text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by Chamber of Commerce of the United States et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by Honorable Paul S. Atkins et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    The People of the State of New York, by Andrew M. Cuomo, Respondent, v Maurice R. Greenberg et al., Appellants.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by States of Connecticut and Vermont Offices of the Attorneys General for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Timothy A. Roulan, Appellant, v County of Onondaga et al., Respondents.
    Submitted February 11, 2013;
    decided February 14, 2013
   Motion by New York Civil Liberties Union 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 nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    [985 NE2d 917, 962 NYS2d 606]
    In the Matter of New York State Office of Victim Services, on Behalf of Laura Balogh and Others, Respondent, v Steven C. Raucci, Appellant. Shelley Raucci, Nonparty Appellant.
    Argued January 3, 2013;
    decided February 19, 2013

      APPEARANCES OF COUNSEL

      Hancock Estabrook, LLP, Syracuse (Alan J. Pierce of counsel), for Steven Raucci and another, appellants.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth, Barbara D. Underwood and Andrew D. Bing of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that Court.

Steven Raucci was convicted of several crimes, including arson, based on two incidents in which he tried (successfully, in one case) to detonate explosives at his victims’ homes. Raucci was a public employee, and is entitled to a New York State and Local Retirement System pension, which has been collected by his wife, acting under a power of attorney. Petitioner, the New York State Office of Victim Services, brought this proceeding pursuant to Executive Law § 632-a (the Son of Sam Law) to obtain an order diverting the pension payments to Raucci’s inmate account, where they can be frozen and kept available to satisfy any judgments the victims of Raucci’s crimes might obtain. Raucci and his wife opposed the relief petitioner sought on the ground that it was barred by Retirement and Social Security Law § 110 (2), which says that a “pension ... or retirement allowance . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever.”

Supreme Court agreed with the Rauccis. The court, after rejecting certain of petitioner’s arguments, observed that “petitioner has not argued that the Son of Sam Law trumps and/or supersedes” section 110.

The Appellate Division, however, accepted the argument that Supreme Court said was not made, and reversed. The Appellate Division held that a 2001 amendment to the Son of Sam Law defining “funds of a convicted person” to include “all funds and property received from any source” (Executive Law § 632-a [1] [c], as amended by L 2001, ch 62, § 1) eliminated the section 110 exemption in Son of Sam Law cases. The Appellate Division found that this argument was preserved by being raised in the submissions before Supreme Court (Matter of New York State Off. of Victim Servs. v Raucci, 97 AD3d 235, 238 [3d Dept 2012]).

The question of whether the Son of Sam Law creates an exception to the exemption granted by section 110 is an important one, but the Appellate Division erred in concluding it was preserved in this case. As Supreme Court correctly said, petitioner did not make the argument; it argued that the Son of Sam Law trumped another statute, CPLR 5205 (c), but not section 110. Indeed, the petition itself contradicts the theory that section 110 is inapplicable to Raucci’s pension; it says that “pursuant to Retirement and Social Security Law § 110, it would appear that the retirement funds at issue are not subject to execution, garnishment, attachment, or any other legal process while in the possession and control of the Retirement System.”

Our resolution of the question decided by the Appellate Division must await a case in which the issue is preserved. Meanwhile, of course, nothing prevents the legislature from amending one or both of the statutes to make its intention clear.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order reversed, with costs, and matter remitted to the Appellate Division, Third Department, for consideration of the facts and issues raised but not determined on the appeal to that Court, in a memorandum.


text:
    [985 NE2d 423, 961 NYS2d 828]
    In the Matter of Willard Saperston, Appellant, v Heather Holdaway, Respondent.
    Decided February 19, 2013
    APPEARANCES OF COUNSEL

      Phillips Lytle LLP, Buffalo (Michael B. Powers of counsel), for appellant.

      Peter C. Lomtevas, Esq., P.C., Brooklyn (Peter C. Lomtevas of counsel), for respondent.

      Bouvier Partnership, LLP, Buffalo (Emilio L. Colaiacovo of counsel), Attorney for the Child.
   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), appeal dismissed, without costs, upon the ground that the two-Justice dissent at the Appellate Division is not on a question of law within the meaning of CPLR 5601 (a).

Concur: Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott. Judge Rivera taking no part.


text:
    In the Matter of Relly Adler, Appellant, v New York City Housing Authority, Respondent.
    Submitted December 17, 2012;
    decided February 19, 2013
   Motion for leave to appeal dismissed upon the ground that the proceeding and the motion have abated because of the death of the appellant.


text:
    William Anderson, Appellant, v New York City Department of Education, Respondent.
    Submitted January 7, 2013;
    decided February 19, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 852 (2012)].


text:
    In the Matter of Andie M. and Another, Infants. Onondaga County Department of Social Services, Respondent; Kimberly M. et al., Appellants.
    Submitted January 28, 2013;
    decided February 19, 2013
   Motions for leave to appeal denied. Motion by Kimberly M. for poor person relief dismissed as academic.


text:
    Kathleen Bailey, Appellant, v Village of Saranac Lake, Inc., Respondent.
    Submitted January 22, 2013;
    decided February 19, 2013
   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:
    Bay Crest Association, Inc., Respondent, v Louis Paar et al., Appellants.
    Decided February 19, 2013
   Appeal by Louis Paar, insofar as taken from so much of the Appellate Division order as dismissed his appeal from so much of Supreme Court’s order as granted that branch of respondent’s motion which was pursuant to CPLR 2606 for the payment from funds belonging to Suzanne De Lisi and held in two accounts by the Suffolk County Treasurer in satisfaction of the judgment insofar as it was entered against Suzanne De Lisi, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that Louis Paar is not a party aggrieved by that portion of the order (see CPLR 5511); appeal by Suzanne De Lisi, insofar as taken from that part of the Appellate Division order that affirmed the grant of respondent’s CPLR 2606 motion as against Suzanne De Lisi, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; appeal by both appellants, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellants’ motion to vacate a prior judgment, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; appeal by both appellants, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order as denied appellants’ motion to hold respondent’s attorney in criminal and civil contempt, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Rivera taking no part.


text:
    In the Matter of the Claim of Sharon K. Bland, Appellant, v Gellman, Brydges & Schroff et al., Respondents. Workers’ Compensation Board, Respondent. (And Another Proceeding.)
    Submitted January 28, 2013;
    decided February 19, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Adam Bobak, Appellant, and AIG Claims Services, Inc., et al., Respondents.
    Submitted November 5, 2012;
    decided February 19, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the nonfinal order sought to be reviewed on appeal does not necessarily affect the final Appellate Division order, as required by CPLR 5601 (d), and thus cannot provide a constitutional predicate for the appeal. Motion for leave to appeal denied.

Chief Judge Lippman taking no part.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted January 14, 2013;
    decided February 19, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.

Judge Rivera taking no part.


text:
    In the Matter of Peter J. Galasso (Admitted as Peter John Galasso), an Attorney, Appellant. Grievance Committee for the Ninth Judicial District, Respondent.
    Submitted February 4, 2013;
    decided February 19, 2013
   Motion by The Bronx County Bar Association, insofar as it seeks leave to file a brief amicus curiae on the motion for leave to appeal herein, granted and the brief is accepted as filed; motion, insofar as it seeks leave to file a brief amicus curiae on the appeal herein, dismissed as academic.

Judge Rivera taking no part.


text:
    Golden City Commercial Bank, Plaintiff, v 207 Second Avenue Realty Corp. et al., Defendants. Michael G. Zapson, as Temporary Receiver of the Rents and Profits of 207 Second Avenue, New York, New York, Nonparty Respondent; Janet Chang, as Successor in Interest, Nonparty Appellant.
    Submitted December 31, 2012;
    decided February 19, 2013
   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:
    In the Matter of the Judicial Settlement of the Intermediate Account of HSBC Bank USA, N.A., as Trustee of the Trust under Agreement Dated January 21, 1957, Seymour H. Knox, II, Grantor, for the Benefit of the Issue of Seymour H. Knox, III, for the Period January 21, 1957 to November 3, 2005. HSBC Bank USA, N.A., Respondent; W.A. Read Knox et al., Appellants, et al., Respondents.
    Submitted November 26, 2012;
    decided February 19, 2013
   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.

Judge Pigott taking no part.


text:
    In the Matter of James WW., a Child Alleged to be Permanently Neglected. Rensselaer County Department of Social Services, Respondent; Tara XX., Appellant. (And Another Related Proceeding.)
    Submitted January 28, 2013;
    decided February 19, 2013
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Tulsa Knox, Appellant, v New York City Department of Education, Respondent.
    Submitted January 7, 2013;
    decided February 19, 2013
   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:
    L&L Associates Holding Corp., Respondent, v Joseph A.F. Sadowski, Appellant, et al., Defendants.
    Submitted January 14, 2013;
    decided February 19, 2013
   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:
    Lingfei Sun, Appellant, v City of New York et al., Defendants, and New York City Health and Hospitals Corporation et al., Respondents.
    Submitted January 18, 2013;
    decided February 19, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 854 (2012)].

Judge Rivera taking no part.


text:
    Alfred G. Osterweil, Appellant, v George R. Bartlett, III, in His Official Capacity as Licensing Officer in the County of Schoharie, Respondent.
    Decided February 19, 2013

      See 703 F3d 139.
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York, Respondent, v Hector Martinez, Appellant.
    Submitted January 22, 2013;
    decided February 19, 2013
   Motion to amend the remittitur denied [see 20 NY3d 971 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Alvin Rosenthal et al., as Trustees on Behalf of the Helmsley Charitable Trust. The American Society for the Prevention of Cruelty to Animals et al., Proposed Intervenors-Appellants; David Panzirer et al., Respondents.
    Submitted December 3, 2012;
    decided February 19, 2013
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of intervention, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judge Smith taking no part.


text:
    In the Matter of Alvin Rosenthal et al., as Trustees on Behalf of the Helmsley Charitable Trust. The American Society for the Prevention of Cruelty to Animals et al., Proposed Intervenors-Appellants; David Panzirer et al., Respondents.
    Submitted December 10, 2012;
    decided February 19, 2013
   Motion by William Josephson and Marilyn Ordover, insofar as it seeks leave to file a brief amici curiae on the motion for leave to appeal herein, granted and the brief is accepted as filed; motion, insofar as it seeks leave to file a brief amici curiae on the appeal herein dismissed as academic.

Judge Smith taking no part.


text:
    [986 NE2d 436, 963 NYS2d 618]
    In the Matter of Arisleda Duarte, Respondent, v City of New York, Appellant.
    Argued February 14, 2013;
    decided March 21, 2013
    APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Pamela Seider Dolgow and Janice Birnbaum of counsel), for appellant.

      Curtis, Mallet-Prevost, Colt & Mosle, LLP, New York City (Valentina M. Morales of counsel), and Nixon Peabody LLP, Manchester, New Hampshire (Morgan Nighan of counsel), for respondent.

      Morningside Heights Legal Services, Inc., New York City (Philip M. Genty of counsel), for Columbia Law School Prisoners and Families Clinic, amicus curiae.

      Steven Banks, Legal Aid Society, New York City (Dori A. Lewis of counsel), for Prisoners’ Rights Project of the New York City Legal Aid Society, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, as moot.

Respondent City of New York has asked us to review whether it was error for the Appellate Division to conclude that it was arbitrary and capricious for the New York City Department of Correction to deny petitioner’s application to enter the nursery program at the Rose M. Singer Center at Rikers Island. We agree with petitioner that this proceeding is moot because her child is now of an age that renders him ineligible for participation in the nursery program pursuant to Correction Law § 611. Moreover, in light of the Department of Correction’s revised nursery order, effective February 11, 2013, we decline to invoke the mootness exception (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).

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

Appeal dismissed, without costs, as moot, in a memorandum.


text:
    [986 NE2d 901, 964 NYS2d 67]
    The People of the State of New York, Respondent, v Tyrell Norris, Appellant. The People of the State of New York, Respondent, v Elbert Norris, Appellant.
    Argued February 7, 2013;
    decided March 21, 2013

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant in the first above-entitled action.

      Lynn W.L. Fahey, Appellate Advocates, New York City (Kathleen E. Whooley and Paul Skip Laisure of counsel), for appellant in the second above-entitled action.

      Charles J. Hynes, District Attorney, Brooklyn (Caroline R. Donhauser, Victor Barall and Leonard Joblove of counsel), for respondent in the first and second above-entitled actions.
   OPINION OF THE COURT

Memorandum.

In each case, the order of the Appellate Division should be affirmed.

Defendants Tyrell Norris and Elbert Norris (who are not related) were charged with drug felonies following an investigation into gangs that sold drugs in a public housing development in Brooklyn in the early 2000s. Tyrell Norris was convicted in 2003 of four counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]) and one count of conspiracy in the third degree (Penal Law § 105.13). Elbert Norris, meanwhile, was convicted of five counts of third-degree criminal sale of a controlled substance and one count of third-degree conspiracy, under the same penal statutes.

Both defendants had significant criminal histories, and were adjudicated second felony offenders. In December 2003, Supreme Court imposed on each defendant consecutive sentences of 5 to 10 years’ imprisonment on the criminal sale of a controlled substance counts, as well as 3V2 to 7 years’ imprisonment on the conspiracy count, to run concurrently with the sale counts.

On direct appeal, the Appellate Division vacated one of Tyrell Norris’s sale convictions along with the sentence imposed thereon (34 AD3d 501 [2d Dept 2006]). The dismissal of this count reduced his aggregate sentence from 20 to 40 years to 15 to 30 years. Similarly, one of Elbert Norris’s sale convictions was vacated, reducing his aggregate sentence from 25 to 50 years to 20 to 40 years (34 AD3d 500 [2d Dept 2006]). In Elbert Norris’s case, his sentence of incarceration was further reduced to 15 to 30 years, by operation of Penal Law § 70.30 (1) (e) (i).

In 2010, after the enactment of the Drug Law Reform Act (DLRA) of 2009 (L 2009, ch 56, part AAA, § 9, codified at CPL 440.46), both defendants sought resentencing to determinate sentences. The People consented to Tyrell Norris’s determinate resentencing, but recommended consecutive terms of seven years’ imprisonment on each of his three remaining sale convictions (with the conspiracy sentence running concurrently). In Elbert Norris’s case, the People did not consent to determinate resentencing, and added, as an alternative argument, that if Elbert Norris were resentenced it should be to consecutive terms of imprisonment (with his conspiracy sentence running concurrently). In both cases, the People opposed running the sentences concurrently on the ground that Supreme Court had no authority, under CPL 440.46, to change the consecutive sentences to concurrent ones.

Supreme Court granted both defendants’ motions for resentencing, but accepted the People’s view that it had no authority to make the sentences run concurrently. The court offered to resentence Tyrell Norris to three consecutive terms of seven years’ imprisonment, i.e., an aggregate sentence of 21 years, followed by postrelease supervision. Similarly, Supreme Court offered to resentence Elbert Norris to four consecutive terms of six years’ imprisonment, i.e., an aggregate sentence of 24 years, plus postrelease supervision. Both defendants declined the specified offers, and appealed from the orders specifying the offered resentences.

In separate decisions, the Appellate Division affirmed Supreme Court’s orders, and remitted the matters to Supreme Court. The Appellate Division held that, when resentencing a defendant under CPL 440.46, a court is not authorized to alter multiple drug felony convictions that were originally imposed to run consecutively, so that they now run concurrently (see People v Tyrell Norris, 90 AD3d 788 [2d Dept 2011]; People v Elbert Norris, 90 AD3d 955 [2d Dept 2011]).

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

Under Penal Law § 70.25, a court is authorized to direct whether sentences run concurrently or consecutively only

“when multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment” (Penal Law § 70.25 [1]).

In People v Acevedo (14 NY3d 828 [2010]), we held that neither circumstance is present when a court imposes a determinate sentence under the 2004 DLRA. Such resentencing constitutes “alteration of the existing sentence as authorized by law” (id. at 831), rather than imposition of a new sentence or of an additional term of imprisonment. We based our analysis on the fact that “[t]he purpose of the DLRA is to ameliorate the harsh sentences required by the original Rockefeller Drug Law” (id.). Resentencing courts are not given the discretion to fashion new sentences or add terms of imprisonment, but are constrained to make an existing sentence determinate in the manner dictated by the DLRA.

The cases before us involve the 2009 DLRA, but for our purposes the analysis is the same as for the 2004 DLRA at issue in Acevedo. Defendants argue that Acevedo is distinguishable because Acevedo sought to have weapon possession sentences, which in themselves would not be subject to DLRA modification, run concurrently with his new, determinate sentence for first-degree criminal possession of a controlled substance. Defendants point out that, by contrast, the sentences they seek to run concurrently are all subject to the DLRA.

The distinction upon which defendants rely makes no difference under our analysis in Acevedo. Our rationale was based on the intent of the legislature to relieve the harshness of the original Rockefeller Drug Laws by introducing a system whereby existing sentence lengths are altered. Penal Law § 70.25 (1) is inapplicable to DLRA resentencing, regardless of whether the sentences that defendant seeks to be made concurrent include sentences not subject to the DLRA, as in Acevedo, or, as here, are all subject to the DLRA.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

In each case: Order affirmed, in a memorandum.


text:
    [986 NE2d 436, 963 NYS2d 618]
    The People of the State of New York, Respondent, v Jose Rodriguez, Appellant.
    Decided March 21, 2013

      APPEARANCES OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Ellen Fried of counsel), for appellant.

      Charles J. Hynes, District Attorney, Brooklyn (Victor Barall of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed (see People v Norris, 20 NY3d 1068 [2013] [decided today]).

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


text:
    J.P. Morgan Securities Inc. et al., Appellants, v Vigilant Insurance Company et al., Respondents.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion by American Insurance 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 nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    In the Matter of Vilma Lancaster et al., Appellants, v Incorporated Village of Freeport et al., Respondents. (Proceeding No. 1.) In the Matter of William F. Glacken et al., Appellants, v Incorporated Village of Freeport et al., Respondents. (Proceeding No. 2.)
    Submitted February 11, 2013;
    decided March 21, 2013
   Motion to dismiss appeal denied.


text:
    Metropolitan Taxicab Board of Trade et al., Respondents, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Appellants. Livery Roundtable, Inc., et al., Intervenors-Respondents; Livery Base Owners, Inc., et al., Intervenors-Appellants. Taxicab Service Association et al., Respondents, v State of New York et al., Appellants. Livery Base Owners, Inc., et al., Intervenors-Appellants. Greater New York Taxi Association et al., Respondents, v State of New York et al., Appellants. Livery Base Owners, Inc., et al., Intervenors-Appellants.
    Submitted March 4, 2013;
    decided March 21, 2013
   Motion by Office of the Manhattan Borough President for leave to appear amicus curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and nine copies filed within seven days.


text:
    Segundo Once et al., Respondents, v Service Center of New York et al., Defendants, and 218 W 72nd St. Realty Corp. et al., Appellants.
    Submitted December 10, 2012;
    decided March 21, 2013
   Motion for leave to appeal dismissed upon the ground that appellants have failed to show that the order sought to be appealed from is final as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (3).


text:
    Steve Pappas et al., Respondents, v Steve Tzolis, Appellant, et al., Defendant.
    Submitted January 14, 2013;
    decided March 21, 2013
   Motion for reargument denied with $100 costs and necessary reproduction disbursements (see 20 NY3d 228 [2012]).

Judge Rivera taking no part.


text:
    The People of the State of New York, Respondent, v Anthony Buchanan, Also Known as Science, Also Known as Scientific, Appellant.
    Submitted February 19, 2013;
    decided March 21, 2013
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Angel Cintron, Respondent.
    Submitted March 4, 2013;
    decided March 21, 2013
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Todd Dobmeier, Appellant.
    Submitted March 4, 2013;
    decided March 21, 2013
   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 Sharmelle Johnson, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Srisdi Kidkarndee, Appellant.
    Submitted March 11, 2013;
    decided March 21, 2013
   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 Selbin Martinez, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Hafeez Odofin, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   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 Enrique Rivera, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Julio Rodriguez, Appellant.
    Submitted February 19, 2013;
    decided March 21, 2013
   Motion for poor person relief granted.


text:
    The People of the State of New York, Respondent, v Alias Stone, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Taliyah Taylor, Appellant.
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Conrado Pons, Appellant, v William A. Lee, Respondent.
    Submitted January 7, 2013;
    decided March 21, 2013
   Motion for reargument denied [see 20 NY3d 905 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Norman E. Roth et al. Appellants, v City of Syracuse et al., Respondents. (And Other Proceedings.)
    Submitted March 18, 2013;
    decided March 21, 2013
   Motion by New York State Conference of Mayors and Municipal Officials et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    [987 NE2d 631, 965 NYS2d 71]
    Keith Orsi, an Infant, by His Parents and Natural Guardians, Lisa Orsi and Another, et al., Appellants, v Susan Haralabatos, M.D., et al., Respondents, et al., Defendants.
    Argued February 13, 2013;
    decided March 26, 2013
    APPEARANCES OF COUNSEL

      Silberstein, Awad & Miklos, P.C., Garden City (Dana E. Heitz and Joseph P. Awad of counsel), for appellants.

      Phillips Lytle LLP, New York City (Eric M. Kraus and Craig R. Bucki of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks summary judgment dismissing the medical malpractice cause of action against them should be denied.

We agree with the Appellate Division that there are issues of fact as to whether Haralabatos and Stony Brook departed from the applicable standard of care. The Appellate Division erred, however, in granting summary judgment on the issue of proximate cause. Although the issue was preserved for review by being mentioned in an affirmation of counsel, it was not addressed in the experts’ affidavits that Haralabatos and Stony Brook submitted in support of their summary judgment motion. These defendants thus failed to meet their initial burden of showing that any departure from the standard of care was not the proximate cause of plaintiff Keith Orsi’s osteomyelitis.

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

Order reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks summary judgment dismissing the medical malpractice cause of action against them denied, in a memorandum.


text:
    [988 NE2d 478, 965 NYS2d 743]
    The People of the State of New York, Respondent, v Akieme Nesbitt, Appellant.
    Argued February 5, 2013;
    decided March 26, 2013

      APPEARANCES OF COUNSEL

      Robert S. Dean, Center for Appellate Litigation, New York City (David J. Klem of counsel), for appellant.

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

Memorandum.

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

Defendant’s trial counsel informed the court (out of the jury’s presence, but on the record) that he believed his client had no defense to the counts of the indictment charging assault in the first degree. As a result, counsel neither requested the submission of second degree assault as a lesser included offense nor made any serious effort to persuade the jury not to convict defendant of first degree assault. In his closing argument, counsel asked the jury to acquit defendant of attempted murder, but virtually invited a conviction for first degree assault. After saying: “on that particular charge [attempted murder], I’m going to ask that you actually check off the box that says ‘Not Guilty,’ ” he added, as to the assault charges: “Make your decision .... I’m sure whatever it is, it will be the right decision.”

In many cases, there may be strategic reasons for a lawyer’s choice not to request a lesser included offense charge, or to contest one charge vigorously while essentially ignoring others. For that reason, claims of ineffective assistance based on such choices must usually be adjudicated in posttrial motions, so that evidence may be presented to show why counsel acted as he did. But this case, where the lawyer explained his thinking in plain language on the record, is an exception: The record permits us to decide the claim on direct appeal.

Counsel’s belief that his client was without a defense to first degree assault was mistaken. The record affords a good-faith basis for an argument that the injuries the victim received did not result in serious and protracted, or serious and permanent, disfigurement (see Penal Law §§ 120.10 [1], [2]; 10.00 [10]). Our decision in People v McKinnon (15 NY3d 311 [2010]), though rendered after defendant’s trial, shows that the meaning of these statutory terms was an open issue. We conclude that counsel’s error in overlooking that issue rendered his assistance to defendant ineffective (see People v Benevento, 91 NY2d 708 [1998]).

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order reversed and a new trial ordered, in a memorandum.


text:
    [987 NE2d 631, 965 NYS2d 71]
    Kasowitz, Benson, Torres & Friedman, LLP, Appellant, v Duane Reade et al., Respondents.
    Decided March 26, 2013

      APPEARANCES OF COUNSEL

      Kasowitz, Benson, Torres & Friedman, LLP, New York City (Aaron H. Marks of counsel), for appellant.

      McKenna Long & Aldridge, LLP, New York City (Charles E. Dorkey, III, 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. The courts below did not err as a matter of law in dismissing the complaint (see Innophos, Inc. v Rhodia, S.A., 10 NY3d 25, 30 [2008]).

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


text:
    In the Matter of Susan R. Barney, Respondent, v Dennis G. Van Auken, Appellant.
    Submitted February 11, 2013;
    decided March 26, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 856 (2013)].

Judge Rivera taking no part.


text:
    Katharine Biscone, Appellant, v JetBlue Airways Corporation, Respondent, et al., Defendants.
    Decided March 26, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    D.T., Also Known as D.T.-R., Individually and by Roberto Rodriguez, as Commissioner of Social Services of Ulster County, Appellant, v Irwin Rich, Defendant, and Saint Cabrini Home, Inc., Respondent.
    Submitted February 11, 2013;
    decided March 26, 2013
   Motion to dismiss appeal denied.


text:
    In the Matter of Riven Flamenbaum, Deceased. Vorderasiatisches Museum, Respondent; Hannah K. Flamenbaum, Appellant; Israel Flamenbaum, Objectant-Respondent.
    Submitted March 18, 2013;
    decided March 26, 2013
   Motion by Archaeological Institute of America et al. for leave to file a supplemental amici curiae brief on the appeal herein denied.


text:
    Salvatore Guerrera, Respondent, v Robert J. Zysk, Appellant.
    Submitted February 11, 2013;
    decided March 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Amy R. Gurvey (Admitted as Amy Rebecca Weissbrod), an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Decided March 26, 2013
   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 Keisha Gabriel S., Respondent, v Alphonso S., Appellant. (And Another Action.)
    Submitted December 31, 2012;
    decided March 26, 2013
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the order of Supreme Court, 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 Melvin Lee, Appellant, v Erie County District Attorney’s Office, Respondent.
    Submitted February 11, 2013;
    decided March 26, 2013
   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:
    Joseph Murray, Appellant, v Suzanne Murray, Respondent.
    Submitted February 4, 2013;
    decided March 26, 2013
   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 Orange County Department of Social Services, on Behalf of Misty F.-R, Respondent, v Germel Y., Appellant. (And Another Proceeding.)
    Submitted February 11, 2013;
    decided March 26, 2013
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution.


text:
    The People of the State of New York, Appellant, v George Oliveras, Respondent.
    Submitted March 18, 2013;
    decided March 26, 2013
   Motion by Innocence Network 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 nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Mikal Smith, Appellant.
    Submitted January 7, 2013;
    decided March 26, 2013
   Motion to strike appellant’s appendix denied without prejudice to the serving and filing of a supplemental appendix by respondent on or before May 10, 2013.


text:
    The People of the State of New York ex rel. Michael Aziz Zarif Shabazz, Also Known as Michael Hurley, Appellant, v Jerome J. Richards, Acting Judge of Franklin County Court, et al., Respondents.
    Submitted February 11, 2013;
    decided March 26, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 983 (2012)].

Judge Rivera taking no part.


author: Smith, J. (concurring).

text:
    [987 NE2d 636, 965 NYS2d 75]
    Kenneth J. Hecker, Appellant, v State of New York, Respondent.
    Argued February 7, 2013;
    decided March 28, 2013
    APPEARANCES OF COUNSEL

      Tones Vaisey, PLLC, Rochester (Jeffrey A. Vaisey of counsel), for appellant.

      Kenney Shelton Liptak Nowak LLP, Buffalo (Richard C. Brister of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

The issue decided by the Appellate Division—whether the area in which plaintiff suffered his injury was a “floor, passageway [or] walkway” within the meaning of 12 NYCRR 23-1.7 (d)—was not preserved in the Court of Claims, and the Appellate Division’s ruling must be deemed an exercise of its interests of justice jurisdiction. We have no power to review either the Appellate Division’s exercise of its discretion to reach that issue, or the issue itself (Elezaj v Carlin Constr. Co., 89 NY2d 992, 994-995 [1997]; Brown v City of New York, 60 NY2d 893 [1983]; Feinberg v Saks & Co., 56 NY2d 206, 210-211 [1982]; Domino v Mercurio, 13 NY2d 922, 923 [1963]).

Smith, J. (concurring).

The rule the Court’s memorandum opinion relies on is supported by precedent, and I acquiesce, on constraint of that precedent, in the application of the rule to this case. I add this concurrence to explain why I think that the rule is a bad one, and that we should be prepared to reconsider it in a future case.

The decisions cited in the memorandum opinion hold that, where the Appellate Division chooses, in the exercise of its interests of justice jurisdiction, to decide an issue of law that was not preserved in the trial court, we may not review either (1) the Appellate Division’s exercise of its discretion in deciding to reach the issue or (2) the issue itself. The first of these restrictions on our power follows from CPLR 5501 (b), which says that, with exceptions not relevant here, “[t]he court of appeals shall review questions of law only.” The second restriction does not follow from any statute, does not make sense, and sometimes—as in this case—rewards a party for failing to preserve a legal issue.

The question of the applicability of 12 NYCRR 23-1.7 (d) to the area where plaintiff suffered his injuries is an issue of law of the sort that CPLR 5501 (b) authorizes us to review. The Appellate Division’s unreviewable, discretionary choice to reach the issue does not make the issue itself any less one of law. Nor can I imagine any common sense reason why, if the Appellate Division erred in deciding that issue, we should be powerless to correct the error. None of the cases cited in the memorandum opinion, and no other authority of which I am aware, offers any justification, either in statutory language or in policy, for the conclusion that a legal issue in a civil case is made unreviewable here by the failure to preserve it in the trial court, even when the Appellate Division has chosen to review it.

That conclusion is, no doubt, thought to be a corollary of the fiction that we are jurisdictionally barred from reviewing unpreserved issues—a fiction that, as I have explained elsewhere, we have occasionally stated but do not adhere to with any consistency (see Misicki v Caradonna, 12 NY3d 511, 524-526 [2009, Smith, J., dissenting]). The underlying assumption seems to be that unpreserved questions of law are not questions of law at all, but I have found no civil case in which we have made that assumption explicit. We have occasionally said in criminal cases that unpreserved issues are not issues of law (e.g. People v Knowles, 88 NY2d 763, 768 n [1996])—a misreading, as Judge Pigott explained in a recent dissenting opinion, of a statute limited to criminal cases, CPL 470.05 (2) (see People v Riley, 19 NY3d 944, 947-949 [2012]). In the civil area, there is not even a misread statute to support the notion that unpreserved issues are somehow not “legal” ones.

Whatever its rationale may be, the rule we follow today produces a bizarre result. It was defendant, the State of New York, that failed to preserve the section 23-1.7 (d) issue. The Appellate Division, exercising its discretion to forgive defendant’s oversight, reached the question anyway, decided that the section did not apply, and dismissed the claim. And now in this Court, claimant loses the case—whether he is right or wrong on the merits—because of defendant’s neglect. This result is so counter-intuitive—and the cases that we find to compel that result so little known—that the parties not only failed to anticipate it, but assumed the rule to be the opposite. The preservation question is hardly mentioned in the briefs, but when it was raised in oral argument, defendant asserted that the issue was preserved, and claimant said that it was not—i.e., each party took the position that was to the advantage of the other. Counsel will understandably scratch their heads when they read today’s decision.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Smith in a separate opinion in which Judge Pigott concurs; Judge Rivera taking no part.

Order affirmed, with costs, in a memorandum.


text:
    [988 NE2d 480, 965 NYS2d 744]
    The People of the State of New York, Respondent, v Austin Cornelius, Appellant.
    Argued February 6, 2013;
    decided March 28, 2013

      APPEARANCES OF COUNSEL

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

      Cyrus R. Vance, Jr., District Attorney, New York City (Allen J. Vickey and David M. Cohn 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 burglary in the second degree (Penal Law § 140.25 [1] [b]) for unlawfully entering a Duane Reade pharmacy in January 2009 with the intent to steal property and causing physical injury to a loss prevention officer. Prior to trial, defendant objected to the admission of two trespass notices—prepared and issued by non-testifying witnesses—that had allegedly been issued to defendant by Duane Reade employees in 2004. As relevant here, the top portion of the notices contained the following statements:

“I, Austin Cornelius, understand that my privilege to enter all Duane Reade stores is revoked. I was told that if I re-enter any of these stores, I can be arrested for the crime of Trespass, pursuant to section 140.10 of the New York State Penal Law and any other appropriate criminal charge.”

Supreme Court allowed the notices in evidence over defendant’s objection that they constituted “testimonial” evidence and that their admission violated his right of confrontation under Crawford v Washington (541 US 36 [2004]). The Appellate Division reduced defendant’s sentence in the interest of justice but otherwise affirmed the judgment of conviction (89 AD3d 595 [1st Dept 2011]).

Assuming, without deciding, that the contents of the 2004 notices were “testimonial,” their admission in this case was harmless beyond a reasonable doubt. The People’s main witness, the loss prevention officer, testified that he had personally issued defendant a trespass notice in July 2008, just seven months before the incident in question, and had told defendant that his privilege to enter all Duane Reade stores had been revoked and that defendant could be arrested should he reenter. The 2008 trespass notice was also admitted in evidence along with three photographs taken of defendant at the time the notice was issued. In light of this proof, we are satisfied beyond a reasonable doubt that the admission of the 2004 notices did not influence the jury’s verdict.

Defendant’s remaining contentions are without merit.

Chief Judge Lippman and Judges Graffeo, Read, Smith and Pigott concur; Judge Rivera taking no part.

Order affirmed, in a memorandum.


text:
    In the Matter of Ralph T. Byrd, a Suspended Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided March 28, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    City of New York, Respondent, v TransportAzumah LLC, Appellant.
    Submitted February 4, 2013;
    decided March 28, 2013
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed the October 2011 Supreme Court order, 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 County of Nassau et al., Appellants, v State of New York et al., Respondents, and New York State Board of Elections et al., Respondents.
    Submitted December 24, 2012;
    decided March 28, 2013
   Motion, insofar as made by Nassau County Board of Elections and William T. Biamonte, for leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court judgment, dismissed upon the ground that those parties, having not appealed from the judgment to the Appellate Division, may not appeal to the Court of Appeals from that part of the Appellate Division order affirming the judgment; motion, insofar as made by County of Nassau and John A. DeGrace, for leave to appeal from so much of the Appellate Division order as affirmed the Supreme Court judgment, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the Appellate Division order do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Forrest S.-R., an Infant. Administration for Children’s Services, Respondent; Shirley X.S., Appellant. Forrest R., Nonparty Respondent.
    Submitted January 28, 2013;
    decided March 28, 2013
   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:
    Alexandra Gomez-Jimenez et al., Appellants, v New York Law School, Respondent, et al., Defendants.
    Submitted February 18, 2013;
    decided March 28, 2013
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements.

Concur: Chief Judge Lippman and Judges Graffeo, Read and Pigott. Judge Smith dissenting and voting to grant leave to appeal.

Taking no part: Judge Rivera.


text:
    In the Matter of the Claim of Georgiana H. Jungels, Appellant, v SUNY Buffalo, Respondent. Workers’ Compensation Board, Respondent.
    Submitted January 14, 2013;
    decided March 28, 2013
   Motion for reargument of motion for leave to appeal denied [see 20 NY3d 915 (2012)].

Judge Rivera taking no part.


text:
    In the Matter of Keijonte W. Administration for Children’s Services, Respondent; Tamarra W., Appellant, et al., Respondent. (And Four Other Proceedings.)
    Decided March 28, 2013
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v Ernest Davis, Appellant.
    Submitted February 4, 2013;
    decided March 28, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion from the order of the Appellate Term (see CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Appellant, v Gaspari Gutierrez-Lucero, Respondent.
    Submitted February 11, 2013;
    decided March 28, 2013
   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:
    The People of the State of New York, Respondent, v Richard Odum, Appellant.
    Submitted January 28, 2013;
    decided March 28, 2013
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division where the appeal to the Appellate Division was from an order entered in an appeal from another court (see NY Const, art VI, §3 [b] [7]; CPLR 5602 [a]).


text:
    In the Matter of Marvin Pollack, Appellant, v Peter Formica, Respondent. (And Another Proceeding.)
    Submitted February 4, 2013;
    decided March 28, 2013
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.