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https://www.courtlistener.com/api/rest/v3/opinions/5903392/ | Order, Supreme Court, New York County (Louis B. York, J.), *515entered November 9, 2011, which granted defendant Richard Jefferys’ motion for summary judgment dismissing the complaint as against him, unanimously affirmed, with costs.
Supreme Court properly determined that plaintiff was a limited public figure because, through her publication of countless articles, she voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate (see Krauss v Globe Intl., 251 AD2d 191, 192 [1st Dept 1998]), and “projected] [her] name and personality before . . . readers of nationally distributed magazines . . . to establish [her] reputation as a leading authority” in this area (Maule v NYM Corp., 54 NY2d 880, 882-883 [1981]). The court also properly concluded that the subjects of HIV/AIDS, plaintiff s journalism, and her receipt of an award for her journalism fell “within the sphere of legitimate public concern” (Chapadeau v Utica Observer-Dispatch, 38 NY2d 196, 199 [1975]). Indeed, the record established that plaintiff was a contentious figure within the traditional HIV/AIDS community.
Jefferys met his burden of demonstrating that plaintiff could not show by clear and convincing evidence that he made the challenged statements with actual malice or with gross irresponsibility (see Huggins v Moore, 94 NY2d 296 [1999]; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196 [1975], supra). The record was devoid of evidence that Jefferys acted with knowledge that his statements were false or with reckless disregard for the truth, or that he did not follow the standards of information gathering employed by reasonable persons. Jefferys sufficiently explained that his statement about plaintiffs journalism was based on his expertise and research on HIV/ AIDS for many years, on an article signed by prominent experts in the field, as well as on the many articles in the record which critiqued plaintiffs 2006 article as being filled with misquotes or misrepresentations. Jefferys also provided documentation to support why he believed what he wrote about the plaintiff was true and compared in detail plaintiffs journalism to the articles and studies she cited and explained why he believed her work to contain misrepresentations.
In opposition, plaintiff failed to raise a triable issue of fact. Her effort to establish that her work does not contain misquotes or misrepresentations is immaterial because even if plaintiff were correct about her work, she can point to no evidence that would establish actual malice or gross irresponsibility (Mahoney v Adirondack Publ. Co., 71 NY2d 31, 39 [1987] [“(falsity and actual malice are distinct concepts”]). Similarly, plaintiff’s assertion that Jefferys was biased against her or bore her ill will *516does not aid her cause (see Harte-Hanks Communications, Inc. v Connaughton, 491 US 657, 666 [1989]). Moreover, there is no reason to offer less protection to the contested statement because it was made via an Internet communication (see Sandals Resorts Intl. Ltd. v Google, Inc., 86 AD3d 32, 43-44 [1st Dept 2011]).
Supreme Court was also correct in finding that the use of the word “liar” in the contested statement was not actionable (see Ram v Moritt, 205 AD2d 516 [2d Dept 1994]; see also Steinhilber v Alphonse, 68 NY2d 283, 294 [1986]). The full content of the statement, including its tone and apparent purpose, and the broader context of the statement and surrounding circumstances leads to the conclusion that what was being read was “likely to be opinion, not fact” (see Thomas H. v Paul B., 18 NY3d 580, 584 [2012] [internal quotation marks omitted]; see Immuno AG. v Moor-Jankowski, 77 NY2d 235, 254 [1991], cert denied 500 US 954 [1991]).
Supreme Court appropriately resolved the case through summary judgment because the issues can be determined by the objective proof in the record (see Kipper v NYP Holdings Co., Inc., 12 NY3d 348, 354 [2009]; Karaduman v Newsday, Inc., 51 NY2d 531, 545 [1980]), and no additional discovery was necessary or warranted to resolve the motion.
We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 33 Misc 3d 1218(A), 2011 NY Slip Op 51966(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903394/ | Appeal from a judgment of the Supreme Court, Nassau County, entered January 28, 1987.
Ordered that the judgment is affirmed, with costs, for reasons stated by Justice Balletta at the Supreme Court, Nassau County. Kunzeman, J. P., Eiber, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6826257/ | OPINION
REGINALD W. GIBSON, Judge:
INTRODUCTION
Plaintiffs, Arthur and Harriet Morowitz (husband and wife), and Howard and Marilyn Farber (formerly husband and wife) (collectively referred to as taxpayers or plaintiffs),1 filed this federal income tax refund suit on October 25, 1985, against the United States, defendant herein. Therein the plaintiffs allege that, with regard to taxable year 1975, the Commissioner of Internal Revenue (hereinafter Commissioner) erroneously and illegally assessed additional taxes against them in the amount of $6,614.91 and $7,543.55, respectively, plus deficiency interest thereon. Plaintiffs premise jurisdiction in this court under the Tucker Act, 28 U.S.C. § 1491,2 and the Internal Revenue Code of 1954, 26 U.S.C. § 7422.3
Subject action is before this court for a decision on the merits after a trial conducted in New York City on January 28, 1987. Also before this court is defendant’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Said motion was orally made in open court at the close of plaintiffs’ case-in-chief. Tr. p. 130. The court declined to rule on said motion until the close of all of the evidence.
During the trial, plaintiffs offered evidence ostensibly designed to prove one of the following two alternative positions: (i) that the $25,000.00 disbursement (discussed infra) from David Darby, Inc. (hereinafter Darby, Inc.) to Distribpix, Inc. (hereinafter Distribpix), that resulted in the Commissioner’s finding a constructive dividend to the plaintiffs was in fact payment under a settlement agreement, ie., for termination of a contract entered into on December 27, 1973, between Distribpix and Mr. David *624Darby (hereinafter Mr. Darby), and was properly reported as income by Distribpix; or (ii) that if said payment is deemed to have been constructively distributed to the plaintiffs, it should be characterized as capital gains income arid taxed accordingly.
Upon a thorough review of the record evidence, we find that the plaintiffs utterly failed to meet their threshold burden of proof by a preponderance of the evidence. That is to say, the plaintiffs failed to present any creditable evidence that demonstrated that the ruling of the Commissioner was incorrect. We reach said conclusion because the proof proffered in the plaintiffs’ presentation was altogether wanting of one scintilla of relevant, probative evidence establishing: either (a) that the $25,000.00 payment was related to the settlement of a business relationship between Darby, Inc. and Distribpix; or (b) that Darby, Inc. did not have sufficient accumulated or current year earnings and profits from which to make a taxable dividend payment in said amount. Accordingly, we enter judgment in favor of defendant and concomitantly dismiss the petition on the merits.
FACTS
Based upon the evidence presented during the trial, the court finds the following operative facts.
Arthur Morowitz and Howard Farber are the sole stockholders (50% each) of Distribpix, a closely-held corporation,4 incorporated in 1967 under the laws of the State of New York. Distribpix produces and distributes adult motion picture films. Tr. p. 15. On December 27, 1973, Distribpix entered into a written sales contract with an individual, Mr. David Darby. Pursuant to that agreement, Distribpix sold 26 35mm motion picture films to Mr. Darby for the negotiated price of $150,000.00. Tr. p. 123. Said amount was amortized in 30 equal monthly installment payments of $5,000.00, commencing on May 1, 1974. Pltfs’ Ex. 1; Tr. p. 20. The contract contained the scripted name of David Darby, in his individual capacity, and Arthur Mo-rowitz and Howard Farber on behalf of Distribpix. Pltfs’ Ex. 1. In order to secure receipt of the aforementioned monthly installment payments, the contract required, contemporaneous with the execution thereof, that Mr. Darby execute 30 “separate and consecutive serial negotiable promissory notes in bearer form.” Pltfs’ Ex. 1. Further, the contract specified that Distribpix thereby relinquished all “rights, title, and interest” in subject motion picture films. Pltfs’ Ex. 1; Tr. p. 123.5
Approximately one year after executing the above described sales contract, the plaintiffs (Arthur Morowitz and Howard Farber) and David Darby began conducting business through another closely-held corporation, i.e., David Darby, Inc. Darby, Inc. was formed, inter alia, for the purpose of producing and distributing motion picture films. Tr. p. 24. Two-hundred shares of no par stock were authorized, 100 of which were issued to Farber and Morowitz, i.e., 50 shares each. Pltfs’ Ex. 3. No evidence was offered to establish what payment, if any, was received from Morowitz and Farber in exchange for these shares of issued stock.6 Mr. Darby received no stock *625ownership interest in Darby, Inc. Thus, Arthur Morowitz and Howard Farber became the sole stockholders of David Darby, Inc. in December, 1974. Messrs. Darby, Morowitz, and Farber were nominated to Darby, Inc.’s Board of Directors on January 20, 1975. Tr. p. 24.7 Because, at that point in time, the taxpayers owned all of the outstanding stock of both Distribpix and Darby, Inc. and therefore controlled both corporations, Darby, Inc. and Distrib-pix enjoyed a brother-sister corporate relationship.8
Shortly after said formation, on December 24, 1974, Darby, Inc. allegedly began tendering payment to its sister corporation, Distribpix, on the contract that was entered into on December 27, 1973 between Mr. Darby (individually) and Distribpix. Tr. p. 26. Payments of $5,000.00 were received monthly from Darby, Inc. through October 15, 1975. Tr. p. 26. Plaintiff Far-ber testified that said payments were made by Darby, Inc. in curtailment of Mr. Darby’s contract from December 1974 through October 1975. Tr. p. 26. However, Mr. Darby, Darby, Inc., and Distribpix never entered into a written agreement to memorialize why this alleged arrangement took place. Tr. p. 111-12 and 124-25.
Summarizing for the moment with regard to the above transactions (as they relate to the December 27, 1973 contract between Distribpix and Mr. Darby), the court finds that from May 1974 through November 1974 the record shows that the scheduled payments were made according to the contract terms, i.e., Distribpix received $5,000.00 per month from Mr. Darby. Then, and for some inexplicable reason, from December 1974 through October 1975, Darby, Inc. paid to Distribpix periodic $5,000.00 scheduled payments that mirrored the amounts due and previously paid by Mr. Darby, the individual. Tr. p. 26. Evidence of Darby, Inc.’s journalization of the corresponding disbursements was not introduced at trial, thus no evidence is available as to how it was recorded for tax purposes by Darby, Inc. As a consequence of the above transactions, by October 15, 1975, Distribpix had received $92,000.00 in installment payments on its contract with Mr. Darby, whereas in fact at that point in time, only $90,000.00 was actually due. Tr. p. 27, 79. (Apparently, the $2,000.00 had been prepaid.)
Notwithstanding the fact that Mr. Darby’s contract obligation was apparently prepaid to the tune of $2,000.00, on October 16, 1975, Messrs. Darby and Morowitz jointly signed a certified check, # 599, in the amount of $22,500.00, drawn on the account of Darby, Inc. and payable to Darby, Inc. Pltfs’ Ex. 5; Tr. p. 97. Subsequently, on October 20,1975, a second Darby, Inc. certified check, # 600, in the amount of $2,500.00, was similarly cosigned by Messrs. Darby and Morowitz. Said check, as the previous one, was also payable to Darby, Inc. Pltfs’ Ex. 5. Shortly thereafter, on October 29, 1975, three noteworthy events occurred. First, Mo-rowitz and Farber sold their shares in Darby, Inc. (50 each) to Robert Kane, the individual fired from Darby, Ine.’s general manager position 15 days prior thereto. Tr. p. 144; Pltfs’ Ex. 3. The sales agreement was signed by Morowitz, Farber, and Kane, each in his individual capacity.
Second, an “Agreement” was executed by Distribpix and Darby, Inc. wherein the parties agreed to terminate their business relationship; i.e., that relationship whereby *626“Distribpix ... provided Darby, [Inc.] with the right to distribute 27 motion picture films.” Pltfs’ Ex. 4. Twenty-six of the aforesaid films were those same films previously sold to Mr. Darby through the December 27, 1973 sales agreement with Distribpix. Tr. p. 32-33; cf Plfts’ Ex. 1 with Pltfs’ Ex. 4. Under this “Agreement,” all said films were to be returned to Distribpix. However, no consideration was shown to have passed from Distribpix to either Darby, Inc. or Mr. Darby for return of the films, despite the fact that $92,000.00 had been paid on the December 27, 1973 sales contract. Pltfs’ Ex. 4. Said agreement was signed by Robert Kane on behalf of Darby, Inc., who on that same day (October 29, 1975) acquired all of the outstanding stock in Darby, Inc. Pltfs’ Ex. 4. Arthur Morowitz signed on behalf of Distribpix. Pltfs’ Ex. 4.
Finally, on this same date, Arthur Mo-rowitz endorsed both of the previously discussed Darby, Inc. checks, i.e., # 599 and # 600 (totalling $25,000.00), over to Distrib-pix, and deposited same to the account of Distribpix. Pltfs’ Ex. 5; Tr. p. 97. It is this cash disbursément from Darby, Inc. to Distribpix that resulted in the additional tax assessment against plaintiffs by the Commissioner of Internal Revenue.
The Commissioner audited the $25,000.00 payment made by Darby, Inc. to its sister corporation, Distribpix, and determined that such represented a constructive dividend of $12,500.00 to each shareholder therein, i.e., plaintiffs Morowitz and Far-ber, to the extent of their stockholders’ interest. Accordingly, the Commissioner assessed additional taxes on the deemed constructive dividend as follows: against the Morowitzes’ 1975 joint individual income tax return in the amount of $6,614.91, plus $2,880.92 in deficiency interest; against the Farbers’ 1975 joint individual income tax return in the amount of $7,543.55, plus $3,267.68 in deficiency interest. The taxpayers paid such additional tax and interest assessments on or about December 31, 1981.
On March 24, 1983, the Morowitzes and the Farbers filed timely administrative refund claims with the Internal Revenue Service seeking return of the additional taxes assessed by the Commissioner and interest levied thereon. Plaintiffs therein alleged that the Commissioner’s decision attributing the receipt of constructive dividend income to them (i.e., sole shareholders of Darby, Inc.) as a result of the $25,000.00 paid by brother corporation, Darby, Inc. to sister corporation, Distribpix, was incorrect, unlawful and illegal. This was true, the plaintiffs asserted, because: (i) the payment was made by Darby, Inc. to Distrib-pix “as a final settlement of obligations arising from [the] written agreement between the respective corporations dated December 27, 1973”; and (ii) “such receipt was properly reported and reflected on the books and records of Distribpix as ‘film rental income.’ ” Petition Exs. A and B (emphasis added). The plaintiffs alternatively argued that — if the Commissioner deemed such payment properly attributable to them, then said payment should be characterized as “additional long term capital gain realized upon the sale ... of the taxpayers’ entire stock ownership interest in Darby, Inc.” Petition Exs. A and B.
Upon review of plaintiffs’ refund claims, the Commissioner denied the same. Specifically, the Commissioner disallowed the refund claims because the plaintiffs failed to establish either: (i) that the payment represented a final settlement of obligations arising from a written agreement dated December 27, 1973 between Darby, Inc. and Distribpix; or (ii) that Darby, Inc. did not have sufficient accumulated earnings and profits, or earnings and profits for the current year to cover the payment of a taxable corporate dividend. Following the Commissioner’s denial of plaintiffs’ refund claim, the instant action was filed in this court.
CONTENTIONS OF THE PARTIES
A. Plaintiffs
The plaintiffs present two arguments in support of their contention that the Commissioner illegally and erroneously assessed additional taxes against them. First, they maintain that the $25,000.00 payment from Darby, Inc. to Distribpix *627represents a settlement payment of the balance due on the December 27, 1973 contract entered into between Mr. Darby and Distribpix. Relative to this position, the plaintiffs assert that, in order to sell their stock interest in Darby, Inc. to a third party (Mr. Robert Kane), Darby, Inc. paid such sums to terminate Mr. Darby’s contract with Distribpix. In so terminating this (December 27, 1973) contract, plaintiffs boldly maintain that they exercised their business judgment, and avoided the possibility of substantial litigation and attorneys fees that could have resulted if Mr. David Darby had breached his contract with Distribpix.9
Second, and alternatively, the plaintiffs assert that if the court should determine that the $25,000.00 payment was properly imputed to them, then such sum should be construed as “a step transaction in the termination of the [plaintiffs’] entire interest in Darby, Inc.” Pltfs’ Post-Trial Memorandum p. 25. Therefore, they postulate that the monies should be characterized and taxed as capital gains income.
B. Defendant
As previously mentioned, at the close of plaintiffs’ case-in-chief, defendant orally moved to dismiss the action, due to plaintiffs’ failure to establish a claim upon which relief could be granted by rebutting the presumption of the correctness of the determination of the Commissioner. Tr. p. 130. The court, after some reflection, took said motion under advisement. In opposition to plaintiffs’ assertions, defendant maintains that because it is undisputed that —(i) there was no agreement pursuant to which Darby, Inc. was assigned the rights and assumed the obligations of Mr. Darby’s December 27, 1973 contract with Dis-tribpix, and (ii) the $25,000.00 payment was neither connected with the sale of Darby, Inc.’s stock, nor did it constitute payment of part of the negotiated purchase price of Darby, Inc.’s stock by Robert Kane — plaintiffs were compelled (and failed) to establish that Darby, Inc. had a legitimate corporate business purpose for paying $25,-000.00 to Distribpix.
Next, defendant contends that plaintiffs .also are not entitled to capital gains treatment with respect to the aforementioned $25,000.00 payment. In this connection, defendant argues that the payment did not represent part of an integrated plan to sell the stock of Darby, Inc. to the buyer, Mr. Kane, because Mr. Kane neither had knowledge of the transfer of funds prior to the sale, nor did he agree to said transfer. Therefore, defendant concludes that the court should enter judgment dismissing the petition.
SCOPE OF THE COURT’S OPINION
At the outset, we decline to rule on defendant’s oral motion to dismiss the petition, advanced at the end of plaintiffs’ proof, for failure to state a claim upon which relief can be granted. But rather, we chose to defer our ruling and pass judgment upon the merits of the record evidence adduced at trial. In so doing, the court will first address the operative presumption which the taxpayers are compelled to rebut in order to prevail on the merits of their claims. Next, we shall delineate the burden of proof plaintiffs must satisfy in. order to rebut the aforementioned presumption. Finally, we will evaluate the evidence submitted by the taxpayers in rebuttal of the operative presumption and in light of the applicable legal principles.
ISSUES
Given the strong presumption of favoring the defendant, the threshold inquiry is — whether the plaintiffs have carried their burden of rebutting the presumptive correctness of the Commissioner’s determination that the $25,000.00 payment by Darby, Inc. was a constructive dividend in the year of payment. See Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. *628212 (1933); Puritan Lawn Memorial Park Cemetery v. United, States, 15 Cl.Ct. 234, 240 (1988); U.S. Shelter Corp. v. United States, 13 Cl.Ct. 606, 621-22 (1987); KFOX, Inc. v. United States, 206 Ct.Cl. 143, 150-51, 510 F.2d 1365, 1369 (1975).
Inasmuch as we find, as a matter of law, that the plaintiffs have utterly failed to rebut the above-mentioned operative presumption, such failure is dispositive of the merits. Accordingly, the instant petition must be dismissed.
DISCUSSION
At the outset, plaintiffs challenge the Commissioner’s determination that the transfer of funds from Darby, Inc. to Dis-tribpix resulted in: (i) a constructive dividend 10 to them as shareholders of Darby, Inc., and (ii) a contribution to the capital of Distribpix. However, unless the taxpayers prove the Commissioner’s presumptively correct determination to be erroneous, the tax imposed must be confirmed. See Welch, 290 U.S. at 115, 54 S.Ct. at 9.11
As previously stated, Darby, Inc. and Distribpix were “brother-sister” corporations. This is so because, at the time of the relevant transaction, they were effectively controlled and owned exclusively by the plaintiffs, i.e., Arthur Morowitz and Howard Farber. See Inland Terminals, Inc. v. United States, 477 F.2d 836, 840 n. 8 (4th Cir.1973); Performance Systems, Inc. v. United States, 382 F.Supp. 525, 532-33 (D.Tenn.1973). Generally, “where brother-sister corporations are involved, earnings can be transferred between them only through the common ... shareholders, who will be subject to a progressive individual income tax.” Inland Terminals, 477 F.2d at 840. The test for determining whether such distribution of funds constitutes a dividend is whether the transfer primarily is made for the benefit of the shareholder and whether he received a direct or tangible economic benefit therefrom. Joseph Lupowitz Sons, Inc. v. Commissioner of Internal Revenue, 497 F.2d 862, 868 (3d Cir.1974); Gilbert v. Commissioner of Internal Revenue, 74 T.C. 60, 64 (1980); Magnon v. Commissioner, 73 T.C. at 994.
Relying on these general principles, the Commissioner implicitly found that the taxpayers, the sole shareholders of each brother-sister corporation, failed to establish that they did not receive a direct or tangible economic benefit from subject $25,-000.00 payment. To reiterate, in order to succeed in the instant action, the plaintiffs must first overcome the presumption of correctness that endows the Commissioner’s determination. See Welch, supra, at 115. However, even assuming, arguendo, that the taxpayers overcome this presumption, and we hold, infra, that they clearly do not, such a showing is ipso facto, on this record, insufficient to overcome the additional tax assessment. Plaintiffs have the affirmative burden, nevertheless, of proof by a preponderance of the evidence. In furtherance thereof, the taxpayers would also be required to affirmatively prove the true business purpose of the transfer. See Sammons v. Commissioner, 472 F.2d 449, 452 (5th Cir.1972); Gilbert, 74 T.C. at 64-65.
*629A. Presumption of Correctness
Our threshold observation notes that a presumption is a rule of law that attaches procedural consequences to an evidentiary fact as to the opponent’s duty to come forward with other evidence contrary thereto. 9 J. Wigmore, Evidence § 2491 (Chadborn rev. 1981); see also Legille v. Dann, 544 F.2d 1, 5 (D.C.Cir.1976). Black’s Law Dictionary, 1067 (5th ed. 1972) defines a presumption as — “a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” Simply stated, the effect of a true presumption of law12 is to invoke a rule of law that would compel the trier of fact to reach the stated rational conclusion absent evidence to the contrary from the opponent thereof. 9 J. Wigmore, Evidence, supra; Legille, 544 F.2d at 5. On the other hand, if the opponent presents the necessary quantum of creditable evidence, the presumption evaporates as a rule of law. Helvering v. Taylor, 293 U.S. at 514-15, 55 S.Ct. at 290-91; De Cavalcante v. Commissioner of Internal Revenue, 620 F.2d 23, 27-28 (3d Cir.1980), aff'g a memo of the U.S. Tax Court. In such circumstance, the merits of the case would then be in the hands of the trier of fact (in this case, the court), unfettered by operation of the “presumed” legal rule. 9 J. Wigmore, Evidence, supra; Legille, 544 F.2d at 5-6.
Operating in the instant matter is the presumption that, in the context of a tax refund suit, the Commissioner’s determination is generally deemed to be correct. Welch, 290 U.S. at 115, 54 S.Ct. at 9; U.S. Shelter Corp., 13 Cl.Ct. at 622; Berkery v. Commissioner of Internal Revenue, 91 T.C. No. 17, slip op. at 12 (U.S.Tax Court, July 29, 1988) [available on WESTLAW, 1988 WL 77545]. This presumption attaches to the defendant’s position ab initio; hence the taxpayers herein are, as a consequence, duty bound to come forward with evidence sufficient to avert same. Notwithstanding our ultimate finding herein, if the Commissioner’s “determinations are shown to be [incorrect], the presumption evaporates,” Berkery, 91 T.C. No. 17, slip op. at 12 (citations omitted), and “the burden of going forward with evidence then shifts to [the defendant].” Berkery, 91 T.C. No. 17, slip op. at 12 [available on WESTLAW, 1988 WL 77545], citing to Helvering v. Taylor, 293 U.S. at 514-15, 55 S.Ct. at 290-91; De Cavalcante, 620 F.2d at 27-28; Dellacroce v. Commissioner, 83 T.C. 269, 280 (1984). Based upon the foregoing principles, the court’s first mission is to determine whether the proof presented by the plaintiffs during the aforementioned trial comports with that evidence which is required to disprove the applicable presumption.
B. Burden of Proof
“The burden of proof in a tax refund suit is on the [taxpayer] petitioner.” Welch, 290 U.S. at 115, 54 S.Ct. at 9; US. Shelter Corp., 13 Cl.Ct. at 621. In this connection, as previously stated, prior to proving the merits of their claims, the taxpayers must first controvert the presumption of correctness that attaches to the determination of the Commissioner. U.S. Shelter Corp., 13 Cl.Ct. at 621-22. To overcome said presumption in the instant matter, the taxpayers have “the burden of presenting ‘substantial evidence as to the wrongfulness of the Commissioner’s determination.’ ” U.S. Shelter Corp., 13 Cl.Ct. at 621, citing, KFOX, Inc., 206 Ct.Cl. at 151-52. Specifically, the plaintiffs must present substantial evidence to the effect that: (i) Darby, Inc. was legally obligated to Distribpix at the time of payment in *630October 1975 on the contract entered into between Mr. Darby and Distribpix on December 27, 1973; (ii) the $25,000.00 payment by Darby, Inc. to Distribpix represented a final settlement of the aforementioned obligation; and (iii) they (the taxpayers) received no direct or tangible economic benefit from said payment, Joseph Lupowitz Sons, 497 F.2d at 868; Gilbert, 74 T.C. at 64; Magnon, 73 T.C. at 994; or (iv) Darby Inc. had neither retained earnings nor profits for the current year from which to pay taxable dividends. As we find, infra, the taxpayers’ meager proof offered little, if any, rebuttal evidence, all of which was insufficient to overcome the Commissioner’s determination.
C. Analysis of Evidence Presented
From our analysis of the entire record, we find that the plaintiffs, sole shareholders of brother-sister corporations Darby, Inc. and Distribpix, offered absolutely no coherent or probative evidence designed to establish any of the above-enumerated facts. We will now address each of the foregoing issues, seriatim.
1. Darby, Inc. was obligated to make payments to Distribpix on the contract entered into between Mr. Darby and Distribpix.
In order to meet their burden of proof, it is incumbent upon the plaintiffs to offer evidence sufficient to prove the purported obligation of Darby, Inc. to Distribpix for Mr. Darby’s December 27, 1973 contract with Distribpix. We find, relative thereto, that plaintiffs simply failed to satisfy the burden.
At the trial, only one witness testified on behalf of plaintiffs, i.e., Mr. Farber. Mr. Farber, to the limited extent we deem his testimony credible, conceded that there was no written agreement whereby Darby, Inc. obligated itself to make payments on Mr. Darby’s December 27, 1973 contract with Distribpix; that only David Darby, the individual, was liable therefor; and that to his knowledge no document was executed for a consideration where Darby, Inc. assumed the December 27, 1973 obligation of David Darby, the individual. Tr. p. 80-81; 112-13; 124-27. Moreover, he (Farber) established that the December 27, 1973 contract payments were current on the date Darby, Inc. transferred subject $25,000.00 to Dis-tribpix. Tr. p. 79, 111.
To the degree this testimony was relevant, we find that it is thoroughly unsup-portive of the plaintiffs’ contention that Darby, Inc. was obligated to make any payments to Distribpix with reference to the December 27, 1973 sales agreement between David Darby (individual) and Dis-tribpix. Pltfs’ Ex. 1. To the contrary, such testimony contradicts the plaintiffs’ stated position. Tr. p. 80-81. Thus, it can be seen that plaintiffs offered no probative evidence, through testimony or written documentation, supportive of their contention that David Darby, Inc. was legally obligated to curtail the balance due ($58,000.00) by David Darby (individual) to Distribpix under the December 27, 1973 contract. Pltfs’ Ex. 1.
The court further notes that certain evidence could have been presented, but that such was not. Co-plaintiff Mr. Morowitz, the other shareholder in Darby, Inc. and Distribpix and principal in many of the questionable transactions, was neither called to testify nor was his absence as a witness explained. This is so in spite of the fact that: (i) he signed both checks (totalling $25,000.00) that were transferred to Distribpix; (ii) he participated in the “negotiations” that took place to sell the stock of Darby, Inc. to Mr. Kane; and (iii) he allegedly fed documents to Mr. Farber and showed him letters in preparation for the instant trial. Tr. p. 95. If, in fact, plaintiff Morowitz was as knowledgeable as it appears Mr. Farber seems to suggest, his testimony, no doubt, would have been invaluable to the plaintiffs in support of their claims.
Similarly, Mr. Darby, for some unknown reason, was not called as a witness. Based upon the evidence presented during trial, it would appear that he owned the 26 films (that were the subject of not only the December 27, 1973 contract between Mr. Darby and Distribpix (Pltfs’ Ex. 1), but also the October 29, 1975 “Agreement” between *631Distribpix and Darby, Inc. (Pltfs’ Ex. 4)), not Distribpix. Therefore, it also seems clear to this court that Mr. Darby possibly could have enlightened the court as to why the corporation (Darby, Inc.) allegedly undertook payments on his December 27, 1973 contract obligation to Distribpix.
Moreover, Darby, Inc.’s relevant financial records and income tax returns were not introduced into evidence. Perhaps through them, some light could have been shed on the ultimate issue — regarding the triie and bona fide business purposes of the $25,000.00 expenditure, supra. In sum, the individuals, i.e., Messrs. Morowitz and Darby, could have been called to explain and verify the taxpayers’ contentions. Likewise, certain Darby, Inc. records, supra, could have been adduced into evidence at trial, there being no evidence to the contrary. Nonetheless, the plaintiffs not only neglected to do so, for whatever reason, but also failed to explain such failure.
Inasmuch as a party’s failure to bring forth evidence within his control, or to explain such omission, warrants an inference that the evidence, if proffered, would be unfavorable to his cause, see Interstate Circuit, Inc. v. United States Department of Treasury, 306 U.S. 208, 226, 59 S.Ct. 467, 474, 83 L.Ed. 610 (1939); Lepkowski v. United States, 804 F.2d 1310, 1323 (D.C. Cir.1986), we conclude that the plaintiffs’ failure to call the foregoing witnesses and introduce certain Darby, Inc. records, supra, is motivated by the negative impact that such evidence would have had on their tenuous contention. Accordingly, we find as a matter of law that the Commissioner’s determination was not rebutted to the extent he found that Darby, Inc. was under no obligation to make payments to Distrib-pix, Inc., in view of the David Darby December 27, 1973 contract or any other contract stemming therefrom.
Finally, to the extent that the plaintiffs imply, in their post-trial brief, that the mere incorporation of David Darby, Inc. somehow resulted in the new corporation being responsible for Mr. Darby’s contract, we find such implication fatuous. It is a fundamental principle of law that, “until a corporation has come into being, at least to the extent of having a de facto existence, it cannot contract as a corporation.” 1A Fletcher Cyc. Corp. § 205 (Perm, ed.). Hence, since it cannot contract, it cannot be chargeable with liability upon a contract made by its promoters prior to the time of its coming into being. Id. Therefore, for purposes of contracting, it is irrelevant that the promoters are the only stockholders. The newly-formed corporation generally will not be liable on promoter contracts in the absence of “a statute or charter provision or a corporate act of adoption or ratification or novation, nor can it be considered as a party to the contract and be bound thereby in disregard of the distinction of the corporate entity from the persons of the members.” 1A Fletcher Cyc. Corp. § 205; see also n. 5 and n. 6 therein. Thus, the intent of the parties is of material importance in this respect. Cf. Whitney v. Wyman, 101 U.S. 392, 396, 25 L.Ed. 1050 (1879). No evidence whatsoever of the parties’ intent in this matter was presented to the court for consideration. Also absent was a creditable assertion by the plaintiffs that Darby, Inc. adopted, ratified, or became obligated upon Mr. Darby’s contract by novation. Accordingly, we find plaintiffs’ post-trial rationalization to be of little merit.
2. The $25,000.00 payment by Darby, Inc. represented a final settlement of Mr. Darby’s contract obligation to Distribpix.
In order for plaintiffs’ assertion in this regard to have any meaning, the court must first ascertain the nexus between Darby, Inc.’s payment to Distribpix (October 29, 1975) and the December 27, 1973 contract entered into by Distribpix and Mr. Darby. In other words, the court must find upon what authority Darby, Inc. would undertake to settle Mr. Darby’s contract obligation with Distribpix. As noted, supra, no evidence was adduced that would establish that Darby, Inc. was obligated to make payments on Mr. Darby’s December 27, 1973 contract. Reviewing the record, we are constrained to likewise conclude *632that the plaintiffs submitted no evidence that would even remotely infer a plausible connection between Darby Inc.’s $25,000.00 distribution to Distribpix, and the December 27, 1973 contract between Distribpix and Mr. Darby. We further conclude that the record fails to establish that Darby, Inc. had a legal right to involve itself into the contract relationship between Mr. Darby and Distribpix, i.e., to terminate such relationship. Accordingly, we hold that nothing in this record warrants a finding that subject $25,000.00 payment represented a final settlement of Mr. Darby’s December 27,1973 contract obligations to Dis-tribpix.
Plaintiffs offered the testimony of Mr. Farber and an October 29, 1975 “Agreement” (Pltfs’ Ex. 4) between Darby, Inc. and Distribpix to buttress the above-stated assertion. In that connection, Farber testified that the December 27, 1973 sales agreement was “taken over by David Darby, Incorporated in 1974.” Tr. p. 78. However, as amplified, supra, Farber also testified that no formal documentation of this fact existed; and as we noted, Mr. Darby was not called to verify Mr. Farber’s statement. Continuing, nonetheless, Mr. Farber testified that the purpose of issuing Darby, Inc. checks # 599 and # 600 {i.e., the $25,-000.00 disbursement) was “to terminate the agreement for the motion pictures from the 1973 original contract [and], to terminate [Mr. Darby’s notes]_” Tr. p. 78.
The October 29, 1975 “Agreement” (Pltfs’ Ex. 4) was then offered as evidence that this transaction occurred. However, close scrutiny of said document reveals that it simply fails to establish the requisite nexus between the subject $25,000.00 distribution to Distribpix and termination of Mr. Darby’s December 27, 1973 contract. By its expressed terms, the October 29, 1975 “Agreement” (Pltfs’ Ex. 4) was allegedly entered into in order to “expeditiously terminate” Distribpix’s relationship with Darby, Inc. and not Mr. Darby. Thus, the operative “relationship” that was terminated thereby was that relationship wherein Darby, Inc. distributed films that were allegedly the property of Distribpix. However, plaintiffs now aver that paragraph 9 of said agreement “terminated” Mr. Darby’s contract, in that said paragraph provided that:
9. Payment of a series of promissory notes executed by David DARBY as an individual in connection with these motion picture films is hereby waived and DISTRIBPIX further waives any rights of collection or enforcement of said notes provided the terms of this agreement are complied with.
(Pltfs’ Ex. 4; emphasis added). This paragraph, coupled with the aforementioned testimony of co-plaintiff, Farber, is the crux of plaintiffs’ “proof” that the $25,-000.00 payment was made to terminate Mr. Darby’s December 27, 1973 contract with Distribpix.
At first blush, the plaintiffs’ bare assertion that Darby, Inc. made the $25,000.00 payment to terminate Mr. Darby’s contract appears incredulous, particularly in light of the testimony and evidence adduced at trial. In support of its conclusive assertions, plaintiffs postured no legal principle upon which they based said contention; and, moreover, they argue no legal basis upon which Darby, Inc. became liable for Mr. Darby’s obligation to Distribpix under the December 27, 1973 contract.
However, after considerable reflection, the court finds that the contentions raised by the plaintiffs (although not specifically framed thereunder) sound in theory akin to an assignment13 and/or a novation.14 As such, what is material to our inquiry now is — whether there is any creditable evidence in the record sufficient to establish that Mr. Darby assigned his rights under the December 27, 1973 contract to *633Darby, Inc.; or whether the parties entered into a novation agreement with respect to said contract. Paragraph 13 of the October 29, 1975 “Agreement” provides that — “[t]his agreement shall be governed by the laws of the State of New York.”
Looking to New York law, we find that in order for there to have been a valid assignment of Mr. Darby’s contract rights to Darby, Inc., Mr. Darby, as assignor, would have to have transferred to Darby, Inc. as assignee, all of his rights, title, and interest in the December 27, 1973 contract. See Wood v. Rocker, 420 N.Y.S.2d 330, 332, 100 Misc.2d 890 (N.Y.Fam.Ct.1979); Acetate Box Corp. v. Johnson, 80 N.Y.S.2d 134, 135, 193 Misc. 54 (S.Ct.1948), citing, 6 C.J.S. Assignments 82, p. 1136, 1137. In so doing, the “whole right of the assignor” (Mr. Darby) would pass to the assignee (Darby, Inc.), and the assignor would have no further interest therein. Acetate Box, 80 N.Y.S.2d at 135.
In Acetate Box, supra, the trial court was faced with a situation not unlike that presented in the instant case, albeit in the context of a breach of contract action. There, a sales agreement was entered into between the plaintiff and the defendant partnership whereby plaintiff was to supply the defendant partnership with boxes. Before plaintiff made its first delivery, the defendant partnership transferred all of its assets to a corporation formed by the partners thereof. The officers and stockholders of the newly-formed corporation included members of the former partnership. Thereafter, the newly-formed corporation continued the former partnership’s busi-' ness, under basically the same name as the former partnership. Plaintiff delivered the boxes to the partnership address (now that of the corporation), naming the partnership as addressee. The corporation accepted the boxes.
The court held that the result of the transfer of assets was that the partners, who could not assign their liability, but could transfer their assets, ceased to have any contract, although they would be liable for the amount due the plaintiff thereunder. This was true because, under New York law, “any transfer of contractual duty so as to discharge the original obligor (the partnership), requires the obligee’s (the plaintiff’s) assent where such transfer alters the substance of the contract or otherwise materially affects the obligee’s rights.” Beck v. Manufacturers Hanover Trust Co., 481 N.Y.S.2d 211, 217, 125 Misc. 2d 771 (S.Ct.1984), citing, Restatement, Contracts (2d) § 318, comment d; §§ 280, 328, 329; 3 Williston, Contracts § 404 et seq. (3d ed. 1960); 4 Corbin, Contracts §§ 859-64. Thus, when the corporation later breached the contract with the plaintiff, and plaintiff sued the partnership, the court found that the partners could not counterclaim for breach of contract against the plaintiff, because the partnership’s right to performance was assigned (with the assets) from the partnership to the newly-formed corporation. The court then examined the evidence adduced at trial to determine whether there was a novation, and found that such had not occurred, because the defendant partnership failed to show that the plaintiff assented to a transfer of liability to the newly-formed corporation.
Analogously, we note in the instant case, there is a slight, but neither persuasive nor conclusive, indicia that Mr. Darby’s assets (i.e., the films) may have been transferred to Darby, Inc. That is to say, Mr. Darby may have assigned his right to the films to Darby, Inc., though there is no direct evidence to that effect. However, for the reasons stated infra, we find that.even if it were conclusively established (and it is not) that Mr. Darby assigned the 26 films to Darby, Inc., there is no evidence in the record from which we may find that, concomitantly therewith, Distribpix, Darby, Inc., and Mr. Darby agreed to the substitution of Darby, Inc. as the obligor under the December 27, 1973 contract. In other words, here a novation was neither argued nor established.
Under New York law, a novation, i.e., a contract which works an immediate discharge of a previously existing contractual duty, Kasper v. Roberts, 464 N.Y.S.2d 642, 644, 119 Misc.2d 829 (Civ.Ct.1983), must never be presumed. Beck, 481 N.Y.S.2d at *634218. “In order to prove a novation, there must be a ‘clear and definite intention on the part of all concerned that such is the purpose of the agreement.’ ” Beck, 481 N.Y.S.2d at 218 (emphasis added). To this extent, a contract of novation requires the real or reasonably apparent assent of “or subsequent ratification by [all of] the parties involved, in substitution of the subsequent agreement for the old.” Kasper, 464 N.Y.S.2d at 644. Assent, under these circumstances, is a question of fact which the court must determine based upon “an examination of the intentions of the parties, as expressed by the testimony and existing documentation.” Kasper, 464 N.Y.S.2d at 644. Therefore, in the instant matter, in order to sustain their argument, obscure as it is, the plaintiffs must satisfy the conjunctive elements of a novation, i.e.: (i) mutual assent; (ii) immediate discharge of the old obligation; (iii) consideration therefor; and (iv) presence of a new party. Wasserstrom v. Interstate Litho Corp., 495 N.Y.S.2d 217, 219, 114 A.D.2d 952 (1985); Kasper, 464 N.Y.S.2d at 644.
Initially, we encounter extreme difficulty in applying the above principles to the facts on this record because there was no written novation agreement per se introduced into evidence. Hence, there was no tangible “real or reasonably apparent” showing of assent of the parties involved submitted to the court. Next, the court is confronted with the problem that not only was no tangible document submitted evidencing a novation, but credible testimony from the relevant parties, i.e., Distribpix, Mr. Darby, and Darby, Inc., to verify this assertion was also not adduced. With the exception of plaintiff Farber’s self-serving statement that Darby, Inc. took over Mr. Darby’s contract, there is absolutely nothing else in the record upon which the court could reasonably base a finding that the parties entered into a novation agreement.
Nonetheless, even assuming arguendo that the court were to find that the October 29, 1975 “Agreement” was probative circumstantial evidence that a novation in fact occurred, and that termination of Mr. Darby’s obligation took place thereunder (with respect to which we are not inclined to so find), we are bound by New York law as to .the proper inferences we may draw from said document. Under New York law, a true novation requires three parties, whereby one party (Mr. Darby) is immediately discharged from an obligation (the December 27, 1978 sales contract) and a new party (Darby, Inc.) is substituted in his place. S & L Paving Corp. v. MacMurray Tractor Inc., 304 N.Y.S.2d 652, 657, 61 Misc.2d 90 (S.Ct.1969). Nothing in this record (including the October 29, 1975 “Agreement”) shows that: (i) Mr. Darby was discharged from performing his obligation under the December 27, 1973 sales contract in December 1974 (the date Darby, Inc. allegedly began tender of payment on the 1973 contract); (ii) Darby, Inc. assumed Mr. Darby’s responsibility under said December 27, 1973 agreement; (iii) consideration passed between Mr. Darby, Darby, Inc., and/or Distribpix for any such agreement; and (iv) all of the parties consented to such an arrangement either in December 1974, or thereafter. In fact, all that Plaintiffs’ Exhibit 4 establishes is that for some unexplained reason, upon terminating its (Distribpix’s) alleged relationship with Darby, Inc., Distribpix made a gratuitous “waiver” of its right to collect on Mr. Darby’s December 27, 1973 contract. The enforceability of such “waiver” by Mr. Darby against Distribpix is questionable, at best, because Mr. Darby was not a party to the October 29, 1975 contract and gave no consideration for said waiver to the extent manifested by the record.
Therefore, reviewing the provisions of the October 29, 1975 “Agreement” (Pltfs’ Ex. 4), we must hold that said agreement fails to establish that a novation agreement was executed by the relevant parties because: (i) Mr. Darby was not discharged of his debt thereunder, inasmuch as he was not a party to said agreement; (ii) under said agreement, Darby, Inc. does not “immediately” assume the obligations under the December 27, 1973 contract; (iii) no consideration passed; and (iv) only two of the necessary parties, i.e., Darby, Inc. and Distribpix, executed the October 29, 1975 *635“Agreement.” 15
Corroborative of the foregoing conclusion is the testimony in defendant’s case of Mr. Robert Kane, the manager of Darby, Inc. Mr. Kane testified that to his knowledge there was no written agreement where Darby, Inc. assumed David Darby’s (the individual) December 27, 1973 obligations to Distribpix (Tr. p. 132); as manager of Darby, Inc., he did not approve the $25,000.00 payment to Distribpix; the payment was not discussed with him, nor did he have any knowledge of same (Tr. p. 139); the $25,000.00 payment to Distribpix was not “part of [his] purchase price of the stock (Tr. p. 142); and the $25,000.00 payment by Darby, Inc. to Distribpix was not part of the payments then due under the December 27, 1973 agreement between David Darby (the individual) and Distribpix (Tr. p. 143).
For the above-stated reasons, the October 29, 1975 “Agreement” cannot be reasonably read as an assent by Mr. Darby to assign his right to ownership of subject motion picture films to Darby, Inc. in exchange for Darby, Inc.’s assumption of liability under the December 27, 1973 contract. At most, said October 29, 1975 contract could only affect whatever relationship Darby, Inc. had with Distribpix. Accordingly, we hold that the plaintiffs’ failure to prove either an assignment or a novation of the December 27,1973 contract precludes a finding that the $25,000.00 payment by Darby, Inc. was in settlement of Mr. Darby’s contract obligations to Distrib-pix.
3. Plaintiffs received no direct or tangible economic benefit from the transfer of funds.
Simply stated, to prove this assertion, as required, plaintiffs must demonstrate that subject $25,000.00 payment from Darby, Inc. to Distribpix was made to advance its (Darby, Inc.’s) own business interests. See Magnon v. Commissioner of Internal Revenue, 73 T.C. at 997-98.
The relevant inquiry with regard to whether a transfer of property between brother-sister corporations results in a dividend to the shareholders of the transferor corporation is: (i) did the transfer cause funds to leave the control of the transferor corporation (Darby, Inc.)?; (ii) did such transfer permit the stockholder to exercise control over such funds either directly or indirectly through some instrumentality other than the transferor corporation (Darby, Inc.)?; and, if the answer to the previous two questions is in the affirmative, (iii) did the transferor corporation intend to consummate or further a valid business purpose by such transfer? Sammons, 472 F.2d at 452. Our answer to the first two questions is affirmative, and, as to the last question, the answer is negative. Plaintiffs’ Exhibit 5 established that monies left Darby, Inc. by two certified checks paid to the order of David Darby, Inc. drawn on the account of David Darby, Inc. Such funds were endorsed over to Distribpix. The taxpayers, as sole owners of Darby Inc. and Distribpix, were obviously free to exercise control thereover. Consequently, we look to the facts to determine whether Darby, Inc. had a valid business purpose for such transfer of funds to Distribpix.
Although “the line between shareholder benefit and corporation benefit is not always clear [due to the fact that] some expenditures embody both elements, an indirect (or incidental) benefit to the shareholder, therefore, should not by itself be treated as a distribution to [the shareholder].” Sammons, 472 F.2d at 452 (emphasis added); see also, Magnon, 73 T.C. at 997-98. In search of a bona fide business purpose, the courts look to the facts underlying the transfer, and find shareholder benefit only where such results in a direct or tangible economic benefit to the shareholder. Lupowitz, 491 F.2d at 868; Gilbert, 74 T.C. at 64; Magnon, 73 T.C. at 994. Therefore, where the business justification for the expenditure put forward is not of sufficient substance to overcome a conclusion that the distribution was primarily for the shareholder’s economic benefit, the distri*636bution will be deemed to be a constructive dividend to the shareholder of the transfer- or corporation. Sammons, 472 F.2d at 451-52; Gilbert, 74 T.C. at 66-67.
As we found, supra, based upon the record evidence presented by the plaintiffs: (i) Darby, Inc. was not obligated to make payments on Mr. Darby’s contract with Distribpix; and (ii) the $25,000.00 payment was not made as a final settlement of Mr. Darby’s December 27., 1973 contract obligations. Therefore, the requisite business justification for said expenditure must be found elsewhere. Plaintiffs submitted two contracts (Pltfs’ Exs. 3 and 4) into evidence which purported to enlighten the court as to the motive behind the $25,000.00 distribution. However, upon review, we find such agreements altogether vacuous in this regard.
Plaintiffs’ Exhibit 3, a contract entered into by Messrs. Morowitz, Farber, and Kane, each in his individual capacity, provided for the sale of Morowitz’s and Far-ber’s stock interest in Darby, Inc. to Mr. Kane. Under that stock sales agreement, plaintiffs’ 100 shares were sold to Mr. Kane at a cost of $50,000.00, payable as follows: $15,000.00 in cash upon execution of the agreement, and the remaining $35,-000.00, secured by two non-negotiable $17,-500.00 promissory notes payable within 180 days thereafter. No mention of an additional $25,000.00 payment appears in the text of Plaintiffs’ Exhibit 3. Mr. Kane testified that he had no knowledge of said transfer of Darby, Inc. funds at the time Plaintiffs’ Exhibit 3 was executed, and only became aware of such after the checks were returned by the bank. Tr. p. 142-43. Therefore, we find that Plaintiffs’ Exhibit 3 neither directly or indirectly points to a business justification for said transfer.
Similarly, as we found, supra, the “Agreement” between Darby, Inc. and Dis-tribpix (Pltfs’ Ex. 4) demonstrates no reason for the $25,000.00 distribution from the former to the latter. That agreement was entered into to terminate Darby, Inc.’s alleged business relationship with Distribpix, and in that connection it states as follows:
WHEREAS, DARBY is and has been in the business of distributing motion picture films, said films being the property of DISTRIBPIX; and,
WHEREAS, DISTRIBPIX has provided DARBY with the right to distribute twenty-seven (27) motion picture films as more specifically described in Attachment I hereto; and,
WHEREAS, the parties desire to expeditiously terminate said relationship....
(Pltfs’ Ex. 4). It specifically provided, inter alia, that Darby, Inc. was to: (i) return all of Distribpix-owned property (i.e., the 26 films sold to Mr. Darby and all materials relevant thereto) to Distribpix (Pltfs’ Ex. 4, paras. 1 and 2); (ii) notify all third parties that all materials associated with the aforesaid Distribpix property in the hands of said third parties be returned to Distribpix (Pltfs’ Ex. 4, para. 3); (iii) deliver to Dis-tribpix a list of all past and present accounts receivable with respect to subject films; (iv) honor all existing agreements (with third parties) regarding said films (Pltfs’ Ex. 4, para. 5); and (v) divide outstanding accounts receivable with Distrib-pix on a 50/50 basis (Pltfs’ Ex. 4, paras. 6 and 7). No mention of a $25,000.00 disbursement to Distribpix upon the execution of said agreement for any reason appears in said document.
Considering the evidence presented to the court, and the lack thereof, we must find that the plaintiffs’ assertion, that they received no direct or tangible benefit for subject $25,000.00 transfer, simply belies the facts in this case. No plausible business justification whatsoever for said transfer has been advanced by plaintiffs, and we can glean none from this record. Absent evidence to the contrary, we therefore hold that the primary purpose of said $25,000.00 distribution was to benefit the taxpayers, Arthur Morowitz and Howard Farber.
4. Darby Inc. did not have sufficient earnings and profits, neither accumulated nor current, from which to make a taxable dividend payment to its shareholders.
As an alternative argument, the plaintiffs assert that the $25,000.00 dis*637bursement, if not found to have been related to some business purpose of Darby, Inc., should have been characterized as a return of capital by Darby, Inc. to the taxpayers, and taxed as capital gains income. Therefore, they argue that the plaintiffs may have overcome the Commissioner’s characterization of the disbursement as dividend income if they had shown by a preponderance of the evidence that Darby, Inc. simply did not have monies from which a corporate dividend could properly have been paid. However, the problem with this hypothesis is the fact that the plaintiffs have similarly failed to offer any proof in that regard.
Other than the bare allegation that the disbursement should have been characterized as capital gains income, the court could find no support for plaintiffs’ proposition. That is to say, they have simply failed to submit anything into the record for the court to consider. It is a well-settled tax principle that a corporation cannot pay a taxable dividend to its shareholders unless it has accumulated or current earnings from which to make such payment. Therefore, plaintiffs, on their burden, were compelled to show that Darby, Inc. did not have the appropriate funds from which to make a taxable dividend distribution. However, surprisingly, no testimony in this regard was offered, nor were Darby, Inc.’s financial records submitted for consideration.
We must, therefore, hold that the plaintiffs failed to establish that Darby, Inc. did not have sufficient earnings and profits from which to pay a dividend, and that the Commissioner correctly determined that the $25,000.00 payment from Darby, Inc. to Distribpix constitutes a constructive dividend to the taxpayers, Arthur Morowitz and Howard Farber, as sole owners of Darby, Inc. See Inland Terminals, supra. Furthermore, we hold that such funds, in the hands of Distribpix, constitute paid-in capital to the benefit of each taxpayer/shareholder.
CONCLUSION
The implausible position adopted and proffered by the plaintiffs, in the instant case, has probably received far more consideration than was due. This is so because they utterly failed to substantiate why the aforementioned exceedingly suspect transactions took place. As stated by Justice Cardozo in Welch, supra:
[Although] [m]en do at times pay the debts of others without legal obligatibn or the lighter obligation imposed by the usages of trade or by neighborly amenities, ... they do not do so ordinarily, not even though the result might be to heighten their reputation for generosity and opulence. Indeed, ... payment in such circumstances, instead of being ordinary is in a high degree extraordinary.
290 U.S. at 114, 54 S.Ct. at 9 (emphasis added).
Given the foregoing, this court will not find a highly obscure and unsubstantiated transfer, such as the one at bar, to be anything other than income to the plaintiffs absent creditable proof by a preponderance of the evidence to the contrary. No such showing was made here.
Accordingly, the Clerk shall enter judgment in favor of defendant, for failure of proof by plaintiffs, and dismiss the petition. This disposition moots defendant’s oral motion to dismiss made at trial. Costs are hereby assessed against plaintiffs in favor of defendant.
IT IS SO ORDERED.
. Marilyn Farber and Harriet Morowitz are parties to this action apparently solely by reason of having filed joint returns with their husbands, Howard and Arthur, respectively.
. 28 U.S.C. § 1491, “Claims against United States generally ..provides in relevant part:
(a)(1) The United States Claims Court shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department....
.26 U.S.C. § 7422, “Civil actions for refund,” provides in relevant part:
(a) No suit prior to filing claim for refund. —No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected ... or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof.
. A closely-held corporation is one typified by: (i) a small number of stockholders; (ii) no ready market for the corporate stock; and (iii) substantial majority stockholder participation in the management, direction and operations of the corporation. See Brooks v. Willcuts, 78 F.2d 270, 273 (8th Cir.1935); Donahue v. Rodd Electrotype of New England, 367 Mass. 578, 328 N.E.2d 505, 511-12 (1975).
. Capitalization of Mr. Darby’s films does not seem licit based upon the evidence presented to the court. Mr. Darby took no ownership interest whatsoever in Darby, Inc., and the contract relationship between Mr. Darby and Distribpix was not cancelled, or in any way modified in December 1974. Therefore, it does not appear that tangible or legal consideration passed to Mr. Darby at that time in exchange for the film he acquired in December 1973. Furthermore, no evidence was presented to demonstrate that title in the films passed from Mr. Darby to Darby, Inc., either by gift (inter vivos or testa*625mentary) or for consideration. Thus, looking to the record before the court, it is concluded that at the time Darby, Inc. was formed, legal title to the 26 aforementioned films remained in Mr. Darby; and there was no formalization of any understanding, transaction, or agreement that would have passed title to said films to Darby, Inc., whereby it could legitimately capitalize same.
. Also on that date, Mr. Darby became president of Darby, Inc., Mr. Morowitz became vice-president, and Mr. Farber became secretary. However, the precise offices that these individuals occupied is not clear from the record. Witness Farber gave confused testimony on the point. Tr. p. 24.
. Brother-sister corporations are two or more corporations owned and effectively controlled by one or more individuals. Inland Terminals, Inc. v. United States, 477 F.2d 836, 840 n. 8 (4th Cir.1973); Performance Systems, Inc. v. United States, 382 F.Supp. 525, 532-33 (B.Tenn.1973).
. The court notes that the plaintiffs have changed their contention with regard to Darby, Inc.’s obligation under the December 27, 1973 contract. Contrary to the position taken with the Commissioner, they no longer state that said contract was entered into by the corporations. Rather, they now blandly maintain that Darby, Inc. somehow was "obligated" to make payments for Mr. Darby.
. "Where a corporation confers an economic benefit on a shareholder without the expectation of repayment, that benefit becomes a constructive dividend, taxable to the shareholder," regardless of whether the corporation or the shareholder intended a dividend. See Magnon v. Commissioner of Internal Revenue, 73 T.C. 980, 993 (1980).
. On the other hand, Berkery v. Commissioner of Internal Revenue, 91 T.C. No. 17, slip op. at 13 (U.S. Tax Court, July 29, 1988) [available on WESTLAW, 1988 WL 77545], holds that — "when ... respondent’s determinations are shown to be arbitrary and excessive (e.g., without ‘factual foundation’ or 'rational basis’), the presumption evaporates, and the burden of going forward with evidence shifts to respondent [defendant].” Helvering v. Taylor, 293 U.S. 507, 514-15, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935); De Cavalcante v. Commissioner, 620 F.2d 23, 27-28 (3rd Cir.1980). This result obtains since a refund suit in this court is a trial on the merits, not a record review, and a determination on such merits should find whatever operative facts actually exists on said record. Nonetheless, inasmuch as the plaintiffs neither alleged that the assessment was arbitrary or excessive, nor offered proof to that end, we approach this matter from the standpoint that the Commissioner's determination was correct.
. The court in Legille distinguished presumptions of law from presumptions of fact. As the court correctly noted:
[T]he presumption "of law” — the procedural rule dictating a factual conclusion in the absence of contrary evidence — [is distinguishable] from the presumption "of fact," which in reality is not a presumption at all, see 9 J. Wigmore, Evidence § 2491 at 288-289 (3d ed. 1940), and from the "conclusive" presumption, which is actually a substantive rule of law. See 9 J. Wigmore, Evidence § 2492 (3d ed. 1940); C. McCormick, Evidence § 342 at 804 (2d ed. 1972).... A presumption, ... of law, is an inference which the law directs the (trier of fact) to draw if it finds a given set of facts....
544 F.2d at 5, n. 24 (citations omitted).
. An assignment is the transfer by a party (here Mr. Darby) of all of its rights to some kind of property, usually intangible property, such as rights in a lease, mortgage or an agreement of sale, to another third party (here Darby, Inc.). Black's Law Dictionary 109 (5th ed. 1972).
. As used in this opinion, a novation is the substitution by mutual agreement, of one debtor for another or of one creditor for another whereby the old debt is extinguished. Black’s Law Dictionary 959 (5th ed. 1972).
. Of significance, also, is the fact that the text of the agreement makes no mention whatsoever ct a 525,000.00 payment by Darby, Inc. to settle Mr. Darby’s contract obligation. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903407/ | In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Glass, J.), dated March 7, 1986, as, upon confirming a Referee’s report, (1) ordered the plaintiff husband to pay $160 per week in the form of child support for the parties’ two infant children, (2) equitably distributed the parties’ assets, (3) di*689rected the defendant to pay all the expenses of maintaining the marital residence, with the exception of capital improvements, and (4) ordered that each party shall retain all rights in and to his or her respective pension. The appeal brings up for review so much of an order of the same court, dated March 10, 1986, as, upon reargument, adhered to the decision confirming the Referee’s report to the extent that it fixed child support, equitably distributed the parties’ assets, and directed the defendant to pay all the expenses of maintaining the marital residence, with the exception of capital improvements (CPLR 5517).
Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as the judgment was superseded by the order dated March 10, 1986, made upon reargument; and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof which adhered to the original determination with respect to child support and with respect to the confirmation of so much of the Referee’s report as recommended offsetting the amount due the defendant in child support arrears under the pendente lite order and the amount she advanced for the maintenance of the parties’ Florida condominium against the parties’ 1981, 1982 and 1983 income tax refunds and the proceeds of an outstanding burglary insurance claim, and substituting therefor provisions (1) deleting the fourth decretal paragraph of the judgment which awarded child support, and (2) directing a new hearing with respect to the aforenoted portions of the Referee’s report and with respect to child support; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith; pending a hearing and new determination with respect to child support the plaintiff shall continue making payments of $160 per week pursuant to a pendente lite order of the same court (Calabretta, J.), dated October 31, 1984.
The Referee adequately set forth the factors he considered and the reasons for his recommendation regarding equitable distribution (see, Domestic Relations Law § 236 [B] [5] [d], [g]). In addition, his determination that the marital property should be equally distributed was not an abuse of discretion, given the length of the marriage, the parties’ relatively equal economic and noneconomic contributions to the marriage, and the prospective earnings of the parties (see, Domestic Relations Law § 236 [B] [5] [d]; Miller v Miller, 128 AD2d 844). In *690this regard the Referee properly determined that the cooperative apartment purchased by the plaintiff was not marital property, as it had been purchased after the commencement of the matrimonial action and the evidence adduced at the hearing established that it was not purchased with savings which may be classified as marital property (see, Domestic Relations Law § 236 [B] [1] [c], [d]; Price v Price, 69 NY2d 8). Furthermore, we do not believe that it was an abuse of discretion to refuse to credit the defendant with one half of the mortgage payments she makes while living in the marital residence when the residence is ultimately sold and the net proceeds of the sale are divided between the parties. To do otherwise would be akin to awarding the defendant maintenance, and both parties agreed not to make claims against each other for maintenance. We do note that the carrying charges the defendant is required to pay on the marital residence should be taken into account in determining the amount of child support to be awarded.
The court did err, however, when it confirmed so much of the Referee’s report as recommended offsetting the amount due the defendant in child support arrears under the pendente lite order and the amount she advanced for the maintenance of the parties’ Florida condominium against the parties’ 1981, 1982 and 1983 income tax refunds and the proceeds of an outstanding burglary insurance claim, as no determination was made as to the amount of arrears, the amount the defendant advanced regarding the Florida property, the amount of the parties’ 1983 tax refunds, and the amount due on the outstanding insurance claim. There is also an issue as to whether the insurance claim involved household items awarded to the defendant as part of the distributive award, and whether a portion of the 1981 and 1982 income tax refunds was used for the plaintiff’s support while he was living in the marital residence. A new hearing is required to determine these issues.
A new hearing is also required with regard to the issue of child support. While the Referee did list the factors he ostensibly relied upon when recommending that the plaintiff be required to pay the defendant $160 per week for support of the parties’ two children ($100 a week for Daniel, who has a learning disability, and $60 a week for William), in compliance with Domestic Relations Law § 236 (B) (7) (b), in actuality the figure arrived at by the Referee appears to be based solely upon what he believed the plaintiff was able to pay, and has no apparent relationship to the financial needs of the chil*691dren. In addition, the Referee appears to have given undue weight to the amount of support ordered pendente lite after conducting only a partial hearing on that issue. Thus, the court erred in confirming the Referee’s report with regard to child support. Given the confusing, conflicting and apparently incomplete testimony regarding the expenses of the defendant and that portion of those expenses attributable to the support of the parties’ children, a new hearing on the issue of child support is required.
We note that the appeal from the judgment does not bring up for review so much of the order as confirmed those portions of the report which were based upon the stipulation of the parties (see, Stockfield v Stockfield, 131 AD2d 834). However, the defendant’s challenge to the stipulation whereby the parties waived their claims to each other’s pension rights has been addressed by this court in Schieck v Schieck (138 AD2d 691 [decided herewith]).
We have considered the remaining contentions raised by the defendant and find them to be without merit. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903408/ | In a matrimonial action in which the parties were divorced by judgment dated March 7, 1986, the plaintiff husband appeals from an order of the Supreme Court, Queens County (Zelman, J.), dated October 8, 1987, which denied his motion to dismiss a postjudgment application by which the defendant wife sought vacatur of a provision of the judgment of divorce, which directed that each party shall retain all rights in and to his or her respective pension.
Ordered that the order is reversed, on the law, without costs or disbursements, the motion is granted, and the application is denied.
Stipulations of settlement meet with judicial favor, particularly where, as here, the terms thereof are read into the record in open court and the party seeking to vacate the stipulation was represented by counsel (see, Ianielli v North Riv. Ins. Co., 119 AD2d 317, lv denied 69 NY2d 606). Absent a showing of fraud, mistake, duress or overreaching such stipulations will not be disturbed by the court (Alexander v Alexander, 112 AD2d 121). At bar the defendant contends that the terms of the stipulation regarding the parties’ pension rights were not sufficiently definite and that there was no meeting of the minds by the parties. While the stipulation as initially read into the record could possibly be interpreted two ways, *692an examination of the record as a whole clearly establishes that the parties intended that their children be named beneficiaries of any pension moneys due on the death of either party (see, Kraker v Roll, 100 AD2d 424, 436). Finally, regardless of whether or not the stipulation as it applies to the plaintiff, a New York City Transit Police Detective, will serve to defeat the claim of a later-designated beneficiary (see, Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., 36 NY2d 348; but see, McDermott v McDermott, 119 AD2d 370, appeal dismissed 69 NY2d 1028), it constitutes a contractual promise enforceable against the plaintiff’s estate (see, Caravaggio v Retirement Bd. of Teachers’ Retirement Sys., supra).
We have considered the remaining contentions raised by the defendant and find them to be without merit. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903410/ | Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered July 18, 2012, which, to the extent appealed from as limited by the briefs, denied plaintiffs motion for summary judgment, unanimously affirmed, without costs.
The provision of the parties’ April 25, 2007 letter agreement requiring plaintiff brokerage firm to pay defendant broker draws based on commissions (plural), which is not limited to any stated period of time, is ambiguous since it is subject to different interpretations (see Feldman v National Westminster Bank, 303 AD2d 271 [1st Dept 2003], lv denied 100 NY2d 505 [2003]). Defendant also established the existence of triable issues of fact, including whether plaintiff was the first to repudiate this provision of the parties’ agreement.
We have reviewed plaintiffs remaining claims and find them unavailing. Concur—Tom, J.P, Moskowitz, Richter, ManzanetDaniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903411/ | In an action to recover legal fees, the plaintiff appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated November 4, 1986, which granted the defendant’s motion to vacate its default in answering.
Ordered that the order is affirmed, with costs.
The vacatur of the default of the defendant was proper. In the first instance, it is noted that the law favors resolution of cases on the merits (see, Charmer Indus. v 71 Grand Liq. Corp., 128 AD2d 825; J. W. Mays, Inc. v Adsco Distribs., 79 AD2d 673; Raab Corp. v Goodman Chem. N. Y. Corp., 40 AD2d 673).
It is clear that the defendant never received a copy of the summons and complaint served on the office of the Secretary of State pursuant to Business Corporation Law § 306 (see, Charmer Indus. v 71 Grand Liq. Corp., supra). Moreover, the defendant has established a meritorious defense. Under the *695circumstances it was not an abuse of discretion to vacate the default and permit the defendant to serve an answer to the complaint. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903412/ | Appeal by S.F.R. Realty Associates from stated portions of an order of the Supreme Court, Nassau County, entered May 28, 1987, and cross appeal by Two Guys From Harrison-N.Y. and Grace Retail Corporation, from so much of the order as denied their application for summary judgment.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, for reasons stated by Justice Balletta at the Supreme Court. Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903413/ | In a proceeding pursuant to CPLR article 78 to compel the respondents to grant an easement of ingress and egress to the petitioners, the petitioners, Carl V. Wortendyke, Martin C. Wortendyke and Peter Wortendyke, a partnership doing business as Wortendyke Brothers, appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Meehan, J.), dated November 10, 1986, as dismissed the proceeding.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The petitioners own a parcel of land in the Town of Orange-town which is improved by a residence and which is adjacent to Blauvelt State Park. Allegedly, the parcel is landlocked and the only feasible access to it is through an existing driveway from Tweed Boulevard through Blauvelt State Park. Prior to purchasing the parcel in question from their predecessor in title, Kyriena Ziloti, the petitioners sought to obtain an easement from the respondents, who have immediate operational control over Blauvelt State Park (see, 9 NYCRR 381.7). As reflected in the minutes of the respondents’ September 24, 1984 meeting, the following resolution was passed: "RESOLVED that an easement be granted to Miss Ziloti for a 50-year period, for a fee to be determined by Management on the basis of a professional appraisal of the property.”
Although the petitioners expressly conditioned the sale of the subject parcel upon their ability to obtain an extension of *696the existing easement from the respondent Commission, they nevertheless took title to the property with full knowledge that the grant of the easement had not been finally approved.
The petitioners allegedly purchased the subject parcel in reliance upon this resolution as well as upon various communications with the respondent Nash Castro, the Executive Director of the Palisades Interstate Park Commission. By letter dated December 3, 1985, the petitioners were informed that the grant of the easement would have to be executed by the Office of Parks, Recreation and Historic Preservation, the Attorney-General and the Comptroller of the State of New York. The petitioners alleged that Executive Director Castro assured them that the execution of the documents by this office was a mere formality. However, the Office of Parks, Recreation and Historic Preservation subsequently withheld its approval of the easement on the ground that it contravened PRHPL 13.06, which requires that any grant of an easement serve a "public purpose”. The petitioners thereafter commenced the instant proceeding to compel the grant of the subject easement.
The Supreme Court dismissed the petition after finding that the respondents lacked the authority to grant the subject easement since it was not for a "public purpose.” The petitioners now challenge this finding and contend that the September 24, 1984 resolution and the correspondence with the Palisades Interstate Park Commission evidence an enforceable contract which entitles them to specific performance. Alternatively, the petitioners claim that the respondents should be equitably estopped from denying the grant of the easement.
It is axiomatic that "[w]hen the plain language of the statute is precise and unambiguous, it is determinative” (Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565). In the instant case, the plain language of PRHPL 13.06 provides that any grant of an easement must serve a "public purpose”. The exclusively private use of the proposed easement to provide ingress and egress to the owners of the subject property does not fall within the definition of a public purpose (cf., Matter of Altona Citizens Comm. v Town of Altona, 54 NY2d 908; Murphy v Erie County, 28 NY2d 80, rearg denied 29 NY2d 551). Consequently, the Supreme Court properly found that the respondents lack the authority to grant the easement sought by the petitioners.
Moreover, the record contains no evidence indicating that either the Office of Parks, Recreation and Historic Preserva*697tion was privy to the purported agreement or that it had delegated its authority to enter into the contract to the Palisades Interstate Park Commission or to the respondent Castro. Thus, the written evidence of the purported agreement does not satisfy the Statute of Frauds (see, General Obligations Law § 5-703 [2]; Read v Henzel, 67 AD2d 186, 188-189) and is, therefore, unenforceable.
Finally, the facts at bar do not warrant the application of the doctrine of equitable estoppel. Generally, estoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties (see, Matter of Parkview Assocs. v City of New York, 71 NY2d 274, 278-279; Matter of E. F. S. Ventures Corp. v Foster, 71 NY2d 359; Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849, 852). "Moreover, '[e]stoppel is not available against a local government unit for the purpose of ratifying an administrative error’ ” (Matter of Parkview Assocs. v City of New York, supra, at 282). At bar, the easement was properly denied because it contravened the legislative mandate that an easement over park lands be granted for a "public purpose”. As such, a judicial estoppel preventing the respondents from complying with this statutory mandate would place the court in opposition to the Legislature and constitute a usurpation of that body’s prerogative (cf., Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Eden v Board of Trustees, 49 AD2d 277). Thus, we find that the equities presented in the situation at bar do not warrant a departure from the general rule which forecloses a party from asserting the defense of equitable estoppel against a governmental unit. Moreover, "[a] party contracting with the State is chargeable with knowledge of the statutes which regulate its contracting powers and is bound by them” (Parsa v State of New York, 64 NY2d 143, 147, rearg denied 64 NY2d 885; see also, Matter of Parkview Assocs. v City of New York, supra). Thompson, J. P., Brown, Weinstein and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5904429/ | — Order unanimously affirmed without costs. Memorandum: Special Term properly exercised its discretion in denying plaintiff’s motion to vacate the order, entered on default and dismissing the action on the ground of law office failure (CPLR 5015 [a] [1]; 2005). CPLR 2005 permits a court to excuse a default for law office failure; however, there must be a reasonable excuse for the delay and an affidavit of merits (see, Fidelity & Deposit Co. v Andersen &
*957Co., 60 NY2d 693, 695); plaintiff failed to provide a reasonable excuse for the delay to demonstrate that her cause of action has merit. (Appeal from order of the Supreme Court, Ontario County, Reed, J. — vacate default.) Present — Doerr, J. P., Den-man, Pine, Balio and Davis, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903421/ | Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered November 7, 2011, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.
A claim for prima facie tort cannot be asserted by an at-will employee to avoid this State’s rule that a wrongful termination claim is not available to him (Russek v Dag Media Inc., 47 AD3d 457 [1st Dept 2008]). Nor may plaintiff avoid the defects in his defamation claim by recasting the claim as one for prima facie tort (see Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). As plaintiff withdrew his defamation claim during oral argument of the motion, his request for discovery to enable him to replead it is not properly before us. Were we to consider the request, we would deny it, because plaintiff failed to show that he has a valid claim for defamation; he may not use discovery— *518either pre-action or pretrial—to remedy the defects in his pleading (see Liberty Imports v Bourguet, 146 AD2d 535, 536 [1st Dept 1989]; Chappo & Co., Inc. v Ion Geophysical Corp., 83 AD3d 499, 500-501 [1st Dept 2011]). The fraudulent inducement claim is pleaded without the requisite specificity (see CPLR 3016 [b]), since it alleges only that plaintiff was “led to believe” that defendants would not interfere with his subsequent job search, and fails to identify any statement by defendants or any speaker (see MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 295 [1st Dept 2011]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 2011 NY Slip Op 32929(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903422/ | In a proceeding pursuant to CPLR article 78 to review a determination of the respondents, dated July 11, 1985, which ordered that the petitioner’s parcel of real estate be placed on the tax rolls, the appeal is from a judgment of the Supreme Court, Dutchess County (Beisner, J.), dated September 2, 1986, which dismissed the proceeding, and from a resettled amended judgment of the same court, dated November 7, 1986.
Ordered that the appeal from the judgment is dismissed, as it was superseded by the resettled amended judgment; and it is further,
Ordered that the resettled amended judgment is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The petitioner’s real property, which was being used as a retirement community for the "middle-income” elderly, was *710not entitled to a tax exemption under Real Property Tax Law § 420-a (see, Matter of Presbyterian Residence Center Corp. v Wagner, 66 AD2d 998, affd 48 NY2d 885). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903423/ | In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Kings County (Demarest, J.), dated November 18, 1986, which, upon a fact-finding order of the same court, dated September 25, 1986, made after a hearing, finding that the appellant had committed an act which, if committed by an adult, would have constituted the crimes of robbery in the second degree, attempted assault in the second degree, and petit larceny, placed him under the supervision of the Probation Department for a period of one year. The appeal brings up for review the denial, after a hearing, of that branch of the appellant’s *711motion which was to suppress the complainant’s in-court identification.
Ordered that the order of disposition is affirmed, without costs or disbursements.
We reject the appellant’s contention that the evidence adduced did not establish his guilt beyond a reasonable doubt (Family Ct Act § 342.2 [2]). In cases such as this, the greatest respect must be accorded the determination of the hearing court in assessing the credibility of witnesses and resolving disputed questions of fact (see, Matter of Angel R., 134 AD2d 265; Matter of Lawrence S., 127 AD2d 772, 774; Matter of Jeanette Q., 119 AD2d 848, 849). The decision of the Family Court is accorded the same treatment as a jury verdict (see, People v Carter, 63 NY2d 530; Matter of Angel R., supra).
In the instant case, the complainant had an unhampered opportunity to view the appellant, who was among a group of youths who entered her store and removed various items of merchandise therefrom, for approximately 7 or 8 minutes. Although there were approximately 10 youths in the group, the complainant unequivocally stated that she saw the appellant throughout the entire incident from a distance of approximately 10 to 15 feet. She had also seen him in her store on several prior occasions. The complainant had a further opportunity to observe the appellant at close range as she struggled with him out in the street in an effort to retrieve some of the stolen merchandise. The appellant and other members of the group began to push and strike her until a passerby intervened and summoned the police. The appellant and another youth were apprehended by the police within approximately 10 minutes of the incident. Upon viewing the two youths in police custody, the complainant identified them as members of the group.
While the showup identification was properly suppressed, we find that the Family Court properly ruled that the complainant could make an in-court identification of the appellant. In view of the facts that the complainant had seen the appellant on several occasions prior to the robbery and that she had had an ample opportunity to view him during the commission of the crime, there was clearly an independent basis for the in-court identification (see, People v Thomas, 133 AD2d 867, 869; People v Thorpe, 134 AD2d 467; People v Harding, 134 AD2d 367).
Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the *712evidence (CPL 470.15 [5]). We find nothing in the evidence adduced to persuade us to disturb the Family Court’s adjudication. Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903442/ | Order of the Appellate Term of the Supreme Court, First Department, entered on or about July 15, 2011, which, to the extent appealed from, modified an amended order of Civil Court, New York County (Gary F. Marton, J.), entered on or about October 7, 2009, to reduce the amount of attorneys’ fees awarded to respondents, unanimously affirmed, without costs.
Notwithstanding that the proceeding before the Division of Housing & Community Renewal (DHCR) was related to the summary possession proceeding, Real Property Law § 234 is not applicable to the DHCR proceeding, and respondents are not entitled to attorneys’ fees incurred therein (see Matter of Blair v New York State Div. of Hous. & Community Renewal, 96 AD3d 687 [1st Dept 2012]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 32 Misc 3d 131(A), 2011 NY Slip Op 51333(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903443/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Balbach, J.), rendered July 2, 1982, convicting him of criminally negligent homicide, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
We find that the evidence was legally insufficient to permit *727the jury to find beyond a reasonable doubt that the defendant’s conduct caused the victim’s death (see, Penal Law § 125.10; People v Kibbe, 35 NY2d 407, 412). The evidence adduced at trial established that the defendant, who was sitting in his parked car, and the victim, who was standing on the sidewalk, were engaged in a conversation when several gun shots were fired in dangerous proximity to them. In an attempt to flee the firing, the victim ran several feet down the sidewalk before tripping and falling into the street. At the same time the defendant "ducked” and attempted to drive away from the curb. An eyewitness observed the right front wheel of the defendant’s vehicle run over the victim only seconds after she had fallen into the street. The point of impact was approximately 10 feet from the sidewalk and some distance from the nearest intersection.
It is manifest that the defendant can only be charged with the duty of seeing what he would have seen had he kept a proper lookout (see, People v Holt, 109 AD2d 174, lv denied 66 NY2d 615). There is no evidence in the record before us from which the jury might reasonably have inferred that the defendant would have seen the victim lying in his path in time to avoid a collision, even if he was keeping a proper lookout. It is entirely possible that the collision was caused by the victim’s falling into the path of the defendant’s oncoming vehicle rather than by any negligence on the part of the defendant.
Nor is there any proof of culpable conduct on the part of the defendant other than that he "ducked”. The eyewitness unequivocally stated that the defendant did not veer towards the sidewalk and that at the moment when the defendant accelerated the street was clear of pedestrians and other vehicles. In addition, the defendant’s vehicle was being driven away from the curb in the proper lane of travel. Nor is there conclusive evidence that the defendant was operating the car at an excessive speed. Finally, the defendant did not create the circumstances which led to the victim’s death. Instead, it was the firing of gun shots in dangerous proximity to the victim and the defendant which set this chain of events in motion.
The defendant "should not be found guilty of homicide unless his conduct ' "was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law” ’ ” (People v Holt, supra, at 177, quoting People v Kibbe, supra, at 412). On the record before us, the proof was insufficient to permit the jury to infer that the defendant’s conduct constituted a "sufficiently direct” cause of the victim’s death *728to warrant the imposition of criminal liability (People v Holt, supra, at 177-178; People v Roberts, 72 AD2d 954, 955).
Having concluded that the evidence presented was insufficient to sustain the defendant’s conviction of criminally negligent homicide, we need not address the other points raised. Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903426/ | In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the City of Yonkers (hereinafter zoning board), dated March 18, 1986, which granted the respondent Yonkers Rehabilitation Center, Inc. a use variance, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered October 31, 1986, which confirmed the determination and dismissed the proceeding on the merits.
Ordered that the judgment is affirmed, with one bill of costs.
We agree with the Supreme Court that the zoning board’s determination to grant the use variance, which was made after a public hearing, was based upon substantial evidence in the record and was not arbitrary or capricious (see, Matter of Fiore v Zoning Bd. of Appeals, 21 NY2d 393, rearg denied 21 NY2d 1040; Matter of Point Lookout Civic Assn. v Zoning Bd. of Appeals, 94 AD2d 744; Matter of Consolidated Edison Co. v Hoffman, 43 NY2d 598).
The petitioner’s contention that he was denied due process is without merit (see, Zelenski v Incorporated Vil. of Patchogue, 51 AD2d 1055). The record shows that he attended the hearing before the zoning board and, in fact, voiced his objections to the granting of the variance. Therefore, he was not prejudiced by the failure to receive written notice.
We find that the petitioner’s remaining contentions are without merit. Lawrence, J. P., Fiber, Harwood and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903428/ | In a proceeding pursuant to CPLR article 78 to review a determination of the appellants dated January 25, 1985, terminating the petitioner’s services as a teacher of biology and general science, the appeal, as limited by the petitioner’s brief, is from an order and judgment (one paper), of the Supreme Court, Kings County (Golden, J.), dated March 24, 1986, which granted the petition, annulled the determination, restored the petitioner to his position as a full-time teacher of biology and general science nunc pro tunc to February 16, 1985, together with back salary, and declared the petitioner a tenured teacher of biology and general science effective February 17, 1983.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
The appellants correctly assert that the petitioner was not entitled to two years of credit toward his probationary period for the time he served as a per diem substitute teacher (see, Education Law § 2573 [1] [a]), since he was not serving as a regular substitute (see, Dubin v Macchiarola, 81 AD2d 630, affd 54 NY2d 802; Matter of Ducey, 65 NY St Dept Rep 65; Regulation of Chancellor, City School Dist of City of NY No. C-510 [Feb. 12, 1985]). Since the petitioner’s three-year probationary period (see, Education Law § 2573 [1] [a]) did not expire before he was informed of the appellants’ determination to terminate his service, he is not entitled to tenure by estoppel or acquiescence (see, Matter of Mugavin v Nyquist, 48 AD2d 727, affd 39 NY2d 1003; Matter of Pascal v Board of Educ., 100 AD2d 622).
However, the petitioner, after receiving satisfactory ratings for more than three years of per diem substitute service and one year of full-time probationary service, was, upon recommendation of his supervisor and of the Superintendent, *715awarded a certificate of completion of probation on February 17, 1983. The granting of tenure at that time, although apparently done under the mistaken belief that he was entitled to credit toward his probationary period for the time he served as a per diem substitute, was not unauthorized, unlawful or against public policy (see, Matter of Roberts v Community School Bd., 66 NY2d 652; Matter of Weinbrown v Board of Educ., 28 NY2d 474; Central School Dist. No. 1 v Three Vil. Teachers Assn., 39 AD2d 466; see also, Matter of Schlosser v Board of Educ., 62 AD2d 207, affd 47 NY2d 811; Matter of Moritz v Board of Educ., 60 AD2d 161). Thus, the appellants may not disclaim that award of tenure (see, Matter of Moritz v Board of Educ., supra), and must follow the procedures outlined in Education Law § 2573 (5) and § 3020-a before they may remove the petitioner from service. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903429/ | Judgment Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 23, 2011, which, after a nonjury trial, awarded plaintiff law firm fees with interest, costs and disbursements in the total amount of $32,523.02, unanimously affirmed, without cost.
Defendant does not challenge the terms of the retainer agreement, that the work was performed, or the reasonableness of the time expended by plaintiff in representing defendant in the underlying action. His arguments on appeal are unavailing as well as unpreserved and/or unsupported by the record. Concur— Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903430/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities, dated May 23, 1986, which, after a hearing, denied the petitioner’s application to discharge James Boyle as a resident in its facility.
Adjudged that the petition is granted, the Commissioner’s determination is annulled, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the determination of the Hearing Officer is reinstated and confirmed, and the application is granted.
James Boyle, a profoundly retarded, autistic and deaf individual, who was described as multiply handicapped, was born on March 8, 1965. He has been institutionalized at the petitioner’s facility since April 18, 1982. The petitioner is a division of the New York Foundling Hospital, a nonprofit agency which serves dependent and neglected children. As part of its program, the agency has opened a number of Intermediate Care Facilities (hereinafter IGF) designed to serve multiply handicapped children. The petitioner, which operates one such facility, does not have a highly structured setting and does not utilize aversive techniques in its treatment.
The respondent Office of Mental Retardation and Devlopmental Disabilities (hereinafter OMRDD) supervises ICF pro*716grams such as the one implemented by the facility at which James resides. Pursuant to regulations promulgated by OMRDD, the petitioner was required to consult with and obtain the permission of James’ parents concerning such aspects of its program as change of behavior programs for him and the dissemination of information concerning James to other facilities which might be potential resources for him.
During the spring of 1985, there was an increase in aggressive and assaultive behavior on James’ part including physical striking of staff members and other residents as well as other incidents which resulted in injury and a bus company’s refusal to transport James to school. Such behavior continued unabated to the time of the hearing which was conducted with respect to the petitioner’s recommendation that James be discharged from the petitioner’s facility and enrolled in a more appropriate facility. A series of 29 different incidents of aggressive or assaultive behavior by James was summarized in documents which were admitted into evidence at the hearing.
The Hearing Officer, upon weighing the testimony of both sides and "considering the best interests of James at this stage in his life”, determined that "an appropriate placement other than Saint Agatha should be found for him”. Accordingly, OMRDD was directed to cooperate with the petitioner and James’ parents in determining the type of program best suited to fulfilling James’ needs. The respondent Commissioner, upon reviewing the evidence presented at the hearing, rejected the Hearing Officer’s recommendation and directed that James remain at the petitioner’s facility on the ground that "St. Agatha failed to prove by substantial evidence that they [sic] could not meet the needs of Mr. Boyle and that better alternative placements exist”.
Upon transferal of a matter pursuant to CPLR 7804 (g), an Appellate Division is empowered to dispose of all issues in the proceeding itself or to remit the proceeding in the event the papers are insufficient. "This court’s function in reviewing the substantiality of the evidence upon which an administrative agency has acted is to exercise a genuine judicial function and not to confirm a determination merely because it was made by such an agency” (Matter of Diotte v Fahey, 97 AD2d 653).
Pursuant to the regulations outlined in the OMRDD’s Manual of Policies and Procedures, the Commissioner’s scope of review is limited to whether the decision of the Hearing Officer is supported by substantial evidence. While the Hearing Officer’s determination is entitled to great weight, it is not *717conclusive (see, Matter of Simpson v Wolansky, 38 NY2d 391, 394).
In the instant case, ample testimony was adduced to the effect that James’ progress at the petitioner’s facility has been quite limited and has, at times, regressed to the point where he poses a danger to those around him. Testifying staff members indicated that the petitioner had implemented the recommendations submitted by the Institute for Basic Research with the exception that it engage a deaf male individual as a companion for James. In the opinion of Dr. Lukens, supervising psychologist at the petitioner’s facility, the petitioner’s inability to implement an appropriate plan for James was attributable, in part, to the requirement that there be parental approval prior to the implementation of any behavior modification plans. As of the time of the hearing, James’ parents had not approved of any changes. Moreover, unlike other institutions, the petitioner was powerless to restrict visitation in an effort to ascertain whether a control of visitation diminished a patient’s disruptive behavior.
There clearly existed substantial evidence to support the determination of the Hearing Officer. Inasmuch as the respondent Commissioner’s overruling of the Hearing Officer was not supported by substantial evidence, the determination under review is annulled and that of the Hearing Officer is reinstated and confirmed (see, Tucker v Malone, 114 AD2d 844, 845; Matter of Bruemmer v Vecchio, 93 AD2d 863). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903431/ | Proceeding pursuant to CPLR article 78 to review a determination of the respondent Thomas A. Coughlin, III, Commissioner of the New York State Department of Correctional Services, dated September 9, 1987, which affirmed the determination of the respondent Charles J. Scully, Superintendent of Green Haven Correctional Facility, which, after a hearing, found the petitioner guilty of fighting, assault (two counts), and disturbing the order of the facility, and imposed a sanction.
Adjudged that the petition is granted, on the law, without costs or disbursements, the determinations of the respondents are annulled, the charges are dismissed and the respondents are directed to expunge all references to the proceeding from the petitioner’s departmental and institutional files and to restore any good behavior allowance lost by the petitioner.
*718We find that the respondents’ determinations were not supported by substantial evidence.
The only evidence in support of the assault charges was a misbehavior report, written by Sergeant Michael Britton, who testified that he had not witnessed the assaults. Britton stated that his report was based upon information he had obtained from other unidentified officers, who had allegedly observed the assaults. However, no other direct or circumstantial evidence tending to support the assault charges was submitted at the hearing. Therefore, there was no " 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” that the petitioner had assaulted two other inmates (cf., Matter of Giano v Sullivan, 137 AD2d 529, 531, quoting from People ex rel. Vega v Smith, 66 NY2d 130, 139). Contrary to the respondents’ contention, in Matter of Giano v Sullivan (supra), in addition to a misbehavior report, there was direct and circumstantial evidence which supported the charges against the inmate.
With regard to the charges of fighting and disturbing the order of the facility, the testimony of Officer Stephen P. Pinchak only indicated that prior to the fight in the prison yard, he saw the petitioner being chased by another inmate who was armed with a broom handle. Pinchak caught up to the inmate, who was chasing the petitioner and started to escort the inmate, who was "cut up quite severely”, out of the yard and to the hospital. "All of a sudden”, the inmate "jumped out” of Pinchak’s arms and began to chase the petitioner again. As the officer chased the inmate, the latter picked up a rock and hit the petitioner on his back. They chased around a bit more and when the inmate finally caught the petitioner, they began fist fighting in the yard. Under these circumstances, it cannot be said that there was substantial evidence that the petitioner was responsible for fighting and disturbing the order of the facility. The respondents’ contention that the petitioner was being attacked by one of the inmates that the petitioner had allegedly assaulted earlier that day was also not supported by substantial evidence in the record.
We find that the petition must be granted for the further reason that the "respondents * * * impermissibly denied to [the] petitioner his right to call [certain inmates as] witnesses in violation of their own regulations (see, 7 NYCRR 254.5)” (Matter of Barnes v LeFevre, 69 NY2d 649, 650). As noted in Matter of Barnes, "where the record does not reflect any reason for the witness’ refusal to testify, or that any inquiry *719was made of him as to why he refused or that the hearing officer communicated with the witness to verify his refusal to testify, there has been a denial of the inmate’s right to call witnesses as provided in the regulations” (Matter of Barnes v LeFevre, supra, at 650). In this case, the petitioner had requested that two inmates be called as witnesses. However, these inmates were permitted to indicate their refusal to. testify by so noting on a printed form, apparently issued by the New York State Department of Correctional Services, to be used in its various facilities. Specifically, a blank form provides as follows:
"REQUESTED INMATE WITNESS REFUSAL TO TESTIFY IN TIER II/TIER III DISCIPLINARY HEARING
"I, _, _, hereby refuse to testify on behalf of
NAME DIN
_, _, in his/her Tier II/Tier III hearing for a
NAME DIN
misbehavior report of _ for the following reason(s):
DATE
"1. Does not want to be involved_
"2. Does not know enough about specific incident to provide relevant testimony_
"3. Other (specify reason)_
SIGNATURE DATE
"If the requested inmate witness refuses to complete or sign this form, such refusal should be indicated below and witnessed by two employees.
_Refuses to sign or provide reasons for refusal to testify.
"Witnessed By:_Date_Time_
"Witnessed By:_Date_Time_”.
The witnesses herein put "X” marks next to reasons numbered 1 and 2 and signed and dated the forms.
Contrary to the respondents’ contention, we do not find that the form comports with the requirements of the Court of Appeals holding in Matter of Barnes v LeFevre (supra). In that case, the court clearly held that the respondents had the responsibility of making a meaningful effort to secure the testimony of requested inmate witnesses. The mere fact that a witness checked a box indicating he did not want to get involved is an insufficient reason to justify the failure to obtain the witness’s testimony without further inquiry (see, 7 NYCRR 254.5; Matter of Briggs v Lord, 138 Misc 2d 421). *720Moreover, the witnesses’ indications on the form that they "[did] not know enough about [the] specific incident to provide relevant testimony” were clearly specious since the prison officers contended that these two inmates were the individuals who were assaulted by the petitioner. Additionally, one of these inmates had engaged the petitioner in the later fist fight which was observed by Officer Pinchak. Therefore, the Hearing Officer’s failure to interview these witnesses to explore their reasons for not testifying constituted a denial of the petitioner’s rights afforded him under the respondents’ own regulations (see, 7 NYCKR 254.5; Matter of Barnes v LeFevre, supra). The mere use of this form, under the circumstances, facilitated circumvention of the petitioner’s right to call witnesses as provided in the regulations.
In light of our determination, we do not reach the other contentions raised by the petitioner. Mollen, P. J., Thompson, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903432/ | In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Friedman, J.), dated July 17, 1987, which, upon a fact-finding order of the Family Court, Nassau County (Feiden, J.), dated May 18, 1987, made upon the appellant’s plea of guilty, to having committed an act, which, if committed by an adult, would have constituted the crime of criminal mischief in the fourth degree, placed him in the custody of the New York State Division of Youth for a period of 12 months.
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the matter is remitted to the Family Court, Nassau County, for further proceedings on the petition.
The appellant argues, and the Corporation Counsel concedes, that his plea allocution was insufficient to ensure that his admission was a knowledgeable and intelligent waiver of his rights. The record clearly establishes that the Family Court failed to apprise the defendant of his constitutional and statutory rights and the consequences of a waiver thereof (see, Matter of Delfín A., 123 AD2d 318; Matter of Schlena P., 98 AD2d 750; Matter of Christopher F., 126 AD2d 975). As a result, the dispositional order must be reversed, the fact-finding order must be vacated, and the matter remitted to the Family Court, Nassau County, for further proceedings on the petition. Mollen, P. J., Thompson, Lawrence and Weinstein, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903433/ | Judgment Supreme Court, New York County (Ira Gammerman, J.H.O.), entered December 23, 2011, which, after a nonjury trial, awarded plaintiff law firm fees with interest, costs and disbursements in the total amount of $32,523.02, unanimously affirmed, without cost.
Defendant does not challenge the terms of the retainer agreement, that the work was performed, or the reasonableness of the time expended by plaintiff in representing defendant in the underlying action. His arguments on appeal are unavailing as well as unpreserved and/or unsupported by the record. Concur— Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903434/ | In a special proceeding, inter alia, to quash or limit a subpoena duces tecum pursuant to CPLR 2304, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Coppola, J.), entered June 19, 1987, which denied its application in all respects.
Ordered that the judgment is affirmed, with costs.
The Supreme Court improperly held that a pharmacist is not a professional under the rule enunciated in Matter of Freeman (34 NY2d 1). We hold that a pharmacist is immune from prosecution under General Business Law § 340 (see, Matter of Pharmaceutical Socy. v Abrams, 132 AD2d 129). However, the respondent’s affidavit discloses that he seeks information concerning anticompetitive practices, inter alia, of pharmacies themselves. The petitioner’s membership comprises not only pharmacists but also pharmacies, and it appears from the papers submitted by the petitioner that the latter group includes nonpharmacists. Clearly, then, the petitioner is so closely related to the subject of the investigation into anticompetitive practices in the pharmacy industry that it must comply with the subpoena, which requests documents relevant to alleged antitrust violations of pharmacies, although some of its membership may be immune from prosecution under General Business Law § 340 (see, Matter of Syracuse Coop. Milk Distribs.’ Bargaining Agency v Attorney-General of State of N. Y., 13 Misc 2d 26, 29 [Attorney-General may require exempt persons to surrender information regarding nonexempt persons]). Accordingly, it was proper to deny the petitioner’s request to quash the subpoena.
The petitioner’s bare allegation that specific documents requested in the subpoena are not within its possession or control is insufficient to warrant modification of the subpoena (see, e.g., Fugazy v Time, Inc., 24 AD2d 443). Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. [See, 135 Mise 2d 441.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903435/ | In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Southeast, dated May 22, 1986, which, after a hearing, found that the petitioner had violated the Freshwater and Wetland Protection Law of the Town of Southeast and imposed a civil penalty, the petitioner appeals from a judgment of the Su*722preme Court, Putnam County (Dickinson, J.), dated October 14, 1986, which dismissed the proceeding.
Ordered that the judgment is affirmed, with costs.
We find that the Town Board’s determination that the petitioner was in violation of the Freshwater and Wetland Protection Law of the Town of Southeast was supported by substantial evidence and cannot be said to have been arbitrary or capricious (see, Matter of Pell v Board of Educ., 34 NY2d 222).
In addition, we find that the imposition of the civil penalty was proper and that it was not so shocking under the circumstances of this case that it should be set aside (see, Matter of Pell v Board of Educ., supra). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903436/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Glass, J.), rendered September 28, 1983, convicting him of unauthorized use of a vehicle, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
On appeal, the defendant argues that the jury verdict finding him guilty of unauthorized use of a vehicle was against the weight of the evidence. Upon the exercise of our factual review power (see, CPL 470.15 [5]), we find that the evidence adduced at trial clearly established that the defendant, knowing that he did not have the consent of the vehicle’s owner, took the vehicle and operated it (see, Penal Law § 165.05). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903437/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Gallagher, J.), rendered June 8, 1987, convicting him of attempted criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
On May 10, 1986, at approximately 4:48 a.m., Officer Jahn and his partner, assigned to the Queens Auto Larceny Unit, were on patrol in the vicinity of the Bayside Marina, which is located on the service road running parallel to the Cross *723Island Parkway. Officer Jahn observed a gold, 1984 Chevrolet Corvette, bearing Florida license plates, parked in the marina lot, facing toward the water. The individual seated in the driver’s seat, identified as the defendant, was slumped over the wheel with his head down, apparently asleep or unconscious. The parking lot was nearly dark; the only illumination came from lights along the parkway. There was only one other vehicle in the lot, parked approximately four car lengths away from the Corvette. On the mobile computer terminal inside the radio car, Officer Jahn ran a computer check on the license plates of the gold Chevrolet and discovered that there was no record of the plates on file with the Florida Department of Motor Vehicles. Clearly, at this point, the police officers had good reason to suspect that criminal activity was afoot and, thus, could exercise their common-law right to inquire, which permits an officer to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure (see, People v De Bour, 40 NY2d 210; People v Miller, 52 AD2d 425, affd 43 NY2d 789).
Officer Jahn next approached the Corvette from the passenger’s side, while his partner approached the driver’s side of the vehicle. Jahn shined his flashlight through the passenger’s side window and observed a plastic zip lock bag, which contained a white substance, protruding between the passenger seat and the center console. Officer Jahn then walked around to the driver’s side of the vehicle, opened the door and instructed the defendant, who was now awake, to exit the vehicle. As the defendant was stepping out of the vehicle, Officer Jahn shined his flashlight into the car’s interior and observed two plastic zip lock bags, also containing a white substance, on the floor of the driver’s side of the vehicle. The officer frisked the defendant and asked for his license and registration, which the defendant produced. After placing the defendant in handcuffs, Officer Jahn recovered the zip lock bags from the floor on the driver’s side of the vehicle and the bag between the console and the passenger’s seat. Officer Jahn, a 4V^-year police veteran, had effected or assisted in 25 narcotics related arrests and was familiar with how narcotics, including cocaine, were packaged from his police training and duties.
Both Federal and State decisional law permit seizure of articles which come into an officer’s plain view from a lawfully obtained vantage point (see, Coolidge v New Hampshire, 403 US 443, 466, reh denied 404 US 874; People v Thomas, 125 AD2d 895, 897). Since the officers approached the Corvette in *724the exercise of their common-law right of inquiry, which was not predicated upon a mere hunch (cf., People v Smith, 42 NY2d 961), Officer Jahn’s use of a flashlight to illuminate the interior of the car does not constitute an unreasonable intrusion (see, People v Cruz, 34 NY2d 362, rearg granted and decision amended 35 NY2d 708; People v Miller, supra; People v Howell, 78 Misc 2d 538, affd 51 AD2d 1105). With the aid of a flashlight, Officer Jahn observed, in plain view, most of a clear plastic zip lock envelope containing a white powder, which, based on his training and experience, he believed to be cocaine. Contrary to the defendant’s contention, there is authority indicating that the viewing of a glassine envelope on a floor of a car by a police officer, trained and experienced in the field of narcotics, constitutes probable cause to arrest the defendant and seize the contraband (see, People v Cox, 28 NY2d 752; People v Rowell, 27 NY2d 691; People v McRay, 51 NY2d 594). Here, a finding that Officer Jahn reasonably believed that the plastic zip lock envelope—packaging characterized as the "hallmark” of drug transactions (see, People v McRay, supra)—contained illicit narcotics rather than an innocuous substance is bolstered by the presence at 4:38 a.m. of the defendant, slumped over the wheel of a Corvette in an isolated location, well suited for the covert use of illegal drugs (see, People v Balas, 104 AD2d 1039; People v Greenridge, 131 AD2d 303; People v Piazza, 121 AD2d 573, lv denied 68 NY2d 916). These circumstances sufficed to establish probable cause to arrest the defendant (see also, People v Thomas, supra).
We also reject the defendant’s contention that Officer Jahn’s testimony at the suppression hearing was incredible as a matter of law and patently tailored to overcome constitutional objections (cf., People v Quinones, 61 AD2d 765; People v Garafolo, 44 AD2d 86). Officer Jahn’s testimony did not properly lay a foundation for proving that a photograph proffered by defense counsel accurately represented the Corvette on the date of his arrest. The picture was of a 1984 gold Corvette with tinted windows. However, Officer Jahn testified that he didn’t think the windows of the Corvette were tinted on May 10, 1986, and that that was a detail he would have remembered had such windows been present. In his opinion, tinted glass was substituted during the three-month period between the date of the arrest and the date of the suppression hearing. The defendant did not testify at the hearing, and he did not produce a witness to establish that the subject Corvette had tinted windows on May 10, 1986. Consequently, the defendant, who has the burden of proving illegality (People v Quinones, *725supra), did not establish that the officer’s view of the plastic zip lock bags protruding between the passenger seat and console was obstructed by tinted windows. Bracken, J. P., Lawrence, Rubin and Hooper, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903438/ | Order of the Appellate Term of the Supreme Court, First Department, entered on or about July 15, 2011, which, to the extent appealed from, modified an amended order of Civil Court, New York County (Gary F. Marton, J.), entered on or about October 7, 2009, to reduce the amount of attorneys’ fees awarded to respondents, unanimously affirmed, without costs.
Notwithstanding that the proceeding before the Division of Housing & Community Renewal (DHCR) was related to the summary possession proceeding, Real Property Law § 234 is not applicable to the DHCR proceeding, and respondents are not entitled to attorneys’ fees incurred therein (see Matter of Blair v New York State Div. of Hous. & Community Renewal, 96 AD3d 687 [1st Dept 2012]). Concur—Tom, J.P., Moskowitz, Richter, Manzanet-Daniels and Clark, JJ. [Prior Case History: 32 Misc 3d 131(A), 2011 NY Slip Op 51333(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903439/ | Appeal by the defendant from three judgments of the Supreme Court, Queens County (Demakos, J.), all rendered January 9, 1985, convicting him of robbery in the second degree (3 counts, 1 as to each indictment), upon his pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mangano, J. P., Kunzeman, Rubin, Hooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903445/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (McNab, J.), rendered June 2, 1981, convicting him of burglary in the third degree and petit larceny, upon his plea of guilty, and imposing sentence.
Justice Thompson has been substituted for former Justice Niehoff (see, 22 NYCRR 670.2 [c]).
Ordered that the judgment is affirmed.
In failing to make timely application to withdraw his plea, the defendant failed to preserve the issue of the propriety of the plea for appellate review (see, People v Pellegrino, 60 NY2d 636). In any event, the defendant should not be permitted to withdraw his plea in the interest of justice. The defendant, represented by counsel throughout a first trial which ended in a hung jury and a second trial, declared his desire to enter a plea of guilty in the presence of the jury after the testimony of the People’s first witness. He refused an offer to continue the trial, insisting that he wished to plead guilty. The absence of any factual allocution of guilt is not fatal to the defendant’s plea since he had ample opportunity to know the extent of the People’s proof (People v Friedman, 39 NY2d 463; People v Langhorn, 119 AD2d 844, 845, lv denied 68 NY2d 758). His claims of duress in the taking of the plea are unsubstantiated and should be disregarded (see, People v Flowers, 30 NY2d 315; People v McAllister, 114 AD2d 910, 911).
*730The defendant’s claim that the sentence imposed was not proportionate to the crime is rejected.
We have considered the defendant’s other claims, including those made in his supplemental pro se brief, and find them to be without merit. Mangano, J. P., Thompson, Sullivan and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/197058/ | 99 F.3d 46
Michael D. BANK, Thomas M. Dusel and Robert J.M. O'Hare,Jr., in their capacity as trustees of 400 WymanStreet Trust, Plaintiffs, Appellees,v.INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant, Appellant.
No. 96-1355.
United States Court of Appeals,First Circuit.
Heard Sept. 10, 1996.Decided Nov. 5, 1996.
J. Charles Mokriski with whom Kenneth E. Werner and Jonathan I. Handler, Boston, MA, were on brief, for defendant, appellant.
Saul A. Schapiro with whom David W. Rosenberg, Boston, MA, was on brief, for plaintiffs, appellees.
Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.
COFFIN, Senior Circuit Judge.
1
The parties in this case--International Business Machines Corp. (IBM) and the 400 Wyman Street Trust (the Trust)1--comprise a partnership created for the purpose of developing and operating an office building in Waltham, Massachusetts. The Trust secured an opportunity for the Partnership to reduce its debt by purchasing its own mortgage at a substantial discount. IBM opposed the deal. The issue before us is whether IBM's veto is absolute, or whether the dispute must be arbitrated; under the Partnership Agreement, the answer turns on whether the proposal involves an acquisition of "an interest in real property" or a "refinancing." The district court deemed it a refinancing, and granted the Trust's motion to compel arbitration. See Bank v. International Business Machines Corp., 915 F.Supp. 491, 498 (D.Mass.1996). The issue is close, but we conclude that the refinancing provision is inapplicable because the proposal that has been presented so far lacks refinancing content. Consequently, we reverse.
I. Factual Background
2
IBM and the Trust entered into the Partnership in October 1986. The Partnership Agreement specifies that the Partnership would seek to finance the construction and operation of the office building with a non-recourse loan, and a $75 million loan imposing no liability on either party for repayment of the principal was, in fact, obtained from Citicorp Real Estate, Inc.
3
The Trust is the managing partner of the Partnership, holding a 51% interest. IBM has a 49% interest. Under the terms of the Agreement, the Trust contributed the undeveloped parcel at 404 Wyman Street, valued at $19.3 million, and IBM made a $1 million capital contribution as well as a long-term lease commitment. IBM also agreed to provide additional capital as needed until its equity reflected its 49% share in the venture, creating an approximately $17.5 million potential obligation for IBM at the outset of the undertaking. None of that capital has been contributed to date.
4
In 1995, the Trust attempted unsuccessfully to negotiate a restructuring of the loan ("the Note"), whose remaining principal balance was about $72 million. The lenders,2 however, offered to sell the note in its entirety for about $54 million. IBM contended the price was too high and expressed its unwillingness to make the purchase. Because the offer would expire soon, the Trust caused its corporate affiliate, Wyman Loan Corp. (Wyman Loan), to buy the Note and then proposed that it be resold to the Partnership at its cost. IBM refused to go along with the purchase, prompting the Trust to file a demand for arbitration with the American Arbitration Association. Two days later, on June 14, 1995, IBM sent the AAA a letter stating its view that the issue was not arbitrable under the Partnership Agreement.
5
The arbitrability issue is rooted in Exhibit D of the Agreement, which is titled "Major Decisions," and which sets out several categories of significant decisions that may be made by the Partnership and the procedures for reaching them and resolving disputes. Section A of the Exhibit lists five Major Decisions, including "acquiring any land or other real property or any interest therein...." For decisions falling within Section A,
6
(a) either Partner ... may withhold its approval for any reason, or for no reason, in its sole and complete discretion, without regard to whether the withholding of such approval is unreasonable or arbitrary....
7
Major Decisions falling within Section C, by contrast, may not be made unreasonably or unilaterally and a deadlock on one of them will trigger the Agreement's arbitration provisions. Section C(13) covers "refinancing of any part or all of the Project."
8
IBM contends that the Note purchase would constitute the acquisition of an interest in real property, and thus that its opposition to the deal ends the matter. The Trust, however, insists that the purchase is part of a refinancing. Although the letter proposing the transaction refers only to the purchase, the Trust maintains that the proposal embraces the expectation of added capital from IBM (consistent with the $17.5 million obligation) and new third-party financing of the balance. As noted, IBM's objection to a refinancing is arbitrable under the Agreement.
9
The district court was persuaded that the proposed decision to purchase the Note should be categorized as a refinancing under C(13) of the Agreement. It was influenced, inter alia, by the fact that purchase of the mortgage would not result in an "acquisition" of property because the Partnership already owned 404 Wyman Street, and by a belief that no substantive difference existed in this context between the proposed purchase and a restructuring of the original Note, which IBM had conceded would fall within C(13). See 915 F.Supp. at 496-98.
10
Though these points have force, we have concluded that the proposal as presently articulated is not arbitrable.3 We explain our reasoning in the following section.
II. Discussion
11
Our review of the district court's grant of the motion to compel arbitration is de novo, as it involves the purely legal task of interpreting the Partnership Agreement. See, e.g., PaineWebber Inc. v. Elahi, 87 F.3d 589, 592 (1st Cir.1996); Commercial Union Ins. Co. v. Gilbane Bldg. Co., 992 F.2d 386, 388 (1st Cir.1993).
12
One difficulty in this case is that, to a point, both parties are right. Notwithstanding the district court's effort to view property ownership in the "everyday" sense, there seems no doubt that the purchase of a mortgage conveys some interest in the mortgaged property to the purchaser. Indeed, even the district court acknowledged that a mortgagee has a legal interest in the property secured by the mortgage. See 915 F.Supp. at 497 ("While the mortgagee may technically have legal title to the mortgaged property, the mortgagor is considered the 'owner' of property."). See also Maglione v. BancBoston Mortgage Corp., 29 Mass.App.Ct. 88, 90, 557 N.E.2d 756, 757 (1990); 7 Mass. Jur. § 23:3 at 383 (1993). Thus, if it purchases the Note, the Partnership would acquire at least a technical new interest in the office building, and the proposal therefore could be treated as a "Section A" major decision.
13
On the other hand, the proposal grew out of refinancing negotiations. The offer by Citicorp and its associates to sell the mortgage back to the Partnership at a substantial discount directly stemmed from the Partnership's efforts to renegotiate the terms of its original financing; the purchase apparently was intended to be part of an alternative method by which the Partnership could restructure and reduce its debt. Thus, in context, the acquisition of a property interest arguably is a step preliminary and subordinate to the effort to refinance.4 Indeed, IBM recognized both in a hearing before the district court and in its briefs on appeal that a refinancing proposal that included a specified amount of increased equity probably would fall under the refinancing provision.
14
We need not at this juncture determine the validity of this proposition, for the proposal was not presented as such. Instead of recommending a multi-step refinancing plan that begins with purchase of the mortgage, the Trust has offered a proposal that makes no reference to financing terms. Although certain details of financing in so complex a business environment may need to remain imprecise until the transaction is close to completion, the proposal at the moment lacks any refinancing structure.
15
We acknowledge the Trust's argument that the Agreement fills in crucial gaps through the provision that governs IBM's obligation to contribute capital and another provision that refers generally to the pursuit of financing from third parties or partners. See §§ 3.2(c), 3.3.1. Even taking the proposal together with the Agreement, however, the recommendation is without substance; it includes neither the amounts to be sought from lenders nor any other details about possible interest rates, the duration of a mortgage, how soon such financing could or should be obtained, or the nature of the liability to be assumed. We conclude that this defect renders resort to C(13) premature.
16
In sum, though the Trust's proposal to purchase the mortgage foreshadows a refinancing scheme, we hold that it is as yet without sufficient form to trigger the arbitration provision. Because the Trust has so far proposed no more than a mortgage redemption--which would result, unquestionably, in the acquisition by the Partnership of a greater interest in real property--IBM has veto power under Section A of Exhibit D.
17
We note that, in so concluding, we have credited neither party's assertions concerning the other's self-serving motives. Our determination that arbitration may not be compelled at this time is based solely on the Trust's failure to submit an actual refinancing plan; we offer no view on the legitimacy of seeking a capital contribution from IBM under section 3.2(c) of the Agreement as part of such a plan.
18
Reversed.
1
Michael D. Bank, Thomas M. Dusel and Robert J.M. O'Hare, Jr., are named as parties in their capacity as trustees of the Trust. For the sake of convenience, we refer to the appellees simply as "the Trust" throughout the opinion
2
By this time, the Note had been transferred to a consortium of foreign banks, for whom Citicorp served as agent
3
Our disposition on the refinancing question makes it unnecessary to consider IBM's alternative argument that the Trust is foreclosed from compelling arbitration because it breached its fiduciary duties to the Partnership in causing its affiliate to purchase the Note
4
In fact, we acknowledge the possibility that, in designating the acquisition of an interest in property as a Section A decision on which the partners had complete discretion, the partners were contemplating the purchase of property other than that which the Partnership already "owned." Unlike the district court, however, see 915 F.Supp. at 497, we do not believe the Agreement contains such a limitation and therefore do not reject Section A as wholly inapplicable to the acquisition of a mortgage interest | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5903446/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Martin, J.), rendered April 11, 1983, convicting him of burglary in the first degree, burglary in. the second degree and assault in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The defendant’s indictment and conviction arose out of the burglary of the complainant’s apartment on November 21, 1981. We agree with the defendant’s argument that the trial court committed reversible error by admitting evidence of the defendant’s purported prior attempt to burglarize the complainant’s apartment on November 13, 1981. "The general rule is that evidence of prior uncharged crimes may not be offered to show defendant’s bad character or his propensity towards crime but may be admitted only if the acts help establish some element of the crime under consideration or are relevant because of some recognized exception to the general rule” (People v Lewis, 69 NY2d 321, 325). Thus, "evidence of uncharged crimes may be relevant * * * to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant” (People v Lewis, supra, at 325; People v Molineux, 168 NY 264, 294).
In the case at bar, the uncharged crime was admitted to show the defendant’s identity. However, the People failed to establish by clear and convincing evidence, as they were required to do in order to obtain the benefit of the exception to the general rule, that the defendant was the perpetrator of the uncharged crime, and that the method used in both crimes was sufficiently unique as to make it highly probable that both crimes were committed by the defendant (People v Robinson, 68 NY2d 541; People v Beam, 57 NY2d 241; People v Condon, 26 NY2d 139, 142). The trial court compounded this error when it failed to give limiting instructions with regard to the use of the evidence of the uncharged crime.
*731Further, the trial court failed to specifically charge the jury that the People had the burden of disproving the defendant’s alibi beyond a reasonable doubt and that the defendant had no burden of proving his alibi (People v Victor, 62 NY2d 374, 377-378; People v Hooks, 110 AD2d 909, 911).
In view of our determination, we need not address the defendant’s argument with respect to the alleged excessiveness of the sentence imposed. However, we note that the trial court improperly imposed consecutive sentences in the instant case (see, Penal Law § 70.25 [2]; People v Catone, 65 NY2d 1003; People v Derhi, 110 AD2d 709).
The defendant’s remaining argument is unpreserved for appellate review and is, in any event, without merit. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903448/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Clabby, J.), rendered March 25, 1986, convicting him of robbery in the second degree (three counts), upon a jury verdict, and imposing sentence. The appeal brings up for review, the denial (Linakis, J.), after a hearing, of those branches of the defendant’s omnibus motion which were to suppress identification testimony and statements made by him while in police custody.
Ordered that the judgment is affirmed.
Contrary to the defendant’s contentions, the identification procedures employed by the police in conducting the lineup from which he was selected were not unduly suggestive. The mere fact that a witness is told that a possible suspect is in custody or that a suspect who fit the description will be on view does not invalidate an otherwise fair lineup (see, People v Rodriguez, 64 NY2d 738, 740-741; People v Hammond, 131 AD2d 876, 877, lv denied 70 NY2d 800). In any event, based upon the duration of the robbery wherein the victim had an extended opportunity to view the defendant under favorable conditions, it is evident that an independent basis existed for the victim’s in-court identification (see, People v Magee, 122 AD2d 227, 228; People v Rudan, 112 AD2d 255, 256-257). Similarly, the defendant’s statements, which were not made in response to police interrogation, were properly ruled admissible (see, People v Rivers, 56 NY2d 476, rearg denied 57 NY2d 775; People v Maerling, 46 NY2d 289, 302-303; People v Kaye, 25 NY2d 139). The police are not required "to take affirmative steps, by gag or otherwise, to prevent a talkative person in *732custody from making an incriminating statement” (People v Rivers, supra, at 479). Additionally, the defendant’s arrest was based upon probable cause to believe that a crime had been committed and that he was the person responsible therefor (see, People v Carrasquillo, 54 NY2d 248, 254). ”[A]s a general rule, information provided by an identified citizen accusing another individual of the commission of a specific crime is sufficient to provide the police with probable cause to arrest” (see, People v Sanders, 79 AD2d 688, 689; see also, People v Crespo, 70 AD2d 661).
The defendant’s contention that his identity as one of the perpetrators was not established by legally sufficient evidence is without merit. Viewing the evidence adduced at trial in a light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the conviction. All elements of the three counts of robbery in the second degree were clearly established.
Minor discrepancies between the testimony of witnesses are not sufficient to show that a witness’s testimony was incredible as a matter of law (see, People v Di Girolamo, 108 AD2d 755, lv denied 64 NY2d 1133). Moreover, the jury heard the testimony, including defense counsel’s extensive cross-examination, wherein these inconsistencies were aggressively pursued. Issues of credibility, and the weight to be accorded each piece of evidence presented are within the province of the jury, which saw and heard the witnesses (see, People v Gaimari, 176 NY 84, 94; People v Rosenfeld, 93 AD2d 872, lv denied 59 NY2d 977).
The jury’s determination is entitled to great weight on appeal (see, People v Garafolo, 44 AD2d 86, 88). Upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (CPL 470.15 [5]).
We have examined the defendant’s remaining contentions and find them to be without merit. Mollen, P. J., Kunzeman, Weinstein and Rubin, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903449/ | Appeal by the defendant from four judgments of the Supreme Court, Queens County (Balbach, J.), all rendered April 18, 1985, convicting her of criminal sale of a controlled substance in the fifth degree (3 counts; 1 each as to indictments Nos. 3001/83, 3002/83 and 3004/83), and criminal possession of a controlled substance in the fifth degree and criminal possession of a controlled sub*733stance in the seventh degree (two counts) under indictment No. 3019/83, upon her pleas of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903450/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J.), rendered May 13, 1986, convicting him of sexual abuse in the first degree (two counts) and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant claims that it was error to take the testimony of the six-year-old complaining witness under oath. She was five years old at the time the defendant allegedly sexually abused her. Before she testified the trial court asked her many questions concerning her understanding of the difference between telling the truth and telling a lie, her understanding of the consequences of punishment if she told a lie, and her knowledge that she was under a duty not to lie to counsel or the Judge.
Under CPL 60.20 (2), a child less than 12 years old may not testify under oath unless the court is satisfied that he understands the nature of the oath. In People v Nisoff (36 NY2d 560, 566) the court said, "The tests as to the infant’s testimonial capacity and ability to understand the nature of the oath are necessarily individualistic in nature and are to be determined by 'the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as his duty to tell the former.’ (Wheeler v United States, 159 US 523, 524.)” An examination of the preliminary questioning as a whole establishes that the witness was a bright six-year-old child who understood that she was obligated to tell the truth. The trial court’s decision to put her under oath was not an abuse of discretion and this decision will not be disturbed (see, People v Boyd, 122 AD2d 273; People v Bockeno, 107 AD2d 1051). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5904437/ | — Judgment unanimously affirmed. Same memorandum as in People v Hendricks (139 AD2d 958 [decided herewith]). (Appeal from judgment of Oneida County Court, Murad, J. — petit larceny.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6495516/ | Filed 6/27/22 P. v. Gomez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083425
Plaintiff and Respondent,
(Super. Ct. No. 21CM-2842A)
v.
ROY VALENTINO GOMEZ, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from a judgment of the Superior Court of Kings County. James W.
Hollman, Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.)
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
* Before Peña, Acting P. J., Meehan, J. and DeSantos, J.
In October 2021, defendant Roy Valentino Gomez, was sentenced to a total term
of three years pursuant to a negotiated plea agreement. As part of that agreement,
defendant also waived his right to appeal his conviction. In this appeal, defendant
challenges only portions of the sentence imposed. We affirm the judgment.
PROCEDURAL AND FACTUAL SUMMARY
After a Kings County Sheriff’s Deputy observed defendant repeatedly crossing
double yellow lines while driving, he initiated a traffic stop. After learning defendant
was on probation, the deputy asked defendant if there was anything illegal in the vehicle.
Defendant admitted there was a gun in a compartment in the driver’s door, and a
passenger in the car admitted there was a pipe under the passenger seat. Defendant was
arrested, and at the jail, it was determined defendant was under the influence of a
controlled substance. A strip search revealed defendant had a baggie with some form of
contraband in his belly button.
In a complaint filed on May 27, 2021, defendant was charged with possessing a
firearm while also possessing a controlled substance (Health & Saf. Code, § 11370.1,
subd. (a), a felony; count 1), being a felon in possession of a firearm (Pen. Code, 1
§ 29800, subd. (a)(1), a felony; count 2), unlawfully possessing ammunition (§ 30305,
subd. (a)(1), a felony; count 3), having a concealed firearm in a vehicle (§ 25400,
subd. (a)(1), a felony; count 4), being a prohibited person carrying a loaded firearm
(§ 25850, subd. (a), a felony; count 5), bringing a controlled substance into a jail (§ 4573,
subd. (a), a felony; count 6), being under the influence of a controlled substance with a
firearm (Health & Saf. Code, § 11550, subd. (e), a felony; count 7), driving under the
influence of a drug (Veh. Code, § 23152, subd. (f), a misdemeanor; count 8), being under
1 All further statutory references are to the Penal Code, unless otherwise specified.
2.
the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), a
misdemeanor; count 9).2
At a hearing held on June 1, 2021, at which time bail was considered, defendant
was released to the probation department for a pretrial monitoring GPS program.
Defendant was instructed to comply with all terms and conditions of that program. A
document entitled “Pretrial Release Terms and Conditions” stated defendant was to
comply with “Intensive Pretrial Monitoring.” The conditions listed under this category
included (1) reminder notices by telephone about upcoming court dates, (2) in-person
reporting to probation once a week, (3) monthly field or home visits by a probation
officer, (4) random drug testing, and (5) placement on GPS.
On September 8, 2021, pursuant to a negotiated plea deal, defendant pled no
contest to counts 2, 6, 7, and 8. As part of the negotiated plea, it was agreed defendant
would be sentenced to a stipulated term of three years in state prison. During the hearing,
defendant also waived his right to appeal his conviction.
At the sentencing hearing held on October 6, 2021, defendant’s attorney raised the
issue of custody credits and that he had not been provided credits for the five-month
period he participated in the pretrial monitoring program ordered by the court during the
bail hearing. Defendant was ultimately sentenced to the upper term of three years for
count 2, as well as three years each for counts 6 and 7. The terms for counts 6 and 7
would run concurrently with the term imposed for count 2. The sentence of 180 days for
count 8 was also to run concurrently with the term for count 2. The trial court awarded
defendant credits for 13 days to be applied toward his sentence. Defendant was not
awarded any custody credits for the period he was subject to the pretrial monitoring
program.
2 Count 9 is also charged against another individual not part of this appeal who was
in the car at the time of the search and arrest. An additional count in the complaint,
count 10, was only alleged against this other individual.
3.
DISCUSSION
The issues raised in this appeal address only the adequacy of the custody credits
awarded to defendant when he was sentenced under a negotiated plea agreement, as well
as the legal validity of the concurrent sentences imposed.
I. Defendant’s Request for Judicial Notice
For this appeal, defendant submitted a request asking this court to “take judicial
notice of the ‘Rules and Regulations of Electronic Monitoring/Home Confinement
Program’ … and the ‘County of Kings Public Safety Realignment and Post Release
Community Supervision, 2019 Plan.’ ” This request concerns a program adopted by
Kings County under section 1203.018, that allows participants to earn custody credits for
pretrial or presentence releases by agreeing to electronic monitoring and other conditions
with home detention. We deny the request for judicial notice to the extent it exceeds the
scope of what we may consider under Evidence Code sections 452 and 459.
Specifically, defendant asks this court to consider not only the existence of the
program, but argues that his participation in the program automatically entitled him to
custody credits while subject to the requirements placed upon him by that program.
While we are able to take judicial notice of the existence of the program, we cannot take
judicial notice to resolve a disputed fact. (Barri v. Workers’ Comp. Appeals Bd. (2018)
28 Cal.App.5th 428, 437, fn. omitted.) Our role here is not to weigh the credibility or
weight of the evidence considered below. Instead, we accept the truth of the evidence
favoring the judgment below and consider whether the evidence submitted in opposition
to the trial court defeats the evidence supporting the judgment as a matter of law.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
Whether or not defendant participated in the electronic monitoring program to the
full extent as contemplated by section 1203.018, resulting in custody credits involved a
question of fact that was resolved by the trial court. Therefore, we only grant the request
to take judicial notice for the limited purpose of recognizing the existence of a program in
4.
Kings County authorized by section 1203.018. In all other respects, the request for
judicial notice is denied.
II. Defendant is Not Entitled to Any Additional Custody Credits
As noted above, defendant was awarded 13 days of custody credits at the time of
sentencing. However, defendant believes he was entitled to many more days of custody
credits for the period between his release to the probation department following his
arraignment and his sentencing. Defendant argues he is entitled to these custody credits
because he was participating in an electronic monitoring/GPS program which made him
eligible for the credits statutorily.
Pursuant to section 2900.5, subdivision (a), when a defendant has been in custody,
including “days served in home detention” pursuant to section 1203.018, the defendant
shall receive credits for those days “upon his or her term of imprisonment.” To be
eligible for custody credits under section 1203.018, defendant was required to meet the
following criteria:
“(c)
“(1) In order to qualify for participation in an electronic monitoring
program pursuant to this section, the inmate shall be an inmate with
no holds or outstanding warrants to whom one of the following
circumstances applies:
“(A) The inmate has been held in custody for at least
30 calendar days from the date of arraignment pending
disposition of only misdemeanor charges.
“(B) The inmate has been held in custody pending disposition
of charges for at least 60 calendar days from the date of
arraignment.
“(C) The inmate is appropriate for the program based on a
determination by the correctional administrator that the
inmate’s participation would be consistent with the public
safety interests of the community.”
5.
The record provided to this court indicates defendant was held in custody substantially
less than 30 days when he was released to the probation department on June 1, 2021. The
record also does not support the conclusion defendant’s participation in the electronic
monitoring program was necessary or consistent with “the public safety interests of the
community.”3 In fact, when considering the issue of bail, the trial court stated:
“He is not charged with a felony involving acts of violence, and I
would have to find that there’s a substantial likelihood that his release
would result in great bodily injury to others and the facts are evidence and
the presumption great that the defendant committed the offense, and there’s
a substantial likelihood that his release would result in great bodily injury to
others. I cannot make that finding based on his charges and even his prior,
which is not particularly—I suppose it could be considered, but the charges,
they’re not acts of violence.”
It is not enough for defendant to show he was placed on some form of electronic
monitoring to receive custody credits. To receive custody credits for the period he was
on electronic monitoring, defendant had to show he was participating in a program as
defined by section 1203.018 that involved home detention. (See People v. Gerson (2022)
74 Cal. App.5th 561, 582.) Defendant also had to provide evidence establishing the
terms of his release to probation were “ ‘custodial or restraining.’ ” (Ibid.)
Subdivision (d)(1) of section 1203.018 provides that to qualify for custody credits, a
participant in the program must “remain within the interior premises of the participant’s
residence during the hours designated by the correctional administrator.” Being subject
3 In his reply brief, defendant represents that the trial court made a finding that his
participation in the electronic monitoring program was in the public safety interests of the
community. However, the record cited by defendant does not actually support that
contention. The pretrial release form signed by defendant provides no statement that his
agreement to participate in any electronic monitoring is related to public safety. In the
transcript of the bail hearing, the trial court does not reference the public safety of the
community when rejecting the probation department’s recommendation for a no bail
hold. In fact, the trial court notes he does not have the necessary history of violence that
would justify no bail.
6.
to an electronic monitoring program is not enough on its own, as electronic monitoring is
also used for work furlough or work release programs. (§ 1203.018, subd. (j)(2).)
Electronic monitoring without home detention will, therefore, not automatically result in
eligibility for custody credits under section 1203.018. 4
Defendant relies heavily on the case of People v. Raygoza (2016) 2 Cal.App.5th
593, to argue programs authorized by section 1203.018 automatically entitle an inmate to
custody credits for the period of time spent in those programs. However, when relying
on Raygoza, defendant also acknowledges that programs authorized by section 1203.018
must be read to require the award of custody credits to “home-detained” defendants who
participate in electronic monitoring programs. (Raygoza, at p. 601, italics added.) In
fact, the Raygoza opinion is easily distinguished as the trial court in that case required
home detention for 24 hours a day, “ ‘except for qualified medical and/or emergencies.’ ”
(Id. at p. 597.) The defendant in that case had a specific obligation to provide evidence of
his home detention, not simply that he was part of a qualified program. (Id. at p. 601.) In
contrast here, when releasing defendant to the probation department, the trial court listed
various conditions in addition to the need to participate in electronic monitoring, such as
the need to seek and maintain “gainful employment.” There was no specific requirement
listed for home detention. Instead, the requirement defendant seek and maintain gainful
employment suggests the type of home detention contemplated in Raygoza was not
considered here.
The burden was on defendant to establish any entitlement to presentence custody
credits. (People v. Jacobs (2013) 220 Cal.App.4th 67, 81.) At the sentencing hearing,
4 Defendant failed to provide any written documentation he consented to the terms
and conditions of the electronic monitoring/home confinement program, which would
have specified how home confinement was part of that program. The document
defendant signed at the time he was released to the probation department on June 1, 2021,
fails to list any requirement for home detention.
7.
defendant’s attorney stated only that defendant was entitled to time credits for every day
“he’s been on the monitor.” While there were some questions raised about whether he
was on home detention, no evidence was offered showing home detention was part of his
monitoring program, or how many hours per day he was required to be in home
detention. In fact, defense counsel admitted that he was not aware of the specifics of
defendant’s supervision, but that “he is subject to detention if he is not in compliance
with the terms of the monitor.” Thereafter, the trial court issued the sentence and gave
defendant only 13 days of custody credits, none of which was related to the time
defendant was on electronic monitoring.
Defendant cannot overcome the basic fact he was not eligible for custody credits
under section 1203.018. He was never in custody for the qualifying period specified in
the statute, and the trial court made no finding that his participation in the program was
for the “public safety interests of the community.” (§ 1203.018, subd. (c)(1)(A–C).)
Even if he was eligible for these custody credits, defendant failed to meet his burden to
prove he was entitled to presentence custody credits while on some form of electronic
monitoring. Defendant failed to prove his electronic monitoring included home detention
as anticipated by section 1203.018. The record provided to the trial court supports the
denial of defendant’s request for any additional days of presentence credits for the time
he was on electronic monitoring.
III. The Lack of a Probable Cause Certificate Precludes Defendant’s Section 654
Claim
Defendant initially contended the trial court violated the provisions of section 654
when it imposed concurrent sentences for counts 2 and 7 because this constituted separate
punishments for the same act of criminal conduct. The People believe defendant waived
this issue because he failed to obtain a certificate of probable cause allowing him to
appeal the sentence imposed as part of a negotiated plea agreement. On reply, defendant
concedes this court is bound by the Supreme Court opinion in People v. Cuevas (2008)
8.
44 Cal.4th 374, 379, but notes he intends to challenge the application of Cuevas to the
facts of this case in a petition for review should we not grant relief here.
Pursuant to section 654, subdivision (a):
“An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in
no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.”
Absent a certificate of probable cause, a defendant may not complain that a
sentence lid imposed under a negotiated plea agreement violates the statutory
proscription against multiple punishments since that is a challenge to the plea’s validity.
(People v. Cuevas, supra, 44 Cal.4th at p. 376.) The rationale for this policy is that
defendants who have received the benefit of their bargain should not then be allowed
continued attempts to better these bargains through the appellate process. (People v.
Hester (2000) 22 Cal.4th 290, 295.)
By agreeing to a plea agreement that specified a maximum term, defendant waived
the ability to raise a section 654 claim here without first obtaining a certificate of
probable cause. (§ 654; Cal. Rules of Court, rule 4.412(b).)
DISPOSITION
The judgment is affirmed.
9. | 01-03-2023 | 06-27-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903452/ | Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered November 15, 1984, convicting him of attempted burglary in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain statements to the police.
Ordered that the judgment is affirmed.
The arresting officer testified that upon his arrival at the complainants’ house in response to a report of a burglary in progress, he observed a group of people holding the defendant in the driveway area. One of the people holding the defendant had a bat, and another one was holding a rake. The one with the bat told the officer that the defendant was caught breaking into the house, and the officer then separated the defendant from the group and asked him what was going on. In response, the defendant admitted to "peeking in the window” of the complainants’ house, but he claimed, inter alia, that he was only on the premises to see if the complainants wanted to sell their car. The defendant’s statement was properly admitted since this single question asked of him was not in the nature of an interrogation but was rather a necessary preliminary inquiry "designed to clarify the nature of the situation” (see, People v Huffman, 41 NY2d 29, 34; People v Hampton, 124 AD2d 675, lv denied 69 NY2d 746). Until the officer got everyone’s explanation, the appearance of the situation was sufficiently ambiguous to require clarification before taking any police action.
We have considered the defendant’s remaining contention and find it to be without merit. Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903453/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered May 12, 1983, convicting him of attempted robbery in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
There is no indication in the record that the defendant, prior to the imposition of sentence, sought to withdraw his plea. Therefore, his challenge to the sufficiency of his plea allocution was not preserved for appellate review (see, People v Pellegrino, 60 NY2d 636). Nor is reversal required in the *735exercise of our interest of justice jurisdiction. A defendant who accepts a bargained-for plea to a lesser crime than that charged in the indictment forfeits his right to challenge the factual basis for the plea (see, People v Pelchat, 62 NY2d 97, 108; People v Clairborne, 29 NY2d 950; People v Caban, 131 AD2d 863). In any event, the record amply demonstrates that the plea was knowingly and voluntarily entered with the assistance of counsel, and there is no suggestion that the plea was improvident or baseless (see, People v Caban, supra).
Lastly, we conclude that the trial court’s refusal to appoint an investigator to obtain the defendant’s presence at a hearing to reconstruct the sentence minutes which were lost was not an abuse of discretion (see, County Law §§ 722-c, 722-e). The defense counsel made his application at the conclusion of the reconstruction hearing and only after the court inquired as to the defendant’s absence. Moreover, the defense counsel had already stated that the defendant had no recollection as to the issue to be determined, i.e., whether a motion to withdraw his plea had been made. Thus, his testimony would have no bearing on the court’s determination. Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903454/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered April 19, 1985, convicting him of attempted murder in the second degree, robbery in the first degree (three counts), robbery in the second degree and assault in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress his statements to the police.
Ordered that the judgment is aifirmed.
The defendant was tried jointly with his codefendants David and Frederick Glover and Raymond Foreman for the shooting of Beatrice Aiken during the robbery of a store.
On April 9, 1984, at approximately 7:00 p.m., Valine Winfrey entered "200 Kinds of Kandy”, a store located in the Fairview Shopping Center on Grand Avenue in Baldwin, New York. Shortly thereafter, two young black males entered and announced a holdup. The defendant approached Ms. Winfrey while the other perpetrator, the codefendant David Glover, confronted Ms. Aiken, who was the store’s manager. Ms. Aiken began struggling with David Glover when, suddenly, the defendant joined the struggle and fired two shots at Ms. Aiken, seriously wounding her.
*736Perry Pettus and Stephen Hannigan were also in the area at that time. Prior to entering the Off-Track-Betting parlor located next to the store, Pettus observed 2 black males, 1 of whom was holding the store’s door open. About five seconds after entering the Off-Track-Betting parlor, Pettus heard a shot and ran outside but did not see anybody. Hannigan had observed a couple of black males in the store as he entered the adjacent laundromat. Not more than five minutes later, he heard two "popping” sounds and saw two people running from the direction of the store.
Frederick Glover and Raymond Foreman were apprehended by Police Officer Martin Rea only a few minutes after the crime, within a short distance of the shopping center. They were then transported back to the shopping center for show-ups, and Pettus and Hannigan identified the codefendant Frederick Glover but not the codefendant Raymond Foreman. After being confronted with certain inconsistencies in their first statements to police, both Frederick Glover and Raymond Foreman made confessions admitting that they acted as lookouts while the defendant was the gunman with David Glover assisting him in the store.
Marie Glover, the mother of the codefendants Frederick and David Glover, arrived at the police station with the defendant and David Glover, who were arrested and questioned. The defendant made a statement which indicated, inter alia, that he and David Glover proceeded to the shopping center, placed stocking masks over their faces and entered the store. Frederick Glover and Raymond Foreman were to remain outside acting as lookouts. The defendant ran towards a woman, Ms. Winfrey, in the back and pointed his gun at her. David Glover went to the cash register and tried to remove the money contained therein. A heavyset woman, Ms. Aiken, started interfering and the defendant, who had dragged Ms. Winfrey to the front, shot Ms. Aiken twice. The statements made by defendant, the codefendant David Glover and the codefendant Raymond Foreman were admitted into evidence at the trial with limiting instructions to the jury.
The defendant testified in his own behalf, denying any participation in the robbery and shooting. He stated that Mrs. Glover had told him that it would be in his best interest to talk to the police. Moreover, she advised him that any cooperation would be relayed to the District Attorney.
Initially, the defendant contends that he did not knowingly, voluntarily and intelligently waive his right to counsel prior *737to making certain inculpatory statements. He testified at the suppression hearing that, while in custody, he communicated a desire to speak to his mother and an attorney. Conversely, Detective Dempsey, the interrogating officer, testified that the defendant acknowledged understanding his constitutional rights and stated that he was willing to speak without an attorney. The hearing court credited the People’s witnesses and found that the defendant had effectively waived his right to counsel prior to making his statement. Inasmuch as the court’s decision was supported by the record, we find no basis for reversal (see, People v Prochilo, 41 NY2d 759; People v Armstead, 98 AD2d 726).
Further, despite the defendant’s protestations to the contrary, there is no basis to support a finding that Mrs. Glover was acting as an agent of the police. In this regard, the defendant is unable to point to any testimony or evidence to establish that Mrs. Glover’s actions were instigated or supervised by the police (see, People v Ray, 65 NY2d 282, 286; People v Adler, 50 NY2d 730, 737, cert denied 449 US 1014; People v Esposito, 37 NY2d 156; People v Horman, 22 NY2d 378, 380, cert denied 393 US 1057).
A question arises under the decision in Cruz v New York (481 US —, 107 S Ct 1714), with respect to the admission into evidence of the confessions by two of the codefendants at the joint trial. In that case, the Supreme Court held that where a nontestifying codefendant’s confession incriminating the defendant is not directly admissible against the defendant, as it does not bear sufficient indicia of reliability, the Confrontation Clause bars its admission at their joint trial. Such a bar exists even if limiting instructions are given to the jury and even if the defendant’s own confession is admitted against him. However, the error in admitting such statements does not, under the circumstances herein, require reversal of the judgment of conviction.
Where a Confrontation Clause violation is involved, the defendant’s own confession may be considered on appeal in assessing whether the violation was harmless (see, Cruz v New York, supra). The error under review will be deemed harmless only where it can be said that that error was harmless beyond a reasonable doubt (see, Harrington v California, 395 US 250; People v Smalls, 55 NY2d 407). To satisfy that criterion, there must be overwhelming proof of guilt and no reasonable possibility that the jury would have acquitted the defendant but for the subject error (see, People v Crimmins, 36 NY2d 230).
The evidence adduced at trial, including the defendant’s *738confession to law enforcement officers which was properly found to be voluntary, the out-of-court identification of the defendant as the gunman by the eyewitness Ms. Winfrey, and the recovery of the gun in the precise hiding place revealed by the defendant provided overwhelming evidence of the defendant’s guilt. Furthermore, there was no reasonable possibility that the jury would have acquitted the defendant if the codefendants’ statements had not been introduced. Under the circumstances, the error involved in admitting the nontestifying codefendants’ confessions at the joint trial was clearly harmless beyond a reasonable doubt (cf., People v Cruz, 70 NY2d 733).
The evidence, when viewed in a light most favorable to the People, was legally sufficient to support the defendant’s conviction (see, People v Lewis, 64 NY2d 1111). Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]).
Finally, the court did not err in imposing consecutive sentences for the crimes of attempted murder in the second degree and robbery in the first degree. It was established that these crimes involved "disparate or separate acts” (see, Penal Law § 70.25 [2]; People v Underwood, 52 NY2d 882, 883; People v Brathwaite, 63 NY2d 839, 843). Moreover, the sentences imposed were not unduly harsh or excessive.
We have considered the defendant’s remaining contentions and find them to be without merit. Kunzeman, J. P., Hooper, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903455/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Owen, J.), rendered June 14, 1985, convicting him of criminal possession of a controlled substance in the fourth degree, criminal possession of a hypodermic instrument and unlawful possession of marihuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, without a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
On February 26, 1984, at approximately 10:00 a.m., a State Trooper spotted a disabled vehicle on a highway. He pulled over and asked the defendant who was seated in the driver’s seat what the problem was. When the defendant only produced a learner’s permit, the Trooper sought and was pre*739sented with a Massachusetts driver’s license from Robert Cox seated next to the defendant in the front passenger seat. The codefendant, Eone Chapman, was seated in the rear passenger seat. The Trooper, who had then stepped over to the passenger side of the vehicle, noticed a green leafy substance which he thought to be marihuana on the floor in front of the rear seat whereupon he told the occupants of the vehicle they were under arrest and ordered them out of the car.
Chapman, with the Trooper’s permission, urinated near a fence 10 to 15 feet away and, when he returned to the car, reached into the backseat and threw out a bag containing 220 glassine envelopes marked "poison” containing an aggregate of over eight grams of heroin. A search of the vehicle revealed a hypodermic instrument halfway under the seat on the floor of the front passenger area. No contraband was recovered from the defendant’s or Chapman’s person but two glassine envelopes were found on Cox and a marihuana cigarette was found in the area where Chapman had urinated. After the three were advised of their Miranda rights, the defendant told a Trooper at the barracks that the envelopes marked "poison” contained heroin and were worth $10 per package.
Since the defendant failed to set forth sworn allegations of fact in support of his motion to suppress as required by CPL 710.60 (1) and the People’s uncontroverted affirmation in opposition stated the Trooper saw the marihuana in plain view thereby giving him the requisite probable cause to arrest the occupants of the vehicle and conduct a further search, we conclude that the court properly denied suppression of the contraband without conducting a hearing (see, People v Landy, 59 NY2d 369; People v Berrios, 28 NY2d 361; People v Delgado, 118 AD2d 580, lv denied 67 NY2d 1052).
Although the defendant correctly asserts that it is his constitutional right to be present during all stages of the criminal proceedings against him and that this right is his to waive, we cannot agree that it was reversible error for the court to deny his application to waive his presence at the felony hearing. Although a defendant should be permitted to waive his presence at pretrial identification proceedings, in this case the defendant withdrew his application for a Wade hearing once the People declared they would not use the Trooper’s felony hearing identification. Additionally, as the Trooper had an independent basis for his in-court identification of the defendant, any error in the denial of the defendant’s request to waive his presence did not operate to prejudice him and does not require reversal (see, People v Washing*740ton, 130 AD2d 605, lv granted 70 NY2d 658; People v Lyde, 104 AD2d 957; People v James, 100 AD2d 552; People v Huggler, 50 AD2d 471).
With respect to the defendant’s remaining contentions, we note that it was not error for the trial court to permit inquiry into four of the defendant’s prior crimes to impeach his credibility if he chose to testify. As the defendant failed to explain how the prejudicial effect of such inquiry would outweigh its probative value we conclude that the court’s determination was not an abuse of discretion (see, People v Pollock, 50 NY2d 547; People v Rahman, 46 NY2d 882; People v Sandoval, 34 NY2d 371).
We further note that the single isolated remark during the prosecutor’s summation was objected to and curative instructions were immediately given, thereby negating any potential for prejudice particularly when the summation is examined in its entirety (see, People v Roopchand, 107 AD2d 35, affd 65 NY2d 837; People v Lebron, 114 AD2d 859; People v Robinson, 83 AD2d 887).
Since the defendant was clearly and unequivocally informed that the trial would continue in his absence if he failed to appear, we conclude that the defendant’s absence during summations constituted a knowing waiver of his constitutional right to be present (People v Smith, 68 NY2d 725; People v Trendell, 61 NY2d 728). It was not error for the court to charge the automobile presumption pursuant to Penal Law § 220.25 (1) particularly in light of the court’s further charge that this was a permissive presumption and that it was incumbent upon the People to establish beyond a reasonable doubt that the bag which contained the heroin had come from the car and had not been concealed on the person of any of the occupants (People v Leyva, 38 NY2d 160, rearg denied sub nom. People v Low, 39 NY2d 832; People v Heizman, 127 AD2d 609, lv denied 69 NY2d 950). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362837/ | 596 P.2d 565 (1979)
286 Or. 815
Lawrence F. COOLEY, Respondent,
v.
Ernie ROMAN, Petitioner.
TC A75-455; CA 9455; SC 25810.
Supreme Court of Oregon.
Argued and Submitted February 7, 1979.
Decided June 26, 1979.
*566 Scott M. Galenbeck, of Lively & Wiswall, Springfield, argued the cause and filed a brief for petitioner.
Lawrence F. Cooley, Eugene, argued the cause pro se. On the brief for respondent was David A. Piper, Eugene.
Before HOLMAN, P.J., and TONGUE, HOWELL, BRYSON,[*] LENT[**] and LINDE, JJ.
LINDE, J.
Plaintiff filed a complaint alleging an account stated between himself and defendant. Defendant's attorney wrote to plaintiff's attorney requesting a verified statement of the account. Plaintiff responded with a letter enclosing a statement of charges and credits to defendant's account for legal services rendered by plaintiff. Defendant then filed an answer generally denying the allegations of plaintiff's complaint. *567 Thereafter, plaintiff moved for summary judgment for lack of a genuine issue of material fact concerning defendant's agreement to the account stated, based on an affidavit that defendant had made no objection to regular billings and had made periodic payments on the account. ORS 18.105. Defendant in turn moved for summary judgment on the same ground, based on his affidavit that the charges stated in plaintiff's account were incurred primarily for legal services for a corporation for which defendant was not liable, and that he could not determine from the account which of the charges arose from work done for him personally. Plaintiff filed no further opposing affidavit. The trial court granted summary judgment for defendant, and plaintiff appealed.
The Court of Appeals decided that although plaintiff's complaint pleaded an account stated, "plaintiff's action was actually based on an `account'." The court then proceeded to discuss whether defendant was entitled to summary judgment if the action was one on an account instead of an account stated.[1] Defendant claimed that plaintiff had failed to give defendant a verified copy of the account within five days of defendant's demand, as required by ORS 16.470.[2] The Court of Appeals concluded that the requirement stated in that section is "directory" rather than "mandatory" and that defendant was not entitled to summary judgment on that ground. It therefore reversed and remanded the case for trial on the question what, if any, amount defendant owed on plaintiff's account. 34 Or. App. 301, 578 P.2d 491 (1978). Doubts about this treatment of ORS 16.470 led us to allow review. We affirm the result reached by the Court of Appeals, but on different grounds.
Before reaching the merits, we face a preliminary question whether plaintiff's appeal was timely. The trial court's judgment granting defendant's motion for summary judgment was entered on September 9, 1977. ORS 19.026 provides in part:
"(1) Except as provided in subsections (2) and (3) of this section, the notice of appeal shall be served and filed within 30 days after the entry of the judgment appealed from.
"(2) Where any party has served and filed a motion for a new trial or a motion for judgment notwithstanding the verdict, the notice of appeal of any party shall be served and filed within 30 days from the earlier of the following dates:
"(a) The date of entry of the order disposing of the motion.
"(b) The date on which the motion is deemed denied, as provided in ORS 17.615."
Plaintiff's notice of appeal was not filed until November 7, 1977, more than 30 days after the judgment. However, plaintiff had filed a motion to set aside the summary judgment on September 19, which was denied on October 18.
ORS 19.026(2), above, allows 30 days for filing a notice of appeal from the date of entry of an order disposing of a "motion for a new trial." The question is whether a *568 motion to set aside a summary judgment qualifies as a motion for a new trial for this purpose. A "trial" is defined in ORS 17.025 as "the judicial examination of the issues between the parties, whether they be issues of law or of fact." A summary judgment is the result of such a judicial examination, leading the court to conclude that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ORS 18.105(3). A motion to set aside a summary judgment calls upon the court to conduct a new trial in that sense. Also, if the motion is granted, there is no judgment in the case until a trial or other further proceeding is conducted. We have held that such a motion is a "motion to set aside a judgment and for a new trial" for purposes of the ten day time limit of ORS 17.615. State ex rel. State Farm Mutual Auto. Ins. Co. v. Olsen, 285 Or. 179, 590 P.2d 231 (1979). For the same reason it is also a motion for a new trial within the meaning of ORS 19.026(2). Plaintiff's notice of appeal was timely.
On the merits of the trial court's order, we do not agree with the Court of Appeals that plaintiff's complaint was a basis for invoking ORS 16.470, but that the requirement of that section to furnish a verified statement of an account within five days after demand is "directory" rather than "mandatory." We have recently pointed out that these terms describe conclusions but do not serve well as premises, since they are usually applied only to state the consequences of failure to comply with laws that are textually obligatory. Anaconda Company v. Dept. of Revenue, 278 Or. 723, 565 P.2d 1084 (1977). In this instance, ORS 16.470 itself states the consequence: The party who neither pleads the items of an account nor furnishes a verified copy on demand shall "be precluded from giving evidence thereof." However, the statute does not help defendant here, because the Court of Appeals should not have reinterpreted plaintiff's complaint from an action on an "account stated" into one on an "account" in the first place.[3]
There is no dispute that plaintiff's complaint pleaded an action on an account stated. Plaintiff has maintained that position throughout. He sought a summary judgment by seeking to show, in an affidavit, that defendant had implicitly agreed to the account by failing to object to it and by making payments on it. Defendant's affidavit adequately raised an issue of material fact as to his implicit agreement to the account when it asserted that defendant considered himself obligated for some but not for most of plaintiff's charges. This entitled defendant to a trial under plaintiff's theory of the case. The question is whether the same affidavit entitled defendant, in turn, to a summary judgment for lack of a genuine issue of material fact, as the trial court ruled.
We think that it did not. Whether defendant in fact was liable for all the charges stated in plaintiff's account was not the issue under the theory of plaintiff's complaint. The issue was whether defendant had implicitly agreed to the account stated. As we have said, defendant's affidavit raised a genuine dispute of fact with plaintiff's affidavit on that issue. Plaintiff did not in turn have to counter defendant's affidavit or face a summary judgment for defendant. The two affidavits show that there is a triable issue of fact under plaintiff's pleading of an account stated. The Court of Appeals did not err in remanding the case for trial.
Affirmed.
NOTES
[*] Bryson, J., retired April 1, 1979.
[**] Lent, J., did not participate in the decision of this case.
[1] As the court correctly stated, the difference is that an action on an "account stated" rests on an express or implied agreement to pay a fixed sum due as a result of prior transactions, Sunshine Dairy v. Jolly Joan, 234 Or. 84, 380 P.2d 637 (1963), citing Steinmetz v. Grennon, 106 Or. 625, 634, 212 P. 532 (1923) and Crim. v. Thompson, 98 Or. 599, 193 P. 448 (1920), while an "account" merely alleges such financial obligations but not necessarily that the defendant has agreed to them. See Northwest Fndry. v. Willamette Mfg., 268 Or. 343, 352 n. 2, 521 P.2d 545 (1974); Mason, Ehrman & Co. v. Lewis Est., 131 Or. 242, 254-256, 276 P. 281, 281 P. 123, 282 P. 772 (1929).
[2] ORS 16.470:
"A party may set forth in a pleading the items of an account therein alleged, or file a copy thereof, with the pleading verified by himself, or his agent or attorney, if within the personal knowledge of such agent or attorney, to the effect that he believes it to be true. If he does neither, he shall deliver to the adverse party, within five days after a demand thereof in writing, a copy of the account, verified as in this section provided, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one filed or delivered is defective."
[3] Plaintiff, having pleaded an account stated, is obliged to prove an account stated, or lose the lawsuit. He is not entitled to prove liability on some other theory. Halvorson v. Blue Mt. Prune Growers Co-op, 188 Or. 661, 678, 214 P.2d 986, 217 P.2d 254 (1950); Vanbebber v. Plunkett, 26 Or. 562, 567, 38 P. 707 (1895). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4534883/ | HTTP/1.1 200
Date: Fri, 15 May 2020 22:08:50 GMT
Content-Type: application/pdf | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/5903458/ | Appeal by the defendant, by permission, from an order of the Supreme Court, Queens County (Balbach, J.), dated March 17, 1982, which denied his pro se motion to vacate his judgment of conviction.
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the defendant’s motion which was to set aside the judgment of conviction on the ground of ineffective assistance of appellate counsel and substituting therefor a provision deeming that branch of the motion an application for a writ of error coram nobis and transferring that branch of the motion to this court for determination; as so modified, the order is affirmed.
The Court of Appeals has recently determined that "a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel” (People v Bachert, 69 NY2d 593, 595-596). Therefore this court will decide the issue of ineffective assistance of appellate counsel de novo (see, People v Hargrove, 138 AD2d 742 [decided herewith]).
The remaining portion of the defendant’s motion to set aside his judgment of conviction was properly denied by the Supreme Court since the ground raised by the defendant was or could have been raised on direct appeal (see, CPL 440.10 [2] [a]; People v Hargrove, 80 AD2d 753, lv denied 52 NY2d 1077), was conclusively refuted by unquestionable documentary proof (CPL 440.30 [4] [c]), and was contradicted by a court record (CPL 440.30 [4] [d] [i]).
In his pro se motion before the Supreme Court, the defendant alleged that the trial court improperly charged the jury as to the lesser included offense of manslaughter in the first degree only after the jury had indicated it was deadlocked. On this appeal, the defendant’s currently assigned counsel has pointed out that the transcript belies this claim. As an officer of the court, the defendant’s appellate counsel properly pointed out this misstatement of fact. This action does not *742constitute such a denigration of the defendant’s claim as to require relieving appellate counsel and providing new counsel (see, People v Vasquez, 70 NY2d 1, 4, rearg denied 70 NY2d 748).
We have considered the defendant’s other contentions, including those raised in his supplemental pro se brief, and find them to be without merit. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903459/ | Appeal by the defendant from two judgments of the Supreme Court, Queens County (Clabby, J.), both rendered November 22, 1985, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree under indictment No. 3561/84, upon a jury verdict, and criminal possession of a weapon in the second degree under indictment No. 3860/84, upon his plea of guilty, and imposing sentences.
Ordered that the judgments are affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support the defendant’s conviction for the crimes of manslaughter in the first degree and criminal possession of a weapon in the second degree under indictment No. 3561/84. Testimony elicited from two eyewitnesses, to the effect that they observed the defendant shoot the victim, at close range, coupled with the testimony provided by the *743People’s forensic expert, was sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]). .
We have also reviewed the defendant’s remaining contention with respect to the prosecutor’s comments during summation and find that his claim has not been properly preserved for appellate review (see, People v Marti, 131 AD2d 597) and would not, in any event, require reversal of the conviction. Kunzeman, J. P., Eiber, Spatt and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903460/ | Application by the defendant for a writ of error of coram nobis, to vacate a judgment of the Supreme Court, Queens County (Balbach, J.), rendered April 26, 1979, on the ground of ineffective assistance of appellate counsel.
Ordered that the application is denied.
A review of the record on appeal, the defendant’s pro se brief, and the brief submitted by counsel on the defendant’s direct appeal to this court, demonstrates that the defendant’s appellate counsel capably presented nonfrivolous issues for this court’s consideration. The defendant’s appellate counsel clearly satisfied the constitutional standard of effective assistance of appellate counsel set forth by the United States Supreme Court in Jones v Barnes (463 US 745). Accordingly, the defendant’s application must be denied. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903461/ | Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered June 8, 2011, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Matrix Construction Services, Inc. (Matrix) for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) claims as against it, unanimously affirmed, without costs.
The evidence establishes that Matrix was not a general contractor with supervisory authority and control over plaintiff s work. Accordingly, it cannot be held liable for plaintiffs injuries under Labor Law §§ 240 (1) or 241 (6) (see Russin v Louis N. Picciano & Son, 54 NY2d 311 [1981]; Aversano v JWH Contr., LLC, 37 AD3d 745 [2d Dept 2007]). Concur—Mazzarelli, J.P., Friedman, Renwick and Freedman, JJ. [Prior Case History: 2011 NY Slip Op 31510(U).] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903462/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Colabella, J.), rendered May 29, 1986, convicting her of murder in the second degree (two counts), robbery in the first degree (two counts), burglary in the second degree, petit larceny, criminal possession of stolen property in the third degree and criminal possession of a weapon in the fourth degree, after a nonjury trial, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress statements she made to law enforcement officials.
Ordered that the judgment is affirmed.
The hearing court did not err in denying the defendant’s motion to suppress the statements she made to law enforcement officials, as most of those voluntary statements were not the product of custodial interrogation, and those that were the product of custodial interrogation were made after the defendant was informed of her rights in accordance with Miranda v Arizona (384 US 436) and she knowingly and voluntarily waived them.
We have considered the defendant’s remaining contention and under the circumstances of this case find it to be without merit. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2213000/ | 126 Ind. App. 3 (1955)
127 N.E.2d 110
SCOTT, ADMINISTRATOR OF ESTATE OF SCOTT, DECEASED, ET AL.
v.
SCOTT ET AL.
No. 18,629.
Court of Appeals of Indiana.
Filed June 10, 1955.
Rehearing denied July 21, 1955.
Transfer denied November 15, 1955.
*5 Prentice & Prentice and Robert J. Prentice, of Jeffersonville, for appellants.
John F. Simpson, of Charlestown, McBride & Smith, and Homer D. Smith, of Jeffersonville, for appellees.
BOWEN, J.
Appellants brought an action against the appellees to set aside a deed to certain real estate. One of the appellants was the administrator of the decedent-grantor's estate, and the other appellants were children of the decedent grantor, and the appellees were the decedent-grantor's widow, Mildred Lucille Scott, and his other children, Melvin F. Scott, Terry G. Scott and Mary Alice Scott.
The issues were formed in the court below by appellants' complaint alleging that the decedent died intestate as the owner of certain real estate, leaving the appellants, in their individual capacity, and the appellees, as his sole and only heirs at law; that during his lifetime the said decedent and his wife, Mildred Lucille Scott, signed and acknowledged a deed to said real estate, in which deed the appellees (excepting said widow) were named as grantees. The complaint further alleged that the deed was never delivered but was recorded subsequent to the death of said decedent. To this complaint *6 the appellees filed an answer in two paragraphs, the first paragraph under Rule 1-3, Rules of the Supreme Court of Indiana, denying the allegation that decedent was the owner of the real estate in question at the time of his death, and denying the allegation that the deed in question was not delivered; and by the second paragraph of answer appellees alleged the execution and the delivery of the deed in escrow to one Frank Waters, cashier of The New Washington State Bank, and a later delivery of the same deed by the decedent to his wife for and on behalf of the other appellees, to be recorded on the day following the death of Scott.
On such issues joined there was a trial by the court and the court by its general finding and decree determined that the decedent died intestate, leaving surviving him as his sole and only heirs at law his widow, the defendant-appellee, Mildred Lucille Scott, and five children, to-wit: the plaintiffs-appellants, Merrill Scott and Sherrill Scott, and the defendants-appellees, Melvin F. Scott, Terry G. Scott and Mary Alice Scott; that during his lifetime the decedent and his wife signed and acknowledged a deed to such real estate in which the defendants-appellees, Melvin F. Scott, Terry G. Scott and Mary Alice Scott, were named as grantees; that the deed was delivered in the lifetime of said decedent to his wife to be held by her until the death of said decedent for and on behalf of the infant grantees named in such deed, the appellees herein, Melvin F. Scott, Terry G. Scott and Mary Alice Scott, and to be placed of record for and on behalf of such grantees following the death of said decedent. The court further ordered that the appellants take nothing by their complaint, and that the deed in question was in full force and effect.
Thereafter, the appellants filed their motion for a new *7 trial, which was based upon the single ground that the decision of the court is contrary to law. The court overruled this motion for a new trial and this appeal followed. Sole error assigned for reversal is that the court erred in overruling appellants' motion for a new trial.
The appellants' assignment of error, and the argument offered in support thereof, presents a single question for the determination of this court, and that is, whether there is any evidence of probative value to support the finding and judgment of the trial court that there was a delivery of the deed during the lifetime of the testator, with the intention to vest title in the appellees, and whether, as a matter of law upon such facts, the court could have properly concluded there had been a delivery of the deed in question.
There is little conflict in the evidence in the record and some of the evidence was stipulated by the parties. From the record in this case, considering the evidence most favorable to the appellees, which we are required to do, the following facts appear:
The decedent, accompanied by his wife, Mildred Lucille Scott, went to the office of an attorney and had a deed prepared, which they executed, conveying the real estate in question to their children, Melvin F. Scott, Terry G. Scott and Mary Alice Scott, the appellees, in joint tenancies, and in further consideration of the discharge of certain promissory notes executed by the grantors in favor of the grantees, and each of them. After such deed was prepared it was placed in an envelope. The attorney who prepared the deed gave the envelope in which the deed was contained to the decedent. Thereafter, on the same day, the decedent went to the bank and talked with the cashier of the bank with reference to such deed that he had executed *8 along with his wife, and brought some papers along with him, and he suggested that the cashier take and keep said papers, but the cashier suggested "that he get a lock-box and keep it in there. We didn't like to keep papers around the bank." The cashier then leased him a lock-box. At that time the lock-box was leased to the decedent for the particular purpose of placing the instruments in the box, and the deed was placed in the lock-box of the decedent at this time. At the time of the renting of the lock-box the cashier issued two keys to it which were given to the decedent. At the time of this transaction the bank cashier saw a letter which was with the instruments which the decedent had, which letter reads as follows:
"Mr. Frank Waters February 1, 1950
New Washington State Bank
New Washington, Indiana
Dear Frank:
Today my wife and I executed a deed to the farm owned by me in favor of our three younger children, namely: Melvin F., Terry G., and Mary Alice Scott. Also at the same time executed a bill of sale in favor of these three children.
These instruments are in the attached envelope and you are requested to accept delivery of these instruments and to hold them in escrow until my death, at which time you will please deliver the same to my three children named above.
I have two other children, but they have received their proportionate share of my estate in the nature of advancements heretofore made to them and evidenced by promissory notes in my possession.
I am indebted to each of my younger three children and have executed to them from time to time, promissory notes and upon delivery of these instruments it is my desire that you receive from them the notes executed by me in favor of each of them as it is my intention that the instruments enclosed, upon their delivery, shall constitute full payment of the notes now held by them.
*9 In the event of any change in my plans, and these instruments are to be revised, destroyed, or in any way changed by me, you shall redeliver them to me at my request.
Respectfully yours,
s/ Gilbert P. Scott.
s/ Homer D. Smith
s/ Lovenia Graham
Witnesses"
It is apparent from the terms of this letter that the grantor did not part with his dominion and control over this deed in favor of Mr. Waters, the bank cashier. However, the appellees assert that, although the grantor made an ineffective delivery of the deed to Mr. Waters, there was a new, independent, complete and effective delivery of this deed to his wife, Mildred Lucille Scott, vesting title in the appellees. The evidence most favorable to appellees as to this alleged later delivery is as follows:
The decedent held the keys to the lock-box at the bank in which this deed was deposited until about September 15, 1953. Both keys, and the only keys to this lock-box outside of the bank master key, were wired together and were kept that way from the time the box was rented until the death of the decedent. About September 15, 1953, the decedent turned these keys over to appellee, Mildred Lucille Scott, and stated to her at the time he turned them over to her, that he wanted her to take the keys and the day after his death see that the deed was recorded for the children, the three children at home. There was testimony that decedent stated, with reference to the keys, that he had placed the deed and the keys out of his possession; that he had delivered the keys to his wife, and the deed, so it would be out of his possession forever, and that he had made this *10 deed out to the three children and he wanted them to have it; and that he had delivered the keys to his wife to make doubly sure they would get it.
The appellants contend that by reason of the stipulated facts that the deed was recorded after the decedent's death, and that it was in the safety deposit box of the decedent at the time of his death, as a matter of law, the lower court was required to determine that the deed in question had not been delivered during his lifetime, citing Fifer v. Rachels (1901), 27 Ind. App. 654, 62 N.E. 68; and Indiana Trust Co. v. Byram (1905), 36 Ind. App. 6, 72 N.E. 670, 73 N.E. 1094.
The appellants further contend that they have proved prima facie that the deed was not delivered, and it was therefore void, and that the burden of going forward with the evidence and proving that there was a delivery of the deed fell upon appellees, and that appellees have failed to prove such a delivery. In this contention, the appellants rely on the case of Osborne v. Eslinger (1900), 155 Ind. 351, 58 N.E. 439. An examination of this well reasoned opinion, the Supreme Court speaking through Judge Dowling, reveals that it does not afford a solution for the questions raised in this appeal. In the Osborne case, supra, the Supreme Court points out that "The ruling English cases and some of the American decisions hold that, in the case of deeds of settlement, manual delivery of the instrument, or the equivalent of such delivery, is not indispensable". Citing Clavering v. Clavering, 2 Vern. 473, 476; Barlow v. Heneage, Prec. Cha. 211; Naldred v. Gilham, 1 P. Wms. 577; Boughton v. Boughton, 1 Atk. 625; Taw v. Bury, Dyer, 167b; McLure v. Colcough, 17 Ala. 89; Newton v. Bealer, 41 Iowa 334; Shirley v. Ayres, 14 Ohio 307, 45 Am. Dec. 546; Martin v. Flaharty, 13 Mont. 96, 19 L.R.A. 242; Farrar v. Bridges, 5 Humph. *11 (Tenn.) 411, 42 Am. Dec. 439. The court further stated in Osborne v. Eslinger, supra:
"But in this State, the authorities are uniform that, even in the case of a voluntary deed of settlement, delivery is essential to the validity of the deed, and that it must be made either to the grantee or to some third person for his use. It follows from what has been said that the deeds which were signed and acknowledged by Mrs. Osborne were never delivered, and that they were void for that reason."
However, when we examine the foregoing reasoning of the court in the light of the facts of this Osborne case, we find that Mrs. Osborne, the grantor, handed the deeds wrapped together in a paper, to one Mary Davis, an aged sister-in-law, who made her home with her, saying that she desired Mrs. Davis "to take care of the papers, and keep them until after her, Mrs. Osborne's death, and then deliver them to the one who should settle her estate." Upon reflection, and because of the advanced age of Mrs. Davis, who was then seventy-two years old, Mrs. Osborne took back the papers, and put them in a "press" in her home, and told Mrs. Davis she had placed them there, adding, "In case I get sick, you take care of these papers, and when I die give them to the one who settles my estate." Mrs. Osborne was then in good health, but soon afterwards became very ill. Agreeably to her instructions, Mrs. Davis took the papers from Mrs. Osborne's "press", and deposited them in a box of her own, over which she had exclusive control, and so kept them until after the death of Mrs. Osborne. The next day after Mrs. Osborne was taken sick she called Mrs. Davis to her bedside, and asked if she had taken charge of the papers as she, Mrs. Osborne, had requested. Mrs. Davis answered, "Yes, I have." Mrs. Osborne responded, *12 "All right." Mrs. Osborne died April 23, 1897. The court properly held that upon such facts shown that the decedent never intended to surrender her right to the possession and control of the deeds, and that, in contemplation of law, the possession of Mrs. Davis was that of an agent of Mrs. Osborne, and not as the trustee or agent of the grantees, and in discussing the rules governing the delivery of deed the court further stated:
"The rule is thus stated by eminent textwriters: `Where a grantor executes a deed, and delivers it to a third person to hold until the death of the grantor, the latter parting with all dominion over it, and reserving no right to recall the deed, or alter its provisions, it seems to be settled by the weight of authority that the delivery is effectual, and the grantee, on the death of the grantor, succeeds to the title.' Devlin on Deeds (2nd ed.), § 280, citing Lang v. Smith, 37 W. Va. 725, 17 S.E. 213; Ruggles v. Lawson, 13 Johns. 285; Tooley v. Dibble, 2 Hill 641; Goodell v. Pierce, 2 Hill 659; Squires v. Summers, 85 Ind. 252; Bury v. Young, 98 Cal. 446, 33 Pac. 338.
"`In determining what will constitute a sufficient delivery, it is found that the intention is the controlling element. No particular formality need be observed, and the intention to deliver the deed may be manifested by acts, or by words, or both. But one or the other must be present to make a good delivery.' Tiedeman on Real Prop. (2nd ed.), § 813.
"`Where the deed is delivered to the grantee named, the law presumes it was done with an intent, on the part of the grantor, to make it his effectual deed; but if it is delivered to a stranger, and nothing is said at the time, no such inference is drawn from the act of delivery.... If delivered to the grantee himself, no words are necessary, since the law presumes in such case it is for his use. If delivered to a stranger, there is no such presumption; and there must, therefore, be some evidence, beyond such delivery of his intent thereby *13 to part with his title. But no precise form of words is necessary to declare such intent. Anything that shows that the delivery is for the use of the grantee is enough.' 3 Washb. on Real Prop. (5th ed.), p. 314, § 582.
"Where the claim of title rests upon the delivery of the deed to a third person, the deed must have been properly signed by the grantor, and delivered by him, or by his direction, unconditionally, to a third person for the use of the grantee, to be delivered by such person to the grantee, either presently, or at some future day, or upon some inevitable contingency, the grantor parting, and intending to part, with all dominion and control over it, and absolutely surrendering his possession and authority over the instrument, so that it would be the duty of the custodian or trustee for the grantee, on his behalf, and as his agent and trustee to refuse to return the deed to the grantor, for any purpose, if demand should be made upon him. And there should be evidence beyond such delivery of the intent of the grantor to part with his title, and the control of the deed, and that such delivery is for the use of the grantee." (Our italics.)
In Fifer v. Rachels, supra, relied upon by appellants, the grantor executed a deed, placed it in an envelope on which was endorsed "valuable papers", and deposited it with a bank subject to his will or his order, the deed so remaining with the bank until the death of the grantor, and the court held there was no delivery of the deed sufficient to pass title of the real estate. It is obvious, therefore, that in this Fifer case the grantor retained dominion and control over the deed until his death.
In Burkholder et al v. Casad et al. (1874), 47 Ind. 418, the court stated:
"We think there must be some act or declaration on the part of the grantor, from which it may be inferred that he intended to part with the title to the property, and this whether the grantee be *14 infants or adults. The deed may be delivered to the grantee, or to some other person for him.... It may be delivered without being actually handed over, and if once delivered its retention by the grantor does not affect the title of the grantee.
"It is clear, however, that a deed may be written, signed, acknowledged, and certified, and still be inoperative for want of delivery. No particular act or form of words is necessary to constitute a delivery of a deed. Anything done by the grantor, from which it is apparent that a delivery was intended, either by words or acts, or both combined, is sufficient. See Somers v. Pumphrey, 24 Ind. 231, and cases cited." (Our italics.)
In Klingaman v. Burch (1940), 216 Ind. 695, 25 N.E.2d 996, a case in which a deed was found in the lock-box of the grantor on his death, and one of the later pronouncements of the Supreme Court on the subject of delivery of deeds, the following rule is announced:
"In all disputes as to whether or not a deed has been delivered, the most important inquiry is to ascertain the intent of the grantor, in the act or several acts, which, it may be claimed, constitute a delivery. Did he intend to part with all control over the deed? Did he intend to divest himself of the title and lodge it in the grantee?
"A deed may be delivered by any act or word, or both, evincing the intention of the grantor to deliver it. The law does not prescribe any particular form of words or actions as necessary to constitute a delivery. Anything done or said by the grantor from which it is apparent that a delivery is thereby intended, either by words or acts, or by both combined, is sufficient. Berry v. Anderson, 22 Ind. 36.... In the case of Vaughan v. Godman, 94 Ind. 191, the court quoted with approval the following excerpt from Thatcher v. St. Andrew's Church, 37 Mich. 264.
"`The act of delivery is not necessarily a transfer of the possession of the instrument to the grantee *15 and an acceptance by him, but it is the act of the grantor, indicated either by acts or words or both, which shows an intention on his part to perfect the transaction, by a surrender of the instrument to the grantee, or to some third person for his use and benefit.'"
From all of the adjudicated cases it seems apparent that the real test is whether the grantor by any acts or words, or both, in reference to the deed evinces an unmistakable intention to surrender all possession and control of the same in favor of the grantees and to give it effect and operation according to its terms. Burkholder et al. v. Casad et al., supra; Purviance, Admr. v. Jones (1889), 120 Ind. 162, 21 N.E. 1099; Anderson et al. v. Anderson et al. (1890), 126 Ind. 62, 24 N.E. 1036; Klingaman v. Burch, supra. See also 16 Am. Jur., Deeds. § 142, p. 516
While it is apparent that this case is one of first impression in this state upon the facts shown, applying the well established rules of law to the undisputed facts in this case, it seems clear that there was sufficient evidence of probative value for the lower court to have concluded that there was a delivery of the deed in the instant case to a third party with a present intention to vest title in the grantees, and to relinquish all power and control over the deed by the grantor.
In the instant case, the grantor, having placed the deed in question in a safety deposit box, thereafter, by both positive and unequivocal and unmistakable language, and by his definite acts, delivered the keys to such deposit box to a third party and, in his words, stated "so it would be out of his possession forever." He also asserted that he wanted his three children to have the deed; and that he had delivered the keys to his wife to make doubly sure they would get it. Under the circumstances shown by this *16 record, Mildred Lucille Scott would have owed a right and duty not to surrender or return the keys to the grantor, and became the agent or trustee for the grantees. It is not any one of the above circumstances in itself which would be sufficient to constitute delivery of a deed under the adjudicated cases. But, considering the acts and words of decedent with reference to the delivery of the deed in question, we cannot disturb the judgment of the lower court in determining that this deed had been delivered by the grantor during his lifetime to a third party, his wife, Mildred Lucille Scott, to be placed of record after his death for and on behalf of the infant grantees therein named, Melvin F. Scott, Terry G. Scott and Mary Alice Scott, and that such deed is now in full force and effect. Klingaman v. Burch, supra; Heavner v. Kading (1930), 209 Ia. 1271, 228 N.W. 311; Moore v. Trott (1912), 162 Calif. 268, 122 Pac. 462.
Where a deed is delivered through the instrumentality of a third person, the title conveyed relates back to its execution completed by delivery to the grantee. Kokomo Trust Co. v. Hiller (1918), 67 Ind. App. 611, 116 N.E. 332; St. Clair v. Marquell (1903), 161 Ind. 56, 67 N.E. 693; Stout v. Rayl (1896), 146 Ind. 379, 45 N.E. 515; Goodpaster v. Leathers (1889), 123 Ind. 121, 23 N.E. 1090; Newman v. Fidler (1912), 177 Ind. 220, 97 N.E. 785; 26 C.J.S., Deeds, § 46, p. 247.
The presumption is made stronger in favor of the delivery of deeds in cases of voluntary settlements than in ordinary cases of bargain and sale, and the fact that the grantees were minors and members of grantor's family is entitled to some consideration in construing the legal effect of the circumstances *17 surrounding the execution and delivery of the deed in question. Colee v. Colee et al. (1889), 122 Ind. 109, 23 N.E. 687.
For the reasons given herein, the decision of the lower court was not contrary to law and the lower court did not err in overruling appellants' motion for a new trial.
Judgment affirmed.
NOTE. Reported in 127 N.E.2d 110. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903463/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Delin, J.), rendered November 21, 1986, convicting him of burglary in the second degree and robbery in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the *744defendant’s omnibus motion which were to suppress physical evidence and his statements to law enforcement personnel.
Ordered that the judgment is affirmed, and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (5).
The defendant contends that the hearing court erred in denying that branch of his omnibus motion which was to suppress oral statements made to the police following his arrest. The hearing court’s findings that the defendant had been adequately advised of his Miranda rights (see, Miranda v Arizona, 384 US 436) and voluntarily chose to waive them, and that the defendant’s statements had not been induced by force or coercion are supported by the record.
Moreover, the hearing court properly denied that branch of the defendant’s omnibus motion which sought to suppress evidence discovered during an inventory search of his vehicle. Having a sufficient basis to conclude that the defendant’s vehicle had been utilized in the commission of the crime, the officers had the right to impound the vehicle and inventory its contents pursuant to police department procedure (see, e.g., Colorado v Bertine, 479 US 367; South Dakota v Opperman, 428 US 364; People v Gonzalez, 62 NY2d 386).
We further find that the accomplice’s testimony was sufficiently corroborated by the receipt identified as having come from the burglarized premises and by the defendant’s inculpatory statement (see, People v Moses, 63 NY2d 299, 305; People v Daniels, 37 NY2d 624, 629).
Finally we find no basis for modification of the sentence (see, People v Suitte, 90 AD2d 80). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903465/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Harrington, J.), rendered October 15, 1984, convicting him of burglary in *746the third degree and petit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence showed that the defendant walked through the wood paneled merchandise display area of a store, opened an unlocked door, and let himself into a small unpaneled cinderblock room which contained a desk. After opening and closing the desk drawers, the defendant left the room and walked up and down the aisles of the display area. Then, he reentered the room, turning on the light and closing the door behind him. The defendant was confronted in the office by the store owner. In his pocket, the defendant had four envelopes containing cigarette coupons which had been removed from a desk drawer.
We find, contrary to the defendant’s contentions, that there was legally sufficient evidence in the record to permit the jury to find that the defendant knowingly entered or remained unlawfully in a building (see, Penal Law §§ 140.20, 140.00 [2], [5]; People v Powell, 58 NY2d 1009; People v Pringle, 96 AD2d 873; Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 140.00). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903466/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered May 15, 1986, convicting him of burglary in the first degree and petit larceny, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we find that the verdict was not against the weight of the evidence (see, CPL 470.15 [5]; see also, People v James, 112 AD2d 380). Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534891/ | HTTP/1.1 200
Date: Fri, 15 May 2020 22:09:08 GMT
Content-Type: application/pdf | 01-03-2023 | 05-15-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1953908/ | 931 A.2d 159 (2007)
283 Conn. 672
WHEELABRATOR LISBON, INC.
v.
DEPARTMENT OF PUBLIC UTILITY CONTROL et al.
No. 17691.
Supreme Court of Connecticut.
Argued March 12, 2007.
Decided August 28, 2007.
*162 Michael Kurs, for the appellant (plaintiff).
Tatiana Eirmann, assistant attorney general, for the appellee (named defendant).
Joseph A. Rosenthal, with whom, on the brief, was Mary J. Healey, Meriden, for the appellee (defendant office of consumer counsel).
Philip M. Small, with whom were Michael E. Kozlik, Hartford and, on the brief, Khristopher M. Gregoire, Boston, MA, for the appellee (defendant Connecticut Light and Power Company).
BORDEN, NORCOTT, PALMER, ZARELLA and J. KAPLAN, Js.[*]
ZARELLA, J.
The plaintiff, Wheelabrator Lisbon, Inc.,[1] appeals[2] from the judgment of the trial court dismissing its administrative appeal pursuant to General Statutes §§ 4-183[3]*163 and 16-35[4] from the decision of the named defendant, the department of public utility control (department), that the defendant Connecticut Light and Power Company (utility) is entitled to renewable energy certificates associated with the plaintiff's electrical output and to proceeds from all prior sales of such certificates by the plaintiff. The plaintiff claims on appeal that the trial court incorrectly concluded that the department had subject matter jurisdiction over this matter. The plaintiff further claims that, if we conclude that the department had jurisdiction, the trial court incorrectly concluded that the department's decision was supported by substantial evidence and did not constitute an unconstitutional taking under article first, § 11, of the Connecticut constitution.[5] The department, the utility and the defendant office of consumer counsel[6] contend to the contrary.[7] We affirm the judgment of the trial court.
As context for our review of the factual and procedural history of this case, we first provide an overview of the relevant regulatory landscape. In 1978, Congress passed the Public Utility Regulatory Policies Act of 1978 (federal act), Pub.L. No. 95-617, 92 Stat. 3117 (1978). Section 210 of the federal act, codified as amended at 16 U.S.C. § 824a-3, required the federal Energy Regulatory Commission (federal commission) to prescribe rules requiring electric utilities to purchase electric energy from qualifying small power production facilities. 16 U.S.C. § 824a-3 (a) (2000); see also 18 C.F.R. § 292.303(a) (2006). "Small power production facility" is defined in relevant part as "a facility which . . . produces electric energy solely by the use . . . of biomass waste [or] renewable resources. . . ." 16 U.S.C. § 796(17)(A)(i) (2000). The federal act also provides that the rates for the purchase of energy from a small power production facility "shall be just and reasonable to the electric consumers of the electric utility and in the public interest, and . . . shall not discriminate against qualifying cogenerators or small power producers." 16 U.S.C. § 824a-3 (b)(1) and (2) (2000); see also 18 C.F.R. § 292.304(a)(1)(i) and (ii) (2006). These *164 rates may not exceed "the incremental cost to the electric utility of alternative electric energy"; 16 U.S.C. § 824a-3 (b) (2000); see also 18 C.F.R. § 292.304(a)(2) (2006); which is defined as "the cost to the electric utility of the electric energy which, but for the purchase from such cogenerator or small power producer, such utility would generate or purchase from another source." 16 U.S.C. § 824a-3 (d) (2000). This incremental cost also is known as the utility's avoided cost. See 18 C.F.R. § 292.101(b)(6) (2006).
In adopting the avoided cost regulations, the federal commission assumed that the cost to small power production facilities of generating electricity would be lower than the avoided cost that they would be paid for the energy. See American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U.S. 402, 406-407, 103 S. Ct. 1921, 76 L. Ed. 2d 22 (1983). The federal commission explained that it had "set the rate [for purchasing electric energy] at full avoided cost rather than at a level that would result in direct rate savings for utility customers" in order "to provide incentives for the development of cogeneration and small power production. . . ." Id., at 406, 103 S. Ct. 1921. The federal commission also had determined that the rate was "just and reasonable to the electric consumers of the electric utility"; (internal quotation marks omitted) id., at 413, 103 S. Ct. 1921; even though it was not the "lowest possible reasonable rate consistent with the maintenance of adequate service. . . ." (Internal quotation marks omitted.) Id., at 413-14, 103 S. Ct. 1921.
The federal act required each state's regulatory authority to implement the rules adopted by the federal commission for each electric utility over which it had ratemaking authority. See 16 U.S.C. § 824a-3 (f)(1) (2000). The Connecticut General Assembly responded by enacting General Statutes § 16-243a et seq., which substantially incorporated the federal definitions and mandates, including the avoided cost pricing provisions. See General Statutes § 16-243a (a) and (c).[8]
In response to the enactment of § 16-243a et seq., the department initiated an investigation into cogeneration and small power production. See Decision and Order, Dept. of Public Utility Control, "Investigation into Cogeneration and Small Power Production: `Going Back to the Future'" (December 11, 1985) (1985 decision and order). In the 1985 decision and order, the department indicated that, in determining pricing methods for such facilities, its goal was "to encourage [small power production facility] development to the maximum feasible extent and to protect utility ratepayers by assuring that over the term of power purchase agreements, there will be net benefits to the state and to ratepayers." Id., at p. 30. To meet these objectives, the department *165 indicated that "contracts should achieve payments of 100 [percent] of utility avoided costs over the term of the power purchase agreement" and that "[c]ontracts for [qualified facilities] using renewable fuels should receive more favorable terms than for [qualified facilities] using fossil fuels. . . ." Id. The department also recognized that "proceedings to review cogenerator contracts have often taken longer than the cogenerator, utility or [d]epartment may have wished." Id., at p. 47. To address this problem, the department determined that, when "a complete contract is being submitted for review that has the agreement of both [the] utility and [the] cogenerator the [department] will follow expedited procedures. . . ." Id.
Thereafter, the department adopted regulations to implement these policies. The regulations established a competitive bidding process for obtaining a long-term purchase contract that would be triggered only when an electric utility has a demonstrated need for additional electric generating capacity. See Regs., Conn. State Agencies §§ 16-243a-4 (a) and 16-243a-5. Section 16-243a-7 of the regulations exempts "[r]esource recovery projects[9] which seek pricing under the provisions of [General Statutes §] 16-243a" from these standard bidding procedures. Id., § 16-243a-7 (a)(4).
With this regulatory background in mind, we review the facts and procedural history of the present case. The plaintiff operates a municipal solid waste burning electric generating facility in Lisbon. In 1991, the plaintiff, pursuant to General Statutes §§ 4-176[10] and 16-243a, submitted to the department a petition for a declaratory ruling that its facility was a resource recovery project and was therefore exempt under § 16-243a-7 (a)(4) of the regulations from the bidding requirements for obtaining a long-term purchase contract with the utility. In the petition, the plaintiff also sought a ruling that the utility was required by the 1985 decision and order and "by [§] 16-243a . . . and . . . [the department's] [r]egulations to enter into an [e]lectricity [p]urchase [a]greement [1991 agreement] . . . to purchase electricity generated by the [the plaintiff's] [f]acility at the rates set forth in that [a]greement." In support of this request, the plaintiff represented that the utility's "participation in the transactions specified in the [1991] [a]greement constitutes prudent and efficient management and is otherwise consistent with the provisions of [General Statutes] § 16-19e[11]*166 . . . . [Thus, for the term of the 1991 agreement, the utility] will be allowed to recover payments under the [1991] [a]greement in a manner at least as favorable to [the utility] as the manner in which [the utility] recovers fossil fuel expenses." The 1991 agreement provided that the utility "will purchase and [the plaintiff] will sell the entire [n]et [e]lectric [o]utput of the [f]acility. . . ."
On March 13, 1991, the department issued a decision in which it found that the plaintiff's facility was a resource recovery project within the meaning of § 16-243a-7 (a)(4) of the regulations, that the plaintiff's production of electricity would further the state's policy of developing diversified energy resources, that its status entitled it under § 16-243a-7 (a)(4) to contract to sell electricity to the utility even though the utility did not have a need for additional capacity, and that the plaintiff was exempt from the department's standard bidding procedures. The department also found that "payments over the twenty-five year life of the [p]roject [were] expected to be [99 percent] of the most recently approved avoided costs" for the utility. The department concluded that the 1991 agreement between the plaintiff and the utility met all applicable regulatory criteria and approved it.
The 1991 agreement contained a dispute resolution clause providing that "[a]ny dispute regarding payments from the [utility] to [the plaintiff] or interpretation of [the] [a]greement not covered by subsection (b) [of paragraph twenty-three][12] shall be presented to the [department] for resolution. Any decision of the [department] as to the matter submitted to it shall be subject to appeal in the normal manner for appeals from decisions of the [department]. If the [department] fails or refuses to resolve any such disputes, or fails to act on such disputes within a reasonable period of time not to exceed ninety . . . days, such dispute shall be subject to resolution by any court of competent jurisdiction within the [s]tate of Connecticut."
In 2002, the New England Power Pool (NEPOOL)[13] created an accounting *167 device known as generation information system certificates, or renewable energy certificates. NEPOOL created the certificates in part because many states, including Connecticut, had enacted statutes requiring certain retail sellers of electricity, including the utility, to purchase a specified amount of electricity from renewable energy sources. See, e.g., General Statutes § 16-245a (a).[14] The certificates verify that specified units of electricity have been generated using renewable fuel or have been produced with low emissions and, pursuant to state law, can be purchased to satisfy the state renewable energy requirements. See General Statutes § 16-245a (b).[15] Thus, the certificates effectively "unbundled" the renewable energy attribute of the electric product from the generic energy component for accounting purposes and allowed them to be traded separately. Since 2002, NEPOOL has assigned to the plaintiff, pursuant to NEPOOL's standard rules of operation, the certificates associated with the generation of electricity at the plaintiff's facility, "without prejudice to which person or entity is the owner of such certificates."
In 2004, the utility filed a petition with the department (2004 petition) in which it requested that the department reopen the 1991 proceeding and issue a declaratory ruling that the plaintiff was required to transfer the renewable energy certificates to the utility pursuant to the 1991 agreement. The plaintiff opposed the 2004 petition on the ground that the department lacked jurisdiction to hear the matter and that, if the department had jurisdiction, the utility was not entitled to the certificates. The department held a public hearing on the 2004 petition, issued a draft decision and received comments. Thereafter, the department issued its final decision (2004 decision) in which it concluded, first, that it had jurisdiction over the matter under § 4-176 and other state statutes and, second, that the 1991 agreement required the plaintiff to transfer the certificates to the utility. The department reasoned that "the `electricity' that [the plaintiff] offered to sell and that the [d]epartment ordered [the utility] to purchase necessarily meant electricity generated by renewable fuel. No other electricity generated by [the plaintiff] would have qualified [the plaintiff] for the . . . statutory and regulatory treatment [that] it [had] received."
*168 The plaintiff appealed to the trial court from the 2004 decision pursuant to § § 4-183 and 16-35.[16] The trial court concluded that the department had jurisdiction to hear the utility's 2004 petition under § 4-176, among other statutes, that the 2004 decision did not constitute an unconstitutional taking and that there was substantial evidence to support the department's determination that the 1991 agreement required the plaintiff to transfer the renewable energy certificates to the utility. Accordingly, the trial court rendered judgment dismissing the plaintiff's administrative appeal.
This appeal followed. The plaintiff claims on appeal that the trial court incorrectly concluded that (1) the department had subject matter jurisdiction over the contract dispute that formed the basis of the 2004 petition, (2) there was substantial evidence to support the department's 2004 decision, and (3) the 2004 decision did not constitute an unconstitutional taking. We reject each claim and, therefore, affirm the trial court's judgment.
I
We first address the plaintiff's claim that the trial court incorrectly determined that the department had subject matter jurisdiction over the utility's 2004 petition to reopen the 1991 proceeding for the purpose of determining the ownership of the renewable energy certificates. The plaintiff argues that the department lacked jurisdiction because the issue of whether the utility or the plaintiff owned the certificates under the 1991 agreement is a question of the intent of the parties under a privately negotiated agreement, and no state statute confers jurisdiction on the department to decide such an issue. The defendants counter that the department was authorized by statute to set the parameters for contracts between small power production facilities and utilities, and to review and approve such contracts, and that this statutory authority necessarily encompassed the resolution of pricing disputes. Accordingly, the defendants argue, the department had jurisdiction over the 2004 petition under § 4-176 and General Statutes § 16-9.[17] We agree with the defendants that the department had jurisdiction over the 2004 petition.
At the outset, we set forth our standard of review. "Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely [on] the validity of the statutes vesting them with power and they cannot confer jurisdiction [on] themselves. . . . We have recognized that [i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. . . . It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes *169 expressly grant it that power." (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988). "[A] subject matter jurisdictional defect may not be waived . . . [or jurisdiction] conferred by the parties, explicitly or implicitly. . . . [T]he question of subject matter jurisdiction is a question of law . . . and, once raised, either by a party or by the court itself, the question must be answered before the court may decide the case. . . . We have long held that because [a] determination regarding . . . subject matter jurisdiction is a question of law, our review is plenary." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 283, 914 A.2d 996 (2007).
Administrative agencies have jurisdiction not only to determine the applicability of statutes to particular facts but "[to] issue declaratory rulings based on their interpretations of statutes." Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, 173 Conn. 352, 356, 377 A.2d 1099 (1977). "It is inherent in our judicial system of dispute resolution that the interpretation of statutes, like the development of the common law, grows out of the filtering of a set of facts through the law as seen by the [agency]. . . ." Id., at 356-57, 377 A.2d 1099.
In the present case, the plaintiff does not dispute that the department had jurisdiction under § 4-176 to determine whether the plaintiff's facility was a resource recovery project within the meaning of § 16-243a-7 (a)(4) of the regulations, whether the plaintiff's production of electricity would further the state's policy of developing diversified energy resources, whether its status entitled it to contract to sell electricity even though the utility did not have a need for additional capacity and whether the plaintiff was exempt from the department's standard bidding procedures. Nor does the plaintiff dispute that the department had jurisdiction to determine whether the pricing structure of the 1991 agreement complied with the requirement of § 16-243a that the rates paid by the utility be based on avoided costs. The plaintiff does claim, however, that the department, having made these determinations, lacked jurisdiction to reopen the 1991 proceeding to determine whether the parties intended that the rates set forth in the 1991 agreement would include the renewable energy attribute of the plaintiff's electrical production, now represented by the certificates. We disagree.
First, we are unable to accept the plaintiff's characterization of the issue before us as one of pure contractual intent. See Indeck-Yerkes Energy Services, Inc. v. Public Service Commission, 164 App. Div.2d 618, 621, 564 N.Y.S.2d 841 (1991) (meaning of contract between cogeneration facility and utility "is not [issue] of pure interpretation of the language of the agreement"). As we have indicated, the department's approval of the 1991 agreement was premised on the department's determination that the plaintiff was a resource recovery facility, as defined by General Statutes § 22a-207 (9),[18] that sought pricing under the avoided cost rate provisions of § 16-243a. Accordingly, as with other terms of the 1991 agreement, the meaning of the agreement's pricing provisions, including whether they were intended to transfer ownership of the renewable energy component of the electricity to the utility, is more a question of legislative intent and public policy than a question of the intent of the *170 parties.[19] See Connecticut Resources Recovery Authority v. Connecticut Light & Power Co., 34 Conn.App. 246, 249, 641 A.2d 398 (1994) (construing contractual dispute resolution provision similar to provision in present case and concluding that "the parties' intent as evidenced by their agreement aligns with the intent of the state legislature that the department regulate and supervise public utilities and establish reasonable rates"). Indeed, although the department concluded in the 2004 decision that "the parties intended that renewable energy attributes generated by [the plaintiff] . . . [would] be included in the `entire net electric output of the facility,'" it also concluded that the renewable energy certificates "are and were intended by the [d]epartment to be sold by [the plaintiff] and purchased by [the utility]. The [d]epartment's reliance on Connecticut's unique body of law is the necessary and material condition for [the] . . . approval" of the 1991 agreement.[20] (Emphasis added.)
It is apparent that, if the certificates had been in existence when the 1991 agreement was under review by the department, and the intent of the parties with respect to the ownership of the certificates had been clear, the department would have had jurisdiction to determine whether the legislature intended that the avoided costs would include the renewable energy attribute of the energy sold by resource recovery projects for purposes of §§ 16-243a and 16-245a and whether the parties' intent was consistent with those statutes and the public policies that they embody. Cf. Connecticut Life & Health Ins. Guaranty Assn. v. Jackson, supra, 173 Conn. at 356, 377 A.2d 1099. Specifically, the department would have had jurisdiction to interpret the governing statutes to determine (1) whether the legislature intended that the word "electricity" in the phrase "rates for electricity purchased from a private power producer . . . based on the full avoided costs" in General Statutes § 16-243a (c)which provided the basis for the 1991 agreementinclude the renewable energy component represented by the certificates or, instead, meant generic electricity *171 without the renewable energy component, and (2) whether the electricity that the utility purchased at the avoided cost rate should be applied to its renewable energy portfolio requirement under § 16-245a (a), or, instead, the utility should be required to purchase both the electricity and the certificates to meet the requirement. In enacting the avoided cost price provision, the state legislature adopted a federal policy that was intended to balance Congress' desire to encourage the use of renewable energy sources with its desire to ensure that the rate paid by consumers was just and reasonable, legislative desires that the department is charged with implementing. We see no reason to conclude that the department lacked jurisdiction to make these determinations under §§ 4-176 and 16-9 merely because the certificates were created and § 16-245a, which recognized and gave value to the certificates, was enacted after the execution of the 1991 agreement.
The fact that the terms of the 1991 agreement were negotiated by the parties and not dictated by the department does not affect this conclusion. The pricing and payment structure of the 1991 agreement was subject to review and approval by the department to ensure that it complied with the applicable statutes and regulations and that it was consistent with public policy regardless of whether the parties voluntarily had agreed to its terms.[21] Accordingly, we conclude that the department had jurisdiction over the issues raised in the 2004 proceeding.
II
We next address the plaintiff's claim that the department's determination that the utility was entitled to the renewable energy certificates and to the proceeds from all prior sales of the certificates was not supported by substantial evidence.[22] The gist of the plaintiff's argument is that it was entitled to special regulatory treatment because of its status as a resource recovery facility, i.e., a producer of renewable energy, and not because the electricity that it actually sold to the utility included any renewable energy attribute. We disagree.
"[J]udicial review of the [department's] action is governed by the Uniform *172 Administrative Procedure Act [(UAPA), General Statutes §§ 4-166 through 4-189], and the scope of that review is very restricted. . . . [R]eview of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion." (Citation omitted; internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561(2000).
"Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . We also have held that an exception is made when a state agency's determination of a question of law has not previously been subject to judicial scrutiny . . . [in which case] the agency is not entitled to special deference." (Internal quotation marks omitted.) Wallingford v. Dept. of Public Health, 262 Conn. 758, 771-72, 817 A.2d 644 (2003); see Bridgeport Hospital v. Commission on Human Rights & Opportunities, 232 Conn. 91, 109, 653 A.2d 782 (1995) ("the factual and discretionary determinations of administrative agencies are to be given considerable weight by the courts . . . [but] it is for the courts, and not for administrative agencies, to expound and apply governing principles of law" [citations omitted; internal quotation marks omitted]).
As we have indicated, the present case required the department to determine whether the word "electricity" as used in § 16-243a (c), which provided the basis for the 1991 agreement, included the renewable energy component of the electricity and whether the purchase of such electricity at the avoided cost rate entitled the utility to credit for the purchase of renewable energy for purposes of § 16-245a. Because this is a question of statutory interpretation that previously has not been subject to judicial scrutiny, our review ordinarily would be plenary. Nevertheless, in light of the extremely complex and technical regulatory and policy considerations implicated by this issue, we are not persuaded that we may substitute our judgment for that of the department. Rather, this "is precisely the type of situation that calls for agency expertise." (Internal quotation marks omitted.) MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 139, 778 A.2d 7 (2001); see also Christopher R. v. Commissioner of Mental Retardation, 277 Conn. 594, 611, 893 A.2d 431 (2006) ("we generally defer to an agency with expertise in matters requiring such a technical . . . determination"); cf. Office of Consumer Counsel v. Dept. of Public Utility Control, 279 Conn. 584, 593, 905 A.2d 1 (2006) ("In the specialized context of a rate case, the court may not substitute its own balance of the regulatory considerations for that of the agency, and must assure itself that the [department] has given reasoned consideration to the factors expressed *173 in § 16-19e [a]. . . . This broad grant of regulatory authority carries with it the necessarily equally broad discretion, to be exercised within legal limits. . . ." [Citations omitted; internal quotation marks omitted.]). Deference is particularly appropriate because the department's interpretation of § 16-243a was informed by its interpretation of its own regulations. See MacDermid, Inc. v. Dept. of Environmental Protection, supra, at 138-39, 778 A.2d 7 (principle that courts defer to agency's interpretation of statutes "applies with even greater force to an agency's interpretation of its own duly adopted regulations" [internal quotation marks omitted]). Accordingly, we limit our review to a determination of whether the department gave reasoned consideration to all of the relevant factors or whether it abused its discretion.
We turn next to the substantive principles that guide and limit the department's exercise of discretion. The federal commission has concluded that the ownership of renewable energy certificates is an issue to be decided on the basis of state law and policy, and is not controlled by federal law. In In re Covanta Energy Group, 105 F.E.R.C. 61,004, 61,005 (2003), rehearing denied sub nom. In re American Ref-Fuel Co., 107 F.E.R.C. 61,016 (2004), several renewable energy facilities filed a petition with the federal commission seeking a declaratory order that avoided cost contracts entered into pursuant to the federal act do not automatically convey ownership of certificates to the purchasing utility in the absence of an express contractual provision to the contrary. The federal commission noted that the factors to be considered in determining avoided costs under the federal act did not include the renewable attribute of the energy generated by the renewable energy facility. See id., at 61,007. "This is because avoided costs were intended to put the utility [in] the same position when purchasing [qualified facility] capacity and energy as if the utility generated the energy itself or purchased the energy from another source. In this regard, the avoided cost that a utility pays a [qualified facility] does not depend on the type of [qualified facility], i.e., whether it is a fossil-fuel-cogeneration facility or a renewable-energy small power production facility. The avoided cost rates, in short, are not intended to compensate the [qualified facility] for more than capacity and energy." Id. Accordingly, the federal commission concluded that, under federal law, "contracts for the sale of [qualified facility] capacity and energy entered into pursuant to [the federal act] do not convey [renewable energy certificates] to the purchasing utility (absent an express provision in a contract to the contrary)." Id.
The federal commission also noted, however, that renewable energy certificates "are created by the [s]tates. They exist outside the confines of the [federal act]," and the issues of who owns them and to whom they may be sold or traded are not controlled by the federal act. Id. Accordingly, the federal commission also concluded that, although "a state may decide that a sale of power at wholesale automatically transfers ownership of the state-created [renewable energy certificates], that requirement must find its authority in state law, not [the federal act]." Id. Commissioner Nora Mead Brownell dissented from the federal commission's decision, stating that she agreed that the ownership of the certificates was not controlled by the federal act but that the majority's conclusion that avoided cost contracts do not automatically convey the certificates to the purchasing utility under the federal act was inconsistent with that conclusion. Id., at 61,008; see also E. Holt, R. Wiser & M. Bolinger, "Who Owns Renewable Energy *174 Certificates? An Exploration of Policy Options and Practice" (Ernest Orlando Lawrence Berkeley National Laboratory Report No. LBNL-59965, April, 2006) p. 51 (commission's conclusion that "avoided cost payments mandated by [the federal act] pay only for energy and capacity and do not convey the renewable attributes" appears to contradict conclusion that states must decide ownership), available at http://eetd.lbl.gov/ea/emp/reports/59965. pdf.
In In re Ownership of Renewable Energy Certificates, 389 N.J.Super. 481, 913 A.2d 825 (App.Div.2007), the Appellate Division of the New Jersey Superior Court concluded that, although the federal commission's analysis of the issue of certificate ownership under federal law in In re Covanta Energy Group could be interpreted as supporting the argument that the certificates are not conveyed from the renewable energy source to the utility in the absence of an explicit contractual term to the contrary, the decision is more properly read as standing for the proposition that the issue is one of state law. Id., at 490-91, 913 A.2d 825; see also E. Holt, R. Wiser & M. Bolinger, supra, p.x.
"The issue of initial ownership of [r]enewable [e]nergy [c]ertificates for existing contracts that did not anticipate their creation has arisen in at least nine other states. Each state has ruled . . . that as applied to existing contracts for the sale of power to utilities by renewable energy producers, the certificates are the property of the purchasing utility rather than the producer." In re Ownership of Renewable Energy Certificates, supra, 389 N.J.Super. at 485, 913 A.2d 825, citing E. Holt, R. Wiser & M. Bolinger, supra, p. xiv.[23] State regulatory agencies have considered the following factors in reaching this conclusion: (1) the fact that utilities would not be obligated to purchase electricity from renewable energy sources if not for their regulatory status and, therefore, that the renewable attributes are inextricably tied to the electricity; (2) requiring utilities to pay extra for the certificates would be a windfall to the renewable energy sources who contracted to receive the avoided cost without any expectation of additional remuneration; and (3) in states that require utilities to purchase a certain percentage of their energy from renewable energy sources, awarding the certificates to the renewable energy facility would mean that the utilities that are subject to the requirement would have to pay the facility twice, once based on avoided cost and a second time when it purchases the certificates, without any additional benefit to ratepayers.[24] E. Holt, R. Wiser & M. Bolinger, *175 supra, pp. xi-xii; see also In re Ownership of Renewable Energy Certificates, supra, at 489, 913 A.2d 825 (assignment of certificates to utilities adds value to electricity received by utilities, but this windfall resulted not from modification of purchase contracts but from legislative policy of reducing rates paid by consumers); id., at 489-90, 913 A.2d 825 (assignment of certificates to renewable energy facility would result in higher rates to consumers who already have paid for electricity).
In the present case, the department concluded that the utility was entitled to the certificates because "the `electricity' that [the plaintiff] offered to sell and that the [d]epartment ordered [the utility] to purchase necessarily meant electricity generated by renewable fuel. No other electricity generated by [the plaintiff] would have qualified [the plaintiff] for the . . . statutory and regulatory treatment [that] it [had] received. [The federal act] alone would not have qualified [the plaintiff] for [this] treatment. . . ." Specifically, "[n]othing in [the federal act] provides for the exemption from bidding and unique regulatory treatment regarding renewable resources and resource recovery facilities, under which [the plaintiff] sought and received [d]epartment approval." In addition, the department's regulations, and not federal law, authorized the approval of the 1991 agreement even though the utility did not have a demonstrated need for additional capacity.
We conclude that the department's interpretation of §§ 16-243a and 16-245a is consistent with the policies underlying the statutes and the department's regulations, and was reasonable. Specifically, the department reasonably concluded that the plaintiff qualified for the regulatory treatment that it received in the 1991 proceeding because it had agreed to sell renewable energy to the utility, and not merely because of its status as a producer of renewable energy. There is legal and factual support for the conclusions that the avoided cost rate itself was intended to provide an incentive to develop renewable energy sources; American Paper Institute, Inc. v. American Electric Power Service Corp., supra, 461 U.S. at 406, 103 S. Ct. 1921;[25] and that the state regulatory exemptions from the standard bidding requirements and the regulatory requirement that the utility have a demonstrated need for additional capacity were intended to provide an additional benefit to resource recovery facilities, all at the expense of the utilities and their customers.[26] If the *176 renewable attribute of the energy, represented by the certificates, were not included in the avoided cost rate, then the utility would be required to purchase the certificates in order to comply with § 16-245a, thereby providing an additional, unbargained-for benefit to the plaintiff, again at the expense of the utility and ratepayers.[27] The department expressly recognized in the 1985 decision and order that an important public policy underlying the state's adoption of the mandates of the federal act was to protect ratepayers and to ensure that any agreements that the utility entered into would provide net benefits to ratepayers.
Moreover, the term "unbundling" itself implies that the renewable attribute of the energy generated by renewable energy sources is an inherent attribute of the energy, and, therefore, the creation and state recognition of the certificates did not result in an entirely new commodity but in the splitting of a preexisting commodity, i.e., "electricity," that the utility had contracted to purchase.[28] It was reasonable, therefore, for the department to conclude that the word "electricity," as used in § 16-243a (c) and the 1991 agreement, meant renewable energy. In other words, the term "electricity" necessarily included the renewable attribute that later was "unbundled" from the energy and represented by the certificates. Accordingly, we conclude that the department reasonably determined that the certificates were owned by the utility.
III
Finally, we address the plaintiff's claim that the trial court incorrectly concluded that the department's decision that the utility was entitled to the renewable energy certificates did not violate article first, § 11, of the Connecticut constitution.[29] The plaintiff argues that the department's *177 "substitution of its dominion over the [certificates] for [the] plaintiff's control over the property is a taking without compensation." We disagree.
Whether the department's decision amounted to an unconstitutional taking is a question of law over which our review is plenary. See, e.g., 184 Windsor Avenue, LLC v. State, 274 Conn. 302, 320 n. 20, 875 A.2d 498 (2005). Article first, § 11, of the Connecticut constitution provides that "[t]he property of no person shall be taken for public use, without just compensation therefor." An unconstitutional "taking occurs when there is a substantial interference with private property which destroys or nullifies its value or by which the owner's right to its use or enjoyment is in a substantial degree abridged or destroyed." (Internal quotation marks omitted.) Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992).
The trial court concluded in the present case that the transfer of the certificates to the utility did not constitute an unconstitutional taking of property from the plaintiff because the certificates were not the plaintiff's property. We have concluded that the trial court correctly determined that it was within the jurisdiction of the department to determine the ownership of the certificates and that the department reasonably concluded that the utility owned them. Accordingly, we agree with the trial court that the department's decision could not constitute an unconstitutional taking under the state constitution because no property owned by the plaintiff had been taken.
The judgment is affirmed.
In this opinion the other justices concurred.
NOTES
[*] The listing of justices reflects their seniority status as of the date of oral argument.
[1] The plaintiff was formerly known as Riley Energy Systems of Lisbon Corporation.
[2] The plaintiff appealed to the Appellate Court from the judgment of the trial court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
[3] General Statutes § 4-183 provides in relevant part: "(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the Superior Court as provided in this section. . . ."
[4] General Statutes § 16-35 provides in relevant part: "(a) Any person, including but not limited to a company, town, city, borough or corporation aggrieved by any order, authorization or decision of the Department of Public Utility Control, except an order, authorization or decision of the department approving the taking of land, in any matter to which such person was or ought to have been made a party or intervenor, may appeal therefrom in accordance with the provisions of section 4-183. . . ."
[5] Article first, § 11, of the Connecticut constitution provides: "The property of no person shall be taken for public use, without just compensation therefor."
[6] General Statutes § 16-2a (a) authorizes the office of consumer counsel "to appear in and participate in any regulatory or judicial proceedings, federal or state, in which such interests of Connecticut consumers may be involved, or in which matters affecting utility services rendered or to be rendered in this state may be involved. The Office of Consumer Counsel shall be a party to each contested case before the Department of Public Utility Control and shall participate in such proceedings to the extent it deems necessary. . . ."
We refer to the department, the utility and the defendant office of consumer counsel collectively as the defendants.
[7] The United Illuminating Company also intervened as a defendant in the proceedings before the department and was a defendant in the administrative appeal before the trial court. It is a party to this appeal but has not filed a brief.
[8] General Statutes § 16-243a provides in relevant part: "(a) As used in this section, `avoided costs' means the incremental costs to an electric public service company, municipal electric energy cooperative organized under chapter 101a or municipal electric utility organized under chapter 101, of electric energy or capacity or both which, but for the purchase from a private power producer, as defined in section 16-243b, such company, cooperative or utility would generate itself or purchase from another source. . . .
"(c) The Department of Public Utility Control, with respect to electric public service companies . . . shall establish rates and conditions of service for: (1) The purchase of electrical energy and capacity made available by a private power producer. . . . The rates for electricity purchased from a private power producer shall be based on the full avoided costs of the electric public service company. . . ."
[9] General Statutes § 22a-207 (9) defines "resources recovery facility" as "a facility utilizing processes to reclaim energy from municipal solid waste. . . ."
[10] General Statutes § 4-176 provides in relevant part: "(a) Any person may petition an agency, or an agency may on its own motion initiate a proceeding, for a declaratory ruling as to the validity of any regulation, or the applicability to specified circumstances of a provision of the general statutes, a regulation, or a final decision on a matter within the jurisdiction of the agency. . . ."
[11] General Statutes § 16-19e provides in relevant part: "(a) In the exercise of its powers under the provisions of this title, the Department of Public Utility Control shall examine and regulate the transfer of existing assets and franchises, the expansion of the plant and equipment of existing public service companies, the operations and internal workings of public service companies and the establishment of the level and structure of rates in accordance with the following principles: (1) That there is a clear public need for the service being proposed or provided; (2) that the public service company shall be fully competent to provide efficient and adequate service to the public in that such company is technically, financially and managerially expert and efficient; (3) that the department and all public service companies shall perform all of their respective public responsibilities with economy, efficiency and care for the public safety, and so as to promote economic development within the state with consideration for energy and water conservation, energy efficiency and the development and utilization of renewable sources of energy and for the prudent management of the natural environment; (4) that the level and structure of rates be sufficient, but no more than sufficient, to allow public service companies to cover their operating and capital costs, to attract needed capital and to maintain their financial integrity, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable which shall include, but not be limited to, reasonable costs of security of assets, facilities and equipment that are incurred solely for the purpose of responding to security needs associated with the terrorist attacks of September 11, 2001, and the continuing war on terrorism; (5) that the level and structure of rates charged customers shall reflect prudent and efficient management of the franchise operation; and (6) that the rates, charges, conditions of service and categories of service of the companies not discriminate against customers which utilize renewable energy sources or cogeneration technology to meet a portion of their energy requirements. . . ."
[12] Subsection (b) of paragraph twenty-three of the agreement pertained to disputes over engineering and technical issues relating to construction, operation and maintenance of the plaintiff's facility.
[13] "NEPOOL has been described as a regional power-pooling system with a membership of approximately sixty New England utilities which collectively contain roughly [98] percent of New England's generation capacity. . . . NEPOOL's objectives are to assure the reliability of the region's bulk power supply and to attain maximum practicable economy through, inter alia, joint planning, central dispatching . . . and coordinated construction, operation and maintenance of electric generation and transmission facilities owned or controlled by the [p]articipants. . . ." (Citation omitted; internal quotation marks omitted.) In re Appeal of Conservation Law Foundation of New England, Inc., 127 N.H. 606, 632, 507 A.2d 652 (1986).
[14] General Statutes § 16-245a (a) requires certain electric suppliers and electric distribution companies to demonstrate that a certain percentage of their energy is generated from "renewable energy sources. . . ." This provision originally was enacted in 1998. See Public Acts 1998, No. 98-28, § 25. Although § 16-245a has been amended since its enactment, those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.
In the present case, none of the parties claimed that the utility was subject to the requirements of § 16-245a, and nothing in the record supports such a conclusion. In the companion case of Minnesota Methane, LLC v. Dept. of Public Utility Control, 283 Conn. 700, 710 n. 12, 931 A.2d 177 (2007), however, which involves the same issues as this case and many of the same parties, the parties represented at oral argument to this court that the utility was subject to § 16-245a.
[15] General Statutes § 16-245a (b) provides that certain electric suppliers or electric distribution companies may satisfy the requirements of § 16-245a (a) "by purchasing certificates issued by [NEPOOL]. . . ." This provision originally was codified at § 16-245a (a)(2) and became effective on January 1, 2004. See Public Acts 2003, No. 03-135, § 7.
[16] The plaintiff, along with Minnesota Methane, LLC, also brought an action in the United States District Court for the District of Connecticut claiming, inter alia, that the ownership of the renewable energy certificates was controlled by the federal act, and that the department's decision conflicted with that act and violated the contracts and takings clauses of the federal constitution. See Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, No. 3:04CV1436, 2006 WL 1791688, *1, *8-*11, 2006 U.S. Dist. Lexis 45571, *2, *25-*31 (D. Conn. June 23, 2006). The District Court rejected these claims. See id., at *9-*11, 2006 U.S. Dist. Lexis 45571 at *28-*31. An appeal before the United States Court of Appeals for the Second Circuit is pending.
[17] General Statutes § 16-9 provides in relevant part that the "department may, at any time, for cause shown, upon hearing had after notice to all parties of interest, rescind, reverse or alter any decision, order or authorization by it made. . . ."
[18] See footnote 9 of this opinion for the text of General Statutes § 22a-207(9).
[19] The defendants cite Panda-Kathleen, L.P. v. Clark, 701 So. 2d 322 (Fla.1997), cert. denied sub nom. Panda-Kathleen, L.P. v. Florida Power Corp., 523 U.S. 1073, 118 S. Ct. 1514, 140 L. Ed. 2d 668 (1998), and In re Covanta Energy Group, 105 F.E.R.C. 61,004 (2003), rehearing denied sub nom. In re American Ref-Fuel Co., 107 F.E.R.C. 61,016 (2004), for the proposition that states have jurisdiction over disputes arising from agreements between utilities and small power production facilities that fall within the scope of the federal act, and that such disputes are not governed solely by federal law. These cases are not squarely on point because the plaintiff in the present case is not raising a federal preemption claim but is claiming that nothing in this state's laws confers jurisdiction on the department to determine the private intent of the parties under the 1991 agreement. Nevertheless, we agree with the defendants that these cases provide support for the proposition that, when a state has enacted statutes implementing the public policy underlying the federal act and a state agency is charged with administering those statutes and that policy, the agency has jurisdiction "to review [such agreements] to ensure that they are fair to the parties to the contract and that they further the energy policies of the [s]tate as defined by the [l]egislature." (Internal quotation marks omitted.) Panda-Kathleen, L.P. v. Clark, supra, at 326; see also In re Covanta Energy Group, supra, at 61,007 ("[w]hile a state may decide that a sale of power at wholesale automatically transfers ownership of the state-created [certificates], that requirement must find its authority in state law, not [the federal act]").
[20] See Indeck-Yerkes Energy Services, Inc. v. Public Service Commission, supra, 164 App. Div.2d at 622-23, 564 N.Y.S.2d 841 (regulatory considerations underlying utility commission's initial approval of contract between cogeneration facility and utility guide resolution of dispute arising from contract).
[21] The plaintiff also claims that the department lacked jurisdiction over this matter because it has not adopted regulations governing the ownership of renewable energy certificates. If the department lacked jurisdiction over the claim in the absence of such regulations, however, then the adoption of regulations could not change that fact. An agency cannot vest itself with subject matter jurisdiction. To the extent that the plaintiff claims that, even if the department had jurisdiction over the utility's 2004 petition, its decision constituted improper rulemaking; see, e.g., Persico v. Maher, 191 Conn. 384, 400-405, 465 A.2d 308 (1983); that claim was not raised in the trial court and, therefore, was not preserved for review. See, e.g., River Bend Associates, Inc. v. Conservation & Inland Wetlands Commission, 269 Conn. 57, 82, 848 A.2d 395 (2004).
[22] We note that the plaintiff devoted only approximately one-half of one page of its appellate brief to this issue and argued only that one of the arguments relied on by the department and the trial court in support of their conclusions that the utility was entitled to the certificates was not supported by substantial evidence. Ordinarily, this court will not address claims that have been inadequately briefed. See, e.g., State v. Clark, 255 Conn. 268, 281 n. 30, 764 A.2d 1251 (2001) ("[c]laims on appeal that are inadequately briefed are deemed abandoned" [internal quotation marks omitted]). We do so in the present case, however, because the defendants adequately briefed this issue and because the issue is a matter of some public importance.
[23] Utility regulatory agencies in Colorado, Maine, Minnesota, North Dakota, New Jersey, New Mexico, Nevada, Texas and Wisconsin have concluded that the purchasing utility owns the renewable energy certificates when the purchase contract predates the creation of the certificates and the statutory requirement that a certain percentage of the energy purchased by certain retail sellers of electricity be from renewable energy sources. See E. Holt, R. Wiser & M. Bolinger, supra, p. xiv. Regulatory agencies in Colorado, Nevada, Oregon, Rhode Island, Texas and Utah have concluded that the certificates associated with purchase contracts executed after the creation of the statutory scheme regulating them belong to the generator of the energy. See id.
[24] On the other hand, the following arguments in favor of awarding the certificates to the renewable energy sources have been made: (1) the fact that utilities are obligated to purchase energy from renewable energy facilities does not mean that purchase contracts necessarily convey the certificates to the utilities because being such a facility is merely a qualifying characteristic that makes the facility eligible for such contracts; (2) conveying the certificates to the utilities would result in a windfall to them; and (3) utilities and ratepayers benefit from the use of renewable energy even if the certificates are not conveyed to the utilities. E. Holt, R. Wiser & M. Bolinger, supra, pp. xi-xiii.
[25] We recognize that this conclusion arguably is inconsistent with the conclusion of the federal commission in In re Covanta Energy Group, supra, 105 F.E.R.C. at 61,007, that avoided costs were not intended to include the renewable attribute of the energy under federal law. We note, however, that the federal commission was split on that issue, that portion of the decision has been subject to some criticism; see E. Holt, R. Wiser & M. Bolinger, supra, at p. 51; the only state court to confront the issue before this court declined to follow the federal commission's decision; see In re Ownership of Renewable Energy Certificates, supra, 389 N.J.Super. at 490-91, 913 A.2d 825; and the federal commission's decision appears to be inconsistent with the United States Supreme Court's determination that the avoided cost scheme was intended to provide an incentive to develop renewable energy sources. American Paper Institute, Inc. v. American Electric Power Service Corp., supra, 461 U.S. at 406, 103 S. Ct. 1921.
[26] As we have indicated, in addition to bringing this state action, the plaintiff, along with Minnesota Methane, LLC, brought an action in the United States District Court for the District of Connecticut, challenging the department's decision on several grounds. See footnote 16 of this opinion. Addressing the plaintiff's claim under the contracts clause of the federal constitution, the District Court concluded that "[t]he [department] took into consideration the renewable attribute [of the electricity] when approving the [1991 agreement], including those terms that were favorable to the generators due to the renewable attribute of the energy they produced. The [department] later determined that the renewable attribute of the transferred energy, now monetized in the form of [the renewable energy certificates], must be transferred to [the utility]. That determination, an interpretation of the [1991 agreement], does not impair the original [agreement]." Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, No. 3:04CV1436, 2006 WL 1791688, *10, 2006 U.S. Dist. Lexis 455571, *30 (D. Conn. June 23, 2006).
[27] In the companion case of Minnesota Methane, LLC v. Dept. of Public Utility Control, 283 Conn. 700, 931 A.2d 177 (2007), the plaintiff, Minnesota Methane, LLC (Minnesota Methane), which is a "small renewable power project" as defined by General Statutes § 16-243b (a)(6), initially represented at oral argument to this court that the utility would be entitled to credit for the purchase of renewable energy under § 16-245a even if the utility did not receive the certificates associated with the energy. The department and the utility responded that that would result in double counting because both the utility and the entity to which Minnesota Methane sold the certificates would receive credit for the renewable energy, and that this was inconsistent with the underlying public policy of promoting the development of renewable energy sources. During rebuttal argument, Minnesota Methane appeared to withdraw its initial claim.
[28] In support of the 2004 petition, the utility submitted to the department certain educational materials concerning the certificate program. These materials explained that the "[c]oncept of [u]nbundling" was intended to "[separate] the environmental attributes of electric power from the energy commodity"; (emphasis added); resulting in two commodities: (1) energy; and (2) environmental attributes, represented by the tradable certificates.
[29] In the plaintiff's action in the United States District Court for the District of Connecticut; see footnotes 16 and 26 of this opinion; the plaintiff claimed, inter alia, that the department's decision violated the takings clause of the fifth amendment to the United States constitution. See Wheelabrator Lisbon, Inc. v. Dept. of Public Utility Control, No. 3:04CV1436, 2006 WL 1791688, *1, *10, 2006 U.S. Dist. Lexis 455571, *2, *30 (D. Conn. June 23, 2006). The District Court concluded that, because the department had concluded that the utility owns the certificates, the plaintiff was not deprived of any property interest. Id., at *10-*11, 2006 U.S. Dist. Lexis 455571, at *31. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903467/ | Order of fact-finding, Family Court, New York County (Rhoda J. Cohen, J.), entered on or about September 14, 2011, which determined, after a fact-finding hearing, that respondent-appellant had abused Ashanti C., a child for whom he was legally *520responsible, and derivatively neglected Sade B. and Sapphire B., his biological children, unanimously affirmed, without costs.
The findings that respondent abused Ashanti, which were the only findings challenged, were supported by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]; Matter of Tammie Z., 66 NY2d 1, 3 [1985]). The court properly found that Ashanti’s out-of-court statements were sufficiently corroborated by both her sister’s out-of-court statements to the caseworker and her mother’s testimony (see Family Ct Act § 1046 [a] [vi]; Matter of Nicole V, 71 NY2d 112, 119 [1987]). There is no reason to disturb the court’s evaluation of the evidence, including its credibility determinations, as the findings were clearly supported by the record (see Matter of llene M., 19 AD3d 106, 106 [1st Dept 2005]).
As the preponderance of the evidence supported the findings, the court’s improper admission of largely irrelevant evidence relating to respondent’s character, and improper denial of respondent’s motion to obtain Ashanti’s school records, constitutes harmless error. Concur—Tom, J.P., Andrias, Freedman, Roman and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903474/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Demakos, J.), rendered October 16, 1986, convicting him of reckless endangerment in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
Viewing the evidence adduced at the trial that the defendant possessed a loaded firearm not in his home or business in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to support his conviction of criminal possession of a weapon in the third degree (Penal Law § 265.02 [4]).
The trial court’s refusal to give the jury a missing witness charge with regard to two uncalled witnesses was not error in the absence of any indication that their testimony would have been material and noncumulative (cf., People v Gonzalez, 68 NY2d 424). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823554/ | Weavable glass fiber size and fibers treated with same. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903469/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Shea, J.), rendered April 29, 1986, convicting him of falsifying business records in the first degree and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The court charged the jury that character evidence, taken into consideration with all the other evidence adduced at trial, could be sufficient to raise a reasonable doubt as to the defendant’s guilt. This aspect of the charge contains no error prejudicial to the defendant (see, People v Miller, 35 NY2d 65; People v Aharonowicz, 133 AD2d 117, vacating 125 AD2d 682). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/480204/ | 806 F.2d 600
42 Fair Empl. Prac. Cas. (BNA) 1045,42 Empl. Prac. Dec. P 36,777, 6 Fed. R. Serv. 3d 921,36 Ed. Law Rep. 283, 22 Fed. R. Serv. 218
Dr. Janet I. MERRILL, Plaintiff-Appellant,v.SOUTHERN METHODIST UNIVERSITY, Defendant-Appellee.
No. 86-1161Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Dec. 24, 1986.
Frank P. Hernandez, Dallas, Tex., for plaintiff-appellant.
John H. McElhaney, Michael H. Collins, Dallas, Tex., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before CLARK, Chief Judge, GARWOOD and HILL, Circuit Judges.
GARWOOD, Circuit Judge:
1
On December 28, 1979, Southern Methodist University (SMU) notified Dr. Janet I. Merrill (Merrill) that it would not extend tenure to her. Consequently, she sued SMU, charging it with violating Title VII of the 1964 Civil Rights Act by discriminating against her on the basis of sex and religion. After a three-day bench trial, the district court held that many of the allegedly discriminatory acts were time-barred. As to the remaining claims, the court found that Merrill failed to establish intentional discrimination and held in SMU's favor. Merrill appeals. We affirm.
Facts and Proceedings Below
2
Appellant Merrill holds a master's degree from the University of Notre Dame and a doctorate in education from Columbia University. Her doctoral emphasis was in guidance, particularly in elementary education. In 1968, after receiving her degree from Columbia, she moved with her husband to Lenox, Massachusetts, where they both taught at Berkshire Christian College, which had an enrollment of about 150 students and offered no graduate work. Merrill also taught part-time at the College of Our Lady of the Elms, a nearby Catholic women's institution with an enrollment of about 600. Merrill was a tenured full professor at Berkshire Christian College and had the title of lecturer at Our Lady of the Elms.1
3
In 1975, Merrill's husband accepted an invitation to teach at the Dallas Theological Seminary. Merrill inquired about job openings at several colleges and universities in the Dallas area. Apparently, SMU was the only institution with an opening in her field. Merrill was one of 107 persons who applied for that position--Assistant Professor of Education--and though SMU ultimately hired a male, Dr. Ronald E. Pound, Merrill, along with two other women, was one of the six finalists. Merrill now asserts that SMU's 1975 selection of Pound over her was an act of intentional sex discrimination.
4
Some time later, a similar position became available at SMU. Dr. Pound perused the applications that had been received for the job he now held and chose Dr. Merrill to teach part-time during the spring of 1976. At the end of the semester, SMU offered Merrill a full-time, three-year contract, beginning August 30, 1976, as an untenured assistant professor in the Department of Education at the first-year salary of $13,250. Although she had been a tenured full professor at Berkshire Christian College, Merrill acceded to SMU's terms in writing. SMU gave Merrill three years' credit toward tenure eligibility and pledged to consider her for promotion no later than the last year of her contract. Merrill now contends that the terms of this contract--her rank, salary, and untenured status--were the result of intentional sex discrimination.
5
During the span of this contract, Merrill shared an office with another female teacher, and had difficulty procuring secretarial help to type her manuscripts. She alleged that this was the result of sex discrimination, because most male teachers had private offices and secretarial services. She allegedly carried heavier teaching loads and received lower pay raises than her male colleagues. The primary evidence supporting these two aspects of discriminatory treatment consisted of various charts and tables, which the district court admitted but did not greatly credit because the underlying data was largely hearsay and the faculty sample underlying the statistical comparisons was very small.
6
Until she was denied tenure, Merrill was satisfied with conditions at SMU. None of these circumstances seemed discriminatory to her and she apparently never vigorously protested any of them. In September 1978, the tenured faculty of the Department of Education, eight men and two women, reviewed Merrill's performance and voted to deny tenure to her. She then requested, and was given, the opportunity to make a personal appeal to the faculty. However, the faculty reaffirmed its previous unfavorable decision. Her colleagues evaluated Merrill in four areas: teaching ability, published research, service to SMU and her profession, and needs of the department. Only her teaching received a favorable vote.2 Not one of the ten tenured faculty members voted her publications sufficient to merit advancement. Her articles were unfocused, short, and not published in refereed journals. At trial, Merrill admitted that she had not published widely or impressively. She fared somewhat better in the area of service to SMU and her profession, though even here a heavy majority of the department faculty rated her deficient. Her most significant contribution was sponsoring a student group that assembled a project designed to teach the virtues of the free enterprise system to elementary and high school students. This project, entered in a national competition sponsored by General Motors, placed second. The final area of evaluation focused less on Merrill than it did on the needs of the Department of Education. Not one faculty member voted that a need existed for Merrill in the department. Indeed, enrollment was dwindling.3
7
After the faculty's second rejection, in November 1978, Merrill appealed to James Early, Dean of the College of Humanities and Science, of which the Department of Education was a part. Early convened the College Executive Committee. This committee included two women. The committee unanimously affirmed the Education Department faculty decision. Early informed Merrill of this result on December 13, 1978. Merrill next appealed to the SMU Provost, James Brooks, who assembled an ad hoc committee to review Merrill's case. She was permitted to nominate two persons, one of whom the provost appointed to a position on the three-person committee. Merrill's representative on this ad hoc committee, a woman, joined the other two members in voting against her. Brooks informed Merrill of this decision on December 28, 1979.
8
Dr. Merrill asserts that this tenure decision was the result of intentional sex discrimination. She asserts that she had written as prolifically as her male colleagues who had tenure. She contends that she was a victim of discrimination on the basis of religion because many of her articles were published in religious-type magazines or were based on religious assumptions, and that her colleagues must have therefore discredited the articles. She stresses that her service to SMU and her profession was exemplary, citing the General Motors project, workshops conducted for various groups, and professional meetings attended. Merrill argues that the faculty had no right to consider the department's needs when it voted against her because this was not a criterion she had been forewarned to address in her presentation. She alleged that it was applied for the first time in her case.
9
After denying her tenure, SMU gave to Merrill a "terminal" contract for 1979-80, at the end of which Merrill's employment at SMU ended. She subsequently secured a teaching position at Dallas Baptist University, where her starting salary was about $6,000 more per year than her final salary at SMU. Merrill testified that she would not return to SMU except as a tenured full professor.
10
The district court held that several of Merrill's claims were time-barred. She filed her first complaint with the EEOC on November 16, 1979, and followed this with a second complaint on May 23, 1980. The court barred recovery on any alleged discriminatory act occurring more than 180 days before November 19, 1979. This eliminated many of her claims, such as those based on the initial terms of employment. Thus the court was left to try only claims based on the denial of tenure and allegedly unequal pay. In findings of fact and conclusions of law recited from the bench, the court held that Merrill had failed to show that she was a victim of intentional discrimination.
11
On appeal, Merrill raises five issues: (1) the district court's holding that certain claims were barred by limitations, (2) and (3) the district court's decision that the tenure denial and pay differentials were not motivated by intentional discrimination, (4) the district court's refusal to certify a class of female SMU employees and its failure to hold an evidentiary hearing on certification, and (5) the district court's refusal to admit evidence of a settlement between SMU and the Department of Labor regarding alleged sex discrimination at SMU.
Discussion
I. Title VII Limitations Period
12
The district court held that any Title VII claim arising prior to May 20, 1979, i.e., more than 180 days prior to November 16, 1979, the date Merrill lodged her first charge of discrimination with the EEOC, was barred. We agree. This ruling excluded all claims except those based on wage discrimination and the tenure denial, including claims based on Merrill's original terms of employment, the lack of secretarial assistance, the lack of research leave, and the fact that Merrill shared an office with another professor.4
13
Section 706(e) of Title VII, 42 U.S.C. Sec. 2000e-5(e), requires a discrimination victim to file a complaint with the EEOC within 180 days of the act's occurrence. Any act occurring more than 180 days prior to filing "may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences." United Air Lines v. Evans, 431 U.S. 553, 97 S. Ct. 1885, 1889, 52 L. Ed. 2d 571 (1977).5 Merrill does not dispute this rule, nor has she ever sought redress for stale discrimination under the "continuing violations" theory that we analyzed in Berry v. Board of Supervisors, 715 F.2d 971 (5th Cir.1983), on appeal following remand, 783 F.2d 1270 (5th Cir.1986). Instead, she argues that in determining whether a particular claim is time-barred, a court should focus on the date the victim first perceives that a discriminatory motive caused the act, rather than the actual date of the act itself. Merrill says her claims are timely because she did not fully appreciate the discriminatory animus underlying SMU's treatment of her until June 15, 1979. Actually, however, the evidence shows that appellant became convinced that she had been a victim of sex discrimination at SMU during late September 1978, and made informal inquiries of the EEOC at that time. Further, appellant's theory is not supported in existing law.
14
The leading case on this subject is Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 2d 431 (1980). It emphasizes that the limitations period starts running on the date the discriminatory act occurs. 101 S. Ct. at 504. This Circuit has also consistently focused on the date that plaintiff knew of the discriminatory act. For example, in Cervantes v. Imco Halliburton Services, 724 F.2d 511 (5th Cir.1984), we said, "Under established federal law, the 180-day limitations period for Title VII claims ... begin[s] to accrue 'when the plaintiff knows or reasonably should know that the discriminatory act has occurred.' " Id. at 513 (quoting McWilliams v. Escambia County School Board, 658 F.2d 326, 330 (5th Cir.1981)). These holdings cannot be reconciled with Merrill's proposed rule. It might be years before a person apprehends that unpleasant events in the past were caused by illegal discrimination. In the meantime, under Merrill's theory, the employer would remain vulnerable to suits based on these old acts. Merrill's proposal is inconsistent with the Supreme Court's language in Ricks that the Title VII limitations period is partially designed to "protect employers from the burden of defending claims arising from employment decisions that are long past," 101 S. Ct. at 503, and its comment in Evans that employers are entitled to treat past acts as lawful when the employee does not file a charge of discrimination within the statutory time. 97 S. Ct. at 1889. The district court did not err in its application of the limitations period.
II. The Denial of Tenure
15
Merrill chose to frame her claim as a case of disparate treatment. The Pretrial Order makes this clear. In a disparate treatment case, as the district court understood, "the plaintiff bears the burden of proving intentional discrimination." Cunningham v. Housing Authority, 764 F.2d 1097, 1099 (5th Cir.), cert. denied, --- U.S. ----, 106 S. Ct. 530, 88 L. Ed. 2d 461 (1985). Judge Fish found that SMU had not intentionally discriminated against Merrill, and we review that finding under the clearly erroneous standard. Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 1789, 1791, 72 L. Ed. 2d 66 (1982); Cunningham, 764 F.2d at 1100. Unless we have a "definite and firm conviction" that a mistake has been committed, we will not reverse. United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 541, 92 L. Ed. 746 (1948). We have no such conviction in this case.6
16
The record discloses ample evidence that SMU had legitimate justifications for denying Merrill tenure. Merrill's publications were sufficiently weak to prevent us from saying that the district court clearly erred in finding that SMU's reliance on this justification was not a pretext for intentional discrimination. Merrill asserted that she published as frequently as her male colleagues. However, academic scholarship is not measured by volume alone, but by the comprehensiveness and direction of the research. Moreover, much of Merrill's work was printed in journals with little or no recognition in the academic community. Merrill's colleagues, including females, overwhelmingly rated her deficient in this area.
17
Merrill's complaints that SMU should not have weighed its needs in deciding whether to grant her tenure are also not well-founded. There was testimony at trial that enrollment in the education graduate programs was "dangerously shrinking" at the time Merrill was denied tenure, and the subsequent dissolution of the Education Department lends credence to SMU's position that it did not need Merrill as a tenured faculty member. Title VII does not require employers to ignore harsh economic realities; the district court did not clearly err in rejecting Merrill's arguments based on this factor.
18
Merrill presented a number of charts and tables comparing her teaching load, salary, and other characteristics with those of her male colleagues. This evidence tended to show unequal treatment of Merrill, but the district court gave these charts and tables little weight because many of them were based on hearsay evidence and they all drew from a very small sample. We have cautioned against over-reliance on raw numbers in Title VII litigation because numbers can be misleading if not properly compiled. See, e.g., Hill v. K-Mart Corp., 699 F.2d 776, 780-81 (5th Cir.1983). In at least two instances, flaws in Merrill's homemade comparisons were revealed at trial. She admitted that one statistic, "student clock hours," which suggested her load was disproportionately heavy, failed to reflect time consumed by the administrative responsibilities of some of her male colleagues. Another chart compared the total percentage increase of her salary with the increase in male salaries. The chart suggested that the men had received a higher increase than she, yet Merrill admitted that the percentage increase of at least one man who had started several years before she had was calculated from the year he was hired, rather than from the year she began. The district court did not abuse its fact-finding powers in determining not to attach controlling significance to Merrill's statistical evidence.
19
After carefully examining the entire record in this case, we hold that the district court's finding that SMU did not intentionally discriminate in its tenure decision is not clearly erroneous.7
III. Discrimination in Pay
20
A plaintiff who alleges pay discrimination under Title VII is entitled to recover back pay "for a period beginning not more than two years before the filing of the EEOC claim." Sellers v. Delgado College, 781 F.2d 503, 505 (5th Cir.1986). The Title VII plaintiff need not necessarily prove that she performed work equal to that of her better paid male colleague. County of Washington v. Gunther, 452 U.S. 161, 101 S. Ct. 2242, 2248-49, 68 L. Ed. 2d 751 (1981); Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1132 (5th Cir.1983). Of course, such a disparity, if inadequately explained by the defendant, would usually be weighty evidence of discrimination forbidden by Title VII, 42 U.S.C. Sec. 2000e-2(a)(1). If plaintiff does not establish that she performed comparable work, we hesitate to mandate a finding of intentional discrimination on the basis of the pay differential alone in the absence of evidence of the type adduced in Gunther and Wilkins v. University of Houston, 654 F.2d 388 (5th Cir.1981), cert. denied, 459 U.S. 822, 103 S. Ct. 51, 74 L. Ed. 2d 57 (1982), where it was shown that the employers unexplainedly departed from objective pay criteria they had adopted. Plemer, 713 F.2d at 1133-34. In this case, Judge Fish found that Merrill had not "shown that the duties that she was performing were comparable to those of the male members of the faculty against whom she is comparing herself." Merrill also did not suggest that SMU failed to abide by preannounced (or otherwise adopted) objective pay criteria. Instead, she relied on the charts and tables discussed earlier. Those materials did indicate that SMU paid Merrill less than her male colleagues, but in most instances her statistics did not account for the many neutral factors that "operate simultaneously to influence the amount of salary a faculty member receives." Wilkins, 654 F.2d at 402; see Plemer, 713 F.2d at 1137-38. These factors include quality of prior experience, education, length of service, and professional achievements. See Wilkins, 654 F.2d at 402; Plemer, 713 F.2d at 1138. A few of Merrill's charts included information on some of these factors--such as education and years of experience--but even here, the statistical picture was incomplete. For example, one chart showed Merrill with many more years experience teaching in higher education than some of her male colleagues who were paid more. But the chart did not disclose where the prior teaching occurred. It might be reasonable for a university to consider five years of teaching at a prominent university with a graduate program, surrounded by challenging and accomplished faculty colleagues, more valuable than twice as much experience at a vastly smaller, obscure institution without such a program. Taken as a whole, Merrill's statistical proof failed fully to account for these factors, and so, on this record, did not require the district court to find in her favor on her wage discrimination claim.
21
We recognize that these evidentiary standards may mark a challenging course for a claimant like Merrill. But if we do not adhere to them, we will risk substituting our uninformed judgment for the employer's "essentially subjective assessment of the value of the differing duties and responsibilities" of various academic positions. See Plemer, 713 F.2d at 1134. In this case, the district court found Merrill's statistical compilations unreliable and found also that she failed to show she was performing comparable work. We cannot say these findings were clearly erroneous. There was no other evidence from which to infer that Merrill's low salary was caused by intentional sex discrimination.
IV. Class Action
22
In her "Class Action Complaint," filed December 30, 1983, Merrill sought to represent a class "composed of females, who are employed or who might be employed" by SMU and "who have been and who continue to be or who might be adversely affected by the practices complained of." Merrill's Motion for Certification, filed October 19, 1984, appears to narrow the proposed class to "professional" women. Despite the fact that Merrill was employed from 1976-77 to 1979-80, she sought to represent women employed from 1975 to 1985. Without holding an evidentiary hearing, the court refused to certify this class. Judge Fish relied solely on the parties' briefs, SMU's affidavits, and Merrill's deposition.
A. Certification
23
We review the district court's refusal to certify the class on an abuse of discretion standard. Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 472 (5th Cir.1986). On appeal, however, we examine not only the evidence available to the district court, but also "the facts developed at the trial of the plaintiffs' individual claims." East Texas Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395 n. 12, 97 S. Ct. 1891, 1898 n. 12, 52 L. Ed. 2d 453 (1977). As in all class actions, a Title VII class cannot be certified unless it meets the requisites of Fed.R.Civ.P. 23(a), General Telephone Co. v. Falcon, 457 U.S. 147, 102 S. Ct. 2364, 2372, 72 L. Ed. 2d 740 (1982). Merrill's certification attempt founders on Rule 23(a).
24
The evidence in this case suggests that many women were paid more than Merrill and that there were a number of tenured women faculty members. This does not necessarily mean that better situated women were not victims of discrimination, but it demonstrates the difficulty in the university academic setting of defining a class to meet the commonality and typicality requirements of Rule 23. Sex discrimination may take such a wide variety of guises in this setting that the facts of one woman's claim may be markedly different from another's. Moreover, SMU would have individually tailored justifications for the alleged discrimination in each case. Here, the evidence adduced to prove and rebut institutional discrimination would not have overlapped to an extent consistent with the goal of efficiency that underlies Rule 23(a). See Falcon, 102 S. Ct. at 2370 n. 13. For example, after application of the relevant limitations period, Merrill's chief claim was denial of tenure. Each tenure denial turns on unique facts: the quality of this professor's teaching, the substance of her publications, the range of her service. No particular "disparate impact" rules or policies of SMU were alleged or shown. The class action that Merrill proposed would have quickly disintegrated into a plethora of individual claims. Rather than address this obvious danger, Merrill relied on vague allegations of commonality that the district court found insufficient to justify certification. This was a sound exercise of its discretion.
25
The corollary to our affirmance of the district court's finding on the merits is that Merrill was never a member of the class she seeks to represent. East Texas, 97 S. Ct. at 1896-97 (stating that plaintiffs were not class members because they had not been injured by the alleged discrimination); Everitt v. City of Marshall, 703 F.2d 207, 211 (5th Cir.), cert. denied, 464 U.S. 894, 104 S. Ct. 241, 78 L. Ed. 2d 231 (1982) (holding that plaintiff who lost her individual claim of discrimination could not be a class representative even if she may have appeared adequate prior to trial). Because she is not a class member, her claims cannot be typical of other class claims, nor can she be an adequate class representative. In the absence of these elements, a class cannot be certified.8
B. Evidentiary Hearing
26
Rule 23 does not itself require an evidentiary hearing on the question of class certification. Franks v. Kroger Co., 649 F.2d 1216, 1223 (6th Cir.1981); Marcera v. Chinlund, 565 F.2d 253, 255 (2d Cir.1977). However, we have stated on numerous occasions that the district court should ordinarily conduct an evidentiary hearing on this question. E.g., King v. Gulf Oil Co., 581 F.2d 1184, 1186 (5th Cir.1981); Shepard v. Beaird-Poulan, Inc., 617 F.2d 87, 89 (5th Cir.1980). Only in cases free from doubt, where "clear grounds exist[ ] for denial of class certification" may a district court escape this obligation. E.g., Morrison v. Booth, 730 F.2d 642, 644 (11th Cir.1984) (interpreting Fifth Circuit precedent); see also Marcera, 565 F.2d at 255 (reversing district court's certification denial--based on "pleadings, memoranda of law and affidavits of the parties"--reached without an evidentiary hearing, because genuine fact questions remained as to whether the Rule 23(a) requirements were met).
27
Nonetheless, there are three reasons we will not remand for an evidentiary hearing. First, Merrill apparently never moved for a certification hearing, or at any time prior to this appeal objected to the lack of a hearing. We take a very dim view of parties who silently permit the trial court to slip into claimed error only to complain for the first time on appeal. Second, more than five months after any motion for class certification was last due to be filed under the local rules, Merrill, who had not filed such a motion, for the first time requested an extension of the time for filing. Although the district court granted the request, allowing another month for filing and fixing a time for response, the order granting this relief provided that the motion would be "deemed ripe for judicial resolution as of the filing date of defendant's response," thus specifying that the motion would be resolved on the matters submitted in support of and in opposition to it at that time. No objection to this portion of the order, nor any request for exception to it, or to consider other matters, or for an evidentiary hearing, was ever made. When appellant's class certification motion was ultimately filed, the mutually agreed discovery deadline on class certification issues had long passed. SMU's response to the motion was supported by Merrill's deposition, including numerous exhibits thereto, and three affidavits. Merrill, though she had ample time to do so, never sought to rebut the showing thus made by SMU. Finally, Merrill was in no way prejudiced by the absence of a hearing. In light of the district court's order that the certification motion would be "ripe for judicial resolution" as soon as defendant responded, Merrill had every incentive to file with her certification motion, or at least describe beyond the vague generalizations she chose, any evidence that might create the factual uncertainty necessary to trigger an evidentiary hearing. Even on appeal, Merrill does not seriously assert that Judge Fish deprived her of the opportunity to present important evidence--her chief objections are directed at his refusal to certify, which we have affirmed. Any error in not conducting a hearing was harmless. See Saxon v. Fielding, 614 F.2d 78, 80 (5th Cir.1980) (plaintiffs never requested an evidentiary hearing and lost on the merits); Camper v. Calumet Petrochemicals, Inc., 584 F.2d 70, 71 (5th Cir.1978) (refusing to remand for an evidentiary hearing because plaintiff lost his claim and was thus not a class member).9
V. Exclusion of Evidence
28
Merrill complains that she was prevented from cross-examining an SMU official about an alleged settlement agreement reached between SMU and the Department of Labor concerning claimed sex discrimination, resulting from a complaint by an SMU law school professor. When Merrill's counsel asked the witness whether he knew of such an agreement, SMU's counsel objected, the court inquired of Merrill's counsel as to the relevance of the question, and counsel responded that it would show motive or intent. After several brief interchanges between Merrill's counsel and the district court as to the relevance of the inquiry, with the former finally saying the question pertained to liability, the district court said, "Despite [Federal Rules of Evidence] Rule 408? That rule says," proceeding to paraphrase it. Merrill's counsel then said, "Okay. I'll move on to something else." The matter of the settlement agreement was not broached again. We find no reversible error. While it is doubtful that the district court ever actually ruled on SMU's objection, it is in any event clear that Merrill's counsel never made or attempted to make any offer of proof as required by Fed.R.Evid. 103(a)(2). There is nothing in the record to suggest that the witness was aware of any such agreement as inquired about, and no proffer of evidence was made as to the agreement itself. This claim of error is without merit.10
Conclusion
29
Having rejected each of Merrill's claims of reversible error, we affirm the judgment below.
30
AFFIRMED.
1
The customary academic ranks are instructor, assistant professor, associate professor, and full professor. Instructor and assistant professor are generally not tenured positions; associate professor and full professor generally are tenured
2
The tenured faculty voted as follows:
Yes No Abstain
----------------
Teaching 7 2 1
Research 0 9 1
Service 3 6 1
Needs 0 9 1
3
Some time after Merrill was denied tenure, but before trial, SMU disbanded the Department of Education and replaced it with the Teacher Preparation Program. This was apparently necessitated by falling enrollment in the education program
4
During her last year, one of Merrill's classes was given to Dr. Pound to teach and Merrill objected. This act was within the limitations period. However, there was no evidence that the decision resulted from intentional sex discrimination. Pound was qualified to teach the course, and had asked to teach it. Merrill's final year at SMU was apparently a transition period
5
The Supreme Court has held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct. 1127, 1132, 71 L. Ed. 2d 234 (1982). In this case, however, there are no such justifications for tolling the limitations period
6
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981), prescribe an orderly pattern for the litigation of Title VII claims. Under these cases, a Title VII plaintiff must present a prima facie case of discrimination. This places on the employer the burden of producing a legitimate nondiscriminatory justification for his action. If the employer meets this burden of production, plaintiff can resurrect his prima facie case, and proceed to victory, by showing that the employer's justifications were pretextual. See generally Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 640 (5th Cir.1985) (discussing the shifting burdens in Title VII litigation). However, "by the time a full-tried case reaches us on appeal, the parties' showing at the preliminary levels of the framework is largely irrelevant.... We need address only the propriety of the ultimate finding of discrimination vel non." EEOC v. Exxon Shipping Co., 745 F.2d 967, 972 (5th Cir.1984) (citing United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S. Ct. 1478, 1481, 75 L. Ed. 2d 403 (1983); see also Cunningham, 764 F.2d at 1100 (same)
7
During closing argument below, Merrill's counsel acknowledged that "the religious discrimination here doesn't appear to be very strong...." We believe this understates the matter and hold that the district court did not clearly err in finding that no intentional religious discrimination existed. There was ample testimony regarding the perceived deficiency of Merrill's publications, but none of it suggested that their religious tenor motivated this evaluation
8
Moreover, Merrill's financial resources were limited. Financing a class action can be costly, and Merrill appeared unable or unwilling to commit the resources necessary to properly litigate the class action she sought. Her attorney apparently advised he would try to raise the necessary funds from various civil rights groups, but this was speculative and the district court, who was rightfully concerned about Merrill's financial ability to properly represent all class members, was not required to certify the class on those assurances. See McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 558-59 (5th Cir.1981) (stating that financial ability of class representative is not necessarily determinative, but is important)
9
Although our affirmance demonstrates that Merrill could never represent the class she sought to have certified, we have not viewed her lack of class membership as a bar to her appeal of the district court's denial of certification. The Supreme Court has held that "representative" plaintiffs may appeal the denial of certification even if their individual claims become moot, United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S. Ct. 1166, 63 L. Ed. 2d 427 (1980). We have fully considered Merrill's arguments on this issue. Moreover, our refusal to remand for an evidentiary hearing is not based on Merrill's nonmembership in the class, but rather on the factors discussed in the text
10
Merrill's brief in this Court has attached to it copies of two newspaper articles, labeled respectively plaintiff's exhibits 150 and 151, which recite that SMU entered into such a settlement in 1986 without admitting wrongdoing, the settlement resulting from a 1984 sex discrimination complaint by an SMU law school professor; some mention is also made of conditions at SMU in 1982 and 1983, but not before. These exhibits were never offered into evidence or made part of any offer of proof below, and hence there is obviously no basis for complaint as to them. Fed.R.Evid. 103(a)(2). Further, they are obviously inadmissible hearsay. They should not have been attached to counsel's brief
We further observe that the record does not demonstrate that Merrill was prejudiced in respect to the settlement issue, even assuming it would have been admissible under Fed.R.Evid. 408 and a proper proffer had been made. Merrill left SMU in May 1980, and there is no suggestion that the settlement had anything to do with her situation or period of employment, or that it related to the Department of Education. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/555769/ | 925 F.2d 535
UNITED STATES, Appellee,v.Noel MORALES-DIAZ, Defendant, Appellant.
No. 90-1306.
United States Court of Appeals,First Circuit.
Submitted Nov. 21, 1990.Decided Feb. 15, 1991.
Martha R. Reeves, for appellant.
F. Mark Terison, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., was on brief, for appellee.*
Before CAMPBELL, Circuit Judge, BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
BOWNES, Senior Circuit Judge.
1
This is an appeal from defendant-appellant Noel Morales-Diaz's convictions, after a jury trial, for possession of more than 500 grams of cocaine with intent to distribute and for conspiracy to do the same. Appellant raises several issues relative to his trial and sentence. Finding no error, we affirm.
I. THE FACTS
2
On July 23, 1989, Agent Gerard Brady of the Maine Bureau of Intergovernmental Drug Enforcement (BIDE) was working undercover in Saco, Maine. Pursuant to a deal previously arranged by other agents, Brady and an informant drove to a commuter parking lot in Saco to wait for two Hispanic men who were to sell them 18 ounces of cocaine for $19,500. Other undercover agents were on the scene setting up surveillance, including BIDE agent Guy Godbout, who operated a video camera. Brady, who parked his own car about thirty feet away, sat in the passenger seat of the informant's car while they waited.
3
The meeting had been set for 1 p.m. and at 2:15 the defendant and Pedro Alvarez-Alvarez arrived, with defendant driving the car. Defendant, appearing to recognize the informant, approached and greeted him in English. He then introduced himself to Brady as Tony. While Alvarez remained in the car, defendant asked Brady if he had the money. Brady replied that he did, that it was in the trunk, and asked defendant if he had the cocaine. Defendant said yes and motioned to Alvarez, who got out of the car, walked around to the front, knelt down, and appeared to reach underneath the frame. Alvarez then went to the driver's side of the informant's car and threw a dark plastic bag towards Brady. Defendant and Alvarez gestured that that was the cocaine. Saying he wanted to make sure, Brady cut open the bag. He then said it looked good and that he would get the money from his trunk. Defendant accompanied Brady to the rear of Brady's car. When the trunk was opened, pursuant to prearrangement with the other agents, defendant and Alvarez were arrested.
4
At defendant's trial, Agent Brady testified to the account above. Agent Godbout took the stand and his videotape of the drug transaction was played for the jury. Wayne Buck, a forensic chemist, testified that the total weight of the cocaine was 538.7 grams.
5
Defendant himself was the only witness for the defense. He testified that he did not knowingly participate in any sale of drugs. According to him, he drove Alvarez to Maine that day from their home in Lawrence, Massachusetts, at the latter's request. He did not know why Alvarez wanted to go to Maine. When he drove into the parking lot in Saco, he told Brady he was lost and asked him for a map, speaking only Spanish to Brady. He testified that the word "coke" was never used, that he did not know there was cocaine in the car, and that he did not see Alvarez put anything in the informant's car. Brady's testimony was a lie, according to defendant. On rebuttal, Agent Brady contradicted defendant. He testified that there was no conversation with defendant about directions, that only English was spoken, and that defendant was looking inside the informant's car when Alvarez threw the cocaine into it.
6
Upon conviction, defendant was sentenced to 327 months imprisonment. The district court adopted the calculations set forth in the presentence investigation (PSI) report. The PSI report grouped the substantive and conspiracy counts together pursuant to U.S.S.G. Sec. 3D1.2(b)(1) and calculated a base offense level of 26 by reference to U.S.S.G. Sec. 2D1.1(a)(3) and the amount of cocaine involved. No adjustments were made to the base offense level.
7
The PSI report concluded that, because of two prior felony convictions, defendant was a career offender pursuant to U.S.S.G. Sec. 4B1.1. One conviction was under the laws of Puerto Rico for sale of marijuana; the other was for armed robbery in Lawrence, Massachusetts. Because the statutory maximum for the instant offense is forty years, defendant's offense level as a career offender was determined to be 34, see id., and his criminal history category VI. The applicable guideline range was determined to be 262 to 327 months pursuant to the Sentencing Table in U.S.S.G. Ch. 5, Part A.
8
At the sentencing hearing, defendant's only objection to the PSI report was to the conclusion that he was not entitled to a downward departure, arguing that his family circumstances and the fact that he was a courier in the transaction warranted departure. (His other, previous objection to the accuracy of certain prior Massachusetts district court convictions, had been cured and withdrawn.) The government recommended a sentence at the upper end of the guideline range, noting that defendant had been in prison or charged with crimes during eight of the last ten years and was on parole at the time of the instant offense.
9
Adopting the undisputed facts and calculations in the PSI report, the district court found that defendant was a career offender with a sentencing range of 262 to 327 months. The court imposed the maximum term, stating that its "principal objective" was to "insulate the public ... for the maximum period possible" from one with appellant's demonstrated propensity for long-term drug trafficking.
II. TRIAL ISSUES
10
Defendant has raised a host of issues on appeal. We discuss only those having some substance.
11
A. Defendant claims that his sixth amendment right to an impartial jury was violated. Several jurors were selected who had previously served on an unrelated drug case, involving a different Hispanic defendant, at which the same government witnesses had testified and which had resulted in a conviction. According to defendant, these jurors were more likely to convict him because their prior guilty verdict indicated that they had already determined favorably the credibility of the government's witnesses. This issue was not raised below; we therefore review it only for plain error. United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987).
12
During the jury voir dire, it was revealed that thirteen members of the panel were familiar with BIDE agents Brady and Godbout through previous jury service. The district court then asked if any of these jurors would have difficulty being fair and impartial in this case, if they would have any tendency to credit the testimony of the witnesses they had previously heard over other witnesses, and, specifically, if any of them thought he would be more likely to believe a witness he had already heard testify than someone he had not. There was no affirmative response to these questions.
13
At a sidebar conference defense counsel asked which witnesses the jurors had previously heard and what had been the outcome of the case. The prosecutor stated that Agents Brady and Godbout had testified during the Ramirez trial, a case involving similar charges that had resulted in guilty verdicts. The judge then asked defense counsel if he wanted any further inquiry made of the jury and he replied that he did not. Finally, the court inquired of the jurors if any of them knew of any reason to be concerned about his ability to serve fairly and impartially in the case. No one replied affirmatively. None of the thirteen jurors was challenged for cause by the defense. Of the twenty-eight names drawn, four of the jurors who had served on the Ramirez trial were ultimately selected for appellant's jury.
14
Although we have not previously faced the precise issue presented here, in United States v. Carranza, 583 F.2d 25 (1st Cir.1978), we held that the defendant was not deprived of an impartial jury where members of the jury panel who had served on a previous case involving the same government witnesses and some of the same evidence were eliminated by peremptory challenges. There had been no showing that the previous case involved the same transaction giving rise to the defendant's alleged offense. No jurors from the prior case actually sat on Carranza's jury. Canvassing the law in this area, we observed, where former jurors were actually chosen to serve at defendant's trial:
15
[T]he circuit courts, while expressing disapproval of the practices of using jurors who had served in prior similar cases involving the same government witnesses, have been loathe to upset convictions where such use of jurors has occurred. The rule generally followed is that, unless a specific showing of bias or prejudice is made, the fact that a juror sat in a prior case involving the same government witnesses and the same type of crime will not be grounds for disqualification per se unless the defendant is charged with an offense arising from the same transaction.
16
Id. at 28 (citations omitted) (emphasis original).
17
Defendant does not claim that his case involved the same transaction as the Ramirez case. Neither does he point to any specific prejudice. The most he appears to suggest is that the fact that both he and Ramirez are Hispanic is sufficient to take this case outside the operation of the general rule and to create implied bias. We are not persuaded to depart from the rule announced in Carranza on that basis. The trial court's searching voir dire of the members of the panel who had heard the government's witnesses in a previous case was keyed to exposing any possible bias in the government's favor. None was revealed. "Although we do not blindly accept [jurors'] avowals of impartiality, to justify disregarding them there must be solid evidence of distinct bias." United States v. Angiulo, 897 F.2d 1169, 1183 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 130, 112 L.Ed.2d 98 (1990).
18
Having failed to object below, defendant's burden under the plain-error standard is to show that the presence of these jurors undermined the fairness of his trial and contributed to a miscarriage of justice. United States v. de Leon Davis, 914 F.2d 340, 344 (1st Cir.1990). On the entire record, we are satisfied that using these jurors was not plain error.
19
B. Defendant claims his request for an entrapment instruction was improperly denied. His argument is that the government initiated the drug deal and that the amount of money offered by the agents for the purchase of the cocaine--$19,500--was so great as to constitute an improper inducement to commit the offense.
20
The settled law is that an entrapment defense and the corresponding right to a jury instruction thereon requires proof of government inducement to commit the crime and a defendant's lack of a predisposition to commit it. Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886-87, 99 L.Ed.2d 54 (1988). The question is, did the government "corrupt[ ] an otherwise unwilling participant"? United States v. Murphy, 852 F.2d 1, 5 (1st Cir.1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1145, 103 L.Ed.2d 205 (1989). The defendant has the initial burden of producing an affirmative answer to this question. Id. That burden was not only not met in this case, it was not even approached.
21
The heart of defendant's defense was that he did not know that a cocaine deal was occurring. According to his testimony, he thought he was asking Agent Brady for directions. The closest he came to hinting at an entrapment defense was his answer on cross-examination that he thought he had been set up. Even if this met the legal definition for entrapment, which it does not, "[c]onclusory and self-serving statements do not satisfy the defendant's burden of production." United States v. Kakley, 741 F.2d 1, 4 (1st Cir.), cert. denied, 469 U.S. 887, 105 S.Ct. 261, 83 L.Ed.2d 197 (1984).
22
From defendant's testimony and his attorney's closing argument, his defense was that he was an unwitting participant in a drug deal, not an unwilling one. Moreover, nothing in the government's case supported an issue of entrapment. Where the evidence is insufficient to justify an entrapment instruction, the trial court does not err in refusing to give it. See United States v. Rodriguez, 858 F.2d 809, 814 (1st Cir.1988).
23
C. Defendant's other trial issues deserve but short shrift. He claims that he was denied the effective assistance of counsel by his trial lawyer's failure to seek suppression of the videotape of the offense. Absent special circumstances, not present here, we do not consider ineffective assistance claims in the first instance on appeal. United States v. Latorre, 922 F.2d 1, 9 (1st Cir.1990); United States v. Paz Uribe, 891 F.2d 396, 398 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 2216, 109 L.Ed.2d 542 (1990).
24
The two remaining claims of legal error at trial were not raised below by defendant and are therefore subject to the plain error standard of review. Defendant complains that he was deprived of adequate counsel by the court's failure to provide him with an attorney fluent in Spanish. Not having sought bilingual counsel at his trial, defendant, to prevail, must show that a miscarriage of justice occurred. United States v. de Leon Davis, 914 F.2d at 344. He cannot. At the outset of the trial, the district court provided defendant a sworn interpreter and headphones for simultaneous translation from English to Spanish. Defendant's testimony was given in Spanish and translated into English. There is nothing in the record of the proceedings to indicate that this method of communication hampered the defense or in any way prejudiced defendant, and defendant has not directed us to any evidence of prejudice. We find no error.
25
Finally, defendant claims that the district court unfairly commented on his credibility by reminding him in front of the jury that he was still under oath when he resumed the witness stand following an overnight recess. Again, no objection was made to this comment at the time of trial, and we are hard-pressed to find error of any kind, plain or otherwise.
26
When defendant resumed the stand for cross-examination, the district court stated: "Mr. Diaz, I will advise you that you remain under the oath that you took, at the commencement of your testimony yesterday, to tell the truth; you understand?" Although defendant acknowledges the propriety of reminding a witness retaking the stand of his oath, this admonition, he claims, went too far by adding the words, "to tell the truth." We think the content of the admonition was innocuous and comes "within the scope of [the district court's] discretionary trial-management authority." United States v. Moore, 923 F.2d 910, 913 (1st Cir.1991) (finding no error in trial court's decision to allow jury lunch break after government's closing argument).
III. SENTENCING ISSUES
27
Defendant challenges his sentence in two respects. First, he contends that the district court erred in counting his Puerto Rico conviction towards career offender status pursuant to U.S.S.G. Sec. 4B1.1. His argument is that, because Puerto Rico is not a state, the conviction is not of an "offense under a federal or state law" as required under Sec. 4B1.2, the definitional section applying to Sec. 4B1.1.
28
This argument was not made in the district court. Although there are "exceptional case[s]" in which we may decide purely legal issues in the first instance, United States v. Krynicki, 689 F.2d 289, 291 (1st Cir.1982), this is not such a case. Not only did defendant fail to raise this claim below, he presents no developed argumentation of it to this court. He simply asserts the syllogism that (1) to qualify under the career offender guideline, the prior felony offenses must be state or federal offenses; (2) Puerto Rico is not a state; and (3) therefore his Puerto Rico conviction is not a prior felony offense under the career offender guideline. Defendant completely ignores the body of case law recognizing that Congress has accorded the Commonwealth of Puerto Rico "the degree of autonomy and independence normally associated with States of the Union...." Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 594, 96 S.Ct. 2264, 2277, 49 L.Ed.2d 65 (1976). Puerto Rico has been treated as a state in a variety of contexts. See, e.g., Fred v. Roque, 916 F.2d 37, 38 (1st Cir.1990) ("state" for purposes of sovereign immunity); United States v. Lopez Andino, 831 F.2d 1164, 1168 (1st Cir.1987) ("state" for purposes of double jeopardy), cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100 L.Ed.2d 605 (1988); Cordova & Simonpietri Ins. v. Chase Manhattan Bank, 649 F.2d 36, 38 (1st Cir.1981) ("state" for purposes of Sherman Act). In the absence of any reasoned attempt by defendant to persuade us that the Sentencing Commission meant to exclude felony convictions in Puerto Rico Commonwealth Courts for enhancement purposes, we cannot say that this issue is " 'so compelling as virtually to insure appellant's success.' " Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979) (citation omitted). We thus decline to address it.
29
Finally, defendant claims that a factual error in the PSI report prevented him from receiving an offense level reduction as a minor or minimal participant in the offense. The report recites that defendant, rather than Alvarez, handed the cocaine to Agent Brady. Again, this complaint was not made to the district court and is subject to plain-error review.
30
Despite the asserted factual mistake, the record does not support a finding that defendant had a minor or minimal role in the offense. He drove the car containing the cocaine, initiated the contact with the buyers in the parking lot, gave the signal to Alvarez to produce the drug, and accompanied Agent Brady to the latter's car for what he expected would be payment. The district court's ruling that the base offense level was not subject to adjustment was not clearly erroneous. See United States v. Wright, 873 F.2d 437, 444 (1st Cir.1989).
31
Moreover, a reduction for his role in the offense would not have helped defendant. As a career offender, his offense level of 34, derived from the table in Sec. 4B1.1, is greater than the level that would result if he had received the greatest mitigating role-in-the-offense adjustment, reducing the offense level from 26 to 22. See U.S.S.G. Sec. 3B1.2(a) (providing 4-level decrease for minimal participant). "If the offense level for a career criminal from the table ... is greater than the offense level otherwise applicable, the offense level from the table ... shall apply." U.S.S.G. Sec. 4B1.1. There was no prejudice and, a fortiori, no plain error.
32
Affirmed.
*
This case was submitted on the briefs. Oral argument was waived | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/5903472/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosato, J.), rendered May 21, 1986, convicting him of insurance fraud in the first degree and grand larceny in the second degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
The evidence adduced against the defendant came primarily from the testimony of John Kruger, Edward Kardian and Lisa Vairo, who was the defendant’s secretary receptionist. The trial court ruled that Kruger and Kardian were accomplices as a matter of law. It refused, however, to issue the same ruling with respect to Ms. Vairo. In fact at the end of the entire case the court found that Ms. Vairo was not an accomplice as a matter of fact and relied upon her testimony as well as other evidence-in-chief to corroborate the testimony of Kruger and Kardian. The defendant claims that this ruling was error.
An accomplice is defined in CPL 60.22 as a witness who may reasonably be considered to have participated, in (1) the offense charged, or (2) an offense based upon the same or some of the same facts or conduct which constitute the offense charged. An analysis of Ms. Vairo’s testimony reveals that she was not an accomplice as a matter of law. The message which she delivered on one occasion to Kruger at the defendant’s direction and on another occasion to Kruger’s estranged wife cannot, as a matter of law, support a finding that she is liable as a principal or for criminal facilitation.
*749Thus, the Trial Judge was correct in treating the question of Ms. Vairo’s status as a question of fact. Moreover, he was correct in concluding that Ms. Vairo was not an accomplice as a matter of fact. On this record the inference is compelling that Ms. Vairo was a mere messenger for the defendant, and lacked the requisite intent to commit a crime (see, People v Wheatman, 31 NY2d 12, cert denied 409 US 1027).
We have reviewed the defendant’s remaining contentions and find them to be either unpreserved for appellate review or without merit. Thompson, J. P., Weinstein, Rubin and Harwood,JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5904439/ | — Order and judgment unanimously affirmed with costs. Memorandum: While misconduct proceedings were pending against plaintiff, an ophthalmologist, two private detectives were hired to gather evidence for his defense. According to plaintiff, the female detective was to pose as a cataract patient and the male as her concerned brother. They were to consult with local ophthalmologists and tape-record their statements regarding cataract surgery proce*962dures. During the first visit to defendant Lewis’ office, defendant allegedly made defamatory statements concerning the plaintiff. Plaintiff instructed the detectives to return to defendant’s office to record additional statements concerning plaintiff, and he then commenced this action asserting two causes of action for slander.
Special Term properly granted defendant’s motion for summary judgment dismissing both causes of action. During each interview with the detectives, defendant reasonably believed that he was giving advice to a cataract patient regarding her desire to avoid hospital costs by having the cataract procedure performed at plaintiff’s eye clinic and whether she should obtain a second opinion. The statements were made on matters pertaining to the interest of the patient or in furtherance of a mutual interest and thus, were conditionally privileged (see, Buckley v Litman, 57 NY2d 516; Kenny v Cleary, 47 AD2d 531; see also, Prosser and Keeton, Torts § 115 [5th ed]).
We further note that plaintiff has failed to raise a factual issue regarding his claim that the privilege was abused; he made no showing that the statements were false or that defendant was motivated by actual malice (see, Kaplan v MacNamara, 116 AD2d 626, 627, lv denied 68 NY2d 607). A mere conclusory allegation that the words were uttered maliciously is insufficient to raise a factual issue as to malice (Kaplan v MacNamara, supra; Vacca v General Elec. Credit Corp., 88 AD2d 740, 741), nor were the words uttered so vituperative in character as to warrant an inference of malice (Vacca v General Elec. Credit Corp., supra). Plaintiff’s reliance on Whelehan v Yazback (84 AD2d 673) is misplaced, since that case involved a motion to dismiss for failure to state a cause of action.
We note a further basis for dismissal of the second cause of action. Plaintiff in effect consented to the alleged defamatory statements by authorizing his agents to obtain further comment when he had reason to anticipate that defendant’s responses to inquiries might be defamatory. That consent constitutes a complete defense to the second cause of action (see, Teichner v Bellan, 7 AD2d 247). (Appeal from order and judgment of Supreme Court, Erie County, Mintz, J. — summary judgment.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/6823555/ | Structures formed of glass fiber-elastomer system. | 01-03-2023 | 07-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903475/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Berke, J.), rendered June 27, 1985, convicting him of robbery in the third degree, grand larceny in the second degree, and criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The defendant argues that the trial court erred in permitting the prosecution to introduce evidence of two prior uncharged bank robberies. We agree. Proof of these uncharged crimes was not probative of any element of the crimes charged and served only to establish the defendant’s predisposition to commit the crimes charged (see, People v Robinson, 68 NY2d 541; People v Condon, 26 NY2d 139). Contrary to the People’s contention, the evidence that the defendant committed two bank robberies in the area on other occasions was not admissible to prove the identity of the perpetrator of the robbery in the instant case, since the modus operandi of the robberies was not so unique as to serve as proof that they were committed by the same person (see, People v Condon, supra, at 144; cf., People v Beam, 57 NY2d 241; People v Allweiss, 48 NY2d 40, 47-48).
The admission of evidence of an uncharged crime on the issue of identity on less than clear and convincing proof of a unique modus operandi is error requiring reversal (see, People v Robinson, supra, at 550). Accordingly, a new trial is mandated. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903476/ | Appeal by the defendant from (1) a judgment of the County Court, Suffolk County (Tisch, J.), rendered July 30, 1985, and convicting him of operating a motor vehicle while under the influence of alcohol as a felony and driving while impaired under counts 1 and 2 of indictment No. 369/85, upon a jury verdict, and imposing sentence, and (2) a judgment of the same court, rendered October 15, 1985, convicting him of operating a motor vehicle while under the influence of alcohol under count 3 of that indictment, upon a jury verdict, and imposing sentence.
Ordered that the judgments are affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903477/ | Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered March 19, 2012, denying the petition to annul the determination of the New York City Department of Health and Mental Hygiene (DOHMH) that denied petitioner’s application to transfer his deceased mother’s mobile food vending permit to his name, and dismissing the proceeding brought pursuant to CELR article 78, unanimously affirmed, without costs.
DOHMH’s determination, that petitioner was not a “dependent” child under section 17-314.1 (d) (1) of the Administrative Code of the City of New York and therefore was not entitled to his deceased mother’s permit under that section, has a rational basis (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). DOHMH was not required to conduct a formal hearing (see Matter of Rasole v Department of Citywide Admin. Servs., 83 AD3d 509 [1st Dept 2011]). Nor was it required to conduct an independent medical examination of petitioner. In any event, the record shows that petitioner was afforded “a full and fair opportunity to be heard” (id. at 509 [internal quotation marks omitted]). Moreover, DOHMH did *521not challenge petitioner’s medical evidence, but rather concluded that the evidence did not demonstrate that he was a dependent child. There is no basis to disturb DOHMH’s determination. Concur—Tom, J.P., Saxe, Moskowitz, Abdus-Salaam and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903478/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Calabretta, J.), rendered May 7, 1986, convicting him of sodomy in the first degree (two counts), sexual abuse in the first degree (two *751counts), and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defense counsel failed to preserve his objection to having the nine-year-old complainant sworn as a witness. Therefore, the issue is unpreserved for our review (CPL 470.05 [2]). In any event, the trial court did not abuse its discretion in deeming the complainant qualified to be sworn as a witness since he adequately demonstrated his ability to understand the nature of an oath (see, People v Parks, 41 NY2d 36; People v Boyd, 122 AD2d 273).
Although the defendant’s original counsel failed to renew his application for a Mapp hearing after leave had been granted by the Supreme Court, that failure did not constitute ineffective assistance of counsel (see, People v Panzarino, 131 AD2d 788, lv denied 70 NY2d 753; People v Elliott, 124 AD2d 673, lv denied 69 NY2d 879). Moreover, although his trial counsel could have been more vigilant in objecting to various comments and questions made by the prosecutor, we cannot say that the defendant was denied his constitutional right to effective assistance of counsel (see, People v Chang, 129 AD2d 722, lv denied 70 NY2d 644). Viewed in their totality, the defense counsel’s efforts on behalf of the defendant afforded him "meaningful representation” (see, People v Baldi, 54 NY2d 137, 147).
We find the defendant’s remaining contentions to be unpreserved for appellate review and, in any event, without merit. Thompson, J. P., Weinstein, Rubin and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903479/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Owens, J.), rendered June 3, 1986, convicting him of assault in the first degree, attempted assault in the first degree, reckless endangerment in the first degree, criminal mischief in the fourth degree, and criminal possession of a weapon in the fourth degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant, a police officer, was convicted of criminal acts arising from his involvement while off duty in an altercation with the complainant during which the defendant fired five shots from his off-duty revolver into the complainant’s automobile windshield, and, while acting in concert with the codefendant, allegedly severely beat the complainant with his gun butt and an ax handle. The complainant sustained a head injury which required 71 stitches and an injury to his finger which resulted in the amputation of the fingertip.
The defendant’s contention that his due process rights under Brady v Maryland (373 US 83) were violated by the release by the District Attorney’s office of the complainant’s automobile is without merit. The automobile was vouchered and impounded by the police, then released without authorization of the District Attorney’s office and destroyed by the complainant’s father’s insurance company. The inadvertent release of the car involved in the incident did not result from the People’s bad faith, and it was not unduly prejudicial to the defendant.
The dismissal of an indictment due to destruction of evidence in the People’s custody is a drastic remedy and the fashioning of less severe sanctions is within the sound discretion of the trial court (see, People v Kelly, 62 NY2d 516; People v Nieves, 133 AD2d 234, lv denied 70 NY2d 935). In this case the court found after a thorough hearing on the issue that the destruction of the car was a result of inadequate procedural coordination between the police department and the District Attorney’s office, and that the defendant had not been unduly prejudiced by its destruction. The court imposed the sanction of allowing the defendant, if he so wished, to present the events leading to the car’s destruction to the jury, so that the jury could assess the People’s credibility in the matter. In addition, several detailed photographs had been made and certain forensic tests had been performed prior to its destruction from which the defendant’s expert could adequately *753reconstruct the events at issue from these photographs and test results. Under the circumstances the court did not abuse its discretion (see, People v Kelly, supra).
The trial court did not unduly restrict the defendant’s cross-examination of the complaining witness. It allowed ample impeachment of trial testimony by means of inconsistent statements made at a prior trial which ended with a hung jury. It is well settled that the trial court is afforded discretion in controlling the nature and extent of cross-examination in the proceeding before it (see, Feldsberg v Nitschke, 49 NY2d 636, 643, rearg denied 50 NY2d 1059; People v Schwartzman, 24 NY2d 241, 244, cert denied 396 US 846; Langley v Wadsworth, 99 NY 61, 63).
The trial court correctly denied the defendant’s motion to dismiss the indictment on the ground that the People should have submitted to the Grand Jury the results of a polygraph examination the complainant allegedly failed. Polygraphs are not considered competent evidence at trial (see, People v Shedrick, 66 NY2d 1015; Pereira v Pereira, 35 NY2d 301; People v Leone, 25 NY2d 511).
The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903480/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Quinones, J., at plea; Bourgeois, J., at sentence), rendered August 4, 1986, convicting him of criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5904472/ | — Judgment unanimously affirmed. Counsel’s application to withdraw granted (see, People v Crawford, 71 AD2d 38). (Appeal from judgment of Jefferson County Court, Parker, J. — criminal possession of stolen property, second degree.) Present — Dillon, P. J., Doerr, Green, Balio and Lawton, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903481/ | Judgment, Supreme Court, New York County (Donna M. Mills, J.), entered March 19, 2012, denying the petition to annul the determination of the New York City Department of Health and Mental Hygiene (DOHMH) that denied petitioner’s application to transfer his deceased mother’s mobile food vending permit to his name, and dismissing the proceeding brought pursuant to CELR article 78, unanimously affirmed, without costs.
DOHMH’s determination, that petitioner was not a “dependent” child under section 17-314.1 (d) (1) of the Administrative Code of the City of New York and therefore was not entitled to his deceased mother’s permit under that section, has a rational basis (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). DOHMH was not required to conduct a formal hearing (see Matter of Rasole v Department of Citywide Admin. Servs., 83 AD3d 509 [1st Dept 2011]). Nor was it required to conduct an independent medical examination of petitioner. In any event, the record shows that petitioner was afforded “a full and fair opportunity to be heard” (id. at 509 [internal quotation marks omitted]). Moreover, DOHMH did *521not challenge petitioner’s medical evidence, but rather concluded that the evidence did not demonstrate that he was a dependent child. There is no basis to disturb DOHMH’s determination. Concur—Tom, J.P., Saxe, Moskowitz, Abdus-Salaam and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903482/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Feldman, J.), rendered March 1, 1985, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence.
Ordered, that the judgment is reversed, on the law, and a new trial is ordered; no questions of fact have been raised or considered.
The record reveals that on Friday, February 8, 1985, shortly before the close of testimony, the jury forewoman—a Seventh Day Adventist—informed the court that by virtue of her religious beliefs she would be unable to remain at the courthouse after dark, although she would be able to resume deliberations the following Monday. The court expressed its intention to complete testimony, finish summations, and charge the jury that afternoon. After discussing the matter with counsel, the court stated that it preferred to discharge the forewoman if summations and the jury charge could be completed on Friday. In support of its decision, the court expressed the concern that if deliberations were delayed over *754the weekend, the jurors’ recollections could be dimmed. The court further stated that, "given the fact I have another case that is slated to start on Monday, I am going to excuse this juror and replace her with an alternate”.
In response, the defense counsel argued, inter alia, that "this has been such a short trial that there aren’t so many facts that the jury is going to forget just because we have a hiatus of a weekend”. The court subsequently noted that in order to accommodate the juror, it would be necessary to recess Friday afternoon and that to do so would result in "closing our courtroom for a whole afternoon for no reason, and I do not think that, in view of the fact that this Forewoman did not tell us ahead of time of the problem, that we should disrupt the trial in this way and have a long recess between the summations and the charge”. Notably, there is nothing in the record which indicates that the jury forewoman was questioned in respect to the existence of potential conflicts resulting from religious beliefs.
Nevertheless, on Friday afternoon, after summations had been completed, and prior to the court’s charging of the jury, the forewoman was discharged over the defense counsel’s objection and an alternate juror substituted in her place. The jury was charged that day, and, after deliberating for approximately 90 minutes, rendered its verdict of guilty. On appeal, the defendant argues, inter alia, that the court erred in discharging the jury forewoman. We agree.
As the Court of Appeals has observed, "[a] defendant has a constitutional right to a trial by a 'particular jury chosen according to law, in whose selection [the defendant] has had a voice’ ” (People v Buford, 69 NY2d 290, 297-298, quoting from People v Ivery, 96 AD2d 712; see, NY Const, art I, § 2; People v Anderson, 70 NY2d 729, 730). Moreover, in order "[t]o protect this constitutional right in criminal cases, the Legislature has enacted several procedural safeguards” (People v Buford, supra, at 298) among which is CPL 270.35, pursuant to which the jury forewoman at bar was discharged. The Court of Appeals in People v Anderson (supra, at 730-731) further noted that the denial to a defendant of a chosen jury on an improper basis is a deprivation of the constitutional right to a jury trial, to which harmless error analysis is inapplicable.
CPL 270.35 provides, in pertinent part, that the trial court must discharge a juror "[i]f at any time after the trial jury has been sworn and before the rendition of its verdict, a juror is unable to continue serving by reason of illness or other *755incapacity, or for any other reason is unavailable for continued service”. The statute, it has been observed, "does not define 'illness or other incapacity’ and, as a result, the language should be construed in accordance with its common, everyday meaning, thereby permitting the court, in the exercise of its discretion, to make a determination as to incapacity to serve on a case-by-case basis” (People v Washington, 131 AD2d 118, 120, Iv granted 70 NY2d 938; People v Pierce, 97 AD2d 904; cf., People v Bums, 118 AD2d 864; McShall v Henderson, 526 F Supp 158).
When construed in terms of their common, everyday meaning (People v Washington, supra, at 120), and tempered by consideration of the fundamental nature of the right involved, we are of the view that the statutory phrases "incapacity” and "unavailab[ility] for continued service” do not embrace the circumstances with which the court was confronted in this case. At bar, the forewoman was available for continued service immediately after her religious observances were completed, which would have required only a brief, weekend hiatus in submitting the case to the jury.
Moreover, while the objectives of maintaining calendar control and otherwise ensuring the efficient resolution of the court’s business are certainly laudable goals, minor scheduling difficulties involving the utilization of courtroom space or the brief delay which may have ensued had the forewoman been accommodated are not meaningful counterweights to the defendant’s constitutional right to trial by a jury in whose selection he has participated. Further, this case is distinguishable from those in which the nature and extent of the juror’s incapacity or unavailability for continued service is not readily ascertainable at the time the issue of discharge arises (see, e.g., People v Washington, supra; cf., People v Hewlett, 133 AD2d 417) or where the period of unavailability is such that a reasonable accommodation cannot be fashioned so as to facilitate retention of the juror without unduly delaying the trial proceedings (see, e.g., People v Burns, supra). In light of the foregoing, the brief period of unavailability resulting from the forewoman’s religious observance in this particular case cannot be characterized as a disability resulting in "incapacity” or "unavailability] for continued service” within the meaning of CPL 270.35.
Finally, the issues to be resolved in this case—in which only one count of the indictment was submitted to the jury—were neither factually nor legally complex, as the court itself remarked prior to administering its charge. Indeed, the record *756reveals that the taking of testimony commenced only one day before the case was ultimately submitted to the jury and that the jury rendered its verdict after deliberating for only 90 minutes. Accordingly, there was no danger that the jurors’ recollections would be dimmed by delaying the commencement of their deliberations for the weekend.
We have reviewed the defendant’s remaining contentions and find them to be without merit. Rubin, J. P., Hooper, Sullivan and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903483/ | Appeal by the defendant from a judgment of the County Court, Nassau County (Santagata, J.), rendered March 14, 1986, convicting him of burglary in the second degree (two counts) and possession of burglar’s tools, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.
Ordered that the judgment is affirmed.
Our review of the record reveals that the hearing court properly determined that the defendant’s arrest was based on probable cause and that the evidence derived therefrom was admissible at trial. It is well established that the justifiable scope of a police officer’s conduct in any particular situation is defined by the factual circumstances known to the officer at that time (see, People v De Bour, 40 NY2d 210). In the instant case, when the police officers first approached the defendant, they knew that a burglary had been committed in the immediate vicinity, and they knew that the car which the defendant got into did not belong to anyone in the neighborhood and was registered to a woman from Brooklyn. Based upon this knowledge, the officers clearly had "an objective credible reason” to approach the defendant for the purpose of requesting information (see, People v De Bour, supra, at 223; see also, People v Carney, 58 NY2d 51) and, based upon the defendant’s patently false and inconsistent responses to their questions, the police officers were certainly justified in asking the defendant to get out of the car, as they had reason to believe that criminal activity was afoot (see, People v Holt, 121 AD2d 469, lv denied 68 NY2d 813). Likewise, the police were certainly entitled, for the protection of themselves and others in the area, to conduct a carefully limited search of the defendant’s outer clothing in an attempt to discover weapons which might be used against them (see, Terry v Ohio, 392 US 1). With respect to the arrest *757itself, when the frisk revealed that the defendant was in possession of a screwdriver with a curled tip (which he demonstrated to the police officers could be used to open a locked trunk), and, when the police were able to start up the defendant’s car right away, indicating that the defendant had lied about his car breaking down, probable cause existed to believe that in fact the defendant was involved in the burglary nearby (see, CPL 140.10; People v De Bour, supra; People v Cantor, 36 NY2d 106; People v Weeks, 137 AD2d 775).
Moreover, we find that the trial court properly permitted a police detective to testify regarding his observations of footprints in the snow discovered at the crime scene and his observations of the defendant’s bootprints. The detective did not have to be an expert in order to give such testimony. The trial court severely limited the detective’s testimony to his own observations, and any insufficiencies in the officer’s qualifications did not go to the admissibility of the evidence, but rather, were properly for the jury to consider in determining the weight to be given this testimony (see, United States v Powell, 449 F2d 335; People v Houle, 85 AD2d 751; cf., People v Wicks, 122 AD2d 239, lv denied 68 NY2d 1005).
Lastly, we have reviewed the defendant’s sentence and find it to be fair and appropriate under the circumstances (see, People v Suitte, 90 AD2d 80). Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903484/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Douglass, J.), rendered June 23, 1986, convicting him of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the seventh degree (two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by reversing the defendant’s conviction of criminal possession of a controlled substance in the seventh degree as charged in the third count of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant was convicted, inter alia, of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree arising from the sale of cocaine to an undercover officer. However, as *758conceded by the People, criminal possession of a controlled substance in the seventh degree is a lesser included offense of criminal possession of a controlled substance in the third degree, which, under the circumstances of this case, should have been dismissed pursuant to CPL 300.40 (3) (b) (see, People v Grier, 37 NY2d 847, 848; People v Reyes, 126 AD2d 681, lv denied 70 NY2d 654).
The defendant further asserts that the trial court failed to charge the jury that it was not to consider or speculate concerning matters relating to sentence or punishment. However, the failure to so charge has not been preserved for appellate review as a matter of law (see, People v Perez, 118 AD2d 666, lv denied 67 NY2d 948), and, upon the facts of this case, reversal in the interest of justice is unwarranted. The evidence of guilt is overwhelming, the defendant having been apprehended within minutes of the sale to the undercover officer, and identified at the scene and at the precinct with the controlled substance in his possession. Further, the trial court generally instructed the jury that they were not to consider anything outside of the evidence which might influence their verdict and otherwise complied with CPL 300.10 (2) in its instruction. Thus, the verdict would not have been any different had the court instructed the jury not to speculate as to sentencing or punishment (see, People v Creech, 101 AD2d 753, 754).
Finally, the defendant contends that the posttrial affidavit of a juror supports a finding that the verdict would have been different due to speculation on sentencing matters during deliberations. We disagree. The juror herself stated to the trial court in a posttrial hearing that she felt guilt was proven beyond a reasonable doubt on all counts except count four of the indictment, and the trial court dismissed that count as a result. The postverdict affidavit in this case does not fall within the exception to the rule that jurors may not impeach their own verdicts (see, People v De Lucia, 20 NY2d 275, 279). No inherent prejudice to the defendant has been shown. Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903485/ | Appeal by the defendant from a judgment of the County Court, Westchester County (Cowhey, J., at sentence; Moynihan, J., at trial), rendered December 18, 1984, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
*759Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15 [5]).
We reject the defendant’s contention that he was deprived of a fair trial because the prosecutor systematically excluded blacks from the jury as wholly unsupported by the record herein.
The defendant’s other claims are either unpreserved for appellate review or without merit. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903486/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Miller, J.), rendered September 24, 1986, convicting him of burglary in the third degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant challenges the Supreme Court’s Sandoval ruling which permitted cross-examination on various prior petit larceny convictions and a prior robbery conviction. However, it is clear from the record that the court balanced the interests of the prosecution and the rights of the defendant and considered such factors as the period of time since the convictions, the degree to which the convictions bore on the defendant’s veracity and credibility, the nature of the offenses, the relevancy of each conviction, and the potential for impermissible prejudice (see, People v Williams, 56 NY2d 236, 239; People v Davis, 44 NY2d 269, 275-276; People v Sandoval, 34 NY2d 371, 375). Thus, the record clearly exhibits a proper exercise of discretion by the court (see, People v Torres, 110 AD2d 794, 795).
The pretrial ruling permitting the Assistant District Attorney to cross-examine on the defendant’s use of aliases on prior occasions, unrelated to these charges, was incorrect (see, People v Malphurs, 111 AD2d 266, 269, lv denied 66 NY2d 616, on reconsideration lv denied 66 NY2d 920). However, the Assistant District Attorney limited his cross-examination to the defendant’s use of an alias on his arrest for the instant charges. Thus, the defendant did not suffer any prejudice from the erroneous pretrial ruling, and it was, therefore, harmless error (see, People v Crimmins, 36 NY2d 230, 241-242).
*760We have considered the defendant’s remaining contentions and find them to be without merit. Mangano, J. P., Thompson, Brown and Sullivan, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/4534924/ | C-Track E-Filing
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https://www.courtlistener.com/api/rest/v3/opinions/5903488/ | Order, Supreme Court, New York County (Judith J. Gische, J.), entered March 21, 2012, which granted plaintiffs motion for leave to amend the complaint to add two new defendants and denied defendant SL Green Realty Corp.’s cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the cross motion granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.
Flaintiff Dessa Lansen commenced this negligence action *522against defendant SL Green Realty Corp. (SL Green) after she slipped on the sidewalk abutting property owned by defendant. Plaintiff asserts that the sidewalk was uneven where a section of the sidewalk cement buttressed up against a paving stone. She alleges that the cement was higher than the paving stone, so that when the heel of her shoe struck the edge of the cement section, she fell, injuring her ankle. Plaintiff also asserts that ice and snow that had accumulated between the paving stones and the cement contributed to her fall.
Plaintiff moved to amend her complaint to add two defendants. Defendant SL Green cross-moved for summary judgment dismissing the complaint. The motion court granted plaintiffs motion to amend and denied defendant’s motion to dismiss. The question of “whether a dangerous or defective condition exists on the property of another so as to create liability ... ‘is generally a question of fact for the jury’ ” (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997], quoting Guerrieri v Summa, 193 AD2d 647, 647 [2d Dept 1993]). However, when the trivial nature of the defect outweighs other factors, the case need not be submitted to a jury (Trincere, 90 NY2d at 977).
Here, we find that any defect that existed in the sidewalk was trivial. The pictures of the sidewalk presented by plaintiff did not show any significant height differential or significant defect. Moreover, some of the pictures were taken after repairs were done on the sidewalk and it is impossible to ascertain from the photographs what the sidewalk looked like at the time of plaintiffs fall. The conclusory statements of plaintiffs expert witness fail to raise a triable issue of fact (Di Sanza v City of New York, 11 NY3d 766, 767 [2008]). Plaintiffs expert claims that the photographs taken prior to the repairs show a difference in elevation, but our review of the photograph leads us to conclude otherwise (see Leon v Alcor Assoc., L.P., 96 AD3d 635 [1st Dept 2012]). The expert provides no explanation for exactly how he determined the size of the gap at the time of plaintiffs fall based on photographs taken several years after the accident. Without an evidentiary basis for his assessment, the conclusions of plaintiffs expert fail to raise an issue of fact (Matos v Challenger Equip. Corp., 50 AD3d 502 [1st Dept 2008]).
In view of the foregoing finding of a trivial defect, plaintiffs motion to add the new defendants is academic. Concur— Andrias, J.P, Sweeny, DeGrasse, Freedman and Richter, JJ. [Prior Case History: 35 Misc 3d 1203(A), 2012 NY Slip Op 50547(U)J.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903489/ | Appeal by the defendant from a judgment of the Supreme Court, Queens County (Leahy, J.), rendered October 31, 1985, convicting him of murder in the second degree and robbery in the first degree (two counts), upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress identification testimony.
Ordered that the judgment is affirmed.
The identification of the defendant by the witness Hudson had a sufficient basis independent of the photographic identification, namely, Hudson’s observation of the defendant’s face at the time of the crime and his recollection of having seen the defendant in the neighborhood (see, People v Scatliffe, 117 AD2d 827, lv denied 67 NY2d 1056; People v Johnson, 106 AD2d 469; People v Laguer, 58 AD2d 610). Further, the photographic viewing was the product of Hudson’s own activities and therefore could not be considered to be suggestive (see, People v Whitaker, 126 AD2d 688, 689, lv denied 69 NY2d *7611011; People v Parente, 104 AD2d 667; People v Laguer, supra). Finally, since Hudson knew the defendant, even though not by name, the viewing of the photograph was merely confirmatory (see, People v Tas, 51 NY2d 915, 916; People v Whitaker, supra, at 689).
The prosecution properly objected to the defense counsel’s statements during summation, which either referred to matters that were not in evidence or concerned irrelevant material which should not have been a subject of the jury’s deliberations (see, People v De Jesus, 42 NY2d 519, 526; People v Ashwal, 39 NY2d 105, 109-110).
We have considered the defendant’s remaining contentions and find them to be without merit. Lawrence, J. P., Rubin, Fiber and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903490/ | Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Stolarik, J.), rendered May 10, 1984, convicting him of robbery in the first degree, grand larceny in the third degree, assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress certain statements made by him to the police.
Ordered that the judgment is reversed, on the law, and a new trial is ordered; the findings of fact have been considered and are determined to have been established.
Initially, we reject the defendant’s argument that that branch of his omnibus motion which was to suppress the statements he made to the police following his arrest was improperly denied. There is no basis for disturbing the hearing court’s finding that the defendant’s statements made to the police at the time of his arrest were spontaneous and unsolicited (see, People v Lynes, 49 NY2d 286, 294-295; People v Bryant, 87 AD2d 873, 874, affd 59 NY2d 786, rearg dismissed 65 NY2d 638).
Contrary to the defendant’s further contentions, the evidence was legally sufficient to support his conviction for robbery in the first degree (see, Penal Law § 160.15 [4]; People v Baskerville, 60 NY2d 374; People v Brown, 108 AD2d 922, 923) and assault in the second degree (see, Penal Law § 120.05 [2]; People v Bogan, 70 NY2d 860, rearg denied 70 NY2d 951).
However, reversal of the judgment and a new trial is warranted on the ground that the trial court improperly *762denied the defendant’s motion to strike the testimony of Tony Canada. The People called Canada as a rebuttal witness to establish that he had been asked by the defendant to speak to the complainant about dropping the charges against the defendant. However, when Canada denied that the defendant had approached him with that request, upon the prosecutor’s motion, the witness was declared "hostile”. Canada was then asked the following questions by the prosecutor and the court:
"Q. Tony, do you remember speaking with me down in my office about a half hour ago?
"A. Yes * * *
"Q. Okay. Do you remember telling me when I asked you what exactly Keith Upshaw said to you, that you told me he said can you talk to your man?
"A. But I had—
"Q. Did he say that, that is all I’m asking, did he say can you talk to your man?
"A. No.
"the court: Mr. Canada. All he’s asking you, did you say—
"A. No* * *
"Q. One more time. Did Keith ever say, did you ever tell me in my office that Keith said to you why don’t you talk to your man.
"[defendant’s counsel]: Objection, asked and answered.
"the court: I— * * *
"the court: Yes or no, did you say that to [the prosecutor]?
"the witness: I didn’t say that in that type of statement.
"the court: Did you say that statement? That is all he’s asking you. You heard the statement that he just made?
"the witness: No” (emphasis supplied).
Since Canada’s testimony did not connect the defendant to any attempt to influence the complainant, it should have been stricken upon the defense counsel’s request (see, People v Buzzi, 238 NY 390, 397-398). Further, the prosecutor was allowed to become, in effect, an unsworn witness against the defendant. Under the circumstances, it cannot be said that the refusal to strike this rebuttal testimony was harmless error (see, People v Johnson, 57 NY2d 969, 970; People v Crimmins, 36 NY2d 230, 241).
The other issues raised by the defendant need not be addressed. Thompson, J. P., Lawrence, Rubin and Spatt, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903492/ | Appeal by the defendant from a judgment of the Supreme Court, Kings County (Moskowitz, J.), rendered October 24, 1984, convicting him of attempted robbery in the first degree, upon his plea of guilty, and imposing sentence.
Ordered that the judgment is affirmed.
We have reviewed the record and agree with the defendant’s assigned counsel that there are no meritorious issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is granted (see, Anders v California, 386 US 738; People v Paige, 54 AD2d 631; cf., People v Gonzalez, 47 NY2d 606). Mangano, J. P., Kunzeman, Rubin, Kooper and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1745168/ | 732 S.W.2d 300 (1987)
Joseph B. DANZIGER Et Ux., Petitioners,
v.
SAN JACINTO SAVINGS ASSOCIATION, Respondent.
No. C-5308.
Supreme Court of Texas.
May 27, 1987.
Concurring Opinion April 8, 1987.
*302 Michael C. O'Connor, O'Connor, Wisner & Craig, Houston, for petitioners.
Gregory Neill Jones, Hill, Parker, Franklin, Cardwell & Jones, Houston, for respondent.
MAUZY, Justice.
The opinion and judgment of April 8, 1987 is withdrawn and the following is substituted therefor.
This is a usury suit. Joseph and Judith Danziger brought an action against their lender, San Jacinto Savings Association, claiming various actions by San Jacinto constituted usury and, further, that San Jacinto had violated the Federal Truth-In-Lending Act and Regulation Z. In a bench trial, the court held that San Jacinto had not contracted for, charged, or received usurious interest nor had it violated the Federal Truth-In-Lending Act or Regulation Z, and rendered judgment that the Danzigers take nothing. The court of appeals affirmed. 708 S.W.2d 1. We reverse and render in part and remand in part.
The Danzigers entered into a contract with San Jacinto for a home improvement loan in the principal amount of $39,350.00 and an 8% add-on interest which computed to 12.34% annual interest for a total interest charge of $47,217.40 as permitted by Tex.Rev.Civ.Stat.Ann. art. 5069-5.02 (Vernon Supp.1987), bringing the face amount of the note to $86,567.40 to be paid in 180 equal monthly payments. The loan contract provided that the principal amount would be placed in escrow and disbursed by San Jacinto directly to the contractor doing the improvements. The disbursements were to be paid upon San Jacinto's approval of the work in progress.
The Danzigers assert the court of appeals erred in holding that San Jacinto's procedures for advancing loan proceeds in installments and crediting back excess interest does not violate the usury statutes. Interest was charged on the entire amount of the cash advance. At the end of the disbursements, when San Jacinto could calculate how much money had been retained in the escrow account during each payment period, San Jacinto provided a "manual" (handwritten) credit to the account to return interest charged on the money prior to its being disbursed. Chapter 5 of the Texas Consumer Credit Code, art. 5069, provides that the interest "shall be computed on the cash advance at the time the loan is made." Art. 5069-5.02(2) (Vernon Supp. 1987). Based on the definition of "cash advance" in art. 5069-2.01(g) and the language in art. 5.02(2), it is clear that the provisions of Chapter 5 contemplate the date of the loan and the date of disbursement of the cash advanced be the same.
We hold it is unlawful for a lending institution to charge interest from the date of the note on the entire principal amount and then credit back the overcharge when the principal amount is disbursed in portions from time to time. Once usurious interest has been charged, the lender cannot purge its action by a subsequent credit. See Southwestern Investment Company v. Hockley County Seed and Delinting, Inc., 516 S.W.2d 136 (Tex.1974). See also Nationwide Financial Corp. v. English, 604 S.W.2d 458 (Tex.Civ.App.-Tyler 1980, writ dism'd as moot).
San Jacinto's practice of crediting back overpaid interest is insufficient to overcome the violation of the statutes arising from the initial charge of interest on money still held by the lender in an escrow account prior to disbursement. The Legislature has provided for a credit of interest to avoid usurious charges only in the instance of pre-payment by the borrower. Tex.Rev.Civ.Stat.Ann. art. 5069-1.07(a) (Vernon Supp.1987). There is no provision for a lender to avoid usury by giving interim credits to rebate interest overcharges. San Jacinto contracted for usurious interest *303 when it contracted for interest on the entire principal, which contract provided for multiple disbursements. The loan contract is clear and unambiguous and permits of no other conclusion.
The Danzigers assert that if this court finds usury, it must necessarily also find double usury, thus invoking the additional penalties of article 5069-8.02 which provides for a return of all principal and interest, paid and unpaid. They insist that since San Jacinto did not disburse any of the loan principal until some time after the date of the loan, and yet contracted for and charged interest commencing on the loan date, that San Jacinto has contracted for and charged in excess of double the amount of legal interest as a matter of law. They reach this conclusion on the premise that the legal interest prior to disbursement would be zero, citing the court to Houston Sash & Door Company, Inc. v. Heaner, 577 S.W.2d 217, 221 (Tex.1979).
Houston Sash has no bearing on the instant case. The interest ceilings, calculations and rules for determination of whether usury has occurred vary, depending on the character of the transaction. Houston Sash involves interest on an open account governed by chapter seven of the Credit Code. That chapter clearly provides that no interest may be charged in the first year of the account. Accordingly, the legal interest on such an account in the first year is zero. As 12 percent was charged, the court found the interest charged was in excess of double the amount allowed, (i.e., in excess of twice zero), as a matter of law.
There is no such interest-free period provided by chapter five on which the Danzigers can support a claim of double usury as a matter of law. Instead, for a chapter five transaction, a court must look to the full term of the note and spread the interest over the term of the contract to determine if usury has occurred and the extent of the overcharge. Tanner Development Company v. Ferguson, 561 S.W.2d 777 (Tex.1977). The double usury penalties of article 5069-8.02 are levied if simple arithmetic indicates the rate charged is in excess of double the legal rate. Tri-County Farmer's Co-op v. Bendele, 641 S.W.2d 208 (Tex.1982). The Danzigers have made no such showing.
Using the Danzigers own calculations, the legal interest formula under chapter five is: principal times 8 percent times term of loan. Application of the relevant figures to this formula clearly indicates the Danzigers' claim of double usury is without merit. If the full amount of principal had been disbursed on the loan date, the legal interest formula would be $39,350 times 8 percent × 15 years, yielding a maximum interest allowable of $47,220. Double usury, interest in excess of double the amount of legal interest, would entail an interest charge exceeding twice this amount, or, $94,440. While an overcharge of $1,117.62 in interest, due to staggered disbursements, was proved and constitutes usury, it falls far short of an overcharge that would exceed twice the legal rate of interest. The Danzigers are not entitled to recover the penalties provided by article 5069-8.02.
The Danzigers next urge that the excessive pay-off quote constitutes "charging" of usurious interest. The Danzigers requested and received a pay-off quote from San Jacinto on May 18, 1982. The evidence is undisputed that this quote reflected an amount due in excess of the amount allowed under the law on the projected pay-off date. San Jacinto claims that a mere pay-off quote does not constitute a "charge" and that a lending institution cannot be said to have "charged" interest in excess of the maximum rate until after the loan is paid off and all accounting has been completed to determine the final charge for interest. San Jacinto argues that since the Danzigers have not paid or attempted to pay off their loan obligation, the Danzigers cannot logically argue that they have been charged excessive interest.
The court of appeals accepted San Jacinto's argument and held "although the appellee sent a letter to the appellants that stated an incorrect amount still owing on the note, we find this immaterial because the appellant Joseph B. Danziger testified that the note was still in effect, that he did *304 not intend to make an early pay-off, and that the appellants did not seek to rescind the loan contract." 708 S.W.2d at 6-7.
Article 5069, sec. 8.01, Texas Consumer Credit Code, is the penalty provision specifically applicable to lenders. It provides: "(a) Any person who violates this Subtitle by contracting for, charging or receiving interest, time-price differential or other charges which are greater than the amount authorized by this Subtitle, shall forfeit to the obligor twice the amount of interest or time-price differential in default and deferment charges contracted for, charged or received, and reasonable attorneys' fees fixed by the court" (emphasis added). The general penalty provision, section 1.06 of article 5069, Texas Consumer Credit Code, has in pertinent part, identical wording. In a review of that provision, this court held: "By describing the conditions precedent to recovery of penalties in the disjunctive, the Legislature made it clear that only one such condition need to occur to trigger penalties; either a contract for, a charge of or a receipt of usurious interest." Windhorst v. Adcock Pipe & Supply, 547 S.W.2d 260, 261 (Tex.1977). When a usury claim is based upon the creditor's charge of usurious interest, the actionable conduct is that of the creditor acting unilaterally and independently. Id.
A unilateral act of charging occurs if the creditor enters a usurious amount of interest on a statement of account, Windhorst, 547 S.W.2d 260; affidavits and pleadings, Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex.Civ.App.- Austin 1975, writ ref'd n.r.e.); demand letters, Dryden v. City National Bank of Laredo, 666 S.W.2d 213 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.); or monthly statements, Wright Way Spraying Service v. Butler, 690 S.W.2d 897 (Tex.1985).
A usurious charge may be contained in an invoice, a letter, a ledger sheet or other book or document. The basis of the action is a claim or demand for usury made by the creditor and the vehicle for the claim or demand is immaterial except as an evidentiary fact. A pay-off quote which reflects a charge of interest in excess of that allowed by law constitutes "charging" of usurious interest.
Whether the debtor actually pays off the loan is immaterial. Payment of the loan is not necessary to an action based upon charging usurious interest. Windhorst, 547 S.W.2d 260; Missouri-Kan.-Tex. R.R. Co. v. Fiberglass Insulators, 707 S.W.2d 943 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.). The mere charging of excessive interest constitutes usury. Because of our disposition of these claims, it is unnecessary to address the issues presented which question the propriety of a lender accruing interest on lender-held escrow accounts in the context of usury. We reserve this issue.
In addition to the previous statutory causes of action, and the penalties available thereunder, the Danzigers assert a common law claim for return of all interest paid and cancellation of interest not yet paid. The Danzigers properly pleaded their common law claim and preserved it on appeal; therefore, they are entitled to recover all interest paid. First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex. 1978); Commercial Credit Equipment Corp. v. West, 677 S.W.2d 669 (Tex.App.- Amarillo 1984, writ ref'd n.r.e.). The Danzigers are also entitled to cancellation of all interest not yet paid because "... as to interest a usurious contract is unenforceable." Wall v. East Texas Teachers' Credit Union, 533 S.W.2d 918, 921 (Tex.1976).
The Danzigers further complain that the court of appeals erred in holding that an oral disclosure of information required under the Federal Truth-in-Lending Act and Regulation Z constitutes substantial compliance and thus is not a violation of the law. San Jacinto disclosed in writing a projected finance charge, total of payments, number of payments and the amount of the final installments and then orally informed the Danzigers of a crediting procedure that would reduce these figures.
The disclosures on the face of the note are wrong because they do not include the effect of credits which San Jacinto *305 knew at the inception of the loan were going to be applied to the note. San Jacinto was required to disclose that the figures on the face of the note were estimates. 12 C.F.R. § 226.6(f) (1980). The Federal Truth-in-Lending Act and Regulation Z both require disclosures to be in writing. 15 U.S.C. §§ 1631; 1639(b) (1976) [recodified at 15 U.S.C. § 1638 (1982) ]; 12 C.F.R. 226.6(a); 226.8(a) (1980) [recodified at 12 C.F.R. § 226.17 (1986)].
The court of appeals erred in holding that the oral disclosure substantially complied with the requirements and precluded a violation. "[O]nce the court finds a violation, no matter how technical, it has no discretion with respect to the imposition of liability." Grant v. Imperial Motors, 539 F.2d 506, 510 (5th Cir.1976). Oral disclosure is ineffective. Strict compliance is the applicable standard. Smith v. Chapman, 614 F.2d 968, 971 (5th Cir.1980). See also Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11th Cir.1984). San Jacinto violated the Truth-in-Lending Act and Regulation Z by failing to make all of the required disclosures in writing.
The judgments of the trial court and court of appeals are reversed. We render judgment that the Danzigers recover $94,434.80 from San Jacinto on their usury claim as penalty under Tex.Rev.Civ.Stat. Ann. art. 5069-8.01(a) (Vernon Supp.1987) with post-judgment interest to accrue at 10.92 percent per annum from July 22, 1984, the date of the trial court's judgment, until satisfied. We further hold the Danzigers are entitled to recover all interest paid on the loan as recovery under the common law. We sever and remand to the trial court for it to determine what portion of the total payments by the Danzigers was paid as interest on the principal. The Danzigers also are entitled to recover $2,000 as penalty under 15 U.S.C. § 1640(a)(2)(A)(i) (1976 & Supp.IV 1980) [recodified at 15 U.S.C. § 1640(a)(2)(A)(i) (1982) ] for violation of the Truth-in-Lending Act.
Finally, the Danzigers prayed for reasonable attorneys' fees under Tex.Rev.Civ. Stat.Ann. art. 5069-8.01(a) (Vernon Supp. 1987) but no evidence was adduced on the matter due to the trial court's failure to find usury. We sever and remand the award of reasonable attorneys' fees to the trial court for its determination.
HILL, C.J., not sitting.
GONZALEZ, J., filed a concurring opinion.
GONZALEZ, Justice, concurring.
I concur in the judgment of the court. However, I disagree with the dicta that pleadings alone can constitute the charging of usurious interest. I consider the issue an open question.
This court has not directly faced this issue. In Tyra v. Bob Carroll Constr. Co., 639 S.W.2d 690 (Tex.1982), the court upheld a bona fide error defense, "assuming that there was a `charge' of interest" in a pleading without reaching the issue. Id. at 691. Likewise, in Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex.1984), the court rejected the court of appeals reasoning on this issue and instead focused on the issue of implied post-maturity interest. Furthermore, in Jim Walter Homes, Inc., v. Schuenemann, 668 S.W.2d 324 (Tex.1984) we stated that when a party "contracted to charge time price differential in excess of double the amount allowed by" the Consumer Credit Code, the party is subject to penalties under the code. Id. at 329. The legislature "intended to penalize a creditor who included such provisions in a retail installment contract....." Id. at 333. This is a far cry from penalizing a creditor for an inadvertent pleading error.
The better rule is that the filing of a petition may constitute the charging of usurious interest only when the underlying agreement sought to be enforced is usurious, see e.g., Fifth Nat'l Bank of Grand Rapids v. Pierce, 117 Mich. 376, 75 N.W. 1058, 1061 (1898) (error creating a claim for usurious interest does not render a lawful *306 contract usurious); Freitas v. Geddes Savings and Loan Assoc., 63 N.Y.2d 254, 481 N.Y.S.2d 665, 471 N.E.2d 437, 444 (1984) (usury must be established on the face of the loan instrument); Palmer v. Stevens-Norton, Inc., 75 Wash.2d 155, 449 P.2d 689, 692 (1969) (law of usury was never intended to benefit those who are not and cannot be injured by the usurious transaction); Tacoma Hotel, Inc. v. Morrison & Co., 193 Wash. 134, 74 P.2d 1003, 1007 (1938) (errors in the drafting of a complaint cannot change the terms and meaning of the original agreement); or when the usurious charge was not the result of a bona fide error. Tex.Rev.Civ. Stat.Ann. art. 5069-8.01 (Vernon Supp. 1987); Moore v. Sabine Nat'l Bank of Port Arthur, 527 S.W.2d 209, 213 (Tex.Civ.App. Austin 1975, writ ref'd n.r.e.). See Southwestern Inv. Co. v. Mannix, 557 S.W.2d 755, 760 (Tex.1977) (defenses of accidental and bona fide error not raised); Moore v. White Motor Credit Corp., 708 S.W.2d 465, 471 (Tex. App.-Dallas 1985, writ ref'd n.r.e.) (no evidence of maintenance of procedures designed to avoid violations); Nationwide Fin. Corp. v. English, 604 S.W.2d 458 (Tex.Civ.App.-Tyler 1980, writ dism'd) (bona fide error not discussed); General Motors Acceptance Corp. v. Uresti, 553 S.W.2d 660 (Tex.Civ. App.-Tyler 1977, writ ref'd n.r.e.) (bona fide error not discussed).
As Judge Higginbotham stated in Fibergrate Corp. v. Research-Cottrell, Inc., 481 F. Supp. 570, 572 (N.D.Tex.1979): "construing a claim asserted only in a pleading filed in a law suit as an interest charge triggering the draconian penalties of usury would do little to serve any reasonable purpose of the statute." Such a policy "would exalt form over substance" and run contrary to the well established practice that pleading amendments ought to be freely allowed to avoid injustice. Id. at 572. See Tex.R. Civ.P. 63; Fenwal, Inc. v. Mencio Sec., Inc., 686 S.W.2d 660 (Tex.App.-San Antonio 1985, writ ref'd n.r.e.); Rogers v. Gonzales, 654 S.W.2d 509 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903494/ | by the People from an Appeal order of the Supreme Court, Queens County (Rotker, J.), dated June 26, 1987, which, inter alia, granted that branch of the defendant’s omnibus motion which was to dismiss the indictment on the ground that the Grand Jury proceeding was defective.
Ordered that the order is reversed, on the law and the facts, that branch of the defendant’s omnibus motion which was to dismiss the indictment on the ground that the Grand Jury proceeding was defective is denied, the indictment is reinstated, and the matter is remitted to the Supreme Court, Queens County, for further proceedings, including disposition of the other branches of the defendant’s omnibus motion.
On January 8, 1987, the defendant was arrested and charged in a felony complaint with criminal possession of marihuana in the second degree.
On January 9, 1987, the defendant was arraigned in the Criminal Court and he was served with a notice, pursuant to CPL 190.50 (5) (a), advising him of his right to testify before the Grand Jury.
On January 14, 1987, the matter was presented to the Grand Jury and after hearing testimony and receiving evidence, the Grand Jury was charged on the relevant law and then voted to indict the defendant.
Thereafter, but prior to the filing of the indictment, the defendant, for the first time, orally requested an opportunity to testify before the Grand Jury. The prosecutor agreed to the defendant’s request to appear before the Grand Jury and on January 30, 1987, the defendant testified before the Grand Jury. The Grand Jury was recharged and again voted to indict the defendant. Subsequently, the indictment was filed charging the defendant with criminal possession of marihuana in the second degree.
Initially, we find that it was improper for the Supreme Court to dismiss the indictment on the ground that the Grand Jury proceeding was defective because the prosecutor "re*765opened” the case before the Grand Jury to permit the defendant to testify, without court authorization. This court has held that GPL 190.50 (5) (a) provides that a defendant may exercise his right to appear before the Grand Jury by giving appropriate notice at any time prior to the filing of the indictment even if the charges have already been submitted to the Grand Jury and the Grand Jury has voted to indict the defendant (see, People v Skrine, 125 AD2d 507, 508). Therefore, in this case, the prosecutor, after waiving appropriate notice from the defendant, could properly permit the defendant to testify before the Grand Jury, without court authorization (see also, People v Rosenthal, 197 NY 394, 401, affd on other grounds 226 US 260; People v Rodriguez, 11 NY2d 279, 285-286). People v Wilkins (68 NY2d 269) and People v Jones (126 Misc 2d 104), relied upon by Criminal Term are factually distinguishable from this case.
Further, we find no merit to the defendant’s contention that dismissal of the indictment was warranted because at the time the defendant had indicated his desire to testify, the prosecutor failed to inform defense counsel that the Grand Jury had already voted to indict the defendant.
Accordingly, that branch of the defendant’s omnibus motion which was to dismiss the indictment on the ground that the Grand Jury proceeding was defective is denied, the indictment is reinstated and the matter is remitted to the Supreme Court, Queens County, for further proceedings, including disposition of the remaining branches of the defendant’s omnibus motion. Mangano, J. P., Bracken, Lawrence and Spatt, JJ., concur. [See, 136 Misc 2d 121.] | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5904478/ | — A certified copy of the certificate of conviction of Lee Alexander, an attorney, in the Federal District Court for the Northern District of New York, of the crimes of violation of the Racketeer Influenced and Corrupt Organization Act, conspiracy to *974defraud the United States and income tax evasion having been presented to this court, he is disbarred and his name is stricken from the roll of attorneys. Present — Dillon, P. J., Doerr, Denman, Boomer and Green, JJ. (Order entered Apr. 4, 1988.) | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903495/ | In a habeas corpus proceeding seeking a change of custody of the parties’ daughter, the appeal, as limited by the appellant’s brief, is from so much of an order of the Supreme Court, Nassau County (Yachnin, J.), dated October 5, 1987, as denied her request to be represented by her nonattorney husband.
Ordered that the order is affirmed insofar as appealed from, with costs.
New York law prohibits the practice of law in this State on behalf of anyone other than himself or herself by a person who is not an admitted member of the Bar, regardless of the authority purportedly conferred by execution of a power of attorney (Judiciary Law §§478, 484; New York Criminal & *766Civ. Cts. Bar Assn. v Jacoby, 61 NY2d 130, 136). After reviewing the record herein, and particularly in view of the fact that the appellant has previously retained counsel in prior custody proceedings, we agree with the trial court’s conclusion that the appellant’s claim that retaining counsel now would conflict with her religious beliefs does not raise a constitutional issue. Brown, J. P., Kunzeman, Kooper and Balletta, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903496/ | Proceeding pursuant to CPLR article 78 to review an order of the Administrative Judge of the Supreme Court, Nassau County (McGinity, J.), dated March 28, 1988, which upheld a determination of the Judge presiding over a pending criminal proceeding under Nassau County indictment No. 65634 and which authorized audiovisual coverage of the trial of that proceeding.
Adjudged that the order of the Administrative Judge is confirmed, and the proceeding is dismissed on the merits, without costs or disbursements; and it is further,
Ordered that the stay of audiovisual coverage of the pending criminal proceeding granted by order to show cause dated March 25, 1988 is hereby vacated.
Upon our review of the record, we conclude that the Administrative Judge did not abuse his discretion in upholding the Trial Judge’s determination to permit audiovisual coverage of the trial of the underlying criminal proceeding (see, Matter of Ladone v Lerner, 135 AD2d 535). Thompson, J. P., Lawrence, Spatt and Harwood, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903497/ | Appeal from a judgment of the County Court of Broome County (Coutant, J.), rendered December 7, 1984, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts) and rape in the first degree. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903498/ | Yesawich, Jr., J.
*767Defendant was convicted of the brutal rape and murder of a 12-year-old girl who had stopped at his home collecting for her newspaper route. After a police search uncovered the girl’s body in defendant’s basement, he admitted killing her.
Extensive pretrial publicity on this case, other contemporaneous murders and child abuse incidents in the locality prompted a protracted jury voir dire at defendant’s trial. Defendant’s appeal focuses primarily on County Court’s denial of certain challenges for cause made by defendant. One such challenge was to juror Frank Clark, predicated upon Judiciary Law § 511 (5), because he had actually served on a petit jury within the previous year. The statute disqualifies from jury duty all who have "served on a grand or petit jury within the state * * * within two years of the date of his next proposed service” (supra). County Court denied the challenge based on a misreading of a rule of this court (22 NYCRR 820.15)* which disqualifies from service those jurors who have been in attendance at a term or part of court for at least five days unless sooner discharged. Defendant’s counsel acquiesced in County Court’s construction of this court’s rule but continued to challenge juror Clark for cause based on his supposed state of mind. This challenge was also denied, after which defendant expended a peremptory challenge to remove this juror from the panel. Defendant subsequently exhausted his peremptory challenges before selection of the jury was complete.
The People contend that a disqualification based on prior jury service is nothing more than a "technical” objection to a juror’s qualification and cannot render a verdict jurisdiction-ally defective because the Legislature’s purpose in enacting this provision was to save commissioners of jurors and potential jurors time and money (Mem on Original Draft Bill, May 31, 1978, Governor’s Bill Jacket, L 1978, ch 239) and does not go to the juror’s impartiality and competence. This argument is unavailing as People v Foster (100 AD2d 200, mod on other grounds 64 NY2d 1144, cert denied 474 US 857) makes quite clear. There it was observed that "the failure to exclude a disqualified juror after a timely and adequate objection by a defendant necessarily affects the verdict and cannot be considered harmless error” (supra, at 206-207; see also, People v Culhane, 33 NY2d 90, 97).
However, the People make a convincing argument that the issue of whether defendant’s challenge of juror Clark for cause was properly denied has not been preserved for our review. A *768question of law is preserved for appellate review only when the trial court is apprised of the objection and afforded an opportunity to cure the error (see, CPL 470.05 [2]). The colloquy between County Court and defense counsel respecting the propriety of Clark sitting as a juror manifests defendant’s acceptance of the court’s understanding of 22 NYCRR 820.15 and, thus, did not put the court on notice that its interpretation was being questioned. That colloquy was as follows:
"defense counsel: Mr. Clark, in addition to having uncertainty as to whether or not he can apply the insanity defense, he’s served on a jury within the past two years. Under Section 511 subdivision 5 of the Judiciary Law, it’s my understanding that he is necessarily disqualified.
"the court: That was in town court, wasn’t it?
"defense counsel: That’s correct.
"the court: I think that we can ask the duration of service. If it was less than five days under the rules of the Appellate Division, that does not disqualify him.
"defense counsel: That may be. I didn’t know about the five-day rule.
"the court: We can ask if you like.
"defense counsel: Sure.
"the court: Mr. Clark, you sat on a jury how long ago? "juror clark: Within the last year in Whitney Point, a town jury.
"the court: How long did you sit on that trial?
"juror clark: A day, day-and-a-half or something.
"the court: Thank you. That does not serve as a disqualification, the challenge on that basis.
"defense counsel: My challenge remains on his state of mind, Judge, and the inability of the oath to wipe out that state of mind.”
In our view, defense counsel’s response to County Court’s ruling was not sufficient to put the court on notice that its interpretation was being called into question (see, People v Fleming, 70 NY2d 947, 948). Moreover, no objection was made during the following three days of jury selection when the error could have readily been corrected by the grant of an additional peremptory challenge (see, People v Hines, 109 AD2d 893, lv denied 66 NY2d 764). That defendant assented to the ruling, or at the very least evinced an intention to waive his objection to it, is apparent from the fact that other jurors interrogated after juror Clark, who also acknowledged *769having had jury service within the last two years, were not challenged for this reason by defense counsel; indeed in one instance, involving the seating of an alternate juror defense counsel unreservedly, if not eagerly, found the juror acceptable. Since defendant has not preserved this issue for review and our reading of the record discloses that he was not deprived of a fair trial, we decline to consider this matter in the interest of justice.
Defendant also challenged the impartiality of a number of jurors because they presumably exhibited hesitancy as to their ability to properly weigh defendant’s insanity defense. Dismissal for cause in such cases is to be granted when there is a substantial risk that an alleged predisposition will affect the juror’s capacity to discharge his responsibilities (see, People v Torpey, 63 NY2d 361, 367). This determination lies largely with the trial court, given its superior opportunity to study and evaluate the jurors (People v Williams, 63 NY2d 882, 885). We find the jurors’ expressions here to be nothing more than abstract and understandable misgivings about applying the insanity defense which vanished during the voir dire examination in the case of the jurors chosen; therefore, no basis for reversal exists on this point.
Defendant is also displeased with County Court’s decision not to include in its charge on the defense of mental defect or disease (see, CPL 300.10) a statement that the jury may consider the "irrational or bizarre” nature of the incident (see, 1 CJI[NY], PL 30.05, at 830). County Court reasoned that such an instruction in the circumstances of this case would be tantamount to telling the jury that the crime was in fact irrational or bizarre, a matter about which the defense and prosecution sharply differed. The court, not required to charge verbatim from Pattern Jury Instructions, appropriately interpreted the guidelines in the Criminal Jury Instructions (New York) which urge that such statements be made only if relevant. The instructions given in no way fall short of the requirements of CPL 300.10 (2) or deprived defendant of a fair trial (see, People v Saunders, 64 NY2d 665, 667).
Finally, County Court did not err by imposing the rape sentence consecutive to the concurrent murder sentences for the rape and strangulation of the victim were the result of separate and distinct crimes (see, People v Truesdell, 122 AD2d 444, 446, affd 70 NY2d 809; People v Williams, 114 AD2d 683, 685).
Judgment affirmed. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur.
22 NYCRR 820.15 has since been supplanted by 22 NYCRR 128.9 (b). | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903499/ | Order, Supreme Court, Bronx County (Michael A. Gross, J.), entered on or about April 12, 2011, which, upon a jury verdict that respondent suffers from a mental abnormality, determined that respondent is a dangerous sex offender requiring confinement, unanimously affirmed, without costs.
The jury’s verdict that respondent suffers from a mental abnormality (see Mental Hygiene Law § 10.03 [i]) was not against the weight of the evidence. The expert testimony offered by the State constituted clear and convincing evidence that at the time of trial, respondent suffered from a disorder called frotteurism, which resulted in his having serious difficulty controlling his conduct. The expert’s conclusion was properly based not only on respondent’s convictions of three counts of sexual abuse in 1986 and one count of sexual assault in the first degree in 2003, but also on documents, reports, evaluations and other information spanning the years from his first offense through his incarceration. The absence of proof that he was accused or convicted of similar crimes between the time of his 1986 offenses and the time of his 2003 offense, or in the years between the 2003 offense and the trial, need not be treated as negating or disproving the diagnosis. Concur—Tom, J.E, Saxe, Moskowitz, Abdus-Salaam and Gische, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903500/ | Casey, J.
Appeal from a judgment of the County Court of Broome County (Monserrate, J.), rendered June 29, 1984, upon a verdict convicting defendant of the crimes of rape in the first degree (two counts), attempted sodomy in the first degree and criminal trespass in the second degree.
At about 5:00 a.m. on March 10, 1984, the victim was awakened by defendant’s hand being placed over her mouth. The victim was then in her own bedroom in an apartment which she shared with a girlfriend, the girlfriend’s brother and his three children. Defendant had also been staying at the apartment for several days prior to this incident. When she awoke, the victim tried to pull defendant’s hand away from her mouth, and when she attempted to scream, defendant told her he would hurt her if she did. Defendant ordered her to remove her pajamas. In an attempt to deter him, the victim stated that she had "an infection”, but defendant continued to undress and committed an act of sexual intercourse. The victim was then permitted to put her pajamas back on and defendant sat on the edge of her bed talking to her for 15 to 30 minutes. Once again, she was ordered to remove her pajamas and was told not to scream under a threat of death. She was then sodomized and raped a second time. Some discussion ensued as to the victim’s intent to report the incident and defendant then left her room. The victim climbed out of her bedroom window and subsequently reported the incident to the police.
Later that evening, defendant voluntarily contacted the police and went to the police station, where he was placed in an interview room and given Miranda warnings. Defendant signed a statement waiving his right to counsel and agreed to talk to the police about the victim’s complaint. Although defendant admitted the sexual intercourse, he claimed that the victim consented. At this point, the police officer informed defendant that the intercourse could not have been consensual since the victim was a lesbian and would not have consented. The police admit that this statement was a ploy and that they had no knowledge of the victim’s sexual proclivity in that regard. Defendant then changed his story and admitted that the act occurred without the victim’s consent. Defendant’s statement was typed and signed by him, and he was arrested and jailed. Since the statement contained no mention of an act of sodomy, Miranda warnings were readministered the following day and defendant admitted that an act of sodomy *771had occurred. This subsequent statement was then reduced to writing. Defendant was indicted on two counts of rape in the first degree, one count of sodomy in the first degree and one count of burglary in the second degree. Following a jury trial, he was convicted of both counts of rape in the first degree, attempted sodomy in the first degree and criminal trespass in the second degree.
On this appeal, defendant initially complains of undue restrictions placed on his cross-examination of the victim. County Court denied defendant’s motion to permit cross-examination of the victim about two prior separate incidents of rape within 15 months preceding the instant crimes. Defendant contends that CPL 60.42 does not apply to the proposed cross-examination since prior claims of rape do not constitute evidence of the victim’s own sexual conduct. Although prior alleged rape complaints do not fall “within the proscriptive scope of CPL 60.42”, it is not an abuse of discretion for a trial court to restrict cross-examination on that basis (People v Mandel, 48 NY2d 952, 954, cert denied 446 US 949; see, People v Boyd, 122 AD2d 273, 275). This is especially true where, as here, the party seeking to introduce such evidence has no basis for believing that the prior complaints were false (see, People v Mandel, supra, at 953). In the circumstances, we see no abuse of County Court’s discretion in so limiting the victim’s cross-examination (see, People v Rockwell, 97 AD2d 853, 854).
Next, defendant contends that he never effectively waived his Miranda rights. It appears that defendant not only read the forms containing the warnings, but that they were read aloud to defendant by police and defendant was asked if it was his choice to forego his rights. Defendant indicated that he understood his rights and waived them. If the immediate meaning of the warnings has been presented in a fashion understandable to a particular individual, an effective waiver may be made (see, People v Millington, 134 AD2d 645). Defendant’s prior experiences with the law may be considered on this issue (see generally, People v Williams, 62 NY2d 285, 289). The record supports County Court’s finding on this issue.
We also agree with County Court that the ploy used by the police did not render defendant’s confession involuntary. The tactic used was not so unfair or deceptive as to deny defendant due process (cf., People v Anderson, 42 NY2d 35), nor was it accompanied by threats, violence or promises (see, Brady v United States, 397 US 742, 753).
Finally, the evidence adduced at trial by the prosecution, *772which was credited by the jury, is legally sufficient to support the jury’s verdict (see, People v Contes, 60 NY2d 620, 621). Accordingly, the judgment of conviction should be affirmed.
Judgment affirmed. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903501/ | — Yesawich, Jr., J.
Appeal from an order of the County Court of Albany County (Turner, Jr., J.), entered June 2, 1986, which granted petitioner’s application, in a proceeding pursuant to RPAPL article 7, to, inter alia, remove respondent from possession of certain real property.
This matter is before us after having been remitted to County Court to determine what transpired on May 1, 1986, the return date of petitioner’s petition (see, 131 AD2d 951). While it is unclear from the "so-called” reconstruction hearing what actually occurred, no one contends that respondent affirmatively waived the trial she was entitled to have on the return day (see, RPAPL 745). County Court was under the impression that the matter was being submitted on the pleadings because the court calendar contained the notation "PAPERS”. Apparently, this was not confirmed with respondent. Petitioner claims he requested the opportunity to submit reply affidavits. County Court recorded on the calendar "Reply on or before 8 May” and marked the case submitted.
However, neither a reply affidavit nor a reply pleading is contemplated by the statutes providing for summary proceedings, which must be strictly construed (see, Cotignola v Lieber, 34 AD2d 700, 701; see also, 5 Warren’s Weed, New York Real Property, Summary Proceedings, § 1.04 [4th ed]). If petitioner’s request was to amend his pleadings and thereby avert a trial by showing that no issue of fact existed, a return date for respondent’s amended answer and a trial, in the event the pleadings left a material issue of fact unresolved, should have been set within 10 days of the original return date (RPAPL 745). If, as is more likely considering the affidavits submitted, petitioner sought to resolve the matter by summary judgment, a return date for respondent’s opposing papers should have been set, coincident with the date of the adjourned trial (see, CPLR 406, 3212; see generally, Siegel, NY Prac § 577, at 812). In either event, although it was unwise for respondent to ignore petitioner’s affidavits (for the appeals this litigation has generated could have been avoided by prompt inquiry as to their procedural status), the fact remains that respondent was *773not made aware of when or in what form to respond to those affidavits. Since the function of petitioner’s reply affidavits is ambiguous and we find no basis in the record to conclude that respondent waived the trial to which she was entitled on May 1, 1986, the aim of this summary proceeding statute—an adjudication to be made on the return day of the petition—can best be served by remitting the matter for trial. That respondent has since evidently vacated the subject premises does not obviate the need for a trial, for petitioner was awarded money damages as well as possession.
Order modified, on the law, without costs, by reversing so much thereof as granted petitioner judgment in the amount of $3,150, with interest thereon; matter remitted to the County Court of Albany County for trial; and, as so modified, affirmed. Weiss, J. P., Mikoll, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903503/ | Harvey, J.
Appeal from a judgment of the Supreme Court (Ellison, J.), rendered March 23, 1987 in Tompkins County, which sentenced defendant upon his adjudication as a youthful offender.
At approximately 5:00 a.m. on November 24, 1985, Michael Unger, a student at Cornell University, was getting ready to go to sleep when an individual entered his room. The individual was about six feet from Unger. A hall light allowed Unger to see most of the individual’s face. As the individual took a bag from the desk of Unger’s roommate, Unger spoke to the individual, who then claimed he was in the wrong room and exited with the bag. Shortly thereafter, Unger saw the same individual reenter the room and take another bag containing property of Unger’s roommate. Unger immediately called the college security police. At that time, Unger gave a description of the perpetrator to the police. While on the phone to the police, Unger saw the perpetrator a third time as he passed by Unger’s window. While Unger was riding with police in a search for the perpetrator, he heard over the car’s radio that a suspect had been picked up. Unger was then brought to police headquarters where he identified defendant as the individual who had entered his room.
Defendant was subsequently charged with burglary in the second degree. Defendant moved to suppress the identification evidence. Supreme Court ruled that the showup identification of defendant was obtained through unduly suggestive means and was thus inadmissible. The court further ruled that Unger had sufficient independent knowledge of the perpetra*774tor’s appearance to allow him to make an in-court identification. The matter moved to trial and, at the close of defendant’s case, defense counsel requested Supreme Court to give an expanded charge to the jury as to identification. The court denied the request. The jury returned a verdict of guilty. Subsequently, defendant was afforded youthful offender status and sentenced to five years’ probation. This appeal ensued.
Defendant contends that Supreme Court’s refusal to give the expansive identification instruction constituted reversible error. Where, as here, identification is a major issue, it is the preferable practice for the court to give a more detailed identification charge (see, People v Whalen, 59 NY2d 273, 279; People v Allah, 126 AD2d 778, 781, lv denied 69 NY2d 876). However, if the court’s charge informs the jury that identification must be proven beyond a reasonable doubt and instructs them as to the weighing of witnesses’ credibility, it has met the minimal requirements (see, People v Whalen, supra, at 279). Here, Supreme Court instructed the jury that the burden of proof beyond a reasonable doubt was upon the prosecution and that it never shifted. The court further stated that the prosecution had the burden of proving all of the elements of the crime. The jurors were informed of the law requiring the weighing of witnesses’ testimony. We conclude that the charge, while less than ideal, was sufficient.
Defendant also seeks reversal upon the ground that Supreme Court allegedly erred in ruling that Unger could make an in-court identification of defendant, despite the defective showup identification, since his observation of defendant at the commission of the crime gave him an independent source of identification. An in-court identification is not precluded by an unlawful procedure so long as there is clear and convincing evidence that the in-court identification derives from an independent basis which preceded the unlawful procedure (see, United States v Wade, 388 US 218, 240-241; see also, United States v Crews, 445 US 463, 471; People v Pleasant, 54 NY2d 972, 973, cert denied 455 US 924). Factors to be considered in evaluating the likelihood of misidentification include the prior opportunity to view the criminal act, the witness’s degree of attention, the accuracy of prior descriptions and the level of certainty demonstrated by the witness (see, Neil v Biggers, 409 US 188, 199). Here, Unger saw the perpetrator three times, twice at a close distance. While the lighting was not ideal, Unger stated that the perpetrator’s face was turned in such a way that he could see most of it in a hallway light. Unger correctly described articles of clothing that the perpetrator *775was wearing and certain of his physical characteristics. He further opined that he would have been able to identify defendant as the perpetrator even if he had not seen him at the showup identification. We conclude that Supreme Court’s determination that an independent basis existed for the in-court identification was not erroneous.
Judgment affirmed. Mahoney, P. J., Weiss, Yesawich, Jr., Levine and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903504/ | — Yesawich, Jr., J.
Appeal (transferred to this court by order of the Appellate Division, Fourth Department) from an order of the Supreme Court (Swartwood, J.), entered January 15, 1987 in Cayuga County, which (1) granted defendant Sharon Marcus’ motion to amend her answer in action No. 1, and (2) granted defendants’ motion for a joint trial of actions Nos. 1, 2 and 3.
Plaintiff alleges that his landlord, Patricia A. Marcus (hereinafter decedent), stabbed him on July 11, 1981. In action No. 1, plaintiff sets forth assault and battery causes of action against decedent.1 Action No. 2 advances causes of action against decedent for breach of contract and breach of the warranty of habitability. Plaintiff asserts in action No. 3, inter alia, that Stanley T. Marcus repeatedly harassed plaintiff, inflicting emotional distress, and assaulted him on August 9, 1981, further aggravating plaintiff’s injuries. When this matter was last before this court (121 AD2d 774), plaintiff’s motion for summary judgment against decedent was denied based upon decedent’s unpleaded defense that she acted in self-defense. We noted the availability of a CPLR 3025 (b) motion for leave to amend the answer, after which and in addition to such a motion by decedent in action No. 1, defendants moved to consolidate the three actions. Supreme Court, Tompkins County, where all these actions are venued, granted decedent leave to amend the answer and ordered a joint trial. The order entered thereon was filed in Tompkins County. Thereafter, plaintiff filed a certified copy of the order and a notice of appeal in Cayuga County, where he ostensibly *776had a motion pending for a change of venue and consolidation, and appealed to the Appellate Division, Fourth Department, which transferred the appeal to this court.
Although a notice of appeal has not been filed in the office where the order of the court of original instance was entered (viz., Supreme Court, Tompkins County), as required by CPLR 5515 (1), defendants do not contend that service of the notice of appeal upon them was untimely. Given plaintiff’s pro se status and the fact that he presumably believed he could satisfy CPLR 5515 (1) by filing his notice of appeal in Cayuga County, we find this error understandable and grant an extension of time to enable plaintiff to cure his mistake (see, CPLR 5520 [a]) and, in the interest of justice and judicial economy, address the merits2 (see, CPLR 5520 [c]; National Bank v Kory, 63 AD2d 579, 580, lv denied 45 NY2d 712).
Plaintiff argues that allowing decedent leave to amend the answer in action No. 1 to affirmatively assert the self-defense claim some four years after commencement of the action is unduly prejudicial to him (see, Pegno Constr. Corp. v City of New York, 95 AD2d 655, 656). He notes that a key witness, decedent, who apparently died in mid-1983, could have been deposed on this issue had this defense been raised in a timely manner, that decedent’s estate obtained a protective order preventing disclosure of decedent’s medical records, and that additional discovery, entailing more expense, will now be required.
While lateness, without more, does not impede pleading amendments (see, Sheppard v Smith Well Drilling & Water Sys., 102 AD2d 919), the unavailability of a material witness can indeed weigh heavily against permitting leave to amend. However, the purpose of liberal pleading rules is to ensure an adjudication on the merits rather than sacrifice a meritorious claim or defense to the vagaries of form (see, Siegel, NY Prac § 207, at 244-245). Self-defense is an affirmative defense and, hence, the burden of proof on this issue is upon decedent’s estate. Furthermore, the record before us indicates that the death of decedent leaves plaintiff as the only eyewitness to the stabbing incident who can establish the truth or falsity of this defense. Under these circumstances, plaintiff is not unduly prejudiced by the amendment of the answer to include self-defense. Rather than militate against allowing the amendment, plaintiff’s aborted desire to secure purportedly relevant *777medical records of decedent (Carp v Marcus, 116 AD2d 854) may have merit, for his request for information once deemed inappropriate may now be appropriate because of decedent’s self-defense theory.
Further discovery, without more, does not justify denial of the motion (see, Smith v Industrial Leasing Corp., 124 AD2d 413, 414). On the other hand, interposition of an affirmative defense at this late date should not result in further expense to plaintiff. Under the circumstances, we consider it just to condition granting leave to amend upon the proviso that defendant bear such reasonable additional discovery expenses as plaintiff may incur, directed solely to the issue of self-defense, to the extent of $250 (see, Smith v Industrial Leasing Corp., supra; Mirabella v Banco Indus., 34 AD2d 630).
Finally, plaintiff’s opposition to a joint trial is meritless. Not only has plaintiff failed to show how he would be prejudiced by a joint trial or the interrelated actions (see, Fashion Tanning Co. v D’Errico & Farhart Agency, 105 AD2d 1034, 1035), he himself moved to have them consolidated in June 1986.
Order modified, on the facts, without costs (1) upon the condition that plaintiff file the notice of appeal with Supreme Court, Tompkins County, within 10 days after entry of the order to be entered upon this court’s decision, and (2) so as to provide that leave, granted to defendant Sharon Marcus, as administratrix of the estate of Patricia Ann Marcus, to serve the amended answer is granted upon condition that said defendant agrees to bear the reasonable expense of further discovery occasioned by the amendment, not to exceed $250, and, as so modified, affirmed. Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur.
. Action No. 1 has been dismissed against Stanley T. Marcus.
. Issue was joined in this matter over 4½ years ago and has resulted in six prior appeals to this court. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1362852/ | 686 F. Supp. 522 (1988)
Daniel Arroyo CINTRON
v.
Otis R. BOWEN.
Civ. A. No. 87-4956.
United States District Court, E.D. Pennsylvania.
May 26, 1988.
*523 Thomas D. Sutton, Community Legal Services, Inc., Philadelphia, Pa., for plaintiff.
Richard J. Stout, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
MEMORANDUM
LUDWIG, District Judge.
Plaintiff applied for disability insurance benefits and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act (R. 147-160). The applications were deniedinitially and on reconsideration by the Office of Disability Operations of the Social Security Administration (R. 205-210). The case was reviewed de novo by an Administrative Law Judge (ALJ), and a supplemental hearing was held. The ALJ's decision, dated April 28, 1987, denied the application. On July 20, 1987 the Appeals Council denied a request for review. This appeal followed, 42 U.S.C. §§ 405(g) and 1383(c)(3), for review of the decision of the Secretary of Health and Human Services (Secretary). Both plaintiff and defendant move for summary judgment.
Plaintiff's claims are based on both physical and mental impairments. Plaintiff is alleged to have pain and cramps in his leg upon prolonged periods of walking or standing. He was diagnosed as having osteoarthritis of the right ankle, resulting from a poorly healed fracture in 1980 (R. 278-279).
Associated with a long history of alcohol abuse, plaintiff, age 40, has been diagnosed repeatedly as having organic brain syndrome (R. 262) and a schizotypal personality disorder (R. 293).[1] His full-scale IQ is 73, which places him in the fifth percentile of adult population, the lowest limit of borderline functioning (R. 309-319).
His conditions have been marked by auditory hallucinations, incoherent thought, poor concentration, limited insight and paranoid thinking (R. 15-16). Medical and psychological reports suggest that plaintiff has difficulty keeping schedules or adapting to changes (R. 275-317). Plaintiff testified that he has been fired for physically fighting with supervisors or co-workers. One psychologist found plaintiff to be capable of understanding simple instructions and, if motivated, working within a given schedule.
Plaintiff asserts that his mental impairment renders him disabled as a matter of law. Under the Secretary's regulations, if an impairment meets or equals a listed impairment in Appendix 1, a claimant is disabled without regard to age, education or work experience. 20 C.F.R. § 404.1520(d) (1987). Plaintiff's mental impairment appears to fit within the listing of personality disorders.
12.08 Personality Disorders: A personality disorder exists when personality traits are inflexible and maladaptive and cause either significant impairment in social or occupational functioning or subjective distress. Characteristic features are typical of the individual's long-term functioning and are not limited to discrete episodes of illness.
The required level of severity for these disorders is met when the requirements in both A and B are satisfied.
*524 A. Deeply ingrained, maladaptive patterns of behavior associated with one of the following:
1. Seclusiveness or autistic thinking; or
2. Pathologically inappropriate suspiciousness or hostility; or
3. Oddities of thought, perception, speech and behavior; or
4. Persistent disturbances of mood or affect; or
5. Pathological dependence, passivity, or aggressivity; or
6. Intense and unstable interpersonal relationships and impulsive and damaging behavior; AND
B. Resulting in three of the following:
1. Marked restriction of activities in daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
20 C.F.R. § 4.04.1598 Subpart P listing 12.08 (Appendix 1).
The ALJ found that plaintiff's condition satisfied part "A" but not part "B"; further, that plaintiff was unable to perform his past work, 20 C.F.R. § 404.1520(c), but was not precluded from engaging in substantial gainful employment in the future, 20 C.F.R. § 404.1520(f); and, therefore, that plaintiff was not "under a disability," as defined by the Social Security Act (R. 21).
For a reviewing court, the scope of review is statutorily limited. 42 U.S.C. § 405(g). "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...." Id. See also Richardson v. Perales, 402 U.S. 389, 390, 91 S. Ct. 1420, 1422, 28 L. Ed. 2d 842 (1971). Substantial evidence has been defined by the Supreme Court as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 401, 91 S. Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). The decision of the Secretary must stand unless not based on substantial evidence.
The finding that claimant did not satisfy the part "B" requirements of the applicable listing does not appear to have been based on substantial evidence. The decision is not self-sufficient. The ALJ determined that the claimant did not exhibit "marked difficulties in maintaining social functioning." At first, the decision noted that the claimant provided no evidence corroborating his testimony regarding frequent firings as the result of altercations. Then, it stated that social functioning does not relate to whether a person has friends or not, but to the capacity "to interact appropriately and communicate effectively with other individuals" (R. 20). This may be so. The regulations, however, specify that social functioning "includes the ability to get along with others," and that altercations or firings may show difficulties in social functioning. 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(C)(2). The evidence of marked or serious interference with social functioning should be re-evaluated and, if necessary, supplemented.
Since the claimant's clinical history, diagnoses, and record of altercations and firings may be critical, the ALJ has an evidentiary duty. Ferguson v. Schweiker, 765 F.2d 31, 36 (3d Cir.1985). If the ALJ believes claimant's evidence was unclear or inclusive, the ALJ should secure evidence needed to make this determination. Id.
The ALJ's further evaluation that the claimant exhibited no "deficiencies of concentration, persistence, or pace and no episodes of deterioration or decompensation in a work or work-like setting" (R. 19), also seems at odds with the evidence. Both the psychiatrist and the psychologist questioned *525 claimant's ability to function in the workplace, as did the assessment made by the Charles Drew Mental Health Center (R. 285).
Even if the Secretary determines that the claimant does not meet or equal a listed impairment, the claimant may still recover if he is unable to perform "substantial gainful employment" as exists in sustantial numbers in the national economy. 20 C.F.R. 404.1520(f).
Both parties have certain evidentiary burdens. The claimant bears the initial burden of demonstrating by medical evidence his inability to return to his former occupation. See, e.g., Ferguson, 765 F.2d at 36; Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir.1979). If the claimant meets this burden, the burden shifts to the Secretary to show the existence of substantial gainful employment that the claimant has the capacity to perform. Id. at 406. The burden upon the Secretary is not one of persuasion, but of producing substantial evidence of "substantial gainful employment." Id.
Plaintiff has met his burden. He was a shipper-stacker, a position that required continual standing and walking, and lifting up to 35 pounds. The ALJ found that plaintiff's physical impairments would preclude constant walking or lifting more than 20 pounds at a time and that plaintiff is "unable to perform his past relevant work" (R. 21).
The ALJ appears to have relied on the testimony of a vocational expert in concluding that plaintiff is able to perform the duties of an office cleaner or a security alarm monitor or to engage in some manufacturing jobs of a sedentary nature (R. 18-21). In turn, the vocational expert's opinion was predicated on his belief that plaintiff could perform light work (R. 133-137). By definition, light work may entail a "good deal of walking or standing." 20 C.F.R. § 404.1567(b) (1987). A person doing light work could be required to walk or stand frequently and for extended periods of time. Office cleaning, for example, is not a sedentary job. A security alarm monitor may be required to be on his feet in times of emergency. The ALJ did not specifically determine whether plaintiff's impairments precluded such activities. By implication, the finding that plaintiff had the "exertional capacity" to perform certain "sedentary and/or light work" suggests that the evidence of inability to walk or stand for more than minimal periods was accorded little weight. If so, the reasoning should be explained.
So, also, the evidence of mental impairment, while recognized, appears to have been minimized. The vocational expert does not appear to have been fully informed of these limitations and, therefore, could not consider the effect of them on plaintiff's employability.
In light of these apparent deficits in the testimony of the vocational expert, the Secretary cannot be said to have met the burden of producing evidence that plaintiff could perform an alternative job that exists in substantial numbers in the national economy. Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir.1984).
The claim will be remanded for proceedings consistent with this memorandum. Summary judgment does not appear to be justified for either party.
NOTES
[1] Schizotypal personality disorder is characterized by "oddities of thought, perception, speed, and behavior [which] cause either significant impairment in social or occupational function or subjective distress." Diagnostic and Statistical Manual of Mental Disorders, 3d Edition (DSM-III). Plaintiff also lost a job as a painter because of intoxicating himself on inhalants. There is some evidence of drug abuse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/5903597/ | Judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered August 16, 2011, upon a jury verdict, in plaintiffs’ favor, unanimously affirmed, without costs. Order, same court and Justice, entered January 10, 2012, which denied defendants’ motion to set aside the verdict or order a new trial, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Although the court should have given a proximate cause charge, defendants failed to preserve their argument that the trial court erred in declining to charge the jury on proximate cause and to include a jury interrogatory whether the accident was a substantial factor in causing plaintiffs’ injuries, since they neither raised a contemporaneous objection to the court’s denial of their requests therefor nor articulated a cognizable objection after the charge was given (see CPLR 4110-b; Kroupova v Hill, 242 AD2d 218, 220 [1st Dept 1997], lv dismissed in part, *530denied in part 92 NY2d 1013 [1998]). Concur—Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903598/ | Mercure, J.
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which partially sustained sales and use tax assessments imposed under Tax Law articles 28 and 29.
Petitioner is a general building contractor involved in the construction and renovation of buildings and additions. The Audit Division of the Department of Taxation and Finance conducted a field audit to determine petitioner’s liability for sales and use taxes on items purchased by it in connection with its activities for the period December 1, 1972 through August 31, 1978. Because of a lack of cooperation by petitioner and its bookkeeper, and their failure to provide invoices and certificates to substantiate that taxes had been paid or that purchases were exempt from sales and use taxation, the auditor selected three allegedly representative capital improvement projects as a test sample, performed complete audits of them and applied the results to all projects undertaken by petitioner during the audit period. The audit resulted in notices of additional tax, penalty and interest of *910$340,892.78 for the period December 1, 1972 through May 31, 1976, and $345,370.39 for the period June 1, 1976 through August 31, 1978, for a total assessment of $686,263.17.
Petitioner filed a petition for revision of the determination. At the hearing before respondent, petitioner specifically challenged the auditor’s determinations as to the tax to be imposed on purchases of temporary lighting, certain items alleged to have been purchased for resale or furnished to a tax-exempt entity, debris removal, and steel furnished under two particular contracts. Respondent credited petitioner’s contentions with respect to the tax on sums paid for debris removal and steel purchases and reduced the assessment accordingly. The balance of the assessment was sustained, primarily due to petitioner’s failure to supply needed invoices and certificates, despite the fact that the proceedings had been adjourned for over 60 days for the express purpose of permitting petitioner to obtain necessary documentation. By stipulation of the parties, the portion of the assessment attributable to temporary lighting was eliminated as well and shall not, accordingly, be considered.
In this proceeding, petitioner for the first time raises a challenge to the test audit, to the three job samples used and to the method employed to arrive at taxable purchases for the entire audit period. As quite properly argued by respondent, this contention has not been preserved for our consideration. Notwithstanding petitioner’s assertion to the contrary, the record is devoid of any legitimate challenge to the methodology used in conducting the audit. The allegation of the perfected petition assigning error to "[t]he auditor for New York State applying a percentage of what he considered taxable sales and/or purchases arrived at during the tested months to all materials” is not sufficiently particular to put respondent on notice of any claimed defect in the audit method since the allegation could be interpreted as merely taking exception to the findings of the auditor as to taxable sales or purchases and nothing else. Tax regulation 20 NYCRR 601.3 (a) requires that a petition for redetermination state in sufficient detail the action of the audit bureau that petitioner is protesting. More significantly, the testimony of the auditor that he "had spoken to [petitioner’s certified public accountant] about the jobs that [they] were talking about as being representative, and [the accountant] said there was no problem; they were representative” was neither challenged nor controverted at the hearing (see, Matter of Surface Line Operators Fraternal Org. v Tully, 85 AD2d 858, 859). Similarly, petitioner’s present claim that *911the auditor erred in his treatment of payments to National Vertical Blind Company, Monning Steel Partition Company, Arthur Post Company, Cord Contracting Company, Aldo Welding Service and Ardee Floor Coverings was not raised before respondent.
As a general rule, objections not raised at the hearing or board level may not be raised for the first time in the application for judicial review (see, Matter of Consolidated Edison Co. v State Bd. of Equalization & Assessment, 60 AD2d 356, 359, lv denied 45 NY2d 706). Our holdings in Matter of Kennedy & Co. v Chu (125 AD2d 773, 774), Matter of Hard Face Welding & Mach. Co. v State Tax Commn. (81 AD2d 967, 968) and Names in the News v New York State Tax Commn. (75 AD2d 145) do not compel a contrary result. In each of those cases, all necessary books and records were available to the auditor. Therefore, the issue considered by the court was not whether the test audits were conducted properly but, rather, whether a test audit could be conducted at all (see, Tax Law § 1138 [a] [1]; Matter of Kennedy & Co. v Chu, supra). Here, petitioner’s own accountant candidly acknowledged the failure to provide needed invoices and certificates.
Even if we were to find that petitioner had not waived its right to challenge the propriety of the test audit, the result would be no different as petitioner has failed to meet its burden of establishing by clear and convincing evidence that the method of audit or the amount of the tax assessed was erroneous (see, Matter of S. H. B. Super Mkts. v Chu, 135 AD2d 1048; Matter of Surface Line Operators Fraternal Org. v Tully, supra, at 859). In the face of such an "imponderable mess” as this (see, Matter of Meyer v State Tax Commn., 61 AD2d 223, 227, lv denied 44 NY2d 645), respondent was free to fashion a method reasonably calculated to reflect the taxes due (see, Matter of Grant Co. v Joseph, 2 NY2d 196, 206, cert denied 355 US 869).
The argument that respondent’s rejection of portions of the audit and corresponding reduction of the assessment requires a finding that the entire audit was flawed is not persuasive. These reductions do not serve to show that the entire process was affected by error. Petitioner retains the burden of showing that the deficiencies assessed were erroneous (see, Matter of Grecian Sq. v New York State Tax Commn., 119 AD2d 948). The contentions that the test jobs were not sufficiently representative of petitioner’s work during the audit period and that the over-all methodology was flawed lack support in the record. Moreover, even if we were to find that petitioner had *912not waived its claims for exemption, it is petitioner’s burden to substantiate the exemptions it claims from taxation (Tax Law § 1132 [c]; Matter of McCluskey’s Steak House v State Tax Commn., 80 AD2d 713). Petitioner could not be credited for the few exemption certificates it produced at the hearing because they could not be connected to a specific purchase for a specific job. Additionally, petitioner has not substantiated its specific exemption claims regarding vertical blinds, as it never produced the purchase invoice showing the tax paid (see, Tax Law § 1132). Its exemption claim regarding welding is unsubstantiated, since the bill shows the work performed to have constituted a repair subject to tax (see, Tax Law § 1105 [c] [5]) rather than a capital improvement. Also unsubstantiated is petitioner’s exemption claim regarding partitions, as it is not clear whether the partitions are easily removed without damage and, hence, taxable (see, Tax Law § 1101 [b] [9] [ii]). Last, the record does not support the claim that the Hearing Officer wrongfully rejected petitioner’s offer of proof. The subject material, described by petitioner’s representative as the "entire file”, was not identified and was never offered in evidence.
The remaining contentions of petitioner have been considered and found meritless.
Determination confirmed, and petition dismissed, without costs. Mahoney, P. J., Kane, Weiss and Mercure, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903505/ | Weiss, J.
Appeal from a judgment of the Supreme Court (Doran, J.), entered March 6, 1987 in Albany County, directing a distribution of the sale proceeds of the parties’ former marital residence upon a decision of the court, without a jury.
*778In this partition action, the parties stipulated to a sale of the property and, after a nonjury trial, Supreme Court directed an equal division of the net proceeds, with a credit to plaintiff of $14,889.89, representing one half her excess expenditures as a cotenant, less credit for rent received. The sole issue presented on this appeal concerns the formula utilized by the court in distributing the proceeds of sale. Plaintiff maintains that the court erred in ordering a deduction of the credit from the sale proceeds before dividing the net proceeds between the parties. Plaintiff contends that the appropriate formula is to adjust for the credit after the division of the net proceeds. The argument is well taken.
By virtue of Supreme Court’s directive, plaintiff would effectively receive a quarter of her approved expenses and not the 50% credit to which she is entitled. Accordingly, the judgment should be modified to direct an adjustment for the credit after the net proceeds are divided. In this manner, the credit will properly be charged against defendant’s share of the sale proceeds (see, Worthing v Cossar, 93 AD2d 515, 520; Doyle v Hamm, 52 AD2d 899).
Judgment modified, on the law, without costs, by providing for an adjustment of the credit after the net proceeds are equally divided, and, as so modified, affirmed. Kane, J. P., Weiss, Yesawich, Jr., arid Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903506/ | Appeal from a judgment of the County Court of Albany County (Turner, Jr., J.), rendered April 10, 1987, which revoked defendant’s probation and imposed a sentence of imprisonment. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903507/ | Appeal dismissed. (See, People v Lester, 137 AD2d 871.) Mahoney, P. J., Casey, Yesawich, Jr., and Harvey, JJ., concur. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903509/ | Weiss, J.
Appeal from an order of the Supreme Court (Williams, J.), entered May 22, 1987 in Sullivan County, which granted a motion by various defendants for summary judgment dismissing the complaint against them.
Plaintiff commenced this action pursuant to RPAPL article 15 seeking to clarify title to certain property in the Town of Thompson, Sullivan County, and to confirm an easement through an adjoining parcel. Two main properties are involved in this dispute. The first was obtained by plaintiff’s predecessors in title, defendants Philip Kahaner, Gertrude Seidner and Sylvia Katz (hereinafter collectively referred to as Kahaner) by two deeds in 1962 and 1970, respectively, and is described in schedule D annexed to the complaint. The second property, which abutted Kahaner’s property, was owned by defendant Nathan Greenberg until 1977.
The essence of plaintiff’s claim is that in 1977 Kahaner settled a boundary line dispute with Greenberg, through an agreement which reduced Greenberg’s parcel by about four *779acres and ostensibly allotted Greenberg access rights to Route 42, a State highway bordering both main properties. Thereafter, by deed dated July 21, 1977, Kahaner conveyed two separately identified parcels of land, as described in schedule C of the complaint, to defendants Sol Zolchonock, Irving Golstein and Irving Cohen (hereinafter collectively referred to as Zolchonock), while ostensibly retaining a permanent easement and right-of-way. By deed dated July 28, 1977 and recorded simultaneously with the Kahaner deed, Greenberg transferred his entire parcel, consisting of approximately 18.2 acres, to Zolchonock. Significantly, the first parcel described in schedule C, deeded by bargain and sale, included an area overlapping the land transferred by Greenberg. The second parcel described in schedule C, deeded by quitclaim, was completely included in the area transferred by Greenberg. A third area, triangular in shape and bordered by Route 42, a brook and Greenberg’s southern property line, was not included in Kahaner’s deed to Zolchonock but was deeded to Zolchonock by Greenberg. Kahaner’s asserted interests in the overlap areas were purportedly obtained by virtue of the boundary line agreement.
In 1983, Zolchonock conveyed all of its premises to defendants Lawrence E. Lagarenne and Jack S. Ingber, incorporating the language utilized in the 1977 deed from Kahaner to Zolchonock. Thereafter, Lagarenne and Ingber conveyed a portion of the disputed premises to defendant McDonald’s Corporation (as described in schedule A of the complaint) and transferred a partial interest to defendants Harold Gold and Raymond Gold (as described in schedule B of the complaint). In the meantime, Kahaner deeded the property set forth in schedule D, less the interest conveyed to Zolchonock in 1977, to plaintiff in 1984. Following the commencement of this action, a motion by Lagarenne, Ingber and the Golds (hereinafter collectively referred to as defendants) for summary judgment dismissing the complaint against them was granted, and Supreme Court further declared that plaintiff held neither an ownership interest nor easement rights in the property of defendants or McDonald’s. This appeal by plaintiff ensued.
We affirm. Plaintiff essentially maintains that it owns the triangular parcel previously described and enjoys an easement through the schedule C parcels conveyed by Kahaner to Zolchonock in 1977. It is evident that plaintiff’s rights in the overlap areas in issue necessarily depend on the validity of the purported boundary line agreement. As a general rule, an *780oral agreement to transfer an interest in real property is unenforceable under the Statute of Frauds (see, General Obligations Law § 5-703 [1]; Jonestown Place Corp. v 153 W. 33rd St. Corp., 53 NY2d 847, 849). The purported boundary line agreement between Kahaner and Greenberg was not reduced to writing. Nonetheless, plaintiff maintains that the 1977 deed from Kahaner to Zolchonock, utilizing a "proposed common boundary line, by agreement between Greenberg * * * and Kahaner” for description purposes, and a 1976 survey revised by John Galligan indicating an amended boundary line, constitute sufficient memoranda to satisfy the Statute of Frauds. While these documents and the fact of the simultaneous transfer of property to Zolchonock indicate, at the very least, that a boundary line agreement was proposed, the Statute of Frauds bar remains in effect since Greenberg never subscribed any memorandum concerning the transfer of the overlap area (see, Mulford v Borg-Warner Acceptance Corp., 115 AD2d 163, 164; Beck v New York News, 92 AD2d 823, 824-825, affd 61 NY2d 620; see also, Snay v Wood, 50 AD2d 651).
Plaintiff argues, nonetheless, that defendants should be equitably estopped from asserting the Statute of Frauds defense (see, American Bartenders School v 105 Madison Co., 59 NY2d 716, 718). The doctrine of equitable estoppel is designed "to prevent the infliction of unconscionable injury and loss upon one who has relied on the promise of another” (supra, at 718). Plaintiff has failed to demonstrate that its predecessors in title, i.e., Kahaner, detrimentally relied on any oral representations by Greenberg. Plaintiffs assertion that the Kahaner conveyance to Zolchonock would never have been made in the absence of a boundary line agreement simply begs the question of whether Kahaner had any ownership interest to convey. Defendants, in fact, submitted documentary proof via an abstract of title that their title to the overlap area in dispute had seniority over any title claimed by plaintiff or Kahaner because it was deeded out of the common grantor prior to plaintiffs title. In their moving papers, defendants included a letter from a title insurance company certifying that the southern border of the Greenberg parcel, as reflected in the 1983 recertified survey of Galligan, was senior in title to any premises situated to the south, i.e., plaintiffs parcel.* Significantly, the metes and bounds description utilized in the *7811977 Greenberg to Zolchonock deed described the 18.2-acre parcel in its entirety, effectively disregarding the amended boundary line.
Nor has plaintiff demonstrated sufficient part performance so as to remove the oral agreement from the operation of the Statute of Frauds (see, American Bartenders School v 105 Madison Co., supra, at 718; Jonestown Place Corp. v 153 W. 33rd St. Corp., supra, at 849; Beck v New York News, supra at 825). That Zolchonock may have partially constructed a bridge to the triangular parcel in accord with the 1977 Kahaner to Zolchonock deed is not dispositive, for the performance must be that of the suitor, i.e., plaintiff (see, Walter v Hoffman, 267 NY 365, 370). Accordingly, since the Statute of Frauds vitiates the purported boundary line agreement, ownership of the overlap area, including the triangular parcel, passed from Greenberg to Zolchonock and then on to defendants and McDonald’s.
The same analysis defeats plaintiff’s easement claims. The 1977 deed from Kahaner to Zolchonock provided, in part, that Zolchonock "shall simultaneously grant to [Kahaner] a permanent easement and right of way” over the premises being conveyed by Kahaner and simultaneously by Greenberg (emphasis supplied). Since Zolchonock did not sign this deed, an easement by express grant, as anticipated by the language utilized, could not have been created (see, General Obligations Law § 5-703 [1]). Nor could Kahaner create an easement by reservation since, as indicated, Kahaner did not enjoy fee simple title to the overlap area in question (see, 49 NY Jur 2d, Easements, § 38, at 122-123). As with plaintiff’s ownership claims, there has been no showing of part performance or reliance such as to create an easement by estoppel. Finally, the record fails to demonstrate either an easement by prescription or implication (see generally, 49 NY Jur 2d, Easements, §50, at 137-139). Since an alternative access is available to plaintiff’s property, no actual necessity exists to support an implied easement of necessity (see, McQuinn v Tantalo, 41 AD2d 575, lv denied 32 NY2d 610).
In sum, plaintiff failed to raise any triable factual questions precluding the granting of summary judgment dismissing the complaint against defendants and a declaration of ownership rights in favor of defendants and McDonald’s.
Order affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.
An accompanying affidavit from Galligan explained that the amended boundary line and related note were deleted from the 1983 revised survey in view of the clarification of title by the title insurance company. | 01-03-2023 | 01-13-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/5903510/ | Harvey, J.
Appeal from that part of an order of the Supreme Court (Ingraham, J.), entered January 28, 1987 in Broome County, which partially denied defendants’ motion for summary judgment dismissing the complaint.
Plaintiff seeks damages for injuries he suffered in a fire which occurred in October 1982 while he was renting a second-floor apartment in a building purportedly owned by defendants. In his complaint, the sole theory alleged in support of his negligence claim was that defendants failed to provide two means of egress, purportedly in violation of Multiple Residence Law § 55. Defendants subsequently served plaintiff with a demand for a bill of particulars which included a request that plaintiff include a statement of the acts or omissions constituting negligence. In response to the demand, plaintiff claims that defendants:
"a. Failed to provide adequate means of egress * * *
"b. Failed to provide plaintiff a safe premises.
"c. Failed to provide a proper smoke detection system.
"d. Failed to provide adequate fire extinguishing apparatus.”
Following discovery, defendants moved for summary judgment. Relying on Multiple Residence Law § 15, Supreme Court found that defendants had a duty to provide proper smoke detection equipment and that questions of fact existed as to whether defendants had breached this duty. The court further held that it was for the jury to determine whether defendants had acted negligently in locking a back door to plaintiff’s apartment which led to parts of the building which were occupied by persons other than plaintiff. Summary judgment was granted as to the other theories asserted in plaintiff’s bill of particulars in support of his allegation of negligence. Defendants appealed.
Supreme Court’s reliance on Multiple Residence Law § 15 as imposing a duty on defendants to provide proper smoke detection equipment was misplaced. That statute requires owners of multiple dwellings to equip apartments with smoke detectors and it further provides that "the tenant shall keep and maintain any smoke detecting device installed pursuant to this section in good repair and replace any such device which becomes inoperable during his occupancy” (Multiple Residence Law § 15 [2] [a]; [5]). The statute, however, did not become effective until January 1, 1986 (L 1985, ch 683, § 4). The fire in question occurred in October 1982, well before the enactment of the statute. Hence, it was error for Supreme Court to base its denial of summary judgment upon this statute.
*783Plaintiff has asserted other grounds, which were not raised in the papers before Supreme Court, in support of his theory that defendants breached a duty to provide and maintain smoke detection equipment. Plaintiff invites this court to expansively interpret the warranty of habitability codified in Real Property Law § 235-b to include a duty to provide and maintain proper fire detection equipment. We decline the invitation. Neither the case law nor the legislative intent supports the novel extension urged by plaintiff (see, Park W. Mgt. Corp. v Mitchell, 47 NY2d 316, cert denied 444 US 992; Curry v New York City Hous. Auth., 77 AD2d 534, 535-536).
Also raised for the first time on this appeal is plaintiff’s contention that common-law principles support his theory that defendants had a duty to provide and maintain smoke detection equipment. In Dufur v Lavin (101 AD2d 319, 323, affd 65 NY2d 830), this court held that a landlord does not have a common-law duty to provide fire protection devices to his tenants. Similarly, in the absence of an agreement or statutorily imposed duty, there is no common-law duty to equip and maintain fire detection devices. Here, the parties have not alleged any agreement, either oral or written, establishing such a duty.
Plaintiff further contends for the first time on this appeal that defendants voluntarily assumed a duty to maintain the smoke detection device. It is well settled that, even when no duty exists, once a person voluntarily undertakes to act he must do so with due care (see, e.g., Parvi v City of Kingston, 41 NY2d 553, 559). In order for liability to attach to gratuitous conduct, there must be more than merely a showing of a failure to confer a benefit. The plaintiff must establish that he was adversely affected by the defendant’s affirmative action (supra; see, Prosser and Keeton, Torts § 56, at 375 [5th ed]). This showing often entails establishing that he relied to his detriment upon the defendant’s gratuitous conduct (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 522-523; Thompson v Ange, 83 AD2d 193, 197).
Here, the papers submitted by plaintiff in opposition to the motion for summary judgment were insufficient to establish a factual question as to elements of the theory of negligence based upon the purported gratuitous conduct of defendants. As previously mentioned, plaintiff’s complaint did not allege any facts relevant to this theory of negligence. The total allegations with respect to this theory in the bill of particulars is the conclusory statement that defendants "[fjailed to provide a proper smoke detection system”. In his affidavit in *784opposition to the summary judgment motion, this theory is alluded to in only one sentence where plaintiff states that there was one smoke detector located in the back bedroom of the apartment and that he did not hear it go off on the night of the fire. While defendants included portions of the deposition upon oral questions of defendant Betty Moscrip indicating that she had changed the batteries in the smoke detector on one occasion, plaintiff denies that this took place. Thus, even assuming that the batteries were changed, plaintiff clearly did not rely on defendants’ actions. Plaintiff has not alleged how the smoke detector caused or contributed to his injuries. He has not stated whether he ever checked the smoke detector to ascertain whether it was operational at any time during his tenancy. Viewing the evidence in the light most favorable to plaintiff, it is apparent that despite ample opportunities for discovery, he has failed to produce sufficient evidentiary proof in admissible form to produce a triable issue as to this theory of liability (see, Zuckerman v City of New York, 49 NY2d 557; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).
Next, we consider whether defendants’ action in locking the door which led to other portions of the building raised a triable issue. Initially, we note that plaintiff has admitted that the statute relied upon by him in his complaint as imposing a duty to provide two means of egress, i.e., Multiple Residence Law § 55, does not apply to the facts at hand. Nor has plaintiff pointed to a statutory duty applicable at the time and place of the fire, or a common-law duty to provide more than one means of egress. Here, the door which plaintiff contends defendants were negligent in locking had been locked continuously since before plaintiff resided in the apartment. Further, the door did not provide an immediate means of exiting the building but, instead, led to portions of the building occupied by persons other than plaintiff. Supreme Court held that defendants did not obstruct the escape route chosen by plaintiff, and plaintiff has not appealed that determination. Further, plaintiff had access to windows that opened onto the roof of a first-floor porch which could have been used as a means of escape from the building. Accordingly, we conclude that the record fails to establish plaintiff’s assertion that a triable issue exists as to whether the locking of a door which led to another part of the building constituted negligence.
Order modified, on the law, with costs to defendants, by reversing so much thereof as partially denied defendants’ motion; motion granted in its entirety and complaint dis*785missed; and, as so modified, affirmed. Weiss, Harvey and Mercure, JJ., concur.
Mahoney, P. J., and Levine J., dissent in part and concur in part in a memorandum by Mahoney, P. J. Mahoney, P. J. (dissenting in part and concurring in part). In our view, triable issues of fact exist regarding plaintiffs claim that defendants negligently failed to maintain a smoke detection system. Defendants, as landlords, owed plaintiff a duty of care, that duty being to maintain the premises in a reasonably safe condition under the circumstances (see, Basso v Miller, 40 NY2d 233, 241; Curry v New York City Hous. Auth., 77 AD2d 534, 536). The issue here is whether such duty was breached.
We agree with the majority that, at the time of the fire, no statute mandated that landlords such as defendants were required to install and maintain smoke detectors. Nor was such required at common law (see, Dufur v Lavin, 101 AD2d 319, 323, affd 65 NY2d 830). However, even where a course of conduct is not required, where an individual voluntarily assumes such, he must do so in a reasonable manner (see, Parvi v City of Kingston, 41 NY2d 553, 559). Here, the deposition indicates that defendants installed a smoke detector in plaintiffs apartment and, on at least one occasion, checked it and replaced the battery. Thus, triable issues of fact exist regarding the reasonableness of defendants’ conduct such as the degree of control over the demised premises, the conduct and representations of defendants, and the degree of reliance by plaintiff. For this reason, summary judgment was inappropriate as to the claim based on negligent maintenance of the smoke detection system. | 01-03-2023 | 01-13-2022 |
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