text:
    In the Matter of Victor Altheus DePonceau, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Decided February 15, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


source: Caselaw Access Project

license: Public Domain

text:
    Glacial Aggregates LLC, Respondent, v Town of Yorkshire, Appellant.
    Submitted November 22, 2010;
    decided February 15, 2011
   Motion to vacate the Court’s October 22, 2010 dismissal order granted [see 15 NY3d 891 (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.


text:
    In the Matter of Mikia H. and Another. Erie County Department of Social Services, Respondent; Monique K., Appellant. In the Matter of Noreon K. Erie County Department of Social Services, Respondent; Monique K., Appellant.
    Submitted December 13, 2010;
    decided February 15, 2011
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that affirmed the Family Court order denying a motion to vacate, dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Claim of Lester A. Peters, Appellant. Janus Elevator Products, Respondent; Commissioner of Labor, Respondent.
    Submitted January 18, 2011;
    decided February 15, 2011
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 950 (2010)].


text:
    S.M. Pires, Appellant, v Frota Oceanica Brasileira, S.A., Respondent, et al., Defendants.
    Submitted January 3, 2011;
    decided February 15, 2011
   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:
    S.M. Pires, Appellant, v Frota Oceanica Brasileira, S.A., Respondent, et al., Defendants.
    Submitted December 6, 2010;
    decided February 15, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as pertains to the motion in that Court for the imposition of sanctions, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the order do not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    James Rector, Appellant, v City of New York et al., Respondents.
    Submitted December 20, 2010;
    decided February 15, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellant’s motion 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 denied.


text:
    In the Matter of Injah Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted December 20, 2010;
    decided February 15, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


author: Memorandum.

text:
    [944 NE2d 650, 919 NYS2d 113]
    Patriot Exploration, LLC, et al., Respondents, v Thompson & Knight LLP, Appellant.
    Decided February 17, 2011

      APPEARANCES OF COUNSEL

      Thompson & Knight LLP, New York City (E. Michael Sheehan of counsel), for appellant.

      Bernkopf Goodman, LLP (Peter B. McGlynn, of the Massachusetts bar, admitted pro hac vice, of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed with costs, and defendant’s motion to dismiss the complaint granted on the conditions that defendant (1) consent to deeming the filing date of the Texas action to be as of October 27, 2008, the date respondents filed this action in New York, and (2) waive any statute of limitations defense in the Texas action. The certified question should be answered in the negative.

It is apparent from the record that defendant’s forum non conveniens motion was denied on the basis of Supreme Court’s mistaken understanding that plaintiffs would face a statute of limitations barrier to suit in an alternative forum. In fact, plaintiffs failed to show that any such barrier exists, and in any event, the issue can be dealt with by the imposition of conditions to which defendant has consented.

The Appellate Division majority abused its discretion in finding that traditional forum non conveniens factors warranted denial of the motion (Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478 [1984]). This case involves the alleged malpractice by Texas lawyers representing Alaskan clients, whose principal places of business are in Connecticut, in a transaction with Texas companies that involves land in Texas. Further, the documentary evidence is located in defendant’s Texas office, as are the attorneys who allegedly committed the malpractice and most of the potential witnesses.

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

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


author: Smith, J. (concurring).

text:
    [944 NE2d 650, 919 NYS2d 114]
    In the Matter of Uptown Holdings, LLC, et al., Appellants, v City of New York et al., Respondents.
    Decided February 17, 2011
    APPEARANCES OF COUNSEL

      Feerick Lynch MacCartney, PLLC, South Nyack (J. David MacCartney, Jr., of counsel), for appellants.

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

Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones. Judge Smith concurs in an opinion.

Smith, J. (concurring).

I agree that no substantial constitutional issue is presented, because, as the concurring opinion in the Appellate Division points out, this case is controlled by Matter of Goldstein v New York State Urban Dev. Corp. (13 NY3d 511 [2009]) and Matter of Kaur v New York State Urban Dev. Corp. (15 NY3d 235 [2010]). I think it necessary to point out, however, that our dismissal of this appeal does not imply endorsement of the Appellate Division majority opinion, which may be read to suggest that Kelo v New London (545 US 469 [2005]) should be followed by New York courts interpreting the New York Constitution (see Goldstein, 13 NY3d at 546 [Smith, J., dissenting] [“The good news from today’s decision is that our Court has not followed the lead of the United States Supreme Court in rendering the ‘public use’ restriction on the Eminent Domain Clause virtually meaningless”]).

Appeal dismissed, etc.


text:
    In the Matter of Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted February 14, 2011;
    decided February 17, 2011
   Motion by Chemung County Department of Social Services 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 Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted February 14, 2011;
    decided February 17, 2011
   Motion by Steuben County Department of Social Services 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 Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted February 14, 2011;
    decided February 17, 2011
   Motion by Lawyers for Children 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 American Airlines, Inc., Appellant, v New York City Tax Appeals Tribunal et al., Respondents.
    Decided February 17, 2011
   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 Anonymous, an Attorney and Counselor-at-Law, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Submitted January 31, 2011;
    decided February 17, 2011
   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:
    Leon Casper, Appellant, v Cushman & Wakefield, Respondent.
    Submitted December 20, 2010;
    decided February 17, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dashawn W. and Others, Children Alleged to be Abused. Administration for Children’s Services, Respondent; Antoine N., Appellant, et al., Respondent.
    Submitted November 22, 2010;
    decided February 17, 2011
   Motion for leave to appeal dismissed upon the ground that simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al., Respondents, and Village of Johnson City, Appellant. (And Another Proceeding.)
    Submitted February 14, 2011;
    decided February 17, 2011
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Gilbert Lau, Appellant, v S&M Enterprises et al., Respondents.
    Submitted January 3, 2011;
    decided February 17, 2011
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of appellant’s motion for disqualification of respondents’ counsel, dismissed upon the ground that such part of the Appellate Division order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Appellant, v Robert Alonso and Emilia Alonso, Respondents.
    Submitted February 14, 2011;
    decided February 17, 2011
   Motion by District Attorneys Association of the State of New York 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:
    The People of the State of New York ex rel. Shaun McManus, Appellant, v Martin F. Horn, Commissioner of the New York City Department of Corrections, Respondent.
    Submitted December 6, 2010;
    decided February 17, 2011
   Motion for leave to appeal granted. Motion for poor person relief granted.


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

text:
    [944 NE2d 1130, 919 NYS2d 491]
    The People of the State of New York, Respondent, v Michael Edward Prindle, Appellant.
    Argued January 5, 2011;
    decided February 22, 2011

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Drew R. DuBrin of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified by reducing defendant’s conviction of depraved indifference murder (Penal Law § 125.25 [2]) to manslaughter in the second degree (Penal Law § 125.15 [1]), and by remitting the case to Supreme Court for resentencing and, as so modified, affirmed.

On October 9, 2004, defendant and a separately charged individual were in the process of stealing two snowplows located behind a business in Brighton, New York when police officers responded to the scene. Defendant immediately jumped into the driver’s seat of his van while his partner sat on the passenger side. Defendant sped away and a police chase ensued, ultimately resulting in defendant smashing his van into another vehicle and killing a passenger therein.

At the conclusion of the People’s case, defendant moved for a trial order of dismissal. He argued that “there has been insufficient evidence to demonstrate a depraved indifference reckless conduct on the part of [defendant].” Supreme Court denied the motion. Defendant renewed his motion at the close of trial, which the court likewise denied.

Supreme Court submitted the case to the jury and instructed it on both the elements of depraved indifference murder and the lesser included offense of second degree manslaughter. In its charge, the court explained that, to find defendant guilty of depraved indifference murder, the jury would have to find,

“under circumstances evincing a depraved indifference to human life, he . . . recklessly engage[d] in conduct which create[d] a grave risk of death to another person and thereby cause[d] the death of that person . . .
“[W]hen conduct is engaged in recklessly, under circumstances evincing a depraved indifference to human life, the law regards that conduct ... as so serious, so egregious as to be the equivalent of intentional conduct. Conduct evincing a depraved indifference to human life must be imminently dangerous and present a very high risk of death. It is conduct which is so wanton, so deficient in moral sense and concern, so devoid of regard for the life or lives of others as to equal in blameworthiness intentional conduct which would produce the same result.
“In determining whether a person’s conduct evinced a depraved indifference to human life, a jury would have to decide whether the circumstances surrounding that conduct, when objectively viewed, made the conduct so uncaring, so callous, so dangerous and so inhuman as to demonstrate an attitude of total and utter disregard for the life of the person or persons in danger.”

Defendant made no objection to the court’s charge nor to subsequent instructions given to the jury resulting from juror inquiries.

On appeal, defendant concedes that the evidence sustains a conviction for second degree manslaughter, but disputes the legal sufficiency of his depraved indifference murder conviction. When engaging in legal sufficiency review, we generally measure the evidence against the jury charge given without objection or exception (see People v Ford, 11 NY3d 875, 878 [2008]; People v Sala, 95 NY2d 254, 260 [2000]). Supreme Court tailored its jury charge based on the standard set forth in People v Register (60 NY2d 270 [1983]), which, at the time of defendant’s trial, had not yet been explicitly overruled (see e.g. People v Suarez, 6 NY3d 202 [2005]). The Register standard that “depraved [indifference] murder is distinguishable from manslaughter, not by the mental element involved but by the objective circumstances in which the act occurs” (60 NY2d at 278), however, was explicitly overruled by People v Feingold (7 NY3d 288 [2006]), where we held for the first time that “depraved indifference to human life is a culpable mental state” (7 NY3d at 294).

Defendant argues that, even though he did not object to the charge as given, his trial order of dismissal motion adequately anticipated and preserved his argument that the evidence at trial was legally insufficient under Feingold (see People v Jean-Baptiste, 11 NY3d 539, 542 [2008]). Without passing on defendant’s argument concerning the adequacy of his trial order of dismissal motion and simply applying Supreme Court’s charge as given without exception, we conclude that the evidence adduced at trial does not support the jury’s conclusion that defendant evinced a depraved indifference to human life (cf. People v Gomez, 65 NY2d 9, 12 [1985] [the defendant’s conviction for two counts of depraved indifference murder legally sufficient where, after striking two cars while driving at an excessive speed, the defendant drove onto a sidewalk, killed one child, refused to apply his brakes, and killed a second child]). Here, at most, the evidence adduced was legally sufficient to support a finding of reckless manslaughter.

We have considered defendant’s remaining arguments and find that they are without merit.

Pigott, J. (dissenting).

A young woman returning from a baby shower is dead because this defendant, who was concerned about being arrested for the theft of a $400 snowplow blade, led police on a 2½-to-4-mile chase from the Town of Brighton into the City of Rochester, running at least five red lights, repeatedly driving at high speeds and in the lanes of oncoming traffic before plowing into the rear driver’s side of the victim’s vehicle. She did not die immediately, however, arriving at the hospital in a comatose state with a severe head injury, broken ribs and a broken pelvis, succumbing to her injuries five days later. Because I disagree with the majority’s conclusions that such conduct did not amount to depraved indifference murder under the standard delineated in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), I dissent.

On the fateful day of October 9, 2004, the occupant of an apartment overlooking the parking lot of a window cleaning business in the Town of Brighton contacted police after observing defendant and his accomplice, Jeffrey Kells, lifting a snowplow blade into the back of a van. When Officer Brad Steve from the Brighton Police Department arrived, he observed defendant and Kells jumping into a van, which had a snowplow protruding from the rear. Officer Steve activated his fights and siren and entered the driveway. The van drove past his patrol car and sped toward the City of Rochester. The officer observed the van driving “erratically, increasing in speed, weaving inside the two lanes, [and] crossing over the double solid fine numerous times.”

As the van approached one major intersection, it increased its speed, weaved into the left hand passing lane and barreled through a red fight, causing the traffic with the right-of-way to come to a sudden stop. The van proceeded toward another major intersection near the Brighton/Rochester border. Officer Steve observed the van “again driving erratically, speeding, increasing speed, going around a double solid yellow fine” into oncoming traffic, nearly hitting other vehicles and causing them to swerve and/or stop. Rather than stopping, however, the van raced through another red fight at that intersection—where two major thoroughfares in the City of Rochester met—at approximately 65 miles per hour. In the interest of safety, the officer deactivated his fights and siren and called off the pursuit, but still followed the van at a safe distance. He also notified the Rochester Police Department of the van’s entry into the city limits.

As the van approached an Interstate overpass, still going 65 miles per hour, defendant’s “driving became worse,” with defendant driving the van in the oncoming lane of traffic the entire time, causing vehicles with the right-of-way to make evasive maneuvers or stop. The van crossed the overpass and turned onto local streets, reaching another heavily-trafficked thoroughfare. There, the van ran a third red fight and struck a truck in the intersection. The defendant nevertheless continued his flight.

Officer Steve, still following the van from what he described as a safe distance, described the traffic as “heavy.” The officer then observed the van, without braking, go through a fourth red fight at a major intersection; he testified that the van was “driving erratically, going around cars, crossing over a double yellow solid fine, causing cars to pull over.” He did not estimate the van’s speed, although he opined that it was going over the posted speed limit.

Officer Steve maintained visual contact as the van continued erratically at a high rate of speed through a fifth red fight. A vehicle, which had a green fight, was making a left turn at this intersection. That vehicle’s driver observed the van traveling over the double solid yellow line before it slammed into the rear driver’s side door. It was this vehicle in which the decedent was traveling. Defendant neither braked nor skidded, and the evidence established that defendant had adequate room to navigate around the vehicle. Defendant fled the scene and was apprehended days later; Kells was arrested trying to flee.

Defendant was charged with murder in the second degree, attempted grand larceny in the fourth degree and petit larceny and, after a jury trial, was convicted of all three. The Appellate Division affirmed.

A person is guilty of depraved indifference murder when, “[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]). As the majority notes, the jury charge given by the trial court was based on the standard set forth in Register, which, at the time of this trial in November 2005, had not been overruled. Defendant did not object to this charge, and therefore “the legal sufficiency of defendant’s conviction must be viewed in light of the court’s charge as given without exception” (People v Ford, 11 NY3d 875, 878 [2008], on remand 67 AD3d 543 [2009], lv denied 13 NY3d 938 [2010]). As a result, the Register standard informs the sufficiency analysis in this case.

Under Register, the depraved indifference to human life element is not a mental state but rather refers to “the factual setting in which the risk creating conduct must occur,” meaning that “the focus of the offense is not upon the subjective intent of the defendant . . . , but rather upon an objective assessment of the degree of risk presented by defendant’s reckless conduct” (Register, 60 NY2d at 276-277 [citations omitted]). Viewing the evidence in the light most favorable to the People, there is clearly a “valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion” that defendant was guilty of depraved indifference murder (see People v Williams, 84 NY2d 925, 926 [1994] [citations omitted]).

Each time defendant blasted through a red light, each time he drove into the oncoming lane of traffic, defendant had the opportunity to reassess his conduct and place society’s interests above his own. This he chose not to do, even when he collided with a pickup truck while running a red light a mere two intersections away from where the fatal incident occurred. The jury was presented with the following, uncontradicted proof: defendant led police on a chase through residential and business districts at speeds as high as 65 miles per hour, ran at least five red lights, repeatedly drove in the oncoming lane of traffic, and collided with one vehicle before the incident at issue occurred. Rather than stopping his van after this initial collision, however, defendant “doubled down” and continued through two more red lights, driving into oncoming traffic. The driver of the vehicle testified that she was “significantly into” her turn when she observed the van over the double yellow line and driving in her lane. Based on this uncontradicted proof, a jury could have reasonably concluded that defendant’s conduct was “so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy” as to render defendant as culpable as one whose conscious objective was to kill (People v Russell, 91 NY2d 280, 287 [1998]).

Contrary to the majority’s implication, this case is not factually distinct from People v Gomez (65 NY2d 9 [1985]). In that case, the defendant drove from a gas station into a city street at a speed of 40 miles per hour, struck a parked car and continued northbound weaving from lane to lane, striking the left side of a moving vehicle and mounting the curb of the sidewalk. The defendant drove the car partly on the sidewalk for a block and struck and killed his first victim, a boy on a bicycle. Despite his passenger’s pleading that he stop, the defendant accelerated his car and mounted the opposite sidewalk where a number of people were standing, eventually killing another child. In upholding the defendant’s conviction for depraved indifference murder relative to the first victim, this Court observed:

“As to the first murder count, defendant sped out of the gas station and entered traffic on a busy New York street at a speed in excess of 40 miles per hour. After striking two cars, he continued accelerating for nearly a block, partly on a sidewalk, until he struck the first victim. These factors, particularly the excessive speed and the failure to brake, satisfied the depraved indifference element” (Gomez, 65 NY2d at 12 [emphasis supplied]).

Here, defendant’s excessive speed, running of at least five red lights, his repeated driving in the oncoming lanes of traffic and failure to brake—such conduct occurring in residential and business districts while evading police for a distance of 2½ to 4 miles—satisfied the depraved indifference element under Register. If anything, defendant’s conduct in this case was more egregious than the conduct displayed by the defendant in Gomez. Indeed, “[t]he risks posed by defendant’s conduct in this case and his callous indifference to them entitled the jury to conclude that his conduct placed the crime on the same level as intentional murder” (Gomez, 65 NY2d at 12). As a result, it is my view that defendant should not be rewarded with a reduction to the more lenient count of manslaughter in the second degree, and I would therefore affirm the judgment of conviction and sentence.

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

Order modified, etc.

       A person is guilty of depraved indifference murder when, “[ujnder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person” (Penal Law § 125.25 [2]).
      A person is guilty of second degree manslaughter when “[h]e recklessly causes the death of another person” (Penal Law § 125.15 [1]).


text:
    [944 NE2d 1135, 919 NYS2d 496]
    East Hampton Union Free School District, Appellant, v Sandpebble Builders, Inc., Defendant, and Victor Canseco, Respondent.
    Argued January 12, 2011;
    decided February 22, 2011

      APPEARANCES OF COUNSEL

      Morgan, Lewis & Bockius LLP, New York City (Bernard J. Garbutt, III, and Marc Shanker of counsel), for appellant.

      Esseks, Hefter & Angel, LLP, Riverhead (Theodore D. Sklar, Stephen R. Angel and Nancy Silverman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

In this litigation brought by a school district against a corporation it had hired to perform construction management services, the school district sought to pierce the corporate veil to hold Victor Canseco, the president and sole shareholder of the corporation, personally liable for alleged breaches of certain corporate obligations. In order for a plaintiff to state a viable claim against a shareholder of a corporation in his or her individual capacity for actions purportedly taken on behalf of the corporation, plaintiff must allege facts that, if proved, indicate that the shareholder exercised complete domination and control over the corporation and “abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice” (Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 142 [1993]). Since, by definition, a corporation acts through its officers and directors, to hold a shareholder/officer such as Canseco personally liable, a plaintiff must do more than merely allege that the individual engaged in improper acts or acted in “bad faith” while representing the corporation. In this case, plaintiff failed to allege any facts indicating that Canseco engaged in acts amounting to an abuse or perversion of the corporate form, much less that the school district was harmed as a result of such actions. Under the circumstances, the Appellate Division did not err in failing to direct that plaintiff be permitted to file an amended complaint as the record affords no basis to conclude that the deficiency could have been cured by repleading.

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

Order affirmed, with costs, in a memorandum.


text:
    [944 NE2d 1142, 919 NYS2d 503]
    In the Matter of the Estate of Seymour Halpern, Deceased. Adrienne Halpern et al., Respondents; Elizabeth Halpern, Appellant.
    Decided February 22, 2011
    APPEARANCES OF COUNSEL

      Duane Morris LLP, New York City (Thomas R. Newman of counsel), for appellant.

      Cleary Gottlieb Steen & Hamilton LLP, New York City (Christopher P. Moore and Giannina Santo of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary. When viewed in its entirety, the testimony from the attesting witness is insufficient to create a triable issue of fact as to whether decedent’s will was duly executed.

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


text:
    [944 NE2d 1142, 919 NYS2d 503]
    In the Matter of Eternal Flame of Hope Ministries, Inc., Respondent, v Lori King, as Assessor of the Town of Highland, et al., Appellants.
    Decided February 22, 2011

      APPEARANCES OF COUNSEL

      Drew, Davidoff & Edwards Law Offices, LLP, Monticello (Michael Davidoff of counsel), for appellants.

      Kalter, Kaplan, Zeigler & Forman, Woodbourne (Terry S. Forman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

Because petitioner is a religious organization utilizing the subject property to further the religious purposes for which it was organized, petitioner is entitled to a real property tax exemption for the property (see RPTL 420-a [1] [a]). The Town has not demonstrated an existing zoning violation so as to bar the exemption (cf. Matter of Oxford Group-Moral Re-Armament, MRA, Inc. v Allen, 309 NY 744 [1955]).

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

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


text:
    In the Matter of the Claim of Otilia Caballero, Appellant, v Fabco Enterprises et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted December 27, 2010;
    decided February 22, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Juliette DeJoie Cadichon et al., Appellants, v Thomas Facelle, M.D., et al., Respondents.
    Submitted January 31, 2011;
    decided February 22, 2011
   Motions to strike material from the record on appeal and references thereto in appellants’ brief granted to the extent of deeming stricken appellants’ notice of motion for reargument and renewal and material in support thereof and references thereto in appellants’ brief.


text:
    In the Matter of Norman Leonard Cousins, an Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided February 22, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved. Judiciary Law § 90 (8) does not provide an independent predictate for an appeal as of right to the Court of Appeals.


text:
    In the Matter of Nikolai Gecetchkori, Appellant, v Anthony J. Annucci, as Deputy Commissioner of Correctional Services, et al., Respondents.
    Submitted November 22, 2010;
    decided February 22, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Granger Group et al., Appellants, v Town of Taghkanic et al., Respondents, and Alan Wilzig et al., Respondents.
    Submitted January 3, 2011;
    decided February 22, 2011
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Joel Murray, Appellant, v State of New York, Respondent.
    Submitted December 13, 2010;
    decided February 22, 2011
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Sue Ann Paivanas, Appellant, v The Resource Center et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted January 10, 2011;
    decided February 22, 2011
   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:
    The People of the State of New York, Respondent, v James D. Carlton, Appellant.
    Submitted December 13, 2010;
    decided February 22, 2011
   Motion for leave to appeal denied upon the ground that an appeal lies as of right (see CPLR 5601 [a]).


text:
    Idelfonso Rivera, Sr., et al., Appellants, v City of New York et al., Respondents.
    Submitted January 3, 2011;
    decided February 22, 2011
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 12:3, at 436-437 [3d ed rev]).


text:
    In the Matter of Martin S. Streit, a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted January 18, 2011;
    decided February 22, 2011
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    In the Matter of Injah Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted December 20, 2010;
    decided February 22, 2011
   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 Injah Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted December 20, 2010;
    decided February 22, 2011
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Tribeca Lending Corp., Respondent, v Linda Crawford, Appellant, et al., Defendants.
    Submitted January 24, 2011;
    decided February 22, 2011
   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:
    [944 NE2d 1139, 919 NYS2d 500]
    The People of the State of New York, Respondent, v Elijah Cummings, Appellant.
    Argued January 12, 2011;
    decided February 24, 2011
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Eunice C. Lee and Richard M. Greenberg of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Lindsey M. Kneipper and Dana Poole of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The Appellate Division order should be affirmed.

After a trial by jury, defendant was convicted of one count of burglary in the second degree and two counts of criminal possession of a weapon in the third degree in connection with his theft of two loaded pistols from a Manhattan police precinct. Defendant argues on appeal that his trial counsel was ineffective for failing to challenge the legal sufficiency of the People’s proof on the second degree burglary conviction on the ground that a police precinct containing dormitories for overnight use is not a “dwelling.” A conviction of second degree burglary under Penal Law § 140.25 (2) requires proof that the defendant entered or remained unlawfully in a dwelling. A building is considered a dwelling if it is “usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]). In People v Barney (99 NY2d 367, 371-372 [2003]), we explained that “[b]y using the phrase ‘usually occupied’ to define dwelling, the Legislature clearly intended to enact a flexible standard.” Accordingly, there is no requirement that the building “must always be a home or what would normally be considered a residence” (People v Quattlebaum, 91 NY2d 744, 748 [1998]).

The core of our inquiry in reviewing ineffective assistance of counsel claims is whether counsel’s performance “viewed in totality” amounts to “meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). Moreover, our case law in this area emphasizes that our Constitution “guarantees the accused a fair trial, not necessarily a perfect one” (People v Benevento, 91 NY2d 708, 712 [1998]). Thus, in order to prevail on a claim of ineffective assistance of counsel based on a single error or omission, a defendant must demonstrate that the error was “so egregious and prejudicial” as to deprive defendant of a fair trial (People v Turner, 5 NY3d 476, 480 [2005] [internal quotation marks omitted]).

Here, the record demonstrates that defendant’s counsel provided competent and meaningful representation throughout the proceedings, which included an unsuccessful pretrial attempt to dismiss the second degree burglary charge based on the dwelling argument. Further, to buttress their position that the police precinct met the statutory standard of a dwelling, the People submitted additional evidence at trial that was not before the grand jury (see e.g. People v Parilla, 8 NY3d 654, 660 [2007]). Viewing the performance in totality, we conclude that counsel’s failure to renew the dwelling argument at the close of the People’s case was not so egregious as to deprive defendant of a fair trial.

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

Order affirmed, in a memorandum.


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

text:
    [945 NE2d 477, 920 NYS2d 284]
    The People of the State of New York, Respondent, v Remy Smith, Appellant.
    Argued January 13, 2011;
    decided February 24, 2011

      APPEARANCES OF COUNSEL

      Levitt & Kaizer, New York City (Richard Ware Levitt and Yvonne Shivers of counsel), and The Murphy Firm, Baltimore, Maryland (William H. Murphy, Jr., of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Vincent Rivellese and Hilary Hassler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was convicted, after a jury trial, of two counts of assault in the first degree, and one count each of attempted coercion in the first degree and criminal possession of a weapon in the second degree, in the shooting of a friend during a dispute.

On appeal, defendant challenges, under both state and federal law, the preclusion of an argument she wished to make at summation—namely that it was the victim of the shooting who first produced the gun that resulted in her being shot. Defendant’s challenges fail because to allow the requested summation argument would be to permit defense counsel to call upon the jury to reach conclusions that are “not fairly inferrable from the evidence” (People v Ashwal, 39 NY2d 105, 110 [1976]). The privilege of counsel to comment in summation on any matters of fact pertinent to questions that the jury must decide is not absolute. The privilege “can never operate as a license to state to a jury facts not in evidence” (Williams v Brooklyn El. R.R. Co., 126 NY 96, 103 [1891]), or to argue theories for which there is absolutely no evidentiary support.

Here, regardless of whether there was evidentiary support for the argument that the victim was shot during a struggle over the gun, the jury heard no evidence from which it would be reasonable to conclude that the gun was first displayed by the victim. In particular, the testimony of a police officer, that the victim told him that the gun with which she was shot was “heavier” than a gun he showed her for the purpose of comparison, is irrelevant to the issue whether the defendant or the victim first produced the gun. Moreover, the officer himself clarified the term, saying “[h]eavier, meaning larger,” and a victim’s recollection of the size of a gun in no way supports the theory that she first displayed the gun.

Defendant also challenges that part of the jury charge instructing the jury that if it found that the victim was “truthful and accurate in her testimony to you, [then] her testimony without any other eye witness to what happened inside the car, under the law satisfies the proof beyond a reasonable doubt.” Where, as here, a single sentence in a jury charge is challenged by the defendant, we “do not consider the challenged sentence alone and in a vacuum but instead must read the instruction as a whole to determine if it was likely to confuse the jury” (People v Fields, 87 NY2d 821, 823 [1995]). Here, although the challenged sentence itself does not accurately convey the principle that a single victim’s testimony can on its own prove guilt beyond a reasonable doubt, Supreme Court immediately went on to state that principle correctly. The court charged the jury that if the victim’s testimony “after your careful scrutiny does satisfy you beyond a reasonable doubt then her testimony alone can be sufficient to convict without other eye witness testimony” (emphasis added). Moreover, Supreme Court emphasized, in parts of the jury charge immediately before and after the challenged sentence, that the central duty of the jury was to decide whether the charged crimes had been proved beyond a reasonable doubt. In light of the charge as a whole, no reasonable juror would have concluded that if he or she found the victim’s testimony credible, then he or she had to find defendant guilty— without assessing whether all of the evidence was sufficient to show beyond a reasonable doubt that defendant was guilty.

Jones, J. (dissenting).

By limiting defendant’s argument on summation, the trial court impermissibly infringed on defendant’s constitutional right to present an argument to the jury which was reasonably supported by the evidence. Further, by misstating the appropriate standard of proof in a portion of the jury charge (see majority mem at 788), the trial court unwittingly fostered a guilty verdict in accordance with the victim’s testimony. Because these errors, individually and cumulatively, deprived defendant of a fair trial, I respectfully dissent.

On July 14, 2007, defendant and the victim attended the birthday party of a mutual friend at a restaurant on 14th Street and Ninth Avenue in Manhattan. As the party ended, defendant noticed that $3,000 was missing from her pocketbook. Because the victim had held the pocketbook at one point during the evening, defendant suspected she had stolen the money. After leaving the restaurant, defendant confronted the victim with a gun in the front seat of the victim’s car. Other than defendant and the victim, who was behind the wheel, there was no one else in the car. According to the victim, defendant cocked the gun as she approached her car. Once in the car, defendant demanded to search her handbag, she refused, and she was shot while they struggled. Although the victim testified that she did not touch the gun with which she was shot, a police officer testified that the victim told him that the gun at issue was “a little bit heavier” than a gun he showed her for comparison purposes. Defendant did not testify at trial.

After the People rested, defense counsel sought a ruling as to whether it would be permissible to argue during summation that there was a struggle for the gun before the gun went off. The court asked defense counsel to address the People’s argument that “there is no evidence of any struggle over a gun.” Counsel responded, “it is not an unreasonable inference during such an altercation in the car with a gun loaded that at some point she attempted ... to pull the gun away.” Supreme Court concluded that counsel would not be permitted to argue on summation that there was a struggle over the gun because there was “no evidence of that.” The court only allowed counsel to argue on summation that there was a struggle over the bag and the gun went off accidentally.

Under the Sixth Amendment, a defendant in a criminal prosecution has the right to have the assistance of counsel for his defense (see Johnson v Zerbst, 304 US 458, 462 [1938]). This right was deemed necessary to ensure the fundamental human rights of life and liberty (id.), and made obligatory on the states by the Fourteenth Amendment (see Gideon v Wainwright, 372 US 335 [1963]). “[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments” (Herring v New York, 422 US 853, 857 [1975]). In short, this right ensures that criminal defendants have a full and fair opportunity to participate in the adversary factfinding process (id. at 858).

“[C]losing argument for the defense is a basic element of the adversary factfinding process in a criminal trial” (id. at 858), and the “last. . . chance to persuade the trier of fact that there may be a reasonable doubt of the defendant’s guilt” (id. at 862). This Court wrote:

“It is the privilege of counsel in addressing a jury to comment upon every pertinent matter of fact bearing upon the questions which the jury have to decide. This privilege ... is most important to preserve and . . . ought not to be narrowed by any close construction, but should be interpreted in the largest sense. The right of counsel to address the jury upon the facts is of public as well as private consequence, for its exercise has always proved one of the most effective aids in the ascertainment of truth by juries in courts of justice, and this concerns the very highest interest of the state. The jury system would fail... if freedom of advocacy should be unduly hampered and counsel should be prevented from exercising within the four corners of the evidence the widest latitude by way of comment, denunciation or appeal in advocating his cause” (Williams v Brooklyn El. R.R. Co., 126 NY 96, 102-103 [1891]).

That said, “summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command. There are certain well-defined limits” (People v Ashwal, 39 NY2d 105, 109 [1976]). For example, because juries must decide issues on the evidence, counsel, in summing up a case, is permitted to make any summation argument “within the four corners of the evidence” (Williams, 126 NY at 103). In addition, counsel must avoid making comments which have no bearing on any legitimate issue in the case (see Ashwal, 39 NY2d at 109). “Thus [counsel] may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence” (id. at 109-110 [citations omitted]).

Finally, trial judges have great latitude in controlling the duration and limiting the scope of closing summations (see Herring, 422 US at 862). For example, a trial judge, in the exercise of his or her broad discretion, may seek to ensure that counsel’s argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial (id.).

In this case, the evidence adduced lent itself to several interpretations. For example, in accordance with the People’s theory of the case, one could reasonably view the evidence as establishing that defendant entered the victim’s car with a gun, struggled with the victim in an effort to seize the victim’s bag and then intentionally shot the victim. Another reasonable view of the evidence was that, even accepting the victim’s testimony as true, the gun accidentally discharged during the course of the struggle over the victim’s bag or over the gun itself. However, defense counsel was precluded from making the argument concerning a struggle over the gun because Supreme Court found that it lacked evidentiary support. The Appellate Division determined that Supreme Court’s preclusion order was a proper exercise of that court’s discretion. I disagree because the alternative theory defense counsel sought to advance was supported by the evidence; thus, Supreme Court lacked discretion to deprive defendant of what amounted to her only viable theory of defense (see Chambers v Mississippi, 410 US 284, 294 [1973] [cited for the proposition that the right to present a defense is one of the “minimum essentials of a fair trial”]).

If the jury did not believe the victim’s account of what happened, it could certainly have rejected all of her testimony, including her claim that defendant entered her car with an already cocked gun. Clearly, defense counsel’s proposed argument—that defendant and the victim struggled over the gun rather than the victim’s bag—was relevant, material, and “within the four corners of the evidence” (Williams, 126 NY at 103). There was evidence adduced at trial from a police officer that the victim described the gun in terms of weight, that is, it was “heavier” than the other gun the same officer presented to her for comparison purposes. Although the majority seeks to explain this away by pointing out that “the officer himself clarified the term, saying ‘[h]eavier, meaning larger’ ” (majority mem at 788), this explanation actually raises factual questions for the jury as to whether the witness held the two guns and was able to compare their weights. I submit that this evidence can reasonably be interpreted to support the view that the victim in fact held the gun, that she lied when she denied doing so, and that, therefore, she lied when she testified that defendant (1) entered her car with a cocked gun in hand, and (2) struggled over the bag rather than the gun. However, the jury did not have an opportunity to accept or reject the theory defense counsel sought to advance—an argument that could have sharpened and clarified the issues for resolution by the jury.

Thus, by upholding the lower court rulings precluding defense counsel from making the stated summation argument, the majority not only put this Court’s imprimatur on rulings that deprived defendant of the opportunity to advance a viable theory of defense, it deprived defendant of her right to fully and fairly participate in the adversarial factfinding process. Further, because defense counsel was not allowed to argue the reasonable inferences to be drawn from all the testimony, the jury could not adequately perform its function as trier of fact.

In declining to determine whether the trial court erred in striking defense counsel’s summation argument that the victim struggled with defendant over the gun (see majority mem at 787 n), the majority casts this ruling as “harmless” based on the argument the trial court actually allowed defense counsel to make (id.). I do not agree that this ruling can be deemed “harmless.” The precluded argument bears directly on the question whether defendant intended to cause serious physical injury, an element required to prove first-degree (intentional) assault. If the jury believed that the struggle was over the gun, that would tend to disprove the mens rea necessary for intentional assault. Moreover, defense counsel, in advancing the only summation argument he was permitted to make (that the shooting was accidental), was effectively relegated to conceding the truthfulness of the victim’s account of the incident (that defendant entered the car with a gun and the struggle was over the victim’s handbag). And certainly it would be far more likely for the gun to discharge accidentally in a struggle over the weapon itself, than in a struggle over a handbag. In light of the foregoing, the challenged ruling cannot be considered harmless.

Finally, I address defendant’s challenge to a portion of the jury charge. At trial, the jury was instructed that “if you find [the victim] was truthful and accurate in her testimony to you, her testimony without any other eye witness to what happened inside the car, under the law satisfies the proof beyond a reasonable doubt.” It is undisputed that this sentence does not accurately convey accepted reasonable doubt principles, and that the trial court did not correct this portion of the charge. It is also undisputed that the trial court stated the applicable principles correctly in other parts of the jury charge.

While I am well aware of this Court’s jurisprudence holding that where a sentence in a jury charge is challenged, courts do not consider such sentence in a vacuum, but read the charge as a whole to determine if it is likely to confuse the jury, I am troubled by the fact that this portion of the charge related specifically to the victim’s testimony. This error is magnified by the fact that defendant did not testify, and the victim and defendant were the only persons present in the vehicle. Given the charging error and the trial court’s rulings as to what defense counsel was allowed to argue on summation, it is likely that the incorrect reasonable doubt standard fostered a guilty verdict.

This case concerns me for the following reasons. The trial court erroneously precluded a summation argument that was reasonably supported by the evidence. Moreover, considering the impact of the trial court’s rulings, the erroneous portion of the charge concerning reasonable doubt and the fact that this is essentially a one-witness case, defendant was placed in an untenable position upon exercising her right not to testify.

Based on the foregoing, I would reverse the order of the Appellate Division and grant defendant a new trial.

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

Order affirmed in a memorandum.

       Defendant also claims that it was reversible error to preclude defense counsel from arguing at summation that the victim struggled with defendant over the gun. We do not address whether that ruling was error because the ruling was harmless. Defense counsel was permitted to argue that the gun went off accidentally, during a struggle over a handbag, and that defendant did not intend to cause serious physical injury.

      . Article I, § 6 of the New York State Constitution provides in pertinent part that a defendant “shall be allowed to appear and defend in person and with counsel.” Although “[t]he Right to Counsel Clause in the State Constitution is more restrictive than that guaranteed by the Sixth Amendment to the United States Constitution[,]” this Court, “by resting the right upon this State’s constitutional provisions guaranteeing the privilege against self-incrimination, the right to assistance of counsel and due process of law[, has] provided protection to accuseds far more expansive than the Federal counterpart” (People v Bing, 76 NY2d 331, 338-339 [1990] [citations and footnote omitted]).

      . As the Herring Court stated:
      “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions” (422 US at 862).

      . The right of counsel to address the jury upon the facts is guaranteed to the defendant and prosecutor alike (see People v Ashwal, 39 NY2d 105, 109 [1976]).


text:
    Faye M. Eaton et al., Appellants, v Wayne Teachers Association et al., Respondents.
    Submitted January 3, 2011;
    decided February 24, 2011
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    Richard J. Erickson, Respondent, v Cross Ready Mix, Inc., et al., Respondents, and Turner Construction Company, Appellant, et al., Defendants. (And a Third-Party Action.)
    Submitted January 3, 2011;
    decided February 24, 2011
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Robert H. Hamilton et al., Respondents, v David Murphy, Appellant.
    Submitted January 3, 2011;
    decided February 24, 2011
   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:
    Donna Hurst Hepburn, Respondent, v David Hepburn, Appellant.
    Submitted January 3, 2011;
    decided February 24, 2011
   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:
    Matthieu Maceno, Appellant, v Ketly Dutrevil et al., Respondents.
    Submitted December 6, 2010;
    decided February 24, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed so much of Supreme Court’s order as pertains to the motion in that court for the imposition of sanctions, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Charmaine Mangaroo, Appellant, v James Beckman et al., Respondents.
    Submitted December 13, 2010;
    decided February 24, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the judgment of Supreme Court denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Stephen Rosenblum, Respondent, v New York City Conflicts of Interest Board et al., Appellants.
    Submitted January 18, 2011;
    decided February 24, 2011
   Motion by the Association of the Bar of the City of New York for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Dale R. San Marco et al., Appellants, v Village/Town of Mount Kisco, Respondent.
    Submitted January 24, 2011;
    decided February 24, 2011
   Motion for reargument denied [see 16 NY3d 111 (2010)].


text:
    State of New York, Respondent, v C.J. Burth Services, Inc., et al., Appellants.
    Submitted January 10, 2011;
    decided February 24, 2011
   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:
    [946 NE2d 740, 921 NYS2d 641]
    The People of the State of New York, Appellant, v Barak Cornell, Respondent.
    Decided March 24, 2011

      APPEARANCES OF COUNSEL

      David W. Foley, District Attorney, Mayville (Lynn S. Schaffer of counsel), for appellant.

      Lipsitz Green Scime Cambria LLP, Buffalo (Timothy P. Murphy of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A trial court has the constitutional duty to advise a defendant of the direct consequences of a guilty plea, including any period of postrelease supervision (PRS) that will be imposed as part of the sentence (see People v Catu, 4 NY3d 242, 244-245 [2005]). “Although the court is not required to engage in any particular litany when allocuting the defendant, ‘due process requires that the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant’ ” (id. at 245, quoting People v Ford, 86 NY2d 397, 403 [1995]). “[T]he failure of a court to advise of postrelease supervision requires reversal of the conviction” (id. at 245). Further, “where a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” (People v Louree, 8 NY3d 541, 545-546 [2007]).

Here, the record does not make clear, as required by Catu, that at the time defendant took his plea, he was aware that the terms of the court’s promised sentence included a period of PRS. Accordingly, the Appellate Division correctly determined that defendant’s conviction must be reversed and that his guilty plea be vacated even in the absence of a postallocution motion.

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:
    [946 NE2d 738, 921 NYS2d 640]
    The People of the State of New York, Respondent, v Robert Kelly, Appellant.
    Argued February 17, 2011;
    decided March 24, 2011
    APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (Warren S. Landau and Lynn W.L. Fahey of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Anthea H. Bruffee, Leonard Joblove and Ann Bordley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Following a jury trial, defendant Robert Kelly was convicted of charges of robbery in the first degree and burglary in the first degree arising out of an incident that occurred on May 31, 2005.

Following five hours of deliberations, a juror communicated to the trial court concern regarding child care issues. After consulting with counsel for the People and defendant on how to resolve the issue, the trial court directed its court officer to speak to the juror privately, but did not direct the jury to stop deliberating, nor command the court officer to provide such instructions. The court officer reported the particular child care issue to the court and the jury was dismissed for the evening. Deliberations resumed for the following day and a half, and defendant was convicted. The Appellate Division affirmed the conviction and a Judge of this Court granted defendant leave to appeal.

Defendant’s contention that the trial court’s failure to instruct the jury to cease deliberations violated his federal and state constitutional rights to a jury trial and the requirements of CPL 310.10 is not preserved for appellate review (see People v Patterson, 39 NY2d 288 [1976]; People v Ramon, 291 AD2d 511 [2002]; People v Johnson, 224 AD2d 635 [1996]). Moreover, there was no mode of proceedings error dispensing with the preservation requirement because the brief, momentary separation of the juror from deliberations was not the type of violation contemplated by the “continuously kept together” language of CPL 310.10 (see CPL 310.10 [1]; Johnson, 224 AD2d at 635; People v Lee, 205 AD2d 558, 559 [2d Dept 1994]).

Defendant’s Apprendi challenge to New York’s persistent violent felony offender statute is also unpreserved (see People v Rosen, 96 NY2d 329, 335 [2001]).

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

Order affirmed in a memorandum.


text:
    In the Matter of AAA Carting and Rubbish Removal, Inc., Appellant, v Town of Southeast et al., Respondents.
    Submitted March 14, 2011;
    decided March 24, 2011
   Motions to strike portions of appellant’s brief granted to the extent of deeming stricken Addendum 1 and Addendum 2 to appellant’s brief and references thereto in that brief.


text:
    In the Matter of Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted February 22, 2011;
    decided March 24, 2011
   Motion by Saratoga County Department of Social Services et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Afton C., a Child Alleged to be Neglected. Dutchess County Department of Social Services, Appellant; James C. et al., Respondents. (And Four Other Proceedings.)
    Submitted March 7, 2011;
    decided March 24, 2011
   Motion to strike portions of the briefs of respondent James C. and the child Trevor C. denied.


text:
    In the Matter of Jeffrey Baker, Respondent, v Poughkeepsie City School District et al., Appellants.
    Submitted February 7, 2011;
    decided March 24, 2011
   Motion by the New York State School Boards Association, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    Lisa Humbertson Brady, Individually and as Administrator of the Estate of Paul R. Brady, Deceased, Appellant, v Village of Malverne et al., Respondents, et al., Defendants.
    Submitted January 10, 2011;
    decided March 24, 2011
   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:
    Jose Caride et al., Respondents, v Alejandro Alonso et al., Appellants. (And a Third-Party Action.)
    Submitted December 20, 2010;
    decided March 24, 2011
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the judgment of Supreme Court, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order sought to be appealed from do not finally determine the combined action and proceeding within the meaning of the Constitution.


text:
    Commodity Futures Trading Commission, Respondent, v Stephen Walsh et al., Defendants, and Janet Walsh, Appellant. Securities and Exchange Commission, Respondent, v WG Trading Investors, L.P., et al., Defendants, Robin Greenwood, Relief Defendant, and Janet Walsh, Appellant.
    Submitted February 22, 2011;
    decided March 24, 2011

      See 618 F3d 218.
   Motion by Elliott Scheinberg, Esq. 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:
    Gloria Doomes, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Ana Jiminian, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent. Kelli Rivera, Appellant, v Best Transit Corp. et al., Defendants, and Warrick Industries, Inc., Doing Business as Goshen Coach, Respondent.
    Submitted February 28, 2011;
    decided March 24, 2011
   Motion by American Bus Association, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Tammy D. Johnson et al., Appellants, v City of New York et al., Respondents. (And Another Action.)
    Submitted December 20, 2010;
    decided March 24, 2011
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 676 (2010)].


text:
    In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al., Respondents, and Village of Johnson City, Appellant. (And Another Proceeding.)
    Submitted February 28, 2011;
    decided March 24, 2011
   Motion by Professional Fire Fighters Association, I.A.F.F., AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    NYCTL 1998-2 Trust et al., Plaintiffs, v Andrea Ellen Sack, Appellant, et al., Defendants. Guila Feinberg, Nonparty Respondent.
    Submitted January 3, 2011;
    decided March 24, 2011
   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:
    Louis F. Ortiz, Appellant, v Varsity Holdings, LLC, et al., Respondents.
    Submitted February 22, 2011;
    decided March 24, 2011
   Motion by New York State Trial Lawyers 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:
    The People of the State of New York, Respondent, v Jeffrey Aubrey, Appellant.
    Submitted March 14, 2011;
    decided March 24, 2011
   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 Rudy Hernandez, Appellant.
    Submitted March 7, 2011;
    decided March 24, 2011
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed as untimely.


text:
    The People of the State of New York, Respondent, v Darnell Leader, Appellant.
    Submitted March 21, 2011;
    decided March 24, 2011
   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 Alicia Lewie, Appellant.
    Submitted March 21, 2011;
    decided March 24, 2011
   Motion by District Attorneys Association of the State of New York 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 Sergio Rodriguez, Appellant.
    Submitted March 7, 2011;
    decided March 24, 2011
   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 Nydia Santiago, Appellant.
    Submitted February 22, 2011;
    decided March 24, 2011
   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 Anthony Steward, Appellant.
    Submitted March 21, 2011;
    decided March 24, 2011
   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 Nafis Wright, Appellant.
    Submitted March 21, 2011;
    decided March 24, 2011
   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:
    In the Matter of Carlos Rueda, M.D., Chairman, Department of Psychiatry, Montefiore North Medical Center, Respondent, v Charmaine D., Appellant.
    Submitted March 7, 2011;
    decided March 24, 2011
   Motion by New York State Psychiatric Association, Inc. 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 Carlos Rueda, M.D., Chairman, Department of Psychiatry, Montefiore North Medical Center, Respondent, v Charmaine D., Appellant.
    Submitted March 14, 2011;
    decided March 24, 2011
   Motion by New York City Health and Hospitals Corporation for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Christopher Scott, Appellant, v Rockaway Pratt, LLC, Respondent.
    Submitted February 22, 2011;
    decided March 24, 2011
   Motion for poor person relief granted.


text:
    In the Matter of World Trade Center Bombing Litigation. Steering Committee et al., Respondents, v Port Authority of New York and New Jersey, Appellant.
    Submitted March 21, 2011;
    decided March 24, 2011
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Lippman taking no part.


text:
    [946 NE2d 169, 921 NYS2d 181]
    The People of the State of New York, Respondent, v Hadji S. Hill, Appellant.
    Argued February 10, 2011;
    decided March 29, 2011

      APPEARANCES OF COUNSEL

      Timothy P. Donaher, Public Defender, Rochester (Janet C. Somes of counsel), for appellant.

      Michael C. Green, District Attorney, Rochester (Leslie E. Swift of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s plea vacated, and the case remitted to County Court for further proceedings on the indictment.

On November 19, 2005, defendant Hadji Hill pulled a switchblade knife from his pocket and stabbed his uncle in the chest, killing him. This incident took place in defendant’s apartment. Defendant was arrested and charged with second-degree intentional murder (Penal Law § 125.25 [1]). On the day a jury trial was scheduled to commence, the trial judge was informed that defendant was prepared to plead guilty to first-degree manslaughter (Penal Law § 125.20), with a promised sentence of 15 years of imprisonment and five years of postrelease supervision. During the plea allocution, however, defendant insisted that he did not intend to kill or harm his uncle. The courtroom was evidently packed with defendant’s relatives, including his uncle’s family, at the time. The judge then conducted a further inquiry to elicit from defendant a recital of the circumstances and details of the crime.

During the ensuing colloquy, defendant told the judge that he had gotten into an argument and “struggle” with his uncle; he claimed that he “put the knife out just to keep [his uncle] back, but at that same time [his uncle] was coming back into [him] and [the knife] stuck [his uncle].” In response to the judge’s statement that he would “have to admit that [he] intended to cause serious physical injury by using a switchblade knife,” defendant conceded he knew that contact with a switchblade “could have caused damage”; and he acknowledged that the medical evidence would show that the knife penetrated his uncle’s body through several layers of muscle and tissue, broke a rib bone and pierced his heart, creating a two-inch laceration that caused his uncle to bleed to death. The judge asked defendant if he understood that “considering the nature and extent of the injury that ultimately caused the death and the penetration of the wound, that the jury [was] likely to conclude there was an intent to cause death, if not serious physical injury,” and he responded “Yes.” The judge then stated, “And so you’re giving up your right to raise any defenses . . . and accepting that evidence and . . . this plea because of that?” Defendant again answered “Yes,” and pleaded guilty to first-degree manslaughter. The judge accepted his plea.

While awaiting sentence, defendant sent a letter to the judge, asking to withdraw his plea. He argued that his attorney “led [him] to believe that it was in [his] family’s best interest that [he] cop out to 15 years in prison, which turned out to be untrue according to [his] family.” In addition, defendant’s mother wrote to the judge, complaining that her son’s attorney had “tricked” him into taking the plea. The uncle’s widow also wrote, explaining the traumatic effect of her husband’s death on his family, and stating that while she chose to forgive her nephew, he deserved the maximum sentence for his crime.

At sentencing, the judge asked defendant if there was anything he wanted to add to the statements in his letter. Defendant replied, “No. I mean, I should do some time for my uncle. It wasn’t intentional. Sentence just seemed excessive, that’s all”; and later that he “didn’t intend to kill [his] uncle,” who was his “best friend,” and that he “didn’t intend to cause any harm to [his] uncle,” but rather “pulled the knife out just to merely keep him away . . . from coming back and attacking . . . again.” The judge denied defendant’s motion to withdraw his plea, and imposed the bargained-for sentence.

Defendant appealed, arguing that his plea was not knowing, voluntary and intelligent. The Appellate Division concluded that the plea was valid because the trial judge made the requisite further inquiry to make sure there was no justification defense and conducted what was essentially “a limited Alford colloquy with respect to the intent element, thus rendering unnecessary an admission of intent by defendant” (66 AD3d 1471, 1472 [4th Dept 2009]; see North Carolina v Alford, 400 US 25 [1970]). We disagree.

At the plea proceeding, defendant denied that he intended to cause serious physical injury to his uncle, thus negating the intent element of first-degree manslaughter. This deficiency was not cured by the judge’s further inquiry. “Even absent a recitation as to every essential element, the court may still accept the plea—now an Alford plea” (Matter of Silmon v Travis, 95 NY2d 470, 474 n 1 [2000]); however, “Alford pleas are—and should be—rare” (id. at 474), and are “allowed only when, as in Alford itself, [they are] the product of a voluntary and rational choice, and the record before the court contains strong evidence of actual guilt” (id. at 475). Accordingly, there is no such thing as a “limited” Alford colloquy or plea. While the medical evidence in this case provided strong proof of defendant’s actual guilt, the record does not establish that he was aware of the nature and character of an Alford plea. He was not, for example, asked if he wished to plead guilty to first-degree manslaughter to avoid the risk of conviction upon a trial of the more serious crime of second-degree murder (see People v Serrano, 15 NY2d 304, 310 [1965]). It is not enough that defendant made concessions from which such a choice might be inferred, especially since the colloquy shows that he may have thought that his knowledge that the switchblade knife “could have caused damage” was an admission of guilt. On these facts, we therefore cannot say that defendant’s guilty plea was “the product of a voluntary and rational choice” (Silmon, 95 NY2d at 475).

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

Order reversed, etc.


text:
    [945 NE2d 1027, 920 NYS2d 776]
    William B. Clarke, Respondent, v Rafael Rodriguez, Appellant.
    Decided March 29, 2011
    APPEARANCES OF COUNSEL

      Law Offices of Thomas Weiss, P.C., Hempstead (Thomas Weiss of counsel), for appellant.

      Ramo, Nashak, Brown & Garibaldi LLP, Glendale (Gregory J. Brown of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There is support in the record for the affirmed finding that the original contract was in the possession or control of defendant. Upon due notice, defendant failed to produce the original. Accordingly, plaintiff sufficiently explained the unavailability of the original contract and, therefore, a photocopy was admissible as secondary evidence of its contents (see Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]). Moreover, as there is support for the undisturbed finding of Supreme Court that defendant frustrated plaintiffs efforts to perform the contract, plaintiff is entitled to the remedy of specific performance (see Kooleraire Serv. & Installation Corp. v Board of Educ. of City of NY., 28 NY2d 101, 106 [1971]).

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

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


text:
    [945 NE2d 1028, 920 NYS2d 777]
    The People of the State of New York, Respondent, v Tiray M. Paige, Appellant.
    Decided March 29, 2011

      APPEARANCES OF COUNSEL

      Gregory D. LaDuke, Lake Placid, for appellant.

      Derek P. Champagne, District Attorney, Malone (Glenn MacNeill of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Whether an officer had a reasonable belief that the subject of the arrest warrant was in the home so as to demand entry into the residence is a mixed question of law and fact, which, if supported by record evidence, is beyond further review by this Court (see generally People v Francois, 14 NY3d 732 [2010]). We conclude that record evidence exists to support the determinations of the courts below.

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:
    In the Matter of Robert Boehm et al., Appellants, v Andrea Evans, as Chair of the New York State Division of Parole, Respondent.
    Submitted January 31, 2011;
    decided March 29, 2011
   Motion by the New York Civil Liberties Union Foundation for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Cain Keel L. and Another, Infants. Derzerina L., Appellant; The New York Foundling Hospital, Respondent.
    Submitted January 31, 2011;
    decided March 29, 2011
   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:
    Maria Calderon, Appellant, v Evergreen Owners, Inc., et al., Respondents.
    Submitted January 24, 2011;
    decided March 29, 2011
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 708 (2010)].


text:
    Griffith Oil Company, Inc., et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, Pa., Appellant, et al., Defendants.
    Decided March 29, 2011
   Appeal withdrawn pursuant to stipulation of the parties.


text:
    The People of the State of New York ex rel. Kenneth Bazil, Appellant, v Luis Marshall, Respondent.
    Decided March 29, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Randy Ratajczak, as Administrator of the Estate of Mary Ratajczak, Deceased, Respondent, v Mahmood Yoonessi, M.D., et al., Appellants. (And a Third-Party Action.)
    Submitted January 18, 2011;
    decided March 29, 2011
   Motion for reconsideration of this Court’s November 23, 2010 dismissal order denied [see 15 NY3d 913 (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:
    In the Matter of Norma Warrior, Respondent, v Robert E. Beatman, Sr., Appellant.
    Submitted January 24, 2011;
    decided March 29, 2011
   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.

Judge Pigott taking no part.


text:
    [947 NE2d 139, 922 NYS2d 248]
    The People of the State of New York, Respondent, v Michael Brunner, Appellant.
    Argued February 16, 2011;
    decided March 31, 2011
    APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Eunice C. Lee and Richard M. Greenberg of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Jared Wolkowitz and Mary C. Farrington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After a jury trial, defendant was convicted of criminal sale of a controlled substance, criminal possession of a controlled substance and resisting arrest. On direct appeal, he argued that his trial counsel had been ineffective for failing to file a CPL 30.30 motion to dismiss the indictment, a contention that the Appellate Division rejected.

We have recognized that, in a rare case, a single mistake by defense counsel may be so significant that we can conclude that defendant was deprived of his constitutional right to effective legal representation (see People v Caban, 5 NY3d 143 [2005]; People v Turner, 5 NY3d 476, 478 [2005]). In Turner, we determined that defendant had a meritorious record-based ineffective assistance of counsel claim because defense counsel had objected to the submission of a lesser-included offense but had neglected to raise a “clear-cut and completely dispositive” statute of limitations defense relating to that charge (id. at 481).

In this case, although defendant’s arguments concerning the timeliness of the prosecution are substantial, there is nothing clear cut about his CPL 30.30 claim. The record of pretrial proceedings is complex and has spawned a dispute over the extent to which six discrete time periods were excludable from the readiness calculation. Had a CPL 30.30 application been filed in the trial court, its success would have depended on the resolution of several novel issues. Significantly, although the question remains open in this Court, one of the contentions made by defendant on appeal—involving a substantial number of the disputed days—had been rejected by the Appellate Division in a decision issued before this case went to trial (and trial counsel may have relied on this negative precedent in deciding not to pursue the motion) (see People v Matthews, 227 AD2d 313 [1st Dept 1996], lv denied 88 NY2d 989 [1996]). As to other time segments in issue, the applicability of various exclusions is debatable. Given that the governing law was unfavorable, we cannot say on this record that the failure to make a CPL 30.30 application rendered counsel’s otherwise competent performance constitutionally deficient. We have considered defendant’s remaining arguments and find them to be without merit.

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

Order affirmed in a memorandum.


text:
    [946 NE2d 172, 921 NYS2d 184]
    61 West 62 Owners Corp., Respondent, v CGM EMP LLC et al., Appellants, and West 63 Empire Associates LLC, Respondent, et al., Defendant.
    Decided March 31, 2011

      APPEARANCES OF COUNSEL

      Windels Marx Lane & Mittendorf, LLP, New York City (Bruce F. Bronster and Gregory J. Kerr of counsel), for appellants.

      Wolf Haldenstein Adler Freeman & Herz LLP, New York City (Steven D. Sladkus and Christopher Cobb of counsel), for 61 West 62 Owners Corp., respondent.

      Cozen O’Connor, New York City (Michael C. Schmidt and Menachem J. Kastner of counsel), for West 63 Empire Associates LLC, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by remitting to the Appellate Division for further proceedings in accordance with this memorandum and, as so modified, affirmed. The certified question should be answered in the negative.

The failure of authorities to issue a violation of the New York City Noise Control Code (see Administrative Code of City of NY § 24-201 et seq.), by itself, does not preclude plaintiff from establishing that it is likely to succeed on the merits. However, it cannot be said on this record that the imposition of a provisional remedy is required as a matter of law. Therefore, the case should be remitted to the Appellate Division for the exercise of its discretion.

We have considered appellants’ other contention, and determine that it lacks merit.

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

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

       Respondent West 63 Empire Associates LLC is not eligible for affirmative relief in this appeal and we express no view on the arguments it has made in that regard (see Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d 499, 507 [2005]).


text:
    In the Matter of the Claim of Maria M. Almonte, Appellant. Commissioner of Labor, Respondent.
    Decided March 31, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Victor Batshever et al., Appellants, v Jafar Jafar et al., Respondents.
    Submitted February 14, 2011;
    decided March 31, 2011
   Motion for reargument of motion for leave to appeal denied [see 16 NY3d 731 (2011)].


text:
    In the Matter of the Claim of Marie L. Gentile, as Widow of Jay Alan Gentile, Deceased, Appellant, v Sovereign Motor Cars et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted February 7, 2011;
    decided March 31, 2011
   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:
    Jackson & Nash LLP, Appellant, v E. Timothy McAuliffe PLLC et al., Respondents. (And a Third-Party Action.)
    Decided March 31, 2011
   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 with the meaning of the Constitution.


text:
    In the Matter of New Creek Bluebelt, Phase 4. City of New York, Respondent; Gaetano Demetrio, Appellant.
    Submitted January 31, 2011;
    decided March 31, 2011
   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 New York City Health and Hospitals Corporation, Appellant, v New York State Commission of Correction, Respondent.
    Submitted January 18, 2011;
    decided March 31, 2011
   Motion by the Legal Aid Society of the City of New York and Prisoners’ Legal Services of New York for leave to file a joint brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed, and for leave to file a joint brief amici curiae on the appeal herein granted, three copies of the brief to be served and an original and 19 copies filed within 30 days.


text:
    In the Matter of David A. Rigle, Appellant, v Richard F. Daines, as Commissioner of Health, et al., Respondents.
    Decided March 31, 2011
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Rock City Sound, Inc., Respondent, v Bashian & Farber, LLP et al., Appellants.
    Submitted February 14, 2011;
    decided March 31, 2011
   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 Rosemarie B., Petitioner, v Carol C., Appellant, and Ronnie C. et al., Respondents.
    Submitted January 3, 2011;
    decided March 31, 2011
   Motion for leave to appeal dismissed upon the ground that appellant is not a party aggrieved (see CPLR 5511).

Judge Pigott taking no part.


text:
    In the Matter of Injah Tafari, Appellant, v Lucien J. LeClaire, as Acting Commissioner of Correctional Services, Respondent.
    Submitted February 14, 2011;
    decided March 31, 2011
   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:
    [947 NE2d 1182, 923 NYS2d 404]
    The People of the State of New York, Respondent, v Andre Stewart, Appellant.
    Argued February 15, 2011;
    decided April 5, 2011

      APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Alan S. Axelrod and Steven Banks of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Vincent Rivellese of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

In 2003, when defendant pleaded guilty to attempted robbery in the first degree, the court advised him that he would receive a 3½-year prison term with “maximum post-release supervision time.” At sentencing, the court pronounced the determinate sentence along with a five-year term of postrelease supervision. Defendant did not object to the imposition of postrelease supervision at sentencing nor did he pursue a direct appeal. However, in 2008, he filed a CPL 440.10 motion seeking vacatur of his plea based on People v Catu (4 NY3d 242 [2005]), contending that his plea was involuntary because the court failed to advise him of the specific term of postrelease supervision during the plea proceeding. Supreme Court denied the motion, relying on People v Louree (8 NY3d 541 [2007]) for the proposition that defendant’s Catu claim could not be raised in a CPL 440.10 motion. The Appellate Division affirmed, as do we.

In Louree, we held that when “a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal” because the error is evident from the transcript of the plea proceeding (id. at 545-546). Catu claims have therefore been treated no differently than any other failure to advise a defendant of a direct consequence of a plea under the rule articulated in People v Ford (86 NY2d 397 [1995]). We further observed in Louree that, since the omission is clear from the face of the trial record, a Catu claim generally cannot be raised in a CPL 440.10 motion (Louree, 8 NY3d at 546 n; see CPL 440.10 [2] [c]).

Defendant’s contention that Louree changed the law concerning the types of claims that may be brought in a CPL 440.10 collateral proceeding is without merit. As far back as 1986, this Court had made clear that “[w]hen, as will usually be the case, sufficient facts appear on the record to permit the question to be reviewed, sufficiency of the plea allocution can be reviewed only by direct appeal” (People v Cooks, 67 NY2d 100, 104 [1986] [emphasis added]; see also, People v Angelakos, 70 NY2d 670 [1987]). A Catu claim is indistinguishable from a challenge to the adequacy of the plea allocution and, as we stated previously, it is reviewable on direct appeal. In the absence of justification for a defendant’s failure to pursue this issue in a direct appeal (which is absent here), such a claim may not be raised in a CPL 440.10 motion. We are therefore foreclosed from addressing defendant’s argument on the merits.

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

Order affirmed in a memorandum.