text:
    [934 NE2d 879, 908 NYS2d 146]
    The People of the State of New York, Respondent, v Isham Moore, Appellant.
    Decided September 2, 2010

      APPEARANCES OF COUNSEL

      Appellate Advocates, New York City (De Nice Powell and Lynn W.L. Fahey of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed. Defendant Isham Moore failed to establish that his attorney provided ineffective assistance because of her failure to request a justification charge. There are sound strategic reasons for counsel’s decision not to request such a charge. And even if this were not the case, defendant cannot show that he was entitled to a justification charge under any favorable interpretation of the testimony presented at trial.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    [934 NE2d 879, 908 NYS2d 146]
    In the Matter of Elizabeth Hess, as Parent and Guardian of Jason Hess, an Infant, Respondent, v West Seneca Central School District, Appellant, et al, Respondents.
    Decided September 2, 2010

      APPEARANCES OF COUNSEL

      Baxter Smith & Shapiro, P.C., West Seneca (Louis B. Dingeldey, Jr., of counsel), for appellant.

      Collins & Brown, LLC, Buffalo (Charles H. Cobb of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and that part of claimant’s application that sought to file a late notice of claim against West Seneca Central School District (WSCSD) denied. We agree with the Appellate Division dissenters that claimant’s proposed negligence claim against WSCSD patently lacks merit because WSCSD established that it did not create or have responsibility for the allegedly hazardous condition of the intersection where claimant’s son was injured (see Pratt v Robinson, 39 NY2d 554, 560 [1976]; cf. Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 671 [1999]; see also Matter of Catherine G. v County of Essex, 3 NY3d 175, 179 [2004] [“(l)eave is not appropriate for a patently meritless claim”]).

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:
    Alamin Hassan O., Appellant, v Benjamin Bates et al., Defendants. Verizon, Nonparty Respondent.
    Submitted June 14, 2010;
    decided September 2, 2010
   Motion, insofar as it seeks leave to appeal from the March 2009 Appellate Division order, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion, insofar as it seeks leave to appeal from the letter of the Clerk’s Office of the Appellate Division, Second Department, dismissed upon the ground that the letter appealed from is neither a judgment nor an order from which a motion to the Court of Appeals may be made (see CPLR 5512 [a]; 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Shane Begor, Claimant, v Mark Holmes, Doing Business as Four Seasons Logging, et al., Respondents, and Brenner & McHugh, Inc., et al., Respondents, and American Zurich Insurance Company, Appellant. Workers’ Compensation Board, Respondent.
    Submitted June 21, 2010;
    decided September 2, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of the Estate of Elsa K. Bryer, Deceased. Elliott K. Bryer, Appellant; The Bank of New York et al., Respondents.
    Submitted June 14, 2010;
    decided September 2, 2010
   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:
    Parviz Noghrey, Appellant, v Town of Brookhaven et al., Respondents.
    Submitted June 21, 2010;
    decided September 2, 2010
   Motion for leave to appeal dismissed upon the ground that the Appellate Division order sought to be appealed from does not finally determine the action within the meaning of the Constitution. In addition, the May 2010 Supreme Court judgment provided by appellant is not an appealable paper pursuant to CPLR 5602 (a) (1) (ii) because it does not finally determine the action within the meaning of the Constitution (see Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    Parviz Noghrey, Appellant, v Town of Brookhaven et al., Respondents.
    Submitted July 26, 2010;
    decided September 2, 2010
   Motion by the National Association of Home Builders for leave to appear amicus curiae on the motion for leave to appeal herein granted and the affirmation is accepted as filed, and for leave to file a brief amicus curiae on the appeal herein dismissed as academic.


text:
    The People of the State of New York, Respondent, v Andres Ayala, Appellant.
    Submitted June 21, 2010;
    decided September 2, 2010
   On the Court’s own motion, appeal dismissed, without costs, 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. Correction Law § 168-n (3) does not provide an independent predicate for an appeal as of right to the Court of Appeals. Motion for leave to appeal denied.


text:
    In the Matter of Clint R. Peterson, Appellant, v Carl F. Becker, as Judge of the County Court of Delaware County, Respondent.
    Submitted June 21, 2010;
    decided September 2, 2010
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.


text:
    Maurica Tallarida, Appellant, v City of Corning et al., Respondents.
    Submitted June 21, 2010;
    decided September 2, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 883 (2010)].


text:
    In the Matter of Village of Chestnut Ridge et al., Respondents, et al., Petitioners/Plaintiffs, v Town of Ramapo et al., Appellants, and Scenic Development, LLC, Respondent.
    Submitted June 7, 2010;
    decided September 2, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie, movants previously having moved for leave to appeal to the Court of Appeals from the August 2007 Appellate Division order from which leave to appeal is currently sought (12 NY3d 793 [2009]). Moreover, no motion for leave to appeal would lie to the Court of Appeals from the March 2010 Supreme Court judgment to bring up for review the August 2007 Appellate Division order as movants have appealed that judgment to the Appellate Division and simultaneous appeals do not lie to both the Appellate Division and the Court of Appeals (see Parker v Rogerson, 35 NY2d 751, 753 [1974]).


text:
    In the Matter of Sean Wilson, Appellant, v Caroline Kilkenny, Respondent.
    Submitted July 12, 2010;
    decided September 2, 2010
   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:
    Yankee Lake Preservation Association, Inc., Appellant, v Judith Stein et al., Respondents, et al., Defendants.
    Submitted June 28, 2010;
    decided September 2, 2010
   Motion by New York State Federation of Lake Associations, Inc. for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of Anonymous, an Attorney and Counselor-at-Law, Appellant. Departmental Disciplinary Committee for the First Judicial Department, Respondent.
    Submitted July 12, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the Claim of Juan Bran, Respondent, v Ralph Wimbish, Appellant, et al., Respondent. Workers’ Compensation Board, Respondent.
    Submitted June 14, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Batdorj Dagvadorj, Appellant, v Lois DeFleur, as Administrator at the State University of New York at Binghamton, et al., Respondents.
    Submitted July 12, 2010;
    decided September 14, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 14 NY3d 712 (2010)].


text:
    In the Matter of Derek DeMeo, Appellant, v City of Albany et al., Respondents, and Phlip ’N Spill, Inc., Doing Business as The Bayou Café, Respondent.
    Submitted June 28, 2010;
    decided September 14, 2010
   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:
    Eujoy Realty Corp., Respondent, v Van Wagner Communications, LLC, Appellant.
    Decided September 14, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Family M. Foundation Ltd., Respondent, v Ninotchka Manus, Appellant, et al., Defendant.
    Submitted June 21, 2010;
    decided September 14, 2010
   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:
    Ronald Fields, Appellant, v Lucille Fields, Respondent.
    Submitted July 19, 2010;
    decided September 14, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 158 (2010)].


text:
    Joseph Gerdvil, Appellant, v Vito J. Rizzo et al., Respondents.
    Submitted August 9, 2010;
    decided September 14, 2010
   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:
    Mary Gonzalez, Also Known as Mariana Rivera, Appellant, v State of New York, Respondent.
    (Claim No. 104279.)
    Submitted July 6, 2010;
    decided September 14, 2010
   Motion for reargument of motion for leave to appeal denied [see 13 NY3d 712 (2009)].


text:
    Robert Henry, Appellant, v Pedro L. Peguero et al., Respondents.
    Decided September 14, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Donald J. Jones et al., Appellants, v Town of Carroll et al., Respondents.
    Submitted August 2, 2010;
    decided September 14, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 139 (2010)].


text:
    Ruth Kassover et al., Respondents, v PVP-GCC Holdingco II, LLC, et al., Appellants. Prism Venture Partners, LLC, et al., Nonparty Appellants.
    Submitted July 6, 2010;
    decided September 14, 2010
   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.

Chief Judge Lippman and Judge Smith taking no part.


text:
    Ruth Kassover et al., Respondents, v PVP-GCC Holdingco II, LLC, et al., Appellants, et al., Defendant. Prism Venture Partners, LLC, et al., Nonparty Appellants.
    Submitted July 6, 2010;
    decided September 14, 2010
   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.

Chief Judge Lippman and Judge Smith taking no part.


text:
    LaSalle Bank National Association, Respondent, v Keisha Henderson, Appellant, et al., Defendant.
    Submitted August 2, 2010;
    decided September 14, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 934 (2010)].

Judge Jones taking no part.


text:
    Marta Lopez, Respondent, v Fordham University, Appellant. (And Third-Party Actions.)
    Submitted June 21, 2010;
    decided September 14, 2010
   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 Midler, Respondent, v Richard Crane, M.D., Appellant.
    Submitted June 28, 2010;
    decided September 14, 2010
   Motion for reargument denied with $100 costs and necessary reproduction disbursements [see 14 NY3d 877 (2010)].


text:
    In the Matter of Ontario County Department of Social Services, Respondent, v Marc Winkler, Appellant, et al., Defendant.
    Submitted July 6, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine an action or proceeding within the meaning of the Constitution.


text:
    In the Matter of Richard Padilla, Appellant, v Raymond Kelly, as Police Commissioner of the City of New York, Respondent.
    Submitted June 28, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Gilbert O. Cameron, Appellant, v Dora B. Schirro et al., Respondents.
    Submitted June 28, 2010;
    decided September 14, 2010
   Motion, insofar as it seeks leave to appeal from the order of the Appellate Division, dismissed for nonfinality; motion, insofar as it seeks leave to appeal from the May 2010 order of Supreme Court, dismissed upon the ground that no motion for leave to appeal lies to the Court of Appeals directly from that order. Any appeal from such order, if available, would be to the Appellate Division.


text:
    Roman Rabinovich, Plaintiff, and Edward L. Smith, Appellant, v Jo Ann Womack et al., Defendants, and Dunolly Owners’ Corp., Respondent. (And a Third-Party Action.)
    Submitted June 28, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Sheril G., Respondent. Arnon D. Siegel, Nonparty Appellant; Berwitz & DiTata, LLI] Nonparty Respondent.
    Submitted June 14, 2010;
    decided September 14, 2010
   Motion for leave to appeal denied. Cross motion for the imposition of sanctions denied.


text:
    Mark Paul Shnitkin, Respondent, v Healthplex IPA, Inc., Appellant.
    Submitted August 9, 2010;
    decided September 14, 2010
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 15 NY3d 702 (2010)].


text:
    In the Matter of Frans Sital, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted July 6, 2010;
    decided September 14, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Claude Nelson Stuart, a Suspended Attorney.
    Submitted August 9, 2010;
    decided September 14, 2010
   Motion for reconsideration of this Court’s June 24, 2010 dismissal order denied [see 15 NY3d 735 (2010)]. Motion for leave to appeal denied.


text:
    In the Matter of William M. Windsor, Appellant, v State of New York et al., Respondents.
    Decided September 14, 2010
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third 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:
    [935 NE2d 791, 909 NYS2d 1]
    The People of the State of New York, Respondent, v Timoteo Ramirez, Appellant.
    Decided September 16, 2010

      APPEARANCES OF COUNSEL

      Schlather, Stumbar, Parks & Salk, LLP, Ithaca (Diane V. Bruns of counsel), for appellant.

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

Memorandum.

The order of the Appellate Division should be affirmed.

Contrary to defendant’s argument, the Appellate Division properly concluded that the verdict was supported by legally sufficient evidence. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have inferred that defendant constructively possessed the drugs and drug paraphernalia located in an apartment in which defendant himself was found (see generally People v Contes, 60 NY2d 620, 621 [1983]).

Moreover, although the record is silent as to whether Supreme Court showed the jury note to counsel as required in People v O’Rama (78 NY2d 270 [1991]), defense counsel had notice of the contents of the note and the court’s response, and failed to object at that time, when the error could have been cured. Accordingly, defendant’s claim is unpreserved for review (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Kadarko, 14 NY3d 426, 429-430 [2010]).

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

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


text:
    [935 NE2d 791, 909 NYS2d 1]
    Roni LLC et al., Appellants, v Rachel L. Arfa et al., Respondents.
    Decided September 16, 2010

      APPEARANCES OF COUNSEL

      Balber Pickard Maldonado & Van Der Tuin, PC, New York City (John Van Der Tuin of counsel), for appellants.

      Schlam Stone & Dolan LLP, New York City (David J. Katz of counsel), for Rachel L. Arfa and others, respondents.

      Simpson Thacher & Bartlett LLP, New York City (Mark G. Cunha and Scott A. Sukenick of counsel), for Mintz Levin Cohn Ferris Glovsky & Popeo, P.C. and another, respondents.

      Beilin & Associates LLC, White Plains (Aytan Y. Beilin of counsel), for Edward Lukashok, respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed with costs. Plaintiffs’ conclusory pleadings do not give rise to an inference that the attorney defendants knowingly participated in the alleged aiding and abetting of a breach of fiduciary duty by providing substantial assistance to the promoter defendants in their purported commission scheme (see Kaufman v Cohen, 307 AD2d 113, 126 [1st Dept 2003]; see generally Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553 [2009]).

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

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


text:
    In the Matter of Barbara E, a Person Alleged to be Incapacitated, Appellant. Robert Doar, Respondent.
    Submitted July 19, 2010;
    decided September 16, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Josh Brown, Appellant, v Brian Fischer et al., Respondents.
    Submitted June 21, 2010;
    decided September 16, 2010
   Motion for reconsideration of this Court’s May 4, 2010 dismissal order denied [see 14 NY3d 852 (2010)].


text:
    Commodity Futures Trading Commission, Respondent, v Stephen Walsh et al., Defendants, and Janet Walsh, Appellant. Securities and Exchange Commission, Respondent, v WG Trading Investors, L.E, et al., Defendants, Robin Greenwood, Relief Defendant, and Janet Walsh, Appellant.
    Decided September 16, 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.

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


text:
    Griffith Oil Company, Inc., et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, Pa., Appellant, et al., Defendants.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by United Policyholders 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:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants, and Lifemark S.A., Intervenor-Appellant. (And Third-Party Actions.)
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by Institutional Life Markets Association for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants, and Lifemark S.A., Intervenor-Appellant. (And Third-Party Actions.)
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by American Council of Life Insurers et al. for leave to file a brief amici curiae on consideration of the certified question herein granted and the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Alice Kramer, Respondent, v Phoenix Life Insurance Co. et al., Defendants, and Lifemark S.A., Intervenor-Appellant. (And Third-Party Actions.)
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by Life Insurance Settlement Association for leave to appear amicus curiae on consideration of the certified question herein granted only to the extent that the proposed brief is accepted as filed. Two copies of the brief must be served and 24 copies filed within seven days.


text:
    Lend-Mor Mortgage Bankers Corp., Respondent, v Edward Nicholas et al., Defendants, and Ameriquest Mortgage Company, Appellant.
    Submitted July 17, 2010;
    decided September 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Louis F. Ortiz, Appellant, v Varsity Holdings, LLC, et al., Respondents.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by Defense Association of New York, Inc. for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Appellant, v Dwight Ashe, Respondent.
    Submitted September 7, 2010;
    decided September 16, 2010
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Calvin Battles, Appellant.
    Submitted September 7, 2010;
    decided September 16, 2010
   Motion to vacate this Court’s August 16, 2010 preclusion order granted.


text:
    The People of the State of New York, Appellant, v Dragan Boscic, Respondent.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion by New York State Defenders Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Jazzmone Brown, Appellant.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Dionis Collado, Respondent.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dondi Credle, Appellant.
    Submitted September 7, 2010;
    decided September 16, 2010
   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, Appellant, v Robert Franov, Respondent.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion for assignment of counsel granted and Judah Maltz, Esq., 125-10 Queens Boulevard, Suite 12, Kew Gardens, New York 11415 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Shawn Hunter, Appellant.
    Submitted September 13, 2010;
    decided September 16, 2010
   Motion for assignment of counsel granted and Timothy P Donaher, Esq., Monroe County Public Defender, 10 N. Fitzhugh Street, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Steve Johnson, Appellant.
    Submitted August 30, 2010;
    decided September 16, 2010
   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 Ulysess McKnight, Appellant.
    Submitted August 30, 2010;
    decided September 16, 2010
   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 Eduardo Miranda, Appellant.
    Submitted August 2, 2010;
    decided September 16, 2010
   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 Owen Steward, Appellant.
    Submitted September 7, 2010;
    decided September 16, 2010
   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:
    Portfolio Recovery Associates, LLC, Respondent, v Jared King, Appellant.
    Submitted June 21, 2010;
    decided September 16, 2010
   Motion for reargument denied [see 14 NY3d 410 (2010)].


text:
    In the Matter of the Claim of Cindy A. Renz, Appellant, v Home Depot USA, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted June 21, 2010;
    decided September 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Joseph B. Sitts, Appellant, v Allison L. Sitts, Respondent.
    Submitted August 30, 2010;
    decided September 16, 2010
   Motion to dismiss appeal dismissed as academic upon the ground that the appeal has been withdrawn.


text:
    The Travelers Indemnity Company, Respondent, v Orange and Rockland Utilities, Inc., Appellant, et al., Defendants.
    Submitted July 6, 2010;
    decided September 16, 2010
   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:
    The Travelers Indemnity Company, Respondent, v Orange and Rockland Utilities, Inc., Appellant, et al., Defendants.
    Submitted September 7, 2010;
    decided September 16, 2010
   Motion by Central Hudson Gas & Electric Corporation for leave to appear amicus curiae on the motion for leave to appeal herein granted.


text:
    U.S. Bank National Association, Respondent, v Michael H. Finkle et al., Appellants, et al., Defendant.
    Submitted July 12, 2010;
    decided September 16, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Arthur J. Walsh et al., Respondents, v Anita S. Katz et al., Respondents, and Daniel C. Ross, Appellant. (And a Third-Party Action.)
    Submitted August 23, 2010;
    decided September 16, 2010
   Motion to vacate this Court’s August 2, 2010 dismissal order granted [see 15 NY3d 801 (2010)].


text:
    [935 NE2d 801, 909 NYS2d 9]
    The People of the State of New York, Respondent, v Ronald Mack, Appellant.
    Decided September 21, 2010
    APPEARANCES OF COUNSEL

      Muldoon & Getz, Rochester (Gary Muldoon of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Merri Turk Lasky of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. Defendant has failed to establish that he was denied the effective assistance of appellate counsel (see People v Borrell, 12 NY3d 365, 369 [2009]).

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


text:
    Carlos Abreu, Appellant, v Betsy Hutchings et al., Respondents.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Carlos Abreu, Appellant, v Norman R. Bezio, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, as untimely (see CPLR 5513 [a]).


text:
    In the Matter of Carlos Abreu, Appellant, v Michael F. Hogan, as Commissioner of Mental Health, et al., Respondents.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Bessemer Trust Company, N.A., Respondent, v Francis S. Branin, Jr., Appellant.
    Decided September 21, 2010
   Certification of a question by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    Kelly Anne Breen-Burns, Appellant, v Scarsdale Woods Homeowners’ Association Inc. et al., Respondents.
    Submitted July 12, 2010;
    decided September 21, 2010
   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 Cuadrado v New York City Tr. Auth., 14 NY3d 748 [2010]).


text:
    In the Matter of George Harris, Appellant, v Andrea Evans, Chairwoman, New York State Division of Parole, Respondent.
    Decided September 21, 2010
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First 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:
    Paul O. Hynard, Appellant, v Louis Glano et al., Respondents.
    Submitted July 12, 2010;
    decided September 21, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    Jacob Katz, Respondent, v Benedetto Marra, Appellant.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not

finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Leon R. Koziol, Individually, as Natural Parent of Child A and Another, and on Behalf of Parents and Children Similarly Situated, Appellant, v Martha WalshHood, Acting Judge of State of New York, et al., Respondents.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Henriette Louzoun, Also Known as Malka Louzoun, Appellant, v Joseph Montalto, Respondent.
    Submitted July 19, 2010;
    decided September 21, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Cross motion for the imposition of sanctions denied.


text:
    In the Matter of Hector J. Martinez, Appellant, v Maria C. Martinez, Respondent.
    Submitted July 26, 2010;
    decided September 21, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Florence E. Newport, Appellant, v Rogosin Institute et al., Respondents.
    Submitted July 26, 2010;
    decided September 21, 2010
   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:
    166 Archer Ave. Co., LLC, Appellant, v New York City Health and Hospitals Corporation, Respondent.
    Submitted July 6, 2010;
    decided September 21, 2010
   Motion for leave to appeal dismissed upon the ground that it does not lie from the Appellate Division order, appellant having previously moved in the Court of Appeals for leave to appeal (12 NY3d 848 [2009]) from the same Appellate Division order from which it currently seeks leave to appeal (see Stoyle v Schaub, 93 NY2d 884 [1999]).


text:
    Ralph Oyague, Appellant, v Incorporated Village of Malverne et al., Respondents.
    Submitted July 26, 2010;
    decided September 21, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. 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:
    The People of the State of New York, Respondent, v Jamel Black, Appellant.
    Submitted September 13, 2010;
    decided September 21, 2010
   Motion by New York Civil Liberties Union 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:
    The People of the State of New York ex rel. Eric Wade Clark, Appellant, v James Walsh, as Superintendent of Sullivan Correctional Facility, Respondent.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Clifford Graham, Appellant, v Kevin E. Walsh, Sheriff, County of Onondaga, Respondent.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    The People of the State of New York ex rel. John Perez, Appellant, v M. Hourihane, Respondent.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Bruce Yelich, Respondent.
    Submitted July 26, 2010;
    decided September 21, 2010
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third 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]). Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain the motion (see NY Const, art VI, § 3 [b]; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Emanuel A. Towns (Admitted as Emanuel Alexander Towns), an Attorney, Appellant. Grievance Committee for the Tenth Judicial District, Respondent.
    Decided September 21, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Jones taking no part.


text:
    In the Matter of Robert Wooley, Appellant, v New York State Department of Correctional Services, Respondent.
    Submitted August 16, 2010;
    decided September 21, 2010
   Motion for reargument denied [see 15 NY3d 275 (2010)].


author: Pigott, J. (dissenting).

text:
    [935 NE2d 807, 909 NYS2d 15]
    The People of the State of New York, Appellant, v Jesse Brabham, Respondent.
    Decided September 23, 2010

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Allen J. Vickey of counsel), for appellant.

      Legal Aid Society, New York City (Adrienne M. Gantt 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), appeal dismissed upon the ground that the modification at the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to . . . modification” (CPL 450.90 [2] [a]). In view of the above, we have no occasion to comment on the dissent’s position that Penal Law § 70.25 (2-c) mandates that the Appellate Division delineate its reasons for modifying the sentence.

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

Pigott, J. (dissenting).

We are dismissing the People’s appeal because, in the majority’s view, the modification by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal or modification” (CPL 450.90 [2] [a]). From that ruling, I respectfully dissent.

Defendant pleaded guilty to attempted criminal possession of a controlled substance in the third degree under a plea agreement in which sentencing was to be deferred while he participated in a drug treatment program. Before completing the program, defendant absconded from the jurisdiction, resulting in a bail jumping charge. When he was involuntarily returned to New York 2V2 years later, defendant pleaded guilty to the bail jumping offense.

Supreme Court sentenced defendant, under Penal Law § 70.25 (2-c), to consecutive terms of 4 to 8 years on the drug offense and IV2 to 3 years on the bail jumping offense. On appeal, the Appellate Division reduced defendant’s sentence, “as a matter of discretion in the interest of justice,” by directing that the sentences be served concurrently rather than consecutively (66 AD3d 557 [2009]). The court simply stated that it found “mitigating circumstances” warranting a concurrent sentence for bail jumping, but failed to explain those factors on the record.

Under Penal Law § 70.25 (2-c), when a defendant is convicted of bail jumping, that sentence shall run consecutively with defendant’s other sentence. The statute further provides, however, that the court may, “in the interest of justice,” order a sentence to run concurrently if it finds mitigating circumstances that bear directly upon the manner in which the crime was committed (Penal Law § 70.25 [2-c]). If the court determines that consecutive sentences should not be ordered, it is required to make a “statement on the record of the facts and circumstances upon which such determination is based” (id.). Thus, under the clear language of the statute, the court’s interest of justice jurisdiction in ordering concurrent sentences is limited to finding mitigating factors and making an explanatory statement of those factors on the record.

In this case, the Appellate Division, although exercising its interest of justice jurisdiction, failed to comply with the clear mandate of the statute. In the absence of an explanation of the mitigating circumstances, the court was required to run the sentences consecutively. Because the Appellate Division made an erroneous determination on the law, in my view, we need not dismiss this appeal.

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

       In People v Leopold (13 NY3d 923 [2010]), we found, under somewhat similar circumstances, that the Appellate Division should be reversed because it failed to set forth the appropriate findings of fact and conclusions of law as required by Correction Law § 168-n (3).


text:
    [935 NE2d 809, 909 NYS2d 17]
    The People of the State of New York, Respondent, v Jose Rivera, Appellant.
    Decided September 23, 2010

      APPEARANCES OF COUNSEL

      Center for Appellate Litigation, New York City (Susan H. Salomon and Robert S. Dean of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx (Karen Swiger and Peter D. Coddington of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

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

There was a reasonable basis in the evidence viewed in the light most favorable to defendant for finding defendant not guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b] [possessing a “loaded firearm” “with intent to use the same unlawfully against another”]), and yet guilty of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1] [possessing any firearm]). (See People v Discala, 45 NY2d 38, 41-42 [1978].) Defendant’s request for a lesser included offense charge should therefore have been granted.

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:
    In the Matter of Johnny Downs, Appellant, v New York State Executive Department et al, Respondents.
    Submitted August 9, 2010;
    decided September 23, 2010
   Motion for reargument of motion for leave to appeal denied [see 15 NY3d 742 (2010)].


text:
    In the Matter of Gent Uniform Rental Corp., Appellant, v County of Suffolk Department of Labor, Respondent. (Proceeding No. 1.) In the Matter of Gent Uniform Rental Corp., Appellant, v County of Suffolk et al., Respondents. (Proceeding No. 2.)
    Decided September 23, 2010
   Appeal, insofar as taken from that part of the Appellate Division order that affirmed so much of Supreme Court’s order and judgment as dismissed the proceeding in Matter of Gent Uniform Rental Corp. v County of Suffolk, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that, as to that part of the order, no substantial constitutional question is directly involved; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the remainder of the Appellate Division order does not finally determine the proceedings within the meaning of the Constitution.


text:
    In the Matter of Kathleen K., a Child Alleged to be Permanently Neglected. Suffolk County Department of Social Services, Respondent; Steven K., Appellant. (Proceeding No. 1.) In the Matter of Rachel K., a Child Alleged to be Permanently Neglected. Suffolk County Department of Social Services, Respondent; Steven K., Appellant. (Proceeding No. 2.)
    Submitted September 7, 2010;
    decided September 23, 2010
   Motion to enlarge record on appeal denied as unnecessary upon the ground that the material sought to be added is subject to judicial notice.


text:
    Nella Manko, Appellant, v Lenox Hill Hospital, Respondent.
    Decided September 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the orders appealed from do not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Thomas Sirico, Appellant.
    Submitted August 2, 2010;
    decided September 23, 2010
   Motion to vacate this Court’s July 15, 2010 dismissal order granted. Motion for assignment of counsel granted and Robert C. Mitchell, Esq., Legal Aid Society of Suffolk County, Inc., Arthur M. Cromarty Court Complex, 300 Center Drive, PO Box 1697, Riverhead, New York 11901 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York ex rel. Joseph II., Respondent, v Superintendent of Southport Correctional Facility et al., Appellants. In the Matter of State of New York, Appellant, v Humberto G., Respondent.
    Submitted August 2, 2010;
    decided September 23, 2010
   Motion for reargument denied [see 15 NY3d 126 (2010)].


text:
    In the Matter of Peter B., a Child Alleged to be Abused. Dutchess County Department of Social Services, Respondent; Peter B., Sr., Appellant. John Georges et al., Nonparty Respondents.
    Submitted July 26, 2010;
    decided September 23, 2010
   Motion, insofar as it seeks leave to appeal as against Dutchess County Department of Social Services, dismissed as untimely (see CPLR 5513 [b]; 2103 [b] [2]; [f] [1]; National Org. for Women v Metropolitan Life Ins. Co., 70 NY2d 939 [1988]); motion for leave to appeal otherwise denied.


text:
    Reliance Construction Ltd., Doing Business as RCG Group, Inc., Respondent, v Jim Kennelly, Also Known as James E Kennedy, et al., Appellants.
    Submitted July 19, 2010;
    decided September 23, 2010
   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 Burke v Crosson, 85 NY2d 10, 18 n 5 [1995]).


text:
    In the Matter of the State of New York, Respondent, v Daniel Farnsworth, Appellant.
    Decided September 23, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Christopher Coleman, Respondent, v Putnam Hospital Center et al., Defendants, and Marcel Goldberger, M.D., et al., Appellants.
    Submitted August 2, 2010;
    decided October 14, 2010
   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 Junior Collins, Appellant, v J.F. Bellnier, Respondent.
    Submitted September 20, 2010;
    decided October 14, 2010
   Motion to vacate this Court’s August 24, 2010 dismissal order granted [see 15 NY3d 801 (2010)]. On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Third 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:
    In the Matter of Eddie Gomez, Appellant, et al., Petitioner, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Submitted August 9, 2010;
    decided October 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Hattie G. Martin, Deceased. Miladin Dobric, Appellant; David J. Baron, Respondent.
    Submitted June 28, 2010;
    decided October 14, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Robert E Meegan, Jr., Individually and as President of Buffalo Police Benevolent Association, et al., Respondents, v Byron W. Brown, Mayor of City of Buffalo, et al., Appellants. (Proceeding No. 1.) In the Matter of Joseph E. Foley, Individually and as President of Buffalo Professional Firefighters Association, Inc., Local 282, IAFF, AFL-CIO-CLC, et al., Respondents, v Byron W Brown, Mayor of City of Buffalo, et al., Appellants. (Proceeding No. 2.) Buffalo Teachers Federation, Inc., NYSUT, et al., Respondents, v Buffalo Board of Education for City School District of City of Buffalo et al., Appellants. (Action No. 1.)
    Submitted September 20, 2010;
    decided October 14, 2010
   Motion by Buffalo Niagara Partnership 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:
    NML Capital, Respondent-Appellant, and Montreux Partners et al., Respondents, v Republic of Argentina, Appellant-Respondent.
    Decided October 14, 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.

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


text:
    The People of the State of New York, Appellant, v Benito Acevedo, Respondent.
    Submitted September 20, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Patrick R. Ashley, Appellant.
    Submitted October 4, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted and John A. Girando, Esq., care of D.J. & J.A. Girando, Esqs., 101 South Salina Street, Suite 1010, Syracuse, New York 13202 assigned as counsel to the appellant on the appeal herein. Judge Pigott taking no part.


text:
    The People of the State of New York, Respondent, v Corey E. Becoats, Appellant.
    Submitted September 27, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted only to the extent that Donald M. Thompson, Esq., care of Easton Thompson Kasperek Shiffrin LLR 16 West Main Street, Suite 243, Rochester, New York 14614 is assigned without fee to represent appellant on the appeal herein. Counsel may, however, apply for reimbursement of necessary disbursements incurred in connection with the assignment.


text:
    The People of the State of New York, Respondent, v Nadirah Brown, Appellant.
    Submitted September 27, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted and David C. Schopp, Esq., the Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v John Freeman, Respondent-Appellant.
    Submitted September 27, 2010;
    decided October 14, 2010
   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 respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Appellant-Respondent, v Michael Hall, Respondent-Appellant.
    Submitted October 12, 2010;
    decided October 14, 2010
   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 respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Andy R. Mattison, Appellant.
    Submitted October 4, 2010;
    decided October 14, 2010
   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 Fayola McIntosh, Respondent.
    Submitted September 27, 2010;
    decided October 14, 2010
   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 respondent on the appeal herein.


text:
    The People of the State of New York, Respondent, v Dominique Murrell, Appellant.
    Submitted October 4, 2010;
    decided October 14, 2010
   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 John Prendergast, Appellant.
    Submitted September 27, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Sherman Rivers, Appellant.
    Submitted September 27, 2010;
    decided October 14, 2010
   Motion for assignment of counsel granted and Lynn WL. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Omar Washington, Appellant.
    Submitted October 4, 2010;
    decided October 14, 2010
   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:
    Edwin Pope et al., Appellants, v Safety and Quality Plus, Inc., et al., Respondents. (And a Third-Party Action.)
    Submitted August 2, 2010;
    decided October 14, 2010
   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 Sandra G., Respondent, v Victor P, Appellant.
    Submitted August 2, 2010;
    decided October 14, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Youni Gems Corp. et al., Respondents, v Bassco Creations Incorporated, Defendant, and Efraim Basalel et al., Appellants.
    Submitted August 2, 2010;
    decided October 14, 2010
   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:
    [936 NE2d 912, 910 NYS2d 31]
    The People of the State of New York, Appellant, v Carlos Reyes, Respondent.
    Decided October 19, 2010

      APPEARANCES OF COUNSEL

      Cyrus R. Vance, Jr., District Attorney, New York City (Susan Axelrod and Alan Gadlin of counsel), for appellant.

      Office of the Appellate Defender, New York City (Richard M. Greenberg, Heather L. Holloway and Rosemary Herbert 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), appeal dismissed upon the ground that the reversal by the Appellate Division was not “on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal” (CPL 450.90 [2] [a]; see People v Howard, 74 NY2d 943 [1989]).

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 of the State of New York, Appellant.
    Decided October 19, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Barbara J. Bracci, Appellant, v New York State Division of Human Rights, Respondent.
    Submitted August 2, 2010;
    decided October 19, 2010
   On the Court’s own motion, appeal dismissed, without costs, as untimely (see CPLR 5513 [a]). Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for ancillary relief dismissed as academic.


text:
    In the Matter of Central Hudson Gas & Electric Corporation, Appellant, v Assessor of Town of Newburgh et al., Respondents.
    Submitted August 2, 2010;
    decided October 19, 2010
   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 and is not an order of the type provided for in CPLR 5602 (a) (2).


text:
    Jennifer M. Doherty and Another, as Assignees of Thomas S. Fitzpatrick, Appellants, v Merchants Mutual Insurance Company, Respondent.
    Submitted August 23, 2010;
    decided October 19, 2010
   Motion to dismiss appeal denied.


text:
    Jemrock Realty Co. LLC, Respondent, v Jay Krugman, Appellant.
    Submitted August 2, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this proceeding commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602).


text:
    In the Matter of Jeffrey A. Jones, Respondent, v Diette D. Jones, Also Known as Diette D. Jones-Webman, Appellant.
    Submitted August 16, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Inge L. Mader, Respondent, v Kenny Johnson, Appellant.
    Submitted August 23, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of the Claim of Peggy Magidson, Appellant, v Strategic Telemarketing, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted August 9, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Francesco Nicoletta, Appellant, v New York State Division of Parole, Respondent.
    Submitted August 9, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot.


text:
    Natalia Cokings Oakes, Individually and as Successor Trustee of the Herbert C. Oakes Living Trust, as Assignee of Herbert C. Oakes, Jr. and Another, and as Guardian of Leopold V. Oakes, an Infant, Respondent, v Betty O. Muka, Appellant.
    Decided October 19, 2010
   Appeal, insofar as taken from the June 2010 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not finally determine the action within the meaning of the Constitution; appeal, insofar as taken from the January 2010 Appellate Division order, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Andrew Ophardt, Appellant, v Julio Vasquez, Commissioner, Community Development of City of Rochester, et al., Respondents.
    Submitted July 26, 2010;
    decided October 19, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal denied.


text:
    The People of the State of New York, Respondent, v Sheila B., Appellant. In the Matter of Sheila B., Appellant.
    Submitted August 2, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3 [b]; CPLR 5602).


text:
    The People of the State of New York ex rel. Clifford Brathwaite, Also Known as Eric Smith, Appellant, v Brian Fischer, as Commissioner of Correctional Services, et al., Respondents.
    Decided October 19, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies from an order of an individual Justice of the Appellate Division (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    The People of the State of New York ex rel. Archie Shannon, Appellant, v Sibatu Khahaifa, Superintendent, Orleans Correctional Facility, et al., Respondents.
    Submitted July 12, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed upon the ground that appellant has been released from custody and, therefore, his liberty is no longer restrained to such a degree as to entitle him to the extraordinary writ of habeas corpus (see People ex rel. Wilder v Markley, 26 NY2d 648 [1970]).

Judge Pigott taking no part.


text:
    In the Matter of Anthony J. Segreto et al., Appellants, v Alexander B. Grannis, Commissioner of the New York State Department of Environmental Conservation, Respondent.
    Submitted August 2, 2010;
    decided October 19, 2010
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    [937 NE2d 79, 910 NYS2d 415]
    Wanderlei Gasques et al., Appellants, v State of New York, Respondent.
    Argued September 15, 2010;
    decided October 21, 2010

      APPEARANCES OF COUNSEL

      Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), and Herbert William Fischman, P.C., New York City (Herbert William Fischman of counsel), for appellants.

      Cartafalsa, Slattery, Turpin & Lenoff, New York City (Michael J. Lenoff and B. Jennifer Jaffee of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed from, should be affirmed, with costs, and the certified question answered in the affirmative.

Claimant Wanderlei Gasques was injured while repainting the inside of a leg of the Kosciuszko Bridge, using a “spider scaffold.” His hand was injured when it became caught between the scaffold and the leg of the bridge, while the scaffold was ascending.

With respect to claimants’ Labor Law § 240 (1) cause of action, the parties agree that Gasques’ hand was crushed because the scaffold continued to move, under the impetus of one of its motors, while his hand was trapped between an external motor control on the scaffold and the steel of the bridge. This injury was not the direct consequence of the application of the force of gravity to an object or person (see Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]; Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993]). Therefore claimants’ Labor Law § 240 (1) claim was properly dismissed.

Claimants’ Labor Law § 241 (6) cause of action was also properly dismissed because it is based solely on 12 NYCRR 23-1.5 (c) (1), which requires that machinery or equipment used by employees be “in good repair and in safe working condition.” It is well established that, in a Labor Law § 241 (6) claim, the rule or regulation alleged to have been breached must be a “specific, positive command” (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 349 [1998], quoting Ross, 81 NY2d at 504). 12 NYCRR 23-1.5 (c) (1) does not set forth a specific standard of conduct and therefore cannot serve as a predicate for a Labor Law § 241 (6) claim.

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

Order, insofar as appealed from, affirmed, etc.


text:
    [939 NE2d 137, 913 NYS2d 120]
    Justin M. Shubbuck, Respondent, v Sean M. Conners et al., Appellants.
    Decided October 21, 2010

      APPEARANCES OF COUNSEL

      Rivkin Radler, LLP, Uniondale (Merril Biscone and Melissa M. Murphy of counsel), for appellants.

      Law Offices of Wayne C. Felle, P.C., Williamsville (Wayne C. Felle of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be modified, with costs to defendants, by remitting the matter to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Plaintiff’s own testimony, without more, was insufficient to establish by a reasonable certainty his loss of future wages as a result of the accident. In this case, the W-2 forms and tax returns that plaintiff introduced demonstrated his yearly income post-accident but they were not probative of a reduction in future wages as a result of the accident because they did not compare his pre- and post-accident income nor compare his post-accident income with the income of similarly situated employees in plaintiffs company. Accordingly, there is “no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

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:
    In the Matter of Michael Hoffler, Appellant, v Robert M. Jacon, as Judge of the County Court of Rensselaer County, et al., Respondents.
    Submitted August 16, 2010;
    decided October 21, 2010
   Motion for reconsideration of this Court’s July 1, 2010 dismissal order denied [see 15 NY3d 768 (2010)]. Motion for leave to appeal denied.


text:
    Mahin Dokht Karoon, Plaintiff, v Majid Karoon, Defendant. Cox Padmore Skolnik & Shakarchy, LLR Nonparty Respondent; Kayvan Karoon et al., Nonparty Appellants.
    Submitted August 2, 2010;
    decided October 21, 2010
   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:
    The People of the State of New York, Respondent, v David Lance Paulin, Appellant.
    Submitted October 18, 2010;
    decided October 21, 2010
   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, Appellant-Respondent, v Manuel Rodriguez, Respondent-Appellant.
    Submitted October 18, 2010;
    decided October 21, 2010
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the respondent-appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Edwin Santiago, Appellant.
    Submitted October 18, 2010;
    decided October 21, 2010
   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:
    Tsaiyun Ishin Phillips, Appellant, v Robert Martin Haralick, Respondent.
    Submitted August 16, 2010;
    decided October 21, 2010
   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:
    Pleasant Hill Developers, Inc., Respondent, v Foxwood Enterprises, LLC, et al., Appellants.
    Submitted August 23, 2010;
    decided October 21, 2010
   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:
    Valerie Sutton, Respondent, v Scott Burdick, as Executor of Wesley Burdick, Deceased, et al., Defendants, and Raymond Harvey, Appellant.
    Submitted September 7, 2010;
    decided October 21, 2010
   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:
    Young Chen, Respondent, v Ruihua Li, Appellant.
    Submitted August 16, 2010;
    decided October 21, 2010
   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:
    [938 NE2d 965, 912 NYS2d 532]
    The People of the State of New York, Respondent, v Raymond Brun, Appellant.
    Decided October 26, 2010

      APPEARANCES OF COUNSEL

      Norman Trabulus, New York City, for appellant.

      Kathleen M. Rice, District Attorney, Mineola (Andrea M. Di-Gregorio of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, defendant’s application for a writ of error coram nobis granted, the Appellate Division’s January 2009 order of modification (58 AD3d 862 [2d Dept 2009]) vacated, and the matter remitted to the Appellate Division for a de novo determination of the People’s appeal.

Pursuant to the Rules of the Appellate Division, Second Department, on a People’s appeal to that court, if a defendant was represented by assigned counsel at the trial court,

“such assignment shall remain in effect and counsel shall continue to represent the defendant as the respondent on the appeal until entry of the order determining the appeal and until counsel shall have performed any additional applicable duties imposed upon him by these rules, or until counsel shall have been otherwise relieved of his assignment” (22 NYCRR 671.3 [f]).

Here, although he informed defendant of the People’s appeal, defendant’s assigned trial counsel failed to represent defendant on that appeal. The Appellate Division, apparently unaware that defendant had been represented by assigned trial counsel, determined the People’s appeal, noting no appearances by defendant (58 AD3d 862 [2009]).

Defendant thereafter applied for a writ of error coram nobis, alleging that he had been deprived of counsel on the People’s appeal in violation of section 671.3 (f). The Appellate Division denied the writ, stating that defendant “failed to establish that he was denied the effective assistance of appellate counsel” (64 AD3d 611, 612 [2d Dept 2009]).

Because defendant’s trial counsel failed to comply with the terms of 22 NYCRR 671.3 (f), defendant was deprived of appellate counsel to which he was entitled. Accordingly, the Appellate Division should have granted defendant’s application for a writ of error coram nobis. Although a writ of error coram nobis generally raises the claim that defendant received ineffective assistance of appellate counsel, the writ is also a proper vehicle for addressing the complete deprivation of appellate counsel that occurred here.

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:
    [939 NE2d 138, 913 NYS2d 121]
    Juliette DeJoie Cadichon et al., Appellants, v Thomas Facelle, M.D., et al., Respondents.
    Submitted August 6, 2010;
    decided October 26, 2010

      APPEARANCES OF COUNSEL

      Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), for appellants.

      Martin Clearwater & Bell LLP, New York City (Stewart G. Milch of counsel), for Thomas Facelle, M.D., respondent.

      Steinberg, Symer & Platt, LLP, Poughkeepsie (Ellen Fischer Bopp of counsel), for Good Samaritan Hospital, respondent.

      McAloon & Friedman, P.C., New York City (Gina Bernardi DiFolco of counsel), for Montefiore Medical Center, respondent.

      Clausen Miller P.C., New York City (Edwin M. Tobin of counsel), for Louis May, respondent.
   OPINION OF THE COURT

Memorandum.

The motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order (71 AD3d 520 [2010]) that affirmed the August 26, 2008 Supreme Court order, treated as a motion for reconsideration of so much of this Court’s July 1, 2010 order (15 NY3d 767 [2010]) as dismissed plaintiffs’ appeal as of right from that portion of the Appellate Division order, should be granted, and, upon reconsideration, jurisdiction of so much of the appeal should be retained. The motion, insofar as it seeks leave to appeal from the above-recited part of the Appellate Division order should be dismissed as unnecessary. The motion, insofar as it seeks leave to appeal from the remainder of the Appellate Division order should be dismissed upon the ground that it does not finally determine the action within the meaning of the Constitution. The motion, insofar as it seeks leave to appeal from the amended judgment of Supreme Court pursuant to CPLR 5602 (a) (1) (ii), should be dismissed upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611). The appeal from the amended judgment should be dismissed, without costs, by the Court, on its own motion, upon the ground that the portion of the Appellate Division order that affirmed the August 26, 2008 Supreme Court order is a final appealable paper from which an appeal was properly taken (see CPLR 5611).

In considering the finality limitation on its jurisdiction, this Court has consistently treated the automatic dismissal of an action pursuant to CPLR 3404, or pursuant to other statutes or court rules, as a final determination and it has treated any subsequent order denying a motion to vacate the dismissal as a nonfinal determination (see e.g. Paglia v Agrawal, 124 AD2d 793 [1986], lv dismissed 69 NY2d 946 [1987]). Accordingly, reading Supreme Court’s order pursuant to CPLR 3216 in this case as providing that the complaint would be dismissed automatically upon plaintiffs’ failure to file a note of issue by the date specified in the order, the Court dismissed for nonfinality the part of the appeal taken from the order affirming the denial of the motion to vacate (15 NY3d 767 [2010]). Upon reconsideration, it is recognized that Supreme Court’s order is ambiguous as to whether it mandated a dismissal without further court order. Where, as here, it is not clear that the action was automatically dismissed by operation of statute, rule or court order, the order denying the motion to vacate shall be deemed the final appealable paper for purposes of this Court’s jurisdiction. As the Appellate Division order denying the motion to vacate had a two-Justice dissent on a question of law, an appeal as of right pursuant to CPLR 5601 (a) properly lies.

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


text:
    [938 NE2d 996, 912 NYS2d 563]
    Coriey Reynolds et al., Appellants, v Millard J. Knibbs et al., Respondents.
    Decided October 26, 2010

      APPEARANCES OF COUNSEL

      Cellino & Barnes, P.C., Rochester (Robert L. Voltz of counsel), for appellants.

      Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and defendants’ motion for summary judgment denied. Plaintiffs raised a triable issue of fact as to whether defendants had constructive notice of the alleged defect in the stairs (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

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:
    [938 NE2d 997, 912 NYS2d 563]
    Pedro Acosta, Appellant, v City of New York et al., Respondents.
    Decided October 26, 2010

      APPEARANCES OF COUNSEL

      Alexander J. Wulwick, New York City, for appellant.

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

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not determined on the appeal to that court. A valid line of reasoning exists based on the record evidence to support the jury verdict finding defendants liable for battery and false arrest (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Thus, it was erroneous to set aside the verdict as a matter of law. On remittal, the Appellate Division must determine whether the jury’s verdict is in accord with the weight of the evidence and, if so, whether the amount of damages awarded by the jury was excessive (see id. at 500 and n 4).

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Pigott and Jones concur in memorandum; Judge Smith dissents and votes to affirm for the reasons stated in the memorandum at the Appellate Division (72 AD3d 624 [2010]).

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


author: Ciparick, J. (dissenting).

text:
    [938 NE2d 966, 912 NYS2d 533]
    In the Matter of Daniel H., a Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency, Respondent.
    Argued September 15, 2010;
    decided October 26, 2010
    SUMMARY
    Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered November 17, 2009. The Appellate Division, with two Justices dissenting, affirmed an order of disposition of the Family Court, Bronx County (Monica Drinane, J.), which had adjudicated appellant a juvenile delinquent upon a fact-finding determination that appellant had committed acts which, if committed by an adult, would have constituted the crimes of burglary in the third degree, grand larceny in the fourth degree (two counts), and identity theft in the third degree.
    APPEARANCES OF COUNSEL

      Legal Aid Society, New York City (Raymond E. Rogers, Tamara A. Steckler and Steven Banks), for appellant.

      Michael A. Cardozo, Corporation Counsel, New York City (Victoria Scalzo, Stephen J. McGrath and Leah Schmelzer of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, on the ground that the two-Justice dissent at the Appellate Division was not on a question of law (see CPLR 5601 [a]).

Police arrested appellant Daniel H. at his school for the theft of credit cards after he had made an inculpatory statement without being advised of his Miranda rights. Appellant was transported to a precinct, left alone in an adult holding cell, and was again questioned by the same detectives in a sergeant’s office rather than a designated juvenile room. A written inculpatory statement was made by appellant after he and his mother were advised of appellant’s Miranda rights.

Following a hearing conducted on October 31, 2007, the Family Court precluded appellant’s inculpatory oral statement and denied the suppression of his subsequent, inculpatory written statement. The court determined that the written statement was sufficiently attenuated from the earlier oral statement. Appellant was adjudicated a juvenile delinquent for committing acts, which, if committed by an adult, would constitute the crimes of burglary in the third degree, grand larceny in the fourth degree, and identity theft in the third degree.

By a 3-2 decision, the Appellate Division affirmed the Family Court order, finding that the written statement was sufficiently attenuated from the earlier un-Mirandized statement (67 AD3d 527 [1st Dept 2009]). The two-Justice dissent sought to remit the action to Family Court for a new fact-finding hearing. Appellant appeals to this Court pursuant to CPLR 5601 (a).

Jurisdiction for an appeal to this Court predicated upon CPLR 5601 (a) requires that, at the Appellate Division, there be a “dissent by at least two justices on a question of law in favor of the party taking such appeal.” The issue of whether a defendant’s inculpatory statement is attenuated from his prior unMirandized statement presents a mixed question of law and fact (see People v Paulman, 5 NY3d at 129; People v Ryan, 12 NY3d 28 [2009]; People v Conyers, 68 NY2d 982 [1986]). As the two-Justice dissent was not on a question of law, this Court is without jurisdiction to decide the appeal (see CPLR 5601 [a]; Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990 [1988]; Guaspari v Gorsky, 29 NY2d 891 [1972]).

Ciparick, J. (dissenting).

Because I believe that the two-Justice dissent in the Appellate Division was on a question of law, and therefore CPLR 5601 (a) permits our review as a matter of right, I would reach the question presented on this appeal, conclude that an incorrect legal standard was applied in this juvenile delinquency proceeding, and remit to Family Court for further consideration.

Whether the courts below applied the correct standard in determining that Daniel’s statement was attenuated is a legal question firmly within our jurisdiction (see People v Borges, 69 NY2d 1031, 1033 [1987] [“While questions of attenuation generally present mixed questions of law and fact, where . . . the lower courts have applied an incorrect legal standard, an issue of law reviewable by this court is presented” (citations omitted)]). The Appellate Division dissent below explicitly took issue with the legal standard applied by the majority, not the application of that standard. In affirming Family Court’s finding of attenuation, the Appellate Division majority held that “the issue of attenuation is not appreciably different for juveniles than for adults,” and proceeded to conduct the attenuation analysis just as it would for an adult defendant (Matter of Daniel H., 67 AD3d 527, 529 [2009]). The dissent disagreed about whether Daniel’s age should inform the analysis, noting that although the facts here “may constitute a pronounced break in the case of an adult accused[, they] have different bearing on the determination with regard to a juvenile” (id. at 535 [Moskowitz, J., dissenting] [citations omitted]). This is a straightforward disagreement regarding the legal standard—whether or not attenuation should be assessed differently in cases where the suspect is a juvenile—and so presents a question of law we can, and should, address.

Turning to the merits, I agree with the dissent below that Daniel’s age should be a factor in considering whether his Mirandized statement was sufficiently attenuated from his prior, unwarned statement. Miranda warnings “ ‘must precede the subjection of a [suspect] to questioning . . . unless there is such a definite, pronounced break in the interrogation that the [suspect] may be said to have returned, in effect, to the status of one who is not under the influence of questioning’ ” (People v White, 10 NY3d 286, 291 [2008], quoting People v Chapple, 38 NY2d 112, 115 [1975]). In other words, we aim to ensure that the two interrogations are not part of a “single continuous chain of events” (Chapple, 38 NY2d at 114).

In People v Paulman (5 NY3d 122 [2005]), we enumerated several considerations for determining whether an involuntary statement tainted a subsequent, Mirandized statement:

“New York courts have considered a number of factors, including the time differential between the Miranda violation and the subsequent admission; whether the same police personnel were present and involved in eliciting each statement; whether there was a change in the location or nature of the interrogation; the circumstances surrounding the Miranda violation, such as the extent of the improper questioning; and whether, prior to the Miranda violation, defendant had indicated a willingness to speak to police” (id. at 130-131).

Although it is an objective inquiry, these factors are meant to illuminate whether the suspect experienced the unwarned and later warned questioning as part of a continuous interrogation (see id. at 131; Chappie, 38 NY2d at 115).

Ultimately, the purpose of requiring a pronounced break is to ensure that the Miranda warnings effectively communicate a suspect’s right to remain silent and refrain from self-incrimination (see Chappie, 38 NY2d at 115). One under “continuous and custodial interrogation may well be put in such a state of mind that the warnings which would ordinarily suffice will no longer be enough to protect his rights” (id.). As a plurality of the United States Supreme Court recently observed, “[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again” (Missouri v Seibert, 542 US 600, 613 [2004]).

The risk that Miranda warnings might be ineffective is heightened where, as here, the suspect is a juvenile. Indeed, this case is illustrative. The police interrogated Daniel at his school in a custodial setting outside the presence of a parent or advocate, elicited a confession, and then, after reading Miranda warnings in the presence of his mother, repeated the interrogation at the police precinct approximately one hour later, in a space other than a designated juvenile room. That Daniel was 15 years old certainly impacts whether he “perceived a distinction” between the two interrogations sufficient to render his Miranda warnings effective (Paulman, 5 NY3d at 132).

Daniel’s experience of these events is inseparable from his juvenile status for several reasons. Some of the Paulman factors, such as the circumstances surrounding the initial Miranda violation, require consideration of his youth. For example, although the unwarned interrogation at his school was brief, the violation is more egregious because the suspect was an isolated, unaccompanied juvenile. Other factors, such as a suspect’s initial willingness to talk to the police, inevitably mean something different when the suspect is a minor, and may be entirely inapplicable. Additionally, a child is less likely than an adult to perceive any given period spent in constant police custody as a “break,” and is more likely to feel compelled to continue answering questions posed by the same officers who conducted the unwarned interrogation. Belatedly, a juvenile suspect is less likely to comprehend the meaning of Miranda warnings read shortly following a confession and understand that he can remain silent. It is also important to note that by not holding and interrogating Daniel in a designated juvenile room, as required by the Family Court Act, the police may have acted improperly (Family Ct Act § 305.2 [4] [b]; § 344.2 [2]).

In conclusion, Daniel’s juvenile status exacerbated the severity of the police misconduct during the unwarned interrogation, decreased the likelihood that he understood his subsequent Miranda warnings, and impacted the validity of his Mirandized statement in a variety of other ways. Whether, on balance, there was a sufficient break in the interrogation is indeed a factual question, but age is clearly a relevant factor that should have been taken into account here.

Therefore, I would reverse and remit to Family Court for consideration of whether, in light of Daniel’s youth, his two inculpatory statements were part of a “single continuous chain of events” resulting in “inadequate assurance that the Miranda warnings were effective” (Paulman, 5 NY3d at 130).

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

Appeal dismissed, without costs, in a memorandum.

       The purpose of the doctrine of attenuation is to determine whether there was a sufficiently “definite, pronounced break in the interrogation that the defendant may be said to have returned, in effect, to the status of one who is not under the influence of questioning” and is no longer influenced by the taint of the earlier Miranda violation (People v Chapple, 38 NY2d 112, 115 [1975]; see People v Paulman, 5 NY3d 122 [2005]).


text:
    In the Matter of Joshua Bernstein, a Disbarred Attorney, Appellant. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, Petitioner.
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Cabrini Terrace Joint Venture, Respondent, v Charles O’Brien, Appellant.
    Submitted August 23, 2010;
    decided October 26, 2010
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see NY Const, art VI, § 3; CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Mercedes Casado et al., Respondents, v Marvin Markus, as Chair of the New York City Rent Guidelines Board, et al., Appellants.
    Submitted August 2, 2010;
    decided October 26, 2010
   Motion by the Rent Stabilization Association of NYC, Inc., et al. for leave to appear as amici curiae on the motion for leave to appeal herein granted and the affidavit is accepted as filed, and 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:
    Development Strategies Company, LLC, Profit Sharing Plan, Respondent, v Astoria Equities, Inc., et al., Appellants, et al., Defendants.
    Submitted August 2, 2010;
    decided October 26, 2010
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s November 2008 order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    David B. Jacobs, Appellant, v Michael Mostow et al., Defendants, and Arthur Riegel et al., Respondents.
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    David B. Jacobs, Appellant, v Michael Mostow et al., Respondents, et al., Defendants.
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of L&M Bus Corp. et al., Respondents, v New York City Department of Education et al., Appellants, and Local 1181 of the Amalgamated Transit Union, Intervenor-Appellant.
    Submitted July 26, 2010;
    decided October 26, 2010
   Motion by the New York City Department of Education, et al. for leave to appeal granted. Motion by Local 1181 of the Amalgamated Transit Union, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed Supreme Court’s determination denying discovery and the application to complete the record, dismissed upon the ground that such part of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise granted.


text:
    Santo Lombardo et al., Appellants, v Mastec North America, Inc., et al., Defendants, and Queens Network Cable, Respondent. (And a Third-Party Action.)
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Appellate Division order appealed from, which denied reargument, does not finally determine the action within the meaning of the Constitution.


text:
    Jennifer D. Martino, Respondent, v Michael A. Stolzman, Respondent, and Michael Oliver et al., Appellants. (Action No. 1.) Judith A. Rost, Respondent, v Michael A. Stolzman et al., Respondents, and Michael Oliver et al., Appellants. (Action No. 2.)
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the actions within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Timothy Fair, Appellant, v David Rock, as Superintendent of Great Meadow Correctional Facility, Respondent.
    Decided October 26, 2010
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Anthony Mun-ford, Appellant, v William J. Connelly, Respondent.
    Submitted September 20, 2010;
    decided October 26, 2010
   Motion for reargument of motion for leave to appeal denied [see 14 NY3d 702 (2010)].


text:
    In the Matter of the Claim of Randy Raynor, Claimant, v Landmark Chrysler et al., Appellants, et al., Respondent. Workers’ Compensation Board, Respondent.
    Decided October 26, 2010
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for leave to appeal granted.


text:
    In the Matter of Daniel Williams, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.
    Submitted August 16, 2010;
    decided October 26, 2010
   Motion for leave to appeal granted. Motion for poor person relief granted.


text:
    [938 NE2d 987, 912 NYS2d 554]
    The People of the State of New York, Respondent, v Tashiem Bayard, Appellant.
    Argued October 21, 2010;
    decided November 17, 2010

      APPEARANCES OF COUNSEL

      Office of the Appellate Defender, New York City (Anastasia B. Heeger, Richard M. Greenberg and Rosemary Herbert of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City Karen Schlossberg and Sheryl Feldman of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Prior to trial in this robbery prosecution, the People turned over a police omniform system complaint report that included descriptive information relating to the crime and the perpetrators but did not contain the name of the officer that compiled that information. Defendant contends that the People’s failure to disclose the officer’s identity amounts to a Brady violation warranting reversal of his conviction. We disagree. Assuming that the omitted name had exculpatory or impeachment value, there is no reasonable possibility that, if the officer’s identity had been discovered, the outcome of the proceedings would have been different (see People v Vilardi, 76 NY2d 67 [1990]). The trial court allowed the defense to make significant use of the unsigned report during cross-examination of the complainant and lead detective and, as an ameliorative measure, permitted the defense to challenge the complainant’s identification by admitting a description provided by a nontestifying eyewitness.

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

Order affirmed in a memorandum.