Appellate Term, Second Department: June 3, 2020

Second, Eleventh and Thirteenth JudicIal Districts Cases Released on: June 3, 2020 By: Weston, J.P., Aliotta, Siegal, JJ. Appellate Advocates (Alice R. B. Cullina of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Nancy Fitzpatrick Talcott of counsel), for respondent. 2016-1828 Q CR. PEOPLE v. VISCAINO, ANGEL Appeal from a judgment of conviction of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), rendered June 27, 2016. The judgment convicted defendant, upon a jury verdict, of driving while intoxicated per se, common-law driving while intoxicated, passing a red light, and unlicensed operation of a motor vehicle, and imposed sentence. ORDERED that the judgment of conviction is affirmed. Following a jury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law 1192 [2]), common-law driving while intoxicated (Vehicle and Traffic Law 1192 [3]), passing a red light (Vehicle and Traffic Law 1111 [d] [2]), and unlicensed operation of a motor vehicle (Vehicle and Traffic Law 509 [1]). Defendant’s contention that the evidence was insufficient to establish beyond a reasonable doubt his guilt of common-law driving while intoxicated is unpreserved for appellate review (see CPL 470.05 [2]; People v. Hawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish that defendant was intoxicated, in that there existed an “‘actual impair[ment][of] the physical and mental abilities which [he was] expected to possess in order to operate a vehicle as a reasonable and prudent driver’” (People v. Vandover, 20 NY3d 235, 239 [2012], quoting People v. Cruz, 48 NY2d 419, 427 [1979]). Consequently, the People established defendant’s guilt, beyond a reasonable doubt, of common-law driving while intoxicated. Defendant’s contention that the judgment of conviction should be reversed due to allegedly improper comments made by the prosecutor during summation is unpreserved for appellate review inasmuch as defendant either failed to object to such comments, raised general one-word objections, raised objections on different grounds, failed to request curative instructions, or failed to timely move for a mistrial on the specific claims now raised on appeal (see CPL 470.05 [2]; People v. Romero, 7 NY3d 911, 912 [2006]; People v. LaValle, 3 NY3d 88, 116 [2004]; People v. Forde, 152 AD3d 442, 443 [2017]). While the prosecutor’s unwarranted theatrics during summation were inappropriate, they did not rise to the level of misconduct that would warrant a new trial. In any event, the record indicates that the challenged comments were fair responses to comments made in defense counsel’s summation (see People v. Negrin, 140 AD3d 1192, 1194 [2016]), were within the broad bounds of rhetorical comment permissible in summations (see People v. Galloway, 54 NY2d 396, 399 [1981]; People v. Mahoney, 175 AD3d 1034, 1036 [2019]), or were fair comments on the evidence (see People v. Ashwal, 39 NY2d 105 [1976]), and did not constitute an impermissible effort to shift the burden of proof (see People v. Robinson, 138 AD3d 764, 765 [2016]). Defendant’s contention that the court erred in denying his request to submit to the jury the offense of driving while ability impaired (Vehicle and Traffic Law 1192 [1]) specifically as a “lesser included offense” of driving while intoxicated (per se) (Vehicle and Traffic Law 1192 [2]) is without merit (see People v. Brown, 53 NY2d 979, 981 [1981], revg 73 AD2d 112 [1980]). Defendant’s contention on appeal that the court erred in failing to submit to the jury the offense of driving while ability impaired (Vehicle and Traffic Law 1192 [1]) as a lesser included offense of driving while intoxicated (common law) (Vehicle and Traffic Law 1192 [3]) is unpreserved for appellate review (see CPL 300.50 [2]), and we decline to review it in the exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]). Accordingly, the judgment of conviction is affirmed. WESTON, J.P., ALIOTTA and SIEGAL, JJ., concur. May 29, 2020 By: Aliotta, P.J., Elliot, Toussaint, JJ. Cornicello, Tendler & Baumel-Cornicello, LLP (Jay H. Berg of counsel), for appellant. Brooklyn Legal Services (Joshua Elmore of counsel), for respondents. 2018-713 K C. AGRAS REALTY, LLC v. SUSI Appeal from an order of the Civil Court of the City of New York, Kings County (Gary Franklin Marton, J.), dated September 12, 2017. The order denied the branch of landlord’s motion seeking the entry of a final judgment of possession and the issuance of a warrant of eviction based on tenants’ failure to comply with a stipulation of settlement in a holdover summary proceeding. ORDERED that the order is affirmed, without costs. In this holdover proceeding, landlord and tenants entered into a stipulation of settlement dated April 27, 2016, wherein tenants agreed, as pertinent here, to refrain from smoking and permitting any visitors to smoke in their apartment for a period of one year and to ensure that no cigarette smoke would travel from their apartment to any other apartments and common areas of the building should they smoke in their apartment after that one-year period. The stipulation of settlement further provided that, “[i]n the event of a breach of this stipulation by [tenants, landlord] may movefor an evidentiary hearing to determine whether there has been a default, and, if so, may move for the immediate entry of a judgment of possession and a warrant of eviction.” In May 2016, landlord moved for, among other things, the entry of a final judgment of possession and the issuance of a warrant of eviction based on tenants’ alleged failure to comply with the stipulation. After a hearing, the Civil Court denied the branch of landlord’s motion seeking the entry of a final judgment of possession and the issuance of a warrant of eviction, finding that tenants had not breached the stipulation. In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v. Blackwood, 85 AD3d 1116, 1116 [2011]; Zeltser v. Sacerdote, 52 AD3d 824, 826 [2008]). Upon a review of the record, we find that the record supports the court’s conclusion that landlord failed to establish a breach of the stipulation. Accordingly, the order is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. May 29, 2020 By: Aliotta, P.J., Elliot, Toussaint, JJ. Robert DiDio, for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Kathryn E. Mullen of counsel), for respondent. 2018-752 Q CR. PEOPLE v. GEOHAGHAN, GERSHMAN Appeal, by permission, from an order of the Criminal Court of the City of New York, Queens County (John F. Zoll, J.), dated January 26, 2018. The order denied, without a hearing, defendant’s motion, pursuant to CPL 440.10, to vacate a judgment convicting him, upon his plea of guilty, of criminal sale of marihuana in the fourth degree. ORDERED that the order is reversed, on the law, and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant’s motion to vacate the judgment of conviction. In 2004, defendant was convicted, upon his plea of guilty, of criminal sale of marihuana in the fourth degree (Penal Law 221.40). In August of 2017, defendant moved, pursuant to CPL 440.10 (1) (h), to vacate the judgment of conviction on the ground that, at the 2004 plea proceeding, his assigned attorney had misadvised him about the resulting immigration consequences of his plea. The People opposed the motion, contending that it should be denied since defendant had failed to meet his burden of establishing that his counsel’s representation fell below an objective standard of reasonableness, or that he had been prejudiced thereby, because defendant’s self-serving affidavit was the sole source supporting his claim of ineffective assistance of counsel and because he failed to demonstrate that the conviction had rendered him automatically deportable. In an order entered January 26, 2018, the Criminal Court, without a hearing, denied defendant’s motion. We find that defendant’s claim of ineffective assistance of counsel is sufficient to constitute a legal basis for the relief requested under both the United States and New York State constitutions (see US Const Amend VI; NY Const, art I, 6) and that his motion papers were properly supported by sworn allegations of fact (see CPL 440.10 [1] [h]; 440.30 [4] [a], [b]; People v. McDonald, 1 NY3d 109, 114-115 [2003]; People v. McKenzie, 4 AD3d 437 [2004]; People v. Bueso, 66 Misc 3d 143[A], 2020 NY Slip Op 50170[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]; People v. Wilson, 56 Misc 3d 22 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Since the People did not refute defendant’s allegations of fact with unquestionable documentary proof (see CPL 440.30 [4] [c]), and it cannot be said that “there is no reasonable possibility that such allegation[s] [are] true” (CPL 440.30 [4] [d]; see People v. Malik, 166 AD3d 650 [2018]), in order for the court to have made the required “findings of fact essential to the determination” of the motion (CPL 440.30 [5]), a hearing was necessary (see McDonald, 1 NY3d at 114-115; People v. Gonzalez, 176 AD3d 589 [2019]; People v. Gaston, 163 AD3d 442 [2018]; McKenzie, 4 AD3d 437; Wilson, 56 Misc 3d 22; People v. Hassan, 36 Misc 3d 160[A], 2012 NY Slip Op 51823[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the order is reversed and the matter is remitted to the Criminal Court for a new determination, following a hearing, of defendant’s motion to vacate the judgment of conviction. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. May 29, 2020 By: Aliotta, P.J., Elliot, Toussaint, JJ. Eppinger, Reingold & Korder (Mitchell L. Korder of counsel), for appellants. Henry Gallardo, defendant pro se (no brief filed). Hammill, O’Brien, Croutier, Dempsey, Pender & Koehler, P.C. (Anton Piotroski of counsel), for nonparty-respondent. 2018-1003 K C. NYC TAXI GROUP, INC. v. GALLARDO Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered April 16, 2018. The order granted a motion by the law firm of Hammill, O’Brien, Croutier, Dempsey, Pender & Koehler, P.C. to be relieved as counsel for defendant. ORDERED that the order is affirmed, with $30 costs. In this action, plaintiffs seek to recover the principal sum of $12,368.53 for property damage they allegedly sustained as a result of an automobile accident that occurred on October 11, 2014. The law firm of Hammill, O’Brien, Croutier, Dempsey, Pender & Koehler, P.C. (Hammill, O’Brien), which had been retained by defendant’s insurer, the Middlesex Insurance Company (Middlesex), interposed an answer on defendant’s behalf and participated in the litigation of the case on defendant’s behalf. Thereafter, Hammill, O’Brien moved to be relieved as counsel for defendant. In support of Hammill, O’Brien’s motion, attorney Patricia Donohoe stated that Middlesex had rescinded its contract of insurance with defendant based upon a material misrepresentation that defendant had made to Middlesex, and, in the Supreme Court, Queens County, had been relieved of its obligation to defend or indemnify defendant. Donohoe provided a copy of an order of the Supreme Court, Queens County, in the matter of Middlesex Ins. Co.v Gallardo (index No. 39/17 [Timothy J. Dufficy, J.]), entered October, 12, 2017, in which the Supreme Court granted Middlesex’s motion for, among other things, a declaratory judgment that Middlesex had no obligation to defend or indemnify defendant in connection with the October 11, 2014 accident. Plaintiffs opposed Hammill, O’Brien’s motion. By order entered April 16, 2018, the Civil Court (Cenceria P. Edwards, J.) granted the motion, relieved Hammill, O’Brien as counsel for defendant, and stayed the action for 60 days to afford defendant an opportunity to obtain new counsel. Plaintiffs appeal. “As a general rule, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice” (Rivardeneria v. New York City Health & Hosps. Corp., 306 AD2d 394, 395 [2003]). Here, the Supreme Court’s determination, made subsequent to Middlesex’s retention of Hammill, O’Brien to act as counsel to defendant, that Middlesex had no duty to defend or indemnify defendant, is binding (see Appolino v. Delorbe, 24 AD3d 252 [2005]). In this circumstance, the Civil Court properly granted Hammill, O’Brien’s motion to be relieved as defendant’s attorney. We reach no other issue. Accordingly, the order is affirmed. ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur. May 29, 2020 By: Weston, J.P., Elliot, Siegal, JJ. Rosenberg & Estis, P.C. (Alexander Lycoyannis of counsel), for appellant. The Legal Aid Society (Clinton J. Guthrie and Stephen Myers of counsel), for respondent. 2018-1443 K C. 1035 WASHINGTON REALTY, LLC v. WESTON Appeal from a final judgment of the Civil Court of the City of New York, Kings County (Marc Finkelstein, J.), entered June 12, 2018. The final judgment, entered pursuant to a decision of that court dated September 26, 2017, after a nonjury trial, dismissed the petition in a summary proceeding brought pursuant to RPAPL 713 (7). ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 26, 2017 is deemed a premature notice of appeal from the final judgment entered June 12, 2018 (see CPLR 5520 [c]); and it is further, ORDERED that the final judgment is affirmed, without costs. Landlord commenced this licensee summary proceeding (see RPAPL 713 [7]) to recover possession of a rent-stabilized apartment, alleging that the tenant of record, Winston Weston, had passed away and that the tenant’s sister-in-law, Pearline Weston (occupant), no longer had a license to occupy the apartment after landlord’s notice to quit expired. After a nonjury trial, the Civil Court found that occupant had established that she was a nontraditional family member of the tenant of record pursuant to Rent Stabilization Code (9 NYCRR) (RSC) 2520.6 (o) (2) and that she was entitled to succession rights. Consequently, the Civil Court entered a final judgment on June 12, 2018 dismissing the petition. We affirm. The Civil Court’s findings “should not be disturbed upon appeal unless it is obvious that its conclusions could not be reached under any fair interpretation of the evidence” (RHM Estates v. Hampshire, 18 AD3d 326, 327 [2005]). Here, the Civil Court’s conclusions that occupant and the tenant had formed a nontraditional family relationship and that occupant is entitled to succession rights are amply supported by the record. Of the eight factors listed in RSC 2520.6 (o) (2), the only two that were not established were that occupant and the tenant of record admittedly had not intermingled finances or formalized legal obligations, intentions and responsibilities. However, each of the other six factors were established: occupant and the tenant had been friends for decades and had lived together for 11 years; they had relied on each other for paying their household expenses; they had spent several holidays, family events, and religious events together; and they clearly had considered themselves to be family members, despite the passing of their connecting family member, John Weston. Moreover, after the tenant had suffered a stroke, occupant took care of many, if not all of, the tenant’s basic functions, including bathing him, buying groceries, preparing meals, changing bed linens, doing the household laundry, coordinating the tenant’s doctor’s appointments, coordinating with the tenant’s health aides, running errands for the tenant, and helping to coordinate the tenant’s medications. As set forth in RSC 2520.6 (o) (2), no single factor is determinative in determining whether a nontraditional family relationship exists, and a deficiency in the formalization of legal and financial obligations is not dispositive (see 178 E. 70th St., LLC v. Weizmann, 61 Misc 3d 147[A], 2018 NY Slip Op 51717[U] [App Term, 1st Dept 2018]). “[T]he absence of an intermingling of finances has specifically been found not to negate a conclusion that two individuals had a family-like relationship” (354 Atl. Ave., LLC v. Noronha, 64 Misc 3d 134[A], 2019 NY Slip Op 51101[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; see RHM Estates, 18 AD3d at 327). “Moreover, the absence of documentary evidence does not undermine a succession rights claim when the totality of the testimonial evidenceestablishes the requisite emotional and financial commitment” (Matter of 530 Second Ave. Co., LLC v. Zenker, 160 AD3d 160, 163 [2018]). In view of the foregoing, we find no basis to disturb the Civil Court’s conclusions. Accordingly, the final judgment is affirmed. WESTON, J.P., ELLIOT and SIEGAL, JJ., concur. May 29, 2020 By: Aliotta, P.J., Weston, Siegal, JJ. Horing, Welikson & Rosen P.C. (Niles C. Welikson of counsel), for appellant. Catholic Migration Services (Thomas Power and Andrew Lehrer of counsel), for respondent. 2018-1773 Q C. JAMAICA SEVEN, LLC v. VILLA Appeal from an order of the Civil Court of the City of New York, Queens County (Joel R. Kullas, J.), entered July 17, 2018. The order, insofar as appealed from, upon reargument, adhered to the determination in a prior order of that court dated February 28, 2018 which (1) granted the branches of a motion by occupant Luis G. Villa, Jr., seeking summary judgment dismissing the petition on the ground that occupant is entitled to succession rights as a first successor and to direct landlord to offer occupant a rent-stabilized renewal lease without a vacancy increase, and (2) denied landlord’s cross motion for summary judgment, in a licensee summary proceeding. ORDERED that the order entered July 17, 2018, insofar as appealed from, is modified by deleting the provisions thereof which, upon reargument, adhered to so much of the order dated February 28, 2018 as granted the branches of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition on the ground that occupant is entitled to succession rights as a first successor and to direct landlord to offer occupant a rent-stabilized renewal lease without a vacancy increase and substituting therefor provisions (a) granting the branch of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition for failure to state a cause of action, and (b) dismissing the branch of occupant’s motion seeking to direct landlord to offer occupant a renewal lease without a vacancy increase; as so modified, the order, insofar as appealed from, is affirmed, without costs. After the death of their mother, Luis G. Villa, Jr. (occupant) and his sister asserted succession rights and requested that landlord provide them with a renewal lease. Landlord acknowledged that occupant and his sister had succession rights and offered occupant and his sister a lease based upon such rights; however, the rent provided for in the lease was at a vacancy rate, rather than a renewal rate. When occupant and his sister refused to sign the lease tendered by landlord, landlord served a 10-day notice to quit and commenced this licensee summary proceeding (RPAPL 713 [7]) upon a bare allegation that occupant and his sister were licensees whose license had expired upon their mother’s death. Occupant’s answer and subsequent motion for summary judgment sought dismissal of the petition, including on the grounds that occupant had succession rights and that the licensee petition failed to state a cause of action because landlord had previously not disputed occupant’s succession rights. Occupant’s motion also sought an order directing landlord to offer occupant a renewal lease without a vacancy increase. In opposition to the motion, landlord asserted that it was entitled to offer a renewal lease with a vacancy increase because occupant and his sister were second successors pursuant to Rent Stabilization Law of 1969 (Administrative Code of City of NY) 26-512 (f), as occupant’s mother had previously obtained succession rights to the apartment from her mother. Landlord also crossmoved for summary judgment. In an order dated February 28, 2018, the Civil Court, among other things, granted the branches of occupant’s motion seeking summary judgment on the ground that occupant has succession rights as a first successor and to direct landlord to issue a renewal lease without a vacancy increase. Landlord appeals from so much of an order of the Civil Court entered July 17, 2018 as, upon reargument, adhered to the February 28, 2018 determination. Insofar as relevant to this appeal, this licensee summary proceeding is predicated upon a claim that occupant’s license to occupy the premises terminated upon his mother’s death. However, inasmuch as occupant has succession rights, as landlord has acknowledged, his license to occupy the premises did not expire upon his mother’s death. Thus, this licensee proceeding does not lie and the branch of occupant’s motion seeking to dismiss the petition for failure to state a cause of action should have been granted. Moreover, even if a licensee proceeding was the appropriate proceeding for landlord to commence, the petition is in any event defective. A petition must state the ultimate facts upon which the proceeding is based, and a petition which contains material omissions is subject to dismissal (see RPAPL 741; Migliaccio v. Childs, 65 Misc 3d 131[A], 2019 NY Slip Op 51575[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Brookwood Coram I, LLC v. Oliva, 47 Misc 3d 140[A], 2015 NY Slip Op 50607[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]). Here, the petition contains material omissions regarding the facts that landlord had offered occupant and his sister a renewal lease and that it had acknowledged their claim to succession rights when it had offered the lease. As landlord states in its reply brief on appeal, “the entire basis of this holdover is whether [occupant] is a first or second successor tenant allowing [landlord] to take a vacancy increase on its proffered lease.” Inasmuch as the petition omits these material allegations regarding the ultimate facts and makes only a bare allegation that occupant and his sister are licensees, the petition fails to state the facts upon which the petition is based and must be dismissed on that basis as well (see Migliaccio, 65 Misc 3d 131[A], 2019 NY Slip Op 51575[U]; Brookwood Coram I, LLC, 47 Misc 3d 140[A], 2015 NY Slip Op 50607[U]; Cintron v. Pandis, 34 Misc 3d 152[A], 2012 NY Slip Op 50309[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; Joseph M. d’Assern Hous. Corp. v. Day, 24 Misc 3d 132[A], 2009 NY Slip Op 51377[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). The branch of occupant’s motion seeking to direct landlord to offer occupant a renewal lease without a vacancy increase must be dismissed, as the Civil Court lacks jurisdiction to grant that branch of the motion, which seeks injunctive relief (see North Waterside Redevelopment Co. v. Febbraro, 256 AD2d 261 [1998]; 133 Plus 24 Sanford Ave. Realty Corp. v. Xiu Lan Ni, 47 Misc 3d 55 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Parker v. Howard Ave. Realty, 56 Misc 3d 15 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and the issue of whether occupant is a first or second successor should not have been reached. Accordingly, the order entered July 17, 2018, insofar as appealed from, is modified by deleting the provisions thereof which, upon reargument, adhered to so much of the order dated February 28, 2018 as granted the branches of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition on the ground that occupant is entitled to succession rights as a first successor and to direct landlord to offer occupant a rent-stabilized renewal lease without a vacancy increase and substituting therefor provisions (a) granting the branch of the motion by occupant Luis G. Villa, Jr. seeking summary judgment dismissing the petition for failure to state a cause of action, and (b) dismissing the branch of occupant’s motion seeking to direct landlord to offer occupant a renewal lease without a vacancy increase. ALIOTTA, P.J., WESTON and SIEGAL, JJ., concur. May 29, 2020 Ninth and Tenth JudicIal Districts Cases Released on: June 3, 2020 By: Tolbert, J.P., Garguilo, Ruderman, JJ. Umadevi Chalasani, appellant pro se. 875 Turnpike Realty, LLC, f/k/a Shawn Elliott’s Luxury Homes and Estates, LLC, defendant pro se (no brief filed). NAM General Counsel (Jacqueline Silvey of counsel), for respondent. 2018-1585 N C. NATIONAL ARBITRATION AND MEDIATION, LLC v. 875 TURNPIKE REALTY, LLC Appeal from an order of the District Court of Nassau County, First District (Robert E. Pipia, J.), dated March 12, 2018. The order granted plaintiff’s motion for summary judgment. ORDERED that the order is affirmed, without costs. Plaintiff, an arbitration services provider, commenced this action to recover sums allegedly owed by defendants for services that plaintiff had rendered to them. Plaintiff subsequently moved for summary judgment against defendant Umadevi Chalasani, from whom plaintiff sought $9,839.95 in unpaid fees. The District Court granted the motion. On appeal, Chalasani contends that she is not responsible for the fees charged to her, which represent 50 percent of the cost of the arbitration services rendered by plaintiff to defendants. Plaintiff, however, provided evidence that Chalasani asserted an arbitration counterclaim and that plaintiff sent Chalasani an email advising her that filing her counterclaim required payment of a $2,510 fee, which included an administrative fee and three hours of arbitrator time. The email further advised Chalasani that “any additional time incurred by the Arbitrator beyond the time included in the filing fees of the parties [would] be billed at the rate of $620 per hour, split evenly between the parties and invoiced to [her] accordingly.” Plaintiff further established that, in response to the email, Chalasani submitted a check for $2,510, thereby establishing her agreement to the aforementioned terms. Thus, contrary to Chalasani’s contention, the record establishes that she is responsible for the fees charged to her (see Hussey v. Leggio Agency, 299 AD2d 690, 691 [2002]). Consequently, the District Court properly granted plaintiff’s motion for summary judgment. Accordingly, the order is affirmed. TOLBERT, J.P., GARGUILO and RUDERMAN, JJ., concur. May 28, 2020 By: Tolbert, J.P., Garguilo, Ruderman, JJ. Legal Aid Society of Westchester County (Debra A. Cassidy of counsel), for appellant. Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent. 2018-2151 W CR. PEOPLE v. ORTEGA-FLORES, FREDDY Appeal from a judgment of conviction of the Justice Court of the Town of Cortlandt, Westchester County (Gerald M. Klein, J.), rendered September 25, 2017. The judgment convicted defendant, upon his plea of guilty, of driving while intoxicated (common law), and imposed sentence. The appeal brings up for review an order of that court dated July 31, 2017 denying defendant’s motion to suppress evidence. ORDERED that the judgment of conviction is affirmed. Defendant was charged in six simplified traffic informations with, respectively, driving while intoxicated (common law) (Vehicle and Traffic Law 1192 [3]), refusal to take a breath test (Vehicle and Traffic Law 1194 [1] [b]), driving across official markings (Vehicle and Traffic Law 1227 [1]), consumption or possession of alcoholic beverages in certain motor vehicles (Vehicle and Traffic Law 1128 [d]), failing to keep right (Vehicle and Traffic Law 1120 [a]) and unlicensed operation of a motor vehicle (Vehicle and Traffic Law 509 [1]). Defendant moved to suppress noticed statements and his refusal to submit to chemical breath testing. At a hearing on defendant’s motion, in which defendant had the assistance of a Spanish interpreter, a state trooper testified that she and her partner had effected a traffic stop of a vehicle driven by defendant after having observing it swerve, approximately four times, into a lane for oncoming traffic. The trooper saw multiple, partially consumed bottles of beer in the vehicle, and observed that defendant had droopy, bloodshot, watery eyes, had a strong odor of alcohol coming from his breath and had to balance himself while exiting his vehicle. When the trooper asked defendant for his driver’s license, defendant instead presented his Mexican consular identification card. Throughout their interaction, the trooper spoke only in English, and defendant responded solely in English, which responses the trooper fully comprehended. In particular, when the trooper, as part of her prearrest investigation, asked defendant whether he had been drinking, he responded, “No, no. I don’t drink nothing. My friends were drinking.” Defendant failed each of three field sobriety tests. He consented to a preliminary breath test (PBT), during which, the trooper testified, her partner had told defendant to “blow” in Spanish. Defendant’s blood alcohol content was twice the legal limit. The trooper then arrested defendant for driving while intoxicated. She then read defendant his Miranda (Miranda v. Arizona, 384 US 436 [1966]) rights and the refusal warnings, both in English. On three separate occasions, defendant refused chemical testing of his breath. In an order dated July 31, 2017, the Justice Court denied defendant’s motion to suppress his noticed statement and refusal. On August 21, 2017, defendant pleaded guilty to driving while intoxicated (common law), with the assistance of a Spanish interpreter. Immediately prior to so pleading, defendant signed a waiver of right to appeal form. His plea was accepted by the court, and, on September 25, 2017, he was sentenced in accordance with the plea agreement. We agree with defendant that his waiver of his right to appeal was not knowing, voluntary and intelligent. Both the prosecutor, who conducted the plea allocution, and the court “failed to advise the defendant that he would ordinarily retain the right to appeal even after pleading guilty, but that in this case he was being asked to voluntarily relinquish that right as a condition of the plea agreement” (People v. Mojica, 178 AD3d 856, 856-857 [2019]). As such, the transcript “does not demonstrate that the defendant understood the nature of the right he was being asked to waive or the distinction between the right to appeal and the other trial rights which are forfeited incident to a plea of guilty” (People v. Harris, 175 AD3d 1555, 1557 [2019]). Although defendant signed a written waiver of his right to appeal, it, too, failed to distinguish correctly between those appellate rights he would be required to waive as a condition of the plea deal, and those appellate rights he would retain. Rather, the written waiver, by stating that defendant was required to agree that his “conviction and sentence will not be reviewed by a higher court and will become final,” created the incorrect impression that this appellate waiver was absolute. In reality, “while the phrase ‘waiver of the right to appeal’ is a ‘useful shorthand’, the term ‘can misleadingly suggest a monolithic end to all appellate rights [when i]n factno appeal waiver serves as an absolute bar to all appellate claims’” (People v. Thomas, __ NY3d __, 2019 NY Slip Op 08545, *4 [2019], quoting Garza v. Idaho, 586 US __, 139 S Ct 738, 744 [2019]), including some claims pertaining to the conviction and sentence, e.g., “the constitutionally protected right to a speedy trial, challenges to the legality of court-imposed sentences, and questions as to the defendant’s competency” (People v. Callahan, 80 NY2d 273, 280 [1992] [citations omitted]). In any event, “a written waiver is not a complete substitute for an on-the-record explanation of the nature of the right to appeal, and some acknowledgment that the defendant is voluntarily giving up that right” (People v. Etienne, 152 AD3d 790, 790 [2017] [internal quotation marks omitted]). Even though defendant attested that defense counsel explained the flawed written waiver to him, “it will not be sufficient for the trial court to defer to the defendant’s off-the-record conversations with defense counsel by merely confirmingthat [defense counsel] has discussed the waiver of the right to appeal with the defendant” (People v. Neilson, 167 AD3d 779, 780 [2019] [internal quotation marks omitted]). Because defendant’s waiver is infirm, it does not preclude appellate review of his challenge to the Justice Court’s order denying suppression of his noticed statements and refusal. However, the court’s order was decided correctly, and defendant’s arguments to the contrary are unpersuasive. First, defendant’s contention that his noticed statement was the product of a custodial interrogation, without the benefit of prior warnings, pursuant to Miranda v. Arizona (384 US 436), is meritless. The statement was elicited by the trooper during a “‘temporary roadside detention pursuant to a routine traffic stop,’ which is ‘not custodial within the meaning of Miranda’” (People v. Williams, 81 AD3d 993, 993 [2011], quoting People v. Myers, 1 AD3d 382, 383 [2003]). Defendant’s alternate contention that his noticed statements and refusal were not voluntary because the trooper spoke with him in English only, despite his lack of proficiency in the language is also without merit. Contrary to defendant’s assertion on appeal, the fact that he was a Mexican national, and that Spanish may have been his first language, does not, in and of itself, constitute a valid presumption that he could not speak or understand English sufficiently when conversing with the trooper. The phraseology of defendant’s noticed statement, “No, no. I don’t drink nothing; my friends were drinking,” while grammatically incorrect, demonstrated both defendant’s understanding of the English-spoken question that elicited the response, and his ability to respond intelligibly and understandably in English. Finally, the trooper’s partner’s use of one Spanish word, which was unsolicited by defendant, does not allow for the reasonable inference that defendant’s overall understanding of the English language was deficient either. Quite the opposite, defendant appeared to understand the trooper’s various questions, all asked in English, and he responded in kind. Defendant never “stated that his understanding of English was limited” (People v. Santos, 112 AD3d 757, 758 [2013]), requested an interpreter or translation at that time, or otherwise demonstrated that “his English language comprehension was so deficient that he could not understand the import of his rights” (People v. Jin Cheng Lin, 26 NY3d 701, 725 [2016]). In sum, “there is record support for the lower court['s] determinations that defendant understood the import of his Miranda rights” and the refusal warnings (id. at 726). Defendant’s claim that his plea was not knowing, voluntary, or intelligent is unpreserved for appellate review, as defendant did not move to vacate his plea or otherwise raise the concerns he now raises on appeal at his plea colloquy, at his sentencing over a month later, or at any time in between (see People v. Monroe, 174 AD3d 649, 650 [2019]; People v. Plaza, 178 AD3d 958 [2019]; People v. Tong, 238 AD2d 607 [1997]), and we decline to review his claim in the interest of justice. In any event, on the merits, defendant’s arguments are unavailing. Accordingly, the judgment of conviction is affirmed. TOLBERT, J.P., GARGUILO and RUDERMAN, JJ., concur. May 28, 2020 By: Tolbert, J.P., Adams, Ruderman, JJ. Douglas S. Trokie, appellant pro se. Keane & Beane, P.C. (Edward F. Beane of counsel), for respondent. 2019-872 W CR. PEOPLE v. TROKIE, DOUGLAS S. Appeal from a judgment of conviction of the Justice Court of the Town of Rye, Westchester County (Anthony M. Provenzano, J.), rendered March 26, 2019. The judgment, rendered pursuant to a decision of that court dated March 3, 2019, after a nonjury trial, convicted defendant of failing to remove snow and ice from a sidewalk, and imposed sentence. ORDERED that, on the court’s own motion, the notice of appeal by defendant from the decision dated March 3, 2019 is deemed a valid notice of appeal from the judgment of conviction (see CPL 460.10 [6]); and it is further, ORDERED that the judgment of conviction is affirmed. Defendant was charged, in four separate accusatory instruments, with violating Rye Brook Village Code 186-1 (A) based upon allegations that, on four separate dates (i.e., January 6, 2018, February 8, 2018, February 19, 2018, and March 9, 2018), defendant had failed to remove snow and ice from a sidewalk on North Ridge Street, which was located behind his house. The evidence adduced at a nonjury trial established that between the sidewalk and the rear property line of the property on which defendant’s house stood was an area reserved for widening North Ridge Street. After the trial, the Justice Court, in a decision dated March 3, 2019, dismissed the three accusatory instruments charging violations on January 6, 2018, February 8, 2018 and February 19, 2018 on the ground that these accusatory instruments failed to allege all the elements of the charged offense, but found defendant guilty of the charge concerning the violation on March 9, 2018. Defendant appeals, contending, in effect, that the conviction was not supported by legally sufficient evidence. Rye Brook Village Code 186-1 (A) provides, in pertinent part: “Every owner, lessee, tenant, occupant or other person having charge or control of any building or lot of land abutting upon any street or public place where the sidewalk is flagged, concreted or otherwise paved or laid shall, within 24 hours after the snow ceases to fall, remove the snow and ice from such sidewalk so as to provide a continuous passageway.” In order to convict defendant of violating Rye Brook Village Code 186-1 (A), the People must prove beyond a reasonable doubt that (1) defendant owned or otherwise had charge or control of the property at issue; (2) the property abutted upon a street or public place where the sidewalk that defendant was required to remove snow and ice from was flagged, concreted or otherwise paved or laid; and (3) defendant did not, within 24 hours after the snow ceased to fall, remove the snow and ice from such sidewalk. Rye Brook Village Code 1-15 provides that a “street” shall include “the traveled roadway, unpaved portions and sidewalks.” Here, it is undisputed that, as of March 9, 2018, defendant owned the property in question and failed to, within 24 hours after the snow ceased to fall, remove the snow and ice from the sidewalk at issue. Furthermore, the People proffered evidence that the right of way of North Ridge Street covered not only the traveled roadway, but also, as pertinent here, the area where the sidewalk was laid and, further, the area reserved for widening North Ridge Street. Thus, under the Code’s expansive definition of the term “street” (see Rye Brook Village Code 1-15), North Ridge Street should be considered to include, among other things, the sidewalk area and the reserved area. As defendant acknowledges that his property abutted upon the reserved area, it follows that the property abutted upon North Ridge Street a street where the sidewalk was laid. Consequently, viewing the evidence in the light most favorable to the People (see People v. Contes, 60 NY2d 620, 621 [1983]), we find that the evidence adduced at trial was legally sufficient to establish defendant’s guilt, beyond a reasonable doubt, of violating Rye Brook Village Code 186-1 (A). Defendant’s remaining contentions are either unpreserved for appellate review (see CPL 470.05 [2]) or improperly raised for the first time in defendant’s reply brief (see People v. Shaw, 126 AD3d 1016, 1017 [2015]). Accordingly, the judgment of conviction is affirmed. ADAMS and RUDERMAN, JJ., concur. TOLBERT, J.P., taking no part. May 28, 2020 By: Tolbert, J.P., Garguilo, Ruderman, JJ. Raymond Negron, for appellant. Office of the Brookhaven Town Attorney (Edward A. Flood of counsel), for respondent. 2019-1242 S CR. PEOPLE v. AURIGEMA, JACQUELINE Appeal from an amended judgment of conviction of the District Court of Suffolk County, Sixth District (James P. Flanagan, J.), rendered June 20, 2019. The amended judgment, after a hearing, revoked a sentence of a conditional discharge previously imposed by that court, upon a finding that defendant had violated a condition thereof, and resentenced defendant to pay an additional $100 fine upon her previous conviction of violating Town of Brookhaven Code 85-218. ORDERED that the amended judgment of conviction is affirmed. Defendant pleaded guilty to, among other things, violating Brookhaven Town Code 85.218 in that she did not have a permit for a shed and fence located on her property. On June 21, 2018, the District Court sentenced defendant to a conditional discharge, which required her to, among other things, apply to the Board of Zoning Appeals (BZA) for a shed and fence permit within 30 days, and comply with the BZA decision within 30 days after it was rendered. On February 7, 2019, a declaration of delinquency was filed, wherein it was alleged that defendant had violated the conditions by not applying to the BZA within the requisite 30-day period. The evidence at the delinquency hearing established that, prior to submitting an application to the BZA, defendant was first required to apply and be denied a building permit from the Brookhaven Town (Town) Building Department. The hearing testimony further established that, on October 18, 2018, the Town’s investigator went to the BZA and determined that there was no application on file for a permit for defendant’s property with respect to a proposed shed or fence. Defendant’s husband testified that he had a telephone conversation with the chief building inspector of the Town Building Department on March 24, 2019 and was informed that defendant’s property did not require a permit for the shed and fence, and thus the Building Department would not accept defendant’s building permit application. The People called the chief building inspector as a rebuttal witness, who testified that he had “never made a specific determination on that property” and never told defendant’s husband that they did not need to go to the BZA. Defendant thereafter sought to call, as a rebuttal witness, her expediter, whom defendant had hired to submit her building permit application and who had gone to the Town Building Department. Defendant also sought to call, as a rebuttal witness, her former defense attorney, who had allegedly been informed by a Town Building Department employee that defendant did not need a building permit for the shed and fence, and therefore did not need to go to the BZA. The hearing court denied defendant’s request to call these rebuttal witnesses. The evidence presented at the delinquency hearing further established that the BZA did in fact issue defendant a denial notice dated April 4, 2019. Upon being made aware of the denial notice by defense counsel, the hearing court called defendant to testify. Defense counsel raised no objection and defendant did not invoke her Fifth Amendment right against self-incrimination. Defendant’s sole testimony was that she did not recall when she first saw the BZA denial notice. At the conclusion of the delinquency hearing, the District Court (James P. Flanagan, J.) found that defendant had violated a condition of her conditional discharge and resentenced defendant. On appeal, defendant contends, in effect, that the hearing court committed a “mode of proceeding” error by calling defendant as a witness in violation of her Fifth Amendment right against self-incrimination. Defendant further argues that the hearing court erred in denying defendant’s request to call two rebuttal witnesses and that the People failed to meet their burden of proof. Defendant failed to preserve her Fifth Amendment contention, as defense counsel raised no objection during the hearing and defendant did not invoke her Fifth Amendment right against self-incrimination. While this case involves the novel situation of the hearing court calling defendant as a witness, we find no exception to the preservation rule here. A “mode of proceeding” exception to the preservation rule is a designation “reserved for the most fundamental flaws” (People v. Becoats, 17 NY3d 643, 651 [2011]) that “‘go to the essential validity of the process’” (People v. Mack, 27 NY 3d 534, 541 [2016], quoting People v. Kelly, 5 NY3d 116, 119-120 [2005]). Because mode of proceeding errors carry extreme and mandatory consequences i.e., immunity from the rules governing preservation, waiver, and harmless error the doctrine has historically been confined to a “tightly circumscribed class” of cases (Kelly, 5 NY3d at 120). Although extremely unusual, we find that the circumstances of this case do not fall within the “tightly circumscribed class” of cases which provide an exception to the preservation requirement. In any event, “[t]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating” (Fisher v. United States, 425 US 391, 408 [1976]). Here, defendant’s testimony was not incriminating because her sole testimony was that she did not recall when she first saw the April 4, 2019 BZA denial letter. In the instant case, defendant’s testimony was “essentially a neutral act” which was not, of itself, incriminating (California v. Byers, 402 US 424, 432 [1970]). Defendant next contends that the court erred in denying defendant’s request to call two rebuttal witnesses. We disagree. While CPL 410.70 (3) confers upon a defendant the right to call witnesses at a delinquency hearing, “that right is not absolute, and nothing in the language of the statute warrants construing itas conferring on defendant a right of compulsory process broader than that accorded by the Federal Constitution” (People v. Chipp, 75 NY2d 327, 337 [1990]). Moreover, “[t]o accord every defendant an absolute right to call [every witness] at a [declaration of delinquency] hearing would enable defendantsto transform the hearing into a discovery proceeding neither authorized nor contemplated by the Legislature” (Chipp, 75 NY2d at 337). Here, defendant sought to call her expediter and former defense attorney as rebuttal witnesses. As the People argued at the delinquency hearing, the testimony of these proposed rebuttal witnesses would have been irrelevant to the central question whether defendant submitted an application to the BZA by July 21, 2018 in accordance with the conditional discharge. Therefore, we find that the hearing court did not improvidently exercise its discretion in denying defendant’s request to call these rebuttal witnesses. Finally, it is clear from the hearing record that defendant did not comply with the terms of the conditional discharge. Consequently, after finding by a preponderance of the evidence that defendant had violated the conditional discharge, the District Court properly amended the judgment of conviction and resentenced defendant (see People v. Lubrano, 41 Misc 3d 135[A], 2013 NY Slip Op 51878[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). The remaining contentions raised by defendant either lack merit or are not properly before this court (see People v. Boone, 84 AD3d 1108 [2011]; People v. Gantt, 77 AD3d 988, 989 [2010]; People v. Ryder, 239 AD2d 364 [1997]). We note that we do not consider factual assertions and evidence contained in the People’s brief which are dehors the record (see Chimarios v. Duhl, 152 AD2d 508 [1989]). Accordingly, the amended judgment of conviction is affirmed. TOLBERT, J.P., GARGUILO and RUDERMAN, JJ., concur. May 28, 2020