PEOPLE, etc., res, v. Samuel White, ap — (Ind. No. 3/12)Appeal by the defendant from a judgment of the Supreme Court, Queens County (John B. Latella, J.), rendered December 4, 2014, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Michael B. Aloise, J.), of those branches of the defendant’s omnibus motion which were to suppress physical evidence and a statement made to law enforcement officials.ORDERED that the judgment is reversed, on the law, those branches of the defendant’s omnibus motion which were to suppress physical evidence and a statement made to law enforcement officials are granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.The defendant was charged with criminal possession of a weapon in the second degree (two counts) and criminal possession of a weapon in the fourth degree following a traffic stop at which police officers recovered a loaded firearm and a taser. The arresting officers alleged that the firearm was recovered from the defendant’s waistband and the taser from the defendant’s pants pocket. The defendant testified at trial that both items were recovered from a bag in the vehicle, and while he admitted to knowing of the firearm, he denied knowledge of the taser. The jury acquitted the defendant of criminal possession of a weapon in the fourth degree, which related to the taser (Penal Law §265.01[1]), and of the count of criminal possession of a weapon in the second degree which alleged that the defendant possessed a loaded firearm with the intent to use it unlawfully (Penal Law §265.03[1][b]). The jury convicted him, however, of the count of criminal possession of a weapon in the second degree which alleged that the defendant possessed a loaded firearm outside of his home or place of business (Penal Law §265.03[3]).On appeal, the defendant argues that the Supreme Court erred in denying those branches of his omnibus motion which were to suppress the loaded firearm and the statement he made to a police officer at the scene. In the alternative, he contends that he was deprived of the effective assistance of counsel when his trial counsel failed to move to reopen the suppression hearing based upon certain trial testimony by the arresting officers (see CPL 710.40[4]).Police Officer James Weibert was the only arresting officer to testify at the suppression hearing. In relevant part, he testified that on December 29, 2011, at approximately 11:10 a.m., he and three other officers pulled over a vehicle on a roadway in Queens because the vehicle was speeding. Officer Weibert also noticed that the middle tail light of the vehicle was not working. There were two occupants in the vehicle’s front seat, and the defendant was seated in the rear passenger seat.As Officer Weibert was approaching the driver’s side of the vehicle, he saw the driver reaching toward the center console. When asked whether he feared at that time that violence was about to occur, Officer Weibert answered, “No.”Officer Weibert then asked the driver for his identification and the vehicle’s registration and insurance information. The driver produced his identification, but could not provide any valid registration or insurance information for the vehicle. Because the driver had “reach[ed] toward his right side waistband” when Officer Weibert asked for his identification, Officer Weibert feared the driver might be concealing a weapon, and asked him, “politely,” to step out of the vehicle. The officers frisked the driver’s waistband area and found nothing. The officers then removed the front passenger from the vehicle and patted him down as well. Again, no weapon was found. None of the occupants of the vehicle had been placed in handcuffs at that point, and none of the officers had drawn their weapon. Officer Weibert was standing at the rear of the vehicle, along with the driver and the front passenger.Officer Weibert then observed the defendant in the back seat “acting very nervous,” “shaking his knees and legs up and down,” and “leaning forward” with “his arms tucked in tight to his waistband.” At that point, Sergeant Aaron Klein asked the defendant to step out of the vehicle, and the defendant complied immediately. Sergeant Klein then asked the defendant “what do you have,” and the defendant replied, “I have a piece.” Sergeant Klein then recovered a firearm from the defendant’s waistband.Asked on cross-examination to describe in more detail the defendant’s conduct while he was seated in the vehicle, Officer Weibert stated that the defendant was leaning forward, his legs were shaking, his arms were “tucked in” or “folded,” and his hands were “tucked tightly into his lap.” At no time did the defendant make any furtive motion or reach for anything.Based on the foregoing evidence, the Supreme Court denied the defendant’s motion to suppress, finding that the defendant’s “particularized behavior” had caused the officers to have a founded suspicion that criminality was afoot.At the trial, Sergeant Klein testified that he observed the defendant engaging nervously in the same behavior previously described at the suppression hearing by Officer Weibert, but he added the fact that the defendant was texting on a cell phone. Officer Weibert testified at trial that the defendant had a cell phone in his hands when he observed him in the vehicle, and admitted that he had not testified to that fact in his testimony before the grand jury and at the suppression hearing. The defendant contends that his trial counsel should have moved at that point to reopen the suppression hearing, and that his failure to do so deprived the defendant of the effective assistance of counsel.A suppression hearing may be reopened upon a showing that “additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion” (CPL 710.40[4]; see People v. John, 38 AD3d 568, 569). ”The new facts need not, on their face, establish a constitutional violation, but they must be such ‘that they would materially affect or have affected the earlier [constitutional] determination’” (People v. Velez, 39 AD3d 38, 42, quoting People v. Clark, 88 NY2d 552, 555). Here, the defendant contends, in relevant part, that Sergeant Klein’s trial testimony that the defendant was texting on his cell phone explains why he was leaning forward with his arms tucked in by his side, and that this additional contextual information would have affected the hearing court’s ultimate determination.In our view, it is at least arguable that Officer Weibert’s failure to mention that the defendant was texting on his cell phone amounted to the omission of a material fact necessary to provide the hearing court with an explicit description of the defendant’s movements, rather than the ambiguous and incomplete account actually given by Officer Weibert. Nevertheless, we need not decide whether this omission provided sufficient grounds to move to reopen the suppression hearing, or whether trial counsel was ineffective for failing to do so, as we agree with the defendant that the People failed to meet their burden of proof at the suppression hearing. The evidence fell short of establishing a founded suspicion of criminal activity sufficient to justify Sergeant Klein’s asking the defendant, “what do you have.”As a threshold matter, and contrary to the dissent’s suggestion, we take no issue with the People’s decision to produce only Officer Weibert at the suppression hearing, and not Sergeant Klein (see CPL 710.60[4]; People v. Edwards, 95 NY2d 486; People v. Ortiz, 87 AD3d 602).There was nothing improper about the police officers’ direction that the defendant and the two other occupants exit the vehicle. ”In light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (People v. Garcia, 20 NY3d 317, 321; see Pennsylvania v. Mimms, 434 US 106; People v. Robinson, 74 NY2d 773, 775). However, the scope of that authority is limited to guarding against “the unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements” (People v. Garcia, 20 NY3d at 323). The reasonableness of police conduct beyond that limited authority must be assessed in accordance with the framework set forth in People v. De Bour (40 NY2d 210) and People v. Hollman (79 NY2d 181) (see People v. Garcia, 20 NY3d at 322).Under level one of the De Bour analysis, a police officer may approach a private citizen to “request information” when there is “some objective credible reason for that interference not necessarily indicative of criminality” (People v. De Bour, 40 NY2d at 223). The next degree, level two, “is activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a [police officer] is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (id.).In the context of a traffic stop, the Court of Appeals has made clear that “a police officer who asks a private citizen if he or she is in possession of a weapon must have founded suspicion that criminality is afoot” (People v. Garcia, 20 NY3d at 324), thereby squarely placing this type of inquiry within De Bour level two. Moreover, mere nervousness does not provide the requisite indication of criminality (see id.; People v. Banks, 85 NY2d 558, 562; People v. Milaski, 62 NY2d 147, 156).Here, the circumstances described by Officer Weibert at the suppression hearing did not establish “a founded suspicion that criminality [was] afoot” (People v. De Bour, 40 NY2d at 223). Significantly, there was no testimony of a bulge at the defendant’s waistband (see People v. Harris, 122 AD3d 942, 944; People v. Stevenson, 7 AD3d 820; People v. Johnson, 178 AD2d 549; People v. Bush, 171 AD2d 801), or any indication that the defendant was reaching for, grabbing at, or adjusting his waistband (see People v. Correa, 77 AD3d 555; People v. Stevenson, 7 AD3d 820; People v. Flores, 226 AD2d 181; People v. Moore, 176 AD2d 297, 298). To the contrary, Officer Weibert denied that the defendant made any furtive gesture or reached for anything; he testified only that the defendant was acting nervous, shaking his knees and legs up and down, and leaning forward in his seat with his hands in his lap and his arms tightly at his side.At no time did Officer Weibert testify at the hearing that the defendant’s position was indicative of concealment. Notably, there is nothing in the minutes of the suppression hearing to suggest that the police officers were unable to guard against the unique danger of a partially concealed automobile occupant. Sergeant Klein fully and satisfactorily addressed any such concerns by asking the defendant to step out of the vehicle in order to readily observe the defendant’s movements (see People v. Garcia, 20 NY3d at 321). In sum, the evidence adduced at the suppression hearing depicted a situation in which the police remained in full control at all times, where the occupants of the vehicle complied with the police officers’ instructions, and where there was no objective indication that the defendant was either trying to conceal a weapon or was reaching for one.Our dissenting colleague reaches a different result, relying on a narrative that weaves together evidence from the suppression hearing along with select portions of the trial testimony, then invoking the “totality of the circumstances” to conclude that the police conduct in this case was beyond reproach. This methodology is fatally flawed, however, as “‘the propriety of the denial of the defendant’s suppression motion must be determined based upon the evidence before the suppression court’” (People v. Wellington, 84 AD3d 984, 985, quoting People v. Fleming, 65 AD3d 702, 703-704; see People v. Gonzalez, 55 NY2d 720, 721-722). Thus, the dissent’s reliance on the trial evidence for any purpose other than determining whether the suppression hearing should have been reopened is, at best, irrelevant and, at worst, inappropriate.Moreover, the view of our dissenting colleague that Sergeant Klein’s question—”what do you have”—was merely a level one inquiry under De Bour, no more intrusive than a basic request for information, akin to asking someone for identity, address, or destination, fails to fully take into account the context in which the question was asked. Considering in particular that the driver and front passenger of the vehicle had just been patted down for weapons, Sergeant Klein’s inquiry cannot reasonably be construed as anything other than a police officer asking a private citizen whether he is in possession of a weapon—an inquiry that the Court of Appeals has squarely placed within level two of the De Bour framework (id. at 324; see also People v. Graves, 142 AD3d 559, 560; People v. Harris, 122 AD3d 942, 944). The fact that Sergeant Klein framed his question in open-ended terms, i.e., without asking specifically for a weapon, does not alter our conclusion (see People v. Carr, 103 AD3d 1194, 1195; People v. Becoate, 59 AD3d 345). The touchstone of the distinction between level one and level two of the De Bour analysis is the reasonable perception of the person being questioned: “[w]here the person approached from the content of the officer’s questions might reasonably believe that he or she is suspected of some wrongdoing, the officer is no longer merely asking for information” (People v. Hollman, 79 NY2d at 191). Under the totality of the circumstances described at the suppression hearing, there can be no doubt that the defendant reasonably believed that he was suspected of some wrongdoing.We note that our dissenting colleague alternatively contends that several evidentiary building blocks demonstrated a founded suspicion of criminality. However, the first such building block—Officer Weibert’s early observation of the driver of the vehicle reaching toward the center console—is of little relevance in light of Officer Weibert’s testimony that the driver’s actions did not cause him at that time to fear that violence was about to occur.Moreover, any subsequent fear that Officer Weibert may have had when he later observed the driver “reaching toward his right side waistband” when asked to produce his identification, was fully resolved by asking the driver to step out of the car and patting him down.While we do not dispute our dissenting colleague’s contention that the driver’s inability to produce valid insurance and registration information for the vehicle may have raised suspicions as to whether the vehicle had been stolen (cf. People v. Devone, 15 NY3d 106, 114; People v. Ramos, 161 AD2d 198), that fact, standing alone, does not provide a sufficient basis to inquire whether a passenger in the vehicle possessed a weapon. Moreover, Officer Weibert never testified at the hearing that the driver’s inability to produce insurance and registration information was what prompted Sergeant Klein to ask the defendant if he had anything on him.The third building block relied upon by our dissenting colleague is the defendant’s nervousness, which, for the reasons already discussed, and based on the evidence adduced at the suppression hearing, fell short of providing the requisite indication of criminality (see People v. Garcia, 20 NY3d at 324; People v. Banks, 85 NY2d at 562; People v. Milaski, 62 NY2d at 156).Accordingly, the Supreme Court should have granted those branches of the defendant’s omnibus motion which were to suppress his statement to Sergeant Klein, as well as any physical evidence recovered as a result of that statement (see People v. Garcia, 20 NY3d at 324; People v. Banks, 85 NY2d at 562; People v. Milaski, 62 NY2d at 156-157; People v. Hightower, 136 AD3d 1396, 1396-1397; People v. Carr, 103 AD3d at 1195; cf. People v. Dealmeida, 124 AD3d 1405, 1407; People v. Barreras, 253 AD2d 369, 373). Without that evidence, there could not be sufficient evidence to prove the defendant’s guilt and, therefore, the indictment must be dismissed (see People v. Miranda-Hernandez, 106 AD3d 838, 839).Although, as noted previously, it is unnecessary for us to reach the defendant’s alternative contention regarding the reopening of the suppression hearing, we note that the dissent’s analysis of this question is incomplete in that it fails to address the defendant’s central contention that the fact that he was texting at the time he was observed by Officer Weibert provides a simple explanation why he was leaning forward with his arms tucked in by his side and his hands in his lap.CHAMBERS, J.P., HALL and BRATHWAITE NELSON, JJ., concur.MALTESE, J., dissents, and votes to affirm the judgment, with the following memorandum:Contrary to the view of my colleagues in the majority, I agree with the suppression court that the reasonable and minimally invasive police inquiry at the scene of this traffic stop was justified under the totality of circumstances, and those branches of the defendant’s omnibus motion which were to suppress the physical evidence and his statement to law enforcement officials were properly denied.In New York, the propriety of an encounter between a police officer and a private citizen, whether in the context of a traffic stop or a street encounter, is governed by the graduated, four-level test set forth in People v. De Bour (40 NY2d 210). A “crucial factor is whether or not the police behavior can be characterized as reasonable which, in terms of accepted standards, requires a balancing of the interests involved in the police inquiry” (id. at 217; see People v. Forelli, 58 AD2d 76, 82). ”The Court’s purpose in De Bour was to provide clear guidance for police officers seeking to act lawfully in what may be fast-moving… encounters and a cohesive framework for courts reviewing the propriety of police conduct in these situations” (People v. Moore, 6 NY3d 496, 499; see People v. Garcia, 20 NY3d 317, 323). One of the primary considerations during these encounters is the protection of the police officers (see People v. Issac, 107 AD3d 1055, 1057; People v. Tillery, 60 AD3d 1203, 1205).Here, the evidence at the suppression hearing demonstrated that on December 29, 2011, Police Officer James Weibert and his fellow plain-clothes officers were on anti-crime patrol in St. Albans, Queens. From their unmarked police vehicle, they observed a Mitsubishi automobile pass by them at a high rate of speed, estimated to be approximately 45-50 miles per hour in a 30-mile-per-hour zone. The officers pursued the Mitsubishi, engaged their emergency lights and directed the driver to pull over, which he did. At the end of the pursuit, at least one of the officers observed that the center brake light on the Mitsubishi was not working. Based upon these facts, the officers had probable cause, not mere suspicion, that the Vehicle and Traffic Law had been violated. Consequently, this was a lawful police stop of an automobile (see People v. Wright, 98 NY2d 657, 659; People v. Robinson, 97 NY2d 341, 346, 348-359; People v. Wynn, 149 AD3d 1252; cf. United States v. Stewart, 551 F3d 187, 193 [2d Cir]).Officer Weibert testified at the hearing that, as he approached the driver’s side of the vehicle, he observed the driver “motioning” or “reaching” toward the center console. When Officer Weibert asked the driver for his license and the vehicle’s paperwork, he observed the driver “reaching toward his right side waistband.” But the driver could not produce the vehicle registration, or proof that the vehicle was insured. At trial, it was revealed that none of the occupants of the vehicle was the owner of the vehicle.Believing that the driver may be concealing a weapon and reaching for it, Officer Weibert directed him to step out of the vehicle and patted him down for weapons as a precautionary measure to ensure the officers’ safety. Another officer did the same with respect to the front-seat passenger. No weapons were found on these two men.Officer Weibert also observed the defendant, later revealed to be Samuel White, a/k/a Darryl Williams, in the back seat wearing a dark colored pea coat and “acting very nervous.” The defendant was “shaking his knees” and leaning over. His arms were folded and “tucked tightly into his waistband,” and his hands were “tucked tightly into his lap.”Sergeant Aaron Klein, the supervisor on the scene for this anti-crime unit, was a very experienced police officer who was subsequently promoted to Lieutenant and, in the trial transcript, he was referred to as Lieutenant Klein. The evidence at the suppression hearing demonstrated that Sergeant Klein approached the stopped vehicle with the other officers. Although Sergeant Klein did not testify at the hearing, at trial he testified, consistent with Officer Weibert’s observations, that the defendant appeared to be extremely nervous—the defendant’s legs were shaking, he was sweating visibly on a cold winter day, and his arms were tucked close to his sides.Officer Weibert testified at the suppression hearing that, just as the other officers had asked the driver and the front-seat passenger to exit the vehicle, Sergeant Klein also asked the defendant to exit the vehicle. The defendant complied. When Sergeant Klein had a clearer view of the defendant standing outside of the vehicle, he merely asked him, “what do you have?” In response to that open-ended question, the defendant could have responded, “I have a cell phone,” since he had a cell phone, or “I have nothing.” Instead, he immediately replied, “I have a piece,” which is slang for a weapon. When asked where it was, the defendant indicated his left waistband under his open jacket. Sergeant Klein then recovered a loaded handgun from the defendant’s left waistband, which the trial testimony revealed to be an Uzi semiautomatic 9-millimeter pistol made by Israeli Military Industries. Officer Weibert also testified at the suppression hearing that, after the defendant and the other occupants of the car were placed under arrest, he conducted a search of the defendant and found a taser, a/k/a a stun gun, in the defendant’s right pants pocket.At the police precinct, the defendant was read his Miranda rights and acknowledged them by initialing the Miranda form (see Miranda v. Arizona, 384 US 436). He thereafter wrote and signed a statement that the driver and the front-seat passenger did not know that he possessed the gun and the taser and that he “made it known to the officers that [he] had an illegal firearm on [his] person.”My colleagues in the majority and I agree that the facts of this case demonstrate a legal vehicular stop by the police. Both the United States Supreme Court and the New York Court of Appeals, in People v. Garcia, (20 NY3d 317), have recognized that “[i]n light of the heightened dangers faced by investigating police officers during traffic stops, a police officer may, as a precautionary measure and without particularized suspicion, direct the occupants of a lawfully stopped vehicle to step out of the car” (id. at 321). This guards against the “unique danger of a partially concealed automobile occupant by allowing the officer to order occupants out of a car and readily observe their movements,” and thus places “automobile occupants in the same position as pedestrians vis—vis police officers” (id. at 323). Hence, Sergeant Klein did not need any suspicion to lawfully ask the defendant to step out of the vehicle.Where we differ is our view of whether the question posed by Sergeant Klein was permissible under De Bour and People v. Garcia. In Garcia, where the Court of Appeals affirmed the Appellate Division’s determination that the police lacked the requisite founded suspicion when, upon stopping a vehicle for a mere defective brake light, an officer asked if any of the occupants had a weapon (see People v. Garcia, 20 NY3d at 324).The remaining question under the De Bour analysis is whether Sergeant Klein’s question—”what do you have?”—was a permissible inquiry under the totality of the circumstances. My colleagues in the majority view Sergeant Klein’s question as a level two inquiry under De Bour, reasoning that it is essentially the same as “ask[ing] a private citizen if he or she is in possession of a weapon” (id. at 324).A level one inquiry permits police to request information from an individual, and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality (see People v. De Bour, 40 NY2d at 223). A level one “request for information involves basic, nonthreatening questions regarding, for instance, identity, address or destination” (People v. Hollman, 79 NY2d 181, 185). A level two inquiry, known as the common-law right to inquire, requires a “founded suspicion that criminal activity is afoot,” and permits a “somewhat greater intrusion,” in that a police officer is “entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure” (People v. De Bour, 40 NY2d at 223; see People v. Moore, 6 NY3d at 498).“The distinction between the request-for-information encounter and the more intrusive common-law inquiry is often a subtle one” (People v. Adams, 194 AD2d 102, 105). I am not convinced that the question posed to the defendant—”what do you have?”—constitutes a level two inquiry under the totality of the circumstances in this case. The question is open-ended, vague, and susceptible to different interpretations. In determining whether a police-initiated encounter is a level one request for information or a level two inquiry, the brevity of the encounter and the absence of harassment or intimidation is relevant (see People v. Hollman, 79 NY2d at 190).This police-initiated encounter was brief and, on this record, had no indicia of force or intimidation. My colleagues in the majority take issue with Sergeant Klein’s one simple question that was not invasive, threatening, or offensive (cf. People v. Hightower, 136 AD3d 1396, 1396-1397; People v. Lowe, 79 AD3d 1676). For that reason, I am not convinced that this was more than a level one inquiry, requiring only an objective, credible reason, not necessarily indicative of criminality (see People v. De Bour, 40 NY2d at 223). Further, asking that simple question was less invasive than an outer body pat down, which inevitably would have revealed the Uzi pistol in the defendant’s waistband.But here, the police also had a founded suspicion that criminality may be afoot. Assuming that Sergeant Klein’s inquiry rose to level two under De Bour, the totality of the circumstances provided sufficient building blocks for the suppression court’s conclusion that the police had the requisite founded suspicion of criminal activity afoot.First, Officer Weibert described circumstances giving rise to suspicion with respect to the driver of the vehicle. As Officer Weibert approached the driver’s side of the vehicle, he observed the driver “motioning” or “reaching” toward the center console, which is equivalent to a furtive motion (cf. People v. Graves, 142 AD3d 559, 560). At the window, Officer Weibert observed the driver “reaching toward his right side waistband,” an area that has been recognized as a location where people usually secrete firearms (see e.g. People v. Benjamin, 51 NY2d 267, 271; People v. Harris, 122 AD3d 942, 945; People v. Davenport, 92 AD3d 689, 691). Believing that the driver could be concealing a weapon, Officer Weibert directed him to step out of the vehicle and patted him down.Second, unlike the defendant driver in Garcia, the driver in this case failed to produce a registration for the vehicle, and proof of insurance (cf. People v. Garcia, 20 NY3d at 320). Objectively, these additional violations of the Vehicle and Traffic Law (VTL §401[4] and VTL §319[3]) would provide a police officer with reasonable suspicion that the vehicle may have been stolen and that criminality may be afoot (see People v. Devone, 15 NY3d 106, 114; People v. Milaski, 62 NY2d 147, 152; People v. Young, 207 AD2d 465, 466).Third, the suppression testimony demonstrated that the defendant himself was “acting very nervous.” He was “shaking his knees” and leaning over with his arms folded and “tucked tightly into his waistband” (cf. People v. Harris, 122 AD3d at 945). By way of contrast, the defendant driver in Garcia did not make any movement directing attention to his waistband (see People v. Garcia, 20 NY3d at 320). Once the defendant exited the vehicle, Sergeant Klein had a better view of him and his actions. That is when Sergeant Klein, while looking at the defendant, asked him, “what do you have [there]?” These building blocks were sufficient to demonstrate that the police had the requisite founded suspicion of criminality for a level-two inquiry (cf. People v. Loretta, 107 AD3d 541, 542).My colleagues in the majority point out that, when asked pointedly whether there was any indicia of criminality aside from the rate of speed and a broken tail light, Officer Weibert said “no.” Based on that, the majority concludes that Officer Weibert readily admitted that no indicia of criminality was present. However, this question about any further indicia of criminality related only to observations made by the police officers before the vehicle was stopped. Officer Weibert candidly admitted that, prior to stopping the car, there was no indicia of criminality, only probable cause to believe that the driver committed two violations of the Vehicle and Traffic Law. This does nothing to negate the observations made by the police officers after the stop, including suspicious behavior by the driver and the defendant, combined with the fact that no one in the vehicle could produce its registration or insurance identification card, which could indicate that the car was stolen.Additional ConsiderationsThe majority takes issue with the suppression hearing testimony of Officer Weibert, who had been working on this anti-crime detail for only one week, and who was assigned as the arresting officer by his supervisor, Sergeant Klein. Officer Weibert was the only police witness presented at the suppression hearing. He relayed Sergeant Klein’s inquiry of the defendant and the events leading up to it. To the extent that the majority suggests that the hearing court should have suppressed the two weapons because Sergeant Klein, who asked a supposed offensive question—”What do you have?”—did not appear at the suppression hearing. However, all of the officers involved in an arrest need not be present at every pretrial hearing (cf. United States v. Brooks, 2017 WL 370810, *1, 2017 US Dist LEXIS 11077, *1-3 [WD NY No. 16-CR-6028L]; People v. Ketcham, 93 NY2d 416, 421; People v. Ramirez-Portoreal, 88 NY2d 99, 107-108, 113-114). As the newest member of the anti-crime unit, Officer Weibert was assigned by Sergeant Klein to make the arrest, ostensibly so that Officer Weibert could gain experience with respect to processing gun-related arrests.It should be noted that, unlike the instant case, in Garcia the defendant pleaded guilty to two counts of possession of an air pistol or air rifle in violation of the Administrative Code of the City of New York §10-131(b) (see People v. Garcia, 20 NY3d at 321), which is not even a crime outside the City of New York (but cf. Penal Law §265.05 ["It shall be unlawful for any person under the age of sixteen to possess any air-gun"]).Additionally, I find it significant that no manifestation of force was exercised by any of the officers during this traffic stop and subsequent inquiry. None of them drew a weapon. All of them had their weapons in their holsters, even when the defendant indicated that he had a weapon.ConclusionThe purpose of the constitutional protection against unlawful searches and seizures is to safeguard the privacy and security of every person against arbitrary intrusions by government, and a party aggrieved by such an intrusion may find recourse in the exclusionary rule (see generally People v. De Bour, 40 NY2d at 217). The basic purpose of the exclusionary rule is to “police the police,” by preventing them from acting with undue and excessive force toward the people they encounter. Here, the noninvasive, nonthreatening question posed by an experienced anti-crime sergeant is no reason to suppress the weapons found on the defendant. Considering the totality of the circumstances surrounding this traffic stop, the suppression court properly concluded that the officers developed a founded suspicion that criminal activity was afoot and the police conduct was consistent with the holding in De Bour.
The defendant’s alternative contention, that he was denied the effective assistance of counsel because his trial counsel failed to move to reopen the suppression hearing after the officers’ trial testimony, is without merit. If counsel had moved to reopen the suppression hearing, Sergeant Klein’s strong testimony about the reasons for his founded suspicion that the defendant “might have been hiding or concealing something on him that could have injured [Sergeant Klein] or one of the other officers” would have provided the suppression court with an even stronger basis to deny those branches of the omnibus motion, which were to suppress the gun and the taser.For the foregoing reasons, I disagree with my colleagues in the majority, and would affirm the judgment of conviction.By Dillon, J.P.; Balkin, Hall and Lasalle, JJ.Cathy Marl ap, v. Liro Engineers, Inc., etc. respondents (and a third-party action). (Index No. 2277/07)Weitz & Luxenberg, P.C., New York, NY (Teresa Curtin of counsel), for appellants.Lewis Johs Avallone Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), for respondent Liro Engineers, Inc.Gallo Vitucci Klar LLP, New York, NY (Kimberly A. Ricciardi of counsel), for respondent Conrad Geoscience Corp.In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Orange County (Slobod, J.), dated December 16, 2014, as granted those branches of the defendants’ separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them, and denied that branch of their cross motion which was for leave to amend the bill of particulars to allege a violation of 12 NYCRR 23-1.7(g).ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.The plaintiffs were employees of Ketco, Inc. (hereinafter Ketco), the general contractor on a highway construction project undertaken by the New York State Thruway Authority (hereinafter NYSTA). In connection with the project, Ketco entered into a contract with the defendant Conrad Geoscience Corp. (hereinafter Conrad), an environmental consultant, whereby Conrad would prepare environmental safety plans required by the New York State Department of Environmental Control, as the location of the project contained a landfill that was known to be contaminated by hazardous waste. The NYSTA entered into a contract with the defendant Liro Engineers, Inc. (hereinafter Liro), to perform engineering inspection services on the project.Between December 2003 and March 2004, the plaintiffs worked at the highway construction project site, driving dump trucks and filling the trucks with soil from the area of the landfill. On March 17, 2004, the plaintiffs complained of dizziness while working, and were taken to a nearby hospital for treatment. In March 2007, the plaintiffs commenced this action against Liro and Conrad to recover damages for personal injuries. They alleged that they were exposed to, and injured by, toxic substances in the soil which they were excavating in connection with the construction project, and that they were not provided with proper protective equipment. After discovery, the plaintiffs moved for summary judgment on the causes of action alleging violations of Labor Law §§200 and 241(6) insofar as asserted against Liro. Thereafter, Liro and Conrad separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiffs cross-moved for leave to amend their bill of particulars.The Supreme Court properly granted those branches of Liro’s motion which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law §200 insofar as asserted against it. Liro established, prima facie, that it lacked the authority to supervise the work to a sufficient degree to impose liability under a theory of common-law negligence or under Labor Law §200 (see Abelleira v. City of New York, 120 AD3d 1163; Klimowicz v. Powell Cove Assoc., LLC, 111 AD3d 605, 607; Gonzalez v. Perkan Concrete Corp., 110 AD3d 955; Forssell v. Lerner, 101 AD3d 807, 808). In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324).The Supreme Court also properly granted that branch of Liro’s motion which was for summary judgment dismissing the Labor Law §241(6) cause of action insofar as asserted against it. This cause of action was based upon an alleged violation of Industrial Code (12 NYCRR) §12-1.4(b), which cannot serve as a predicate for liability under Labor Law §241(6) (see Nostrom v. A.W. Chesterton Co., 15 NY3d 502, 507-508). Likewise, violations of Occupational Safety and Health Act of 1970 (29 USC §651 et seq.) standards do not provide a basis for liability under Labor Law §241(6) (see Shaw v. RPA Assoc., LLC, 75 AD3d 634, 636-637; Greenwood v. Shearson, Lehman & Hutton, 238 AD2d 311, 313).The Supreme Court properly granted that branch of Conrad’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. Conrad submitted evidence that, as the entity charged with creating environmental safety plans, it exercised no supervisory authority at the highway construction project work site and owed no duty of care to the plaintiffs. In opposition, the plaintiffs failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324).The Supreme Court properly denied that branch of the plaintiffs’ cross motion which was for leave to amend the bill of particulars to allege a violation of 12 NYCRR 23-1.7(g) in support of the Labor Law §241(6) cause of action. As this Industrial Code section refers to the atmosphere of unventilated confined areas where dangerous air contaminants are present or where there is an insufficient oxygen supply, it is inapplicable under the circumstances here (see Pittman v. S.P. Lenox Realty, LLC, 119 AD3d 846, 847-848).The plaintiffs’ remaining contentions are either improperly raised for the first time on appeal or without merit.DILLON, J.P., BALKIN, HALL and LASALLE, JJ., concur.By Priscilla Hall, J.P.; Sgroi, Maltese and Duffy, JJ.Steven B. Schonfeld, res, v. Sidra Saucedo, ap — (Index No. 607606/15)In an action, inter alia, for a judgment declaring that, at any time when the defendant’s parenting access with the parties’ child is suspended, terminated, or prohibited by a court, the plaintiff is not required to make any payments pursuant to paragraph 26 of a stipulation between the parties, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), entered March 29, 2016, as denied her motion for summary judgment dismissing the first cause of action and summary judgment on so much of her second counterclaim as sought a judgment declaring, in effect, that the plaintiff is required to make payments pursuant to paragraph 26 of the stipulation regardless of whether her parenting access with the child is suspended, terminated, or prohibited by a court, and granted the plaintiff’s cross motion for summary judgment on the first cause of action and to compel the defendant to accept the plaintiff’s late reply to the counterclaims.ORDERED that the order is modified, on the law, by (1) deleting the provision thereof denying the defendant’s motion for summary judgment dismissing the first cause of action and summary judgment on so much of her second counterclaim as sought a judgment declaring, in effect, that the plaintiff is required to make payments pursuant to paragraph 26 of the stipulation regardless of whether her parenting access with the child is suspended, terminated, or prohibited, and substituting therefor a provision granting that motion, and (2) deleting the provision thereof granting that branch of the plaintiff’s cross motion which was for summary judgment on the first cause of action, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs payable by the plaintiff, and the matter is remitted to the Supreme Court, Nassau County, for entry of a judgment making the appropriate declaration in accordance herewith.The parties, who were never married, have one child together. In January 2012, the parties entered into a stipulation in which they agreed that the plaintiff would have sole legal and residential custody of the child. The defendant was granted “access time” with the child. Paragraph 26 of the stipulation required the plaintiff to pay to the defendant, “as and for his contribution to the expenses [the defendant] incurs for the Child during her access times with the child,” the sum of $15,000 per month until the child turned 21 years old. That paragraph further provided that “[u]nder no circumstances” would the “payments… ever be less than $15,000 a month.”The plaintiff thereafter filed, by an order to show cause, a motion to suspend the defendant’s access time. The Supreme Court temporarily granted that relief pending a hearing on the motion. The plaintiff then commenced this action, inter alia, for a judgment declaring that he is not required to make the payments provided for under paragraph 26 of the stipulation at any time when the defendant’s access time is suspended, terminated, or prohibited by a court. The defendant answered and asserted counterclaims. In her second counterclaim, the defendant sought, inter alia, a declaration, in effect, that the plaintiff is required to make payments in accordance with paragraph 26 of the stipulation regardless of whether her parenting access with the child is suspended, terminated, or prohibited by a court.The defendant moved for summary judgment on that portion of the second counterclaim and dismissing the plaintiff’s first cause of action, which sought the declaration at issue. The plaintiff cross-moved for summary judgment on his first cause of action and to compel the defendant to accept his late reply to her counterclaims. The Supreme Court, inter alia, denied the defendant’s motion and granted the plaintiff’s cross motion.Contrary to the defendant’s contention, since she was not prejudiced by the short delay in the service of the reply to her counterclaims, and in light of the lack of willfulness on the part of the plaintiff, a reasonable excuse for the default, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff’s cross motion which was to compel the defendant to accept his late reply to her counterclaims (see Meekins v. Turner Towers Tenants Corp., 132 AD3d 963; Evans v. Sandoval, 121 AD3d 1037; Hutchinson v. New York City Health & Hosps. Corp., 118 AD3d 945).However, the Supreme Court erred in its interpretation of paragraph 26 of the parties’ stipulation. ”A stipulation of settlement ‘is a contract subject to [the] principles of contract interpretation, and a court should interpret the contract in accordance with its plain and ordinary meaning’” (O’Brien v. O’Brien, 115 AD3d 720, 723, quoting Matter of Filosa v. Donnelly, 94 AD3d 760, 760). ”Where such an agreement is clear and unambiguous on its face, the parties’ intent must be construed from the four corners of the agreement, and not from extrinsic evidence” (Herzfeld v. Herzfeld, 50 AD3d 851, 851-852). Further, “‘[a] court should not, under the guise of contract interpretation, imply a term which the parties themselves failed to insert or otherwise rewrite the contract’” (O’Brien v. O’Brien, 115 AD3d at 723, quoting Penavic v. Penavic, 88 AD3d 671, 672).Here, the provision requiring the plaintiff to “pay to [the defendant], as and for his contribution to the expenses [the defendant] incurs for the Child during her access times with the Child, the sum of $15,000 a month,” does not contain any conditional terms or require that the payments bear any relationship to the actual expenses the defendant incurs for access time. Thus, the “as and for” clause reads more naturally as an explanation of the payments than as a condition or limitation on them. In the same vein, while the provision provides for “earlier termination” of the payments if the defendant dies, it does not specify that the payments will be suspended or terminated in the event the defendant temporarily or permanently does not have access time with the child.Significantly, the plaintiff does not contend that he is excused from making payments under paragraph 26, or is entitled to reimbursement of a payment, for any month when the defendant simply does not visit with the child. Rather, he explicitly seeks a declaration excusing those payments for any time the defendant’s access rights are prohibited “by a court of competent jurisdiction.” Yet, given its language, there is no reason to interpret paragraph 26 as excusing the plaintiff from making a monthly payment because the defendant has been precluded by a court from exercising her access time, while still requiring him to make the payment during a month or months when the defendant simply fails to visit with the child.Since the parties failed to include a provision for the suspension or termination of the plaintiff’s payments in the event the defendant is precluded from exercising her access time, to so interpret paragraph 26 would be to imply a term which the parties themselves failed to insert (see O’Brien v. O’Brien, 115 AD3d at 723; Penavic v. Penavic, 88 AD3d at 672; Herr v. Herr, 5 AD3d 550, 551-552).Accordingly, the Supreme Court should have granted the defendant’s motion and denied that branch of the plaintiff’s cross motion which was for summary judgment on his first cause of action. Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Nassau County, for the entry of an appropriate declaratory judgment (see Lanza v. Wagner, 11 NY2d 317, 334).HALL, J.P., SGROI and DUFFY, JJ., concur.MALTESE, J., concurs in part and dissents in part, and votes to affirm the order insofar as appealed from and remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that, at any time when the defendant’s parenting access with the child is suspended, terminated, or prohibited by a court, the plaintiff is not required to make any payments pursuant to paragraph 26 of a stipulation between the parties dated January 10, 2012, with the following memorandum:After their child was born in January 2005, the parties entered into an agreement with respect to the custody of, access to, and child support for the child in Texas, which was incorporated into and embodied in an order known as the “Agreed Order in Suit to Modify the Parent Child Relationship,” dated November 12, 2008. In July 2010, the plaintiff commenced a proceeding in the Family Court, Nassau County, seeking sole custody of the child, and the defendant cross-moved for sole custody. That proceeding was resolved by a 33-page stipulation, which was executed and notarized on January 10, 2012.Pursuant to the stipulation, the parties agreed that the plaintiff would have sole legal and residential custody and the defendant would have “access time” with the child for approximately one week per month. Paragraph 26 of the stipulation required the plaintiff to pay to the defendant “as and for his contribution to the expenses [the defendant] incurs for the Child during her access times with the Child,” the sum of $15,000 per month until the child turned 21 years old. That paragraph further provided that “[u]nder no circumstances” would the “payments… ever be less than $15,000 a month except for any reductions and setoffs as provided in this Stipulation.” Paragraph 27 of the stipulation provided that the parties were aware of the Child Support Standards Act (hereinafter the CSSA), were aware that the plaintiff’s monthly payments deviated from the basic support obligation required under the CSSA, and agreed “to such deviation based on the financial resources of the parties… and [the plaintiff's] desire to assist [the defendant] with the expenses she incurs for the child during her access periods” (emphasis added).The stipulation further required the plaintiff, “[a]s and for an additional contribution… to the expenses [the defendant] incurs for the Child during her access times,” to make a tax-free lump sum child support payment in the sum of $840,000, to be used by the defendant for investment or reinvestment purposes only. The plaintiff also agreed to pay for medical and dental insurance for the child, the defendant, and the defendant’s two other children by different fathers. His obligation to pay for medical and dental insurance for the defendant and the child would continue “during their lifetimes until the Child is twenty-one years old or until the child support payments set forth in paragraph 26 terminate.”After the stipulation was signed, the plaintiff made his payments and the defendant had access time with the child. However, in December 2013, the plaintiff moved in the Supreme Court to suspend the defendant’s access time with the child, and the attorney for the child supported the motion. By order dated October 10, 2014, the Supreme Court (Bennett, J.) temporarily granted that relief pending a hearing on the motion, noting that the defendant had been hospitalized “due to drug toxicity” and that her two-year-old son had been removed from her care by a child protective agency. The plaintiff then moved to suspend his obligation to pay monthly “support” pursuant to paragraph 26 of the stipulation. The court granted the motion to the extent of directing him to deposit the sum of $15,000 per month in escrow pending the final determination of whether the defendant could resume access time with the child. However, the court later vacated the order directing the plaintiff to place the monthly payments in escrow.As set forth in the majority’s factual recitation, the plaintiff commenced this action in November 2015 seeking, inter alia, a judgment declaring that, pursuant to the stipulation, he is not required to make the support payments to the defendant at any time when her access time with the child is suspended, terminated, or prohibited by court order. The defendant asserted a counterclaim for the contrary declaration—i.e., that the plaintiff is required to make monthly payments pursuant to the stipulation regardless of whether her access time with the child has been prohibited by a court order. The defendant moved for summary judgment and the plaintiff cross-moved for summary judgment and to compel the defendant to accept his late reply to her counterclaims. The Supreme Court (Galasso, J.), inter alia, denied the defendant’s motion and granted the plaintiff’s cross motion.I agree with my colleagues in the majority that the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s cross motion which was to compel the defendant to accept his late reply to her counterclaims (see generally CPLR 2004; EHS Quickstops Corp. v. GRJH, Inc., 112 AD3d 577, 578).However, contrary to the view of my colleagues in the majority, I agree with the Supreme Court’s interpretation of the stipulation regarding the plaintiff’s monthly support payments. As observed by the majority, “[a] stipulation of settlement ‘is a contract subject to [the] principles of contract interpretation, and a court should interpret the contract in accordance with its plain and ordinary meaning’” (O’Brien v. O’Brien, 115 AD3d 720, 723, quoting Matter of Filosa v. Donnelly, 94 AD3d 760, 760; see Fleming v. Fleming, 137 AD3d 1206, 1207). ”When interpreting a contract… the court should arrive at a construction that will give fair meaning to all of the language employed by the parties to reach a practical interpretation of the expressions of the parties so that their reasonable expectations will be realized” (Matter of Schiano v. Hirsch, 22 AD3d 502, 502; see Matter of McCarthy v. McCarthy, 129 AD3d 970, 971; Matter of Pizzuto v. Pizzuto, 129 AD3d 846, 847).Here, paragraph 26 of the stipulation, requiring the plaintiff to “pay to [the defendant], as and for his contribution to the expenses [the defendant] incurs for the Child during her access times with the Child, the sum of $15,000 a month,” must be read in the context of the entire stipulation, including the provision whereby the parties stated that they had settled the issues of custody, access to the child, and child support during a court proceeding in Texas in 2008, in part, because of the plaintiff’s “desire to assist [the defendant] with the expenses she incurs for the Child during her access periods.” Reading the stipulation as a whole, the Supreme Court concluded that paragraph 26 unambiguously provides that the plaintiff’s monthly payment obligation “is for the expenses [the defendant] incurs for the child during her access times with the child,” and is not “simply a monthly payment for [the defendant's] benefit” that must be made even when a court order prohibits her from having access time with the now-12-year-old child. In my view, the court reached “a practical interpretation of the expressions of the parties” consistent with what should have been their “reasonable expectations” (Matter of Pizzuto v. Pizzuto, 129 AD3d at 847 [internal quotation marks omitted]; see Hyland v. Hyland, 63 AD3d 1106, 1107).Accordingly, I would affirm the Supreme Court’s order insofar as appealed from, including the provision granting that branch of the plaintiff’s cross motion which was for summary judgment on his cause of action seeking a judgment declaring that he is not required to make any payments pursuant to paragraph 26 of the stipulation at any time when the defendant’s access time with the child is suspended, terminated, or prohibited by a court. Since this is, in part, a declaratory judgment action, I would remit the matter to the Supreme Court, Nassau County, for the entry of an appropriate declaratory judgment (see Lanza v. Wagner, 11 NY2d 317, 334).By Dillon, J.P.; Balkin, Hall and Lasalle, JJ.Jerry Schonbrun, res, v. Marjep Realty Corp., def, Forsythe Cosmetic Group, Ltd., ap — (Index No. 17604/14)In an action to recover damages for personal injuries, the defendant Forsythe Cosmetic Group, Ltd., appeals from an order of the Supreme Court, Suffolk County (Martin, J.), dated October 4, 2016, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Forsythe Cosmetic Group, Ltd., for summary judgment dismissing the complaint insofar as asserted against it is granted.In January 2014, the plaintiff allegedly was injured in a warehouse in Freeport when, according to the plaintiff’s affidavit, “something disturbed” a steel beam, one of several that allegedly had been left leaning against a wall three years earlier, causing it to fall and strike him. The incident occurred in a portion of the warehouse that had previously been occupied by the defendant Forsythe Cosmetic Group, Ltd. (hereinafter Forsythe), but which had remained vacant in the three years since Forsythe vacated the premises in February 2011. The plaintiff commenced this action against the owner of the warehouse and Forsythe. Forsythe moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and Forsythe appeals.Forsythe established, prima facie, that it did not create a dangerous condition on the premises and that nothing it did proximately caused the plaintiff’s injuries. In opposition, the plaintiff failed to raise a triable issue of fact. Specifically, the allegations of the plaintiff’s affidavit were too vague to permit a factfinder to determine, without resorting to speculation, that the alleged placement of the beams by Forsythe’s employees constituted a dangerous condition that proximately caused the plaintiff’s injuries (see Beckford v. New York City Hous. Auth., 84 AD3d 441, 441; Mandel v. 370 Lexington Ave., LLC, 32 AD3d 302, 303; see also Hoovis v. Grand City 99 Cents Store, Inc., 146 AD3d 866). Accordingly, the Supreme Court should have granted Forsythe’s motion for summary judgment dismissing the complaint insofar as asserted against it.DILLON, J.P., BALKIN, HALL and LASALLE, JJ., concur.By Balkin, J.P.; Hinds-Radix, Duffy and Connolly, JJ.William Burger res, v. Kaushik Das, etc. appellants def — (Index No. 6284/12)In an action to recover damages for medical malpractice, etc., the defendants Kaushik Das, Kaushik Das, M.D., P.C., and Neurological and Spine Surgery Associates, P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), dated November 2, 2015, as denied their motion for summary judgment dismissing the amended complaint insofar as asserted against them, and the defendant Joseph N. Annichiarico separately appeals, as limited by his brief, from so much of the same order as denied, as untimely, his motion for summary judgment dismissing the amended complaint insofar as asserted against him.ORDERED that the order is reversed insofar as appealed from by the defendants Kaushik Das, Kaushik Das, M.D., P.C., and Neurological and Spine Surgery Associates, P.C., on the law, and the motion of those defendants for summary judgment dismissing the amended complaint insofar as asserted against them is granted; and it is further,ORDERED that the order is affirmed insofar as appealed from by the defendant Joseph N. Annichiarico; and it is further,ORDERED that one bill of costs is awarded to the defendants Kaushik Das, Kaushik Das, M.D., P.C., and Neurological and Spine Surgery Associates, P.C., payable by the plaintiffs, and one bill of costs is awarded to the plaintiffs, payable by the defendant Joseph N. Annichiarico.“In an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient’s injuries” (Matos v. Khan, 119 AD3d 909, 910; see Guctas v. Pessolano, 132 AD3d 632, 633; Poter v. Adams, 104 AD3d 925, 926; Salvia v. St. Catherine of Sienna Med. Ctr., 84 AD3d 1053, 1053-1054; Heller v. Weinberg, 77 AD3d 622, 622-623). Once the defendant has made such a showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant’s prima facie showing, but only as to those elements on which the defendant met the prima facie burden (see Guctas v. Pessolano, 132 AD3d at 633; Poter v. Adams, 104 AD3d at 926; Stukas v. Streiter, 83 AD3d 18, 23-24).Here, in moving for summary judgment dismissing the amended complaint insofar as asserted against them, the defendants Kaushik Das, Kaushik Das, M.D., P.C., and Neurological and Spine Surgery Associates, P.C. (hereinafter collectively the Das defendants), met their prima facie burden by submitting the affidavit of their expert, who opined that they did not deviate or depart from accepted medical practice in treating the plaintiff William Burger (see Giacinto v. Shapiro, 151 AD3d 1029, 1030; Guctas v. Pessolano, 132 AD3d at 633; Mitchell v. Grace Plaza of Great Neck, Inc., 115 AD3d 819). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the Das defendants’ motion for summary judgment dismissing the amended complaint insofar as asserted against them.The motion of the defendant Joseph N. Annichiarico for summary judgment dismissing the amended complaint insofar as asserted against him was untimely. In any event, we note that Annichiarico failed to make a prima facie showing of entitlement to judgment as a matter of law. Accordingly, Annichiarico’s motion for summary judgment dismissing the amended complaint insofar as asserted against him was properly denied.BALKIN, J.P., HINDS-RADIX, DUFFY and CONNOLLY, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.Zvi Berkovits, ap, v. Lila Berkovits, res — (Index No. 14468/14)David W. Teeter, Garden City, NY, for appellant.Plaine & Katz, LLP, Kew Gardens, NY (Joshua R. Katz of counsel), for respondent.In an action, inter alia, to set aside a separation agreement, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered April 1, 2016, as, upon renewal, granted the defendant’s motion to dismiss the complaint as time-barred and denied his cross motion for summary judgment on the complaint.ORDERED that the order is affirmed insofar as appealed from, with costs.The parties married in 1978 and separated in 2000. They executed a separation agreement in 2005. In July 2014, the plaintiff commenced an action for a divorce. In October 2014, the plaintiff commenced this action to set aside the separation agreement and declare the agreement null and void. The defendant moved, inter alia, to dismiss the complaint as time-barred. The plaintiff cross-moved for summary judgment on the complaint, asserting that the separation agreement was invalid and unenforceable because the certificate of acknowledgment did not comply with the language prescribed in Real Property Law §309-a in that it did not satisfy the requirement that the notary either knew or had satisfactory evidence that the plaintiff was the individual who signed the agreement. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion.The plaintiff’s contention that the statute of limitations does not apply to an action challenging the validity of a separation agreement as void ab initio is without merit. Since the Supreme Court directed the dismissal of the complaint as time-barred, his arguments as to the validity of the agreement are academic.Accordingly, the order must be affirmed insofar as appealed from.HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Roman, Sgroi and Hinds-Radix, JJ.PEOPLE, etc., res, v. Rafael Ceara, ap — (Ind. No. 09-00323)Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 25, 2015 (People v. Ceara, 133 AD3d 873), affirming a judgment of the County Court, Westchester County, rendered August 3, 2010.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).HALL, J.P., ROMAN, SGROI and HINDS-RADIX, JJ., concur.By Chambers, J.P.; Roman, Miller and Duffy, JJ.John Hogan, res, v. Providence Hogan, ap — (Index No. 53153/12)Appeals from (1) an order of the Supreme Court, Kings County (Patricia E. Henry, J.), dated March 24, 2016, and (2) a judgment of divorce of that court (Esther M. Morgenstern, J.), dated February 14, 2017. The order dated March 24, 2016, denied the defendant’s motion seeking joint counseling sessions between the parties and their child. The judgment of divorce, insofar as appealed from, upon an order of that court (Patricia E. Henry, J.) also dated March 24, 2016, made after a nonjury trial, awarded the plaintiff sole legal and physical custody of the parties’ child and failed to direct joint counseling sessions between the parties and their child.ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,ORDERED that the judgment of divorce is affirmed insofar as appealed from, without costs or disbursements.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of divorce (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of divorce (see CPLR 5501[a][1]).The parties were married in 1997 and have one child in common. In 2012, the plaintiff father (hereinafter the father) commenced this action for a divorce and ancillary relief. During the pendency of this action, the father was awarded temporary custody of the child after the defendant mother (hereinafter the mother) was incarcerated. The mother’s incarceration arose out of her failure to make restitution payments, which she was required to make as part of her sentence in a criminal matter wherein she pleaded guilty to grand larceny in connection with her theft of funds from the Parent Teachers Association (hereinafter PTA) at the child’s school; pursuant to the restitution agreement, the mother was required to pay a sum of $82,000, in the amount of $4,000 every three months. After a nonjury trial on the issue of custody, the Supreme Court awarded the father sole legal and physical custody of the child and set a visitation schedule for the mother. During the trial, the mother moved for joint counseling sessions between the parties and their child, and the court denied that motion. The mother appeals.In making a custody determination, the primary concern is the best interests of the child. In determining the child’s best interests, the court must consider the totality of the circumstances. Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents’ financial status, the parental guidance given to the child, the ability of each parent to provide for the child’s emotional and intellectual development, and the effect an award of custody to one parent might have on the child’s relationship with the other parent (see Eschbach v. Eschbach, 56 NY2d 167, 171-173; Matter of Sahadath v. Andaverde, 145 AD3d 731, 732; Matter of Tejada v. Tejada, 126 AD3d 985, 985; Cuccurullo v. Cuccurullo, 21 AD3d 983, 984). A custody determination depends to a great extent upon an assessment of the character and credibility of the parties and witnesses. Since the hearing court is able to observe witnesses and evaluate evidence firsthand, its determination is generally accorded deference on appeal and will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 NY2d at 173; Matter of Sahadath v. Andaverde, 145 AD3d at 732; Matter of Monasterska v. Burns, 121 AD3d 903; Matter of Perez v. Martinez, 52 AD3d 518, 519). Furthermore, in determining custody, while the express wishes of a child are not controlling, they are entitled to great weight, especially here, where the child’s age and maturity make her input particularly meaningful (see Matter of Cannella v. Anthony, 127 AD3d 745, 746).There is a sound and substantial basis in the record for the Supreme Court’s award of sole legal and physical custody of the child to the father. There was evidence in the record that the mother’s theft of the PTA funds, her poor decision-making about her failing business, certain postings on her blog and Flickr account, and unstable housing circumstances demonstrated poor caretaking ability and parental judgment. Additionally, the relationship between the mother and the then 14-year-old child had drastically deteriorated after the mother’s arrest and later incarceration. The mother’s unwise decision to seek election to the position of second vice president of the PTA at the child’s new school, and her subsequent election to that position, rekindled the negative publicity about her earlier theft of funds from the PTA at the child’s former school. The unfavorable news articles prompted the mother to resign her position and further cemented the rift between the child and the mother. Additionally, the court-appointed forensic psychologist recommended that the father have sole legal and physical custody of the child. The attorney for the child supported that position (see Matter of Wosu v. Nettles-Wosu, 132 AD3d 688, 689) and informed the court that the child wished to reside with the father.The Supreme Court also providently exercised its discretion in denying the mother’s motion seeking joint counseling sessions between the parties and their child. Although the court left open the possibility of the mother’s future participation in the child’s therapy sessions, the court determined that the parties’ inability to communicate and cooperate on matters concerning the child, together with the child’s strong position about the mother, rendered joint counseling sessions at that time unworkable and inappropriate under those circumstances (see generally Matter of Lee v. Fitts, 147 AD3d 1058, 1059).CHAMBERS, J.P., ROMAN, MILLER and DUFFY, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Drena Mileski, etc., plf-res, v. MSC Industrial Direct Co., Inc., defendant third-party plaintiff-respondent-appellant def; Buffalo Machinery Co., Ltd., third-party defendant- appellant-respondent third-party def — (Index No. 10391/09)In an action, inter alia, to recover damages for wrongful death, etc., (1) the third-party defendant Buffalo Machinery Co., Ltd., appeals from stated portions of an order of the Supreme Court, Suffolk County (Mayer, J.), entered September 18, 2014, which, among other things, denied that branch of its motion which was pursuant to CPLR 306-b to dismiss the third-party complaint insofar as asserted against it on the grounds that the defendant third-party plaintiff failed to timely serve it with process and that the Supreme Court had improperly resettled, in an order dated November 19, 2011, a prior order dated December 20, 2010, to include a provision extending the deadline for the defendant third-party plaintiff to serve it with process, and denied the plaintiff’s cross motion for leave to amend the pleadings to assert a direct claim against it without prejudice to renew, and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion pursuant to CPLR 306-b and CPLR 311(b) to extend the time to serve the third-party complaint on the third-party defendant Buffalo Machinery Co., Ltd., and for leave to effectuate such service by alternate means, (2) the third-party defendant Buffalo Machinery Co., Ltd., appeals from an order of the same court entered March 6, 2015, which directed a hearing to determine the validity of service of process upon it and denied that branch of its motion which was for summary judgment dismissing the third-party complaint insofar as asserted against it based on lack of personal jurisdiction without prejudice to renew upon the completion of discovery on the issue of whether personal jurisdiction over it may be established, and the defendant third-party plaintiff cross-appeals, as limited by its brief, from so much of the same order as directed a hearing to determine the validity of service of process upon the third-party defendant Buffalo Machinery Co., Ltd., and (3) the defendant third-party plaintiff appeals from an order and judgment (one paper) of the same court entered October 7, 2015, which, after a hearing, granted that branch of the motion of the third-party defendant Buffalo Machinery Co., Ltd., which was to dismiss the third-party complaint insofar as asserted against it based on improper service, which motion the court had converted into a motion for summary judgment, and, in effect, dismissed the third-party complaint insofar as asserted against the third-party defendant Buffalo Machinery Co., Ltd.ORDERED that the appeals and the cross appeals from the orders are dismissed; and it is further,ORDERED that the order and judgment is reversed, on the law, that branch of the motion of the third-party defendant Buffalo Machinery Co., Ltd., which was to dismiss the third-party complaint insofar as asserted against it based on improper service, which motion the court converted into a motion for summary judgment, is denied, the third-party complaint is reinstated insofar as asserted against the third-party defendant Buffalo Machinery Co., Ltd., and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith; and it is further,ORDERED that one bill of costs is awarded to the defendant third-party plaintiff.The appeals and cross appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeals and cross appeals from the orders are brought up for review and have been considered on the appeal from the order and judgment (see CPLR 5501[a][1]).In March 2009, the plaintiff, Drena Mileski, individually and as administrator of the estate of her deceased husband, commenced this wrongful death action against MSC Industrial Direct Co., Inc. (hereinafter MSC), alleging that MSC manufactured, designed, sold, and distributed a lathe machine which caused her husband’s death during the course of his employment with Deer Park Hydraulics & Packing Co., Inc. (hereinafter Deer Park; see Mileski v. MSC Indus. Direct Co., Inc., 138 AD3d 797). In May 2010, MSC commenced a third-party action against Deer Park and Buffalo Machinery Co., Ltd. (hereinafter Buffalo), a Taiwanese company with its principal place of business in Taiwan.Legal Language Services, a company retained by MSC to facilitate service upon Buffalo in Taiwan, forwarded a certificate of service of the Taiwan Taichung District Court and accompanying documents to MSC indicating that service was timely effectuated on Buffalo on March 19, 2012. Within 60 days after filing an answer to the third-party complaint, which contained affirmative defenses of lack of personal jurisdiction and improper service of process, Buffalo moved to dismiss the third-party complaint insofar as asserted against it. Buffalo sought dismissal pursuant to CPLR 306-b on the ground of untimely service of process, and also pursuant to CPLR 3211(a)(8), arguing both that service was improper and a lack of personal jurisdiction based on its lack of ties to New York. The Supreme Court denied the motion on the ground that Buffalo failed to comply with the court’s part rules, without prejudice and with leave to resubmit after full compliance with the court’s part rules. Buffalo subsequently resubmitted its motion.In an order entered September 18, 2014, the Supreme Court denied that branch of Buffalo’s motion which was to dismiss pursuant to CPLR 306-b, converted that branch of Buffalo’s motion which was to dismiss pursuant to CPLR 3211(a)(8) into a summary judgment motion, and denied a cross motion by MSC for an extension of time to serve the third-party complaint upon Buffalo and for leave to serve Buffalo by alternate means. Thereafter, by order entered March 6, 2015, the court directed a hearing to determine the validity of service of process and denied that branch of Buffalo’s motion which was for summary judgment dismissing the third-party complaint insofar as asserted against it based on lack of personal jurisdiction without prejudice to renew after finding issues of fact as to the applicability of CPLR 302(a)(3)(ii). By order and judgment entered October 7, 2015, the court, after a hearing, granted that branch of Buffalo’s motion which was for summary judgment dismissing the third-party complaint insofar as asserted against it based on improper service, and, in effect, dismissed the third-party complaint insofar as asserted against it. Buffalo appeals and MSC cross-appeals from the orders entered September 18, 2014, and March 6, 2015, respectively, and MSC appeals from the order and judgment entered October 7, 2015.The Supreme Court properly denied that branch of Buffalo’s motion which was to dismiss the third-party complaint insofar as asserted against it pursuant to CPLR 306-b. Contrary to Buffalo’s contention, the court correctly determined that it had properly resettled, in an order dated November 19, 2011, a prior order of that court dated December 20, 2010, granting MSC’s motion seeking the execution of letters rogatory to serve Buffalo in Taiwan so as to include a provision extending the deadline for service (see CPLR 2221; Simon v. Mehryari, 16 AD3d 664).Moreover, upon converting that branch of Buffalo’s motion which was pursuant to CPLR 3211(a)(8) to dismiss the third-party complaint for lack of personal jurisdiction into a summary judgment motion, the Supreme Court properly denied the motion on the ground that MSC raised triable issues of fact as to whether MSC could assert personal jurisdiction over Buffalo under CPLR 302(a)(3)(ii) and properly found that MSC was entitled to discovery on the issue of personal jurisdiction (see Venegas v. Capric Clinic, 147 AD3d 457; cf. Okeke v. Momah, 132 AD3d 648).MSC correctly contends that the Supreme Court should have denied that branch of Buffalo’s motion which was based on improper service without conducting a hearing. The certificate of service relied upon by MSC constituted prima facie proof of proper service (see HSBC Mtge. Corp. [USA] v. Dickerson, 150 AD3d 968; Voelker v. Bodum USA, Inc., 149 AD3d 587; Matter of Perskin v. Bassaragh, 73 AD3d 1073). Further, Buffalo did not sufficiently rebut that presumption (see Stephan B. Gleigh & Assoc. v. Gritsipis, 87 AD3d 216; Kurlander v. Willie, 45 AD3d 1006; Nasatir v. Lenox Hill Hosp., 236 AD2d 213). Therefore, under the facts of this case, a hearing, at which the burden shifted to MSC to establish proper service by a preponderance of the evidence (see Purzak v. Long Is. Hous. Servs., Inc., 149 AD3d 989; Wells Fargo Bank, N.A. v. DeCesare, 148 AD3d 761), was not warranted. Accordingly, the order and judgment entered after the hearing must be reversed and the subject branch of Buffalo’s motion must be denied.The parties’ remaining contentions are without merit or have been rendered academic in light of our determination.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Yusufu Dumbuya, ap — (Ind. No. 16-00008)Mark Diamond, New York, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Westchester County (Susan M. Capeci, J.), rendered August 24, 2016, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the County Court did not impose a period of postrelease supervision in addition to the definite term of imprisonment imposed upon his conviction of criminal sale of a controlled substance in the third degree. The court properly imposed only a definite term of imprisonment of nine months upon his conviction of that crime (see Penal Law §§ 70.45[1]; 70.70[2][c]).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Anthony King, ap — (Ind. No. 4337/15)Paul Skip Laisure, New York, NY, for appellant.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Kings County (Joann Ferdinand, J.), rendered October 17, 2016, convicting him of criminal possession of a controlled substance in the seventh degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Chambers, Roman, Maltese and Connolly, JJ.PEOPLE, etc., res, v. Balar Warren, ap — (Ind. No. 589/16)Paul Skip Laisure, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Danielle S. Fenn of counsel; Victoria Randall on the brief), forrespondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Stephanie Zaro, J., at plea; Dorothy Chin-Brandt, J., at sentence), rendered March 30, 2016, convicting him of attempted criminal possession of a forged instrument in the second degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).BALKIN, J.P., CHAMBERS, ROMAN, MALTESE and CONNOLLY, JJ., concur.By Leventhal, J.P.; Austin, Cohen, Barros and Christopher, JJ.PEOPLE, etc., res, v. Damon Arthur, ap — (Ind. No. 85/16)Appeal by the defendant from a judgment of the County Court, Dutchess County (Edward T. McLoughlin, J.), rendered October 24, 2016, convicting him of criminal sale of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 339-342; People v. Lopez, 6 NY3d 248, 256-257). The defendant’s valid waiver of the right to appeal precludes review of his contention that the sentence imposed was excessive (see People v. Lopez, 6 NY3d at 255-256).LEVENTHAL, J.P., AUSTIN, COHEN, BARROS and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Drena Mileski, etc., plf, v. MSC Industrial Direct Co., Inc., defendant third-party plf-ap, et al., def; Buffalo Machinery Co., Ltd., third-party defendant-respondent third-party def — (Index No. 10391/09)In an action, inter alia, to recover damages for wrongful death, etc., the defendant third-party plaintiff appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated May 23, 2016, which denied its motion for leave to renew its prior cross motion pursuant to CPLR 306-b and CPLR 311(b) to extend the time to serve the third-party complaint on the third-party defendant Buffalo Machinery Co., Ltd., and for leave to effectuate such service by alternate means, which cross motion had been denied by an order of the same court entered September 18, 2014.ORDERED that the appeal is dismissed as academic, with costs, in light of our determination on the companion appeals (see Mileski v. MSC Industrial Direct Co., Inc., __ AD3d __ [Appellate Division Docket No. 2014-11031; decided herewith]).BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Guillermo Aracena, ap, v. BMW of North America, LLC, res — (Index No. 2523/12)Alan D. Glassman, Lynbrook, NY, for appellant.Biedermann Hoenig Semprevivo, P.C., New York, NY (Philip C. Semprevivo, Justin A. Guilfoyle, and Christopher R. Confrey of counsel), for respondent.Appeal from an order of the Supreme Court, Nassau County (Karen V. Murphy, J.), entered July 20, 2015. The order granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff purchased a 2008 BMW 335i (hereinafter the vehicle) from an authorized dealer of the defendant, BMW of North America, LLC, on April 25, 2008. The vehicle came with a “Service and Warranty Information” booklet setting forth certain limited warranties, which were effective for four years or 50,000 miles. The vehicle ultimately necessitated a number of warrantied repairs during the coverage period and was the subject of a repair recall. The plaintiff thereafter commenced this action against the defendant, asserting causes of action, inter alia, to recover damages for breach of written and implied warranties pursuant to the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act (15 USC §2301 et seq.; hereinafter the Act) and alleging a violation of General Business Law §349. Following discovery, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.The Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging breach of written warranty under the Act. ”[T]he Act permits ‘a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with any obligation… under a written warranty, implied warranty, or service contract,’ to sue warrantors for damages and other relief in any court of competent jurisdiction’” (DiCintio v. DaimlerChrysler Corp., 97 NY2d 463, 469, quoting 15 USC §2310[d][1]). A cause of action alleging breach of an express warranty requires evidence that the defendant breached a specific representation made by a manufacturer regarding a product upon which the purchaser relied (see CBS Inc. v. Ziff-Davis Publ. Co., 75 NY2d 496, 503; Cecere v. Zep Mfg. Co., 116 AD3d 901, 902; Arthur Glick Leasing, Inc. v. William J. Petzold, Inc., 51 AD3d 1114, 1116). Here, the defendant established, prima facie, that it performed all warrantied repairs in accordance with the terms of the warranty, and that it did not otherwise breach any specific representation contained in the warranty (see Cecere v. Zep Mfg. Co., 116 AD3d at 902). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Contrary to the plaintiff’s contention, the defendant’s promotional slogan, “The Ultimate Driving Machine,” is not a specific representation regarding the vehicle upon which he could rely (see Simmons v. Washing Equip. Tech., 78 AD3d 1645, 1646; Nigro v. Lee, 63 AD3d 1490, 1492; Serbalik v. General Motors Corp., 246 AD2d 724; Anderson v. Bungee Intl. Mfg. Corp., 44 F Supp 2d 534, 541 [SD NY]).The Supreme Court also properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging breach of implied warranties. “[N]o implied warranty will extend from a manufacturer to a remote purchaser not in privity with the manufacturer where only economic loss and not personal injury is alleged” (Lexow & Jenkins v. Hertz Commercial Leasing Corp., 122 AD2d 25, 26; see Arthur Jaffee Assoc. v. Bilsco Auto Serv., 58 NY2d 993, 995; Catalano v. Heraeus Kulzer, Inc., 305 AD2d 356). Here, the defendant established, prima facie, that it was not in privity with the plaintiff (see Arthur Jaffee Assoc. v. Bilsco Auto Serv., 58 NY2d at 995; Cecere v. Zep Mfg. Co., 116 AD3d at 903). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324).Moreover, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of General Business Law §349. ”Section 349(a) of the General Business Law declares as unlawful ‘[d]eceptive acts and practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state’” (Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d 20, 24, quoting General Business Law §349[a]). A cause of action under General Business Law §349 requires evidence that “‘a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice’” (Koch v. Acker, Merrall & Condit Co., 18 NY3d 940, 941, quoting City of New York v. Smokes-Spirits.Com, Inc., 12 NY3d 616, 621; see Stutman v. Chemical Bank, 95 NY2d 24, 29; Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 NY2d at 25; Amalfitano v. NBTY, Inc., 128 AD3d 743, 745). The defendant’s submissions established, prima facie, that it did not engage in consumer-oriented acts or practices that were deceptive or misleading in a material way (cf. Amalfitano v. NBTY, Inc., 128 AD3d 743). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d at 324).Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Leventhal, Sgroi and Connolly, JJ.MATTER of Dennis E. (Anonymous), pet, v. Matthew J. DEmic, etc. res — Proceeding pursuant to CPLR article 78, inter alia, in the nature of prohibition to prohibit the respondent Matthew J. D’Emic, a Justice of the Supreme Court, Kings County, from enforcing an order dated June 29, 2017, in an underlying criminal action against the petitioner pending in the Supreme Court, Kings County. Cross motion by the respondent Ann Marie T. Sullivan to dismiss the proceeding on the ground that the petition fails to state a claim upon which relief can be granted.ORDERED that the cross motion is granted; and it is further,ADJUDGED that the petition is denied and the proceeding is dismissed, without costs or disbursements.“Because of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court—in cases where judicial authority is challenged—acts or threatens to act either without jurisdiction or in excess of its authorized powers” (Matter of Holtzman v. Goldman, 71 NY2d 564, 569; see Matter of Rush v. Mordue, 68 NY2d 348, 352). The petitioner has failed to establish a clear legal right to the relief sought.MASTRO, J.P., LEVENTHAL, SGROI and CONNOLLY, JJ., concur.By Rivera, J.P.; Leventhal, Austin, Barros and Christopher, JJ.PEOPLE, etc., res, v. Lorenzo Fonerin, ap — (Ind. No. 8676/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deborah Dowling, J.), rendered June 12, 2015, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the facts, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent with CPL 160.50.On the evening of September 23, 2012, the codefendant, Suliman Ahmed, set fire to a sleeping homeless man while the defendant recorded the incident on his cell phone. The events occurred outside a deli where the codefendant was the manager and the defendant had been employed for approximately two weeks. The victim, who was mentally ill, often slept outside the deli. The defendant’s cell phone video shows that, just as the codefendant began to douse the victim with lighter fluid, the defendant uttered, “Do that shit, man.” The cell phone footage, as well as nearby surveillance video footage, shows that the defendant continued to hold his cell phone to film the victim staggering around, engulfed in flames, as the codefendant and others attempted to extinguish the flames on the victim. After approximately one minute of recording, the defendant eventually retrieved water from inside the deli and extinguished the fire. The jury found the defendant guilty of assault in the first degree (Penal Law §120.10[3]) on a theory of accessorial liability (see Penal Law §20.00). The defendant appeals from the judgment of conviction, arguing, inter alia, that the jury’s verdict was against the weight of the evidence.Upon the defendant’s request, this Court must conduct a weight of the evidence review (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348). In conducting our weight of the evidence review, we have a responsibility to affirmatively review the record, independently assess all of the proof, substitute our own credibility determinations for those made by the jury in an appropriate case, determine whether the jury’s determination was factually correct, and acquit a defendant if we are not convinced that the jury was justified in finding that guilt was proven beyond a reasonable doubt (see People v. Delamota, 18 NY3d 107, 116-117). ”[W]eight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” (People v. Danielson, 9 NY3d at 348). ”Based on the weight of the credible evidence, the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonable doubt” (id.; see People v. Bleakley, 69 NY2d 490). ”When an appellate court performs weight of the evidence review, it sits, in effect as a ‘thirteenth juror’” (People v. Mateo, 2 NY3d 383, 410 [internal quotation marks omitted]), but this Court also gives great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see id. at 410; People v. Bleakley, 69 NY2d at 495).To convict the defendant of assault in the first degree under Penal Law §120.10(3), the People were required to prove beyond a reasonable doubt that the defendant, acting in concert with another person, caused serious physical injury to the victim, that the defendant did so by recklessly engaging in conduct that created a grave risk of death to the victim, and that the defendant engaged in such conduct under circumstances evincing a depraved indifference to human life. For the defendant to be held criminally liable for the conduct of the codefendant, the People had to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned, or intentionally aided the codefendant to engage in that conduct, and that the defendant did so with the state of mind required for the commission of the offense (see Penal Law §20.00). A defendant’s mere presence at the scene of a crime, even with knowledge that the crime is taking place, or mere association with the perpetrator of a crime, is not enough for accessorial liability (see People v. Lopez, 137 AD3d 1166, 1167; Matter of Tatiana N., 73 AD3d 186, 190-191).It is undisputed that the defendant did not assist the codefendant in dousing the victim with lighter fluid or setting fire to the victim, and did not supply any of the materials to the codefendant to commit the criminal act. The defendant’s actions, in uttering, “Do that shit, man,” as the codefendant doused the victim with lighter fluid, and in filming this incident for approximately one minute before rendering any aid to this particularly vulnerable and helpless victim, were deplorable. However, his actions did not support the jury’s finding beyond a reasonable doubt that he solicited, requested, commanded, importuned, or intentionally aided the codefendant to assault the victim, and that he did so sharing the codefendant’s state of mind.Upon the exercise of our factual review power (see CPL 470.15), we determine that an acquittal of assault in the first degree would not have been unreasonable. Moreover, we determine that the jury was not justified in finding the defendant guilty beyond a reasonable doubt. Thus, the judgment must be reversed and the indictment dismissed (see generally People v. Romero, 7 NY3d 633).In light of our determination, we need not address the defendant’s remaining contentions.LEVENTHAL, AUSTIN and BARROS, JJ., concur.RIVERA, J.P., dissents, and votes to affirm the judgment, with the following memorandum, in which CHRISTOPHER, J., concurs:I respectfully dissent and vote to affirm the judgment of conviction.On September 23, 2012, the defendant, acting with a codefendant, approached the victim, a homeless man, who was asleep outside a bodega where the defendant and the codefendant worked. Utilizing his cell phone, the defendant filmed the codefendant as the codefendant poured lighter fluid onto the victim’s back. The codefendant then set fire to the victim. The defendant is heard on the cell phone video stating to the codefendant, “Do that shit, man.” The brutal incident was also captured on surveillance footage. The defendant was later arrested and ultimately convicted, upon a jury verdict, of assault in the first degree.Contrary to the determination of my colleagues in the majority, in conducting our independent review of the weight of the evidence, I am satisfied that the verdict of guilt is not against the weight of the evidence (see People v. Romero, 7 NY3d 633). Among other things, the defendant argues on appeal, and the majority agrees, that the verdict is against the weight of the evidence because the People did not prove beyond a reasonable doubt that he shared the codefendant’s intent to commit depraved assault, or that he solicited, requested, commanded, importuned, or intentionally aided the codefendant in committing the crime of assault in the first degree.A person is guilty of assault in the first degree when, “[u]nder circumstances evincing a depraved indifference to human life, he or [she] recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person” (Penal Law §120.10[3]). To establish accessorial liability, the People must prove beyond a reasonable doubt that the accused acted with the mental culpability necessary to commit the crime charged and that, in furtherance thereof, he or she solicited, requested, commanded, importuned, or intentionally aided the principal to commit such crime (see Penal Law §20.00; People v. Cabey, 85 NY2d 417, 421; People v. Allah, 71 NY2d 830, 832; People v. Carpenter, 138 AD3d 1130, 1131).Here, the jury was justified in finding the defendant guilty beyond a reasonable doubt. According great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410), including the defendant, who testified on his own behalf, a jury could logically conclude that the People sustained their burden of proof. The evidence presented showed that the defendant importuned the codefendant by expressly stating, “Do that shit, man.” These commanding words were clearly heard on the cell phone video as the codefendant is observed squeezing a visible bottle of lighter fluid. The evidence also established that the victim was thereafter set on fire, with flames engulfing his back and causing severe burns from his buttocks to his shoulders.Upon viewing the surveillance video, the cell phone video played to the jury, and all of the evidence proffered, I am certain, as found by the jury, that the defendant importuned the codefendant to commit this reprehensible act and fully shared the codefendant’s intent. He was not merely a reporter of the incident; he was an accessory to the crime. I further find all of his remaining contentions to be without merit.Accordingly, for these reasons, I conclude that the judgment should be affirmed.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.U.S. Bank, National Association, etc., res, v. Philip Kess, etc., appellant def — (Index No. 600988/15)In an action to foreclose a mortgage, the defendant Philip Kess appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Santorelli, J.), dated May 4, 2016, as denied that branch of his motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Philip Kess which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred is granted.The plaintiff commenced this mortgage foreclosure action on February 2, 2015, against, among others, the defendant Philip Kess, individually and on behalf of the estate of Winifred Kess. Kess moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him, individually and in his representative capacity, on the ground that the six-year statute of limitations had run. In support of the motion, he submitted, among other things, the complaint in a prior action commenced by the plaintiff in May 2008 to foreclose the same mortgage (hereinafter the 2008 foreclosure action), in which the plaintiff elected to call due the entire amount secured by the mortgage, and proof that the 2008 foreclosure action was voluntarily discontinued by the plaintiff in October 2014. The plaintiff opposed the motion, arguing that the statute of limitations was tolled for 18 months pursuant to CPLR 210(b) by the June 4, 2013 death of Kess’s wife, who was named as a defendant in the 2008 foreclosure action. In the order appealed from, the Supreme Court denied that branch of Kess’s motion, finding that the death of Kess’s wife tolled the statute of limitations for 18 months, thereby making the instant action timely.In support of his motion, Kess demonstrated that the six-year statute of limitations (see CPLR 213[4]) began to run on May 6, 2008, when the plaintiff accelerated the mortgage debt and commenced the 2008 foreclosure action (see Albertina Realty Co. v. Rosbro Realty Corp., 258 NY 472, 476; Deutsche Bank Natl. Trust Co. v. Gambino, 153 AD3d 1232, 1233; U.S. Bank N.A. v. Martin, 144 AD3d 891, 892; EMC Mtge. Corp. v. Smith, 18 AD3d 602, 603). Since the plaintiff did not commence the instant foreclosure action until more than six years later, Kess sustained his initial burden of demonstrating, prima facie, that this action was untimely (see U.S. Bank N.A. v. Martin, 144 AD3d at 892; Lessoff v. 26 Ct. St. Assoc., LLC, 58 AD3d 610, 611). The burden then shifted to the plaintiff to present admissible evidence establishing that the action was timely or to raise a question of fact as to whether the action was timely (see U.S. Bank N.A. v. Martin, 144 AD3d at 892; Lessoff v. 26 Ct. St. Assoc., LLC, 58 AD3d at 611).Contrary to the Supreme Court’s determination, the plaintiff failed to establish that the action was timely or to raise a question of fact with respect thereto. CPLR 210(b) provides that “[t]he period of eighteen months after the death… of a person against whom a cause of action exists is not a part of the time within which the action must be commenced against his [or her] executor or administrator.” The statute plainly is limited in scope to the executor or administrator of the decedent’s estate and does not extend to other defendants in the same action (see Laurenti v. Teatom, 210 AD2d 300, 301; Anselmo v. Copertino 134 Misc 2d 956 [Sup Ct, Suffolk County]). Consequently, CPLR 210(b) could not extend the statute of limitations period as to Kess individually. Furthermore, the plaintiff failed to establish that Kess was the administrator or executor of his deceased wife’s estate, a point which Kess denied in reply to the plaintiff’s opposition. Thus, the Supreme Court erred in finding that the action was timely pursuant to CPLR 210(b).In addition, the purported loan modification application submitted by the plaintiff in opposition to the motion was not an acknowledgment of the debt and an unconditional promise to repay the debt sufficient to reset the running of the statute of limitations (see Sichol v. Crocker, 177 AD2d 842, 843; see also National Loan Invs., L.P. v. Piscitello, 21 AD3d 537, 538; Albin v. Dallacqua, 254 AD2d 444, 445; see generally Petito v. Piffath, 85 NY2d 1, 8).The plaintiff’s remaining contentions are improperly raised for the first time on appeal (see Hudson City Sav. Bank v. 59 Sands Point, LLC, 153 AD3d 611, 613; Beneficial Homeowner Serv. Corp. v. Tovar, 150 AD3d 657, 659).Accordingly, the Supreme Court should have granted that branch of Kess’s motion which was to dismiss the complaint insofar as asserted against him as time-barred.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Tony Bryant, ap — (Ind. Nos. 09-01315, 09-01355, 09-01637)Jerry F. Kebrdle II, White Plains, NY, for appellant.Anthony A. Scarpino, Jr., District Attorney, White Plains, NY (Raffaelina Gianfrancesco and William C. Milaccio of counsel), for respondent.Appeals by the defendant from three judgments of the Supreme Court, Westchester County (Richard A. Molea, J.), all rendered March 1, 2011, convicting him of murder in the first degree, murder in the second degree, and conspiracy in the second degree under Indictment No. 09-01637, attempted criminal sale of a controlled substance in the third degree under Indictment No. 09-01315, and attempted criminal possession of a controlled substance in the third degree under Indictment No. 09-1355, upon his pleas of guilty, and imposing sentences.ORDERED that the judgments are affirmed.Contrary to the defendant’s contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 NY3d 337, 341-342). The defendant’s valid waiver of his right to appeal precludes appellate review of his challenge to the factual sufficiency of his plea allocutions (see People v. Hutter, 154 AD3d 776; People v. Thompson, 143 AD3d 1007, 1008; People v. Pinero, 138 AD3d 763, 764).However, the defendant’s contention that his pleas of guilty were not knowing, voluntary, and intelligent survives his valid waiver of the right to appeal (see People v. Magnotta, 137 AD3d 1303). Contrary to the defendant’s contention, the record reflects that his pleas of guilty were knowingly, voluntarily, and intelligently entered (see People v. Seeber, 4 NY3d 780, 781; People v. Fiumefreddo, 82 NY2d 536, 543).The defendant’s claim that he was deprived of the constitutional right to the effective assistance of counsel, which affected the voluntariness of his pleas, is based, in part, on matter appearing on the record and, in part, on matter outside the record, and thus constitutes a “mixed claim” of ineffective assistance (People v. Maxwell, 89 AD3d 1108, 1109). In this case, it is not evident from the matter appearing on the record that the defendant was deprived of the effective assistance of counsel (cf. People v. Crump, 53 NY2d 824, 825; People v. Brown, 45 NY2d 852, 853). Since the defendant’s claim of ineffective assistance cannot be resolved without reference to matter outside the record, a CPL 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety (see People v. Carter, 151 AD3d 877, 878; People v. Cunningham, 103 AD3d 916, 916-917).The defendant’s remaining contention is without merit.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.Mariners Atlantic Portfolio, LLC, ap, v. John Hector, respondent def — (Index No. 509931/14)Appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated December 14, 2015. The order, insofar as appealed from, granted that branch of the motion of the defendant John Hector which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him for lack of standing.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant John Hector which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him for lack of standing is denied.In February 2006, John Hector executed a note in the sum of $316,000 in favor of Ameriquest Mortgage Company (hereinafter Ameriquest), which was secured by a mortgage on residential property located in Brooklyn. In October 2014, the plaintiff commenced this action against Hector, among others, to foreclose the mortgage. Thereafter, Hector moved, inter alia, pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him on the ground that the plaintiff lacked standing. The plaintiff opposed the motion. In the order appealed from, the Supreme Court granted that branch of the motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against Hector on the ground that the plaintiff lacked standing. The plaintiff appeals.A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 360-361; U.S. Bank, N.A. v. Noble, 144 AD3d 786, 787; U.S. Bank, N.A. v. Collymore, 68 AD3d 752, 753-754). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725, 726; U.S. Bank N.A. v. Saravanan, 146 AD3d 1010, 1011; Deutsche Bank Natl. Trust Co. v. Logan, 146 AD3d 861, 862).On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing as a matter of law (see Wells Fargo Bank, N.A. v. Archibald, 150 AD3d 935, 936; U.S. Bank, N.A. v. Noble, 144 AD3d at 787; U.S. Bank N.A. v. Guy, 125 AD3d 845, 847; HSBC Mtge. Corp. [USA] v. MacPherson, 89 AD3d 1061, 1062).Here, Hector failed to establish, prima facie, that the plaintiff was not the holder or the assignee of the note at the time it commenced this action. The record shows that the plaintiff attached a copy of the note endorsed in blank by Ameriquest, the original lender, to the complaint. Since the evidence established that the plaintiff had physical possession of the note at the time of the commencement of the action (see U.S. Bank N.A. v. Saravanan, 146 AD3d at 1011; Deutsche Bank Natl. Trust Co. v. Leigh, 137 AD3d 841, 842; Nationstar Mtge., LLC v. Catizone, 127 AD3d 1151, 1152), the validity of the various assignments of the mortgage is irrelevant to the issue of standing (see Silvergate Bank v. Calkula Props., Inc., 150 AD3d 1295, 1296).Accordingly, the Supreme Court should have denied that branch of Hector’s motion which was pursuant to CPLR 3211(a)(3) to dismiss the complaint insofar as asserted against him on the ground that the plaintiff lacked standing.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Baruch Lebovits, ap, v. Moshe Friedman, res — (Index No. 32098/14)Levine & Associates, P.C., Scarsdale, NY (Michael Levine of counsel), for appellant.Barry D. Haberman, New City, NY, for respondent.In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated August 4, 2015, which granted the defendant’s motion, inter alia, for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with costs.The plaintiff alleges that he entered into an oral agreement with the defendant, whereby the plaintiff would convey certain real property he owned to the defendant for no consideration, and the defendant would hold the property in name only until the plaintiff requested it back, at which time the defendant would reconvey the property back to the plaintiff. The parties did not memorialize the agreement in writing, but the defendant signed a handwritten document four days before the property was conveyed to him, stating that the plaintiff’s father owned the property and the defendant had no claim or connection to it.According to the plaintiff, four years after the property was conveyed to the defendant, the plaintiff requested the return of the property, but the defendant refused to convey it back to the plaintiff. The plaintiff then commenced this action, alleging, inter alia, breach of contract. The defendant moved, among other things, for summary judgment dismissing the complaint, arguing, inter alia, that the oral agreement was invalid based on the statute of frauds. The Supreme Court agreed with that argument and granted the defendant’s motion. The plaintiff appeals.Contrary to the plaintiff’s contention, no issues of material fact exist. Although the parties offered differing accounts of the background facts, since the alleged oral agreement concerns the conveyance of real property, which is invalid under the statute of frauds (see General Obligations Law §5-703; Torres v. D’Alesso, 80 AD3d 46, 52), the different accounts of the background facts are irrelevant. The plaintiff’s remaining contentions are without merit. Accordingly, the Supreme Court properly granted the defendant’s motion, inter alia, for summary judgment dismissing the complaint.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.Baruch Lebovits, appellant, v. Moshe Friedman,respondent.(Index No. 32098/14) Motion by the respondent, inter alia, to strike the appellant’s brief and dismiss an appeal from an order of the Supreme Court, Rockland County, dated August 4, 2015, on the ground that the brief improperly raises issues for the first time on appeal. By decision and order on motion of this Court dated May 31, 2016, that branch of the motion which is to strike the appellant’s brief and dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it isORDERED that the branch of the motion which is to strike the appellant’s brief and dismiss the appeal is granted to the extent that those portions of the appellant’s brief pertaining to the statute of frauds, civil trespass/private nuisance, and breach of fiduciary duty arguments are stricken, those portions of the brief have not been considered in the determination of the appeal, and the motion is otherwise denied.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Meir Oster, res, v. Reuven Y. Bluming, ap — (Index No. 1761/15)Appeal from an order of the Supreme Court, Kings County (Martin M. Solomon, J.), dated September 15, 2016. The order denied the defendant’s motion for leave to renew his prior motion pursuant to CPLR 510(1) and 511 to change the venue of the action from Kings County, in effect, to Rockland County, which had been denied in an order of that court dated July 9, 2015, and granted the plaintiff’s cross motion pursuant to CPLR 510(3) to retain venue in Kings County.ORDERED that the order dated September 15, 2016, is affirmed, with costs.On November 30, 2014, the plaintiff was allegedly injured when his vehicle was struck by the defendant’s vehicle in Rockland County. On February 13, 2015, the plaintiff commenced this action to recover damages for personal injuries, placing venue in Kings County based upon his purported residence. In response, the defendant served an answer with a demand to change venue pursuant to CPLR 511(b), and followed up within 15 days with a motion to change venue, in effect, to Rockland County pursuant to CPLR 510(1) and 511, arguing that the plaintiff resided in Rockland County at the time of the commencement of the action and that none of the parties resided in Kings County. In opposition to the defendant’s motion, the plaintiff submitted, inter alia, evidence of his residence in Kings County. The Supreme Court denied the defendant’s motion.After the plaintiff’s deposition was conducted, the defendant moved for leave to renew his prior motion to change the venue of the action from Kings County, in effect, to Rockland County. Relying on the plaintiff’s deposition testimony, the defendant contended that the plaintiff was merely temporarily staying at the apartment of his brother-in-law in Kings County at the time of the commencement of the action, but not with a bona fide intent to retain the place as a residence for some length of time and with some degree of permanency. The plaintiff cross-moved pursuant to CPLR 510(3) to retain venue in Kings County based on the convenience of his treating physician. In the papers filed in reply and in opposition to the cross motion, the defendant failed to raise any argument in opposition to the cross motion or to assert that any of his trial witnesses would be inconvenienced by traveling to Kings County. The Supreme Court denied the defendant’s motion for leave to renew and granted the plaintiff’s cross motion to retain venue in Kings County. The defendant appeals.The Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion to retain venue in Kings County based upon “the convenience of material witnesses and the ends of justice” (CPLR 510[3]), and properly denied the defendant’s motion for leave to renew. In support of his cross motion, the plaintiff submitted the affirmation of his treating orthopedist, who maintained a medical practice in Manhattan. The orthopedist disclosed the facts underlying his proposed testimony, stated that he was willing to testify, and asserted that he would be greatly inconvenienced if the venue of the action was conducted in Rockland County rather than in Kings County (see Xhika v. Rocky Point Union Free Sch. Dist., 125 AD3d 646, 647; Mavrakis v. Waldbaums, Inc., 302 AD2d 501, 502; O’Brien v. Vassar Bros. Hosp., 207 AD2d 169, 172-173; Weissmandl v. Murray Walter, Inc., 147 AD2d 474; Messinger v. Festa, 94 AD2d 792, 792-793). In opposition, the defendant failed to offer any evidence that his trial witnesses would be inconvenienced by traveling to Kings County (see Xhika v. Rocky Point Union Free Sch. Dist., 125 AD3d at 647).ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.Town of North East, res, v. Erasmo Vitiello, et al., ap — (Index No. 6041/10)In an action for injunctive relief, the defendants appeal from a judgment of the Supreme Court, Dutchess County (Brands, J.), dated April 9, 2015, which, after a nonjury trial, and upon a decision dated January 21, 2015, inter alia, permanently enjoined and restrained the defendants and their successors and assigns from using, occupying, or permitting the use and occupancy of all or any portion of a residence located on property owned by the defendants in the Town of North East until such time as a certificate of occupancy is issued by the plaintiff in accordance with the requirements of the Town Code of the Town of North East and a decision of the Town of North East Zoning Board of Appeals dated April 28, 2005.ORDERED that the judgment is affirmed, with costs.The defendants constructed a residence on property they owned in the Town of North East. Following the denial of an application for a certificate of occupancy, the defendants applied to the Town of North East Zoning Board of Appeals (hereinafter the ZBA) for a variance to allow the issuance of a certificate of occupancy for the residence without meeting certain requirements regarding direct access to, or road frontage on, a public street. By decision dated April 28, 2005, the ZBA granted the variance subject to specified conditions. The defendants did not challenge that decision. Thereafter the plaintiff commenced this action to enjoin the defendants from occupying or otherwise using the residence until such time as a certificate of occupancy was issued. The Supreme Court, inter alia, granted judgment in favor of the plaintiff, and the defendants appeal.Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law (see Town Law §§135, 268; Hasson v. S.B.J. Assoc., LLC, 117 AD3d 904, 905; Town of Brookhaven v. Mascia, 38 AD3d 758, 759). Here, the plaintiff established its entitlement to a permanent injunction, where the evidence at trial demonstrated that the ZBA granted the defendants a variance to allow the issuance of a certificate of occupancy subject to specified conditions, and that the defendants failed to satisfy those conditions. In particular, a certificate of occupancy had not been issued, and the defendants were occupying the residence in violation of sections of the Town Code of the Town of North East which required the issuance of a certificate of occupancy before any building or structure may be used or occupied (see Town Code of the Town of North East former §§38-10, 98-60).The defendants’ remaining contentions are without merit.DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Balkin, J.P.; Sgroi, Cohen and Duffy, JJ.Eva Cervantes, etc., ap, v. John A. McDermott, et al., res — (Index No. 601090/13)Motion by the respondents for leave to reargue an appeal from an order of the Supreme Court, Nassau County, dated January 15, 2015, which was determined by decision and order of this Court dated July 26, 2017.Upon the papers filed in support of the motion and the papers filed in opposition thereto, it isORDERED that the motion is granted and, upon reargument, the decision and order of this Court dated July 26, 2017 (see Cervantes v. McDermott, 152 AD3d 739), is recalled and vacated, and the following decision and order is substituted therefor:Albert Zafonte, Jr. (Richard Paul Stone, New York, NY, of counsel), for appellant.Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Judy C. Selmeci and I. Elie Herman of counsel), for respondents.Appeal from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), dated January 15, 2015. The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident.ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the plaintiff’s infant did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident is denied.On April 20, 2012, the plaintiff’s infant, a pedestrian, was struck by a motor vehicle driven by the defendant John McDermott and owned by the defendant MUZAK, LLC (hereinafter together the defendants). The plaintiff, on behalf of the infant, commenced the instant action against the defendants. The defendants moved for summary judgment on the grounds that they were not liable for the infant’s injuries, and, alternatively, that the infant did not sustain a serious injury within the meaning of Insurance Law §5102(d). In an order dated January 15, 2015, the Supreme Court denied that branch of the defendants’ motion which was for summary judgment on the issue of liability, but granted that branch of their motion which was for summary judgment dismissing the complaint on the ground that the infant did not sustain a serious injury. The plaintiff appeals.The defendants failed to meet their prima facie burden of showing that the infant did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 NY2d 345; Gaddy v. Eyler, 79 NY2d 955, 956-957). The defendants failed to adequately address the plaintiff’s claims, set forth in the bills of particulars, that the infant sustained a serious injury to the cervical region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law §5102(d) (see Staff v. Yshua, 59 AD3d 614). Since the defendants did not sustain their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853; Che Hong Kim v. Kossoff, 90 AD3d 969). Therefore, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint on the ground that the infant did not sustain a serious injury within the meaning of Insurance Law §5102(d) as a result of the subject accident.The alternative ground for affirmance presented by the defendants (see Parochial Bus Systems v. Board of Educ. of the City of N.Y., 60 NY2d 539) is without merit. Contrary to the defendants’ contention, they failed to establish their prima facie entitlement to judgment as a matter of law on the issue of liability, as they failed to demonstrate the absence of triable issues of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Goulet v. Anastasio, 148 AD3d 783, 784). Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment on the issue of liability.BALKIN, J.P., SGROI, COHEN and DUFFY, JJ., concur.By Balkin, J.P.; Leventhal, Chambers and Miller, JJ.Deutsche Bank National Trust Company, etc., res, v. Anthony Iarrobino ap, et al., def — (Index No. 130309/10)Appeals from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated January 6, 2016, and a judgment of foreclosure and sale of that court dated March 6, 2017. The order, upon a decision of that court (Edward V. Corrigan, R.) dated June 1, 2015, made after a hearing, inter alia, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the defendants Anthony Iarrobino and Antonina Iarrobino, a/k/a Anthonina Iarrobino, and for an order of reference, and denied the cross motion of the defendants Anthony Iarrobino and Antonina Iarrobino, a/k/a Anthonina Iarrobino, pursuant to CPLR 3211(a)(3) and CPLR 3212 to dismiss the complaint insofar as asserted against them for lack of standing. The judgment, upon the order, inter alia, directed the sale of the subject property.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,ORDERED that one bill of costs is awarded to the plaintiff.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1]).The plaintiff commenced this action against Anthony Iarrobino and Antonina Iarrobino, a/k/a Anthonina Iarrobino (hereinafter together the Iarrobino defendants), among others, to foreclose a mortgage secured by certain real property located in Staten Island. In September 2013, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the Iarrobino defendants, and for an order of reference. The Iarrobino defendants opposed the motion and cross-moved pursuant to CPLR 3211(a)(3) and CPLR 3212 to dismiss the complaint insofar as asserted against them for lack of standing. The Supreme Court referred the matter to a referee to hear and determine the issue of standing. Thereafter, upon the referee’s decision dated June 1, 2015, made after a hearing, the court, inter alia, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against the Iarrobino defendants and for an order of reference, and denied the Iarrobino defendants’ cross motion. By judgment of foreclosure and sale dated March 6, 2017, in favor of the plaintiff, the court, inter alia, directed the sale of the property. The Iarrobino defendants appeal.Contrary to the Iarrobino defendants’ contention, the Supreme Court properly granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against them and for an order of reference. ”Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default” (Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 689; see Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d 683, 684; Deutsche Bank Natl. Trust Co. v. Abdan, 131 AD3d 1001, 1002). Additionally, where, as here, standing is put into issue by a defendant, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 AD3d 725; Wells Fargo Bank, N.A. v. Arias, 121 AD3d 973, 973-974). A plaintiff in a mortgage foreclosure action has standing where it is the holder or assignee of the underlying note at the time the action is commenced (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355, 361; U.S. Bank N.A. v. Handler, 140 AD3d 948, 949). Either a written assignment of the underlying note or the physical delivery of the note, properly endorsed, is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Bank of Am., N.A. v. Martinez, 153 AD3d 1219; Deutsche Bank Natl. Trust Co. v. Brewton, 142 AD3d at 685).Here, the plaintiff established that it had standing by demonstrating that it had physical possession of the original note, properly endorsed, at the time the action was commenced (see Bank of Am., N.A. v. Martinez, 153 AD3d 1219; Bank of Am., N.A. v. Barton, 149 AD3d 676, 678; U.S. Bank N.A. v. Cruz, 147 AD3d 1103, 1104; PennyMac Corp. v. Chavez, 144 AD3d 1006, 1007). Additionally, the plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and the affidavit of a vice president of its loan servicer, attesting to the Iarrobino defendants’ default in payment, and in response, the Iarrobino defendants failed to raise a triable issue of fact (see Bank of Am., N.A. v. Barton, 149 AD3d at 678).The Iarrobino defendants’ remaining contentions either are without merit or need not be reached in light of our determination.BALKIN, J.P., LEVENTHAL, CHAMBERS and MILLER, JJ., concur.By Rivera, J.P.; Cohen, Miller and Barros, JJ.MATTER of Dorothy A. Dorney, res, v. Jayco, Inc., ap — (Index No. 51770/16)In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated January 13, 2016, issued pursuant to General Business Law §198-a, Jayco, Inc., appeals from (1) an order of the Supreme Court, Dutchess County (Rosa, J.), dated October 13, 2016, which, inter alia, granted the petition, and (2) a judgment of the same court entered November 14, 2016, which, upon the order, is in favor of the petitioner and against it in the total sum of $74,260.ORDERED that the appeal from the order is dismissed; and it is further,ORDERED that the judgment is affirmed; and it is further,ORDERED that one bill of costs is awarded to the petitioner.The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).The petitioner requested arbitration pursuant to the New Car Lemon Law (see General Business Law §198-a; hereinafter the Lemon Law) based upon her claims, inter alia, that a motor home that she purchased which had been manufactured by the appellant had major mechanical problems. At the hearing before the arbitrator, the petitioner presented evidence that the motor home was out of service for more than 30 days, and that the petitioner contacted, among others, the appellant and attempted multiple times to have the vehicle repaired. The arbitrator found that the vehicle was primarily used for personal, family, or household purposes, and that the vehicle’s mechanical problem substantially impaired the value of the vehicle to the petitioner, and was not the result of the petitioner’s abuse, neglect, or unauthorized modification or alteration of the vehicle (see General Business Law §198-a[n][4]). In addition, the arbitrator found that the appellant “failed to inform the consumer of the special notification requirements” of the Lemon Law (see General Business Law §198-a[n][8][B]). The arbitrator awarded the petitioner a full refund. When the appellant failed to pay the arbitration award, the petitioner commenced this proceeding pursuant to CPLR article 75 against the appellant to confirm the arbitration award. The appellant opposed the petition, and moved to vacate the arbitration award. The Supreme Court, inter alia, granted the petition, and awarded judgment to the petitioner.“Under CPLR 7511, an [arbitration] award may be vacated only if (1) the rights of a party were prejudiced by corruption, fraud or misconduct in procuring the award, or by the partiality of the arbitrator; (2) the arbitrator exceeded his or her power or failed to make a final and definite award; or (3) the arbitration suffered from an unwaived procedural defect” (Hackett v. Milbank, Tweed, Hadley & McCloy, 86 NY2d 146, 154-155; see CPLR 7511[b][1]; Matter of BMW of N. Am., LLC v. Burgos, 143 AD3d 980, 981). ”Where, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious” (Matter of BMW of N. Am., LLC, 143 AD3d at 981 [internal quotation marks omitted]; see Matter of Djafari v. BMW of N. Am., LLC, 119 AD3d 860, 860).Contrary to the appellant’s contention, the arbitration award was not based solely upon the arbitrator’s finding that the appellant failed to inform the petitioner of the special notification requirements. The appellant failed to establish that the arbitration award lacked evidentiary support, or that the arbitrator exceeded his authority in awarding the petitioner a refund pursuant to the Lemon Law (see General Business Law §198-a[n][4]).Accordingly, the Supreme Court properly granted the petition.RIVERA, J.P., COHEN, MILLER and BARROS, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Wesner Pierre, ap — (Ind. No. 14-00397)Appeal by the defendant from a judgment of the Supreme Court, Rockland County (William A. Kelly, J.), rendered November 18, 2015, convicting him of arson in the third degree, assault in the second degree, criminal possession of a weapon in the third degree, and criminal mischief in the fourth degree, after a nonjury trial, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s sole contention on appeal is that his statement to police made on November 20, 2014, was taken in violation of his right to counsel. This contention is academic, as that statement was suppressed after a pretrial hearing and was not used at trial (see People v. Pearson, 93 AD3d 1343; People v. Gilot, 20 AD3d 489).AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Rivera, J.P.; Cohen, Hinds-Radix and Brathwaite Nelson, JJ.Jamilah Gani, res, v. New York City Transit Authority appellants def — (Index No. 12829/13 )In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Genovesi, J.), dated November 18, 2016, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them.ORDERED that the order is affirmed insofar as appealed from, with costs.In 2012, the plaintiff, a passenger on a bus, allegedly was thrown to the floor and from the front to the middle of the bus when it made a sudden and violent stop. The plaintiff brought this action to recover damages for personal injuries against, among others, the defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (hereinafter together the NYCTA defendants). During the pendency of the action, the NYCTA defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, submitting, among other things, a copy of the plaintiff’s deposition testimony. The Supreme Court denied that branch of the motion, and the NYCTA defendants appeal.To prevail on a cause of action alleging that a common carrier was negligent in stopping a bus, a plaintiff must prove that the stop was unusual and violent, rather than merely one of the sort of “jerks and jolts commonly experienced in city bus travel” (Urquhart v. New York City Tr. Auth., 85 NY2d 828, 830; see Black v. County of Dutchess, 87 AD3d 1097, 1098). Moreover, a plaintiff may not satisfy that burden of proof merely by characterizing the stop as unusual and violent (see Urquhart v. New York City Tr. Auth., 85 NY2d at 829-830; Burke v. MTA Bus Co., 95 AD3d 813; Gioulis v. MTA Bus Co., 94 AD3d 811, 812).However, in seeking summary judgment dismissing such a cause of action, common carriers have the burden of establishing, prima facie, that the stop was not unusual and violent. That burden may be satisfied by the plaintiff’s deposition testimony as to how the accident occurred (see Alandette v. New York City Tr. Auth., 127 AD3d 896, 897; Burke v. MTA Bus Co., 95 AD3d at 813; Guadalupe v. New York City Tr. Auth., 91 AD3d 716, 717; Black v. County of Dutchess, 87 AD3d at 1098-1099).Here, the plaintiff testified at her deposition that she was propelled to the floor and from the front to the middle of the bus. This testimony raised a triable issue of fact as to whether the stop at issue was unusual and violent, as opposed to whether the stop involved only the normal jerks and jolts commonly associated with city bus travel (see Urquhart v. New York City Tr. Auth., 85 NY2d at 830; Black v. County of Dutchess, 87 AD3d at 1098-1099). Since the NYCTA defendants did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition thereto were sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324; Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).Accordingly, the Supreme Court properly denied that branch of the NYCTA defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them.RIVERA, J.P., COHEN, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.By Dillon, J.P.; Balkin, Hall and Lasalle, JJ.Jerry A. Grasso, Jr., ap, v. New York State Thruway Authority, res — (Action No. 1)John Sullivan, Jr., ap, v. New York State Thruway Authority, res — (Action No. 2)Cathy Marl, ap, v. New York State Thruway Authority, res — (Action No. 3)Louis Centolanza, ap, v. New York State Thruway Authority, res — (Action No. 4)(Claim Nos. 109470, 109471, 109472, 109473)In four related claims to recover damages for personal injuries, the claimants appeal, as limited by their brief, from so much of an order of the Court of Claims (Mignano, J.), dated June 22, 2015, as granted the defendant’s motion for summary judgment dismissing the claims.ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant’s motion which was for summary judgment dismissing the claims alleging a violation of Labor Law §200 and common-law negligence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs payable to the appellants.In June 2004, the claimants filed claims in the Court of Claims against, among others, the New York State Thruway Authority (hereinafter NYSTA), alleging violations of Labor Law §§200 and 241(6) and common-law negligence. The claims arose out of injuries the claimants allegedly sustained in March 2004 when they were working as employees of the general contractor on an NYSTA highway construction project. In March 2007, the claimants commenced an action in the Supreme Court, Orange County, against an engineering firm and an environmental consulting firm that worked on the project (hereinafter together the engineering defendants). The Supreme Court action involved similar allegations based on the same set of facts. In an order dated December 16, 2014, the Supreme Court, inter alia, granted the engineering defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.Thereafter, NYSTA moved in the Court of Claims for summary judgment dismissing these claims on the ground, among others, that they were barred by the doctrine of collateral estoppel based on the granting of summary judgment to the engineering defendants in the Supreme Court action. The Court of Claims granted the defendant’s motion for summary judgment dismissing the claims, and the claimants appeal.“The doctrine of collateral estoppel… precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 NY2d 494, 500; see Tydings v. Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199; Buechel v. Bain, 97 NY2d 295, 303-304; Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 350; D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664). The “party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (Kaufman v. Eli Lily & Co., 65 NY2d 449, 456).In the Supreme Court action, the court awarded summary judgment to the engineering defendants dismissing the cause of action alleging a violation of Labor Law §241(6) on the ground that it was not supported by a specific and relevant Industrial Code provision that would form a predicate for liability under Labor Law §241(6). We have affirmed that determination in the companion appeal (see Marl v. Liro Engineers, Inc., __ AD3d __ [decided herewith]). In the Court of Claims, NYSTA, in support of its motion, submitted proof that the Labor Law §241(6) and related Industrial Code issues that were determined adversely to the plaintiffs in the Supreme Court action were identical to the Labor Law §241(6) and Industrial Code issues raised by the claimants in the Court of Claims. Further, the claimants failed to establish that they did not have a full and fair opportunity to litigate these issues in the Supreme Court action (see Rodenheiser v. State of New York, 47 AD3d 788; Becker v. State of New York, 274 AD2d 532). Accordingly, the Court of Claims properly granted that branch of NYSTA’s motion which was for summary judgment dismissing the claims alleging a violation of Labor Law §241(6).The Court of Claims also properly granted that branch of NYSTA’s motion which was for summary judgment dismissing the claims for punitive damages. Although the claimants alleged in their supplemental bills of particulars that awards of punitive damages were warranted, “the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State or its… subdivisions” (Sharapata v. Town of Islip, 56 NY2d 332, 334).However, the Court of Claims erred in granting that branch of NYSTA’s motion which was for summary judgment dismissing the claims alleging a violation of Labor Law §200 and common-law negligence. Initially, the court erred in determining that those claims were barred by the doctrine of collateral estoppel. Whereas the engineering defendants in the Supreme Court action were contractors or subcontractors, NYSTA is the owner of the construction site where the injuries are alleged to have occurred. The evidence submitted by the engineering defendants in the Supreme Court action establishing their entitlement to judgment as a matter of law dismissing the Labor Law §200 and common-law negligence causes of action—that they lacked supervision or control over the performance of the work—is distinct from the evidence that NYSTA would have to submit in support of a motion for summary judgment dismissing the Labor Law §200 and common-law negligence claims in the Court of Claims. There are issues unique to NYSTA as a property owner involving creation and actual and constructive notice of the hazard, and NYSTA’s compliance with the terms of a 2002 consent order, to which it was a party. The claimants did not have a full and fair opportunity to litigate these issues in the Supreme Court action as NYSTA was not a party to the Supreme Court action. Since the elements required for the application of collateral estoppel to the Labor Law §200 and common-law negligence claims were not established in the Court of Claims, those claims were not subject to dismissal on that ground (see Kaufman v. Eli Lily & Co., 65 NY2d at 456).In addition, contrary to NYSTA’s contention, it is not shielded from liability by the governmental function immunity defense. This defense “provides immunity for the exercise of discretionary authority during the performance of a governmental function” (Turturro v. City of New York, 28 NY3d 469, 479). However, “[g]overnmental entities acting in furtherance of a proprietary function will be subject to liability under ordinary principles of tort law” (Heeran v. Long Is. Power Auth. [LIPA], 141 AD3d 561, 563, affd __ NY3d __, 2018 NY Slip Op 01148 [2018]). While quintessential governmental functions include police and fire protection (see id. at 563), “[a] government entity performs a purely proprietary role when its ‘activities essentially substitute for or supplement traditionally private enterprises’” (Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425, quoting Sebastian v. State of New York, 93 NY2d 790, 793). Thus, “proprietary functions include, for example, the maintenance of roads and highways in a reasonably safe condition” (Heeran v. Long Is. Power Auth. [LIPA], 141 AD3d at 563) and the ownership and care relating to buildings when the governmental entity acts as a landlord (see Miller v. State of New York, 62 NY2d 506, 513). Moreover, the ownership and operation of a landfill has been deemed a proprietary function, subjecting the governmental entity to general principles of tort law (see Dangler v. Town of Whitestown, 241 AD2d 290, 294).The relevant inquiry in determining whether a governmental agency is acting within a governmental or proprietary capacity is to examine “‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred… , not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred’” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447, quoting Weiner v. Metropolitan Transp. Auth., 55 NY2d 175, 182). Here, NYSTA, as the owner of real property, including a landfill requiring remediation, engaging in a highway construction project, was acting within a proprietary capacity and was thus subject to tort liability.Turning to the underlying merits of the Labor Law §200 and common-law negligence claims, “Labor Law §200 is a codification of the common-law duty of property owners and general contractors to provide workers with a safe place to work” (Chowdhury v. Rodriguez, 57 AD3d 121, 127). Thus, liability under this statute is governed by common-law negligence principles (see id. at 128). There are “two broad categories of actions that implicate the provisions of Labor Law §200″ (Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d 47, 50-51). The first involves worker injuries arising out of alleged dangerous or defective conditions of the premises where the work is performed (see id. at 51; Chowdhury v. Rodriguez, 57 AD3d at 128). ”For liability to be imposed on the property owner, there must be evidence showing that the property owner either created a dangerous or defective condition, or had actual or constructive notice of it without remedying it within a reasonable time” (Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d at 51). ”The second broad category of actions under Labor Law §200 involves injuries occasioned by the use of dangerous or defective equipment at the job site” (id.). The property owner will only be liable under this category if it possessed the authority to supervise or control the means and methods of the work (see id.; Ortega v. Puccia, 57 AD3d 54, 61). The requisite supervision or control exists for Labor Law §200 purposes when the property owner bears responsibility for the manner in which the work is performed (see Marquez v. L & M Dev. Partners, Inc., 141 AD3d 694, 698). ”The determinative factor is whether the party had ‘the right to exercise control over the work, not whether it actually exercised that right’” (Johnsen v. City of New York, 149 AD3d 822, 822, quoting Williams v. Dover Home Improvement, 276 AD2d 626, 626).“[I]n rare cases, both theories of liability may be implicated” (Forssell v. Lerner, 101 AD3d 807, 808). ”[W]hen an accident is alleged to involve defects in both the premises and the equipment used at the work site, the property owner moving for summary judgment with respect to causes of action alleging a violation of Labor Law §200 is obligated to address the proof applicable to both liability standards” (Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d at 52; see Poalacin v. Mall Props., Inc., 155 AD3d 900). ”The property owner is entitled to summary judgment only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” (Reyes v. Arco Wentworth Mgt. Corp., 83 AD3d at 52).Here, the claimants allege both theories of liability. Regarding whether NYSTA had the authority to exercise supervision or control over the performance of the claimants’ work, we find that it met its prima facie burden of demonstrating that it had no such authority (see Koat v. Consolidated Edison of N.Y., Inc., 98 AD3d 474, 475-476). In opposition, however, the claimants raised a triable issue of fact regarding NYSTA’s involvement at the work site (see Treile v. Brooklyn Tillary, LLC, 120 AD3d 1335, 1339; Ortega v. Puccia, 57 AD3d at 63). Regarding the alleged dangerous condition of the work site itself, NYSTA, in support of its motion, argued only that it could not be held liable for failing to remediate soil containing chemicals because the claimants’ job was to remedy that very condition. We find that NYSTA failed to demonstrate, prima facie, that the claimants were injured from defective or hazardous conditions that were part of or inherent in the work they were performing (see Monahan v. New York City Dept. of Educ., 47 AD3d 690, 691; In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F Supp 3d 409, 426 [SD NY]), or from conditions that were readily observable (see Bombero v. NAB Const. Corp., 10 AD3d 170, 171; In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F Supp 3d at 426). In addition, the claimants raised a triable issue of fact as to whether their injuries were caused by a hazardous condition that they were not specifically hired to remediate (see In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 44 F Supp 3d at 426). Indeed, whether a dangerous condition is within the scope of the work an employee or contractor is hired to perform is a fact-specific inquiry (see Scott v. Redl, 43 AD3d 1031, 1032).NYSTA’s remaining contentions are without merit.DILLON, J.P., BALKIN, HALL and LASALLE, JJ., concur.By Balkin, J.P.; Austin, Sgroi and Brathwaite Nelson, JJ.MATTER of Deshawn R. (Anonymous). Administration for Childrens Services, petitioner- res; Duchesne R. (Anonymous), ap, et al., res — (Proceeding No. 1)MATTER of Duchnah R. (Anonymous). Administration for Childrens Services, petitioner- res; Duchesne R. (Anonymous), ap, et al., res — (Proceeding No. 2) (Docket Nos. N-18952-13, N-18953-13)Appeal from an order of disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated March 15, 2016. The order of disposition, inter alia, released the child Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children’s Services until May 15, 2016, and continued the placement of the child Deshawn R. in the custody of the Commissioner of the Administration for Children’s Services until the completion of the next permanency hearing. The appeal from the order of disposition brings up for review an order of fact-finding of that court dated November 16, 2015, which, after a hearing, found that the father neglected Duchnah R. and derivatively neglected Deshawn R.ORDERED that the appeal from so much of the order of disposition as released the child Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children’s Services until May 15, 2016, is dismissed as academic, without costs or disbursements; and it is further,ORDERED that the order of disposition is affirmed insofar as reviewed, without costs or disbursements.The appeal from so much of the order of disposition as released Duchnah R. to the custody of the nonrespondent mother under the supervision of the Administration for Children’s Services until May 15, 2016, must be dismissed as academic, as that portion of the order has expired (see Matter of Jemima M. [Aura M.], 151 AD3d 862; Matter of Justin P. [Damien P.], 148 AD3d 903). However, the appeal from that portion of the order of disposition which brings up for review the finding that the father neglected Duchnah R. is not academic, since the adjudication of neglect constitutes a permanent and significant stigma which might indirectly affect the father’s status in future proceedings (see Matter of Jemima M. [Aura M.], 151 AD3d 862; Matter of Justin P. [Damien P.], 148 AD3d 903).The petitioner commenced these related proceedings pursuant to Family Court Act article 10 alleging, inter alia, that the father neglected the child Duchnah R. (hereinafter Duchnah) and derivatively neglected the child Deshawn R. (hereinafter Deshawn). Following a hearing, the Family Court found, among other things, that the father neglected Duchnah and derivatively neglected Deshawn. The father appeals.At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing, by a preponderance of the evidence, that the subject child has been abused or neglected (see Family Ct Act §1046[b][i]; Matter of Ena S.Y. [Martha R.Y.---Antonio S.], 140 AD3d 778, 780; Matter of Kyra S. [Kirtan D.S.], 128 AD3d 970, 971). In reviewing such a determination, the Family Court’s assessment of the credibility of witnesses is entitled to considerable deference (see Matter of Mohammed J. [Mohammed Z.], 121 AD3d 994, 994; Matter of Joseph O., 28 AD3d 562, 563). Based upon our review of the record, the court’s determination that the father neglected Duchnah is supported by a preponderance of the evidence (see Matter of Ishaq B. [Lea B.], 121 AD3d 889, 890; Matter of Amerriah S. [Kadiatou Y.], 100 AD3d 1006, 1007; Matter of Jocelyn D. [Maria D.], 100 AD3d 993; Matter of Jonathan W., 17 AD3d 374, 375). Furthermore, the father’s neglect of Duchnah demonstrated a fundamental defect in his understanding of his parental duties sufficient to support the finding of derivative neglect with respect to Deshawn (see Family Ct Act §1046[a][i]; Matter of Ishaq. B. [Lea B], 121 AD3d at 890; Matter of Aliciya R., 56 AD3d 784, 785).BALKIN, J.P., AUSTIN, SGROI and BRATHWAITE NELSON, JJ., concur.By Chambers, J.P.; Cohen, Maltese and Barros, JJ.MATTER of Kenneth A. Auerbach, etc. ap, v. Suffolk County Committee of the Conservative Party of New York State, et al., res-res, et al., res — (Index No. 9713/16)Appeal from an order of the Supreme Court, Suffolk County (J. Emmett Murphy, J.), dated March 13, 2017. The order granted the motion of the Suffolk County Committee of the Conservative Party of New York State, the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State, and the individual executive members and committee chairmen named as respondents in the proceeding to dismiss the petition filed pursuant to Election Law §16-102.ORDERED that the order is reversed, on the law, with costs, and the motion to dismiss the petition is denied.On September 13, 2016, a primary election was held in which voters registered in the Conservative Party of New York State (hereinafter the Conservative Party) elected members to the respondent Suffolk County Committee of the Conservative Party of New York State (hereinafter the 2016 County Committee). An organizational meeting was required to be held within 20 days after the election, pursuant to which the 2016 County Committee was required to elect a new Executive Committee of the Suffolk County Committee of the Conservative Party of New York State (hereinafter the 2016 Executive Committee).Vacancies remained in the 2016 County Committee due to tie votes or instances where no candidates received any votes in certain contested election districts. On September 16, 2016, the respondent Frank Tinari, who was the Chairman of the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State that was formed in 2014 (hereinafter the 2014 Executive Committee), issued a notice for a meeting of the 2014 Executive Committee for the purpose of filling these membership vacancies. The meeting was scheduled for September 23, 2016. At the meeting, the 2014 Executive Committee filled the vacancies in the 2016 County Committee. On September 28, 2016, the 2016 County Committee held its organizational meeting. On September 29, 2016, the respondent Michael E. Torres, as Secretary of the 2016 County Committee, filed a certificate of nomination with respect to members who were elected to the 2016 Executive Committee.The petitioner Kenneth A. Auerbach, as a conservative committeeman and nominated candidate for the position of Chairman of the Suffolk County Committee of the Conservative Party and the other individual petitioners, as conservative committeemen in certain election districts of the Town of Brookhaven, commenced this proceeding pursuant to Election Law §16-102 against the 2014 Executive Committee and others. They alleged, inter alia, that the 2014 Executive Committee violated the Election Law by filling the vacancies in the 2016 County Commitee. They sought a judgment declaring the organizational meeting and the certificate of nomination invalid. Certain respondents moved to dismiss the petition. The Supreme Court granted the motion, and the petitioners appeal.Contrary to the Supreme Court’s determination, Election Law §6-148 does not confer upon the Executive Committee of the Suffolk County Committee of the Conservative Party of New York State the authority to fill vacancies in the county committee. Rather, that statute relates to filling vacancies in designations and nominations of candidates, not members of a political party’s county committee. The filling of vacancies in a political party’s county committee is governed by Election Law §2-118, which provides, in pertinent part, that, in the case of a failure to elect a member of the committee, the vacancy created thereby shall be filled by the remaining members of the committee. Therefore, only the 2016 County Committee had the authority to fill the subject vacancies.With the election of the 2016 County Committee in the primary election, the county committee that was elected in 2014 had no further official authority, and no rule of that county committee could extend the authority of its executive committee to continue to exercise functions in substantial matters after the members of the 2016 County Committee had been elected (see Matter of Brocato v. Tinari, 157 AD3d 782; see also Matter of Torchin v. Cohen, 286 NY 544; Matter of Mazur v. Kelly, 170 AD2d 1037, 1038; Matter of Bauman v. Fusco, 21 AD2d 470, 472). The filling of vacancies for the 2016 County Committee was a “substantial matter,” and therefore the actions of the 2014 Executive Committee in filling vacancies in the 2016 County Committee were improper (see Matter of Brocato v. Tinari,157 AD3d 782; Matter of Mazur v. Kelly, 170 AD2d at 1038).Accordingly, the Supreme Court should have denied the motion to dismiss the petition.CHAMBERS, J.P., COHEN, MALTESE and BARROS, JJ., concur.By Scheinkman, P.J.; Duffy, Connolly and Christopher, JJ.PEOPLE, etc., res, v. Roshan Samuel, ap — (Ind. No. 15-00263)Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Robert A. Neary, J.), rendered April 20, 2016, convicting him of disseminating indecent material to minors in the first degree (two counts), upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt of disseminating indecent material to minors in the first degree (two counts) beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilty of disseminating indecent material to minors in the first degree (two counts) was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).Contrary to the defendant’s contentions, the Supreme Court properly limited the scope of the defendant’s cross-examination of the victim (see CPL 60.43). Moreover, the court’s evidentiary rulings were proper in all respects.SCHEINKMAN, P.J., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Mark Maragh, ap — (Ind. No. 5043/12)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Daniel K. Chun, J.), rendered August 6, 2014, convicting him of criminal possession of a weapon in the third degree and unlawful possession of marijuana, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (William M. Harrington, Jr.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the Supreme Court properly denied that branch of his omnibus motion which was to suppress physical evidence. The People established that the police were confronted with an emergency situation in which there was an immediate need for their assistance for the protection of life, the search was not motivated by an intent to arrest and seize evidence, and there was a reasonable basis, approximating probable cause, to associate the emergency with the area to be searched (see People v. Mitchell, 39 NY2d 173, 177-178; People v. Timmons, 54 AD3d 883, 884). The evidence at the suppression hearing established that the officers were responding to a report of a dispute involving a gun between two persons in the back room of a house. After ringing the doorbell and knocking on the front door of the house and receiving no answer, the officers entered the unlocked front door of the house. Under these circumstances, the officers’ entry was justified by the emergency doctrine (see People v. Timmons, 54 AD3d at 884; People v. Robinson, 225 AD2d 399, 399-400; People v. Love, 204 AD2d 97, 97-98, affd 84 NY2d 917; People v. Lewis, 108 AD2d 872, 872-873).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Dillon, J.P.; Duffy, Connolly and Christopher, JJ.MATTER of William Almodovar, pet, v. Thomas Griffin, etc., res — (Index No. 1150/15)Proceeding pursuant to CPLR article 78 to review a determination of the respondent Superintendent of the Green Haven Correctional Facility dated December 2, 2014, which affirmed a determination of a hearing officer dated November 23, 2014, made after a tier II disciplinary hearing, that the petitioner was guilty of violating Institutional Rules of Conduct rule 118.30 (7 NYCRR 270.2[B][19][viii]) and imposed penalties.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, without costs or disbursements.Following a disciplinary hearing, the petitioner, an inmate in the custody of the New York State Department of Corrections and Community Supervision, was found guilty of violating Institutional Rules of Conduct rule 118.30 (7 NYCRR 270.2[B][19][viii]). Upon the respondent’s affirmance of the hearing officer’s determination, the petitioner commenced this proceeding pursuant to CPLR article 78 to challenge that determination.By order dated October 1, 2015, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g). Although the Supreme Court should have disposed of this proceeding by addressing the petitioner’s argument that the determination was affected by an error of law, specifically, that it was rendered in violation of due process requirements (see CPLR 7804[g]), since the full record is now before this Court, we will decide the proceeding on the merits in the interest of judicial economy (see Matter of Burgess v. Bellnier, 138 AD3d 989, 990; Matter of Urena v. Annucci, 134 AD3d 727, 728).Contrary to the petitioner’s contention, he was not deprived of his due process rights to a fair and impartial hearing, nor was there evidence that his guilt and penalty were predetermined. ”The record demonstrates that the hearing was conducted in a fair and impartial manner and that the determination was not the result of any alleged bias on the part of the hearing officer” (Matter of Phillips v. Lee, 115 AD3d 957, 958; see Matter of Harris v. Kaplin, 102 AD3d 692, 693).The misbehavior report and the petitioner’s testimony provided substantial evidence to support the hearing officer’s determination that the petitioner violated the subject disciplinary rule (see Matter of Burgess v. Bellnier, 138 AD3d at 990; Matter of Berkoviz v. Lee, 102 AD3d 866, 867; Matter of Adamson v. Barto, 37 AD3d 597, 598; Matter of Wheeler v. Commissioner of N.Y. State Correctional Servs., 17 AD3d 378, 378).The petitioner’s remaining contentions are unpreserved for review because the petitioner failed to raise them at the hearing or on his administrative appeal (see Matter of Cepeda v. Goord, 39 AD3d 640, 641; Matter of Royster v. Goord, 26 AD3d 503, 505).DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.MATTER of Ted Lochwyn, pet, v. New York State Department of Motor Vehicles, res — (Index No. 80324/14)Proceeding pursuant to CPLR article 78 to review a determination of the New York State Department of Motor Vehicles Appeals Board dated July 24, 2014. The determination confirmed the determination of an administrative law judge dated February 24, 2014, made after a hearing, finding that the petitioner violated Vehicle and Traffic Law §1111(d)(1), and imposing a penalty.ADJUDGED that the determination dated July 24, 2014, is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.The petitioner was charged with riding his bicycle through a red light in violation of Vehicle and Traffic Law §1111(d)(1). An administrative hearing was originally scheduled for October 2013. However, the police officer who issued the ticket (hereinafter the officer) did not appear and the Administrative Law Judge (hereinafter the ALJ) adjourned the hearing. The petitioner did not question the reason for the officer’s absence or object to the ALJ’s granting of the adjournment.At the rescheduled hearing in February 2014, the officer testified that the petitioner, while riding his bicycle, failed to stop for a red light. In addition, the petitioner questioned the officer about the reason for his nonappearance at the first hearing date. When the officer asserted that he could not recall why he was unable to appear, the petitioner moved to dismiss the proceeding on the ground that the officer’s absence was not excused for one of the reasons set forth in 15 NYCRR 124.9 and, therefore, the adjournment had been improperly granted. The ALJ denied the motion to dismiss, noting that the officer’s previous absence had, in fact, been lawfully excused.At the end of the hearing, the ALJ found the defendant guilty of violating Vehicle and Traffic Law §1111(d)(1) and imposed a $250 fine. The New York State Department of Motor Vehicles Appeals Board confirmed the determination. Thereafter, the petitioner commenced this proceeding pursuant to CPLR article 78 to review the determination. The Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g). We now confirm the determination and dismiss the proceeding on the merits.The petitioner failed to challenge the ALJ’s adjournment of the hearing in October 2013 (see Matter of Cepeda v. Goord, 39 AD3d 640). In any event, under the circumstances of this case, the petitioner’s contention that the administrative proceeding should have been dismissed on this ground is without merit (see generally Matter of Nehorayoff v. Mills, 282 AD2d 932, 932; Matter of Nisnewitz v. Board of Regents of Univ. of State of N.Y., 95 AD2d 950, 951; Matter of Davis v. Ambach, 91 AD2d 1113, 1113).Furthermore, the determination that the petitioner violated Vehicle and Traffic Law §1111(d)(1) is supported by substantial evidence and must be confirmed (see e.g. 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180; Matter of D’Antonio v. State of N.Y. Dept. of Motor Vehicles, 73 AD3d 1053, 1053; Matter of Fischer v. Appeals Bd. of N.Y. State Dept. of Motor Vehs., 49 AD3d 643, 644; Matter of Resciniti v. Department of Motor Vehs. of State of N.Y., 255 AD2d 589, 589; Matter of Kahn v. State of N.Y. Dept. of Motor Vehs., 134 AD2d 594, 594).The petitioner’s remaining contentions are without merit.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.Kliger-Weiss Infosystems, Inc., res, v. Ruskin Moscou Faltischek, P.C., ap — (Index No. 606457/14)Appeal from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), entered June 29, 2015. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint or, in the alternative, to dismiss the second and third causes of action as duplicative of the first cause of action.ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendant’s motion which were to dismiss the second and third causes of action as duplicative of the first cause of action, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.In 2001, the plaintiff, Kliger-Weiss Infosystems, Inc. (hereinafter KWI), entered into an agreement (hereinafter the 2001 agreement) to license and market certain software from STS Systems, LTD, a predecessor in interest to Epicor Retail Solutions Corporation (hereinafter Epicor). In relevant part, the 2001 agreement contained a provision providing for automatic one-year renewals of the 2001 agreement (hereinafter the evergreen provision). In 2004, Epicor’s predecessor in interest commenced an action against KWI and others in the United States District Court for the Eastern District of New York (hereinafter the federal action) seeking, inter alia, to terminate the 2001 agreement due to alleged breaches by KWI. In early 2007, KWI retained the defendant to negotiate a settlement of the federal action, which resulted in a settlement agreement (hereinafter the 2007 settlement agreement). KWI alleges that it instructed the defendant to incorporate the evergreen provision into the 2007 settlement agreement, but that the defendant, unbeknownst to KWI, failed to do so.In 2011, Epicor commenced an arbitration proceeding against KWI seeking to terminate the 2007 settlement agreement due to KWI’s alleged uncured breaches. The defendant represented KWI in the arbitration, which resulted in a 2013 determination that the 2007 settlement agreement did not contain an evergreen provision.KWI thereafter commenced the instant action, alleging, inter alia, that the defendant was negligent in failing to advise it that the 2007 settlement agreement did not contain the evergreen provision, and that but for the defendant’s negligent advice, it would not have executed the 2007 settlement agreement and/or would not have incurred the legal expense of defending the arbitration. KWI asserted causes of action sounding in legal malpractice, negligent misrepresentation, and breach of contract. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint or, in the alternative, to dismiss the second and third causes of action as duplicative of the first cause of action. The Supreme Court denied the motion, and the defendant appeals.On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court should accept the alleged facts in the complaint as true and afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d 83, 87-88).To state a cause of action to recover damages for legal malpractice, a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). ”To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (id. at 442).Here, viewing the complaint in the light most favorable to KWI, it sufficiently alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in negotiating the 2007 settlement agreement, and that the defendant’s breach of this duty proximately caused KWI to sustain actual and ascertainable damages (see Escape Airports [USA], Inc. v. Kent, Beatty & Gordon, LLP, 79 AD3d 437). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice.However, the Supreme Court should have granted those branches of the defendant’s motion which were to dismiss the second and third causes of action, which were, respectively, to recover damages for negligent misrepresentation and breach of contract, as duplicative of the legal malpractice cause of action. Those causes of action were duplicative of the legal malpractice cause of action because they arose from the same operative facts and did not seek distinct and different damages (see Thompsen v. Baier, 84 AD3d 1062, 1064; Symbol Tech., Inc. v. Deloitte & Touche, LLP, 69 AD3d 191, 199; Maiolini v. McAdams & Fallon, P.C., 61 AD3d 644, 645; Gelfand v. Oliver, 29 AD3d 736; Shivers v. Siegel, 11 AD3d 447).The defendant’s remaining contention is without merit (see Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 790).MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Ryan Taylor, ap — (Ind. No. 5080/13)Appeal by the defendant from a judgment of the Supreme Court, Kings County (Neil Firetog, J.), rendered December 19, 2014, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, raised in his pro se supplemental brief, upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633). The defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree based upon evidence, inter alia, that the defendant shot the victim in the head once and multiple times in the chest. The defendant was identified by an eyewitness, whose description of the shooter was corroborated by two other witnesses. The defendant also made incriminating statements to, and in the presence of, detectives which statements placed him at the scene of the crime and in possession of a gun, and linked him to a shirt recovered during the investigation which was described by the witnesses as the shirt worn by the shooter. DNA evidence further linked the defendant to the shirt recovered.The defendant contends that certain comments made by the prosecutor during her summation mischaracterized the defense, vouched for the credibility of the eyewitness and detectives, and speculated on matters outside of the evidence, and that these comments deprived him of his due process right to a fair trial. These arguments are unpreserved for appellate review since the defendant failed to object to these comments at trial (see CPL 470.05[2]; People v. Carter, 152 AD3d 786). In any event, the prosecutor’s comments were either fair comment on the evidence and the reasonable inferences to be drawn therefrom, fair response to the defendant’s summation, or permissible rhetorical comment (see People v. Sutton, 151 AD3d 763; see People v. Hawley, 112 AD3d 968).The defendant also failed to preserve for appellate review his contentions that a witness’s testimony regarding DNA analysis was inadmissible because the witness did not perform, supervise, or observe the DNA testing, that a detective was impermissibly allowed to testify from the DD-5 form that he prepared, and that the prosecutor engaged in misconduct (see CPL 470.05[2]). In any event, these contentions are without merit.The defendant’s contention that he received ineffective assistance of counsel is without merit (see People v. Baldi, 54 NY2d 137).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).The defendant’s remaining contentions, including those raised in his pro se supplemental brief, are without merit.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.Alexander Rabinovich, ap, v. Oksana Shevchenko, res — (Index No. 21182/04)Appeal from an order of the Supreme Court, Suffolk County (Marlene L. Budd, J.), dated September 2, 2015. The order, insofar as appealed from, denied, without a hearing, the plaintiff’s motion for a downward modification of his maintenance obligation.ORDERED that the order is affirmed insofar as appealed from, with costs.The plaintiff and the defendant were married in 1997, and divorced by judgment entered July 28, 2011. In the judgment, the defendant was awarded lifetime maintenance in the sum of $5,000 per month. On a prior appeal by the plaintiff, this Court affirmed that provision of the judgment, observing that the defendant was suffering from a medical condition and was unable, for the foreseeable future, to be self-supporting (see Rabinovich v. Shevchenko, 93 AD3d 774, 775). In 2012, the plaintiff moved for a downward modification of his maintenance obligation, the motion was denied without a hearing, and this Court affirmed (see Rabinovich v. Shevchenko, 120 AD3d 786). In 2015, the plaintiff again moved for a downward modification of his maintenance obligation. That motion was denied without a hearing, and the plaintiff now appeals from that portion of the order.Domestic Relations Law §236(B)(9)(b) provides that, in a matrimonial action, the court may modify the maintenance provisions of any prior order or judgment upon a showing of “a substantial change of circumstance… including financial hardship.” The party seeking the modification of a maintenance award has the burden of establishing the existence of a change in circumstances warranting the modification (see Rabinovich v. Shevchenko, 120 AD3d 786; Taylor v. Taylor, 107 AD3d 785, 786; Rooney v. Rooney, 99 AD3d 785). Further, “‘[o]n a motion for downward modification of… maintenance obligations, an evidentiary hearing is necessary only where the proof submitted by the movant is sufficient to show the existence of a genuine issue of fact’” (Schwartz v. Schwartz, 153 AD3d 953, 956, quoting Reback v. Reback, 93 AD3d 652, 652-653).Here, the plaintiff has not demonstrated, prima facie, a substantial change in his financial circumstances from the time the judgment of divorce was entered (see Noren v. Babus, 144 AD3d 762, 764; Rabinovich v. Shevchenko, 120 AD3d 786). Indeed, the plaintiff’s financial circumstances are substantially unchanged from the time he last moved, unsuccessfully, to modify his maintenance obligation. Further, the plaintiff’s mere speculation that the defendant’s medical condition must be resolved by this point, and that she must have regained the ability to be self-supporting, similarly failed to establish, prima facie, a change of circumstances warranting modification. Accordingly, the Supreme Court properly denied, without a hearing, the plaintiff’s motion for a downward modification of his maintenance obligation.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Roman, J.P.; Sgroi, Connolly and Christopher, JJ.Maureen Spencer-Forrest, res-ap, v. Charles J. Forrest, appellant-res — (Index No. 202197/12)Robert A. Ross, Northport, NY, for appellant-respondent.C. Robinson & Associates, LLC, New York, NY (W. Charles Robinson of counsel), for respondent-appellant.Appeal and cross appeal from a judgment of divorce of the Supreme Court, Nassau County (Stacy D. Bennett, J.), entered November 30, 2016. The judgment of divorce, insofar as appealed from, awarded the plaintiff the sum of $30,000 for her interest in the marital residence, failed to provide the defendant with certain credits, and distributed certain property equally between the parties. The judgment of divorce, insofar as cross-appealed from, awarded the plaintiff the sum of only $30,000 for her interest in the marital residence, failed to sanction the defendant for removing certain items from a safe deposit box, and denied the plaintiff an award of maintenance.ORDERED that the judgment of divorce is modified, on the law and in the exercise of discretion, by deleting the provision thereof awarding the plaintiff the sum of $30,000 for her interest in the marital residence, and substituting therefor a provision awarding the plaintiff the sum of $122,500 for her interest in the marital residence; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.The parties were married on March 31, 1984. There were no children of the marriage, but children from each of the parties’ prior marriages resided with the parties in the marital residence during the children’s respective minorities. Both parties were employed for the majority of the marriage, and the plaintiff provided care for the defendant’s children, who were younger and resided in the marital residence longer than her children. The defendant purchased the marital residence prior to the marriage, and transferred the property to himself and the plaintiff as joint tenants in 1989. Other than the marital residence, the parties’ assets were held in their respective names. Both parties contributed to the household expenses, although the defendant contributed a larger sum to household expenses and maintenance of the marital residence, and the plaintiff ceased financial contributions in 2006 or 2007, after she retired.On August 6, 2012, the plaintiff commenced this action for a divorce and ancillary relief. The Supreme Court granted the plaintiff a divorce and held entry of the judgment in abeyance pending determination of the issues of equitable distribution and maintenance. The plaintiff was 68 years old and the defendant was 67 years old at the time of trial. Following trial, the court awarded the plaintiff 20 percent of the appreciation in the value of the marital residence from 1989 through the date of the commencement of the action and otherwise distributed the marital assets equally, aside from the parties’ respective vehicles and personal property in their respective possession. The court declined to award the parties credits sought for assets allegedly secreted or wasted by the other party and denied the plaintiff an award of maintenance. The parties appeal and cross-appeal from stated portions of the judgment.Contrary to the defendant’s contention, the Supreme Court providently exercised its discretion in equally distributing the marital assets other than the marital residence, the parties’ respective vehicles, and personal property in their respective possession. There is a statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, “regardless of the form in which title is held” (Domestic Relations Law §236[B][1][c]; see Domestic Relations Law §236[B][1][d]; Fields v. Fields, 15 NY3d 158, 165). The party seeking to overcome the presumption has the burden of proving that the property in dispute is separate property (see Nadasi v. Nadel-Nadasi, 153 AD3d 1346; Marshall v. Marshall, 91 AD3d 610, 611). Here, there was no written agreement to keep the parties’ finances separate (cf. Domestic Relations Law §236[B][1][d][4]), and the court properly determined that both parties contributed to the marriage as spouse, parent, wage earner, or homemaker, such that equitable distribution of the marital assets held by each party was appropriate (see O’Brien v. O’Brien, 66 NY2d 576, 585; cf. Galvin v. Francis, 20 AD3d 550, 551). While a small portion of the parties’ retirement assets was earned prior to the marriage (see Mesholam v. Mesholam, 11 NY3d 24, 29), under the circumstances of this case, the court providently distributed the entirety of the parties’ retirement assets. The parties stipulated to the values of the assets without delineating the separate property portion thereof, which, in light of the parties’ similar employment and incomes prior to the marriage, would have been roughly equivalent (see Wesche v. Wesche, 77 AD3d 921, 923-924).“The trial court is vested with broad discretion in making an equitable distribution of marital property… and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Gafycz v. Gafycz, 148 AD3d 679, 680 [internal quotation marks omitted]). ”When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible; however, equitable distribution does not necessarily mean equal distribution” (Davis v. O’Brien, 79 AD3d 695, 696; see Repetti v. Repetti, 147 AD3d 1094, 1098). Here, both parties contributed financially to this 28-year marriage, and the equal distribution of the financial marital assets was a provident exercise of the Supreme Court’s discretion (see Scaramucci v. Scaramucci, 140 AD3d 848, 850). The assets were properly valued by stipulation (see Wesche v. Wesche, 77 AD3d at 923-924).The Supreme Court providently exercised its discretion in declining to award the defendant credits related to the sale of certain real property in Queens, the plaintiff’s liquidation of an annuity, and certain of the plaintiff’s expenditures made during the marriage, and providently declined to sanction the defendant for removing certain items from his safe deposit box. The parties each failed to establish that the other party secreted or wastefully dissipated assets (see Domestic Relations Law §236[B][5][d][12], [14]; cf. Michaelessi v. Michaelessi, 59 AD3d 688, 689). There was no showing that the plaintiff’s liquidation of her annuity in 2010 or her challenged expenditures were made in contemplation of divorce (cf. Buchsbaum v. Buchsbaum, 292 AD2d 553, 554). ”The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end” (Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 421; see Ferrel v. Ferrel, 132 AD3d 1421, 1422; Kessler v. Kessler, 118 AD3d 946, 948).However, the Supreme Court erred in awarding the plaintiff the sum of only $30,000 for her interest in the marital residence, representing 20 percent of its increase in value between 1989, when title was transferred to the parties jointly, and the commencement of the action. By placing the marital residence in both names, the defendant changed the character of the property to marital property (see Post v. Post, 68 AD3d 741, 742; Diaco v. Diaco, 278 AD2d 358, 359). The court providently exercised its discretion in awarding the defendant a credit for his contribution of separate property toward the creation of the marital asset (see Coffey v. Coffey, 119 AD2d 620, 622). However, given the plaintiff’s contributions to the marital residence, financial and otherwise, during the period between the parties’ marriage in 1984 and 1989, when title was transferred to both parties, the appreciation of the value of the marital residence during that period constituted marital property (see Miller v. Miller, 4 AD3d 718, 720). Accordingly, the court should have utilized the valuation of the marital residence at the time of the marriage, or $105,000, as the sum of the defendant’s separate property contribution. Moreover, although the defendant thereafter contributed a larger share of funds towards the maintenance of the residence, in light of the plaintiff’s contributions to the residence, financial and otherwise, an award to her of 50 percent of the marital portion of the residence was warranted (see Scher v. Scher, 91AD3d 842, 845). Accordingly, we modify the judgment to award the plaintiff $122,500 for her interest in the marital residence, representing 50 percent of its appreciation in value during the marriage.In light of the age of the parties and the plaintiff’s distributive award, the Supreme Court providently exercised its discretion in denying the plaintiff an award of maintenance (see Domestic Relations Law §236[B][6]; Margolis v. Cohen, 115 AD3d 1390).The parties’ remaining contentions are without merit.ROMAN, J.P., SGROI, CONNOLLY and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Dillon, Balkin and Roman, JJ.PEOPLE, etc., res, v. Lamel Fabers, ap — (Ind. No. 799/10)Lamel Fabers, Stormville, NY, appellant pro se.Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Thomas M. Ross of counsel), for respondent.Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated November 4, 2015 (People v. Fabers, 133 AD3d 616), determining an appeal from a judgment of the Supreme Court, Kings County, rendered November 10, 2011.ORDERED that the application is denied.The appellant has failed to establish that he was denied the effective assistance of appellate counsel (see Jones v. Barnes, 463 US 745; People v. Stultz, 2 NY3d 277).MASTRO, J.P., DILLON, BALKIN and ROMAN, JJ., concur.By Dillon, J.P.; Sgroi, Hinds-Radix, Nelson and Iannacci, JJ.PEOPLE, etc., res, v. Jordan R. Martinez, ap — (Ind. No. 10147/15)Paul Skip Laisure, New York, NY, for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Anastasia Spanakos of counsel; Marina Kosmetatos on the brief), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (John Latella, J., at plea; Barry Kron, J., at sentence), rendered January 5, 2016, convicting him of criminal possession of a controlled substance in the fourth degree, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v. California (386 US 738), in which he moves for leave to withdraw as counsel for the appellant.ORDERED that the judgment is affirmed.We are satisfied with the sufficiency of the brief filed by the defendant’s assigned counsel pursuant to Anders v. California (386 US 738), and upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel’s application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v. Paige, 54 AD2d 631; cf. People v. Gonzalez, 47 NY2d 606).DILLON, J.P., SGROI, HINDS-RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Alex Garcia, ap — (Ind. No. 1730/13)Paul Skip Laisure, New York, NY (Erin Tomlinson of counsel), for appellant.Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, William H. Branigan, and Amy E. Markel of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Queens County (Michael B. Aloise, J.), rendered May 11, 2015, convicting him of attempted assault in the second degree and menacing in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant’s guilt of attempted assault in the second degree (see Penal Law §§110.00, 120.05[1]; CPL 470.15[2][b]). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilty as to that crime was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Mastro, J.P.; Chambers, Duffy and Connolly, JJ.PEOPLE, etc., res, v. Eric Bridgers, ap — (Ind. No. 804/16)Jillian S. Harrington, Staten Island, NY, for appellant.Madeline Singas, District Attorney, Mineola, NY (Donald Berk and Brian Witthuhn of counsel), for respondent.Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Patricia A. Harrington, J.), rendered August 3, 2016, convicting him of aggravated unlicensed operation of a motor vehicle in the first degree, aggravated unlicensed operation of a motor vehicle in the second degree, aggravated unlicensed operation of a motor vehicle in the third degree, and operating a motor vehicle while under the influence of alcohol as a misdemeanor, upon his plea of guilty, and imposing sentence.ORDERED that the judgment is affirmed.The defendant’s contention that his plea of guilty was involuntary, unknowing, and not intelligently entered is unpreserved for appellate review, since he failed to move to withdraw the plea before sentencing (see People v. Tissiera, 138 AD3d 1040; People v. Pryor, 11 AD3d 565). In any event, the plea was voluntarily, knowingly, and intelligently entered (see People v. Fiumefreddo, 82 NY2d 536, 543; People v. Lopez, 71 NY2d 662, 666; People v. Harris, 61 NY2d 9, 17). Contrary to the defendant’s contention, the Supreme Court’s comments regarding his possible sentence exposure were he to proceed to trial were informative, not coercive (see People v. Tavares, 103 AD3d 820, 820; see also People v. Licausi, 122 AD3d 771, 773).The defendant’s remaining contention is without merit.MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.By Austin, J.P.; Roman, Sgroi and Brathwaite Nelson, JJ.Eric R. Inesta ap, v. Mary Florio, res — (Index No. 100040/13)In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Troia, J.), dated October 28, 2016, which granted the defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is denied.A car driven by the plaintiff Eric R. Inesta (hereinafter the injured plaintiff) and a car driven by the defendant collided while the defendant was driving westbound on a two-lane road with curbside parking and the injured plaintiff was pulling into the westbound lane from a parking space. The plaintiffs commenced this action, inter alia, to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiffs appeal.The Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. Since there can be more than one proximate cause of an accident, a defendant driver seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault (see Gobin v. Delgado, 142 AD3d 1134, 1135; Incle v. Byrne-Lowell, 115 AD3d 709, 710). ”Generally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 AD3d 889, 889; see Gobin v. Delgado, 142 AD3d at 1135).Here, the defendant failed to establish, prima facie, that the injured plaintiff’s negligence in pulling out of a curbside parking spot was the sole proximate cause of the accident and that the defendant was free from comparative fault (see Espinoza v. Coco-Cola Bottling Co. of N.Y., Inc., 121 AD3d 640, 641). In particular, the defendant failed to eliminate triable issues of fact as to whether she failed to see what was there to be seen through the proper use of her senses and to use reasonable care to avoid a collision (see Rojas v. Solis, 154 AD3d 985; Gobin v. Delgado, 142 AD3d at 1135; Mu-Jin Chen v. Cardenia, 138 AD3d 1126, 1127-1128).The plaintiffs’ remaining contention is without merit.AUSTIN, J.P., ROMAN, SGROI and BRATHWAITE NELSON, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.MATTER of Candace El, ap, v. Administration for Childrens Services-Queens res, Heart Share Human Services of New York, res-res — (Docket No. V-6503-14)Janet L. Brown, Jamaica, NY, for appellant.Wingate, Kearney & Cullen, LLP, Brooklyn, NY (Kreuza Ganolli of counsel), for respondent-respondent.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Diane Pazar of counsel), attorney for the child.Appeal from an order of the Family Court, Queens County (Connie Gonzalez, J.), dated July 27, 2016. The order, after a hearing, dismissed the maternal grandmother’s petition for custody of the subject child, with prejudice.ORDERED that the order is affirmed, without costs or disbursements.Following the birth of the subject child, Tabitha, she was taken home from the hospital by her maternal grandmother, who already had custody of the mother’s son, Justin. Although the maternal grandmother had intended to petition for custody of Tabitha, as she had previously done for Justin, employees of the Administration for Children’s Services visited her home and convinced her to become certified as a kinship foster mother, so that she could receive funding to help pay for items such as formula and diapers. The maternal grandmother successfully became certified as a foster parent in New York.However, when Tabitha was approximately five months old, the maternal grandmother decided to relocate to Pennsylvania. Since she did not have custody of Tabitha, the maternal grandmother could not take Tabitha with her. The foster care agency, Heart Share Human Services of New York (hereinafter the agency), advised the maternal grandmother that she could obtain a transfer of Tabitha to her in Pennsylvania pursuant to the Interstate Compact on the Placement of Children (see Social Services Law §347-a; hereinafter ICPC), which would allow her to continue to be Tabitha’s foster parent in Pennsylvania upon becoming qualified as a foster parent in Pennsylvania.In the interim, the maternal grandmother arranged for Tabitha to be placed in the New York home of her son and his family, pending certification of that home as a kinship foster home for Tabitha. The son was unable to be qualified as a foster parent, and Tabitha was placed with her current foster mother in May 2012, when she was nine months old. Tabitha has resided continually with her foster mother since then. Although the maternal grandmother made efforts to complete the ICPC application process and to become qualified as a foster parent in Pennsylvania, she encountered difficulties that prolonged the process, such that by the time she received approval in June 2013, the agency determined that she had failed to maintain sufficient contact with Tabitha to transfer the child to her care.In April 2013, the agency filed a petition to terminate the mother’s parental rights and free Tabitha for adoption by the foster mother. Beginning in 2014, the maternal grandmother began having regular visitation with the child, which progressed, under a Family Court order, to include extended visits of two weeks’ duration. In April 2014, the Family Court determined that the mother had abandoned Tabitha, and that the man identified by the mother as the father had been given notice of the proceeding and there is no one else whose consent would be required for Tabitha to be adopted. The court adjourned the matter for a dispositional hearing.Thereafter, in April 2014, the maternal grandmother filed a petition for custody of Tabitha. Following a combined dispositional and custody hearing, the Family Court dismissed the maternal grandmother’s custody petition with prejudice. The maternal grandmother appeals.The standard to be applied in a change of custody determination is the best interests of the child (see Matter of Chastity Imani Mc., 66 AD3d 782, 783; Matter of Pryor v. Lindsay, 60 AD3d 859; Matter of Destiny O., 44 AD3d 951, 952). ”‘Social Services Law §383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody’” (Matter of Chastity Imani Mc., 66 AD3d at 783, quoting Matter of Pryor v. Lindsay, 60 AD3d 859, 859; see Matter of Peter L., 59 NY2d 513; Matter of Takylia B., 24 AD3d 759). Thus, a nonparent relative takes no precedence for custody over the adoptive parents selected by an authorized agency (see Matter of Peter L., 59 NY2d 513; Matter of Chastity Imani Mc., 66 AD3d at 783; Matter of Pryor v. Lindsay, 60 AD3d 859).Here, the totality of the circumstances and the evidence submitted at the hearing supported the Family Court’s determination to dismiss the maternal grandmother’s custody petition with prejudice. It was in the child’s best interests to remain in the preadoptive home of the foster mother, where she had resided continuously since the age of nine months, and where she had strongly and lovingly bonded with the foster mother and the foster mother’s extended family.HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.MATTER of Tabitha T. S. M. (Anonymous), nonparty-ap — Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn, petitioner-ap; Tracee L. M. (Anonymous), res; Candace E. (Anonymous), nonparty-res; Carmen H. (Anonymous), intervenor-res — (Docket No. B-8750-13)Janet L. Brown, Jamaica, NY, for nonparty-respondent.Paul B. Guttenberg, Syosset, NY, for intervenor-respondent.Separate appeals from an order of fact-finding and disposition of the Family Court, Queens County (Connie Gonzalez, J.), dated August 19, 2016. The order, insofar as appealed from, after a dispositional hearing, incorporated by reference an amended order of that court dated July 27, 2016, which placed the subject child in the kinship foster care of the maternal grandmother.ORDERED that the order of fact-finding and disposition is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the amended order dated July 27, 2016, is vacated.The background facts of this case are set forth in our decision and order on the related appeal (see Matter of El v. Administration for Children’s Services-Queens, __ AD3d __ [decided herewith]). The Family Court held a combined hearing on the maternal grandmother’s petition for custody of the subject child, Tabitha T. S. M., and the disposition of the petition filed by Heart Share Human Services of New York, Roman Catholic Diocese of Brooklyn (hereinafter the agency), to terminate the mother’s parental rights to Tabitha. Following the hearing, the court issued an amended order dated July 27, 2016, directing that Tabitha be placed in the kinship foster care of the maternal grandmother. In an order of fact-finding and disposition dated August 19, 2016, the court, inter alia, terminated the mother’s parental rights, transferred custody and guardianship of Tabitha to the agency and the Commissioner of Social Services of the City of New York for the purpose of adoption, and incorporated by reference the amended order dated July 27, 2016, directing that Tabitha be placed in the kinship foster care of the maternal grandmother. The agency and Tabitha separately appeal from so much of the order of fact-finding and disposition as incorporated by reference the amended order dated July 27, 2016.When considering custody, the best interests of the child are paramount (see Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Ender M.Z.-P. [Olga Z.], 109 AD3d 834, 835; Matter of Vanisha J. [Patricia J.], 87 AD3d 696, 697). In determining the best interests of the child, the Family Court must consider the “totality of the circumstances” (Matter of Sofia S.S. [Goldie M.---Elizabeth C.], 145 AD3d 787, 789). This Court will not disturb a Family Court’s determination regarding the best interests of the child unless it lacks a sound and substantial basis in the record (see Matter of Christopher P. v. Jason Sidney G., 126 AD3d 980; Matter of Kaiser v. Orange County Dept. of Social Servs., 34 AD3d 586, 587).We recognize that the maternal grandmother was present at the time of Tabitha’s birth, already had custody of Tabitha’s brother, and clearly desired from the time of Tabitha’s birth to become her legal custodian. We also recognize that the agency failed to adequately support the maternal grandmother’s efforts to retain custody or have visitation with Tabitha when she relocated to Pennsylvania.Even so, the determination of the Family Court that it was in Tabitha’s best interests to be removed from her foster home, where she had resided for over four years, and to be placed in the kinship foster home of the maternal grandmother lacks the requisite sound and substantial basis in the record (see Matter of Ender M.Z.-P. [Olga Z.], 109 AD3d at 836). In determining the best interests of the child, “[t]here is no presumption that the children’s best interests will be better served by a return to a family member” (Matter of Nyasia E.R. [Michael R.], 121 AD3d 792, 794; see Matter of Ender M.Z.-P. [Olga Z.], 109 AD3d at 836). Indeed, “‘Social Services Law §383(3) gives preference for adoption to a foster parent who has cared for a child continuously for a period of 12 months or more, while members of the child’s extended biological family are given no special preference with regard to custody’” (Matter of Pryor v. Lindsay, 60 AD3d 859, 859, quoting Matter of Takylia B., 24 AD3d 759, 759; see Matter of Patricia I.H. v. ACS-Kings, 140 AD3d 1165, 1165; Matter of Vanisha J. [Patricia J.], 87 AD3d at 697). ”Moreover, while the law expresses a preference for keeping siblings together, the rule is not absolute and may be overcome where the best interests of each child lie in residing apart” (Matter of Ender M.Z.-P. [Olga Z.], 109 AD3d at 836). Here, the court gave inappropriate weight to this preference, as Tabitha and her brother only shared a household with the maternal grandmother for the first five months of Tabitha’s life (see id.). Moreover, the record reveals that Tabitha has closely bonded with her foster family and remains healthy, happy, and well-provided for (see id.). Therefore, the court erred in determining that it was in Tabitha’s best interests to be moved to the kinship foster home of the maternal grandmother rather than remain with her foster mother for the purpose of adoption, which the record shows is the intent of the foster mother (see id.).The appellants’ remaining contentions are without merit.HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Mastro, J.P.; Hall, Miller and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Felix Troche, ap — (Ind. No. 841-14)Appeal by the defendant from a judgment of the County Court, Suffolk County (Barbara Kahn, J.), rendered March 10, 2015, convicting him of rape in the first degree, criminal sexual act in the first degree (three counts), sexual abuse in the first degree (two counts), assault in the second degree (two counts), unlawful imprisonment in the first degree, forcible touching (two counts), and assault in the third degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is affirmed.The defendant was tried for rape in the first degree and various related offenses committed against the pregnant complainant at a house frequented by drug abusers. The complainant testified at length and in detail regarding the crimes, and numerous witnesses confirmed the defendant’s violent and assaultive behavior toward the complainant on the night of the offenses and described the complainant as distraught, bloodied, and disheveled immediately following her encounter with him. Moreover, the prosecution presented forensic and medical evidence establishing that, despite the defendant’s denials to the police that he had sex with the complainant, his semen was found on the complainant’s underwear, and the physical injuries the complainant suffered were consistent with her account of the incident. In marked contrast, the defendant’s counsel argued at trial that the defendant and the complainant had consensual sex. He supported this defense with the testimony of a friend of the defendant who stated that he had heard from someone that the complainant “was offering herself to other men that night,” a second witness who asserted that after the defendant left the scene, she saw a woman outside the house “asking people for, you know, to give blow jobs for a ride,” and the defendant’s fiance, who claimed that on the night of the incident, she observed the complainant offering “sexual favors for crack,” but that the defendant had no contact with the complainant that night. The fiance further testified that after his arrest, the defendant repeatedly assured her over a period of several months that he did not have sex with the complainant and that the police did not have his DNA. Nevertheless, the fiance testified that “[in] the back of my mind I thought different.” She additionally testified that the defendant had been out with a friend earlier on the date of the incident, but she did not know and “[was] not exactly sure” where he had been. None of the defense witnesses provided any evidence or explanation regarding how the defendant’s semen came to be on the complainant’s underwear. The jury returned a verdict convicting the defendant of all of the charged offenses.Contrary to the defendant’s contention, the County Court did not err in discharging a seated juror upon its finding, after a reasonable inquiry, that the juror would be unable to appear within two hours of the time set for trial to continue (see CPL 270.35[2][a]; People v. Jeanty, 94 NY2d 507; People v. Browne, 144 AD3d 834, 835; People v. Walker, 141 AD3d 678, 678-679; People v. Barksdale, 130 AD3d 746).Similarly unavailing is the defendant’s contention that the admission of evidence regarding his gang affiliation constituted reversible error. The defendant has failed to preserve for appellate review this challenge to the extent that he currently argues that the trial testimony on that matter exceeded the scope of the County Court’s pretrial ruling (see CPL 470.05[2]; People v. Brown, 139 AD3d 964, 965). In any event, while the admission of some of the evidence may have been improper, any such error was harmless, as there was overwhelming evidence of the defendant’s guilt, and there was no significant probability that the jury would have acquitted the defendant had it not been for the error (see People v. Crimmins, 36 NY2d 230, 242; People v. Borgella, 144 AD3d 1048; People v. Hollman, 98 AD3d 584).Moreover, the County Court did not err in permitting the complainant’s mother to testify with respect to the complainant’s physical appearance immediately after the incident (see People v. Shepherd, 83 AD3d 1298, 1300; People v. Terrence, 205 AD2d 301, 302). In addition, the mother properly testified as to the prompt outcry made by the complainant at that time, and her testimony on that point did not exceed the level of detail permissible under the prompt outcry hearsay exception (see People v. Tucker, 117 AD3d 1090; People v. Bernardez, 63 AD3d 1174, 1175; People v. Salazar, 234 AD2d 322). Furthermore, while the testimony of the mother as to the complainant’s conversation with certain police officers was improper (see generally People v. McDaniel, 81 NY2d 10, 17), as was the testimony of another witness regarding his conversation with the complainant in the days following the incident (see People v. Barnes, 140 AD3d 443, 444), these errors were harmless, as there was overwhelming evidence of the defendant’s guilt, and there was no significant probability that, absent the errors, the defendant would have been acquitted (see People v. Caban, 126 AD3d 808, 809; People v. Tucker, 117 AD3d at 1091). Additionally, the combined effect of all of the foregoing errors did not deprive the defendant of a fair trial. We note that the defendant waived any objection to the testimony of the mother regarding the complainant’s statement to the effect that she was sexually assaulted by gang members, since it was the defense that elicited such testimony (see People v. Honghirun, 133 AD3d 882, 883, affd 29 NY3d 284).The defendant’s claim that he was denied the effective assistance of trial counsel is without merit. The defendant failed to demonstrate that his trial counsel’s decision not to call a certain witness who had already testified for the prosecution lacked a “legitimate,” “strategic” basis (People v. Rivera, 71 NY2d 705, 709; see People v. King, 27 NY3d 147, 159). A review of the record as a whole establishes that the defendant was afforded meaningful representation (see People v. Benevento, 91 NY2d 708, 712; People v. Baldi, 54 NY2d 137, 147). Furthermore, trial counsel’s strategic decision in this regard did not deny the defendant his right to confront an adverse witness (see generally People v. Gibson, 106 AD3d 834; People v. Rivera, 98 AD3d 529, 529).The defendant has failed to preserve for appellate review his challenge to the legal sufficiency of the evidence (see CPL 470.05[2]; People v. Hawkins, 11 NY3d 484). In any event, contrary to his contention, there was ample evidence corroborating the accomplice testimony here (see CPL 60.22[1]; People v. Reome, 15 NY3d 188, 195) and, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v. West, 105 AD3d 781). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d 342, 348), we nevertheless accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383; People v. Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 NY3d 633).The sentence imposed was not excessive (see People v. Suite, 90 AD2d 80).MASTRO, J.P., MILLER and BRATHWAITE NELSON, JJ., concur.HALL, J., dissents, and votes to reverse the judgment, on the law, and order a new trial, with the following memorandum:On June 1, 2012, the complainant visited a house in which Kenneth Neu rented a room in order to smoke crack cocaine with Neu. There were many other people in the house that day. According to the complainant, while she was at the house, the defendant engaged in several sex acts with her by forcible compulsion. After a jury trial, the defendant was convicted of one count of rape in the first degree, three counts of criminal sexual act in the first degree, and lesser charges.I agree with my colleagues in the majority that the evidence was legally sufficient to establish the defendant’s guilt, and that the verdict was not against the weight of the evidence. However, I believe that a new trial is required based on certain evidentiary errors.At the outset of the trial, the People sought to introduce evidence of the defendant’s alleged gang affiliation, in order to explain: (1) the close relationship between the defendant and some of the People’s cooperating witnesses and why those witnesses might have been reluctant to testify against him; (2) why people present in the house would allow the alleged crimes to take place and fail to report them to the police; and (3) why the complainant delayed reporting the alleged crimes to the police for approximately 36 hours. Over defense counsel’s objection, the County Court granted the People’s application, except that it stated that it would not permit evidence concerning “historical gang issues, hierarchy, etc., [but] merely [would permit evidence] that according to these cooperating witnesses [the defendant] was in… a superior position” in the gang. The People then proceeded to present extensive testimony from eight witnesses regarding the defendant’s alleged gang affiliation, eliciting, among other things, that one of the witnesses became a member of the gang by performing a drive-by shooting. Only one of the eight witnesses testified that the defendant was in a superior position in the gang; that witness testified that the defendant had referred to himself as “third crown.”While the defendant did not preserve for appellate review his contention that the evidence presented exceeded the scope of the County Court’s ruling, by opposing the application made by the People, he preserved his contention that the gang evidence should not have been admitted at all (see CPL 470.05[2]). I submit that under the circumstances of this case, the court erred in granting the People’s application. The alleged crimes were not gang-motivated, and the limited probative value of the evidence was outweighed by the possible prejudice to the defendant (see People v. Hollman, 98 AD3d 584, 585; People v. Sellan, 143 AD2d 690, 691).In addition, the County Court erroneously allowed testimony by Neu regarding a statement made to him by the complainant approximately a week after the incident, as the statement was insufficiently prompt to qualify under the prompt outcry exception to the hearsay rule and, moreover, the testimony went beyond the mere fact of the outcry (see People v. McDaniel, 81 NY2d 10, 17; People v. Rice, 75 NY2d 929, 932; People v. Barnes, 140 AD3d 443, 444).Unlike my colleagues in the majority, I cannot conclude that these errors were harmless. The prejudice resulting from the County Court’s ruling on the admissibility of the gang evidence was substantial, as the People proceeded to present testimony from eight different witnesses regarding the defendant’s alleged gang affiliation, including one witness who testified that he became a member of the gang by performing a drive-by shooting. Further, while semen found on the complainant’s underclothing matched the defendant’s DNA profile, the defendant asserted a defense of consent. This defense was based on the testimony of three witnesses who stated that, on the day of the alleged crimes, the complainant went around the house offering to perform sexual favors in exchange for crack cocaine or in exchange for a ride home. Although one of these witnesses, the defendant’s fiance, testified that she did not see the defendant have any contact with the complainant on the night of the alleged crimes, she further testified that she suspected that the defendant had had sex with the complainant earlier in the day, when she was not with the defendant. Moreover, the complainant admitted that she was high on crack cocaine on the date of the alleged crimes. Under these and all of the other circumstances of the case, I submit that the proof of the defendant’s guilt was not overwhelming, and even if it were, there is a significant probability that the verdict would have been different if it had not been for the errors (see People v. McDaniel, 81 NY2d at 20; People v. Crimmins, 36 NY2d 230, 241-242).Accordingly, I vote to reverse and order a new trial.By Priscilla Hall, J.P.; Cohen, Barros and Christopher, JJ.MATTER of Joseph I. N. (Anonymous). Edwin Gould Services for Children and Families, ap; Amy S. R. (Anonymous) res — (Proceeding No. 1)MATTER of Robyn D. N. (Anonymous). Edwin Gould Services for Children and Families, ap; Amy S. R. (Anonymous) res — (Proceeding No. 2)MATTER of Elizabeth A. N. (Anonymous). Edwin Gould Services for Children and Families, ap; Amy S. R. (Anonymous) res — (Proceeding No. 3) (Docket Nos. B-27384-14, B-27385-14, B-27386-14)Helene Chowes, New York, NY, for respondent Jose N.Seymour W. James, Jr., New York, NY (Tamara A. Steckler and Marcia Egger of counsel), attorney for the children.Appeal from an order of the Family Court, Kings County (Alan Beckoff, J.), dated March 9, 2016. The order, after a fact-finding hearing, dismissed the petitions to terminate the mother’s and father’s parental rights to the subject children on the ground of permanent neglect.ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, the petitions are reinstated and granted, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing, to be conducted as expeditiously as possible, in accordance herewith.The petitioner filed petitions to terminate the mother’s and father’s parental rights to the three subject children on the ground of permanent neglect. After a fact-finding hearing, the Family Court dismissed the petitions. The petitioner appeals.“In proceedings to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it made diligent efforts to encourage and strengthen the parental relationship” (Matter of Daria S.H.-A. [Yolanda H.], 154 AD3d 669, 670; see Social Services Law §384-b[7][a]). Here, the petitioner established by clear and convincing evidence that it exercised diligent efforts to encourage and strengthen the mother’s and father’s relationship with the children (see Matter of Daria S.H.-A., 154 AD3d at 670; Matter of Hector V.P., 146 AD3d 889, 890). These efforts included, among other things, the development of a service plan that required the parents to complete a drug treatment program, a parenting skills program, and a mental health evaluation. The plan also required the parents to obtain suitable housing and to participate in family visits with the petitioner. In addition, the petitioner provided the parents with numerous referrals to drug treatment programs, scheduled supervised visitation, and consistently advised the parents that completion of the service plan was necessary for reunification with the children (see Matter of Hector V.P., 146 AD3d at 890; Matter of Chanel C. [Vanessa N.], 118 AD3d 826, 827).The petitioner also met its burden by establishing by clear and convincing evidence that the mother and father permanently neglected the children by failing to plan for the future of the children, in that, over the course of more than two years, they failed to complete a drug treatment program (see Social Service Law §384-b[4][d]; [7][a]; Matter of Chanel C. [Vanessa N.], 118 AD3d at 827-828; Matter of Dustin H. [Patricia B.], 68 AD3d 1112, 1113). The parents’ longtime abuse of marijuana was a significant obstacle to their reunification with their children, and neither parent completed a drug treatment program, despite the agency’s diligent efforts, including multiple referrals to drug treatment programs (see Matter of Dustin H. [Patricia B.], 68 AD3d at 1113; Matter of Ebony Starr B., 14 AD3d 507, 508). Significantly, one or more of the children have been in foster care at various times since 2009, and the parents have been unsuccessful in completing a drug treatment program during this time. The children are entitled to permanency after the passage of such an extended period of time, during which the parents have failed to complete the programs required for them to be reunified with the children (see Family Ct Act §1086). Thus, upon a finding of permanent neglect, we remit the matter to the Family Court, Kings County, for a dispositional hearing to be conducted as expeditiously as possible, to determine the best interests of the children (see Family Ct Act §§623, 625[a], 631; Matter of Ebony Starr B., 14 AD3d at 508).HALL, J.P., COHEN, BARROS and CHRISTOPHER, JJ., concur.By Rivera, J.P.; Hall, Barros and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Lakime J. Spratley, ap — (Ind. No. 65/13)Del Atwell, East Hampton, NY, for appellant.William V. Grady, District Attorney, Poughkeepsie, NY (Kirsten A. Rappleyea of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Dutchess County (Stephen L. Greller, J.), rendered April 22, 2015, convicting him of murder in the second degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.ORDERED that the judgment is reversed, on the facts, and the matter is remitted to the County Court, Dutchess County, for further proceedings pursuant to CPL 330.20.On July 10, 2013, at around 11:30 p.m., the defendant shot and killed Talesha Wright in a grocery store in Poughkeepsie. At trial, the defendant asserted the affirmative defense of lack of criminal responsibility by reason of mental disease or defect (Penal Law §40.15). The People did not dispute that the defendant was suffering from a mental disease or defect at the time of the shooting, but they disagreed as to the nature of the disease or defect and whether it caused the defendant to lack substantial capacity to know or appreciate either the nature and consequences of his conduct or that it was wrong. The jury convicted the defendant of murder in the second degree and criminal possession of a weapon in the second degree, implicitly rejecting his affirmative defense. On appeal, the defendant contends, among other things, that the verdict of guilt was against the weight of the credible evidence as it found that he failed to establish the affirmative defense by a preponderance of the evidence. We agree, and therefore reverse his convictions and remit the matter to the County Court, Dutchess County, for further proceedings pursuant to CPL 330.20.The incident was captured on several surveillance cameras, which show that at the subject time, the defendant was walking on a sidewalk on Academy Street in Poughkeepsie. An SUV traveled down the street and stopped in front of the A & M Grocery. Wright, who had been hanging out of the rear driver’s side window as the SUV was moving, exited through the vehicle’s window and walked into the store. The defendant continued to walk down the sidewalk until he reached the A & M Grocery and then turned to enter the store, and, from the doorway, pulled a gun from the waistband of his shorts and fired at Wright, who was standing only a few feet away at the counter. The defendant exited the store and paced outside for approximately one minute and then slowly walked a short distance away. Moments later, police cars arrived and the defendant immediately put his hands in the air and laid down on the ground. A police officer handcuffed the defendant, and according to the officer, the defendant “stated something about a suitcase and he said that bitch stole my clothes and they know how they get when they mess with me.”In a videotaped interview at the police precinct, the defendant told detectives that he had been “paranoid,” “hearing voices and stuff,” and “having issues or whatever with [himself].” He stated that he had seen Wright in the SUV three to four times earlier that day without incident. However, the defendant told detectives that, shortly before the shooting, he had seen a blue suitcase that belonged to him sitting on a street corner. He stated that he looked at the suitcase for a long time, and was uncertain of whether what was happening was “reality.” The defendant said that he was certain that the suitcase was his, but walked away to try to “figure it out.” As the defendant was walking, the SUV with Wright came down the street. The defendant told the detectives that at this time, he was hearing voices that were telling him “all kinds of… negative stuff.” When the SUV pulled up, the defendant believed that Wright was making signals with her hands at him, including “like gun [signals] and signs,” and that she was wearing his shorts. The defendant believed that “they” were playing “mind games” with him. He stated that when Wright “put a gun sign on,” he thought, “hold on, you’re talking about endangering my life,” and it “really triggered” him. The defendant told the detectives that he recalled walking into the grocery store and asking Wright why she was wearing his shorts. The defendant claimed that he then “blanked out,” and he did not remember whether Wright responded to him and did not remember shooting her. When one of the detectives pressed the defendant to try to remember what happened after he was “triggered,” the defendant said “this” happened, and pointed to his shoe, leg, and shorts. The detective asked the defendant whether he had urinated on himself, and the defendant replied, “yeah, I was hearing voices.” The defendant told the detectives that he recalled feeling “bad” after he left the store and feeling “lost” when he was on the sidewalk following the shooting. The defendant admitted to the detectives that he had been carrying the gun with him all day because he was hearing voices and needed to protect himself. Wright’s wife testified that she and Wright knew the defendant through a mutual friend, and there had never been any disagreements between them.The defense presented the expert testimony of a board-certified forensic psychiatrist who opined that at the time he possessed the gun and shot Wright, the defendant was suffering from a severe, persistent, and serious mental disease, namely, schizoaffective disorder, and that because of this mental disease the defendant lacked substantial capacity to know or appreciate that what he did was wrong. The defense expert described schizoaffective disorder as having a combination of symptoms of both schizophrenia and bipolar disorder. To support the expert’s conclusion, the defense presented evidence that throughout the defendant’s childhood, his parents were severely drug addicted and that in 1995, when the defendant was about 15 years old, his mother, suffering from mental illness, stabbed his father to death. The defendant was imprisoned as a juvenile offender in 1995 for assault and attempted robbery. He was released from prison briefly, but then convicted of selling a controlled substance, so that he remained incarcerated almost continuously from 1995 to December 2010. The defendant received numerous disciplinary citations while incarcerated, and was in isolation in the special housing unit during the majority of his time in prison.The defense evidence also showed that the defendant began complaining of hearing voices in 1995 or 1996 when he was 15 or 16 years old. At times, the defendant expressed a belief that corrections officers and/or other detainees were poisoning his food. However, prison staff repeatedly concluded that the defendant was “faking” in order to gain special favors, and thus he was treated punitively for his behavior. In 2008, the defendant was diagnosed with bipolar disorder with psychotic features, and was prescribed antipsychotic medication for the first time. The defense expert testified that the defendant’s prison records reflect that the defendant’s behavior changed drastically after he was medicated, his symptoms went away and he was able to avoid citations.The defendant was released on parole in December 2010. Upon his release, the defendant was treated at a community mental health clinic. The defense expert testified that the notes from the clinic indicate that at the December 2010 intake interview, the defendant complained of hearing voices that were telling him to hurt himself and other people. The defendant expressed a belief that there was a secret society of assassins that were trying to kill him, and that the society utilized both people he knew and strangers in its conspiracy to assassinate him. The clinic treated the defendant from December 2010 until March 2013 for schizoaffective disorder with antipsychotic, mood stabilizing, and antidepressant medications. It is unclear from the record why the defendant’s treatment stopped in March 2013.On June 20, 2013, 20 days before he shot Wright, the defendant was in an automobile accident in which another vehicle struck the vehicle he was driving. The hospital records indicated that the defendant exited his vehicle after the accident and appeared as though he was going to attack the other driver, but that he then had a seizure and was brought to the hospital. The defense expert testified that the defendant told him that at the time of the accident, he believed the driver of the other vehicle was an assassin from the secret society and that the accident was an assassination attempt. The community mental health clinic records indicated that the defendant returned to the clinic several times after the June 20 automobile accident asking that he be prescribed a particular antipsychotic medication that he had received when he was being treated at the clinic, but that the defendant was unable to get the prescription filled. These attempts included one on the day before the subject shooting, at which time the clinic evaluated the defendant as being at “the highest lethality risk for hurting someone else and hurting himself,” but still the defendant was unable to get the prescription filled.The defense additionally presented evidence that on the day of the shooting, the defendant called his aunt repeatedly to complain that someone was after him. The aunt testified that she found the defendant on the street at about 8:15 p.m. and tried to persuade him to go home. She stated that the defendant was talking about people who kept moving in and out of different cars and jumping from one car to another. After some time, one of the defendant’s cousins came to assist, but when the cousin reached into his pocket to give the defendant’s aunt some money, the defendant reacted as though his cousin was trying to draw a weapon. The two were unable to persuade the defendant to go home. The subject shooting occurred approximately two hours later.The defense expert testified that the defendant told him that on the day of the shooting, the defendant’s mother was acting in a manner that made the defendant believe that she was a member of the secret society of assassins and was going to try to kill him, and so the defendant retrieved his gun and left the apartment. The defendant further told the expert that while he was out walking, he observed several cars which he believed were being driven by members of the assassination society, who were following him and preparing another assassination attempt. The defendant told the expert that when he thought he saw Wright exit the SUV and point her fingers at him while wearing his clothing, it validated his assessment that Wright was the assassin sent to kill him. The expert explained that the defendant’s fixation on his belief that the shorts belonged to him was because this constituted proof that the secret society of assassins was able to get into his apartment and it was sending a signal to the defendant that society assassins were going to kill him. The defense expert opined, with a reasonable degree of medical certainty, that at the time the defendant possessed the gun and shot Wright, he was suffering from schizoaffective disorder, and that because of the disease, he lacked the substantial capacity to know or appreciate that what he was doing was wrong because he believed he was killing the person who was coming to assassinate him.To rebut the defendant’s evidence, the People presented the testimony of a licensed psychologist with a practice in forensic psychology, who opined that at the time he shot Wright, the defendant both knew and appreciated the nature and consequences of his conduct and that the conduct was wrong. The People’s expert agreed that the defendant was suffering from a mental disease or defect at the time of the subject shooting, but, based on the expert’s interview with the defendant, the expert diagnosed the defendant as having an unspecified bipolar related disorder. The People’s expert also diagnosed the defendant with an antisocial personality disorder, which, he testified, would not qualify as a mental disease or defect. The expert conceded that the defendant had “incorrect perceptions” and was “paranoid” at the relevant time, but he concluded that it was not the paranoia or incorrect perceptions that motivated the defendant’s acts, but rather his “antisocial conduct.” More specifically, the People’s expert opined that the defendant acted because he believed that Wright had stolen his shorts and his “antisocial orientation” made the defendant feel justified in performing a violent act of revenge. The People’s expert found that because the defendant attempted to get treatment prior to the shooting, he was aware of his paranoia and thus he was “grounded to a degree in reality” and “never gone that far.” The expert also concluded that because the defendant kept the gun hidden from his mother and, while he was in public, he was aware that possessing the gun was wrong.The People’s expert noted that the defendant had not mentioned assassins when the expert interviewed him. He acknowledged that, in addition to the diagnosis relative to the defendant’s community mental health treatment from December 2010 to March 2013, the defendant was diagnosed with schizoaffective disorder in January 2011 by the Dutchess County Department of Mental Hygiene, at a time when the defendant was complaining of a “shadow organization” that was after him and which had recruited his mother and grandmother to try to assassinate him. Nonetheless, the People’s expert did not believe that the defendant suffered from a schizoaffective disorder. The expert opined that the defendant’s auditory hallucinations were related either to his bipolar condition or substance use. Although there was no evidence that the defendant had tested positive on any drug test or admitted to any drug use, the People’s expert theorized that the defendant had begun to use PCP upon his release from prison and this is what had caused his hallucinations. This theory was based on the defendant’s previous conviction for selling a controlled substance and the notations in his prison records indicating that he had a polysubstance abuse problem, with one entry indicating a preference for PCP, and the expert’s opinion that it was “very rare for someone to sell substances without using substances.”The jury convicted the defendant of murder in the second degree and criminal possession of a weapon on the second degree, and the defendant appeals.In order to establish a lack of criminal responsibility by reason of mental disease or defect, a defendant must prove, by a preponderance of the evidence, that, at the time the defendant engaged in the proscribed conduct, as a result of mental disease or defect, he or she lacked substantial capacity to know or appreciate either (1) the nature and consequences of such conduct, or (2) that such conduct was wrong (see Penal Law §§25.00[2]; 40.15).In conducting a weight of the evidence review, an appellate court must first determine whether, “based on all the credible evidence a different finding would not have been unreasonable” (People v. Bleakley, 69 NY2d 490, 495; see People v. Danielson, 9 NY3d 342, 348; People v. Romero, 7 NY3d 633, 643). If it would have been reasonable for the factfinder to reach a different conclusion, “the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions” (People v. Danielson, 9 NY3d at 348; see People v. Romero, 7 NY3d at 643; People v. Bleakley, 69 NY2d at 495). ”If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict” (People v. Bleakley, 69 NY2d at 495; see People v. Danielson, 9 NY3d at 348; People v. Romero, 7 NY3d at 643).Here, as the People concede, a finding of not responsible by reason of mental disease or defect would have been reasonable. Moreover, upon weighing the credible evidence, we conclude that the jury was not justified in finding that the preponderance of the evidence failed to establish that the defendant lacked the substantial capacity to know or appreciate that his conduct was wrong at the time that he possessed the loaded firearm and shot Wright. The undisputed trial evidence established that at the relevant time, the defendant was suffering from auditory hallucinations, paranoia, and “incorrect perceptions” of reality. The opinion of the People’s expert psychologist that the defendant did not suffer a schizoaffective disorder, notwithstanding such a diagnosis by the defendant’s treating psychiatrists over the past three years, was conclusory. Moreover, the psychologist’s alternative theory that the defendant’s hallucinations were due to his use of PCP were purely speculative and without adequate evidentiary support. The psychologist’s conclusion that the defendant was motivated by revenge against a person he mistakenly perceived to have stolen his shorts was also speculative and contrary to the credible evidence presented. We accord great deference to the jury’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Romero, 7 NY3d at 644), and weigh conflicting expert evidence (see People v. Wood, 12 NY2d 69, 77). However, on this record, the rational inferences which can be drawn from the evidence presented at trial do not support the conviction. Thus, contrary to the jury’s determination, we find that the defendant met his burden of establishing the affirmative defense of mental disease or defect by the preponderance of the evidence. Accordingly, the judgment must be reversed and the matter remitted to the County Court, Dutchess County, for further proceedings pursuant to CPL 330.20.In light of our determination we need not reach the defendant’s remaining contentions.HALL, BARROS and BRATHWAITE NELSON, JJ., concur.RIVERA, J.P., dissents and votes to affirm the judgment with the following memorandum:I respectfully disagree with my colleagues’ determination to reverse the judgment. Accordingly, I vote to affirm the judgment of conviction.In July 2013, the defendant walked into a grocery store in Poughkeepsie and brutally shot the victim, causing her death. Indeed, the incident was fully recorded on surveillance footage.At the ensuing jury trial, the defendant asserted the affirmative defense of lack of criminal responsibility by reason of mental disease or defect (see Penal Law §40.15). In this regard, the defendant proffered the testimony of a forensic psychiatrist who diagnosed the defendant with schizoaffective disorder. The defendant’s expert testified that, at the time of the shooting, the defendant suffered from a “severe, persistent and serious mental disease, and as a result of that disease he lacked substantial capacity to know or appreciate that such conduct was wrong.” On rebuttal, the People offered the testimony of a forensic psychologist, who concluded that the defendant did not suffer from schizoaffective disorder. Instead, the People’s expert opined that the defendant suffered from bipolar disorder and antisocial personality disorder. According to the People’s expert, the defendant “both knew and appreciated the nature and consequences of his conduct, and he knew and appreciated the wrongfulness. In other words, he did not lack substantial capacity.” Based upon all the evidence presented, which included extensive cross-examination, the defendant was convicted of murder in the second degree and criminal possession of a weapon in the second degree.On the instant appeal, my colleagues determine that the jury verdict was against the weight of the evidence. My colleagues conclude that “the jury was not justified in finding that the preponderance of the evidence failed to establish that the defendant lacked the substantial capacity to know or appreciate that his conduct was wrong at the time that he possessed the loaded firearm and shot” the victim. However, in conducting an independent review of the weight of the evidence, I am satisfied that the verdict of guilt is not against the weight of the evidence (see People v. Romero, 7 NY3d 633).A weight of the evidence review requires this Court to affirmatively review the record, independently assess all of the proof, substitute its own credibility determinations for those made by the trier of fact in an appropriate case, determine whether the verdict was factually correct, and acquit a defendant if the court is not convinced that the trier of fact was justified in finding that guilt was proven beyond a reasonable doubt (see People v. Delamota, 18 NY3d 107, 116-117; People v. Danielson, 9 NY3d 342, 348). ”In conducting our weight of the evidence review where a defendant relies solely upon the affirmative defense of mental disease or defect, we first determine whether a finding of not responsible by reason of mental disease or defect would have been reasonable” (People v. Hernandez-Beltre, 157 AD3d 814, 816). ”If we answer that question in the affirmative, then we must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence, and evaluate the strength of such conclusions in order to decide whether the defendant met his burden of proving the affirmative defense of mental disease or defect by the preponderance of evidence” (id.; see People v. Danielson, 9 NY3d at 348; see also Penal Law §§25.00[2]; 40.15). ”Where conflicting expert testimony is presented, the question [of] whether the defendant suffered from a mental disease or defect at the time of the commission of the crime is for the factfinder, who may accept or reject the opinion of any expert” (People v. Hill, 276 AD2d 716, 716; see People v. Capela, 97 AD3d 760, 761; People v. Collins, 27 AD3d 660, 661).As set forth above, each party presented conflicting expert opinions. Both experts were eminently qualified in their respective professional fields and deemed by the County Court to be so qualified (see CPL 60.55[1]). In his brief on appeal, the defendant goes to great lengths to denigrate the People’s expert. This unprofessional and disingenuous attempt to disparage the People’s expert is unavailing. The testimony of the People’s expert regarding the defendant’s state of mind at the time of the crime was well-reasoned and supported by the evidence. That expert presented his opinions and supported his conclusions. Moreover, his experience, credentials, and qualifications in the field of forensic psychology were fully set forth in the record.The defendant’s personal, criminal, and psychiatric history were all explored, testified to by witnesses, and commented upon by counsel. The primary issue before the jury was whether at the time “when the defendant engaged in the proscribed conduct,” that is, when he shot and killed the victim, “he lacked criminal responsibility by reason of mental disease or defect” (Penal Law §40.15). ”Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, [the defendant] lacked substantial capacity to know or appreciate either: (1) The nature and consequences of such conduct; or (2) That such conduct was wrong” (Penal Law §40.15). On this point, the instant case boiled down to a battle of the experts. On the one hand, the defense expert opined that, due to a mental disease or defect, the defendant lacked substantial capacity to know or appreciate that such conduct was wrong when he committed the crimes and, on the other hand, the People’s expert rebutted that testimony. In rendering its verdict, the jury, in effect, concluded that, notwithstanding the evidence provided by the defense expert, the defendant failed to establish the defense by a preponderance of the evidence.My colleagues assert that the People “concede” that a finding of not responsible by reason of mental disease or defect would have been reasonable. Respectfully, I find no such concession in the People’s brief. Instead, the People state, “[w]hile the issue of [the] defendant’s sanity at the time of the murder is a very close question, it was squarely within the jury’s province to resolve questions of the relative credibility of the expert opinions related thereto.” This statement does not amount to a concession. It is a candid acknowledgment by the People that the jury’s mandate and function is to resolve issues of credibility.In sum, upon fulfilling my responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v. Danielson, 9 NY3d at 348), and according great deference to the factfinder’s opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 NY3d 383, 410; People v. Beakley, 69 NY2d 490, 495), I will not disturb the instant verdict. The defendant’s remaining contentions are without merit.By Scheinkman, P.J.; Balkin, Hall, Duffy and Brathwaite Nelson, JJ.PEOPLE, etc., res, v. Michael Resnick, ap — (Ind. No. 922/14)Appeal by the defendant, as limited by his motion, from a sentence of the Supreme Court, Queens County (Ronald Hollie, J.), imposed September 30, 2016, as amended October 4, 2016, upon his plea of guilty, on the ground that the sentence was excessive.ORDERED that the sentence, as amended, is affirmed.When the Supreme Court explained the defendant’s waiver of his right to appeal to him, it improperly conflated the right to appeal with the rights automatically forfeited by a plea of guilty. Accordingly, the waiver of the right to appeal was invalid and, therefore, unenforceable (see People v. Wells, 135 AD3d 976, 976). The sentence, however, was not excessive (see People v. Suitte, 90 AD2d 80).SCHEINKMAN, P.J., BALKIN, HALL, DUFFY and BRATHWAITE NELSON, JJ., concur.By Priscilla Hall, J.P.; Hinds-Radix, Maltese and Iannacci, JJ.PEOPLE, etc., res, v. Rodney Bethea, ap — (Ind. No. 10-00766)Gary E. Eisenberg, New City, NY, for appellant, and appellant pro se.David M. Hoovler, District Attorney, Middletown, NY (Nicholas D. Mangold of counsel), for respondent.Appeal by the defendant from a judgment of the County Court, Orange County (Jeffrey G. Berry, J.), rendered June 29, 2011, convicting him of manslaughter in the first degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant’s omnibus motion which were to suppress physical evidence and his statement to law enforcement officials.ORDERED that the judgment is affirmed.Contrary to the defendant’s contention, the record of the pre-trial Huntley hearing (see People v. Huntley, 15 NY2d 72) shows that at the outset of a custodial interview by the police, the defendant made an intelligent, knowing, and voluntary waiver of his Miranda rights (see Miranda v. Arizona, 384 US 436), and that his statement to the police was not the product of coercion (see People v. Mateo, 2 NY3d 383, 413-414; People v. Booker, 49 AD3d 658, 658; People v. Sepulveda, 40 AD3d 1014, 1014).The County Court erred in declining to suppress the statement elicited from the defendant after he unequivocally invoked the right to counsel, as well as evidence from a buccal swab that was taken after the defendant invoked his right to counsel. A suspect in custody who unequivocally requests the assistance of counsel may not be questioned further in the absence of an attorney (see People v. Grice, 100 NY2d 318, 320-321; People v. Glover, 87 NY2d 838, 839; People v. West, 81 NY2d 370, 373-374; People v. Cunningham, 49 NY2d 203, 209). ”A defendant’s unequivocal invocation of counsel while in custody results in the attachment of the right to counsel, indelibly so, meaning that, as a matter of state constitutional law, a defendant cannot subsequently waive the right to counsel unless the defendant is in the presence of an attorney representing that defendant” (People v. Harris, 93 AD3d 58, 66; see People v. Grice, 100 NY2d at 320-321; People v. Cunningham, 49 NY2d at 205). Further, an “‘alleged deprivation of the constitutional right to counsel may be raised on appeal, irrespective of whether such claim has been preserved for appellate review’” (People v. Mateo, 148 AD3d 727, 729, quoting People v. Flournoy, 303 AD2d 762, 762; see People v. Kinchen, 60 NY2d 772, 773; People v. Samuels, 49 NY2d 218, 221).Here, a recording of the defendant’s custodial statement to the police, which was entered into evidence at the hearing, shows that during the interview the defendant twice stated, “I think I need a lawyer.” The defendant’s statements constituted an unequivocal invocation of the right to counsel, and after those statements, the police continued their questioning of the defendant and took no steps to comply with the defendant’s unequivocal request for counsel. Therefore, the remainder of the defendant’s statement after that point, as well as the buccal swab that he provided to the police after that point, should have been suppressed from evidence (see People v. Porter, 9 NY3d 966, 967; People v. Esposito, 68 NY2d 961, 962; People v. Harris, 93 AD3d at 69-70; People v. Wood, 40 AD3d 663, 664). However, this error was harmless, as the evidence of guilt without reference to the statement and buccal swab was overwhelming, and there is no reasonable possibility that the error contributed to the conviction (see People v. Paulman, 5 NY3d 122, 134; People v. Zalevsky, 82 AD3d 1136, 1138).The defendant’s challenge to the jury charge regarding his statement to the police is unpreserved for appellate review (see CPL 470.05[2]). In any event, any error in the court’s instruction was harmless (see People v. Crimmins, 36 NY2d 230, 241-242).The defendant failed to preserve for appellate review his contention that the County Court should have submitted to the jury the count of manslaughter in the second degree (see CPL 470.05[2]; People v. Nunez, 120 AD3d at 716). In any event, the court properly declined to charge the jury as to this count, as there was no reasonable view of the evidence that the defendant acted with anything less than intent to seriously injure or kill the victim (see People v. Alvaradoajcuc, 142 AD3d 1094, 1095; People v. Delgado, 116 AD3d 541; People v. James, 284 AD2d 549).The defendant failed to preserve for appellate review his challenge to the prosecutor’s summation remarks (see CPL 470.05[2]; People v. Bell, 136 AD3d 838, 839). Certain remarks by the prosecutor denigrated the defense and were inflammatory, including her comment that the defendant “had plenty of time to concoct a story,” and the comment that the defendant had failed to pray for the victim. In addition, the prosecutor’s comment that a witness had wiped off a baseball bat was not based on the trial evidence. Nonetheless, these errors were harmless, as there was overwhelming evidence of guilt, and no significant probability that any error in this regard might have contributed to the conviction (see People v. Crimmins, 36 NY2d at 241-242; People v. Brown, 139 AD3d 964, 966). Further, the improper summation remarks were not egregious or pervasive enough to have deprived the defendant of a fair trial (see People v. Nanand, 137 AD3d 945, 947-948; People v. Roscher, 114 AD3d 812, 813). Moreover, the cumulative effect of the errors did not deny the defendant a fair trial (see People v. Crimmins, 36 NY2d at 237-238).Contrary to the defendant’s contentions, raised in his main brief and his pro se supplemental brief, a review of the record shows that the defendant was afforded the effective assistance of counsel (see People v. Benevento, 91 NY2d 708, 712; People v. Baldi, 54 NY2d 137, 147).The sentence imposed was not excessive (see People v. Suitte, 90 AD2d 80).In his pro se supplemental brief, the defendant raises several additional contentions. The defendant’s contentions regarding voir dire are unpreserved for appellate review (see CPL 470.05[2]; see also People v. Vasquez, 89 NY2d 521, 534). In any event, the “scope of a party’s examination of prospective jurors is within the discretion of the trial court” (People v. Miler, 28 NY3d 355, 358). Here, the County Court providently exercised its discretion in permitting the prosecutor to make the challenged remarks during the examination of the prospective jurors (see CPL 270.15[1][c]; People v. Evans, 242 AD2d 948, 949). The defendant’s contention that the court made improper comments to the venire panel is without merit. Although the transcript attributes certain challenged comments to the court, our review of the transcript indicates that those comments were made by the prosecutor. Moreover, the court had discretion to allow those remarks (see id. at 949).The defendant failed to preserve for appellant review his contention that the County Court erred in failing to ask a seated juror whether she was qualified to continue to serve (see CPL 470.05[2]). In any event, the record does not demonstrate that the subject juror made any statements or engaged in any conduct that would indicate that she was “grossly unqualified” to serve on the jury (CPL 270.35[1]). Consequently, the court was not required to ask that juror whether she was qualified to continue to serve (see People v. Delgado, 134 AD3d 1046, 1047; see also People v. Saunders, 83 AD3d 1100).Lastly, the defendant’s contention, raised in his pro se supplemental brief, that the County Court should have precluded the testimony of a witness based on the lack of notice pursuant to CPL 710.30(1) is based on matters dehors the record and, thus, not reviewable on direct appeal.HINDS-RADIX, MALTESE and IANNACCI, JJ., concur.HALL, J.P., dissents, and votes to reverse the judgment, on the law, grant those branches of the defendant’s omnibus motion which were to suppress physical evidence and so much of his statement to law enforcement officials as was made after the defendant invoked his right to counsel, and order a new trial, with the following memorandum:The defendant and the victim had a physical altercation while they were both attending a party at a house in Newburgh. According to the People, shortly after the altercation, on the driveway outside of the house, the defendant repeatedly struck the victim with a baseball bat, causing his death. When the defendant was interrogated by the police the next day, he admitted that he had punched the victim several times in the face, causing him to fall to the ground. However, it was only after the defendant unequivocally invoked his right to counsel, and after the police improperly continued to question the defendant, that the defendant admitted that he struck the victim with a baseball bat. Also following the defendant’s invocation of the right to counsel, the defendant provided a buccal swab to the police. The DNA on the buccal swab was later determined to match the DNA on a baseball bat recovered at the house. Following a suppression hearing, the County Court denied those branches of the defendant’s omnibus motion which were to suppress the buccal swab and the statement made by the defendant after his invocation of the right to counsel. After a jury trial, the defendant was convicted of manslaughter in the first degree (for causing the death of the victim with the intent to cause serious physical injury) and criminal possession of a weapon in the third degree. The defendant appeals.I agree with my colleagues in the majority that the County Court erred in failing to suppress the buccal swab and the statement made by the defendant after his unequivocal invocation of his right to counsel. Contrary to the conclusion of my colleagues in the majority, however, I believe that these errors cannot be deemed harmless beyond a reasonable doubt. Accordingly, I would order a new trial.Because the County Court’s error in failing to suppress the evidence obtained after the defendant’s invocation of the right to counsel constituted constitutional error, the error cannot be deemed harmless unless there is no reasonable possibility that the error might have contributed to the defendant’s conviction (see People v. Crimmins, 36 NY2d 230, 237).Here, there was only one witness at trial who testified that he saw the defendant strike the victim with a baseball bat. That witness testified that he had consumed 4 cups of brandy mixed with soda prior to arriving at the party, and 3 cups of vodka between the time that he arrived at the party and the time of the altercation between the defendant and the victim. The witness testified that he was feeling “a little like pas[t] tipsy” at the time of the altercation. Moreover, the evidence that should have been suppressed—the defendant’s admission that he struck the victim with a baseball bat and the buccal swab that revealed that the defendant had handled a baseball bat recovered at the house—was arguably the most damaging evidence that was presented to the jury. Under the circumstances, I am not satisfied that there is no reasonable possibility that the County Court’s error in allowing the admission of this evidence might have contributed to the conviction (see People v. Goldstein, 6 NY3d 119, 129; People v. Harris, 93 AD3d 58, 74; People D’Angelo, 67 AD2d 931). Notably, the jury found the defendant guilty of manslaughter in the first degree only after it had reported that it was deadlocked on that charge and the trial court delivered an Allen charge (see Allen v. United States, 164 US 492).Accordingly, I vote to reverse and order a new trial.
