text:
    John Pickering-George, Also Known as John Robert Daley, Appellant, v Mathew M. Wambua et al., Respondents.
    Submitted January 26, 2015;
    decided April 2, 2015
   On the Court’s own motion, appeal, insofar as taken from the May 2014 Appellate Division judgment, dismissed, without costs, upon the ground that it is untimely (see CPLR 5513 [a]); appeal, insofar as taken from the October 2014 Supreme Court order, dismissed, without costs, upon the ground that it does not lie (CPLR 5601). Motion, insofar as it seeks leave to appeal from the May 2014 Appellate Division judgment, dismissed upon the ground that it is untimely (see CPLR 5513 [b]); motion, insofar as it seeks leave to appeal from the October 2014 Supreme Court order, dismissed upon the ground that it does not lie (CPLR 5602). Motion for poor person relief dismissed as academic.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Charles T. Rawley, Respondent, v Jessica Graham, Appellant.
    Submitted February 23, 2015;
    decided April 2, 2015
   Motions for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motions for poor person relief dismissed as academic.


text:
    Union-Endicott Central School District et al., Appellants, v Joanne Peters, Respondent. (Action No. 1.) In the Matter of the Arbitration between Union-Endicott Central School District, Appellant, and Endicott Teachers’ Association, on Behalf of Joanne Peters, Respondent. (Proceeding No. 1.) In the Matter of Union-Endicott Central School District, Appellant, v Endicott Teachers’ Association et al., Respondents. (Proceeding No. 2.)
    Submitted February 17, 2015;
    decided April 2, 2015
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as modified Supreme Court’s order by confirming the arbitration award and, as so modified, affirmed so much of Supreme Court’s order denying the petition to vacate or modify the arbitration award, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution and is not an order of the type provided for in CPLR 5602 (a) (2).

Judge Stein taking no part.


text:
    Rafia Ahmed, Individually and as Executrix of Nafis Ahmed, Deceased, Appellant, v John Pannone, M.D., et al., Respondents, et al., Defendant.
    Submitted February 9, 2015;
    decided April 7, 2015
   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:
    Taliv Ali, Appellant, v State of New York, Respondent.
    Submitted March 2, 2015;
    decided April 7, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of John Hogan, Appellant, v Department of Corrections and Community Supervision et al., Respondents.
    Submitted February 23, 2015;
    decided April 7, 2015
   Motion for reargument denied [see 24 NY3d 1098 (2015)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of Lazy Acres Park, LLC, Respondent, v Paul Ferretti et al., Appellants.
    Submitted February 23, 2015;
    decided April 7, 2015
   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 entered in this proceeding commenced in Town Court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]).

Judge Fahey taking no part.


text:
    In the Matter of Lazy Acres Park, LLC, Respondent, v Paul Ferretti et al., Appellants.
    Submitted March 9, 2015;
    decided April 7, 2015
   Motion by the National Consumer Law Center et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Fahey taking no part.


text:
    PS 157 Lofts LLC et al., Respondents, v Kimberly Austin et al., Appellants.
    Decided April 7, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain the appeal (NY Const, art VI, § 3; CPLR 5601).

Judges Stein and Fahey taking no part.


text:
    PS 157 Lofts LLC et al., Respondents, v Kimberly Austin et al., Appellants.
    Submitted March 23, 2015;
    decided April 7, 2015
   Motion, insofar as it seeks reargument, denied; motion, insofar as it seeks leave to appeal, dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (NY Const, art VI, § 3; CPLR 5602) [see 24 NY3d 1213 (2015)].

Judges Stein and Fahey taking no part.


text:
    Zenica Segerman, Appellant, v Lutheran Medical Center et al., Respondents.
    Submitted March 9, 2015;
    decided April 7, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1115 (2015)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of Synergy, LLC, et al., Appellants, v Susan Kibler, Assessor, Town of Covington, et al., Respondents, and Wyoming Central School District, IntervenorRespondent. (Action No. 1.) In the Matter of Synergy, LLC, et al., Appellants, v Susan Kibler, Assessor, Town of Covington, et al., Respondents, and Wyoming Central School District, IntervenorRespondent. (Action No. 2.)
    Submitted February 23, 2015;
    decided April 7, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order affirming the Supreme Court judgment, denied; motion, insofar as it seeks leave to appeal from the other Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Synergy, LLC, et al., Appellants, v Susan Kibler, Assessor, Town of Covington, et al., Respondents, and Wyoming Central School District, Intervenor-Respondent. (Action No. 1.) In the Matter of Synergy, LLC, et al., Appellants, v Susan Kibler, Assessor, Town of Covington, et al., Respondents, and Wyoming Central School District, Intervenor-Respondent. (Action No. 2.)
    Submitted March 16, 2015;
    decided April 7, 2015
   Motion by the Commissioner of Agriculture and Markets for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Drew M. VeRost et al., Respondents, v Mitsubishi Caterpillar Forklift America, Inc., et al., Defendants, and Nuttall Gear, LLC, et al., Appellants.
    Submitted February 23, 2015;
    decided April 7, 2015
   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 Masao Yonamine, Appellant, v New York City Police Department et al., Respondents.
    Submitted February 23, 2015;
    decided April 7, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


author: Pigott, J.

text:
    [31 NE3d 112, 8 NYS3d 650]
    The People of the State of New York, Appellant, v Kharye Jarvis, Respondent.
    Argued February 19, 2015;
    decided April 7, 2015

      APPEARANCES OF COUNSEL

      Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for appellant.

      William G. Pixley, Pittsford, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. Counsel’s failure to invoke the court’s prior preclusion order, coupled with his presentation of an alibi defense for the wrong day of the week, could have led to defendant’s conviction. In this case, where the evidence against defendant was particularly weak since credibility issues affected each of the prosecutor’s major witnesses, the cumulative effect of counsel’s lapses deprived defendant of meaningful representation (People v Oathout, 21 NY3d 127, 132 [2013]).

Pigott, J.

(dissenting). In 1992, following a jury trial, defendant was convicted, on compelling evidence, of two counts of murder in the second degree for the fatal shooting of two men. Now, 23 years later, the majority holds that defense counsel was ineffective for not objecting at trial when the prosecutor elicited testimony from a prosecution witness, Charlotte Barn-well, that defendant threatened her prior to her testimony. County Court had earlier ruled that such testimony was inadmissible unless the issue of Barnwell’s delay in coming forward was raised on cross-examination. The majority further holds that defense counsel’s presentation of an alibi defense through three alibi witnesses constitutes ineffective assistance. In my view, defendant failed to meet his burden of establishing the absence of a strategic or other legitimate explanation for defense counsel’s alleged errors. Therefore, I dissent and would affirm the judgment of conviction.

In People v Baldi, this Court held that in order for a defendant to succeed on his claim of ineffective assistance of counsel, defendant must prove that he was deprived of a fair trial by less than “meaningful representation” determined by counsel’s performance “viewed in totality” (People v Oathout, 21 NY3d 127, 128 [2013], citing Baldi, 54 NY2d 137, 147 [1981]). Further, we have said that in reviewing claims of ineffective assistance, we must take care “to avoid both confusing true ineffectiveness [of counsel] with mere losing tactics and according undue significance to retrospective analysis” (Baldi, 54 NY2d at 146).

Defense counsel undoubtedly conducted a diligent defense throughout the trial. He capably argued motions including the mid-trial Molineux/Ventimiglia hearing, delivered a cogent opening statement, cross-examined the People’s witnesses, lodged appropriate objections and offered an articulate closing argument that identified weaknesses in the People’s proof. Defense counsel attacked the prosecution’s proof as to identity, offering three witnesses in support of an alibi and, further, challenged the credibility of each of the People’s witnesses throughout the trial. Moreover, defense counsel’s effectiveness was demonstrated by the length of the jury’s deliberations before it eventually convicted defendant. Given the breadth of defense counsel’s representation, it could not reasonably be said, on this record, that defendant was denied meaningful representation.

The majority bases its holding, in part, on a claimed “lapse” of defense counsel in failing to object to Barnwell’s limited-use testimony. In People v Rivera, this Court held that in order “[t]o prevail on a claim of ineffective assistance of counsel, it is incumbent on defendant to demonstrate the absence of strategic or other legitimate explanations for counsel’s failure” to object (71 NY2d 705, 709 [1988]). “Absent such a showing, it will be presumed that [defense] counsel acted in a competent manner and exercised professional judgment” in choosing not to object (id.). We further noted that only “[i]n the rare case, it might be possible from the trial record alone to reject all legitimate explanations for counsel’s failure” (id.).

In this case, the majority ignores the fact that the People offered a number of strategic reasons why defense counsel may not have objected to Barnwell’s limited-use testimony. For instance, defense counsel may have decided not to object in order to avoid focusing the jury’s attention to Barnwell’s testimony altogether (see People v Taylor, 1 NY3d 174, 177 [2003]). Just prior to the line of questioning concerning the threat, Barnwell had provided damaging testimony that before the shootings she overheard defendant threaten to kill one of the victims.

Alternatively, defense counsel may have sought to use Barn-well’s testimony to defendant’s advantage by calling attention to her difficulties in testifying. It is evident from the record that throughout the prosecution’s case-in-chief Barnwell appeared uncooperative, hesitant and unreliable. In fact, the prosecution asked 11 questions — with two objections by defense counsel — before finally eliciting testimony from Barnwell that she overheard defendant threaten that he was going to shoot the victim. Additionally, Barnwell was unable to recall the threat defendant directed at her without the use of her prior statement to the police. Defense counsel had good reason to believe that Barnwell would continue to undercut her own credibility with her continued reluctance and vacillations.

Also evident from the record is defense counsel’s execution of this strategy. On cross-examination, defense counsel challenged Barnwell’s inability to recall the threat without use of a prior recollection recorded. In summation, defense counsel argued at length about Barnwell’s unreliable testimony, stressing her relationship to the victims and further urging the jurors to disregard her statements. In particular, he argued:

‘You cannot separate some of what she says from her manner in which she says it. This is a case where if you ask to have her testimony read back and then you listen to it, it might make some degree of sense. But you have to remember that when she was testifying, the Judge had to instruct her at one point to answer the question. And the second thing is the most critical piece of evidence she claims she has, she tells the District Attorney she forgot. Well, I forgot that. She had to go off and read her statement, then says, Oh, yeah, now I remember.”

Towards the end of summation, defense counsel returned to Barnwell’s credibility, urging the jury to find Barnwell’s testimony unbelievable. What is more, the jury requested a read-back of Barnwell’s testimony and nonetheless remained deadlocked.

Therefore, “[t]he decision not to object to prosecutorial actions . . . simply ‘reflected] “a reasonable and legitimate strategy under the circumstances and evidence presented” ’ ” (Taylor, 1 NY3d at 177, quoting People v Tonge, 93 NY2d 838, 840 [1999]). Accordingly, while defense counsel’s decision not to object may have been debatable, it is beyond me how the majority can possibly state, on this record, that defendant met his burden of establishing the absence of strategic or legitimate reasons for “[c]ounsel’s failure to invoke the court’s prior preclusion order” (majority mem at 969).

Furthermore, I disagree with the majority’s conclusion that defendant, on this record, met his burden of establishing the absence of strategic or other legitimate explanations for the presentation of an alibi defense through the testimony of defendant’s girlfriend and her mother.

Here, the subject murders occurred at approximately 1:20 a.m. on Tuesday, June 4, 1991. Two alibi witnesses, defendant’s girlfriend and her mother, testified to defendant’s whereabouts on the evening of June 3rd and the early morning hours of June 4th, but incorrectly identified the days of the week on which those dates fell.

As the Appellate Division acknowledged, in reliance on People v Cabrera (234 AD2d 557, 558 [1996]), People v Long (81 AD2d 521, 521-522 [1981]), and Henry v Poole (409 F3d 48, 65-66 [2005], cert denied 547 US 1040 [2006]), presenting an alibi defense for the wrong date or time has been found to constitute ineffective assistance of counsel (113 AD3d 1058, 1061 [4th Dept 2014]). However, in each of these cases, the defense counsel interjected the errors into the alibi witnesses’ testimony. In Cabrera, the defense counsel’s questions focused on a Friday evening when the robbery of which the defendant was convicted occurred early Friday morning (see 234 AD2d at 558). In Long, the defense counsel “directed] [the witness’s] attention to July 22, 1978 in the evening of that day” when the robbery actually occurred in the early morning hours of July 22 (81 AD2d at 521). Likewise, in Henry, the attorney specifically keyed the testimony in his question to the night of August 10, 24 hours after the robbery, thereby leading the witness to testify as to the incorrect night (see 409 F3d at 64).

In this case, however, defense counsel never directed the alibi witnesses to the incorrect days of the week; he only questioned them with respect to their memory of June 3 and 4, the day before and the day of the murders. The alibi witnesses gratuitously and erroneously offered that they were providing alibis for a Friday morning even though defense counsel questioned them specifically about June 3 and 4. Defense counsel cannot possibly be faulted for the witnesses’ failed memories or for their addition of details that were deleterious to defendant’s alibi defense.

To the extent the majority suggests that defense counsel was in fact responsible for the discrepancies exposed in the alibi witnesses’ testimony, it is suggesting that defense counsel suborned perjury and such a claim is predicated on facts not found in the record on appeal.

In short, it is impossible on the record on appeal alone to reject all legitimate explanations for defense counsel’s alleged errors and therefore determine defendant was denied effective assistance of counsel. The claims should be raised in a postconviction application under CPL article 440, where the basis of the claims may be fully developed (see People v Brown, 45 NY2d 852 [1978]).

Chief Judge Lippman and Judges Read, Rivera, Abdus-Saxaam and Stein concur; Judge Pigott dissents in an opinion; Judge Fahey taking no part.

Order affirmed, in a memorandum.

        See generally Manuel Berrélez et al., Note, Disappearing Dilemmas: Judicial Construction of Ethical Choice as Strategic Behavior in the Criminal Defense Context, 23 Yale L & Pol’y Rev 225 (2005).


text:
    [31 NE3d 1194, 9 NYS3d 597]
    The People of the State of New York, Appellant, v William Brown, Respondent. The People of the State of New York, Appellant, v Patrick Thomas, Respondent.
    Argued February 12, 2015;
    decided March 26, 2015

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City {David M. Cohn, Alan Gadlin and Yuval Simchi-Levi of counsel), for appellant in the first and second above-entitled actions.

      Robert S. Dean, Center for Appellate Litigation, New York City {Bruce D. Austern of counsel), for respondent in the first above-entitled action.

      Dechert LLP, New York City {Hector Gonzalez, Laura E. Meehan and James M. McGuire of counsel), and Seymour W. James,

      Jr., Legal Aid Society, Criminal Appeals Bureau, New York City (David Crow and Andrew Fine of counsel), for respondent in the second above-entitled action.
   OPINION OF THE COURT

Memorandum.

The appeals should be dismissed for failure to fulfill the requirements of CPL 450.90 (2) (a).

The Appellate Division, with two Justices dissenting, determined that Supreme Court should have suppressed the showup identification of defendant William Brown (115 AD3d 38 [1st Dept 2014]) and the showup identification of and property seized from defendant Patrick Thomas (115 AD3d 69 [1st Dept 2014]) because the police lacked reasonable suspicion to stop and detain them. Accordingly, the Court reversed the judgment of conviction and sentence in each case, granted defendants’ respective motions to suppress and remanded for a new trial preceded by an independent source hearing. In each case, one of the dissenting Justices granted the People leave to appeal to us (2014 NY Slip Op 66369 [U] [1st Dept 2014]; 2014 NY Slip Op 66368 [U] [1st Dept 2014]).

Whether the circumstances of a particular case rise to the level of reasonable suspicion presents a mixed question of law and fact (see e.g. People v Howard, 74 NY2d 943 [1989] [dismissing an appeal from an Appellate Division order of reversal involving the mixed question of whether the police harbored a reasonable suspicion that the defendant was about to commit a crime]). Because the Appellate Division’s reversals were thus not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), these appeals are not authorized to be taken.

While acknowledging that “determinations as to reasonable suspicion typically present a mixed question of law and fact,” the dissent cites People v McRay (51 NY2d 594 [1980]) for the proposition that these cases instead involve a straight-up question of law — namely, “the minimum showing necessary to establish reasonable suspicion” (dissenting op at 976 [internal quotation marks omitted]). In McRay, though, the Appellate Division reversed the suppression court on the ground that the People’s proof was insufficient as a matter of law to support probable cause to arrest (id. at 605). When we disagreed and reversed, we therefore remitted to the Appellate Division for factual review, emphasizing that an inference of probable cause was permitted, but not required, on the facts established (id. at 605-606). Here, by contrast, the Appellate Division reversed the suppression court because, when exercising its independent fact-finding powers, it drew a different inference from the established facts, thus deciding a mixed question of law and fact. The dissenting Judge strongly disagrees with the Appellate Division. But the views of individual Judges of this Court on the merits of defendants’ suppression motions are beside the point because the Criminal Procedure Law simply does not vest us with jurisdiction to entertain these appeals.

Pigott, J.

(dissenting). Although determinations as to reasonable suspicion typically present a mixed question of law and fact, where the issue presented involves the “minimum showing necessary to establish” reasonable suspicion, “a question of law is presented for [our] review” (People v McRay, 51 NY2d 594, 601 [1980]). Here,.the Appellate Division erred as a matter of law in holding that the undisputed facts and the reasonable inferences drawn therefrom failed to satisfy the minimum showing necessary to establish reasonable suspicion. Therefore, I dissent and would reverse the order of the Appellate Division and remit the cases to that Court for a review of the facts in accordance with this Court’s decision in People v McRay.

In the early morning hours of December 9, 2010, Sergeant Kenneth Monahan and Officers Edward Carey and Thomas Donovan, members of the “cabaret unit,” a unit whose primary duty is the “midnight enforcement of bars and nightclubs,” including “drug sales, fraudulent accostings [and] loitering for prostitution,” were on uniformed patrol in the Times Square area.

At around 1:30 a.m., Officer Carey encountered defendant Brown — whom he had previously arrested twice for fraudulent accosting — outside of a club near Times Square and directed him to leave the area.

Three hours later, at around 4:30 a.m., while sitting in an unmarked police van, the officers spotted defendants Brown and Thomas running down the middle of Broadway in Times Square, looking back over their shoulders as they ran. Officer Carey apprised his colleagues of Brown’s identity. Sergeant Monahan recognized Thomas as someone who associated with people, other than Brown, who preyed on victims in the Times Square area. The officers exited the van, called to defendants and both men stopped. Brown, who was out of breath, sat on the ground. Neither Brown nor Thomas was placed in handcuffs. Sergeant Monahan contemporaneously located a robbery victim outside of the club where Officer Carey had seen Brown three hours earlier. After the victim identified both Brown and Thomas as the perpetrators, they were placed under arrest. The victim’s Rolex and $185 in cash were recovered from Thomas.

Defendants thereafter moved to suppress the showup identification. After a suppression hearing where the court heard testimony from two of the police officers, Supreme Court denied the motion. A divided Appellate Division reversed, ordered suppression of the victim’s out-of-court identification, and remanded for a new trial, holding that “[t]he fact that the officers observed defendant [s] . . . running does not elevate the level of suspicion” (115 AD3d 38, 40 [1st Dept 2014]).

“Where a police officer entertains a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or misdemeanor, the CPL authorizes a forcible stop and detention of that person” (People v De Bour, 40 NY2d 210, 223 [1976], citing CPL 140.50 [1]). Reasonable suspicion is defined as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 NY2d 106, 112-113 [1975]). A stop based on reasonable suspicion will be upheld if the officer can identify “specific and articulable facts” that, together “with any logical deductions, reasonably prompted th[e] intrusion” {id. at 113).

Here, the officers observed defendants running down a major thoroughfare in the early morning hours, looking back over their shoulders. They recognized the two men because they were known to have engaged in, or had been associated with people engaged in, crimes in that area. The officers also knew that Brown had a history of fraudulent accosting in the Times Square area. In fact, only three hours earlier Officer Carey had observed Brown in front of the club and directed him to leave. The officers also knew that Thomas fraternized with people, other than Brown, involved in similar scams. Clearly, under these circumstances, the police officers possessed reasonable suspicion to stop Brown and Thomas. They would have been derelict in their duty had they not done so.

The present case is factually akin to the circumstances in People v Evans (65 NY2d 629 [1985]), where this Court determined that the initial stop of the defendant was based on reasonable suspicion where the arresting officers observed the defendant running from a subway station, carrying a white shopping bag and looking over his shoulder several times, and then trying to gain entrance to one apartment building after another. In concluding that the stop was reasonable, this Court held: “Although each factor, standing alone, could be susceptible to an innocent interpretation, a view of the entire circumstances indicates that the officers entertained a reasonable suspicion that the defendant had committed a crime . . . and was attempting to flee” {id. at 630).

Likewise, in this case, the combination of the officers’ particular knowledge of each defendant’s criminal history coupled with defendants’ flight from an area where defendants were known to fraternize, while looking over their shoulders, was sufficient to provide the officers with reasonable suspicion (see People v Sierra, 83 NY2d 928, 929 [1994] [“flight. . . combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, may give rise to reasonable suspicion”]).

Morever, the motion court’s finding of reasonable suspicion under these circumstances is not inconsistent with our holding in People v Johnson (64 NY2d 617 [1984]). There we held that an officer’s knowledge that a suspect had previously burglarized houses in a neighborhood in which the suspect was walking did not by itself amount to reasonable suspicion {see id. at 619), but indicated that we might have reached a different conclusion had the suspect been fleeing the scene {see id. [noting that “there (was) no other testimony suggesting that his behavior was furtive or his movements unusual”]).

The officers plainly had reason to believe that defendants had engaged in criminal activity. As we cautioned in People v Chestnut (51 NY2d 14 [1980]),

“[c]ourts simply must not, in this difficult area of street encounters between private citizens and law enforcement officers, attempt to dissect each individual act by the policemen; rather, the events must be viewed and considered as a whole, remembering that reasonableness is the key principle when undertaking the task of balancing the competing interests presented” {id. at 23).

Indeed, “[b]y disapproving of the stop of defendant[s], . . . [the majority] is discouraging police work that is not only constitutionally proper but also laudable. Such a precedent will serve to impede effective law enforcement and interfere with the protection and safety of the public” (People v Brown, 115 AD3d 38, 41 [2014, Tom, J.P. and Saxe, J., dissenting]). I would reverse the order of the Appellate Division and remit the cases to that Court for a review of the facts in accordance with this Court’s decision in People v McRay.

Chief Judge Lippman and Judges Read, Rivera, AbdusSalaam, Stein and Fahey concur; Judge Pigott dissents in an opinion.

In each case: Appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]), in a memorandum.


text:
    Aurora Loan Services, LLC, Respondent, v Monique Taylor et al., Appellants, et al., Defendants.
    Submitted April 6, 2015;
    decided May 5, 2015
   Motion by MERSCORP Holdings, Inc., 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. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    James Brady, Appellant, v Jeffrey Katz et al., Respondents. James Brady, Appellant, v 450 West 31st Street Owners Corp. et al., Respondents.
    Submitted March 9, 2015;
    decided May 5, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the actions within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    Emigrant Savings Bank-Brooklyn/Queens, as Assignee of Emigrant Mortgage Company, Inc., Respondent, v Bonifacio Makinano, Appellant, et al., Defendants.
    Submitted April 27, 2015;
    decided May 5, 2015
   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:
    Greater New York Taxi Association et al., Appellants, v New York City Taxi and Limousine Commission, a Charter-Mandated Agency, et al., Respondents, and Nissan Taxi Marketing, N.A., LLC, et al., Intervenors-Respondents.
    Submitted April 6, 2015;
    decided May 5, 2015
   Motion by Design Trust for Public Space et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    Green Tree Credit, LLC, Formerly Known as Conseco Finance Credit Corp., Respondent, v Godfrey Jelks, Individually and as Executor of Eva T. Clark, Deceased, Appellant, et al., Defendants.
    Submitted February 23, 2015;
    decided May 5, 2015
   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:
    Mark Robert Gordon, Appellant, v Chubb Group of Insurance Company et al., Respondents.
    Decided May 5, 2015
   Appeal, insofar as taken from the November 2014 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such order does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the February 2014 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of the Claim of Terri A. Jablonski, Appellant. Commissioner of Labor, Respondent.
    Decided May 5, 2015
   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 Erika Kwasnik, Respondent, v John B. King, as Commissioner of Education of the State of New York, et al., Respondents, and Board of Education of the Norwich City School District et al., Appellants.
    Submitted February 23, 2015;
    decided May 5, 2015
   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 Irene Leung, Appellant, v New York City Department of Buildings et al., Respondents.
    Decided May 5, 2015
   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 Lourdes G., Respondent, v Julio P., Appellant.
    Submitted March 2, 2015;
    decided May 5, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1051 (2014)].

Judges Stein and Fahey taking no part.


text:
    In the Matter of New York City Asbestos Litigation. Doris Kay Dummitt, Individually and as Executrix of Ronald Dummitt, Deceased, Respondent, v A.W. Chesterton et al., Defendants, and Crane Co., Appellant.
    Submitted April 20, 2015;
    decided May 5, 2015
   Motion by The Retired Enlisted Association 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 Patrolmen’s Benevolent Association of the City of New York, Inc., et al., Appellants, v City of New York et al., Respondents.
    Submitted April 27, 2015;
    decided May 5, 2015
   Motion by Harry Nespoli, as Chair and on behalf of the New York City Municipal Labor Committee, 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.


text:
    The People of the State of New York, Respondent, v Leroy Carver, Appellant.
    Submitted April 20, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Steven Henderson, Appellant.
    Submitted April 20, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Marcellus Johnson, Appellant.
    Submitted April 27, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Stanley Neustadter, care of Cardozo Law School Criminal Appeals Clinic, 55 Fifth Avenue, 11th Floor, New York, NY 10003 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Corey A. Latimer, Appellant.
    Submitted April 27, 2015;
    decided May 5, 2015
   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 Tyrone D. Manor, Appellant.
    Submitted April 20, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Timothy P. Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Joel Nelson, Appellant.
    Submitted April 20, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Anthony Parson, Jr., Appellant.
    Submitted April 6, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.

Judge Fahey taking no part.


text:
    The People of the State of New York, Respondent, v Baasil Reynolds, Appellant.
    Submitted April 27, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Michael Simmons, Appellant.
    Submitted February 17, 2015;
    decided May 5, 2015
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Louis Speaks, Appellant.
    Submitted March 30, 2015;
    decided May 5, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Jarrod Perez, Appellant, v Lenore Fleischer et al., Individually and Doing Business as 608 Partnership, Respondents.
    Submitted March 2, 2015;
    decided May 5, 2015
   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.

Judge Stein taking no part.


text:
    Philip Seldon, Appellant, v Lewis Brisbois Bisgaard & Smith LLP, et al., Respondents.
    Submitted February 9, 2015;
    decided May 5, 2015
   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 Robin Watson, Appellant, v New York City Housing Authority, Respondent.
    Submitted April 6, 2015;
    decided May 5, 2015
   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 and a stay dismissed as academic.


text:
    [31 NE3d 595, 9 NYS3d 178]
    In the Matter of Jeffrey P. Dorrance.
    Decided May 12, 2015
   OPINION OF THE COURT

On consideration of the continuation of this Court’s March 26, 2015 suspension, with pay, of the Honorable Jeffrey P. Dorrance from his office of Justice of the Green Island Town Court, Albany County (25 NY3d 925 [2015]), it is determined that the suspension continue, with pay, effective immediately.

Concur: Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and Fahey.


text:
    [32 NE3d 387, 10 NYS3d 172]
    The People of the State of New York, Respondent, v Clifford Graham, Appellant.
    Argued March. 25, 2015;
    decided May 5, 2015
    APPEARANCES OF COUNSEL

      Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of counsel), for appellant.

      William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

After defendant attempted to use counterfeit $20 bills to pay for a hotel room and buy groceries at a convenience store, he was arrested and taken to the Criminal Investigations Division of/ tfy^ Syracuse Police Department. A detective read defendant his Miranda rights, which he waived. Defendant did not, at that time, provide consistent answers to the detectives’ questions regarding who had given him the counterfeit money. The detectives, therefore, ended the interrogation and told defendant that, if he wanted to give them any further information that would be useful to their investigation, he would have to arrange to speak to them through defense counsel.

Approximately three weeks later, defense counsel contacted the detectives and indicated that defendant wished to share additional information about the source of the counterfeit money. Defendant spoke at length with counsel in private before meeting with one of the detectives, and counsel was present for a portion of the ensuing conversation until leaving, with defendant’s consent, to attend to a prior commitment. It is undisputed that defendant was not advised of his Miranda rights at this second interview. During that interview, he made statements that were allegedly inculpatory.

Defendant subsequently moved, in a pro se omnibus motion, for suppression of the statements that he made to the detectives. He asserted that his statements were the product of “custodial interrogation,” and were made in violation of his Fifth and Fourteenth Amendment rights under the Federal Constitution, as well as his rights under the State Constitution and CPL 60.45. Supreme Court directed a “pre-trial hearing ... on defendant’s motion to suppress [his] statement(s) based upon Miranda v. Arizona, 384 US 436 [1966] and traditional involuntariness grounds.”

During the suppression hearing, defendant asked the court how long his initial waiver of his Miranda rights remained valid, and the People conceded that the waiver was good only for the day on which he was first arrested. Defendant then conducted a cross-examination of the detective with whom he spoke during the second interview. Supreme Court attempted to direct defendant’s focus by stating, “[s]ee, you’re not going into the circumstances surrounding your Miranda rights,” and pointing out that defendant’s questions had no bearing on “whether the interrogation session was legal.”

Supreme Court’s efforts to focus defendant on a possible violation of his Miranda rights were to no avail and, at the close of the suppression hearing, defendant made an argument that the police lacked probable cause to arrest him. Rejecting that argument “because the orders directing the hearings did not involve any type of probable cause issue,” the court denied suppression of the statements made by defendant during the second interview. As relevant here, the court reasoned that

“defendant was in custody on the matter, represented by counsel on the matter and therefore he could not waive counsel on the matter unless counsel was present, which did occur. Once a counsel waiver occurred in counsel’s presence and the client agreed to submit to the interview on the topic at hand, to wit: counterfeit bills, counsel’s presence thereafter is not required.”

The matter proceeded to trial, at the close of which a jury found defendant guilty of two counts each of criminal possession of a forged instrument in the first degree and petit larceny. Upon defendant’s appeal, the Appellate Division affirmed (107 AD3d 1421 [2013]). Regarding defendant’s motion to suppress statements made during the second interview, the Court concluded that “[i]nasmuch as defendant’s counsel was present during the first 20 minutes of the interview and informed the detectives that defendant was willing to cooperate, it was permissible for the officers to infer from defendant’s conduct and his attorney’s assurances that defendant’s waiver of his Miranda rights was made on the advice of counsel” (id. at 1422-1423). A Judge of this Court granted defendant leave to appeal (23 NY3d 963 [2014]).

Because we conclude that defendant failed to preserve the issue that he raises on this appeal, we affirm. “Under article VI, § 3 of the New York State Constitution, the Court of Appeals, with limited exceptions, is empowered to consider only ‘questions of law’ ” (People v Gray, 86 NY2d 10, 20 [1995]; see People v Hawkins, 11 NY3d 484, 491 [2008]). As relevant here, CPL 470.05 (2) provides that a question of law regarding a ruling is presented in a criminal proceeding “when a protest thereto was registered, by the party claiming error, at [a] time . . . when the court had an opportunity of effectively changing the same . . . or if in response to a protest by a party, the court expressly decided the question raised on appeal.”

The issue argued on this appeal is whether the police were required to again read defendant his Miranda rights when they interviewed him a second time, at his request and in the presence of counsel. In particular, defendant contends that the courts below erred in determining that the presence of counsel obviated the need for police to advise him of his right to remain silent during the second interview. Defendant, however, did not make this argument in his motion papers to the trial court or at the suppression hearing.

Moreover, while a general objection — such as that contained in defendant’s omnibus motion — is sufficient to preserve an issue for our review when the trial court “expressly decided the question raised on appeal” (CPL 470.05 [2]; see People v Smith, 22 NY3d 462, 465 [2013]; People v Prado, 4 NY3d 725, 726 [2004]), here, Supreme Court did not expressly decide the issue of whether the police were required to advise defendant of his right to remain silent under the circumstances presented by the second interview. Rather, the court’s decision was focused on the right to counsel and whether counsel was required to be present for the entirety of that interview. The court decided that counsel’s continued presence was not required once defendant waived his right to counsel in counsel’s presence and agreed to speak to police regarding the counterfeit bills. Inasmuch as defendant made only a general motion for suppression and it cannot be said that the court expressly decided the issue that defendant raises on this appeal, preservation has not been established and that issue is, therefore, beyond our power to review (see People v Turriago, 90 NY2d 77, 83-84 [1997]; People v Johnson, 83 NY2d 831, 834 [1994]).

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Stein concur; Judge Fahey taking no part.

Order affirmed, in a memorandum.


text:
    [32 NE3d 384, 10 NYS3d 169]
    The People of the State of New York, Respondent, v Pernell A. Flanders, Appellant.
    Argued March 25, 2015;
    decided May 5, 2015

      APPEARANCES OF COUNSEL

      John J. Raspante, Utica, for appellant.

      Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant was indicted on one count each of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]), assault in the first degree (Penal Law § 120.10 [1]), criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]) and reckless endangerment in the first degree (Penal Law § 120.25). Following trial, he was convicted of all four counts.

There was evidence at trial that defendant shot the victim following an argument between the victim’s fiancée and the mother of the victim’s child, who is defendant’s sister. On the evening of the shooting, the victim saw defendant drive by his house slowly with his vehicle lights off and then pull over. The victim approached defendant to inquire why he was there. During the conversation, the other occupant of defendant’s vehicle got out of the car and punched the victim in the head, which led to a fistfight. Defendant approached the victim, pistol-whipped him in the head and then shot him, first with a .380 caliber semi-automatic pistol and then with a .22 caliber rifle that defendant retrieved from his car. The victim’s fiancée was in the immediate vicinity at the time of the shooting.

Two counts of the indictment charged defendant with assault in the first degree and reckless endangerment in the first degree, alleging that he committed those acts by use of a .380 semi-automatic pistol and a .22 rifle. The trial court’s instruction to the jury on those counts tracked that conjunctive language. During their deliberations, the jurors sent out a note asking, with regard to those counts, whether they must believe that both guns were involved and fired by the defendant. In response to the question, the trial court instructed the jury that it “must be proven to your satisfaction beyond a reasonable doubt, that either of the weapons were involved or both, as long as you find that there was a deadly weapon involved.”

On this record, defendant’s current contentions that the jury instruction and the evidence at trial rendered the indictment duplicitous lack merit. CPL 200.30 (1) requires that “[e]ach count of an indictment . . . charge one offense only.” Thus, a count is duplicitous if it charges more than one offense. In People v Shack (86 NY2d 529, 540-541 [1995]), this Court held that “[w]hether multiple acts may be charged as a continuing crime is resolved by reference to the language in the penal statute to determine whether the statutory definition of the crime necessarily contemplates a single act.” Under Penal Law § 120.10 (1), a person is guilty of assault in the first degree when “[w]ith intent to cause serious physical injury to another person, he [or she] causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument.” Thus, the prosecution was not required to prove that defendant used two weapons. Penal Law § 120.25 states that a person is guilty of reckless endangerment in the first degree when, “under circumstances evincing a depraved indifference to human life, he [or she] recklessly engages in conduct which creates a grave risk of death to another person.” Again, the prosecution was not required to prove that defendant used both weapons.

People v Charles (61 NY2d 321 [1984]), relied upon by the Appellate Division, is instructive here. In Charles, the defendant was charged with receiving a bribe in the second degree. The indictment charged that defendant solicited, agreed to accept and accepted a bribe. The statute, however, defined receiving a bribe in the second degree as occurring when a public servant “solicits, accepts or agrees to accept any benefit from another person” (id. at 325). The defendant contended that the prosecution was bound by the use of the conjunctive language and that the court’s instruction using the language of the statute, rather than the language of the indictment, was error. This Court rejected that argument, holding that “[t]he use of the conjunctive ‘and’ rather than the disjunctive ‘or’ in the indictment charged more than the People were required to prove under the statute and did not bind the prosecution to prove all three acts” (id. at 327). Here, as in Charles, the People were not required to prove that defendant used both weapons in order to prove that he was guilty of assault and reckless endangerment in the first degree, because the offenses “may be committed by doing any one of several things” (id. [internal quotation marks omitted]).

Furthermore, the evidence at trial did not render the charges duplicitous. There was evidence that defendant attacked the victim out of one impulse — to seek revenge for the fiancée’s alleged assault on defendant’s sister. We noted in People v Alonzo (16 NY3d 267, 270 [2011]) that “[a]s a general rule ... it may be said that where a defendant, in an uninterrupted course of conduct directed at a single victim, violates a single provision of the Penal Law, he commits but a single crime.” Although defendant used two guns, this was a single incident (see e.g. People v Wells, 7 NY3d 51 [2006] [a single count of attempted murder in the second degree was not duplicitous even where the evidence could not establish with certainty which of two potential victims was the defendant’s intended victim]).

Thus, the counts of the indictment were not rendered duplicitous by the court’s instructions or the evidence, and we reject defendant’s contention that his counsel was ineffective for failing to seek dismissal of the attempted murder in the second degree, assault in the first degree and reckless endangerment in the first degree counts.

We have considered defendant’s remaining argument and consider it to be without merit.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Stein concur; Judge Fahey taking no part.

Order affirmed, in a memorandum.


text:
    [32 NE3d 377, 10 NYS3d 162]
    In the Matter of Trenasia J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 1.) In the Matter of Raymond J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 2.) In the Matter of Tavia J., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 3.) In the Matter of Brije D., an Infant. Administration for Children’s Services, Respondent; Frank J., Appellant. (Proceeding No. 4.)
    Argued February 11, 2015;
    decided May 5, 2015

      APPEARANCES OF COUNSEL

      Maxine H. Park, New York City, for appellant.

      Zachary W. Carter, Corporation Counsel, New York City (Kathy Chang Park, Richard Dearing and Larry A. Sonnenshein of counsel), for respondent.

      Karen P. Simmons, The Children’s Law Center, Brooklyn (Barbara H. Dildine and Janet Neustaetter of counsel), Attorney for the J. Children.

      Seymour W. James, Jr., The Legal Aid Society, New York City (Marcia Egger and Tamara A. Steckler of counsel), Attorney for the Child Brije D.

      Lansner & Kubitschek, New York City (David J. Lansner of counsel), and The Bronx Defenders, Bronx (Emma S. Kettering-ham and Saul Zipkin of counsel), for The Bronx Defenders and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

The primary issue in this appeal is whether appellant Frank J. was a “person legally responsible” (PLR) as defined by Family Court Act § 1012 (g) and our decision in Matter of Yolanda D. (88 NY2d 790 [1996]). We agree with the Appellate Division, and disagree with the dissent, that the evidence was sufficient to establish that Frank J. was a PLR for the subject child at the relevant time.

Frank J. is the uncle of the subject child through marriage, and the father of three children (the J children). In February 2011, the Administration for Children’s Services (ACS) filed petitions against Frank J. alleging that according to statements made by the subject child, Frank J. “forcefully attempted to have sexual intercourse” with her “after entering the bathroom while she was taking a shower” during an overnight visit at Frank J.’s home on December 31, 2010. The child, who was 11 years old at the time of incident, alleged that while she was taking a shower, Frank J. entered the bathroom and asked her if she wanted to make $5, warning her against telling her mother. The child alleged that Frank J. forcibly grabbed her by her hips, pulled her towards him, and attempted to pull out his penis. The child then ran crying to her cousin’s room, put on some clothes and ran out of the house to a nearby supermarket where an ambulance was called.

The Family Court Act defines a “respondent” in a child protective proceeding as “any parent or other person legally responsible for a child’s care who is alleged to have abused or neglected such child” (Family Ct Act § 1012 [a]). A person legally responsible for a child is defined as

“the child’s custodian, guardian, [or] any other person responsible for the child’s care at the relevant time. Custodian may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child” (Family Ct Act § 1012 [g]).

Frank J. moved to dismiss the petition for want of jurisdiction, arguing that he was not a PLR because he was neither the guardian nor custodian of the child, and she was never a member of his household. The attorney for the J children supported Frank J.’s motion to dismiss. After a hearing on the motion to dismiss, where the court heard testimony from the responding police officer and the child’s mother, Family Court, Kings County, denied Frank J.’s motion to dismiss, stating that there was no “serious question that [Frank J.] is a [PLR] within . . . the meaning” of the statute. The matter then proceeded to a fact-finding hearing, at which the subject child, the responding police officer, and Frank J. testified. The child’s testimony essentially tracked the allegations of the complaint, as did the testimony of the responding officer, who reported the child’s version of the incident. Frank J. denied the allegations, and testified that the child had become upset when he scolded her for eating in one of the bedrooms. Upon conclusion of the testimony, the Family Court held that Frank J. abused the child “by committing an act of attempted sexual abuse in the [s]econd [d]egree” and found that, as a result, he had derivatively neglected his own children.

The Appellate Division affirmed (Matter of Trenasia J. [Frank J.], 107 AD3d 992 [2013]). The Court stated that “[c]ontrary to [Frank J.’s] contention, . . . Family Court correctly found him to be a [PLR] . . . within the meaning of the Family Court Act” (107 AD3d at 993, citing Matter of Yolanda D., 88 NY2d 790, 797 [1996], and Matter of Christopher W., 299 AD2d 268 [1st Dept 2002]). The Court determined that ACS established by a preponderance of the evidence that Frank J. abused the child. Additionally, the Court stated that the finding of derivative neglect was also proper because Frank J.’s “attempt to sexually abuse his niece while his two young daughters were home, at a time when he was the sole adult present, evinced a flawed understanding of his duties as a parent and impaired parental judgment” (id. at 993-994). This Court granted Frank J.’s motion for leave to appeal (22 NY3d 859 [2014]).

Matter of Yolanda D. (88 NY2d 790 [1996]) is this Court’s seminal decision on the factors to consider in determining who is a PLR under Family Court Act § 1012 (g). In that case we recognized

“that parenting functions are not always performed by a parent but may be discharged by other persons, including custodians, guardians and paramours, who perform caretaking duties commonly associated with parents. Thus, the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents” (id. at 795).

We held that deciding whether “a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case” (id. at 796). We listed factors to be considered when determining who is a PLR, which include (1) “the frequency and nature of the contact,” (2) “the nature and extent of the control exercised by the respondent over the child’s environment,” (3) “the duration of the respondent’s contact with the child,” and (4) “the respondent’s relationship to the child’s parent(s)” (id.). This Court also stated that “article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor or those persons who provide extended daily care of children in institutional settings, such as teachers” (id.).

Yolanda D. concerned whether a respondent uncle, who was alleged to have abused his 12-year-old niece during her visits to his Pennsylvania home, was a PLR. The uncle described the contact between him and his niece as six to seven visits during the summer of 1991, with three to four overnight visits. The uncle’s girlfriend who lived in the house at the time stated that the niece spent two weekends a month during the summer at his home. The evidence indicated that the niece and her mother lived in New York and the niece’s mother did not accompany her on these visits to Pennsylvania. Additionally, the uncle regularly visited his niece’s home. Family Court and the Appellate Division determined that the uncle was a PLR, and we agreed because the uncle was “regularly in the same household as [the child] during the relevant time, an environment he controlled, and he regarded his relationship with [the child] as close and familial” and further he permitted the child “to stay overnight in his home, [thereby] providing] shelter, a traditional parental function, in an area geographically distant from the child’s own household” (id. at 797).

Based on the evidence admitted during Frank J.’s hearing, there is record support for Family Court’s affirmed finding of fact that Frank J. was a PLR under Family Court Act § 1012 (g) and Yolanda D. With respect to “the frequency and nature of the contact,” and “the duration of the respondent’s contact with the child,” under Yolanda D., the responding police officer testified without objection that the child informed her that she had been staying at Frank J.’s home for a week prior to the incident. The child’s mother testified that during the year before this incident, the child had visited Frank J.’s home eight or nine times and four of those occasions were overnight visits. There was also testimony that Frank J. and the child interacted at family functions such as family reunions, holidays and birthday parties. Thus, the total contacts between Frank J. and the child were significant.

As to “the nature and extent of the control exercised by the respondent over the child’s environment,” this incident occurred in Frank J.’s home during an overnight visit, and he was the only adult present at the time. Additionally, Family Court noted in its oral decision denying Frank J.’s motion to dismiss that the child’s mother “testified that she expected her sister to care for the child, but if the sister wasn’t there then [Frank J.] was expected to care for the child.” Finally, in considering “respondent’s relationship to the child’s parent(s),” Frank J. is related to the child through marriage, as his wife’s sister is the child’s mother. Although the existence of a familial relationship is not dispositive, it is appropriately considered in determining whether a respondent is a PLR.

Applying the Yolanda D. factors to these facts — given the nature and length of the contacts between Frank J. and the child, his control over the child’s environment and their familial relationship — record support exists for the lower courts’ determination that Frank J. is a PLR under Family Court Act § 1012 (g) and for the determination of derivative neglect.

Rivera, J. (concurring in part and dissenting in part). In order for an individual to be a “person legally responsible for [a] child’s care” (PLR) under Family Court Act § 1012 (g), and thus a proper respondent in a child protective proceeding, such person must serve “as the functional equivalent of a parent in a familial or household setting” (Matter of Yolanda D., 88 NY2d 790, 796 [1996]). As interpreted by this Court, section 1012 (g) does not extend to “persons who assume fleeting or temporary care of a child” (id.). Given the need in these cases for judicial findings regarding personal relationships and interactions, as well as an assessment of the parental functions undertaken by nonparents, a proper determination of whether a respondent’s actions are “analogous to parenting” requires a well-developed factual record of the nature and extent of a respondent’s caretaker responsibilities (id.).

Unlike the majority I consider the record in this appeal insufficient, as a matter of law, to support the Family Court’s determination that Frank J. is a PLR because the record is devoid of facts regarding the nature and duration of Frank J.’s caretaker responsibilities, especially given the mother’s testimony that Frank J.’s wife, the child’s aunt, was in charge of the child’s care when the mother was absent. Moreover, the record suggests that the Family Court relied disproportionately on some undefined normative-based assumption about Frank J. and the child’s familial bond, in contravention of this Court’s interpretation of the statute. I therefore dissent.

In Yolanda D. this Court set forth a non-exhaustive list of factors that a court should consider as part of its “discretionary, fact-intensive inquiry” into whether a person is a functional equivalent of a parent (id.). The Court identified as relevant “the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s)” (id.). These factors “illustrate some of the salient considerations in making an appropriate determination” (id.). No one factor is dispositive, but rather each is to be accorded a weight appropriate to the “circumstances of the particular case,” mindful that the “purpose of the inquiry will remain constant” (id.). Essentially, they embody this Court’s recognition that the focus is on the person’s responsibility for “caretaking duties commonly associated with parents” and the person’s connection to the child (id. at 795).

Careful consideration of the record herein, with an eye to the “purpose of the inquiry” attendant to a section 1012 (g) PLR assessment, establishes that it does not support a determination that Frank J. is a PLR within the meaning of section 1012 (g). The majority concludes otherwise, and, applying the factors set forth in Yolanda D., relies, in part, on the sum total of the contacts between Frank J. and the child, characterizing them as “significant.” However, the record is simply not clear as to the contacts between Frank J. and the child. Significantly, the majority’s analysis fails to consider Frank J.’s actual responsibilities for the child’s care during any of the visits to the home, or the nature of the interactions during the times when they are supposedly in contact. Yet, these details are essential to the section 1012 (g) “fact-intensive inquiry.” Of course, it is simply not possible to assess the relevant facts because the record here is best characterized by its sheer vagueness regarding the contacts and Frank J.’s role. Indeed, it lacks critical details as to the nature and extent of Frank J.’s contacts and responsibilities over the child necessary to elevate him to “the functional equivalent of a parent” (id. at 796).

As is the case in this appeal, Yolanda D. involved an uncle/ niece relationship. However, unlike the facts that established the uncle’s parenting role and close relationship with his niece in Yolanda D., the record here lacks evidence of a similar bond or of Frank J.’s parental responsibilities during the few times that he interacted with the child. In Yolanda D. the niece visited her uncle’s apartment unaccompanied six or seven times, approximately every other week, during the summer in which the abuse occurred. Here, Frank J. had some unspecified amount of contact with the child a total of eight or nine days across an entire year, which included traditional family gatherings like cookouts and birthday parties. While in both Yolanda D. and the instant appeal the children stayed overnight approximately four times, in Yolanda D. those visits were during a concentrated period of the summer. Whereas here, the mother testified that the child stayed overnight three times in February the year preceding the abuse and possibly on Thanksgiving Day in November. Thus, the child went almost a year without visiting her uncle and aunt’s home. Moreover, in Yolanda D. the visits were planned specifically to allow the niece to spend time with the uncle. Here, the mother testified that the child went to the home of the uncle and aunt to visit her cousins, Frank J. and the aunt’s children. When asked why her daughter went to the home, the mother did not even mention Frank J. Instead, she said her daughter visited “[b]ecause she love[s] . . . my sister and her cousins [,] [s]he wants to play with her cousins.” Thus, far from establishing that Frank J. and the child interacted in a parent relationship, and that they were “pretty close,” as was the case of the uncle and niece in Yolanda D., here the evidence establishes that Frank J. and the child had limited contact, usually in the company of other family members, and that the child visited the home because she wanted to be with her aunt and cousins (id. at 797).

Moreover, Frank J., unlike the uncle in Yolanda D., was not the person primarily responsible for the child during her visits to the household. According to the mother’s testimony, it was her sister, Frank J.’s wife and the child’s aunt, who was responsible for the child when she visited Frank J.’s home. The mother expected that on those occasions when the aunt was not present Frank J. would care for the child, meaning that the mother left the care of the child by default to Frank J. only when the aunt was unavailable. However, there is no factual rendition — from the mother or anyone else — establishing the frequency and nature of Frank J.’s contact with the child during those times when the aunt was absent. The record thus establishes that so long as the aunt was present, Frank J. did not have the type of control and responsibility for the child that was crucial to the PLR finding in Yolanda D.

Additionally, Family Court appears to have placed undue significance on what it found to be a “normal uncle/niece relationship” between Frank J. and the child. However, Family Court failed to define or explain what it meant by “normal.” In any case, to the extent it relied on its own understanding of a normative-based assessment of what constitutes a family, that was error, and in contravention of the statutory intent. As this Court made clear in Yolanda D., section 1012 (g) “embodfies] legislative recognition of the reality that parenting functions are not always performed by a parent but may be discharged by other persons” {id. at 795). The Court specifically identified persons who are not “family” in the traditional sense — such as paramours — as those “who perform caretaking duties commonly associated with parents” {id. at 794-795 [noting that “custodians, guardians and paramours” may discharge parenting functions and the legislative history demonstrates an intent to include persons “without legal custody of the child . . . within the jurisdiction of (the) Family Court”], citing Letter from Sponsor, May 25, 1972, Bill Jacket, L 1972, ch 1015, proposing an amendment to section 1012 [g]). Moreover, “respondent’s relationship to the child’s parent(s)” is but one variable for the court’s consideration in its PLR determination, and is by no means outcome determinative. The application of those factors to the facts in Yolanda D. is instructive, for if the existence of a familial relationship were enough to satisfy the statute, there would have been no need to discuss the frequency of visits and the close relationship between the uncle and child in that case.

Without factual information as to the nature and frequency of Frank J.’s contact with the child, the record is insufficient to establish that he served as a functional equivalent of a parent in a household setting {id. at 795). Rather, Frank J.’s relationship to the child is more akin to that of a “person [ ] who assume [s] fleeting or temporary care of a child” {id. at 796). Therefore, the Appellate Division erroneously affirmed the finding that Frank J. was a person legally responsible for the child’s care within the meaning of section 1012 (g), and I would reverse as related to the petition alleging attempted abuse of the child.

With respect to the petitions concerning Frank J.’s three children, I agree with the majority that the Appellate Division properly affirmed Family Court’s derivative neglect determination. An article 10 child protective proceeding to determine abuse or neglect “may be originated by a child protective agency” ('Family Ct Act § 1031 [d]), at which the agency must establish by a preponderance of the evidence that respondent derivatively neglected respondent’s own children (see Matter of Tammie Z., 66 NY2d 1, 3 [1985]). At such proceeding, “proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child” (Family Ct Act § 1046 [a] [i]). A “child” is defined as “any person or persons alleged to have been abused or neglected” (Family Ct Act § 1012 [b]).

Here, the Administration for Children’s Services filed petitions, in its role as child protective agency, against Frank J., alleging he derivatively neglected his children, ages 11, 10 and 2, based on his abuse of his niece while his daughters were present in the home. As the father of the three children named in the petitions, Frank J. clearly falls within the statutory definition of a “respondent” for purposes of this child protective proceeding (Family Ct Act § 1012 [a] [“ ‘(r)espondent’ includes any parent”]). The fact that Frank J. does not meet the statutory definition of a PLR concerning the care of another child does not foreclose the agency from proceeding against him with respect to his own children (see Matter of Jamel T. [Gemayel T], 120 AD3d 504, 505 [2d Dept 2014] [holding that allegations of abuse against child who is not “subject of . . . proceedings may form the basis of a finding that (respondent) derivatively neglected . . . children”]; Matter of Kennedie M. [Douglas M.J, 89 AD3d 1544, 1545 [4th Dept 2011] [“court may make a finding of derivative neglect even if the child who was sexually abused is not (the) subject of the neglect petition”]; Matter of Kole HH., 61 AD3d 1049, 1052-1053 [3d Dept 2009] [holding that although respondent did not qualify as a PLR with respect to the victim of abuse, that abuse could still form the basis of a derivative neglect finding as against respondent’s own children]). Thus, the agency was within its authority to present evidence of Frank J.’s abuse of the child in order to meet its burden.

The evidence at the hearing established Frank J.’s attempted abuse, described by the child herself. Moreover, it is undisputed that the acts occurred while two of Frank J.’s children were home, within earshot of one of his daughters. On this record, the evidence is sufficient to support a finding of derivative neglect.

Judges Read, Pigott, Abdus-Salaam and Fahey concur; Judge Rivera dissents in part in an opinion in which Chief Judge Lippman and Judge Stein concur.

Order affirmed, without costs, in a memorandum.

       The majority appears to consider Officer Alonso’s hearsay statement that the child told her she was staying at Frank J.’s house one week (majority mem at 1005). I find it unnecessary to consider whether Frank J.’s challenge to the officer’s testimony is preserved for our review because even taking into consideration the officer’s statement, the child’s mother contradicted the hearsay when she testified that the child was staying only one night. Also, the mother testified the hearsay was incorrect: “[the child] hasn’t spent the night over [at Frank J.’s home] like a week straight like it was said.” Moreover, Family Court’s ultimate decision that Frank J. was a PLR neither mentions nor relies on this hearsay.


text:
    [32 NE3d 390, 10 NYS3d 175]
    In the Matter of P. David Soares, as District Attorney of Albany County, Respondent, v William A. Carter, as Judge of the City Court of Albany, Appellant, and Colin Donnaruma et al., Respondents.
    Argued March 23, 2015;
    decided May 7, 2015

      APPEARANCES OF COUNSEL

      E. Stewart Jones, PLLC, Troy {James C. Knox of counsel), for appellant.

      P. David Soares, District Attorney, Albany {Christopher D. Horn and Vincent Stark of counsel), for P. David Soares, respondent.

      Law Office of Mark S. Mishler, PC., Albany {Mark S. Mishler of counsel), and Kindlon Shanks & Associates, Albany {Kathy Manley of counsel), for Colin Donnaruma and others, respondents.

      Frank A. Sedita, III, Morrie I. Kleinbart and Tammy J. Smiley for District Attorneys Association of the State of New York, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

The underlying prosecution in this matter stems from defendants’ participation in protest demonstrations in the City of Albany in support of the Occupy Movement. Defendants were arrested and charged with disorderly conduct. In addition, one of the defendants was charged with resisting arrest. The Albany County District Attorney offered each defendant a six-month adjournment in contemplation of dismissal. City Court refused to accept the pleas unless they were combined with a requirement of community service. Defendants rejected that condition.

The People then sent a letter to the court indicating that they had decided to discontinue prosecuting defendants’ cases. Defendants moved to dismiss the charges against them based in part upon the People’s letter. The court denied defendants’ motions to dismiss, holding that the People had not complied with the proper procedures for terminating a case under the Criminal Procedure Law, and that if the People “fail[ed] to appear at the next scheduled court date, th[e] court may be forced to utilize one of the few available options left to it under these circumstances, including, but not limited to, its contempt powers.”

The People sent a second letter to the court reiterating that, although they would be present at any scheduled court dates, they would not call any witnesses. During a scheduled suppression hearing, the People informed the court that they had no witnesses to call; to which the Judge responded that the People had no witnesses to call because they refused to call them and were thereby willfully refusing to participate. The Judge again noted that he could use the court’s contempt powers if the People continued to refuse to participate. The District Attorney then commenced this CPLR article 78 proceeding. Supreme Court granted the District Attorney’s request for a writ in the nature of prohibition, only to the extent of enjoining the Judge from enforcing his orders compelling the People to call witnesses or offer proof (41 Misc 3d 195 [2013]). The Appellate Division affirmed Supreme Court’s grant of the narrowly tailored writ (113 AD3d 993 [2014]), and we agree.

“Prohibition is available to restrain an inferior court or Judge from exceeding its or his [or her] powers in a proceeding over which the court has jurisdiction” (La Rocca v Lane, 37 NY2d 575, 577 [1975], cert denied 424 US 968 [1976]; see Matter of Lee v County Ct. of Erie County, 27 NY2d 432, 437 [1971], cert denied 404 US 823 [1971]). To demonstrate a clear legal right to the extraordinary writ of prohibition, a petitioner is required to show that the challenged action was “in reality so serious an excess of power incontrovertibly justifying and requiring summary correction” (La Rocca, 37 NY2d at 580).

“The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions” (Matter of Maron v Silver, 14 NY3d 230, 258 [2010]). Under the doctrine of separation of powers, courts lack the authority to compel the prosecution of criminal actions (see Matter of Cantwell v Ryan, 3 NY3d 626, 628 [2004]). Such a right is solely within the broad authority and discretion of the district attorney’s executive power to conduct all phases of criminal prosecution (see County Law § 700 [1]; People v Cajigas, 19 NY3d 697, 703 [2012]).

The courts below correctly determined that a trial court cannot order the People to call witnesses at a suppression hearing or enforce such a directive through its contempt powers. Any attempt by the Judge here to compel prosecution through the use of his contempt power exceeded his jurisdictional authority. It is within the sole discretion of each district attorney’s executive power to orchestrate the prosecution of those who violate the criminal laws of this state (see County Law § 700 [1]; see also NY Const, art XIII, § 13). Where the court assumes the role of the district attorney by compelling prosecution, it has acted beyond its jurisdiction. Thus, issuance of a writ here to preclude a limited ultra vires act was appropriate. Contrary to the Judge’s argument, the writ does not prohibit him from exercising his general contempt powers to enforce lawful orders or ensure the District Attorney’s compliance with the Criminal Procedure Law. Rather, the writ is limited to prohibiting him from requiring the People to pursue prosecution, namely by calling witnesses or putting on proof at the suppression hearing. Consequently, the courts below properly granted the writ.

Chief Judge Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam and Fahey concur; Judge Stein taking no part.

Order affirmed, without costs, in a memorandum.

       The People indicated that they chose not to move to dismiss the charges pursuant to Criminal Procedure Law § 170.40 (1), because in their view the Judge would likely deny the motion.


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    Leon Behar et al., Respondents, v Quaker Ridge Golf Club, Inc., Appellant.
    Submitted March 9, 2015;
    decided May 7, 2015
   Motion, insofar as it seeks leave to appeal from the June 2014 Appellate Division order, dismissed upon the ground that it does not lie, appellant having previously moved in the Court of Appeals for leave to appeal (24 NY3d 1063 [2014]) from the same Appellate Division order from which it currently seeks leave to appeal (see Selinger v Selinger, 90 NY2d 842 [1997]); motion for leave to appeal otherwise dismissed upon the ground that the remaining orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Deidre Holmes Clark, Appellant, v Allen & Overy, LLP, Respondent.
    Submitted March 30, 2015;
    decided May 7, 2015
   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:
    Eric M. Berman, P.C., et al., Respondents, v City of New York et al., Appellants.
    Submitted May 4, 2015;
    decided May 7, 2015

      See 770 F3d 1002.
   Motion by AARP et al. for leave to file a brief amici curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    Eric M. Berman, P.C., et al., Respondents, v City of New York et al., Appellants.
    Submitted May 4, 2015;
    decided May 7, 2015

      See 770 F3d 1002.
   Motion by Bromberg Law Office, P.C. et al. for leave to file a brief amici curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    Timothy D. Gay, Appellant, v Maria Gay, Respondent.
    Submitted March 2, 2015;
    decided May 7, 2015
   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 Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by Friends of LaGuardia Place, Inc. et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by Michael C. Blumm et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by New York Civic for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by New Yorkers for Parks et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by Brad Hoylman et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   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:
    In the Matter of Deborah Glick et al., Appellants, v Rose Harvey et al., Respondents. New York University, Third-Party Respondent.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by Sierra Club 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 nine copies filed within seven days.


text:
    In the Matter of Greater Jamaica Development Corporation et al., Respondents, v New York City Tax Commission et al., Appellants.
    Submitted April 27, 2015;
    decided May 7, 2015
   Motion by Lawyers Alliance for New York 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. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Shirley He, Appellant, v Realty USA et al., Defendants, and Roman Brusilovsky et al., Respondents.
    Submitted March 2, 2015;
    decided May 7, 2015
   Motion, insofar as it seeks leave to appeal as against Roman Brusilovsky and Inna Negelyov, dismissed upon the ground that as to those parties the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal etc. otherwise denied.

Judge Stein taking no part.


text:
    Douglas E. Kampfer, Appellant, v Jacob DaCorsi et al., Respondents.
    Submitted April 6, 2015;
    decided May 7, 2015
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    In the Matter of Daniel Kasckarow, Appellant, v Board of Examiners of Sex Offenders of State of New York, Respondent.
    Submitted April 6, 2015;
    decided May 7, 2015
   Motion to expand the record on appeal denied.


text:
    Katherine Mathis et al., Appellants, v D.D. Dylan, LLC, Respondent.
    Submitted March 2, 2015;
    decided May 7, 2015
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    The People of the State of New York, Respondent, v Curtis Basile, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by Civil Rights Research Center 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 nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Curtis Basile, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by National Association of Criminal Defense Lawyers et al. for leave to file a brief amici 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 nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Anthony Berry, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Joseph Bridgeforth, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Everett M. Durant, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion by The Innocence Project for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Nadine Panton, Appellant.
    Submitted May 4, 2015;
    decided May 7, 2015
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Tristen O. and Others, Infants. Shanee S., Appellant; Commissioner of the Administration for Children’s Services of the City of New York, Respondent, et al., Respondent.
    Submitted March 9, 2015;
    decided May 7, 2015
   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:
    Richard Wysong, Appellant, v Farm Family Casualty Insurance Company et al., Respondents.
    Submitted March 9, 2015;
    decided May 7, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 1204 (2015)].

Judges Stein and Fahey taking no part.