text:
    Susan Larabee et al., Appellants, v Governor of the State of New York et al., Respondents.
    Submitted January 5, 2015;
    decided January 8, 2015
   Motion by Association of Justices of the Supreme Court of the State of New York 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.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Edwin Lopez, Respondent, v Andrea Evans, Appellant.
    Submitted December 29, 2014;
    decided January 8, 2015
   Motion by Association of the Bar of the City of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Eugene Margerum et al., Appellants-Respondents, v City of Buffalo et al., Respondents-Appellants.
    Submitted December 15, 2014;
    decided January 8, 2015
   Motion by Pacific Legal Foundation 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:
    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 December 22, 2014;
    decided January 8, 2015
   Motion by Pacific Legal Foundation 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 Emmanuel Patterson, Appellant, v Michael Graziano et al., Respondents.
    Submitted November 17, 2014;
    decided January 8, 2015
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Oliver Berry, Also Known as Chris Tucker, Appellant.
    Submitted December 22, 2014;
    decided January 8, 2015
   Motion for assignment of counsel granted and Lynn WL. 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 Tyrone Davis, Appellant.
    Submitted December 29, 2014;
    decided January 8, 2015
   Motion for assignment of counsel granted and Steven A. Feldman, Esq., care of Feldman and Feldman, 626 Reckson Plaza, West Tower, 6th Floor, Uniondale, New York 11556 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Edwin Mendez, Appellant.
    Submitted January 5, 2015;
    decided January 8, 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 Rutledge, Appellant.
    Submitted December 29, 2014;
    decided January 8, 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, Appellant, v Victor Soto, Respondent.
    Submitted January 5, 2015;
    decided January 8, 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 respondent on the appeal herein.


text:
    The People of the State of New York, Appellant, v Tyson Sydorjak, Respondent.
    Submitted December 29, 2014;
    decided January 8, 2015
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Bobby Wallace, Appellant.
    Submitted January 5, 2015;
    decided January 8, 2015
   Motion for assignment of counsel granted and Seymour James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    Joseph Saint et al., Appellants, v Syracuse Supply Company, Respondent.
    Submitted January 5, 2015;
    decided January 8, 2015
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Renee Sciara et al., Respondents, v Surgical Associates of Western New York, P.C., et al., Respondents. Usha Chopra, M.D., Nonparty Appellant.
    Submitted December 1, 2014;
    decided January 8, 2015
   Motion by nonparty appellant for permission to withdraw the appeal granted and appeal marked withdrawn. Motion for the imposition of sanctions denied.


text:
    Sean R., Appellant, v BMW of North America, LLC, et al., Respondents.
    Submitted December 22, 2014;
    decided January 8, 2015
   Motion by American Association for Justice for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    John Stefatos, Appellant, et al., Plaintiff, v Fred-Doug Manager, LLC, et al., Respondents.
    Submitted December 1, 2014;
    decided January 8, 2015
   Motion, treated as a motion for reargument of appellant’s previous motion for leave to appeal which was denied with $100 costs and necessary reproduction disbursements, denied [see 24 NY3d 908 (2014)].


text:
    In the Matter of Woodside Manor Nursing Home et al., Appellants, v Nirav R. Shah, M.D., Commissioner of Health, State of New York, et al., Respondents.
    Submitted January 5, 2014;
    decided January 8, 2015
   Motion by New York State Health Facilities Association 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:
    Manuel Bermejo, Respondent, v New York City Health and Hospitals Corporation et al., Defendants, Amsterdam & 76th Associates, LLC, et al., Respondents, and Ibex Construction, LLC, Appellant. (And Third-Party Actions.)
    Submitted November 24, 2014;
    decided January 13, 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:
    Burgers Bar Five Towns, LLC, Respondent, v Burger Holdings Corp., Also Known as Burgers Holding, Inc., et al., Appellants.
    Submitted November 24, 2014;
    decided January 13, 2015
   Motion for leave to appeal etc. dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    Burgers Bar Five Towns, LLC, Respondent, v Burger Holdings Corp., Also Known as Burgers Holding, Inc., et al., Appellants.
    Submitted December 15, 2014;
    decided January 13, 2015
   Motion for the imposition of sanctions etc. denied.


text:
    In the Matter of Luis A. Figueroa-Rolon, Sr., Respondent, v Veronica Torres, Appellant.
    Submitted December 1, 2014;
    decided January 13, 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 dismissed as academic.


text:
    Johnathan Johnson, Appellant, v State of New York, Respondent. (And Two Other Actions.)
    Submitted December 1, 2014;
    decided January 13, 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.


text:
    The People of the State of New York, Respondent, v Milton Lesta, Appellant.
    Submitted November 24, 2014;
    decided January 13, 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 where the appeal to the Appellate Division was from an order entered in an appeal from another court (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. James Pearce, Appellant, v John Lempke, Respondent.
    Submitted December 1, 2014;
    decided January 13, 2015
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Raisa Rozina et al., Appellants, v Casa 74th Development LLC et al., Respondents.
    Submitted September 22, 2014;
    decided January 13, 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 Joslyn U. and Others. Oswego County Department of Social Services, Appellant; Heather L., Respondent.
    Submitted December 1, 2014;
    decided January 13, 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 John Hogan, Appellant, v Department of Corrections and Community Supervision et al., Respondents.
    Submitted December 8, 2014;
    decided January 15, 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 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:
    International Shoppes, Inc., et al., Respondents, v Arleigh Spencer, Appellant.
    Submitted December 8, 2014;
    decided January 15, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 989 (2014)].


text:
    In the Matter of Edwin Lopez, Respondent, v Andrea Evans, Appellant.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by Mental Hygiene Legal Service 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:
    Seth Mitchell, CFA, Appellant, v New York University et al., Respondents.
    Submitted December 1, 2014;
    decided January 15, 2015
   Motion for reargument denied [see 24 NY3d 931 (2014)].


text:
    In the Matter of Natural Resources Defense Council, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order of the Appellate Division from which leave to appeal was granted has been vacated and superceded by a subsequent order of that Court [see 120 AD3d 1235 (2014)].


text:
    In the Matter of Natural Resources Defense Council, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by Nadia B. Ahmad et al. for leave to file a brief amici curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Natural Resources Defense Council, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by Citizens Campaign for the Environment for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Natural Resources Defense Council, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by East of Hudson Coalition for leave to appear amicus curiae on the appeal herein dismissed as academic.


text:
    In the Matter of Natural Resources Defense Council, Inc., et al., Appellants, v New York State Department of Environmental Conservation, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by City of New York et al. for leave to appear amici curiae on the appeal herein dismissed as academic.


text:
    The People of the State of New York, Appellant, v Wayne Henderson, Respondent.
    Submitted January 12, 2015;
    decided January 15, 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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Corey A. Latimer, Appellant.
    Submitted January 12, 2015;
    decided January 15, 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 Marcos Llibre, Appellant.
    Submitted January 12, 2015;
    decided January 15, 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 Lynden Lobban, Appellant.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion for reargument denied [see 24 NY3d 1010 (2014)].


text:
    The People of the State of New York, Respondent, v Freddie Thompson, Appellant.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion for assignment of counsel granted and Lynn WL. 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:
    In the Matter of David Powers, Appellant, v St. John’s University School of Law, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by Community Service Society of 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:
    Premier Capital, Inc., Respondent, v Kent R. Dehaan, Appellant.
    Submitted December 29, 2014;
    decided January 15, 2015
   Motion for leave to appeal denied. Motion for a stay dismissed as academic.


text:
    Joseph Saint et al., Appellants, v Syracuse Supply Company, Respondent.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Ekaterina Schoenefeld, Respondent, v State of New York et al., Defendants, and Eric T. Schneiderman, in His Official Capacity as Attorney General for the State of New York, et al., Appellants.
    Submitted January 12, 2015;
    decided January 15, 2015

      See 748 F3d 464.
   Motion by Michael H. Ansell et al. for leave to file a brief amici curiae on consideration of the certified question 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:
    Ekaterina Schoenefeld, Respondent, v State of New York et al., Defendants, and Eric T. Schneiderman, in His Official Capacity as Attorney General for the State of New York, et al., Appellants.
    Submitted January 12, 2015;
    decided January 15, 2015

      See 748 F3d 464.
   Motion by Ronald B. McGuire for leave to appear amicus curiae on consideration of the certified question 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:
    Andre Shipley et al., Respondents, v City of New York et al., Appellants.
    Submitted January 12, 2015;
    decided January 15, 2015
   Motion by National Association of Medical Examiners 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:
    [26 NE3d 233, 2 NYS3d 405]
    D.T., Also Known as D. T.-R., Individually and by Roberto Rodriguez, as Commissioner of Social Services of Ulster County, Appellant, v Irwin Rich, Defendant, and Saint Cabrini Home, Inc., Respondent.
    Argued October 23, 2014;
    decided November 25, 2014

      APPEARANCES OF COUNSEL

      Basch & Keegan, LLP, Kingston (Derek J Spada of counsel), for appellant.

      Martin Clearwater & Bell LLP, New York City (.Barbara D. Goldberg of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendant Saint Cabrini Home, Inc.’s motion for summary judgment denied.

The Ulster County Department of Social Services placed plaintiff D.T., a neglected 13-year-old child, at a residential facility operated by defendant Saint Cabrini Home, Inc. (Saint Cabrini) in Ulster County. In January 2007, plaintiff left the facility without permission at about 10:00 p.m., and proceeded on foot to nearby Route 9W. Plaintiff had been observed leaving her cottage by a staff member, who followed her and notified other staff. Several staff members, together with the on-duty administrator, attempted to secure plaintiffs return. They found plaintiff on the shoulder of Route 9W; she refused verbal directives to return and moved away from staff members as they approached her. She ultimately walked into the middle of the highway, where she was struck by an oncoming vehicle and sustained serious injuries. By summons and complaint dated June 2, 2008, plaintiff sued the vehicle’s driver, alleging negligent operation, and Saint Cabrini, asserting negligent supervision. Following discovery, Saint Cabrini moved for summary judgment dismissing the complaint as to it.

Supreme Court granted the motion, concluding that Saint Cabrini had made out a prima facie case that it had exercised the degree of supervision of a reasonably prudent parent, whereas plaintiff had not raised a triable issue of fact to the contrary. By decision dated November 29, 2012, the Appellate Division affirmed, with two Justices dissenting (100 AD3d 1300 [3d Dept 2012]). The court rejected plaintiffs unpreserved contention that “Supreme Court should have used a standard of care applicable to a facility caring for the mentally infirm [because] [t]here [was] no proof that plaintiff was placed with defendant for treatment of a mental illness”; rather, “[s]he had emotional and behavioral issues, which were reflective of her history as a neglected child” (id. at 1300 [citation omitted]). The Appellate Division agreed with Supreme Court that Saint Cabrini had “a duty to provide the degree of care and supervision that a reasonable parent would provide” (id.), and had “met its threshold burden of establishing that it was entitled to summary judgment [while] plaintiff failed to raise triable issues” (id. at 1301).

The dissenting Justices concluded that Saint Cabrini had not “carried its initial burden of demonstrating the absence of triable issues of fact as to whether its staff met [the] duty to provide the degree of care to plaintiff that a reasonable parent would provide” (id.). Viewing the evidence in the light most favorable to plaintiff, we agree that Saint Cabrini has not met its threshold burden. It is up to the jury to decide if a parent of ordinary prudence in similar circumstances would have necessarily employed different means to protect plaintiff under the facts of this case.

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

Order reversed, with costs, and defendant Saint Cabrini Home, Inc.’s motion for summary judgment denied, in a memorandum.


text:
    [26 NE3d 242, 2 NYS3d 414]
    The People of the State of New York, Appellant, v Robert L. Ingram, Respondent.
    Decided December 16, 2014

      APPEARANCES OF COUNSEL

      Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), for appellant.

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The determination whether police have reasonable suspicion to justify a stop involves a mixed question of law and fact (People v Woods, 98 NY2d 627, 628 [2002]). Where, as here, there exists record support for the Appellate Division’s resolution of this question, the issue is beyond this Court’s further review.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

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


text:
    [26 NE3d 234, 2 NYS3d 406]
    The People of the State of New York, Appellant, v On Sight Mobile Opticians, Respondent.
    Argued November 18, 2014;
    decided December 16, 2014

      APPEARANCES OF COUNSEL

      Sinnreich, Kosakoff & Messina, LLP, Central Islip (Jonathan Sinnreich and Timothy F. Hill of counsel), for appellant.

      Raymond Negron, Mount Sinai, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the judgments of District Court reinstated.

On May 3, 2011, a town investigator with the Town of Brook-haven (Town) filed five informations (subsequently superseded) against On Sight Mobile Opticians (On Sight). Each information charged On Sight with violating section 57A-11 of the Town Code of the Town of Brookhaven (Town Code) by placing a sign advertising its opticians’ business on public property, and included the precise address and location of the offending sign. Section 57A-11, entitled “Signs, posters and stickers prohibited on public property,” states as follows:

“Prohibitions. With the exception of any sign erected by the Town, county, state or other governmental authority and all signs pertaining to traffic regulations, parking regulations and fire zones which are subject to the rules and regulations of the New York State Vehicle and Traffic Law, no sign, poster, sticker, flag or advertising device shall be located within or upon the right-of-way of any Town, state or county road or highway or upon any Town, county or state or other publicly owned land, or upon any utility pole, tree, fence, or any other structure or object thereupon” (Town Code § 57A-11 [B]).

Section 57A-11 is a section within the Town Code’s chapter 57A, entitled “Signs.”

By motion dated June 20, 2011, On Sight sought a determination that chapter 57A is unconstitutional and a dismissal of the accusatory instruments. After District Court rejected its constitutional challenge, On Sight pleaded guilty to each of the informations on February 9, 2012, and then appealed. By order dated July 8, 2013, the Appellate Term held that section 57A-11, “considered in isolation, represent[ed] a constitutional exercise of the Town’s zoning authority,” but that “considered as a whole, chapter 57A unconstitutionally favor[ed] commercial speech over noncommercial speech” (40 Misc 3d 95, 101 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]); specifically, chapter 57A permitted commercial advertising “in every zoning district aside from public lands and roads, and bar[red] noncommercial speech in most contexts in which commercial speech [was] allowed” (id. at 102). After concluding that the unconstitutional portions of chapter 57A could not be severed from the constitutional parts, the court reversed the judgments of conviction against On Sight, dismissed the informations and remitted fines paid, if any. A Judge of this Court granted the People’s application for leave to appeal (22 NY3d 958 [2013]), and we now reverse.

“In a statutory context, our test for severability has been whether the Legislature would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether” (Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88, 94 [1989] [internal quotations marks omitted]). In Superfund Coalition, for example, the unconstitutional portion was at the “core” of the statute, and “interwoven inextricably through the entire regulatory scheme” (id.). By contrast, section 57A-11 deals only with signs posted on public property, a discrete regulatory topic and regime. This is reinforced by section 57A-11 (A), which explains the provision’s purpose and focuses entirely on the unique problems posed by signs on public right-of-ways. In light of section 57A-ll’s independent legislative purpose, this provision can be severed from any unconstitutional portions of chapter 57A. We therefore need not and do not consider the constitutionality of any part of chapter 57A except section 57A-11.

The People argue that section 57A-11 is a content-neutral ban on the placement of signs on public property within the Town as a matter of law under the United States Supreme Court’s holding in Members of City Council of Los Angeles v Taxpayers for Vincent (466 US 789 [1984]). In that case, section 28.04 of the Los Angeles Municipal Code, which prohibited the posting of signs on public property, was challenged as an unconstitutional abridgement of First Amendment rights (id. at 791-792). The Court upheld the ordinance, reasoning that “municipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression” (id. at 806). Accordingly, “an accumulation of signs posted on public property . . . constitutes a significant substantive evil within the City’s power to prohibit” (id. at 807). In so holding, the Court emphasized that the ordinance was content neutral, and that even though the City had eliminated signs on public property, it had not extended this ban to private property (id. at 811).

Section 57A-11 of the Town Code is constitutionally indistinguishable from the Los Angeles provision analyzed by the Supreme Court in City of Los Angeles. It imposes a content-neutral ban on all signs on public property, and applies to both commercial and noncommercial signs without consideration of their content. Further, it directly serves the Town’s valid interests in traffic safety and aesthetics, as expressly articulated in section 57A-11 (A). Finally, we have reviewed On Sight’s remaining arguments and consider them to be without merit.

Chief Judge Lippman and Judges Read, Smith, Pigott, Rivera and Abdus-Salaam concur.

Order reversed and judgments of the Sixth District Court, Suffolk County, reinstated, in a memorandum.


text:
    [26 NE3d 777, 2 NYS3d 838]
    In the Matter of 155 West 21st Street, LLC, Appellant, et al., Petitioner, v Alistair McMullan, Respondent, et al., Respondent.
    Decided January 8, 2015

      APPEARANCES OF COUNSEL

      Ballard Spahr Stillman & Friedman LLP, New York City (.Nathaniel Z. Marmur of counsel), for appellant.

      Law Office of Gregory Sheindlin, PLLC, New York City (Gregory Sheindlin of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and respondent’s cross motion for sanctions, costs, and attorneys’ fees denied. Under these circumstances, the Appellate Division abused its discretion in imposing sanctions for frivolous conduct.

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


text:
    Keren Elmaliach, Individually and as Statutory Representative of the Estate of Emi Elmaliach, Deceased, et al., Respondents, v Bank of China Limited, Appellant.
    Decided January 20, 2015
   Reargument ordered and case set down for argument during a future session of the Court of Appeals.

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


text:
    In the Matter of Roy Den Hollander, Appellant, v City of New York Commission on Human Rights, Respondent.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 24 NY3d 1037 (2014)].


text:
    Ironwood, L.L.C., et al., Respondents, v JGB Properties, LLC, Appellant.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Kenneth S., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    In the Matter of Nancy Fisher Kirschner, Appellant, v Charles A. Fisher, Respondent, et al., Respondent.
    Submitted December 1, 2014;
    decided January 20, 2015
   Motion by Ann-Margaret Carrozza and Bridget J. Crawford for leave to file a brief amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Teddy Moore, Appellant, v Frank Guerra, Defendant, and Christopher Bramwell et al., Respondents.
    Submitted December 8, 2014;
    decided January 20, 2015
   Motion for leave to appeal etc. dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Jennifer Jorgensen, Appellant.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion to strike so much of defendant’s brief as refers to the sentencing minutes in People v DePersia, and to preclude consideration of such minutes by the Court of Appeals, denied.


text:
    The People of the State of New York ex rel. Julio C. Borrell, Appellant, v New York State Board of Parole, Respondent.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for reconsideration denied [see 19 NY3d 991 (2012)].


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v New York State Division of Parole, Respondent.
    Submitted December 15, 2014;
    decided January 20, 2015
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601). Motion for leave to appeal dismissed upon the ground that it does not lie from the order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    Arthur E. Rondeau, Appellant, v Allan Houston et al., Respondents. Arthur E. Rondeau, Appellant, v New York Knickerbockers et al., Respondents
    Submitted December 8, 2014;
    decided January 20, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 999 (2014)].


text:
    Zenica Segerman, Appellant, v Lutheran Medical Center et al., Respondents.
    Submitted December 22, 2014;
    decided January 20, 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:
    Andre Shipley et al., Respondents, v City of New York et al., Appellants.
    Decided January 20, 2015
   Reargument ordered and case set down for argument during a future session of this Court.

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


text:
    Angelo Skalafuris, Appellant, v Harry Arpadi, Respondent.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Lisa Leigh Smith, Also Known as Lisa Selmonosky, et al., Appellants, v Guardian Life Insurance Company of America, Also Known as Guardian, Respondent.
    Submitted December 1, 2014;
    decided January 20, 2015
   Motion for reargument of motion for leave to appeal denied [see 24 NY3d 909 (2014)].


text:
    In the Matter of Debra Vargas, Appellant, v Seppi Trucking, Respondent. Workers’ Compensation Board, Respondent.
    Submitted December 15, 2014;
    decided January 20, 2015
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution.


text:
    [26 NE3d 1175, 3 NYS3d 320]
    The People of the State of New York, Respondent, v John Gibson, Appellant.
    Decided February 17, 2015
    APPEARANCES OF COUNSEL

      John PM. Wappett, Public Defender, Lake George (Bryan M. Racino of counsel), for appellant.

      Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

A determination whether exigent circumstances existed to justify the warrantless entry into the apartment involves a mixed question of law and fact. Where, as here, there exists record support for the Appellate Division’s resolution of this question, the issue is beyond this Court’s power of review (see People v Brown, 95 NY2d 942 [2000]; People v Hallman, 92 NY2d 840 [1998]).

We agree with the Appellate Division that defendant’s remaining contentions lack merit or are unpreserved.

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

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


text:
    [26 NE3d 1149, 3 NYS3d 295]
    The People of the State of New York, Appellant, v Michael S. Brumfield, Respondent.
    Argued January 6, 2015;
    decided February 17, 2015

      APPEARANCES OF COUNSEL

      Sandra Doorley, District Attorney, Rochester {Kelly Christine Wolford of counsel), for appellant.

      Timothy P. Donaher, Public Defender, Rochester {David R. Juergens of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The People appeal from a judgment vacating defendant’s conviction, upon a jury verdict, of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]), attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [1]), obstructing governmental administration in the second degree (Penal Law § 195.05) and resisting arrest (Penal Law § 205.30), and dismissing the indictment without prejudice to the People to re-present any appropriate charges to another grand jury.

In vacating the judgment of conviction, the Appellate Division held that defendant was denied his right to testify before the grand jury. We agree. CPL 190.50 (5) provides that a defendant must be permitted to testify before a grand jury if he serves upon the People a notice of intent to testify, appears at the designated time and place, and signs and submits a waiver of immunity pursuant to CPL 190.45. The parties do not dispute that defendant complied with the first two requirements of CPL 190.50 (5). Rather, the issue presented on this appeal is whether defendant complied with the third requirement of signing a waiver of immunity. CPL 190.45 (1) provides:

“A waiver of immunity is a written instrument subscribed by a person who is or is about to become a witness in a grand jury proceeding, stipulating that he [or she] waives his [or her] privilege against self-incrimination and any possible or prospective immunity to which he [or she] would otherwise become entitled, pursuant to section 190.40 . . . .”

The People presented defendant with a waiver of immunity form that included the provisions required by CPL 190.45, and three additional provisions that are not required under that statute. One paragraph concerned defendant’s right to talk to a lawyer before deciding whether to sign the waiver, and before testifying. Another paragraph stated that defendant understands “that the possible questioning before the Grand Jury will not be limited to any specific subjects, matters or areas of conduct.” And the third paragraph stated that defendant consented and agreed to the use against him of any testimony given by him before the grand jury “or evidence hereby produced by [him] upon any investigation, hearing, trial, prosecution or proceeding.” Defendant struck out those three additional provisions and signed the form. The Assistant District Attorney advised defendant and counsel that unless defendant signed an unaltered waiver of immunity, defendant would not be permitted to testify. Defendant did not sign the unaltered form, and he was not permitted to testify.

Defendant’s statutory right to testify before the grand jury was violated. This right “ ‘must be scrupulously protected’ ” (People v Smith, 87 NY2d 715, 721 [1996], quoting People v Corrigan, 80 NY2d 326, 332 [1992]). Even with the deletions made by defendant, he complied with the waiver of immunity as required under CPL 190.45; that is, he left intact the provisions that stated he waived his privilege against self-incrimination and any immunity to which he would be entitled. Defendant was only required to meet the requirements of the statute, and nothing more, to make a valid written waiver of immunity. The statute is clear, straightforward and concise. When a defendant meets the waiver of immunity requirements of CPL 190.45, he or she must be permitted to testify.

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

Order affirmed, in a memorandum.


author: Pigott, J.

text:
    [26 NE3d 1160, 3 NYS3d 305]
    The People of the State of New York, Appellant, v Terrance Williams, Respondent.
    Argued January 5, 2015;
    decided February 19, 2015
    APPEARANCES OF COUNSEL

      William J. Fitzpatrick, District Attorney, Syracuse {James P. Maxwell of counsel), for appellant.

      Hiscock Legal Aid Society, Syracuse {Kristen N. McDermott of counsel), for respondent.

      The Center for HIV Law and Policy, New York City (Jvdn Espinoza-Madrigal of counsel), Winston & Strawn LLP, New York City {Thomas Patrick Lane and Dorian Slater Thomas of counsel), and Winston & Strawn LLP, Los Angeles, California
      {Peter Perkowski of counsel), for The Center for HIV Law and Policy and others, amici curiae.

      New York Civil Liberties Union Foundation, New York City {Robert Hodgson, Mariko Hirose and Arthur Eisenberg of counsel), and American Civil Liberties Union Foundation, New York City {Rose A. Saxe and James D. Esseks of counsel), for New York Civil Liberties Union and another, amici curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The victim and defendant Terrance Williams became friends in July 2010. Their friendship turned intimate sometime later in the summer, when they engaged in anal sexual conduct. During their early sexual encounters, the victim and defendant used protection; however, they eventually had unprotected sex. The first time this happened, the victim reached for a condom only to have defendant take the condom away from him. The victim asked defendant four times if it was safe for them to engage in unprotected sex, and defendant reassured him that it was. Prior to this occasion, the victim and defendant had frequently discussed the human immunodeficiency virus (HIV) and the need to be careful to avoid infection.

In October 2010, defendant informed the victim that he might be HIV positive. Defendant explained that a previous sexual partner of his was infected by HIV and that the two had engaged in unprotected sex. Defendant urged the victim to get tested for HIV Shortly after this, in November 2010, the victim broke off his relationship with defendant. Then in February 2011, the victim became very ill, experiencing nausea, vomiting, diarrhea, and a severe sore throat, among other symptoms. He learned that he was HIV positive, and that his symptoms were a byproduct of his body’s inability to fight infection. Since August 2011, the victim has taken medication to stave off infection. Without this medication, he would eventually develop acquired immunodeficiency syndrome (AIDS).

In April 2011, two months after the victim found out that he was HIV positive, defendant sent a letter to him through social media. In the letter, defendant admitted that he had been diagnosed as HIV positive before he and the victim became intimate. Defendant expressed remorse about lying, saying “i want to start by saying that i sincerely apologize for giving you hiv.” Further, “i made my biggest mistake the night i said i didnt want to use a condom knowing my status but still being so deep in love with you that i wanted us to be one person . . . i was selfish and i was more so concerned with my own false happiness than you [sic] health.” The victim contacted the police.

In his subsequent appearance before the grand jury, the victim testified that he must take medication for the rest of his life, and that the medicine, combined with his psychological reaction to his HIV diagnosis, results in anxiety, nausea, mood swings, inability to stay awake, rashes and other symptoms. Based on the victim’s testimony and that of the detective who interviewed defendant and a physician who is an expert on HIV and AIDS, the grand jury charged defendant with one count of first-degree reckless endangerment (Penal Law § 120.25) and one count of third-degree assault (Penal Law § 120.00 [2]). Defendant moved to dismiss both counts of the indictment on the ground of legal insufficiency. By decision and order dated August 10, 2012, Supreme Court reduced the count of first-degree reckless endangerment to second-degree reckless endangerment (Penal Law § 120.20), and otherwise denied defendant’s motion.

First-degree reckless endangerment consists of four elements: conduct that creates a grave and unjustifiable risk of another person’s death; awareness and conscious disregard of that risk; the grave and unjustifiable risk is of a nature and degree that constitutes a gross deviation from the standard of conduct a reasonable person would observe in the situation; and the conduct occurred under circumstances evincing a depraved indifference to human life. Supreme Court ruled that, based on the physician’s testimony about advances in medical treatment, neither HIV nor AIDS poses a grave risk of death. It additionally determined that there was insufficient evidence that defendant acted with the requisite depraved mental state.

The People appealed, and in November 2013 the Appellate Division affirmed (111 AD3d 1435 [4th Dept 2013]). The Court concluded that the grand jury evidence, when viewed in the light most favorable to the People, did not make out a prima facie case that defendant acted with the wanton cruelty, brutality, or callousness required to establish depraved indifference toward a single victim. The Court also agreed with Supreme Court that the grand jury evidence, again viewed in the light most favorable to the People, did not show that defendant’s conduct presented a grave risk of death to the victim. A Judge of this Court granted the People leave to appeal (22 NY3d 1091 [2014]), and we now affirm.

Depraved indifference is a culpable mental state which means the same thing in the murder and reckless endangerment statutes (People v Feingold, 7 NY3d 288, 290 [2006]). As we explained in People v Suarez (6 NY3d 202, 212 [2005]), “[a] defendant may be convicted of [a depraved indifference crime] when but a single person is endangered in only a few rare circumstances”; specifically, where the defendant exhibits “wanton cruelty, brutality or callousness directed against a particularly vulnerable victim, combined with utter indifference to the life or safety of the helpless target of the perpetrator’s inexcusable acts” (id. at 213). Here, there is no evidence that defendant exposed the victim to the risk of HIV infection out of any malevolent desire for the victim to contract the virus, or that he was utterly indifferent to the victim’s fate (see People v Lewie, 17 NY3d 348, 359 [2011] [the defendant did not exhibit depraved indifference when she failed to stop the abuse of her child; although “the evidence . . . show(ed) that (she) cared much too little about her child’s safety, it cannot support a finding that she did not care at all”]). Without a doubt, defendant’s conduct was reckless, selfish and reprehensible. Under our case law, though, this is not enough to make out a prima facie case of depraved indifference.

Finally, we need not and do not decide whether HIV infection creates a grave and unjustifiable risk of death in light of the medical advances in treatment made since the scourge of AIDS was first identified.

Pigott, J.

(dissenting). A grand jury may indict a person for an offense “when (a) the evidence before it is legally sufficient to establish that such person committed [that] offense . . . , and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed [that] offense” (CPL 190.65 [1] [a], [b]). The first prong requires the People to present a prima facie case, which “is properly determined by inquiring whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury” (People v Jennings, 69 NY2d 103, 114 [1986], citing People v Pelchat, 62 NY2d 97, 105 [1984]). “In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt” (People v Bello, 92 NY2d 523, 526 [1998], citing People v Mayo, 36 NY2d 1002 [1975]). Because, in my view, the People presented a legally sufficient case as to the elements of depraved indifference and grave risk of harm, I respectfully dissent and would reinstate the count of reckless endangerment in the first degree.

The People’s evidence established that defendant knew at the time he engaged in sexual conduct with the victim that he had been infected with the human immunodeficiency virus (HIV). The victim was unaware of defendant’s condition. Prior to engaging in unprotected intercourse, defendant and the victim had spoken about the need for people to be careful when engaging in unprotected sex, but defendant intentionally failed to tell the victim that defendant had been diagnosed with HIV in December 2009, eight months before he and the victim had met. The grand jury testimony established that when the victim reached for a condom, defendant took it away from the victim and, after the victim had asked defendant four times whether it was safe to engage in unprotected sex with defendant, defendant responded that it was “okay.” These facts, viewed in the light most favorable to the People, established at the very least that defendant acted with “wanton cruelty, brutality or callousness” and “utter indifference” to the victim’s fate (People v Suarez, 6 NY3d 202, 213 [2005]).

It is irrelevant that defendant may have expressed remorse six months after he and the victim had unprotected sex. The critical inquiry is whether defendant exhibited a depraved state of mind at the time the offense was committed, not whether defendant felt bad about what he had done months after the fact. The grand jury plainly believed that there was reasonable cause to believe that a crime had been committed. That determination was based on the evidence that, viewed in the light most favorable to the People, defendant had exhibited a depraved mental state.

Although the majority has decided that the proof presented at the grand jury established, at most, that defendant “cared much too little” about the victim’s health (as opposed to establishing that defendant “did not care at all”), this Court is prohibited from weighing the facts to determine whether the People met their burden of presenting legally sufficient evidence to the grand jury by considering defendant’s post-incident letter of remorse. The grand jury apparently believed that defendant “did not care at all,” and, based on the evidence presented, we are in no position to disagree (see Bello, 92 NY2d at 526 [stating that the fact that other inferences may be drawn from the facts presented “is irrelevant to the sufficiency inquiry” so long as the grand jury could have drawn an inference of guilt from those facts]).

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

Order affirmed, in a memorandum.

       The dissent objects that “[i]t is irrelevant that defendant may have expressed remorse six months after he and the victim had unprotected sex” (dissenting op at 1133). But “[t]he mens rea of depraved indifference to human life can, like any other mens rea, be proved by circumstantial evidence” (Feingold, 7 NY3d at 296). Certainly, defendant’s unprompted confession and expression of guilt and contrition constitute circumstantial evidence of his state of mind when he disingenuously persuaded the victim to engage in unprotected sex. The point here, though, is that there is simply no evidence in the grand jury record, circumstantial or otherwise, of wanton cruelty, brutality or callousness toward the fate of a single victim.

       Like the majority, I will not detail the proof concerning the issue of whether defendant exposed the victim to a grave and unjustifiable risk of death, other than to state that, on this record, the medical testimony proffered by the People’s expert, viewed in the light most favorable to the People, was legally sufficient to establish the “grave and unjustifiable risk of death” element.


author: Chief Judge Lippman

text:
    [26 NE3d 1164, 3 NYS3d 309]
    The People of the State of New York, Respondent, v Adam Crowder, Appellant.
    Argued January 14, 2015;
    decided February 19, 2015

      APPEARANCES OF COUNSEL

      Kindlon Shanks & Associates, Albany {Lee C. Kindlon of counsel), for appellant.

      Robert M. Carney, District Attorney, Schenectady {Gerald A. Dwyer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On December 22, 2010, defendant was indicted in County Court on charges of burglary in the second degree (Penal Law § 140.25 [2]) and criminal mischief in the third degree (Penal Law § 145.05 [2]). On April 18, 2011, before a combined evidentiary hearing, County Court set forth a proposed plea bargain on the record. Defendant was informed that the minimum the People could offer was “a D violent felony and the minimum on that is two years in state [ ] prison with one and a half to three years of post-release supervision or parole.” The court advised defendant that he could accept the plea bargain that day, but also offered defendant some time to think it over. Defendant indicated that he wanted more time.

Three days later, defendant returned to court. At the very outset of the proceeding, defendant informed the court that he ££want[ed] to take the plea.” The court then reiterated the prison term defendant faced, but this time failed to mention the postrelease supervision (PRS) component. The court accepted defendant’s request to attend a drug rehabilitation program before the imposition of his sentence, on the condition that defendant continue under the supervision of probation and submit to drug testing. Defendant was also warned that his sentence would be enhanced if he failed to comply with the court’s conditions prior to sentencing. Defendant pleaded guilty and executed a written waiver of his right to appeal.

On May 17, 2011, the probation department informed the court that defendant had failed to cooperate with them, or undertake the required drug testing. Defendant’s father had also been unable to locate defendant, who, he believed, had relapsed. Defendant failed to appear at his sentencing on July 15. The court granted a two-week adjournment for defense counsel to attempt to locate him. Defense counsel was unable to do so, and defendant failed to appear again on the rescheduled sentence date of July 28. On that date, the court sentenced defendant, in absentia, to an enhanced five-year determinate sentence of imprisonment, to be followed by three years’ PRS. Defense counsel did not object to the imposition of the PRS component of the sentence.

Defendant was arrested and brought before the court on August 17, 2011. The court began that proceeding by again recounting defendant’s guilty plea, including the PRS component, and defendant’s failure to appear at sentencing. No objection to PRS was made at that time either.

Defendant appealed, arguing that his conviction should be vacated under our holding in People v Catu (4 NY3d 242 [2005]) on the basis that County Court failed to apprise him of his PRS term at the time of his plea. The Appellate Division affirmed (110 AD3d 1384 [3d Dept 2013]). A Judge of this Court granted defendant leave to appeal (22 NY3d 1155 [2014]).

In People v Catu, this Court held that “[a] trial court has the constitutional duty to ensure that a defendant, before pleading guilty, has a full understanding of what the plea connotes and its consequences” (4 NY3d at 244-245). A court is not required to engage in any particular litany when allocuting a defendant, but the record must be clear that the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant (id. at 245). We found that “[p]ostrelease supervision is significant” and that a defendant “must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntary and intelligently choose among alternative courses of action” (id.).

Defendant claims that his plea was not knowing, voluntary and intelligent under Catu because County Court failed to reiterate the term of PRS during the plea colloquy. We hold that, under the circumstances of this case, defendant was required to preserve his claim.

Defendant and his attorney had three opportunities to object to the imposition of PRS: at the initial scheduled sentencing July 15, at his sentencing on July 28, and at the appearance on August 17. Neither defendant nor defense counsel expressed any objection to the imposition of PRS. Because defendant had ample opportunity to raise an objection to the PRS component prior to and during these proceedings, defendant was required to preserve his claim (see People v Murray, 15 NY3d 725, 727 [2010]).

Chief Judge Lippman

(dissenting). The imposition of a preservation requirement, compelling defendant to move to withdraw his plea under these circumstances, is at variance with our existing precedent. I would reverse the Appellate Division order because, on this record, it is unclear that defendant was aware that postrelease supervision (PRS) was part of his sentence at the time he took his plea.

It is well settled that the court has an obligation to inform a defendant of the direct consequences of his or her guilty plea, including any applicable term of PRS (see People v Catu, 4 NY3d 242, 244 [2005]). “Because a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action, the failure of a court to advise of postrelease supervision requires reversal of the conviction” (Catu, 4 NY3d at 245). “[W]here a trial judge does not fulfill the obligation to advise a defendant of postrelease supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a postallocution motion” (People v Louree, 8 NY3d 541, 545-546 [2007]). We have observed that, in such circumstances, a defendant cannot be expected to move to withdraw the plea “on a ground of which he has no knowledge” (Louree, 8 NY3d at 546).

This case is distinguishable from People v Murray (15 NY3d 725, 727 [2010]), where we held that preservation was required where “defendant was advised of what the sentence would be, including its PRS term, at the outset of the sentencing proceeding.” Here, by contrast, defendant was not advised of the PRS component of his sentence at the plea proceeding. Nor was he advised that he was subject to PRS at the subsequent appearance until the court actually imposed sentence — when it was too late to move to withdraw his plea (see CPL 220.60 [3]; Louree, 8 NY3d at 546). Therefore, this case is more akin to those cases where we have found that preservation was not required (see People v Turner, 24 NY3d 254, 259 [2014]; People v McAlpin, 17 NY3d 936, 938 [2011]).

Moreover, it is not clear from the record that defendant was aware he was agreeing to a sentence that included a term of PRS. At the appearance prior to the plea proceeding, the court did mention PRS, referring to a range of IV2 to 3 years. However, the court’s subsequent failure to make any reference to PRS at the plea proceeding leads me to conclude that defendant was not sufficiently aware of the terms of his plea agreement. Defendant’s conviction should therefore be reversed.

The better rule in these situations would be to require that a defendant must be advised of the term of PRS at the time of the plea. This requirement — to state each component of the plea agreement on the record — would hardly be an onerous burden on the court and, when performed, makes simple an appellate court’s determination whether a defendant has been adequately advised of the direct consequences of his plea. Moreover, in those relatively rare instances where the plea court might neglect to state the term of PRS at the plea proceeding, the People should not hesitate to chime in and request that the court do so. Such procedure is certainly more in keeping with the parties’ roles than imposing a preservation requirement and expecting a defendant to request the imposition of additional punishment in the form of PRS. The suggested procedure would also alleviate the need for additional proceedings relating to whether the indisputably and statutorily required term of PRS has been properly imposed.

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

Order affirmed, in a memorandum.