126th Street near her residence when she heard gunshots, which sent her neighbors fleeing into the house. Johnson saw two men running toward her, one of whom was carrying a gun. Johnson and her daughter lay on the ground behind a white SIFV] which was two vehicles away from the van behind which the suspect was hiding. She looked under the SUV and saw the suspect on the south side of the street lying on the ground shooting at a police officer across the street. An errant bullet struck Johnson’s elbow.

Johnson, individually and on behalf of her daughter, commenced this negligence action against the City and police officers alleging, among other things, that the officers negligently discharged their firearms in violation of department guidelines. The City interposed an answer and, upon completion of discovery, moved for summary judgment on the ground that the officers exercised their professional judgment and acted reasonably in returning fire once fired upon.

Johnson opposed the City’s motion and cross-moved for summary judgment on liability, claiming that the officers violated New York City Police Department Procedure No. 203-12, entitled “Deadly Physical Force,” which sets forth the guidelines for the use of firearms. The relevant guidelines state that

“a. Police officers shall not use deadly physical force against another person unless they have probable cause to believe that they must protect themselves or another person present from imminent death or serious physical injury.
“b. Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons.”

Johnson argued that the officers violated subsection (b).

Supreme Court denied Johnson’s cross motion insofar as relevant to this appeal, and the City’s motion for summary judgment, holding that although the City met its burden of establishing that the officers exercised their professional judgment, there was an issue of fact as to whether the officers violated police guidelines by discharging their weapons.

The Appellate Division, in a 3-2 decision, reversed and dismissed the complaint, holding that Johnson failed to show that the officers violated any of the guidelines. The court pointed to the uncontradicted testimony of the officers that there were no pedestrians in sight as the officers “sought to protect themselves and their fellow officers by returning fire” (65 AD3d 476, 477 [1st Dept 2009]). It concluded that, absent any proof that there were pedestrians in view, the report from Johnson’s expert that there were questions of fact as to whether the officers violated police guidelines was without merit (see id. at 477-478). The dissenters, on the other hand, concluded that the deposition testimonies of Officers Garcia and Beddows, where they testified that they did not look for bystanders while they were shooting at the suspect, raised an issue of fact as to whether those officers violated police guidelines “by failing to even ascertain whether innocent persons were unnecessarily endangered at the time they discharged their weapons” (id. at 479-480). We now affirm.

The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties “ ‘where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions’ ” (McCormack v City of New York, 80 NY2d 808, 811 [1992], quoting Kenavan v City of New York, 70 NY2d 558, 569 [1987]). Immunity under the professional judgment rule

“ ‘reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury’ ” (Mon v City of New York, 78 NY2d 309, 313 [1991], quoting Haddock v City of New York, 75 NY2d 478, 484 [1990]).

This immunity, however, presupposes that judgment and discretion are exercised in compliance with the municipality’s procedures, because “the very basis for the value judgment supporting immunity and denying individual recovery becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion” (Haddock, 75 NY2d at 485).

The guideline here calls for such judgment, i.e., the police must not discharge their firearms if doing so would “unnecessarily endanger innocent persons.” It does not prohibit officers from discharging their weapons when innocent bystanders are present in every instance. Rather, the guideline grants officers the discretion to make a judgment call as to when, and under what circumstances, it is necessary to discharge their weapons.

The officers clearly had probable cause to fire their weapons at the suspect: they were in pursuit of an armed individual who opened fire on them on a public street, endangering the lives of the officers and the public. Johnson asserts, however, that she met her burden of raising a question of fact that the officers violated the guideline because they did not survey the area to see if bystanders were present before firing at the suspect. However, on this record, it is uncontroverted that all of the officers who fired at the suspect did so when they had a clear view of him, and all testified that they did not see any bystanders in the area while firing, such that it cannot be said that the officers failed to exercise discretion in discharging their weapons. Nor is there any evidence that Johnson and her daughter were in the line of fire during the melee such that a question of fact was presented as to whether officers’ discharge of their firearms violated the guideline (cf. Lubecki v City of New York, 304 AD2d 224 [1st Dept 2003], lv denied 2 NY3d 701 [2004] [violation of guideline where officers failed to call hostage negotiator and also fired at suspect when he was using hostage as a shield]; Rodriguez v City of New York, 189 AD2d 166 [1st Dept 1993] [officer violated police procedure by discharging weapon at suspect when there was a crowd between them]). Although Johnson submitted an affidavit from an expert who claimed that Johnson and her daughter were “totally exposed” to Officer Garcia, the expert’s claim that Officer Garcia must have seen them does not answer the more basic question—did the officers exercise their judgment when confronted with an armed suspect firing at them? There is no evidence that they did not. The fact that the officers did not observe the bystanders who were present at the time they were exercising that judgment does not raise an issue as to whether they unnecessarily endangered innocent persons.

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

Jones, J. (dissenting).

Because there is an issue of fact as to whether the police officers violated a New York City Police Department guideline that prohibits unnecessarily endangering innocent persons by failing to ascertain the presence of bystanders before firing their weapons, I respectfully dissent and would reverse the order of the Appellate Division.

Generally, municipalities are immunized from liability for the exercise of discretion by their agencies or officials. When official acts, including those of police officers (see Rodriguez v City of New York, 189 AD2d 166, 178 [1st Dept 1993]), involve the exercise of discretion or reasoned judgment, there is no liability for injuries even if the official action is negligent or malicious (see Tango v Tulevech, 61 NY2d 34, 40 [1983]).

However, this broad protection is neither absolute, nor automatically afforded, as the municipality must exercise discretion in compliance with its own procedures (see Haddock v City of New York, 75 NY2d 478, 486 [1990]). Governmental immunity will not be provided “where the municipality violates its own internal rules and policies and exercises no judgment or discretion” (id. at 485). In the context of police officers, immunity “does not extend to situations where the employee, a police officer, violates acceptable police practice” (Lubecki v City of New York, 304 AD2d 224, 233-234 [1st Dept 2003], citing Rodriguez, 189 AD2d at 178).

New York City Police Department Procedure No. 203-12, entitled “Deadly Physical Force,” as relevant here, commands that “b. Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons.”

Here, there is an issue of fact as to whether the police officers violated this elemental requirement. Record evidence establishes the presence of bystanders in the immediate area of the shooting. For example, photographic evidence indicates plaintiffs were in close proximity to the suspect, who was positioned approximately two car lengths away. A crime scene sketch, created by the Police Department Crime Scene Unit, showing the relative positions of all the individuals involved in the incident indicates that when Officer Garcia fired his weapon, he was positioned across the street from plaintiffs and the suspect. The sketch also supports the inference that plaintiffs, who were taking cover behind a parked vehicle, should have been plainly visible to Officer Garcia as he fired at the suspect just beyond them.

Further, when questioned about the incident, Officer Garcia answered that he never affirmatively looked for pedestrians before firing his weapon. Officer Beddows similarly testified that he did not determine whether pedestrians were present before firing his weapon. In fact, he stated that he did not look for bystanders until “after pretty much everything was done.” Given the close proximity of plaintiffs to the suspect, the admitted failure of some officers to look for bystanders before firing their weapons creates a triable issue as to whether the police violated departmental guidelines prohibiting actions that unnecessarily endanger innocent persons.

While I acknowledge the difficulties faced by police officers in the performance of their duties, I find it troubling that some of the officers in this incident failed to observe the surrounding area prior to firing their weapons. Our governmental immunity precedent is premised on the inherent requirement that reasoned judgment be used in exercising discretion. And where, as here, there is evidence that police officers failed to look for innocent persons before firing their weapons, it does not seem possible to conclude as a matter of law that the necessary judgment was exercised and, concomitantly, that there was no violation of the guideline against unnecessarily endangering innocent persons. As this Court has previously stated, immunity will not be provided where “[t]here is no indication that . . . the City made any effort to comply with its own personnel procedures” (Haddock, 75 NY2d at 485).

The majority relies on Rodriguez and Lubecki to conclude that there is no issue of fact as to whether the officers violated guidelines because plaintiffs were not in the line of police fire. However, the applicable guideline does not merely prohibit police from discharging their weapons when there is a civilian directly in the path of police fire. Rodriguez and Lubecki dealt with facts indicating clear violations of police guidelines because of certain injury to innocent persons. In Rodriguez, an officer fired through a crowd at a suspect, and in Lubecki, officers fired at a suspect holding an innocent person hostage. While these cases present classic scenarios of endangerment, they should not be understood to be the exclusive examples of violations of

the applicable guideline. For the subject guideline’s intended purpose and protections to be afforded, the exercise of reasoned judgment must be extended to situations where civilians are close enough to a target to be endangered. Here, the record establishes the presence of plaintiffs in the immediate area of the suspect and the affirmative failure of the officers to look for innocent persons before firing their weapons. In a summary judgment context particularly, where a court’s function is “issue-finding, rather than issue-determination” (Pirrelli v Long Is. R.R., 226 AD2d 166, 166 [1996]), plaintiffs have raised sufficient questions of fact on the issue of unnecessary endangerment to warrant a trial.

Judges Graffeo, Read and Smith concur with Judge Pigott; Judge Jones dissents and votes to reverse in a separate opinion in which Chief Judge Lippman and Judge Ciparick concur.

Order affirmed, with costs.

       The evidence in the record indicates that Johnson’s daughter may have been grazed by a bullet but received no treatment for it.


text:
    [932 NE2d 877, 906 NYS2d 521]
    The People of the State of New York, Respondent, v Kezine Murray, Appellant.
    Argued June 1, 2010;
    decided June 24, 2010

      APPEARANCES OF COUNSEL

      Mark Diamond, New York City, for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Solomon Neubort and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant entered a plea to criminal possession of a weapon in the third degree with the understanding that he would “probably” be treated as a youthful offender and sentenced to a term of nine months if he produced proof that he was in school, received a favorable probation report, and appeared as directed for sentencing. He was advised that if he did not meet these conditions, he would be sentenced as an adult to a term of two years in prison followed by two years of post-release supervision (PRS). Defendant did not appear on the appointed sentencing date. When he did appear, several months later and after issuance of a bench warrant, the court, citing defendant’s nonappearance, announced at the outset of the proceeding that it would sentence him as an adult, and, after hearing argument from defendant’s counsel, imposed an adult sentence. The reason for the court’s decision not to treat defendant as a youthful offender—his nonappearance on the original sentencing date—was rooted in the terms of defendant’s plea and evident to all concerned; this was not a situation in which the court arbitrarily trifled with the legitimate expectations of the defendant based on the plea (see People v Selikoff, 35 NY2d 227, 240 [1974]). Under the circumstances, the court did not abuse its discretion in sentencing defendant as an adult.

Defendant’s further claim that the term of the PRS component of his sentence (three years), although of legal duration, did not conform to the term indicated at the plea proceeding (two years), is not preserved. While preservation is unnecessary to our address of a nonconforming PRS sentence where the defendant has not been made aware of that part of the sentence before its imposition (see People v Louree, 8 NY3d 541, 546 [2007]), here defendant was advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding. Because defendant could have sought relief from the sentencing court in advance of the sentence’s imposition, Louree’s rationale for dispensing with the preservation requirement is not presently applicable.

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

Order affirmed in a memorandum.


text:
    [931 NE2d 1053, 905 NYS2d 797]
    The People of the State of New York, Respondent, v George Jordan, Appellant.
    Decided June 24, 2010
    APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Mark W. Zeno and Robert S. Dean of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Matthew C. Williams of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, the resentence vacated and the original sentence reinstated.

In February 2003, defendant pleaded guilty to attempted first-degree robbery and was promised a sentence of seven years imprisonment. Although postrelease supervision (PRS) was discussed during the plea proceeding, Supreme Court did not inform defendant of the specific term of PRS it intended to impose. At sentencing, although Supreme Court mentioned PRS again, it did not pronounce a specific period of PRS. In September 2008—more than one year after defendant was released from prison—defendant returned to court and Supreme Court, in error, resentenced him, adding a five-year period of PRS. The Double Jeopardy Clause of the Federal Constitution precludes a court from adding PRS to a defendant’s sentence once the defendant has been released from imprisonment (see People v Williams, 14 NY3d 198, 217 [2010]).

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

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


text:
    [931 NE2d 1053, 905 NYS2d 797]
    The People of the State of New York, Respondent, v Paris Simmons, Appellant.
    Argued June 3, 2010;
    decided June 24, 2010

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Valerie A. Koffman, Richard M. Greenberg and Joseph M. Nursey of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Aaron Ginandes and Grace Vee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Although certain phrases in the trial court’s supplemental instruction were inartfully worded, we are unpersuaded that the trial court’s response to a jury note, which inquired about the element of intent, usurped the role of the jurors. Viewing the problematic language in the broader context of the supplemental instruction and the jury charge as a whole, the court conveyed the proper legal standards and repeatedly advised the jury that it was the exclusive arbiter of the facts.

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

Order affirmed in a memorandum.


text:
    [932 NE2d 876, 906 NYS2d 520]
    Leonard Eidlisz, Respondent, v New York University et al., Appellants.
    Argued June 1, 2010;
    decided June 24, 2010

      APPEARANCES OF COUNSEL

      Office of General Counsel, New York University, New York City (Nancy Kilson of counsel), for appellants.

      Orans Elsen Lupert & Brown LLP, New York City (Robert L. Plotz and Leslie A. Lupert of counsel), for respondent.

      Hogan & Hartson, LLP, New York City (R. Brian Black and Martin Michaelson of counsel), Ada Meloy, Washington, D.C., and Jessie Brown for American Council on Education and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

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

In this breach of contract action, plaintiff seeks an order compelling defendants to award him a degree. Defendants maintain that this action should have been brought as a CPLR article 78 proceeding and is therefore time-barred. Plaintiff moved for summary judgment granting him specific performance, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiffs motion, granted defendants’ cross motion, and dismissed the complaint. The court concluded that the case should have been brought as an article 78 proceeding and was untimely. The Appellate Division reversed, denied defendants’ cross motion, granted plaintiffs motion, and directed defendants to award plaintiff a degree, diploma and any authorizations necessary to allow him to take the dental boards. This Court granted defendants leave to appeal.

The lower courts erred in reaching their respective conclusions. On this record, defendants have not established that they are entitled to the benefit of the statute of limitations defense applicable to an article 78 proceeding. Further, contrary to the determination of the Appellate Division, there are issues of fact

as to whether defendants’ decision to deny plaintiff a degree was based on purely financial considerations, or whether academic considerations were involved. More information is necessary in order to ascertain whether there was an implied contract between the parties and, if so, whether the parties satisfied their respective obligations under such implied agreement. If, however, defendants’ decision was in fact based upon plaintiffs academic performance, the action should have been brought as a proceeding under article 78, subject to review solely for arbitrariness or irrationality (see Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413-414 [1980]), and would be untimely.

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

Order modified, etc.


text:
    Yasmin Kabir, Respondent, v County of Monroe et al., Appellants.
    Submitted June 7, 2010;
    decided June 24, 2010
   Motion by County of Suffolk for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Simon Lorne et al., Appellants, v 50 Madison Avenue LLC et al., Defendants, and Board of Managers et al., Respondents.
    Submitted April 12, 2010;
    decided June 24, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Reynaldo Concepcion, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   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 Michael Duhs, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   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 Terrell Gilford, Appellant.
    Submitted June 21, 2010;
    decided June 24, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Raymond B. Grimm, Respondent.
    Submitted June 14, 2010;
    decided June 24, 2010
   Motion for assignment of counsel granted and Jan Perlin, Esq., PO Box 134, Oak Hill, New York 12460 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v David M. Harnett, Appellant.
    Submitted June 7, 2010;
    decided June 24, 2010
   Motion for assignment of counsel granted and Brian M. Callahan, Esq., 4886 Western Turnpike, PO Box 100, Duanesburg, New York 12056 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Edwin Jorge, Appellant.
    Submitted June 7, 2010;
    decided June 24, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Ronald Mack, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   Motion to enlarge the record on appeal herein granted.


text:
    The People of the State of New York, Respondent, v Steven Scott, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   Motion for assignment of counsel granted and Paul J. Connolly, Esq., 2 Wedge Road, Delmar, New York 12207 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth Stepter, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Carlos Ventura, Appellant.
    Submitted June 14, 2010;
    decided June 24, 2010
   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:
    In the Matter of James Riches et al., Appellants, v New York City Council et al., Respondents.
    Decided June 24, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law (CPLR 5601 [a]).


text:
    Stonebridge Capital, LLC, Appellant, v Nomura International PLC, Respondent, et al., Defendants. Nomura International PLC, Counterclaim Plaintiff-Respondent, v Stonebridge Capital, LLC, et al., Counterclaim Defendants, and J.R. 1042 Investor, LLC, et al., Counterclaim Defendants-Appellants.
    Submitted March 8, 2010;
    decided June 24, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Claude Nelson Stuart, a Suspended Attorney.
    Decided June 24, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Injah E. Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted May 10, 2010;
    decided June 24, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


author: Smith, J. (dissenting).

text:
    [933 NE2d 200, 906 NYS2d 802]
    The People of the State of New York, Respondent, v Brian S. King, Appellant.
    Argued June 3, 2010;
    decided June 29, 2010

      APPEARANCES OF COUNSEL

      Michael M. Mohun, Cowlesville, for appellant.

      Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of County Court should be reversed, defendant’s motion to suppress granted and the case remitted to Batavia Town Court for further proceedings on the accusatory instruments.

County Court’s findings that “the police had no cause to initially stop” defendant and that “it cannot be concluded that defendant stopped voluntarily” have support in the record and are therefore beyond this Court’s further review. Accordingly, any evidence flowing from the stop must be suppressed.

Smith, J. (dissenting).

The majority’s three-sentence memorandum makes it appear as though deference to findings below that are “beyond this Court’s further review” requires us to reverse the lower courts’ rulings. But those findings are quoted out of context. I think the facts found below require us to affirm.

Defendant and a friend were traveling together on their motorcycles. A state police officer saw that the friend’s motorcycle had a burned out tail light, and flashed his emergency lights. Presumably neither driver could tell which motorcycle the officer was flashing his lights at, but when defendant’s friend turned onto another street, the officer followed him; defendant stopped where he was, apparently waiting to see what happened to his friend.

Both the officer and defendant’s friend returned to where defendant was waiting, and defendant remained in that area for some time, without being told either to stay or to leave. The police officer was joined by others, one of whom noticed that defendant appeared to be intoxicated. Defendant was asked to perform several sobriety tests, which confirmed his intoxication, and he was arrested.

As far as I can deduce from the majority memorandum, these facts are the basis for its conclusion that “any evidence flowing from the stop must be suppressed” (majority op at 737). The conclusion makes no sense to me. I see no indication in this record that any police officer did anything wrong—and indeed, County Court found that “the police officer committed nothing illegal or unreasonable” in stopping defendant’s friend’s motorcycle. County Court did, as the majority says, find that defendant did not stop “voluntarily,” but it clearly did not find that the officer intentionally detained him. At most, the stop was involuntary in the same way that it would be if defendant had been stopped by a flat tire—or, to use County Court’s own analogy, if he had been a passenger in a motor vehicle that was stopped because of a traffic infraction by the driver. No right of defendant’s was violated, and there is no reason to suppress the evidence against him.

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

Order reversed, etc.


text:
    [934 NE2d 309, 907 NYS2d 740]
    The People of the State of New York, Respondent, v Rahjeem Williams, Appellant.
    Argued June 3, 2010;
    decided June 29, 2010
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Rosemary Herbert and Richard M. Greenberg of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Noah J. Chamoy and Joseph N Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In this buy-and-bust case, defendant Rahjeem Williams was arrested and charged with various drug-related offenses. A jury subsequently convicted him of third-degree criminal possession of a controlled substance (Penal Law § 220.16), and hung on the second count submitted to it, third-degree criminal sale of a controlled substance (Penal Law § 220.39). Defendant, who was sentenced to a term of 44/2 to 9 years of imprisonment, argues that he did not waive his Antommarchi right to be present at conferences with potential jurors to explore issues of possible bias (see People v Antommarchi, 80 NY2d 247 [1992]; see also People v Vargas, 88 NY2d 363, 375-376 [1996] [“(T)he right to be present at sidebars . . . may be waived by a voluntary, knowing and intelligent choice” (citations omitted)]).

During the pretrial suppression hearing, defense counsel stated that he had described defendant’s Antommarchi rights to him. The trial judge immediately followed up by telling defendant that “[i]f we ever have any sidebars or if at any time I’m talking to both of the attorneys[,] you have an absolute right to be present at that time[.] I’m sure that your counsel has explained that to you.” Further, defendant was in the courtroom when the trial judge outlined the procedures that he intended to use during jury selection, and watched on the several occasions when the judge and both counsel retired to the jury deliberation room with prospective jurors. Thus, defendant was certainly aware when prospective jurors were being questioned in the deliberation room about possible bias, and never objected or requested to participate. Moreover, the judge reminded defendant of his right to be present at such conferences. At one juncture, he advised defendant, as a “continuing point of information,” that if “[a]t any time” he discussed any topic with counsel, defendant was “more than welcome[ ] to be present,” adding that he was “sure that [was] . . . something” that defendant had discussed with his attorney. Defendant responded “Correct.” As the Appellate Division remarked, “[w]hile the [trial] court articulated a right to be present that was broader than the law requires, its statement necessarily included the rights guaranteed by Antommarchi, and the surrounding circumstances support the inference that defendant understood and waived those rights” (61 AD3d 470, 471 [1st Dept 2009]). The better practice, of course, is to note that Antommarchi rights relate to the right to be present at conferences with potential jurors regarding issues of bias; however, we agree with the Appellate Division that, on this record, defendant waived his right to be present at such conferences.

Chief Judge Lippman and Judges Cipabick, Gkaffeo, Read, Smith, Pigott and Jones concur.

Order affirmed in a memorandum.


text:
    Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C., et al., Appellants, v Niagara County Sewer District No. 1 et al., Respondents.
    Submitted May 10, 2010;
    decided June 29, 2010
   Motion, insofar as it seeks leave to appeal against defendant Niagara County, 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, insofar as it seeks leave to appeal against defendant Niagara County Sewer District No. 1, denied.


text:
    In the Matter of Soheil Darvish, Respondent, v Haslacha, Inc., et al., Respondents, and David Lavian, Appellant.
    Submitted May 10, 2010;
    decided June 29, 2010
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    Mahmoud Diarassouba, Respondent, v William P. Urban et al., Defendants, and Spencer Lubin et al., Appellants.
    Submitted May 24, 2010;
    decided June 29, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Andre Dolberry, Also Known as Andre Duberry, Appellant, v State of New York, Respondent.
    Decided June 29, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Nathaniel Dove, Jr., Respondent, v Katrice M. Rose, Appellant, et al., Respondent.
    Submitted May 10, 2010;
    decided June 29, 2010
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed Family Court’s order settling the record on appeal, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Johnny Downs, Appellant, v New York State Executive Department et al., Respondents.
    Submitted May 17, 2010;
    decided June 29, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Stephen Downs, Appellant, v Town of Guilderland et al., Respondents.
    Decided June 29, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Hamlet on Olde Oyster Bay Home Owners Association, Inc., et al., Appellants, v Holiday Organization, Inc., et al., Respondents, et al., Defendants.
    Submitted April 19, 2010;
    decided June 29, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Patricia Horst, Respondent, v Owen Lloyd Brown, Appellant.
    Decided June 29, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Constantines L. Jackson, Appellant, v State of New York, Respondent.
    Submitted May 17, 2010;
    decided June 29, 2010
   Motion for reconsideration of this Court’s April 6, 2010 dismissal order denied [see 14 NY3d 825 (2010)].


text:
    LT Propco, LLC, Appellant, v Carousel Center Company, L.P, et al., Respondents. (And Other Actions.)
    Submitted May 10, 2010;
    decided June 29, 2010
   Motion, insofar as it seeks leave to appeal as against defendant Carousel Center Company, L.P, dismissed as untimely; motion, insofar as it seeks leave to appeal as against defendant City of Syracuse Industrial Development Agency, denied.

Judge Pigott taking no part.


text:
    LT Propco, LLC, Appellant, v Carousel Center Company, L.P, et al., Respondents. (And Other Actions.)
    Submitted May 17, 2010;
    decided June 29, 2010
   Motion for leave to appeal dismissed upon the ground that appellant has moved in the Court of Appeals for leave to appeal

from the same Appellate Division orders (see 15 NY3d 743 [2010] [decided herewith]).

Judge Pigott taking no part.


text:
    Jennifer Moore et al., Appellants, v City of New York et al., Respondents.
    Decided June 29, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Leon Newman et al., Appellants, et al., Petitioner, v Eric R. Dinallo, Superintendent, Insurance Department of the State of New York, Respondent.
    Submitted May 24, 2010;
    decided June 29, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 14 NY3d 708 (2010)].


text:
    Penguin Group (USA) Inc., Appellant, v American Buddha, Respondent.
    Decided June 29, 2010
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York ex rel. Chaymarl Cormier, Appellant, v James T. Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted May 17, 2010;
    decided June 29, 2010
   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 [b]; CPLR 5602).


text:
    The People of the State of New York ex rel. Johnathan Johnson, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted May 17, 2010;
    decided June 29, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 707 (2010)].


text:
    The People of the State of New York ex rel. Scott Mebane, Appellant, v Darwin E. LaClair, as Superintendent of Franklin Correctional Facility, Respondent.
    Submitted May 17, 2010;
    decided June 29, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601). Motion for leave to appeal denied.


text:
    Randy Ratajczak, as Administrator of the Estate of Mary Ratajczak, Respondent, v Mahmood Yoonessi, M.D., et al., Appellants. (And a Third-Party Action.)
    Submitted May 17, 2010;
    decided June 29, 2010
   Motion for reargument etc. denied [see 14 NY3d 795 (2010)]. Motion, insofar as it seeks disqualification of Chief Judge Lippman, dismissed upon the ground that the Court of Appeals has no authority to entertain the motion made on nonstatutory grounds. The application seeking recusal is referred to the Chief Judge for his individual consideration and determination. Chief Judge Lippman denies the referred motion for recusal.


text:
    Western New York Land Conservancy, Inc., Respondent, v John S. Cullen et al., Appellants.
    Submitted May 3, 2010;
    decided June 29, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 705 (2010)].


text:
    [933 NE2d 207, 906 NYS2d 808]
    In the Matter of Capital Newspapers Division of the Hearst Corporation et al., Appellants, v City of Albany et al., Respondents.
    Argued June 1, 2010;
    decided July 1, 2010

      APPEARANCES OF COUNSEL

      Office of General Counsel, Hearst Corporation, New York City (Jonathan R. Donnellan, Eve B. Burton and Eva M. Saketkoo), for appellants.

      John J. Reilly, Corporation Counsel, Albany (Jeffery V. Jamison of counsel), for City of Albany, respondent.

      Office of General Counsel, New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, Albany
      (Matthew E Ryan and Ennio J. Corsi of counsel), for Albany Police Officers Union, Local 2841 of New York State Law Enforcement Officers Union, District Council 82, AFSCME, AFL-CIO, respondent.

      David E. McCraw, New York City, Jacob E Goldstein, Sabin, Bermant & Gould LLP (Patricia A. Clark of counsel), Karen Kaiser, Assistant General Counsel, Associated Press, Anne B. Carroll, Deputy General Counsel, Dailey News, L.P., Barbara TV Wall, Associate General Counsel, Gannett Co., Inc., McLean, Virginia, Beth R. Lobel, New York City, Michael G. Cameron, Assistant General Counsel, News America Incorporated, for Advance Publications, Inc., and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, in accordance with this memorandum and, as so modified, affirmed.

Respondent City of Albany failed to meet its burden of demonstrating that the gun tags are “personnel records” under Civil Rights Law § 50-a. The Police Chiefs conclusory affidavit did not establish that the documents were “used to evaluate performance toward continued employment or promotion,” as required by that statute (Civil Rights Law § 50-a [1]). Consequently, the unredacted gun tags do not fall squarely within a statutory exemption and are subject to disclosure under the Freedom of Information Law (FOIL) (see Public Officers Law § 87 [2]). Petitioners’ claim that Supreme Court abused its discretion in denying counsel fees is without merit.

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

Order modified, etc.


text:
    [933 NE2d 207, 906 NYS2d 809]
    The People of the State of New York, Respondent, v James McRae, Appellant.
    Decided July 1, 2010

      APPEARANCES OF COUNSEL

      James McRae, appellant pro se.

      Francis D. Phillips, II, District Attorney, Goshen (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Because the accomplice testimony was corroborated with independent evidence as well as evidence that “harmonized” with the accomplice testimony, the evidence was legally sufficient to support defendant’s convictions (see People v Reome, 15 NY3d 188, 194 [2010]). Next, the trial judge did not abuse his discretion when denying defendant’s eve-of-trial application to relieve his second court-appointed attorney and to appoint substitute counsel. Finally, defendant argues that the trial judge’s failure to properly instruct the jury on the affirmative defense to Penal Law § 160.15 (4) affected the entire verdict. This claim is unpreserved for our review.

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

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


text:
    [933 NE2d 208, 906 NYS2d 809]
    Kristopher Kohl, Appellant, v American Transit Insurance Company, Respondent.
    Argued June 3, 2010;
    decided July 1, 2010
    APPEARANCES OF COUNSEL

      David Katz & Associates, LLP, New York City (Salvatore J. Sciangula of counsel), for appellant.

      Marjorie E. Bornes, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

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

Kristopher Kohl, a passenger in a taxicab, was sued by a bicyclist who claimed that he was injured when Kohl opened the taxi’s door. The Appellate Division correctly held that Kohl was not insured under the taxi owner’s policy of automobile liability insurance. The policy says that it “shall inure to the benefit of any person legally operating” the insured vehicle in the business of the insured. The word “operating” cannot be stretched to include a passenger’s riding in the car or opening the door.

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

Order affirmed, with costs, in a memorandum.


text:
    [933 NE2d 751, 907 NYS2d 152]
    The People of the State of New York, Respondent, v David Diaz, Appellant.
    Decided July 1, 2010

      APPEARANCES OF COUNSEL

      David Segal, New York City, for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the trial evidence was sufficient to allow a jury to infer both that defendant exercised dominion and control over the van from which police recovered over four ounces of crack cocaine, and that defendant had knowledge that the drugs were secreted in a hidden compartment beneath the van’s air bag cover (Penal Law § 220.18 [1]). Defendant’s knowledge could be inferred from his sole possession of the van at the time the contraband was seized, his

possession of nine unused crack pipes in the van’s glove compartment, and his inconsistent and implausible accounts of his relationship to the van (People v Reisman, 29 NY2d 278, 285 [1971] [“Knowledge (of the presence of illegal drugs) may be shown circumstantially by conduct or directly by admission, or indirectly by contradictory statements from which guilt may be inferred”]).

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

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


text:
    In the Matter of Amirah Nicole A. and Others, Children Alleged to be Permanently Neglected. Tamika R., Appellant; Sabre A., Respondent, et al., Respondents.
    Submitted June 1, 2010;
    decided July 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Astoria Federal Savings & Loan Association/Fidelity New York FSB, Respondent, v Marilyn Lane, Appellant, and Frances Turner et al., Intervenors-Respondents.
    Submitted June 1, 2010;
    decided July 1, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 880 (2010)]. Cross motions for the imposition of sanctions denied.


text:
    Aurora Loan Services, Respondent, v Philip Grant, Appellant, et al., Defendants.
    Submitted May 24, 2010;
    decided July 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Synthia China Blast, Appellant.
    Submitted June 1, 2010;
    decided July 1, 2010
   Motion, insofar as it seeks leave to appeal from the January 2010 Supreme Court order, dismissed upon the ground that it does not lie (see CPLR 5602 [a]); motion, insofar as it seeks leave to appeal from the April 2010 Appellate Division order, dismissed upon the ground that it does not finally determine the proceeding within the meaning of the Constitution.


text:
    Juliette DeJoie Cadichon et al, Appellants, v Thomas Facelle, M.D., et al., Respondents.
    Decided July 1, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Joan Coccia, Respondent, v Thomas F. Liotti, Appellant.
    Submitted May 24, 2010;
    decided July 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted June 21, 2010;
    decided July 1, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 14 NY3d 576 (2010)].


text:
    In the Matter of the Estate of Louise Wright, Appellant, v City of Rochester et al., Respondents, et al., Defendants.
    Submitted June 7, 2010;
    decided July 1, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Shawn Green, Appellant, v State of New York, Respondent.
    Submitted May 24, 2010;
    decided July 1, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 793 (2010)].


text:
    George Heath, Appellant, v John S. Wojtowicz et al., Respondents.
    Submitted May 24, 2010;
    decided July 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Chief Judge Lippman taking no part.


text:
    In the Matter of Michael Hoffler, Appellant, v Robert M. Jacon, as Judge of the County Court of Rensselaer County, et al., Respondents.
    Decided July 1, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Life Receivables Trust, Plaintiff, v Goshawk Syndicate 102 at Lloyd’s, Respondent, and Life Settlement Corporation, Doing Business as Peach Tree Life Settlements, Appellant.
    Submitted June 14, 2010;
    decided July 1, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements (see 14 NY3d 850 (2010)]. Motion for a stay dismissed as academic.


text:
    In the Matter of the Claim of David S. Malone, Appellant, v VRD Decorating et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 7, 2010;
    decided July 1, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 825 (2010)].


text:
    New York State Psychiatric Association, Inc., et al., Respondents, v New York State Department of Health, Appellant.
    Decided July 1, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    Santorini Equities, Inc., Appellant, v Francisco Picarra et al., Respondents.
    Submitted June 7, 2010;
    decided July 1, 2010
   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 appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered on an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).


text:
    Iqbal Singh, Appellant, v City of New York Division of Housing Preservation and Development, Respondent.
    Submitted June 1, 2010;
    decided July 1, 2010
   Motion for reargument denied [see 14 NY3d 858 (2010)].


text:
    In the Matter of the Estate of Paula M. Venezia, Deceased. Joanne Zaccaria, Respondent; Edward Hayes Pennington III, Appellant.
    Submitted June 7, 2010;
    decided July 1, 2010
   Motion for a stay dismissed as academic.


text:
    In the Matter of Everett Williams, Appellant, v New York State Division of Parole, Respondent.
    Decided July 1, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Enni Yarleque, Appellant, v Sally Lou, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 7, 2010;
    decided July 1, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Oscar Cintron, Appellant, v Judith A. Calogero, as Commissioner of the Division of Housing and Community Renewal of the State of New York, Respondent.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by Met Council, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Griffith Oil Company, Inc., et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, Pa., Appellant, et al., Defendants.
    Submitted August 9, 2010;

    decided August 26, 2010
   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. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Sylvie Grimm, Respondent, v State of New York Division of Housing and Community Renewal Office of Rent Administration, Appellant, and 151 Owners Corf., Intervenor-Appellant.
    Submitted July 26, 2010;
    decided August 26, 2010
   Motion by Rent Stabilization Association of New York City, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Sylvie Grimm, Respondent, v State of New York Division of Housing and Community Renewal Office of Rent Administration, Appellant, and 151 Owners Corp., Intervenor-Appellant.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by Community Housing Improvement Program of New York, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Kathleen K., a Child Alleged to be Permanently Neglected. Suffolk County Department of Social Services, Respondent; Steven K., Appellant. (Proceeding No. 1.) In the Matter of Rachel K, a Child Alleged to be Permanently Neglected. Suffolk County Department of Social Services, Respondent; Steven K., Appellant. (Proceeding No. 2.)
    Submitted July 19, 2010;
    decided August 26, 2010
   Motion for poor person relief granted.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by Professor William Wilson Bratton et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 9, 2010;
    decided August 26, 2010
   Motion by Anthony Paduano for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by DRI-The Voice of the Defense Bar for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by Professor M. Todd Henderson for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by Securities Industry and Financial Markets Association for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by National Association of Bankruptcy Trustees for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Robert P. Meegan, Jr., Individually and as President of Buffalo Police Benevolent Association, et al., Respondents, v Byron W. Brown, Mayor of City of Buffalo, et al., Appellants. (Proceeding No. 1.) In the Matter of Joseph E. Foley, Individually and as President of Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC, et al., Respondents, v Byron W. Brown, Mayor of City of Buffalo, et al., Appellants. (Proceeding No. 2.) Buffalo Teachers Federation, Inc., NYSUT, et al., Respondents, v Buffalo Board of Education for City School District of City of Buffalo et al., Appellants. (Action No. 1.)
    Submitted August 9, 2010;
    decided August 26, 2010
   Motion by New York State School Boards Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of New York Charter School Association et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, Appellant. (Proceeding No. 1.) In the Matter of Foundation for a Greater Opportunity et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, et al., Appellants. (Proceeding No. 2.)
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of New York Charter School Association et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, Appellant. (Proceeding No. 1.) In the Matter of Foundation for a Greater Opportunity et al., Respondents, v M. Patricia Smith, as Commissioner of Labor, et al., Appellants. (Proceeding No. 2.)
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by New York City Charter School Center for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Emar Abrams, Appellant.
    Submitted July 19, 2010;
    decided August 26, 2010
   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 Allen Albergotti, Appellant.
    Submitted June 28, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Tremaine Alexander, Appellant.
    Submitted July 6, 2010;
    decided August 26, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Lamont Beasley, Appellant.
    Submitted July 19, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted only to the extent that Jeremy Gutman, Esq., 233 Broadway, Suite 2707, New York, NY 10279 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.


text:
    The People of the State of New York, Respondent, v Maurice Benston, Appellant.
    Submitted June 28, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ernest Brannon, Appellant.
    Submitted July 6, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Raymond Brun, Appellant.
    Submitted July 26, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Norman Trabulus, Esq., 345 7th Avenue, 21st Floor, New York, NY 10001 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Christian Bueno, Appellant.
    Submitted August 16, 2010;
    decided August 26, 2010
   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, Appellant, v Raymond Clyde, Respondent.
    Submitted June 28, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and David P Elkovitch, Esq., 199 Genesee Street, Auburn, New York 13021 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Alexander G. Champe, Appellant.
    Submitted August 9, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Robert C. Mitchell, Esq., Legal Aid Society of Suffolk County, Inc., Arthur M. Cromarty Court Complex, 300 Center Drive, PO Box 1697, Riverhead, New York 11901 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jose Fernandez, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Rodriguece Garcia, Also Known as Carlos Rodriguez, Appellant.
    Submitted July 26, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jeffrey D. Gibson, Appellant.
    Submitted August 23, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 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 Kenneth Hayes, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Gregory Hill, Appellant.
    Submitted August 23, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 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 Alicia Lewie, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Matthew C. Hug, Esq., Rensselaer Technology Park, 105 Jordan Road, Troy, New York 12180 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Roy Martin, Also Known as Reality Martin, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   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 Juan Medina, Appellant.
    Submitted August 9, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Pedro Melendez, Appellant.
    Submitted July 6, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dean Pacquette, Appellant.
    Submitted August 23, 2010;
    decided August 26, 2010
   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 John Parisi, Appellant.
    Submitted August 16, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Robert C. Mitchell, Esq., Legal Aid Society of Suffolk County, Inc., Arthur M. Cromarty Court Complex, 300 Center Drive, PO Box 1697, Riverhead, New York 11901 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ermal Qoshja, Appellant.
    Submitted August 16, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Fletcher B. Quiller, Appellant.
    Submitted June 28, 2010;
    decided August 26, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Carlos Reyes, Respondent.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the respondent on the appeal herein.


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


text:
    The People of the State of New York, Respondent, v Darryl Robinson, Appellant.
    Submitted July 6, 2010;
    decided August 26, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Terrance D. Robinson, Appellant.
    Submitted July 26, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Bruce E. Knoll, Esq., PO Box 2072, Empire State Plaza Station, Albany, New York 12220 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Isidro Rodriguez, Appellant.
    Submitted August 23, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, ,New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Kenneth Stepter, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for an order pursuant to CPLR 1012 (b) (2) permitting movant City of New York to file a brief and participate in the appeal granted in each respect.


text:
    The People of the State of New York, Respondent, v Bruce Sweeper, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Daniel Thomas, Appellant.
    Submitted July 19, 2010;
    decided August 26, 2010
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael D. Wesley, Appellant.
    Submitted July 12, 2010;
    decided August 26, 2010
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Blake Wingate, Appellant.
    Submitted August 2, 2010;
    decided August 26, 2010
   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:
    Kim Ragland, Appellant, v J.F. Bellnier, as Superintendent of Upstate Correctional Facility, Respondent.
    Submitted June 14, 2010;
    decided August 26, 2010
   Motion to vacate this Court’s May 7, 2010 dismissal order granted [see 14 NY3d 884 (2010)]. On the Court’s own motion, appeal transferred, without costs, 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:
    Teachers’ Retirement System of Louisiana et al., Appellants, v PricewaterhouseCoopers LLP, Respondent. Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by American Institute of Certified Public Accountants et al. for leave to file a brief amici curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Teachers’ Retirement System of Louisiana et al., Appellants, v PricewaterhouseCoopers LLP, Respondent. Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Submitted August 2, 2010;
    decided August 26, 2010
   Motion by the Center for Audit Quality for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    [934 NE2d 876, 908 NYS2d 143]
    Thomas P. Cashel, Plaintiff, v Francine Cashel, Defendant. Thomas P. Cashel, Appellant, v Francine Cashel et al., Defendants, and Mortgage Electronic Registration Systems, Inc., et al., Respondents. (And Another Action.)
    Decided August 31, 2010

      APPEARANCES OF COUNSEL

      Saltzman Chetkof & Rosenberg, LLP, Garden City (Michael Chetkof of counsel), for appellant.

      Solomon & Siris, P.C., Uniondale (Michael J. Siris of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the motion by defendants Fremont Investment & Loan and Mortgage Electronic Registration Systems, Inc. for summary judgment dismissing the first cause of action against them denied.

Issues of fact exist with respect to whether plaintiff Thomas E Cashel possessed the requisite “knowledge of material facts” concerning the allegedly binding deed (Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 131 [1990]). Although plaintiff admitted to receiving certain monies from Francine Cashel, he alleged that she “advis[ed] him that she had received these funds from the proceeds of the mortgage loan,” which he had authorized her to obtain as his agent. Moreover, as argued by plaintiff, his receipt of these monies does not prove that he had any prior knowledge of Francine’s alleged forgery of the deed, especially considering that he authorized her to obtain a mortgage on the property. In addition, plaintiff claimed that he had not learned of the alleged forgery until June 2004 and that he filed a notice of pendency on the property in August 2004—several months before.defendant Fremont Investment & Loan issued its loan to Francine. Thus, the Court cannot conclude, as a matter of law, that plaintiff ratified the deed.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Eigott 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, insofar as appealed from, reversed, etc.


text:
    [934 NE2d 877, 908 NYS2d 144]
    Sapphire Simmons, an Infant, by Her Mother and Natural Guardian, Rosemary Simmons, et al., Appellants, v Vito Sacchetti et al., Respondents, et al., Defendant.
    Decided August 31, 2010

      APPEARANCES OF COUNSEL

      Law Offices of Arnold E. DiJoseph, P.C., New York City (Arnold E. DiJoseph, III, of counsel), for appellants.

      Law Office of Max W. Gershweir, New York City (Max W. Gershweir of counsel), for Vito Sacchetti and another, respondents.

      Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn of counsel), for Ambassador Fuel and Oil Burner Corp., respondent.

      Wilson, Elser, Moskowitz, Edelman & Dicker LLP, White Plains (Debra A. Adler of counsel), for F&B Fuel Oil Co., Inc., respondent.

      Stuart W. Lawrence, New York City, for Met Council, Inc. and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying the motion of defendants Vito Sacchetti and TMS Management Company for summary judgment in the entirety and the motion of defendant Ambassador Fuel and Oil Burner Corp. insofar as it sought to dismiss the cross claims against it and, as so modified, affirmed.

Triable issues of fact exist as to whether defendants Sacchetti and TMS negligently failed to maintain the apartment building’s boiler and domestic hot water system in a reasonably safe condition and whether the negligence of those defendants proximately caused the infant plaintiffs injuries. Issues of fact also exist as to whether the conduct of the infant plaintiff’s mother and brother constituted a superseding cause of her injuries. However, the record establishes as a matter of law that defendant Ambassador did not violate any duty owed to plaintiffs.

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 NYCKR 500.11), order modified, etc.


text:
    City of New York, Respondent, v Golden Feather Smoke Shop, Inc., et al., Defendants, and Monique's Smoke Shop et al., Appellants.
    Decided August 31, 2010
   Pursuant to the August 20, 2010 order of the United States Court of Appeals for the Second Circuit withdrawing its certification of questions accepted by the Court of Appeals on May 11, 2010 [see 14 NY3d 880 (2010)], certified questions marked withdrawn.

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


text:
    Fidelity National Title Insurance Company et al., Respondents, and Sheila Ferrari et al., Intervenors-Appellants, v Regent Abstract Services, Ltd., et al., Respondents. New York Life Insurance Company, Third-Party Defendant-Respondent.
    Submitted June 1, 2010;
    decided August 31, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637 [1973]).


text:
    Lexjac, LLC, et al., Respondents, v Julianne W. Beckerman et al., Appellants.
    Submitted June 1, 2010;
    decided August 31, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Anthony Marraccini, Appellant, v John Ryan et al., Respondents, et al., Defendants.
    Submitted June 1, 2010;
    decided August 31, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s motion for leave to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    In the Matter of Marvin Pollack, Appellant. State of New York et al., Respondents.
    Submitted June 14, 2010;
    decided August 31, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Gail Price, Appellant, v Southwest Airlines, Inc., Respondent.
    Submitted June 14, 2010;
    decided August 31, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 858 (2010)].


text:
    In the Matter of the Estate of Carolyn H. Renzi, Deceased. Phyllis Campanile Nicolella, as Executor of Carolyn H. Renzi, Deceased, Respondent; Thomas F. Campanile Jr., Appellant.
    Submitted June 14, 2010;
    decided August 31, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 708 (2010)]. Motion for poor person relief dismissed as academic.


text:
    David B. Sharpe, Respondent, v Joanne Raffer, Appellant.
    Submitted June 14, 2010;
    decided August 31, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the State of New York, Appellant, v Mustafa Rashid, Respondent.
    Submitted July 12, 2010;
    decided August 31, 2010
   Motion to vacate stay denied. Motion for a preference granted.