text:
    [44 NE3d 209, 23 NYS3d 134]
    The People of the State of New York, Respondent, v Dennis P. Smalls, Appellant.
    Argued November 17, 2015;
    decided December 15, 2015

      APPEARANCES OF COUNSEL

      Seymour W. James, Jr., The Legal Aid Society, New York City (Lawrence T. Hausman of counsel), for appellant.

      Robert T. Johnson, District Attorney, Bronx CMarianne Stracquadanio, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On this appeal, the main issue is whether a misdemeanor information that describes the circumstances surrounding the defendant’s possession of alleged drug residue, the appearance of the residue, and the officer’s experience in identifying controlled substances sets forth a prima facie case of criminal possession of a controlled substance in the seventh degree (see Penal Law § 220.03). We hold that, under the particular circumstances of this case, such allegations were minimally sufficient to plead a valid charge of seventh-degree criminal possession of a controlled substance.

By a misdemeanor information, the People charged defendant Dennis P. Smalls with criminal possession of a controlled substance in the seventh degree and unlawful possession of a knife (see Administrative Code of City of NY § 10-133 [b]). After his arraignment on the information, defendant moved to dismiss the information on facial sufficiency grounds, and the court denied his motion. Thereafter, defendant pleaded guilty to the charge of seventh-degree criminal possession of a controlled substance in full satisfaction of the information. In exchange for his plea, defendant received a sentence of 30 days in jail, which was set to run concurrently with his sentence upon an unrelated misdemeanor charge and with his punishment for violating the terms of his parole in a prior felony case.

The Appellate Division unanimously affirmed the judgment of conviction and sentence, rejecting defendant’s challenge to the facial sufficiency of the drug-related charge to which he had pleaded guilty (see People v Smalls, 116 AD3d 474, 474 [1st Dept 2014]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1067 [2014]).

“ ‘A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” (People v Dreyden, 15 NY3d 100, 103 [2010], quoting People v Case, 42 NY2d 98, 99 [1977]). To meet the jurisdictional standard for facial sufficiency, a misdemeanor complaint “need only set forth facts that establish reasonable cause to believe that the defendant committed the charged offense” (People v Dumay, 23 NY3d 518, 522 [2014]; see People v Kalin, 12 NY3d 225, 228 [2009]; People v Dumas, 68 NY2d 729, 731 [1986]). “In addition to [satisfying] the reasonable cause requirement, an information,” unlike a complaint, “must also set forth ‘nonhearsay allegations which, if true, establish every element of the offense charged and the defendant’s commission thereof ” (Kalin, 12 NY3d at 228-229, quoting People v Henderson, 92 NY2d 677, 679 [1999]; see also CPL 100.15 [3]; 100.40 [1] [c]; [4] [b]).

While more demanding than the reasonable cause standard, this prima facie case requirement for the facial sufficiency of an information “ ‘is not the same as the burden of proof beyond a reasonable doubt required at trial,’ nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (Kalin, 12 NY3d at 230 [citation omitted], quoting Henderson, 92 NY2d at 680; see People v Guarnan, 22 NY3d 678, 681 [2014]). Additionally, “[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v Casey, 95 NY2d 354, 360 [2000]). Once the accusatory instrument meets that threshold, if “the fair implication of the[ ] averments” in the instrument establishes the elements of the charged crime, then the instrument is facially sufficient (id.).

Our determination of whether the information here contained adequate factual allegations establishing the elements of seventh-degree criminal possession of a controlled substance is guided by our prior exploration of that subject in People v Kalin (12 NY3d 225). In that case, we concluded that, because the officer’s account of his experience, the packaging of the drugs, and the drug paraphernalia recovered from the car “supplied the basis” for his belief that the substances in question were illegal drugs, the information was facially sufficient notwithstanding the absence of a lab report or a description of the appearance of the drugs themselves (id. at 231-232). Here, as in Kalin, the information was facially sufficient because it contained adequate allegations that the officer had the requisite training and experience to recognize the substance in defendant’s possession as a controlled substance and that the officer reached his conclusion about the nature of the substance based on its appearance and placement within a favored apparatus of drug users, a glass pipe.

That the substance at issue here was a burnt residue does not dictate a different result. As Kalin makes clear, an information’s description of the characteristics of a substance combined with its account of an officer’s training in identifying such substances, the packaging of such substance and the presence of drug paraphernalia, can support the inference that the officer properly recognized the substance as a controlled substance. Certainly, if defendant chose to go to trial he was not foreclosed from arguing in his defense that the contents of his pipe were not illegal.

We continue to stress that an information must satisfy significantly more stringent facial sufficiency requirements than those applicable to a complaint (see Dumay, 23 NY3d at 522; People v Alejandro, 70 NY2d 133, 139 [1987]). In this case, because the information met those heightened requirements, defendant’s bid for dismissal of the information must be denied. We have considered and rejected defendant’s remaining claims.

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam, Stein and Fahey concur.

Order affirmed, in a memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    [44 NE3d 221, 23 NYS3d 146]
    In the Matter of RAM I LLC, Appellant, v New York State Division of Housing and Community Renewal, Respondent, et al., Respondent.
    Argued November 18, 2015;
    decided December 15, 2015
    APPEARANCES OF COUNSEL

      Graubard Miller, New York City (Lawrence D. Bernfeld, Peter A. Schwartz and Neil P. Ritter of counsel), for appellant.

      Gary R. Connor, General Counsel, New York State Division of Housing and Community Renewal, New York City (Martin B. Schneider of counsel), for New York State Division of Housing and Community Renewal, respondent.

      Belkin Burden Wenig & Goldman, LLP, New York City (Robert A. Jacobs, Sherwin Belkin and Magda L. Cruz of counsel), for Small Property Owners of New York, Inc., and others, amici curiae.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed, without costs, as moot.

The tenant having vacated the rent-controlled apartment at issue, pursuant to a stipulation of settlement with petitioner, this appeal has been rendered moot (see Matter of Grand Jury Subpoenas for Locals 17, 135, 257 & 608 of United Bhd. of Carpenters & Joiners of Am., AFL-CIO, 72 NY2d 307, 311 [1988]; Matter of Hearst Corp. v Clyne, 50 NY2d 707 [1980]). The exception to the mootness doctrine is not applicable here (see Wisholek v Douglas, 97 NY2d 740, 742 [2002]).

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam, Stein and Fahey concur.

Appeal dismissed, without costs, as moot, in a memorandum.


text:
    [44 NE3d 222, 23 NYS3d 147]
    Steven C. Ridge, Appellant, v Alice Gold et al., Defendants, and Jay Braymiller, Respondent.
    Decided December 15, 2015

      APPEARANCES OF COUNSEL

      Gibson, McAskill & Crosby, LLP, Buffalo (Timothy J. Graber of counsel), for appellant.

      Sugarman Law Firm LLP, Buffalo (Carlton K. Brownell, III 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), judgment insofar as appealed from and order of the Appellate Division brought up for review reversed, with costs, and motion of defendant Jay Braymiller for summary judgment dismissing the complaint denied. The record is inadequate to determine, as a matter of law, whether the issue of the occurrence of an accident was addressed and decided in the workers’ compensation proceeding. Therefore, defendant Braymiller failed to meet his burden of establishing that the doctrine of collateral estoppel bars plaintiff’s action against him.

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


text:
    Aetna Health Plans, as Assignee of Luz Herrera, Appellant, v Hanover Insurance Company, Respondent.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by American Insurance Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Beck Chevrolet Co., Inc., Appellant, v General Motors LLC, Respondent.
    Submitted December 7, 2015;
    decided December 15, 2015

      See 787 F3d 663.
   Motion by Evans Chevrolet for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Jennifer L. Burke, Respondent, v Stephen Erle, Appellant.
    Submitted September 28, 2015;
    decided December 15, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Charity Akosua A., Respondent, v Nana A., Appellant.
    Submitted November 9, 2015;
    decided December 15, 2015
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Maria De Lourdes Torres, Appellant, v Police officer Jones et al., Defendants, and City of New York, Respondent. (Action No. 1.) Maria De Lourdes Torres, Appellant, v New York City Police Department et al., Respondents, et al., Defendants. (Action No. 2.)
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by the New York State Trial Lawyers Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Executor of Celia Kates et al., Appellants, v James G. Pressly et al., Respondents.
    Decided December 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Raymond Finerty et al., Respondents, v Abex Corporation, Formerly Known as American Brake Shoe Company, et al., Defendants, and Ford Motor Company, Ltd., Appellant. Raymond Finerty et al., Respondents, v Abex Corporation et al., Defendants, and Ford Motor Company, Appellant.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by Chamber of Commerce of the United States of America for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Rivera taking no part.


text:
    55 Gans Judgment LLC, as Successor in Interest to Union Center National Bank, Respondent, v Gerald Romanoff et al., Respondents, and The Sheryl Romanoff Irrevocable Grantor Trust et al., Appellants, et al., Defendants. 55 Gans Judgment LLC, as Successor in Interest to Union Center National Bank, Respondent, v Gerald Romanoff et al., Respondents, et al., Defendants. Robert Romanoff, Proposed Intervenor-Appellant; Frank D. Platt, Esq., Respondent.
    Submitted June 8, 2015;
    decided December 15, 2015
   Motion to substitute the Estate of Gerald Romanoff as defendant-respondent herein for defendant-respondent Gerald Romanoff granted. Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Highbridge Broadway, LLC, Appellant, v Assessor of the City of Schenectady et al., Respondents.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by New York State School Boards Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Douglas L. Leight et al., Plaintiffs, and John H. Masten, Appellant, v W7879 LLC et al., Respondents.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by Metropolitan Council on Housing for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. One copy of the brief must be served and an original and two copies filed within seven days.


text:
    In the Matter of Monarch Consulting, Inc., et al., Respondents, v National Union Fire Insurance Company of Pittsburgh, PA, Appellant. In the Matter of National Union Fire Insurance Company of Pittsburgh, PA, Appellant, v Priority Business Services, Inc., Formerly Known as Inland Valley Staffing Services, Respondent. In the Matter of National Union Fire Insurance Company of Pittsburgh, PA, Appellant, v Source One Staffing, LLC, Respondent.
    Submitted November 23, 2015;
    decided December 15, 2015
   Motion by Dave Jones, California Insurance Commissioner, for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Doctor Fred L. Pasternack, Appellant, v Laboratory Corporation of America Holdings, Also Known as LabCorp, et al., Respondents.
    Decided December 15, 2015

      See 807 F3d 14.
   Certification of questions by the United States Court of Appeals for the Second Circuit, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), accepted and the issues presented are to be considered after briefing and argument.

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


text:
    The People of the State of New York, Respondent, v Jeryed Burgess, Appellant.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Cliffton Fletcher, Appellant.
    Submitted November 30, 2015;
    decided December 15, 2015
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v James A. Ghent, III, Appellant.
    Submitted November 30, 2015;
    decided December 15, 2015
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Norman E. Ramsey, Appellant.
    Submitted November 30, 2015;
    decided December 15, 2015
   Motion for assignment of counsel granted and Robert N. Gregor, Esq., 3 Lake Avenue, Lake George, New York 12845 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Appellant, v Carlos Valentin, Respondent.
    Submitted November 23, 2015;
    decided December 15, 2015
   Motion to enlarge the record denied.


text:
    The People of the State of New York ex rel. David Bellon, on Behalf of Elza Yadgarova and Lyudmila Yakubova, Appellants, v Yaacov Chai Yonatonov, Respondent.
    Decided December 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the paper appealed from is not an order or judgment from which an appeal to the Court of Appeals may be taken (see CPLR 5512 [a]).


text:
    Rodney Sherman, Appellant, v New York State Thruway Authority, Respondent.
    Submitted December 7, 2015;
    decided December 15, 2015
   Motion by New York City Transit Authority for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Kerryann Thompson, Respondent, v Kevin Fawcett, Appellant.
    Decided December 15, 2015
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants; TIG Insurance Company et al., Respondents.
    Submitted December 7, 2015;
    decided December 15, 2015

      See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Motion by Complex Insurance Claims Litigation Association et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Chief Judge Lippman taking no part.


text:
    Robert E. Wilson, III, Respondent, v Daniel Valente Dantas et al. Appellants, et al., Defendants.
    Submitted November 2, 2015;
    decided December 15, 2015
   Motion to dismiss appeal denied.


text:
    In the Matter of Beatrice R.H., Respondent. Dean E.H., Respondent. Penny F.H., Nonparty Respondent; Estate of Ronald H., Nonparty Appellant.
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion for leave to appeal dismissed upon the ground that movant is not a party aggrieved (see CPLR 5511).


text:
    In the Matter of Robert Jones, Appellant, v Kevin Hickey, as Assistant Attorney General of the State of New York, Respondent.
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion for reconsideration of this Court’s September 10, 2015 dismissal orders denied [see 26 NY3d 950 (2015)]. Motion for poor person relief dismissed as academic.


text:
    Andrew M. Klapper, M.D., Appellant, v Renee Graziano et al., Defendants, and Weinstein Company et al., Respondents.
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.


text:
    In the Matter of Daniel Martuscello, Jr., as Superintendent of Coxsackie Correctional Facility, Respondent, v Jua Smith, Appellant.
    Submitted October 26, 2015;
    decided December 16, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution and is not a nonfinal order of the type within the meaning of CPLR 5602 (a) (2).


text:
    Midwest Goldbuyers, Inc., Appellant, v Brinks Global Services USA, Inc., a Delaware Corporation, Respondent.
    Submitted October 13, 2015;
    decided December 16, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    PNC Bank, National Association, Respondent, v Aaron Klein, Appellant, et al., Defendants.
    Submitted October 13, 2015;
    decided December 16, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of 381 Search Warrants Directed to Facebook, Inc., Appellant. New York County District Attorneys Office, Respondent. (And Another Proceeding.)
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion by New York Civil Liberties Union et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of 381 Search Warrants Directed to Facebook, Inc., Appellant. New York County District Attorneys Office, Respondent. (And Another Proceeding.)
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion by Foursquare Labs, Inc., et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the memorandum is accepted as filed.


text:
    In the Matter of 381 Search Warrants Directed to Facebook, Inc., Appellant. New York County District Attorneys Office, Respondent. (And Another Proceeding.)
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion by Brennan Center for Justice at New York University School of Law et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    In the Matter of 381 Search Warrants Directed to Facebook, Inc., Appellant. New York County District Attorneys Office, Respondent. (And Another Proceeding.)
    Submitted November 2, 2015;
    decided December 16, 2015
   Motion by Dropbox, Inc., et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.


text:
    Susan Aranoff, Respondent, v Gerald Aranoff, Appellant.
    Submitted November 9, 2015;
    decided December 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 944 (2015)]. Motion for poor person relief dismissed as academic.


text:
    Amy Braunstein, Respondent, v David J. Braunstein, Appellant. (Action No. 1.)
    Submitted November 9, 2015;
    decided December 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Ling Chen, Appellant, v Reuters America Holdings, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted November 9, 2015;
    decided December 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 957 (2015)].


text:
    Stephane Cosman Connery et al., Respondents, v Burton S. Sultan, Appellant.
    Submitted November 16, 2015;
    decided December 17, 2015
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed so much of the Supreme Court order as pertains to the motion in that court for the imposition of sanctions, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Stephane Cosman Connery et al., Respondents, v Burton S. Sultan, Appellant.
    Submitted November 23, 2015;
    decided December 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 991 (2015)].


text:
    Mary Jane Hayes, Respondent, v William Ames Hayes, Appellant.
    Submitted November 2, 2015;
    decided December 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for ancillary relief dismissed as academic.


text:
    The People of the State of New York ex rel. Curtis Davis, Appellant, v New York State Department of Corrections and Community Supervision, Respondent.
    Submitted November 16, 2015;
    decided December 17, 2015
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 907 (2015)].


text:
    250 West 78 LLC, Respondent, v Pildes of 83rd Street, Inc., Defendant, and Dan Pildes, Appellant.
    Submitted November 16, 2015;
    decided December 17, 2015
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Kimberly Mitchell Converse, Plaintiff, v Dole Food Company, Inc., et al., Respondents, and Leonard’s Express, Inc., Appellant.
    (Appeal No. 2.)
    Submitted November 2, 2015;
    decided January 5, 2016
   Motion for leave to appeal dismissed upon the ground that the judgment and order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Jessica Manford, Respondent, v Fred M. Wilber, Appellant.
    Submitted November 30, 2015;
    decided January 5, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Alvin W. McLean, Appellant, v New York State Department of Corrections and Community Supervision, Respondent.
    Decided January 5, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v James Brown, Appellant.
    Submitted December 21, 2015;
    decided January 5, 2016
   Motion by Legal Aid Society for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Everett B. McMillan, Appellant.
    Submitted December 28, 2015;
    decided January 5, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Cristian Morales, Appellant.
    Submitted December 28, 2015;
    decided January 5, 2016
   Motion for assignment of counsel granted and Kent V. Moston, Esq., Legal Aid Society of Nassau County, 40 Main Street, 3rd Floor, Hempstead, New York 11550 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Charles Smith, Appellant.
    Submitted December 21, 2015;
    decided January 5, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Morris H. White, Appellant.
    Submitted December 21, 2015;
    decided January 5, 2016
   Motion for assignment of counsel granted and Mary P. Davison, Esq., care of Davison Law Firm, 42 North Main Street, Suite 103, PO Box 652, Canandaigua, New York 14424 assigned as counsel to the appellant on the appeal herein.


text:
    Adam Plotch, Appellant, v Citibank, N.A., Respondent.
    Submitted December 21, 2015;
    decided January 5, 2016
   Motion by Council of New York Cooperatives & Condominiums for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Angelo Ruotolo, Appellant, v Fannie Mae et al., Respondents.
    Submitted November 30, 2015;
    decided January 5, 2016
   Motion for reargument denied [see 26 NY3d 983 (2015)].


text:
    Tonyia B. Watson, Appellant, v State of New York, Respondent. (And Another Action.)
    Decided January 5, 2016
   Appeals transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, First Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    Xiu Jian Sun, Appellant, v William Yeung et al., Respondents.
    Decided January 5, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    Yan Ping Liang, Appellant, v Wei Xuan Gao et al., Respondents.
    Submitted November 30, 2015;
    decided January 5, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 963 (2015)].


text:
    Harvey Gessin et al., Appellants, v Anna Throne-Holst et al., Defendants, and Fred Havemeyer et al., Respondents.
    Decided January 7, 2016
   Appeal, insofar as taken from that portion of the Appellate Division order that denied plaintiffs’ motion for a preliminary injunction, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the action within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Sylvia Golub, Deceased. Norman Golub, Respondent; J. David Golub, Appellant. (Matter No. 1.) Norman Golub, Respondent, v Jerry David Golub, Appellant. (Matter No. 2.)
    Decided January 7, 2016
   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 it (see NY Const, art VI, § 3; CPLR 5601).


text:
    Marilyn Hopeman, Appellant, v Eric A. Seiff, Respondent.
    Submitted November 23, 2015;
    decided January 7, 2016
   Motion for leave to appeal dismissed upon the ground that the Court of Appeals does not have jurisdiction to entertain this motion for leave to appeal from the order of the Appellate Division entered in this action commenced in the Civil Court of the City of New York (see NY Const, art VI, § 3 [b] [7]; CPLR 5602 [a]). Motion for poor person relief dismissed as academic.


text:
    Donna M. Lattuca, Appellant, v John M. Lattuca, Respondent.
    Submitted November 23, 2015;
    decided January 7, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Kosta Politopoulos et al., Appellants, v City of New York, Respondent.
    Submitted November 23, 2015;
    decided January 7, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order as affirmed the May 2014 Supreme Court 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 Sarah C. Administration for Children’s Services, Respondent; Caroline C., Appellant, et al., Respondent. (Proceeding No. 1.) In the Matter of Shawn C. Administration for Children’s Services, Respondent; Caroline C., Appellant, et al., Respondent. (Proceeding No. 2.) In the Matter of Joshua C. Administration for Children’s Services, Respondent; Caroline C., Appellant, et al., Respondent. (Proceeding No. 3.) In the Matter of Joseph C. Administration for Children’s Services, Respondent; Caroline C., Appellant, et al., Respondent. (Proceeding No. 4.)
    Submitted November 16, 2015;
    decided January 7, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.


text:
    Joan Coccia, Respondent, v Thomas F. Liotti, Appellant.
    Submitted November 16, 2015;
    decided January 12, 2016
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Donald Felix, Respondent, v Law Offices of Thomas F. Liotti, Appellant.
    Submitted November 16, 2015;
    decided January 12, 2016
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    Sheila Freed, Respondent, v Yochai Kapla, Appellant.
    Submitted November 30, 2015;
    decided January 12, 2016
   Motion for leave to appeal etc. dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Rashad Hudyih, Appellant, v Joseph T. Smith, as Superintendent of Shawangunk Correctional Facility, Respondent.
    Submitted November 30, 2015;
    decided January 12, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 909 (2015)].


text:
    Law Offices of Thomas F. Liotti et al., Appellants, v Donald Felix et al., Respondents.
    Submitted November 16, 2015;
    decided January 12, 2016
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the action within the meaning of the Constitution; motion for leave to appeal otherwise denied.


text:
    Patricia Warmhold, Appellant, v Michael Zagarino et al., Respondents.
    Submitted December 7, 2015;
    decided January 12, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 999 (2015)].


text:
    In the Matter of Kevin Aoki et al., Respondents, v Echo Aoki et al., Respondents, and Keiko Ono Aoki, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Alex Long et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    In the Matter of Kevin Aoki et al., Respondents, v Echo Aoki et al., Respondents, and Keiko Ono Aoki, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Geoffrey C. Hazard, Jr. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Government Employees Insurance Co. et al., Respondents, v Avanguard Medical Group, PLLC, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Medical Society of the State of New York et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Government Employees Insurance Co. et al., Respondents, v Avanguard Medical Group, PLLC, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by New York State Association of Ambulatory Surgery Centers, Inc. for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    JP Morgan Chase Bank, National Association, Respondent, v Frederick W. Butler, Appellant, et al., Defendants.
    Submitted December 7, 2015;
    decided January 14, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Juan P., a Person Alleged to be a Juvenile Delinquent, Appellant.
    Decided January 14, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Concur: Acting Chief Judge Pigott and Judges AbdusSalaam, Stein and Fahey. Judge Rivera dissents and votes to retain jurisdiction.


text:
    In the Matter of Mark K. McDermott, Appellant, v Anthony J. Annucci, as Acting Commissioner of Corrections and Community Supervision, Respondent.
    Submitted November 9, 2015;
    decided January 14, 2016
   Motion for poor person relief granted.


text:
    Millennium Holdings LLC, Plaintiff, The Northern Assurance Company of America, Appellant, and Certain Underwriters at Lloyd’s et al., Intervenors-Appellants, v The Glidden Company, Now Known as Akzo Nobel Paints, et al., Respondents.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Complex Insurance Claims Litigation Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The Diversified Group, Inc., et al., Appellants, v Marcum & Kliegman LLP et al., Respondents.
    Submitted November 30, 2015;
    decided January 14, 2016
   Motion to substitute the personal representative of the estate of Gerald Cohen for deceased defendant Gerald Cohen denied without prejudice to renewal upon proof of service of the motion in compliance with CPLR article 3 (see generally Matter of Einstoss, 26 NY2d 181, 190-191 [1970]).


text:
    The People of the State of New York, Respondent, v John Andujar, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion for assignment of counsel granted and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Scott Barden, Appellant.
    Decided January 14, 2016
   Reargument ordered and case set down for argument during a future session of this Court.

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


text:
    The People of the State of New York, Respondent, v Sean Garvin, Also Known as Anthony Garvin, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    The People of the State of New York, Respondent, v Vachesla Golger, Also Known as Vacheslav, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Sean John, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Innocence Network for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Marcellus Johnson, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by Brooklyn Defender Services for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Respondent, v Kier Valentine, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.


text:
    The People of the State of New York, Respondent, v Miguel Viruet, Appellant.
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.


text:
    In the Matter of Maxine Todd, Appellant, v New York City Health and Hospitals Corporation Office of Legal Affairs, Claims Division, Respondent.
    Submitted December 7, 2015;
    decided January 14, 2016
   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:
    Yaniveth R., an Infant, by Her Mother and Natural Guardian, Ramona S., et al., Appellants, v LTD Realty Co. et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by New York City Housing Authority for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Yaniveth R., an Infant, by Her Mother and Natural Guardian, Ramona S., et al., Appellants, v LTD Realty Co. et al., Respondents, et al., Defendants. (And a Third-Party Action.)
    Submitted January 11, 2016;
    decided January 14, 2016
   Motion by New York City Coalition to End Lead Poisoning et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    [45 NE3d 623, 24 NYS3d 583]
    In the Matter of Rokhaya Cisse, Appellant, v Christopher Graham, Respondent. (Proceeding No. 1.) In the Matter of Christopher Graham, Respondent, v Rokhaya Cisse, Appellant. (Proceeding No. 2.)
    Argued January 7, 2016;
    decided January 14, 2016

      APPEARANCES OF COUNSEL

      Law Offices of Barry J. Fisher, P.C., Garden City CBarry J. Fisher of counsel), for appellant.

      Larry S. Bachner, P.C., Jamaica (Larry S. Bachner of counsel), for respondent.

      Marc E. Strauss, Jamaica, Attorney for the Child.
   OPINION OF THE COURT

Order affirmed, with costs. Record evidence exists to support the affirmed findings of fact upon which the modification of the child custody award was predicated.

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


text:
    [46 NE3d 612, 26 NYS3d 229]
    The People of the State of New York, Respondent, v Karl Chu-Joi, Also Known as Karl Chu-Joy, Also Known as Karl Chujoi, Appellant.
    Decided December 15, 2015
    APPEARANCES OF COUNSEL

      Robert DiDio & Associates, Kew Gardens (Elisha Rudolph of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (Roña I. Kugler of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant Chu-Joi appeals from an order of the Appellate Division, Second Department, which affirmed Supreme Court’s denial, without a hearing, of defendant’s CPL 440.20 motion to set aside his sentence. Defendant contends that his allegations and supporting documents establish he was 15 years old at the time of the offense and therefore should have been sentenced as a juvenile offender not as an adult. In support of his motion, defendant, who was born in Peru, attached a copy of his baptismal and birth certificates, documents that his former legal name was “Karl Sebastian Hondermann Pino,” and affidavits alleging that his now deceased grandparents had fraudulently created the birth certificate on record with the Peruvian government. In opposition, the People submitted the following documents provided by the Peruvian government: (1) a letter from the Archdiocese stating that defendant’s purported baptismal certificate is a “forgery”; (2) an official birth certificate from the National Identification and Civil Registry of Peru indicating “Karl Hondermann Pino” was born in 1976; and (3) a letter that a new “extraordinary registration” for defendant, listing a 1977 birth date, was filed in 1994. The People also submitted a copy of defendant’s Peruvian passport, which indicated he was born in 1976, and which defendant himself had presented to the court in connection with a previous crime, to demonstrate that he was only 15 years old at the time.

A court can “determine on written submissions whether the motion can be decided without a hearing” (People v Satterfield, 66 NY2d 796, 799 [1985]). Under CPL 440.30 (4), a court may deny a CPL 440.20 motion without a hearing where an allegation of fact essential to support the motion is “conclusively refuted by unquestionable documentary proof,” or “contradicted by a court record or other official document” and “there is no reasonable possibility that such allegation is true” (CPL 440.30 [4] [c], [d]).

The People provided “unquestionable documentary proof” from the Peruvian government that defendant was 16 at the time of the murder, effectively refuting any reasonable possibility that defendant’s claims were accurate. Moreover, the court was not required to credit defendant’s evidence of fraud that was self-serving and uncorroborated, nor allegations that the records provided by the Peruvian government were forgeries created by defendant’s grandparents (see People v White, 309 NY 636, 641 [1956] [court does not have “to accept every sworn allegation as true”]). Therefore, the Appellate Division did not abuse its discretion when it affirmed the trial court’s decision (see People v Friedgood, 58 NY2d 467 [1983]).

Chief Judge Lippman and Judges Pigott, Rivera, AbdusSalaam, Stein and Fahey concur.

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

       Defendant is also known as Karl, Chu-Joy, and Chujoi.


text:
    In the Matter of Talib Alsaifullah, Appellant, v Richard A. Dollinger, Respondent.
    Submitted December 14, 2015;
    decided February 11, 2016
   Motion for leave to appeal dismissed upon the ground that the November 6, 2015 letter sought to be appealed from is not a judgment or an order from which an appeal to the Court of Appeals may be taken (see CPLR 5512 [a]; 5602 [a]).

Judge Garcia taking no part.


text:
    In the Matter of Barack Darnell B., an Infant. Chera B., Appellant, Leake and Watts Services, Inc., Respondent.
    Submitted December 14, 2015;
    decided February 11, 2016
   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.

Judge Garcia taking no part.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.C., Respondent. R. Thomas Rankin, Esq., Attorney for the Child, Appellant.
    Submitted February 8, 2016;
    decided February 11, 2016
   Motion for poor person relief granted.

Judges Fahey and Garcia taking no part.


text:
    Jennifer Cangro, Appellant, v John Z. Marangos, Respondent.
    Decided February 11, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Garcia taking no part.


text:
    In the Matter of Tomas Carmona, Appellant, v New York City Housing Authority, Respondent.
    Submitted January 11, 2016;
    decided February 11, 2016
   Motion for leave to appeal denied. Motion for poor person relief dismissed as academic. Motion for a stay dismissed as academic.

Judge Garcia taking no part.


text:
    Samuel Cosentino, Appellant, v Sullivan Papain Block McGrath & Cannavo, P.C., Respondent.
    Submitted December 14, 2015;
    decided February 11, 2016
   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).

Judge Garcia taking no part.


text:
    In the Matter of Dina Ehrlich, Respondent, v David Wolf et al., Appellants.
    Submitted December 14, 2015;
    decided February 11, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.

Judge Garcia taking no part.


text:
    In the Matter of Entergy Nuclear Operation, Inc., et al., Respondents, v New York State Department of State et al., Appellants.
    Submitted January 25, 2016;
    decided February 11, 2016
   Motion by Riverkeeper, Inc., et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    In the Matter of the Claim of Neville Francis, Appellant, v Jewelry Box Corporation of America et al., Respondents, and Special Fund for Reopened Cases, Respondent. Workers’ Compensation Board, Respondent.
    Submitted December 21, 2015;
    decided February 11, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 981 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of the Estate of Deborah A. Grochocki, Deceased. John C. Greenleaf, Appellant, v New York State Office of Victim Services, Respondent, et al., Respondents.
    Decided February 11, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Garcia taking no part.


text:
    Executor of Celia Kates, Deceased, Philip Barash, Appellant, et al., Plaintiff, v James G. Pressly, Esq., et al., Respondents.
    Submitted December 14, 2015;
    decided February 11, 2016
   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.

Judge Garcia taking no part.


text:
    Lynn Lew, Appellant, v Manhasset Public Library et al., Respondents.
    Submitted December 14, 2015;
    decided February 11, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 997 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Linda P. Nash, Respondent, v Port Authority of New York and New Jersey, Appellant.
    Submitted August 24, 2015;
    decided February 11, 2016
   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 Arthur Karger, Powers of the New York Court of Appeals § 4:15 at 93-94 [3d ed rev 2005]).

Judges Abdus-Salaam and Garcia taking no part.


text:
    The People of the State of New York, Respondent, v David Bookman, Appellant.
    Submitted February 1, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Otis Boone, Appellant.
    Submitted January 19, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Larry Brown, Appellant.
    Submitted January 25, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Antonio Bruno, Appellant.
    Submitted February 1, 2016;
    decided February 11, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Dayshawn Crooks, Appellant.
    Submitted February 1, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Matthew C. Hug, Esq., Rensselaer Technology Park, 105 Jordan Road, Troy, New York 12180 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Appellant, v Kenyatta James, Also Known as Nate Beander, Respondent.
    Decided February 11, 2016
   Appeal dismissed, by the Court of Appeals, sua sponte, upon the ground that the reversal by the Appellate Division was not on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal (CPL 450.90 [2] [a]).

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Michael Pondexter, Appellant.
    Submitted February 1, 2016;
    decided February 11, 2016
   Motion for an extension of the time within which to apply for permission to appeal pursuant to CPL 460.20 granted and motion papers treated as a timely CPL 460.20 application.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Ricardo Ricketts, Appellant.
    Submitted January 25, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Lynn W.L. Fa-hey, Esq., Appellate Advocates, 111 John Street, 9th Floor, New York, NY 10038 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Shawn J. Sivertson, Appellant.
    Submitted January 25, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and David C. Schopp, Esq., The Legal Aid Bureau of Buffalo, Inc., 237 Main Street, Suite 1602, Buffalo, New York 14203 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Yusuf Sparks, Appellant.
    Submitted January 19, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Robert S. Dean, Esq., Center for Appellate Litigation, 120 Wall Street, 28th Floor, New York, NY 10005 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    The People of the State of New York, Respondent, v Gregory Vining, Appellant.
    Submitted February 1, 2016;
    decided February 11, 2016
   Motion for assignment of counsel granted and Richard M. Greenberg, Esq., Office of the Appellate Defender, 11 Park Place, Suite 1601, New York, NY 10007 assigned as counsel to the appellant on the appeal herein.

Judge Garcia taking no part.


text:
    Ruo Mei Cai, Respondent, v Victor Fai Lau, Appellant.
    Decided February 11, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Garcia taking no part.


text:
    Carlayne Sims, Appellant, v City of New York, Respondent.
    Submitted December 21, 2015;
    decided February 11, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 998 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Gerard V. Sunnen, M.D., Appellant, v New York State Department of Health, Respondent.
    Submitted December 7, 2015;
    decided February 11, 2016
   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.

Judge Garcia taking no part.


text:
    In the Matter of Injah Tafari, Appellant, v Donald Selsky, as Director of Special Housing and Inmate Disciplinary Programs, Respondent.
    Submitted December 14, 2015;
    decided February 11, 2016
   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.

Judges Stein and Garcia taking no part.


text:
    In the Matter of Tarrence A., Appellant. Mid-Hudson Forensic Psychiatric Center, Respondent.
    Submitted December 7, 2015;
    decided February 11, 2016
   Motion for leave to appeal dismissed upon the ground that the issues presented have become moot. Motion for poor person relief dismissed as academic.

Judge Garcia taking no part.


text:
    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants; TIG Insurance Company et al., Respondents.
    Submitted January 19, 2016;
    decided February 11, 2016

      See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Motion by New York State Electric and Gas Corporation for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants; TIG Insurance Company et al., Respondents.
    Submitted January 25, 2016;
    decided February 11, 2016

      See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Motion by United Policyholders et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed.

Judge Garcia taking no part.


text:
    In the Matter of Yoga Vida NYC, Inc., Appellant. Commissioner of Labor, Respondent.
    Submitted December 14, 2015;
    decided February 11, 2016
   Motion by Legal Aid Society for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judges Stein and Garcia taking no part.


text:
    Beck Chevrolet Co., Inc., Appellant, v General Motors LLC, Respondent.
    Submitted February 16, 2016;
    decided February 18, 2016

      See 787 F3d 663.
   Motion by New York State Automobile Dealers Association for leave to file a brief amicus curiae on consideration of the certified questions herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Beck Chevrolet Co., Inc., Appellant, v General Motors LLC, Respondent.
    Submitted February 16, 2016;
    decided February 18, 2016

      See 787 F3d 663.
   Motion by Alliance of Automobile Manufacturers et al. for leave to appear amici curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Brooke S.B., Respondent, v Elizabeth A.C.C., Respondent. R. Thomas Rankin, Attorney for the Child, Appellant.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Richard J. Adago et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed.

Judge Fahey taking no part.


text:
    Michael J. Carlson, Sr., Individually and as Administrator of the Estate of Claudia D’Agostino Carlson, Deceased, and as Assignee of William Porter, Appellant, v American International Group, Inc., et al., Respondents, and DHL Express (USA), Inc., Formerly Known as DHL Worldwide Express, Inc., Respondent.
    Submitted December 7, 2015;
    decided February 18, 2016
   Motion by New York State Trial Lawyers Association for leave to appear amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Garcia taking no part.


text:
    Jean James Charite et al., Appellants, v Duane Reade, Inc., et al., Respondents, et al., Defendants.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by National Employment Lawyers Association/New York for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Richard (Ricardo) Cordero, Appellant, v Viviana Barreiro-Cordero et al., Respondents.
    Submitted December 21, 2015;
    decided February 18, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1030 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of ELT Harriman, LLC, Appellant, v Assessor of Town of Woodbury et al., Respondents, and Board of Education of the Monroe-Woodbury Central School District, Intervenor-Respondent.
    Submitted December 28, 2015;
    decided February 18, 2016
   Motion by the National Association of Property Tax Attorneys for leave to file a brief amicus curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Garcia taking no part.


text:
    Friends of Thayer Lake LLC et al., Appellants, v Phil Brown et al., Respondents, et al., Defendant.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Adirondack Landowners Association for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed.


text:
    Friends of Thayer Lake LLC et al., Appellants, v Phil Brown et al., Respondents, et al., Defendant.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Adirondack Mountain Club, Inc. et al. for leave to file a brief amici curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    Friends of Thayer Lake LLC et al., Appellants, v Phil Brown et al., Respondents, et al., Defendant.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Pacific Legal Foundation et al. for leave to appear amici curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed.


text:
    Friends of Thayer Lake LLC et al., Appellants, v Phil Brown et al., Respondents, et al., Defendant.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Empire State Forest Products Association for leave to appear amicus curiae on the appeal herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of NahShon Jackson, Appellant, v William C. Donnino, Respondent. In the Matter of Debora Jackson et al., Petitioners, v Michael Capra, Respondent. NahShon Jackson, Nonparty-Appellant.
    Submitted December 14, 2015;
    decided February 18, 2016
   Motion for leave to appeal dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceedings within the meaning of the Constitution. Motion for poor person relief dismissed as academic.

Judge Garcia taking no part.


text:
    In the Matter of Kenneth Cole Productions, Inc., Shareholder Derivative Litigation. Erie County Employees Retirement System, Appellant, v Michael J. Blitzer et al., Respondents.
    Submitted February 16, 2016;
    decided February 18, 2016
   Motion by Eastern New York Laborers’ District Council for leave to file a brief amicus curiae on the appeal herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    In the Matter of Level 3 Communications, LLC, Appellant, v Essex County, Respondent, et al., Respondents.
    Submitted November 30, 2015;
    decided February 18, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 907 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Melanie K. Suffolk County Department of Social Services, Respondent; Dolores F., Appellant. (Proceeding No. 1.) In the Matter of Doriana F. Suffolk County Department of Social Services, Respondent; Dolores F., Appellant. (Proceeding No. 2.)
    Submitted December 14, 2015;
    decided February 18, 2016
   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.

Judge Garcia taking no part.


text:
    Barbara Osarczuk et al., Respondents, v Associated Universities, Incorporated, Appellant. Joseph Rombola et al., Intervenors-Respondents. (And a Third-Party Action.)
    Submitted December 28, 2015;
    decided February 18, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution. Motion for a stay dismissed as academic.

Judge Garcia taking no part.


text:
    The People of the State of New York, Appellant, v Daviel McCummings, Respondent.
    Submitted January 25, 2016;
    decided February 18, 2016
   Motion to vacate this Court’s January 8, 2016 preclusion order granted.


text:
    The People of the State of New York ex rel. Rafael Agosto, Appellant, v Paul Chappius, Jr., as Superintendent of Elmira Correctional Facility, Respondent.
    Submitted December 28, 2015;
    decided February 18, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 1049 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    The People of the State of New York ex rel. Jose Vazquez, Appellant, v David Unger et al., Respondents.
    Submitted December 14, 2015;
    decided February 18, 2016
   On the Court’s own motion, appeal transferred, without costs, to the Appellate Division, Fourth Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]). Motion for poor person relief dismissed as academic.

Judge Garcia taking no part.


text:
    Mirta Ramos, Appellant, v Renata Vanja Weber, M.D., et al., Respondents.
    Submitted December 28, 2015;
    decided February 18, 2016
   Motion for leave to appeal dismissed as untimely (see CPLR 5513 [b]).

Judge Garcia taking no part.


text:
    In the Matter of Rensselaer County Sheriff’s Department, Appellant, v New York State Division of Human Rights et al., Respondents.
    Submitted December 21, 2015;
    decided February 18, 2016
   Motion, insofar as it seeks leave to appeal from the Appellate Division order denying reargument or leave to appeal to the Court of Appeals, dismissed upon the ground that such order does not finally determine the proceeding within the meaning of the Constitution; motion for leave to appeal otherwise denied.

Judges Stein and Garcia taking no part.


text:
    In the Matter of the Claim of Mary Ann Tango, Appellant. Commissioner of Labor, Respondent.
    Submitted December 21, 2015;
    decided February 18, 2016
   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.

Judge Garcia taking no part.


text:
    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants; TIG Insurance Company et al., Respondents.
    Submitted February 16, 2016;
    decided February 18, 2016

      See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Motion by Olin Corporation for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.

Judge Garcia taking no part.


text:
    In the Matter of Viking Pump, Inc. and Warren Pumps, LLC, Insurance Appeals. Viking Pump, Inc. and Warren Pumps, LLC, Appellants; TIG Insurance Company et al., Respondents.
    Submitted February 16, 2016;
    decided February 18, 2016
    See — A3d —, 2015 WL 3618924, 2015 Del LEXIS 278.
   Motion by ITT Corporation for leave to appear amicus curiae on consideration of the certified questions herein granted only to the extent that the proposed brief is accepted as filed.

Judge Garcia taking no part.


text:
    [47 NE3d 71, 26 NYS3d 743]
    In the Matter of Exeter Building Corp. et al., Appellants, v Town of Newburgh et al., Respondents.
    Argued January 14, 2016;
    decided February 11, 2016

      APPEARANCES OF COUNSEL

      Burke, Miele & Golden, LLP, Goshen (Richard B. Golden and Kelly M. Naughton of counsel), for appellants.

      Dickover, Donnelly, Donovan, LLP, Goshen (Michael H. Donnelly of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

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

An owner of real property can acquire a common-law vested right to develop the property in accordance with prior zoning regulations when, in reliance on a “legally issued permit,” the landowner “effect [s] substantial changes and incur [s] substantial expenses to further the development” and “[t]he landowner’s actions relying on [the] valid permit [are] so substantial that the municipal action results in serious loss rendering the improvements essentially valueless” (Town of Orangetown v Magee, 88 NY2d 41, 47-48 [1996]; see generally 4 Edward H. Ziegler, Jr., Rathkopf s The Law of Zoning and Planning § 70:20 [4th ed]). Here, it was not reasonable for petitioners to rely on the December 2007 conditional final site plan approval of the development, in carrying out any substantial actions furthering the development. In particular, in 2005, the year before the rezoning of petitioners’ property by means of Local Law No. 3 (2006) of Town of Newburgh, the Town Planning Board had repeatedly warned petitioners of the proposed rezoning. The December 2007 approval itself did not engender expectations to the contrary. It included a statement of the new zoning status of the property. Additionally, while petitioners challenged the rezoning in court, petitioners must have been “cognizant of the potential for an eventual legal ruling that the Local Law was in fact valid” (Preble Aggregate v Town of Preble, 263 AD2d 849, 851 [3d Dept 1999], lv denied 94 NY2d 760 [2000]).

We need not address whether a conditional final site plan approval can be the basis for acquisition of a vested right to develop property. Even if the right could vest under such a site plan approval, petitioners here do not satisfy the Magee test, because the element of reasonable reliance on municipal permission was not satisfied. Nor did limited permits, authorizing petitioners to demolish a single-family residence, remove certain water tanks and their foundation, conduct clearing and grading, and erect signs on the subject property, amount to approval of petitioners’ proposed development. Consequently, the Appellate Division properly held that petitioners have no vested right to develop the subject property under the prior zoning regulations.

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

Order affirmed, with costs, in a memorandum.

       Given our analysis, there is no occasion for us to decide whether Supreme Court improperly conducted a trial/hearing to decide whether the remaining elements of the Magee test were met, rather than remanding to the Zoning Board.


text:
    In the Matter of Adirondack Health-Uihlein Living Center et al., Appellants, v Nirav R. Shah, M.D., Commissioner of Health, State of New York, et al., Respondents.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Fahey taking no part.


text:
    Aetna Health Plans, as Assignee of Luz Herrera, Appellant, v Hanover Insurance Company, Respondent.
    Decided February 23, 2016
   Reargument ordered and case set down for argument during a future session of this Court.

Concur: Judges Pigott, Rivera, Abdus-Salaam, Stein and Fahey. Taking no part: Chief Judge DiFiore and Judge Garcia.


text:
    Agencies for Children’s Therapy Services, Inc., Appellant, v New York State Department of Health et al., Respondents.
    Submitted February 1, 2016;
    decided February 23, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for a stay dismissed as academic.


text:
    In the Matter of Alexander S., an Infant. Steuben County Department of Social Services, Respondent; David S. et al., Appellants.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motions for reargument denied [see 26 NY3d 910 (2015); 26 NY3d 1030 (2015)].

Judge Fahey taking no part.


text:
    In the Matter of Asian American Legal Defense and Education Fund et al., Appellants, v New York City Police Department et al., Respondents.
    Submitted November 30, 2015;
    decided February 23, 2016
   Motion by Muslim Community Network et al. for leave to appear amici curiae on the motion for leave to appeal herein granted and the brief is accepted as filed.

Judge Fahey taking no part.


text:
    In the Matter of Hilary Best, Appellant, v Barry A. Schwartz, Respondent.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motion to vacate this Court’s November 5, 2015 dismissal order granted [see 26 NY3d 1037 (2015)]. On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved.


text:
    In the Matter of Amin Booker, Appellant, v Robert Ercole, as Superintendent of Green Haven Correctional Facility, et al., Respondents.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that the order appealed from does not finally determine the proceeding within the meaning of the Constitution.

Judge Stein taking no part.


text:
    In the Matter of Jennifer Cronk, Respondent, v John B. King, as Commissioner of Education, et al., Respondents, and Board of Education of the Valhalla Union Free School District, Appellant.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motion for reargument of motion for leave to appeal denied [see 26 NY3d 912 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Washington Davis, Appellant, v Kenneth L. Thompson et al., Respondents. In the Matter of Washington Davis, Appellant, et al., Petitioner, v Julia L. Rodriguez et al., Respondents.
    Submitted November 30, 2015;
    decided February 23, 2016
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 907 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of Amil Dinsio, Appellant, v Supreme Court, Appellate Division, Third Judicial Department, Respondent. (Proceeding No. 1.) In the Matter of Amil Dinsio, Appellant, v Supreme Court, Appellate Division, Third Judicial Department, Respondent. (Proceeding No. 2.) In the Matter of Amil Dinsio, Appellant, v Supreme Court, Appellate Division, Third Judicial Department, Respondent. (Proceeding No. 3.)
    Submitted July 6, 2015;
    decided February 23, 2016
   Motion for reargument of motion for leave to appeal denied [see 25 NY3d 908, 909 (2015)]. Motion for other relief dismissed as academic.

Judges Stein and Fahey taking no part.


text:
    DLJ Mortgage Capital, Inc., Respondent, et al., Intervenors-Plaintiffs, v Thomas Kontogiannis et al., Defendants, and Jeffrey Siegel et al., Appellants. Massoud & Pashkoff LLP, Nonparty Appellant.
    Submitted December 14, 2015;
    decided February 23, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the Appellate Division order that affirmed the October 2014 Supreme Court order, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portion of the Appellate Division order does not finally determine the proceeding within the meaning of the Constitution.

Judge Garcia taking no part.


text:
    In the Matter of Bernabe Encarnacion, Appellant, v Susan M. Dwyer, Cayuga County Clerk, et al., Respondents.
    Submitted January 11, 2016;
    decided February 23, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Thomas Glass, Appellant, v New York State Department of Motor Vehicles Appeals Board, Respondent.
    Decided February 23, 2016
   Appeal transferred, without costs, by the Court of Appeals, sua sponte, to the Appellate Division, Third Department, upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved (see NY Const, art VI, §§ 3 [b] [2]; 5 [b]; CPLR 5601 [b] [2]).


text:
    In the Matter of the Claim of David L. Harold, Respondent. Leonard’s Transportation, Appellant; Commissioner of Labor, Respondent.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Leon R. Koziol, a Suspended Attorney, Appellant. Committee on Professional Standards, Respondent.
    Decided February 23, 2016
   Appeal, insofar as taken from that portion of the Appellate Division order denying the part of the motion seeking to vacate prior orders of suspension, dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that such portion of the order does not finally determine the proceeding within the meaning of the Constitution; appeal otherwise dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judges Stein and Fahey taking no part.


text:
    The Ministers and Missionaries Benefit Board, Interpleader Plaintiff, v Leon Snow et al., Appellants. Estate of Clark Flesher et al., Respondents.
    Submitted January 25, 2016;
    decided February 23, 2016

      See 780 F3d 150.
   Motion for reargument denied. [see 26 NY3d 466 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Mohonk Preserve, Inc., Respondent, v Karen Pardini et al., Appellants.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motion for reargument of motion for leave to appeal denied with $100 costs and necessary reproduction disbursements [see 26 NY3d 912 (2015)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    In the Matter of the Claim of Megan L. Morris, Respondent. Source Interlink Media, LLC, Appellant; Commissioner of Labor, Respondent.
    Submitted January 4, 2016;
    decided February 23, 2016
   Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution.


text:
    Juvondi Pender, Appellant, v Morris Duffy Alonso Faley, LLP, Respondent.
    Submitted January 19, 2016;
    decided February 23, 2016
   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:
    The People of the State of New York, Respondent, v Andre Harrison, Appellant. The People of the State of New York, Respondent, v Marino Serrano, Appellant.
    Submitted February 16, 2016;
    decided February 23, 2016
   Motion by Immigrant Defense Project for leave to file a brief amicus curiae on the appeals herein granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York, Appellant, v Terrance L. Mack, Respondent.
    Submitted February 16, 2016;
    decided February 23, 2016
   Motion to file a supplemental brief granted and the proposed brief is accepted as filed. Three copies of the brief must be served and an original and nine copies filed within seven days.


text:
    The People of the State of New York ex rel. Shaliek Carter, Appellant, v Brandon J. Smith, as Superintendent of Greene Correctional Facility, Respondent.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.


text:
    The People of the State of New York ex rel. Gary H. Moore, Appellant, v Superintendent of Coxsackie Correctional Facility, Respondent.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Stein taking no part.


text:
    Thomas Perkins et al., Respondents, v Philip Barry, Appellant, et al., Defendants.
    Submitted January 11, 2016;
    decided February 23, 2016
   Motion, insofar as it seeks leave to appeal from that portion of the December 2015 Appellate Division order which dismissed appellant’s appeal, denied; motion for leave to appeal otherwise dismissed upon the ground that the remaining portions of the orders sought to be appealed from do not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Brian Pickering, Appellant, v Car Win Construction, Inc., et al., Respondents. Workers’ Compensation Board, Respondent.
    Submitted January 4, 2016;
    decided February 23, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no appeal lies as of right from the unanimous order of the Appellate Division absent the direct involvement of a substantial constitutional question (see CPLR 5601). Motion for leave to appeal denied.


text:
    Robert L. Schulz, Appellant, et al., Plaintiffs, v Andrew M. Cuomo et al., Respondents, et al., Defendants.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Chief Judge DiFiore taking no part.


text:
    Robert L. Schulz et al., Appellants, et al., Plaintiffs, v State of New York Executive et al., Respondents.
    Decided February 23, 2016
   Appeal dismissed, without costs, by the Court of Appeals, sua sponte, upon the ground that no substantial constitutional question is directly involved.

Judge Stein taking no part.


text:
    In the Matter of Matthew R. Smith, Appellant, v William J. Condon, a Justice of the Supreme Court, Suffolk County, et al., Respondents.
    Submitted January 25, 2016;
    decided February 23, 2016
   Motion for reargument etc. denied [see 26 NY3d 915 (2016)].

Chief Judge DiFiore and Judge Garcia taking no part.


text:
    Ian Stokoe et al., Respondents, v E-Lionheart, LLC, et al., Appellants.
    Submitted November 30, 2015;
    decided February 23, 2016
   Motion, insofar as made by defendant Edward Bronson, denied; motion for leave to appeal otherwise dismissed as untimely (see CPLR 5513 [b]).


text:
    Ian Stokoe et al., Respondents, v E-Lionheart, LLC, et al., Appellants.
    Submitted February 8, 2016;
    decided February 23, 2016
   Motion for leave to appeal from the Supreme Court judgment entered subsequent to 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:
    United States Fidelity & Guaranty Company et al., Respondents, v American Re-Insurance Company et al., Appellants, et al., Defendants.
    Decided February 23, 2016
   Appeal dismissed, without prejudice and without costs, by the Court of Appeals, sua sponte, upon the ground that the Court declines to pass upon the matter raised by appellants at this time (see Matter of Lippman v Commissioners of Election of County of Nassau, 15 NY2d 964, 966 [1965]).

Judge Abdus-Salaam taking no part.


text:
    In the Matter of the Estate of Stanley Wagner, Deceased. Jaan Aarismaa, IV, Appellant; John L. Wagner, as Executor of Stanley A. Wagner, Deceased, Respondent.
    Submitted January 4, 2016;
    decided February 23, 2016
   On the Court’s own motion, appeal dismissed, without costs, upon the ground that no substantial constitutional question is directly involved. Motion for miscellaneous relief denied.


text:
    Abuwi M. Waheed, Appellant, v City of New York et al., Respondents.
    Submitted December 7, 2015;
    decided February 23, 2016
   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.

Judge Abdus-Salaam taking no part.


text:
    [48 NE3d 497, 28 NYS3d 355]
    In the Matter of Ming Tung et al., Appellants, v China Buddhist Association et al., Respondents.
    Decided February 18, 2016

      APPEARANCES OF COUNSEL

      Alexander Palmer Kelly, New York City, for appellants.

      Capell Barnett Matalón & Schoenfeld LLP, New York City CJoseph Milano 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 of the Appellate Division affirmed, without costs, for the reasons stated by Justice Judith J. Gische at the Appellate Division, First Department (124 AD3d 13 [2014]), and certified question not answered upon the ground that it is unnecessary.

Concur: Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and Garcia.


author: Rivera, J.

text:
    [48 NE3d 497, 28 NYS3d 355]
    The People of the State of New York, Respondent, v Raymond Leach, Appellant.
    Argued January 12, 2016;
    decided February 23, 2016
    APPEARANCES OF COUNSEL

      Feldman and Feldman, Uniondale (Steven A. Feldman of counsel), for appellant.

      David M. Hoovler, District Attorney, Middletown (Elizabeth L. Schulz and Andrew R. Kass of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Regardless of the validity of defendant’s appeal waiver, his challenge to the voluntariness of his guilty plea is unpreserved for appellate review (see People v Peque, 22 NY3d 168, 182 [2013]). Contrary to defendant’s contention, the narrow exception to the preservation requirement does not apply in this case (see People v Lopez, 71 NY2d 662, 666 [1988]).

Rivera, J.

(concurring). I concur in the result, but write separately to address the invalidity of defendant’s postplea waiver, obtained at defendant’s postplea, non-contemporaneous sentencing proceeding. The issue is preserved, and the propriety of these types of waivers is likely to evade our review, when, as here, a defendant challenges the severity of a sentence in the Appellate Division, but completes the sentence prior to a decision from this Court. The fact that the Appellate Division previously rejected waivers obtained in the course of this same sentencing procedure, but found defendant’s waiver valid in this case makes plain the confusion surrounding the possible effect of a court’s postplea explanation of a defendant’s appellate rights on the validity of the waiver.

A “waiver of the right to appeal is effective only so long as the record demonstrates that it was made knowingly, intelligently and voluntarily” (People v Lopez, 6 NY3d 248, 256 [2006]). “An appellate waiver meets this standard when a defendant has ‘a full appreciation of the consequences’ of such waiver” (People v Bradshaw, 18 NY3d 257, 264 [2011], quoting People v Seaberg, 74 NY2d 1, 11 [1989]). As the Court has made clear, “[t]he record must establish that the defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty — the right to remain silent, the right to confront one’s accusers and the right to a jury trial” {Lopez, 6 NY3d at 256). Therefore, a waiver is ineffective where the court mischaracterizes the nature of the right to appeal {People v Billingslea, 6 NY3d 248, 257 [2006] [decided with People v Lopez]), commingles appellate rights with rights that survive a plea {Lopez, , 6 NY3d at 256), and engages in a colloquy consisting of a one-word response to whether the defendant understood the conditions of the plea {id. at 257; People v Ramos, 7 NY3d 737 [2006]), or where defendant, notwithstanding a written waiver, “never orally confirmed that [defendant] grasped the concept of the appeal waiver and the nature of the right [defendant] was forgoing” {compare Bradshaw, 18 NY3d at 267, and People v DeSimone, 80 NY2d 273, 283 [1992], with Ramos, 7 NY3d 737).

Here, the record fails to establish defendant made a knowing, intelligent, and voluntary waiver of his appellate rights because during the plea colloquy the court made but two passing references to the waiver of the right to appeal, neither of which distinguished his appellate rights in a manner sufficient to establish his “full appreciation of the consequences” of relinquishing his right to appeal {Bradshaw, 18 NY3d at 264). After explaining the rights forfeited by the plea, the court informed defendant that the sentence agreed to was contingent upon defendant “keep[ing] promises to the Court and to the People,” specifically that between the plea and sentencing dates, defendant not violate the law or get arrested, cooperate with probation during the presentence investigation, and that he return as scheduled for sentencing. In the context of this explanation about the postplea requirements, the court told defendant “[y]ou must waive and give up your right to appeal.” The court then asked as a general matter whether the defendant understood the “plea promise,” to which defendant responded “[y]es.” After further colloquy, which confirmed defendant was pleading guilty to the charges and understood he was giving up his trial rights, the court asked if defendant had spoken with his attorney “about the facts of this case, your plea of guilty, the charge you’re pleading guilty to, your waiver of right to appeal, the possible sentence that could be imposed upon you, any legal defenses you have to the charges . . . .” (Emphasis added.) Defendant replied in the affirmative.

The court’s “fleeting references” to the right to appeal at the plea hearing, bundled with the postplea conditions imposed by the court and its questions regarding defendant’s discussions with counsel about all matters of importance to the case, were inadequate to ensure a reviewing court that “defendant comprehended the nature of the waiver of appellate rights” (see Lopez, 6 NY3d at 256; Bradshaw, 18 NY3d at 261 [the court “made fleeting references to defendant’s appeal waiver”]).

Nevertheless, the People argue that defendant’s waiver is knowing, intelligent, and voluntary because the court explained defendant’s right to appeal during the sentencing procedure. According to the record, at the sentencing hearing held a month after defendant pleaded guilty, after pronouncing sentence the court directed the court clerk to read defendant his right to appeal, and defendant signed a written waiver. Only then did the court proceed to explain defendant’s appellate rights and inquire as to whether he understood those rights. Contrary to the People’s position, under our law, a postplea colloquy at a sentencing hearing, conducted after defendant has considered the options presented and chosen to plead guilty based on an understanding of the avenues available to the defendant, cannot serve as record basis for establishing the validity of the waiver of the right to appeal.

“It is the trial court’s responsibility, ‘in the first instance,’ to determine ‘whether a particular [appellate] waiver satisfies these requirements’ ” (Bradshaw, 18 NY3d at 264, quoting People v Callahan, 80 NY2d 273, 280 [1992]). In order for a trial court’s inquiry to be meaningful, by logic and reason, it must be part of the colloquy in which a court engages prior to accepting a defendant’s plea {id. at 265). It would make little sense, and serve only to encourage the filing of a motion to vacate the plea on the ground that defendant did not appreciate the consequences of the waiver, if a court confirmed, after the fact, whether the defendant understood the nature of the rights relinquished. Thus, a court complies with its obligation to ensure that the waiver is knowing, intelligent, and voluntary when a court adequately explains to defendant the “separate and distinct” right to appeal {Lopez, 6 NY3d at 256), and “at least prior to the completion of the plea proceeding, [the court] . . . assure [s] itself that defendant adequately understood the right that [defendant] was forgoing” {Bradshaw, 18 NY3d at 265). Here, the court’s explanation at sentencing came too late to satisfy the court’s obligations. While the content of the court’s advisement was correct, its timing deprived defendant of the right to know and consider all the terms of the plea bargain prior to his decision to plead guilty.

Notably, the Appellate Division, Second Department, in a recent line of cases has held invalidé waivers made during this same type of sentencing proceeding {People v Gil, 109 AD3d 484, 484 [2d Dept 2013] [court did not explain the right to appeal “until the date the defendant was sentenced, more than a month after the defendant pleaded guilty, and only after the sentence was actually pronounced”]; People v Finnegan, 112 AD3d 847 [2d Dept 2013] [same]; see also People v Ingram, 118 AD3d 722 [2d Dept 2014] [the People conceded that the defendant’s waiver of right to appeal was invalid], citing Finnegan, 112 AD3d 847, and Gil, 109 AD3d 484; People v Crosby, 131 AD3d 1179 [2d Dept 2015] [waiver invalid, and reviewed, on the merits, defendant’s excessive sentence claim], citing Finnegan, 112 AD3d 847, and Gil, 109 AD3d 484; People v Dunbar, 134 AD3d 851 [2d Dept 2015] [waiver invalid], citing Finnegan, 112 AD3d 847, and Gil, 109 AD3d 484). That conclusion is a correct application of our case law. However, to the extent the Appellate Division’s determination that defendant’s waiver was valid may be based, not on the record made at the sentencing hearing, but on the plea proceeding colloquy, the court’s conclusion was incorrect for the reasons I have stated.

Although the waiver was invalid, defendant’s sole claim raised on appeal to this Court is, for the reasons stated by the majority, unpreserved. Therefore, the Appellate Division should be affirmed.

Judges Pigott, Abdus-Salaam, Stein and Fahey concur; Judge Rivera concurs in result in a separate concurring opinion; Chief Judge DiFiore and Judge Garcia taking no part. Order affirmed, in a memorandum.