author: R.S. Smith, J.

text:
    [835 NE2d 654, 801 NYS2d 794]
    The People of the State of New York, Appellant, v Garth M. Hill, Respondent.
    Argued June 9, 2005;
    decided July 6, 2005
    APPEARANCES OF COUNSEL

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

      Thomas W. Ryan, Syracuse, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant furnished the prosecutor with a list of alibi witnesses seeking to have them testify before the grand jury. When presenting the case, the prosecutor told the grand jury that he had received a request from the defense asking that the grand jurors “consider and vote whether or not you want to hear from the following witnesses,” and gave only their names. The foreperson asked the prosecutor, “Can we ask you anything about the witnesses? I mean were they witnesses of the crime or . . . ?” Although the prosecutor knew that the list referred to alibi witnesses, he kept that information from the grand jury and said, “I can’t tell you anything. I don’t know.” Having been given only the names of the witnesses, the grand jury was left with no indication as to who these witnesses were or whether they could contribute anything to the case. With no basis to determine whether to call the witnesses, the grand jury voted not to hear them and ultimately returned a true bill against defendant. Upon defendant’s motion, County Court dismissed the indictment with leave to re-present. This ruling was correct, considering that at the pretrial stage of the proceeding, it would not be possible to predict that the prejudice could or would be cured at trial or by guilty plea.

We agree with the lower courts that, under the circumstances of this case, the prosecutor gave an inaccurate and misleading answer to the grand jury’s legitimate inquiry, thus substantially undermining the integrity of the proceeding and potentially prejudicing defendant (CPL 210.20 [1] [c]).

R.S. Smith, J.

(dissenting). I agree that the prosecutor erred in not giving the grand jury more information about defendant’s proposed witnesses. I do not agree, however, that the error impaired the integrity of the grand jury proceeding and required dismissal of the indictment.

Facts and Procedural History

The indictment in question charges defendant with murder in the second degree and criminal possession of a weapon in the second degree. A witness told the grand jury that defendant had been involved shortly before 2:00 a.m. in an altercation in a bar named Bo’s Place and then, after the bar closed, in a “scuffle” in the parking lot across the street during which some shots were fired and a man was wounded. The police broke up the disturbance and the witness left, but he returned a short time later to get a car out of the parking lot. The witness then observed parts of an encounter that ended with a fatal shooting by a man who, the witness said, looked like defendant.

Defendant’s lawyer, in a letter to the prosecutor, asked “that the Grand Jury hear the testimony of several witnesses who were with the defendant after the initial altercation outside of Bo’s Place.” The letter listed seven such witnesses and described briefly what defense counsel expected their testimony to be. The first five, counsel said, would describe defendant’s travel from the scene to the home of Lakisha Dixon and her mother, and Dixon and her mother would testify that the defendant was with them “for the rest of the morning.” In short, it was clear from the letter that these seven people were offered as alibi witnesses, and Dixon and her mother were apparently the critical ones. Defense counsel’s letter also asked the grand jury to call a police officer who, according to defense counsel, was in the area of the shooting but did not see the car that defendant was allegedly riding in.

At the time he received this letter, the prosecutor had a Syracuse Police Department report of an interview with Dixon, described in the report as defendant’s girl friend. According to the report, Dixon at first said that she was with defendant “the entire time,” but later “she admitted that she lied” and that defendant had told her to do so. According to the report, Dixon did not know when defendant came to her home on the night in question, except that it was “well after” 1:30 a.m.

The prosecutor presented to the grand jury defendant’s request that Dixon and seven other witnesses be heard from, but did not give them any of the above information—neither defense counsel’s predictions as to their testimony, nor the contradictory information in the police report. He simply told the grand jury that “I have received a request of the defense attorney” asking the grand jury to “consider and vote whether or not you want to hear from the following witnesses” and read the eight names. There was then some discussion, including the following:

“the foreperson: Can we ask you anything about the witnesses? I mean were they witnesses of the crime or?
“mr. o’donnell [The Prosecutor]: I can’t tell you anything. I don’t know.
“the foreperson: Or the police officer, was he the one that did the arrest in the investigation?
“mr o’donnell: It’s improper for me to discuss even what—I’d be giving my opinion on what I’d think they would say. . . .
“the foreperson: Okay. Personal opinion; maybe you can’t answer: As our legal advisor would it actually hurt the case; I mean is it better to see?
“mr o’donnell: As your legal advisor it would be improper for me to—
“the foreperson: Say anything.
“mr o’donnell: That should be decided amongst yourselves.”

The grand jury, after deliberating, voted not to call any of the witnesses, and later voted an indictment. Supreme Court dismissed the indictment with leave to re-present, a decision which the Appellate Division and now this Court have affirmed. I would reverse, and reinstate the indictment.

Discussion

Two statutes govern this case. The first is CPL 190.50 (6), which provides:

“A defendant or person against whom a criminal charge is being or is about to be brought in a grand jury proceeding may request the grand jury, either orally or in writing, to cause a person designated by him to be called as a witness in such proceeding. The grand jury may as a matter of discretion grant such request and cause such witness to be called . . . .”

The second governing statute is CPL 210.35, which lists the errors that render a grand jury proceeding “defective” and therefore require dismissal of an indictment. The denial of the defendant’s right to request the calling of witnesses is not among the errors listed, though the denial of the defendant’s own right to testify before the grand jury is (CPL 210.35 [4]). Defendant relies on the catch-all subsection, CPL 210.35 (5), which requires dismissal of the indictment where: “The proceeding otherwise fails to conform to the requirements of article one hundred ninety to such degree that the integrity thereof is impaired and prejudice to the defendant may result.”

Thus, defendant is entitled to have the indictment dismissed here only if he can show both a violation of CPL 190.50 (6) and a resulting impairment of the proceeding’s integrity. In my opinion, defendant clears the first hurdle but not the second.

I agree with the majority that CPL 190.50 (6) was violated, because, like the majority, I think the grand jurors’ questions about who these proposed witnesses were should have been answered. In answering them, the prosecutor had several options: He could simply have read to the grand jury the relevant portions of defense counsel’s letter; he could have summarized the defense position by saying, in substance, “the defense attorney says that the first seven are alibi witnesses and the eighth a police officer who was nearby at the time of the shooting”; he could, if he chose, have answered on the basis of his own information about the witnesses—including the information from the police report of the Dixon interview—as long as he summarized it fairly. By providing no information, the prosecutor deprived the grand jury of material that would have been valuable to it in exercising its discretion as to whether the witnesses should be called.

I do not believe, however (and I do not read the majority’s memorandum as suggesting), that the prosecutor’s error was a deliberate attempt to stack the cards against defendant in the grand jury. It seems, rather, that the prosecutor chose an unduly conservative way of handling what he might well have seen as a tricky problem. It is understandable that he was reluctant to say to the grand jury that seven of the people listed were alibi witnesses, without mentioning that one of them had told the police the alibi was false; such a partial disclosure might have been viewed by the prosecutor as misleading, and likely to create unwarranted doubts about the quality of the case against defendant. On the other hand, the prosecutor might have been concerned that, if he told the grand jurors the contents of the police report on the Dixon interview, he would later be accused of prejudicing grand jurors against defendant. I believe the prosecutor could properly have chosen either of these alternatives, and should have chosen one of them, but I conclude that his decision to do neither was nothing worse than a good faith misjudgment.

I also do not believe that, as the majority concludes, the prosecutor gave “an inaccurate and misleading answer” to the grand jurors’ questions (majority mem at 773). It would be better, of course, if he had not said “I don’t know” when he did have information about what the witnesses would say, but it is clear from the context that he was not really pretending to be totally ignorant. He twice told the grand jurors that it would be “improper” for him to say more, and he refused to give “my opinion on what I’d think they would say.” The grand jurors must have understood that the prosecutor had information he was not sharing with them.

The prosecutor’s reticence made it more difficult than it should have been for the grand jurors to perform their function, but it did not make it impossible. The grand jurors knew that there were eight people defendant wanted them to hear from. If they thought it was important to know what these people would say, they had the power to summon them and find out. Their choice not to do so was an exercise of the discretion committed to them by the statute. While a perfect performance by the prosecutor might have made the exercise of that discretion easier or better informed, I cannot conclude that the integrity of the grand jury proceeding was impaired.

The “integrity ... is impaired” test of CPL 210.35 (5) is not easy to meet. It “does not turn on mere flaw, error or skewing. The statutory test is very precise and very high.” (People v Darby, 75 NY2d 449, 455 [1990] [the test was not met where the prosecutor failed to advise the grand jurors that a statement made by defendant, ruled admissible at a Huntley hearing, may yet turn out to be inadmissible]; cf. People v Calbud, Inc., 49 NY2d 389, 394-395 [1980].) The test should be stringent, because the dismissal of indictments for relatively minor errors can seriously interfere with the enforcement of the criminal laws. No great harm is done in this case, where the indictment was dismissed before trial, and the case can be re-presented to another grand jury. But if Supreme Court had denied the motion to dismiss the indictment, and defendant had been tried and convicted of murder in the second degree, a holding that the indictment was defective would require nullifying the conviction. We might be more reluctant to dismiss an indictment on grounds like this after a conviction has already been obtained—but it is, to say the least, unclear that the statute permits a dismissal in one case and not the other.

Our previous decisions applying CPL 210.35 (5) do not support the majority’s holding. There are only two such cases in which we have found that the integrity of grand jury proceedings was impaired. One of them is People v Huston (88 NY2d 400 [1996]), an outrageous case in which the prosecutor intentionally put inadmissible evidence before the grand jury, told the grand jury that some witnesses were truthful and others were perjurers, harassed and insulted witnesses, and instructed the grand jury to interpret the physical evidence in the way he preferred. The other is People v Caracciola (78 NY2d 1021, 1022 [1991]), in which “the prosecutor’s legal instructions were too confusing to have been understood by the Grand Jury.”

This case involves neither deliberate prosecutorial misconduct nor incomprehensible instructions, but a good faith error that had only limited impact on the grand jury proceedings. I believe that an error of this kind should not require dismissal of an indictment, and I therefore dissent.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt and Graffeo concur; Judge R.S. Smith dissents and votes to reverse and reinstate the indictment in an opinion in which Judge Read concurs.

Order affirmed in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [835 NE2d 1220, 802 NYS2d 112]
    The People of the State of New York, Respondent, v Shamel Wilson, Appellant.
    Argued June 9, 2005;
    decided July 6, 2005

      APPEARANCES OF COUNSEL

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

      Robert M. Morgenthau, District Attorney, New York City (Frank Glaser and Donald J. Siewert of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered, to be preceded by an independent source hearing.

The People’s eyewitness identified defendant in a pretrial lineup, which occurred almost immediately after a police officer had shown him defendant’s photograph. Prior to trial, defendant moved to suppress the eyewitness’s lineup identification, as well as his prospective in-court identification testimony. At the suppression hearing, Supreme Court denied defendant’s motion, finding the lineup identification untainted by the eyewitness’s viewing of the photo. Supreme Court did not consider whether there was a basis independent of the lineup for in-court identification testimony. On appeal, the Appellate Division held, and the People do not contest, that the lineup was rendered unduly suggestive by the photo viewing, and that Supreme Court should have suppressed the lineup. The Appellate Division affirmed defendant’s conviction, however, concluding that Supreme Court had “correctly found” that the eyewitness had an independent source for his in-court identification testimony (11 AD3d 204, 205).

In so ruling, the Appellate Division erred. Because Supreme Court never took the additional step of determining whether an independent source existed for the eyewitness’s in-court identification, Supreme Court cannot be said to have ruled “correctly” when it never ruled at all. Further, although the Appellate Division may make a de novo independent source determination based on the evidence adduced at the suppression hearing (see CPL 470.15 [1]; see also People v James, 67 NY2d 662, 664 [1986]), the truncated inquiry in this case makes that impossible. Accordingly, we reverse defendant’s conviction and remand to Supreme Court for it to conduct an independent source hearing prior to retrial (compare People v James, 67 NY2d at 664). We reiterate our caution in People v Burts (78 NY2d 20, 25 [1991]) that, in light of the “risk for completely renewed proceedings” whenever a pretrial identification is challenged, the People are generally well-advised to come forward with any independent source evidence at a Wade hearing so that the suppression court may, where appropriate, rule in the alternative.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On appeal from the order of the Appellate Division affirming the judgment of conviction and sentence, order reversed and a new trial ordered, to be preceded by an independent source hearing; appeal from the order of the Appellate Division affirming the denial of defendant’s CPL 440.10 motion dismissed as academic, in a memorandum.

       Our decision renders academic defendant’s appeal from the denial of his CPL article 440 motion.


text:
    In the Matter of Wamel Allah, Appellant, v George Pataki, as Governor of New York State, et al., Respondents.
    Submitted June 20, 2005;
    decided July 6, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the issues presented have become moot.


text:
    Janet McCabe, as Administrator of the Estate of Thaddeus Boyce, Deceased, and as Guardian of Alyssa Boyce, et al., Appellants, v Competition Imports, Inc., Doing Business as Competition BMW of Smithtown, Respondent, et al., Defendant.
    Submitted May 31, 2005;
    decided July 6, 2005
   Motion for leave to appeal dismissed upon the ground that no appeal lies from the judgment from which leave to appeal is sought.


text:
    The People of the State of New York, Respondent, v James Jacobs, Appellant.
    Submitted June 13, 2005;
    decided July 6, 2005
   Motion to enlarge the record on appeal granted.


text:
    The People of the State of New York ex rel. Tyrone L. Jackson, Appellant, v Mark Farsi, as Warden, Respondent. (And Other Proceedings.)
    Submitted May 31, 2005;
    decided July 6, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Red Hook/Gowanus Chamber of Commerce, Appellant, v New York City Board of Standards and Appeals et al., Respondents.
    Submitted June 20, 2005;
    decided July 6, 2005
   Motion for leave to appeal granted. Motion for a stay denied.


text:
    Obdulio Sandoval, Appellant, v Raymond P. Martinez, Respondent.
    Submitted June 27, 2005;
    decided July 6, 2005
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that the constitutional question presented on this direct appeal is not substantial (see Gerzof v Gulotta, 40 NY2d 825 [1976]).


text:
    In the Matter of Amaury Villalobos, Appellant, v Edwin Felician et al., Respondents.
    Submitted May 23, 2005;
    decided July 6, 2005
   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:
    John S. Zumpano, Appellant, v James F. Quinn, Individually and in His Capacity as Assistant Pastor at St. Agnes Catholic School, et al., Respondents.
    Submitted July 5, 2005;
    decided July 6, 2005
   Motion for reargument granted and, upon reargument, motion for leave to appeal granted [see 4 NY3d 710].


text:
    In the Matter of Floyd Cowart, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted June 27, 2005;
    decided August 25, 2005
   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:
    Duane Reade, Inc., Appellant, v Local 338 Retail, Wholesale, Department Store Union, UFCW, AFL-CIO, et al., Respondents.
    Submitted June 20, 2005;
    decided August 25, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the dismissal of the complaint, denied; motion for leave to appeal otherwise dismissed upon the ground that the remainder of the Appellate Division order does not finally determine the action within the meaning of the Constitution.


text:
    Christopher Hiraldo et al., Appellants, v Allstate Insurance Company, Respondent, et al., Defendants.
    Submitted July 25, 2005;
    decided August 25, 2005
   Motion by Property Casualty Insurer Association of America et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Jonathan M., an Infant. Janine M., Appellant; The Children’s Village, Respondent, et al., Respondent.
    Submitted August 1, 2005;
    decided August 25, 2005
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Edward C. King, Appellant, v Lawrence A. Fox, Respondent.
    Decided August 25, 2005
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), accepted and the issues presented are to be considered after briefing and argument.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    In the Matter of Mohammad Naroor et al., Respondents, v Rizwan Gondal et al., Appellants, and Charles Schwab & Co., Inc., Respondent. (And Another Proceeding.)
    Submitted August 1, 2005;
    decided August 25, 2005
   Motion for reconsideration of this Court’s June 30, 2005 dismissal order denied [see 5 NY3d 757]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of New York City Asbestos Litigation. Elizabeth Holdampf et al., Respondents, v A.C. & S., Inc., et al., Defendants, and Port Authority of New York and New Jersey, Appellant.
    Submitted August 1, 2005;
    decided August 25, 2005
   Motion by Asbestos Disease Awareness Organization et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Yolanda Billingslea, Appellant.
    Submitted July 18, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v John Boyer, Appellant.
    Submitted July 11, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Bartolome Brito, Appellant.
    Submitted August 8, 2005;
    decided August 25, 2005
   Motion to waive certain requirements of the Rules of the Court of Appeals denied. The appeal may, however, be prosecuted upon a copy of the reproduced record used at the Appellate Division and 20 copies each of appellant’s Court of Appeals brief and appendix pursuant to section 500.5 (a) (2) of the Rules of the Court of Appeals (22 NYCRR 500.5 [a] [2]).


text:
    The People of the State of New York, Respondent, v Trevor Burns, Appellant.
    Submitted August 22, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James Devonish, Appellant.
    Submitted August 15, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., 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 Edwin Echevarria, Appellant.
    Submitted August 8, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Jethro H. Gosdin, Appellant.
    Submitted June 27, 2005;
    decided August 25, 2005
   Motion for an extension of time within which to apply for permission to appeal pursuant to CPL 460.20 dismissed upon the ground that no application for leave to appeal pursuant to CPL 460.20 will lie from an order of a single Justice of the Appellate Division denying leave to appeal to that Court pursuant to CPL 460.15.


text:
    The People of the State of New York, Respondent, v Trisha McPherson, Appellant.
    Submitted August 1, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Winston Nicholson, Appellant.
    Submitted July 18, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 74 Trinity Place, 11th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Gilberto Silva, Appellant.
    Submitted August 8, 2005;
    decided August 25, 2005
   Motion for reargument and/or to amend the Court of Appeals remittitur dismissed as untimely [see 69 NY2d 858].


text:
    The People of the State of New York, Respondent, v Mikel Wardlaw, Appellant.
    Submitted August 1, 2005;
    decided August 25, 2005
   Motion for assignment of counsel granted and David C. Schopp, Esq., Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203-2723 assigned as counsel to the appellant on the appeal herein.


text:
    Barbara Purpura, Respondent, v Nicholas E. Purpura, Appellant.
    Submitted June 13, 2005;
    decided August 25, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying appellant’s motion to vacate, 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. Motion for poor person relief dismissed as academic. Motion for a preference dismissed as academic.


text:
    Dimitrios Jim Ressis, Appellant, v Paloma A. Capanna, Esq., et al., Respondents.
    Submitted July 18, 2005;
    decided August 25, 2005
   Motion for leave to appeal denied with $100 costs and necessary reproduction disbursements. Motion for a stay dismissed as academic.


text:
    Jose Rodrigues et al., Plaintiffs, v N & S Building Contractors, Inc., Defendant and Third-Party Plaintiff-Appellant, et al., Defendant. Caldas Concrete Company, Inc., et al., Third-Party Defendants-Respondents.
    Submitted August 8, 2005;
    decided August 25, 2005
   Motion by New York State Builders Association, Inc. for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of the Estate of Raymond P. Wirth, Deceased. Drexel University, Respondent; Raymond P. Wirth, Jr., et al., Appellants.
    Submitted August 8, 2005;
    decided August 25, 2005
   Motion by Allegheny College et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [836 NE2d 1144, 803 NYS2d 22]
    Michael S. Bennett et al., Appellants, v Kissing Bridge Corporation, Respondent.
    Decided September 13, 2005

      APPEARANCES OF COUNSEL

      Smith, Keller, Miner & O’Shea, Buffalo (Philip J. O’Shea, Jr., of counsel), for appellants.

      Damon & Morey LLP, Buffalo (Brian A. Birenbach 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, with costs, for the reasons stated in the memorandum of the Appellate Division (17 AD3d 990).

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    [836 NE2d 1144, 803 NYS2d 22]
    The People of the State of New York, Respondent, v Juan Fernandez, Appellant.
    Decided September 13, 2005

      APPEARANCES OF COUNSEL

      Galgano & Associates, White Plains (George W. Galgano, Jr., of counsel), for appellant.

      Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division, insofar as appealed, should be affirmed.

Here, the parties agree that to prevail on his claim that he was denied effective assistance of counsel, defendant had the burden to demonstrate “that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer” (People v Rogers, 8 AD3d 888, 890-891 [3d Dept 2004]). Defendant failed to meet that burden. Assuming that such an offer was made, defendant proffered nothing to substantiate his claim that he would have accepted the plea. Defendant’s self-serving statement that he would have accepted the plea despite his claimed innocence, without more, is insufficient to warrant a hearing in light of the similar plea offer he rejected days before and trial counsel’s affirmation that at the time of the alleged offer he believed the charges would likely be dismissed because the People could not locate a necessary witness.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

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


text:
    In the Matter of Beechwood Restorative Care Center et al., Appellants, v John Signor, as Records Access Appeals Officer of New York State Department of Health, et al., Respondents.
    Submitted August 29, 2005;
    decided September 13, 2005
   Motion by the New York Newspaper Publishers Association, Inc., et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    Sylvia Mendel et al., Plaintiffs, and Birjees Barakat et al., Appellants, v Henry Phipps Plaza West, Inc., et al., Respondents, et al., Defendants.
    Submitted August 29, 2005;
    decided September 13, 2005
   Motion by the Council of the City of New York for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Najib Bosier, Appellant.
    Submitted September 6, 2005;
    decided September 13, 2005
   Motion for assignment of counsel granted and Richard L. Herzfeld, Esq., care of Bahn, Herzfeld & Multer, LLI^ 555 Fifth Avenue, New York, NY 10017 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Alphonso Littlejohn, Appellant.
    Submitted June 27, 2005;
    decided September 13, 2005
   Motion for reconsideration of this Court’s June 14, 2005 dismissal order denied [see 5 NY3d 742]. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Rudolph Young, Appellant.
    Submitted August 29, 2005;
    decided September 13, 2005
   Motion for assignment of counsel granted and Gary Muldoon, Esq., care of Muldoon & Getz, 144 Exchange Boulevard, Suite 108, Rochester, New York 14614 assigned as counsel to the appellant on the appeal herein.


text:
    Eli Raitport, Appellant, v Michael Samuel et al., Respondents.
    Submitted August 29, 2005;
    decided September 13, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601).


text:
    In the Matter of Chaun Valentine, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted July 5, 2005;
    decided September 13, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    In the Matter of Ernest W. Vann, Appellant, v William J. Callahan, as Administrative Officer, New York State Police, Respondent.
    Submitted August 8, 2005;
    decided September 13, 2005
   Motion for reconsideration of this Court’s June 7, 2005 dismissal order denied [see 5 NY3d 745]. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Visiting Nurse Service of New York Home Care, Respondent, v New York State Department of Health et al., Appellants.
    Submitted September 6, 2005;
    decided September 13, 2005
   Motion by Mercy Hospital of Buffalo et al. for leave to appear amici curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    VSF Coalition, Inc., Appellant, v Nicholas Scoppetta et al., Defendants, and Eliot Spitzer, as Attorney General of the State of New York, Respondent.
    Submitted June 13, 2005;
    decided September 13, 2005
   Motion for leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted September 6, 2005;
    decided September 13, 2005
   Motion by the Association of the Bar of the City of New York for leave to appear amicus curiae on the appeal herein granted to the extent that the proposed brief is accepted as filed.


text:
    [836 NE2d 1148, 803 NYS2d 25]
    Lawrence Knoll, Appellant, et al., Plaintiff, v Seafood Express et al., Respondents.
    Decided September 15, 2005

      APPEARANCES OF COUNSEL

      Michael N. David, New York City, for appellant.

      Geoghan Cohen & Bongiorno, L.L.C., New York City (<Joseph R. Bongiorno of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

In light of the fact that plaintiffs benign brain stem angioma condition preexisted the accident, plaintiff failed to submit medical proof sufficient to rebut defendants’ submissions and to show that he suffered a serious injury that is causally related to the accident (see Pommells v Perez, 4 NY3d 566, 580 [2005]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith 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 City of New York, Respondent, Relative to Acquiring Title to Certain Real Property for the Construction of the Third Water Tunnel, Shaft 30B. Grand Lafayette Properties LLC, Appellant.
    Submitted July 11, 2005;
    decided September 15, 2005
   Motion for leave to appeal denied as unnecessary.


text:
    Niki Marie Cleary et al., Appellants, v Reliance Fuel Oil Associates, Inc., et al., Respondents.
    Submitted July 11, 2005;
    decided September 15, 2005
   Motion to dismiss appeal denied (see Matter of Duchnowski, 31 NY2d 991, 991- 992 [1973]).


text:
    In the Matter of Incorporated Village of Poquott et al., Appellants, v John Cahill et al., Respondents.
    Submitted December 6, 2004;
    decided September 15, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that affirmed the denial of the motion for a preliminary injunction, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    John Hancock Life Insurance Company, Formerly Known as John Hancock Mutual Life Insurance Company, Respondent, v 42 Delaware Avenue Associates, LLC, et al., Appellants, et al., Defendants.
    Submitted June 13, 2005;
    decided September 15, 2005
   Motion, insofar as made by 42 Delaware Avenue Associates, LLC, dismissed upon the ground that as to such party, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion, insofar as made by William L. Christie and Eugene C. Tenney, denied.


text:
    Herbert Messinger et al., Appellants, v The Mount Sinai Medical Center et al., Respondents.
    Submitted July 11, 2005;
    decided September 15, 2005
   Motion for leave to appeal from the Appellate Division order denying reargument or, in the alternative, leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt International B.V., Appellant-Respondent, v Philippe S.E. Schreiber et al., Respondents-appellants, et al., Third-party Defendant, et al., Defendants.
    Decided September 15, 2005
   Pursuant to the August 26, 2005 order of the United States Court of Appeals for the Second Circuit withdrawing its certification of questions accepted by the Court of Appeals on June 7, 2005, certified questions marked withdrawn [see 5 NY3d 730].

Concur: Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith. Taking no part: Chief Judge Kaye.


text:
    In the Matter of the Claim of Alan J. Brisson, Respondent, v County of Onondaga, Appellant, et al., Respondent. Workers’ Compensation Board, Respondent.
    Submitted August 15, 2005;
    decided September 20, 2005
   Motion to strike exhibits denied. Cross motion denied as unnecessary.


text:
    Raul Garcia et al., Appellants, v Peter Pepe, Jr., et al., Defendants, and JWS Technologies, Respondent.
    Submitted June 13, 2005;
    decided September 20, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the denial of appellants’ motion for renewal, dismissed upon the ground that such part of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Albert Goetz-Haddad, Appellant, v Pathmark Supermarkets et al., Respondents.
    Submitted September 12, 2005;
    decided September 20, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (CPLR 5601).


text:
    Debra Guzov, Appellant, v Manor Lodge Holding Corp., Respondent, et al., Defendants.
    Submitted June 27, 2005;
    decided September 20, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order dismissing the complaint against Manor Lodge Holding Corp., dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument and renewal, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Jose Howithi, Appellant, v Brion D. Travis, as Chair of the New York State Board of Parole, Respondent.
    Submitted July 7, 2005;
    decided September 20, 2005
   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:
    In the Matter of Richard E. Kaplan, Appellant, v Timothy Julian, as Mayor of the City of Utica, et al., Respondents.
    Submitted September 6, 2005;
    decided September 20, 2005
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 [b] [2]).


text:
    Richard Miller, Respondent, v Weyerhaeuser Company et al., Appellants, et al., Defendant.
    Submitted September 6, 2005;
    decided September 20, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no appeal lies as of right, pursuant to CPLR 5601 (d), from the final judgment of Supreme Court to bring up for review the prior nonfinal order of the Appellate Division, where the Appellate Division order was unanimous and did not directly involve a substantial constitutional question.

Judge Read taking no part.


text:
    The People of the State of New York, Respondent, v Ellis Eiland, Appellant.
    Submitted August 29, 2005;
    decided September 20, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see NY Const, art VI, § 3 [b]; CPLR 5601; CPL 450.90).


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted September 12, 2005;
    decided September 20, 2005
   Motion to strike part of the reply brief denied.


text:
    [840 NE2d 106, 806 NYS2d 137]
    The People of the State of New York, Appellant, v Harold L. Dunbar, Respondent.
    Argued September 8, 2005;
    decided October 20, 2005

      APPEARANCES OF COUNSEL

      William J. Fitzpatrick, District Attorney, Syracuse (Audra Al-bright and James P. Maxwell of counsel), for appellant.

      Lawrence A. Wangerman, Syracuse, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The suppression court, affirmed by the Appellate Division, held that the police did not have a founded suspicion that criminal activity was afoot, as needed in order to engage in the more extended, accusatory questioning attendant to a common-law inquiry. As we held in People v Hollman (79 NY2d 181, 191-192 [1992]), a consent to search will not be upheld unless the request to search is supported by a founded suspicion of criminality (see also People v Tejeda, 217 AD2d 932 [4th Dept 1995]; People v Carter, 199 AD2d 817 [3d Dept 1993]; People v Alston, 193 AD2d 883 [3d Dept 1993]; People v Boyd, 188 AD2d 239 [1st Dept 1993]). Here, as the courts determined, defendant granted the police permission to search his person and his car only after questioning that might reasonably have led him to believe that he was suspected (without a founded suspicion) of criminality.

When, as here, there is support in the record for the lower courts’ undisturbed finding as to the lack of a founded suspicion of criminality, our review is at an end.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed in a memorandum.


text:
    [839 NE2d 892, 805 NYS2d 539]
    Raffaele Ciocca et al., Appellants, v Sang K. Park et al., Respondents.
    Decided October 20, 2005

      APPEARANCES OF COUNSEL

      Mark A. Schneider, Plattsburgh, for appellants.

      Law Office of Paul G. Hanson, Albany (Paul G. Hanson of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs. We agree with the Appellate Division majority that plaintiff failed to properly demonstrate causation. Plaintiff did not lay an adequate foundation for the testimony of his experts that plaintiffs injuries were caused by acute trauma as a result of a motor vehicle accident. Accordingly, defendants’ motion for a directed verdict was properly granted.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith 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:
    AG Capital Funding Partners, L.P., et al., Plaintiffs, v State Street Bank and Trust Company, Third-Party Appellant. Salomon Smith Barney Inc. et al., Third-Party Defendants-Respondents.
    Submitted September 26, 2005;
    decided October 20, 2005
   Motion by AG Capital Funding Partners, L.P et al. for leave to file a brief on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Dennis P. Flood, Respondent, v Lawrence Schopfer et al., Respondents, and Erin Malloy, Respondent. Susan Brenner-Morton, Intervenor-Appellant. (And Another Related Proceeding.)
    Submitted August 29, 2005;
    decided October 20, 2005
   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:
    Brunilda Guzman, Appellant, v New York City Transit Authority et al., Respondents.
    Submitted August 8, 2005;
    decided October 20, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]).


text:
    Hoffend & Sons, Inc., Appellant, v Rose & Kiernan, Inc., et al., Respondents.
    Submitted July 25, 2005;
    decided October 20, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the complaint, granted; motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that denied appellant’s motion to amend the complaint, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Otis P. Jenkins, Respondent-Appellant, v Judy A. Jenkins, Appellant-Respondent, and Pamela Walton, Respondent. (And Three Other Related Proceedings.)
    Submitted September 19, 2005;
    decided October 20, 2005
   Motion by counsel for respondent-appellant for relief from the assignment denied.


text:
    In the Matter of Jessica S., a Child Alleged to be Abused or Neglected. Administration for Children’s Services, Respondent; Arthur S., Appellant. (And Two Other Related Proceedings.)
    Submitted July 25, 2005;
    decided October 20, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York, Respondent, v Thomas Burton, Appellant.
    Submitted September 26, 2005;
    decided October 20, 2005
   Motion for assignment of counsel granted and Laura Johnson, Esq., 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 Paris Drake, Appellant.
    Submitted October 17, 2005;
    decided October 20, 2005
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Terence Wells, Appellant.
    Submitted September 26, 2005;
    decided October 20, 2005
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Ronald Williams, Appellant.
    Submitted September 26, 2005;
    decided October 20, 2005
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, NY 10036 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Rozelle Tyrone Lee P., Also Known as Roselle P., a Child Alleged to be Neglected and/or Abused. Nancyrose C., Also Known as Nancyrose J., Appellant; Administration for Children’s Services, Respondent.
    Submitted August 8, 2005;
    decided October 20, 2005
   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:
    Frederick Siemon, Appellant, v Kristen Useted, Respondent.
    Submitted July 25, 2005;
    decided October 20, 2005
   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. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Visiting Nurse Service of New York Home Care, Respondent, v New York State Department of Health et al., Appellants.
    Submitted October 3, 2005;
    decided October 20, 2005
   Motion by Home Care Association of New York State, Inc. for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and one original and 24 copies of the brief filed within seven days.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted September 19, 2005;
    decided October 20, 2005
   Motion by Sanctuary for Families’ Center for Battered Women’s Legal Services for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    Xiao Yang Chen, Appellant, v Ian Ira Fischer, Respondent.
    Submitted September 19, 2005;
    decided October 20, 2005
   Motion by Women’s Bar Association of the State of New York for leave to file a brief amicus curiae on the appeal herein granted. Three copies of the brief may be served and one original and 24 copies of the brief filed within seven days.


text:
    [840 NE2d 113, 806 NYS2d 144]
    In the Matter of Kirk V., a Child Alleged to be Neglected. Providencia V. et al., Respondents; Commissioner of the Administration for Children’s Services, Appellant.
    Decided October 25, 2005

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City (Suzanne K. Colt of counsel), for appellant.

      Lansner & Kubitschek, New York City (Carolyn A. Kubitschek of counsel), for Providencia V, respondent.

      Wendy Abels, New York City, for Ricardo V, respondent.

      Wolf, Block, Schorr and Solis-Cohen LLP, New York City {Kenneth G. Roberts and Jill L. Mandell of counsel), for Lawyers for Children, Inc., Law Guardian.

   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for consideration of the appeal.

The incarceration of respondent parents’ older son was not a change in circumstances rendering the appeal from the dismissal of the neglect petition moot. Where “a judicial determination carries immediate, practical consequences for the parties, the controversy is not moot” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003]). The older child’s incarceration did not affect the issue underlying the neglect petition—respondent parents’ alleged failure to protect the younger child. The outcome of the neglect petition carries potential consequences for respondent parents as well as the younger child (see e.g. Matter of Alijah C., 1 NY3d 375 [2004]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith 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:
    D.R. Watson Holdings, LLC, et al., Respondents, v Caliber One Indemnity Company, Appellant.
    Submitted July 25, 2005;
    decided October 25, 2005
   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 Alberto Green, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted August 15, 2005;
    decided October 25, 2005
   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:
    Gui's Lumber & Home Center, Inc., Appellant, v Mader Construction Co., Inc., et al., Respondents.
    Submitted August 1, 2005;
    decided October 25, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the complaint, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division orders that denied reargument and leave to appeal to the Court of Appeals, dismissed upon the ground that such orders do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Matthew Hall, Appellant, v New York State Division of Parole, Respondent.
    Submitted July 25, 2005;
    decided October 25, 2005
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see CPLR 5511). Motion for poor person relief dismissed as academic.


text:
    Geraldine Pauling, Appellant, v Orentreich Medical Group et al., Respondents, et al., Defendants.
    Submitted August 1, 2005;
    decided October 25, 2005
   Motion to vacate award of costs and disbursements denied.


text:
    The People of the State of New York, Respondent, v Gina Mancini, Appellant.
    Submitted October 24, 2005;
    decided October 25, 2005
   Motion for assignment of counsel granted and David C. Schopp, Esq., 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, Respondent, v Juan Serrano, Appellant.
    Submitted August 24, 2005;
    decided October 25, 2005
   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:
    Jason S. Planck, Appellant, v SUNY Board of Trustees et al., Respondents.
    Submitted August 8, 2005;
    decided October 25, 2005
   Motion, insofar as it seeks leave to appeal as against Schenectady County, dismissed upon the ground that as to that party, the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Tyrone Powell, Appellant, v E.F. Bernhardt, Esq., as Records Access Appeals Officer, Respondent.
    Submitted August 15, 2005;
    decided October 25, 2005
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that dismissed the appeal from Supreme Court’s order denying reargument, 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 denied.


text:
    [840 NE2d 114, 806 NYS2d 145]
    Daniel B. Primeau, Appellant, v Town of Amherst et al., Respondents.
    Decided October 27, 2005

      APPEARANCES OF COUNSEL

      Webster Szanyi LLP, Buffalo (Kevin A. Szanyi of counsel), for appellant.

      De Marie & Schoenborn, P.C., Buffalo (<Joseph De Marie of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

The Appellate Division correctly concluded that “there is no valid line of reasoning and permissible inferences to support the jury’s finding that [the snowplow driver] acted with reckless disregard for the safety of others.” The record is devoid of evidence supporting the verdict finding defendant driver guilty of operating a snowplow recklessly within the meaning of Vehicle and Traffic Law § 1103 (b) (see Riley v County of Broome, 95 NY2d 455, 465-466 [2000]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith 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 Anthony Anderson, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, et al., Respondents.
    Submitted August 8, 2005;
    decided October 27, 2005
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    In the Matter of Cooke Center for Learning and Development, Appellant, v Richard P. Mills, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted August 8, 2005;
    decided October 27, 2005
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s order denying appellant’s motion to renew, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Eastport Alliance et al., Respondents, v Jackie Lofaro et al., Appellants, and H.T.L., LLL, Respondent.
    Submitted July 25, 2005;
    decided October 27, 2005
   Motion for leave to appeal dismissed as untimely. The prior motion for leave to appeal made to the Appellate Division was untimely (see Karger, Powers of the New York Court of Appeals § 73, at 452 [3d ed]).


text:
    In the Matter of Eastport Alliance et al., Respondents, v Jackie Lofaro et al., Respondents, and H.T.L., LLL, Appellant.
    Submitted August 1, 2005;
    decided October 27, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).


text:
    Marianne J. Kelly, Respondent, v John M. Kelly, Appellant.
    Submitted October 17, 2005;
    decided October 27, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that it does not lie (see CPLR 5601).


text:
    John Liere et al., Appellants, v Wide Awake Farms, LLC, et al., Respondents.
    Submitted August 8, 2005;
    decided October 27, 2005
   Motion, insofar as it seeks leave to appeal as against Wide Awake Farms, LLC, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Rita Lifshits, Respondent, v Variety Poly Bags et al., Appellants.
    Submitted August 8, 2005;
    decided October 27, 2005
   Motion for leave to appeal from the judgment entered upon the Appellate Division order dismissed upon the ground that the judgment is not the final appealable paper from which leave to appeal may be sought (see CPLR 5611).


text:
    In the Matter of Town of Montauk, Inc., Appellant, v George E. Pataki, as Governor of the State of New York, et al., Respondents.
    Submitted October 17, 2005;
    decided October 27, 2005
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Second Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, § 3 [b] [2]; § 5 [b]; CPLR 5601 Cb] [2]).


text:
    North Fork Bank, Respondent, v K. George Carvalho, Defendant, and Donna Carvalho, Appellant. Donna Carvalho, Appellant, et al., Plaintiffs, v New York Property Insurance Underwriters Association et al., Defendants. Weg and Myers, P.C., Nonparty Respondent.
    Submitted August 29, 2005;
    decided October 27, 2005
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the actions within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    [840 NE2d 1024, 807 NYS2d 11]
    Hugh Personius et al., Appellants, v John G. Mann et al., Respondents.
    Decided November 17, 2005

      APPEARANCES OF COUNSEL

      Learned, Reilly & Learned, LLP, Elmira (Diana L. Hughes of counsel), for appellants.

      Costello Cooney & Fearon PLLC, Syracuse (Samuel C. Young of counsel), for respondents.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order modified, with costs to plaintiffs, by denying defendants’ motion for summary judgment as to the negligence cause of action and, as so modified, affirmed. A question of fact existed as to whether defendants fulfilled their duty to inspect and maintain the pole in question.

Concur: Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith.


text:
    [840 NE2d 1024, 807 NYS2d 11]
    Niki Marie Cleary et al., Appellants, v Reliance Fuel Oil Associates, Inc., et al., Respondents.
    Decided November 17, 2005

      APPEARANCES OF COUNSEL

      Kujawski & Dellicarpini, Deer Park (Bryan R Kujawski of counsel), for appellants.

      LAbbate, Balkan, Colavita & Contini, L.L.R, New York City (Tomas B. him of counsel), for Bock Water Heaters, Inc., respondent.

      Flynn, Gaskins & Bennett, Minneapolis, Minnesota (George W. Flynn of counsel), for Honeywell International Inc., respondent.
   OPINION OF THE COURT

Memorandum.

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

We agree with the Appellate Division majority that defendants Bock Water Heaters, Inc. and Honeywell, Inc. made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. Plaintiffs have failed to raise a triable issue of fact in opposition to defendants’ motions.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith 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:
    Gorgonio Balbuena et al., Appellants, v IDR Realty LLC et al., Defendants and Third-Party Plaintiffs. Taman Management Corp., Third-Party Defendant-Respondent. Attorney General of the State of New York, Intervenor-Appellant.
    Submitted November 7, 2005;
    decided November 17, 2005
   Motion by Defense Association of New York, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Council of the City of New York, Appellant, v Michael R. Bloomberg, as Mayor of the City of New York, et al., Respondents.
    Submitted November 14, 2005;
    decided November 17, 2005
   Motion by Archdiocese of New York et al. for leave to file a brief amici curiae on the appeal herein granted. Two copies of the brief may be served and 22 copies filed within seven days.


text:
    In the Matter of Larry Davis, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.
    Submitted September 12, 2005;
    decided November 17, 2005
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as dismissed the appeal from Supreme Court’s order denying reargument and affirmed Supreme Court’s order denying renewal, dismissed upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of John A. Ek, Appellant, v Brion Travis, as Chair of the Board of Parole, Respondent.
    Submitted September 6, 2005;
    decided November 17, 2005
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Bethlehem et al., Respondents.
    Submitted October 17, 2005;
    decided November 17, 2005
   Motion by Association of Towns of the State of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    In the Matter of Niagara Mohawk Power Corporation, Appellant, v Town of Watertown et al., Respondents.
    Submitted October 17, 2005;
    decided November 17, 2005
   Motion by Association of Towns of the State of New York for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    The People of the State of New York, Respondent, v Jose Diaz, Appellant.
    Submitted October 31, 2005;
    decided November 17, 2005
   Motion for assignment of counsel granted and Steven Banks, Esq., 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 Rolando Leon, Appellant.
    Submitted October 24, 2005;
    decided November 17, 2005
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 2 Rector Street, 10th Floor, New York, NY 10006 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Roberto Oms, Also Known as Jose Perez, Appellant.
    Submitted November 7, 2005;
    decided November 17, 2005
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted to the extent that papers constituting a complete application for permission to appeal may be served and filed no later than December 19, 2005.


text:
    The People of the State of New York, Appellant, v Dwight I. Vogel, Jr., Respondent.
    Submitted November 11, 2005;
    decided November 17, 2005
   Motion for assignment of counsel granted and Anna M. Zephro Jost, Esq., PO. Box 313, Tonawanda, New York 14151 assigned as counsel to the respondent on the appeal herein.


text:
    The People of the State of New York ex rel. Walter J. Roache, Appellant, v S.A. Connell, Respondent.
    Submitted September 6, 2005;
    decided November 17, 2005
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    The People of the State of New York ex rel. Donald E. White, Appellant, v S.A. Connell, Respondent.
    Submitted September 6, 2005;
    decided November 17, 2005
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain it (see CPLR 5602). Motion for poor person relief dismissed as academic.


text:
    In the Matter of Poughkeepsie Professional Firefighters’ Association, Local 596, IAFF, AFL-CIO-CLC, et al., Appellants, v New York State Public Employment Relations Board et al., Respondents.
    Submitted October 17, 2005;
    decided November 17, 2005
   Motion by New York State Deputies Association for leave to file a brief amicus curiae on the appeal herein granted. Two copies of the brief may be served and 24 copies filed within seven days.


text:
    In the Matter of Ewan Richards, Appellant, v Robert Dennison, Respondent.
    Submitted September 26, 2005;
    decided November 17, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


author: G.B. Smith, J.

text:
    [842 NE2d 15, 808 NYS2d 130]
    In the Matter of Kadeem W., a Person Alleged to be a Juvenile Delinquent, Respondent.
    Argued October 19, 2005;
    decided November 21, 2005

      APPEARANCES OF COUNSEL

      Michael A. Cardozo, Corporation Counsel, New York City CKaren Griffin, Elizabeth S. Natrella and Leonard Koerner of counsel), for appellant.

      Legal Aid Society, New York City {Judith Stern and Steven Banks of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to that Court for further proceedings in accordance with this memorandum.

While not overwhelming, there was legally sufficient evidence to hold Kadeem W. responsible as an accessory for Takim N.’s conduct; therefore, the Appellate Division erred in reversing Family Court’s determination for legal insufficiency. We remit the case to the Appellate Division for consideration of the facts, specifically including its weight-of-the-evidence review, and other issues raised but not determined on the appeal to that Court.

G.B. Smith, J.

(dissenting). Because the evidence, viewed in the light most favorable to the presentment agency, could not establish, beyond a reasonable doubt, respondent’s commission of the offenses charged, I dissent. I would affirm the Appellate Division order that reversed Family Court’s November 2003 order of disposition, vacated Family Court’s October 2003 fact-finding order, and dismissed the petition.

By petition filed with Family Court, the Corporation Counsel of the City of New York, the presentment agency, alleged that respondent, who was 13 at the time, committed acts which, if committed by an adult, would constitute nine crimes. The key evidence adduced against respondent consisted of statements he made prior to and after another boy pulled out an air gun and discharged it. The three youths charged had been told to leave a playground that was restricted to residents of the housing complex. Prior to the hidden air gun being pulled out from his companion’s waistband, respondent taunted and cursed and, echoing a statement made by one of the other two boys involved in the incident, shouted the following at the security guard: “[You’re] a flashlight cop, you don’t got a whistle. If anything happen, you can’t even get no help.” Additionally, after one of the other boys pulled out the concealed air gun and discharged it, that boy said to the security guard, “I told you[,] you can get it.” This statement was repeated by respondent and the third boy. After all the boys said, “I told you[,] you can get it” to the security guard, respondent said, “[W]e told you[,] you can get it,” fled the scene with the other two boys and lied about the location of the air gun. All three boys stayed together throughout the incident.

Family Court found that respondent, acting in concert with another boy, committed acts which, if committed by an adult, would constitute the crimes of possession of an air pistol, unlawful possession of a weapon by a person under 16, criminal possession of a weapon in the fourth degree, menacing in the second degree, and reckless endangerment in the second degree. The Appellate Division reversed Family Court because “the presentment agency failed to adduce legally sufficient evidence that [respondent] shared the intent of his companion [ ] to possess or use the pellet gun which had been concealed beneath [his companion’s] clothing.” (11 AD3d 626, 627.) This Court now reverses the Appellate Division, concluding that the evidence was legally sufficient to prove respondent committed the acts for which he was found criminally liable.

The test for reviewing the legal sufficiency of evidence is whether “ ‘after viewing the evidence in the light most favorable to the [presentment agency], any rational trier of fact could have found the [acts alleged] beyond a reasonable doubt’ ” (People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Williams, 84 NY2d 925, 926 [1994]). Here, the test is not satisfied because the evidence could not establish, beyond a reasonable doubt, that respondent, as an accomplice, committed acts which, if committed by an adult, would constitute the crimes of: (1) possession of an air pistol; (2) unlawful possession of a weapon by a person under 16; (3) criminal possession of a weapon in the fourth degree; (4) menacing in the second degree; and (5) reckless endangerment in the second degree.

In order to prove, beyond a reasonable doubt, that respondent acted with the mental culpability for each of the acts alleged here, the presentment agency had to establish that respondent knew that the other boy had the air gun in his possession before it was pulled out, displayed and discharged. Further, to establish that respondent acted with the mental culpability required for the commission of acts which, if committed by an adult, would constitute the crimes of criminal possession of a weapon in the fourth degree, menacing in the second degree and reckless endangerment in the second degree, the presentment agency was required to prove, beyond a reasonable doubt, that: (1) respondent intended to use the air gun—which had been concealed under another boy’s clothing—in an unlawful manner against the security guard; (2) respondent intentionally placed or attempted to place the security guard in reasonable fear of physical injury, serious physical injury or death by displaying the air gun; and (3) respondent recklessly engaged in conduct that created a substantial risk of serious physical injury to the security guard.

Regarding the possession charges, the presentment agency was required to prove, beyond a reasonable doubt, that respondent either possessed or exercised control over the air gun. To establish the additional element that respondent shared the culpable mental state of the boy who actually pulled out and discharged the air gun, the presentment agency was required to show that respondent solicited, requested, commanded, importuned or intentionally aided the other boy in furtherance of the acts alleged (see Penal Law § 20.00; see also People v Hafeez, 100 NY2d 253, 258 [2003] [a person can be found criminally liable as an accomplice only if he/she shares the culpable mental state with one actually committing the criminal act and renders objective assistance in furtherance of the commission of the criminal act]).

Open expressions of criminal intent by the alleged perpetrator of an act which constitutes a crime are not always available. Accordingly, this Court has held that criminal intent can be inferred from the alleged perpetrator’s conduct and the surrounding circumstances (see e.g., People v Bracey, 41 NY2d 296, 301 [1977]; People v Pereau, 64 NY2d 1055, 1056 [1985]; People v Smith, 79 NY2d 309, 315 [1992]). However, where the culpable mental state for the act alleged is recklessness and not intentional conduct, in order to be found liable for acting in concert (under an accomplice liability theory), it must be established, beyond a reasonable doubt, that the alleged accomplice shared in the recklessness of the shooter (see People v Flayhart, 72 NY2d 737, 741-742 [1988]).

The presentment agency, relying primarily on this Court’s decisions in Matter of Juan J. (81 NY2d 739 [1992]), People v Allah (71 NY2d 830 [1988]) and Matter of Wade F. (49 NY2d 730 [1980]), argues that a factfinder could infer from respondent’s conduct and the circumstances surrounding this incident that respondent had the requisite culpable mental states to commit the acts alleged under an accomplice liability theory. However, as there is no evidence that respondent even knew of the air gun’s existence prior to it being pulled out, displayed and discharged, there is nothing to support the argument that respondent shared the requisite culpable mental states for the commission of the acts alleged (i.e., acts involving the possession, displaying and discharging of the air gun), or that respondent intentionally aided or provided assistance or encouragement to the other boy regarding that boy’s possession, displaying and discharging of the air gun. Specifically, the presentment agency did not put forth evidence that could have allowed a reasonable factfinder to conclude, beyond a reasonable doubt, that respondent knew about the existence of the air gun prior to it being pulled out. Accordingly, it was not proven that respondent possessed or somehow exercised control over the air gun. Further, the evidence could not establish that respondent intended to unlawfully use the air gun against the security guard, or that he intentionally placed or attempted to place the security guard in reasonable fear of physical injury by displaying the air gun. Nor could the evidence support a conclusion that respondent, while failing to perceive a substantial and unjustifiable risk of serious physical injury to the security guard, intentionally aided the other boy in the possession, pulling out, displaying and discharging of the air gun.

Moreover, the cases relied on by the presentment agency are easily distinguishable from the instant case. Each of these cases involves a respondent or defendant who actively participated in the commission of acts that constituted crimes. Here, however, respondent neither possessed nor shot the air gun. Nor did respondent provide assistance or encouragement regarding same. Put another way, the level of assistance and participation in furtherance of the acts or crimes present in Matter of Juan J., People v Allah, and Matter of Wade F. is not present in the instant case.

In sum, respondent’s statements during the incident, along with the evidence that respondent fled with the other two boys and lied about the gun’s whereabouts after the incident, clearly could not establish, beyond a reasonable doubt, that respondent (1) knew of the air gun’s existence before it was displayed, (2) knew of the other boy’s plan to display the air gun for the purpose of putting the security guard in fear of harm, (3) intended for the security guard to be fearful of sustaining injury from the other boy’s displaying of the air gun, (4) intended for the security guard to he harmed due to the other boy’s discharging of the air gun or (5) was reckless during the shooting. As such, the presentment agency did not prove that respondent had the culpable states of mind for the acts alleged. Nor did the presentment agency establish that respondent provided objective assistance in furtherance of the alleged acts. To the contrary, this evidence could establish nothing more than respondent’s disdain for the security guard and that respondent was in the presence of the boy who possessed, pulled out, displayed and discharged the weapon.

Accordingly, I would affirm the Appellate Division order reversing Family Court’s order of disposition, vacating Family Court’s fact-finding order, and dismissing the presentment agency’s petition.

Chief Judge Kaye and Judges Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum; Judge G.B. Smith dissents and votes to affirm in an opinion.

Order reversed, etc.

      . Although not stated in the petition, the presentment agency’s allegations were based on the theory that respondent committed acts as an accomplice to another person. The crimes alleged were attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]); criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]); unlawful possession of weapons by persons under 16 (Penal Law § 265.05); sale or possession of air pistols and air rifles (New York City Administrative Code § 10-131 [b] [1]); menacing in the second degree (Penal Law § 120.14); menacing in the third degree (Penal Law § 120.15); attempted assault in the third degree (Penal Law §§ 110.00, 120.00); reckless endangerment in the second degree (Penal Law § 120.20); and criminal trespass in the third degree (Penal Law § 140.10 [a]).

      . The evidence adduced against respondent will be fully discussed below.

      . Respondent was placed on probation for 18 months and ordered to comply with certain conditions of probation, including completion of 200 hours of community service by November 2004.

      . According to respondent’s counsel, up until the Appellate Division’s ruling, respondent faithfully complied with the terms of his probation. Following the Appellate Division ruling, respondent’s counsel, after consulting with and getting authorization from the New York City Department of Probation, advised respondent that he need not fulfill the remaining terms of his probation. After receiving this advice, respondent’s mother arranged for respondent to move in with his sister who lived out of state. Respondent currently resides with his sister out of state.

      . “ ‘Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL 70.10 [1]).

      . New York City Administrative Code § 10-131 (b) (1) provides that “[i]t shall be unlawful for any person to sell, offer to sell or have in such person’s possession any air pistol or air rifle or similar instrument in which the propelling force is a spring or air.”
      Penal Law § 265.05 provides that “[i]t shall be unlawful for any person under the age of sixteen to possess any air-gun, spring-gun or other instrument or weapon in which the propelling force is a spring or air, or any gun or any instrument or weapon in or upon which any loaded or blank cartridges may be used, or any loaded or blank cartridges or ammunition therefor, or any dangerous knife.”
      Under Penal Law § 265.01 (2), “[a] person is guilty of criminal possession of a weapon in the fourth degree when . . . [h]e possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another.”
      Under Penal Law § 120.14 (1), “[a] person is guilty of menacing in the second degree when: [h]e or she intentionally places or attempts to place another person in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”
      Under Penal Law § 120.20, “[a] person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.”

      . “A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct” (Penal Law § 15.05 [1]).
      “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation” (Penal Law § 15.05 [3]).

      . In Smith, this Court, relying on Bracey, stated (at 315), “Often there is no direct evidence of a defendant’s mental state and the jury must infer the mens rea circumstantially from the surrounding facts.” In Smith, the mens rea at issue was intent. Accordingly, this Court has only held that the mens rea (i.e., mental culpability) of intent can he inferred from a defendant’s conduct, the surrounding facts or the surrounding circumstances.

      . In Matter of Juan J., a case involving a juvenile delinquent, respondent was charged with acts which, if committed by an adult, would constitute the crimes of second degree robbery and third degree assault. In that case, respondent, and three others, all attacked the victim. Two people held down the victim, another person repeatedly struck the victim with a chain, while the fourth person stole the victim’s wallet. Further, all four attackers fled within moments after the wallet was stolen. Based in large part on his continued participation in the beating, and even though there was no direct evidence that respondent took, the wallet or used the chain, respondent was found to have committed the acts alleged.
      In People v Allah, defendant and his companion, who were both armed with guns, engaged in a heated argument with two other men (named Scott and Greene). During the course of the argument, defendant intentionally aided his companion by shooting Greene in the back when Greene tried to stop defendant’s companion from shooting Scott. Because defendant shot Greene, defendant’s companion was able to shoot and kill Scott. Based on the circumstances of the case, this Court found that defendant shared a “community of purpose” with his companion.
      In Matter of Wade E, respondent, a juvenile delinquent, was found to have committed acts which, if committed by an adult, would constitute first degree robbery based on the position respondent, and two other boys, took in relation to the complainant, the fact that complainant was trapped between all three boys and a car, the time at which respondent took up his position in relation to his companion’s threatened use of a razor, and the joint movement of all three boys away from the scene.

      . Mere presence at the scene of an incident is insufficient as a matter of law to establish accomplice or accessorial liability (see Penal Law § 20.00; see People v La Belle, 18 NY2d 405, 412 [1966]).


text:
    Dale R. Brodeur, Sr., Appellant, et al., Plaintiffs, v James Hayes et al., Respondents.
    Submitted September 19, 2005;
    decided November 21, 2005
   Motion, insofar as it seeks leave to appeal from so much of the Appellate Division order as affirmed Supreme Court’s denial of appellant’s motion to dismiss the counterclaim, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of the Claim of Esther Cohen, Appellant, v New York City Department of Environmental Protection, Respondent. Workers’ Compensation Board, Respondent.
    Submitted August 22, 2005;
    decided November 21, 2005
   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:
    Chester Davidson, Appellant, v State of New York, Respondent.
    Submitted October 11, 2005;
    decided November 21, 2005
   Motion, insofar as it seeks leave to appeal from the Appellate Division order that dismissed the appeal to that Court, dismissed as untimely (see CPLR 5513 [b]; Eaton v State of New York, 76 NY2d 824 [1990]); motion, insofar as it seeks leave to appeal from the Appellate Division order denying reconsideration, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v Jason AA., Defendant. Michael AA., Nonparty Appellant.
    Submitted November 7, 2005;
    decided November 21, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the Court of Appeals does not have jurisdiction to entertain the appeal.


text:
    Johnny Sydney, Appellant, v State of New York, Respondent.
    Submitted October 3, 2005;
    decided November 21, 2005
   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 Wayne County Department of Social Services, on Behalf of Cory L. Witt, Appellant, v Timothy Fenyn, Respondent.
    Submitted July 25, 2005;
    decided November 21, 2005
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from, which affirmed the March 24, 2004 Family Court order denying reconsideration, does not finally determine the proceeding within the meaning of the Constitution.


text:
    James Zajac et al., Appellants, v E. Robert Wilson et al., Respondents.
    Submitted September 26, 2005;
    decided November 21, 2005
   Motion for leave to appeal from the December 31, 2003 Appellate Division order dismissed as untimely (see CPLR 5513 [b]).


text:
    Sharon Zehnick, Appellant, v Meadowbrook II Associates, Defendant and Third-Party Plaintiff-Respondent. Nicholas J. Tozzi, Jr., Individually and Doing Business as Nick Tozzi Forklift Service & Repair, Third-Party Defendant-Respondent.
    Submitted September 12, 2005;
    decided November 21, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that reversed so much of Supreme Court’s order as granted appellant’s motion to amend her complaint, 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:
    [842 NE2d 13, 808 NYS2d 128]
    Marco Srour, Appellant, v Dwelling Quest Corp., Respondent.
    Argued October 20, 2005;
    decided November 22, 2005
    APPEARANCES OF COUNSEL

      Law Offices of Steven M. Nachman, New York City (Steven M. Nachman of counsel), for appellant.

      Frederic Walker, New York City, for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the order of the Appellate Term reinstated. The certified question should not be answered upon the ground that it is unnecessary.

Although the common-law rule is that “a broker who produces a person ready and willing to enter into a contract upon his employer’s terms . . . has earned his commissions,” the “parties to a brokerage agreement are free to add whatever conditions they may wish to their agreement” (Feinberg Bros. Agency v Berted Realty Co., 70 NY2d 828, 830 [1987] [internal quotation marks and citation omitted]). Here, the rental agreement obligated defendant-broker to assist plaintiff in renting a “suitable apartment” and provided that the broker’s commission was to be paid “at the time of lease signing”; however, the apartment had become uninhabitable by the time the landlord signed the lease. Accordingly, defendant-broker did not satisfy the brokerage agreement’s condition, and is not entitled to any commission.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

Order reversed, etc.


text:
    [842 NE2d 480, 808 NYS2d 582]
    In the Matter of the Estate of Raymond P. Wirth, Deceased. Drexel University, Respondent; Raymond P. Wirth, Jr., et al., Appellants.
    Argued October 19, 2005;
    decided November 22, 2005

      APPEARANCES OF COUNSEL

      Jones & Jones, Garden City {Lawrence T Jones of counsel), for appellants.

      Poles, Tublin, Stratakis, Gonzalez & Weichert, LLP, New York City {Scott R. Johnston of counsel), for respondent.

      Reed Smith LLP, New York City {Peter D. Raymond, Martha H. Munsch, Kim M. Watterson and Catherine S. Ryan of counsel), for Allegheny College and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

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

Shortly before his death in 2000, Raymond Wirth executed a pledge agreement that provides, in part: “In consideration of my interest in education, and intending to be legally bound, I, Raymond P. Wirth, irrevocably pledge and promise to pay Drexel University the sum of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00).” It is undisputed that the pledge is governed by Pennsylvania law. Pennsylvania’s Uniform Written Obligations Act (Pa Stat Ann, tit 33, § 6), enacted in 1927, provides: “A written . . . promise, hereafter made and signed by the person . . . promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.”

By the plain terms of the statute, Wirth’s pledge was not “invalid or unenforceable for lack of consideration,” and Wirth’s estate has no other defense to Drexel’s claim. The estate argues that there was a “failure” rather than a “lack” of consideration, but this argument rests only on confusion. A “failure of consideration” means a failure to render the performance the parties agreed on (2-5 Corbin, Contracts § 5.20 [2005]). In this case, there is no basis for asserting that Drexel failed to render any required performance.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

Order affirmed, with costs, in a memorandum.


text:
    Best Sound and Security, Inc., Appellant, v New York City Police Department et al., Respondents.
    Submitted August 15, 2005;
    decided November 22, 2005
   Motion, insofar as it seeks leave to appeal from that part of the Appellate Division order that dismissed the appeal from Supreme Court’s December 2003 order and reversed Supreme Court’s March 2004 order, dismissed upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Kevin Patrick Brady, Appellant, v Thomas M. Van Strydonck, as Administrative Judge of the Seventh District, et al., Respondents. In the Matter of Kevin Patrick Brady, Appellant, v Stephen R. Sirkin, as Acting Supreme Court Justice, et al., Respondents. In the Matter of the People of the State of New York, by Eliot Spitzer, Respondent, v Kevin Patrick Brady, Appellant.
    Submitted August 29, 2005;
    decided November 22, 2005
   Motion, insofar as it seeks leave to appeal from the orders of Presiding Justice Pigott, dismissed upon the ground that no appeal lies to the Court of Appeals from an order of an individual Justice of the Appellate Division (NY Const, art VI, § 3 [b]; CPLR 5602); motion, insofar as it seeks leave to appeal from the May 2005 Appellate Division order, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Douglas Granillo, Respondent, v Donna Karen Co., Defendant and Third-Party Plaintiff, and Richter & Ratner Contracting Corp. et al., Defendants and Third-Party Plaintiffs-Appellants. All City Interior Contracting, Inc., Third-Party Defendant-Respondent.
    Submitted September 19, 2005;
    decided November 22, 2005
   Motion, insofar as it seeks leave to appeal as against Douglas Granillo, dismissed upon the ground that as to that party the order sought to be appealed from does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    In the Matter of Madison Square Garden, L.P., Appellant, v New York Metropolitan Transportation Authority et al., Respondents. In the Matter of Walter Mankoff et al., Appellants, et al., Petitioners, v New York Metropolitan Transportation Authority, Respondent.
    Submitted October 11, 2005;
    decided November 22, 2005
   Motion to dismiss the appeal herein granted and appeal dismissed as moot.

Chief Judge Kaye and Judge Read taking no part.


text:
    Nick Pavlou et al., Appellants, v City of New York, Respondent and Third-Party Plaintiff, et al., Defendant and Third-Party Plaintiff. Felix Industries, Inc., Third-Party Defendant-Respondent. (And Another Action.)
    Submitted October 31, 2005;
    decided November 22, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the two-Justice dissent is not on a question of law (CPLR 5601 [a]).


text:
    The People of the State of New York, Respondent, v Wen Zong Yu, Appellant.
    Submitted November 7, 2005;
    decided November 22, 2005
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no civil appeal lies from the order entered in this criminal action (NY Const, art VI, § 3 [ b]; CPLR 5601).


text:
    The People of the State of New York ex rel. Justo Richards, Appellant, v Calvin West, Respondent. In the Matter of Justo Richards, Appellant, v Calvin West, Respondent.
    Submitted September 6, 2005;
    decided November 22, 2005
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that the order appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.


text:
    Timothy J. Taylor, Appellant, v State of New York, Respondent.
    Submitted September 6, 2005;
    decided November 22, 2005
   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.