# Board of Education v. Christa Construction, Inc.

> New York Court of Appeals · January 14, 1993 · 80 N.Y.2d 1033

URL: https://www.frixlaw.com/law-library/cases/5540545

## Case

- **Full name:** Board of Education of Bloomfield Central School District v. Christa Construction, Inc.
- **Court:** New York Court of Appeals
- **Decided:** January 14, 1993
- **Citations:** 80 N.Y.2d 1033; 593 N.Y.S.2d 179; 608 N.E.2d 756; 1993 N.Y. LEXIS 3137
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

Motion, treated as a motion for clarification of this Court’s memorandum and for amendment of this Court’s remittitur, granted. This Court’s November 18, 1992 memorandum is amended by deleting the first paragraph thereof and substituting in its stead the following: "The order of the Appellate Division should be reversed, with costs, and the order of Supreme Court, insofar as it granted appellant Christa Construction, Inc.’s motion to compel arbitration, reinstated.” Return of remittitur requested and, when returned, it will be amended to read as follows:
"Order reversed, with costs, and order of Supreme Court, Ontario County, insofar as it granted appellant Christa Construction, Inc.’s motion to compel arbitration, reinstated in a memorandum.
"Acting Chief Judge Simons and Judges Kaye, Titone, Bellacosa and Smith concur; Judge Hancock, Jr., taking no part.”
Inasmuch as only Christa Construction, Inc. moved for leave to appeal and we granted that motion, and inasmuch as Christa is the only party appellant in the Court of Appeals, we can and and did grant affirmative relief on this record and in this procedural setting only to that party.
Concur: Acting Chief Judge Simons and Judges Kaye, Titone, Bellacosa and Smith. Taking no part: Judge Hancock, Jr.
*1035 DIGEST-INDEX [See separate Table of Statutes and Rules Construed] ACTIONS. See Dismissal and Nonsuit, and other specific titles. ADMINISTRATIVE LAW. Judicial Review. 1. Substantial Evidence Test — Propriety Where Procedural Noncompliance by Administrative Body Amounts to Abuse of Discretion or Authority. — In a CPLR article 78 proceeding challenging a determination of respondent Board of Education dismissing petitioner teacher from her tenured teaching position for insubordination wherein the Court of Appeals concluded that respondent violated the mandatory provisions of Education Law § 3020-a (3) (b) and (c) by paying compensation beyond that authorized by statute to a member of the hearing panel that considered petitioner’s case, respondent’s contention that the Court should nonetheless affirm the hearing panel’s determinations if they are supported by substantial evidence in the record is rejected. Where the procedural noncompliance by an administrative body rises to the level of an abuse of discretion or authority, as it does here, the noncompliance alone is sufficient to warrant granting a new hearing. To employ a substantial evidence test here would be to give validity to a record clouded by the unlawful act of the Board and to leave petitioner with an inadequate remedy. Matter of Syquia v Board of Educ., 80 NY2d 531 . ADOPTION. Notice to Putative Father. 1. Consent — Unwed Father Who is Unaware of Child’s Conception or Birth — Due Process. — Petitioner, an unwed father, who was unaware of the pregnancy or the birth of his child until nearly 18 months after the child’s birth, was neither entitled to notice nor was his consent to the adoption of his child required where he failed to take any steps to discover the pregnancy or the birth of the child before first asserting his parental interest 10 months after the adoption became final (see, Domestic Relations Law § 111-a [2]; § 111 [1] [e]). In determining whether an unwed father has created a liberty interest, the timing of the father’s actions is the most significant element. The biological father must promptly manifest his parental interest through action on his part; absent that, the biological link of the father is insufficient to create a constitutionally protected interest. Here, petitioner’s inaction was solely attributable to him and under the circumstances he is not entitled to the protections of constitutional due process. Matter of Robert O. v Russell K., 80 NY2d 254 . 2. Consent — Unwed Father Who is Unaware of Conception or Birth of Child — Equal Protection. — Petitioner, an unwed father, who was unaware of the pregnancy or birth of his child until 10 months after the child’s adoption became final was not denied equal protection because the applicable statutes (Domestic Relations Law § 111-a [2]; § 111 [1] [e]) did not require notice to one in his position or require his consent to the adoption. The Equal Protection Clause does not preclude the State from withholding the privilege of vetoing an adoption from an unwed father who has never come forward to participate in the rearing of his 1035
*1036 1036 80 NEW YORK REPORTS, 2d SERIES ADOPTION — Cont’d child. That "unknowing” unwed fathers may be treated differently under the statute than other unwed fathers is not dispositive. The equal protection inquiry focuses on whether the statute’s relation to the State interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment, and petitioner has not met the burden of showing a lack of rationality in either the notice or the consent provisions of New York law. Matter of Robert O. v Russell K., 80 NY2d 254 . AGENCY. See Brokers. APPEAL. See, also, Crimes, and other specific titles. Academic and Moot Questions. 1. Temporary Injunctive Relief — Resolution of Summary Judgment Motion.— In a special proceeding by the Attorney-General to enjoin a corporation operating a health club from entering into any new contracts with consumers until it had complied with the security requirements of General Business Law § 622-a and to impose substantial fines and costs, the arguments of respondents, an individual and a related corporation, that they were denied due process by the grant of temporary injunctive relief freezing their bank accounts pending trial and directing them to file a bond, and that they were improperly joined in the court’s order notwithstanding an absence of evidence showing that they exercised control over or acted as agents for the now defunct health club, are not rendered moot by Supreme Court’s decision, issued while the instant appeal was under advisement, granting the Attorney-General’s motion for summary judgment against the health club, since that motion resolved only the issue of liability, and because the issue of damages persists, as does the issue of liability with respect to the related corporate defendant, the order freezing bank accounts and requiring the filing of the bond continues to ensure availability of funds while the remaining issues are resolved. Therefore, the propriety of issuing that order remains an issue meriting appellate review. People v Health & Sports Clubs, 80 NY2d 803 . Court of Appeals. 2. Matters Reviewable — Improper Summation Comments. — To the extent that Reehil v Fraas ( 197 NY 64 ) states that exceptions to improper summation comments raise no question of law reviewable by the Court of Appeals, it is no longer to be followed. DiMichel v South Buffalo Ry. Co., 80 NY2d 184 . 3. Consideration of Matters Outside Record — Child Custody Proceeding. — In a proceeding pursuant to Social Services Law §392 involving a determination of custody of a child voluntarily placed in foster care and not freed for adoption, where the Appellate Division applied an erroneous "best interest” test, the Court of Appeals, in reversing the Appellate Division’s award of legal custody to the foster parents, will take notice of new facts and allegations outside the record to the extent they indicate that the record before the Court of Appeals is no longer sufficient for determining appellant father’s fitness and right to custody, and remit to Family Court for a new hearing and determination of those issues. Appellant’s request that the Court of Appeals ignore the new developments and simply grant appellant custody, because matters outside the record cannot be considered by an appellate court, would exalt the procedural rule to a point of absurdity and reflect no credit on the judicial process. Changed circumstances may have particular significance in child custody matters. Matter of Michael B., 80 NY2d 299 . 4. Matters Reviewable — Latent Defect in Juvenile Delinquency Petition. — In a juvenile delinquency proceeding, respondent’s argument, raised for the first time on his appeal to the Appellate Division from the dispositional order, that the capacity of the 10-year-old complainant to sign the supporting deposition under oath had not been properly established through a voir dire conducted before her signature was affixed, cannot be reviewed by the Court of Appeals. Inasmuch as
*1037 DIGEST-INDEX, 80 NY2d 1037 APPEAL — Cont’d the claimed defect was not apparent from the face of the accusatory instrument, it was not the kind of nonwaivable "jurisdictional flaw” that the Court of Appeals may consider even in the absence of a timely objection. Matter of Edward B., 80 NY2d 458 . 5. Matters Reviewable — Latent Defect in Juvenile Delinquency Petition. — In a juvenile delinquency proceeding, respondent’s claim on his appeal from the Appellate Division order affirming Family Court’s dispositional order that the supporting deposition was legally inadequate because the complainant was not made aware of its precise contents before she signed it, has not been waived and is properly before the Court of Appeals notwithstanding that respondent’s contention concerns a latent rather than a facial defect since the claim was the subject of a motion to dismiss. Matter of Edward B., 80 NY2d 458 . Finality of Judgments and Orders. 6. Order Granting Motion to Disqualify Counsel. — An order granting or denying a motion to disqualify counsel is nonfinal since it merely administers the course of litigation. Accordingly, to the extent an appeal to the Court of Appeals seeks review of so much of an order of the Appellate Division as reversed an order of the Surrogate’s Court granting objectant’s motion to disqualify the proponent’s counsel, it is dismissed. Matter of Henderson, 80 NY2d 388 . Grant of Relief to Nonappealing Party. 7. In two personal injury actions in which the Appellate Division held that defendants had to turn over to plaintiffs only those surveillance tapes that they intended to use at trial, the Court of Appeals cannot consider, on defendants’ appeals from the respective Appellate Division orders, plaintiffs’ arguments that they are entitled to view every surveillance film that defendants may have taken, regardless of whether defendants intend to use the films at trial, since any broadening of the scope of discovery authorized by the Appellate Division would, in effect, grant affirmative relief to plaintiffs, who are not appellants here. DiMichel v South Buffalo Ry. Co., 80 NY2d 184 . Matters Reviewable. See Infants, 6. ARBITRATION. Stay of Arbitration. 1. Potential Public Policy Violation. — A controversy over petitioner’s right to receive supplemental payments upon his withdrawal from respondent law firm should be decided by an arbitrator in the first instance in light of the broad arbitration clause in the parties’ partnership agreement and the existence of factual disputes between the parties, including which amendment of the agreement applies and whether the supplemental payments were intended to constitute approximation of the withdrawing partner’s share of undistributed earned income. Petitioner’s claim that an arbitrator’s award denying him benefits would be contrary to public policy is insufficient to preemptively stay arbitration and may be addressed subsequently on a motion to vacate or confirm the award, if such an award is in fact made. Hackett v Milbank, Tweed, Hadley & McCloy, 80 NY2d 870 . 2. Contractual Dispute between School District and Contractors — Public Policy. — In litigation arising out of a contract between a construction company and a board of education, Supreme Court properly ordered the parties to arbitrate their differences, notwithstanding the assertion of the school district that the contract is void because the board’s agreement with respect to change orders, if enforced through an arbitration, would result in an expenditure by the board in excess of amounts lawfully appropriated (see, Education Law § 1718 [1]), since arbitration is a favored method of dispute resolution in New York, and New York courts should interfere as little as possible with the freedom of consenting parties to submit disputes to arbitration. While arbitration may be challenged on public policy grounds, that is a limited exception which is not applicable here. Board of Edue. v Christa Constr., 80 NY2d 1031 .
*1038 1038 80 NEW YORK REPORTS, 2d SERIES ATTORNEY AND CLIENT. Disciplinary Proceedings. 1. Fitness to Practice Law — Acts Committed while Attorney Mentally 111.— Respondent attorney was properly found to be unfit to practice law and disbarred for violating DR 1-102 (A) (6) (now DR 1-102 [A] [7] [22 NYCRR 1200.3 (a) (7)]), which prohibits a lawyer from engaging in "conduct that adversely reflects on [the lawyer’s] fitness to practice law”, on the basis of his commission of four homicides, notwithstanding that he was found not guilty of the killings by reason of mental disease or defect. That respondent was not criminally culpable for the four killings is not controlling. The primary purpose of an attorney disciplinary proceeding is the protection of the public in its reliance on the integrity and responsibility of the legal profession. Thus, the inquiry is not directed to the attorney’s subjective mental processes, but to the objectives and qualitative nature of the conduct, for it is the acts themselves which the public sees and which guide its perception of the Bar. Although respondent was not criminally responsible for his acts, they tended to undermine public confidence in the Bar and, as such, they properly provided a basis for disciplinary action. Matter of Rowe, 80 NY2d 336 . ' 2. Holding Oneself Out as Attorney in Violation of Suspension Order — Use of Letters "J.D.”. — In an attorney disciplinary proceeding, in determining whether an individual held himself out as an attorney in violation of an Appellate Division order of suspension, the individual’s use of the letters "J.D.” following his name identified that person as one who has successfully completed a law school curriculum, not as a member of the Bar licensed to practice law. Matter of Rowe, 80 NY2d 336 . 3. Practice of Law — Publication of Law-Related Article by Suspended Attorney. — Respondent attorney did not violate the provision of an Appellate Division order of suspension, which directed respondent to desist and refrain "from practicing law in any form”, by publishing a law-related article during his suspension. The practice of law involves the rendering of legal advice and opinions directed to particular clients. Inasmuch as respondent’s article neither rendered advice to a particular person nor was intended to respond to known needs and circumstances of a larger group, its publication did not constitute the practice of law. Matter of Rowe, 80 NY2d 336 . 4. Publication of Law-Related Article by Suspended Attorney — Freedom of Speech. — An Appellate Division order of suspension, which, in part, prohibited respondent attorney "from giving to another an opinion as to the law or its application or any advice in relation thereto”, violated respondent’s constitutional right to speak freely insofar as it was applied to discipline respondent for publishing a law-related article during his suspension that "offered advice to readers on the significance and effect of court decisions concerning the legal rights of psychiatric patients who refuse treatment”. The courts may, in the public interest, prohibit attorneys from practicing law and that prohibition may incidentally affect the attorney’s constitutional right to free speech by forbidding the giving of advice to clients. Where the individual is not practicing law, however, and does not purport to be exercising judgment on behalf of any particular individual, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech, and impermissibly interferes with that individual’s First Amendment rights. Here, since publication of the article did not constitute the practice of law, and respondent was exercising his right to free speech by publishing his article, application of the Appellate Division order to discipline respondent for publishing the article violated respondent’s constitutional right to free speech. Matter of Rowe, 80 NY2d 336 . ATTORNEY-GENERAL. Enjoining Deceptive Practices. 1. Consumer Fraud — Liability of Individual Corporate Director. — In a special proceeding by the Attorney-General to enjoin a corporation operating a health
*1039 DIGEST-INDEX, 80 NY2d 1039 ATTORNEY-GENERAL — Cont’d club from entering into any new contracts with consumers until it had complied with the security requirements of General Business Law § 622-a and to impose substantial fines and costs, there is no merit to the contention of an individual respondent and another corporate respondent that the trial court was without a basis to freeze their bank accounts or impose a bond requirement on them because the health club was a completely separate and distinct corporation which was not controlled by them, since Executive Law § 63 (12) authorizes the Attorney-General to prosecute "any person” who engages in repeated fraudulent or illegal acts, with "fraud” broadly defined, and not only is it sufficiently likely to be shown at trial that the individual respondent, as the 50% owner and eventual sole director of the health club, against which abundant evidence of fraud and persistent illegality exists, had actual knowledge of the club’s fraudulent activities, but there is also evidence that it was the individual respondent himself who decided to operate the club without complying with section 622-a. Accordingly, the individual respondent may be liable for any money owed to club members and any civil fines owed the State. People v Health & Sports Clubs, 80 NY2d 803 . 2. Consumer Fraud — Liability of Related Corporation. — In a special proceeding by the Attorney-General to enjoin a corporation operating a health club from entering into any new contracts with consumers until it had complied with the security requirements of General Business Law § 622-a and to impose substantial fines and costs, there is no merit to the contention of another corporate respondent that the trial court was without a basis to freeze its bank accounts or impose a bond requirement on it because the health club was a completely separate and distinct corporation, since there was a sufficient showing that the two corporations were not separate and distinct entities. The other corporation had the same two shareholders as did the health club, and it owned and operated the buildings in which the health club operated. Moreover, there was evidence that during negotiations with the Attorney-General, representations were made that the health club should be given a waiver from compliance with the statute because it was owned by the other corporate respondent, which had substantial assets and would stand behind the club’s debts. Additionally, there was other evidence of affinity between the corporations and, thus, there was a substantial likelihood that the Attorney-General could prove that the corporations were interlocking and acted in concert, thereby subjecting the other corporation to liability for the fraudulent and illegal activities pursued by the health club. People v Health & Sports Clubs, 80 NY2d 803 . 3. Due Process — Freezing Bank Accounts — Filing Bond. — In a special proceeding by the Attorney-General to enjoin a corporation operating a health club from entering into any new contracts with consumers until it had complied with the security requirements of General Business Law § 622-a and to impose substantial fines and costs, an individual and a related corporation, also named as respondents, were not denied due process by the granting of temporary injunctive relief freezing their bank accounts pending trial and directing them to file a bond, since the instant dispute had proceeded for some months, the present litigation came as no surprise to them, prior negotiations with the Attorney-General clearly apprised respondents of the underlying facts, as did the petition, and afforded them ample opportunity to raise opposing contentions on the merits, and respondents restated those contentions in their answering petitions and at oral argument. Accordingly, the procedure was constitutionally sufficient and there was adequate support in the record to warrant the temporary relief awarded by the trial court. People v Health & Sports Clubs, 80 NY2d 803 . BROKERS. Real Estate Brokers. 1. Responsibility of Corporate Broker for Violations by Salespersons — "Actual Knowledge” of Salespersons Not to be Imputed to Corporate Broker. — Knowledge possessed by sales employees of a corporate real estate broker is not by itself sufficient to satisfy the statutory ingredient of "actual knowledge” that must be chargeable against a broker under Real Property Law § 442-c for revocation or
*1040 1040 80 NEW YORK REPORTS, 2d SERIES BROKERS — Cont’d suspension of license purposes. The purposes and limitations of the relevant statute can best be effectuated and harmonized by allowing a corporate broker to be charged with "actual knowledge” only when its principals, i.e., representative brokers, directors or officers have actual knowledge of the pertinent violation or misrepresentation. Accordingly, respondent New York State Department of State’s suspension of petitioner corporate broker’s license for acts and knowledge of only its salesperson employees is not authorized and that determination was correctly annulled by the Appellate Division; however, since the absence of "actual knowledge” does not insulate real estate brokers from disciplinary measures less severe than license suspension or revocation for misconduct, a remand for consideration of an appropriate lesser sanction, if any, based on demonstrated untrustworthiness or incompetency, is necessary. Matter of Roberts Real Estate v New York State Dept, of State, Div. of Licensing Seros., 80 NY2d 116 . CITIES. See Municipal Corporations. CIVIL RIGHTS. Discrimination in Employment. 1. Availability of Punitive Damages in Court Action. — A person aggrieved by a discriminatory practice in violation of the Human Rights Law may not recover punitive damages in a court action brought pursuant to Executive Law § 297 (9). Nothing in the statute indicates that the Legislature, in making legal remedies available in a judicial proceeding, contemplated that the courts would grant relief for a purpose other than alleviating or rectifying the harm done to the person aggrieved by the discrimination. In administrative proceedings before the State Division of Human Rights, the purpose of the permissible remedies is solely to right the wrong done to the aggrieved person, not to punish the wrongdoer. That the Legislature has consistently been concerned with rectifying the wrong to the injured party caused by the discriminatory practice — not punishing the transgressor — is borne out by the relevant history of the Human Rights Law from the time of its original enactment in 1951. Moreover, the logical inference from the Legislature’s action in amending the Human Rights Law to expressly permit punitive damages in housing cases is that such damages were not then recoverable for discrimination in other areas including employment. Thoreson o Penthouse Inti., 80 NY2d 490 . CIVIL SERVICE. See, also, Municipal Corporations; Schools, and other specific titles. Appointment and Promotion. 1. County Deputy Sheriffs/Correction Officers. — County Law § 652-a, which permits the Sheriff in certain counties to continue "the appointment and promotion of deputy sheriffs” and which was adopted in response to an amendment to the State Constitution eliminating the basis for exempting certain employees of the Sheriff from the Civil Service Law, was designed to provide time during which a fair and orderly means of dealing with the many issues raised by the constitutional amendment are addressed and resolved, and was intended to maintain the status quo in order to prevent any disruption in either the law enforcement or corrections services provided by the Sheriff. Accordingly, the statute authorized a Sheriff to make appointments to fill staff vacancies at the county jail, and respondent personnel officer erred in declaring the appointments of petitioners invalid because they were nominally for the position of correction officer instead of Deputy Sheriff, since it is clear from the legislative history that the Legislature did not use the term "deputy sheriff”, or intend it to be used, in a narrow, technical way. Matter of Orlopp o Stirpe, 80 NY2d 946 . Classification. 2. Exempt or Competitive Class — Impracticability of Competitive Testing. — In a proceeding challenging the designation of 40 Municipal Financial Analyst
*1041 DIGEST-INDEX, 80 NY2d 1041 CIVIL SERVICE — Cont’d positions as exempt, an order of the Appellate Division, which affirmed a judgment granting the petition, should be affirmed, since the Appellate Division properly concluded that the impracticability of competitive testing for the positions in question had not been established; nor did the record disclose any different or additional qualifications which would distinguish Municipal Financial Analysts from auditors placed in the competitive class. Accordingly, there was no rational basis for the wholesale exemption of all Municipal Financial Analysts from civil service competitive examination. Matter of Shafer v Regan, 80 NY2d 1006 . Police. 3. Promotion — Accident Disability Retirement. — In a proceeding to direct respondent municipal officials to retroactively promote petitioner patrolman, who had retired on an accident disability pension, to the rank of sergeant and to recalculate his retirement allowance on the basis of the higher rank, an order of the Appellate Division, which affirmed the dismissal of the petition, is affirmed for the reasons stated in the memorandum thereat, which concluded that Matter of Deas v Levitt ( 73 NY2d 525 ) was controlling and required dismissal of the petition since it was undisputed that before the promotional list expired, petitioner failed to challenge its validity and, thus, he had no right to the relief requested; that it could not be said that respondents acted arbitrarily, capriciously or in bad faith by failing to notify petitioner before his retirement that he had passed a rescored promotional examination where petitioner was initially told that he had failed the examination, which was regraded following a successful, independent court challenge; that no property right is created by the right to appeal an adverse promotional decision (see, NY City Charter § 812 [d]); that petitioner was not entitled to relief pursuant to Civil Service Law § 50 (4) or § 52 (2); that selection for a Police Academy orientation course is not the legal equivalent of the promulgation of an official promotional list; that no one was promoted from the revised eligible list until after petitioner’s medical retirement; that there was nothing to indicate that any person had ever been promoted after approval of a medical retirement, and that respondents did not act arbitrarily, capriciously or in bad faith. Matter ofHasenstab v McGuire, 80 NY2d 812 . 4. Line-of-Duty Injury — Negligence of Injured Officer. — In a proceeding to review a determination of respondents denying petitioner police officer a line-of-duty designation for a back injury, thereby disqualifying petitioner from receiving payment of her hospital bills pursuant to Administrative Code of the City of New York § 12-127 (b), which authorizes the City to pay hospital bills of its uniformed forces who, while on duty, sustain injury through no "fault or misconduct” on their part, respondents properly interpreted the "fault or misconduct” standard to include negligence, thereby prohibiting payment of petitioner’s hospital expenses, which were occasioned by petitioner’s slip in a puddle of water in a precinct bathroom. Although petitioner contends that the statutory standard refers to gross negligence or acts that would result in the denial of benefits under the Workers’ Compensation Law, her reliance is misplaced since the Workers’ Compensation Law provides benefits "without regard to fault as a cause of the injury” (Workers’ Compensation Law § 10 [1]), and construing "fault” as equivalent to "gross negligence” is unsupported by either the plain meaning of “fault” or the legislative history. Moreover, respondents’ interpretation is reasonable in this instance. Matter ofHeintz v Brown, 80 NY2d 998 . 5. Line-of-Duty Injury — Slipping on Wet Bathroom Floor. — In a proceeding to review a determination of respondents denying petitioner police officer a line-of-duty designation for a back injury she sustained when she slipped on a wet bathroom floor in the precinct, thereby disqualifying petitioner from receiving payment of her hospital bills pursuant to Administrative Code of the City of New York § 12-127 (b), which does not authorize such payment if an officer’s injury resulted from his or her "fault or misconduct”, respondents’ determination was neither arbitrary, capricious, nor an abuse of discretion, since respondents met their burden of showing that petitioner was negligent. That petitioner failed to
*1042 1042 80 NEW YORK REPORTS, 2d SERIES CIVIL SERVICE — Cont’d avoid an obvious hazard is supported by her own statement that the water was a puddle in front of a sink; moreover, petitioner’s failure to allege any facts tending to show that her injuries were not due to any fault or misconduct on her part leaves the finding of negligence unrebutted. In addition, petitioner’s request was subjected to five levels of internal review via an informal grievance process, and at no time during that process did petitioner supplement her claim with information establishing that she was not negligent. Accordingly, there was a rational basis for respondents’ determination. Matter ofHeintz v Brown, 80 NY2d 998 . Retirement and Pension Benefits. See Civil Service, 3. CONSTITUTIONAL LAW. Constitutionality of Senate Redistricting Plan. See Legislature, 1, 2. Due Process of Law. See Adoption, 1; Attorney-General, 3; Crimes, 55; Social Services, 3; Taxation, 5. Duties of State Comptroller. See Counties, 1. Equal Protection of Laws. See, also, Adoption, 2; Social Services, 3; Taxation, 6. 1. Rational Basis Test. — The rational basis test is the appropriate standard of review for a challenge under the Equal Protection and Due Process Clauses of the Federal and State Constitutions to Social Services Law § 131-c (2), which requires that a portion of the income of a grandparent who resides in the same dwelling unit as an infant grandchild and minor parent under the age of 18, be deemed available to the infant in determining the infant’s eligibility for Home Relief payments, since the statute involves economic and social welfare concerns, presenting no distinctions based on race, disability or other suspect classification. Lovelace v Gross, 80 NY2d 419 . Freedom of Speech. See Attorney and Client, 4; Libel and Slander, 1-4. Obligation of State to Aid Needy. See Social Services, 4. Privileges and Immunities Clause. See Taxation, 6. CONTRACTS. See, also, Arbitration; Brokers; Insurance; Municipal Corporations; Vendor and Purchaser, and other specific titles. Illegal Contracts. 1. Enforceability of Loan Agreement That Violates Small Business Administration Regulations. — A loan agreement that violated Federal Small Business Administration (SBA) regulations by charging an excessive rate of interest and requiring a commitment fee is enforceable under New York law, since the violation was not malum, in se but was merely malum prohibitum due to Federal law, which does not provide for borrowers to interpose illegality as a defense to repayment of their loans, and the SBA’s regulatory sanctions, reinforced by the potential civil liability where State law is also violated, complementarily and proportionately protect the public policy underlying the Federal Small Business Investment Act. Nothing in the Federal law compels a different result. Further, permitting plaintiff to seek repayment of the debt does not command illegal conduct; the SBA scheme does not provide that a loan in violation of its regulations is void ab initia, and the terms being enforced fall within the allowable parameters of Federal law. Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124 . COUNTIES. See, also, Municipal Corporations. Entitlement to STOP-DWI Funds. 1. Constitutional Duties of State Comptroller. — A provision in the 1990-1991 State Operations Budget, which directed the State Comptroller to collect and
*1043 DIGEST-INDEX, 80 NY2d 1043 COUNTIES — Cont’d withhold a maximum of 2% of the revenues received in any court by counties participating in the special traffic options program for driving while intoxicated (STOP-DWI) in order to defray the costs incurred by the State Department of Motor Vehicles relating to STOP-DWI, violates NY Constitution, article V, § 1 since it assigns to the Comptroller duties not incidental to his constitutional duties and grants him overbroad discretion to effect the reduction in the counties’ share of STOP-DWI revenues. Although plaintiff counties concede that the Legislature, which has ultimate authority over the disposition of fines collected in the State, may reduce or even eliminate their share of the STOP-DWI revenues, the instant challenge concerns the methodology by which the Legislature accomplished the "up to” 2% reduction, and in that regard, the Supreme Court and Appellate Division correctly concluded that the provision in question did not merely direct the Comptroller to allocate funds between the State and localities, but invested him with extraconstitutional administrative duties which had no nexus with any auditing or other constitutionally designated function of the office of State Comptroller. County of Rensselaer v Regan, 80 NY2d 988 . COURTS. Jurisdiction. See Crimes, 15. CRIMES. See, also, Evidence; Grand Jury; Infants (Juvenile Delinquents); Motor Vehicles, and other specific titles. Alibi. 1. Rebuttal Evidence. — In a robbery prosecution, the trial court did not err in permitting the People to rebut alibi witnesses’ testimony that they had promptly reported defendant’s alibi to police by calling the police officer to testify that such statements were never made, since the rule prohibiting the use of extrinsic evidence to impeach a witness on a matter that is merely collateral has no application where the issue to which the evidence relates is material in the sense that it is relevant to the very issues that the jury must decide. The extrinsic evidence herein was used to challenge the validity of the alibi, a material issue in the case, and was, therefore, not limited to collateral significance. Moreover, it makes no difference that the testimony to be impeached was elicited by the prosecutor rather than the defense, since, regardless of who elicited the evidence, the subject of that testimony was directly pertinent to the truthfulness of defendant’s alibi and, consequently, was relevant to a "material” issue. People v Knight, 80 NY2d 845 . Appeal. See, also, Crimes, 23, 73, 82, 83. 2. Court of Appeals — Affirmative Relief Unavailable to Nonappealing Party.— On defendant’s appeal to the Court of Appeals from an order of the Appellate Division, which reversed County Court’s order granting a motion by defendant to suppress certain physical evidence seized pursuant to a search warrant that was supported in part by information from a confidential informant, after the People were unable to produce the informant for an in camera Darden hearing, the Court of Appeals is unable to consider the People’s argument that the hearing court should not have ordered a Darden examination in the first instance since, if the Court of Appeals were to hold that the hearing Judge abused his discretion in ordering the examination, it would in essence be affording affirmative relief to a nonappealing party, which the Court of Appeals is not empowered to do. To the extent that People v Johnson ( 39 NY2d 364 ) suggests that CPL 470.35 (2) (b) gives the Court of Appeals power to grant affirmative relief to a nonappealing party, it is overruled. People v Carpenito, 80 NY2d 65 . 3. Trial Court Order Suppressing Evidence — Further Prosecution Not Barred under CPL 450.50 (2) When People Withdraw Appeal with Permission of Appellate Court. — CPL 450.50 (2), which provides that the taking of an appeal by the People pursuant to CPL 450.20 (8) from a trial court order suppressing evidence constitutes a bar to the prosecution of the accusatory instrument unless and until
*1044 1044 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d the suppression order is reversed upon appeal and vacated, does not operate to bar further prosecution of an indictment unless and until the underlying People’s appeal actually culminates in an affirmance. Thus, the People’s CPL 450.50 (1) statement that the order to be appealed has rendered their case either "insufficient as a matter of law” or "so weak in its entirety that any reasonable possibility of prosecuting * * * has been effectively destroyed”, which the People are required to file by CPL 450.20 (8) when they take such an appeal, is not binding on the People so as to foreclose prosecution after the People’s appeal has been withdrawn with the permission of the appellate court. An appeal that has been "withdrawn” with the permission of the court is a nullity. Consequently, a withdrawn appeal is not an appeal that has been "taken” within the meaning of CPL 450.50 (2) and the bar to further prosecution contemplated by that statute is not applicable. Further, if the appellate court has authorized the withdrawal of an appeal, the accompanying CPL 450.50 (1) statement is necessarily withdrawn along with it and, in consequence, it is of no further legal significance. People v McIntosh, 80 NY2d 87 . 4. Power of Court of Appeals to Review Legality of Corrective Action Directed by Appellate Division upon Reversal of Conviction. — The Court of Appeals does not have power under CPL 450.90 (2) (b) to review on defendant’s appeal the legality of the corrective action ordered by the Appellate Division in connection with its reversal of defendant’s conviction of one count of criminal possession of a weapon in the third degree. Although CPL 450.90 (2) (b) authorizes an appeal to be taken from an Appellate Division order reversing or modifying a judgment or order of a criminal court if the "appeal is based upon a contention that corrective action * * * taken or directed by the intermediate appellate court was illegal”, subdivision (2) must be read in conjunction with CPL 450.90 (1), which requires first that the order appealed from be adverse or partially adverse to the party appealing, and defendant was not adversely affected by the Appellate Division order reversing his judgment of conviction. People v Jackson, 80 NY2d 112 . 5. Relief Available upon Finding That Trial Court Improperly Entertained Oral Suppression Motion. — Where the Appellate Division correctly concluded that defendant’s oral motion to suppress should not have been entertained, the proper relief would have been for the Appellate Division to reverse the order of suppression and remit for further proceedings, including a new motion to suppress if appropriate, rather than to consider and dispose of the suppression motion on the merits. Since the motion was not made in accordance with the dictates of CPL article 710, it was, in effect, a nullity, and the Appellate Division should have treated the motion as if it had never been made in determining the proper relief on appeal. People v Mezon, 80 NY2d 155 . 6. Court of Appeals — Fact Finding. — Where the trial court and the Appellate Division held the entire 90-day period of delay between the dismissal of an indictment and the People’s obtaining a new indictment to be unreasonable, the Court of Appeals will not consider the People’s request to exclude at least some of that period as a "reasonable time” for motion practice, since any effort by the Court of Appeals to define a lesser "reasonable” period for motion practice would require the Court to engage in fact finding, which is outside the scope of its powers. People v Cortes, 80 NY2d 201 . 7. Matters Appealable — Bargained-For Waiver of Right to Appeal — Disposition. — A bargained-for waiver of the right to appeal does not affect the appealability of a judgment that is otherwise appealable under CPL 450.10 (1) and does not operate to deprive the appellate court of its jurisdiction of the appeal. Instead, it merely forecloses appellate review of all claims that might be raised on appeal, except those categories of claims that survive such waivers under case law. Accordingly, the proper disposition in appeals where there is no claim that the waiver was constitutionally defective and no public policy impediment to enforcing the waiver, is an affirmance predicated on the absence of any reviewable issues that have not been superseded by the waiver. Additionally, in cases where there has been a bargained-for waiver of the right to appeal and the intermediate appellate court determines that the judgment of conviction should be affirmed, it
*1045 DIGEST-INDEX, 80 NY2d 1045 CRIMES — Cont’d would be helpful if the intermediate appellate court would specify whether its disposition is based on the existence of an enforceable waiver or instead on the merits of the defendant’s appellate claims, so as to facilitate further appellate review and minimize unnecessary remittals. People v Callahan, 80 NY2d 273 . 8. Validity of Waiver of Right to Appeal as Part of Negotiated Sentence or Plea Bargain — Appellate Challenge to Sentencing Procedures. — Except where the very power of the court is implicated, appellate challenges to the procedures utilized in determining and imposing sentence may effectively be waived by a voluntarily and intelligently made agreement entered in connection with a sentence or plea bargain. Accordingly, defendant cannot avoid the effect of his waiver of the right to appeal made in connection with his plea bargain where his appellate claim is addressed merely to the adequacy of the procedures the court used to arrive at its sentencing determination, specifically its purported overreliance on the presentencing report’s restitution recommendation and its failure to conduct a special inquiry into defendant’s ability to pay a surcharge. People v Callahan, 80 NY2d 273 . 9. Validity of Waiver of Right to Appeal as Part of Negotiated Sentence or Plea Bargain — Constitutional Speedy Trial Claims. — Because of the societal interest in speedy trials and the implications for the integrity of the criminal justice system, parties cannot foreclose appellate review of a constitutional speedy trial claim through the plea bargaining process. This rule applies without regard to whether the facts in the particular case suggest duress arising from the facts underlying the speedy trial claim itself. People v Callahan, 80 NY2d 273 . 10. Validity of Waiver of Right to Appeal as Part of Negotiated Sentence or Plea Bargain — Voluntary, Knowing and Intelligent Waiver. — Before a waiver of the right to appeal obtained as a condition of a sentence or plea bargain may be enforced, the record must be examined to ensure that the waiver was voluntary, knowing and intelligent. Accordingly, the Appellate Division erred in holding enforceable defendant’s bargained-for waiver of his right to appeal where there was no record discussion between the court and defendant concerning the waiver, there was not even an attempt by the court to ascertain on the record an acknowledgement from defendant that he had, in fact, signed the waiver or that, if he had, he was aware of its contents, and there is nothing on the record to establish that the court was familiar with the circumstances surrounding the execution of a proffered document purporting to embody defendant’s waiver. There is, thus, no assurance that the waiver was executed under constitutionally acceptable circumstances. People v Callahan, 80 NY2d 273 . 11. Retroactivity of Judicial Decision — Application of State Retroactivity Rules Where Decision Involves No Federal Constitutional Principles. — The question of the retroactivity of People v Antommarehi ( 80 NY2d 247 ), which held that the court may not actively solicit answers from a prospective juror which relate to that juror’s bias or hostility in the absence of defendant, is one of State law, since that decision involves no Federal constitutional principles. The basis for the Antommarehi decision is found in CPL 260.20, which provides that a defendant must be personally present during the trial of an indictment and has been construed to extend to the impaneling of the jury. Accordingly, Griffith v Kentucky ( 479 US 314 ), which held that a new constitutional rule is to be applied retroactively to all cases pending on direct review, is not binding on the Court of Appeals in determining the retroactivity of Antommarehi. People v Mitchell, 80 NY2d 519 . 12. Court of Appeals — Grant of Relief to Nonappealing Party — New Trial Sought by Nonappealing Defendant. — Where, on the People’s appeal, the Court of Appeals reinstated defendant’s conviction, that Court is precluded from reviewing defendant’s alternative contentions seeking a new trial, since the relief sought goes beyond mere affirmance of the Appellate Division order appealed from and thus constitutes a request for affirmative relief requiring defendant to obtain leave to appeal, which previously was denied. People v Acosta, 80 NY2d 665 . 13. Matters Reviewable — Remittal by Court of Appeals to Appellate Division — Excessive Sentence Claim Not Previously Considered by Appellate Division.— Where the Court of Appeals reversed an Appellate Division order reversing and
*1046 1046 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d vacating defendant’s conviction, reinstated the conviction and remitted the case to the Appellate Division for consideration of the facts, the Appellate Division should, if it upholds the conviction upon exercise of its factual review power, consider defendant’s excessive sentence claim. Although the Appellate Division rejected defendant’s "other” claims by initially reversing the conviction and vacating the resultant sentence, that court necessarily did not pass on defendant’s argument that his sentence was harsh and excessive. People v Acosta, 80 NY2d 665 . 14. Appeal by People. — An order of the Appellate Division, which, inter alia, dismissed an appeal by the People from a judgment convicting defendant of burglary and resisting arrest, should be affirmed since CPL 450.30 (2), which authorizes the People to appeal from a sentence that is invalid as a matter of law, does not similarly entitle the People to appeal from a conviction, and the People do not allege that defendant’s sentence is an illegal one; rather, their challenge focuses upon the legality of the Trial Judge’s decision to accept defendant’s plea over the prosecutor’s objection. Thus, in the guise of challenging the sentence imposed, the People are essentially attacking the validity of defendant’s underlying conviction, and the statute does not permit them to do so. People v Cosme, 80 NY2d 790 . 15. Jurisdiction of Court of Appeals. — The Court of Appeals has jurisdiction to pass upon a claim that Penal Law § 245.01, exposure of a person, offends the Equal Protection Clauses of the Federal and State Constitutions (see, CPL 470.35 [2] [a]), since appellants’ contention was expressly passed upon by County Court (acting as an appellate court), and its disposition of that claim was a necessary basis for its order of reversal of a City Court order which had dismissed the informations. People v Santorelli, 80 NY2d 875 . 16. Dismissal of Appeal — Execution of Judgment. — An order of the Appellate Division, which denied a motion by defendant for summary reversal of an execution of judgment or for a reconstruction hearing, and dismissed an appeal by defendant from the execution of judgment, is affirmed, where defendant was tried and sentenced in absentia, filed an appeal which was dismissed, and was arrested on a Bench warrant some eight years later, whereupon the judgment of conviction was executed and he began serving his sentence, since the Appellate Division did not err as a matter of law in dismissing the appeal from the execution of judgment to that court. People v Scott, 80 NY2d 888 . 17. Preservation of Issue for Appellate Review — Sentence. — In a robbery prosecution in which defendant was sentenced to four concurrent terms of imprisonment, an order of the Appellate Division, which affirmed defendant’s conviction and sentence, is affirmed. The People’s contention that defendant’s fourth term of imprisonment should have been imposed consecutively to the other three because he was out on bail when he committed the fourth robbery (see, Penal Law § 70.25 [2-b]) was not advanced at a time sufficient to preserve the issue for review in the Court of Appeals. People v Santiago, 80 NY2d 916 . Arrest. 18. Probable Cause — Veracity Prong of Aguilar/Spinelli Test — Corroboration by Verification of Noncriminal Details of Informant’s Information. — The veracity prong of the Aguilar/Spinelli test for the adequacy of probable cause supporting a warrantless arrest based on hearsay information provided by an informant may, in a proper case, be established through corroboration where the police have verified only noncriminal details of activity referred to in the informant’s statement. Thus, to be sufficient corroboration, the independently verified details, although not of themselves criminal in nature, may not be merely peripheral to the reported criminal scheme; they must fit within the informant’s story of the contemplated crime as activities which are significant and essential to carrying it out. Corroboration by such noncriminal details, particularly where known informants have given the tip to authorities on their own initiative, will adequately
*1047 DIGEST-INDEX, 80 NY2d 1047 CRIMES — Cont’d protect the rights of the suspect by guarding against the informant’s guile, gregariousness or gullibility which may cause him to pass on unreliable or even deliberately false information. People v DiFalco, 80 NY2d 693 . 19. Probable Cause — Veracity Prong of Aguilar/Spinelli Test — Corroboration by Verification of Noncriminal Details of Informant’s Information — Possession of Cocaine. — With respect to the warrantless arrest of defendant and the codefendant passenger when police stopped the car defendant was driving and seized cocaine found therein, the veracity component of the Aguilar/Spinelli test for the adequacy of probable cause was satisfied by police corroboration of details of the information provided by an identified informant that were not, if taken separately, suggestive of criminal activity. The informant had told the police that the codefendant was going to Rochester from Batavia to buy drugs, that he had promised to buy drugs for the informant with the $200 "buy money” police had given the informant, and that he had agreed to deliver the drugs at a specified location in Bergen approximately 1 hour and 45 minutes later. The heart of the criminal enterprise was the trip to Rochester where the drugs were to be purchased, as to which the informant gave the police the following details which they verified through personal observation: (1) codefendant would be driving a white Chevrolet Impala; (2) the car would proceed from codefendant’s house to Route 490; (3) codefendant would drive onto Route 490 east toward Rochester; (4) he would return on Route 490 west; and (5) the trip from Batavia to Rochester and back to Bergen where the delivery was to be made would take about 1 hour and 45 minutes. Additional facts observed by the police point to the criminal purpose of the mission: that the informant no longer had the $200 which he stated he had given to codefendant, that codefendant’s car was stopped on the Bergen exit of Route 490 west, and that codefendant had returned on Route 490 west to the Bergen exit soon enough to make the prospective delivery to the informant at the appointed time. Under these circumstances, the police had sufficient independent verification to satisfy the veracity component of Aguilar/ Spinelli. People v DiFalco, 80 NY2d 693 . 20. Wrongful Arrest — Suppression of Incriminating Evidence. — In a gambling prosecution in which defendant was wrongfully arrested outside a room in which illegal gambling was being conducted, defendant’s conviction for various gambling offenses should be reversed and the indictment against him dismissed, where defendant was arrested in the hallway outside the room in question just prior to the execution of a search warrant for said room, and where defendant, upon being led back to the room by the police, picked up a jacket which had been draped over a chair in the room and put it on when he was escorted out of the room by the police, since while the jacket was properly admitted in evidence as the product of the warrant execution, it had no incriminating value against defendant absent evidence connecting defendant to it, and the necessary connecting evidence was supplied by the arresting officer’s testimony concerning defendant’s conduct upon his concededly unlawful arrest and asportation to the room. Accordingly, that testimony should have been suppressed as it resulted, not from the lawful execution of a valid search warrant, but from defendant’s wrongful arrest, and, because that testimony was the only evidence connecting defendant with the jacket which was the only direct link between defendant and the gambling activities, the indictment should have been dismissed. People v Rossi, 80 NY2d 952 . Bail Jumping. See Infants, 4. Bribery. 21. "Agreement or Understanding” That Bribe Will Influence Public Servant’s Conduct. — With respect to a third degree bribery charge under Penal Law § 200.00, the statutory phrase "agreement or understanding” means more than "intent to influence”; rather, the statute disjunctively requires either a mutual "agreement” between the bribe maker and the public servant, or at least a unilateral "understanding”, i.e., a perception or belief, in the mind of the bribe
*1048 1048 80 NEW YORK REPORTS, 2d SERIES CREMES — Cont’d maker that the bribe will influence the public servant’s conduct. People v Tran, 80 NY2d 170 . 22. Sufficiency of Evidence — Proof of Understanding That Bribe Would Influence Public Servant’s Conduct. — A count of bribery in the third degree (Penal Law § 200.00) against defendant, the fire safety director of two hotels with outstanding fire safety violations, must be dismissed on the ground that the People’s evidence is legally insufficient where that evidence established only that when a municipal fire safety inspector told defendant a new violation would be reported, defendant put $310 into the shirt pocket of the inspector, who immediately removed the money and said he could not accept it and that the violation would still be reported, and defendant responded by telling the inspector to keep the money "even if [he] wrote a violation” and "do whatever [he] had to do, but keep [the money]”. To sustain the charge of bribery, the prosecution was required to prove at least an "understanding” in the mind of the bribe maker that the bribe receiver would effectuate the proscribed corruption of public process and was affected to do so by the actus reus of this particular crime. Here, there is no evidence from which any "understanding”, as required by the statute, can be attributed to the defendant. People v Tran, 80 NY2d 170 . Confession. 23. Appeal — Matters Reviewable. — In a drug prosecution in which defendant asserts that certain statements he made to the police should have been suppressed, an order of the Appellate Division, which affirmed defendant’s conviction for criminal possession of a controlled substance in the second degree, is affirmed since the determination that a defendant validly waived the constitutional right to remain silent resolves a mixed question of law and fact, and is not subject to further review in the Court of Appeals where, as here, it is supported by evidence in the record. People v Nunez, 80 NY2d 858 . Conspiracy. 24. Admissibility of Coconspirator’s Recorded Hearsay Statements. — In a prosecution arising out of the alleged bribery of an investigator posing as a municipal fire safety inspector who discovered a violation at the subject hotel, the People failed to present independent prima facie evidence of a conspiracy justifying use of a coconspirator’s recorded hearsay evidence against defendant where the People’s evidence established that defendant and his alleged coconspirator were both hotel employees, that defendant urged the undercover investigator to return to the hotel on the day in question, and that the alleged coconspirator gave $100 to the investigator when he returned. Although the coconspirator’s recorded statement that the purpose of the payment was to "clear up * * * something here, about Local Law 16”, is admissible as a verbal act offered not for the truth of the matter asserted, but merely to give legal effect to the conduct it accompanied, it served at best to establish only that the coconspirator paid the investigator $100 to influence his handling of the hotel’s alleged Local Law 16 violations; it does not and cannot be used to supply the prima facie foundation or connection to defendant as part of a conspiracy. People v Tran, 80 NY2d 170 . Controlled Substances. 25. Attempted Criminal Possession — Rejection of Drugs as Abandonment of Attempt. — In the prosecution of defendant for attempted criminal possession of a controlled substance in the first degree wherein the evidence established that defendant, with the intent to possess more than four ounces of a controlled substance, met with his supplier’s courier and examined cocaine, but rejected it because he was dissatisfied with the quality, defendant’s rejection of the drugs did not vitiate the attempt under an abandonment theory (see, Penal Law § 40.10 [3]). Abandonment is an affirmative defense which the defendant has the burden of establishing by a preponderance of the evidence, but defendant never sought to present such defense at trial. Moreover, to qualify for the defense, the abandonment must be permanent, and here the evidence revealed that even after rejecting the initial offer, defendant continued making efforts to obtain cocaine. People v Acosta, 80 NY2d 665 .
*1049 DIGEST-INDEX, 80 NY2d 1049 CRIMES — Cont’d 26. Attempted Criminal Possession — Rejection of Proffered Drugs Due to Defect in Quality. — Under the Penal Law, a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he or she commits acts very near to the accomplishment of the intended crime (see, Penal Law § 110.00). Accordingly, a person who, with intent to possess cocaine, orders from a supplier, admits a courier into his or her home, examines the drugs and ultimately rejects them because of perceived defects in quality, has passed beyond mere preparation to commit a crime and come "very near” to possessing the drugs; thus, that person has attempted to possess cocaine within the meaning of the Penal Law. The only remaining step between the attempt and the completed crime is the person’s acceptance of the proffered merchandise, an act entirely within his or her control. People v Acosta, 80 NY2d 665 . 27. Attempted Criminal Possession — Sufficiency of Evidence. — The evidence was legally sufficient to support defendant’s conviction of attempted criminal possession of a controlled substance in the first degree where, on the evidence presented, a rational jury could have found beyond a reasonable doubt that defendant, with the intent to possess more than four ounces of a controlled substance, met with his supplier’s courier and examined cocaine, but rejected it because he was dissatisfied with the quality. Although the alleged courier who the stakeout officers observed entering defendant’s apartment building carrying an apparently heavy bag, and emerging from the building some 15 minutes later carrying the same apparently heavy bag, was not stopped by the police or seen approaching defendant’s apartment itself, the evidence evaluated as a whole, including inferences from the evidence that rational individuals were entitled to draw, was sufficient to establish that defendant in fact met with a drug courier and examined the drugs. People v Acosta, 80 NY2d 665 . Disclosure. 28. "Attorneys’ Work Product”. — In the prosecution of defendant, a report prepared by a former Assistant District Attorney which contained only factual matter — the names of witnesses and police officers involved in the investigation and the fact that defendant had made a statement — does not constitute "attorneys’ work product” so as to be exempt from disclosure to defendant pursuant to CPL 240.10 (2). People v Banch, 80 NY2d 610 . 29. Failure to Produce Rosario Material — Pretrial Suppression Hearing — Remedy. — Where the People produced as Rosario material the purported memo book of a police officer witness at a pretrial suppression hearing, but at trial it was discovered that the memo book produced was in fact not that officer’s memo book, defendant is entitled to a new suppression hearing on his appeal from the Appellate Division order affirming his conviction, since the trial court failed to grant defendant’s request to reopen the suppression hearing when the mistake was discovered at trial. Since defendant was never given the opportunity to cross-examine the officer’s hearing testimony with the correct records, the Rosario violation must be viewed as a complete deprivation of Rosario material and, as such, the violation is not subject to harmless error analysis. However, the remedy for a pretrial Rosario violation is not automatic reversal of the conviction but a new hearing; retrial is necessary only if, after that hearing, the motion court concludes that defendant should prevail. People v Banch, 80 NY2d 610 . 30. Failure to Produce Rosario Material — Sufficiency of Showing That Material Lost or Destroyed. — On defendant’s appeal from the Appellate Division order affirming his conviction, the per se reversal rule for Rosario violations requires a new trial where Rosario material, consisting of a report prepared by one of the People’s witnesses that defense counsel first learned of during the trial, could not be located by the prosecutor during a brief trial recess, and the trial court denied defendant’s motion to strike the testimony of that witness when the material could not be produced, since the record does not support the People’s claim that the Rosario material was lost or destroyed, and no other exception to the per se reversal rule applies. Inasmuch as the record reflects only that the material was not in the People’s trial folder and that the prosecutor could not locate the
*1050 1050 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d material during a very brief trial recess, there is an insufficient basis for the People’s current appellate claim that the material was lost or destroyed. People v Banch, 80 NY2d 610 . 31. What Constitutes Rosario Material. — In the prosecution of defendant, a report prepared by a former Assistant District Attorney (ADA), which contained the names of witnesses and police officers involved in the investigation and the fact that defendant had made a statement, but did not contain the statements of witnesses or interview summaries drawn from statements of witnesses, constitutes Rosario material to the extent that the report is a statement by the former ADA reflecting the activities about which he testified at trial. People v Banch, 80 NY2d 610 . Eavesdropping Warrants. 32. Pen Register with Capacity to Monitor Conversations. — A pen register having the additional capacity to monitor conversations should be treated as an eavesdropping device under the Criminal Procedure Law even where the audio function is "disabled” and no conversations are actually overheard; therefore, the use of such a device by police is permitted only when a Magistrate has issued a warrant based on probable cause. Such a device has the capacity, through willful use or otherwise, to intrude on legitimately held privacy, and it is the warrant requirement, interposing the Magistrate’s oversight, that provides to' citizens appropriate protection against unlawful intrusion. People v Bialostok, 80 NY2d 738 . 33. Suppression of Evidence Obtained in Absence of Warrant. — In the prosecution of defendants on gambling and conspiracy charges, where the police failed to obtain an eavesdropping warrant during the initial period when pen registers with the additional capacity to monitor conversations were connected to telephone lines used by defendants, the evidence obtained through the use of the pen registers during that period, consisting of information that was used in support of a later application for an eavesdropping warrant to monitor conversations on the two lines, should have been suppressed. However, the error was harmless here since evidence other than that which should have been suppressed provided more than sufficient grounds for the Magistrate’s finding of probable cause to support the eavesdropping warrant that was obtained. People v Bialostok, 80 NY2d 738 . 34. Written Notice Requirement — Adequacy of Informal Notice. — In the prosecution of defendant on gambling and conspiracy charges, suppression of evidence obtained through use of a lawful wiretap is not required on the ground that law enforcement officials failed to meet the requirement of CPL 700.50 (3) that written notice of a wiretap be given within 90 days of a warrant’s termination, since defendant received adequate informal notice through his attorney within the applicable time period through information provided directly by law enforcement officials, and formal notice was given, albeit four days late. The purposes of the warrant notification requirement are to publicize wiretaps to the community at large and to those subjected to them and to assure defendants are able to challenge the legality of eavesdropping warrants in a timely manner. Those purposes were served here by the direct notification to defendant’s attorney. Although the delay in formal notice is not condoned, suppression is not appropriate under these circumstances. People v Bialostok, 80 NY2d 738 . 35. Written Notice Requirement — "Termination” of Eavesdropping Warrant. —For purposes of the written notice of eavesdropping that CPL 700.50 (3) requires to be given within 90 days "after termination of an eavesdropping warrant, or expiration of an extension order”, an eavesdropping warrant which provided that it "shall terminate upon attainment of the authorized objective or in any event [on December 26,1986]”, terminated when the investigators attained their objective on December 22,1986 and appropriately discontinued their surveillance at that time. Although the language of the statute states that the relevant initiating event is termination of the warrant and not termination of the eavesdropping, those two events occurred simultaneously under the terms of this warrant. The fact that the investigators could have continued eavesdropping
*1051 DIGEST-INDEX, 80 NY2d 1051 CRIMES — Cont’d legally until December 26 if their objective had not been attained is irrelevant. People v Bialostok, 80 NY2d 738 . Endangering Public Health, Safety or Environment. 36. Activity within Scope of Required Permit. — The count of an indictment charging defendants with endangering public health, safety or the environment in the second degree (ECL 71-2713 [1]) stemming from the death of an employee of the corporate defendant, which was engaged in the business of transporting petroleum products, when petroleum vapors exploded while the employee was cleaning a tank trailer, was correctly dismissed. Pursuant to ECL 71-2720 (1), the provisions of ECL 71-2713 (1) and its companion statutes do not apply to "persons who possess and whose conduct is subject to and in compliance with * * * a valid license, permit, certificate or order” when engaged in an activity requiring such a license, permit, etc. Here, defendants possessed a valid permit to transport petroleum wastes and, although there was evidence that defendants may have violated the terms of their transporter permit in various ways, there was no evidence before the Grand Jury that the tank cleaning was other than a normal and lawful aspect of defendants’ transport activities or that any violations contributed to the release of vapors. Thus, it appears that the petroleum vapors were released in the course of an activity that fell within the scope of defendants’ transporter permit and therefore within the exemption of ECL 71-2720 (1). People v Roth, 80 NY2d 239 . Evidence. See, also, Crimes, 24. 37. Hearsay — Past Recollection Recorded — Record of Observations Made by Someone Other than Observer — Accuracy and Trustworthiness of Memorandum. —In the prosecution of defendant for rape and sodomy, the trial court erred in admitting — under the hearsay exception for past recollection recorded — a police officer’s memorandum consisting of a phone message with a license plate number allegedly belonging to defendant’s car, where the individual who observed the car and reported the license plate number stated that she transmitted to the detective what she believed to be her accurate observation of the license plate number, but the detective had no recollection of that transmission or of having made the memorandum and could not therefore state that what he wrote down was what he had been told. Under the circumstances, there can be no more than supposition on the critical question of whether what was observed and sent corresponded with what was heard by the recorder and written down. Without some verification by the observer-sender that what was recorded accurately reflected her observations when made, the record of those observations should not have been received against defendant as substantive incriminating evidence. People v Taylor, 80 NY2d 1 . 38. Hearsay — Present Sense Impression Exception — Admissibility of Recordings of 911 Transmissions. — Under the present sense impression exception to the hearsay rule, spontaneous descriptions of events made substantially contemporaneously with the observations are admissible if the descriptions are sufficiently corroborated by other evidence. Further, such statements may be admitted even though the declarant is not a participant in the events and is an unidentified bystander. Accordingly, in the prosecution of defendant for burglary and other charges arising from a break-in at a restaurant, recordings of two 911 transmissions describing the events in progress were properly admitted in evidence against defendant pursuant to the present sense impression exception notwithstanding that the caller was not identified by name and was not a participant in the events observed. The descriptions contained in the recordings were sufficiently corroborated by the testimony of the police officers who arrived at the restaurant shortly after the first call and who apprehended two suspects fitting the description given by the caller. The police observed what the 911 caller had described only moments before. The suspects were seen running out of the restaurant through the broken glass door and seeking refuge on the roof, lending credence to the report that there was a burglary in progress. That the circumstances and events at the scene were still very much as described by the caller corroborates
*1052 1052 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d what seems evident from the calls themselves — that the caller’s reports were spontaneous and made contemporaneously with the events described. People v Brown, 80 NY2d 729 . 39. Victim’s Prior Sexual Conduct. — In a sex crimes prosecution in which the trial court allowed evidence of a relationship between the minor complainant and her male friend to be presented to the jury, the court did not err in its related discretionary evidentiary ruling precluding cross-examination of the complainant with respect to the sexual aspect of that relationship (CPL 60.42 [5]). People v Halbert, 80 NY2d 865 . 40. Hearsay — Suppression Hearing. — In a homicide prosecution, the People did not meet their burden at a hearing to suppress statements defendant allegedly made at the police precinct that defendant freely consented to go to the precinct, where the People’s sole witness was a police detective who testified that the three police officers who brought defendant to the precinct told him that defendant voluntarily accompanied them to the precinct, and where defendant’s wife testified that the officers said to defendant that if he did not come to the precinct voluntarily he would be forced to do so, since the detective’s hearsay testimony, although admissible (CPL 710.60 [4]), did not supply the necessary proof. That the detective, who had no personal knowledge of the relevant facts, testified truthfully as to what the other officers told him has no bearing on the pertinent issue of whether the officers’ statements were true; thus, the finding of the hearing court that the detective was credible is irrelevant. The information obtained by the detective was not something on which he relied in taking action and was unrelated to the performance of his duties; rather, his knowledge concerning the disputed events was fortuitous, and there is no basis to attribute reliability to his hearsay information. People v Gonzalez, 80 NY2d 883 . Exposure of Person. 41. Public Display of Women’s Breasts — Lack of Lewd Conduct. — Informations charging defendants, women, with violating Penal Law § 245.01, exposure of a person, for conduct consisting of baring "that portion of the breast which is below the top of the areola” in a public park, should be dismissed, since the statute, when originally enacted, was aimed at discouraging "topless” waitresses and their promoters, and, thus, should not be applied to the noncommercial, not lewd exposure alleged. People v Santorelli, 80 NY2d 875 . Fair Trial. 42. Courtroom Demonstration — Prosecutor’s Comments on Summation. — In a homicide prosecution, an order of the Appellate Division, which affirmed a judgment convicting defendant of first- degree manslaughter, should be affirmed. The trial court did not abuse its discretion in allowing a demonstration in which court officers portrayed the defendant and the victim for the limited purpose of illustrating their relative positions, according to a witness’ testimony, at the time of the shooting, and the prosecutor’s attempts to carry the demonstration further were curtailed by the court in response to defendant’s objections; appropriate limiting instructions were given. Accordingly, no undue prejudice resulted. Moreover, to the extent that the prosecutor misstated the law of justification or made other improper comments, the trial court’s instructions for the jury to follow only the court’s instructions on the law and its other curative instructions were sufficient to ensure defendant a fair trial. People v Barnes, 80 NY2d 867 . Gambling. 43. A rational trier of fact could find defendant guilty beyond a reasonable doubt of promoting gambling, possession of gambling records, and possession of a gambling device where defendant was discovered by police officers, who were executing a search warrant, in a room, seated at a table and speaking on a telephone, which was connected to tape recorders on the floor; where five telephones, a validator clock, line and tally sheets, and piles of completed timestamped betting slips were on the table, and where the officers answered the telephones while in the room, and the calls were found to be from prospective bettors. People v Paecione, 80 NY2d 1019 .
*1053 DIGEST-INDEX, 80 NY2d 1053 CRIMES — Cont’d Harmless and Prejudicial Error. See, also, Crimes, 49. 44. Combination of Errors Resulting in Prejudice. — In the prosecution of defendant for rape and sodomy, the trial court’s error in admitting — under the hearsay exception for past recollection recorded — a police officer’s phone message with the alleged license plate number of defendant’s car, was not harmless when viewed in conjunction with the trial court’s error in admitting an uncertified Department of Motor Vehicles record of defendant’s automobile registration (see, CPLR 4518 [c]). These two items provided a critical link between defendant and the crime by establishing that the car driven by the man — believed by the witnesses to be the person who had raped the victim — was owned by defendant. In cross-examining defendant, the prosecutor stressed the correspondence between what was written on the memorandum and the license number of defendant’s car. During summation, he emphasized that the license plate number was "very strong evidence” that defendant was the rapist. And he urged the jury to ask to see the phone message during their deliberations which they did. Moreover, the trial court, before admitting the phone message, characterized it as "an important piece of evidence.” People v Taylor, 80 NY2d 1 . 45. Identification of Defendant. — In a robbery prosecution in which the trial court improperly admitted testimony of the victim regarding her lineup identification of defendant, an order of the Appellate Division, which affirmed defendant’s conviction, should be affirmed where the Appellate Division concluded that strong independent source evidence supporting the victim’s in-court identification of defendant was established and explicitly found by the hearing court, and that this evidence was sufficient to satisfy the harmless error test. While the Appellate Division was correct that the existence of an independent source for an in-court identification is relevant to harmless error determinations, in this case the strength of the independent source evidence, standing alone, does not establish harmless error, and a traditional and more thorough analysis is required. The victim’s strong, independently evolved, nonsuggestive, in-court identification was buttressed by her sister’s testimony and by other surrounding evidentiary inferences and circumstances; taken together, there is no reasonable possibility that the error might have contributed to defendant’s conviction and, thus, it was harmless beyond a reasonable doubt. People v Harris, 80 NY2d 796 . 46. Identification of Defendant — Inconsistent Testimony of Sole Eyewitness.— An order of the Appellate Division, which affirmed a judgment convicting defendant of murder, attempted murder and criminal possession of a weapon, should be reversed and a new trial ordered since the erroneously received eyewitness testimony regarding the lineup identification of defendant cannot be deemed harmless, where the eyewitness, who was the sole witness to inculpate defendant, gave testimony which was internally contradictory and inconsistent in nature, and where the trial prosecutor pointedly relied on the erroneously admitted lineup evidence in his opening statement and summation, thus exacerbating the prejudicial impact. The educement before and finding by the suppression court of an independent source for the witness’s in-court identification does not, standing alone, satisfy the harmless error standard. It cannot be concluded on this record that there was no reasonable possibility that the error might have contributed to defendant’s conviction and that it was, thus, harmless beyond a reasonable doubt. People v Johnson, 80 NY2d 798 . 47. Improper Admission of Voice Spectrographic Evidence. — In a homicide prosecution arising out of a chain snatching incident, an order of the Appellate Division, which modified a judgment convicting defendant of two counts of murder and criminal possession of a weapon by ordering all the sentences imposed on defendant to run concurrently, should be affirmed notwithstanding the erroneous admission at trial of voice spectrographie evidence relating to tape-recorded statements allegedly made by defendant, since the error was harmless in light of the fact that the voice spectrographie evidence did not affect the admissibility of the taped statements themselves which, together with other testimony linking defendant to the killing, the murder weapon found in defendant’s bed-
*1054 1054 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d room, and defendant’s admitted commission of the chain snatching, constitute overwhelming proof of guilt. The trial court could not properly have determined that voice spectrography is generally accepted as reliable based on case law and existing literature on the subject, since there is marked conflict in the judicial and legal authorities as to the reliability of the procedure, and New York courts are split on the issue of admissibility. Accordingly, the trial court lacked a proper basis to admit the voice spectrography evidence without a preliminary inquiry into reliability. People v Jeter, 80 NY2d 818 . Identification of Defendant. See, also, Crimes, 45, 46,103. 48. Potentially Tainted Identification Procedure. — In a prosecution for armed robbery in which the People failed to provide timely notice of a witness’s photographic identification (CPL 710.30) and the trial court suppressed the witness’s in-court identification, it was reversible error for the court to have permitted the witness to say that the person he observed being chased down the street four days after the robbery had participated in the robbery, since without the improper identification testimony, the case was based entirely on the testimony of another witness, and on a second related robbery charge as to which only that other witness testified, the jury acquitted defendant. While the first witness was properly allowed to testify concerning his description of the robber given to the police prior to the potentially tainted identification procedure, there is no evidence that the first witness ever communicated to the police, prior to that identification, his perception that the person he saw being arrested four days after the robbery was the same person he saw commit the robbery. Therefore, there was nothing in the record to demonstrate that the perception testimony was untainted by the improper photo identification procedure. People v Moss, 80 NY2d 857 . 49. Harmless Error — Physical Description of Robber. — In a prosecution for robbery and related crimes, in which the trial court suppressed both complainant’s identification of defendant, owing to a suggestive showup, and her in-court identification, owing to the absence of evidence of independent source, complainant was properly allowed to testify to details she could not have gleaned from the showup, and such details were corroborated by other evidence. Therefore, while it was improper for complainant to give a physical description of the robber at trial, there having been no finding that such description, given for the first time after the showup, was untainted, in this case the error was harmless. People v Fluitt, 80 NY2d 949 . 50. Confirmatory Identification by Undercover Police Officer. — An order of the Appellate Division, which affirmed defendant’s conviction for robbery, criminal possession and sale of a controlled substance, and criminal possession of a weapon, is affirmed for the reasons stated in the memorandum thereat, which concluded that the trial court correctly found that a precinct identification of defendant by an undercover narcotics officer was confirmatory in nature; that the officer had an excellent opportunity to view defendant and the other drug dealers; that although the undercover officer was temporarily detained and held at gunpoint by drug dealers who suspected that he was a police officer, the well-trained and experienced officer was able to maintain his presence of mind to such a degree as to preserve his ability to confirm the identities of his captors; that the trial court did not commit reversible error in summarily denying defendant’s motion to suppress the officer’s identification testimony, and that the precinct identification was neither too removed in time to be considered as anything other than confirmatory, nor compromised by suggestiveness. People v Polanco, 80 NY2d 1012 . Indictment. 51. Sufficiency of Evidence — Reckless Endangerment. — In a criminal prosecution stemming from the death of an employee of the corporate defendant, which was engaged in the business of transporting petroleum products, when petroleum vapors exploded while the employee was cleaning a tank trailer, evidence before the Grand Jury indicating that defendants allowed a tank containing petroleum
*1055 DIGEST-INDEX, 80 NY2d 1055 CRIMES — Cont’d products to be cleaned without adequate ventilation and in the presence of numerous sources of ignition is legally sufficient to sustain a count of the indictment charging reckless endangerment in the second degree (Penal Law § 120.20). With respect to a charge of reckless endangerment in the second degree, there is no requirement that defendants’ reckless conduct cause injury or death and, therefore, the fact that defendants could not have foreseen the manner in which the employee’s injury occurred does not negate their liability under the statute. People v Roth, 80 NY2d 239 . 52. Sufficiency of Evidence — Reckless Manslaughter — Criminally Negligent Homicide — Foreseeability of Manner in Which Fatal Explosion Occurred.— Charges of reckless manslaughter and criminally negligent homicide stemming from the death of an employee of the corporate defendant, which was engaged in the business of transporting petroleum products, when petroleum vapors exploded as the result of a spark from a nonexplosion proof trouble light while the employee was cleaning a tank trailer, must be dismissed for legal insufficiency. To sustain the charges the People were required to show that it was foreseeable that the explosion would occur in the manner that it did, and the evidence before the Grand Jury was insufficient to support the conclusion that the defendants should have foreseen that their employee would place the unprotected trouble light in the path of a high pressure washer during the tank cleaning operation and that an explosion-causing spark would result from this combination. People v Roth, 80 NY2d 239 . 53. Sufficiency of Evidence — Responsibility of Defendants for Conditions Causing Fatal Explosion. — With respect to charges of reckless manslaughter, criminally negligent homicide, reckless endangerment and endangering public health, safety or the environment stemming from the death of an employee of the corporate defendant, which was engaged in the business of transporting petroleum products, when petroleum vapors exploded while the employee was cleaning a tank trailer, the evidence before the Grand Jury consisting of the testimony of a fire investigator, the only witness to offer an expert opinion about the actual cause of the explosion, that he was 99.9% certain the explosion was caused by a spark from a nonexplosion proof trouble light, was sufficient to establish that the fatal explosion was so triggered so as to support the conclusion that the explosion was in fact caused by conditions for which defendants were responsible. People v Roth, 80 NY2d 239 . Informers. 54. Identity of Informer — Proving Existence of Informer — Confidential Informer Who is Unavailable Because of Fear. — Once the People have established to the Trial Judge’s satisfaction that a confidential informant is unavailable because of fear, the court has the discretion to permit the People to establish the informant’s existence through alternative means. If the People are not able to meet this initial threshold, however, the court similarly has the discretion to require production of the informant. The nature and degree of evidence that will be required to establish unavailability under these circumstances is left to a case-by-case determination. People v Carpenito, 80 NY2d 65 . Instructions. 55. Reasonable Doubt — Instruction Requiring Jurors to Supply Concrete Reasons Based on Evidence. — An Allen charge given during the jury’s deliberations, which defined reasonable doubt as a doubt with respect to which "you would be willing and able to give [a fellow juror] what you believe is a fair, calm explanation for your position based upon the evidence or the lack of evidence in this particular case”, violated defendant’s due process rights under the Federal and State Constitutions. An instruction that requires jurors to supply concrete reasons "based upon the evidence” for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes. As such, the charge actually reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to
*1056 1056 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d persuade the fact finder, beyond a reasonable doubt, of the defendant’s guilt. People v Antommarchi, 80 NY2d 247 . 56. Reasonable Doubt — Instruction That Jurors be Capable of Articulating Reason. — In its main charge, the court’s instruction to the jury that "[a] reasonable doubt is a doubt based upon reason [for] which a juror can give a reason if he or she is called upon to do so in the jury room” did not deprive defendant of a fair trial. It is not improper for a court to instruct the jury that a reasonable doubt is one for which a reason can be given, nor to augment that definition with an explanation that the doubt should be sufficiently clear so that the juror would be capable of giving a reason for his or her views. Thus, language defining a reasonable doubt as one which a juror could, if called upon to do so, express or articulate is appropriate. It would be wise, however, for a court using similarly worded instructions to follow them with a clarifying statement that the jurors have no obligation to articulate the basis for their doubts. People v Antommarchi, 80 NY2d 247 . Jurisdiction of Offenses. 57. Burden of Proof as to Territorial Jurisdiction. — When a defendant disputes the State’s territorial jurisdiction over an alleged criminal offense under CPL 20.20, the People must prove such jurisdiction beyond a reasonable doubt. Although venue in the proper county under CPL 20.40 is established pursuant to the lesser burden of preponderance of the evidence, the distinct conceptual differences between venue and territorial jurisdiction and their different jurisprudential purposes make it virtually impossible to equate the two. Further, when measured in terms of the effect on the fundamental rights of the defendant, there is a marked contrast in importance between questions relating to territorial jurisdiction and venue. Moreover, although territorial jurisdiction is not classified as an element of the crime which must be established beyond a reasonable doubt (see, CPL 70.10 [1]; 300.10), when the power of the State to try and convict the defendant is disputed, proof of that power is no less critical to a legal conviction than proof of the elements of the crime; there is no reason why a different burden of proof should be required. People v McLaughlin, 80 NY2d 466 . Jurors. See, also, Crimes, 82. 58. Challenge to Jury — Impermissible Exclusion of Prospective Jurors on Basis of Race — Racially Neutral Explanation for Exclusions. — With respect to defendant’s claims that the prosecutor was impermissibly excluding members of the venire on the basis of race in violation of Batson v Kentucky ( 476 US 79 ), the prosecutor’s statements in response that he was excluding African-American and Latino jurors "Because I know [defense counsel will] knock the whites off” and because defense counsel was "using his peremptory challenges to knock off people who were white and middle class”, do not provide a racially neutral explanation for the prosecutor’s challenges of prospective jurors; rather, they betray a clear racial motive for the prosecutor’s exercise of peremptory challenges. Because the exclusion of even a single juror on racial grounds is constitutionally forbidden, defendant has sustained his Batson claim and a new trial is ordered. People v Mitchell, 80 NY2d 519 . 59. Discharge of Juror. — An order of the Appellate Division, which reversed a judgment convicting defendant of second degree burglary, fourth degree criminal mischief, and attempted petit larceny, and ordered a new trial, is affirmed for the reasons stated in the memorandum thereat, which concluded that the trial court’s discharge of a juror who had called the court after three days of trial and said that she could not come to court that day because her husband had been hospitalized, was precipitous and violative of defendant’s right to be tried by a particular jury in whose selection he had a voice where the trial court had not inquired into the nature of the husband’s illness or the juror’s availability to attend the trial the next day, and seated an alternate juror, over defendant’s objection, only a few hours later. People v Powell, 80 NY2d 852 . 60. Misconduct of Juror — Experiment by Juror. — An order of the Appellate Division, which affirmed a judgment convicting defendant of first degree robbery
*1057 DIGEST-INDEX, 80 NY2d 1057 CRIMES — Cont’d arising out of a knife-point chain-snatching incident, is affirmed for the reasons stated in the memorandum thereat, which concluded that a juror’s actions in conducting an experiment during deliberations did not deny defendant a fair trial where the juror folded a paper towel or a piece of cardboard to simulate a knife in order to determine whether defendant could have folded a knife while being pursued by the complainant and his brother; that the issue of whether the defendant possessed or folded a knife during the pursuit was neither a critical point at issue in the trial nor prejudicial to defendant, and that the juror was merely using common everyday experience to clarify a non-critical point in the case. People v Cortez, 80 NY2d 855 . 61. Challenge to Jury — Race-Based Peremptory Challenges. — An order of the Appellate Division, which affirmed defendant’s conviction of first degree robbery and first degree reckless endangerment, should be affirmed since defendant’s contention that the People exercised their peremptory challenges in a racially discriminatory manner is baseless; the courts below properly concluded that defendant failed to make out a prima facie showing that the prosecution purposefully excluded members of his race from the jury. People v Hernandez, 80 NY2d 872 . 62. Challenge to Jury — Race-Based Peremptory Challenges. — An order of the Appellate Division, which affirmed a judgment convicting defendant of second and third degree robbery, should be modified by remitting to Supreme Court for a hearing to afford the People an opportunity to provide a racially neutral reason for the exercise of a peremptory strike against an African-American venireperson, where defendant — pointing to the fact that the prosecutor challenged four of the six African-American members of the venire — has made a prima facie showing that the prosecution exercised its peremptory challenges in a racially discriminatory manner. Accordingly, the burden then shifted to the prosecution to come forward with racially neutral reasons for the strikes. However, because the prosecutor was not asked to provide a racially neutral reason for one of the challenged jurors in question, there must be a remittal. Should satisfactory explanation be provided by the People, the judgment should be amended to show that result; otherwise, the judgment of conviction should be vacated and a new trial ordered. People v Hawthorne, 80 NY2d 873 . 63. Challenge to Jury. — In a narcotics prosecution, an order of the Appellate Division, which reversed defendant’s convictions for criminal possession of a controlled substance in the first and third degrees, and ordered a new trial, is affirmed for the reasons stated in the memorandum thereat, which concluded that it was reversible error for the trial court to have permitted the prosecutor to exercise a peremptory challenge after he had indicated to the court that he had completed his peremptory challenges and while defense counsel was exercising his peremptory challenges (see, CPL 270.15 [2]). People v De Conto, 80 NY2d 943 . Justification. 64. Prevention of Burglary. — An individual who invites another onto his premises and then actively and willingly joins in that person’s criminal conduct should not be permitted to kill that person merely because he or she does not promptly cease pursuing the criminal endeavor upon being ordered to leave the premises, since Penal Law § 35.20 (3), which authorizes a person to use deadly physical force against another person if one reasonably believes that such force is necessary to terminate a burglary of one’s home, was intended to protect those individuals who suddenly find themselves the victim of an intrusion upon their premises by one bent on a criminal end. There is nothing to suggest that the statute was also meant to protect one who, like defendant, invites another person into his home, fully aware that such person intends to commit a crime once inside; such an individual is no less responsible for any ensuing invasion of his own security than the would-be burglar and, therefore, cannot claim the protections of the statute. Accordingly, the trial court in defendant’s murder prosecution did not err in refusing defendant’s request to charge the jury on the justifiable use of deadly physical force to terminate a burglary. People v Godfrey, 80 NY2d 860 .
*1058 1058 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d Lesser Included Offense. See, also, Infants, 5. 65. Death Resulting from Street Fight. — An order of the Appellate Division, which affirmed a judgment convicting defendant of second degree murder and two counts of attempted second degree murder, should be reversed and a new trial ordered where the trial court refused defense counsel’s request to instruct the jury concerning lesser-included crimes, particularly manslaughter in the first degree, since the lesser-included charge instruction, based on a view of the entire evidence, which revealed that defendant fatally stabbed a person who had come to his assistance in a street melee, cannot be said as a matter of law to have no reasonable support in the record evidence. People v Aviles, 80 NY2d 997 . Merger Doctrine. 66. Propriety of Kidnapping Conviction Where Defendant Acquitted of Underlying Crime. — In applying the merger doctrine in a prosecution for kidnapping and an underlying crime, the standard remains the same whether defendant is acquitted or convicted of the underlying crime: did the Legislature intend to punish the restraint or abduction separately as kidnapping. The guiding principle is whether the restraint was so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them. Accordingly, in a prosecution for kidnapping and attempted rape in which the complainant, trapped in a car, was driven around for up to two hours and terrorized by defendant, and was then pushed from the car and lost consciousness after being informed by defendant that he would rape her, defendant’s conviction for kidnapping in the second degree (Penal Law § 135.20) should not be merged with his acquittal on the attempted rape charge. The lengthy abduction, accomplished with a deadly weapon, constituted the discrete crime of second degree kidnapping which was already completed, in all its elements, before the victim was allegedly sexually assaulted. The restraint was not a minimal intrusion necessary and integral to another crime, nor was it simultaneous and inseparable from another crime. People v Gonzalez, 80 NY2d 146 . Murder. 67. Supervening Cause of Death — Medical Malpractice — Standard of Causation. — In the prosecution of defendant for murder in the second degree arising from the death of a stabbing victim, wherein defendant claimed that medical malpractice was the supervening cause of the victim’s death, the legal standard for determining if defendant will be relieved from criminal responsibility for the death is whether the death can be attributed solely to the negligent medical treatment. People v Eulo ( 63 NY2d 341 ), which held that "brain-based criteria” could be used to define death — the time at which criminal liability for a homicide would attach — did not change that standard. Accordingly, the trial court did not commit prejudicial error with respect to defendant in precluding expert testimony that medical malpractice was the supervening cause of the victim’s death and, therefore, defendant’s conviction should not be overturned. People v Griffin, 80 NY2d 723 . Plea Bargaining. 68. Breach of No-Arrest Condition — Showing Necessary to Impose Enhanced Sentence Where Defendant Denies Commission of Act Underlying Arrest. — When a court has made a plea bargain containing a no-arrest condition and the defendant is arrested prior to sentencing, the court must conduct an inquiry at which the defendant has an opportunity to show that the arrest is without foundation if an issue is raised concerning the validity of the postplea charge or there is a denial of any involvement in the underlying crime. The nature and extent of the inquiry — whether through a summary hearing pursuant to CPL 400.10 or some other fair means — is within the court’s discretion. Proof that defendant actually committed the postplea offense which led to the arrest is not necessary. The inquiry must be of sufficient depth, however, so that the court can be satisfied not of defendant’s guilt of the new criminal charge, but of the
*1059 DIGEST-INDEX, 80 NY2d 1059 CRIMES — Cont’d existence of a legitimate basis for the arrest on that charge. People v Outley, 80 NY2d 702 . 69. Breach of No-Arrest Condition — Sufficiency of Inquiry as to Legitimate Basis for Arrest. — Where the court, in accepting defendant’s guilty plea, expressly conditioned the agreed-upon sentence on defendant not being arrested while on release awaiting sentence, and defendant was arrested on a charge of criminal contempt for violating two court orders directing him to stay away from his wife and daughter and their residence, but defendant denied the commission of any criminal act, the basis for arrest developed on the record by the court’s inquiry, before it imposed an enhanced sentence, was sufficient to establish a failure of the no-arrest condition. Defendant had concededly violated the subject orders, and defendant and his counsel were permitted to explain the circumstances of the visit to his home in an effort to demonstrate that defendant had no intent to defy the courts’ authority. It cannot be said, however, that the sentencing court and the Appellate Term erred in holding, from the fact that defendant’s wife had signed the complaining affidavit, that there was a legitimate foundation for the contempt charge. People v Outley, 80 NY2d 702 . 70. Breach of No-Arrest Condition — Sufficiency of Inquiry as to Legitimate Basis for Arrest. — Where the court, in accepting defendant’s guilty plea, expressly conditioned the agreed-upon sentence on defendant not being arrested while on release awaiting sentence, and defendant was arrested on a charge of burglary, but defendant denied the commission of any criminal act, the basis for arrest developed on the record by the court’s inquiry, before it imposed an enhanced sentence, was sufficient to establish a failure of the no-arrest condition. The fact that a Grand Jury had found a prima facie case for the charge by returning an indictment against defendant constituted an additional filter for the quality of the arrest. The jeep involved in the burglary was concededly owned by the defendant and a policeman identified him as the driver of the vehicle when it left the scene. Given this evidence and the plainly suspect nature of the statement given by defendant’s witness, a professional burglar who had participated with defendant in past crimes, it can hardly be said that there was not enough in the record on which to predicate a breach of the condition. People v Outley, 80 NY2d 702 . 71. Breach of No-Arrest Condition — Sufficiency of Inquiry as to Legitimate Basis for Arrest. — Where the court, in accepting defendant’s guilty plea, expressly conditioned the agreed-upon sentence on defendant not being arrested while on release awaiting sentence, and defendant was arrested on a charge of possession of cocaine, but defendant denied the commission of any criminal act arguing that his possession was unknowing and did not evince an intent to violate the court’s condition, the basis for arrest developed on the record by the court’s inquiry, before it imposed an enhanced sentence, was sufficient to establish a failure of the no-arrest condition. The sentencing court afforded defendant an adequate opportunity to explain the circumstances of the arrest, and it cannot be concluded that the courts below erred in finding the explanation insufficient. People v Outley, 80 NY2d 702 . Plea of Guilty. See, also, Motor Vehicles, 2. 72. Effect of Reversal of Trial Convictions on Guilty Pleas Entered in Return for Promise of Concurrent Sentences. — Where defendant was found guilty after tried of separate crimes involving two different victims and, before sentencing, pleaded guilty to other similar crimes involving different victims with the understanding that the sentences for those charges would be concurrent with and no longer than the sentences to be imposed for the trial convictions, the guilty pleas cannot be sustained after reversal of the trial convictions by the Court of Appeals, since the guilty pleas were based on the promise that the sentences imposed thereon would be concurrent with the sentences imposed at trial. People v Taylor, 80 NY2d 1 . Proof of Other Crimes. 73. Preservation of Issue for Appellate Review — Presence of Defendant at Sandoval Hearing. — In a homicide prosecution, the order of the Appellate Divi-
*1060 1060 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d sion, which reversed defendant’s conviction for second degree murder and granted a new trial, should be affirmed. Defendant’s failure to raise an objection when the trial court proceeded to conduct a Sandoval hearing in his absence is not an obstacle to Court of Appeals review. Since defendant’s presence was required at that material stage, which in the circumstances of this case inferentially and directly affected the prosecutor’s trial strategy to cross-examine defendant with respect to drug-related activities — he had no prior criminal convictions, as was brought out at the Sandoval hearing and decision — the Appellate Division correctly reversed and ordered a new trial. People v Beasley, 80 NY2d 981 . Rape. See Crimes, 74. Renunciation. 74. Attempted Rape — Incomplete Abandonment — Culmination of Attempted Rape Not Avoided by Abandonment. — In the prosecution of defendant for attempted rape, the trial court correctly denied defendant’s request to charge renunciation as an affirmative defense to the attempted rape count (Penal Law § 40.10 [3], [5]) since, although arguably there was enough for the jury to have concluded that defendant voluntarily stopped the sexual assault, apparently in response to the victim’s intimations concerning future gratification, there is no reasonable view of the proof that the abandonment of the criminal enterprise was complete (Penal Law § 40.10 [5]) or that the culmination of the intended rape was avoided by defendant’s abandoning the criminal effort (Penal Law § 40.10 [3]). On these critical issues there is only the testimony of the victim that when she and defendant left her apartment defendant was holding her by the arm, that she managed to duck from under his arm and get back through the apartment door which closed and locked automatically behind her, and that defendant thereafter attempted to regain entry into the apartment by knocking on the door and asking for a tissue. This evidence hardly evinces a complete abandonment by defendant of his criminal purpose. On the contrary, it strongly suggests that the criminal enterprise was continuing and that what prevented its completion was not defendant’s intention to abandon it but the victim’s escape. People v Taylor, 80 NY2d 1 . Right to be Present at Trial. 75. Side-Bar Discussion with Prospective Jurors Concerning Objectivity and Impartiality — Effect of Defendant’s Failure to Object to Exclusion from Side-Bar Discussion. — Defendant’s right to be present during a material stage of the trial was violated where, during the impaneling of the jury, defendant was excluded from side-bar questioning of certain jurors concerning their ability to weigh evidence objectively and to hear testimony impartially. Although a court may conduct side-bar discussions with prospective jurors in a defendant’s absence if the questions relate to juror qualifications such as physical impairments, family obligations and work commitments, defendants are entitled to hear questions intended to search out a prospective juror’s bias, hostility or predisposition to believe or discredit the testimony of potential witnesses and the venire person’s answers so that they have the opportunity to assess the juror’s facial expressions, demeanor and other subliminal responses. Moreover, because defendant had a fundamental right to be present, his failure to object to being excluded from the side-bar discussions is not fatal to his claim. People v Antommarchi, 80 NY2d 247 . 76. Federal Due Process — Presence at CPL 60.20 Competency Hearing.— Defendant’s Federal due process right to be present at trial was not violated when the trial court preliminarily examined a child-witness pursuant to CPL 60.20 to determine whether she understood the nature of an oath in defendant’s absence. The hearing was confined to issues relating to competency, and defendant has presented no evidence that his relationship with the child, or his knowledge of facts regarding her background could have resulted in a more assured determination of competency. Accordingly, defendant’s presence at the competency hearing would have been useless, or the benefit but a shadow, and thus there was no Federal due process violation. People v Morales, 80 NY2d 450 .
*1061 DIGEST-INDEX, 80 NY2d 1061 CRIMES — Cont’d 77. State Law — Presence at CPL 60.20 Competency Hearing. — Defendant’s right to be present at trial under State law was not violated when the trial court preliminarily examined a child-witness pursuant to CPL 60.20 to determine whether she understood the nature of an oath in defendant’s absence. Under State law a defendant ordinarily has an unfettered right to be personally present at core segments of trial, but only a qualified right to attend ancillary proceedings (see, CPL 260.20). Whether defendant’s qualified right has been violated is measured by the effect that defendant’s absence might have on the opportunity to defend. Here, the hearing did not involve evidentiary testimony or issues about which defendant has shown he had special knowledge. Instead, the proceeding related to a witness’ testimonial capacity, a legal determination unrelated to trial issues. In these circumstances, moreover, there is no greater right to be present under the State Constitution than already provided by statute. People v Morales, 80 NY2d 450 . 78. Propriety of Pre-Antommarchi Side-Bar Questioning of Prospective Jurors in Defendant’s Absence. — In three prosecutions in which juror selection occurred prior to the Court of Appeals decision in People v Antommarchi ( 80 NY2d 247 ), side-bar questioning of prospective jurors outside defendants’ presence and without objection, which involved such matters as whether the prospective jurors had been crime victims, had been involved in criminal matters, or had doubts about their ability to remain impartial given the general nature of the case, did not deprive defendants of their right to be present "during the trial of an indictment” (CPL 260.20) or call for automatic reversal. Moreover, inasmuch as the questioning involved matters of general bias or hostility, there was no violation of defendants’ constitutional right to be present. People v Mitchell, 80 NY2d 519 . 79. Prospective Application of People v Antommarchi. — People v Antommarchi ( 80 NY2d 247 ), which held that the court may not actively solicit answers from a prospective juror which relate to that juror’s bias or hostility in the absence of defendant, should be applied only prospectively to those cases in which jury selection occurred after October 27,1992, the date Antommarchi was decided. The purpose of the rule is not to cure any constitutional infirmity inherent in the trial courts’ former practice of questioning potential jurors regarding matters going to general bias or hostility in the defendant’s absence, but rather to permit a defendant a more active role in the examination and selection of potential jurors. Moreover, it relates to the fact-finding process only indirectly and therefore retroactivity is not mandated. Further, the courts have substantially relied on the prior practice. Finally, the voir dire process is involved in every jury trial and most if not all of the judgments of conviction in the cases currently on appeal will present an Antommarchi question. The reversal, or even the reconsideration, of these appeals on Antommarchi grounds would create a substantial burden on the administration of justice and delay the disposition of countless pending cases. People v Mitchell, 80 NY2d 519 . 80. An order of the Appellate Division, which affirmed a judgment convicting defendant of second degree murder, is reversed and a new trial ordered, where defendant was excluded from hearings conducted pursuant to People v Sandoval ( 34 NY2d 371 ) and/or People v Ventimiglia ( 52 NY2d 350 ). People v Alexander, 80 NY2d 801 . 81. An order of the Appellate Division, which reversed a judgment convicting defendant of first degree rape and remanded the matter for a new trial, is affirmed where the trial court conducted a Sandoval hearing in defendant’s absence. People v Rose, 80 NY2d 802 . 82. Dismissal of Juror — Preservation of Issue for Appellate Review. — An order of the Appellate Division, which affirmed a judgment convicting defendant of murder, attempted murder and criminal possession of a weapon, is affirmed where a juror was dismissed on consent following an inquiry, at which defendant was not present, concerning whether the juror knew defendant, and after an off-the-record conference between the court and counsel, since defendant’s right to be present was not violated in light of the nature and scope of the inquiry, which
*1062 1062 80 NEW YORK REPORTS, 2d SERIES CRIMES — Cont’d consisted of a single question and answer. Moreover, defendant’s contention that the trial court failed to conduct a sufficiently probing inquiry at the disqualification hearing or otherwise comply with the procedures announced in People v Buford ( 69 NY2d 290, 299 ) is unpreserved, since unlike defendant’s claim that the right to be present was abridged when the inquiry was conducted in his absence, an issue reviewable even without objection at trial, a claim that a disqualification hearing was inadequate must be preserved to present a question of law for review in the Court of Appeals. People v Torres, 80 NY2d 944 . 83. Defendant’s Absence from Sandoval Hearing — Reviewability of Issue on Appeal. — In a prosecution for attempted assault and criminal possession of stolen property, an order of the Appellate Division, which affirmed defendant’s conviction, should be reversed and a new trial ordered since defendant’s absence from a material part of his Sandoval hearing violated his right to be present at all material stages of his trial. The issue is reviewable, despite defendant’s failure to object, and the People’s contention that this case involves exceptional circumstances rendering defendant’s presence "superfluous” is unavailing. People v Gebrosky, 80 NY2d 995 . Right to Counsel. 84. Effective Representation — Joint Representation — Conflict of Interest — Informed Consent to Joint Representation. — In the joint prosecution of defendant and two codefendants for robbery and related crimes, defendant was deprived of the effective assistance of counsel when his attorney absented himself during jury deliberations and the attorneys for the two codefendants assumed the defendant’s representation, because there was an actual conflict of interest between defendant and his codefendants. Where joint representation is undertaken at the crucial stage of jury deliberations, an actual conflict must be brought to the attention of a defendant so that any consent to that representation is an informed consent. Here, the key witness for one codefendant, who had previously been beaten by friends of defendant, testified that she observed defendant running with a gun in his hand and that she did not see the codefendants at the crime scene, thus implicating defendant while establishing a defense for the codefendants. Thus, an actual conflict existed, and defendant’s right to receive assistance from an attorney whose undivided responsibility is to that defendant alone was impaired by the joint representation by counsel for the codefendants. Moreover, the record reveals no explanation for defense counsel’s absence. Nor does the record indicate that the court, by proper inquiry, took the necessary precautions to ensure that the defendant perceived the potential risks inherent in joint representation by counsel for the codefendants. Thus, it cannot be concluded that defendant’s decision to pursue joint representation in this case was an informed one. People v Allah, 80 NY2d 396 . 85. Trial Court Order Banning Consultation between Defendant and Counsel during Luncheon Recess Called during Cross-Examination of Defendant. — An order of the Appellate Division, which affirmed defendant’s conviction of criminal possession of a controlled substance in the first degree, should be affirmed where the trial court ordered defense counsel not to confer with his client during a luncheon recess, since the Appellate Division correctly concluded that defendant’s Sixth Amendment rights under the United States Constitution were not abridged by the trial court’s order. Moreover, there is no basis for a different result under the State Constitution. People v Enrique, 80 NY2d 869 . Right to Speedy Trial. 86. Effect of Withdrawal of Appeal by People. — Inasmuch as a withdrawn appeal by the People is a nullity, it cannot serve as the basis for an exclusion from the time within which the People must be ready for trial pursuant to CPL 30.30. Thus, the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5540545. Public record. Not legal advice.