text:
    Chief Judge of the State of New York et al., Appellants-Respondents, v Governor of the State of New York, Defendant, and Speaker of the New York State Assembly et al., Respondents-Appellants.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 65 AD3d 898.
   Motion by Fund for Modern Courts for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


source: Caselaw Access Project

license: Public Domain

text:
    City of New York et al., Plaintiffs, v Thomas A. Maul, Defendant. L.J. et al., Intervenors-Respondents, v John B. Mattingly, as Commissioner, New York City Administration for Children’s Services, Appellant, et al., Defendant.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 59 AD3d 187.
   Motion by Advocates for Children 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. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted November 23, 2009;
    decided December 15, 2009
    Reported below, 61 AD3d 460.
   Motion by National Center for Lesbian Rights et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted November 23, 2009;
    decided December 15, 2009
    Reported below, 61 AD3d 460.
   Motion by American Civil Liberties Union et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 61 AD3d 460.
   Motion by National Association of Social Workers 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 Leroy Hoover, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted October 19, 2009;
    decided December 15, 2009
   Motion for leave to appeal dismissed upon the ground that it does not lie from the order of the individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Janet M. Johnson, Respondent-Appellant, v Allan M. Chapin, Appellant-Respondent.
    Submitted October 19, 2009;
    decided December 15, 2009
    Reported below, 49 AD3d 348.
   Motion for reargument denied [see 12 NY3d 461 (2009)].

Chief Judge Lippman taking no part.


text:
    JT Magen, Respondent, v Hartford Fire Insurance Company et al., Appellants, et al., Defendants.
    Submitted October 19, 2009;
    decided December 15, 2009
    Reported below, 64 AD3d 266.
   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:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Defendant, and New York State Senate et al., Appellants-Respondents. In the Matter of Edward A. Maron et al., Appellants, v Sheldon Silver, as Speaker of the State Assembly, et al., Respondents, et al., Respondent. Chief Judge of the State of New York et al., Appellants-Respondents, v Governor of the State of New York, Defendant, and Speaker of the New York State Assembly et al., Respondents-Appellants.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 58 AD3d 102; 65 AD3d 74; 65 AD3d 898.
   Motion by Association of Justices of the Supreme Court of the State of New York et al. for leave to appear amici curiae on the appeals herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Defendant, and New York State Senate et al., Appellants-Respondents.
    Submitted December 7, 12009;
    decided December 15, 2009
    Reported below, 65 AD3d 74.
   Motion by the New York County Lawyers’ Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.

Chief Judge Lippman taking no part.


text:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Defendant, and New York State Senate et al., Appellants-Respondents.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 65 AD3d 74.
   Motion by Atlantic Legal Foundation et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Defendant, and New York State Senate et al., Appellants-Respondents.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 65 AD3d 74.
   Motion by Zachary W Carter, Chairman of the Mayor’s Advisory Committee on the Judiciary for 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. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    In the Matter of Alpheaus Marcus, Appellant, v New York State Division of Parole, Respondent.
    Submitted October 19, 2009;
    decided December 15, 2009
   Motion for leave to appeal dismissed upon the ground that this motion does not properly lie to the Court of Appeals directly from the judgment of Supreme Court (see CPLR 5602).


text:
    In the Matter of New York City Transit Authority, Respondent, v Transport Workers Union of America, Local 100, et al., Appellants.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 60 AD3d 1.
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    Guy T. Parisi et al., Appellants, v Town of Southampton, New York, Respondent.
    Submitted October 19, 2009;
    decided December 15, 2009
    Reported below, 54 AD3d 320.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 704 (2009)].


text:
    The People of the State of New York, Respondent, v Rio Jackson, Appellant.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 65 AD3d 1057.
   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 Donald McKinnon, Appellant.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 63 AD3d 426.
   Motion for assignment of counsel and waiver of the Rules of Practice of the Court of Appeals granted only to the extent that Stanley E. Neustadter, Esq., Cardozo Law School, Criminal Appeals Clinic, 55 Fifth Ave., 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 Andrew C. Mead, Appellant.
    Submitted November 9, 2009;
    decided December 15, 2009
    Reported below, 64 AD3d 814.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 denied as unnecessary and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Gregory Taylor, Appellant.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 62 AD3d 605.
   Motion for assignment of counsel and waiver of the Rules of Practice of the Court of Appeals granted only to the extent that Stanley E. Neustadter, Esq., Cardozo Law School, Criminal Appeals Clinic, 55 Fifth Ave., 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 Jose Valcourt, Appellant.
    Submitted November 30, 2009;
    decided December 15, 2009
    Reported below, 24 Misc 3d 140(A).
   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 Peter Wells, Appellant.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 63 AD3d 967.
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    Racepoint Partners, LLC, et al., Appellants, v JPMorgan Chase Bank, N.A., Respondent.
    Submitted December 7, 2009;
    decided December 15, 2009
    Reported below, 57 AD3d 378.
   Motion by American Bankers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Regal Entertainment Group, Respondent, v New York State Division of Human Rights, Respondent, and Doudou B. Janneh, Appellant. (And Another Related Proceeding.)
    Submitted October 26, 2009;
    decided December 15, 2009
    Reported below, 61 AD3d 1102.
   Motion for leave to appeal dismissed upon the ground that appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2). Motion for poor person relief dismissed as academic.


text:
    Sevenson Environmental Services, Inc., et al., Respondents, v Sirius America Insurance Company, Also Known as Sirius Insurance Company, Respondent, and Thomas Johnson, Inc., Appellant.
    Submitted October 19, 2009;
    decided December 15, 2009
    Reported below, 64 AD3d 1234.
   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 Robert Ward et al., Petitioners, and Justo Richards, Appellant, v Eliot Spitzer, as Attorney General of the State of New York, Respondent.
    Submitted October 19, 2009;
    decided December 15, 2009
    Reported below, 2009 NY Slip Op 82375(U).
   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 etc. dismissed as academic.


author: Memorandum.

text:
    [922 NE2d 872, 895 NYS2d 286]
    Ana Velazquez, Appellant, v St. Barnabas Hospital, Respondent.
    Decided December 17, 2009
    APPEARANCES OF COUNSEL

      Abdul K. Hassan, Queens Village, for appellant.

      Garbarini & Scher, EC., New York City (William D. Buckley of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, without costs, by denying defendant’s motion to enforce the settlement agreement and remitting the case to Supreme Court for further proceedings and, as so modified, affirmed.

The parties do not dispute that they agreed to settle the action for a specific amount; however, details regarding conditions of the settlement, including a disputed confidentiality agreement, were never recorded or memorialized. No agreement was made in open court or filed with the county clerk. Accordingly, it is not binding upon the parties (see CPLR 2104; Matter of Dolgin Eldert Corp., 31 NY2d 1, 9-11 [1972]; Andre-Long v Verizon Corp., 31 AD3d 353, 354 [2d Dept 2006]).

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

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


text:
    [922 NE2d 872, 895 NYS2d 286]
    The People of the State of New York, Respondent, v William L. Hilts, Also Known as T and True, Appellant.
    Argued November 18, 2009;
    decided December 17, 2009

      APPEARANCES OF COUNSEL

      Lazer, Aptheker, Rosetta & Yedid, P.C., Melville (David Lazer 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.

After one trial ended in a hung jury, defendant was convicted at a second trial of sale and possession of a controlled substance. The People’s main witness at the first trial was a police informant. The informant failed to appear for the second trial, and the People were permitted to introduce his previous testimony, pursuant to CPL 670.10. Defendant argues that this was error for two reasons: (1) he did not have a full and fair opportunity to cross-examine the informant at the first trial; and (2) the People failed to show that the informant could not “with due diligence be found,” as CPL 670.10 (1) requires. We reject both arguments.

The basis for the first argument is that the People allegedly withheld, at the first trial, information relevant to the informant’s credibility. But the only information existing at the time of the first trial that was not disclosed to defendant consists of a conversation between the informant and the prosecutor, in which the informant asked for the prosecutor’s help in disposing of an unrelated case; the prosecutor replied that, after defendant’s trial, he would “revisit” the informant’s request with the office prosecuting the other matter. Considering the large quantity of evidence impeaching the informant’s credibility that defendant had available—and used—at the first trial, the informant’s request and the prosecutor’s noncommittal response were immaterial as a matter of law.

Defendant’s second argument fails because the record supports the affirmed finding that the People were unable to locate the informant with due diligence.

Defendant’s remaining arguments are without merit.

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

Order affirmed in a memorandum.


text:
    [922 NE2d 873, 895 NYS2d 287]
    Edward Koehl, Appellant, v S. Mirza et al., Respondents.
    Decided December 17, 2009

      APPEARANCES OF COUNSEL

      Edward Koehl, appellant pro se.

      Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, without costs, by reinstating plaintiffs claims under 42 USC § 1983 and remitting the case to Supreme Court, Clinton County, for further proceedings on those claims, and, as so modified, affirmed (see Haywood v Drown, 556 US —, 129 S Ct 2108 [2009], on remand 13 NY3d 760 [2009]).

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


text:
    In the Matter of Anonymous, an Applicant for Admission to the Bar.
    Decided December 17, 2009
    Reported below, 61 AD3d 1214.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Astoria Federal Savings & Loan Association/Fidelity New York FSB, Respondent, v Marilyn Lane, Appellant, and Frances Turner et al., Intervenors-Respondents.
    Submitted November 16, 2009;
    decided December 17, 2009
    Reported below, 64 AD3d 454.
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 808 (2009)].


text:
    Laurel Caprio et al., Respondents, v 1025 Manhattan Avenue Corp., Doing Business as Mark Bar, et al., Appellants.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 63 AD3d 656.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of John D’Errico, Appellant, v New York City Department of Corrections, Respondent. Workers’ Compensation Board, Respondent.
    Decided December 17, 2009
    Reported below, 65 AD3d 795.
   Appeal, insofar as taken from that portion of the Appellate Division order that affirmed the Workers’ Compensation Board decision denying appellant’s claim for benefits, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from that part of the order absent the direct involvement of a substantial constitutional question; appeal, insofar as taken from that portion of the Appellate Division order that affirmed the decision of the Workers’ Compensation Board denying appellant’s request for reconsideration or full Board review, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of 47 Ave. B. East Inc., Respondent, v New York State Liquor Authority, Appellant.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 65 AD3d 33.
   Motion for reargument denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic [see 13 NY3d 820 (2009)].

Chief Judge Lippman taking no part.


text:
    Hamlet at Willow Creek Development Co., LLC, et al., Respondents, v Northeast Land Development Corporation et al., Respondents, and Pav-Co Asphalt, Inc., et al., Appellants, et al., Defendant. Hamlet at Willow Creek Development Co., LLC, et al., Respondents, v Northeast Land Development Corporation et al., Respondents, and Fidelity and Deposit Company of Maryland, Appellant, et al., Defendant.
    Submitted November 2, 2009;
    decided December 17, 2009
    Reported below, 64 AD3d 85.
   Motions 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:
    Hamlet at Willow Creek Development Co., LLC, et al., Respondents, v Northeast Land Development Corporation et al., Respondents, and Pav-Co Asphalt, Inc., et al., Appellants, et al., Defendant. Hamlet at Willow Creek Development Co., LLC, et al., Respondents, v Northeast Land Development Corporation et al., Respondents, and Fidelity and Deposit Company of Maryland, Appellant, et al., Defendant.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 64 AD3d 85.
   Motion by Surety & Fidelity Association of America, insofar as it seeks leave to file a brief amicus curiae on the motion for leave to appeal herein by Fidelity and Deposit Company of Maryland, granted and the brief is accepted as filed; motion, insofar as it seeks leave to file a brief amicus curiae on the appeal herein, dismissed as academic.


text:
    In the Matter of William Harrison, Appellant, v New York State Division of Housing and Community Renewal, Respondent.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 2009 NY Slip Op 84312(U); 2009 NY Slip Op 78310CU); 2009 NY Slip Op 74196(U).
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the proceeding, dismissed upon the ground that as to such order appellant has failed to demonstrate timeliness as required by Rules of the Court of Appeals (22 NYCRR) § 500.22 (b) (2); motion, insofar as it seeks leave to appeal from Appellate Division orders denying, respectively, appellant’s motion for reconsideration or a rehearing and appellant’s motion for leave to appeal to the Court of Appeals, dismissed upon the ground that such orders do not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Hartford/North Bailey Homeowners Association, by Frank S. Pasztor, its President, Appellant, v Zoning Board of Appeals of the Town of Amherst et al., Respondents. (And Another Proceeding.)
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 66 AD3d 1504; 63 AD3d 1721.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order denying leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceedings within the meaning of the Constitution.


text:
    Robert Dillard Jones, Appellant, v Naziemul Safi et al., Defendants, and Lazarowitz & Manganillo, PC., et al., Respondents.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 58 AD3d 603.
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Arbitration between Barbara Kowaleski, Appellant, and New York State Department of Correctional Services, Respondent.
    Decided December 17, 2009
    Reported below, 61 AD3d 1081.
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed that portion of Supreme Court’s judgment that denied appellant’s motion to amend the petition, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal, insofar as taken from the remainder of the Appellate Division order, retained.


text:
    Frederick Lawrence et al., Individually and on Behalf of Alexander A. Lawrence, an Infant, Plaintiff, and Marion Lawrence, Appellant, v Albany County Department for Children, Youth and Families, Respondent. (And Other Related Actions.)
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 61 AD3d 1126.
   Motion for reargument denied [see 13 NY3d 791 (2009)].


text:
    Timothy D. O’Shea et al., Appellants, v Buffalo Medical Group, P.C., et al., Defendants, and Blaze Sekovski, M.D., Respondent.
    Submitted November 19, 2009;
    decided December 17, 2009
    Reported below, 64 AD3d 1140.
   Motion to vacate this Court’s October 26, 2009 dismissal order denied [see 13 NY3d 834 (2009)].


text:
    The People of the State of New York, Respondent, v Gregory M. Drayton, Appellant.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 56 AD3d 1278.
   Motion to dismiss appeal granted and appeal dismissed upon the ground that the criminal prosecution has abated by reason of defendant’s death (see People v Mintz, 20 NY2d 770, 771 [1967]).


text:
    The People of the State of New York, Appellant, v Mohamed Kadry, Respondent.
    Submitted November 16, 2009;
    decided December 17, 2009
    Reported below, 63 AD3d 856.
   Motion to dismiss the appeal herein granted and appeal dismissed without prejudice to a motion by the People to reinstate the appeal should defendant return to this Court’s jurisdiction (see People v Diaz, 7 NY3d 831 [2006]).


text:
    The People of the State of New York, Respondent, v James McRae, Appellant.
    Decided December 17, 2009
    Reported below, 65 AD3d 1382.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal action (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Brian Peters, Respondent, v The Kissling Interests, Inc., Appellant.
    Submitted November 2, 2009;
    decided December 17, 2009
    Reported below, 63 AD3d 1519.
   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:
    Keiwan Sital, Respondent, v City of New York, Appellant.
    Submitted October 5, 2009;
    decided December 17, 2009
    Reported below, 60 AD3d 465.
   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 (see Whitfield v City of New York, 90 NY2d 777, 780-781 [1997]).


text:
    Teri-Nichols Institutional Food Merchants, LLC, Appellant, v Elk Horn Holding Corp., Respondent.
    Submitted November 9, 2009;
    decided December 17, 2009
    Reported below, 64 AD3d 424.
   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:
    Anthony Tislon, Appellant, v State of New York, Respondent.
    Decided December 17, 2009
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Western New York Land Conservancy, Inc., Respondent, v John S. Cullen et al., Appellants.
    Decided December 17, 2009
    Reported below, 66 AD3d 1461.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    [922 NE2d 869, 895 NYS2d 283]
    The People of the State of New York ex rel. Howard Glenn Blake, Alleged to be Larry Wayne Barnett, Appellant, v George E. Pataki, as Governor of the State of New York, Respondent.
    Decided January 12, 2010

      APPEARANCES OF COUNSEL

      Harry H. Kuttner, Jr., Mineóla, for appellant.

      Thomas J. Spota, District Attorney, Riverhead (Michael Blakey of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs. The certified question should not be answered upon the ground that it is unnecessary.

Once a governor of an asylum state has granted extradition, a court considering release on habeas corpus must decide “(a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive” (Michigan v Doran, 439 US 282, 289 [1978]). A fugitive is one who, “having committed a crime in a demanding State, is present in an asylum State when a demanding State seeks to prosecute the offense” (People ex rel. Strachan v Colon, 77 NY2d 499, 502-503 [1991]). Relator is a fugitive because he was convicted of a crime in South Carolina and escaped from incarceration. If, in 1993 or thereafter, South Carolina determined that it no longer sought to classify relator as a fugitive, it could have granted relator a pardon. Hence, relator’s equitable arguments are more appropriately posited to South Carolina.

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

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


text:
    [922 NE2d 880, 895 NYS2d 294]
    The People of the State of New York, Respondent, v Roland Ramos, Appellant.
    Decided January 12, 2010
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Jonathan Garelick and Steven Banks of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Daniel Bresnahan of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered on the charges of scheme to defraud in the first degree and petit larceny, and the present indictment otherwise dismissed without prejudice to an application by the People, if they be so advised, for leave to resubmit the charge of grand larceny in the fourth degree to another grand jury (see People v Steadman, 82 NY2d 1 [1993]; People v Mayo, 48 NY2d 245, 253 [1979]).

The trial court erred when it admitted hearsay evidence without a proper foundation (CPLR 4518 [a]). Even assuming some documents may be admitted as business records without foundation testimony (see People v Kennedy, 68 NY2d 569, 577 n 4 [1986]), the record at issue in this case was not such a document. Nothing on its face indicates that it “was made in the regular course of any business and that it was the regular course of such business to make it” (CPLR 4518 [a]). Nor can the error be deemed harmless in the circumstances of this case.

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

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


text:
    [922 NE2d 881, 895 NYS2d 294]
    In the Matter of Emrey Properties, Inc., Respondent, v Patricia A. Baranello et al., Appellants.
    Decided January 12, 2010

      APPEARANCES OF COUNSEL

      Sinnreich Kosakoff & Messina, LLP, Central Islip (Vincent J. Messina, Jr., and Timothy F. Hill of counsel), for appellants.

      Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale {Andrea Tsoukalas 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 matter remitted to the Appellate Division, Second Department, for consideration of issues raised but not considered on the appeal to that court. The Zoning Board’s determination, upholding the Planning Board’s denial of a building permit for petitioner to intensify an existing nonconforming use, was not arbitrary, capricious, or contrary to the Town Code {see generally Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]).

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


text:
    In the Matter of Delano Brown, Appellant, v New York State Board of Parole, Respondent.
    Submitted November 30, 2009;
    decided January 12, 2010
    Reported below, 2009 NY Slip Op 74919ÍU).
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 770 (2009)].


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted January 4, 2010;
    decided January 12, 2010
    Reported below, 61 AD3d 460.
   Motion by New Yorkers for Constitutional Freedoms, Ltd. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Marvin Gibbs, Respondent, v St. Barnabas Hospital, Respondent, and Fausto Vinces, M.D., Appellant, et al., Defendants.
    Submitted November 30, 2009;
    decided January 12, 2010
    Reported below, 61 AD3d 599.
   Motion to vacate this Court’s November 17, 2009 dismissal order granted [see 13 NY3d 857 (2009)].


text:
    In the Matter of Sylvie Grimm, Respondent, v State of New York Division of Housing and Community Renewal Office of Rent Administration, Appellant. 151 Owners Corp., Intervenor-Appellant.
    Decided January 12, 2010
    Reported below, 68 AD3d 29.
   Appeals dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of H.M., Appellant, v E.T., Respondent.
    Submitted January 4, 2010;
    decided January 12, 2010
    Reported below, 65 AD3d 119.
   Motion by New York County Lawyers’ Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Susan Larabee et al., Respondents-Appellants, v Governor of the State of New York, Defendant, and New York State Senate et al., Appellants-Respondents.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 65 AD3d 74.
   Motion by Asian American Bar Association 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. Two copies of the brief must be served and 24 copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Eugene Miniero et al., Appellants, v City of New York et al., Respondents. (And Other Actions.)
    Submitted November 2, 2009;
    decided January 12, 2010
    Reported below, 65 AD3d 861.
   Motion by plaintiffs Sblendido, Parisi and Hernandez for leave to appeal denied. Motion by plaintiffs Miniero, Pepitone, Wilhelm, DePalma and Carroll, insofar as it seeks leave to appeal against defendant Mine Safety Appliances Company, dismissed as untimely (see CPLR 5513 [b]; Matter of Haverstraw Park v Runcible Props., 33 NY2d 637 [1973]); motion for leave to appeal otherwise denied.


text:
    In the Matter of Koontie Mohabir, Appellant, v Kumar Singh, Respondent.
    Submitted November 30, 2009;
    decided January 12, 2010
    Reported below, 63 AD3d 1159.
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 709 (2009)].


text:
    In the Matter of New York State Office of Alcoholism and Substance Abuse Services et al., Appellants, v Victor Ortiz et al., Respondents.
    Submitted January 4, 2010;
    decided January 12, 2010
    Reported below, 62 AD3d 1118.
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of New York State Office of Children and Family Services et al., Respondents, v Lauren Lanterman et al., Appellants.
    Submitted January 4, 2010;
    decided January 12, 2010
    Reported below, 62 AD3d 1109.
   Motion by Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Saddiq Abdur-Rashid, Appellant.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 64 AD3d 1087.
   Motion for assignment of counsel granted and Peter B. Meadow, Esq., PO Box 63, Woodbourne, New York 12788 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Calvin Battles, Appellant.
    Submitted January 4, 2010;
    decided January 12, 2010
    Reported below, 65 AD3d 1161.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Tashiem Bayard, Appellant.
    Submitted December 14, 2009;
    decided January 12, 2010
    Reported below, 63 AD3d 481.
   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 David Brown, Appellant.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 65 AD3d 1162.
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Appellant, v Lynette Caban, Respondent.
    Submitted December 28, 2009;
    decided January 12, 2010
    Reported below, 51 AD3d 455.
   Motion by respondent to file a supplemental brief and appendix granted, two copies of the supplemental brief and appendix to be served and an original and 24 copies to be filed within seven days. Appellant may serve three copies and file an original and 24 copies of a reply brief on or before January 26, 2010.


text:
    The People of the State of New York, Respondent, v Eric Chatham, Appellant.
    Submitted December 14, 2009;
    decided January 12, 2010
    Reported below, 55 AD3d 1045.
   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 John P Daly, Appellant.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 57 AD3d 914.
   Motion by defendant, insofar as it seeks to strike or redact the People’s brief and appendix, denied; motion, insofar as it seeks an extension of time to file a reply brief, granted, defendant’s reply brief to be served and filed on or before January 26, 2010. Cross motion by the People to redact defendant’s brief denied.


text:
    The People of the State of New York, Respondent, v Eric Hollis, Appellant.
    Submitted December 14, 2009;
    decided January 12, 2010
    Reported below, 63 AD3d 409.
   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 Terence G. Jordan, Appellant.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 65 AD3d 428.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Nathaniel Syville, Appellant.
    Submitted December 21, 2009;
    decided January 12, 2010
    Reported below, 2009 NY Slip Op 73324(U).
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Diane Word, Appellant.
    Submitted December 7, 2009;
    decided January 12, 2010
    Reported below, 43 AD3d 773.
   Motion for reargument denied [see 13 NY3d 791 (2009)].


text:
    In the Matter of Ignacio Reynoso, Appellant, v George B. Alexander, as Chair of the Division of Parole, Respondent.
    Decided January 12, 2010
    Reported below, 65 AD3d 1405.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601). CPLR 5515 does not provide a jurisdictional basis to appeal as of right. Additionally, contrary to appellant’s assertion, the Court of Appeals did not grant him leave to appeal to the Court of Appeals.


text:
    In the Matter of Seth M. and Another, Infants. Jefferson County Department of Social Services, Respondent; Margo B., Appellant.
    Submitted November 23, 2009;
    decided January 12, 2010
    Reported below, 66 AD3d 1448.
   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:
    Iqbal Singh, Appellant, v City of New York Division of Housing Preservation and Development, Respondent.
    Submitted November 30, 2009;
    decided January 12, 2010
    Reported below, 2009 NY Slip Op 76735(U).
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 826 (2009)].


text:
    Barbara Stewart, as Executor of Archibald Stewart, Deceased, Respondent, v Guy E.C. Maitland et al., Appellants, et al., Defendants.
    Submitted October 5, 2009;
    decided January 12, 2010
    Reported below, 58 AD3d 443.
   Motion, insofar as defendants Maitland and Guida seek leave to appeal, dismissed upon the ground that as to these defendants, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as defendants International Registries, Inc. and Oban, LLC seek leave to appeal, denied.


text:
    In the Matter of Jeffrey Williams, Appellant, v Warren D. Barkley, Superintendent of Cape Vincent Correctional Facility, Respondent.
    Submitted November 16, 2009;
    decided January 12, 2010
    Reported below, 2009 NY Slip Op 85317(U); 2009 NY Slip Op 86643(U).
   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:
    [922 NE2d 890, 895 NYS2d 302]
    The People of the State of New York, Respondent, v Leonard A. Leopold, Appellant.
    Decided January 14, 2010
    APPEARANCES OF COUNSEL

      Legal Aid Bureau of Buffalo, Inc., Buffalo (Vincent F. Gugino and David C. Schopp of counsel), for appellant.

      Frank A. Sedita, III, District Attorney, Buffalo (.Matthew B. Powers and Donna A. Milling of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this memorandum.

Correction Law § 168-n (3) requires the court fixing a sex offender’s risk level determination to “render an order setting forth . . . the findings of fact and conclusions of law on which the determinations are based.” Here, neither the Supreme Court nor the Appellate Division order set forth the findings of fact and conclusions of law justifying the risk level determination. We therefore remit this case to Supreme Court to specify its findings of fact and conclusions of law (see People v Smith, 11 NY3d 797, 798 [2008]).

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

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


text:
    [922 NE2d 870, 895 NYS2d 284]
    Jemrock Realty Co., LLC, Respondent, v Jay Krugman, Appellant.
    Decided January 14, 2010

      APPEARANCES OF COUNSEL

      Barry J. Yellin, New York City, for appellant.

      Abramson Law Group, PLLC, New York City (Jeffrey A. Bod-off of counsel), for respondent.

      Andrew M. Cuomo, Attorney General, New York City (Monica Wagner of counsel), for New York State Division of Housing and Community Renewal, amicus curiae.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, the case remitted to that court for further proceedings in accordance with this memorandum, and the certified question answered in the negative.

This case turns on the factual issue of whether the landlord’s expenditures for “improvements” were at least equal to the amount (approximately $30,000) necessary to bring the legal rent above the luxury decontrol threshold. Contrary to the contentions of both parties, and to the majority and dissenting opinions at the Appellate Division, the resolution of that issue is not governed by any inflexible rule either that a landlord is always required, or that it is never required, to submit an item-by-item breakdown, showing an allocation between improvements and repairs, where the landlord has engaged in extensive renovation work. The question is one to be resolved by the fact-finder in the same manner as other issues, based on the persuasive force of the evidence submitted by the parties.

Here, the Appellate Term (18 Misc 3d 15 [2007]), modifying the contrary decision of Civil Court, found that the landlord had met its burden of showing that its expenditures on improvements exceeded the requisite amount. The Appellate Division erroneously decided this question as a matter of law, and did not exercise its power to review the facts. We remit to the Appellate Division so that it may do so.

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

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


text:
    Erik L. Baker, Appellant, v Patricia P. Baker, Respondent.
    Submitted November 30, 2009;
    decided January 14, 2010
    Reported below, 66 AD3d 722.
   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 Claudia Childs, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted November 16, 2009;
    decided January 14, 2010
    Reported below, 60 AD3d 1440.
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    City of New York et al., Plaintiffs, v Thomas A. Maul, Defendant. L.J. et al., Intervenors-Respondents, v John B. Mattingly, as Commissioner, New York City Administration for Children’s Services, Appellant, et al., Defendant.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 59 AD3d 187.
   Motion by the Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    In the Matter of Crucible Materials Corporation et al., Respondents, v New York Power Authority, Appellant.
    Submitted November 30, 2009;
    decided January 14, 2010
    Reported below, 50 AD3d 1353.
   Motion for reargument denied [see 13 NY3d 223 (2009)].


text:
    Debra H., Appellant, v Janice R., Respondent.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 61 AD3d 460.
   Motion by Single Mothers By Choice 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. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Executive Risk Indemnity Inc., Appellant, v Pepper Hamilton LLP et al., Respondents. Pepper Hamilton LLP et al., Third-Party Plaintiffs-Respondents, v Continental Casualty Company et al., Third-Party Defendants-Appellants.
    Submitted November 30, 2009;
    decided January 14, 2010
    Reported below, 56 AD3d 196.
   Motion for reargument denied [see 13 NY3d 313 (2009)].

Judge Smith taking no part.


text:
    In the Matter of H.M., Appellant, v E.T., Respondent.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 65 AD3d 119.
   Motion by New York City Bar Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Kimberly Hurrell-Harring et al., on Behalf of Themselves and All Others Similarly Situated, Appellants, v State of New York et al., Respondents.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 66 AD3d 84.
   Motion by District Attorneys Association of the State of New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    In the Matter of Sonya Latimore (Admitted as Sonya Whitten Latimore), a Suspended Attorney, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted December 21, 2009;
    decided January 14, 2010
    Reported below, 2009 NY Slip Op 74563(U).
   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:
    Navarone Productions, N.V., Plaintiff, v HSBC Gibbs Gulf Insurance Consultants Limited et al., Defendants. Sony Pictures Entertainment, Inc., Interpleading Plaintiff-Respondent, v Navarone Productions, N.V., et al., Interpleaded Defendants-Respondents, and William Rambaum, as Personal Representative of the Estate of Eberhard Kuehl, Deceased, Interpleaded Defendant-Appellant, et al., Interpleaded Defendants.
    Submitted October 19, 2009;
    decided January 14, 2010
    Reported below, 65 AD3d 868.
   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 New York State Office of Children and Family Services et al., Respondents, v Lauren Lanterman et al., Appellants.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 62 AD3d 1109.
   Motion by New York State United Teachers for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and 24 copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Ollman Lopez, Appellant.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 65 AD3d 1166.
   Motion for assignment of counsel granted and Steven Banks, Esq., the Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ronald Mack, Appellant.
    Submitted December 28, 2009;
    decided January 14, 2010
    Reported below, 65 AD3d 558.
   Motion for assignment of counsel granted and Gary Muldoon, Esq., care of Muldoon & Getz, 144 Exchange Blvd., Suite 402, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Gregory Boomer, Appellant, v James Conway, Superintendent of Attica Correctional Facility, Respondent.
    Submitted November 30, 2009;
    decided January 14, 2010
    Reported below, 2009 NY Slip Op 87253CU).
   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:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 55 AD3d 1074.
   Motion by CAMBA Legal Services, 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. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 55 AD3d 1074.
   Motion by Association of the Bar of the City 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.


text:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted January 11, 2010;
    decided January 14, 2010
    Reported below, 55 AD3d 1074.
   Motion by Michael J. Hutter, Esq. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Chandragopaul Salick, Appellant, v Radhica Salick, Respondent.
    Submitted November 30, 2009;
    decided January 14, 2010
    Reported below, 66 AD3d 757.
   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 Donald Schanbarger, Appellant.
    Submitted November 30, 2009;
    decided January 14, 2010
   Motion for leave to appeal etc. dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Town of Caroga, Respondent, v Joseph Herms, Appellant.
    Submitted December 7, 2009;
    decided January 14, 2010
    Reported below, 62 AD3d 1121.
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 13 NY3d 708 (2009)].

Judge Graffeo taking no part.


text:
    [922 NE2d 897, 895 NYS2d 308]
    Larry C. Holly et al., Respondents, v County of Chautauqua et al., Appellants.
    Decided January 19, 2010

      APPEARANCES OF COUNSEL

      Hodgson Russ LLP, Buffalo (Ryan K. Cummings of counsel), for appellants.

      Lipsitz Green Scime Cambria LLP, Buffalo {John A. Collins of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and plaintiffs’ motion for partial summary judgment as to liability on their Labor Law § 240 (1) claim denied. The certified question should be answered in the negative.

While we agree with the Appellate Division that there are no questions of fact regarding proximate cause, triable issues of fact do exist as to whether the scaffolding defendants supplied provided proper protection under Labor Law § 240 (1) (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 288 [2003]; Davis v Brunswick, 52 AD3d 1231, 1232 [4th Dept 2008]).

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

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


text:
    B.B.C.F.D., S.A., et al., Plaintiffs, v Bank Julius Baer & Co., Ltd., et al., Respondents, and Baruch Ivcher et al., Appellants, et al., Defendants. (And Other Actions.)
    Submitted December 7, 2009;
    decided January 19, 2010
    Reported below, 62 AD3d 425.
   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:
    James Drummond, Appellant, v State of New York, Respondent.
    Decided January 19, 2010
    Reported below, 2009 NY Slip Op 86835CU).
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Marc S. Kirschner, as Trustee of the Refco Litigation Trust, Appellant, v KPMG LLP et al., Respondents, et al., Defendants.
    Decided January 19, 2010
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument [see 590 F3d 186 (2009)].

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


text:
    The People of the State of New York, Respondent, v Delbert L. Shofkom, Appellant.
    Decided January 19, 2010
    Reported below, 63 AD3d 1286.
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order of the Appellate Division entered in this criminal proceeding (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    The People of the State of New York ex rel. Genaro Campos, Appellant, v James Conway, Superintendent, Attica Correctional Facility, Respondent.
    Submitted November 30, 2009;
    decided January 19, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York ex rel. Robert C. Hinton, Jr., Appellant, v Harold Graham, Superintendent, Auburn Correctional Facility, Respondent.
    Submitted November 23, 2009;
    decided January 19, 2010
    Reported below, 66 AD3d 1402, 1403.
   Motion, insofar as it seeks leave to appeal from the Appellate Division order of affirmance, denied; motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the appeal from Supreme Court’s order denying a motion for reconsideration, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief etc. dismissed as academic.

Judge Pigott taking no part.


text:
    Skilled Investors, Inc., Plaintiff, v Bank Julius Baer & Co., Inc., et al., Defendants. Bank Julius Baer & Co., Ltd., Respondent, et al., Plaintiff, v Menachem Ivcher et al., Defendants, and Eclectic Holdings, Inc., et al., Appellants.
    Submitted November 30, 2009;
    decided January 19, 2010
    Reported below, 62 AD3d 424 (Case No. 31).
   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:
    Skilled Investors, Inc., Plaintiff, v Bank Julius Baer & Co., Inc., et al., Defendants. Bank Julius Baer & Co., Ltd., Respondent, et al., Plaintiff, v Menachem Ivcher et al., Defendants, and Baruch Ivcher et al., Appellants.
    Submitted December 7, 2009;

    decided January 19, 2010
    Reported below, 62 AD3d 424 (Case No. 31).
   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:
    Sigurd A. Sorenson, Appellant, v 257/117 Realty, LLC, et al., Respondents.
    Submitted November 16, 2009;
    decided January 19, 2010
    Reported below, 62 AD3d 618.
   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 Jerome Stallone, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted December 28, 2009;
    decided January 19, 2010
    Reported below, 65 AD3d 1410.
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 712 (2009)].


text:
    Raymond Sturino, Respondent, v Nino Tripicchio & Son Landscaping et al., Appellants.
    Submitted December 14, 2009;
    decided January 19, 2010
    Reported below, 65 AD3d 1327.
   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 Xavier P.K.C.P., an Infant. Administration for Children’s Services, Respondent; Donna C., Appellant.
    Submitted December 7, 2009;
    decided January 19, 2010
    Reported below, 2009 NY Slip Op 86092(U).
   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.


author: Read, J. Smith, J. (dissenting in part).

text:
    [923 NE2d 567, 896 NYS2d 284]
    The People of the State of New York, Respondent, v George Konstantinides, Appellant.
    Argued November 17, 2009;
    decided December 17, 2009

      POINTS OF COUNSEL

      Appellate Advocates, New York City (De Nice Powell and Lynn

      W.L. Fahey of counsel), for appellant.
    I. Appellant was denied the effective assistance of counsel when, without any inquiry, the court permitted a lawyer to continue representing appellant although he was burdened by a powerful incentive to conduct the defense in a way that minimized his own exposure to future criminal prosecution and disbarment. (Strickland v Washington, 466 US 668; Cuyler v Sullivan, 446 US 335; People v Benevento, 91 NY2d 708; People v Berroa, 99 NY2d 134; People v Longtin, 92 NY2d 640; Wood v Georgia, 450 US 261; People v Gomberg, 38 NY2d 307; Holloway v Arkansas, 435 US 475; People v Macerola, 47 NY2d 257; People v Wandell, 75 NY2d 951.) II. The sentence must be vacated and the matter remitted for resentencing because the court, which enhanced appellant’s sentence based on a prior conviction appellant challenged on constitutional grounds, improperly refused to hold a hearing, as required by statute and fundamental due process. (Burgett v Texas, 389 US 109; People v Harris, 61 NY2d 9; People v Love, 71 NY2d 711; Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8; Matter of McGrath v Gold, 36 NY2d 406; People v Evans, 94 NY2d 499; People v Cruz, 181 AD2d 906; People v Ordine, 130 AD2d 518; People v Wright, 119 AD2d 973; People v Outley, 80 NY2d 702.)

      Richard A. Brown, District Attorney, Kew Gardens (Karen Wigle Weiss and John M. Castellano of counsel), for respondent.
    I. Defendant received effective assistance from conflict-free counsel. (People v Ortiz, 76 NY2d 652; United States v Fulton, 5 F3d 605; People v Ennis, 11 NY3d 403; People v Longtin, 92 NY2d 640, 526 US 1114; People v Lombardo, 61 NY2d 97; People v Gomberg, 38 NY2d 307; People v Lewis, 2 NY3d 224; People v Berroa, 99 NY2d 134; People v McDonald, 68 NY2d 1; Cuyler v Sullivan, 446 US 335.) II. Defendant’s claim that he was improperly adjudicated a persistent violent felony offender is unpreserved for appellate review because he failed to present it to the sentencing court. In any event, defendant was properly adjudicated a persistent violent felony offender. (People v Callahan, 80 NY2d 273; People v Hawkins, 11 NY3d 484; People v Ruz, 70 NY2d 942; People v Nieves, 2 NY3d 310; People v Hurley, 75 NY2d 887; People v Lemon, 62 NY2d 745; People v Proctor, 79 NY2d 992; People v Goodman, 69 NY2d 32; Ashe v Swenson, 397 US 436; People v Berkowitz, 50 NY2d 333.)
   OPINION OF THE COURT

Read, J.

Defendant George Konstantinides contends that he is entitled to a new trial because he was deprived of his right to conflict-free representation. At a minimum, he argues, his sentence should be vacated because Supreme Court did not hold a hearing to determine the constitutionality of one of two prior felony convictions. For the reasons that follow, we reject both claims, and uphold defendant’s conviction and sentence.

I.

Defendant violated the conditions of his parole in 2003, which sparked issuance of a warrant for his arrest in June of that year. According to the People’s witnesses at trial, in the early morning hours of December 20, 2003, the police learned that defendant was in a bar in Queens. They arrived just in time to see defendant follow another man out of the bar and get into a limousine parked at the curb. Defendant jumped into the passenger side, and the other man, later identified as G.T., got behind the wheel and started up the engine.

Several of the police officers approached the limousine on foot and directed G.T. to stop or shut off the engine. In G.T.’s account of what happened next, defendant retrieved a gun from a bag he was carrying and pointed the barrel at G.T., holding the gun low, near his waist. According to G.T., defendant said, “They’re after me. If you don’t move this limousine I’m going to kill you where you’re sitting.” Frightened, G.T. obeyed defendant’s order. Traveling at speeds approaching 100 miles per hour, the limousine careened down city streets and eventually entered the Grand Central Parkway, pursued all the way by the police cars, their lights flashing and sirens sounding. During this high-speed chase, defendant fumbled the gun and accidentally fired a bullet into the limousine’s dashboard.

Again in G.T.’s telling, defendant repeatedly instructed him to “[j]ust keep going,” and that he would “tell [him] when this [was] going to come to an end.” Near the 111th Street exit on the Grand Central Parkway, defendant ordered G.T. to pull over. As the car slowed, defendant jumped out, gun in hand. With three police officers in pursuit, he scrambled up an embankment into a wooded area. The officers testified that they saw “muzzle flashes” as defendant turned and shot multiple rounds in their direction; one officer returned fire. No one was injured, and defendant got away.

Detectives found defendant the next day in Manhattan, and arrested him; the gun shot off the night before was tucked in the back of his waistband. The People charged defendant with

attempted murder in the first and second degrees (Penal Law §§ 110.00, 125.27 [1]; §§ 110.00, 125.25 [1]); kidnapping in the first degree (Penal Law § 135.25); and criminal possession of a weapon in the second and third degrees (Penal Law § 265.03 [2]; § 265.02 [4]). On the first day of jury selection at defendant’s subsequent trial, an attorney for whom he had worked for a time while on parole (hereafter, attorney number two) joined the defense team to “assist” the attorney who had represented defendant for the eight months preceding trial (hereafter, attorney number one).

After the People had presented the testimony of some police witnesses, the prosecutor informed the court out of the jury’s presence that, during his interview of L.T., G.T.’s wife, he had acquired “information which . . . [might] bear on” attorney number two’s “remaining at counsel table.” He then related that L.T. had told him that defendant and attorney number two called her three times while defendant was incarcerated. L.T. claimed that, during one of these three-party calls, attorney number two asked her if G.T. would be willing to testify that the gun was his instead of defendant’s. When L.T. answered that her husband would not say this because it was not true, attorney number two was alleged to have replied that the defense was going to be “that the gun was your husband’s and if he doesn’t agree with that, then we’re just going to go ahead and say that it was his.”

According to the prosecutor, L.T. further related that, during a subsequent three-party call, attorney number two threatened that Finally, L.T. informed the prosecutor that she was offered a diamond ring if she left her husband and married defendant because it would “look good for . . . defendant that [L.T.] had left [G.T.] . . . and had now come to be with” him. L.T. was said to have refused this overture, telling attorney number two and defendant “[absolutely not and stop calling.”

“the defense was going to pay a woman named Jennifer, who . . . supposedly had some sort of extramarital affair with [G.T.] during the course of his marriage to [L.T.], to say that [G.T.] was doing drugs with [her], all during the day and that the gun was [G.T.’s] and that they were going to do that so that [L.T.] might want to distance herself from . . . [G.T.].”

The prosecutor explained that, as an officer of the court, he felt obligated to convey this information to the judge. He added that while he did not know the defense’s strategy, attorney number one’s opening statement suggested that defendant intended to attack G.T.’s credibility. The prosecutor continued that if defendant

“claim[ed] through cross-examination or through the potential calling of witnesses that the gun was [G.T.’s] and not the defendant’s, and/or if he . . . interpose[d] some sort of a defense about [G.T.’s] doing drugs during the course of the day, firstly . . . based upon these conversations which [L.T.] ... allegedly had with [the second attorney], . . . there would be no good-faith basis to proffer that defense; and, secondly, if they were to proffer such a defense,
. . . [the prosecution sh]ould be permitted to call [L.T.] to show recent fabrication.”

The prosecutor noted that if this scenario, in fact, developed, the second attorney’s “credibility would certainly become an issue” and “he would become a potential witness in the case.” As a result, the prosecutor asked the trial judge to disqualify attorney number two and “have the defendant proceed with just [attorney number one].”

When the trial judge asked attorney number two if he wanted to respond, attorney number one interjected “[m]ay we have one second, please?” After a pause, the judge then asked attorney number two if he wanted to deal with these matters after the upcoming lunch recess. Attorney number one again jumped in, telling the judge that “I think that will be good . . . just because there are a couple of issues. First, I’d like to find out the factual scenario of any of these phone calls, and secondly, see what possible legal basis there would be to disqualify or preclude a potential line of argument on defense.”

The trial judge then remarked as follows:

“Initially[,] disqualifying an attorney during the course of a trial is [a] very difficult thing to do. I’ve only had representations by counsel, secondhand representations; I haven’t had a hearing on the issue.
“Beyond that, these are serious allegations and if they are pressed could certainly lead to disbarment proceedings, because, [attorney number two], allegations of suborning perjury and bribery are serious.
“I don’t know if you should discuss how you want to proceed. [Attorney number one] has done all the work at this point, whether you wish to continue at counsel table and, perhaps, these matters might be injected into the trial at some point.
“Decide, as a question of strategy, first what you want to do.”

When the trial resumed, the court apologized to the jury for “these delays,” and the prosecutor called G.T. to the witness stand. The second attorney remained at the defense table. The record does not disclose the substance of further discussions that the court must have had with the parties to resolve the prosecution’s application to disqualify attorney number two.

Attorney number one cross-examined G.T. He focused on G.T.’s relationship with defendant, and sought to undermine his insistence that he and defendant were mere acquaintances. Attorney number one’s cross-examination showed that G.T. shared a lot of information about his personal life with defendant, including his history of drug abuse; that G.T. stayed with defendant in his apartment when estranged from L.T.; and that he told defendant that he had been convicted of illegally possessing a firearm and was on probation. Attorney number one also brought out that, after defendant’s arrest in this case, G.T. (and L.T.) twice visited defendant in jail. He questioned G.T. about whether he kept a gun in his limousine to protect himself, and whether he was “high” on December 20, 2003, evoking adamant denials. Attorney number one also elicited testimony to point out to the jury that G.T. knew he would face prison time if found in possession of a gun on December 20, 2003.

Defendant testified in his own behalf; he was examined by attorney number two, whom he addressed familiarly, by his first name. Defendant acknowledged that he was aware on December 20, 2003 that he was wanted by the police, and that he was at the time running an illegal bookmaking business. He operated this business out of an office in the basement of an apartment in Astoria and G.T.’s limousine, which he called his “moving office.” He explained that both G.T. and L.T. worked for him: G.T. drove him around to pick up betting “tickets” at neighborhood bars and strip clubs, and L.T. acted as his “secretary” by answering and placing phone calls while sitting next to her husband in the limousine’s front seat. Defendant asserted that G.T. kept guns in his limousine for protection whenever he ferried rap entertainers around, as he was doing on the night of December 19, 2003 before linking up with defendant at about 2:00 a.m. on December 20th.

Defendant maintained that he did not believe the police were after him when they approached the limousine. He claimed that it was G.T.’s idea to flee because G.T. knew he would get in trouble if picked up by the police with a gun in his limousine. According to defendant, he offered to take G.T.’s gun and run from the police on foot, and the gun accidentally discharged when G.T. reached under the front seat to retrieve it and slide it over the seat to him with his right hand, while steering the limousine with his left hand. Defendant explained that, as he headed into the woods, he heard shots, and so fired one round in the air to slow down the police officers chasing after him. Defendant professed that he intended to return the gun to L.T. (he assumed G.T. had been arrested), who did not return the telephone calls he made to her while on the lam, or give it to a lawyer. He acknowledged that he knew the gun was loaded and operable when he fled with it, and that he had the same loaded gun in his waistband when arrested the next day. Defendant also told the jury that when he volunteered to flee the limousine with the gun, he did not appreciate the full consequences of getting caught by the police with a loaded firearm when he had so many prior felony convictions.

The jury convicted defendant of both weapon counts, and acquitted him of kidnapping. After the jury failed to reach a verdict on attempted murder, the court declared a mistrial on those counts, which were later dismissed.

Prior to sentencing, the People filed a persistent violent felony offender statement pursuant to Criminal Procedure Law § 400.16. The statement listed two prior violent felony convictions that, with tolling, fell within 10 years of defendant’s commission of the crimes he was convicted of in this case—a 1989 conviction for second-degree attempted murder and a 1996 conviction for second-degree assault. At the sentencing hearing, defendant, represented by attorney number two (attorney number one was actually engaged at a parole hearing at the time), challenged the constitutionality of these two prior felony convictions on the ground that he was innocent, that his guilty pleas had been coerced, and that he had been deprived of effective assistance of counsel. He identified numerous people whom he wished to call as witnesses, including attorney number two. Supreme Court denied defendant’s constitutional claims without a hearing; adjudicated him a persistent violent felony offender; and sentenced him to concurrent indeterminate prison terms of 25 and 20 years to life on the second- and third-degree weapon convictions respectively.

On appeal, defendant argued ineffective assistance of counsel because of a conflict of interest with attorney number two, and that he was improperly adjudicated a persistent violent felony offender because he was denied a hearing to challenge the 1996 conviction on constitutional grounds. With respect to the former, the Appellate Division held that defendant did not establish that the alleged “potential conflict of interest . . . affected the conduct of his defense” (People v Konstantinides, 55 AD3d 752, 753 [2d Dept 2008]). The court adjudged defendant’s claim that he was entitled to a hearing to determine his status as a persistent violent felony offender to be unpreserved and, in any event, meritless. A Judge of this Court granted defendant permission to appeal (12 NY3d 759 [2009]), and we now affirm.

II.

We have held that, where a defendant makes a conflict-based claim of ineffective assistance of counsel, two questions arise. First, the court must determine whether there was a potential conflict of interest (People v Abar, 99 NY2d 406, 409 [2003]). Second, a “defendant must show that the conduct of his defense was in fact affected by the operation of the conflict of interest, or that the conflict operated on the representation” (People v Ortiz, 76 NY2d 652, 657 [1990] [internal quotation marks omitted]). As we have repeatedly held, “[w]hether a conflict of interest operates on the defense is a mixed question of law and fact and, as a result, our review is limited. We may disturb an Appellate Division determination on this issue only if it lacks any record support” (Abar, 99 NY2d at 409, citing People v Berroa, 99 NY2d 134, 142 [2002], People v Harris, 99 NY2d 202, 210 [2002], and People v Ming Li, 91 NY2d 913, 917-918 [1998]). Here, the second attorney’s continued representation of defendant created a potential conflict of interest; however, there is record support for the Appellate Division’s determination that defendant failed to establish that the conflict operated on the defense.

First, defendant was fully informed of the potential conflict. The prosecutor set out the allegations against the second attorney, and he told the court and defendant exactly what steps he might take if the defense “ claim [ed] through cross-examination or through the potential calling of witnesses [e.g., Jennifer] that the gun was [G.T.’s] and not the defendant’s, and/or . . . interpose[d] some sort of a defense about [G.T.’s] doing drugs during the course of the day”: he might call L.T. to describe the three-party conversations. And, of course, according to L.T., defendant himself participated in those conversations.

Neither defendant nor the first attorney, who did not suffer from any alleged conflict, complained that the second attorney’s continued representation of defendant operated on the defense. The defense pursued, through its questioning of G.T. and/or defendant, the “claim . . . that the gun was [G.T.’s] and not the defendant’s, and . . . [that G.T. was] doing drugs during the course of the day.” In other words, the existence of a potential conflict did not, as defendant argues on appeal, cause the second attorney to “relinquish[ ] this avenue of defense in order to minimize the risk” he faced if the prosecutor called L.T. to refute the claims as recently fabricated lies in which the second attorney was complicit. And the prosecutor, in fact, never called L.T. despite his warning that he might under these circumstances.

Second, defendant was simultaneously represented by conflict-free counsel who was “singlemindedly devoted to [his] client’s best interests” (Harris, 99 NY2d at 209). The first attorney had represented defendant for the eight months preceding trial, during which he handled all the plea negotiations and pretrial motions. The first attorney conducted voir dire, delivered the opening statement, cross-examined all of the People’s witnesses, and gave the closing argument. There is no suggestion that the first attorney’s loyalty to defendant was compromised. In light of the first attorney’s active participation, defendant has failed to establish that the potential conflict with the second attorney operated on the defense such that he is entitled to a new trial (see People v Jacobs, 6 NY3d 188, 190 [2005]).

Nevertheless, defendant argues that he met his burden because the second attorney, who presented the defense case, had to decide which witnesses to call and what questions to ask them, knowing that those decisions could affect his livelihood and liberty. But defendant does not point to any evidence elicited by the second attorney that was harmful to him. Although he claims that the second attorney did not present evidence that would have been helpful to his defense, his allegations on this score are entirely speculative and unsubstantiated.

Specifically, defendant argues that the second attorney’s conflict prevented him from calling Jennifer, who would have testified about her affair with G.T., that the gun belonged to G.T., and that G.T. abused drugs on the day of the incident. But Jennifer was not on the defense’s witness list; she was never mentioned as a possible witness during the first attorney’s opening statement. In short, there is no reason to believe that the prosecutor’s application to disqualify the second attorney dissuaded the defense from calling Jennifer. The defendant has never attempted to show that Jennifer actually exists, and was willing to provide truthful and beneficial testimony. Surely he cannot be heard to complain if an effort to present perjured testimony was thwarted. While the record on appeal is insufficient to establish that Jennifer might have given relevant and honest testimony, nothing prevented defendant from raising an ineffective assistance claim in a Criminal Procedure Law § 440.10 motion. Such a motion could have included an affidavit in which Jennifer explained the substance and significance of her evidence.

Nor does the absence of an on-the-record inquiry require reversal. While it surely would have been better practice for the trial judge to place on the record the follow-up discussions that must have taken place after the prosecutor’s application (see People v Gomberg, 38 NY2d 307, 312 [1975]), the court’s neglect to do so does not relieve defendant of his obligation to demonstrate that the potential conflict actually operated on the defense (see e.g. People v Smart, 96 NY2d 793, 795 [2001]; People v Longtin, 92 NY2d 640, 644 [1998]; People v Monroe, 54 NY2d 35, 39 [1981]).

Next, although defendant does not have to show that the conflict affected the trial’s outcome, any potential conflict between defendant’s and the second attorney’s interests, in fact, had no impact on defendant’s conviction for firearms crimes. He was acquitted of kidnapping—the only charge where any truthful testimony from Jennifer casting doubt on G.T.’s credibility would have been relevant—and the attempted murder charges were ultimately dismissed after the jury failed to reach a verdict on those counts. Police officers placed defendant in the limousine’s passenger seat; police officers also identified defendant as the individual who fired a gun at them, and defendant was arrested the day after the chase with the same loaded gun in his possession. Any possible testimony from Jennifer that the gun belonged to or was owned by G.T. would not negate this evidence, which conclusively established that defendant possessed a weapon with the intent to use it, and thus was guilty of the firearms crimes that he was convicted of committing. Indeed, defendant himself admitted under oath to having engaged in the conduct underlying these crimes (see People v Seale, 47 NY2d 923, 925 [1979]).

Finally, defendant urges us to embrace a per se rule mandating reversal in situations where a defense attorney is accused of criminal misconduct directly related to the representation of the defendant. In support of such a per se rule, defendant points to decisions from the United States Court of Appeals for the Second Circuit (see United States v Fulton, 5 F3d 605, 610-611 [2d Cir 1993]; United States v Cancilla, 725 F2d 867, 871 [2d Cir 1984]). These cases are not controlling (see People v Kin Kan, 78 NY2d 54, 59-60 [1991]) and, in any event, are distinguishable. In both Fulton and Cancilla, the defense attorneys were alleged to have committed crimes related to those for which their clients stood trial. In this case, there is no allegation that the second attorney was involved in defendant’s violent encounter with the police, or possession of the gun; defendant was not on trial for witness tampering, or bribery, or suborning of perjury arising from his alleged contacts with L.T.

Moreover, we have repeatedly declined to create a rule of per se error (see e.g. People v Recupero, 73 NY2d 877, 880 [1988]; People v McDonald, 68 NY2d 1, 11-12 [1986]). Defendant’s proposed rule would require automatic reversal upon mere accusations of impropriety, whether true or false and regardless of whether the attorney’s loyalties were actually divided. In our view, such a per se rule is not necessary to protect a defendant’s right to conflict-free representation. Under our precedent, a defendant does not have to establish that the conflict affected the outcome of the proceedings; a defendant must only show that the conflict operated on the defense. Here, defendant failed to make even this minimal showing.

III.

Criminal Procedure Law § 400.16 (2) states that the method for determining whether a person is a persistent violent felony offender is governed by Criminal Procedure Law § 400.15. This procedure honors the principle that a “conviction obtained in violation of one’s constitutional rights may not be used to enhance punishment for another offense” (People v Harris, 61 NY2d 9, 16 [1983]). To this end, the defendant must be given a statement informing him of the date and place of his predicate convictions, and an opportunity to controvert any allegations within that statement (CPL 400.15 [3]). A defendant who wishes to controvert the allegations “must specify the particular allegation or allegations he wishes to controvert” or they are deemed admitted (id.). And a defendant may “controvert an allegation with respect to” a prior conviction on the ground that it was unconstitutionally obtained “at any time during the course of the hearing hereunder” (see CPL 400.15 [7] [b]).

Where the “uncontroverted allegations . . . are sufficient to support a finding that the defendant has been subjected to a predicate violent felony conviction the court must enter such finding” and sentence defendant accordingly (CPL 400.15 [4]). Where the “uncontroverted allegations . . . are not sufficient to support [such] a finding” the court must hold a hearing (CPL

400.15 [5] [emphasis added]). At the hearing, the People are required to prove the defendant’s predicate status “beyond a reasonable doubt by evidence admissible under the rules applicable to a trial of the issue of guilt” (CPL 400.15 [7] [a]), but not the prior conviction’s constitutionality (People v Diggins, 11 NY3d 518, 524 [2008]). Once the fact of the prior conviction has been established, it is the defendant’s burden to allege and prove facts to establish his claim that the conviction was unconstitutionally obtained (Harris, 61 NY2d at 15).

Defendant argues that, once he asserted that his 1996 conviction was unconstitutionally obtained, these statutory provisions required the court to hold a hearing in which he could call witnesses. But to obtain a hearing, a defendant must do more than make conclusory allegations that his prior conviction was unconstitutionally obtained. He must support his allegations with facts (People v Gordon, 251 AD2d 93 [1st Dept 1998]; People v Greco, 230 AD2d 23, 31 [4th Dept 1997]).

Here, defendant stated only that he wanted to call numerous witnesses who, he claimed, would demonstrate that his “guilty pleas were coerced” and that his attorney was “ineffective.” But defendant did not explain how his guilty pleas were coerced or in what way his attorney was ineffective. Nor did defendant indicate what information the named witnesses would provide on these issues. These unsupported allegations were insufficient to entitle defendant to a hearing on the constitutionality of his prior conviction.

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

Smith, J. (dissenting in part).

During defendant’s trial, one of

his lawyers was accused in open court of joining with defendant in attempts to suborn peijury and to bribe a potential witness. Under a number of federal cases, this accusation, true or false, would be enough to create a per se, unwaivable, conflict requiring disqualification of the lawyer or, failing that, reversal of defendant’s conviction (see e.g. United States v Jones, 381 F3d 114 [2d Cir 2004]; United States v Fulton, 5 F3d 605, 609-610 [2d Cir 1993]). I agree with the majority in rejecting this rule. In other words, I would hold that the conflict could be waived, or that, even if not waived, the failure to disqualify the lawyer would not justify reversal if it had no effect on defendant’s representation.

But here, the trial court never asked defendant whether he would waive the conflict, much less conducted the hearing necessary to assure that any waiver was knowing and intelligent (see People v Gomberg, 38 NY2d 307 [1975]). Nor did the trial court inquire at all, so far as the record shows, into the prosecutor’s allegations or their possible impact on the trial. The prosecutor’s motion to disqualify was never ruled on, and the conflicted lawyer continued to participate, in a significant way, in defendant’s defense. Under the circumstances, I do not see how we can affirm defendant’s conviction without at least requiring a post-trial hearing into whether the conflict operated on the representation.

Our recent decision in People v Ennis (11 NY3d 403, 410 [2008]) explains the framework we use to decide issues like this:

“A claim that defense counsel’s representation was compromised by a conflict of interest requires two inquiries. First, the court must examine the nature of the relationship or circumstances that are alleged to establish a conflict. Second, if a conflict is identified, the court must determine whether the conflict operated on the representation, i.e., whether the relationship or circumstances bore a substantial relation to the conduct of the defense.” (Internal quotation marks and citations omitted.)

When a lawyer is accused (rightly or wrongly) of criminal conduct related to the subject matter of the case against his client, the first Ennis test is met—the “relationship or circumstances” establish a conflict. The reasons are explained in the federal cases (see e.g. United States v Jones, 381 F3d at 120): Any lawyer, guilty or innocent, in the situation faced by defendant’s lawyer here would recognize that his personal interests were very much at stake, and would feel a strong need to protect himself—a goal that might not be consistent with protecting his client. Thus, it cannot be said here, as we said in Ennis, that “[m]any (perhaps most) attorneys would not have perceived any conflict” (11 NY3d at 411). There are few, if any, lawyers who could easily disregard the possibility of disbarment or criminal proceedings against them personally, even if their client’s interests demanded it.

The second step in the Ennis analysis is to determine whether the conflict “operated on the representation.” The trial court here never took this step. As a result of this error, the record before us is silent as to whether there are witnesses who might have been called, questions that might have been asked, or strategies that might have been pursued if defendant’s lawyer’s personal interests had not been threatened.

Specifically, we have no way of knowing whether defense counsel ever really considered calling the “woman named Jennifer” (see majority op at 6) as a witness; it may well be that Jennifer, if she existed, could have given no testimony (other than testimony known to be perjured) that would have helped defendant, but nothing in this record proves that. Also, while L.T., the source of the prosecutor’s information about defendant’s lawyer, did not testify, her name came up both in the direct examination of defendant (conducted by the lawyer accused of wrongdoing) and on the prosecutor’s cross-examination. The record does not show whether the lawyer would have handled this subject differently if L.T. had not been his accuser. And there is nothing to show whether an offer to provide information to the People as part of a plea or sentence bargain was a realistic option for defendant. If it was, it would surely have been hard for the lawyer—knowing it at least possible that defendant would provide information about the lawyer himself—to give impartial advice on the subject.

Astonishingly, the majority makes the absence from the record of necessary information—the consequence of the trial court’s failure to conduct; stage two of the inquiry Ennis requires—a basis for affirming defendant’s conviction. The silence of the record, it says, is “the fault of defendant, whose burden it is to establish that the conflict operated on the representation” (majority op at 12-13 n 4). The flaw in this assertion seems almost too obvious for statement: How was defendant supposed to meet that burden while represented by the very counsel who was subject to the conflict? The majority seems to suggest three possible answers to this question, all completely unsatisfactory.

First, the majority notes (majority op at 11-12) that the conflicted lawyer sat in the second chair at the trial, and that the lead lawyer had no apparent conflict. Thus, the majority implies, the silence of the record is “the fault of defendant” because his lead counsel did not attack his own co-counsel’s fitness to continue in the case. But no authority supports, and simple common sense contradicts, the idea that defendant may be blamed for his lawyer’s failure to attack his colleague.

Secondly, the majority surmises that there “must have” been an off-the-record conference, in which the concerns raised by the prosecutor’s application to disqualify were resolved (majority op at 8). But even in off-the-record discussions, defendant was represented by the same conflicted counsel—and in any event, can it be doubted that, where the record shows an apparent impairment of a defendant’s right to conflict-free representation, the problem must be resolved on the record, not off it?

Thirdly, the majority suggests that defendant’s remedy was a post-trial motion under CPL article 440 (presumably to be made after defendant obtained new counsel) (majority op at 12). The majority cites no authority holding that a post-trial motion is necessary to obtain relief for an error apparent on the face of the trial record—no doubt because the law is to the contrary. We held in People v Crump (53 NY2d 824, 825 [1981]):

“[I]nasmuch as both the trial court’s failure to make any inquiry and the conflict of interest between defendant and Barclay are discernible from the record, the question of whether defendant was deprived of the effective assistance of counsel is appropriate for resolution on defendant’s direct appeal from his conviction. While it is true that claims of ineffective assistance of counsel often involve factual questions which can best be addressed in a collateral or post-conviction proceeding brought under CPL 440.10 (see People v Brown, 45 NY2d 852, 854), where, as here, the record discloses that reversible error has occurred below, defendant should not be relegated to such collateral proceedings to obtain relief.”

Where a defendant claims that his lawyer was conflicted, but the record contains no evidence of a conflict, that evidence must be supplied in a post-trial motion (see People v Mora, 290 AD2d 373 [1st Dept 2002]; People v Frias, 250 AD2d 495 [1st Dept 1998]). But here, the record shows both the conflict and an error by the trial court in dealing with it, as the majority essentially concedes (see majority op at 13 [to address the issue on the record “surely would have been better practice”]). For me, the only difficult issue in this case is what remedy for this error defendant is entitled to. I am prepared to hold that he is not entitled to a new trial, but only to a hearing on the issue of how, if at all, the apparent conflict affected his representation. But I find the majority’s holding that he is entitled to no remedy at all indefensible.

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

Order affirmed.

      . Effective December 21, 2005, this provision of the Penal Law was redesignated section 265.03 (1) (b).

      . This provision of the Penal Law was repealed, effective November 1, 2006. Possession of a loaded, operable firearm outside of a person’s home or place of business, with certain exceptions, is now criminal possession of a weapon in the second degree, a violation of Penal Law § 265.03 (3).

      . This stands in stark contrast to defendant’s testimony at trial in this case, where he told the jury that he pleaded guilty to the prior felonies that he was accused of committing “[b]ecause I was guilty of every one of th[ose] crimes.”

      . The dissent chastises the majority for holding defendant to his burden to show that the conflict operated on the defense given that, at the time of trial, defendant was still represented by counsel subject to a potential conflict of interest (dissenting op at 17). But our cases have repeatedly held defendants to this burden (see People v Longtin, 92 NY2d 640, 644 [1998] [to prevail on conflicted counsel claim “defendant must demonstrate that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest,’ or that the conflict ‘operated on’ counsel’s representation” (quoting People v Alicea, 61 NY2d 23, 31 [1983])]; see also People v Smart, 96 NY2d 793, 795 [2001]; People v Ortiz, 76 NY2d at 657; People v Lombardo, 61 NY2d 97, 102-103 [1984]). That a defendant might have to pursue such a claim, which relies on information that is not on the record, by means of a Criminal Procedure Law § 440.10 motion, in which he can establish any existing facts to support his claim, is also nothing new. Indeed, that is precisely what the defendants in Alicea and Ortiz did. Accordingly, to the extent that the record is devoid of facts to support defendant’s claim, that is the fault of defendant, whose burden it is to establish that the conflict operated on the representation.