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https://www.courtlistener.com/api/rest/v3/opinions/4534516/
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RANDALL S. LUDEMANN, )
)
Movant-Appellant, )
)
v. ) No. SD36237
)
STATE OF MISSOURI, ) Filed: May 14, 2020
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF ST. CLAIR COUNTY
Honorable James K. Journey, Circuit Judge
AFFIRMED
After a jury found Randall S. Ludemann (“Movant”) guilty of possessing a
derringer unlawfully (because he was a felon) and we affirmed the trial court’s judgment
on direct appeal, Movant, acting pro se, filed a motion for post-conviction relief under
Rule 29.15. 1 Movant raises two points in this appeal claiming ineffective assistance of
(1) trial counsel in failing to object to the admission of evidence of a traffic violation by
1
In light of the fact Movant filed his pro se motion for post-conviction relief in March 2013, all references
to Rule 29.15 are to Missouri Court Rules (2013), unless specified otherwise. Rule 29.15(m), Missouri
Court Rules (2020). Appointed counsel subsequently filed an amended motion. This Court has
independently verified the timeliness of Movant’s post-conviction motions. See Moore v. State, 458
S.W.3d 822, 825-26 (Mo. banc 2015); and Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012). The
motion court denied Movant’s amended motion following an evidentiary hearing, and Movant appeals the
motion court’s ruling on two of the four claims alleged in his amended motion.
1
Movant, and (2) appellate counsel in failing to raise on direct appeal trial objections to
the admission of ammunition unrelated to the derringer. We reject Movant’s points, and
affirm the motion court’s judgment.
Standard of Review
We review a motion court’s overruling of a motion for post-conviction relief to
determine whether the motion court’s findings of fact and conclusions of law are clearly
erroneous. Rule 29.15(k). Hoeber v. State, 488 S.W.3d 648, 653 (Mo. banc 2016). “A
motion court’s findings and conclusions are ‘clearly erroneous only if this Court is left
with a definite and firm impression that a mistake has been made.’” Id. (quoting Mallow
v. State, 439 S.W.3d 764, 768 (Mo. banc 2014)). “If a movant fails to satisfy either
prong of the Strickland test,[ 2] he or she is not entitled to post-conviction relief.” Id. at
655. There is “a presumption that counsel’s alleged omissions were sound trial strategy.”
Id. at 659 (quoting Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005)).
In addition, as to a claim of ineffective assistance of appellate counsel, the movant
must establish that counsel failed to raise a claim of error that was so obvious that a
competent and effective lawyer would have recognized and asserted it. Tisius v. State,
519 S.W.3d 413, 431 (Mo. banc 2017). “‘There is no duty to raise every possible issue
asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues
where appellate counsel strategically decides to winnow out arguments in favor of other
arguments.’” Id. at 431-32 (quoting Storey v. State, 175 S.W.3d at 148). Further,
Movant must be prejudiced by the claimed ineffective assistance of counsel. Id. at 420,
424.
2
Strickland v. Washington, 466 U.S. 668, 687 (1984), sets forth the requirements that trial counsel must
(1) fail to exercise the level of skill and diligence that reasonable, competent counsel would exercise and
(2) that Movant must be prejudiced by that failure.
2
This Court presumes that the motion court’s findings and conclusions are correct.
Sanders-Ford v. State, No. SD36169, 2020 WL 1698364, at *2 (Mo.App. S.D. Apr. 8,
2020). It is unnecessary to address both prongs of the Strickland test. Id. If Movant
fails to meet his burden of proof on one prong, that course should be followed.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
Facts
Charge and Evidence at Trial
Movant was charged in an amended information with “knowingly” possessing “a
firearm” on March 19, 2009, in St. Clair County, after being convicted of a felony. The
jury verdict director identified the firearm as a derringer. Viewed in the light most
favorable to the jury’s verdict finding Movant guilty, 3 the evidence at trial, in July 2011,
included the following. 4
In 2009, Movant resided in a house that he rented from John Wedgeworth.
Wedgeworth resided about 150 to 200 yards from Movant’s house. On March 19, 2009,
authorities executed a search warrant at the house. No one was home, so the officers
forced entry into the home.
One of the items the officers observed was a locked gun safe. While the officers
were searching the house, Wedgeworth arrived. Wedgeworth told officer Lee Hilty that
3
Unless an issue raised in the post-conviction proceeding requires the trial evidence to be viewed through a
different lens (e.g., in reviewing an issue involving the trial court’s failure to instruct the jury on self-
defense), the trial evidence is viewed in the light most favorable to the jury’s verdict. Fisher v. State, 359
S.W.3d 113, 115 n.1, 117 (Mo.App. W.D. 2011); Hays v. State, 484 S.W.3d 121, 125 n.1 (Mo.App. W.D.
2015); and Mallow v. State, 439 S.W.3d at 766. In resolving this appeal, we view the evidence at trial and
at the evidentiary hearing on Movant’s motion for post-conviction relief, Hardy v. State, 387 S.W.3d 394,
399 (Mo.App. S.D.2012), in the light most favorable to the outcome of those proceedings, but we include
other evidence in our opinion to give context to Movant’s points raised in this appeal.
4
We quote from the decision of this Court on Movant’s direct appeal without further attribution. State v.
Ludemann, 386 S.W.3d 882, 883-84 & nn.2, 4, 5 (Mo.App. S.D. 2012).
3
Defendant kept the combination to the safe in the house on a wall on “a small slip of
paper.” Wedgeworth thought the paper with the combination might be located “behind
the door,” but the officers could not locate it. Wedgeworth said, “I know it was here
‘cause we just used it recently.” Wedgeworth recanted at trial “maintaining that he had
‘messed up’ and ‘was mistaken’ in thinking that [Movant] might have kept a copy of the
combination at the house.” Wedgeworth, saying he also had the combination at his
house, retrieved it and provided it to the officers. When the police opened the safe, they
found what purported to be a “3–dollar bill” and a derringer pistol with six rounds of
ammunition. The derringer and ammunition were in an unlocked box that had been
specially made to hold the gun. There was writing on the top of the box that said,
“Carolyn. Happy 5th Anniversary. Love John.” Other items officers located inside the
house included pieces of mail addressed to Movant, a recent traffic ticket issued to
Movant, items of men’s clothing, and photographs of Movant. The kitchen had food in
it, and there were dishes in the sink.
After the search of the house was completed, Officer Hilty interviewed
Wedgeworth inside Wedgeworth’s home. The officer observed that Wedgeworth’s
residence was “very dirty[,]” with “a layer of [pet] hair and dirt on everything[,]”
including the table and chairs on which Wedgeworth and the officer sat. In contrast, the
only dirt-free portion of the room was a wall lined with long guns, and there were boxes
with handguns in them. The guns were pristinely clean, with no dirt or dust on them,
while everything else in that room did. Wedgeworth first told Officer Hilty that he got
the firearms from the gun safe in Movant’s house “a couple months ago.” He
subsequently said that he “got [th]em out of there a month ago.” It did not appear to
4
Officer Hilty that the firearms had been in Wedgeworth’s home for even one month
because of their clean condition. Wedgeworth told Officer Hilty that he did not have any
firearms inside the house.
At trial, Wedgeworth testified that he had not been in Movant’s house for
“[p]robably a year or better” before the officers searched it. He told the jurors that he did
not go to the house too much because of the combination of its steps and the fact that he
had a bad foot. Wedgeworth said he was not involved in retrieving the guns that lined the
wall of his home. According to Wedgeworth, a neighbor took the guns out of the house,
put them in Wedgeworth’s pickup truck, and Movant then drove them to Wedgeworth’s
home, where the neighbor unloaded the guns and put them along the wall.
The evidence at trial also included the following. On direct examination and
without objection by defense counsel, Sheriff Ronald E. Snodgrass told the jury:
Q . . . [H]ow did you -- how do you come to know [Movant]?
A Well, I had run across him several different times, ah,
through course of business, ah, during patrol. Ah, then, leading up to the
reason he’s in Court, ah, I had stopped him for driving while suspended or
revoked. Ah, --
Q Did you issue him a ticket for that?
A Yes, I wrote him a ticket and took him to jail.
Q Do you know approximately the time frame for that?
A I believe it was March 5th of ‘09.
The March 5, 2009 ticket was located in the house in the course of the search on March
19, 2009.
Verdict and Sentencing
5
The jury found Movant guilty of possessing the derringer unlawfully because he
was a felon. Subsequently, on October 3, 2011, the trial court sentenced Movant to
imprisonment for six years, suspended execution of that sentence, and placed Movant on
supervised probation for five years. 5
Analysis
Point I – Motion Court’s Conclusion that Trial Counsel Was Not Ineffective Was Not
Clearly Erroneous
In Movant’s first point, Movant asserts that the “motion court clearly erred in
denying” Movant’s claim in his amended motion for post-conviction relief that trial
counsel was constitutionally ineffective in that he “failed to act as a reasonably
competent attorney . . . by failing to object to the prosecutor’s questions and Sheriff
Snodgrass’ corresponding testimony about arresting [Movant] for driving while revoked”
– an uncharged bad act.
With respect to trial counsel’s alleged ineffectiveness in failing to object to
evidence of Movant’s traffic offense, the motion court concluded in part:
Ultimately, it is likely that if Movant’s trial counsel had objected to
this evidence, the objection would have been overruled as the evidence
was admissible both under the res gestae exception and to establish that
Movant occupied the house where the underlying weapon was found.
Given those applicable exceptions to the general rule, competent trial
counsel might reasonably choose not to object to such testimony. Keeping
in mind the presumption of competence and the deference owed to
counsel’s judgment, the Court cannot find that trial counsel was
ineffective for not objecting to evidence that was likely admissible under
established Missouri law. As a result, Movant’s . . . claim fails.
We agree with the motion court. Movant’s assertion overlooks the fact that, at trial,
Movant strongly challenged his knowledge that the derringer was in the gun safe at the
5
By the time of the evidentiary hearing on Movant’s amended motion for post-conviction relief in
September 2018, Movant successfully had completed, and been released from, probation.
6
house, and his control over the gun safe and its contents. Movant testified, and
emphasized and introduced other evidence, that indicated (1) he was not at the house at
the time of the search on March 19, 2009, and had not been at the house for several days
before the search, (2) he thought all the firearms in the gun safe had been transferred to
their owner more than a month before the search, (3) other people lived in the house at
different times, (4) he lived at places other than the house at different times, and (5) he
never had a combination to the gun safe. In these circumstances, the recovery from the
house during the search of a ticket issued by Sheriff Snodgrass to Movant on March 5,
2009, was relevant to show Movant’s recent presence in the home and Movant’s intention
to return to the home. In order to weigh the probative value of the ticket’s presence in the
house at the time of the search, the jury also was entitled to know how the ticket arose
and when.
The motion court’s conclusions that the evidence of the ticket most likely was
admissible on these grounds, and that trial counsel was not ineffective for not objecting to
the evidence were not clearly erroneous. Movant’s first point is denied.
Point II – Motion Court’s Conclusion that Appellate Counsel Was Not Ineffective Was
Not Clearly Erroneous
In his second point, Movant contends that the “motion court clearly erred in
denying” Movant’s claim in his amended motion for post-conviction relief that appellate
counsel was constitutionally ineffective in that he “failed to act as a reasonably
competent attorney . . . by failing to raise the preserved point that the trial court erred in
overruling [Movant’s] objections to ammunition evidence unrelated to the derringer that
[Movant] was charged with possessing.”
Appellate counsel submitted an affidavit that stated in part:
7
2. I considered raising th[is] claim . . . .
3. I ultimately did not raise the claim . . . because I believed that the
totality of the evidence suggested that the gun parts and ammunition found
in the spare room had little effect on the verdict of the jury.
. . . . [partial summary of trial evidence]
The real issue was whether [Movant] was aware of and had control
over the derringer and ammunition found in the locked gun safe. . . .
[partial summary of trial evidence] I believed that while the evidence of
the gun parts and ammunition found [sic] the spare room had little
probative value to the question of [Movant’s] knowledge of and control
over the derringer in the safe, I also believed that it had little prejudicial
impact on this question as well.
For these reasons I concluded that a challenge to the admission of
the evidence would not have caused the appellate court to grant a new
trial. The appellate court did not rely upon the evidence of the gun parts
and ammunition to find the evidence sufficient to establish [Movant’s]
knowledge and control over the derringer in the safe. Rather, it relied
upon a reasonable inference that [Movant] had the combination to the safe
found in his residence.
With respect to appellate counsel’s alleged ineffectiveness in failing to raise on
direct appeal the admission of evidence of ammunition unrelated to the derringer, the
motion court stated in part:
Movant’s . . . final claim is that Movant’s appellate counsel was
ineffective for failing to raise on appeal . . . the introduction into evidence
at trial (over objection) of ammunition found at Movant’s home that was
not operable in the firearm that Movant was charged with possessing.
The only evidence presented in connection with this claim was the
[affidavit of appellate counsel]. . . .
In light of appellate counsel’s testimony in his Affidavit, and
keeping in mind the applicable standard of review, this Court believes that
appellate counsel made a strategic decision, after investigating the relevant
facts and law, not to raise the issue complained of in Movant’s direct
appeal because he did not believe it was meritorious.
Appellate counsel’s fully considered strategic decision not to raise
a[n] issue that he determined after due consideration was not meritorious
does not meet the Strickland test and therefore Movant’s . . . claim fails.
8
The motion court finished by declaring “[h]aving considered all of the evidence presented
to the Court, this Court find[s] that [M]ovant failed to meet his burden herein and
therefore this Court” denies Movant’s amended motion for post-conviction relief.
We find no error in the motion court’s findings. Appellate counsel (1)
specifically considered trial counsel’s objection to ammunition evidence unrelated to the
derringer, and (2) made the decision not to raise that issue because he believed the
unrelated ammunition evidence “had little effect on the verdict of the jury,” “had little
prejudicial impact on” “the question of [Movant’s] knowledge of and control over the
derringer,” and “would not have caused the appellate court to grant a new trial.” The
motion court’s conclusion that appellate counsel’s “fully considered strategic decision not
to raise a[n] issue that he determined after due consideration was not meritorious” was
not constitutionally deficient performance was not clearly erroneous. Movant’s second
point is denied.
The motion court’s judgment is affirmed.
Nancy Steffen Rahmeyer, J. – Opinion Author
Gary W. Lynch, P.J. – Concurs
William W. Francis, Jr., J. – Concurs
9
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01-03-2023
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05-14-2020
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https://www.courtlistener.com/api/rest/v3/opinions/5901961/
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—Order unanimously reversed on the law without costs and summary judgment granted to defendants J. Jay Cassen and Sweet *911Shirts, Inc. Same memorandum as in Goodwin v Cassen ([appeal No. 1], 136 AD2d 910 [decided herewith]). (Appeal from order of Supreme Court, Monroe County, Curran, J.— summary judgment.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901963/
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—Appeal unanimously dismissed without costs. Same memorandum as in Public Serv. Truck Renting v Ambassador Ins. Co. ([appeal No. 1], 136 AD2d 911 [decided herewith].) (Appeal from order of Supreme Court, Erie County, Mintz, J.—change of venue.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129257/
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— Reargument ordered on the authority of McGuire v. Spence (91 N. Y., 303).
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129258/
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— Judgment reversed, new trial ordered, costs to abide event. Opinion by
Davis, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129259/
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— Motion for reargument denied.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901964/
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—Judgment unanimously modified on the law and as modified affirmed with costs to defendant Anderson, in accordance with the following memorandum: Defendant Anderson appeals from an order and judgment entered following a jury trial, wherein the jury awarded compensatory damages of $8,500 and punitive damages of $2,500 for assault and battery; compensatory damages of $12,000 and punitive damages of $3,000 for wrongful arrest; and compensatory damages of $20,000 and punitive damages of $5,000 for defamation. Pursuant to CPLR 4404 (a), defendant moved for an order setting aside the jury verdicts and granting a new trial. The court, in granting partial relief, ordered a new trial unless the plaintiff stipu-. lated to accept reduced awards in the following actions: compensation damages of $1,000 and punitive damages of $1,000 for the assault and battery; and $5,000 compensatory damages for the defamation action. On this appeal defendant Anderson appeals from the order and the resulting judgment entered against him, while the plaintiff cross-appeals from so much of *913the order that reduces the jury verdicts and dismisses the actions against the defendant estate of Lawrence Carson. Inasmuch as plaintiff has stipulated to the reduced amount of damages, he is not an aggrieved party and may not raise this issue by cross appeal (see, CPLR 5511; Smith v Hooker Chem. & Plastics Corp., 69 NY2d 1029). That fact does not preclude our review of this issue, however, in that CPLR 5501 (a) (5) confers jurisdiction upon this court to review the reduced verdicts by reason of the defendant’s appeal. Upon our review of the stipulated reductions, we perceive no reason to exercise that jurisdiction.
We agree with the order of the trial court, except for the denial of defendant’s motion to set aside the jury verdicts in the action for wrongful arrest. Plaintiff failed to establish that he was wrongfully detained. Plaintiff’s sole contention is that he was detained by the service of an appearance ticket. This did not restrict plaintiff’s freedom and, therefore, does not form a basis for his wrongful arrest claim (Pritchett v State of New York, 61 AD2d 1110). The order and judgment appealed from should be modified on the law by reversing so much of the awarded damages for wrongful arrest and as modified, affirmed. (Appeal from judgment of Supreme Court, Genesee County, Graney, J.—assault, false arrest.) Present—Dillon, P. J., Green, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901965/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 15, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant scheduled a two-week vacation in order to travel to Russia, despite having purchased a round-trip airline ticket that required him to stay in Russia for three weeks. He thereafter requested an additional week of time off, informing the employer that he had to undergo a medical examination and attend physical therapy sessions back in this country. This additional time off was initially granted, but, with the exception of an additional day to undergo the medical examination, the request for the remainder of the week was ultimately denied after the employer was notified that the physical therapy sessions had been postponed. When claimant failed to return to work after his approved vacation time was completed, his employment was terminated. The Unemployment Insurance Appeal Board ruled that he was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.
We affirm. “An employee’s unauthorized absence from work has been held to constitute misconduct that disqualifies the claimant from receiving unemployment insurance benefits” (Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009] [citations omitted]; see Matter of Samuel [Commissioner *1024of Labor], 97 AD3d 886, 887 [2012]). Here, the record reflects that claimant failed to report to work as scheduled after his vacation time ended and his request for additional time had been denied. To the extent that claimant testified that he was granted the additional time, this presented a credibility issue for the Board to resolve (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106; Matter of Tahat [Commissioner of Labor], 58 AD3d 921, 921 [2009], lv dismissed 13 NY3d 857 [2009]).
Rose, J.P., Lahtinen, Spain, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901966/
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Judgment unanimously reversed on the law and new trial granted on the issue of punitive damages only, unless plaintiff shall within 30 days of the service of the order herein, with notice of entry thereof, stipulate that the punitive damage award against defendants Delporte be reduced to $120,000 and the punitive damage award against defendant Arcadia Management, Inc., be reduced to $80,000, in which event the judgment shall be modified accordingly, and as modified, affirmed, without costs. Memorandum: In this action for compensatory and exemplary damages premised upon a violation of section 51 of the Civil Rights Law, the trial court *914properly ruled, as a matter of law, that defendants violated the statute when, without plaintiffs consent, they used her photograph on commercial billboard advertising.
The jury awarded plaintiff compensatory damages in the sum of $150,000. It also awarded punitive damages in the sum of $500,000, 60% ($300,000) of which was awarded against defendants Delporte and 40% ($200,000) of which was awarded against defendant Arcadia Management, Inc. In entering judgment on the verdict, however, the trial court erred in adjudging that defendants were jointly and severally liable for the full amount of the punitive damage award. Such damages are in the nature of a penalty and contribution among tort-feasors is not permissible (Smith v Guli, 106 AD2d 120).
Although the standard of review of the amount of a jury verdict has recently been codified (see, CPLR 5501 [c]), this case is governed by the traditional rule that an award should not be disturbed unless it shocks the conscience of the court (see, Beardsley v Wyoming County Community Hosp., 79 AD2d 1110; Juiditta v Bethlehem Steel Corp., 75 AD2d 126). Applying that standard, we conclude that the award of compensatory damages is not excessive. We reach a contrary conclusion, however, concerning the awards of punitive damages. "The propriety of a punitive award is not generally susceptible to precise measurement” (O’Donnell v K-Mart Corp., 100 AD2d 488, 492), and an appellate court should not reduce the amount awarded by the jury "unless it is so grossly excessive 'as to show by its very exorbitancy that it was actuated by passion’ (1 Clark, New York Law of Damages, § 56, p 102; accord Restatement, Torts, Comment d, § 908; 14 NY Jur, Damages, § 188)” (Nardelli v Stamberg, 44 NY2d 500, 504). Applying that standard, we find that the awards of punitive damages are grossly excessive (see, Faulk v Aware, Inc., 19 AD2d 464, 471-472). Accordingly, the judgment must be reversed and a new trial granted unless the plaintiff consents to a reduction of the punitive damage award against defendants Delporte to $120,000 and a reduction of the punitive damage award against defendant Arcadia Management, Inc. to the sum of $80,000, in which event the judgment as modified should be affirmed.
We have considered the other issues raised by defendants on appeal and find them to be without merit. (Appeal from judgment of Supreme Court, Onondaga County, Donovan, J.— civil rights violation.) Present—Dillon, P. J. Green, Pine and Balio, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901967/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed August 15, 2011, which ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.
Claimant scheduled a two-week vacation in order to travel to Russia, despite having purchased a round-trip airline ticket that required him to stay in Russia for three weeks. He thereafter requested an additional week of time off, informing the employer that he had to undergo a medical examination and attend physical therapy sessions back in this country. This additional time off was initially granted, but, with the exception of an additional day to undergo the medical examination, the request for the remainder of the week was ultimately denied after the employer was notified that the physical therapy sessions had been postponed. When claimant failed to return to work after his approved vacation time was completed, his employment was terminated. The Unemployment Insurance Appeal Board ruled that he was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct. Claimant appeals.
We affirm. “An employee’s unauthorized absence from work has been held to constitute misconduct that disqualifies the claimant from receiving unemployment insurance benefits” (Matter of Roe [Commissioner of Labor], 62 AD3d 1105, 1106 [2009] [citations omitted]; see Matter of Samuel [Commissioner *1024of Labor], 97 AD3d 886, 887 [2012]). Here, the record reflects that claimant failed to report to work as scheduled after his vacation time ended and his request for additional time had been denied. To the extent that claimant testified that he was granted the additional time, this presented a credibility issue for the Board to resolve (see Matter of Roe [Commissioner of Labor], 62 AD3d at 1106; Matter of Tahat [Commissioner of Labor], 58 AD3d 921, 921 [2009], lv dismissed 13 NY3d 857 [2009]).
Rose, J.P., Lahtinen, Spain, Stein and McCarthy, JJ., concur. Ordered that the decision is affirmed, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901968/
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Order unanimously modified on the law and as modified affirmed without costs, in accordance with same memorandum as in Pozzanghera v Anderson ([appeal No. 1], 136 AD2d 912 [decided herewith]). (Appeal from order of Supreme Court, Genesee County, Graney, J.—assault, false arrest.) Present—Dillon, P. J., Green, Balio and Lawton, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901969/
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Judgment unanimously affirmed. Memorandum: Defendant maintains on this appeal that the trial court’s instructions to the jury defining reasonable doubt improperly shifted the burden of proof. While it is apparent that the trial court misspoke during its charge to the jury when it used the word "innocence” instead of guilt in explaining the concept of proof beyond a reasonable doubt, the absence of timely objection by the defendant constitutes a failure to preserve this matter for our review as a matter of law (CPL 470.05 [2]; People v Renford, 125 AD2d 967, Iv denied 69 NY2d 885; People v Mitchell, 124 AD2d 977). Moreover, the evidence of defendant’s guilt was overwhelming, and the charge, when viewed as a whole, conveyed the proper standard to the jury and thus does not warrant reversal in the interest of justice (CPL 470.15 [3] [c]; People v Renford, supra; People v Mitchell, supra). We also find that the statements made to the police by the victim immediately after he had been robbed at gunpoint were properly admissible under the excited utterances exception to the hearsay rule (see, People v Edwards, 47 NY2d 493). On this record, there is nothing to indicate that the court abused its discretion in sentencing defendant. (Appeal from judgment of Supreme Court, Monroe County, Mark, J.—robbery, first degree, and criminal possession of weapon, third degree.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129261/
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— Order reversed, with ten dollars costs and disbursements, and motion directed to be heard at Special Term on its merits.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129262/
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Motion granted so far as to allow a further order to be entered certifying the decision of this court to .the surrogate, with the award of costs as taxed, and the copies of the papers returned by the surrogate, and vacating the judgment, entered in this court for the recovery of costs, so that the surrogate may proceed to enforce such payment of costs according to the statute, such order to be without prejudice to any proceedings already had in the Surrogate’s Court under the probate of the will.
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01-03-2023
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02-04-2022
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Judgment unanimously affirmed. Memorandum: Defendants were not denied their statutory right to a speedy trial (CPL 30.30). The People announced their readiness for trial at arraignment, 6 months and 2 days after commencement of the criminal action. Excluded from the time chargeable to the People, in the case of Wayne Hughes, is the period of three days from March 4, 1985 to March 7, 1985, which delay was occasioned by defense counsel’s request for scheduling of the arraignment for March 6, and defendant’s failure to appear until March 7 (CPL 30.30 [4] [b]). Excluded in the case of Michael Walker is the period of at least three days that defendant Walker was without counsel through no fault of the court (CPL 30.30 [4] [f]). Thus, the People’s announcement of readiness was within the six-month limit (CPL 30.30 [1] [a]). The postannouncement delay caused by the victim’s medical problems is also excludable (see, CPL 30.30 [3] [b]; [4] [g]; People v Goodman, 41 NY2d 888, 889). The prosecution’s request for a short delay in the continuation of the suppression hearing to permit the victim to make arrangements for a baby-sitter did not demonstrate the People’s lack of readiness. Any further delay in the continuation of the hearing was attributable to the court’s calendar and was not chargeable to the People (see, People v Brothers, 50 NY2d 413, 417).
The suppression court properly refused to suppress the victim’s in-court identification of defendant Hughes. The victim had known defendant Hughes before the commission of the crime and she had an independent basis for her identification.
The trial court properly denied defendants’ motions to set aside the verdict made on the ground of newly discovered evidence. At the time of trial, at the latest, defendants’ counsel became aware that the potential witness had been an eyewitness to the crime, yet they failed to ask for an adjourn*917ment to secure his attendance at trial. Moreover, before trial, counsel for defendant Hughes was aware of the existence of the witness and attempted to subpoena him, but failed to show that he exercised due diligence in ascertaining the witness’s address.
Lastly, we reject defendants’ contention that the victim’s testimony was incredible as a matter of law. (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J.— robbery, second degree.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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Judgment unanimously affirmed. Memorandum: We conclude that the evidence, viewed in the light most favorable to the People, was legally sufficient to support defendant’s conviction of criminal possession of a weapon in the third degree. Further, we find that the evidence established defendant’s guilt beyond a reasonable doubt and that the verdict was not against the weight of the evidence (see, People v Bleakley, 69 NY2d 490).
We have reviewed defendant’s remaining contention and find it to be without merit. (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J.—criminal possession of weapon, third degree.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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Judgment unanimously affirmed. Same memorandum as in People v Hughes (136 AD2d 916 [decided herewith]). (Appeal from judgment of Supreme Court, Onondaga County, Gorman, J.—robbery, second degree.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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Judgment affirmed (see, People ex rel. Gneco v New York State Div. of Parole, 134 AD2d 389). Callahan, J. P., and Lawton, J., concur; Boomer, J., concurs in the following memorandum.
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Boomer, J.
(concurring). I concur in the decision of the majority to affirm on the authority of People ex rel. Gneco v New York State Div. of Parole (134 AD2d 389). In addition, I would affirm for the following reasons.
The issue urged by petitioner was not raised in the petition and was not an issue before Supreme Court; thus, it is not *918properly before us for review (Matter of Crawford v Kelly, 124 AD2d 1018), unless there is no "factual showing or legal counterstep that might have been made if the argument had been tendered below” (People ex rel. Roides v Smith, 67 NY2d 899, 901). Respondent asserts that had the matter been raised below, respondent could have shown that the conditions of release delivered to petitioner contained the condition that "a releasee will not behave in such a manner as to violate the provisions of any law to which he was subject which provides for a penalty of imprisonment, nor will his behavior threaten the safety or well-being of himself or others.” The violation report specifically charges defendant with a violation of the conditions of his release "in that at approximately 5:00 p.m. on 7/11/82 the parolee attempted to burglarize an apartment located at 605 Sixth Street, Brooklyn, N. Y.”
Petitioner contends that he cannot be charged with a violation of a condition of his release because the rule containing-that condition was not filed with the Secretary of State. Assuming, arguendo, that rules pertaining to conditions of parole are required to be filed, such unfiled rules are "of no effect whatever” (People ex rel. Roides v Smith, 67 NY2d 899, 901, supra). Even in the absence of the unfiled rules, however, respondent had the authority under the existing statutes and regulations to impose conditions when releasing or paroling inmates.
The State Board of Parole is empowered to determine "which inmates * * * may be released on parole and when and under what conditions” (Executive Law § 259-c [1] [emphasis added]), and to determine "conditions of release of the person who may be conditionally released” (Executive Law § 259-c [2]). "[T]he conditions of release shall be fixed in accordance with rules prescribed by the board. Such conditions shall be substantially the same as conditions imposed upon parolees” (Executive Law § 259-g [1]). "If the inmate is released [on parole], he shall be given a copy of the conditions of parole” (Executive Law § 259-i [2] [a]). "No person shall be conditionally released unless he has agreed in writing to the conditions of release” (Executive Law § 259-g [2]). A notice of violation "shall state what conditions of parole or conditional release are alleged to have been violated, and in what manner” (Executive Law § 259-i [3] [c] [iii]).
The Rules of the Division of Parole pertaining to conditions of release, filed on March 23, 1978, were in effect at the time petitioner was charged with the violation. Those rules provided that "[p]arole or conditional release revocation proceed*919ings may be undertaken upon any violation of law or upon any violation of the release conditions or the rules and regulations of the board. The releasee is expected to comply faithfully with all conditions specified in writing at the time of his release and with all other conditions and instructions, whether oral or in writing, given him by the board, a member, an authorized representative of the board or a parole officer” (9 NYCRR 8003.1 [b]). "Parole or conditional release will not be granted to any individual unless he states in writing, in the presence of a witness, that he has read and understood the conditions of release” (9 NYCRR 8003.1 [c]). "A copy of the conditions of release, with the addition of any special conditions, shall be given to each inmate upon his release to supervision” (9 NYCRR 8003.2).
Petitioner has not alleged that the rules recited above were not properly filed; he alleges that an amendment to the rules authorizing the imposition of certain specific conditions of parole was not filed until after the date of the alleged violations. Even if the unfiled amendment is invalid, the statutes and the filed rules empowered the Board of Parole to determine and impose the conditions of petitioner’s release (Executive Law § 259-c [1]), provided the Board gave petitioner a copy of the conditions (9 NYCRR 8003.2) and petitioner agreed in writing to those conditions (Executive Law § 259-g [2]) in the presence of a witness stating that he had read and he understood the conditions of the release (9 NYCRR 8003.1 [c]).
If respondent had complied with the directives of these statutes and rules, it could have inserted into the written conditions of petitioner’s release the requirement that he "behave in such a manner as to not violate the provisions of any law to which he was subject.” Because respondent did not have the opportunity to prove that it did comply with these provisions of the statute and regulations and that it did insert in the conditions of release the particular condition that it accused petitioner of violating, we should not entertain petitioner’s argument made for the first time on appeal.
The cases of Matter of Jones v Smith (64 NY2d 1003) and People ex rel. Roides v Smith (67 NY2d 899, supra), relied upon by petitioner, can be distinguished. In those cases, the petitioners were charged with violations of prison disciplinary rules which, because they were not filed, were of "no effect whatsoever.” Petitioners could not be punished for violations of rules that did not exist. Here, however, by statute, the Board of Parole was empowered to revoke petitioner’s release, not for the violation of any rule, but for the violation of the *920written conditions of his release (Executive Law § 259-i [3] [c] [iii]; [fj [x]). The question here is whether, in the absence of the unfiled amendment to the rules, the Board was empowered to impose the conditions it alleged that petitioner violated. In my view, the statutes and filed rules conferred that power.
Denman and Davis, JJ., dissent and vote to reverse and grant the petition, in accordance with the following memorandum.
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 14, 2007
FIFTH CIRCUIT
Charles R. Fulbruge III
____________ Clerk
No. 04-30185
c/w No. 05-30668
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDDIE STEPHENS,
Defendant-Appellant.
Appeals from the United States District Court
For the Middle District of Louisiana
Before KING, GARZA, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
In these consolidated appeals, Eddie Stephens (“Stephens”) challenges his convictions and
sentence for various charges arising out of a string of armed bank robberies in the Baton Rouge,
Louisiana area. The main issue on appeal is whether Stephens’s rights under the Speedy Trial Act,
18 U.S.C. §§ 3161-3174, were violated by delays in bringing him to trial.
I
As reflected by the trial evidence, Stephens is a disbarred Louisiana attorney who, after
developing problems with drugs and alcohol, began spending time with William Turner (“Turner”),
a drug dealer whom Stephens had known since 1996. According to Turner, he and two of his
cohorts, Cleveland Golden (“Golden”) and Timothy Talbert (“Talbert”), had committed several armed
bank robberies in the Baton Rouge area, and when, in June 1998, Stephens indicated that he knew
how to clean money marred by exploding dye packs, the men allowed him to join in their next
robbery. Thereafter, the group planned several additional robberies, which were carried out by
various members of the group.1 Law enforcement officers investigating the string of bank robberies
eventually identified Turner as a potential suspect and began surveilling him. On December 21, 1998,
after observing Turner and three other men engage in what appeared to be casing activities near a
Bank One, officers secured the bank in anticipation of a robbery. Turner, Talbert, and Golden
approached the bank in a stolen Oldsmobile but sped away when they spotted an unmarked
surveillance vehicle. Officers then arrested Stephens, who was sitting in a Cadillac parked behind the
bank. Stephens admitted that he was waiting for Turner but denied having any knowledge of a plan
to rob the bank that day.
On October 16, 2000, the Government filed a criminal complaint against Stephens, charging
him with participating in the July 1, 1998 robbery, the August 14, 1998 robbery, the October 16,
1998 robbery, and a November 13, 1998 robbery of a Deposit Guaranty Bank. The complaint also
charged Stephens with conspiring to commit those robberies and the thwarted robbery of the Bank
One on December 21, 1998. Stephens made his initial appearance before a magistrate judge (“MJ”)
1
More specifically, there was evidence at trial indicating that all four men robbed a City
National Bank on July 1, 1998 (the “July 1, 1998 robbery”); that Stephens robbed a Bank One on
August 14, 1998 (the “August 14, 1998 robbery”); and that Turner, Talbert, and Stephens robbed
a Whitney Bank on October 16, 1998 (the “October 16, 1998 robbery”).
-2-
on October 27, 2000. The MJ subsequently held a detention hearing, where, after hearing testimony
from Stephens, the MJ found that Stephens presented a flight risk and a danger to the community and
ordered him detained pending trial.
On November 15, 2000, a federal grand jury returned an indictment against Stephens and
Turner, charging them with one count of conspiracy to commit bank robbery, one count of armed
bank robbery in connection with the July 1, 1998 robbery, and one count of using a firearm during
that robbery.2 Two weeks later, on November 29, 2000, Stephens filed pro se motions to obtain a
private investigator and an expert witness. The MJ struck both motions the following day, stating
that because Stephens had been provided with counsel, he “should not be filing anything in the record
that is not signed by counsel of record.” Nevertheless, on December 5, 2000, Stephens filed pro se
motions for leave to act as co-counsel and to obtain copies of all pleadings filed in the case. Two
days later, Stephens filed two more pro se motions, one for reconsideration of the detention order
and another for a bill of particulars. The MJ denied Stephens’s motion for reconsideration of his
detention order but did not immediately rule on the remainder of Stephens’s pro se motions. Instead,
the MJ scheduled a motion hearing for January 16, 2001, where, after questioning by the MJ,
Stephens withdrew his motion to act as co-counsel and the MJ denied the remaining motions.
On January 25, 2001, Turner filed a motion to determine his mental competency to stand trial,
and Stephens filed a motion to sever his case from that of Turner for trial purposes. The district court
granted Turner’s motion the following day but did not rule on Stephens’s severance motion. Almost
three months later, on May 18, 2001, the government filed a response in opposition to Stephens’s
2
The indictment also charged Turner with three additional counts of bank robbery and three
additional counts of using a firearm during a crime of violence in connection with bank robberies that
occurred on October 27, 1997, April 8, 1998, and June 12, 1998.
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motion. Again, however, the district court made no ruling on the motion.
After lengthy competency proceedings and an evidentiary hearing, the district court ruled on
April 10, 2002 that Turner was competent to stand trial.3 The next day, Turner pleaded guilty to
three counts in the indictment pursuant to a written plea agreement. The district court accepted
Turner’s guilty plea and referred his case to the probation department for preparation of a presentence
investigation report; however, the court deferred acceptance of the plea agreement until Turner’s
sentencing, which was subsequently set for August 16, 2002.4 One week later, the district court set
Stephens’s case for a jury trial on July 22, 2002. On May 30, 2002, however, the government filed
a superseding indictment against Stephens alone. The superseding indictment added several counts
to the charges already pending against Stephens, including two counts of bank robbery and two
counts of using a firearm during a crime of violence in connection with the August 14, 1998 and
October 16, 1998 robberies.
Thereafter, Stephens filed several motions to continue his trial date, the first of which was
filed and granted on June 7, 2002. The court continued the trial date until September 16, 2002. On
3
During the fifteen-month period while Turner’s competency proceedings were pending
(from January 25, 2001 to April 10, 2002), Stephens filed several motions, including: (1) an August
21, 2001 pro se petition for a writ of habeas corpus, in which he asserted that his continued
incarceration violated the Speedy Trial Act, but on which the district court never ruled; (2) a
September 4, 2001 motion for the withdrawal of his counsel, which was granted the same day; (3) a
September 10, 2001 motion by Stephens’s new counsel to continue the October 22, 2001 trial date,
which the district court granted two days later, continuing the trial date to December 3, 2001; (4) a
November 5, 2001 motion for continuance, which the district court again granted, continuing the trial
date to March 25, 2002; and (5) a February 6, 2002 motion for a new detention hearing, which the
MJ held on March 14, 2002 and, after hearing evidence, reaffirmed the detention order. Moreover,
due to Turner’s ongoing competency proceedings, the district court continued the trial date again to
May 13, 2002.
4
See Fed. R. Crim. P. 11(c)(3)(A) (authorizing the court to accept, reject, or defer a decision
on certain plea agreements until after the court has reviewed the defendant’s presentence report).
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August 27, 2002, Stephens again moved for an “ends of justice” continuance of the trial date, but the
district court denied the motion the following day. Then, on September 10, 2002, Stephens gave
notice that he intended to rely on an insanity defense and filed a motion for a competency hearing,
along with his third motion for a continuance. The district court granted both motions the next day
and ordered that Stephens be committed to the custody of the attorney general for psychiatric and
psychological testing. According to Stephens, he did not arrive at the Federal Medical Center in Fort
Worth, Texas until 29 days later, on October 10, 2002. Over the next six months, four extensions
of time were granted to the Federal Medical Center, ultimately extending the deadline for the
completion of Stephens’s mental evaluation to April 25, 2003. Stephens’s competency hearing took
place on July 31, 2003, and at the end of the hearing, the district court scheduled a jury trial for
October 27, 2003. After receiving the parties’ post-hearing briefs, the district court ruled on August
22, 2003 that Stephens was competent to stand trial. The government immediately filed a motion to
transfer custody of Stephens, which was granted on August 27, 2003.
On October 8, 2003, Stephens filed two motions: one to dismiss the indictment due to a
Speedy Trial Act violation and one to dismiss due to pre-indictment delays.5 The following week,
Stephens moved to waive his right to a jury trial. With the government’s consent, the district court
granted Stephens’s motion for a bench trial on October 17, 2003. Four days later, the district court
denied Stephens’s motion to dismiss due to pre-indictment delays, finding that there was no evidence
of intentional pretrial delays on the part of the government and that Stephens had failed to show any
prejudice. The bench trial commenced on October 27, 2003 and concluded on October 30, 2003,
5
In his Speedy Trial Act motion, Stephens asserted only that he had not been brought to trial
within seventy days from the filing of the indictment against him; he made no claim that the
superseding indictment was untimely.
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with the court finding Stephens guilty on all seven counts in the superseding indictment. One week
later, the district court issued its written ruling denying Stephens’s Speedy Trial Act motion. The
district court concluded that, after factoring in all excludable delays, only sixty-nine days had elapsed
on the Speedy trial clock.6 On February 19, 2004, the district court sentenced Stephens to fifty years
and ten months imprisonment.7 Stephens timely appealed his convictions and sentence.
On November 5, 2004, Stephens filed in the district court a pro se motion for a new trial
pursuant to Federal Rule of Criminal Procedure 33(b)(1), alleging that newly discovered evidence of
prosecutorial misconduct entitled him to a new trial. Stephens claimed that the government had:
concealed from him evidence that Turner had opened a savings account at the Bank One Stephens
was convicted of robbing prior to that robbery; advised Turner to deny any knowledge of that
account when testifying against Stephens; and threatened to forbid Turner from contact with his
children and to prosecute his wife if he refused to testify against and implicate Stephens. After
receiving the parties’ briefs, the district court denied Stephens’s motion without an evidentiary
hearing, ruling that the “evidence” about which Stephens complained was not newly discovered.
Stephens timely appealed the district court’s ruling, and his two appeals were consolidated.
6
Although the district court stated in its ruling that only sixty-two non-excludable days had
elapsed on the Speedy trial clock, the government concedes that the court’s calculation contained a
mathematical error, in that the court inadvertently failed to add in seven of the non-excludable days
that it had found. Thus, the district court actually found that sixty-nine non-excludable days had
elapsed.
7
Specifically, the district court sentenced Stephens to sixty months on count one (conspiracy)
and seventy months on each of counts two, three, and four (bank robbery), to be served concurrently
to each other; five years on count five (use of a firearm during the July 1, 1998 robbery), to be served
consecutively to all other counts; and twenty years on each of count six (use of a firearm during the
August 14, 1998 robbery) and count seven (use of a firearm during the October 16, 1998 robbery),
to be served consecutively to each other and all other counts.
-6-
II
Stephens first challenges the district court’s denial of his motion to dismiss the indictment for
an alleged Speedy Trial Act violation. We review the district court’s factual findings supporting its
Speedy Trial Act ruling for clear error and its legal conclusions de novo. United States v.
Bieganowski, 313 F.3d 264, 281 (5th Cir. 2002).
A
The Speedy Trial Act, which is designed to protect a criminal defendant’s constitutional right
to a speedy trial and to serve the public interest in bringing prompt criminal proceedings, requires that
a defendant’s trial commence within seventydays from his indictment or initial appearance, whichever
is later. See 18 U.S.C. § 3161(c)(1); United States v. Johnson, 29 F.3d 940, 942 (5th Cir. 1994).
Under § 3161(h), however, certain delays are excluded in calculating the seventy-day period. 18
U.S.C. § 3161(h)(1)-(9). Among the kinds of delay that are excludable are: delay resulting from
mental competency proceedings; delay resulting from any pretrial motion; delay resulting from the
court’s consideration of a proposed plea agreement; delay resulting from the transportation of a
defendant to and from a place of examination or hospitalization, up to a period of ten days; and delay
resulting from an “ends of justice” continuance. Id. § 3161(h)(1), (8). Also excludable are any
reasonable periods of delay attributable to a codefendant. Id. § 3161(h)(7). “If more than seventy
non-excludable days pass between the indictment and the trial, the ‘indictment shall be dismissed on
motion of the defendant.’” Johnson, 29 F.3d at 942 (quoting18 U.S.C. § 3162(a)(2)).
In this case, three years passed between the filing of the original indictment against Stephens
in November 2000 and the commencement of his trial in October 2003. Although Stephens concedes
that this three-year period contains numerous periods of excludable delay, he contends that the district
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court erroneously concluded that three events stopped his speedy trial clock: (1) his December 7,
2000 pro se motion for a bill of particulars, which was held to toll the clock until the MJ’s denial of
the motion on January 16, 2001; (2) Turner’s January 25, 2001 motion for a competency hearing,
which was held to toll the clock until the conclusion of the competency proceedings on April 10,
2002; and (3) Turner’s April 11, 2002 guilty plea, which was held to toll the clock until the
superseding indictment was filed against Stephens on May 30, 2002.8
After carefully reviewing the record, we conclude that Stephens’s first two objections are
meritless. First, the district court correctly concluded that Stephens’s “artfully drawn” pro se motion
for a bill of particulars stopped the clock from the date it was filed (December 7, 2000) through the
date the MJ held a hearing on and denied the motion (January 16, 2001).9 Second, the district court
8
In addition, Stephens argues that (1) the district court erred in excluding nineteen of the
twenty-nine days between the date of the district court’s order committing him to the custody of the
attorney general for a mental examination (September 11, 2002) and the date of his arrival at the
Federal Medical Center, which he contends was October 10, 2002, see 18 U.S.C. § 3161(h)(1)(H)
(excluding “delay resulting from transportation of any defendant . . . to and from places of
examination or hospitalization, except that any time consumed in excess of ten days from the date an
order of removal or an order directing such transportation, and the defendant’s arrival at the
destination shall be presumed to be unreasonable”); and (2) because more than thirty non-excludable
days passed between his October 26, 2000 arrest on the criminal complaint and his May 30, 2002
superseding indictment, the two new firearm counts in the superseding indictment))which he
contends were charged in the criminal complaint ))were untimely, see 18 U.S.C. § 3161(b)
(providing that “[a]ny information or indictment charging an individual with the commission of an
offense shall be filed within thirty days from the date on which such individual was arrested or served
with a summons in connection with such charges”). Because we conclude below that Stephens’s trial
was not timely under § 3161(c)(1) for reasons unrelated to his transportation to the Federal Medical
Center, we do not reach either of the aforementioned arguments.
9
See 18 U.S.C. § 3161(h)(1)(F) (excluding “delay resulting from any pretrial motion, from
the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such
motion”) (emphasis added); United States v. Clark, 807 F.2d 412, 414 & n.3 (5th Cir. 1986)
(excluding delay resulting from an “artfully drawn” pro se motion to revoke a pretrial detention
order); United States v. Springer, 51 F.3d 861, 865 (9th Cir. 1995) (holding that even frivolous
motions stop the clock because the Speedy Trial Act “does not contain a requirement that the merits
-8-
correctly concluded that Turner’s motion for a competency evaluation stopped the clock from the
date it was filed (January 25, 2001) through the date the court ruled that Turner was competent to
stand trial (April 10, 2002).10 We therefore focus our attention on Stephens’s third objection, which
challenges the exclusion of the seven-week period between the court’s acceptance of Turner’s guilty
plea on April 11, 2002 and the filing of the superseding indictment against Stephens on May 30, 2002.
If, as Stephens contends, this period is not excludable from his speedy trial clock, then more than
seventy days will have elapsed and a Speedy Trial Act violation will have occurred.
The district court determined that Stephens’s speedy trial clock stopped when Turner pleaded
guilty to the original indictment on April 11, 2002 because the court was considering the plea
agreement that had been entered into by Turner and the government. See 18 U.S.C. § 3161(h)(1)(I)
(excluding “delay resulting from consideration by the court of a proposed plea agreement to be
entered into by the defendant and the attorney for the Government”). The district court found this
of a motion be assessed before a delay is permitted”); see also Johnson, 29 F.3d at 943 n.4
(explaining that “[w]hen counting days for Speedy Trial Act purposes, the actual filing date of the
motion, and the date of the court’s disposition are excludable”).
10
See 18 U.S.C. § 3161(h)(1)(A) (excluding “delay resulting from any proceeding, including
any examinations, to determine the mental competency or physical capacity of the defendant”);
§ 3161(h)(7) (excluding “[a] reasonable period of delay when the defendant is joined for trial with
a codefendant as to whom the time for trial has not run and no motion for severance has been
granted”). Although the district should have first considered whether the fifteen-month period of
delay resulting from Turner’s competency proceedings was a “reasonable period of delay” within the
meaning of § 3161(h)(7) before excluding that period from Stephens’s speedy trial clock, the district
court’s error is harmless. The record supports the conclusion that this period was a “reasonable
period of delay,” given that (1) it was necessary to preserve the possibility of a joint trial of Turner
and Stephens; (2) there is no evidence that the government’s pursuit of a joint trial was disingenuous
at that point; (3) at least eleven months of the fifteen-month period would have been excludable based
on Stephens’s own motion practice; and (4) Stephens has not shown that the delay impaired his ability
to defend himself or was otherwise oppressive. See United States v. Franklin, 148 F.3d 451, 456-58
(5th Cir. 1998) (analyzing the reasonableness requirement of § 3161(h)(7)). Accordingly, the delay
resulting from Turner’s competency proceedings was excludable from Stephens’s speedy trial clock.
-9-
period excludable as to Stephens because Turner was still his codefendant at the time. The court
further determined that the speedy trial clock remained stopped until May 30, 2002, when the
superseding indictment was filed against Stephens alone, because “[a]t that point, [Turner and
Stephens] could no longer be considered co-defendants.” Stephens contends that this seven-week
period was not a “reasonable period of delay” within the meaning of § 3161(h)(7) and, hence, should
not have been excluded from his speedy trial clock.
Section 3161(h)(7) provides for the exclusion of a “reasonable period of delay when the
defendant is joined for trial with a codefendant as to whom the time for trial has not run and no
motion for severance has been granted.” 18 U.S.C. § 3161(h)(7). This means that “the excludable
delay of one codefendant may be attributable to all codefendants.” Franklin, 148 F.3d at 455.
Attribution of the excludable delay of one codefendant to another codefendant is not, however,
automatic; rather, the period of delay must be reasonable. See Henderson v. United States, 476 U.S.
321, 326-27 (1986). The reasonableness of the delay can be measured in reference to either (1) “the
totality of the circumstances prior to trial”; or (2) “the actual prejudice suffered by the appellant” as
a result of the delay. See Franklin, 148 F.3d at 457. “In examining the totality of the circumstances
of the case, our inquiry focuses on the necessity of the delay, giving proper consideration ‘to the
purpose behind [§ 3161(h)(7)]))accommodating the efficient use of prosecutorial and judicial
resources in trying multiple defendants in a single trial.’” Bieganowski, 313 F.3d at 283 (quoting
Franklin, 148 F.3d at 457). “With respect to the prejudice analysis, relevant considerations include
whether the delay impaired the appellant’s ability to defend himself or resulted in excessive pretrial
incarceration.” Franklin, 148 F.3d at 457. “Given the fact-intensive nature of the reasonableness
inquiry, we review subsection (h)(7) exclusions on a case-by-case-basis.” Bieganowski, 313 F.3d at
-10-
283.
Consideration of all of the relevant circumstances in this case warrants the conclusion that the
seven-week period following Turner’s guilty plea was not a “reasonable period of delay” excludable
under § 3161(h)(7). Most importantly, the delay was not necessary to serve the purpose of
§ 3161(h)(7). “There is a preference in the federal system for joint trials of defendants who are
indicted together,” Zafiro v. United States, 506 U.S. 534, 537 (1993), and prior to Turner’s guilty
plea, “the utility of a joint trial [wa]s particularly compelling” in this case because Turner and
Stephens were charged with a single conspiracy, see Franklin, 148 F.3d at 457. When the district
court accepted Turner’s guilty plea, however, the possibility of a joint trial of Turner and Stephens
was substantially reduced, if not eliminated.11
To be sure, the mere fact that Turner entered a guilty plea did not completely eliminate the
possibility of a joint trial with Stephens, as Turner could have withdrawn his guilty plea and
proceeded to trial. However, the circumstances of this case, and the terms of Turner’s plea
agreement in particular, made it highly unlikely that Turner would be able to withdraw his guilty plea
in time to proceed to trial with Stephens. Following the court’s acceptance of his guilty plea, Turner
did not have an absolute right to withdraw that plea. See United States v. Powell, 354 F.3d 362, 370
(5th Cir. 2003). Rather, Turner could have withdrawn his guilty plea only if the court rejected his
plea agreement or if he could show “a fair and just reason for requesting the withdrawal” of the plea.
See FED. R. CRIM. P. 11(d)(2). One of the conditions of Turner’s plea agreement was that he provide
truthful testimony in any trial where such testimony was relevant. One such trial was that of
11
The district court appears to have recognized as much when it determined that Turner’s
guilty plea rendered Stephens’s severance motion moot.
-11-
Stephens, which was scheduled to occur before Turner’s sentencing. Indeed, each time Stephens’s
trial date was postponed, the government moved to continue Turner’s sentencing date until after
Turner testified at Stephens’s trial, so that the court would know whether Turner had complied with
the terms of the plea agreement before deciding whether to accept or reject it. Although the district
court was certainly entitled to delay the acceptance of Turner’s plea agreement while waiting to see
whether Turner fulfilled the conditions of the agreement, the delay did not serve to preserve the
possibility of a joint trial of Turner and Stephens. To the contrary, the fact that the court did not
intend to accept or reject the plea agreement until Turner’s sentencing))which was not scheduled
to occur until after Turner testified at Stephens’s trial))made it extremely unlikely that a need for
Turner to go to trial would arise before Stephens’s trial took place and, hence, that a joint trial would
ever occur. Tolling Stephens’s speedy trial clock pending the court’s acceptance or rejection of
Turner’s plea agreement was therefore wholly unnecessary to achieve the purpose behind
§ 3161(h)(7)))facilitating the efficient use of prosecutorial and judicial resources by enabling joint
trials. See Franklin, 148 F.3d at 457.12 Although there may be cases where delay resulting from a
court’s post-guilty plea consideration of codefendant’s plea agreement is necessary to preserve the
possibility of a joint trial, this is not such a case.
Stephens’s assertion of his speedy trial rights and the overall length of the delays attributable
to Turner, during which time Stephens remained in prison without bond, are circumstances that
further indicate that tolling Stephens’s speedy trial clock while the court delayed its acceptance of
12
We note that a contrary ruling would mean that a defendant’s trial could be postponed
indefinitely any time a codefendant pleads guilty pursuant to a plea agreement that calls for him to
testify at the defendant’s trial and the district court defers acceptance of that plea agreement until the
codefendant’s sentencing. The purpose of § 3161(h)(7) of the Speedy Trial Act does not
countenance such a rule.
-12-
Turner’s plea agreement was unreasonable. Long before Turner’s guilty plea, Stephens filed a motion
to sever his case, upon which the district court never ruled. Thereafter, Stephens filed a pro se
petition for a writ of habeas corpus, in which he expressly asserted that his rights under the Speedy
Trial Act were being violated. Again, the district court did not rule upon Stephens’s motion. When
Turner subsequently pleaded guilty, Stephens’s trial had already been delayed for fifteen months due
to Turner’s mental competency proceedings. Although Stephens filed several of his own motions that
tolled the speedy trial clock for much of that period, at least four months of the fifteen-month delay
were not attributable to Stephens’s motion practice. Thus, the seven-week period when Turner’s plea
agreement was “under consideration,” though not terribly lengthy when considered in isolation,
followed on the heels of another long delay caused not by Stephens but by Turner. Thus, the overall
length of the delay, along with Stephens’s prior invocation of his right to a speedy trial, weigh in
favor of finding the delay unreasonable.
After examining the totality of the circumstances of this case, focusing particularly on the
necessity of the delay as it pertains to the purpose behind § 3161(h)(7)))enabling joint trials))we
hold that it was not reasonable for Stephens’s speedy trial clock to be tolled while the district court
delayed the acceptance of Turner’s plea agreement.13 Consequently, the seven-week period from
April 11, 2002 to May 30, 2002 is not excludable for reasons associated with Turner’s guilty plea.
Unless this period is excludable for some other reason, Stephens’s speedy trial clock exceeds the
seventy non-excludable days permitted under the Speedy Trial Act. We must therefore consider the
13
Because we conclude that the totality of the circumstances prior to trial rendered the delay
unreasonable, we need not decide whether any prejudice Stephens may have suffered from the delay
also rendered it unreasonable. See Franklin, 148 F.3d at 457 (explaining that the reasonableness of
a codefendant’s delay can be measured either by the totality of the circumstances or by the prejudice
to the defendant).
-13-
government’s argument that another event))Stephens’s January 25, 2001 severance motion))tolled
the speedy trial clock until the superseding indictment was filed against him on May 30, 2002.
Section § 3161(h)(1)(F) (“Subsection F”) excludes delay resulting from the filing of a pretrial
motion through the conclusion of the hearing on, or other prompt disposition of, the motion. 18
U.S.C. § 3161(h)(1)(F). Section 3161(h)(1)(J) (“Subsection J”) provides for the exclusion of up to
thirty days after the court takes a pretrial motion under advisement. Id. § 3161(h)(1)(J); see Johnson,
29 F.3d at 942. In Johnson, we clarified how Subsections F and J operate. See Johnson, 29 F.3d
at 942-45 (applying Henderson, 476 U.S. at 328-31). We explained that when a motion requires a
hearing, Subsection F operates to toll the speedy trial clock from the date the motion is filed through
the date that the court holds a hearing on the motion. Id. at 942-43. Subsection F also implicitly
excludes “that time after a hearing needed to allow a trial court to assemble all papers reasonably
necessary to dispose of the motion, e.g., the submission of post-hearing briefs.” Id. at 943. At that
point, the court is deemed to have taken the motion “under advisement” and has thirty excludable
days under Subsection J in which to rule. Id. The clock begins to tick again at the end of that thirty-
day period, regardless of whether the court has ruled on the motion. Id.
If the motion does not require a hearing, Subsection F excludes the time needed for a “prompt
disposition” of the motion, which, under Subsection J, may be no more than thirty days from the date
the motion is taken under advisement. Id. Absent evidence to the contrary, “a motion should be
considered under advisement for Speedy Trial Act purposes on the day the last paper concerning the
motion at issue was filed with the court.” Id. at 944. “Thereafter, the fact that a motion is ‘pending,’
or is otherwise unresolved, does not toll the Speedy Trial clock.” Id. at 943 (footnote omitted).
Applying these principles, we held in Johnson that several motions that were ruled on without
-14-
hearings almost a year after their filing dates did not operate to toll the speedy trial clock beyond the
thirty-day “under advisement” period established by Subsection J. Id. at 943-45.
Relying on Johnson, Stephens argues that his severance motion went “under advisement” no
later than May 18, 2001, when the government filed its response in opposition to the motion.
Thereafter, Stephens argues, the motion tolled the speedy trial clock for the next thirty days, or until
June 17, 2001. We agree with Stephens’s reasoning. Because the district court did not hold a
hearing on the severance motion, and because the record reflects that the last paper concerning the
motion filed with the court was the government’s May 18, 2001 response to the motion, the motion
operated to toll the speedy trial clock only for another thirty days after May 18, 2001, or through
June 17, 2001.14 Consequently, the period from April 11, 2002 to May 30, 2002 is not excludable
14
The government “acknowledges that a motion to sever that is never resolved before or at
trial will only toll the clock [for] the 30 days permitted by” Subsection J, but nevertheless contends
that because Stephens’s severance motion “was made moot before trial and the motion was not
carried up to and until trial, the motion to sever should also serve to toll the speedy trial clock up until
the point of the superseding indictment.” In support of this argument, the government relies on
United States v. Bermea, 30 F.3d 1539, 1568 (5th Cir. 1994) and United States v. Welch, 810 F.2d
485, 488-89 (5th Cir. 1987), but its reliance on these cases is misplaced.
In Bermea, the district court ordered that several James motions be carried with the case until
trial. Bermea, 30 F.3d at 1567. During the trial, the court heard and denied the motions. Id.
Because the motions were specifically carried for a hearing at trial, and because the district court
ultimately heard and ruled on the motions at trial, we concluded that the motions tolled the speedy
trial clock throughout their pendency. Id. at 1568; see also Johnson, 29 F.3d at 944 n.8 (explaining
that when a motion in limine is carried for a hearing during trial and ultimately ruled on at trial, the
time between the filing of the motion and the hearing at trial is excludable under Subsection F). In
this case, by contrast, there was no hearing on the severance motion, and nothing in the record
indicates that the district court carried the motion for a hearing at trial. Bermea is therefore
inapplicable.
In Welch, one of four codefendants filed a severance motion, which was noticed for a hearing
on two separate occasions but on which a hearing never occurred. Welch, 810 F.2d at 488. Six
months after the motion was filed, two of the defendants pleaded guilty. Id. The two remaining
defendants, including the one who filed the severance motion, went to trial a year and a half later
without a hearing or dispositive order on the severance motion. Id. Because nothing in the record
indicated that the defendant had abandoned his severance motion or attempted unsuccessfully to
-15-
by reason of Stephens’s severance motion.
In sum, the record demonstrates that neither Turner’s guilty plea (and the court’s subsequent
“consideration” of his plea agreement) nor Stephens’s severance motion rendered excludable the
period from April 11, 2002 to May 30, 2002. When that seven-week period of delay is added to the
sixty-nine other non-excludable days found by the district court to have elapsed on the speedy trial
clock, the delays in bringing Stephens to trial far exceeded the seventy-day period authorized by the
Speedy Trial Act. Consequently, the Speedy Trial Act mandates that Stephens’s convictions be
reversed, his sentence vacated, and the indictment against him dismissed.
B
In outlining the sanctions for a Speedy Trial Act violation, the statute leaves to the court’s
discretion whether to dismiss the indictment with or without prejudice. 18 U.S.C. § 3162(a)(2).
“This discretion is channeled through three factors, consideration of which is mandatory: (1) the
seriousness of the offense, (2) the facts and circumstances of the case which led to the dismissal, and
(3) the impact of a reprosecution on the administration of the [Speedy Trial Act] and on the
receive a hearing on it, we concluded that the motion tolled the speedy trial clock from the date it was
filed until the trial began. Id. Unlike the district court in Welch, the district court in this case never
noticed the severance motion for a hearing or otherwise indicated that a hearing was required.
Accordingly, under Subsections F and J, the district court had only thirty excludable days))through
June 17, 2002))in which to rule on Stephens’s severance motion. See Henderson, 476 U.S. at 329-
30; Johnson, 29 F.3d at 943. To the extent Welch suggests that a severance motion can toll the
speedy trial clock indefinitely even if a hearing is not required or held, it conflicts with Henderson,
by which we are bound. See Johnson, 29 F.3d at 943 n.3 (recognizing that several cases, including
Welch, included “general statements” that seemed to suggest that pretrial motions generally toll the
speedy trial clock until they are ruled upon, but holding that because each of those cases could “be
traced directly to cases in which the principles set forth in Henderson were strictly followed and
properly applied to the facts of the case,” such “general statements” in cases like Welch “must be
limited to the facts of [those] case[s], and viewed within the context of [the] principles set forth by
Henderson.”). Thus, the government’s argument that Stephens’s severance motion tolled the speedy
trial clock until the filing of the superseding indictment lacks merit.
-16-
administration of justice.” United States v. Martinez-Espinoza, 299 F.3d 414, 418 (5th Cir. 2002).
Stephens notes that “[o]ur usual practice is to remand for the district court to consider the factors,”
id., and argues that this case fits into the usual pattern. We agree. Accordingly, we remand the case
for the district court to determine whether dismissal should be with or without prejudice, giving
proper consideration to the factors set forth in 18 U.S.C. § 3162(a)(2).
III
For the foregoing reasons, we reverse Stephens’s convictions, vacate his sentence, and
remand for the district court to determine whether the indictment should be dismissed with or without
prejudice. Accordingly, we do not reach Stephens’s other arguments on appeal.
REVERSED AND REMANDED.
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Denman and Davis, JJ.
(dissenting). We respectfully dissent. We cannot agree with the decision of the majority and with the determination in People ex rel. Gneco v New York State Div. of Parole (134 AD2d 389) relied upon by the majority.
In this CPLR article 78 proceeding challenging the Board of Parole’s determination to revoke his parole, petitioner, relying upon People ex rel. Roides v Smith (67 NY2d 899) and Matter of Jones v Smith (64 NY2d 1003), argues that the rules that he was charged with violating, known as "conditions of release”, were not filed with the Secretary of State at the time of the alleged violations and therefore were ineffective. While petitioner raises this argument for the first time on appeal, we may consider petitioner’s argument since respondent "suggests no factual showing or legal counterstep that might have been made if the argument had been tendered below” (People ex rel. Roides v Smith, supra, at 901). Respondent does not dispute that the general conditions of release were not filed at the time of the alleged violations but argues that they are not rules required to be filed.
NY Constitution, article IV, § 8 provides in pertinent part: "No rule or regulation made by any state department * * * except such as relates to the organization or internal management of a state department * * * shall be effective until it is filed in the office of the department of state”. This constitutional mandate is implemented in Executive Law § 102 which requires, inter alia, that a certified copy of the rules and regulations be transmitted to the Secretary of State. A rule is defined by statute to include "the whole or part of each agency statement of general applicability or regulation or code that implements or applies law * * * except such as relates to the organization or internal management of the agency” (Executive Law § 101-a [1] [b]).
Petitioner was charged with violating two unfiled rules regarding his conditions of release. Those conditions were general conditions of release applicable to all parolees. Therefore, the unfiled rules were ineffective and the determination *921to revoke his parole must be annulled (see, People ex rel. Roides v Smith, supra; Matter of Jones v Smith, supra). Moreover, we reject respondent’s argument that there was no need to file the rules since there was a "parent regulation” on file proscribing the conduct of which petitioner was found guilty. Petitioner was not charged under the so-called "parent regulation”; he was charged with having violated the unfiled rules regarding conditions of release (see, Matter of Davidson v Smith, 69 NY2d 677, 678).
Further, it is of no legal significance that the label "conditions of release” rather than the word "rules” was used to describe the terms of parole release that the petitioner allegedly violated. "The term, 'rule or regulation’, has not, it is true, been the subject of precise definition, but there can be little doubt that, as employed in the constitutional provision, it embraces any kind of legislative or quasi-legislative norm or prescription which establishes a pattern or course of conduct for the future. The label or name employed is not important and, unquestionably, many so-called 'orders’ come within the term” (People v Cull, 10 NY2d 123, 126).
The history of these conditions of release belies the respondent’s argument that they are not rules required to be filed. Former section 215 of the Correction Law was enacted in 1929 and remained in effect, with several amendments not relevant here, until January 1, 1978 when provisions relating to parole were transferred to the Executive Law (L 1977, ch 904, §§ 2, 3). That section read, in pertinent part, as follows: "Section 215. Conditions of Parole * * * The board shall adopt general rules with regard to conditions of parole and their violation and * * * make special rules to govern particular cases. Such rules, both general and special, may include, among other things, a requirement that the parolee shall not [followed by a list of requirements similar to several current general conditions of release].”
Until their repeal on January 9, 1979 conditions of parole release were filed with the Secretary of State and promulgated in the New York Codes, Rules and Regulations (NYCRR), most recently in section 1915.10 of title 7. The reason for their repeal is unclear but may relate to the retrenchment of parole functions and responsibilities in the late 1970s. In 1977 the Legislature enacted the Parole Reform Act (L 1977, ch 904) which removed the Division of Parole from the Department of Correctional Services and made it an executive department effective January 1, 1978. Pursuant to section 259 (2) of the Executive Law, the Chairman of the Parole Board on March *92223, 1978 filed with the Secretary of State a new set of rules and regulations for the Division (9 NYCRR part 8000 et seq.). Although these sections clearly were drawn from many of their predecessors in title 7, absent from these newly promulgated regulations were the conditions of parole release. It was not until May 13, 1986 that the conditions of release were reintroduced to the NYCRR when they were filed as an emergency measure amending section 8003.2 of title 9. In issuing that emergency rule, the Division stated as follows: "The Court of Appeals has recently ruled that inmates are members of the public, and that governmental conditions concerning an inmate’s conduct must be published as regulations. Given that the Division has over 26,000 persons under supervision, it is essential that the conditions of release be codified so as to facilitate the Division’s continued supervision of these persons.”
In view of the foregoing, we believe there can be no question that conditions of release are rules which must be filed with the Secretary of State; therefore we would reverse the order and grant the petition. (Appeal from judgment of Supreme Court, Wyoming County, Kane, J.—art 78.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Following an investigation, petitioner was charged in a misbehavior report with conspiring to smuggle and possess drugs, drug use and a facility correspondence violation. Petitioner pleaded guilty to violating facility correspondence rules and, after a tier III disciplinary hearing, was found guilty of the remaining charges. The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony, confidential testimony and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]; Matter of Smart v New York State Dept. of Correctional Servs., 75 AD3d 1017, 1017-1018 [2010]). Contrary to petitioner’s claim, the misbehavior report was prepared as part of an ongoing investigation and was sufficiently detailed to permit him to defend himself (see Matter of Cognata v Fischer, 85 AD3d at 1457; Matter of Smart v New York State Dept. of Correctional Servs., 75 AD3d at 1018). Petitioner’s remaining contentions, to the extent they are properly before us, have been examined and found to lack merit.
Peters, P.J., Mercure, Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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— Order affirmed, with ten dollars costs and disbursements.
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Order affirmed ; opinion by
Brady, J.
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—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: Defendant appeals from an order granting plaintiffs motion for summary judgment in its action to enforce defendant’s personal guarantee of a corporate note. We agree with *923the court that defendant’s bare allegations of fraud are unsupported and insufficient to defeat plaintiffs right to recover on the guarantee, which by its terms is continuing, unconditional, and not affected by extrinsic or subsequent events. Thus, plaintiff is entitled to partial summary judgment on the issue of liability. However, there must be a trial on the issue of damages. In support of his motion to renew or reargue the motion for summary judgment and to resettle the order granting judgment to plaintiff, defendant averred that $50,523.03, representing the proceeds from the sale of collateral, had been applied to the note by bankruptcy court. Plaintiff failed to rebut that assertion. Thus, defendant has raised a triable question of fact concerning the amount due on the note. In view of our modification, plaintiffs appeal from the order denying its motion to vacate the order staying enforcement of judgment is dismissed as academic. (Appeal from order of Supreme Court, Erie County, McGowan, J.— summary judgment.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Following an investigation, petitioner was charged in a misbehavior report with conspiring to smuggle and possess drugs, drug use and a facility correspondence violation. Petitioner pleaded guilty to violating facility correspondence rules and, after a tier III disciplinary hearing, was found guilty of the remaining charges. The determination was upheld upon administrative appeal, and this CPLR article 78 proceeding ensued.
We confirm. The misbehavior report, hearing testimony, confidential testimony and documentary evidence provide substantial evidence to support the determination of guilt (see Matter of Cognata v Fischer, 85 AD3d 1456, 1457 [2011]; Matter of Smart v New York State Dept. of Correctional Servs., 75 AD3d 1017, 1017-1018 [2010]). Contrary to petitioner’s claim, the misbehavior report was prepared as part of an ongoing investigation and was sufficiently detailed to permit him to defend himself (see Matter of Cognata v Fischer, 85 AD3d at 1457; Matter of Smart v New York State Dept. of Correctional Servs., 75 AD3d at 1018). Petitioner’s remaining contentions, to the extent they are properly before us, have been examined and found to lack merit.
Peters, P.J., Mercure, Lahtinen, McCarthy and Egan Jr., JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.
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—Judgment affirmed (see, People ex rel. Gneco v New York State Div. of Parole, 134 AD2d 389).
Callahan, J. P., and Lawton, J., concur.
Boomer, J. concurs in the same memorandum as in Matter of Williams v Smith ([appeal No. 1], 136 AD2d 917 [decided herewith]).
Denman and Davis, JJ., dissent and vote to reverse and grant the petition, in the same dissenting memorandum as in Matter of Williams v Smith ([appeal No. 1], 136' AD2d 917 [decided herewith]). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J.—art 78.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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—Appeal unanimously dismissed as academic without costs. Same memorandum as in Commercial Credit Seros. Corp. v Cosgriff ([appeal No. 1], 136 AD2d 922 [decided herewith]). (Appeal from order of Supreme Court, Erie County, McGowan, J.—vacate temporary restraining order.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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—Order unanimously reversed on the law with costs, and summary judgment granted defendants, in accordance with the following memorandum: In this action by the vendor under a contract to sell real property, defendants, the buyers, appeal from an order denying their motion seeking summary judgment dismissing the complaint, a declaration that the contract is null and void, and the return of their deposit. Defendants are entitled to the relief requested.
In September 1985 defendants entered into a contract to purchase plaintiff’s house for $55,000, including a $3,500 deposit. The contract was contingent upon the buyers receiving a $45,000 mortgage. The seller agreed to convey "good and marketable title.” In the event that title proved to be unmar*925ketable, either party had the right to cancel the contract on written notice, in which case the deposit would be returned to the buyers. The contract did not specify a time within which written notice of cancellation had to be given, but allowed the seller a "reasonable time” within which to cure any defect in title or to obtain title insurance.
In November 1985, shortly after the buyers received a tentative $45,000 mortgage commitment, a search revealed the existence of a 49.5-foot-wide easement across the property. Notwithstanding the defect in title, it is apparent that the parties hoped that the deal could be closed before the buyers’ mortgage commitment expired. The seller tried without success to obtain a release of the easement from its owner and, alternatively, offered to obtain title insurance, but the record indicates that the defect was uninsurable. Both parties asked the lending bank to "waive” the encumbrance on title but the bank declined to do so, refused to schedule a closing, and, on December 20, rescinded the mortgage commitment. The bank agreed to lend a lesser amount to reflect the diminution in the value of the property as a result of the easement, provided that the buyers agreed to purchase a mortgage insurance policy at substantial additional cost. Thus, notwithstanding the parties’ desire to close the deal, the seller could not tender marketable title as a result of which the mortgage contingency failed.
By letter of December 20, seller informed the buyers that time was of the essence and requested that they resolve their "difficulty” with the bank. On January 3, 1986 seller notified the buyers that they were in default and canceled the contract. On February 18, the buyers formally rejected title to the premises as unmarketable and demanded return of their $3,500 deposit. The seller thereafter commenced this action. In her first cause of action, she seeks a forfeiture of the buyers’ deposit as a consequence of their alleged default. Plaintiff’s second cause of action seeks $4,000 damages as a result of the buyers’ alleged misrepresentation that they were "proceeding to close” and "waiting for a closing to be scheduled.” Plaintiff’s third cause of action seeks $4,000 damages for defendants’ alleged intentional interference with her secondary contract to purchase another residence. Defendants moved for summary judgment dismissing the complaint and the court denied the motion. Although the court found that the easement provided defendants with a valid objection to title, it held that there was a question of fact regarding the timeliness of defendants’ notice to cancel the contract of sale.
*926The record establishes that, when the seller canceled the contract on January 3, 1986, she was in material breach of her obligation to tender marketable title, since she had neither cured the defect nor obtained title insurance to cover it. It is clear that, as a consequence of the seller’s breach, there was a failure of the mortgage contingency. The seller’s breach, coupled with the failure of the mortgage contingency, excused the buyers from further performance of the contract and entitled them to return of their deposit (see generally, 22 NY Jur 2d, Contracts, § 364; 62 NY Jur, Vendor and Purchaser, §§ 126-127, 129, 131). The buyers’ failure to give written notice of cancellation before the seller gave such notice does not entitle the seller to enforce the contract or to recover damages for failure of her secondary contract. Therefore, plaintiff’s first and third causes of action must be dismissed and plaintiff must return defendants’ deposit. Plaintiff’s second cause of action must also be dismissed since the statements relied upon by plaintiff, i.e., that defendants were proceeding to close and were waiting for a closing to be scheduled, did not misrepresent defendants’ present intention to perform (see generally, 60 NY Jur 2d, Fraud and Deceit, §§ 36-39). The record establishes that defendants did intend to close on the terms agreed to by the parties, if possible. (Appeal from order of Supreme Court, Erie County, McGowan, J.—dismiss complaint.) Present—Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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aDIg- ?IlxcxAs
Overruled by amendment to
Aus- 11. .rEzsas Art. 45.04, C.C.P. and to
.--60th
Arta. 998 and1967,
999,ah*V.C.S.,
Lang., 523,
Pmphlet No. 4, Pagea ‘.
March 28, 1961 1171-1172
Honorable J. Edward Line
County Attorney
Deaf Smith County Re: Whether a police officer of
Hereford, Texas a city has the authority to
execute a warrant of anrest
issued out of the corporation
court, outside of the city
but within the county in which
Dear Mr. Line: the city is located?
You have asked the following questions:
"Can a police officer of the City of Hereford, Texas, exe-
cute a warrant of arrest issued out of the corporation court
of Hereford, Texas, outside of the city limits of Hereford,
Texas, within Deaf Smith County."
The City of Hereford is located within Deaf Smith County.
Article 998, Vernon's Civil Statutes, concerning the powers and duties
of police officers, states that:
11
... such officers shall have like powers, rights
and authority as are by said title vested in city
uiarshals."
Article 999, Vernon's Civil Statutes, on the powers and duties of
niarshalsstates:
at. . . he shall have like power, with the sheriff
of the county to execute warrants; ... In the
prevention and suppression of crime and arrest of
offenders, he shall have, possess and execute like
power, authority, and jurisdiction as the sheriff
...n-
In Newburn v. Durham,.88 Tex. 288, 31 S.W. 195, 196 (1895) the
Supreme Court stated:
"Since the jurisdiction of the marshal is
measured by that of the sheriff in the 'pre-
vention and suppression of crime and arrest of
offenders' against the laws of the state, it must
be co-extensive with the limitations of the county."
\
Hon. J. Edward Line, Page 2 (~~-1028)
.
. However, 'in#Minorv. State, 219 S.W.2d 467 (Tex. Crim. 1949) a
majority of the court of Criminal Appeals specifically stated that they
do not agree. Judge Beauchamp, in his concurring opinion stated:
"I cannot subscribe to the implication that a
city policemau has authority equal to that of the
sheriff co-extensive with the bounds of the county."
This view was also expressed by Judge Hawkins in his dissenting opinion.
See also 28 Tex. maw Rev. 862,(note'1950).
We must therefore conclude that a police officer may not execute
a warrant of arrest outside the limits of the city of which he is an offi-
cer unless there is a specific statute giving him authority in a specific
case. See Hurley v. State, 234 S.W.2d 1006 (Tex. Crim.1950).
SUMMARY
A police officer of a city does not have the au-
thority to execute awarraritof arrest issued out
of the corporation court, outside of the city but
within the county in which the city is located.
Very truly 'yours,
WILL WILSON
Attorney General of Texas
,Wk--=+$?
Cecil Cammack. Jr.
AssistantAttorney General
CC:br
APPROVED:
OPINION COMMlTTFE
W.V. Geppert, chairman
W. Ray Scruggs
Jerry Roberts
Dudley McCall-a
John Phillips
REVIEWEBFORTHF.ATTORNEYGENERAL
BY: Morgan Nesbitt
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01-03-2023
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02-18-2017
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https://www.courtlistener.com/api/rest/v3/opinions/6129265/
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— Order vacated and argument ordered.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129266/
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Motion for reargument denied, with ten dollars costs.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6712947/
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Petition by Attorney General for writ of certiorari to review the decision of the Court of Appeals allowed 3 April 1996. The Supreme Court ex mero motu vacates its prior denial of the defendant’s petition for discretionary review of the decision of the North Carolina Court of Appeals pursuant to G.S. 7A-31 and now allows the petition 3 April 1996.
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01-03-2023
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07-20-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901985/
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—Judgment unanimously affirmed without costs. Memorandum: From our review of the record we conclude that the town complied with the State Environmental Quality Review Act (SEQRA). It also took a "hard look” at the relevant areas of environmental concern in its draft and final environmental impact statements and gave a "reasoned elaboration” for its determination (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417).
Special Term erred in determining that this rezoning did not require referral to the Town Planning Board because this rezoning amended the town zoning map, which is a part of the Town Zoning Ordinance (Irondequoit Town Zoning Ordinance §§ 130.22, 130.78). Referral of this proposed rezoning and mall was, however, appropriately made to the Town Planning Board through the December 11, 1985 notice of completion of DEIS, which scheduled a public hearing to consider the mall proposal. This notice, which was mailed to the Town Planning Board, sought written or oral comments on the project and stated that the mall project required the town to rezone 11.8 acres of land. Since no report was received by the Town Board from the Town Planning Board within 45 days of this referral, it was authorized to act on the rezoning (Irondequoit Town Zoning Ordinance § 130.78). On appeal appellants contend that the Town Board was not authorized by the Zoning Ordinance to grant a special use permit to sanction a mall in an M manufacturing district. This issue was not raised at Special Term and has not been preserved for appellate review (Mastronardi v Mitchell, 109 AD2d 825, 828).
Appellants contend that the Town Zoning Board of Appeals acted in excess of its authority or arbitrarily in granting the area variance. The Zoning Board of Appeals was authorized by Irondequoit Town Zoning Ordinance § 130.77 (D) to grant this variance (see, Doldo v Town of Watertown, 94 AD2d 946). Further, the determination to grant the area variance was neither arbitrary nor capricious because the record shows that strict compliance with the ordinance would not have supported a valid public purpose which outweighed the injury to the property owner (Matter of De Sena v Board of Zoning Appeals, 45 NY2d 105, 108).
We have reviewed appellants’ remaining contentions and *929find them to be without merit. (Appeal from judgment of Supreme Court, Monroe County, Siracuse, J.—art 78.) Present —Callahan, J. P., Denman, Boomer, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901986/
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Judgment unanimously affirmed. Memorandum: We find the evidence legally sufficient to sustain defendant’s conviction for burglary in the second degree. Although defendant and the occupant of the burglarized cottage were friends and he had stayed at the cottage overnight on two occasions, this relationship is of no moment under the facts of this case. Defendant had not seen the occupant for some two weeks prior to the breakin, and their relationship did not provide a reasonable basis for any belief that he was licensed or privileged to enter when the occupant was not there (cf, People v Insogna, 86 AD2d 979). Evidence *930that entry was forced and that a jewelry box was broken during the entry is sufficient proof that defendant intended to commit a crime in the building (People v Gilligan, 42 NY2d 969; People v Anderson, 103 AD2d 1011). Reviewing the facts, we find that the verdict was not contrary to the weight of the evidence (see, People v Bleakley, 69 NY2d 490, 495).
The trial court did not abuse it discretion by denying defendant’s severance motion made during the trial. The motion was untimely (CPL 200.40 [1]; 255.20; People v Bornholdt, 33 NY2d 75, 87-88, cert denied sub nom. Victory v New York, 416 US 905), and the defendant failed to demonstrate that he would be unduly prejudiced by a joint trial (see, CPL 200.40 [1]; People v Grant, 96 AD2d 867).
Defendant’s claim that his sentence was unduly harsh and excessive lacks merit. He was sentenced as a second felony offender to the minimum term of imprisonment mandated by statute (see, Penal Law §§ 70.06, 140.25). (Appeal from judgment of Erie County Court, La Mendola, J.—burglary, second degree.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901988/
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held, decision reserved, and matter remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting defendant of first degree rape and related crimes, defendant, a black person, claims that the prosecutor impermissibly used peremptory challenges to exclude prospective black jurors (see, Batson v Kentucky, 476 US 79). The record is insufficient to assess defendant’s claim (cf, People v Scott, 70 NY2d 420). There is no transcript of defense counsel’s voir dire and only a portion of the prosecutor’s voir dire was recorded. Defense counsel on a motion (presumably for a mistrial) stated that the prosecutor peremptorily challenged two prospective black jurors and that each juror, but for her race, would have been suitable for the prosecution. The prosecutor replied that he had a "proper basis” for exercising his peremptory challenges of each black juror based upon "strategy and trial concerns.” The court denied defendant’s motion without explanation. Thus, on this record, we are unable to ascertain whether the prosecutor sufficiently rebutted defendant’s prima facie claim. Accordingly, we hold the case and remit the matter to Erie County Supreme Court to hold a hearing on the issue and to make specific findings of fact and conclusions of law (see, People v Knight, 134 AD2d 845; People v James, 132 AD2d 932; People v Howard, 128 AD2d 804). (Appeal from judgment of Supreme Court, Erie County, Fudeman, J.—rape, first degree, and other offenses.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901989/
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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 found petitioner guilty of violating certain prison disciplinary rules.
Petitioner, a prison inmate, was charged in a misbehavior report with refusing a direct order, smuggling, an unhygienic act, and failing to comply with staff instructions regarding a urinalysis. Following a tier III disciplinary hearing, petitioner was found guilty of the charges. Upon administrative appeal, respondent affirmed, prompting this CPLR article 78 proceeding.
Respondent concedes that the determination of failing to comply with staff instructions regarding a urinalysis must be annulled (see Matter of Gittens v Goord, 249 AD2d 622, 622 [1998]). The misbehavior report, related documentation and testimony at the hearing provide substantial evidence to support the determination of guilt on the remaining charges (see id.; see also Matter of Mungo v Director of Special Hous. & Inmate Disciplinary Programs, 93 AD3d 1057, 1057-1058 [2012], appeal dismissed sub nom. Mungo v Bezio, 19 NY3d 919 [2012]; *1026Matter of Taylor v Fischer, 87 AD3d 1256, 1256 [2011], lv denied 18 NY3d 803 [2012]), and petitioner’s exculpatory testimony presented a credibility question for the Hearing Officer to resolve (see Montilla v Prack, 95 AD3d 1580, 1581 [2012]; Matter of Billue v Goord, 28 AD3d 845, 846 [2006]). Nevertheless, inasmuch as a loss of good time was imposed, the matter must be remitted to respondent for a redetermination of the penalty.
Petitioner’s remaining claim, that his conditional right to call witnesses was violated, lacks merit. Although the Hearing Officer did not make any inquiry into an inmate witness’s refusal to testify when petitioner objected to the absence of a signed witness refusal form or explanation of the circumstances of the refusal (see Matter of Crosby v Selsky, 24 AD3d 990, 991 [2005]), petitioner failed to respond when the Hearing Officer asked how the requested inmate’s testimony was relevant, what the inmate would testify to, and whether the inmate was in the bathroom during the incident. Absent any indication that the requested testimony was relevant, annulment is not required (see Matter of Davis v Goord, 46 AD3d 955, 956 [2007], lv dismissed 10 NY3d 821 [2008]; Matter of Anderson v Morrow, 268 AD2d 638, 639 [2000]; Matter of Konigsberg v Selsky, 255 AD2d 702, 703 [1998]; see also Matter of Ross v Bezio, 75 AD3d 1027, 1029 [2010]).
Peters, P.J., Mercure, Spain, Stein and Egan Jr., JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of failing to comply with staff instructions regarding a urinalysis and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner’s institutional record and matter remitted to respondent for an administrative redetermination of the penalty on the remaining violations; and, as so modified, confirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/2205751/
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205 Md. 489 (1954)
109 A.2d 85
TEMMINK ET AL.
v.
BOARD OF ZONING APPEALS FOR BALTIMORE COUNTY ET AL.
[No. 8, October Term, 1954.]
Court of Appeals of Maryland.
Decided November 18, 1954.
*492 The cause was argued before BRUNE, C.J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.
W. Lee Harrison, with whom were Michael Paul Smith and Douglas G. Bottom, on the brief, for appellants.
John J. Brennan, with whom were Charles W. Held, Jr., and John W. Maguire, on the brief, for appellees.
DELAPLAINE, J., delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for Baltimore County affirming an order of the Board of Zoning Appeals of Baltimore County reclassifying a parcel of three acres of land at Catonsville in the residential development known as Colonial Gardens from an "A" Residence Zone to an "E" Commercial Zone.
The Baltimore County Zoning Enabling Act, enacted by the Maryland Legislature in 1941, authorized the County Commissioners of Baltimore County to adopt a comprehensive plan of zoning regulations and restrictions affecting the erection, alteration and use of buildings and land in Baltimore County for trade, residence, industry and other purposes. Laws 1941, ch. 247. In 1943 the Legislature amended the Act by authorizing the County Commissioners to make special exceptions to the provisions of the Zoning Regulations and providing for special permits for certain uses under the Zoning Regulations. Laws 1943, ch. 877.
On January 2, 1945, the County Commissioners, in pursuance of the authority delegated to them by the Legislature, adopted the Zoning Regulations dividing the county into seven zones, namely: "A" (Cottage) *493 Residence, "B" (Semi-detached) Residence, "C" (Apartment) Residence, "D" (Group) Residence, "E" Commerical, "F" Light Industrial, and "G" Heavy Industrial. Oursler v. Board of Zoning Appeals of Baltimore County, 204 Md. 397, 400, 104 A.2d 568.
In 1945 the Legislature authorized the County Commissioners to vest in the Zoning Commissioner the power to amend, supplement or change from time to time the boundaries of the zoning districts, divisions or zones. Laws 1945, ch. 502, Baltimore County Code, 1948 Ed., sec. 366. The County Commissioners, in accordance with that authority, vested in the Zoning Commissioner the power to reclassify tracts of land.
On May 24, 1952, Colonial Gardens, Inc., owner of a tract of 65 acres of land fronting on Edmondson Avenue at Rolling Road and Old Frederick Road, petitioned the Zoning Commissioner to change the classification of the parcel in question from an "A" Residence Zone to an "E" Commercial Zone in order to provide for a shopping center. On July 21, 1952, the Zoning Commissioner granted the application for reclassification subject to the following restrictions: (1) that no signs other than the signs on the stores be displayed in the area; (2) that no neon signs or flood lights be employed in the area; and (3) that no amplifying system of any kind be used.
Owners of nearby properties, who protested against the shopping center, appealed from the order to the Board of Zoning Appeals. On February 10, 1953, the Board affirmed the decision of the Zoning Commissioner, holding that there is a need for a shopping center in Colonial Gardens, and that the proposed location is an appropriate one.
On March 2, 1953, William M. Temmink, William E. Steigleman and Dr. Eugene L. Pessagno, Jr., filed a petition for a writ of certiorari in the Circuit Court for Baltimore County to review the action of the Board. On January 19, 1954, the Circuit Court affirmed the decision of the Board. From the order of the Court the protestants appealed here.
*494 Neither the Zoning Enabling Act of 1941 nor the amendatory Act of 1943 contained any authorization for appeal from a decision of the Circuit Court to the Maryland Court of Appeals. But in 1953 the Legislature passed an Act providing that an appeal may be taken to the Court of Appeals from any decision of the Circuit Court for Baltimore County reviewing a decision of the Board of Zoning Appeals. This Act expressly provides that the Court of Appeals in such cases shall not award costs of the appeal against any party to the appeal except the appellant. Laws 1953, ch. 634.
It is an established rule that where an application is made for reclassification of a tract of land from one zone to another, there is a presumption that the zones established by the original zoning ordinance were well planned and arranged and were intended to be more or less permanent, subject to change only when there are genuine changes in conditions. Thus, before a zoning board rezones a property, there should be proof either that there was some mistake in the original zoning or that the character of the neighborhood had changed to such an extent that reclassification ought properly to be made. Offutt v. Board of Zoning Appeals of Baltimore County, 204 Md. 551, 105 A.2d 219. Where there has been no mistake in the original zoning of a parcel of land as residential, and the character of the neighborhood has not changed to such an extent as to justify rezoning the land as commercial, and the reasons given by the zoning board for the rezoning are unsupported by the facts, the rezoning order is void. American Oil Co. v. Miller, 204 Md. 32, 102 A.2d 727.
In the case before us the applicant for reclassification makes no claim that the County Commissioners made a mistake in placing the three-acre parcel in a residential zone in 1945. The applicant contends that reclassification of the parcel from residential to commercial would be for the welfare of the public because there has been such a substantial change in the conditions of the neighborhood *495 that a shopping center in this area is greatly needed.
Michael Beccio, of Catonsville, president of Colonial Gardens, Inc., explained that his corporation had commenced the construction of 73 or 74 houses, some of which were completed, and that the plans call for a total of approximately 300 houses. He stated that the proposed shopping center would include 7 stores and a gasoline filling station.
In Cassel v. Mayor and City Council of Baltimore, 195 Md. 348, 73 A.2d 486, this Court said that a use permitted in a small area which is not inconsistent with the use to which the larger surrounding area is restricted, although it may be different from that use, is not "spot zoning" when it does not conflict with the comprehensive plan, but is in harmony with an orderly growth of a new use for property in the locality. Generally, therefore, there is no inherent objection to the creation of small districts within a residential zone for the operation of such establishments as grocery stores, drug stores, barber shops, and even gasoline stations, for the accommodation and convenience of the residents of the residential zone.
In the present case, however, there was a sharp conflict in the testimony before the Board of Zoning Appeals as to whether there has been such a substantial change in the neighborhood and such an urgent need for a shopping center as to justify reclassification. Mr. Beccio pointed out that the population of this vicinity has grown steadily since the zone lines were established in 1945. He also told of the work his corporation has been doing in installing sanitary sewers and gas and water pipes. He claimed that the work of supplying the area with public facilities constituted an element of change in the neighborhood.
On the contrary, the protestants contended that there has not been any substantial change in the character of the neighborhood. They asserted that Colonial Gardens is a development of substantial homes and that the shopping center would depreciate the value of their properties. *496 They felt that the stores at "the Junction," less than a half mile away, and at the Catonsville Shopping Center and at Edmondson Village are adequate to satisfy the needs of the residents of Colonial Gardens and nearby communities.
There was also a conflict in the testimony as to whether the proposed shopping center would produce traffic jams and hazards on the streets in this area. Mr. Beccio claimed that the shopping center would not create any traffic problem on Edmondson Avenue whatever. On the contrary, the protestants claimed that the shopping center would make travel there very dangerous.
We recognize that on an appeal from a decision of a zoning board, the court should not substitute its own judgment as to the wisdom or soundness of action taken by the board, but should decide only whether or not such action was arbitrary or discriminatory. It is not the function of the court to zone or rezone, and it is only where there is no room for reasonable debate as to whether the facts justified the board in deciding the need for its action, or where the record is devoid of supporting facts, that the court is justified in declaring the action of the board arbitrary or discriminatory and therefore void. Offutt v. Board of Zoning Appeals of Baltimore County, 204 Md. 551, 562, 105 A.2d 219.
However, in this case there was cogent testimony on both sides, and after the hearing the Board of Zoning Appeals asked the Baltimore County Planning Commission for its advice. The Planning Commission made a report to the Board, and apparently it was the data supplied by the Commission upon which the Board most heavily relied in reaching its decision. The Board quoted the Commission as advising (1) that a community as large as that which includes Colonial Gardens should have a commercial center, and it should not be necessary to leave the neighborhood in order to obtain food, baked goods, drugs and similar services, and (2) that Edmondson Avenue is the main thoroughfare through this section of Catonsville, and the intersection of Edmondson Avenue *497 and Lee Drive will be a focal point for the movement of traffic and a logical place for a shopping center.
The report of the Commission was not introduced in evidence either before the Board or in the Court below. Thus the protestants had no opportunity to challenge the opinion of the Commission. It must be kept in mind that the personal knowledge of the members of the Board or of some other officials upon whom they rely cannot be considered as evidence as to a change in conditions in a neighborhood or a need for reclassification. As stated in American Oil Co. v. Miller, 204 Md. 32, 43, 102 A.2d 727, the question whether the action of a zoning board was arbitrary must be determined from the facts from which the conclusion was drawn, not from the conclusion itself. In reviewing the action of the zoning board, the court on appeal considers the board's action, not the opinion of its members. We will therefore reverse the order appealed from and remand the case for further hearing when the report of the Planning Commission may be introduced in evidence, and the parties may produce any further evidence and have the right of cross-examination. On certiorari directed to the Board of Zoning Appeals, the Circuit Court has the power to affirm the Board's decision or reverse it in whole or in part, and may remand any case for the entering of a proper order or for further proceedings as the Court shall determine. Laws 1941, ch. 247.
Order reversed and case remanded, the costs to be paid by appellants.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/6129267/
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— Judgment reversed, order of reference vacated, new trial ordered at circuit, costs to abide event. Opinion by
Daniels, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823063/
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I’Anson, J.,
delivered the opinion of the court.
Plaintiff, Hazel Terry Ann Bohon, an infant seven years of age, brought this action by her mother and next friend to recover for personal injuries received when the bicycle on which she was riding as a passenger was struck by an automobile operated by the defendant, Stephen Eugene Manning. The case came on for trial before a jury, and at the conclusion of plaintiff’s evidence the trial court sustained defendant’s motion to strike plaintiff’s evidence, discharged the jury, and entered summary judgment for the defendant.
The sole question presented on this appeal is whether or not plaintiff’s evidence makes out a prima facie case of negligence on the part of the defendant.
*174The accident which caused injuries to the plaintiff occurred in the late afternoon of May 16, 1966, at the intersection of Noble Avenue and Holly Road, in the City of Roanoke. Noble Avenue is 22 feet wide and runs east and west. Holly Road is 37 feet wide and intersects Noble Avenue from the north, forming a “T” intersection. Noble Avenue is on a downgrade as it approaches the intersection from the east, and Holly Road is likewise on a downgrade as it enters Noble Avenue. There were no traffic controls at the intersection. When the accident occurred it was daylight, and the weather was clear.
Numerous photographs, taken from different angles, showing the intersection and the two streets leading up to it, were presented in evidence. One photograph, looking west on Noble Avenue, was taken 7 5 feet from the intersection.
Plaintiff was riding south on Holly Road on a “doubler,” a metal strip over the back fender of a bicycle propelled by William D. White, who was 12 years of age. Young White testified he stopped his bicycle at the edge of the curb line of Noble Avenue, looked both ways, and not seeing any traffic he proceeded into Noble Avenue, intending to make a left turn. While he was in the intersection he saw defendant’s car, which he described as a “green spot” coming very fast from his left, and before he could get out of its way it struck his bicycle, knocking him and his playmate to the hard surface of the street. On one of the photographs introduced into evidence, he marked the point at which he brought his bicycle to a stop before proceeding into the intersection.
Officer W. E. Richardson arrived on the scene shortly after the accident had occurred. He testified that his investigation revealed that the automobile driven by the defendant, who was 17 years of age, was traveling west on Noble Avenue and that it struck the bicycle when it was approximately in the center of the intersection. He was able to determine the point of impact as being 8 % feet into the intersection from the debris in the road which had fallen from the dented left front fender of the car. Defendant’s car traveled 37 feet from the point of impact, 19 feet of which left “real light skid marks to the back of the left front tire.” The defendant told Richardson at the scene that “he did not see the children; he heard a noise, and when he looked back he saw them lying in the road.” Defendant gave his speed at 20 miles per hour.
We have many times said that in passing upon a motion to strike *175all of plaintiff’s evidence at the conclusion thereof, such evidence should be considered very much as on a demurrer. Thus all inferences which may be fairly drawn from the plaintiff’s evidence must be resolved in her favor. Richardson v. Hackett, 204 Va. 847, 849, 134 S. E. 2d 312, 314 (1964); Frye v. Alford, 203 Va. 461, 465, 125 S. E. 2d 177, 180 (1962).
It can be reasonably inferred from the evidence here that the defendant did not keep a proper lookout in the operation of his car. At least one photograph introduced into evidence showed that the defendant had an unobstructed view of the intersection when he was 75 feet away from it. Yet the defendant told the investigating officer that he never saw the bicycle with the children on it move from a stopped position at the curb line of Noble Avenue and proceed 8 l/z feet into the intersection across his lane of travel.
A motorist approaching an intersection is under a duty to keep a reasonable lookout to see another vehicle if it is in plain view, and he is negligent if he fails to do so. Sayre v. Shields, 209 Va. 409, 410, 164 S. E. 2d 665, 666 (1968); Perry v. Thompson, 196 Va. 817, 820, 86 S. E. 2d 35, 37 (1955).
The facts and circumstances here made out a prima facie case of negligence against the defendant. He admitted that he had not seen the children on the bicycle before the impact. Whether plaintiff’s injuries were caused by the faliure of defendant to keep a proper lookout presented a factual question for the jury to determine. It was thus error for the trial court to withdraw the question of defendant’s negligence from the jury and enter summary judgment for the defendant.
Accordingly, the judgment is reversed and the case is remanded for a new trial.
Reversed and remanded.
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901993/
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Order unanimously reversed on the law with costs and motion denied. Memorandum: On July 29, 1984, Amy and Brian Parker hosted a birthday party at their home. Brian Parker and a guest erected a volleyball net in the backyard and later, Louis Arces and his family arrived with a slip-n-slide game. This toy consists of a plastic sheet about 15 to 18 feet long. One end is attached to a garden hose so that water can run onto the sheet. Children then slide on the wet plastic. Arces, with Brian Parker’s assistance, set up the slip-n-slide about 15 feet from the volleyball court area. After the children used it during the afternoon, Arces and Parker removed the slide. Afterwards, Parker noted that the area where the slide had been was damp. Plaintiff Margaret Varga arrived at the party after the slide had been removed and, while playing volleyball, was injured when she slipped on a wet spot.
*933Varga and her husband instituted an action against the Parkers, alleging negligence in permitting a slippery condition to exist. The Parkers commenced a third-party action against Louis Arces seeking contribution. Arces then brought the instant motion for summary judgment upon the limited ground that his conduct in setting up and taking down the slip-n-slide game with Brian Parker’s assistance did not, as a matter of law, give rise to any duty to protect Varga, a fellow social guest, from harm.
Special Term erred by granting summary judgment dismissing the third-party action. A party who engages in affirmative acts which create a danger owes a duty to exercise reasonable care in protecting those exposed to the danger (Zerner v Cohen, 275 App Div 702; Clemens v Benzinger, 211 App Div 586). (Appeal from order of Supreme Court, Erie County, Joslin, J.—summary judgment.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901994/
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Order unanimously reversed on the law without costs and motion granted. Memorandum: Plaintiff commenced this action for injuries arising out of treatment in the hospital by defendant doctors, who prescribed anticoagulant drugs, including Coumadin, manufactured by defendant Du Pont Pharmaceuticals (Du Pont). Plaintiff asserted a cause of action for medical malpractice against the doctors and the hospital and a cause of action for strict products liability and breach of warranty against Du Pont. Since the causes of action asserted against Du Pont are not for medical malpractice, CPLR 3101 (d) (1) (i) is inapplicable. Special Term erred, therefore, in denying Du Font’s motion to compel plaintiff to divulge the identity of his medical expert. The identity of plaintiff’s medical expert shall be disclosed only to defendant Du Pont (see, CPLR 2103 [e]). (Appeal from order of Supreme Court, Cattaraugus County, Ricotta, J.— discovery.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901995/
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Appeal unanimously dismissed without costs as academic. (Appeal from order of Supreme *934Court, Cattaraugus County, Ricotta, J.—renewal.) Present— Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901996/
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Order unanimously affirmed with costs (see, Herman v Wesgate, 94 AD2d 938). (Appeal from order of Supreme Court, Erie County, Rath, J.—summary judgment.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901998/
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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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding to challenge a tier III disciplinary determination finding him guilty of drug use. The Attorney General has advised this Court that the determination has since been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the $5 mandatory surcharge has been refunded to his inmate account. Petitioner has thus been afforded all the relief to which he is entitled and, as such, the petition is dismissed as moot (see Matter of Peterson v Prack, 100 AD3d 1124, 1124 [2012]; Matter of Applegate v Fischer, 89 AD3d 1303, 1304 [2011]).
Mercure, J.P., Rose, Spain, Garry and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129268/
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' Reargument denied.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129269/
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— Order modified, so far as to credit the receiver with the sum of $312.90, and affirmed as modified. Opinion by Daniels, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129270/
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— Order reversed and proceedings remanded for further action, as directed in opinion. Opinion
Per Ouriam.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901997/
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Order unanimously affirmed. Memorandum: While patroling at 10:30 p.m. in an area known for drug trafficking, two officers in an unmarked car observed a group of males congregated about a van parked at a curb. Persons were observed going in and out of the van, and one of the officers saw defendant extend his hand toward another person. As the unmarked car pulled into a driveway across the street to turn around, the group dispersed in all directions. One of the officers got out of the vehicle and asked defendant, who was walking toward the officer, to come over. Defendant responded, "Who me?”, and then ran. He was pursued by both officers and as he ran, he removed his coat and carried it for a considerable distance. While going over a fence, defendant dropped the coat. The officers retrieved the coat and upon searching pockets, found a bag with several glassine packets containing cocaine inside.
The suppression court found that the officers lacked any reasonable suspicion that criminal activity was afoot when defendant was asked to come over to the police vehicle, and that the subsequent pursuit was not justified and was unlawful. The court’s factual findings are supported by the record and since the determination was not clearly erroneous, we decline to disturb it. (People v Prochilo, 41 NY2d 759; People v Goodrich, 126 AD2d 835, Iv denied 69 NY2d 880; People v Sheirod, 124 AD2d 14, 19, Iv denied 70 NY2d 656.)
*935Defendant had the right not to talk with the police and to flee (see, People v Howard, 50 NY2d 583, cert denied 449 US 1023). Where, as here, there were no additional indicia of criminal activity (see, People v Johnson, 64 NY2d 617; People v Lee, 126 AD2d 568, 569-570; People v Torres, 115 AD2d 93, 98), the fact of flight was an insufficient basis for pursuit (People v Howard, supra, at 592; People v Eaddy, 78 AD2d 761), and the pursuit constituted an unlawful detention. The court correctly determined that the coat was dropped as a spontaneous reaction to the hot pursuit and was not abandoned (People v Howard, supra; People v Torres, supra; People v Glover, 82 AD2d 43). Since seizure of the coat was a fruit of the unjustified pursuit and detention, it and its contents were properly suppressed (Wong Sun v United States, 371 US 471; People v Howard, supra). (Appeal from order of Monroe County Court, Egan, J.—motion to suppress.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6777801/
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Certified Question of State Law, No. 397CV7484. On motion to strike brief amicus curiae. Motion denied.
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01-03-2023
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07-21-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5901999/
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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 Commissioner of Corrections and Community Supervision which found petitioner guilty of violating a prison disciplinary rule.
Petitioner commenced this CPLR article 78 proceeding to challenge a tier III disciplinary determination finding him guilty of drug use. The Attorney General has advised this Court that the determination has since been administratively reversed, all references thereto have been expunged from petitioner’s institutional record and the $5 mandatory surcharge has been refunded to his inmate account. Petitioner has thus been afforded all the relief to which he is entitled and, as such, the petition is dismissed as moot (see Matter of Peterson v Prack, 100 AD3d 1124, 1124 [2012]; Matter of Applegate v Fischer, 89 AD3d 1303, 1304 [2011]).
Mercure, J.P., Rose, Spain, Garry and Egan Jr., JJ., concur. Adjudged that the petition is dismissed, as moot, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902000/
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Order unanimously affirmed without costs for reasons stated at Erie County Court, La Mendola, J. (see also, Matter of Girrbach v Levine, 132 AD2d 41). (Appeal from order of Erie County Court, La Mendola, J.—vacate foreclosure sale.) Present—Doerr, J. P., Green, Pine, Balio and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902001/
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Judgment unanimously affirmed. Memorandum: Defendant contends that the trial court erred in admitting on redirect examination a prior consistent statement of Deputy Richards. We agree. A party may not bolster the testimony of his witness through the use of prior consistent statements unless the witness’s testimony has been attacked as a recent fabrication (People v Fagan, 104 AD2d 252, 256, affd 66 NY2d 815). Defendant’s cross-examination of Richards pointed out inconsistencies between his testimony and prior affidavit, but did not charge that the witness’s testimony was a recent fabrication; i.e., a false story made up well after the event, to permit the introduction of prior consistent statements (People v Davis, 44 NY2d 269, 277-278). Even though this admission was error, we find the error to be harmless (People v Crimmins, 36 NY2d 230, 242). There was overwhelming evidence of defendant’s guilt based on the credible evidence of Mr. Brown and two Sheriffs Deputies who were present when defendant attacked and threatened Brown with physical injury if he testified against him. In view of the overwhelming evidence, the introduction of Richards’ prior consistent statement was of little consequence and there was no significant probability that the jury would have acquitted defendant but for this error.
We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Onondaga County Court, Burke, J.—tampering with a witness, *936third degree, and another offense.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902003/
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Judgment unanimously affirmed. Memorandum: Defendant contends that the court’s instructions on circumstantial evidence proving intent were inadequate and prejudicial; that the court’s instructions on impeachment of credibility by evidence of prior conviction were inadequate and prejudicial; that the court’s instructions on the effect of intoxication on intent were inadequate and prejudicial; and that the court improperly marshaled the evidence. None of these claimed errors was preserved for our review (CPL 470.05 [2]), and we decline to exercise our discretion in the interest of justice (CPL 470.15 [3] [c]; [6] [a]). Moreover, were we to reach the merits, we would affirm. (Appeal from judgment of Supreme Court, Monroe County, Reed, J.—burglary, third degree.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129271/
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— Order affirmed,-with ten dollars costs and disbursements. Opinion by
Davis, P. J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129272/
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— Order affirmed, without costs. Opinion
Per Ouriam.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129273/
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Order affirmed, with ten dollars costs and disbursements to be charged upon the appellant personally.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129274/
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Judgment ordered for plaintiff upon the case submitted. Opinion by
Daniels, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129275/
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— Order affirmed, with ten dollars costs and disbursements. Opinion by
Brady, J.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902005/
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—Judgment unanimously reversed on the law without costs, and complaint reinstated. Memorandum: Petitioners commenced a CPLR article 78 petition to annul an amendment by the Town Board of the Town of Kirkland to its Zoning Ordinance, which rezoned approximately two acres of land from R-20 (Residential) to C-l (Commercial). Petitioners’ primary contention in this proceeding was that this action constituted invalid spot zoning.
Special Term pursuant to CPLR 103 (c) converted this article 78 proceeding into a declaratory judgment action and summarily dismissed the action. Because petitioners sought to challenge the constitutionality of this zoning amendment, Special Term correctly converted this proceeding into an action for declaratory judgment (Matter of Amerada Hess Corp. v Lefkowitz, 82 AD2d 882). It was, however, error to summarily dismiss this action. No motion to dismiss the action or for summary judgment was before the court to provide a procedural vehicle for this summary disposition. Further, no notice was given to the parties that the court was contemplating this procedure. Additionally, the allegations of the petition present factual issues which prevent summary dismissal of their spot zoning claim (Cf, Peekskill Suburbs v Morabito, 74 AD2d 843, affd 51 NY2d 941). (Appeal from judgment of Supreme Court, Oneida County, Tenney, J.—declaratory judgment.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6712948/
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Motion by Attorney General to dismiss the appeal for lack of substantial constitutional question allowed 3 April 1996. Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 3 April 1996.
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01-03-2023
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07-20-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823064/
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Gordon, J.,
delivered the opinion of the court.
The indictment in this case charged James Junior Sullivan with burglary of the Alexandria Housing Authority office on March 26, 1966. The trial court, sitting without a jury, convicted Sullivan of burglary and imposed a ten-year sentence. On this appeal Sullivan con*202tends that (1) a stolen credit card was improperly admitted in evidence because it was seized during an illegal search of his person, and (2) the evidence was insufficient to sustain a conviction of burglary.
During the night of March 25-26, 1966, someone forcibly entered the Alexandria Housing Authority office, ransacked the office and attempted to open the safe. On the next business day, Monday, March 28, an Esso credit card was found missing.
At about 2:00 a.m. on June 13, 1966, an Alexandria police officer, who had just received a report of another burglary, drove to a place where he expected the burglar to pass after leaving the scene of the crime. He saw Sullivan there and asked him to identify himself. When Sullivan refused to identify himself and cursed the officer, the officer told Sullivan he was under arrest for disorderly conduct.
Sullivan walked away,‘ and when the officer attempted to detain him, Sullivan hit the officer with his fist. A struggle ensued, but when Sullivan thought the officer was drawing his gun, he stopped resisting and was handcuffed. After Sullivan was taken to police headquarters, a warrant was issued charging him with disorderly conduct, assault and battery, and resisting, obstructing or impeding a police officer in the performance of his duties.1
When Sullivan was searched at police headquarters, the Esso credit card stolen from the Housing Authority’s office was found in his wallet. The credit card was seized and introduced in evidence at Sullivan’s trial for the burglary of the Housing Authority office.
Sullivan did not testify at this trial, and he called only a fingerprint expert to testify on his behalf. The expert testified that latent finger*203prints taken from the Housing Authority’s office did not match Sullivan’s fingerprints.
(1) Sullivan concedes that the search of his person on June 13 would have been legal, though made without a search warrant, if he had been legally arrested. He contends, however, that his arrest was illegal because the Alexandria disorderly conduct ordinance is “unconstitutionally vague and overbroad”.
But defense counsel conceded at oral argument that under the circumstances the police officer had the right to stop Sullivan and ask him for identification. So when Sullivan refused to identify himself, he committed the misdemeanor of obstructing an officer in the discharge of his duties. Alexandria, Va., Code § 23-38 (1963), supra n. 1. Since that misdemeanor was committed in the officer’s presence, the officer had the right to arrest Sullivan. Jordan v. Commonwealth, 207 Va. 591, 151 S.E.2d 390 (1966). And it is immaterial that the officer advised Sullivan he was being arrested for disorderly conduct, instead of for obstructing an officer in the discharge of his duties. Id.
We therefore reject counsel’s contention that Sullivan’s arrest and the search of his person were illegal, without reaching the question whether the Alexandria disorderly conduct ordinance is valid.
Sullivan’s attack on the sufficiency of the evidence raises the question whether his possession of the Esso credit card on June 13 sufficiently connects him with the burglary on March 25-26.
Under Virginia law, upon proof of a breaking and entering and a theft of goods, and if the evidence warrants an inference that the breaking and entering and the theft were committed at the same time by the same person and as a part of the same transaction, “the exclusive possession of the stolen goods shortly thereafter, unexplained or falsely denied, has the same efficiency to give rise to an inference that the possessor is guilty of the breaking and entering as to an inference that he is guilty of the larceny”. Drinkard v. Commonwealth, 163 Va. 1074, 1083, 178 S.E. 25, 28 (1935); Hawley v. Commonwealth, 206 Va. 479, 144 S.E.2d 314 (1965); Fout v. Commonwealth, 199 Va. 184, 98 S.E. 2d 817 (1957).
In this case the Commonwealth proved a breaking and entering and a theft of a credit card, and the evidence warranted an inference that the breaking and entering and theft were committed at the same time by the same person and as a part of the same transaction. Sullivan contends, however, that no inference can be drawn in this case for two reasons. First, the credit card was not “recently” stolen when *204it was found in Sullivan’s possession on June 13. Secondly, the evidence that the latent fingerprints did not match Sullivan’s fingerprints constituted “some evidence to negate [Sullivan’s] involvement in the burglary”.
Wilborne v. Commonwealth, 182 Va. 63, 28 S.E. 2d 1 (1943), disposes of Sullivan’s first contention. In that case we held that where stolen goods were found in the defendant’s possession approximately three months after the burglary, the recency of possession was a question of fact to be determined by the trier of fact.
We agree that the trier of fact could have concluded from the negative result of the fingerprint comparison that Sullivan did not enter the Housing Authority office. But that evidence did not explain Sullivan’s possession of the stolen credit card. His possession being unexplained, the trier of fact could properly find that Sullivan was guilty of burglary.
Affirmed.
“If any person in the city behaves in a riotous or disorderly manner in any street, public building or other public place, he shall, upon conviction thereof, be punished by a fine not exceeding five hundred dollars or by imprisonment in jail for not more than twelve months or by both such fine and imprisonment.” Alexandria, Va., Code § 23-39 (1963).
“Any person who shall commit assault upon another person, without legal excuse or justification, shall be punished by a fine of not less than five dollars nor more than one hundred dollars or by confinement in the city jail for a period of not more than thirty days, or by both such fine and imprisonment.
“Any person who shall commit assault and battery against another person, without legal excuse or justification, shall be punished by a fine of not less than five dollars nor more than five hundred dollars, or by confinement in the city jail for a period not to exceed six months, or by both such fine and imprisonment.” Alexandria, Va., Code § 23-2 (1963).
“It shall be unlawful for any person to resist, interfere, obstruct or impede a city officer or employee in the discharge of his duties.” Alexandria, Va., Code § 23-38 (1963).
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902007/
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—Order unanimously affirmed without costs. Memorandum: Special Term properly granted summary judgment to defendant landlord dismissing plaintiff’s action for damages caused when she was bitten by a dog harbored by defendant’s tenant. In support of her motion, defendant landlord submitted sworn testimony at an examination before trial that she had no knowledge of any vicious propensities of her tenant’s dog. Plaintiff has submitted no proof to the contrary (see, Strunk v Zoltanski, 62 NY2d 572). The facts that the dog was kept enclosed in a yard or chained, particularly in view of the town’s leash law, and that it strained on its chain and barked when people approached the premises, are insufficient to create an inference that the dog was vicious. The facts in the case of Fontecchio v Esposito (108 AD2d 780), cited by plaintiff, differ substantially from the facts averred by plaintiff. In Fontecchio (supra), unlike here, before the incident giving rise to the cause of action the dog not only growled and lunged at people, but charged a mailman and bit his mail pouch, continuing his attack until he was pulled away by the owner. (Appeal from order of Supreme Court, Seneca County, Rosenbloom, J.—summary judgment.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902008/
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Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 9, 2012 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging an October 2010 determination of the Board of Parole denying his request for parole release. Supreme Court dismissed the petition, resulting in this appeal. The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board at which time his *1027request for parole release was again denied. In view of this, the appeal must be dismissed as moot (see Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010, 1010 [2012]; Matter of Russo v New York State Div. of Parole, 89 AD3d 1305, 1305 [2011]). Contrary to petitioner’s claim, we do not find the exception to the mootness doctrine applicable here (see Matter of Marcelin v Evans, 86 AD3d 880, 881 [2011]; Matter of Borcsok v New York State Bd. of Parole, 76 AD3d 1167, 1167 [2010], lv dismissed 17 NY3d 773 [2011]).
Peters, P.J., Lahtinen, Spain, Garry and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902009/
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—Order unanimously affirmed with costs. Memorandum: Parties to a real estate contract have an implied obligation to deal fairly and to act in good faith (McKenna v Case, 123 AD2d 517; Norgate Homes v Central State Bank, 82 AD2d 849) and where no time is expressed in the agreement for the performance of conditions, there is an implied duty to perform within a reasonable time (Trustees of Union Coll, v City of New York, 173 NY 38; Friedman, *941Contracts and Conveyances of Real Property § 1.5, at 145 [4th ed]; 1 Tiffany, Real Property § 202 [3d ed]). Although reasonableness is ordinarily a question of fact, we conclude that the buyer’s failure to contact an attorney for more than three months after acceptance of the purchase offer and the attorney’s delay in disapproving the contract until the date of closing were, under the facts of this case, unreasonable as a matter of law and that the condition of attorney approval ceased to exist because it was not timely exercised. (Appeal from order of Supreme Court, Monroe County, Tillman, J.— summary judgment.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129276/
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— Judgment affirmed on the authority of Hebrew Free School Association v. Mayor (4 Hun, 446).
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/1362208/
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48 Haw. 152 (1964)
397 P.2d 593
STATE OF HAWAII
v.
HAWAIIAN DREDGING COMPANY, ET AL., AND JUE ANAMI, DAVID KAKALIA, KOMAYE OISHI, ET AL.
Nos. 4277, 4347.
Supreme Court of Hawaii.
November 27, 1964.
TSUKIYAMA, C.J., CASSIDY, WIRTZ, JJ., CIRCUIT JUDGE OKINO IN PLACE OF LEWIS, J., DISQUALIFIED, AND CIRCUIT JUDGE JAMIESON IN PLACE OF MIZUHA, J., DISQUALIFIED.
*153 Arthur K. Trask (Kinji Kanazawa and John R. Desha II on the briefs) for Intervenors-Appellants.
Clinton R. Ashford, Special Deputy Attorney General (Shiro Kashiwa, Attorney General, with him on the brief) for Petitioner-Appellee.
OPINION OF THE COURT BY WIRTZ, J.
On August 29, 1941, the Territory of Hawaii instituted a condemnation action in aid of the Keehi Lagoon transpacific seaplane harbor.
The area under condemnation was the sea fishery of Mokauea in Keehi Lagoon. When the action was filed the Territory alleged that the only outstanding private rights in the area were fishing rights and ownership of Kahakaaulana Island (L.C.A. 10611 to Puhene) in the fishery. However, defendant Hawaiian Dredging Company, Limited, claimed not only the fishing rights as the konohiki *154 of the fishery but also the fee simple title to the submerged land in the fishery.[1] The petition was accordingly amended to seek condemnation of the island and of all private rights in the fishery, whatever such rights might be.
None of the Intervenors-Appellants appeared in the case or asserted any rights in the area under condemnation until 1947.[2] Others did not appear until 1951, ten years after the action was commenced.[3] All Intervenors claimed to own undivided interests in the fee simple title to the submerged land and the konohiki fishing rights, claimed by Hawaiian Dredging Company, Limited. Their claims were based upon inheritance from W.L. Moehonua, the awardee of L.C.A. 6450, Apana 1, to which the sea fishery of Mokauea was appurtenant, and upon mesne conveyances from Moehonua's heirs.
During the course of the litigation the Territory made a settlement with the owners of Kahakaaulana Island and obtained a deed. Judgment was entered which in effect quieted title to the island. This judgment was not appealed and disposed of one of the multiple claims in the case.
While the Territory disputed all claims to ownership of submerged land in the fishery, it recognized Hawaiian Dredging Company, Limited, as the owner of the konohiki fishing rights. A settlement with Hawaiian Dredging was effected, by which the Territory, under an exchange deed, acquired all of the rights of that company in the remaining area under condemnation, whatever those rights might *155 be. See, Territory v. Hawaiian Dredging Co., 42 Haw. 627.
The case, then in the nature of an action to quiet title, remained at issue between the Territory (which shortly thereafter attained statehood) and the Intervenors on the issues of whether the Intervenors owned any interests in the area under condemnation. At pre-trial proceedings it was determined, because of its greater importance, that the Intervenors' claims to ownership of submerged land within the fishery be first ascertained before considering their claims to ownership of fishing rights. It is from the judgment entered in favor of the State and denying Intervenors' claims to the submerged land on this issue on July 11, 1961, that the Intervenors have appealed in No. 4277.[4]
Thereafter, Intervenors' claims of ownership of konohiki fishing rights within the fishery came on for trial pursuant to the pre-trial order. Again, judgment[4] was entered in favor of the State denying Intervenors' claims, from which Intervenors have appealed in No. 4347.
Preliminarily, we should consider and dispose of Intervenors' Motions to Dismiss for Lack of Jurisdiction in Lower Court filed in this court in both Nos. 4277 and 4347 on November 30, 1963. After the hearing on these motions on December 20, 1963, their disposition was taken under advisement. The attack on jurisdiction is based on the affidavit of counsel for Intervenors attached to the motions, wherein he deposes: "That Respondents-Appellees, Hawaiian Dredging Company, Limited, filed on December 7, 1951, a motion for dismissal for want of prosecution of eight years * * *." He further deposed that no ruling, order or disposition of the motion to dismiss was made by the trial court.
In support of their motion, Intervenors invoke the *156 provisions of R.L.H. 1955, § 231-4,[5] and contend that its provisions are mandatory and self-executing with the trial court automatically losing jurisdiction of the subject matter. They "urge that the cause of action be dismissed for lack of jurisdiction to proceed after November 19, 1947 [six years from November 19, 1941, the date of Hawaiian Dredging Company, Limited's answer to original complaint of August 29, 1941] and that the parties be left to other remedies at law."
Before this court can even begin to consider Intervenors' motions requesting that all proceedings herein since 1947 (or at least since 1951 or 1952) be declared nullities for lack of jurisdiction, it must first find as an evidentiary fact that Hawaiian Dredging Company, Limited did file the claimed Motion for Dismissal for Want of Prosecution and that circumstances warranting a dismissal under the provisions of R.L.H. 1955, § 231-4, did exist with respect to this action.
There is no basis in the records on these appeals warranting this court to make any of the required findings, nor does any such basis appear in the records of the two previous interlocutory appeals, Nos. 2927 and 4003.[6] While this court may, if it desires, take judicial notice of the cases formerly or now before it,[7] it may not inform itself concerning the record of the trial court by judicial notice. Both statute and rule permit consideration of a *157 record of the trial court on appeal only to the extent that it is duly offered under proper certificate and seal. R.L.H. 1955, § 224-14; H.R.C.P., Rule 75(g).
Rule 75(a) of the Hawaii Rules of Civil Procedure requires that upon taking an appeal the appellant promptly file in the trial court "a designation of the portions of the record, proceedings, and evidence to be contained in the record on appeal." Rule 75(g) provides that only the matters so designated by the parties shall constitute the record on appeal, with the exception of certain automatic pro forma inclusions, such as material pleadings, verdict and the like.[8]
None of the Designations of Contents of Record on Appeal, the Additional or Supplementary Designations, filed by Intervenors, and the Indices to Record on Appeal filed and certified by the circuit court clerk, designates, lists or mentions the Motion for Dismissal for Want of Prosecution now relied upon by Intervenors. Neither do any of those Designations, Supplements to Record and Indices identify or include any documents, papers or proceedings whereby it can be established that circumstances warranting dismissal of the action under the provisions of R.L.H. 1955, § 231-4, were ever present in the case.
Petitioner-Appellee did not file any Designations.
Clearly, neither the Motions for Dismissal for Want of Prosecution, allegedly filed by Hawaiian Dredging Company, nor the facts warranting dismissal under R.L.H. 1955, § 231-4, are within the classes of documents *158 automatically made part of the record under the above-quoted provisions of H.R.C.P., Rule 75(g).[9]
In short, the underlying material essential to consideration of Intervenors' own motions before this court is not part of these records on appeal.
Rule 6(a) of the rules of this court is mandatory in stating that "no facts will be considered unless shown by the record or affidavit." The affidavit of counsel attached to Intervenors' motions hardly cures the basic defects in the record. In its reference to documents filed in the trial court or in prior appeals in this court, it is not the best, as certainly it is incomplete evidence. The affidavit amounts to no more than a statement of conclusions and argument. It is elementary that an appellant must furnish to the appellate court a sufficient record to positively show the alleged error. Marn v. Reynolds, 44 Haw. 655, 663, 361 P.2d 383.
We would be inclined to dismiss Intervenors' motions but for the fact of counsel's late entrance into the case on appeal and further that acceptance of the facts set forth in his affidavit at face value avail him little when the motions are considered on their merits.
In effect, Intervenors' contention under their motions to dismiss is that the dismissal provisions within the second sentence of R.L.H. 1955, § 231-4 (quoted above in footnote 5) operate, upon the happening of the events stated therein, to oust the trial court of jurisdiction over the subject matter of the cause.
We cannot so view it. It takes but little reflection to perceive the absurdity that would result in cases where multiple defendants, not acting in concert, were involved. Even in this case, the first of the Intervenors filed their answers on November 15, 1947, a bare four days before the trial court allegedly lost jurisdiction of the cause and *159 four years before the Motion for Dismissal for Want of Prosecution was filed by Hawaiian Dredging Company, Limited. The remaining Intervenors did not enter the case until August 14, 1951, after the trial court was supposedly without jurisdiction and but four months prior to the motion for dismissal. To accept Intervenors' construction would impugn the intelligence of the legislature and could strain the constitutionality of the legislative act as well insofar as due process is concerned.
This court has intimated in Arnold v. City and County, 45 Haw. 165, 167, 363 P.2d 968, that the dismissal provision in R.L.H. 1955, § 231-4, might well be a procedural matter and rendered ineffective upon the adoption of appropriate rules covering same under the powers conferred by Article V, Section 6 of the Constitution for the State of Hawaii. Chapter 231 is within Title 28 of the Revised Laws of Hawaii entitled "Pleadings and Procedure." The entitlement of Chapter 231 is "Court Trials," and the subdivision of that chapter containing section 231-4 is headed "Calendar." The first section of the "Calendar" subdivision, R.L.H. 1955, § 231-1, grants authority to courts of record to make rules for the guidance of their clerks in making up trial calendars. All of the other sections in that subdivision deal with the timing and manner of disposition of cases on the trial calendars. Within section 231-4 itself, the first sentence covers advancement or postponement of cases on the trial calendar. It would indeed seem incongruous for the legislature to insert, within this framework, a provision governing trial courts' jurisdiction over the subject matter of cases pending before them.
Further, Act 117, S.L. 1937, which enacted the dismissal provision now in R.L.H. 1955, § 231-4, was entitled "An Act to Amend Section 4106 of the Revised Laws of Hawaii 1935, Relating to the Order of Trial Cases" *160 (emphasis added). Subsequent acts further amending that section contained titles showing amendments to "Section 4106 * * *, Relating to the Trial of Cases in the Circuit Courts."[10] Neither the act by which the dismissal provision was enacted nor any of the subsequent acts amending other portions of that section expressed in their titles the fact that jurisdiction of the trial courts was affected. Those acts could hardly have been intended to affect jurisdiction over the subject matter in limitation of the trial courts' jurisdiction. Organic Act, § 45; Hawaii Const., Art. III, § 15.
The cases relied on by Intervenors are of little help. No one takes issue with the proposition advanced by Boeing Airplane Co. v. Board of County Comm'rs, 164 Kan. 149, 188 P.2d 429, that jurisdiction of the subject matter can be questioned on appeal. Davant v. Coachman Properties, 118 So. 2d 844 (Fla. 1960), deals with a statute utterly dissimilar to our own. The earlier California cases of Henderson v. Palmer Union Oil Co., 64 Cal. App. 81, 220 P. 672 and Christin v. Superior Court, 9 Cal. 2d 526, 71 P.2d 205, granted "mandatory" dismissals under the provisions of section 583 of the California Code of Civil Procedure. However, the more recent California cases have construed that section to be merely a procedural provision, that expiration of the five-year period therein provided does not deprive the court of jurisdiction and that a party may be barred from claiming the benefit of the limitation. In re Thatcher's Estate, 120 Cal. App. 2d 811, 262 P.2d 337; Bayle-Lacoste & Co. v. Superior Court, 46 Cal. App. 2d 636, 116 P.2d 458.
Be that as it may, the most that can be said of R.L.H. 1955, § 231-4, is that it affects merely the court's jurisdiction over the parties. Lack of jurisdiction over a party *161 being a personal matter may be waived. Kaui v. County of Kauai, 47 Haw. 271, 386 P.2d 880. It can be given no greater effect than is given to statutes of limitation barring the prosecution of stale claims, the defense of which is waived by a failure to plead same. H.R.C.P., Rules 8(c), 12(b) and 12(h); Borba v. Kaina, 22 Haw. 721.
Intervenors' extensive participation in the case subsequent to 1952, including their substitution of successors in interest for Intervenors who had died, answering the second amended petition in 1958, framing issues for trial through pre-trial proceedings on May 26, 1961, engaging in trial on the merits and appealing adverse judgments certainly precludes any claim of lack of jurisdiction over the persons of Intervenors. Further, at no time during all of their participation in the case did Intervenors raise the limitations defense now raised under their Motion to Dismiss for Lack of Jurisdiction in Lower Court. The motions must be denied.
Bayle-Lacoste & Co. v. Superior Court, supra, 46 Cal. App. 2d 636, 116 P.2d 458, involved a fact situation similar to our own. There, numerous defendants in a condemnation action were cited in by fictitious names. A corporation appeared late in the case, after expiration of the five-year period, and asserted a claim. Later, however, it attempted to have the action dismissed on the ground that it had not come to trial within the statutory period. The court refused to condone this conduct, stating: "Litigants should not be permitted to inject themselves into a controversy, raise issues therein and then change position and seek to avoid a contest." 116 P.2d 458, 464.
We now consider the appeal in No. 4277 on its merits. It is clear that the Intervenors' claims to ownership of land within the fishery depend upon their construction being put upon L.C.A. 6450, Apana 1, to Moehonua. The *162 issue under this appeal turns solely upon the scope of that award.
Land Commission Award 6450 encompassed 10 apanas (parcels of land). Apana 1 embraced the Ili of Mokauea,[11] consisting of kula (dry) land, fishponds and a sea fishery. In Volume 6 of the Land Commission Awards there are two descriptions and diagrams of Apana 1. One of the descriptions is set forth on page 486, with the diagram thereof at page 488, and the other, with accompanying diagram, is set forth on page 769. The description at page 486 is crossed out and both on that page and in the diagram on page 488 there are notations referring to the description and diagram on page 769 as being the correct one.
The description and diagram at pages 486 and 488[12] included part of the sea of Mokauea, that is, an area of approximately 199 acres makai (seaward) of the fishpond walls. In the corrected description and diagram at page 769, this area in the sea was omitted, the makai boundary of the Apana being limited to direct azimuths and distances along the fishpond walls.
The submerged land area omitted from the second description at page 769 is the area, claimed by Hawaiian Dredging Company, Limited,[13] in which the Intervenors claim individual interests in fee simple. They contend that the description and diagram at pages 486 and 488 control, to the exclusion of the description and diagram at page 769. The State contends that only the land described and depicted at page 769 was awarded, that title to the sea bottom makai of the fishpond walls remained in the Hawaiian government, and that the original awardee and his successors in interest had only konohiki *163 fishing rights[14] in the area makai of the fishpond walls. The judgment[15] entered in the trial court and appealed from in No. 4277 upheld the contention of the State.
Initially, Intervenors claim that the scope of L.C.A. 6450, Apana 1, has been judicially determined in Kapiolani Estate, Limited v. Terriotry of Hawaii, supra, Law No. 5123, First Circuit Court and that the judgment entered therein is res judicata of the issue herein presented in No. 4277. In this connection they specify as error the finding of the trial judge "that the judgment in Law No. 5123 * * * was not a binding precedent on the scope of the award made by the Land Commission Award 6450, Apana 1."
By way of explanation of the background of this judgment it seems appropriate to digress for the purpose of reviewing some of the history of this award to Moehonua. During the course of administration of Moehonua's estate, the Ili of Mokauea and Moehonua's other remaining property had been subdivided and sold. King Kalakaua purchased the Ili of Mokauea which subsequently passed by mesne conveyances to Kapiolani Estate, Limited. After passage of the Organic Act, Kapiolani Estate filed proceedings in the circuit court, as permitted by Section 96[16]*164 of the Organic Act, to preserve the konohiki fishing rights, which otherwise would have expired under the terms of Section 95[17] of the Act. In an amended petition filed in those proceedings, Kapiolani Estate claimed not only the konohiki fishing rights in Mokauea, but also fee simple ownership of the soil under a portion of the fishery (the submerged land here involved). The claim to ownership of this submerged land was based upon the description of Apana 1 at page 486 of Volume 6. The judgment entered in the case confirmed the ownership of the konohiki fishing rights in Kapiolani Estate and also purported to adjudicate that the Estate was the owner of all of the premises described in the earlier description of Apana 1, that is, the description set forth, and crossed out, at page 486 of Volume 6 of the Land Commission Awards.
Although no appeal was taken from this judgment in Law No. 5123, the State contends that this judgment was void, for lack of jurisdiction, insofar as it purported to establish fee simple title to the submerged land in question. It should be noted that the State's chain of title through Hawaiian Dredging Company, Limited (successor in interest to Kapiolani Estate, Limited), includes whatever Kapiolani Estate owned in the area under condemnation, and extends back to Moehonua through the deed made by his estate to Kalakaua. Intervenors' claim, on the other hand, is adverse to the claim of Kapiolani Estate, it being Intervenors' contention that the submerged land area of Apana 1 was not conveyed to Kalakaua (contrary to the judgment in Law. No. 5123) but remained in the *165 heirs of Moehonua, under whom they claim.
This, then, is the basis for Intervenors' contention that the State was precluded in the trial court from again litigating the issue as to which of the two descriptions of Apana 1 correctly describe the land awarded by the Land Commission in L.C.A. 6450, Apana 1.
In support of this contention Intervenors have cited authority stating the principles of res judicata. Holelua v. Kapu, 5 Haw. 305, 306; 30A Am. Jur., Judgments, § 371, pp. 411-415. That authority recites the well known limitations that the doctrine of res judicata applies only as between the parties to the earlier action or their privies and only insofar as the court rendering the judgment had jurisdiction of the parties and the subject matter. See also, Glover v. Fong, 42 Haw. 560, 573, and Makainai v. Lalakea, 29 Haw. 482, 485.
In this action the State of Hawaii is privy to both parties to Law No. 5123, being Kapiolani Estate, Limited's successor in title and the Territory's successor in title and in sovereignty. The Intervenors, on the other hand, are privy to neither of the parties in Law No. 5123.
Furthermore, the circuit court in Law No. 5123 had no jurisdiction to adjudicate anything but the extent and ownership of fishing rights. Sections 95 and 96 of the Organic Act (set out in footnotes 16 and 17, ante) established a special type of statutory proceeding in eminent domain for public acquisition of all vested private fishing rights in sea fisheries. Section 96 conferred jurisdiction on the circuit court to hear the initial step in each proceeding, that is, the establishment of ownership of the fishing rights and of the boundaries of the fishery. Bishop v. Mahiko, 35 Haw. 608. No general jurisdiction was conferred upon the circuit court by that section. Furthermore, actions thereunder to establish fishing rights were not actions to quiet title. Kapiolani Estate v. Territory, *166 18 Haw. 460 (involving a Hanapepe River fishery). Kapiolani Estate invoked this special jurisdiction in its complaint and amended complaint in Law. No. 5123. Consequently, the circuit court was restricted to the exercise of that special statutory jurisdiction, which did not include power to adjudicate title to the submerged land in question.
Intervenors seem to have maneuvered themselves into a rather untenable position. In invoking this judgment in the Mokauea fishery registration case as res judicata of the boundaries of Apana 1 to include the submerged land of a portion of the fishery they perforce are confronted with the determination in that judgment, also res judicata under their theory, that ownership in fee simple of that submerged land in question is in the State's predecessor in interest, Kapiolani Estate, adverse to their claim.
It becomes unnecessary to consider at length the question whether this judgment in Law No. 5123 is binding upon the parties in the present action as a matter of precedent rather than as res judicata. Intervenors in their reply brief have insisted that "the question presented is not one of stare decisis but one of res judicata." In any event, the judgment in Law No. 5123 was a single decision entered by the judge of a coordinate court lacking jurisdiction on a disputed question of fact and not a decision announcing or applying a principle of law. Glover v. Fong, supra, 42 Haw. 560; 21 C.J.S., Courts, § 187; 21 C.J.S., Courts, § 186. Following "precedent" set by a court of coordinate jurisdiction is merely a matter of comity and is applicable only when a court entertains doubt as to its own views. 21 C.J.S., Courts, § 200. Here, apparently the evidence left the trial judge with no doubt concerning the ruling to be made.
There was no error in the refusal of the trial judge to consider the judgment in Kapiolani Estate, Limited v. *167 Territory of Hawaii, supra, Law No. 5123, First Circuit Court, a binding precedent concerning the scope of Land Commission Award 6450, Apana 1.
We come now to the remaining and principal question raised on this appeal: Did the evidence require a ruling (contrary to that made by the trial judge) that the property awarded by L.C.A. 6450, Apana 1, was that described at page 486 of Volume 6 of the Land Commission Awards?
Pursuant to the pre-trial order, this case went to trial on the issue whether Intervenors owned any land in the area under condemnation. The Intervenors' theory was that the Land Commission Award covering the Ili of Mokauea carried with it the title to certain of the land underlying the sea fishery of Mokauea and that the title to that land remained in the awardee's heirs until conveyed to or inherited by the Intervenors. It became incumbent upon them to establish that initial title, stemming from L.C.A. 6450, Apana 1, as described at page 486, Volume 6, Land Commission Awards. On the other hand, if the original title covered only the property described at page 769, Volume 6, Land Commission Awards, which omitted any land underlying the sea fishery, the Intervenors owned no land in the area under condemnation.
Intervenors contend that the lower court's judgment was based on erroneous findings of fact and conclusions of law. Their specifications of error[18] cover all of the *168 conclusions of law except those directing entry of the appropriate judgment and preserving jurisdiction to adjudicate other claims. They attack only the weight and sufficiency of the evidence. Their argument is that there was no evidence to support those conclusions of law and many of the findings of fact on which they were based.
In reviewing the evidence presented to the trial judge on the question of the scope of the award made by L.C.A. 6450, Apana 1, the admonition is ever present that findings of fact of the trial court will not be set aside unless the appellate court is left with a definite and firm conviction that a mistake has been committed. H.R.C.P., Rule 52(a); Filipino Fed. of America, Inc. v. Cubico, 46 Haw. 353, 380 P.2d 488; Peine v. Murphy, 46 Haw. 233, 377 P.2d 708; Mitchell v. Branch, 45 Haw. 128, 363 P.2d 969; Miller v. Loo, 43 Haw. 76; Lum v. Stevens, 42 Haw. 286; Hawaii Builders Supply Co. v. Kaneta, 42 Haw. 111.
Examination of Volume 6 of the Land Commission Awards discloses the following:
The ten apanas of L.C.A. 6450 described by metes and bounds at pages 486 and 487 are followed by the diagrams of those apanas at pages 488 to 490. At the top of page 491 appears the statement of costs ($30), the recital that the claim is awarded as a freehold less than allodial which may be converted to an allodium upon payment of the government's one-third, the signatures of the Land Commissioners *169 and the date, September 17, 1851. The metes and bounds description of Apana 1, however, is crossed out with a large "X", and above it is written "See Page 769, Apana 1. (It is the correct one)." Within the diagram of Apana 1 at page 488 there is a note signed by J.L. Nailiili, a clerk of the Land Commission, which states: "Explanation: Apana 1 copied on this page; the sea has been changed and set aside, and recopied on page 769. It is the correct one." In the lower part of the diagram, within the area labeled "Sea of Mokauea," there is a further notation reading "sea set aside."
At page 769, under the same award heading, there is another metes and bounds description, and diagram, of Apana 1, L.C.A. 6450. In this description and diagram the sea area of Mokauea is omitted. Above the award heading is the notation "Signatures to this as amended on P. 491." Above the description is the note "(From Page 486)," and below the diagram is the reference "See Page 486." There were no signatures or date on page 769.
In their attempt to counter the plainly indicated omission of the sea area of Mokauea by the correction of the description of Apana 1 in the Award, Intervenors adduced the following evidence: there were numerous cases of corrections in all the volumes of Land Commission Awards; the corrections were the basis for the award; in many instances corrections were signed by one or more of the commissioners, in others they were signed by the secretary of the commission and by both the secretary and the commissioners; nine examples of corrected awards signed by one or more of the commissioners (certified photostatic copies) were introduced in evidence as exhibits; the judgment in Law No. 5123 (referred to at length above) was offered to show that the description at page 486 of Volume 6 properly described the property awarded under Apana 1; Government Survey Registered *170 Map No. 1471, dated 1883, describing the Mokauea Fishery area as "No Fishery Awarded. Simply held under Statute," was received as an exhibit.
It can be readily seen that some of this evidence militates against Intervenors' claim that the corrected description of Apana 1 should be ignored. In the face of documented correction, with unequivocal memoranda concerning it, in the official volume of the Land Commission, the remainder of the evidence is hardly adequate to establish that the sea area was awarded.
There is no dispute as to Intervenors' contention that Land Commission Awards conferred title and were final. Kekiekie v. Dennis, 1 Haw. 42; and see Kenoa v. Meek, 6 Haw. 63; Rose v. Yoshimura, 11 Haw. 30. But Intervenors further argue that the award in this case was complete on September 17, 1851, when it was signed by the commissioners and that the clerk of the Land Commission had no authority to alter the award. This argument assumes that the corrected description and diagram of Apana 1 (both undated) were prepared subsequent to September 17, 1851. It must be said that there is support for that assumption in that the corrected description appears at a later page in Volume 6 and that one of Nailiili's references to it bears the date of March 25, 1853.
However, this court quite early took notice of the fact that portions of awards were often prepared well in advance of being finally settled and signed. Boundaries of the Ili of Kewalo, 3 Haw. 9, 15. It is much more reasonable to assume that the original description here was prepared in advance, and that when errors in it were discovered they were crossed out and the corrected description entered and cross-referenced in the Award Book before the commissioners affixed their signatures to the award. This assumption is substantiated by the facts in evidence that both descriptions were prepared by the same surveyor and *171 that he billed the Land Commission and was paid before the award was signed. It is further bolstered by the fact that the Certificate of Award (received as an exhibit) ultimately issued to the awardee bore the same date as the award and had attached to it a certified copy of the corrected description of Apana 1. Both the Certificate of Award and the certified copy of the corrected description were signed by one of the Land Commissioners. Finally, it was demonstrated at the trial, through examination of Volume 6, that the page 769 description could well have been made almost contemporaneously with the page 486 description.
It can hardly be said that Intervenors' evidence was sufficient to justify a finding that the original description of Apana 1, as it stood before correction, should prevail, much less to require a finding or to produce a definite and firm conviction that the trial judge made a mistake in determining that the corrected description of Apana 1 at page 769 properly delineated the land covered by the award.
On the other hand the State introduced a substantial amount of evidence to demonstrate that the correction of the original description of Apana 1 and the refusal of the Land Commission to award any land underlying the sea fishery were consistent with established practice and policies of the Land Commission. The State also introduced evidence to show that the correction was made before the Certificate of Award was delivered to the awardee and before the award became final.
Corrections in the Award Books were routinely made.[19]*172 Witnesses for both the State and Intervenors testified to their knowledge of the existence of scores of errors and corrections. Examination of Volume 6 in court showed that corrections could be found in that volume merely by opening the book at random. There was testimony that in Volume 6 alone there were at least one hundred pages bearing corrections.
There appears to have been no consistent practice concerning the explanation of corrections, referencing the authority for corrections, or the signing of corrections. The evidence showed that some of the corrections were accompanied by explanatory notes and others without; in cases where there were explanatory notes, some of them referred to the correction as having been made with the authority or at the direction of the commission, while others contained no mention of the authority for the change. Sometimes the corrections were signed by all or some number less than all of the commissioners. In many instances the corrections were not signed by any of the commissioners.[20]
However, the evidence showed that in every instance where the award had been compared with the Royal Patent later issued on the award, it had been found that the patent followed the corrected description, not the initial description, in the award. This would confirm the validity and efficacy of the correction, irrespective of the particular manner in which the corrections were made.[21]
*173 The evidence further showed that the Land Commission generally declined to award sea fisheries as land; and in the one or two cases which slipped through because of oversight, the government, in disputing the claims, satisfactorily compromised them. While the Land Commission did have incidental jurisdiction with respect to sea fisheries (Bishop v. Mahiko, supra, 35 Haw. 608, 655-656) the commission regularly declined to exercise even that jurisdiction. See, Carter v. Hawaii, 200 U.S. 255.
The evidence conclusively demonstrated that awards were not delivered, and clear title was not conveyed, until the costs had been paid by the applicant. See also, Principles Adopted by the Board of Commissioners to Quiet Land Titles, August 20, 1846, ratified by Resolution of October 26, 1846, Laws of 1847, page 94 (reprinted II R.L.H. 1925 at pp. 2124-2137), and Kalama v. Kekuanaoa & Ii, 2 Haw. 202. The Certificate of Award given the applicant clearly made the payment of costs a condition precedent to the award taking effect. This was true in this case as the Certificate of Award issued to Moehonua (photostatic copy in evidence as an exhibit) states in part (emphasis added):
"Certificate of Award
"The board of commissioners to quiet land titles this day confirms * * *.
"This certificate recognizes as his freehold less than allodial, the land for which he is submitting claim, at * * * on the Island of * * *, upon payment of expenses in connection with the service to the sum of * * *.
"If this afore-mentioned sum is not paid, this certificate does not award him a clear title * * *."
The correction of the initial description of L.C.A. 6450, Apana 1, and the award of that Apana made by the commission using the corrected description, were wholly consistent with the policies and practice above discussed.
*174 There appear to have been two principal reasons necessitating a revision of the Volume 6, page 486, initial description. The first was that the original survey included the sea fishery of Mokauea, which the commission treated as being not within its jurisdiction and which it would not award as it did land. In this instance, the sea fishery was not separately described, but was lumped together with the kula land and fishponds in a single all-encompassing description. The award could not be corrected, as in the case of a separately described fishery, by merely striking out the Apana which covered the fishery. An entirely new description was required.
The second reason was that the initial survey was defective. Notwithstanding the diagram of that survey appearing at page 488 of Volume 6, the survey would not close. The evidence demonstrated that when the metes and bounds description originally prepared by the surveyor was plotted it failed to close, missing closure by more than one thousand feet. Among other things, in the page 486 description, the surveyor had completely left out one course and had erred in both azimuths and distances on other courses.
The corrected metes and bounds description of Apana 1, set forth at page 769 of Volume 6, conformed to the jurisdiction of the commission, eliminated the errors, fit the conditions on the ground and did close.
In making the correction, the commission followed its consistent practice of crossing out that which was in error and inserting a reference to the volume and page at which the corrected version appeared. This cross-referencing effected an incorporation of the corrected description and diagram at page 769 into the body of the award at pages 486 to 491 of Volume 6. Incorporation by reference makes the subject matter referred to as much a part of that which incorporates it as though set forth therein at full length. *175 Cf., Davis v. Governor Quinn, 43 Haw. 261.
The records of the Land Commission (photostatic copies in evidence as exhibits) clearly indicate, also, that the award of Apana 1 was not delivered until the awardee had paid the costs, and that the correction was made before those costs were paid. The costs of adjudication of Apanas 1 through 10 were $30 and the costs of survey were $50 for a total of $80. On March 4, 1853, Moehonua paid $74 to the commission for the costs of adjudication of Apanas 2 through 10. That payment did not include payment of the costs of adjudication of Apana 1. The payment of $6 for the latter was not made until March 26, 1853. This payment for Apana 1 was made the day after the clerk of the Land Commission had made the notation, dated March 25, 1853, in the diagram of Apana 1 at page 488, to the effect that the sea had been set aside and that the correct description of the apana was set forth at page 769. It is obvious that the entry at page 769 must have been made prior to March 25, 1853, otherwise the clerk would not have known to what page to refer for the corrected description. It is also clear that the Certificate of Award, although dated on the same date as the award, could not have been given to Moehonua on that date (September 17, 1851) because it was a printed form containing an internal reference (which had been crossed out) to the Act of June 19, 1852. In any event, as previously mentioned, the award did not become effective until the costs were paid. They were not paid until after the correction had been made, entered in the Award Book and cross-referenced therein.
That the Land Commission construed its award of Apana 1 as covering only the land described at page 769 of Volume 6 is evidenced in both the official index of awards prepared by the Land Commission and in the certified copy of the descriptions of the apanas which the *176 commission furnished to Moehonua. This copy was certified to be a true copy by J. Kekaulahao, one of the Land Commissioners, who had also signed the original award and embodied therein the description of Apana 1 as set forth at page 769 of Volume 6.
There is no record that Moehonua ever appealed the decision of the Land Commissioners to exclude the Mokauea sea fishery from his award, or that he was dissatisfied with the corrected award. All the evidence is to the contrary. His complete acceptance of the fact that the description of the land as corrected at page 769 covered everything to which he was entitled to be awarded in Mokauea is evidenced by his dealings with the land. In 1857 he mortgaged Mokauea to J.E. Barnard utilizing the corrected description. In 1865 he leased the konohiki fishing rights to Moolaka and Pehunui, acknowledging that he owned only fishing rights in the sea of Mokauea. In 1871, he introduced into evidence the corrected description in a suit involving a fishpond and some of the land covered by L.C.A. 6450. Kapea v. Moehonua, 6 Haw. 49. In 1873, as an adjoining owner, he relied on the corrected description in proceedings for the settlement of the boundaries of Kaluapulu.
In confirming the applicant's title, a Land Commission Award is similar to a deed by which title is granted. That Moehonua, as grantee, and the Land Commission, as grantor, construed the award of Apana 1 as covering only the land described at page 769 of Volume 6 cannot be doubted in view of the foregoing. If considered ambiguous, the construction given a deed by the parties to it will be given effect unless it contravenes some rule of law. Nahaolelua v. Heen, 20 Haw. 372; Levy v. Lovell, 24 Haw. 716; see, Bishop Estate v. Castle & Cooke, 45 Haw. 409, 368 P.2d 887.
Moehonua died intestate in 1878. Following his death *177 there was extensive judicial proceedings in connection with his property, both in the administration of his estate and in collateral cases in which claims to his property were made. If there had been any mistake or invalidity in the correction of the description and award of Apana 1, it would certainly have been brought to light in such proceedings. Such evidence as can be obtained from those cases confirms that none of the parties concerned held any belief that Apana 1 carried with it the title to any submerged land in the sea fishery of Mokauea.
The scramble for the land covered by L.C.A. 6450 began in 1882 in proceedings to determine Moehonua's heirs. King Kalakaua unsuccessfully claimed one-quarter of the estate as a nephew of Moehonua. Estate of Moehonua, 6 Haw. 338. In 1883 Queen Kapiolani joined with Kalakaua in asserting an additional claim as grantee. They were thwarted in Kalakaua v. Keaweamahi, 4 Haw. 571, and in Kalakaua v. Keaweamahi, 4 Haw. 577. In the latter suit reliance was placed on the corrected description of Apana 1 and the record discloses no objection by any of the parties, which included all of Moehonua's heirs, that Apana 1 was not correctly described at page 769 of Volume 6.
Kalakaua, having failed to establish any of his claims, eventually acquired the Ili of Mokauea by purchase from Moehonua's estate. At the completion of administration, Moehonua's heirs petitioned the probate court to appoint a commissioner to survey, plot and sell all of Moehonua's remaining property at public auction. For this purpose the commissioner utilized the corrected description of Apana 1 appearing at page 769 of Volume 6. After the public sale the proceeds were divided among Moehonua's heirs.
Examination of the proceedings in Moehonua's estate confirms that Moehonua's administrator and Moehonua's *178 heirs did not conceive that the estate owned any land in the sea fishery of Mokauea, and that in any event it was their intention to sell whatever was owned by the estate to Kalakaua. If, as Intervenors contend, any submerged land was owned by the estate, it passed to Kalakaua, the State's predecessor in title, who purchased, under the deed in evidence, all of the parcels constituting the Ili of Mokauea as well as the appurtenant fishing rights. A deed should be construed most favorably to the grantee. Ahmi v. Waller, 15 Haw. 497, 499. Further, if an ambiguity exists, the situation of the parties to the deed should be considered in determining their intention, and the intent so determined should be given effect if practicable. Nahaolelua v. Heen, supra, 20 Haw. 372; Levy v. Lovell, supra, 24 Haw. 716; see, Bishop Estate v. Castle & Cooke, supra, 45 Haw. 609, 368 P.2d 887.
The fact that Moehonua's administrator and his heirs recognized that Apana 1 did not extend into the fishery, and that the estate owned only fishing rights therein, is further evidenced by the inventory filed in the estate and by a lease made to Moehonua's principal heir. In both instances, Apana 1 was described in accordance with the corrected description at page 769 of Volume 6.
The Land Commission had the powers of a court of record and its awards were equivalent to final judgments unless reversed or modified by the Supreme Court on appeal. Keelikolani v. Robinson, 2 Haw. 522. The evidence hereinabove discussed establishes conclusively that the awardee, his administrator and his heirs acquiesced in the construction of the award urged by the State in these proceedings. Construction of a judgment acquiesced in by the parties will not be changed without strong reason. 49 C.J.S., Judgments, § 436.
It was further established at the trial of this cause that Moehonua's successors in title also acquiesced in the *179 construction intended by the Land Commission and urged by the State. In the deed by which Kalakaua divested himself of title to the property in 1887, the acreages used were the same as those stated in the commissioner's deed to Kalakaua. The same was true of the later conveyance of that land to Kapiolani Estate, Limited in 1899. In the interim Queen Kapiolani had mortgaged the land, using the same method of description. She had also leased the Mokauea fishponds together with right to "net mullets from the sea rights," thus recognizing the fact that she had only konohiki fishing rights in the sea of Mokauea.
It was not until after the turn of the century, in 1902, that any claim to ownership of fee title to the submerged land area was made by any of Moehonua's successors in interest. Kapiolani Estate, Limited, the then owner of the Ili of Mokauea, applied for a land patent upon a portion of Apana 1, including the sea fishery. Upon refusal of the board of appraisers to appraise the sea fishery for commutation purposes, Land Patent 8147 was issued on this application covering only the fishpond and kula lands applied for and excluding the sea fishery of Mokauea. The diagram contained in the Land Patent expressly labeled the area makai (seaward) of the fishpond wall as a fishery.[22]
The claim of title to the submerged land was, however, subsequently abandoned. In 1908 application was made for a Land Patent upon the other fishponds and remaining kula land awarded by L.C.A. 6450, Apana 1. This application did not include the sea fishery area. Land Patent 8194 thereupon was issued, and like the earlier *180 Land Patent 8147 it covered only the land and ponds mauka of the fishpond walls and did not extend into the Mokauea fishery.[23] No Royal Patent or Land Patent for the fishery area, omitted from the amended description of Apana 1, set forth at page 769 of Volume 6, has ever been issued.
After abandonment of the attempts to obtain a land patent on the sea fishery, the claim to ownership of title to the underlying land of the fishery lay dormant for more than thirty years, only to be raised again in connection with these condemnation proceedings.
As seen above, the Land Commission considered only the land described at page 769 of Volume 6 as having been awarded as Apana 1. At all times since the dissolution of that body, the government has consistently followed the same construction of the award: in the publication, in 1881, of an Index of All Claims Awarded by the Land Commission, in which page 486 of Volume 6 is referenced for 9 apanas (containing the aggregate acreage of Apanas 2 through 10), and page 769 of Volume 6 is referenced for the acreage contained in Apana 1 of L.C.A. 6450; in the certification as a true copy by the Minister of Interior, in 1882, of a copy of L.C.A. 6450, in which Apana 1 was described by the metes and bounds set forth at page 769; in the limitation of the makai boundaries of Apana 1 to the fishpond walls in the survey done by C.J. Lyons and J.F. Brown, who were also government surveyors, in connection with the sale of the land by Moehonua's estate; in the use of the J.F. Brown survey in the preparation of Government Survey Registered Map No. 1255; in labeling the Mokauea sea fishery on Government Survey Map No. 1471 (compiled under the direction *181 of C.J. Lyons and dated 1885) as not awarded and as being simply held by statute; in the refusal of the board of appraisers, in connection with the application for Land Patent 8147, to determine the commutation due for the fishery, on the basis that it had not been awarded, and the issuance of Land Patent 8147, excluding the sea fishery; in the non-issuance of any Royal Patent or Land Patent for the area covered by the sea fishery; and finally, in its resistance in this case to the claim of private title to those submerged lands.
Coupled with the other evidence in the case the foregoing shows that all private individuals and government officials concerned have consistently construed L.C.A. 6450 to mean exactly what it states on its face, namely, that the description of Apana 1 at page 769 is the correct one, the only exceptions being the claims made early in this century by Kapiolani Estate, Limited (in connection with its application for Land Patent 8147 and in connection with its application for registration of fishing rights under the Organic Act) and the claims made by Hawaiian Dredging Company, Limited and the Intervenors in this case.
Intervenors' entire case is built upon the theory that the correction of the description of Apana 1 was invalid because the Land Commissioners did not sign the page on which the corrected description is set forth. The statute dissolving the Land Commission directed the commissioners to sign all their awards and deliver their books and papers into the hands of the Minister of Interior. Act of July 20, 1854, Laws of 1854, page 21 (reprinted, II R.L.H. 1925, page 2146). In the face of the evidence in the record it can safely be presumed that they did their duty when they signed the award at page 491 of Volume 6.
Land Commission Award 6450 was made one hundred and thirteen years ago. A mere thirty-two years after it *182 was entered this court said when the award was attacked in Kalakaua v. Keaweamahi, supra, 4 Haw. 577, 580:
"* * * We are not to assume after this lapse of time that the Land Commission had no authority for issuing the award they actually did issue."
In the same case the court quoted with approval from Story's Equity Pleadings as follows:
"`* * * The policy of the law is to give quiet and repose to titles. After great lapse of time and long peaceable possession Equity Courts ought not to interfere.'" 4 Haw. 577, 582.
In the light of the foregoing convincing demonstration of the soundness of the trial court's findings of fact and conclusions of law, as reflected by the evidence in the record, the judgment in No. 4277 is affirmed.
Having confirmed the judgment appealed from in No. 4277 denying Intervenors' claims to the underlying land of the sea fishery of Mokauea, we turn now to consider the judgment appealed from in No. 4347 denying Intervenors' claims to konohiki fishing rights.
As we have seen, Mokauea fishery is appurtenant to the Ili of Mokauea, of which Moehonua was the konohiki (chief or landlord). Moehonua died intestate, his heirs were judicially determined and pursuant to the request of the heirs the Ili of Mokauea and appurtenant fishing rights, together with other property, were sold by a court-appointed commissioner. King Kalakaua purchased the Ili and appurtenant fishing rights, and from him, title passed by mesne conveyances to Kapiolani Estate, Limited.
Following passage of the Organic Act upon annexation, Kapiolani Estate, Limited took steps to prevent loss of the fishing rights to the general public, under the provisions of Section 95 (set out in footnote 17, ante), by initiating and carrying to judgment the proceedings (Law No. 5123 discussed at length above) required by Section *183 96 (set out in footnote 16, ante) of the Organic Act. Thereafter, title to the registered rights passed to Hawaiian Dredging Company, Limited, one of the defendants in this condemnation case. Hawaiian Dredging Company, Limited, in a compromise settlement of its claims in this action, conveyed the fishing rights to the Territory of Hawaii.
At the time of the trial of Intervenors' claims to ownership of an interest in the fishing rights[24] the State set up the following three roadblocks, any one of which if effective could bar Intervenors from asserting their claims: (1) that the State was already the owner of all private fishing rights preserved in the manner required by the Organic Act, as successor in title to Kalakaua; (2) that if Intervenors' predecessors in title had retained any private rights in the Mokauea fishery, those rights had been surrendered to the public through failure of the Intervenors' predecessors to preserve them as required by the Organic Act; and (3) that any rights of Intervenors' predecessors which survived the destructive effect of the Organic Act were lost by adverse possession of the State's predecessors in title.[25]
The Intervenors claim an interest in the konohiki fishing rights through descent from Koma, who was one of the heirs of Moehonua, and through conveyances from the heirs of G.W. Keaweamahi, another of Moehonua's heirs.[26] In the proceedings in which Moehonua's heirs *184 were determined, the court ruled that Koma was entitled to 1/28th and that G.W. Keaweamahi was entitled to 1/12th plus 1/4th of Moehonua's estate. Estate of Moehonua, 6 Haw. 338, 342. Intervenors therefore claim, in the aggregate, an undivided 31/84ths or approximately 37% undivided interest.
The theory of their claim is as follows: when the Ili of Mokauea was sold in the court administered proceedings for liquidation of Moehonua's remaining real estate, Kalakaua received a deed in which the land was described as four separate parcels, with one of which the fishing rights were sold. In the deed the metes and bounds description of that parcel was followed by the words "and also 266 acres of fishing right belonging to the same." Some 24 years later Kalakaua's successors in title, Kapiolani Estate, Limited, obtained a judgment,[27] registering the konohiki fishing rights, in which the fishery was described as covering an area of 480 acres. Looking back from that judgment Intervenors reason that Moehonua's estate must have originally owned 480 acres of fishery, and, since only 266 acres of it had been conveyed to Kalakaua, the residue remained in Moehonua's heirs.
Neither Moehonua's heirs nor any of Intervenors' predecessors in title filed any proceedings pursuant to Section 96 of the Organic Act (set out in footnote 16, ante) to preserve the private fishing rights which Intervenors now claim to own. Intervenors assert, however, that registration of the fishing rights by Kapiolani Estate, Limited (the State's predecessor in title) inured to their benefit and preserved their rights from being forfeited to the public pursuant to the provisions of Section 95 of the Organic Act (set out in footnote 17, ante).
*185 Intervenors' statement of the questions involved and Intervenors' specifications of error present for review the entire case, tried in the court below, on the matter of ownership of konohiki fishing rights.[28]
Since we feel that the second roadblock set up by the State, covered by Intervenors' second specification of error designated (b) and set out in footnote 28, ante, is decisive and dispositive of this appeal, we will assume, without deciding, that there remained in Moehonua's heirs a "residue" interest in the konohiki fishing rights after the conveyance to Kalakaua. This obviates the necessity of construing the deed from the estate of Moehonua to Kalakaua, or of struggling with the unique question as to the applicability of the doctrine of adverse possession to konohiki fishing rights.
*186 Intervenors have admitted in their briefs that their predecessors in title took no action to protect their claimed private fishing rights from being terminated under the provisions of Section 95 of the Organic Act. They seek to avoid the effect of this neglect by asserting that the action taken by Kapiolani Estate, Limited, successor in title to Kalakaua, inured to their benefit.
Konohiki fishing rights were granted by statute, commencing with the Act of Kamehameha III, June 7, 1839 (reprinted, as amended, November 9, 1840, in Fundamental Law of Hawaii, pp. 21-23), and ever since have been the subject of statutory regulation. R.L.H. 1955, §§ 21-20 through 21-33. Under these statutes the konohiki is entitled to either taboo (tabu) one species of fish for himself, or to declare open and closed seasons and to take one-third of the tenants' catch during the open season for himself. The tenants are entitled to all other fish and no one other than the konohiki and his tenants are permitted to fish in the private fishing ground. See, Haalelea v. Montgomery, 2 Haw. 62, 66; Damon v. Hawaii, 194 U.S. 154; Bishop v. Mahiko, supra, 35 Haw. 608, 629, and Territory v. Bishop Trust Co., 41 Haw. 358, 369, rehearing denied, 41 Haw. 597. While the tenants' fishing rights have been assumed to be vested rights within the meaning of Section 95 of the Organic Act, it has been clearly established that the konohiki's rights were vested within the meaning of that section. Damon v. Tsutsui, 31 Haw. 678, 692-693; Bishop v. Mahiko, supra, pp. 678-679; Carter v. Hawaii, supra, 200 U.S. 255; Damon v. Hawaii, supra.
By Section 95 of the Organic Act (set out in footnote 17, ante) the statutes granting the private fishing rights were repealed, thus opening all sea fisheries to the public, subject to vested rights, and vested rights had to be judicially established to survive. Section 96 of the Organic Act (set out in footnote 16, ante) prescribed the procedure *187 for establishing vested fishing rights through judicial action.
This court has declared that the intent of the Congress in enacting these sections was to destroy, so far as it was in its power to do so, all private rights of fishery and to throw open the fisheries to the people. In re Fukunaga, 16 Haw. 306, 308; Territory v. Matsubara, 19 Haw. 641, 643-644. It would be contrary to that intent to hold that an owner of vested fishing rights was not required to register his own rights but could rely upon and be protected by the registration effected by another person claiming adversely to him. Statutes should be so construed as to carry out the intent of the legislative body enacting them. In re Chung's Appeal, 44 Haw. 220, 352 P.2d 846; Territory v. Morita, 41 Haw. 1.
The plain language of Sections 95 and 96 of the Organic Act demonstrates that a person claiming a vested right was required to register that right in order to preserve it and that he was not entitled to rely on action taken by someone else. Section 95 repealed all laws which conferred exclusive fishing rights upon "any person or persons" and threw open the fisheries to the public "subject, however, to vested rights." It also declared that "no such vested right" should be valid after the expiration of three years "unless established as hereinafter provided." Section 96, detailing the procedure for establishing vested rights, required that "any person who claims a private right to any such fishery shall * * * file his petition * * * setting forth his claim to such fishing right." Language more clearly requiring a claimant to establish his right, and precluding any person from continuing to enjoy his right if he took no action, could hardly have been formulated. To construe these words as permitting a claimant to retain his right, as against the public, by riding the coattails of another claimant would be doing violence to *188 both the express language and clear purpose of those sections.
As stated in Damon v. Tsutsui, supra, 31 Haw. 678, 692:
"The language of Section 95 is entirely unambiguous. There can be no doubt that its intent was to repeal all laws of Hawaii which conferred exclusive fishing rights, * * * and that vested rights were not to be excepted or protected unless established judicially by proceedings instituted within two years from the date of the Organic Act."
Turning to the registration of konohiki fishing rights in the sea fishery of Mokauea, effected by Kapiolani Estate, Limited, it is apparent that no rights of persons other than Kapiolani Estate were intended to be, or were, established in those proceedings. Both the petition and the amended petition filed in Kapiolani Estate, Limited, plaintiff v. Territory of Hawaii, defendant, Law. No. 5123, First Circuit Court, alleged that plaintiff "is the sole owner * * * and has an exclusive right to the use and enjoyment of * * * the sea fishery of Mokauea * * *; that said fishing ground and fishery is the private property of the plaintiff, and that no other person or persons, corporation or corporations, have any right, title or interest in and to the said fishing ground and fishery * * *" and concluded with the prayer "* * * that plaintiff may be adjudged to be the sole owner of said fishery and fishing ground * * *" (emphasis added). Responsive to the petition and amended petition and the evidence, the judgment entered in those fishery registration proceedings decreed: "That the said plaintiff has a vested private right in and to that certain Fishery known as the Sea Fishery of Mokauea * * * and is the private property of the plaintiff, and that no other person or persons, corporation or corporations have any right, title or interest in and to the said *189 fishing grounds and fishery; * * *" (emphasis added).
Neither the language of the petition and amended petition, nor that of the judgment admits of the interpretation that any right other than that claimed by Kapiolani Estate, Limited was sought to be, or was, established in those proceedings.
In view of the explicit requirements of Sections 95 and 96, there can be no doubt that Intervenors' predecessors in title abandoned their konohiki rights in Mokauea, if in fact they retained any following the conveyance to Kalakaua. They had ample opportunity to preserve those rights but, in the face of the mandate of the Organic Act that they take action to preserve them, they did nothing. Persons entitled to establish their ownership of land before the Land Commission, but who failed to do so within the time required, abandoned their titles to the government. Kenoa v. Meek, supra, 6 Haw. 63; Thurston v. Bishop, 7 Haw. 421. The same ruling is applicable to the similar situation, involving the establishment of fishing rights, now before us.
Intervenors' theory of this feature of the case, apparently, is that they are entitled to the benefits of that judgment (preservation of the konohiki fishing rights), while not subject to its burdens (adjudication of Kapiolani Estate as sole owner). Thus, Intervenors are forced to admit that the judgment obtained by Kapiolani Estate, Limited was valid for the purpose of preserving the konohiki fishing rights, otherwise those rights would have passed to the public and no claim of compensation for the taking of them could now be made. At the same time Intervenors claim either that the circuit court had no jurisdiction to adjudicate that Kapiolani Estate, Limited was the exclusive owner of those rights, or, if the court had jurisdiction, that the judgment is not binding upon them.
By way of explanation Intervenors offer, in justification *190 of their theory of the double-barreled effect of the judgment, that the judgment is susceptible of the construction that Kapiolani Estate, Limited, in establishing these konohiki fishing rights, did so as a cotenant of the ili, or as a cotenant of the fishery, for the benefit of itself and its cotenants. Presumably, "cotenants" as used by Intervenors means co-owners of the konohiki fishing rights[29] rather than tenants of the konohiki, as tenants' fishing rights have not been claimed by the Intervenors.
This explanation, however, ignores the express language of the petition and amended petition, above quoted, demonstrating that Kapiolani Estate did not institute the fishery registration action with the benevolent motives which Intervenors now seek to attribute to that corporation. It also blithely ignores the express language of the judgment, which decrees that "no other person or persons, corporation or corporations, have any right, title or interest in and to the said fishing grounds and fishery."
Having suffered the judgment to be entered, without themselves having established their rights, if any, the Intervenors' predecessors in title were in the same position as persons who did not assert their claims to land before the Land Commission. It has been consistently held that in title suits against persons claiming under awardees, the judgment of the Land Commission is final and the court will not go behind the award even though it appears that the adverse claimant might have made good his claim by timely presentation of the same to the Land Commission. Kukiiahu v. Gill, 1 Haw. 54; Bishop v. Namakalaa and Kahinukawa, 2 Haw. 238; Kaai v. Mahuka, 5 Haw. 354; Atcherley v. Lewers & Cooke, 18 Haw. 625, rehearing denied, 19 Haw. 47, aff'd, 222 U.S. 285. The situation here *191 is the same, in that opportunity to establish a claim binding the government was given, but having been ignored, the claim should not now be permitted to be asserted against one who pursued, rather than slept on, his rights.
It was seen above in No. 4277, that actions brought under the provisions of Section 96 of the Organic Act were not in the nature of actions to quiet title, Kapiolani Estate v. Territory, supra, 18 Haw. 460; that although the judgments obtained in those actions are not res judicata as to persons neither parties nor privy to parties to the actions, it does not follow that persons who neglected to establish their fishing rights by such actions are entitled to the benefit of the judgments obtained by other persons and that each action was a special statutory proceeding whose effect is determined by the right asserted. Bishop v. Mahiko, supra, 35 Haw. 608, 665. The only right asserted in the fishery registration case here involved (Law No. 5123) was that of Kapiolani Estate, Limited. Intervenors, who are not privy to Kapiolani Estate, cannot reap the benefits of the preservation of that right.
Bishop v. Mahiko, supra, held that Section 96 constituted an enabling act empowering the Territory to acquire all private fishing rights by condemnation, and that establishment of the private fishing rights was the first of two parts of the single statutory proceeding contemplated by those sections. Referring to the action which the claimant of a fishing right was required to file, the court said at page 665:
"* * * It is designed to settle as between claimants and the United States [the then repositary of the residual public rights of the citizens of the state] the ownership and identity of private sea fisheries."
While the court emphasized the need for determining the boundaries of private sea fisheries through these proceedings, the opinion makes it clear that an equally important part of the registration actions was for claimants *192 to establish, as against the government, the ownership of the fishing rights. The court further determined that the requirement to take the initiative in establishing private vested fishing rights by the claimants was not violative of the fifth amendment to the Constitution of the United States.
The court also held in this case that since the claims of the konohiki and of the tenants had not been established as required by Section 96, the compensation to which they might have been entitled upon condemnation had been waived, and further, that the legal effect of failure to establish the fishing rights was, as mandated by Section 95, to convert the exclusive private fishing rights into a public fishing right free to the use of all and did not violate the fifth amendment prohibition against the taking of private property for public use without just compensation.
The clear language of Sections 95 and 96 of the Organic Act, whose clearly expressed purpose and effect have been consistently recognized by this court, is conclusive against the claims of Intervenors, whose predecessors in title failed to preserve their claims, if any, in the sea fishery of Mokauea. The vested rights which were surrendered to the public continue to be free to the public. Hawaii Const., Art. X, § 3.
Accordingly, the judgment denying Intervenors' claims to konohiki fishing rights in the sea fishery of Mokauea, appealed from in No. 4347, is affirmed.
In summary, the Motion to Dismiss for Lack of Jurisdiction in Lower Court is denied, and the judgments appealed from in both Nos. 4277 and 4347 are affirmed.
NOTES
[1] This claim was based on the judgment secured by Kapiolani Estate, Limited (predecessor in title to Hawaiian Dredging Company, Limited) in Law No. 5123. First Circuit Court, entitled "Kapiolani Estate, Limited v. Territory of Hawaii." This judgment and its effect is discussed at length later in the opinion.
[2] November 15, 1947, Answers of Intervenors Jue Anami and David K. Kakalia filed.
[3] August 14, 1951, Answer of Intervenors Kainuma, Oishi, et al., filed.
[4] The judgment below was a final judgment on one of a number of multiple claims, entered pursuant to H.R.C.P., Rule 54(b).
[5] The pertinent provisions of R.L.H. 1955, § 231-4, which was in force at the time involved as R.L.H. 1945, § 10104, are as follows:
"* * * A cause remaining untried for a period of six years after it has been placed on the calendar, without action of the defendant to delay or postpone trial, shall stand dismissed with prejudice for want of prosecution without the necessity of entering any order of dismissal."
[6] No. 2927 was an appeal from the denial of a motion to disqualify E.C. Peters as attorney for Intervenors. Dismissed as moot January 23, 1956.
No. 4003 was an appeal from the denial of a motion to amend the petition. See 42 Haw. 627.
[7] Soga v. Jarrett, 20 Haw. 120, 122.
[8] H.R.C.P., Rule 75(g) states in part:
"* * * Only the matter designated by the parties when transmitted by the clerk constitutes the record on appeal, but the record on appeal shall always include, whether or not designated, the following: the material pleadings without any unnecessary duplication; any verdict or findings of fact and conclusions of law together with any direction for the entry of judgment thereon; any master's report; any opinion; the judgment or part thereof appealed from; the notice of appeal with date of filing; the designation or stipulations of the parties as to matter to be included in the record; and any statement by the appellant of the points on which he intends to rely."
[9] See footnote eight, ante.
[10] Act 145, S.L. 1939 and Act 56, Sp. S.L. 1941.
[11] A portion of land similar to an ahupuaa only smaller and usually awarded to a lesser chief (nobility).
[12] The survey resulting in this description appears to have been defective as it would not close.
[13] See footnote one, ante.
[14] Those held by the owner of the ili or ahupuaa (the land to which the fishery is appurtenant).
[15] See footnote four, ante.
[16] "Proceedings for opening fisheries to citizens. That any person who claims a private right to any such fishery shall, within two years after the taking effect of this Act, file his petition in a circuit court of the Territory of Hawaii, setting forth his claim to such fishing right, service of which petition shall be made upon the attorney-general, who shall conduct the case for the Territory, and such case shall be conducted as an ordinary action at law.
"That if such fishing right be established, the attorney-general of the Territory of Hawaii may proceed, in such manner as may be provided by law for the condemnation of property for public use, to condemn such private right of fishing to the use of the citizens of the United States upon making just compensation, which compensation, when lawfully ascertained, shall be paid out of any money in the treasury of the Territory of Hawaii not otherwise appropriated." 48 U.S.C.A. 507.
[17] "Repeal of laws conferring exclusive fishing rights. That all laws of the Republic of Hawaii which confer exclusive fishing rights upon any person or persons are hereby repealed, and all fisheries in the sea waters of the Territory of Hawaii not included in any fish pond or artificial inclosure shall be free to all citizens of the United States, subject, however to vested rights; but no such vested right shall be valid after three years from the taking effect of this Act unless established as hereinafter provided." 48 U.S.C.A. 506. (See footnote 16, ante.)
[18] "The Judgment entered in the Circuit Court is erroneous in that said Judgment is based on findings of fact and conclusions of law which were in error and not supported by testimony, evidence or any matter of record adduced at the trial, to-wit:
"(a) The Circuit Court committed error in concluding that the Land Commission was not required to evidence decisions concerning corrections of erroneous entries in Award Books by signing the corrections.
"(b) The Circuit Court committed error in concluding that the Land Commission did their duty and that the signatures to LCA 6450, at Page 491, covered the corrected description of Apana 1 at Page 769.
"(c) The Circuit Court committed error in concluding that the amended description of Apana 1 of LCA 6450, copied on Page 769 of volume 6 of the awards, was incorporated by reference in LCA 6450 appearing at pages 486 to 491 inclusive of volume 6, and superseded the description of Apana 1 copied at page 486 and crossed out.
"(d) The Circuit Court committed error in concluding that the correction of the entries concerning Apana 1 was made by the Land Commission with authority of the Land Commissioners.
"(e) The Circuit Court committed error in concluding that the land awarded by LCA 6450, Apana 1, was the land described on page 769 of volume 6 and that said award did not cover any land within the sea fishery of Mokauea.
"(f) The Circuit Court committed error in concluding that the intervenors have no right or interest in and to the fee simple title to any land within the sea fishery of Mokauea as described in the Amended Complaint in this cause."
[19] This was understandable in view of the monumental task that confronted the commission during its nine years of existence. During that period (1846-1855), it processed nearly 12,000 claims, compiled more than fifty volumes of testimony, and made awards filling ten huge volumes. Indices of Land Commission Awards (1929 ed.). Foreward, p. viii. It must be remembered also that in those days all legal documentation was painstakingly and laboriously handwritten so the apparent sloppiness in this practice becomes reconcilable.
[20] In L.C.A. 420, for example, covering the area in which the town of Wailuku is now located on Maui, no signatures of commissioners appeared at any place in the award, either as originally written or as corrected.
[21] Upon payment of commutation fees, Royal Patents were to be issued "to the claimants of lands pursuant to the terms in which the said board shall have confirmed their respective claims" and "in accordance with the award of said commissioners." Part I, Ch. VII, Art. IV, §§ 9 and 11 of the Act of April 27, 1846, Laws of 1846, page 107 (emphasis added). (Reprinted, II R.L.H. 1925 at page 2123.)
[22] The dissatisfaction of Kapiolani Estate, Limited, with the refusal of the government to patent the fishery, was shown by subsequent correspondence on the matter, and by its claim of title to the sea bottom asserted when it registered its fishing rights in Law No. 5123, First Circuit Court, entitled "Kapiolani Estate, Limited v. Territory of Hawaii," supra, discussed at length above.
[23] With the exception of patents covering a few small parcels near King Street in the mauka portion of Apana 1, Land Patents 8147 and 8194 covered all of the land awarded by L.C.A. 6450, Apana 1.
[24] Hoaaina fishing rights, that is rights of the tenants of the ili, are not involved in this appeal as Intervenors have claimed only an interest in konohiki rights.
[25] The trial judge, in denying Intervenors' claims, found all three roadblocks to be effective to bar Intervenors' claims and based his judgment on all three theories advanced by the State in opposition to Intervenors' claims.
[26] Their interests were all acquired subsequent to April 30, 1903, the deadline fixed by Section 95 of the Organic Act for the registration of vested interests in fishing rights.
[27] This judgment in Law No. 5123, discussed above, is apparently valid as to the registration of the konohiki fishing rights which was within the limited jurisdiction conferred by Sections 95 and 96 of the Organic Act.
[28] "STATEMENT OF THE QUESTIONS INVOLVED
"Appellants submit that the judgment of the Circuit Court in this cause was in error and was based upon erroneous findings of fact and conclusions of law.
"Appellants contend that the registration of the sea fishery of Mokauea by Kapiolani Estate, Limited, enured to the benefit of appellants and that appellants are vested with a right in and to said sea fishery."
"SPECIFICATIONS OF ERRORS RELIED UPON
"The Judgment entered in the Circuit Court is erroneous in that said Judgment is based on findings of fact and conclusions of law which were in error and not supported by testimony, evidence or any matter of record adduced at the trial, to-wit:
"(a) The Circuit Court committed error in concluding that the deed by which Kalakaua obtained title to the konohiki fishing rights in the sea fishery of Mokauea was intended to and did convey the entire interest in the konohiki fishing rights in the whole of the fishery and that the statement of acreage was mere surplusage and is not controlling.
"(b) The Circuit Court committed error in concluding that the failure of Appellants' predecessors in interest to establish their fishing rights, if any they had, as required by the Organic Act if those rights were to survive, and the establishment by the State's predecessor in interest of sole and exclusive ownership of the konohiki fishing rights, preclude the Appellants from now claiming ownership of fishing rights against the State.
"(c) The Circuit Court committed error in concluding that none of the Appellants has any right, title or interest in and to the konohiki fishing rights in the sea fishery of Mokauea and that ownership of all private fishing rights in the sea fishery of Mokauea is now vested in the State."
[29] It is doubtful whether there can be undivided interests in konohiki fishing rights in view of the taboo right and the near feudal relationship between the king and konohiki as well as that between the konohiki and his tenants.
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01-03-2023
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10-30-2013
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https://www.courtlistener.com/api/rest/v3/opinions/5902010/
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Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 9, 2012 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging an October 2010 determination of the Board of Parole denying his request for parole release. Supreme Court dismissed the petition, resulting in this appeal. The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board at which time his *1027request for parole release was again denied. In view of this, the appeal must be dismissed as moot (see Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010, 1010 [2012]; Matter of Russo v New York State Div. of Parole, 89 AD3d 1305, 1305 [2011]). Contrary to petitioner’s claim, we do not find the exception to the mootness doctrine applicable here (see Matter of Marcelin v Evans, 86 AD3d 880, 881 [2011]; Matter of Borcsok v New York State Bd. of Parole, 76 AD3d 1167, 1167 [2010], lv dismissed 17 NY3d 773 [2011]).
Peters, P.J., Lahtinen, Spain, Garry and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6823066/
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Gordon, J.,
delivered the opinion of the court.
The issue in this case is whether the appellant, Hawkeye-Security Insurance Company, or the appellee, Bituminous Casualty Company, must pay compensation to Robert McDaniel for his disability beginning April 24, 1967 resulting from an occupational disease.
McDaniel, a cement finisher, contracted a severe dermatitis on July 12, 1963 when his skin came in contact with “hot” cement. This disease caused McDaniel to be incapacitated from time to time during the period July 12, 1963—September 11, 1966 and to be continuously incapacitated after April 24, 1967.
McDaniel was working for a general contractor on July 12, 1963 and continued in his employ until April 24, 1967. Hawkeye-Security was the employer’s workmen’s compensation carrier on July 12, 1963. Hawkeye-Security terminated its policy on December 1, 1965, and Bituminous Casualty assumed the risk on December 21, 1965.
Hawkeye-Security paid McDaniel compensation for each period of disability between July 12, 1963 and September 11, 1966.1 It refused, however, to pay compensation for the period of disability beginning April 24, 1967, contending that Bituminous Casualty was liable. So the Industrial Commission was called upon to decide which insurance company was liable.
The Commission found that the diagnosis of McDaniel’s occupational disease was first communicated to him in 1963. So under Code § 65.1-492 McDaniel is deemed to have then suffered an “injury by *211accident”, entitling him to compensation for disability resulting from the occupational disease. Va. Code Ann. §§ 65.1-7, -54, -55 (Repl. vol. 1968).
The Commission found that the dermatitis contracted and diagnosed in 1963 has never been cured; that the existing disease was aggravated each time McDaniel returned to work after a period of disability. Treating the 1967 aggravation as a change of condition in the disease contracted in 1963, the Commission awarded additional compensation under Code § 65.1-99* *3 for the disability beginning April 25, 1967.
Since McDaniel was last exposed to the causative hazard of the disease (cement) on April 24, 1967, Hawkeye-Security contends that Bituminous Casualty, the employer’s carrier at that time, should have been required to pay compensation for the disability beginning April 25, 1967. To support that contention, Hawkeye-Security relies upon Code § 65.1-50 which provides:
“§ 65.1-50. What employer and carrier liable.—When an employee has an occupational disease that is covered by this Act, the employer in whose employment he was last injuriously exposed to the hazards of the disease and the employer’s insurance carrier, if any, at the time of the exposure, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
Va. Code Ann. § 65.1-50 (Repl. vol. 1968). We agree with the Commission, however, that Code § 65.1-50 does not apply to this case.
Code § 65.1-50 has no relevance to a change in condition, that is, the aggravation of an existing occupational disease for which compensation has been previously awarded. Rather, the statute applies to *212a case where no diagnosis of an occupational disease has been made and communicated to the employee before he was last injuriously exposed to the hazards of the disease. In such a case, it is uncertain when the employee contracted the disease and, consequently, uncertain which of successive employers or successive insurance carriers should be liable for compensation. The statute resolves the doubt by imposing liability upon the employer for whom the employee was working at the time of the last injurious exposure to the hazards of the disease and by imposing liability upon the insurer who was then underwriting the risk.
The Workman’s Compensation Act gives McDaniel the right to receive compensation only for disability resulting from injury by accident. Va. Code Ann. §§ 65.1-7, -54, -55 (Repl. vol. 1968). McDaniel’s only “injury by accident” happened in 1963, when the diagnosis of his occupational disease was first communicated to him. Va. Code Ann. § 65.1-49, supra n. 2. The aggravation of McDaniel’s disease in 1967 was not a new “injury by accident”, but rather a change in the condition of the disease contracted in 1963. Since HawkeyeSecurity was underwriting the risk in 1963, the Commission properly held it liable for the additional compensation awarded for the disability in 1967.
The only remaining question of any substance is whether the Commission should have ordered Hawkeye-Security to pay the fee allowed McDaniel’s counsel. The Act authorizes the Commission to assess a reasonable attorney’s fee against the employer’s insurance company if it defends a claim “without reasonable grounds”. Va. Code Ann. § 65.1-101; see Va. Code Ann. § 65.1-3 (Repl. vol. 1968). Finding that Hawkeye-Security had reasonable grounds for defending this proceeding, the Commission ordered that the fee allowed McDaniel’s counsel be deducted from the additional compensation awarded McDaniel. We find no error in that order.
Affirmed.
The Industrial Commission made awards pursuant to consent agreements between Hawkeye-Security and McDaniel.
“§ 65.1-49. Provisions in respect to injury by accident, etc., applicable to occupational disease.—When the employer and employee are subject to the provisions of this Act, first communication of the diagnosis of an occupational disease to the employee or death of the employee resulting from an occupational disease as herein listed and defined shall be treated as the happening of an injury by accident, or death by accident, and the employee or in case of his death his dependents shall be entitled to compensation as provided by the Act. An employee who has an occupational disease that is covered by this Act shall be entitled to the same hospital, medical and miscellaneous benefits as an employee who has a compensable injury by accident, except that the period during which the employer shall be required to furnish medical attention shall begin as of the date of first communication of the diagnosis of the occupational disease to the employee, and in the event of death the same funeral benefits shall be paid as in the case of death from a compensable accident. All provisions of the Act in respect to accidents shall be applicable to the coverage provided for by this chapter, except as otherwise provided herein. The provisions of this section, as amended, shall be applicable to occupational diseases contracted before and after July one, nineteen hundred sixty-six.” Va. Code Ann. § 65.1-49 (Repl. vol. 1968).
*211Effective October 1, 1968, Title 65 of the Code was repealed, and the Virginia Workmen’s Compensation Act was recodified as Title 65.1. But since the recodification made no material change in any of the sections cited in this opinion, references are to the recodified sections.
“§ 65.1-99. Review of award on change of condition.—Upon its own motion or upon the application of any party in interest, on the ground of a change in condition, the Industrial Commission may review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this Act, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys paid but no such review shall be made after twelve months from the last day for which compensation was paid, pursuant to an award under this Act.” Va. Code Ann. § 65.1-99 (Repl. vol. 1968). For a definition of “change of condition”, see Va. Code Ann. § 65.1-8 (Repl. vol. 1968).
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01-03-2023
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07-23-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902012/
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Appeal unanimously dismissed without costs as academic. Same memorandum as in Whitaker v Kidd ([appeal No. 2], 136 AD2d 941 [decided herewith]). (Appeal from judgment of Supreme Court, Monroe County, Maas, J.—indemnification.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902016/
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Judgment unanimously affirmed. Memorandum: The court properly denied defendant’s motion to dismiss pursuant to CPL 30.30. The period from July 2, 1985 to October 15, 1985 was properly excluded. The record clearly establishes that defendant either requested or consented to adjournments in City Court for plea negotiations during that time (see, CPL 30.30 [4] [b]; People v Meierdiercks, 68 NY2d 613; People v Worley, 66 NY2d 523, 527). (Appeal from judgment of Monroe County Court, Wisner, J.—grand larceny, second degree.) Present—Callahan, J. P., Doerr, Den-man, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902017/
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Orders unanimously reversed on the law and facts without costs, and matter remitted to Oneida County Family Court for further proceedings, in accordance with the following memorandum: The parties were divorced in March 1984, as a result of respondent’s cruel and inhuman treatment of petitioner. The divorce decree incorporated a stipulation that respondent would pay $125 per week for the support of his children. The parties agreed that neither would pay maintenance, but reserved the right of each party to seek maintenance in the future. Respondent paid child support until June 1984, when health problems limited his income. He obtained a court order suspending child support payments for health reasons until May 1, 1985, an order affirmed by this court (Matter of Basi v Basi, 110 AD2d 1094). On May 3, 1985, respondent petitioned Family Court to suspend his child support obligations on the ground that he was wrongfully denied visitation with his children. By order dated December 19, 1985, Family Court found that petitioner had prevented respondent from visiting his children and suspended his support obligation.
Petitioner and some of the minor children were recipients of public assistance from July 1984 until August 1986. In March 1986, the Department of Social Services petitioned Family *946Court to order respondent to reimburse it for amounts of public assistance expended for the support of his children from May 1, 1985 (the date his support payments were to resume after his health difficulties). The mother also petitioned Family Court seeking $100 per week in maintenance.
After separate hearings on the petitions, Family Court reaffirmed its earlier order suspending child support payments on the ground that respondent had been wrongfully denied visitation, and held that Social Services was not entitled to reimbursement for its payments to the children because they had abandoned their father. The court further held that petitioner was not entitled to maintenance. This was error.
We first observe that the record does not support the court’s finding that the mother denied respondent visitation with his children, who at the time of the hearing were ages 20, 19, 17 and 11, respectively. She testified that she never told the children that they should not visit their father, but informed them of scheduled visits, got them up and dressed them for their father to pick them up. The children themselves testified that they refused to visit their father for their own reasons. They testified that their mother never told them not to visit their father, but they determined for themselves that they would not visit him because of his lack of concern and occasionally violent treatment of them in the past. Respondent did not testify to any specific actions taken by the mother to deny him visitation, and recited only one incident that occurred in 1983, before the divorce, when petitioner picked up the children early from a visit, at their request. This evidence is insufficient to justify the court’s conclusion that the petitioner’s conduct denied respondent visitation with the children.
Furthermore the record supports petitioner’s claim of a change in circumstances sufficient to entitle her to receive maintenance from respondent. At the time of the divorce, petitioner was working full time as a cashier, at a salary of $5,000 per year, and with the help of her two older children, who contributed some of their earnings from part-time jobs, was able to meet her expenses. After the divorce, petitioner quit her job to go back to school to earn a degree in nursing, and she has been forced to apply for public assistance. The Department of Social Services has placed a lien on her share of the marital residence (owned jointly by the parties) to secure repayment of those public assistance payments. Petitioner has worked weekends as a nurse’s aide, grossing less than $75 per week. Her older children, who were attending college at the time of the hearing, no longer contribute to her *947support. She has borrowed sums of money from other family members to meet her basic living expenses, which include mortgage payments, taxes and general maintenance on the marital residence. Petitioner’s change of circumstances entitles her to receive maintenance from respondent, who since the divorce has increased his salary from $13,000 to over $20,000 per year. The matter must be remitted to Family Court for a hearing to determine how much maintenance petitioner requires and how much respondent is able to pay.
In addition, for reasons stated below, respondent has an obligation to provide child support for the youngest child, James. The court, after a hearing, should determine the amount of support respondent is to pay to petitioner for this child support.
As to the Department’s request that respondent reimburse it for child support payments, the record reveals that respondent has had no visitation with his children in over three years. The children refuse to visit him or to have anything to do with their father. The Court of Appeals has held that when "a minor of employable age and in full possession of her faculties, voluntarily and without cause,” abandons a parent, that minor forfeits her right to demand support from that parent (Matter of Roe v Doe, 29 NY2d 188, 192). The court further held that if a minor has abandoned a parent as outlined in Matter of Roe v Doe (supra), that parent is not obligated to reimburse Social Services for any public assistance expended for the support of that child (Matter of Parker v Stage, 43 NY2d 128, 135). In the present case, the record supports the conclusion that the parties’ three older children abandoned their father, but this conclusion cannot be extended to include the youngest child, James, born in 1975, who was only 11 years old when these proceedings were held. James was not of employable age and, as a matter of law, could not abandon his parent. Therefore, the matter should be remitted for a determination of the amount of support expended by the Department of Social Services for the support of James and the Department is entitled to be reimbursed by respondent for that amount. (Appeals from orders of 'Oneida County Family Court, Gilbert, J.—modify divorce decree.) Present—Callahan, J. P., Doerr, Denman, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902018/
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Judgment unanimously affirmed. Memorandum: Although defendant did not inflict the fatal wound, the evidence, viewed in the light most favorable to the People (People v Way, 59 NY2d 361, 365), demonstrates that he and codefendant Damon Hill entered the victim’s cell together, that defendant struck the victim with a weighted sock, and that Hill fatally stabbed the victim. The jury’s inference that defendant possessed the requisite intent to kill the victim is based on sufficient evidence. The remaining issues raised on this appeal were either disposed of on codefendant’s appeal (People v Hill, 115 AD2d 239, Iv denied 67 NY2d 884) or lack merit. (Appeal from judgment of Cayuga County Court, Corning, J.—murder, second degree.) Present—Callahan, J. P., Doerr, Denman, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5905995/
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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Agresta, J.), rendered January 3, 1984, convicting him of sodomy in the first degree, upon a 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). Lawrence, J. P., Weinstein, Spatt and Balletta, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902019/
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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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to review a determination finding him guilty of having violated certain prison disciplinary rules. The detailed misbehavior report and the testimony of the correction officer who authored it provide substantial evidence to support that part of the determination finding petitioner guilty of being out of place (see Matter of Povoski v Fischer, 93 AD3d 963, 964 [2012], appeal dismissed 19 NY3d 1020 [2012]; Matter of Jackson v Smith, 49 AD3d 933, 933 [2008]). Petitioner’s assertion that he had permission to be in the area where he was found created a credibility issue for the Hearing Officer to resolve (see Matter of Povoski v Fischer, 93 AD3d at 964). Respondent concedes, however, and we agree, that the determination finding petitioner guilty of making false statements must be annulled. Inasmuch as petitioner has already served the penalty imposed and no loss of good time was involved, remittal to redetermine the penalty is unnecessary (see Matter of Franza v Venettozzi, 98 AD3d 782, 782-783 [2012]).
Petitioner’s remaining contentions, to the extent they are properly before us, are without merit.
Peters, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making false statements; petition granted to that extent and the Com*1028missioner of Corrections and Community Supervision is directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902020/
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—Order unanimously modified on the law to grant plaintiff’s motion to consolidate actions Nos. 1 and 2 for a joint trial in Niagara County and, as modified affirmed without *948costs. Memorandum: Special Term’s award of counsel fees pursuant to CPLR 6315 was proper even though defendant’s application was brought on by ordinary notice of motion rather than by an order to show cause. The motion requirement in CPLR 6315 is to insure that all "interested persons” receive notice of the application. It is undisputed that plaintiff had actual notice of the application for counsel fees and, in fact, submitted papers in opposition to the motion. However, it was an improvident exercise of discretion for Special Term to deny plaintiff’s motion to consolidate actions Nos. 1 and 2 for trial in Niagara County, as the two pending actions involve common questions of law and fact (see, Business Council v Cooney, 102 AD2d 1001; Williams v Mascitti, 71 AD2d 813). (Appeal from order of Supreme Court, Niagara County, Cook, J.—counsel fees.) Present—Callahan, J. P., Doerr, Denman, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902021/
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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 the Commissioner of Corrections and Community Supervision which found petitioner guilty of violating certain prison disciplinary rules.
Petitioner commenced this CPLR article 78 proceeding to review a determination finding him guilty of having violated certain prison disciplinary rules. The detailed misbehavior report and the testimony of the correction officer who authored it provide substantial evidence to support that part of the determination finding petitioner guilty of being out of place (see Matter of Povoski v Fischer, 93 AD3d 963, 964 [2012], appeal dismissed 19 NY3d 1020 [2012]; Matter of Jackson v Smith, 49 AD3d 933, 933 [2008]). Petitioner’s assertion that he had permission to be in the area where he was found created a credibility issue for the Hearing Officer to resolve (see Matter of Povoski v Fischer, 93 AD3d at 964). Respondent concedes, however, and we agree, that the determination finding petitioner guilty of making false statements must be annulled. Inasmuch as petitioner has already served the penalty imposed and no loss of good time was involved, remittal to redetermine the penalty is unnecessary (see Matter of Franza v Venettozzi, 98 AD3d 782, 782-783 [2012]).
Petitioner’s remaining contentions, to the extent they are properly before us, are without merit.
Peters, P.J., Mercure, Rose, Stein and McCarthy, JJ., concur. Adjudged that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of making false statements; petition granted to that extent and the Com*1028missioner of Corrections and Community Supervision is directed to expunge all references thereto from petitioner’s institutional record; and, as so modified, confirmed.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902022/
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—Judgment unanimously modified on the facts and as modified affirmed without costs, in accordance with the following memorandum: The court failed to give defendant credit for the sum of $5,500 which plaintiff concedes was paid. Defendant, however, has not established that she is entitled to any further relief. Thus the judgment is modified to reflect the $5,500 payment; interest must be adjusted accordingly. (Appeal from judgment of Supreme Court, Oswego County, Sullivan, J.—attorney’s fees.) Present—Callahan, J. P., Doerr, Den-man, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902023/
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—Judgment unanimously reversed *949on the law, motion granted and indictment dismissed. Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court for a hearing and for findings of fact on defendant’s motion to dismiss the indictment (People v Grant, 127 AD2d 965). Defendant contends that he was denied his statutory right to a speedy trial (see, CPL 30.30).
This criminal action was commenced on February 21, 1983 and the People did not announce readiness for trial until January 24, 1984. In computing the six-month period within which the People must be ready for trial under CPL 30.30 (1) (a), Supreme Court found that only 43 days must be excluded under CPL 30.30 (4). The court concluded that the People’s announcement of readiness for trial "was clearly outside the time limits of CPL 30.30.” We adopt Supreme Court’s findings of fact and grant defendant’s motion to dismiss the indictment. (Resubmission of appeal from judgment of Supreme Court, Monroe County, Bergin, J.—burglary, third degree, and other offenses.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902025/
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—Order and judgment unanimously affirmed with costs for reasons stated at Supreme Court, Finnerty, J. (Appeal from order and judgment of Supreme Court, Monroe County, Finnerty, J.—enforce mechanic’s lien.) Present—Callahan, J. P., Doerr, Denman, Green and Pine, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5907293/
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Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered July 27, 2012) to review a determination of respondent. The determination found after a tier III hearing that petitioner had violated various inmate rules.
*1091It is hereby ordered that the determination is unanimously confirmed without costs and the petition is dismissed. Present—Smith, J.P., Fahey, Valentino, Whalen and Martoche, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5907294/
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Mercure, J.
Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered July 6, 1987, convicting defendant upon his plea of guilty of the crime of sodomy in the first degree.
A 10-count indictment was filed charging defendant with sodomy in the first degree (two counts) and sexual abuse in the first degree (eight counts) as the result of separate incidents of claimed sexual contact with two children, both under 11 years of age. A plea bargain was reached whereby defendant agreed to enter a plea of guilty to sodomy in the first degree (Penal Law § 130.50 [3]) in full satisfaction of the charges against him and be sentenced to a prison term of 4 Vi to 9 years, the minimum legally permissible sentence due to the nature of the offense and defendant’s prior criminal record.
Defendant subsequently entered a plea of guilty in accordance with the agreement. In so doing, he expressed contrition for his criminal acts, willingness to plead guilty to the charge and to accept the punishment to be imposed by the court, and the desire to avoid trial on the charges. However, during the plea allocution he denied recollection of the act of deviate sexual intercourse forming the basis for the charge, due to claimed intoxication, but indicated that he did remember touching the victim "down below”. He also stated that the very detailed written confession he made to the police was true. The plea was accepted and defendant was ultimately sentenced in accordance with the plea bargain without objection.
On appeal, defendant contends that County Court erred in accepting his plea of guilty because of the existence of an unresolved question as to his guilt and the possible "defense” of intoxication. Although the People point out that defendant failed to preserve the issue by moving to withdraw his guilty plea or to vacate his judgment of conviction, where, as here, *488the procedure challenged is on the face of the record, this court may exercise its discretion to review the matter in the interest of justice (see, People v Cooks, 67 NY2d 100, 101; People v Serrano, 15 NY2d 304, 309; People v Braman, 136 AD2d 382, 384). Nevertheless, reviewing the merits, we find no error.
Defendant’s professed inability to recall the events forming the basis for the subject prosecution does not, as a matter of law, preclude a valid plea of guilty. All that is required is a finding that defendant’s plea "represents a voluntary and intelligent choice among the alternative courses of action open” (North Carolina v Alford, 400 US 25, 31; see, People v Francabandera, 33 NY2d 429, 434; People v Nixon, 21 NY2d 338, cert denied sub nom. Robinson v New York, 393 US 1067; People v Foster, 19 NY2d 150). Viewing the plea allocution as a whole, we find that criterion to have been satisfied. Defendant, exposed to the risk of multiple felony convictions with the potential for consecutive sentences, elected to limit his risk and accept a favorable plea bargain, particularly in view of the evidence against him. Although defendant did express some dissatisfaction with his attorney’s representation, it is clear from the record that the only basis therefor was the lawyer’s failure to adequately investigate the impossible alternative of hospitalization.
We find equally untenable defendant’s contention that his assertions raised the possibility of the "defense” of intoxication (see, Penal Law § 15.25), requiring further inquiry by County Court (see, e.g., People v Braman, supra; People v Jimenez, 73 AD2d 533). Voluntary intoxication has no effect upon liability for the crime of sodomy in the first degree based upon an act of deviate sexual intercourse with a person under the age of 11 since intent is not an element thereof (see, Penal Law § 130.50 [3]; People v Prise, 135 Misc 2d 363, 368-369; see also, People v Westergard, 113 AD2d 640, affd 69 NY2d 642; People v Carlo, 46 AD2d 764; People v Orr, 43 AD2d 836, affd 35 NY2d 829). The rule stated by the Court of Appeals in People v Koerber (244 NY 147, 152) is as follows: "When criminal intent in general is all that need be established the drunken defendant is treated as if he knew the consequences of his acts; but where a particular or specific intent must be established, if the jury find that the mind of the defendant was so obscured by drink that he was incapable of forming that intent, it may justify itself in the reduction of a charge.” (See also, People v Jones, 27 NY2d 222, 228-229.)
Finally, defendant failed to move to suppress his allegedly *489involuntary statement before County Court and is thereby foreclosed from raising the issue on appeal (see, People v Gonzalez, 55 NY2d 887).
Judgment affirmed. Mahoney, P. J., Yesawich, Jr., Levine, Harvey and Mercure, JJ., concur.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902029/
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Order unanimously reversed on the law without costs and disposition vacated. Same memorandum as in Matter of Tomika M. ([appeal No. 1], 136 AD2d 951 [decided herewith]). (Appeal from order of Erie County Family Court, Notaro, J.—violation of *952probation.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902030/
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 1, 2012, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.
Claimant was employed as a salesperson at a retail mattress store. In April 2011, a customer complained that her account had been charged for merchandise that she had not purchased. When the employer looked into the complaint, it determined that claimant had generated an invoice charging certain items to the customer’s account, accused claimant of improperly signing the customer’s name on the invoice, and terminated her employment. Following a hearing, an Administrative Law Judge confirmed claimant’s initial award of benefits, rejecting the employer’s objections. However, upon review, the Unemployment Insurance Appeal Board reversed, finding that the credible evidence established that claimant was discharged from her employment because she fraudulently signed a customer’s name on an invoice, which constituted disqualifying misconduct. Denying any wrongdoing, claimant now appeals.
The employer introduced at the hearing two invoices from the same customer. According to the employer, the customer signed the first, but not the second. The two signatures are clearly dissimilar. The employer’s invoices for purchases are generated through a computer printout, and the customer actually signs an electronic signature pad. Significantly, the customer was not produced as a witness at the hearing. Claimant consistently testified that the customer signed both invoices in her presence and denied that she signed the customer’s signature on the disputed invoice. Claimant also introduced a written statement signed by the customer stating that her claim—that her balance was incorrect—was wrong and offering an apology. Notably, the employer provided no testimony to controvert the statement or any proof that it ever adjusted the disputed charge in favor of the customer.
On the record before us, the decision of the Board is not supported by substantial evidence. The employer’s case, based primarily on hearsay, did not include sufficient evidence that any *1029wrongdoing actually occurred or provide any sustainable basis to discredit claimant’s sworn testimony (see Matter of Perry [Levine], 37 AD2d 367, 368 [1971]). Accordingly, the decision should be reversed and the matter remitted for further proceedings.
Spain, J.P., Stein, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/6129277/
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—Order reversed, writ of habeas corpus' discharged, and the children remanded. Opinion
Per Ouriam.
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01-03-2023
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02-04-2022
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https://www.courtlistener.com/api/rest/v3/opinions/5902031/
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Order unanimously reversed on the law without costs, and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: Respondent appeals from an order adjudicating her a person in need of supervision and placing her on probation for 12 months. Respondent also appeals from an order directing her placement outside the home based upon a violation of the previously imposed probation. The record reveals that before admitting the allegations in the petition, respondent was not advised by the court of her right to remain silent, or of possible specific dispositional orders (Family Ct Act §§ 741, 321.3 [1]). This constitutes reversible error (see, Matter of Walter A., 104 AD2d 734, 735; Matter of Kelly Sue N., 94 AD2d 976). Since respondent’s placement resulted from a violation of probation which had been imposed based upon an invalid admission, the order of placement is a nullity and must be vacated. (Appeal from order of Erie County Family Court, Notaro, J.—PINS.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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01-03-2023
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01-13-2022
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https://www.courtlistener.com/api/rest/v3/opinions/4150831/
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Filed 3/7/17 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2017 ND 51
State of North Dakota, Plaintiff and Appellee
v.
Jesse Gene White, Defendant and Appellant
No. 20160227
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Julie A. Lawyer, Burleigh County Assistant State’s Attorney, 514 East Thayer Avenue, Bismarck, N.D. 58501, for plaintiff and appellee.
Kent M. Morrow, 103 South Third Street, Suite 6, Bismarck, N.D. 58501, for defendant and appellant.
State v. White
No. 20160227
Crothers, Justice.
[¶1] Jesse White appeals from a criminal judgment entered after a jury found he was guilty of possession of certain materials prohibited. We affirm, concluding the probation search of White’s cell phones did not violate his Fourth Amendment rights and sufficient evidence supports his conviction.
I
[¶2] White was on supervised probation when his residence was searched. His probation conditions required him to submit to a search of his person, vehicle or residence as requested by his probation officer.
[¶3] On April 15, 2014, a probation officer searched White’s residence after police officers received a tip from White’s girlfriend. White’s girlfriend told officers that she discovered images of clothed, young girls in provocative positions and that White was uploading pictures to a cell phone with no service. The probation officer and police officers went to White’s residence where the probation officer informed White of the reason for searching his residence and that they were interested in images on any computers or phones. White pointed out his laptop computer and cell phones, including a phone that did not have cellular service. An officer found a folder of papers containing Facebook login information for “Jesse White” and “Ashley Black.” White claimed he did not know “Ashley Black.” Officers also found pornographic DVDs, including DVDs titled “Barely Legal.” The officers looked at the cell phones and found numerous pictures of clothed young girls and at least one picture of a topless prepubescent girl. A search warrant was granted. The phones and computer were forensically analyzed and images of young, unclothed females were found.
[¶4] White was charged with possession of certain materials prohibited in violation of N.D.C.C. § 12.1-27.2-04.1, a class C felony. White moved to suppress any evidence seized from his cell phones, arguing officers were required to obtain a warrant before searching his cell phones and the search warrant was issued upon illegally seized evidence. The State opposed the motion and argued the cell phone search did not violate White’s constitutional rights because it was a probationary search and the officers had reasonable suspicion. Neither party requested a hearing. The district court denied the motion to suppress, concluding the search was constitutional because it was a probationary search and the officers had reasonable suspicion.
[¶5] A jury trial was held. The jury found White guilty of possession of certain materials prohibited. White was sentenced to three years in prison with all but 18 months suspended and three years parole following release from prison.
II
[¶6] White argues the district court erred in denying his motion to suppress because the search of his cell phones violated his Fourth Amendment rights. He claims the search was not a reasonable probation search because his probation conditions are limited to searching his “person, vehicle, or residence” and do not include his cell phone and the officer did not have reasonable suspicion to justify the search. White does not challenge the initial entry into his residence or the initial search of his residence; rather, he only argues the search of his cell phones violated his constitutional rights.
[¶7] In reviewing a district court’s decision on a motion to suppress we defer to the district court’s findings of fact, and we resolve conflicts in testimony in favor of affirmance because we recognize the district court is in a superior position to assess the witnesses’ credibility and weigh the evidence.
State v. Schmidt
, 2015 ND 134, ¶ 5, 864 N.W.2d 265. “A district court’s findings of fact on a motion to suppress will not be reversed if there is sufficient competent evidence fairly capable of supporting the court’s findings, and the decision is not contrary to the manifest weight of the evidence.”
Id.
(quoting
State v. DeCoteau
, 1999 ND 77, ¶ 6, 592 N.W.2d 579). Questions of law are fully reviewable, and whether a finding of fact meets a legal standard is a question of law.
Schmidt
, at ¶ 5.
[¶8] The Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution protect individuals from unreasonable searches and seizures. “When reviewing the constitutionality of probationary searches, we have interpreted the North Dakota Constitution to provide the same protections for probationers as provided by the United States Constitution.”
State v. Ballard
, 2016 ND 8, ¶ 8, 874 N.W.2d 61 (quoting
State v. Maurstad
, 2002 ND 121, ¶ 11, 647 N.W.2d 688). To determine the reasonableness of a search we consider the totality of the circumstances and balance the degree to which the search intrudes upon an individual’s privacy against the degree to which the search is needed for the promotion of legitimate governmental interests.
Ballard
, at ¶¶ 8, 34.
[¶9] In
United States v. Knights
, 534 U.S. 112, 122 (2001), the Supreme Court considered the totality of the circumstances, balanced governmental and private interests and held a warrantless probationary search was reasonable when it was supported by reasonable suspicion and authorized by a condition of probation. The Court explained that probationers have a lesser expectation of privacy:
“Probation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty. Probation is one point . . . on a continuum of possible punishments ranging from solitary confinement in a maximum-security facility to a few hours of mandatory community service. Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. Just as other punishments for criminal convictions curtail an offender’s freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.”
Id.
at 119 (citations and quotations omitted). The Court also said a probationer may be more likely to engage in criminal conduct than an ordinary member of the community, the State has an interest in stopping criminal conduct and protecting potential victims and, therefore, the State may justifiably focus on probationers in a way that it does not focus on ordinary citizens.
Id.
at 120-21. The Court said, “When an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity, there is enough likelihood that criminal conduct is occurring that an intrusion on the probationer’s significantly diminished privacy interests is reasonable.”
Id.
at 121. The Court did not address whether a suspicionless probationary search authorized by a condition of probation was reasonable.
Id.
at 120 n. 6.
[¶10] In
Samson v. California
, 547 U.S. 843, 846 (2006), the United States Supreme Court considered whether suspicionless searches of parolees violated the Fourth Amendment. The Court applied the totality of the circumstances analysis, explaining that a parolee or a prisoner has a lesser expectation of privacy than a probationer and that the government’s interests are substantial.
Id.
at 850-53. The Court held the suspicionless search of a parolee does not violate the Fourth Amendment.
Id.
at 857.
[¶11] This Court has most recently considered the constitutionality of a probation search in
Ballard
, 2016 ND 8, 874 N.W.2d 61. We applied the totality of the circumstances balancing test and held a suspicionless search of an unsupervised probationer was constitutionally unreasonable and violated the Fourth Amendment.
Id.
at ¶¶ 41-42. We noted the State’s interest in restraining the liberty of an unsupervised probationer was much less than its “overwhelming” interest in supervising parolees upon release from prison, and an unsupervised probationer with minimal probation conditions had a greater expectation of privacy.
Id.
at ¶¶ 37, 40. We held the governmental interests did not outweigh the probationer’s expectation of privacy and a suspicionless search was not reasonable under the Fourth Amendment.
Id.
at ¶ 41.
[¶12] This case is different from
Ballard
. The issue in
Ballard
was whether a suspicionless search of an unsupervised probationer was constitutional. In this case White was on supervised probation and the State claims the officers had reasonable suspicion to search White’s cell phones. This case is similar to
Knights
. A supervised probationer has a lower expectation of privacy than an unsupervised probationer.
See
Ballard
, 2016 ND 8, ¶ 35, 874 N.W.2d 61. The State has a greater interest in supervising a supervised probationer than an unsupervised probationer.
See
Ballard
, at ¶ 37 (discussing the continuum of possible punishments and its effect on the defendant’s privacy interests and state’s interests). Balancing the totality of the circumstances, no more than reasonable suspicion was required to conduct a search under the conditions of White’s probation.
See
Knights
, 534 U.S. at 121.
[¶13] The conditions of White’s probation included allowing officers to search his person, vehicle or residence. The conditions of White’s probation allowed officers to search the cell phones located inside White’s residence as part of the probation search.
See
State v. Gonzalez
, 2015 ND 106, ¶¶ 16-17, 862 N.W.2d 535 (holding the search of probationer’s cell phones was within scope of valid probationary search when condition of probation authorizing search of person, place of residence or vehicle and the cell phones were located inside the residence and vehicle);
State v. Adams
, 2010 ND 184, ¶ 17, 788 N.W.2d 619 (search of a locked safe inside probationer’s residence was within the scope of a valid probationary search). The search was authorized by a condition of White’s probation.
[¶14] Reasonable suspicion exists when a reasonable person would be justified by some objective reason to suspect the defendant was, or was about to be, engaged in unlawful activity.
State v. Franzen
, 2010 ND 244, ¶ 12, 792 N.W.2d 533. The district court found White’s girlfriend informed officers that she had discovered images of clothed, young girls in provocative positions and that White was uploading pictures to a cell phone that did not have service. There also was evidence officers searched White’s residence before searching his cell phones and found a folder containing Facebook login information for “Jesse White” and “Ashley Black” and pornographic DVDs entitled “Barely Legal.” White told officers he did not know “Ashley Black.” White does not argue the officers’ initial entry and search of his residence violated his Fourth Amendment rights. Under the facts and circumstances of this case, the officers had reasonable suspicion to search White’s cell phones.
[¶15] The warrantless search of White’s cell phones, authorized by the conditions of White’s probation and supported by reasonable suspicion, was constitutionally reasonable. The district court did not err in denying White’s motion to suppress.
III
[¶16] White argues his conviction should be reversed because the evidence was not sufficient to support the jury’s verdict.
[¶17] Our review of the sufficiency of the evidence for a jury verdict is very limited.
State v. Russell
, 2016 ND 208, ¶ 13, 886 N.W.2d 677. “A conviction rests upon insufficient evidence only when, after reviewing the evidence in the light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor, no rational fact finder could find the defendant guilty beyond a reasonable doubt.”
State v. Rufus
, 2015 ND 212, ¶ 6, 868 N.W.2d 534 (quoting
State v. Corman
, 2009 ND 85, ¶ 8, 765 N.W.2d 530). The defendant has the burden to show the evidence reveals no reasonable inference of guilt when viewed in the light most favorable to the verdict.
Russell
, at ¶ 13. This Court does not reweigh evidence or judge witness credibility.
Rufus
, at ¶ 6.
[¶18] A person is guilty of possession of certain materials prohibited if, “knowing of its character and content, that person knowingly possesses any motion picture, photograph, or other visual representation that includes sexual conduct by a minor.” N.D.C.C. § 12.1-27.2-04.1. Sexual conduct is “actual or simulated sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the buttocks, breasts, or genitals . . . .” N.D.C.C. § 12.1-27.2-01(4). In determining the age of a minor:
“[T]he trier of fact may base its determination on personal inspection of the minor, inspection of a photograph or motion picture of the sexual performance, testimony by a witness to the sexual performance as to the age of the minor based upon the minor’s appearance, expert testimony based upon the appearance of the minor in the sexual performance, or any other method authorized by law or by rule.”
N.D.C.C. § 12.1-27.2-06.
[¶19] White argues the State did not prove beyond a reasonable doubt that the photographs he possessed showed sexual conduct by a minor. He claims none of the photographs show sexual conduct, the photographs show the subject’s exposed breasts, but the photographs do not show “lewd exhibition of . . . breasts.” White also claims the State did not prove the subjects of the photographs were minors.
[¶20] The probation officer testified he found the cell phones and a laptop computer in White’s residence and White admitted the phones were his. Officer Scott Betz, who was employed by the Bismarck Police Department at the time of the investigation, testified he recovered 74 images from the cell phones and laptop that he believed contained child pornography and another 109 images that possibly contained child pornography. Some of the images were offered and admitted in evidence. All of the admitted images included subjects who were young females with their breasts or genitals exposed. Betz testified he believed the female in one of the pictures was 8 to 12 years old, the females in three other pictures were 12 to 16 years old, and the female in another picture was 10 to 12 years old. Betz testified all of the recovered photographs were sent to the National Center for Missing and Exploited Children, two of the photographs were identified as known images and the subjects of those two photographs were identified as being under 18. White’s expert witness, Daniel Meinke, testified he is a computer forensic examiner, he has examined several hundred cases for child pornography and he estimated the age of the subject in one of the photos to be 8 to 10 years old.
[¶21] During the trial White argued the photographs did not show lewd exhibition of the breasts, genitalia or buttocks as the law requires. Chapter 12.1-27.2, N.D.C.C., does not specifically define “lewd,” and White did not request the district court give a specific jury instruction defining “lewd.” The jury was instructed that it may apply matters of common knowledge to the facts and circumstances. Black’s Law Dictionary, 10th edition, defines “lewd” as “[o]bscene or indecent; tending to moral impurity or wantonness.” The jury could determine the photographs showed lewd exhibition of breasts, genitalia or buttocks.
[¶22]
Viewing the evidence in the light most favorable to the verdict and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor
, sufficient evidence supports the jury’s verdict.
IV
[¶23] We affirm the judgment, concluding the probation search of White’s cell phones did not violate his Fourth Amendment rights and sufficient evidence supports his conviction.
[¶24] Daniel J. Crothers
Lisa Fair McEvers
Carol Ronning Kapsner
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
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01-03-2023
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03-07-2017
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https://www.courtlistener.com/api/rest/v3/opinions/2600195/
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86 P.3d 954 (2004)
207 Ariz. 374
Bernadette BARRETT and William Barrett, both individually, and as wife and husband, and as surviving parents of Emily Barrett, deceased, Plaintiffs-Appellants,
v.
Thomas HARRIS, M.D. and Patricia Harris, his wife; Neonatology Associates, Ltd., an Arizona business entity, Defendants-Appellees.
No. 1 CA-CV 03-0412.
Court of Appeals of Arizona, Division 1, Department A.
April 1, 2004.
*956 Cluff & Associates By David H. Cluff, Mesa, Attorney for Plaintiffs-Appellants.
Bradford Law Offices, P.L.L.C. By Michael E. Bradford and Gallagher & Kennedy, P.A. By Wm. Charles Thomson, Kelly C. Mooney, Phoenix, Attorneys for Defendants-Appellees.
OPINION
TIMMER, Judge.
¶ 1 Emily Barrett, newborn daughter of Bernadette and William Barrett, tragically died as a result of an accident that occurred as a nurse administered "blow-by" oxygen to the baby through an endotracheal tube. In a subsequent lawsuit, the trial court granted judgment as a matter of law for Dr. Thomas Harris, Emily's treating neonatologist, on the Barretts' claims that he caused Emily's death both by failing to advise Mrs. Barrett that Emily would be at risk for respiratory problems if born prematurely and by instructing the nurse to administer blow-by oxygen. In deciding whether the court ruled correctly, we examine and apply principles relating to proximate cause. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2 On August 12, 1997, Mrs. Barrett, who was approximately 33 weeks pregnant and in labor, was hospitalized at Yuma Regional Medical Center ("YRMC") and eventually diagnosed with sepsis, a urinary tract infection, and severe cardiomyopathy. She was transferred to a Phoenix hospital for a possible high-risk delivery, but did not deliver. Following her discharge two weeks later, she returned to Yuma.
¶ 3 On September 4, Mrs. Barrett, who was then 36 weeks pregnant and nearing full term, complained to her obstetrician of flank pain. Suspecting a possible kidney infection, the obstetrician immediately prescribed treatment with antibiotics and admitted Mrs. Barrett to YRMC. For the sake of Mrs. Barrett's health, he recommended continuing this treatment for two days and then inducing labor. Unsure of this course of action, Mrs. Barrett arranged a consultation with Dr. Harris, a neonatalogist, to address, among other matters, her concerns about inducing pre-term labor.
¶ 4 During the consultation held the next day, Mrs. Barrett asked Dr. Harris whether the baby's lungs were sufficiently mature for *957 early delivery. Dr. Harris answered that he had a "strong feeling that the baby should do well in all respects and that it was indeed time for delivery." Dr. Harris also stated that the stress of Mrs. Barrett's prior illness and her attendant treatment with steroids would have accelerated the development of her unborn child in a positive way. Dr. Harris did not inform Mrs. Barrett of any risks to her baby if labor were induced prematurely.
¶ 5 Mrs. Barrett's obstetrician induced labor on September 6, and Emily was born. She soon experienced difficulty breathing, and the next day Dr. Harris diagnosed Emily with respiratory distress syndrome. Dr. Harris surmised that Mrs. Barrett's prior illness had delayed the maturation of Emily's lungs, thereby causing the respiratory problems. Dr. Harris never informed Mrs. Barrett of this risk prior to Emily's birth.
¶ 6 Emily's respiratory condition continued to deteriorate. Consequently, on September 9, Dr. Harris inserted an endotracheal tube ("ET-tube") into Emily's windpipe in order to connect her to a respirator, which would assist her breathing. Dr. Harris then instructed nurse Peggy Neisen to deliver "blow-by" oxygen to Emily by placing a free-flowing concentration of oxygen near the baby's face, thus delivering oxygen to the baby's lungs through the ET-tube protruding from her mouth, until the connection was made to the respirator. In Dr. Harris' opinion, the administration of blow-by oxygen was the only way to get oxygen to Emily's lungs once the ET-tube was in place.
¶ 7 After giving the instruction to administer blow-by oxygen, Dr. Harris briefly turned his attention from Emily to the respirator settings. During this time, Nurse Neisen accidently brought the oxygen supply tube into such close proximity with the ET-tube that a closed system was created in which oxygen was rapidly introduced to Emily's lungs without any means of escape. As a result, Emily's lungs became hyperinflated until they collapsed, causing air to leak throughout her body, which inflicted severe injury. Five days later, Emily died as a result of complications from the hyperinflation injury.
¶ 8 The Barretts filed suit against Dr. Harris for negligence, medical malpractice, and wrongful death.[1] Among other allegations, the Barretts asserted that Dr. Harris was liable for (1) failing to inform Mrs. Barrett during the neonatal consultation that Emily's lungs might be immature at the time labor was induced, thereby putting her at risk for respiratory problems, and (2) instructing Nurse Niesen to administer blow-by oxygen. At the close of the Barretts' case presented in the subsequent jury trial, the court granted Dr. Harris' motion for judgment as a matter of law ("motion for JMOL") on these theories of liability. The court ruled that the Barretts had failed to establish either that the neonatal consultation or the instruction to use blow-by oxygen proximately caused Emily's death. Thereafter, the jury returned a verdict in favor of Dr. Harris on the Barretts' remaining theories of liability. After the court denied the Barretts' motion for new trial, this appeal followed.
STANDARD OF REVIEW
¶ 9 We review de novo the trial court's grant of the motion for JMOL, Gemstar, Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996), and consider the evidence and all reasonable inferences from the evidence in the light most favorable to the Barretts as the non-prevailing parties. Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 6, 995 P.2d 735, 738 (App.1999). The trial court properly granted the motion if the facts presented in support of the contested theories had so little probative value that reasonable people could not have found for the Barretts. Data Sales Co., Inc. v. Diamond Z Mfg., 205 Ariz. 594, 600, ¶ 29, 74 P.3d 268, 274 (App.2003); Ariz. R. Civ. P. 50(a)(1).
DISCUSSION
1. Neonatal consultation
¶ 10 The Barretts first argue that the trial court erred by granting the motion for *958 JMOL on their claim that Dr. Harris acted negligently and committed medical malpractice by failing to advise Mrs. Barrett during their consultation that Emily would be at risk for respiratory problems if born prematurely. In order to prevail on this claim, the Barretts were required to prove, among other things, that Dr. Harris' omission proximately caused Emily's death. Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 28, 945 P.2d 317, 339 (App.1996) (negligence); Ariz.Rev.Stat. ("A.R.S.") § 12-563 (2003) (medical malpractice).
¶ 11 A plaintiff proves proximate cause, also referred to as legal cause,[2] by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred. Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990); Markiewicz v. Salt River Valley Water Users' Ass'n, 118 Ariz. 329, 338 n. 6, 576 P.2d 517, 526 n. 6 (App.1978). An "efficient intervening cause" is an independent cause that occurs between the original act or omission and the final harm and is necessary in bringing about that harm. Robertson, 163 Ariz. at 546, 789 P.2d at 1047. An intervening cause becomes a superseding cause, thereby relieving the defendant of liability for the original negligent conduct, "when [the] intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary." Id. (citations omitted).
¶ 12 Ordinarily, a plaintiff in a medical malpractice lawsuit must prove the causal connection between an act or omission and the ultimate injury through expert medical testimony, unless the connection is readily apparent to the trier of fact. Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.1985). Causation is generally a question of fact for the jury unless reasonable persons could not conclude that a plaintiff had proved this element. Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, Inc., 177 Ariz. 256, 262, 866 P.2d 1342, 1348 (1994).
¶ 13 The trial court ruled that the Barretts failed to present sufficient evidence from which a reasonable juror could find that Dr. Harris' consultation proximately caused Emily's death. The court noted that the Barretts' causation expert, Dr. Jack Sills, testified that the sole cause of Emily's death was the hyperinflation of her lungs, which was caused only by Nurse Niesen's manner of administering blow-by oxygen. Dr. Sills, along with the Barretts' standard-of-care expert, Dr. Andre Vanderhal, additionally opined that absent the hyperinflation injury, Emily's condition was normal and her prognosis good. Because all the evidence showed that Emily would have been a typical, healthy baby absent the hyperinflation incident, the court concluded that even if Dr. Harris' advice caused Mrs. Barrett to agree to the inducement procedure, it did not cause Emily's death. The court alternatively ruled that the hyperinflation incident constituted a superseding cause that relieved Dr. Harris of liability.
¶ 14 The Barretts argue that the trial court erred in its ruling because they in fact presented sufficient evidence from which reasonable jurors could conclude that Dr. Harris' failure to inform Mrs. Barrett of the risk of respiratory problems associated with pre-term birth proximately caused Emily's death.[3] Mrs. Barrett testified that if Dr. Harris had informed her of this risk, she would not have permitted her obstetrician to induce labor, and Emily would not have suffered respiratory problems, which eventually resulted in treatment and the fatal hyperinflation injury. The Barretts contend that by providing negligent advice during the consultation, Dr. Harris proximately caused Emily's death by starting the chain of events that led to the hyperinflation injury.
*959 ¶ 15 To support their contention, the Barretts rely on the Restatement (Second) of Torts § 457 (1965) ("Restatement"), which provides as follows:
If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner.
Absent law to the contrary, we look to the Restatement for guidance.[4]Webster v. Culbertson, 158 Ariz. 159, 162, 761 P.2d 1063, 1066 (1988).
¶ 16 According to the Barretts, Dr. Harris' negligent advice caused bodily injury to Emily (respiratory distress syndrome) that necessitated treatment (assisted breathing) during which she suffered additional bodily harm (hyperinflation injury). Thus, applying § 457, the Barretts assert that a reasonable juror could conclude that Dr. Harris' consultation proximately caused Emily's death.
¶ 17 Although § 457 can apply to successive acts of medical malpractice,[5] the Barretts did not introduce any evidence that the neonatal consultation caused Emily's respiratory distress. Neither of the Barretts' medical experts opined that the consultation or the pre-term birth caused Emily's respiratory problem. Dr. Vanderhal testified only that a small risk always exists that a baby born at slightly more than 36 weeks, which is less than a week from full term (37-42 weeks), will have immature lungs and experience respiratory distress. He additionally opined that Emily's lungs might have been immature had she been born even four weeks later. The doctor did not opine on the probability that Emily's birth at 36-plus weeks rather than a later date caused her respiratory distress. In short, the evidence did not allow the jury to reasonably infer that the timing of Emily's birth caused her respiratory problems, which required treatment. Robertson, 163 Ariz. at 546, 789 P.2d at 1047 (holding plaintiff satisfies burden by presenting facts from which causal relationship may be inferred but cannot leave causation to jury's speculation); Butler v. Wong, 117 Ariz. 395, 396, 573 P.2d 86, 87 (App.1977) (concluding mere possibility that act or omission caused injury insufficient); Kreisman v. Thomas, 12 Ariz.App. 215, 218, 469 P.2d 107, 110 (1970) (noting "causation must be shown to be probable and not merely possible, and generally expert medical testimony that a subsequent illness or disease `could' or `may' have been the cause of the injury is insufficient") (italics in original).
¶ 18 Because no evidence demonstrated that Dr. Harris' consultation advice proximately caused Emily bodily injury, § 457 did not apply to impute liability to Dr. Harris for her subsequent medical treatment and injury. For this reason, the trial court properly granted the motion for JMOL for Dr. Harris on the Barretts' claim that he was liable for Emily's death due to the advice imparted or omitted during the neonatal consultation. In light of our conclusion, we do not address the trial court's alternative ruling that Dr. Harris was excused from any liability for the consultation because Nurse Niesen's administration of blow-by oxygen was a superseding cause of Emily's death.
2. Blow-by order
¶ 19 The Barretts next argue that the trial court erred by granting the motion for *960 JMOL on the Barretts' claim that Dr. Harris acted negligently and committed malpractice by ordering the administration of blow-by oxygen to Emily. The trial court ruled that the Barretts failed to present sufficient evidence from which a reasonable juror could find that the decision to use blow-by oxygen either breached the applicable standard of care or proximately caused Emily's death. The court reasoned that because the risk of hyperinflation due to use of blow-by oxygen was unforeseeable, Dr. Harris did not breach any standard of care. Additionally, the court concluded that the creation of the closed system during the administration of blow-by oxygen was unforeseeable and a superseding cause of Emily's death.
¶ 20 The Barretts first contend that the court erred in its ruling because they indeed presented sufficient medical evidence that Dr. Harris' blow-by order fell below the standard of care. Dr. Harris does not dispute that the Barretts presented sufficient evidence on this issue to survive a JMOL, and we agree. Whether a physician breaches a duty by falling below the accepted standard of care is ordinarily shown by expert medical testimony. Peacock v. Samaritan Health Serv., 159 Ariz. 123, 126, 765 P.2d 525, 528 (App.1988). Here, Dr. Vanderhal testified that Dr. Harris' decision to administer blow-by oxygen fell below the standard of care because this method was not an efficient means of delivering oxygen to an intubated baby. This testimony precluded a ruling as a matter of law that the Barretts failed to prove that Dr. Harris fell below the standard of care by ordering Nurse Niesen to administer blow-by oxygen.
¶ 21 The Barretts also contend that the court erred in its ruling because they presented sufficient evidence that Dr. Harris' blow-by order proximately caused Emily's hyperinflation injury and resulting death. The Barretts point to Dr. Vanderhal's testimony that use of blow-by oxygen subjected Emily to the risk of being injured by the inefficient delivery of oxygen. Because Emily was in fact injured by the delivery of blow-by oxygen, the Barretts argue that they sufficiently proved proximate cause to allow the claim to proceed to the jury. They maintain that they were not required to specifically show that the order to administer blow-by oxygen created a foreseeable risk of hyperinflation.
¶ 22 To support their position, the Barretts rely on the Restatement (Second) of Torts § 435 (1965), which provides, in pertinent part, as follows:
(1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.
Arizona courts have applied § 435. See Petolicchio, 177 Ariz. at 263, 866 P.2d at 1349; Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 554, 832 P.2d 203, 207 (1992); Rossell v. Volkswagen of America, 147 Ariz. 160, 169, 709 P.2d 517, 526 (1985).
¶ 23 The Barretts submit "there can be little doubt" that Dr. Harris' order to administer blow-by oxygen to Emily was a "substantial factor" in harming Emily because Nurse Niesen created the fatal closed system while following this order. Thus, applying Restatement § 435, they contend that the fact Dr. Harris did not foresee nor should not have foreseen the hyperinflation injury did not relieve him from liability. Dr. Harris responds that § 435 is inapplicable because Arizona's adherence to the substantial factor premise articulated in that section is "questionable" in light of supreme court precedent. Regardless, he argues that applying Arizona law, the order to administer blow-by oxygen did not proximately cause Emily's death because the hyperinflation injury did not result from a recognizable risk created by use of blow-by oxygen. To resolve this dispute, we must decide what constitutes a "substantial factor" in bringing about harm to another person, as set forth in Restatement § 435, and whether Arizona follows § 435.
¶ 24 The meaning of "substantial factor" in § 435 is set forth in the Restatement (Second) of Torts §§ 431, 433 (1965) of that treatise. Section 431 provides that an actor's negligent conduct is a legal or proximate cause of harm if that conduct is a substantial factor in bringing about the harm and no rule *961 of law otherwise relieves the actor from liability. Comment a to that section explains that the term "substantial factor" is used to differentiate events that lead to the harm but would not be thought of by reasonable persons to have caused the harm.[6] Section 433 of the Restatement lists important considerations in determining whether negligent conduct is a substantial factor in producing harm.[7]
¶ 25 In McDowell v. Davis, 104 Ariz. 69, 71-72, 448 P.2d 869, 871-72 (1968), the supreme court disapproved a jury instruction informing jurors that proximate cause is demonstrated if the negligent act was a substantial factor, rather than a slight or possible factor, in producing the injury. The court wrote that if it could be assured that jurors understood the term "substantial factor" to mean not imaginary, illusive or insignificant, the court would not dispute its use. Id. at 71, 448 P.2d at 871. The court reasoned, however, that because the word "substantial" commonly refers to a large quantity, the instruction implied that a tortfeasor's act or omission must be a "large" cause of a plaintiff's damages. Id. at 71-72, 448 P.2d at 871-72. In fact, because a tortfeasor can be liable if its conduct contributed "only a little" to the plaintiff's damages, the court decided that use of the word in a jury instruction would be misleading. Id. The court then reiterated the oft-stated rule that proximate cause consists of "any cause which in a natural and continuous sequence produces the injury and without which the result would not have occurred." Id.
¶ 26 We reject Dr. Harris' contention that the McDowell court "expressly rejected the `substantial factor' test as a definition of proximate cause." Rather than rejecting that test, the court criticized the jury instruction for not using "the language of the test as set forth in the Restatement, § 431 to the extent that the meaning of the test as explained in the Restatement, §§ 432 and 433, [was not] properly conveyed to the jury." Id. at 72, 448 P.2d at 872. Thus, although the McDowell court rejected the use of the term "substantial factor" in the jury instruction at issue, the court did not reject the substantial-factor test. Indeed, twenty-four years later, the court expressly cited Restatement § 431 for the principle that a tort must be "a substantial factor in bringing about the harm" in order to be the proximate cause of that harm. Thompson, 171 Ariz. at 554, 832 P.2d at 207.[8] For these reasons, we hold that Arizona courts follow the substantial-factor test set forth in Restatement § 431 and referenced in § 435.
*962 ¶ 27 We next consider whether the Barretts presented sufficient evidence that the blow-by order was a substantial factor in bringing about the hyperinflation injury. At a minimum, although other factors must be considered, see Restatement § 433, a negligent act or omission is a substantial factor in bringing about harm if it produced the injury in a natural and continuous sequence, unbroken by any efficient intervening cause, and without which the injury would not have occurred. See Robertson, 163 Ariz. at 546, 789 P.2d at 1047; McDowell, 104 Ariz. at 71-72, 448 P.2d at 871-72. According to Dr. Harris, any harm stemming from his alleged negligence in ordering blow-by oxygen was broken by Nurse Niesen's act in creating the fatal closed system, thereby superseding the blow-by order as a substantial factor in harming Emily.
¶ 28 "[N]egligence is not actionable in the abstract." Sabina v. Yavapai County Flood Control Dist., 196 Ariz. 166, 171, ¶ 20, 993 P.2d 1130, 1135 (App.1999). In order to hold an actor liable for negligence, a plaintiff must prove that the plaintiff was in the foreseeable range of the negligent conduct, and that one of the dangers or risks that made the actor's conduct negligent brought about the injury. Rossell, 147 Ariz. at 169, 709 P.2d at 526; McFarlin v. Hall, 127 Ariz. 220, 222, 619 P.2d 729, 731 (1980); Schnyder v. Empire Metals, Inc., 136 Ariz. 428, 430-31, 666 P.2d 528, 530-31 (App.1983); Restatement (Second) of Torts § 281 cmt. e (1965) (stating that when negligence of act consists in its recognizable tendency to subject another to particular hazard, the actor cannot be subject to liability for harm occurring otherwise than by other's exposure to that hazard); see also Restatement (Second) of Torts § 430 cmt. c (1965). Such dangers or risks may include the intervening negligent or criminal acts of others if intervention of the latter causes fell within the recognizable risk that made the conduct negligent. Rossell, 147 Ariz. at 169, 709 P.2d at 526.
¶ 29 Dr. Harris contends that the Barretts failed to introduce any medical evidence that the use of blow-by oxygen created a recognizable risk of hyperinflation. Specifically, Dr. Harris points to Dr. Vanderhal's testimony that the administration of blow-by oxygen fell below the standard of care solely because it was not an efficient means of delivering oxygen to the lungs of an intubated baby whose natural airway is restricted by the small diameter of the ET-tube. Based on this testimony, Dr. Harris contends that the only recognizable risk created by use of blow-by oxygen was that Emily would not receive sufficient oxygen. Because Emily was not injured by the lack of oxygen, and because no other medical evidence suggested that hyperinflation fell within the recognizable risk that allegedly made the blow-by order negligent, Dr. Harris asserts that his order was not a substantial factor in bringing about Emily's injury.
¶ 30 The Barretts argue that the following testimony from Dr. Vanderhal demonstrated that the hyperinflation injury was within the recognizable risk of using blow-by oxygen:
Q. Okay, and that hyperinflation incident, doctor, was totally unforeseeable, wasn't it, to Dr. Harris?
A. I would beI think it is foreseeable that this baby would have a recurrence of air leak, and pneumothorax.[9] If you ask me, could he have foreseen that it was this massive, the answer's no.
Standing alone, it is possible to read this testimony as meaning that a recurrence of air leak and pneumothorax due to hyperinflation was foreseeable. Immediately after relating this testimony, however, Dr. Vanderhal clarified that hyperinflation could not occur until a closed system was created and that "creation of that closed system was totally unforeseeable." He further stated that he had never associated hyperinflation with the application of blow-by oxygen. Thus, when read in the context of Dr. Vanderhal's entire testimony, it is apparent that the portion of the doctor's testimony relied on by the Barretts referred to the foreseeablity that Emily would again develop air leak and pneumothorax due to receipt of an insufficient *963 amount of oxygen rather than as a result of hyperinflation.
¶ 31 In summary, the Barretts did not produce any evidence demonstrating that Nurse Niesen's creation of the fatal closed system stemmed from the recognizable risk that made Dr. Harris' decision to use blow-by oxygen negligent. Rossell, 147 Ariz. at 169, 709 P.2d at 526. The mere decision to use this method to deliver oxygen to Emily was not a substantial factor in bringing about injury. We decide that Restatement § 435 did not apply and the trial court correctly ruled as a matter of law that the mere order to use blow-by oxygen was not a proximate cause of Emily's fatal injury. See Sabina, 196 Ariz. at 171, ¶¶ 23-24, 993 P.2d at 1135 (holding flood control district's negligence in maintaining drainage ditch abutting parking lot did not cause plaintiff's fall into ditch from opposite side because injury well beyond foreseeable range of negligent failure to correct erosion problem on parking-lot side of ditch); Gregg, 145 Ariz. at 54, 699 P.2d at 928 (upholding summary judgment for hospital because expert medical opinion that hospital substandard for not adopting certain rules failed to state that this failure proximately caused patient's death); Chavez v. Tolleson Elementary Sch. Dist., 122 Ariz. 472, 478, 595 P.2d 1017, 1023 (App.1979) (affirming JMOL for school district because abduction and murder of student after she wandered from campus without permission did not result from foreseeable risk created by alleged negligence of school in supervising student). In light of our decision, we do not address the court's alternative ruling that Nurse Niesen's actions constituted a superseding cause of Emily's death.
CONCLUSION
¶ 32 For the foregoing reasons, we conclude that the trial court properly granted Dr. Harris' motion for JMOL on the Barretts' claims that he committed medical malpractice and was negligent by failing to inform Mrs. Barrett of the risk that Emily would have immature lungs if born prematurely, and by later ordering the administration of blow-by oxygen to Emily. The Barretts failed to introduce sufficient evidence that these acts and omissions proximately caused Emily's death. Consequently, we affirm.
CONCURRING: JON W. THOMPSON, Presiding Judge and MAURICE PORTLEY, Judge.
NOTES
[1] The Barretts also asserted claims against YRMC, Mrs. Barrett's treating obstetricians, and a perinatology group. The Barretts settled with YRMC and the obstetricians and voluntarily dismissed the claims asserted against the perinatology group.
[2] See W. Page Keeton et al., Prosser and Keeton on Torts § 41, at 263 (5th ed.1984).
[3] The Barretts also argue that they presented sufficient evidence that Dr. Harris fell below the standard of care when advising Mrs. Barrett during the neonatal consultation. However, because the trial court granted the motion for JMOL based solely on the issue of proximate cause, we need not address this issue.
[4] No Arizona opinion has applied Restatement § 457. Transcon Lines v. Barnes, 17 Ariz.App. 428, 430 n. 1, 498 P.2d 502, 504 n. 1 (App.1972), which the Barretts cite, only mentions § 457 when relating the original tortfeasors' argument concerning their right to indemnity from a treating physician.
[5] See Daly v. United States, 946 F.2d 1467, 1471 (9th Cir.1991) (stating § 457 applies to successive malpractice when subsequent treatment undertaken to mitigate harm inflicted by prior physician); Rine v. Irisari, 187 W.Va. 550, 553, 420 S.E.2d 541, 544 (1992) (same); Carter v. Shirley, 21 Mass.App.Ct. 503, 510-11, 488 N.E.2d 16, 20 (1986) (concluding § 457 is no less applicable to "physicians whose original negligence causes the intervention of a second physician who either improperly diagnoses the case and performs an unnecessary operation or makes a proper diagnosis and performs a necessary operation negligently"); Lindquist v. Dengel, 92 Wash.2d 257, 262-63, 595 P.2d 934, 937 (1979) (finding § 457 does not carve out a special exception for physicians).
[6] Comment a states in significant part as follows: "In order to be a legal cause of another's harm, it is not enough that the harm would not have occurred had the actor not been negligent. . . . . The word `substantial' is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called `philosophic sense,' which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called `philosophic sense,' yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes."
[7] Restatement § 433 lists as considerations (a) the number of other factors that contribute in producing the harm and the extent of the effect they have in producing it, (b) whether the actor's conduct created a force or series of forces that were in continuous and active operation up to the time of the harm or created a harmless situation unless acted upon by other forces for which the actor was not responsible, and (c) the lapse of time between the negligent conduct and the harm.
[8] In Markiewicz, 118 Ariz. at 338 n. 6, 576 P.2d at 526 n. 6, this court stated that the court in McDowell "reject[ed]" the Restatement's substantial-factor test because the word "substantial" implied that the defendant's act must be a "large" or "abundant" cause of injury. Thereafter, the supreme court in Thompson approved the Restatement test but cited the above-referenced explanation from Markiewicz without comment. Thompson, 171 Ariz. at 554, 832 P.2d at 207. We conclude from this citation that although the supreme court approves the substantial-factor test, it continues to adhere to the principle that an act proximately causes an injury, even when the negligent conduct contributed "only a little" to the injury, as long as the act produced the injury in a natural and continuous sequence, unbroken by any efficient intervening cause, and without which the injury would not have occurred. See Robertson, 163 Ariz. at 546, 789 P.2d at 1047; McDowell, 104 Ariz. at 71-72, 448 P.2d at 871-72.
[9] According to Dr. Vanderhal, a pneumothorax is a condition in which air exists outside the lung but remains inside the chest and the lung collapses either completely or partially. Emily had experienced bilateral pneumothoraces before being intubated.
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Cite as 2017 Ark. App. 303
ARKANSAS COURT OF APPEALS
DIVISION II
No. CV-16-1046
Opinion Delivered: May 10, 2017
KHALEELAH BROWN
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. ELEVENTH DIVISION
[NO. 60JV-15-720]
ARKANSAS DEPARTMENT OF HONORABLE PATRICIA JAMES,
HUMAN SERVICES AND MINOR JUDGE
CHILDREN
APPELLEES
AFFIRMED; MOTION GRANTED
KENNETH S. HIXSON, Judge
Appellant Khaleelah Brown appeals from the termination of her parental rights to
her four children A.B., K.B., B.B., and R.B. 1 Pursuant to Linker-Flores v. Arkansas
Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme
Court Rule 6-9(i), Khaleelah’s counsel has filed a no-merit brief and motion to withdraw,
asserting that there are no issues of arguable merit to support an appeal and that he should
be relieved as counsel. A copy of Khaleelah’s counsel’s brief and motion was mailed to
Khaleelah, and after being informed of her right to file pro se points, Khaleelah declined to
file any points. We affirm and grant appellant’s counsel’s motion to be relieved.
1
The children’s father had little participation in the case, and his parental rights were
also terminated. The father is not a party to this appeal.
Cite as 2017 Ark. App. 303
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep’t of
Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must
exist, in addition to a finding that it is in the child’s best interest to terminate parental rights;
these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3)
(Repl. 2015); Mitchell v. Ark. Dep’t of Human Servs., 2013 Ark. App. 715, 430 S.W.3d 851.
Clear and convincing evidence is that degree of proof that will produce in the fact-finder a
firm conviction as to the allegation sought to be established. Gray v. Ark. Dep’t of Human
Servs., 2013 Ark. App. 24. The appellate inquiry is whether the trial court’s finding that the
disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark.
Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the entire evidence
is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark.
Dep’t of Human Servs., 96 Ark. App. 247, 240 S.W.3d 626 (2006).
This case began on May 19, 2015, when appellee Arkansas Department of Human
Services (DHS) filed a petition for emergency custody of all four children. Attached to the
petition were the affidavits of a DHS caseworker and criminal investigator stating that
Khaleelah’s youngest child, nine-month-old R.B., had been transported by ambulance to
the hospital with serious injuries. Upon arriving at the hospital, R.B. had to be revived
after he had stopped breathing and was unresponsive. R.B. was diagnosed with a subdural
hematoma, a skull fracture, and retinal hemorrhaging consistent with shaken-baby
syndrome. R.B. underwent emergency surgery to relieve pressure in his brain, and a blood
clot was noted that was subacute, meaning it was 2−3 days old and could not have happened
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that day. When asked how the injuries occurred, Khaleelah stated that, while the children’s
father was outside the house and she was using the restroom, R.B. fell out of Khaleelah’s
bed. R.B.’s doctor determined that R.B.’s injuries were too extensive to have been
sustained from falling off a bed. On the same day the petition was filed, the trial court
entered an ex parte order for emergency DHS custody of all four children.
On May 27, 2015, the trial court entered a probable-cause order. In that order, the
trial court stated that R.B. was still in the hospital and that the other three children were in
foster care. R.B. was on a ventilator, and both parents were suspected of child maltreatment.
The father had been jailed for a probation violation, and he would remain in jail during
most of these proceedings. In the probable-cause order, the trial court ordered no contact
between the children and either parent.
On July 20, 2015, the trial court entered an adjudication order finding all four
children to be dependent-neglected and setting the case goal as reunification. In the
adjudication order, the trial court noted that a criminal investigator had attempted to inspect
the bed and floor surface where R.B. had allegedly fallen, but that Khaleelah did not allow
the inspector in her home. The trial court further noted the testimony of Dr. Maria
Esquivel, who testified at the adjudication hearing that R.B. had to be revived twice during
surgery and could have died. Dr. Esquivel also testified that R.B.’s injuries were consistent
with a vehicle accident, a fall from a significant height, or being shaken. The trial court
made the following specific findings in the adjudication order:
[T]he Court finds by clear and convincing evidence that the children were subjected
to abuse, parental unfitness, and aggravated circumstances by the mother. Regarding
abuse, the Court finds that R.B.’s injuries are at variance with the history given by
mother. Based on medical testimony, R.B. suffered nonaccidental physical injury,
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specifically he is a child aged three or younger who was shaken. Regarding
aggravated circumstances, the Court finds by clear and convincing evidence that
R.B. was subjected to extreme cruelty, which is also defined as abuse, and this abuse
endangered his life. The totality of these circumstances also leads this Court to find
parental unfitness, and that the siblings are at risk of harm based on the extreme and
cruel abuse to their brother. R.B.’s injuries would have been caused by a fall from
a great height or motor vehicle accident, not falling off a bed. Dr. Esquivel testified
that the child’s injuries are consistent with “shaken baby syndrome.” Further, the
child had to be resuscitated three times during the time of the EMT arrival and the
conclusion of his surgery. The Court finds Dr. Esquivel’s testimony to be credible
and compelling. Mother identified herself as the only adult [present] at the time the
injuries occurred to R.B., based on her own prior statements. The Court finds that
the other three children would not be safe in mother’s care, based on this Court’s
findings today.
On November 4, 2015, the trial court entered a review order stating that Khaleelah
had been arrested and charged with first-degree battery committed against R.B. In the
criminal case, there was a no-contact order prohibiting any contact between Khaleelah and
all her children. On May 2, 2016, the trial court entered a permanency-planning order
finding that neither parent had made measurable progress in the case and that Khaleelah was
awaiting a jury trial on the criminal charges. In the permanency-planning order, the trial
court changed the case goal to termination of parental rights and adoption.
DHS filed a petition to terminate Khaleelah’s parental rights on June 3, 2016. The
termination hearing was held on July 27, 2016.
On August 30, 2016, the trial court entered an order terminating Khaleelah’s parental
rights as to all four children. The trial court found by clear and convincing evidence that
termination of parental rights was in the children’s best interest, and the court specifically
considered the likelihood of adoption, as well as the potential harm of returning the children
to Khaleelah’s custody as required by Arkansas Code Annotated section 9-27-341(b)(3)(A).
The trial court also found clear and convincing evidence of four statutory grounds under
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subsection (b)(3)(B). Pursuant to subsection (b)(3)(B)(i)(a), the trial court found that the
juveniles had been adjudicated by the court to be dependent-neglected and had continued
out of the custody of the parent for twelve months and, despite a meaningful effort by the
department to rehabilitate the parent and correct the conditions that caused removal, those
conditions had not been remedied by the parent. Under subsection (b)(3)(B)(vi)(a), the trial
court found R.B. and his siblings dependent-neglected as a result of neglect or abuse that
could endanger the life of the child, which was perpetrated by Khaleelah. Under subsection
(b)(3)(B)(vii)(a), the trial court found that other factors or issues arose subsequent to the
filing of the original petition for dependency-neglect that demonstrated that placement of
the juveniles in the custody of the parent was contrary to the juveniles’ health, safety, or
welfare and that, despite the offer of appropriate family services, the parent had manifested
the incapacity or indifference to remedy those issues or factors, or rehabilitate the parent’s
circumstances that prevent the placement of the juvenile in the custody of the parent.
Finally, under subsection (b)(3)(B)(ix)(a)(3)(B)(i), the trial court found that the parent had
subjected any juvenile to aggravated circumstances because R.B. had been subjected to
extreme cruelty, and also because there was little likelihood that services to the family would
result in successful reunification.
At the termination hearing, Dr. George DeRoeck, a psychologist, testified that
he conducted a psychological evaluation of Khaleelah. Based on his examination,
Dr. DeRoeck thought that Khaleelah had been under a good deal of stress for a number of
years and was woefully inadequately prepared to care for her children, which resulted in the
significant injuries to R.B. In his report, Dr. DeRoeck noted that the children’s father had
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in the past been violent toward Khaleelah and the children, and Khaleelah admitted that he
would leave marks on the children and she would cover them up. Dr. DeRoeck thought
that the children’s safety was at risk in Khaleelah’s custody.
DHS caseworker Rachel Nichols testified that R.B. was making progress with his
therapeutic services and that all four children were stable in their foster placements.
According to Ms. Nichols, Khaleelah had not substantially cooperated with DHS, and
Khaleelah had never provided an explanation for R.B.’s injuries that was consistent with
the medical evidence. Ms. Nichols believed that the children would be at great risk of harm
if returned to Khaleelah, and she thought that termination of Khaleelah’s parental rights was
in the best interest of the children. An adoption specialist, Jessica Warren, testified that all
four children were adoptable.
In the no-merit brief, appellant’s counsel correctly asserts that there can be no
meritorious challenge to the sufficiency of the evidence supporting termination of
Khaleelah’s parental rights. Although the trial court found four grounds for termination,
only one ground is necessary to support the termination. See Draper v. Ark. Dep’t of Human
Servs., 2012 Ark. App. 112, 389 S.W.3d 58. In both the adjudication order and the
termination order, the trial court found under Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a)
that R.B. and his siblings were dependent-neglected as a result of abuse perpetrated by
Khaleelah that could endanger the life of the child. In both the adjudication order and
the termination order, the trial court also found under Ark. Code Ann. § 9-27-
341(b)(3)(B)(ix)(a)(3)(B)(i) that there were aggravated circumstances because R.B. was
subjected to extreme cruelty.
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An adjudication order is an appealable order in a dependency-neglect proceeding.
Ark. Sup. Ct. R. 6-9(a)(1)(A). When a party fails to appeal from an adjudication order and
challenge the findings therein, she is precluded from asserting error with respect to those
findings on appeal from an order terminating parental rights. See Holloway v. Ark. Dep’t of
Human Servs., 2015 Ark. App. 458, 468 S.W.3d 805. Because Khaleelah did not appeal
from the adjudication order, which contained the trial court’s findings by clear and
convincing evidence that the children were dependent-neglected as a result of abuse that
could endanger the life of the child, and that R.B. had been subjected to extreme cruelty,
those grounds supporting termination cannot be challenged in this appeal. Moreover, on
this record we conclude that the trial court did not clearly err in finding these statutory
grounds based on the life-threatening injuries caused to R.B. while in Khaleelah’s care,
which were consistent with shaken-baby syndrome and inconsistent with Khaleelah’s
explanation for the injuries.
We also agree with appellant’s counsel’s assertion that there can be no meritorious
challenge to the trial court’s finding that termination was in the best interest of the children.
There had been no contact between Khaleelah and her children since the children were
removed from her custody. The psychological examiner and caseworker both testified that
the children would be at risk of harm if returned to Khaleelah’s custody, and there was
evidence that all of the children were adoptable. Based on the evidence presented, the trial
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court’s finding that termination of Khaleelah’s parental rights was in the best interest of the
children was not clearly erroneous.
We observe that, although appellant’s counsel has adequately explained why there
can be no meritorious challenge to the sufficiency of the evidence supporting termination,
there were two adverse rulings other than the termination itself that occurred during the
termination hearing. Although appellant’s counsel has abstracted these two adverse rulings
as required by Rule 6-9(i)(1)(B), counsel failed to explain in his brief why each adverse
ruling is not a meritorious ground for reversal as required by Rule 6-9(i)(1)(A). However,
as we explained in Houseman v. Arkansas Department of Human Services, 2016 Ark. App. 227,
491 S.W.3d 153, even if an adverse ruling is omitted from a no-merit brief in a termination
case, we may affirm if the ruling would clearly not constitute a meritorious ground for
appeal. Such is the case with regard to each of the omitted adverse rulings here.
The first adverse ruling occurred when the trial court, over appellant’s objection,
admitted into evidence a positive hair-follicle drug test of one of the children. The next
adverse ruling occurred during appellant’s cross-examination of the caseworker, when the
trial court sustained DHS’s relevancy objection to appellant’s question as to why the children
had not been placed with their maternal grandmother. We conclude that neither of these
evidentiary rulings amounted to an abuse of discretion and that any possible error did not
affect the outcome of the proceedings. Therefore, these adverse rulings would clearly not
constitute any meritorious ground for appeal.
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After examining the record and appellant’s counsel’s brief, we have determined that
this appeal is wholly without merit. Accordingly, we affirm the order terminating
appellant’s parental rights and grant her counsel’s motion to be relieved from representation.
Affirmed; motion granted.
ABRAMSON and MURPHY, JJ., agree.
Lightle, Raney, Streit & Streit, LLP, by: Jonathan R. Streit, for appellant.
No response.
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Appeal from a decision of the Unemployment Insurance Appeal Board, filed June 1, 2012, which ruled that claimant was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.
Claimant was employed as a salesperson at a retail mattress store. In April 2011, a customer complained that her account had been charged for merchandise that she had not purchased. When the employer looked into the complaint, it determined that claimant had generated an invoice charging certain items to the customer’s account, accused claimant of improperly signing the customer’s name on the invoice, and terminated her employment. Following a hearing, an Administrative Law Judge confirmed claimant’s initial award of benefits, rejecting the employer’s objections. However, upon review, the Unemployment Insurance Appeal Board reversed, finding that the credible evidence established that claimant was discharged from her employment because she fraudulently signed a customer’s name on an invoice, which constituted disqualifying misconduct. Denying any wrongdoing, claimant now appeals.
The employer introduced at the hearing two invoices from the same customer. According to the employer, the customer signed the first, but not the second. The two signatures are clearly dissimilar. The employer’s invoices for purchases are generated through a computer printout, and the customer actually signs an electronic signature pad. Significantly, the customer was not produced as a witness at the hearing. Claimant consistently testified that the customer signed both invoices in her presence and denied that she signed the customer’s signature on the disputed invoice. Claimant also introduced a written statement signed by the customer stating that her claim—that her balance was incorrect—was wrong and offering an apology. Notably, the employer provided no testimony to controvert the statement or any proof that it ever adjusted the disputed charge in favor of the customer.
On the record before us, the decision of the Board is not supported by substantial evidence. The employer’s case, based primarily on hearsay, did not include sufficient evidence that any *1029wrongdoing actually occurred or provide any sustainable basis to discredit claimant’s sworn testimony (see Matter of Perry [Levine], 37 AD2d 367, 368 [1971]). Accordingly, the decision should be reversed and the matter remitted for further proceedings.
Spain, J.P., Stein, McCarthy, Garry and Egan Jr., JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.
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Order unanimously affirmed with costs. Memorandum: Special Term properly denied summary judgment. These claims are predicated upon a violation of the *953Dram Shop Act (General Obligations Law § 11-101). The statute was enacted to compensate persons injured as a result of the illegal sale of alcoholic beverages (Scheu v High-Forest Corp., 129 AD2d 366, 368; Fox v Mercer, 109 AD2d 59, 60; Smith v Guli, 106 AD2d 120, 123). It entitles a person injured as a result of an unlawful sale of liquor to recover damages caused "by reason of the intoxication” of the vendee (General Obligations Law § 11-101 [1]; Bartkowiak v St. Adalbert’s R. C. Church Socy., 40 AD2d 306, 310). Defendant notes that under the Vehicle and Traffic Law, evidence that a person had a blood alcohol content of .05% or less is "prima facie evidence” that such person’s ability to operate a motor vehicle was not impaired and that such person was not intoxicated (Vehicle and Traffic Law § 1195 [2] [a]). Here, defendant submitted proof that the driver, who was a minor, had a blood alcohol content of only .01%. Applying the standard set forth in the Vehicle and Traffic Law, defendant argued that it had submitted prima facie proof that the driver was not "intoxicated” at the time of the accident and thus it was entitled to summary judgment. In opposition, plaintiff submitted the accident report prepared by the arresting officer which contained the police officer’s observations made at the scene of the accident that led her to arrest the minor for driving while intoxicated. Although the Vehicle and Traffic Law prohibits driving while intoxicated (Vehicle and Traffic Law § 1192 [3]), there is no statutory definition of intoxication (see, People v Cruz, 48 NY2d 419, 427). Intoxication is not an unfamiliar concept however, or a concept that requires an expert opinion. "A layman, including the defendant and those charged with administering the law, should be able to determine whether defendant’s consumption of alcohol has rendered him incapable of operating a motor vehicle as he should.” (People v Cruz, supra, at 428.) The observations and opinion of the arresting officer that the minor was intoxicated raised an issue of fact on the issue of intoxication which properly should be resolved by the trier of fact. (Appeal from order of Supreme Court, Erie County, Fudeman, J.—summary judgment.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902034/
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Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court improvidently exercised its discretion by granting the motion of defendant Wierzbieniec for a protective order precluding use of a notice to admit upon the ground that the statements had already been admitted at a pretrial deposition. Use of both a deposition and notice to admit is not barred by statute (CPLR 3123; compare, CPLR 3130 [1]), and each device serves a distinct purpose. The pretrial deposition is utilized to discover facts, whereas the notice to admit is used to establish that certain facts are not in dispute and to eliminate the need for proof of that fact at trial (Johantgen v Hobart Mfg. Co., 64 AD2d 858, 859-860; Spawton v Strates Shows, 75 Misc 2d 813, 814; see also, Durst, Fuchsberg & Kleiner, Modern New York Discovery § 13.2). Moreover, an admission made during a deposition is not conclusive and may be explained away, but an admission in response to a notice to admit, unless amended or withdrawn by court order, is conclusive (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3123:l).
The court did, however, correctly determine that certain items were not the proper subject of a notice to admit because they sought to establish material facts directly probative of the issue of negligent diagnosis and failure to timely treat plaintiff’s decedent (see, Berg v Flower Fifth Ave. Hosp., 102 AD2d 760; Spawton v Strates Shows, supra). In this respect, we conclude that the existence of a notation in the doctor’s records and whether the doctor informed decedent of a cancer condition and referred him for treatment within a specified time frame are matters of fact that may be the proper subject of a notice to admit (see, Villa v New York City Hous. Auth., 107 AD2d 619, 620) and accordingly, we modify the protective order to deny the motion as to items numbered 14, 18 through 24, and 35. (Appeal from order of Supreme Court, Erie County, Ricotta, J.—protective order.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902036/
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—Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Petitioners, The Herald Company and Sara Gillen, a reporter, made a written request pursuant to the Freedom of Information Law (FOIL) to the respondent, County of Onondaga, for access to "records showing the identities and blood alcohol content of all people (pedestrians, drivers and passengers) involved in alcohol-related traffic fatalities in 1986”. This request was denied on the ground that this information is found only in autopsy reports maintained by the Medical Examiner, disclosure of which is prohibited by section 677 (3) (b) of the County Law. Petitioners commenced this CPLR article 78 proceeding to compel respondent to provide access to the requested information. During the pendency of the proceeding before Special Term, petitioners discovered that the results of blood alcohol tests performed by the Medical Examiner are also found on MV-105 forms, which the Medical Examiner submits to the Commissioner of Motor Vehicles, as required by County Law § 677 (5). Petitioners argued that they were entitled to access to these forms. *955Special Term denied petitioners’ request for access to the autopsy reports, holding that County Law § 677 (3) (b) governs the disclosure of such records and petitioners did not meet the requirements for disclosure under that statute. Special Term further held that the MV-105 forms were subject to disclosure pursuant to a FOIL request, but redacted certain information from the forms, finding that disclosure of this information was limited by certain FOIL exceptions.
We agree that petitioners were not entitled to disclosure of the autopsy reports. Under FOIL, records that have been "specifically exempted from disclosure” by other State statutes need not be made available for public inspection (Public Officers Law § 87 [2] [a]). Autopsy reports, which the Medical Examiner is required to compile and maintain (County Law § 677 [3] [a]) are "open to inspection by the district attorney of the county” and may also be released, upon request, to the personal representative, spouse or next of kin of the deceased (County Law § 677 [3] [b]). Further disclosure must be by court order and only to "any person who is or may be affected in a civil or criminal action by the contents of the record of any investigation, or * * * any person having a substantial interest therein” (County Law § 677 [3] [b]). Petitioners failed to demonstrate that they have a "substantial interest” in the autopsy reports. Although their stated purpose for seeking disclosure, to publish articles on the dangers of drinking and driving, is, on its face, laudatory, it does not outweigh the interest in protecting the privacy of the families of the victims.
Petitioners further argue that even if the autopsy reports themselves are exempt from disclosure, the MV-105 forms, which also contain identifying information about the victims of auto accidents, including the blood alcohol test results, are subject to disclosure under FOIL. We disagree, and modify Special Term’s order to deny petitioners’ request for access to these forms in its entirety. We hold that disclosure of the MV-105 forms is likewise governed by section 677 (3) (b) of the County Law. The obvious purpose of this section is to protect the information found in autopsy reports from public disclosure. If petitioners’ arguments were accepted, it would effectively defeat the purpose of the statute. In our view, not only are the autopsy reports exempt from disclosure, but the MV-105 forms, which contain information obtained from the autopsy reports, are likewise exempt (see, Matter of Newsday, Inc. v Sise, 71 NY2d 146). (Appeal from order of Supreme Court, Onondaga County, Miller, J.—Freedom of Information *956Law.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902037/
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—Order unanimously affirmed with costs. Same memorandum as in Renzo v Tops Friendly Mkts. (136 AD2d 952 [decided herewith].) (Appeal from order of Supreme Court, Erie County, Fudeman, J.—summary judgment.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902038/
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Judgment unanimously affirmed without costs. Memorandum: Plaintiff appeals from a judgment entered upon a jury verdict in favor of defendant in a medical malpractice action. He also appeals from an order denying his motion to compel the panel members to sign the formal written recommendation report. In the first appeal, plaintiff claims that the verdict was contrary to the weight of the evidence and that the court erred in disallowing for impeachment plaintiff’s use of defendant’s prior testimony before the Committee for Professional Conduct. In the second appeal, plaintiff claims that the initial panel report containing a unanimous finding of liability against the defendant should have been signed, notwithstanding a change of vote by the physician panelist two days after the panel convened. None of these claims requires a reversal.
Plaintiff contends that defendant failed to diagnose timely his diabetic retinopathy and performed needless cataract surgery on his left eye. Plaintiff argues that had defendant used an indirect rather than a direct ophthalmoscope, defendant would properly have attributed plaintiff’s loss of vision to diabetic retinopathy rather than cataracts. Plaintiff asserts that defendant should not have performed the cataract surgery which rendered plaintiff legally blind. Defendant testified that he did not believe an indirect ophthalmoscope would have given him a better view of plaintiff’s eyes. Defendant’s expert testified that 30 to 40% of the ophthalmologists in the community did not routinely use an indirect ophthalmoscope, that an indirect ophthalmoscope would be used only when a patient’s physical symptoms or medical records aroused a suspicion of peripheral retinal disease, and that he could not find any basis for such a suspicion in this case. Where alternative procedures are available to a physician, any one of which is medically acceptable, a physician cannot be held liable for malpractice when he uses one of several acceptable techniques (Centeno v City of New York, 48 AD2d 812, affd 40 NY2d 932; Schreiber v Cestari, 40 AD2d 1025, 1026; Cameron v State of New York, 37 AD2d 46, affd 30 NY2d 596; Taig v State of New York, 19 AD2d 182). Thus, on the basis of the expert testimony, the plaintiff’s medical history and the state of the medical knowledge regarding the use of direct and indirect ophthalmoscopes in 1977 and 1978, the jury could have found *957that defendant’s failure to use an indirect ophthalmoscope was a permissible exercise of medical judgment and not a departure from then accepted medical practice (Johnson v Yeshiva Univ., 42 NY2d 818, 820; Pike v Honsinger, 155 NY 201). We have considered plaintiffs remaining contentions on his claim that the verdict was contrary to the weight of the evidence and find that none has merit.
The trial court erred in refusing to permit the proposed impeachment testimony on the ground that it was prohibited by section 230 (9) of the Public Health Law. This statute proscribes only discovery of testimony before a Committee for Professional Conduct. Since plaintiffs counsel was aware of defendant’s prior testimony by virtue of his representation of another physician charged with misconduct, plaintiff was not seeking to discover the testimony, but rather to impeach defendant with it regarding his views of when use of an indirect ophthalmoscope and the performance of cataract surgery were proper. Although this impeachment testimony should have been allowed (CPLR 4514), the court’s error does not require a reversal of the judgment because had it been admitted it is most likely that it would not have had a substantial influence upon the verdict (see, CPLR 2002; Walker v State of New York, 111 AD2d 164, 165; Moore v Maggio, 96 AD2d 738).
Special Term properly denied plaintiffs motion to require the panel members to sign the medical malpractice panel hearing report. A report was signed only by the judicial member of the panel. Although we do not condone the practice of a panel member changing a vote once the panel disbands, we recognize that the statute does not provide a time limit within which an "appropriate order shall be entered” (Judiciary Law § 148-a [7]). Moreover, on this record, there is no evidence that the physician panelist changed his vote based upon undue influence or evidence outside the hearing record (Virgo v Bonavilla, 71 AD2d 1051, affd 49 NY2d 982; cf, Felner v Shapiro, 94 AD2d 317; Seabrook v Good Samaritan Hosp., 75 AD2d 849; De Camp v Good Samaritan Hosp., 66 AD2d 766, 768). Thus, since there was never a "formal written recommendation * * * signed by the panel members” (Judiciary Law § 148-a [8]), plaintiffs motion was properly denied. (Appeal from judgment of Supreme Court, Erie County, Gossel, J.—medical malpractice.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902039/
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Order unanimously affirmed without costs. Same memorandum as in Fallon v Loree ([appeal No. 1], 136 AD2d 956 [decided herewith]). (Appeal from order of Supreme Court, Erie County, Marshall, J.—medical malpractice.) Present—Dillon, P. J., Callahan, Doerr, Green and Balio, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902428/
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Appeal by the defendant from a judgment of the Supreme Court, Kings County (Finnegan, J.), rendered December 18, 1986, convicting him of grand larceny in the third degree and criminal possession of stolen property in the third degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is affirmed.
Although no one actually observed the defendant steal the complainant’s money from his pocket, the evidence that the defendant was in recent, exclusive and unexplained possession of the complainant’s money was legally sufficient to support the defendant’s conviction of the crimes charged (see, e.g., People v Baskerville, 60 NY2d 374, 383). Furthermore, 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]). Lawrence, J. P., Kunzeman, Kooper and Spatt, JJ., concur.
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https://www.courtlistener.com/api/rest/v3/opinions/5902040/
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Appeal from a judgment of the Supreme Court (Cerio Jr., J.), entered June 18, 2012 in Chemung County, which dismissed *1030petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging a September 2010 determination of the Board of Parole denying his request for parole release. Following various proceedings, including a prior appeal to this Court, Supreme Court dismissed the petition and petitioner filed a notice of appeal. The Attorney General has advised this Court that petitioner reappeared before the Board in November 2012, at which time his request for parole release was again denied. In view of this, the appeal must dismissed as moot (see Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010 [2012]; Matter of Russo v New York State Div. of Parole, 89 AD3d 1305 [2011]).
Peters, P.J., Mercure, Rose, Lahtinen and Egan Jr., JJ, concur. Ordered that the appeal is dismissed, as moot, without costs.
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https://www.courtlistener.com/api/rest/v3/opinions/5902041/
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Judgment unanimously affirmed. Memorandum: On appeal from a judgment convicting him of first degree burglary, second degree robbery (three counts), and possession of burglar’s tools, defendant raises several contentions, none of which requires reversal. Defendant was not deprived of a fair trial by prosecutorial misconduct. Defendant failed to object to most of the comments and questions of which he now complains, and thus has failed to preserve his contentions for our review (CPL 470.05 [2]; People v Thomas, 50 NY2d 467). Those questions to which defendant objected were proper, for the most part, and if improper, not unduly prejudicial (People v Tardbania, 130 AD2d 954, 955).
The court did not err in refusing to admit the conditional testimony (see, CPL art 660) of the complaining witness, since *959such testimony would have been admissible only if the witness were unavailable to testify at trial (CPL 670.10).
There has been no showing that the People failed to turn over Brady (see, Brady v Maryland, 373 US 83) or Rosario (see, People v Rosario, 9 NY2d 286) material consisting of an audio tape and report of a 911 call. Although defendant’s attorney apparently had not heard the tape before it was played in court, counsel for the codefendant knew of its contents and made use of it in cross-examination of the complaining witness. It thus appears that the tape and report were made available to the defense before trial.
Defendant was not denied the effective assistance of counsel. Trial counsel succeeded in raising serious factual discrepancies in the proof, made appropriate motions, and requested favorable jury instructions. Viewing the representation as a whole, it was "meaningful” (People v Baldi, 54 NY2d 137, 147).
There was sufficient proof of "physical injury” (Penal Law § 10.00 [9]) to support the burglary and robbery convictions (Penal Law § 140.30 [2]; § 160.10 [2] [a]). One victim testified that his arm was cut during the robbery and that he still experiences intermittent pain and limitation in the arm. In addition, it was established that the other victim had cuts, bruises and swelling around her eyes and had trouble walking as a result of the attack (cf, People v Goico, 122 AD2d 576, Iv denied 68 NY2d 812; People v Ruttenbur, 112 AD2d 13; People v Bramble, 103 AD2d 1019).
The court properly denied defendant’s posttrial motion without a hearing (CPL 440.30 [4] [a]). The evidence concerning Evans’ incarceration and her alleged receipt of favorable treatment in return for her testimony against defendant was not newly discovered evidence; it would have merely impeached her as a witness and was not likely to lead to a different result (CPL 440.10 [1] [g]).
Finally, defendant’s sentence was not harsh and excessive. (Appeal from judgment of Supreme Court, Erie County, Marshall, J.—burglary, first degree, and other offenses.) Present— Denman, J. P., Boomer, Pine, Lawton and Davis, JJ.
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https://www.courtlistener.com/api/rest/v3/opinions/5902042/
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Appeal from a judgment of the Supreme Court (Cerio Jr., J.), entered June 18, 2012 in Chemung County, which dismissed *1030petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.
Petitioner commenced this CPLR article 78 proceeding challenging a September 2010 determination of the Board of Parole denying his request for parole release. Following various proceedings, including a prior appeal to this Court, Supreme Court dismissed the petition and petitioner filed a notice of appeal. The Attorney General has advised this Court that petitioner reappeared before the Board in November 2012, at which time his request for parole release was again denied. In view of this, the appeal must dismissed as moot (see Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010 [2012]; Matter of Russo v New York State Div. of Parole, 89 AD3d 1305 [2011]).
Peters, P.J., Mercure, Rose, Lahtinen and Egan Jr., JJ, concur. Ordered that the appeal is dismissed, as moot, without costs.
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01-13-2022
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