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Order entered on July 21, 1960, denying defendant’s motion to dismiss the amended complaint for insufficiency, unanimously reversed, on the law, with $20 costs and disbursements to appellant, and the motion to dismiss is granted, with $10 costs. In the attempt to state a cause of action for the reformation of a $10,000 fire insurance policy to show a change of interest from the vendor of a building to the vendee, before a fire occurred on the premises, plaintiff alleges that at the time of delivery of title the vendor assigned the fire insurance contract to plaintiff, that there was an adjustment of insur*605anee premiums, and that a licensed insurance broker was instructed to procure an indorsement showing the change of interest to plaintiff. It is further alleged that the broker-—-who is not asserted to have been an employee or representative of the insurer — inadvertently sent the request for a change to one who was believed to be a proper party and plaintiff was led to believe that a change of interest had been effected. Finally, it is alleged that defendant had knowledge of the transfer of title to the insured property and the assignment by the vendor to plaintiff of the insurance policy. From all this it appears clearly that defendant never gave its written consent to the assignment of the policy as was required by the terms of the policy and the Insurance Law (Insurance Law, § 168). Reformation could be obtained here if there was a mutual mistake. However, defendant is not charged with any mistake or having done any act which estops it from denying liability. The mistake, if any, was that of plaintiff and the broker who sent the notice to one not authorized by defendant to consent to the assignment. The broker was no agent of defendant, and his knowledge and actions are not imputable to the insurer. Concur— Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.

In a family offense proceeding pursuant to Family Court Act article 8, the father appeals from an order of protection of the Family Court, Nassau County (McCormack, J.), dated January 25, 2006, which, upon a finding, made after a hearing, that he committed a family offense, directed him, until January 24, 2007, to refrain from certain conduct and to stay away from the mother and the children, except as agreed between the parties. Ordered that the order of protection is affirmed, without costs or disbursements. Although the order of protection expired by its own terms on January 24, 2007, the appeal is not academic in light of the enduring consequences that may potentially flow from an adjudication that the father committed a family offense (see Matter of Rochester v Rochester, 26 AD3d 387, 388 [2006]; Matter of Kravitz v Kravitz, 18 AD3d 874, 875 [2005]; Matter of Zieran v Marvin, 2 AD3d 870, 872 [2003]; Matter of Cutrone v Cutrone, 225 AD2d 767, 768 [1996]). The Family Court’s determination regarding the credibility of witnesses is entitled to great weight on appeal unless clearly unsupported by the record (see Matter of Abbott v Burnes, 27 AD3d 555 [2006]; Matter of Phillips v Laland, 4 AD3d 529, 530 [2004]; Matter of Topper v Topper, 271 AD2d 613 [2000]). We find no basis on this record to disturb the Family Court’s determination, which is supported by a fair preponderance of the evidence (see Family Ct Act §§ 812, 832; Penal Law § 120.00 [1]; Matter of St. Denis v St. Denis, 1 AD3d 370 [2003]). The father’s remaining contentions are without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Order entered on October 2, 1959 and the judgment thereon dismissing the complaint on the ground of another pending action between the parties reversed, on the law, on the facts and in the exercise of discretion, with costs to plaintiffs-appellants and the motion denied, with $10 costs. In the prior action judgment was entered December 26, 1958 after inquest. In this action on July 23, 1959' defendant-respondent moved to dismiss the complaint on the ground that the prior action was pending. (Rules Civ. Prac., rule 107, subd. 3.) In the interim the moving defendant had moved to vacate the judgment in the prior action on the ground that she had not been served with process. No prior action was pending when the order to dismiss this action was made because judgment had been entered in the prior action. The judgment in the first action terminated the action and the pendency of the motion to vacate it did not serve to convert it into a pending action. (Porter v. Kingsbury, 77 N. Y. 164, 169; see, also, Gentilala v. Fay Taxicabs, 243 N. Y. 397.) In any event defendant should be estopped from claiming the existence of a prior action, where it has been demonstrated that the prior action, on defendant’s objection, was void because of lack of prior service of process. To claim successfully that a prior action is a nullity, and then to assert it bars a subsequent action is a completely inconsistent position. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

Judgment in favor of plaintiffs against the defendants, unanimously reversed, upon the law and upon the facts, and the complaint is dismissed, with costs to defendants-appellants. In view of that disposition, the judgment insofar as it grants, judgment in favor of defendant Caristo Construction Corp. on its cross claim against defendant Rockaway Boulevard Wrecking & Lumber Co. and grants judgment in favor of the City of New York on its cross claim against the other two defendants, is reversed, on the law, and the cross claims are dismissed, without costs. Having condemned certain properties on West 50th Street for the purpose of erecting a new school thereon, the City of New York engaged Caristo Construction Corp. as the general contractor of the project. Caristo in turn had contracted with defendant Rockaway to demolish the existing structures. Many of the buildings had been razed; but on February 13, 1956, there were still standing the tenements known as 412 and 414 West 50th Street. The front doors had been removed from these buildings. For about a week before that date, the infant plaintiff, who was then 11 years old, and five of his friends had been playing in No. 412 and had established a “ club ” in a back room. On February 13, when plaintiff and his friends returned to their elubroom at about 1:30 F.M., they found it had been pre-empted by some older boys from 49th Street, who chased plaintiff and his entourage onto the roof of the premises. Plaintiff, followed by his friends, crossed over to the roof of No. 414 and entered that building through the skylight. The infant plaintiff, preceding the rest, descended the stairs to look for another room, and was injured when a piece of banister fell, striking him on the hand and causing the injuries for which the suit was brought. Plaintiff’s twin brother, Eddie, who had accompanied plaintiff into the premises, testified that he, Eddie, had tripped on a piece of wood while on the fourth landing of the stairwell and had fallen against the banister, breaking it and causing it to fall downstairs. The record establishes that defendants should have known that children were likely to trespass in the premises and that inadequate precautions were taken to prevent such trespasses. However, the responsibility of an owner of property to a trespasser or to a licensee is to refrain from inflicting intentional, wanton or willful injury. A mere defect in the premises that *606causes injury will not render an owner liable. (Mendelowitz v. Neisner, 258 N. Y. 181.) Hence, in order to recover the infant plaintiff — concededly a trespasser — was required to establish the creation of some inherently dangerous condition. (See Mayer v. Temple Props., 307 N. Y. 559.) However, there is a total absence of proof as to the reason for the collapse of the banister. There is no showing whether it broke because of some extrinsic weakening wrought by the subcontractor’s employees in the course of demolition or whether it was some latent, inherent defect which caused it to collapse at the unfortuitous moment when plaintiff’s brother fell against it. Hence, in the absence of any proof of conduct on the part of the defendants which created the condition which resulted in the plaintiff’s injury there could be no legal recovery against defendants. And this is particularly true since there was not even an attempt to prove notice on the part of the defendants of any dangerous condition. The complaint should therefore have been dismissed. Since plaintiffs did not establish a cause of action, it is unnecessary to consider the contentions of the defendants as to the cross claims which were sustained. The judgment as to such cross claims automatically fall with the vacatur of the judgment in favor of plaintiffs. Concur — Valente, J. P., McNally, Stevens, Eager and Noonan, JJ.

In a proceeding, inter alia, in effect, to invalidate two deeds, Daphne Fotiades appeals, as limited by her brief, from so much of an order of the Surrogate’s Court, Suffolk County (Weber, A.S.), entered September 1, 2005, as denied her motion, inter alia, to vacate a decree of the same court dated October 11, 2002, entered upon her default in failing to appear at a hearing, declaring that the deeds were void, and that the subject real property was an asset of the decedent’s estate. Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs. The Surrogate’s Court providently exercised its discretion in denying the appellant’s motion. “[Wjhether to relieve a party of an order entered on default is a matter left to the sound discretion of the court” (Matter of Little Flower Children’s Servs. v Vernon J., 213 AD2d 548, 549 [1995]; see Chemical Bank v Vazquez, 234 AD2d 253, 253 [1996]; Matter of Fierro v Fierro, 211 AD2d 676, 678 [1995]). The Surrogate’s Court providently exercised its discretion in denying that branch of the appellant’s motion which was made pursuant to CPLR 5015 (a) (1). Even if the appellant did not intend to withdraw her objection to the petition, the appellant failed to proffer a reasonable excuse for her failure to appear at the hearing. Her assertions that she did not receive notice of the hearing and that the hearing did not even take place are clearly refuted by the evidence, which includes a transcript of the hearing showing that she was present at the prehearing conference held immediately prior to the hearing. As to that branch of the motion which was made pursuant to CPLR 317, the appellant failed to demonstrate that she did not receive actual notice of *893the petition (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Jagiela v 1329 Realty, LLC, 17 AD3d 533, 534 [2005]; Martinovich v Commercial Instrumentation Servs., 278 AD2d 290 [2000]), since she timely filed an objection to it. Moreover, the appellant failed to satisfy the requirement under both CPLR 5015 (a) (1) and 317 that she establish the existence of a meritorious defense or, in this case, “a substantial basis for the contest and a reasonable probability of success on the part of the [movant]” (Matter of Greene, 240 AD2d 745, 745 [1997]; see General Motors Acceptance Corp. v Grade A Auto Body, Inc., 21 AD3d 447, 447 [2005]; DiBlasio v Kaufman, 282 AD2d 496 [2001]; Matter of Morgen, 251 AD2d 333, 333 [1998]). The appellant’s remaining contentions are without merit. Rivera, J.P, Santucci, Angiolillo and Dickerson, JJ., concur.

In a proceeding for a trust accounting, the petitioner appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated September 16, 2005, which granted the respondent’s motion, inter alia, pursuant to CPLR 3211 (a) (7) to dismiss the amended petition for failure to state a cause of action and denied, as academic, the petitioner’s cross motion for summary judgment and to transfer this proceeding to the Surrogate’s Court pursuant to CPLR 325 (e). Ordered that the order is affirmed, with costs. The petitioner claims to be the beneficiary of a trust, the corpus of which is a 20% interest in a partnership. The trust was created in 1973 and is evidenced by a business certificate for partners and a 1976 successor business certificate for partners. These certificates name the respondent Avery J. Gross as trustee for Donn S. Gross. There is no other writing evidencing this trust. The petitioner brought this proceeding to compel the respondent to account as his trustee for his 20% interest in the partnership. The respondent moved to dismiss the amended petition for failure to state a cause of action, and the petitioner cross-moved for summary judgment and other relief. The *894Supreme Court granted that branch of the motion which was to dismiss the amended petition for failure to state a cause of action for an accounting and denied the cross motion as academic. We affirm. The petitioner correctly contends that an oral trust was sufficiently pleaded. The petitioner established the four elements essential for a valid trust: a designated beneficiary, a designated trustee, property sufficiently identified, and the delivery of the property to the trustee (see Brown v Spohr, 180 NY 201, 209 [1904]). However, this trust imposed no valid duties on the trustee, and thus it was a passive trust (see Jacoby v Jacoby, 188 NY 124, 129 [1907]; Ward, v Saranac Lake Fed. Sav. & Loan Assn., 48 AD2d 337, 339 [1975]). A passive trust creates no trust but vests title to the corpus directly in the beneficiary (see Rawson v Lampman, 5 NY 456 [1851]). Accordingly, the petitioner is a 20% partner. As such, he could invoke the equitable remedy of a partnership accounting. But this remedy requires a demand for an accounting, as well as a refusal by the partner—here, the respondent—with the possession of the books and records of the partnership (see Conroy v Cadillac Fairview Shopping Ctr. Props. [Md.], 143 AD2d 726 [1988]). There is no allegation in the amended petition or in the petitioner’s affidavit in support of his cross motion for summary judgment of a demand and a refusal (cf. Conroy v Cadillac Fairview Shopping Ctr. Props. [Md.], supra at 726-727). Thus, the petitioner’s amended petition, liberally construed in his favor (see Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]), failed to state a cause of action for the one type of accounting to which he would be entitled as a partner in his own right. Since the amended petition failed to state a cause of action, we need not address the respondent’s defenses, including his allegation that all other partners must be joined. Likewise, the Supreme Court correctly denied the petitioner’s cross motion as academic. Crane, J.E, Goldstein, Fisher and Lifson, JJ., concur.

In a contested probate proceeding, the objectant appeals from a decree of the Surrogate’s Court, Kings County (Seddio, S.), dated March 23, 2006, which, upon an order of the same court dated January 9, 2006, granting the petitioner’s motion for summary judgment dismissing her objections to probate of the will, admitted the will to probate. The notice of appeal from the order is deemed to be a notice of appeal from the decree (see CELR 5512 [a]). *895Ordered that the decree is affirmed, with costs. On his motion for summary judgment dismissing the objections to probate of the decedent’s will, the petitioner established his prima facie entitlement to judgment as a matter of law by showing, among other things, that the decedent possessed testamentary capacity, that no undue influence had been exercised upon the decedent, and that the will had been duly executed (see Matter of Weltz, 16 AD3d 428 [2005]; Matter of Rosen, 291 AD2d 562 [2002]; Matter of Spinello, 291 AD2d 406, 407 [2002]; Matter of Bustanoby, 262 AD2d 407, 408 [1999]; Matter of Esberg, 215 AD2d 655, 655-656 [1995]). In opposition, the objectant failed to raise a triable issue of fact. Thus, the Surrogate’s Court correctly granted the motion and properly admitted the will to probate. Crane, J.P., Skelos, Covello and Dickerson, JJ., concur.

Appeal from judgments of the Court of General Sessions of the County of New York, rendered January 14, 1960, convicting defendants of the crime murder in the first degree pursuant to subdivision 2 of section 1044 of the Penal Law. Memorandum by the Court. Judgments of conviction affirmed. Although it may be cogently argued on behalf of defendant Ramirez that the court did not, in its charge, make clear to the jury that the portion of the testimony of the witness Walters before the Grand Jury — used to refresh the recollection of the witness or to impeach his testimony on the witness stand — was not to be considered as substantive evidence on the issue of identification, we do not consider this to be prejudicial error. The witness Walters did not identify the defendant Ramirez on his direct examination by the District Attorney. But he made an unqualified identification of him as one of the participants in the attempted hold-up of the bar in the course of his cross-examination by the attorney for the codefendant. As'we read this record, there is sufficient testimony, independent of the witness Walters, that identifies the defendant Ramirez as such participant. Both of these defendants, on their own admission, were in the premises at the time, of the homicide, each with a loaded gun in his possession. There is ample evidence to support the finding of the jury that the deceased "was killed by the defendants while they were engaged in an attempt to perpetrate a robbery.

Eager, J. (dissenting). I dissent from the affirmance of the judgment of conviction of the defendant Manuel Ramirez of murder in the first degree (felony murder). In my opinion, the conviction should be reversed and a new trial ordered for errors in the reference to and the reading at the trial of certain Grand Jury testimony of the witness Walters and in the refusal to charge as requested with respect to such Grand Jury testimony. The conviction of said defendant may stand only upon a finding that, at the time of the fatal shooting by codefendant Hernandez of the deceased bystander, he (Ramirez) was engaged jointly with said codefendant in robbery or attempted robbery at closing time of Gil’s Bar and Grill. The People called as a witness Martin Walters, who was an assistant manager and one of the bartenders at the Bar and Grill. He testified that he was engaged in “ counting the money”; that he looked up and saw “somebody standing * * * as if he had a gun in his hand * * * he yelled first or two shots were fired first; but he yelled ‘Everybody to the back; stop the bartenders; get the cash ’ or ‘ the money ’, I don’t remember which,” His direct testimony, however, was that he could not identify this man and he said “ I actually didn’t see; it was too dark.” Then the District Attorney — over the specific objection and exception of defendant’s counsel, read certain Grand Jury testimony, given by the witness Walters in which he had identified a photograph of the defendant Ramirez as representing the man who had said “Stop the bartenders, get the cash ”. And then the witness was asked if this refreshed his memory as to whether or not in the Grand Jury he had identified the person and his answer was “I did identify this party in the Grand Jury”. It may have been proper for the District Attorney to use the Grand Jury testimony for the purpose of refreshing the recollection of the witness or to impeach his statements on the witness stand. (Code Crim. Pro., § 8-a; People v. Ferraro, 293 N. Y. 51, 56.) However, in view of the objection and exception of the defendant, *608it should have been made clear to the trial jury that the Grand Jury testimony was referred to for a limited purpose only and was not evidence in chief; and the failure of the trial court to do so constituted reversible error in this case. (People v. Ferraro, supra.) It is true that, by virtue of the provisions of section 393-b of the Code of Criminal Procedure, it was allowable for the witness Walters, who had previously identified Ramirez, to “testify” as to such previous identification. The section reads that the witness “ may testify to such previous identification.” Clearly, the section is effective merely to allow testimony in chief by the witness of the previous identification. It does not operate to authorize the receipt in evidence of prior testimony or hearsay statements of an identification. It is to be further noted that the Grand Jury testimony read for the purpose of refreshing the recollection of the witness Walters was merely testimony to the effect that he then identified a photograph of the defendant Ramirez. Under settled law, however, the provisions of section 393-b could not properly be invoked to permit proof that this witness had previously identified a photograph of the defendant. Identification of a photograph is not identification of the person. (People v. Hagedorny, 272 App. Div. 830 [2d Dept., 1947]; People v. Cioffi, 286 App. Div. 203, 206 [1st Dept, 1955]; People v. Cioffi, 1 N Y 2d 70, 73 [1956].) Consequently, the District Attorney, proceeding as he did, got into the record before the trial jury material which was clearly improper. On the face of it, the calling of the attention of the witness to such testimony would merely have the effect of refreshing his recollection that he had previously identified a photograph and not the person of the defendant. Therefore, it is questionable whether the trial court should have permitted the use of the testimony. And, certainly, if it was to be read in the record before the trial jury, the court should have explained to the jury the purpose thereof and given clear instructions that such testimony was not to be considered in any way as affirmative evidence against the defendant. The trial court, in its charge, in referring to the testimony of Walters, mentioned that Walters “ could not identify anyone as a man who had a gun in his hand. He then testified that before the Grand Jury he did pick out the defendant as the man with the gun, that he picked him out from the photograph which is * * * in evidence.” The court then referred to the Grand Jury testimony and said, “This is a reading from the Grand Jury minutes which was permitted by the Court and this was a reading by Mr. Reynolds [an Assistant District Attorney].” But the court unqualifiedly refused a request of the defendant to charge: “ The only evidence that the jury is to consider is that sworn to before them in court by a witness; the fact that a witness gave certain testimony before a Grand Jury and the questions and answers were read to that witness for any purpose on the trial are not to be considered as evidence.” The refusal of the trial court to charge as requested was clearly error. This court is clearly not justified in holding nonprejudicial the errors of the trial court with reference to the allowance of the reading of the Grand Jury testimony and the failure of the court to charge as requested with respect thereto. There was a close question as to whether or not the defendant Ramirez was knowingly taking part in a robbery or an attempted robbery. This court may not now say as a matter of law or fact that the trial jury may not have given some weight to the Grand Jury testimony. It may have been just that additional bit of material which may have influenced the jury to find this defendant guilty beyond a reasonable doubt. In People v. Ferraro (293 N. Y. 51, 56, supra), where defendant was convicted of murder in the second degree, the prosecutor had used prior statements *609and prior Grand Jury testimony to refresh the recollection of certain of his witnesses. It was held that this was proper but a reversal of the conviction of the defendant was held to be required where the trial court, in its instructions to the jury, had failed to make it plain that the statements and Grand Jury testimony were not to be considered as evidence in chief on the question of guilt. What the court said there is applicable here, namely, “ we may not lightly assume that a plain error of law in the trial of the case did not affect the substantial rights of the defendant.” (See, also, People v. Shingles, 281 App. Div. 647.) Breitel, J. P., Rabin and Valente, JJ., concur in Memorandum by the court; Eager, J., dissents and votes to reverse and order a new trial as to defendant Ramirez in opinion, in which Stevens, J., concurs. Judgments of conviction affirmed, etc.

Order entered on March 29, 1960 dismissing the complaint unanimously reversed, on the law, with $20 costs and disbursements to plaintiff-appellant and the defendant’s motion denied, with $10 costs. The cross motions by defendant, (1) for summary judgment under rule 113 of the Rules of Civil Practice, (2) for judgment on the pleadings under rule 112 of the Rules of Civil Practice and (3) for a separate trial on the validity of the releases, are denied on the merits. Special Term dismissed the complaint on the ground that the six-year Statute of Limitations governing contract actions barred plaintiff, and that under the doctrine of Brick v. Cohn-Hall-Marx Co. (276 N. Y. 259) plaintiff could not escape the application of the statute by dressing the action in the garb of a suit for damages for fraud. That conclusion, however, misconceived the nature of plaintiff’s cause of action as alleged in his pleading. Plaintiff’s cause of action is for the alleged fraud of defendant which induced him to enter into a compromise agreement in 1953, and the damages sought are based on the fair consideration for the compromise. In other words, plaintiff’s cause of action proceeds on an affirmance of the compromise agreement and assumes that the compromise agreement superseded and extinguished the alleged original agreement of employment made a year before. Standing on his exchange of a claim to royalties under the original contract for the cash settlement received in 1953, plaintiff is suing for the difference between what would have been a fair and honest settlement and the amount he accepted in reliance on the alleged misrepresentations of defendant. As such, plaintiff states a good cause of action similar to the ones sustained in Gould v. Cayuga County Nat. Bank (99 N. Y. 333) and Urtz v. New York Cent. & Hudson Riv. R. R. Co. (202 N. Y. 170). Hence, the Statute of Limitations applicable to a fraud action, rather than to a contract action, governs plaintiff’s suit, and the complaint should not have been dismissed as barred by the six-year Statute of Limitations regulating contract actions. Since Special Term dismissed the complaint as barred by the Statute of Limitations, defendant’s other cross motions, (a) for summary judgment under rule 113 of the Rules of Civil Practice, (b) for judgment on the pleadings under rule 112 on the defense of the Statute of Frauds and (c) in the alternative, for a separate trial on the validity of the releases, were denied as academic. Our reinstatement of the complaint requires consideration of those motions. Since the suit is predicated on fraud in the inducement of the compromise agreement, the defense of Statute of Frauds directed against the original royalty agreement is not a bar to the action. The same may be said about defendant’s contention that plaintiff’s claim under the original contract cannot be pressed because plaintiff did not possess a license as a real estate broker (Real Property Law, § 442-d). On both of those questions there are triable issues as to whether *610the contract was a Wyoming one or was governed by the laws of New York, whether section 259 of the Real Property Law embraces oil and gas leases or overriding royalty interests in such leases, and whether the agreement to render brokerage services was made outside of New York. As was pointed out in Urtz v. New York Cent. & Hudson Riv. R. R. Co. (supra) plaintiff will have to establish that he had a valid and existing claim against the defendant at the time of the compromise to enable him to recover in this action. The applicability of the Statute of Frauds and the licensing statute will be a matter to consider in determining whether plaintiff had a valid and existing claim. Although a determination that plaintiff’s original claim was subject to a defense of the Statute of Frauds would not make the claim worthless — since there might remain a right to recover in quantum meruit or other facts and circumstances arising theretofore or thereafter might take the claim outside the statute,— the imminence of such a defense would unquestionably be pertinent to the fair value of a settlement of a claim subject to that possible infirmity. Since the trial of the issue of fraud will involve much of the same matters as the trial of the entire action, it would be improvident to order a separate trial of that issue. Settle order on notice. Concur — Breitel, J. P., Rabin, Valente, Eager and Noonan, JJ.

In a proceeding pursuant to CFLR article 78 in the nature of mandamus to compel the respondents to comply with Agriculture and Markets Law § 371, the petitioners appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Dunne, J.), dated *896October 7, 2005, as granted the respondents’ motion to dismiss the petition pursuant to CPLR 3211 (a) (7), and dismissed the proceeding. Ordered that the order and judgment is reversed insofar as appealed from, on the law, with costs, the motion to dismiss the petition pursuant to CPLR 3211 (a) (7) is denied, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith. A proceeding pursuant to CPLR article 78 in the nature of mandamus is an appropriate vehicle by which “to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so” (see Klostermann v Cuomo, 61 NY2d 525, 540 [1984]). “A subordinate body can be directed to act, but not how to act, in a matter as to which it has the right to exercise its judgment” (People ex rel. Francis v Common Council of City of Troy, 78 NY 33, 39 [1879]). Thus, while the courts will not interfere with the exercise by law enforcement officials of their broad discretion to allocate resources and devise enforcement strategies, mandamus will lie if they have abdicated their responsibilities by failing to discharge them, whatever their motive may be (see Matter of Boung Jae Jang v Brown, 161 AD2d 49 [1990]). Here, the respondents are under a duty to enforce article 26 of the Agriculture and Markets Law (see Agriculture and Markets Law § 371). Hence, the petitioners have stated a cause of action sounding in mandamus to compel, and the Supreme Court thus erred in granting the respondents’ motion to dismiss the petition pursuant to CPLR 3211 (a) (7). Moreover, based upon the respondents’ initial assertion that they had a broad policy of referring all article 26 violations to the Nassau County Society for the Prevention of Cruelty to Animals, their later denial of the existence of any such policy, and their failure to address the petitioners’ allegations of specific instances in which Nassau County police officers refused to accept the petitioners’ complaints, a question of fact is presented as to whether the respondents have abdicated their statutorily-imposed duty. The Supreme Court erred, therefore, in denying the petition and dismissing the proceeding without a hearing, and we remit the matter to the Supreme Court, Nassau County, for an evidentiary hearing in connection with this issue (see CPLR 409, 410, 7804 [h]; Matter of Smith v Ravitch, 121 AD2d 639, 640 [1986]), and for a new determination of the petition thereafter. Spolzino, J.P, Skelos, Covello and Balkin, JJ., concur.

In a proceeding pursuant to CPLR article 78 to review a determination of the Division of Housing and Community Renewal dated March 16, 2005, the petitioner appeals from a judgment of the Supreme Court, Kings County (Martin, J.), dated November 30, 2005, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. The determination that the subject apartments are subject to rent stabilization has a rational basis in the record, and is not arbitrary and capricious or an abuse of discretion (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Clear Holding Co. v State Div. of Hous. & Community Renewal, 268 AD2d 430; Matter of DiMaggio v Division of Hous. & Community Renewal, 248 AD2d 533 [1998]). There is evidence in the record indicating that the subject building became rent stabilized when tax abatements went into effect for 20 years starting with the 1977/1978 tax year (see Administrative Code of City of NY § 26-504 [c]). While the abatement period has now expired, there is no indication that the tenants were given the requisite notice of its expiration, and therefore the apartments are still subject to rent stabilization (see Administrative Code of City of NY § 26-504 [c]; East W Renovating Co. v New York State Div. of Hous. & Community Renewal, 16 AD3d 166 [2005]). The petitioner’s remaining contentions are without merit. Rivera, J.P, Santucci, Angiolillo and Dickerson, JJ., concur.

In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for underinsured motorist benefits, Mark W. Ward appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Henry, J.), dated March 31, 2005, which granted the petition and permanently stayed the arbitration. Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed. The appellant was injured in an automobile accident, at which time the appellant’s vehicle was insured under a policy issued by New York Central Mutual Fire Insurance Company (hereinafter the petitioner). The policy provided, inter alia, “II. Damages for Bodily Injury Caused by Uninsured Motor Vehicles “We will pay all sums that the insured or the insured’s legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle’s ownership, maintenance or use, subject to the Exclusions, Conditions, Limits and other provisions of this SUM endorsement . . . *899“V Part E—DUTIES AFTER AN ACCIDENT OR LOSS, Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS, We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us: A: We must be notified as soon as reasonably possible of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.” It is well settled that a contract of insurance is no different from any other contract and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321 [1996]; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390 [1983]; General Assur. Co. v Schmitt, 265 AD2d 299, 300 [1999] [internal quotation marks omitted] [“The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer”]). In the present case, the petitioner clearly assumed a contractual obligation to provide coverage for the appellant unless the appellant’s failure to comply with his contractual duties is prejudicial to it. Here, the appellant substantially complied with the policy’s notice and proof of claim conditions insofar as he supplied the petitioner with prompt written notice of the accident, an application for no fault benefits, a sworn police accident report, and authorizations to obtain medical records. The petitioner demonstrated no prejudice in this matter stemming from the appellant’s failure to submit the proffered proof of claim form (see Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905 [2006] [the insured’s attorney supplied prompt written notice of the accident, made a claim for no-fault benefits, and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. The insured forwarded to the insurer the police accident report as well as the pertinent medical records. The insurer did not deny receiving any of these various letters and documents from the insured. The insurer failed to show any prejudice and, under the circumstances, was not permitted to disclaim SUM coverage]). This Court has held that where an insurance policy is conditioned upon the insured’s timely completion and return of proof of claim forms, the insured’s failure to do so, or to have a *900reasonable excuse for the failure, is a breach of a condition precedent that vitiates coverage and justifies a permanent stay of arbitration (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315 [2000]; Matter of New York Cent. Mut. Fire Ins. Co. v Shepard, 249 AD2d 549 [1998]). For many years, New York has followed the rule that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform, regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This has been known as the no-prejudice rule. Recently, there has been a shift away from the no-prejudice rule. In Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), the Court required a supplementary uninsured/ underinsured motorists (hereinafter SUM) insurer to demonstrate prejudice when seeking to disclaim coverage based upon untimely notice of legal action. The Court stated that, “Under these circumstances, and given the protection SUM insurers already enjoy by virtue of the notice of claim requirement and the clauses governing settlement, insurers relying on the late notice of legal action defense should be required to demonstrate prejudice. We place the burden of proving prejudice on the insurer because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative” (id. at 498). Since the issuance of the order and judgment appealed from, the Court of Appeals has reaffirmed this shift away from the no-prejudice rule. In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 474-476 [2005]), the Court stated, “Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the ‘traditional rule,’ it is actually a limited exception to two established contract principles; ‘(1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language *901showing that the parties intended to make it a condition’ (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992] [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.) . . .The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover, the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo 2001]). Additionally, State Farm should bear the burden of establishing prejudice ‘because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative’ (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer])” Recently, this Court followed the Rekemeyer decision in Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi (27 AD3d 476 [2006]) and reversed an order granting the insurer’s petition for a stay on the basis that the insurer had received timely notice of the accident and therefore was required to demonstrate prejudice. “Where, as here, ‘an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage’ (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). No such showing of prejudice was made by the carrier in this case” (Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, supra at 476-477). In the present case, the appellant argues that the notice of claim exception to the no-prejudice rule set forth by the Court in Rekemeyer should now be extended to apply to proof of claim. We agree. Here, the facts, as in Rekemeyer, warrant a showing of prejudice by the insurance carrier. The petitioner did not meet this burden of showing that the appellant’s failure to comply with his contractual duties was prejudicial to it. Therefore, the petitioner was bound by its contractual duty to provide cover*902age for the appellant, and the court erred in granting the petition and permanently staying the arbitration. The appellant’s remaining contentions that the petitioner failed to timely disclaim coverage and that it waived its right to rely on the subject provision are improperly raised for the first time on appeal and we decline to consider them. Ritter, J.E, Santucci, Skelos and Dickerson, JJ., concur.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Nassau County (LaMarca, J.), dated April 27, 2006, which denied the petition. Ordered that the order is affirmed, with costs. The Supreme Court providently exercised its discretion in denying the petition for leave to serve a late notice of claim upon the respondents. The petitioners did not offer a valid excuse for their failure to timely serve a notice of claim. The injured petitioner’s assertion that the six-month delay in seeking leave to serve a late notice was due to her physical incapacity and pain was supported solely by her own conclusory and self-serving allegations and those of her counsel (see Matter of Aliberti v City of Yonkers, 302 AD2d 456 [2003]; Robertson v New York City Hous. Auth., 237 AD2d 501 [1997]; Matter of Caruso v County of Westchester, 220 AD2d 746 [1995]). Furthermore, the petitioner George Papayannakos did not proffer any acceptable excuse on his own behalf for the delay in seeking leave to serve a late notice (see Matter of Bensen v Town of Islip, 99 AD2d 755, 756 [1984]). Moreover, there is no evidence in the record establishing that the respondents acquired actual knowledge of the facts constituting the claim within 90 days from accrual of the claim or a reasonable time thereafter (see Matter of Alexander v Board of Educ. for Vil. of Mamaroneck, 18 AD3d 654 [2005]; Matter of Pico v City of New York, 8 AD3d 287 [2004]; Matter of Termini v Valley Stream Union Free School Dist. No. 13, 2 AD3d 866 *903[2003]). Finally, given the transitory nature of the alleged pavement depression, the six-month delay substantially prejudiced the respondents’ ability to investigate the defect and other circumstances surrounding the accident (see Matter of Aguilar v Town of Islip, 294 AD2d 358, 359 [2002]; Matter of Konstantinides v City of New York, 278 AD2d 235 [2000]; Matter of Gofman v City of New York, 268 AD2d 588 [2000]; Matter of Turner v Town of Oyster Bay, 268 AD2d 526 [2000]). Schmidt, J.P., Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

In two related proceedings pursuant to CPLR article 78 to review a determination of the New York State Department of Environmental Conservation dated July 11, 2005, which granted a waiver of water quality certification in connection with an application by Atlantic Development, LLC, to fill federally-regulated wetlands, Westchester Country Club, Inc., and Harrison-Rye Realty Corp. appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Nicolai, J.), dated September 14, 2005, as denied the petition in proceeding No. 2, dismissed proceeding No.2, and vacated a temporary restraining order of the same court dated August 18, 2005, enjoining Atlantic Development, LLC, Iliana Gardens, LLC, Collin Estates, LLC, Sunshine Properties of Westchester, LLC, and Michael DeMartino, and their agents, servants, and employees from proceeding with any work on parcels designated as Blocks 12, 13, and 14 on Westchester County Tax Map No. 3322 until September 15, 2005. Ordered that the order and judgment is reversed insofar as appealed from, on the law, with costs payable by the respondents *904appearing separately and filing separate briefs, the petition in proceeding No. 2 is granted, the determination is annulled, and Atlantic Development, LLC, Iliana Gardens, LLC, Collin Estates, LLC, Sunshine Properties of Westchester, LLC, and Michael DeMartino, and their agents, servants, and employees are enjoined from proceeding with any work on parcels designated as Blocks 12, 13, and 14 on Westchester County Tax Map No. 3322 pending the issuance of a water quality certification by the New York State Department of Environmental Conservation. The regulations of the New York State Department of Environmental Conservation (hereinafter the Department) that govern the Department’s response to requests for water quality certifications under section 401 of the Clean Water Act (33 USC § 1341 [a] [1]) provide that the applicant for such a permit “must apply for and obtain a water quality certification from the department” (6 NYCRR 608.9 [a] [emphasis supplied]). Although the applicable federal statute allows a state to which permitting authority under the Clean Water Act [formerly the Federal Water Pollution Control Act] has been delegated to grant a waiver of water quality certification (see 33 USC § 1341 [a]), the Department’s regulations, by which it is bound (see Matter of Frick v Bahou, 56 NY2d 777, 778 [1982]; Matter of Steck v Jorling, 219 AD2d 727, 729 [1995]), do not. The Department’s argument that its regulations require water quality certification only where the waters in issue fall within its jurisdiction under the Freshwater Wetlands Act (ECL art 24) is inconsistent with the terms of the regulation, pursuant to which the certification requirement applies to any permit “that may result in any discharge into navigable waters as defined in section 502 of the Federal Water Pollution Control Act” (6 NYCRR 608.9 [a]). In addition, although the regulations authorize the Department to grant statewide water quality certifications in certain circumstances, they provide for no such certification, and no exemption or other such relief, on the ground that the wetland in issue is not subject to the Department’s jurisdiction by virtue of federal jurisdiction over the wetland (see 6 NYCRR 608.9 [b]; cf. 6 NYCRR 608.9 [a]). The Department was without authority to grant the waiver at issue. Accordingly, the petition in proceeding No. 2 should have been granted and the determination granting the waiver of water quality certification should have been annulled. In light of this determination, it is unnecessary for us to address the appellants’ contentions with respect to the applicability of the New York State Environmental Quality Review Act (ECL art 8) to such a determination. Miller, J.P, Spolzino, Goldstein and McCarthy, JJ., concur.

In a paternity proceeding pursuant to Family Court Act article 5, the petitioner appeals from an order of the Family Court, Orange County (Kiediasch, J.), dated March 16, 2006, which dismissed his petition for an order of filiation declaring him to be the father of the subject child. Ordered that the order is affirmed, without costs or disbursements. The Family Court properly applied the doctrine of equitable estoppel and dismissed the paternity petition. The paramount concern in applying equitable estoppel in paternity cases is the best interests of the child (see Matter of Maurice T. v Mark P., 23 AD3d 567 [2005]; Matter of Kump v Basnight, 297 AD2d 639 [2002]). “[C]ourts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship” (Matter of Sarah S. v James T., 299 AD2d 785, 785 [2002] [internal quotation marks omitted]; Matter of Lorie F. v Raymond F., 239 AD2d 659, 660 [1997]). Here, the evidence at the hearing established that respondent Thomas C. was named as the child’s father on his birth and baptismal certificates, has been held out to the public as the child’s father, and has established a strong father-son relationship with the child. The child calls Thomas C. “dad” or “daddy.” Thomas C. provides for all the child’s needs, and is the only father figure in the child’s life (see Matter of Ellis v Griffin, 308 AD2d 449 [2003]; Jean Maby H. v Joseph H., 246 AD2d 282, 284 [1998]). The petitioner accepted the results of a prenatal paternity test which indicated that he was not the child’s father without requesting further testing. He did not support the mother during her pregnancy and was not present at the birth. He never had any contact or communication with the child, and did not file a paternity petition until the child was almost two years old. The respondents reasonably believed that the petitioner would *906not attempt to assert paternity, and the respondent Thomas C. and the child subsequently developed a strong father-son relationship. The petitioner’s argument that it is desirable for the child to know his true father is insufficient to overcome the equities in the respondents’ favor or the benefits accruing to the child by preserving his legitimacy (see Matter of Sharon GG. v Duane HH., 63 NY2d 859 [1984]; Matter of John Robert P. v Vito C., 23 AD3d 659, 662 [2005]). Rivera, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.

Order entered May 5, 1960, denying defendant-appellant’s motion to dismiss the complaint, reversed on the law, with $20 costs and disbursements to the appellant and motion to dismiss the complaint granted, with $10 costs. The complaint in the original action and the basis on which that action was tried contemplated a recovery not only on common-law negligence but also on statutory grounds. The plaintiff in that complaint alleged that the inflammable and combustible fluids were “ illegally ” stored. If in this new complaint he predicates his right to recovery under section 205-a of the General Municipal Law on that ground, i.e., illegal storage, then that issue could and should have been tried in the. original ease. The complaint was broad enough and the facts adduced sufficient to allow for a determination thereof. On the other hand if he predicates liability in the present case on the roof being defective he does not come within the meaning of that section. In any event the original complaint being sufficiently comprehensive to include liability under section 205-a of the General Municipal Law, he may not again in a new action retry that issue there presented. Concur — Botein, P. J., Rabin, McNally and Noonan, JJ.; Stevens, J., concurs in the result only. .

Order, entered on June 16, 1960, denying defendants’ motion for summary judgment, unanimously reversed, on the law, with $20 costs and disbursements to appellants and the motion granted as to the first cause of action and the agreement declared void and unenforeible under subdivision 1 of section 31 of the Personal Property Law, and the motion granted as to the second and third causes of action, without prejudice to plaintiff-respondent, if so advised, serving an amended complaint in an action at law in quantum meruit. In this action for a declaratory judgment, the first cause of action is upon an oral agreement whereby plaintiff was to negotiate for the operation of retail outlets in stores of M. H. Fishman Co., Inc., and the defendants were to pay to the plaintiff 1% of the gross retail sales of the defendants in said stores. The second and third causes of action are in declaratory judgment for quantum meruit for the reasonable value of plaintiff’s services. The agreement relied on is within the Statute of Frauds in that by its terms it is not to be performed within one year from the making thereof. The defendants are required thereby to pay 1% of their gross sales at the Fishman stores during any period thereafter. (Zupan v. Blumberg, 2 N Y 2d 547; Martocci v. Greater N. Y. Brewery, 301 N. Y. 57; Cohen v. Bartgis Bros. Co., 289 N. Y. 846, affg. 264 App. Div. 260.) Plaintiff’s reliance on Nat Nal Sen. Stations v. Wolf (304 N. Y. 332) is misplaced. There the court held each purchase and sale of gasoline resulted from a separate contract not within the scope of the Statute of Frauds. In the instant ease, there is one underlying arrangement whereby the defendants are obligated to pay 1% of the gross sales if at any future time they *613establish concessions at stores of M. H. Fishman Co., Inc., so long as the concessions are maintained by the defendants. The agreement relied on, therefore, is within the Statute of Frauds. The second and third causes of action on quantum meruit may be maintainable as common-law actions but do not support an action for declaratory judgment. (James v. Alderton Dock Yards, 256 N. Y. 298.) However, the respondent should be afforded the opportunity, if so advised, to serve an amended complaint alleging a cause of action at law in quantum meruit. (Elsfelder v. Cournand, 270 App. Div. 162, 165.) Settle order on notice. Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ.

In a proceeding for permission to administer electroconvulsive therapy to a patient without his consent, the patient appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated April 24, 2006, which, after a hearing, granted the petition. Ordered that the order is affirmed, without costs or disbursements. In a companion appeal, we have determined that the Supreme Court properly authorized Rockland Psychiatric Center (hereinafter RPC) to retain the patient on an involuntary basis, pursuant to Mental Hygiene Law § 9.33 (see Matter of Harvey S., 38 AD3d 908 [2007] [decided herewith]). The patient may therefore be treated over his objection upon proof, by clear and convincing evidence, that he lacks the capacity to make a reasoned decision with respect to the proposed treatment and that “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments” (Rivers v Katz, 67 NY2d 485, 497-498 [1986]; see Matter of Pilgrim Psychiatric Ctr. [Christian F.], 197 AD2d 204 [1994]; 14 NYCRR 27.8). Deferring to the findings of *907the Supreme Court, which had the opportunity to personally assess the testimony of the witnesses (see Matter of William S., 31 AD3d 567, 568 [2006]; Matter of Joseph O., 245 AD2d 856, 857 [1997]), the proof submitted by RPC satisfied this burden. The patient has been continuously hospitalized at RPC, until recently as a voluntary patient, since 1992. With the patient’s consent, electroconvulsive therapy (hereinafter ECT) was begun in 2000, and continued thereafter for a period of approximately five years. In May 2005, it was necessary to discontinue ECT in order to evaluate whether the patient had suffered a stroke. Although it was determined that the patient had not suffered a stroke, the patient thereafter refused to consent to ECT any longer. The companion proceeding to retain the patient involuntarily, as well as this proceeding to compel the treatment, were commenced in August 2005. The evidence comparing the patient’s condition when he was receiving ECT to his condition after it was discontinued established clearly and convincingly both that the patient lacked capacity, while not receiving the treatment, to make a reasoned treatment decision and that the proposed treatment is narrowly tailored to give substantive effect to his liberty interest. While he was receiving ECT, the patient “was friendly, able to engage in normal conversation . . . and had a very intact memory.” After ECT was discontinued, however, the patient became delusional, was unable to communicate with his therapist, and did not respond to questions asked of him. Although he denied having a mental illness, the patient appeared to be suffering from auditory hallucinations. He also became aggressive, assaulted patients and staff members on frequent occasions, and injured himself repeatedly. The record further indicates that the medications that were administered to him during the period he was without ECT were insufficient to control these symptoms, and that the patient experienced no adverse side effects from ECT. On the basis of this proof, the court correctly authorized ECT treatment (see Matter of Simone D., 32 AD3d 931 [2006]; Matter of Mary Ann D., 179 AD2d 724 [1992]). In September 2005 a psychiatric examiner was appointed, pursuant to Judiciary Law § 35 (4), to conduct an independent psychiatric evaluation of the patient (cf. Matter of Kings Park Psychiatric Ctr. [Gerald L.], 204 AD2d 724 [1994]). At the time of the hearing, however, more than seven months later, the appointed psychiatrist had not yet examined the patient. In these circumstances, the Supreme Court properly exercised its discretion to proceed with the hearing without the testimony of the examining psychiatrist. The patient’s contention that the peti*908tion should have been dismissed because it was not subscribed by an attorney (see 22 NYCRR 130-1.1a [a]) is without merit (see Matter of Harvey S., supra). Spolzino, J.R, Goldstein, Fisher and McCarthy, JJ., concur.

Order entered on September 6, 1960 setting aside the election of a director and officers of Ostow & Jacobs, Inc., enjoining the incumbent officers from continuing to act as such; directing a meeting of stockholders for the election of an additional director and a meeting of the directors, following such stockholders’ meeting, for the election of new officers; appointing inspectors of election; and awarding counsel fees and expenses, unanimously reversed, on the law and on the facts, with $20 costs and disbursements to appellants, and the petition dismissed, with $10 costs. The power of a court *614under section 25 of the General Corporation Law is to confirm an election or order a new election, as justice may require. (Matter of Faehndrich, 2 N Y 2d 468, 47A-475.) The relief granted herein goes far beyond that restricted power. Moreover, since eoneededly the two surviving directors continued to hold over, they were empowered to act in the conduct of the affairs of the corporation, even if the one director, who succeeded a deceased director, did not continue in office after the end of the one-year term. Hence, officers elected by the two directors effectively received a majority vote of the unquestionably qualified number of the board of directors, and the court was without power to order them removed without cause. Finally, the ordering of a new election was an obvious futility. There was no proof or claim that a new election would produce any different result, where, as it appears here, the contending parties each own 50% of the stock of the corporation. A new election could not possibly eliminate the impasse. Perhaps, the only solution for the objecting stockholder is the remedy granted under section 103 of the General Corporation Law which provides for a dissolution in the event of a deadlock. Although there are some members of this court who are of the opinion that the director elected to fill the vacancy continued to hold office until his successor had been duly elected, as did those directors elected for a full term, it is unnecessary to decide that question in view of our disposition of the proceeding on the other grounds hereinabove stated. Concur — Breitel, J. P., Rabin, Valente, Stevens and Eager, JJ.

In a proceeding pursuant to Mental Hygiene Law § 9.33 to retain a patient in a hospital for involuntary psychiatric care, the patient appeals from an order of the Supreme Court, Rockland County (Sherwood, J.), dated April 24, 2006, which, after a hearing, granted the petition of Rockland Psychiatric Center for authorization to retain the patient involuntarily. Ordered that the order is affirmed, without costs or disbursements. Pursuant to Mental Hygiene Law § 9.33, the Supreme Court may authorize the retention of a patient in a hospital for involuntary psychiatric care upon proof by clear and convincing evidence that the patient is mentally ill and in need of further care and treatment, and that the patient poses a substantial threat of physical harm to himself or others (see Matter of Marie H., 25 AD3d 704 [2006]; Matter of Luis A., 13 AD3d 441 [2004]; Matter of Jill A.B., 9 AD3d 428 [2004]). That standard was satisfied here. The evidence adduced at the hearing established that the patient was diagnosed with schizoaffective disorder, bipolar type. He assaulted patients and staff on several occasions, and injured himself to the extent that he had to be transferred to a medical hospital for treatment. When interviewed, the patient was uncommunicative and unresponsive to questions, and could not engage with a therapist. He appeared to suffer from auditory hallucinations. He did not participate in activities at the *909hospital. He also denied that he had a mental illness. On this basis, Rockland Psychiatric Center established by clear and convincing evidence that the patient was mentally ill and in need of further care and treatment, and posed a substantial threat of physical harm to himself and others. Contrary to the position advanced by the patient here, his prior status as a voluntary patient does not preclude his involuntary retention (cf. Matter of Pilgrim Psychiatric Ctr. [Christian F.], 197 AD2d 204 [1994]). Mental Hygiene Law § 9.33 establishes the procedure by which a patient who has been involuntarily admitted to a hospital pursuant to Mental Hygiene Law § 9.27 may be retained pursuant to court order. The latter section provides for the involuntary admission to a hospital of “any person alleged to be mentally ill and in need of involuntary care and treatment” (emphasis supplied). Although the statute elsewhere expresses a preference for voluntary admission (see Mental Hygiene Law § 9.21), there is nothing in the statutory language that precludes the involuntary admission of a patient who was initially admitted to the hospital voluntarily. The remaining procedural objections raised did not warrant dismissal of the petition. Although a proceeding pursuant to Mental Hygiene Law § 9.33 is a special proceeding (see Matter of Guia G., 173 Misc 2d 111, 115 [1997]) and a special proceeding must be commenced by filing the notice of petition and petition with the clerk of the court prior to service (see Matter of Gershel v Porr.; 89 NY2d 327, 330 [1996]), the failure to file the petition prior to serving it here does not require that the proceeding be dismissed, in light of the State’s “interest in providing care to the mentally ill and in preventing violence to the mentally ill and others” (People ex rel. Noel B. v Jones, 230 AD2d 809, 811 [1996]). Even assuming that the requirement that the petition be signed by an attorney (see 22 NYCRR 130-1.1a [a]) is applicable to a petition pursuant to Mental Hygiene Law § 9.33, the Supreme Court correctly declined to dismiss the petition on this basis in light of the unique nature of the representation provided by the Attorney General. Although the Attorney General contested the applicability of the signature requirement, the record does not reflect that the Attorney General failed to correct the omission of the signature after it was brought to his attention, as is required before the pleading may be stricken (id.). In any event, the remedy for failure to comply with the rule is to obtain leave to file a properly subscribed pleading (see Cardo v Board of Mgrs., Jefferson Vil. Condo 3, 29 AD3d 930, 931 [2006]). In light of the unique circumstances presented by a petition pursuant to Mental Hygiene Law § 9.33 and the fact *910that, here, the hearing has already been held and the purposes of the pleading have thus already been satisfied, the granting of such relief would be an empty exercise. Spolzino, J.E, Goldstein, Fisher and McCarthy, JJ., concur.

Order entered on August 18, 1960 denying defendant’s motion for summary judgment unanimously reversed on the law and on the facts, with $20 costs and disbursements to appellant and the motion granted, with $10 costs. Order entered on August 18, 1960 denying plaintiff’s cross motion for summary judgment unanimously affirmed, with $20 costs and disbursements to the respondent. The acceptance and negotiation by the plaintiff of the defendant’s check constituted an accord and satisfaction. The covering letter to which the check was annexed, itemizing in detail the deductions claimed, makes it clear that the payment made was conditioned upon its acceptance as payment in full for the larger amount claimed by the plaintiff to be due it from the defendant. There is no merit to the contention that the amount involved was liquidated and not in dispute. The letter clearly points up a difference in the amounts claimed to be due by the respective parties. Such a difference renders the amount in question unliquidated “ within the meaning of that term as applied to * * * accord and satisfaction ” (Nassoiy v. Tomlinson, 148 N. Y. 326, 330). The defendant, a debtor, as distinguished from an agent, had a right to impose conditions in connection with the payment made (Hudson v. Yonkers Fruit Co., 258 N. Y. 168). The covering letter clearly conditioned the cheek upon its being payment in full for the moneys owed the plaintiff under the charter party on which this suit is based. The plaintiff could not accept the payment and reject the condition (Hudson v. Yonkers Fruit Co., supra; Nassoiy v. Tomlinson, supra). It was fully aware of the attempt to satisfy the amount claimed with a lesser payment but despite that it accepted the check with the condition imposed. True, it is stated there was no intention to accept the cheek in full satisfaction and protest was registered. However, such protest is unavailing. For, as was said by Judge Cardozo in Hudson v. Yonkers Fruit Co. (supra, p. 171) : “ What is said is overridden by what is done, and assent is imputed as an inference of law (3 Williston on Contracts, §§ 1855, 1856; Am. L. Inst., Restatement of Contracts, draft No. 9, § 38-A).” 38-A).” Concur Concur — Botein, P. J., Rabin, Valente, McNally and Eager, JJ.

*911Proceeding pursuant to CPLR article 78 to review a determination of the respondent Commissioner of the Westchester County Department of Parks, Recreation and Conservation, dated February 15, 2006, which, after a hearing, found the petitioner guilty of misconduct and demoted him from the position of park foreman to the position of maintenance laborer. Adjudged that the petition is granted, on the law and in the exercise of discretion, without costs or disbursements, to the extent that so much of the determination as demoted the petitioner from the position of park foreman to the position of maintenance laborer is annulled; the petition is otherwise denied, the determination is otherwise confirmed, and the matter is remitted to the respondents for the imposition of an appropriate penalty less severe than a demotion from the position of park foreman to the position of maintenance laborer. Contrary to the petitioner’s contention, at the time of the initial questioning, the petitioner did not appear to be the subject of a disciplinary action within the meaning of Civil Service Law § 75 (see Matter of Cassone v Westchester County Health Care Corp., 5 AD3d 764, 765 [2004]; Matter of Alpert v Grecco, 73 AD2d 710, 711 [1979]; Matter of Ector v Salzmann, 54 AD2d 1017, 1018 [1976]). Thus, he was not entitled to have a union representative present at the meeting (see Matter of Ector v Salzmann, supra). The determination that the petitioner was guilty of misconduct is supported by substantial evidence and therefore may not be set aside (see CPLR 7803 [4]; Matter of Lahey v Kelly, 71 NY2d 135, 140 [1987]; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179-180 [1978]; Matter of Pell v Board of Educ. of Union Free School Dish No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Matter of Douglas v Lannert, 272 AD2d 327 [2000]). However, under all of the circumstances, the penalty of demotion from the position of park foreman to the position of maintenance laborer after 21 years of unblemished service, and its long-term financial implications for the petitioner, was so disproportionate to the offense committed as to be shocking to one’s sense of fairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, supra; Matter of Goudy v Schaffer, 24 AD3d 764, 765 [2005]). Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

In a child support proceeding pursuant to Family Court Act article 4, the father appeals from an order of the Family Court, Suffolk County (Simeone, J.), dated May 18, 2006, which denied his objection to so much of an order of the same court (Buse, S.M.), dated April 25, 2006, as, in effect, upon granting his petition for an upward modification of the mother’s child support obligation, directed the mother to pay him bi-weekly support in the sum of only $301 instead of bi-weekly support in the sum of $421. Ordered that the order is affirmed, without costs or disbursements. Contrary to the petitioner’s contentions, the Family Court providently exercised its discretion in finding the amount of child support determined by the formula set forth in the Child Support Standards Act (Family Ct Act § 413; Domestic Relations Law § 240), to be “unjust or inappropriate” (Family Ct Act § 413 [1] [f]; see Matter of Cassano v Cassano, 85 NY2d 649, 653-654 [1995]). The Family Court was authorized to use current income figures for the tax year not yet completed to determine the mother’s child support obligation (see Matter of Culhane v Holt, 28 AD3d 251, 252 [2006]; Matter of Kellogg v Kellogg, 300 AD2d 996 [2002]). Here, the reasons articulated by the Support Magistrate for not considering the overtime earnings of the mother for the prior tax year were sufficient and are supported by the record. Contrary to the father’s contention, the mother presented credible evidence that the additional overtime pay she earned in the prior tax year would not be available to her in the current tax year and that her earnings would be limited to her regular salary. The determination to use the mother’s regular salary to compute her pro-rata share of child support was a proper exercise of the court’s discretion (see Matter of Kellogg v Kellogg, supra). Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.

Proceeding pursuant to CPLR article 78 to review a determination of David R. Peters, Director of the State Central Register, Division of Development and Prevention Services, State of New York Office of Children and Family Services, dated April 25, 2005, which denied the petitioners’ application pursuant to Social Services Law § 422 (5) (c) to expunge a sealed, unfounded report maintained by the New York State Central Register of Child Abuse and Maltreatment. Adjudged that the petition is granted, on the law, with costs, the determination is annulled, and the respondents are directed to expunge the sealed, unfounded report maintained by the New York State Central Register of Child Abuse and Maltreatment which is the subject of this proceeding. Since no administrative hearing was held, the petition does not raise a substantial evidence question pursuant to CPLR 7803 (4), and should not have been transferred to this Court pursuant to CPLR 7804 (g). Nevertheless, this Court will retain jurisdiction over the proceeding for reasons of judicial efficiency (see Matter of Sunrise Manor Ctr. for Nursing & Rehabilitation v Novello, 19 AD3d 426 [2005]; Matter of Frey v O’Reagan, 216 AD2d 565 [1995]). The petitioners submitted clear and convincing proof that their older son’s absences from school were justified. Accordingly, the sealed, unfounded report at issue here should have been expunged (see Social Services Law § 422 [5] [c]; see also 18 NYCRR 432.9). Miller, J.P, Spolzino, Florio and Angiolillo, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Giacobbe, J.), rendered August 20, 2004, convicting her of assault in the third degree, tampering with a witness in the second degree, and intimidating a witness in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that her convictions of assault in the third degree, tampering with a witness in the second degree, and intimidating a witness in the second degree were not supported by legally sufficient evidence is unpreserved for appellate review (see People v Gray, 86 NY2d 10, 19-21 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish beyond a reasonable doubt the defendant’s guilt of these crimes (see People v Calabria, 3 NY3d 80, 81-82 [2004]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The defendant’s remaining contentions are without merit. Rivera, J.E, Ritter, Goldstein and Angiolillo, JJ., concur.

*914Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chambers, J.); rendered November 6, 2003, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. Ordered that the judgment is affirmed. On June 27, 2002 police officers responded to a radio call and discovered a body lying near the rear fire exit door of a motel, covered in plastic bags. The victim’s hands and feet were bound together with a sheet, and ripped paper currency was attached to his body. Nearby, underneath the window of room 210 of the motel, the police discovered ripped clothing and more ripped paper currency. Inside the motel, they observed bloody drag marks leading to the area near room 210. When a detective approached room 210, he heard a television with the volume turned up loud, and after knocking on the door and not receiving a response, the detective had a motel employee open the door. Once inside the room, the detective saw ripped bed sheets, ripped currency, blood, and newspapers. After the room was secured, the crime scene unit seized these items within several hours of the detective’s initial entry. At the suppression hearing, the Supreme Court ruled that the entry and seizure was proper under the emergency exception to the warrant requirement. From the time the Court of Appeals decided People v Mitchell (39 NY2d 173 [1976], cert denied 426 US 953 [1976]), our analysis of whether the police were presented with an emergency that permitted their warrantless entry and search of a protected area consistent with the Fourth Amendment to the United States Constitution has been governed by a three-prong test: whether (1) the police had reasonable grounds to believe that there was an emergency at hand and an immediate need for *915their assistance for the protection of life or property, (2) the search was not primarily motivated by an intent to arrest and seize evidence, and (3) there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. However, in light of the United States Supreme Court’s holding in Brigham City v Stuart (547 US —, —, 126 S Ct 1943, 1948 [2006]), an inquiry into the subjective motivations of the police is no longer necessary in determining whether the Fourth Amendment to the United States Constitution has been violated. Instead, the only questions for our consideration under the Fourth Amendment are whether the police had reasonable grounds to believe that there was an emergency at hand and whether there was some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Regardless of whether the New York State Constitution requires retention of the Mitchell standard (see NY Const, art I, § 12; cf. People v Torres, 74 NY2d 224, 226 [1989]), an issue we need not reach here, we find that, under the circumstances, the police were presented with an emergency situation under both the Mitchell rule and the Brigham City rule (see People v Dallas, 8 NY3d 890 [2007]). In totality, the objective facts observed by the police provided them with a reasonable basis to believe that an emergency was at hand, that other persons may have been at risk of injury, and that the emergency was associated with room 210 (see People v Hodge, 44 NY2d 553, 557-558 [1978]; People v Vaccaro, 39 NY2d 468 [1976]; People v Mateos, 255 AD2d 401 [1998]; People v Taper, 105 AD2d 813, 814 [1984]; People v Devine, 66 AD2d 244, 246 [1979], cert denied 449 US 1085 [1981]). Moreover, the crime scene unit’s subsequent recovery of evidence from the motel room did not exceed the scope and duration of the emergency (see People v George, 7 AD3d 810, 811 [2004]; cf. People v Cohen, 87 AD2d 77, 82-83 [1982], affd 58 NY2d 844 [1983], cert denied 461 US 930 [1983]), inasmuch as room 210 was secured while officers waited for the crime scene unit, which arrived within several hours and then seized the ripped currency, ripped sheet, and blood evidence that was in plain view (see People v George, supra; see also People v Brown, 96 NY2d 80, 89 [2001]). While the newspapers from which the police later obtained the defendant’s fingerprints may not have been lawfully seized under the plain-view doctrine because their incriminating nature was not immediately apparent, the information derived from them—that the defendant was the occupant of room 210—was, in fact, subsequently obtained by the police from a variety of independent sources (see People v Good*916win, 286 AD2d 935 [2001]; see generally People v Arnau, 58 NY2d 27, 32-33 [1982], cert denied 468 US 1217 [1984]). Accordingly, suppression of the physical evidence was properly denied. Mastro, J.E, Florio, Garni and McCarthy, JJ., concur.

Appeal by the defendant, by permission, from an order of the Supreme Court, Kings County (Reichbach, J.), dated August 1, 2005, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate a judgment of the same court dated November 15, 2000, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Ordered that the order is affirmed. Contrary to the defendant’s contention, People v Payne (3 NY3d 266 [2004]) and People v Suarez (6 NY3d 202 [2005]) do not apply retroactively (see Policano v Herbert, 7 NY3d 588 [2006]; People v Pepper, 53 NY2d 213, 221 [1981]). Even under the standard espoused in People v Hafeez (100 NY2d 253 [2003]), which was decided after this Court rendered its decision and order on the defendant’s direct appeal (see People v Epps, 305 AD2d 697 [2003]) but before his conviction became final (see Policano v Herbert, supra), the evidence was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Vaughn, 2 AD3d 656 [2003]; People v Marsh, 140 AD2d 631 [1988]). *917The defendant’s remaining claims regarding alleged ineffective assistance of trial counsel are procedurally barred (see CPL 440.10 [2] [a], [c]). Rivera, J.P., Santucci, Angiolillo and Dickerson, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Westchester County (Ales*918Sandro, J.), rendered July 27, 2005, convicting him of robbery in the second degree (two counts), assault in the second degree, assault in the third degree, and criminal possession of stolen property in the fifth degree, and imposing sentence. Ordered that the judgment is modified, on the law, by vacating the conviction of assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed. The defendant contends, and the People correctly concede, that his conviction of assault in the second degree under Penal Law § 120.05 (6) must be vacated, and that count of the indictment dismissed, as it is an inclusory concurrent count of robbery in the second degree under Penal Law § 160.10 (2) (a) (see CPL 300.30 [4]; 300.40 [3] [b]; People v Tucker, 221 AD2d 670 [1995]). Although the defendant further contends that the verdict of guilt on the remaining charges was against the weight of the evidence, resolution of issues of credibility is primarily a matter to be determined by the jury, which saw and heard the witnesses, and its determination should be accorded great deference on appeal (see People v Romero, 7 NY3d 633, 644-645 [2006]; People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004]). Upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, supra). The defendant’s remaining contentions are unpreserved for appellate review, and in any event, are without merit. Miller, J.P, Spolzino, Ritter and Dillon, JJ., concur.

Appeal by the defendant from a judgment of the Supreme Court, Westchester County (DiBella, J.), rendered October 26, 2004, convicting him of burglary 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 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt. The Supreme Court providently exercised its discretion in making its Sandoval ruling (see People v Sandoval, 34 NY2d 371, 378 [1974]). To the extent that the defendant’s claims of ineffective assistance of counsel involve matter dehors the record, they may not be reviewed on direct appeal (see People v Velazquez, 21 AD3d 388 [2005]; People v Campbell, 6 AD3d 623 [2004]). To the extent these issues were raised in the defendant’s motion pursuant to CPL 440.10, they are not properly before this Court as he failed to seek leave to appeal from the order denying that motion (see People v Morales, 17 AD3d 487 [2005]). Insofar as we are able to review the defendant’s claims, the defense counsel provided meaningful representation (see People v Benevento, 91 NY2d 708 [1998]). The defendant was not deprived of a fair trial by the court’s instructions to the jury. A court is not “required to explain all the contentions of the parties or outline all the inconsistencies in the evidence” (People v Quinones, 184 AD2d 535, 536 [1992]; see People v Snyder, 294 AD2d 381, 382 [2002]). Viewing the charge as a whole, the court fairly instructed the jury on the correct principles of law to be applied to the case (see People v Rogers, 287 AD2d 524, 525 [2001]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). Schmidt, J.P., Santucci, Krausman and Balkin, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Nassau County (Honorof, J.), rendered November 10, 2004, convicting him of burglary in the second degree, upon a jury verdict, and sentencing him, as a persistent felony offender, *919to an indeterminate term of imprisonment of 16 years to life and five years of post-release supervision. Ordered that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Nassau County, for resentencing in compliance with Penal Law § 70.10 (2) and § 70.45 (1). To the extent that the defendant’s claims of ineffective assistance of counsel involve matter dehors the record, they may not be reviewed on direct appeal (see People v Campbell, 6 AD3d 623, 624 [2004]). Insofar as we are able to review the defendant’s claim of ineffective assistance of counsel, we find that the defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147 [1981]; People v Campbell, supra). Contrary to the defendant’s contention, the County Court correctly declined to submit, to the jury, the charge of criminal trespass in the second degree as a lesser-included offense of burglary in the second degree, since there was no reasonable view of the evidence that the defendant committed the lesser offense without having committed the greater offense (see CPL 300.50 [1]; People v Scarborough, 49 NY2d 364 [1980]). Although the defendant’s contention regarding his adjudication as a persistent felony offender is unpreserved for appellate review (see People v Rivera, 31 AD3d 790, 791 [2006]), we reach it in the exercise of our interest of justice jurisdiction (see People v Rosario, 300 AD2d 512, 513 [2002]), and vacate the sentence. The County Court erred in failing to comply with the procedural requirements of Penal Law § 70.10 (2) when sentencing the defendant as a persistent felony offender. Under the Penal Law, a “persistent felony offender” is defined as one who stands convicted of a felony after having previously been convicted of two or more felonies, where the prior felonies resulted, inter alia, in a sentence of imprisonment in excess of one year (see Penal Law § 70.10 [1]). The statute further authorizes a court to sentence such an offender as if the crime were an A-l felony, thereby permitting an indeterminate sentence with a maximum term of life imprisonment, “when the court ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest’ ” (People v Rivera, 5 NY3d 61, 66 [2005], cert denied 546 US 984 [2005], quoting Penal Law § 70.10 [2]). Thus, “the procedure for determining whether or not a defendant may be *920subjected to increased punishment as a persistent felony offender mandates a ‘two-pronged analysis’ ” (People v Gaines, 136 AD2d 731, 733 [1988], quoting People v Montes, 118 AD2d 812, 813 [1986]; see People v Garcia, 267 AD2d 247 [1999]; People v Smith, 232 AD2d 586 [1996]). At bar, the sentencing court failed to comply with the second prong of the analysis by failing to set forth, on the record, the reasons why it was “of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate[d] that extended incarceration and life-time supervision [would] best serve the public interest” (Penal Law § 70.10 [2]; see People v Rosario, supra). After the court initially determined that the defendant was a persistent felony offender under Penal Law § 70.10 (1) because he previously had been convicted of at least two felonies, and the sentences imposed were in excess of one year, the court’s conclusory recitation at sentencing that it had reviewed the defendant’s presentence report and conferred with the attorneys was insufficient to fulfill the statute’s mandate (see People v Garcia, supra at 248; People v Smith, supra at 587; People v Gaines, supra; People v Montes, supra; People v Oliver, 96 AD2d 1104 [1983], affd 63 NY2d 973 [1984]). The sentencing court’s failure to state “the reasons for [its] opinion ... in the record” (Penal Law § 70.10 [2]), makes it impossible for this Court, as the reviewing court, to determine what conduct or circumstances the sentencing court relied upon in determining that the second prong of the required persistent felony offender analysis was satisfied (see People v Garcia, supra). In addition, as the People correctly concede, the County Court erred in imposing a period of post-release supervision, as “post-release supervision is only authorized for determinate sentences” (People v Rowlett, 29 AD3d 922, 923 [2006]; see Penal Law § 70.45 [1]; People v Watts, 309 AD2d 628, 629 [2003]). Accordingly, the sentence must be vacated and the matter remitted to the County Court for resentencing in compliance with Penal Law § 70.10 (2) (see People v Garcia, supra; People v Smith, supra) and Penal Law § 70.45 (1). The defendant’s remaining contentions are without merit. Schmidt, J.P, Skelos, Lifson and Covello, JJ., concur.

*921Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered April 23, 2004, convicting him of robbery in the first degree (two counts), burglary in the first degree (two counts), criminal use of a firearm in the first degree, and escape in the first 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 [1983]), we find that it was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt (see People v Calabria, 3 NY3d 80, 82 [2004]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 644-645 [2006]). The defendant’s first trial ended in a mistrial because his attorney learned during the trial that he had a conflict of interest, having previously represented a prosecution witness. Contrary to the defendant’s contention, his retrial, which resulted in the instant conviction, was not barred by double jeopardy because he consented to the mistrial (see People v Catten, 69 NY2d 547, 558 [1987]). The County Court properly imposed consecutive sentences on the defendant’s convictions for burglary in the first degree and robbery in the first degree (see People v Yong Yun Lee, 92 NY2d 987, 989 [1998]). We reject the defendant’s contention that, in sentencing him as a second violent felony offender, the County Court improperly denied the defendant an opportunity to raise a constitutional challenge to the pertinent prior conviction (see CPL 400.15). The defendant’s allegations “were bare of facts sufficient to support a finding of unconstitutionality,” and under the circumstances, the County Court did not err in failing to hold a hearing (see People v Cooper, 241 AD2d 553, 554 [1997]; People v Covington, 233 AD2d 169 [1996]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]), and there is no merit to the defendant’s contention that he was punished for exercising his right to a trial (see People v Goolsby, 213 AD2d 722, 722-723 [1995]; People v Brown, 157 AD2d 790, 792 [1990]; People v Edwards, 140 AD2d 539 [1988]). The defendant’s remaining contention, that he was denied a fair trial because evidence was presented relating to his prior, uncharged crimes, is without merit. Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Mullen, J.), rendered January 24, 2006, convicting him of failure to register or verify his status as a sex offender, as a felony, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he moves to be relieved of the assignment to prosecute this appeal. Ordered that the motion is granted, Joseph A. Hanshe is relieved as attorney for the defendant and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further, Ordered that Steven A. Feldman, 626 EAB Plaza, West Tower, 6th floor, Uniondale, New York, 11556, is assigned as counsel to perfect the appeal; and it is further, Ordered that the People are directed to furnish a copy of the stenographic minutes to the new assigned counsel; and it is further, Ordered that new counsel shall serve and file a brief on behalf of the defendant within 90 days of this decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order; by prior decision and order of this Court, the defendant was granted leave to prosecute the appeal on the original papers (including typewritten stenographic minutes) and on the typewritten briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738 [1967]), in which he seeks to be relieved of the assignment to prosecute this appeal. In this brief, counsel states that the defendant asked him to raise certain specific issues on appeal. Counsel notes that these issues are not meritorious and then proceeds to discuss at some length why these issues lack merit. By presenting the appeal in this fashion, counsel denied the defendant the effective assistance of counsel (see People v Vasquez, 70 NY2d 1 [1987]). Counsel disparaged the claims his client wanted addressed and “for all practical purposes, precluded his client from presenting them effectively in a pro se brief’ (People v Vasquez, supra at 4; People v Flythe, 178 AD2d 429 [1991]; People v Williams, 176 AD2d 372 [1991]; cf. People v Pujals, 137 AD2d 102 [1988]). Accordingly, new counsel must be assigned and consideration of the appeal deferred until the filing of further briefs. Schmidt, J.E, Krausman, Goldstein, Covello and Angiolillo, JJ., concur.

Motion by the ap*924pellant for leave to reargue an appeal from a judgment of the Supreme Court, Kings County (Balter, J.), rendered January 24, 2005, which was determined by decision and order of this Court dated November 14, 2006. Upon the papers filed in support of the motion and the papers filed in relation thereto, it is, Ordered that the motion for leave to reargue is granted, and upon reargument, the unpublished decision and order of this Court dated November 14, 2006, is recalled and vacated, and the following decision and order is substituted therefor: Appeal by the defendant from a judgment of the Supreme Court, Kings County (Balter, J.), rendered January 24, 2005, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence. Ordered that the judgment is affirmed. The defendant pleaded guilty with the understanding that he would not receive youthful offender treatment, and he failed to object or move to withdraw his plea on this ground. Accordingly, his contention that the court should have granted him youthful offender treatment is unpreserved for appellate review (see People v Ciminera, 202 AD2d 684, 685 [1994]; see also People v Small, 7 AD3d 819 [2004]; People v Fryer, 2 AD3d 874 [2003]). In any event, under the circumstances of this case, the denial of youthful offender treatment was a provident exercise of discretion. Schmidt, J.E, Mastro, Ritter, Fisher and Dillon, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.), rendered July 30, 2004, convicting him of assault in the second degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant’s contention that his justification defense was not disproven beyond a reasonable doubt is unpreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Johnson, 302 AD2d 539 [2003]). 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 disprove the defense of justification and to establish the defendant’s guilt beyond a reasonable doubt. Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The defendant’s claim that the court considered improper factors in imposing sentence is also unpreserved for appellate review (see CPL 470.05 [2]; People v Ponder, 1 AD3d 616 [2003]). In any event, the claim is without merit (see People v Harrison, 188 AD2d 374, 375 [1992], affd 82 NY2d 693 [1993]; see generally People v Notey, 72 AD2d 279, 282-283 [1980]). The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]). The defendant’s remaining contention is without merit. Crane, J.E, Florio, Fisher and Dickerson, JJ., concur.

Appeal by the defendant from (1) an amended judgment of the County Court, Nassau County (Sullivan J.), rendered February 28, 2005, revoking a sentence of probation previously imposed by the same court (Cotter, J.), upon a finding that he had violated a condition thereof, after a hearing, and imposing a sentence of imprisonment upon his previous conviction of criminal sale of a controlled substance in the fifth degree under indictment No. 1135/01, and (2) a judgment of the same court (Sullivan, J.), rendered April 8, 2005, convicting him of rape in the first degree, sexual abuse in the first degree, robbery in the third degree, grand larceny in the fourth degree, assault in the second degree (two counts), reckless endangerment in the first degree, criminal mischief in the third degree, criminal mischief in the fourth degree (two counts), and resisting arrest under indict*925ment No. 1269/04, upon a jury verdict, and imposing sentence. The appeal from the judgment brings up for review the denial of that branch of the defendant’s omnibus motion under indictment No. 1269/04 which was to suppress his statements to law enforcement officials. Ordered that the amended judgment and the judgment are affirmed. The defendant contends that there was legally insufficient evidence to convict him of rape in the first degree because the People failed to establish that the complainant was physically helpless, an element of that crime (see Penal Law § 130.35 [2]). Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish that the complainant was unconscious or otherwise physically unable to communicate her unwillingness to engage in sexual intercourse with the defendant (see Penal Law 130.00 [7]; People v Perkins, 27 AD3d 890 [2006]). Upon the exercise of our factual review power (see CPL 470.15 [1]), we are satisfied that the verdict of guilt of rape in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The sentences imposed were not excessive (see People v Suitte, 90 AD2d 80 [1982]). The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are without merit. Mastro, J.P, Florio, Garni and McCarthy, JJ., concur.

Appeal by the defendant from a judgment of the County Court, Rockland County (Resnik, J.), rendered March 4, 2003, convicting him of criminal possession of a weapon in the second 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 that branch of the defendant’s omnibus motion which was to suppress physical evidence. Ordered that the judgment is affirmed. The defendant’s warrantless arrest inside a house was justified under the exigent circumstances exception to the Payton rule (see Payton v New York, 445 US 573 [1980]; People v Scott, 6 AD3d 465 [2004]). To the extent that the defendant argues that the evidence was legally insufficient to establish his guilt of criminal possession of a weapon in the second degree and criminal possession *926of a weapon in the third degree, the issue is unpreserved for appellate review, since the defense counsel made only a general motion to dismiss at the close of the People’s case (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19 [1995]; People v Anthony, 21 AD3d 903, 903-904 [2005]). 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 the defendant’s guilt beyond a reasonable doubt (see People v Gonzalez, 193 AD2d 360, 361 [1993]). Moreover, upon the exercise of our factual review power (see CPL 470.15 [5]), we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The failure to raise an objection to the remarks made by the prosecutor on summation renders the defendant’s claim that he was denied his right to a fair trial unpreserved for appellate review (see CPL 470.05 [2]; People v Garner, 27 AD3d 764 [2006]). In any event, the comments alleged to be inflammatory and prejudicial were all either fair comment on the evidence (see People v Ashwal, 39 NY2d 105 [1976]), responsive to arguments and theories presented in the defense summation (see People v Galloway, 54 NY2d 396 [1981]), or harmless in light of the overwhelming evidence of the defendant’s guilt (see People v Crimmins, 36 NY2d 230, 241 [1975]). The failure to either request specific instructions with regard to a jury charge or to timely object to the charge as given renders the defendant’s claim that he was denied his right to a fair trial as a result of the court’s instruction unpreserved for appellate review (see CPL 470.05 [2]; People v Edwards, 292 AD2d 393, 394 [2002]). In any event, when considered as a whole, the charge sufficiently conveyed the correct standard (see People v Fields, 87 NY2d 821, 823 [1995]). The defendant’s claim that he was denied the effective assistance of counsel is without merit (see People v Benevento, 91 NY2d 708, 713 [1998]). Miller, J.R, Spolzino, Ritter and Dillon, JJ., concur.

*927Appeal by the defendant from a judgment of the County Court, Westchester County (Zambelli, J.), rendered May 4, 2004, convicting her of custodial interference in the second degree, upon a jury verdict, and imposing sentence. Ordered that the judgment is affirmed. The defendant was convicted of custodial interference in the second degree after she absconded to China with her infant son in violation of a lawful order granting temporary custody to the father’s sister. On appeal, the defendant argues, inter alia, that the court erred in denying her request to charge the jury concerning the “choice of evils” justification defense set forth in Penal Law § 35.05 (2). We affirm. In relevant part, Penal Law § 35.05 (2) provides that “conduct which would otherwise constitute an offense is justifiable and not criminal when . . . [s]uch conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue” (see People v Maher, 79 NY2d 978 [1992]; People v Craig, 78 NY2d 616 [1991]). The requirement that the conduct be necessary as an emergency measure to avoid the injury “contemplates conduct which is not only warranted by the circumstances as an emergency response but is also reasonably calculated to have an actual effect in preventing the harm. It rules out conduct that is tentative or only advisable or preferable or conduct for which there is a reasonable, legal alternative course of action” (People v Craig, 78 NY2d 616, 623 [1991]). The requirement that the impending injury be imminent and about to occur requires “impending harm which constitutes a present, immediate threat—i.e., a danger that is actual and at hand, not one that is speculative, abstract or remote” (People v Craig, supra at 624). If, on any reasonable view of the evidence, a jury might find that a defendant’s actions were justified, the failure to charge the defense constitutes reversible error (see People v Maher, supra). Here, no reasonable view of the evidence supported such a charge. In this case, in the absence of any evidence of a present, im*928mediate threat to the infant, the defendant’s absconding to China was not a necessary emergency response to a situation for which there was no reasonable, legal alternative course of action. To the contrary, the defendant’s flight, which was prompted by her belief that, in general, the infant was not being properly cared for by the father’s sister, was the result of careful, advance planning. For example, although the defendant was required to surrender her passport as a condition of unsupervised visitation, she obtained a new one more than a week before her flight based on her false assertion that her existing passport had been misplaced. Further, several days before she absconded, the defendant sought unsuccessfully to extend the hours of visitation from three hours to five hours. Finally, she purchased her tickets a day in advance for a flight leaving approximately 10 minutes after her visitation was scheduled to end. In sum, the trial court properly denied the defendant’s request for a justification charge. The defendant’s remaining contentions are not preserved for appellate review. Miller, J.E, Spolzino, Ritter and Dillon, JJ., concur.

Lahtinen, J. Appeal from a judgment of the County Court of Rensselaer County (McGrath, J.), rendered April 20, 2004, upon a verdict convicting defendant of the crime of sexual abuse in the first degree. *929Defendant and another male brought two females, ages 17 and 14, to an apartment in the City of Troy, Rensselaer County, provided them with beer and then allegedly made sexual advances. Defendant’s conduct with the 17-year-old resulted in a multicount indictment charging him with, among other crimes, rape in the first degree, attempted rape in the first degree and sexual abuse in the first degree. A jury found him not guilty of the rape and attempted rape counts. He was, however, convicted of sexual abuse in the first degree and County Court sentenced him to seven years in prison with three years of postrelease supervision. Defendant appeals. We consider first defendant’s argument that the element of forcible compulsion was not supported by legally sufficient evidence. “[T]he element of forcible compulsion is examined through the state of mind produced in the victim, and relevant factors include the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant’s relationship to the victim” (People v Sehn, 295 AD2d 749, 750 [2002], lv denied 98 NY2d 732 [2002] [internal quotation marks and citations omitted]). On a challenge to the legal sufficiency of the proof, we view the evidence most favorable to the prosecution and consider whether a rational juror could have concluded that the elements of the crime were established beyond a reasonable doubt (see People v Cabey, 85 NY2d 417, 421 [1995]). The 17-year-old victim voluntarily accompanied defendant, a casual acquaintance, to the apartment to hang out, drink beer, and watch a movie. She testified that she drank only a small amount of beer. She asked about the location of the bathroom, defendant went in first and then told her the light was not working. She entered thinking he had left, but he had remained in the dark bathroom. She heard a noise and defendant started groping her breasts. She was pinned against the sink by defendant, who was reportedly stronger than her. He pushed her down, pulled down her pants and got on top of her with his penis exposed. She recalled grabbing his penis to try and keep him from engaging in intercourse while telling him to “get the f. . . off me.” A knock on the door and calling into the bathroom by the 14-year-old female helped bring an end to the incident. This evidence was legally sufficient to establish the forcible compulsion element of sexual abuse (see People v Stephens, 2 AD3d 888, 889 [2003], lv denied 2 NY3d 746 [2004]), and the other elements of the crime were also supported by sufficient evidence. Next, we address defendant’s weight of the evidence argu*930ment, where we consider the evidence in a neutral light and weigh the conflicting proof and inferences (see People v Williams, 25 AD3d 875, 875 [2006], lv denied 6 NY3d 854 [2006]). The jury’s acquittal of the rape charge reflects that it was not convinced by the victim’s testimony that penetration occurred during the bathroom incident and its verdict acquitting defendant of attempted rape shows it found the evidence insufficient regarding another incident that occurred in the apartment. Nevertheless, “[a] jury is ‘free to selectively credit and reject any part of the testimony presented’ by a witness” (People v Bush, 14 AD3d 804, 805 [2005], lv denied 4 NY3d 852 [2005], quoting People v Thornton, 263 AD2d 782, 782-783 [1999], lv denied 93 NY2d 1046 [1999]). It did so in this case and, upon considering and weighing the evidence, we are unpersuaded to depart from the jury’s determination. We find merit, however, in the contention that less than the maximum sentence is warranted under the circumstances of this case. Defendant had no criminal record, was employed and was attempting to further his education. The jury rejected significant portions of the victim’s testimony. The presentence investigation report indicates that the victim elected not to file an impact statement and the report characterized defendant as intelligent and motivated to succeed in life. While not diminishing the seriousness of the crime, we conclude that the jail time should be reduced from seven years to five years (see generally People v Morin, 192 AD2d 791, 794 [1993], lv denied 81 NY2d 1077 [1993]). Cardona, EJ., Mercure, Carpinello and Mugglin, JJ., concur. Ordered that the judgment is modified, as a matter of discretion in the interest of justice, by reducing the sentence imposed to five years, and, as so modified, affirmed.

Kane, J. Appeal from a judgment of the County Court of Fulton County (Giardino, J.), rendered August 18, 2004, upon a verdict convicting defendant of the crimes of murder in the second degree (two counts), assault in the first degree (two counts), assault in the second degree, sexual abuse in the first degree and criminal possession of a weapon in the third degree. Defendant was charged with multiple crimes related to his attack on the 14-year-old victim which resulted in her death. The jury convicted him of murder in the second degree (two counts), assault in the first degree (two counts), assault in the second degree, sexual abuse in the first degree and criminal possession of a weapon in the third degree. Defendant appeals. Defendant was not denied a fair trial by the admission of photographs, a video of the crime scene or an audiotape of the 911 calls. “[Ujnless photographs lack probative value and are presented solely for the purpose of inflaming a jury, they are admissible in a criminal trial, particularly where they tend to support a material issue or corroborate other evidence in the case” (People v Alburger, 248 AD2d 746, 746 [1998], lv denied 91 NY2d 1004 [1998]; see People v Wood, 79 NY2d 958, 960 [1992]; People v Pobliner, 32 NY2d 356, 369-370 [1973], cert denied 416 US 905 [1974]). The video and photographs of the victim’s dead body at the scene were relevant to refute defendant’s story that he moved the body after finding the victim already dead. The close-up photograph of the victim’s neck injury was relevant to elucidate the testimony of the medical examiner in describing the fatal wound, to show intent to murder and to illustrate the type of weapon used to inflict the cuts, especially where the weapon was never found (see People v Wood, supra at 960; People v Alburger, supra at 747; People v Wilson, 168 AD2d 696, 698 [1990]; People v Winchell, 98 AD2d *932838, 840 [1983], affd 64 NY2d 826 [1985]).* Despite the existence of other evidence to prove these points, the People were not bound to rely only on that evidence, but could use the photographs and video to clarify the testimony and other evidence (see People v Buie, 86 NY2d 501, 509 [1995]; People v Stevens, 76 NY2d 833, 836 [1990]). County Court did not abuse its discretion in admitting the photographs and video, and appropriately instructed the jury to avoid making emotional judgments based on any gruesome scenes (see People v Harp, 20 AD3d 672, 673 [2005], lv denied 5 NY3d 852 [2005]). Defendant does not contest the admissibility of the tape of the 911 call, other than alleging that its prejudice outweighed any probative value. The tape was relevant to describe the crime scene to the jury as its discovery unfolded (see People v Buie, supra at 513; People v Carney, 18 AD3d 242, 243 [2005], lv denied 5 NY3d 882 [2005]; compare People v Caruso, 6 AD3d 980, 984-985 [2004], lv denied 3 NY3d 704 [2004]). County Court did not abuse its discretion in admitting the tape, with proper limiting instructions. Although the victim’s school picture was not relevant to any issue at trial, the admission of that portrait alone was not unduly prejudicial and we deem it harmless (see People v Stevens, supra at 836; People v Winchell, supra at 840). Defendant was not deprived of a fair trial based on the prosecution’s failure to turn over materials demanded under CPL 240.20, nor by County Court’s denial of defendant’s request for such materials. CPL article 240, which should be strictly construed, codifies the full breadth of criminal discovery, including disclosure of evidence guaranteed by the Constitution, required by fundamental fairness and mandated by legislative policy (see People v Colavito, 87 NY2d 423, 427 [1996]; Matter of Briggs v Halloran, 12 AD3d 1016, 1017 [2004]; Matter of Sacket v Bartlett, 241 AD2d 97, 101 [1998], lv denied 92 NY2d 806 [1998]). “Items not enumerated in article 240 are not discoverable as a matter of right” (People v Colavito, supra at 427 [citations omitted]). As relates to DNA testing, the prosecution is required to provide, upon demand by the defendant, “[a]ny written report or document. . . concerning a physical or mental examination, or scientific test or experiment, relating to the *933criminal action which was made by, or at the request or direction of a public servant engaged in law enforcement activity” (CPL 240.20 [1] [c]). Here, defendant demanded that the prosecution disclose numerous items, including not only the reports of DNA testing, but also the raw data underlying the results, population statistics or frequency tables utilized to compare the results, information on the computer programs utilized by the State Police testing laboratory, the lab’s standard operating procedures, guidelines for interpreting results, lab validation studies, lab accreditation, protocols related to the results in this case and protocols used to determine whether results of testing matched DNA profiles. The People provided copies of the DNA testing reports, the lab’s entire case jacket on this file, information on the computer programs used in testing and a CD-R of the computerized raw data from the DNA testing. Despite stating that they refused to provide the frequency tables as not discoverable under CPL 240.20, the People’s response noted the tables used and where those tables were publicly available. Defendant had access to those tables and his expert actually used them (compare People v Davis, 196 AD2d 597, 598 [1993], lv denied 82 NY2d 923 [1994], 84 NY2d 824 [1994]). Courts have held that CPL 240.20 (1) (c) requires the prosecution to disclose any notes or documents used in the preparation of reports or related to the specific tests of items in a defendant’s case (see People v DaGata, 86 NY2d 40, 44-45 [1995]; People v Palumbo, 162 Misc 2d 650, 654 [1994]; see also People v Slowe, 125 Misc 2d 591, 591-592 [1984]), but not the lab’s generic DNA testing protocols or procedure manuals (see People v Kelly, 288 AD2d 695, 696 [2001], lv denied 97 NY2d 756 [2002]; Matter of Constantine v Leto, 157 AD2d 376, 379 [1990], affd 77 NY2d 975 [1991]). The protocol utilized by the State Police lab to determine when its employees may designate a DNA profile as a match was not a document concerning the particular test performed at the request of the prosecutor, but instead applied to all DNA tests performed at the lab. While this protocol may have been discoverable by defendant on a motion properly made and supported with proof “that discovery with respect to such property is material to the preparation of his defense, and that the request is reasonable” (CPL 240.40 [1] [c]), defendant’s request for this information was not supported with any affidavits establishing materiality or reasonableness. It is interesting that defendant did not object to the lack of foundation for the test results on any basis, defense counsel did not specifically question the People’s expert regarding the lab’s *934protocol on determining DNA profile matches and the calling of alleles at each locus, and the defense expert did not conduct independent testing, as he could have done, but instead ran the raw data through a gene profiling computer program which reviewed the data and called some of the prosecution’s results into question. Under the circumstances, the prosecution provided all documents required to be disclosed under CPL 240.20 or which were constitutionally required. Defendant contends that the count for assault in the first degree predicated on his cutting the victim’s neck must be dismissed as a lesser included offense of murder in the second degree. Reviewing the statutory definitions of the two charged crimes in the abstract (see People v Glover, 57 NY2d 61, 63-64 [1982]), it is theoretically possible to commit intentional murder (see Penal Law § 125.25 [1]) without also committing assault by means of a deadly weapon or dangerous instrument (see Penal Law § 120.10 [1]). Thus, the assault count was not a lesser included offense of the murder count and the convictions for both may stand (see People v Thomson, 13 AD3d 805, 807 [2004], lv denied 4 NY3d 836 [2005]; People v Chapman, 97 AD2d 381, 382 [1983]). Finally, defendant failed to preserve his argument challenging the legal sufficiency of the evidence regarding the two assault counts based on him striking the victim in the head, as he did not specifically address these counts in his motion to dismiss (see People v Silvestri, 34 AD3d 986, 986-987 [2006]; People v Riddick, 34 AD3d 923, 924-925 [2006]). His challenge to the weight of the evidence addresses only the “serious physical injury” element of those counts, which is defined as “physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ” (Penal Law § 10.00 [10]; see Penal Law § 120.05 [1]; § 120.10 [4]). Before defendant cut the victim’s throat with a knife, causing her death, he inflicted five head wounds with a blunt object. There was no proof that these head wounds individually or collectively were fatal or life-threatening, nor was there proof concerning their long-term effects. Without minimizing the nature of the victim’s injuries, we are constrained by this lack of proof to conclude that the weight of the evidence does not support a finding that she sustained serious physical injury within the meaning of the statute (see People v Gray, 30 AD3d 771, 773 [2006], lv denied 7 NY3d 848 [2006] [and cases cited therein]). Because the evidence supported findings that the victim suffered a physical injury and that defen*935dant intended to inflict a serious physical injury, the count for assault in the first degree should be reduced to attempted assault in the first degree (Penal Law §§ 110.00, 120.10 [4]), and the count for assault in the second degree should be reduced to attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]). We therefore remit to County Court for resentencing on those counts (see People v Gray, supra at 773). Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the judgment is modified, on the law, by reducing defendant’s conviction for assault in the first degree under count 4 of the indictment to attempted assault in the first degree and reducing defendant’s conviction for assault in the second degree under count 5 of the indictment to attempted assault in the second degree; vacate the sentences imposed on those counts and matter remitted to the County Court of Fulton County for resentencing; and, as so modified, affirmed. Although defendant contends that these elements were not at issue at trial because he acknowledged that the victim was brutally attacked and murdered, but alleged that he was not the perpetrator, defendant did not stipulate or concede that the elements of the crimes aside from identity were established. In fact, he argues on appeal that the People failed to prove the element of serious physical injury related to two assault counts. As the People were required to prove all elements of each count, these elements were at issue at trial.

Lahtinen, J. Appeal from a judgment of the County Court of Schenectady County (Eidens, J.), rendered November 15, 2004, upon a verdict convicting defendant of the crimes of perjury in the first degree (two counts), criminal solicitation in the fourth degree (two counts), conspiracy in the fifth degree (two counts) and tampering with physical evidence. In May 2002, defendant, in an effort to get an individual to move a parked vehicle, allegedly impersonated a police officer, resulting in charges of criminal impersonation. He then reportedly offered assistance to the person to whom he had impersonated himself if she would recant and, ostensibly motivated in part by her dire economic circumstances, she signed a statement that defendant had prepared for her in which she essentially exonerated him. When his conduct was revealed to the prosecutor’s office, he was additionally charged with tampering with a witness in the fourth degree. Defendant then purportedly recruited others to give false statements and testimony at the trial regarding the criminal impersonation and witness tampering charges. At that trial, one such individual acknowledged on cross-examination that she had lied for defendant in her direct testimony. *936Defendant’s conduct leading up to and during the trial arising from the May 2002 incident resulted in an indictment charging him with bribing a witness (two counts), perjury in the first degree (two counts), criminal solicitation in the fourth degree (two counts), conspiracy in the fifth degree (two counts) and tampering with physical evidence. Following a jury trial he was convicted of all crimes except the two counts of bribing a witness. County Court sentenced him to 27s to 7 years in prison for the first count of perjury, one year for the first count of criminal solicitation, one year for the first count of criminal conspiracy and 17s to 4 years for tampering with physical evidence, all to run concurrent with each other. In addition, he was then sentenced to 27s to 7 years for the second perjury charge, one year for the second criminal solicitation charge and one year for the second conspiracy charge, all to run concurrent with each other, but consecutive with the sentences imposed for the first set of charges. Defendant appeals arguing the conviction was against the weight of the evidence and the sentence was excessive. Finding neither argument persuasive, we affirm. “In reviewing the weight of the evidence, [i]f based on all the credible evidence a different finding would not have been unreasonable, then [we must] . . . weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony” (People v Tirado, 19 AD3d 712, 713 [2005], lv denied 5 NY3d 810 [2005] [internal quotation marks and citations omitted]). Defendant contends that the jury gave too much weight to the testimony of two key prosecution witnesses who had lied in the past. Unlike People v Clayton (17 AD3d 706 [2005]), a case upon which defendant relies, the statements of the witnesses in question were not refuted by compelling proof (see id. at 707). Here, the testimony of those witnesses was supported by other evidence at trial implicating defendant’s role in the charged crimes. The evidence in opposition to the proof presented by the People was essentially limited to defendant’s testimony, which the jury found lacked credibility. We discern no reason to disturb the jury’s credibility determinations (see People v Studstill, 27 AD3d 833, 834 [2006], lv denied 6 NY3d 898 [2006]; People v Walton, 16 AD3d 903, 905 [2005], lv denied 5 NY3d 796 [2005]). We do not find extraordinary circumstances or an abuse of discretion meriting a modification of the sentence imposed by County Court (see People v Cyrus, 18 AD3d 1020, 1022 [2005], lv denied 5 NY3d 827 [2005]). Defendant engaged in repeated conduct aimed at corroding the truth-seeking process, which rests at the core of the justice system. His criminal past reveals *937that this type of conduct was not limited to merely his recent actions. Crew III, J.E, Mugglin, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed.

Crew III, J. Appeal from a judgment of the County Court of Ulster County (Kavanagh, J.), rendered December 20, 2004, upon a verdict convicting defendant of the crimes of sodomy in the first degree, sodomy in the third degree and endangering the welfare of a child. The victim here, a 16-year-old boy, was temporarily living with defendant, having been “kicked out” of his home by his father. On or about July 29, 2003, the victim awoke to find his shorts pulled down to his ankles and defendant performing oral sex on him. As a consequence, defendant was indicted and charged with sodomy in the first degree, sodomy in the third degree and endangering the welfare of a child. Following a jury trial, defendant was convicted as charged and thereafter sentenced to, among other things, 15 years’ imprisonment with a five-year period of postrelease supervision. Defendant now appeals and we affirm. Initially, we note that defendant’s contention that his conviction for sodomy in the first degree is not supported by legally sufficient evidence is not preserved for our review inasmuch as defendant failed to move to dismiss that count of the indictment on that ground (see People v Gray, 86 NY2d 10, 20-21 [1995]). Nevertheless, were we to consider that argument, we would find it without merit. Contrary to defendant’s contention, the People were not required to prove that the victim’s sleep was drug or alcohol induced. The evidence reflects that the victim was asleep and awoke to find defendant sodomizing him, which was sufficient to permit the jury to conclude that the victim was physically helpless at the time of the criminal act (see e.g. People v Beecher, 225 AD2d 943, 945 [1996]; People v Thiessen, 158 AD2d 737, 740 [1990], mod 76 NY2d 816 [1990]). We likewise reject defendant’s contention that the verdict was against the weight of the evidence. This assertion is based upon the purported unreliability of the victim’s testimony, which is *938nothing more than an attack upon the victim’s credibility, a determination wholly within the province of the jury (see People v Ortiz, 16 AD3d 831, 833 [2005], lv denied 4 NY3d 889 [2005]). We have considered defendant’s remaining arguments and find them equally without merit. Mercure, J.E, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

Appeal from a judgment of the County Court of Broome County (Smith, J.), rendered December 21, 2004, convicting defendant upon his plea of guilty of the crime of murder in the second degree. In satisfaction of a five-count indictment, defendant pleaded guilty to murder in the second degree as a result of his brutal killing of a bar owner in Broome County. In accordance with the plea agreement, he executed a written waiver of his right to appeal and was sentenced to 25 years to life in prison.* He now appeals. Defense counsel seeks to be relieved of his assignment of representing defendant on the ground that there are no nonfrivolous issues to be raised on appeal. Based upon our review of the record and defense counsel’s brief, we agree. Defendant entered a knowing, voluntary and intelligent guilty plea and waiver of the right to appeal, which encompassed any challenge to his sentence. Therefore, the judgment must be affirmed and defense counsel’s application for leave to withdraw granted (see People v Cruwys, 113 AD2d 979 [1985], lv denied 67 NY2d 650 [1986]; see generally People v Stokes, 95 NY2d 633 [2001]). Cardona, EJ, Crew III, Peters, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, and application to be relieved of assignment granted. At the time that he was sentenced on the murder conviction, defendant was also sentenced to six years in prison, to be followed by three years of postrelease supervision, for violating the terms of his probation.

Mugglin, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered June 26, 2003, upon a verdict convicting defendant of the crimes of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree. In 1998, defendant was convicted of various violations in the City Court of the City of Amsterdam. He was sentenced to time served and a $90 mandatory surcharge was imposed. When defendant failed to pay the surcharge, City Court issued a bench warrant. Four years later, defendant was apprehended in the City of Schenectady, Schenectady County, and two police officers were dispatched from Amsterdam to transport defendant. Wfhen they picked up defendant, the Schenectady police advised the Amsterdam police that they suspected that defendant was secreting something, probably contraband, in his pants. Defendant was transported to City Court in Amsterdam and, despite the late hour, was immediately arraigned on the bench warrant. City Court set bail at $93, which defendant was unable to post. Prior to being transported to the Montgomery County jail, defendant was strip-searched and a plastic bag containing 30 smaller plastic bags of crack cocaine was found secreted in his underwear. Defendant was ultimately convicted, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fourth degree and he appeals. The first of defendant’s four arguments is that Montgomery County lacked geographical jurisdiction to prosecute these crimes since his criminal conduct occurred in Schenectady County. We find no reason to disturb the jury’s determination that geographic jurisdiction was established beyond a reasonable doubt. The record clearly establishes that conduct occurred within Montgomery County sufficient to establish an element of each crime (see CPL 20.40 [1] [a]). In any event, without having objected to the jurisdiction of the court at trial, defendant will not now be heard to contest this issue (see People v Miller, 27 AD3d 1017, 1018 [2006]; People v Golston, 13 AD3d 887, 889 [2004], lv denied 5 NY3d 789 [2005]). Defendant’s second argument is that the bench warrant was defective because Penal Law § 60.35 (8) provides for the issu*940anee of a summons if defendant fails to pay the surcharge. Defendant, however, overlooks the provisions of the CPL which allow the collection of a mandatory surcharge using the same procedures for the collection of a fine and which authorize the issuance of a warrant directing the production of defendant before the court (see CPL 420.35 [1]; 420.10 [3]). Third, defendant argues that the strip search was conducted in violation of his constitutional rights. In the absence of a reasonable or founded suspicion that a person in custody is concealing weapons or contraband, a person in custody on a misdemeanor or other minor offense has a constitutional right to be free from warrantless strip searches (see People v Kelley, 306 AD2d 699, 700 [2003], lv denied 1 NY3d 598 [2004]; People v Jennings, 297 AD2d 644 [2002]). At the Mapp hearing, one of the Amsterdam police officers testified regarding a policy of conducting strip searches of every arrestee remanded to the local correctional facility. Notwithstanding the unconstitutionality of such a policy (see Weber v Dell, 804d 796, 802 [1986], cert denied sub nom. County of Monroe v Weber, 483 US 1020 [1987]), here, not only were the Amsterdam police advised by the Schenectady police of their suspicion that defendant was secreting something in his pants, the Amsterdam police observed defendant, while in their patrol car, attempting to reach in his pants, causing the officer to conclude that the information from the Schenectady police was accurate and that defendant was attempting to remove something and secrete it in the police car. We conclude that the Amsterdam police properly formed a reasonable suspicion that defendant had contraband on his person and that the strip search was therefore reasonable. Consequently, County Court properly denied defendant’s motion to suppress the physical evidence. Lastly, we are unpersuaded by defendant’s argument that a small break in the chain of custody of the cocaine rendered the evidence inadmissible. Defendant complains of a lack of evidence concerning the custody of the cocaine from 1:16 a.m. when it was taken from defendant to 3:38 a.m. when it was secured in the evidence locker. The police testified, however, that during this period of time, the cocaine was field tested and it was thereafter secured, and a complete chain of custody was testified to thereafter. Under the circumstances of this case, there are reasonable “ ‘assurances of the identity and unchanged condition of the evidence’ ” (People v Beverly, 5 AD3d 862, 864 [2004], lv denied 2 NY3d 796 [2004], quoting People v Haggray, 173 AD2d 962, 964 [1991], lv denied 78 NY2d 966 [1991]) such that the minor gap may be excused. *941Crew III, J.E, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.

Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered August 19, 2005, upon a verdict convicting defendant of the crime of murder in the second degree. Defendant was indicted for murder in the second degree after admitting to stabbing her boyfriend 26 times, causing his death. County Court denied her suppression motion and issued a Sandoval ruling severely limiting the prosecutor’s inquiry into her prior bad acts, and a jury trial ensued. Ultimately, her defense of justification was rejected by the jury, she was convicted as charged, and she now appeals. Initially, we find no merit in defendant’s contention that she was denied a meaningful defense due to the ineffective assistance of her trial counsel. The record indicates that defense counsel changed strategies at the time of trial because that is when the report of the defense’s psychiatric expert was received and it evidently did not support the defense of mental disease or defect. Justification then became counsel’s primary defense, and emotional distress was mentioned in his opening statement only to explain defendant’s mental state at the time of the killing. In his closing statement, knowing that the defense of extreme emotional disturbance would be available even if the elements of murder in the second degree were found to be proven (see Penal Law § 125.25 [1] [a]), counsel urged the justification defense, but also argued that, if the jury rejected it, there was at least extreme emotional disturbance. Thus, we cannot agree that defense counsel asserted mutually exclusive defense theories or otherwise acted unreasonably in presenting both defen*942ses (see People v Cutting, 210 AD2d 791, 792 [1994], lv denied 85 NY2d 971 [1995]). Nor can we agree that counsel’s failure to oppose the People’s objection to the offer of expert testimony regarding battered women’s syndrome constitutes ineffective assistance under the circumstances here (see People v Thomas, 33 AD3d 1053, 1055 [2006]; People v Singh, 16 AD3d 974, 977 [2005], lv denied 5 NY3d 769 [2005]). Given defendant’s admissions, counsel pursued a realistic strategy to convince the jury that she had acted in self-defense, and losing tactics do not constitute ineffective assistance of counsel (see People v Jackson, 25 AD3d 1012, 1015 [2006], lv denied 6 NY3d 849 [2006]). Defendant next contends that County Court erred in permitting the People to inquire as to her illegal use of drugs when she testified as to her claim of battered women’s syndrome and her mental condition. Inasmuch as defendant did not object to this questioning and County Court had no occasion to rule on its propriety, the issue is unpreserved for our review (see People v Carter, 31 AD3d 1056, 1057 [2006], lv denied 7 NY3d 901 [2006]). However, were we to review it, we would find defendant’s contention to be without merit because her testimony opened the door to the inquiry (see People v Fardan, 82 NY2d 638, 646 [1993]; People v Brown, 252 AD2d 598, 600 [1998], lv denied 92 NY2d 923 [1998]; People v Schwerbel, 224 AD2d 830, 831 [1996]). Finally, as to defendant’s claim that the trial transcript is inadequate to review the People’s use of peremptory challenges during jury selection, this issue too is unpreserved for review (see People v Richins, 29 AD3d 1170, 1172 [2006], lv denied 7 NY3d 817 [2006]). In any event, were we to do so, we would find the record to be sufficient for our review and conclude that defendant fails to cite a “ ‘sound factual basis’ ” (People v Pryor, 14 AD3d 723, 725 [2005], lv denied 6 NY3d 779 [2006], quoting People v Childress, 81 NY2d 263, 268[1993]) for her vague allegation that discriminatory use of challenges could have occurred. Accordingly, we find no grounds to disturb defendant’s conviction. Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Rose, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered August 26, 2005, upon a verdict convicting defendant of the crimes of driving while ability impaired by drugs, aggravated unlicensed operation of a motor vehicle in the first degree and petit larceny. Defendant appeals only so much of the verdict following a jury trial as found him guilty of driving while ability impaired by drugs. Viewing the evidence in a neutral light and giving due deference to the jury’s credibility determinations, we are not persuaded by his contention that his conviction is against the weight of the evidence. Although the police officer who administered a horizontal gaze nystagmus test conceded that he had previously reported that defendant tested positive for narcotics, rather than nystagmus, the officer’s credibility concerning this discrepancy was thoroughly explored on cross-examination (see People v Hamm, 29 AD3d 1079, 1080 [2006]). While defendant maintains that his erratic driving was the . result of his attempts to avoid pursuit, rather than due to his consumption of drugs, it does not appear that the jury failed to give the evidence the weight it should have been accorded (see People v Bleakley, 69 NY2d 490, 495 [1987]). Nor do we find merit in defendant’s contention that his statement admitting that he had been smoking crack cocaine should have been suppressed. After defendant was stopped, he exited his car and attempted to walk away. The police officer on the scene immediately placed defendant in custody and made initial roadside inquiries to assess the situation. These questions clearly were “designed to clarify the nature of the situation confronted, rather than to coerce a statement” (People v Huffman, 41 NY2d 29, 34 [1976]; People v Brand, 13 AD3d 820, 822 [2004], lv denied 4 NY3d 851 [2005]; People v Prue, 8 AD3d 894, 897 [2004], lv denied 3 NY3d 680 [2004]). Finally, defendant’s blood sample was withdrawn under the *944supervision of the emergency room physician who authorized it in compliance with Vehicle and Traffic Law § 1194 (4) (a) (1) (ii). Contrary to defendant’s contention, there was no need for the supervising physician to put aside her other duties to observe the phlebotomist perform the procedure (see People v Moser, 70 NY2d 476, 478 [1987]; cf. People v Griesbeck, 17 AD3d 717, 717 [2005]). Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed.

Kane, J. Appeals (1) from an order of the Family Court of Schoharie County (Hummel, J.), entered January 24, 2006, which dismissed petitioner’s application, in proceeding No. 1 pursuant to Family Ct Act article 10, to modify a prior order of visitation, (2) from an order of said court, entered March 31, 2006, which granted petitioner’s application, in proceeding No. 2 pursuant to Social Services Law § 384-b, to adjudicate respondent’s children to be permanently neglected, and terminated respondent’s parental rights, and (3) from an order of said court, entered April 4, 2006, which dismissed petitioner’s application, in proceeding No. 3, pursuant to Family Ct Act article 10, to hold respondent in violation of a prior order of visitation. Family Court previously found that Antonio EE. (hereinafter respondent) abused and neglected his three children (Matter of *945Kila DD., 28 AD3d 805 [2006]). The Schoharie County Department of Social Services (hereinafter petitioner) filed a petition seeking to terminate respondent’s parental rights based on permanent neglect. Respondent filed two petitions alleging that petitioner violated the visitation order and attempting to modify the visitation order. The court found that the children were permanently neglected, terminated respondent’s parental rights and dismissed his modification and violation petitions. Respondent appeals. In a permanent neglect proceeding, the threshold inquiry is whether the agency proved that it made diligent efforts to strengthen and encourage the parent-child relationship (see Matter of Gregory B., 74 NY2d 77, 86 [1989]; Matter of Sheila G, 61 NY2d 368, 386-387 [1984]; Matter of Yvonne N., 6 AD3d 769, 770 [2004], lv denied 3 NY3d 604 [2004]). The next step is determining whether the parent fulfilled his or her duty to both maintain contact with the children and develop a realistic plan for their future; permanent neglect may be found upon a default of either duty (see Social Services Law § 384-b [7]; Matter of Gregory B., supra at 87). As part of its diligent efforts, petitioner arranged for visitation and phone calls between respondent and the two youngest children at the state correctional facility where respondent was incarcerated (cf. Matter of Amanda C., 281 AD2d 714, 716 [2001], lv denied 96 NY2d 714 [2001]). A court order did not permit any contact between respondent and the oldest child. Petitioner also provided respondent information and updates regarding the children’s progress, except for the oldest child who did not want respondent to receive any information about her. Because respondent is incarcerated and not eligible for release until 2022, petitioner had no obligation to work toward reunification of the children with him. Despite petitioner’s efforts to strengthen and encourage the parent-child relationship and assist respondent in developing a realistic plan for the children’s future, respondent failed to cooperate with petitioner on more than one occasion. Respondent engaged in inappropriate conversations with the children in violation of reasonable rules established by petitioner. Respondent inappropriately communicated with the caseworker by sending her intimidating letters and asking her to have a nonprofessional relationship with him. Respondent also refused to sign releases sent to him by petitioner which would have permitted petitioner to disclose information to relatives who could be potential placement resources for the children. Finally, respondent revoked a release which permitted petitioner to *946obtain information from the Department of Correctional Services about respondent’s success in programming which was relevant to facilitating contact with the children. Where, as here, an incarcerated parent fails to cooperate with agency efforts to assist the parent in planning for the children’s future and arranging visits with the children, the agency is not required to demonstrate diligent efforts (see Social Services Law § 384-b [7] [e] [ii]; Matter of Yvonne N., supra at 770). Although respondent kept regular contact with his children through the court-ordered visits, phone calls and letters, the statute requires both contact and planning for their future. He remained obligated to plan for their future despite his incarceration (see Matter of Curtis N., 290 AD2d 755, 757 [2002], lv dismissed 97 NY2d 749 [2002]; Matter of Abdul W., 224 AD2d 875, 876 [1996]). Respondent permanently neglected his children by failing to develop a realistic and feasible plan for them. He maintained during the instant proceedings that he always wanted the children to be reunited with his ex-wife, who was named as a respondent in the permanent neglect matter and who subsequently executed a judicial surrender. In prior proceedings, however, respondent argued that Family Court should not permit her to have visitation with the children. Correspondence from respondent to petitioner also shows that he felt the children should remain in the foster home where they were placed at that time, until they could be reunited with him when he was released from prison as a result of his pending appeal.* His back-up plan, both in his correspondence and at the hearing, was for the children to remain in foster care until his oldest daughter, who was 17 years old at the time of the hearing, turned 18, at which time she could take custody of the two younger children. He had not discussed this plan with his oldest daughter, had not had contact with her in years and was unaware of her willingness or ability to care for her siblings. At one point respondent did provide petitioner with a list of relatives to investigate for possible placement of the children. This list was provided in the correspondence wherein respondent stated that the children should remain in their current foster care placement. Respondent provided conflicting testimony regarding his contact with these relatives and, when requested, he never provided updated contact information for them. Despite his testimony that one relative indicated an intent to check on the children’s circumstances, none of these relatives ever filed a custody petition or contacted petitioner to investigate the children’s well-being or express an interest in caring for them. *947These changing, inconsistent and unworkable goals demonstrate that respondent failed to meaningfully and realistically plan for the future of his children (see Matter of Abdul W., supra at 876). The children’s foster parents agreed to adopt the two younger children, who have been in foster care in excess of six years, and the oldest would not be adopted because she was almost 18 and chose not to consent. Under the circumstances, termination of respondent’s parental rights was in the best interests of the children. Based on the termination of his parental rights, his violation and modification petitions were properly dismissed as moot. Respondent’s remaining contentions have been reviewed and found lacking in merit. Cardona, EJ., Spain, Carpinello and Rose, JJ., concur. Ordered that the orders are affirmed, without costs. This Court recently affirmed respondent’s criminal conviction.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. After an investigation disclosed that petitioner cut another inmate on the side of the face, he was charged in a misbehavior report with assaulting an inmate, engaging in violent conduct and possessing a weapon. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal with a modified penalty. This CPLR article 78 proceeding ensued. We confirm. The misbehavior report, documentary evidence and testimony at the hearing, as well as the confidential information considered by the Hearing Officer in camera, provide substantial evidence supporting the determination of guilt (see Matter of Turner v Goord, 32 AD3d 1119, 1120 [2006], lv denied 8 NY3d 804 [2007]; Matter of Key v Goord, 19 AD3d 849 [2005]). Contrary to petitioner’s claim, the record discloses that the Hearing Officer independently verified the reliability of the information provided by the confidential informants by conducting a personal interview of one of the informants as well as the correction sergeant who interviewed them (see Matter of Camacho v Goord, 18 AD3d 1046, 1047 [2005]; Matter of Berry v Portuondo, 6 AD3d 848, 849 [2004]). The conflicting testimony *948of petitioner and certain inmate witnesses presented a credibility issue for the Hearing Officer to resolve (see Matter of Boyd v Goord, 18 AD3d 1078, 1079 [2005]). Moreover, there is no merit to petitioner’s challenge to the misbehavior report as the information contained therein was sufficiently particular to enable petitioner to prepare a defense (see Matter of Kalwasinski v Goord, 25 AD3d 1050, 1051 [2006]). Petitioner’s remaining contentions are either not preserved for our review or are lacking in merit. Mercure, J.P., Spain, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered February 14, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the director of temporary release programs denying petitioner’s request for participation in the temporary release program. In full satisfaction of a five-count indictment, petitioner pleaded guilty to criminal sale of a controlled substance in the second degree; he was sentenced in 2004 to a prison term of 4/2 years to life. In 2005, petitioner applied for participation in a temporary release program. The application was denied and the denial was upheld on administrative appeal. Petitioner commenced this proceeding seeking to overturn the administrative determination. Supreme Court dismissed the petition prompting the current appeal. We affirm. It is well settled that participation in a temporary release program is a privilege, not a right (see Correction Law § 855 [9]; Matter of Abascal v Maczek, 19 AD3d 913 [2005], lv denied 5 NY3d 713 [2005]). Thus, our review is limited to whether the denial of participation “violated any positive statutory requirement or denied a constitutional right of the inmate and whether [it] is affected by irrationality bordering on impropriety” (Matter of Gonzalez v Wilson, 106 AD2d 386, 386-387 [1984]). Here, petitioner’s application was denied due to the serious nature of the offense—it involved the sale, in excess of $4,600, of cocaine on three occasions to a confidential police informant—and his criminal history. Contrary to petitioner’s *949contentions, these findings were rational and we find no statutory or constitutional violations (see Matter of Caban v New York State Dept. of Correctional Servs., 308 AD2d 661 [2003]). We are also unpersuaded by petitioner’s argument that the denial was improper because his codefendant’s request for temporary release was granted. Other than having been convicted of the same offense, petitioner has failed to show how else the codefendant’s situation was the same as that of petitioner. Thus, petitioner has not shown how he was treated differently from other similarly situated inmates (see Matter of Tatta v Dennison, 26 AD3d 663 [2006], lv denied 6 NY3d 714 [2006]). Petitioner’s remaining contentions have been considered and rejected as either lacking in merit or unpreserved for review. Cardona, EJ., Crew III, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Mugglin, J. Appeals (1) from a judgment of the Supreme Court (Connor, J.), entered October 28, 2005 in Columbia County, which, in proceeding No. 1 pursuant to CPLR article 78 and RPTL article 7, denied respondent Jon C. Surprise’s motion to partially dismiss the petition, (2) from a judgment of said court, entered January 26, 2006 in Columbia County, which, in combined proceeding No. 2 pursuant to CPLR article 78 and action for declaratory judgment, denied certain respondents’ motion to dismiss and/or for summary judgment, and (3) from a judgment of the Supreme Court (Egan, Jr., J.), entered June 26, 2006 in Columbia County, which, in combined proceeding No. 3 pursuant to CPLR article 78 and RPTL article 7 and action for declaratory judgment, inter alia, denied certain respondents’ motion to dismiss and/or for summary judgment. Petitioners in these three proceedings seek various forms of relief arising from their real property assessments. In proceeding No. 1, petitioner, Michael S. Resnick, seeks RPTL article 7 review of his 2004 assessment, CPLR article 78 review of a claimed selective reassessment procedure employed by respondent Town of Canaan and relief pursuant to 42 USC § 1983 for claimed civil rights violations. In proceeding No. 2, 51 petitioners also seek CPLR article 78 review of a claimed selective reassessment procedure in 2004, as well as declaratory relief and relief pursuant to General Municipal Law § 51. The relief sought by the 42 petitioners in proceeding No. 3 includes all of the claims for relief in the first two proceedings and, in addition, alleges that the 2005 assessments on property owned by petitioners in the first two proceedings were increased in retaliation for their having brought those proceedings. Additionally, proceeding Nos. 2 and 3 seek annulment of all assessment rolls back to 1994, claiming that unlawful assessment methods were employed to target certain groups of homeowners while others, including most of the individual respondents and their associates, received preferential treatment. In each of the proceedings, the Town respondents made various motions to dismiss and/or for summary judgment, all of which were denied, prompting these appeals. *951First, the Town respondents argue that the petitions in proceeding Nos. 2 and 3 should be dismissed for failure to join necessary parties. The premise for this argument is that although the Chatham Central School District (hereinafter Chatham CSD), the New Lebanon Central School District (hereinafter New Lebanon CSD) and the County of Columbia were all named as parties in these two proceedings, petitioners failed to properly effect service on them. In analyzing this argument, we first note that, in proceeding No. 2, petitioners seek CPLR article 78 review, while in proceeding No. 3, petitioners’ claims are brought under both CPLR article 78 and RPTL article 7 and the service provisions are not the same. With respect to proceeding No. 3, the record is clear that both school districts and the County were properly served pursuant to RPTL 708 (3). With respect to proceeding No. 2, which alleged only CPLR article 78 relief, all parties submitted to Supreme Court’s jurisdiction. New Lebanon CSD filed a stipulation of discontinuance stipulating it would “abide the outcome of the case against the Town of Canaan.” Chatham CSD filed a notice of appearance admitting service of a copy of the notice of petition and the County moved to intervene in all three cases. Although respondents correctly assert that the identified school districts and the County are necessary parties to the CPLR article 78 proceedings (see Matter of Haddad v City of Hudson, 6 AD3d 1018, 1019 [2004]), on this record, service on these parties was adequate to give Supreme Court jurisdiction over them. Lastly, on this issue, we note that the Town respondents assert that nonjoinder of necessary parties occurred not because these parties were not named as such, but because they were not properly served. This objection belongs to the improperly served party who must raise it in a pleading and who must move for judgment within 60 days of service of the pleading or the objection is waived (see CPLR 3211 [e]). Next, the Town respondents contend that they are entitled to the dismissal of petitioners’ General Municipal Law § 51 claims in proceeding Nos. 2 and 3 both because the petitions fail to state a cause of action (see CPLR 3211 [a] [7]) and on summary judgment principles (see CPLR 3212). Section 51 authorizes the maintenance of an action against town officers and others to, in general, prevent the commission of illegal acts or the commission of waste or injury to the municipal property or funds (see Matter of Schulz v Cobleskill-Richmondville Cent. School Dist. Bd. of Educ., 197 AD2d 247, 251 n 1 [1994]). However, mere failure to observe statutory provisions does not constitute the fraud or illegality necessary to support a taxpayer action under this section, but rather a “taxpayer action . . . lies ‘only when *952the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes’ ” (Mesivta of Forest Hills Inst. v City of New York, 58 NY2d 1014, 1016 [1983], quoting Kaskel v Impellitteri, 306 NY 73, 79 [1953]). Here, in both proceeding Nos. 2 and 3, it is alleged that the Town Board members and members of respondent Board of Assessment Review and respondent Jon C. Surprise, Town Assessor, knew or should have known that both the 2004 and 2005 tentative assessment rolls were illegal, would cause waste or injury to the Town by reason of forfeiture of funds from the state for not maintaining the rolls properly and that current and past Town Board members received more favorable assessments. Liberally construed, these allegations comprise a facially sufficient cause of action under General Municipal Law § 51 and raise issues of fact that must await a trial. Moreover, Supreme Court correctly determined that the individual respondents were not entitled to summary judgment based on the doctrine of qualified immunity. To establish prima facie entitlement to summary judgment on this issue, the Town respondents must produce evidence that the conduct complained of falls within the scope of their official duties and that either the conduct was objectively reasonable, under the circumstances, or that reasonably competent officials could disagree as to whether the conduct was proper (see Doyle v Rondout Val. Cent. School Dist., 3 AD3d 669, 670-671 [2004]; Kravitz v Police Dept. of City of Hudson, 285 AD2d 716, 718 [2001]). As the Town respondents failed to establish their prima facie entitlement to judgment, petitioners were not compelled to come forward with evidence to raise a triable issue of fact. Lastly, with respect to this cause of action, petitioners’ failure to file a bond does not require dismissal as this failure may be cured nunc pro tunc (see Matter of Schulz v De Santis, 218 AD2d 256, 259 [1996]; Matter of Schulz v State of New York, 198 AD2d 554, 556-557 n 1 [1993], lv denied 83 NY2d 756 [1994]). Next, the Town respondents contend that Supreme Court erred in denying their motion to dismiss the causes of action brought pursuant to 42 USC § 1983. Here, petitioners have pleaded that they were victims of selective assessment, that the Town respondents reassessed properties pursuant to both the “welcome stranger” and “welcome improver” policies and that the Town respondents engaged in selective reassessment in retaliation for petitioners’ challenge of former assessments. Supreme Court properly denied the Town respondents’ motions as such allegations state recognized justiciable controversies *953(see 423 S. Salina St. v City of Syracuse, 68 NY2d 474, 484 [1986], appeal dismissed, cert denied 481 US 1008 [1987]; Corvetti v Town of Lake Pleasant, 227 AD2d 821, 823 [1996]). Next, we conclude, as did Supreme Court, that the Town respondents are not entitled to summary judgment dismissing those claims based upon retaliatory, discriminatory and selective reassessment. The competing competent admissible evidence in the record clearly establishes triable issues of fact (see Speller v Sears, Roebuck & Co., 100 NY2d 38, 44 [2003]). Lastly, the Town respondents are correct that petitioners’ claims relating to final assessment rolls prior to 2004 are time barred. When both CPLR article 78 and RPTL article 7 proceedings are brought, the longer four-month statute of limitations found in CPLR article 78 is applicable (see Matter of Dudley v Kerwick, 52 NY2d 542, 548-550 [1981]; Kahal Bnei Emunim & Talmud Torah Bnei Simon Israel v Town of Fallsburg, 78 NY2d 194, 205 [1991]; Matter of Averbach v Board of Assessors of Town of Delhi, 176 AD2d 1151, 1153 [1991]). In addition, the four-month statute applies to the relief requested under General Municipal Law § 51 and for declaratory relief, as the nature of the remedy, rather than the theory of liability, dictates the appropriate statute of limitations (see Clowes v Pulver, 258 AD2d 50, 53 [1999]). Given that the first petition that was commenced was dated October 5, 2004 (proceeding No. 1), the four-month statute of limitations had expired on all challenges to the tax rolls for years 2003 and before and, therefore, all such claims should be dismissed. Nevertheless, petitioners’ claims under 42 USC § 1983 are not time barred. While generally such causes of action are governed by a three-year statute of limitations, one who experiences a continuous series of discriminatory acts may bring a claim for violations that occur outside the limitations period if subsequent identifiable acts of discrimination occur within the period of limitations (see Abbott v Town of Delaware, 238 AD2d 868, 869-870 [1997], lv denied 90 NY2d 805 [1997]; Corvetti v Town of Lake Pleasant, supra at 824). Crew III, J.P, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgments are modified, on the law, without costs, by dismissing those claims that pertain to assessment rolls prior to 2004 under RPTL article 7, CPLR article 78 and General Municipal Law § 51 as time barred, and, as so modified, affirmed.

Carpinello, J. Cross appeals (1) from an order of the Supreme Court (Scarano, Jr., J.), entered February 10, 2005 in Saratoga County, which, inter alia, denied plaintiffs motion for summary judgment, and (2) from a judgment of said court, entered July 13, 2005 in Saratoga County, inter alia, granting plaintiff a divorce, upon a decision of the court. The parties entered into a separation agreement in May 2003. This agreement called for the division of numerous financial accounts, items of personal property and debts. Moreover, pursuant to its terms, and as relevant on appeal, plaintiff was obligated to pay defendant $2,000 per month in spousal support until November 2007 unless a certain “account receivable” became uncollectible. However, in any event, defendant was guaranteed a minimum of $2,000 per month in spousal support until the divorce was executed.1 According to plaintiff, the account receivable became uncollectible as of October 2003. It is undisputed that plaintiff paid defendant as agreed through April 2004, but stopped making payments in May 2004, the month in which he executed the complaint commencing this action for a conversion divorce (the action was actually filed on June 11, 2004). In November 2004, he moved for summary judgment, claiming that he had substantially complied with the separation agreement by living separate and apart for the requisite time period, by dividing all property and debts as ordered and by making the required monthly spousal support payments. Defendant opposed and cross-moved for summary judgment, disputing the claim that the account receivable was totally uncollectible. Supreme Court denied the motions, finding an issue of fact regarding whether the subject account receivable was uncollectible. After trial, Supreme Court found the subject account to be uncollectible and granted plaintiff a conversion divorce. The parties now cross appeal.2 *955We agree with Supreme Court’s finding that plaintiff substantially complied with all terms of the separation agreement until one month before this action was actually commenced (see Domestic Relations Law § 170 [6]) and that his one missed payment was not enough to deny him a conversion divorce (see e.g. Nahl v Nahl, 148 AD2d 898 [1989]; Bock v Bock, 121 AD2d 672 [1986], lv denied 69 NY2d 611 [1987]; Santora v Santora, 89 AD2d 767, 768 [1982]; Berman v Berman, 72 AD2d 425, 428-429 [1980], affd 52 NY2d 723 [1980]; Timmins v Timmins, 50 AD2d 720 [1975], lv denied 38 NY2d 708 [1976]). The issue then narrows to whether Supreme Court should have granted plaintiff this relief on his motion for summary judgment. In denying the motion, Supreme Court found a question of fact concerning whether the account receivable had become uncollectible. This dispute, however, had no bearing on the precise issue of whether plaintiff was entitled to a conversion divorce; rather, it was only relevant to the duration of his spousal support obligation. This being the case, summary judgment should have been granted to plaintiff and a conversion divorce should have been granted at that time. Otherwise stated, while a hearing was necessary on the disputed factual issue of when plaintiffs support obligation would terminate, no hearing was required on the issue of substantial compliance. Next, contrary to defendant’s contentions, the record amply supports the finding that the subject account receivable indeed became uncollectible as of October 2003 such that plaintiff’s obligation to pay spousal support terminated as of the execution of the judgment of divorce. Because a judgment of divorce should have been executed at the time that a decision was rendered on the parties’ respective summary judgment motions, we find that defendant is entitled to spousal support arrears only in the amount of $20,000 (representing the 10 missed payments between May 2004 and February 2005), plus interest. As a final matter, we are unpersuaded by plaintiffs argument that he is entitled to a judgment of divorce nunc pro tunc to the commencement date of the action and defendant’s argument that she is entitled to an award of counsel fees. Cardona, P.J., Mercure, Mugglin and Lahtinen, JJ., concur. Ordered that the cross appeals from the order entered February 10, 2005 are dismissed, without costs. Ordered that the judgment entered July 13, 2005 is modified, on the law, without costs, by granting plaintiffs motion for summary judgment and reducing spousal support arrears in an amount not inconsistent with this Court’s decision; and, as so modified, affirmed. . In particular, the separation agreement states as follows: “Notwithstanding any of the foregoing, [plaintiff] shall guarantee that spousal support payments in the minimum amount of $2,000 per month shall not cease under any circumstances prior to the execution of a Judgment of Divorce” (emphasis added). . Since the right to appeal an intermediate order terminates upon the entry of a final judgment, the cross appeals from the order denying the parties’ motions for summary judgment must be dismissed (see State of New York v Joseph, 29 AD3d 1233, 1234 n [2006], lv denied 7 NY3d 711 [2006]; Warnke v Warner-Lambert Co., 21 AD3d 654, 655 n 2 [2005]). The parties’ cross ap*955peals from the final judgment, however, bring up for review the intermediate order (see CPLR 5501 n [a] [1]; Madden v Dake, 30 AD3d 932, 935 n 2 [2006]).

Crew III, J.E Appeal from an order of the Family Court of Broome County (Pines, J.), entered March 1, 2006, which granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 10, to adjudicate respondent’s child to be neglected. Respondent is the biological mother of Mary MM. (born in 1998). Prior to relocating to Broome County, respondent and the child resided in Illinois, where Mary apparently had been sexually abused by a 13-year-old boy. On June 13, 2005, petitioner received a report alleging that respondent was allowing Mary to be in the presence of a convicted sex offender. Upon arriving at respondent’s residence, petitioner’s caseworker, Sheila Stanbro, found Kenny HH., who recently had been convicted by plea of sexual abuse in the first degree and was awaiting sentencing as a second felony offender, present on the property. According to respondent, Kenny was there only to drop off and store some furniture at her apartment before beginning his prison sentence. Stanbro advised respondent of Kenny’s recent conviction and warned respondent that Kenny could not continue to be around Mary. Although Stanbro initially believed that Kenny vacated the premises, she discovered him there a few days later when she again made an unannounced home visit. Following this visit, respondent executed a voluntary surrender and Mary was placed in petitioner’s custody. Petitioner thereafter commenced this proceeding alleging that Kenny sexually abused Mary and that respondent neglected the child by, among other things, allowing her to be in the presence of known sex offenders. Following a hearing, Family Court dismissed the petition against Kenny but sustained the allegations of neglect as to respondent, finding that she knew that Kenny was a convicted sex offender but nonetheless allowed him to remain in her home. At the conclusion of the ensuing dispositional hearing, Family Court continued Mary’s placement in petitioner’s custody and ordered respondent to participate in various services. This appeal ensued. *957We affirm. The case law makes clear that a child may be adjudicated to be neglected within the meaning of Family Court Act § 1012 (f) (i) when a parent “knew or should have known of circumstances which required action in order to avoid actual or potential impairment of the child” and failed to act accordingly (Matter of Alaina E. [Melinda E.], 33 AD3d 1084, 1086 [2006]; see Matter of Roy R., 6 AD3d 213, 213-214 [2004]). Here, the record reveals that respondent has a history of associating with known sex offenders. Respondent admitted that Mary’s father, Jeremy MM., was a convicted sex offender and that, upon relocating to this state, she dated a man who had been convicted of indecent exposure. Although respondent testified that she was unaware of Kenny’s conviction until Stanbro informed her of such on June 13, 2005, Family Court, which had the opportunity to observe respondent’s demeanor first hand, failed to credit her testimony on this point. In any event, it is undisputed that respondent was well aware of Kenny’s history when, a few days later, Stanbro again discovered Kenny at respondent’s residence. To the extent that respondent makes much of the fact that Mary was not present during Stanbro’s subsequent unannounced visit, we need note only that the record supports a finding that, despite respondent’s protestations to the contrary, Kenny indeed was residing with respondent and Mary. In our view, respondent’s decision to again allow her child to be in the presence of a known sex offender and her failure to undertake appropriate measures to protect her child from such a predator is more than sufficient to sustain the underlying finding of neglect. As a final matter, assuming that the propriety of Family Court’s disposition is properly before us,* we perceive no abuse of discretion in Family Court’s decision to continue Mary’s placement in petitioner’s custody. Respondent has used what Family Court charitably termed “extremely poor judgment” in associating with known sex offenders and, until such time as she and her child receive the necessary counseling and services, Mary’s best interest is served by remaining in petitioner’s custody. Respondent’s remaining contentions, to the extent not specifically addressed, have been examined and found to be lacking in merit. Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs. It appears that a subsequent dispositional order, from which no appeal has been taken, was entered in August 2006.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 28, 2006 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Following his conviction of multiple counts of burglary in the second degree in Herkimer and Oneida Counties, petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus. He based his application upon claims that his waiver of indictment and guilty pleas were involuntary and that the case was improperly prosecuted by the procedure set forth in CPL 195.10. Supreme Court summarily denied the application without a hearing and this appeal ensued. We agree with Supreme Court that petitioner’s claims could have been raised in a direct appeal or in his unsuccessful CPL article 440 motions to vacate the conviction. Thus, habeas corpus relief is unavailable (see People ex rel. Johnson v McGinnis, 28 AD3d 896, 897 [2006], lv denied 7 NY3d 705 [2006]; People ex rel. Hunter v Buffardi, 15 AD3d 736, 737 [2005]). In any event, even if his claims were meritorious, they would not entitle him to immediate release from prison (see People ex rel. Bonez v West, 22 AD3d 992, 993 [2005], lv denied 6 NY3d 704 [2006]). Therefore, Supreme Court properly denied the application. Mercure, J.R, Peters, Carpinello, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner challenges a determination finding him guilty of attempting to smuggle drugs and violating facility visiting procedures. We confirm. The misbehavior report and related documentation, along with the testimony of the investigating correction officer, the correction officer who found the contraband and the correction officer who tested the contraband, provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]). Petitioner’s challenge to the chain of custody of the contraband, *959which was established by both documentation and testimony, has no merit (see Matter of Perez v Goord, 301 AD2d 996, 997 [2003]). Petitioner’s procedural objections also are unpersuasive. The Hearing Officer remedied any alleged defect in the prehearing assistance by ensuring that petitioner received all the documentation which he requested, and petitioner has failed to demonstrate that any inadequacy prejudiced his defense (see Matter of Salaam v Goord, 8 AD3d 776, 777 [2004]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). Additionally, the record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any bias on the part of the Hearing Officer (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]). Petitioner’s remaining contentions, to the extent preserved, have been reviewed and determined to be without merit. Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Peters, J. Appeal from an order of the Supreme Court (Teresi, J.), entered June 6, 2006 in Albany County, which ordered disclosure of certain records kept by defendant Albany County Department of Social Services. In February 2004, plaintiff received a telephone call from a local hospital indicating that defendant John TT., then 17 years old, needed a place to stay that evening.1 Concerned about the placement of John with her daughter, Lacey D., then 12 years old, plaintiff was assured by both hospital employees through *960representations from defendant Albany County Department of Social Services (hereinafter DSS), and later by DSS itself, that John’s placement would be of no threat to her daughter. On the following day, in plaintiffs home, John had sexual intercourse with Lacey. Plaintiff commenced this action, individually and on behalf of Lacey, against John, DSS and Albany County, asserting numerous causes of action, which included the claim of gross negligence against DSS and the County based upon their knowledge and/or notice of John’s history of sexual misconduct. During the disclosure process, DSS refused plaintiffs request to release its records pertaining to John, asserting confidentiality pursuant to Social Services Law §§ 372 and 422, but it did submit the requested records to Supreme Court for an in camera review. Supreme Court, without holding a hearing, entered an order disclosing certain documents. Both DSS and the County appeal.2 By the clear and unambiguous terms of Social Services Law § 422, reports of child abuse and maltreatment (see Social Services Law § 422 [1]), “as well as any other information obtained” as a result of such report, “shall be confidential” (Social Services Law § 422 [4] [A]) and made available to only the specifically enumerated individuals, agencies or facilities detailed therein (see Social Services Law § 422 [4] [A] [a]-[y]). Included within that list is “a court, upon a finding that the information in the record is necessary for the determination of an issue before the court” (Social Services Law § 422 [4] [A] [e]). Narrowly interpreted to allow the court to have access to such records “for its own use” to decide a particular issue, “[n]othing in [the] statute permits a court to expand the carefully crafted statutory and exclusive list of those to whom access is authorized” (Matter of Sarah FF., 18 AD3d 1072, 1074 [2005]; see Social Services Law § 422 [4] [A] [a]-[y]). The DSS records at issue contain a report of abuse of John and investigative information related to that abuse. Supreme Court failed to make a clear determination of necessity as to this material as required by the statute (see Social Services Law § 422 [4] [A] [a]-[e]). Thus, the release of these records was in error. Social Services Law § 372, on the other hand, protects the confidentiality of all of DSS’s records. While this protection “is not always sacrosanct, and upon the basis of a proper showing . . . may be released upon court order after an in camera inspection” (People v McFadden, 178 Misc 2d 343, 345 [1998], affd *961283 AD2d 1030 [2001]), the statutory confidentiality accorded to these records will be safeguarded until after a hearing is held by Supreme Court with “all interested persons” (Social Services Law § 372 [4] [a]). While the “parameters of the term ‘all interested persons’ has not been ‘definitively defined’ ” (Matter of Michelle HH., 18 AD3d 1075, 1076 [2005], quoting Quillen v State of New York, 191 AD2d 31, 33 [1993]), we have stated that notice will be required “to . . . individuals, if they have attained majority” (Quillen v State of New York, supra at 33). With John having attained majority at the time of the request, but having defaulted in this action, we decline to use the shield of CPLR 3105 as a sword to find a waiver of his rights under Social Services Law § 372 (4) (a); a finding of waiver must be “predicated on intent” (Matter of Carla L., 45 AD2d 375, 381 [1974]). Consequently, John should have been given notice of the application for disclosure of his DSS records. For all of these reasons, we reverse and remit this matter to Supreme Court. Crew III, J.P., Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision. . John’s hospital stay was precipitated by an altercation with his uncle who had sole custody of him. . By order dated July 24, 2006, this Court granted a stay pending the appeal.

Cardona, PJ. Appeal from a decision of the Unemployment Insurance Appeal Board, filed November 28, 2005, which ruled that claimant was entitled to receive unemployment insurance benefits. On November 9, 2004, claimant, a State Trooper, was involved in a one-vehicle accident while off duty, prior to which he had been drinking alcohol. His alcohol consumption, combined with the uncooperative behavior he exhibited toward local police officers investigating the incident, was deemed “completely inappropriate and violat[ive of] State Police Regulations,” which prohibit conduct “tending to bring discredit upon the Division [of New York State Police]” (see New York State Police Administrative Manual, regulation 8A8). Consequently, claimant, who accepted his penalty without protest, was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period between *962February 1, 2005 and August 1, 2005. Nonetheless, on May 26, 2005, again while off duty, claimant was involved in a two-car accident after admittedly consuming alcohol. Claimant refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, claimant’s employment was terminated. He was later acquitted of the driving under the influence charge. Claimant’s subsequent application for unemployment insurance benefits was initially denied on the basis that his discharge for misconduct precluded his eligibility for such benefits. That determination was overturned by an Administrative Law Judge who ruled, primarily due to claimant’s acquittal of the driving under the influence charge, that his behavior had not risen to the level of disqualifying misconduct. The Unemployment Insurance Appeal Board affirmed that decision, prompting this appeal by the employer. The determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve, however, there must be substantial evidence in the record to support the Board’s decision. Based upon our review of this record, we do not find substantial evidence supporting the Board’s determination that claimant’s discharge was not a result of disqualifying misconduct. Specifically, while it is true that a finding of misconduct cannot be premised upon an arrest alone (see e.g. Matter of Weigand [Nassau County Civil Serv. Commn.—Commissioner of Labor], 259 AD2d 824 [1999]; Matter of Benjamin [Hartnett], 175 AD2d 936 [1991]), “[a]n employee’s willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved . . . constitute^] misconduct” (Matter of Ladner [City of New York—Commissioner of Labor], 254 AD2d 563, 564 [1998]). Such behavior is particularly egregious where, as here, “the claimant has already been placed on probationary status for similar conduct” (Matter of Blake [Commissioner of Labor], 2 AD3d 1035, 1036 [2003]). Here, the employer indicated at the hearing that claimant’s conduct in, among other things, getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal. Indeed, claimant himself, who could not recall the precise quantity of alcohol he had consumed on the evening he was arrested, admitted that “[he did] know that as a Trooper that [one] should not drink and drive.” Under these particular circumstances, the Board’s conclusion that claimant’s *963actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record. Mercure, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent with this Court’s decision.

Appeal from a judgment of the Supreme Court (Stein, J.), entered June 9, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release. Petitioner is serving a prison sentence of 8V3 to 25 years for his 1994 conviction of manslaughter in the first degree. Petitioner made his third appearance before the Board of Parole in July 2005 and his request for parole release was denied. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding, seeking to overturn the Board’s determination. Supreme Court dismissed the petition and this appeal ensued. We affirm. Parole determinations are not subject to further judicial review if they are made in accordance with the statutory requirements of Executive Law § 259-i (see Matter of Salahuddin v Travis, 17 AD3d 760 [2005], lv denied 5 NY3d 707 [2005]; Matter of Wright v Travis, 284 AD2d 544 [2001]). Here, the record demonstrates that the Board considered the relevant statutory factors in denying petitioner’s request for parole release (see Executive Law § 259-i [2] [c] [A]), including his good conduct, participation in prison programs, his institutional achievements and his plans upon release. The Board is not required to discuss or to give the same weight to each factor (see Matter of Rivera v Dennison, 25 AD3d 856, 857 [2006]; Matter of Trobiano v State of N.Y. Div. of Parole, 285 AD2d 812, 813 [2001], lv denied 97 NY2d 607 [2001]) or to grant parole as a reward for positive rehabilitative efforts (see Matter of Vasquez v State of N.Y. Exec. Dept., Div. of Parole, 20 AD3d 668, 669 [2005]). The Board’s emphasis on the violent nature of petitioner’s crime does not establish that the determination was affected by “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]; *964see Matter of Rodney v Dennison, 24 AD3d 1152, 1153 [2005]). Accordingly, we find no basis to disturb the determination. Cardona, EJ., Mercure, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules. Petitioner challenges a tier III determination finding him guilty of violating the prison disciplinary rules prohibiting assault on an inmate and possession of a weapon. Upon review of the record, we conclude that the misbehavior report, the testimony of the investigating correction officer and the confidential testimony provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]). Furthermore, petitioner’s procedural objections are unpersuasive. A review of the misbehavior report reveals that it discloses the relevant details with enough particularity to enable petitioner to prepare a defense (see Matter of Quintana v Selsky, 268 AD2d 624, 625 [2000]). Petitioner received meaningful assistance. The hearing was adjourned in order for petitioner to receive further assistance to address the claimed deficiencies. As a result, petitioner was provided with all the documentation that he requested. Thus, the Hearing Officer remedied any defect in the prehearing assistance and petitioner has failed to demonstrate that any inadequacy prejudiced his defense (see Matter of Salaam v Goord, 8 AD3d 776, 777 [2004]; Matter of Blackwell v Goord, 5 AD3d 883, 885 [2004], lv denied 2 NY3d 708 [2004]). Additionally, the record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any bias on the part of the Hearing Officer (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]). The Hearing Officer appropriately addressed each of petitioner’s requests and complaints. Notably, at the end of the hearing, petitioner was afforded the opportunity to call a witness despite earlier having indicated that he did not wish to call witnesses. Finally, given the serious nature of the offenses, we *965do not find that the penalty imposed was so shocking to one’s sense of fairness as to be excessive (see Matter of Long v Goord, 32 AD3d 1121, 1122 [2006]). Petitioner’s remaining contentions, to the extent preserved, have been reviewed and determined to be without merit. Cardona, PJ., Crew III, Mugglin, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Rose, J. Appeal from an order of the County Court of Tompkins County (Sherman, J.), entered May 3, 2006, which, inter alia, in a proceeding pursuant to RPAPL article 7, partially granted petitioner’s motion for summary judgment. After successfully prosecuting a mortgage foreclosure action against respondents and purchasing the subject property at the foreclosure sale, petitioner commenced this proceeding to obtain possession of the property pursuant to RPAPL 713 (5). Ultimately, Town Court denied petitioner’s summary judgment motion and effectively dismissed the proceeding, concluding that respondents’ alleged tender of a promissory note to petitioner shortly before the foreclosure sale constituted payment in full satisfaction of the judgment. Upon petitioner’s appeal, County Court reversed Town Court’s ruling and granted possession to petitioner. Because we agree with petitioner that respondents’ arguments on their appeal of County Court’s decision are completely without merit (see 22 NYCRR 130-1.1 [c] [1]) and serve no purpose other than to further delay the resolution of this litigation (see 22 NYCRR 130-1.1 [c] [2]), we find them to be frivolous and affirm County Court’s order. Respondents’ contention that the promissory note constituted payment of the mortgage debt disregards the well-settled rule that a mere promise to pay, absent an express agreement to the contrary, does not discharge a preexisting debt (see Federal Natl. Mtge. Assn. v McAuliffe, 226 AD2d 497, 498 [1996]; Home & City Sav. Bank v Sperrazza, 204 AD2d 836, 836-837 [1994]; Bank of New York v Cerasaro, 98 AD2d 902, 903 [1983]; Skaneateles Sav. Bank v Herold, 50 AD2d 85, 88-89 [1975], affd 40 NY2d 999 [1976]). Respondents do not argue any agreement to the contrary. The only authority that they cite in support of their claim is an unsigned copy of an affidavit apparently taken *966from the record, of an unrelated judicial proceeding in Michigan. It purports to be by an expert who merely opines that since the United States went off the gold standard in 1933, instruments of credit have played the role of money under certain circumstances not relevant here. Equally frivolous are respondents’ contentions that petitioner failed to establish its ownership of the property following the foreclosure sale and that petitioner is merely a sham or a front for a mortgage servicing agent. Petitioner established its ownership by submitting a copy of the referee’s deed (see CPLR 8021 [e]; 4540 [b]). Also, in the absence of any showing by respondents that the mortgage servicing agent has some interest in the property, its relationship with petitioner is wholly irrelevant. Perhaps the best evidence of respondents’ purpose to delay and prolong this litigation is a UCC-1 financing statement which respondent Robert S. Myers filed after entry of the foreclosure judgment. The statement inexplicably names Myers as both the debtor and the secured party, thereby casting considerable doubt on its effectiveness. Moreover, it cannot constitute a lien upon the real property which would preclude petitioner’s possession because such statements create a security interest in personal property only and do not affect “the creation or transfer of an interest in or lien on real property” (UCC 9-109 [d] [11]; see e.g. Badillo v Tower Ins. Co. of N.Y., 92 NY2d 790, 794 [1999]; In re Nittolo Land Dev. Assn., Inc., 333 BR 237, 240 [SD NY 2005]). Finally, even if the financing statement were effective to perfect a security interest, it would affect only the priority of that interest over subsequent or unsecured creditors (see e.g. UCC 9-317, 9-322; Matter of Chase Manhattan Bank [N.A.] v State of New York, 48 AD2d 11, 13-14 [1975], affd 40 NY2d 590 [1976]), and petitioner is neither. The reiteration of these frivolous arguments, despite County Court’s sound determination of the issues, warrants an award of costs as an appropriate remedy to be imposed against respondents and their counsel in the amount of reasonable counsel fees incurred in responding to this appeal (see Hansen v Werther, 2 AD3d 923, 924 [2003]; Skolnick v Goldberg, 297 AD2d 18, 21 [2002]). Accordingly, this matter is remitted to County Court for a determination of the amount of such fees (see Yenom Corp. v 155 Wooster St. Inc., 33 AD3d 67, 75 [2006]). Crew III, J.E, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, with costs, petitioner’s application for counsel fees is granted, and matter remitted to the County Court of Tompkins County for a determination of the amount of reasonable counsel fees not inconsistent with this Court’s decision.

Application, pursuant to article 78 of the Civil Practice Act, to prohibit a County Judge from proceeding with a jury trial in the County Court, Nassau County, of an indictment charging petitioner with the carnal abuse of a child and related crimes, after *623the County Judge’s refusal to accept petitioner’s tender of his written waiver of trial by jury. Petitioner contends that he has an absolute right to waive trial by jury; and that, even if the County Judge has discretionary power to reject the waiver, the exercise of such power in the circumstances here would constitute an abuse of discretion and would seriously prejudice petitioner’s right to a fair trial because of the nature of the charges and because there already has been adverse publicity. Application denied and petition dismissed. In our opinion, the remedy of prohibition is not available to petitioner. Prohibition should not issue except in cases of extraordinary circumstances or extreme necessity, and when there is no other adequate remedy (Matter of Consolidated Edison Co. v. Murtagh, 201 Misc. 244, affd. 279 App. Div. 865). The protection of petitioner’s rights, on appeal, in the event of a judgment of conviction, is an adequate remedy (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Brandenburg v. Court of General Sessions, 189 Misc. 4, affd.. 272 App. Div. 1013). Presently, we do not reach the question as to whether there is an absolute right to waiver of trial by jury in a criminal case; or whether, absent such absolute right, the County Judge’s rejection of the waiver is an abuse of discretion. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.

Cardona, EJ. Appeal from an order of the Supreme Court (Coccoma, J.), entered March 17, 2006 in Delaware County, which denied defendant’s motion for summary judgment dismissing the complaint. Flaintiff was the owner of Chapel Bank Farm, a dairy farm located in the Village of Hobart, Delaware County, which included a two-story milk house and adjoining barn. As relevant herein, the milk house contained a motorized milking and pump system. Early in the morning of May 24, 2004, plaintiff discovered that the milking system was not operational and requested a service call from defendant, a repair service with expertise in milking systems whose services plaintiff had utilized for several years. Defendant’s employee, Ronald Kane, arrived shortly thereafter. Kane, who was not a licensed electrician, performed certain repairs on the system, including replacing an allegedly damaged breaker. The milk pump briefly began working, however, a fire broke out in the milk house soon thereafter. Although the cows were safely evacuated, the fire ultimately spread causing extensive damage throughout the barn. In October 2004, plaintiff commenced this action against defendant, alleging that defendant was negligent in, among other things, failing to properly inspect and repair the milking system and said negligence was a proximate cause of the fire. Following the completion of discovery, including the submission of competing expert affidavits, defendant moved for summary judgment dismissing the complaint. Supreme Court denied that motion, prompting this appeal. Initially, we are unpersuaded by defendant’s contention that the action should be dismissed because, as a matter of law, there was no breach of defendant’s limited duty of care owed as a result of its status as a repair service. While it is true that “an independent repairer/contractor has no duty to install safety devices or to inspect or warn of any purported defects” (Kleinberg *968v City of New York, 27 AD3d 317, 317 [2006]), here, plaintiff alleges, among other things, that Kane failed to ascertain why the milk pumps were not working properly on the morning of the fire and, thereafter, negligently rewired the circuit breaker and “jerry-rig[ged]” the system using an improper breaker as a “temporary fix to get things going.” Given the numerous allegations of “defect[s] in defendant’s work” (Sorrento v Rice Barton Corp., 17 AD3d 1005, 1006, 1006 [2005]), we cannot agree that the record establishes, as a matter of law, that plaintiff’s contentions fall outside defendant’s duty of care. Defendant further maintains that it is entitled to summary judgment because the record lacks proof that, even if Kane did perform certain actions improperly, the alleged negligence was not a proximate cause of the fire. We do not come to the same conclusion. Here, the record shows a conflict among the competing expert affidavits regarding the origin of the fire and how Kane’s repair activities could be related. According to defendant’s expert, Gary Hauf, the fire began due to an internal motor malfunction of the milking system and, therefore, Kane’s actions were unrelated. On the other hand, plaintiff’s expert, Thomas Conlon, asserts, among other things, that the fire began due to electrical overheating in the wiring between the circuit breaker box and the milking system caused by imprudent and incorrect alterations to the wiring and circuit breaker box by Kane, which overly stressed the wiring resulting in overheating and eventual ignition. Viewing the evidence, including Conlon’s opinion, as well as statements prepared by plaintiffs insurance investigator and the Delaware County Department of Emergency Services, in the light most favorable to plaintiff, as the nonmoving party (see DeCicco v Longendyke, 37 AD3d 934, 936 [2007]), we will not disturb Supreme Court’s denial of defendant’s motion for summary judgment. We have examined defendant’s remaining arguments and find them to be unavailing. Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed, with costs.

Carpinello, J. Appeal from a decision of the Workers’ Compensation Board, filed October 17, 2005, which ruled, inter alia, that claimant’s tax returns were sufficient credible evidence of his average weekly wage. In 1994, while working as a sanitation worker, claimant suffered compensable injuries and was subsequently classified as permanently partially disabled. His average weekly wage was established at $1,150 and the employer’s workers’ compensation carrier, the State Insurance Fund (hereinafter SIF), was directed to pay him a reduced earnings award of $400 per week. In 2002, however, SIF discovered that claimant was the principal of a successful corporation and sought a determination as to whether claimant’s postinjury income, inclusive of a portion of the corporation’s profits, precluded his further receipt of reduced earnings benefits. After hearings, a Workers’ Compensation Law Judge concluded that claimant’s $500 weekly salary from the corporation was not the result of an “arm’s length” negotiation and, therefore, it was not an appropriate figure to use in establishing wage earning capacity. As a result, the Workers’ Compensation Law Judge found that claimant was entitled to a reduced earnings award of $345 per week. Upon review, the determination was modified by the Workers’ Compensation Board, which held that claimant’s average weekly wage could be determined on the basis of his W-2 statements and personal tax returns. On this appeal, SIF asserts that claimant is ineligible for reduced earnings benefits because his actual earnings should include his weekly salary plus a portion of the corporation’s profits prior to deductions for certain expenses.* We affirm. “Pursuant to Workers’ Compensation Law § 15 (5-a), the wage earning capacity in a case of partial disability shall be determined by a claimant’s actual earnings, and [t]he established rule is that profits from a business venture are not earnings for the purposes of subdivision 5-a of section 15’ ” (Matter of Fisher v Combined Life Ins., 272 AD2d 823, 823 [2000], quoting Matter of Roberge v United Bd. & Carton Corp., 21 AD2d 713, 713 [1964]). Further, whether an individual’s income is based on profits or a salary for services performed is a factual determination for the Board (see Matter of Joyce v *970European Auto Serv., 226 AD2d 952, 952-953 [1996]). Here, in addition to acknowledging that claimant kept the corporation’s profit separate from his wage income, the Board specifically addressed the lack of record evidence to suggest that this income was less than the value of the services that claimant performed for the corporation. Moreover, an accountant testifying on behalf of SIF admitted that all of claimant’s deductions were taken in conformity with Internal Revenue Service and New York State tax regulations and that, by straightforward accounting principles, claimant’s earnings were approximately $500 per week. Thus, the Board’s determination is supported by substantial evidence and we decline to disturb it (cf. Matter of Baldwin v Ben Funk, Inc., 32 AD3d 639, 640 [2006]). Cardona, P.J., Mercure, Mugglin and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs. The only medical evidence in the record is a report by an orthopedic surgeon who examined claimant in 2005 and opined that there was “no ongoing evidence of orthopedic disability.” However, claimant’s disability status is not contested by SIF on this appeal.

Kane, J. Appeal from a decision of the Workers’ Compensation Board, filed October 27, 2005, which, inter alia, ruled that the employee’s workers’ compensation carrier was entitled to an offset of workers’ compensation benefits against the net recovery of claimant’s third-party action. On October 28, 1999, claimant was involved in a work-related motor vehicle accident wherein he sustained injuries to his neck, back, left shoulder and left arm. As a result, he filed a claim for workers’ compensation benefits and also commenced a third-party personal injury action. Claimant eventually underwent left shoulder surgery on September 29, 2003 and was out of work from that date through December 5, 2003. A Workers’ Compensation Law Judge (hereinafter WCLJ) subsequently determined in March 2005 that claimant had a 20% schedule loss of use of the left arm, entitling him to 62.4 weeks of benefits. Accordingly, the WCLJ awarded claimant benefits at the rate of $400 per week for a permanent partial disability from October 28, 1999 to .October 25, 2000 (51.8 weeks) and for a temporary total disability from September 23, 2003 to December 5, 2003 (10.6 weeks), the latter period representing claimant’s only actual lost time from work. The WCLJ held that, while claimant’s temporary total disability *971award could not be considered payment in lieu of first party benefits, the permanent partial disability award did constitute payments in lieu of first party benefits and was therefore not subject to the workers’ compensation carrier’s offset rights under Workers’ Compensation Law § 29. The Workers’ Compensation Board modified the decision by determining that claimant’s permanent partial disability award did not constitute payment in lieu of first party benefits, so the carrier had a right to offset the entire schedule loss of use award under Workers’ Compensation Law § 29. Claimant appeals. While a carrier is generally entitled to a lien against personal injury judgments or settlements paid to a claimant, the carrier “shall not have a lien on the proceeds of any recovery received pursuant to [Insurance Law § 5104 (a)] ... for compensation and/or medical benefits paid which were in lieu of first party benefits which another insurer would have otherwise been obligated to pay under [Insurance Law article 51]” (Workers’ Compensation Law § 29 [1-a]). “First party benefits” are defined as “payments to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle” (Insurance Law § 5102 [b]). “Basic economic loss” is limited to $50,000 covering various items, including lost wages from the first three years following the accident (see Insurance Law § 5102 [a]). The Court of Appeals has held that awards for permanent partial disability which include schedule loss of use awards fall within the definition of basic economic loss and may therefore be deemed compensation in lieu of first party benefits, regardless of whether the award represents payments for lost earnings which are actual or presumed (see Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19 [1994]; Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 254 [1990]; Matter of Fox v Crosbie-Brownlie, Inc., 284 AD2d 42, 44 [2001]). As they are in lieu of first party benefits, the carrier does not have a lien for amounts paid as part of such schedule loss of use awards unless it has paid more than $50,000 or for lost wages covering a period more than three years from the date of the accident. The weekly rate and number of weeks in the schedule are merely the measure by which an award is calculated; although a decision by a WCLJ or the Board lists the award as covering certain dates, liability for a schedule award arises as of the date of the accident and “payment of the schedule award is not allocable to any particular period of disability” (Matter of Briggs v Village of Hamilton, 136 AD2d 442, 444 [1988]; see Matter of Miller v North Syracuse *972Cent. School Dist., 1 AD3d 691, 692 [2003]). As the schedule loss of use award did not encompass any specific time period, the 51.8 weeks of payments provided less than wages for a three-year period and it does not appear that the carrier paid claimant more than $50,000, the portion of the schedule award pertaining to claimant’s permanent partial disability constituted payment in lieu of first party benefits. Accordingly, the carrier had no lien on that portion of the schedule loss of use award. Cardona, P.J., Peters, Spain and Carpinello, JJ., concur. Ordered that the decision is reversed, without costs, and matter remitted to the Workers’ Compensation Board for recalculation of the workers’ compensation carrier’s lien.

Kane, J. Appeal from a judgment of the Supreme Court (Demarest, J.), entered March 31, 2006 in Franklin County, which, inter alia, declared that the discharge planning requirements of Mental Hygiene Law § 29.15 are applicable to all residents released from facilities operated by the Office of Mental Retardation and Developmental Disabilities regardless of the method of release. Plaintiff commenced this action seeking, among other things, a declaration that Mental Hygiene Law § 29.15 requires the Office of Mental Retardation and Developmental Disabilities (hereinafter OMRDD) to create a written service plan for patients who are discharged from a facility by court order. Supreme Court issued a judgment declaring that the discharge planning requirements of Mental Hygiene Law § 29.15 (f) apply to all patients released from facilities operated or licensed by OMRDD, regardless of the method of release. On defendants’ appeal, we affirm. Patients may be released or discharged from OMRDD facilities in several ways. The facility director can discharge or conditionally release the patient based on the opinion of facility staff that inpatient care is not needed (see Mental Hygiene Law § 29.15 [a], [b]). When a patient is conditionally released, the facility retains the ability to return the patient to inpatient care under certain conditions (see Mental Hygiene Law § 1.03 [30]). *973A discharge, however, terminates the facility’s “right to retain or treat the patient on an in-patient basis” (Mental Hygiene Law § 1.03 [31]). If the facility director determines that a patient needs inpatient treatment, the patient may challenge that determination (see Mental Hygiene Law § 15.33 [a]). Upon a decision or verdict that the patient is not mentally retarded or not in need of retention, the court “shall forthwith discharge” the patient (Mental Hygiene Law § 15.35 [emphasis added]). Statutory interpretation begins with an analysis of the statute’s language, which will control if the terms are clear and unambiguous (see Matter of Orens v Novello, 99 NY2d 180, 185 [2002]). Under Mental Hygiene Law § 29.15, “[t]he discharge or conditional release of all clients at developmental centers [or] patients at psychiatric centers . . . shall be in accordance with a written service plan prepared by staff familiar with the case history of the client or patient to be discharged or conditionally released” (Mental Hygiene Law § 29.15 [f] [emphasis added]). Contrary to defendants’ argument, the provision addressing conditional release or discharge by a facility director (see Mental Hygiene Law § 29.15 [a]) does not carry over into every other statutory subdivision to limit the entire statute to releases by directors. The plain language of Mental Hygiene Law § 29.15 (f) requires OMRDD to provide discharge planning to all patients, without specifying or exempting any patients based on the method of their release or discharge. Hence, Supreme Court correctly issued a declaration that the discharge planning requirements of Mental Hygiene Law § 29.15 (f) apply to all patients released from facilities operated or licensed by OMRDD, including those discharged by court order. Crew III, J.P., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

Spain, J. Appeal from a judgment of the Supreme Court (McCarthy, J.), entered October 18, 2005 in Rensselaer County, upon a verdict rendered in favor of plaintiff. Defendant owns and operates auto salvage businesses under the names of Impact Auto and S & S Auto Sales out of a junkyard site located in the Town of Nassau, Rensselaer County. His son, Steven Nalley, worked with defendant, assuming a managerial role when defendant was not present. In August 2002, Nalley agreed to provide plaintiff and his friend Justin Earnhardt with a car from his father’s junkyard for use in a demolition event to be held at the Lebanon Valley Speedway on August 26, 2002. On the afternoon of the day of the event, plaintiff, Earnhardt and Earnhardt’s girlfriend were preparing the vehicle, which was parked in a space alongside the main internal road in the junkyard. Plaintiff was removing the glass from the windows and other salvageable parts while Earnhardt used spray paint to decorate the exterior of the vehicle. Nalley was working that afternoon, moving cars with a front-end loader—a machine equipped with 12-foot forks which can be used to lift and move vehicles—and he stopped the loader to talk to plaintiff and Earnhardt. According to plaintiff—whose testimony was essentially uncontroverted—they agreed that plaintiff would drive the car up to the shop so that Nalley could remove the windshield. While Earnhardt and his girlfriend began to walk back toward the shop, plaintiff got inside the vehicle and waited to pull out until after Nalley had passed by with the loader. Nalley, however, instead picked up the car with the loader—with plaintiff inside—and moved it a short distance before the car suddenly dropped back to the ground. Plaintiff felt a severe pain in his lower back. He exited the vehicle and lay on the ground for awhile before eventually driving himself home. He later went to the emergency room where it was discovered that he had fractured his back at the L-l vertebra. As a result, plaintiff wore a brace for approximately six weeks and attended physical therapy for another eight weeks. By the time of trial, the fracture of plaintiffs vertebra had healed but the front portion of the vertebra remained permanently compressed 38%. *975Plaintiff commenced, this action, alleging that defendant is vicariously liable for the injuries sustained by plaintiff as a result of Nalley’s negligence. A jury returned a verdict in plaintiffs favor and awarded $75,000 for past pain and suffering, $1,656 for lost wages and $750,000 for future pain and suffering. Defendant appeals. Defendant contends that the jury verdict finding him vicariously liable should be set aside as against the weight of the credible evidence because the evidence does not support a finding that Nalley’s actions were within the scope of his employment or in furtherance of defendant’s business (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). It was undisputed, however, that Nalley routinely used the loader to pick up junked cars as part of his employment and was so engaged on the day of the accident. Although it may be difficult to imagine how plaintiffs version of events, i.e., Nalley’s act of picking up an occupied vehicle which was parked in a space off the side of the roadway, could have been within the scope of Nalley’s employment or in furtherance of defendant’s business, it was not conclusively established that Nalley knew the vehicle was occupied at the time he lifted the car. Significantly, defendant— Nalley’s father—testified that Nalley told him that he had picked up the car to move it because it was blocking the roadway, providing a viable business-related purpose for Nalley’s actions which the jury was free to credit. Further, it cannot be said that the evidence supporting a contrary finding, i.e., evidence that Nalley’s actions were intentional, perhaps the result of an extremely misguided joke, “so preponderates in favor of the defendant that [the verdict] could not have been reached on any fair interpretation of the evidence” (O’Boyle v Avis Rent-A-Car Sys., 78 AD2d 431, 439 [1981]; see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). Indeed, Nalley never testified and the record contains no direct evidence of a nonbusiness-related purpose for his actions. Thus, on this record, we find that the jury’s conclusion that Nalley was acting within the scope of his employment at the time of plaintiffs injury is not against the weight of the evidence (see Riviello v Waldron, 47 NY2d 297, 302-304 [1979]; Savarese v City of N.Y. Hous. Auth., 172 AD2d 506, 508 [1991]; James v Eber Bros. Wine & Liq. Corp., 153 AD2d 329, 334 [1990], lv denied 75 NY2d 711 [1990]; cf. Overton v Ebert, 180 AD2d 955, 956-957 [1992], lv denied 80 NY2d 751 [1992]). Next, defendant challenges the jury’s award of $750,000 in future damages. While “considerable deference [is] accorded to the jury’s assessment” of the amount of damages in a personal *976injury action (Douglass v St Joseph’s Hosp., 246 AD2d 695, 697 [1998]), an “award should be set aside where it deviates materially from reasonable compensation for the injuries sustained” (Osiecki v Olympic Regional Dev. Auth., 256 AD2d 998, 999 [1998]; see CPLR 5501 [c]; Pinkowski v Fuller, 5 AD3d 907, 908 [2004]). Plaintiff testified at trial that he continues to experience pain on a daily basis, but he is able to control it with nonprescription pain medication. He has resumed work full time and, with some limitations, he participates in recreational activities which he enjoyed prior to the accident, such as riding AT Vs and snowmobiles. Plaintiff’s expert—an orthopedic surgeon—testified that the fracture to plaintiff’s back had healed, but the 38% compression in his vertebra was permanent. He noted plaintiff’s complaint of continuing pain and opined, with a reasonable degree of medical certainty, that, in the future, “there will be pain, arthritic changes and possibly further exacerbation of his pain relative to the damage that he sustained to his lower back.” The doctor later qualified this testimony, stating that plaintiffs condition “potentially” could result in arthritic changes which will cause further pain and limit his activities in later years. He also testified that plaintiff has an “increased risk” of requiring orthopedic medical treatment for pain such as injections or surgery, and that he has “a very good chance of having life-long problems” especially if he fails to maintain ideal body weight and good abdominal muscles. Defendant did not present an expert witness to refute this testimony. “Because pain and suffering awards are not subject to precise quantification, examination of comparable cases is necessary to determine whether the award materially deviated from reasonable compensation” (Osiecki v Olympic Regional Dev. Auth., supra at 1000 [citation omitted]). After our review of the record and similar cases, we conclude that the jury’s award for future pain and suffering was excessive (see Donatiello v City of New York, 301 AD2d 436, 437 [2003] [herniated disk with nerve root compression, daily pain with speculative need for future surgery; future pain and suffering award reduced to $75,000]; Valentin v City of New York, 293 AD2d 313, 314 [2002] [spinal fusion surgery followed by pain requiring prescription medications and nerve root injections with likelihood of further surgery; future pain and suffering award increased to $450,000]; Donlon v City of New York, 284 AD2d 13, 19-20 [2001] [fracture of two vertebrae and disk herniation, pain controlled by nonprescription medication; future pain and suffering award reduced to $400,000]; Skow v Jones, Lang & Wooton Corp., 240 AD2d 194, 195 [1997], lv denied 94 NY2d 758 [1999] [herniated disc and *977required pain medication indefinitely; future pain and suffering award increased to $125,000]; Stedman v Bouillon, 234 AD2d 876, 879 [1996] [permanent and disabling knee, shoulder and back pain requiring brace and the necessity for further surgery “most probable”; future pain and suffering award for 77-year-old man increased to $350,000]). Accordingly, we set aside the verdict and order a new trial with respect to the award for future pain and suffering, unless plaintiff stipulates to a reduced award for future pain and suffering in the amount of $450,000. Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment is modified, on the law and the facts, without costs, by reversing so much thereof as awarded plaintiff $750,000 for future pain and suffering; new trial ordered on the issue of said damages unless, within 20 days after service of a copy of the order herein, plaintiff stipulates to reduce the amount of the award for future pain and suffering to $450,000, in which event said judgment, as so reduced, is affirmed.

Kane, J. Appeal from an order of the Supreme Court (Spargo, J.), entered January 25, 2006 in Albany County, which, inter alia, granted plaintiffs’ motion for summary judgment. In November 2002, third-party defendant, Moore Insurance Agency, submitted plaintiffs’ application for homeowners insurance to defendant. Pursuant to the agency agreement between defendant and Moore, defendant was bound by the policy at the time that Moore accepted the application and initial premium payment. The submitted application was unsigned and indicated that no prior loss claims had been experienced in the past five years. Upon receipt and processing of the application, defendant *978conducted an investigation and discovered that plaintiffs had several prior loss claims, with the most recent occurring in the month preceding submission of the application. Defendant sent plaintiffs a notice of cancellation dated December 18, 2002 stating that, pursuant to Insurance Law § 3425, defendant was cancelling plaintiffs’ policy effective January 20, 2003 due to misrepresentations regarding loss history on the application. On January 3, 2003, a tree fell through plaintiffs’ roof, damaging their home. Defendant denied plaintiffs’ claim related to this loss, then sent a second cancellation notice declaring plaintiffs’ policy void from its inception and returned their premium payment. Plaintiffs commenced this action alleging breach of contract and seeking a declaration that defendant must indemnify them for their loss. Defendant commenced a third-party action against Moore seeking indemnification. In response to motions for summary judgment submitted by all parties, Supreme Court granted plaintiffs’ motion and denied defendant’s and Moore’s motions. Defendant and Moore appeal. It is undisputed that the application for insurance was never signed by either plaintiff, the application did not reflect any prior losses and plaintiffs had several loss claims in the five years preceding submission of the application. Deposition testimony of plaintiff Robert J. Stein and Moore’s employee differ diametrically as to whether they met face-to-face to fill out the application and whether Stein ever disclosed prior losses to Moore. Regardless of whose error resulted in incorrect prior loss information appearing on the application, the application contained a material misrepresentation. Everyone acknowledges that the answer to the loss information question misrepresented the true facts (see Insurance Law § 3105 [a]). Sworn statements by Moore’s employee and defendant’s employee, and defendant’s underwriting policy bulletins, establish that defendant would not have issued the insurance policy at issue if the application had disclosed water damage claims in the past three years, making the misrepresentations material (see Insurance Law § 3105 [b], [c]; compare Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435, 437-438 [2003]; Carpinone v Mutual of Omaha Ins. Co., 265 AD2d 752, 754-755 [1999]). Because the application for insurance contained material misrepresentations, defendant could have rescinded plaintiffs’ policy, rendering it void ab initio (see Insurance Law § 3105 [b]; Curanovic v New York Cent. Mut. Fire Ins. Co., supra at 436). Defendant did not do so. Unlike areas in which insurance coverage is mandatory, such as workers’ compensation and automobile liability, here, the general right of rescission for misrepresenta*979tion was not supplanted by any specific statute (compare Matter of Cruz v New Millennium Constr. & Restoration Corp., 17 AD3d 19, 22 [2005]; Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293, 297-298 [2000]). As defendant elected to cancel plaintiffs’ policy rather than rescind it (compare Insurance Law § 3105 [b], with Insurance Law § 3425 [b]; see 2004 Ops NY Ins Gen Counsel, Aug. 18, 2004, No. 6), the policy was in full force until the cancellation notice’s stated effective date of January 20, 2003. Supreme Court correctly issued plaintiffs a judgment and a declaration that defendant was required to indemnify them for their January 3, 2003 loss, as that loss occurred before the cancellation date chosen by defendant and was thus covered by the policy. Moore was entitled to summary judgment dismissing the third-party complaint. For defendant to prevail against its agent, Moore, on either a negligence or breach of contract theory, Moore’s conduct had to be the proximate cause of defendant’s damage (see Otsego Mut. Fire Ins. Co. v Robed & Sons, 63 AD2d 784, 785 [1978]; see also General Acc. Ins. Co. v Smith & Assoc., 184 AD2d 616, 617 [1992]). While a dispute exists regarding whether plaintiffs or Moore are responsible for the inaccurate information on the application, this outstanding issue will not prevent a grant of summary judgment because Moore is entitled to such relief under either version (see Brooks v Blue Cross of Northeastern N.Y., 190 AD2d 894, 895 [1993]). Regardless of who was at fault for the inclusion of incorrect loss information, defendant discovered this error prior to December 18, 2002. With that knowledge in hand, defendant chose to cancel plaintiffs’ policy as of a future date rather than void it from its inception. This choice by defendant, not Moore’s earlier conduct, proximately caused the damages alleged in the third-party action (see New Horizons Amusement Enters. v Zullo, 301 AD2d 825, 827 [2003]). Crew III, J.E, Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied third-party defendant’s motion for summary judgment; motion granted and third-party complaint dismissed; and, as so modified, affirmed.

*980Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which denied petitioner’s application for accidental disability retirement benefits. Petitioner, a firefighter employed by the Village of Scarsdale Fire Department in Westchester County, was injured during a training exercise on October 23, 2002 in which he was practicing a procedure for removing a downed firefighter from a burning building. As petitioner pulled the fallen firefighter up the stairs going backward, with the assistance of two other trainees, his foot became wedged between the downed firefighter’s air pack and the stairs while the other trainees continued to push, resulting in an injury to his right knee. Petitioner applied for accidental disability retirement benefits, but his application was denied on the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law § 363. Following a hearing and redetermination, a Hearing Officer denied the application on the same ground, and respondent subsequently adopted that decision. Petitioner commenced this CPLR article 78 proceeding, challenging respondent’s determination. We confirm. An accident within the meaning of the Retirement and Social Security Law is a “ ‘sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact’ ” (Matter of Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, 1012 [1982], quoting Arthur A. Johnson Corp. v Indemnity Ins. Co. of N. Am., 6 AD2d 97, 100 [1958], affd 7 NY2d 222 [1959]). Hence, “an injury that occurs without an unexpected event, as the result of activity undertaken in the performance of ordinary employment duties (considered in view of the particular employment in question) is not an accidental injury within the purview of [the] Retirement and Social Security Law” (Matter of Cadiz v McCall, 236 AD2d 766, 766 [1997]; see Matter of O’Shei v Hevesi, 26 AD3d 585, 586 [2006]). Here, substantial evidence supports respondent’s determination that petitioner’s injury “was the result of a training program constituting an ordinary part of petitioner’s job duties and the normal risks arising therefrom” (Matter of Felix v New York State Comptroller, 28 AD3d 993, 994 [2006]; accord Matter of Geraci v Hevesi, 37 AD3d 941, 942 [2007]; see Matter of McKenna v Hevesi, 26 AD3d 584, 585 [2006]; Matter of Marsala v New York State & Local Employees’ Retirement Sys., 14 AD3d 984, 985 [2005], lv denied 4 NY3d 709 [2005]). *981Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

In a proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles revoking petitioner’s driving *625license and directing his re-examination, pursuant to statute (Vehicle and Traffic Law, § 20, subd. 8), the Commissioner appeals from an order of the Supreme Court, Queens County, dated June 23, 1960, made at Special Term after a hearing, annulling said determination and directing a re-examination of the petitioner. Order reversed, on the law and the facts, without costs, Commissioner’s determination reinstated, and petition dismissed. Inconsistent findings of fact implicit in the Special Term’s opinion (Matter of Devine v. Hults, 25 Misc 2d 59) are reversed and new findings are made as indicated herein. Petitioner, a bus driver, having been involved in motor vehicle accidents three times within an 18-month period, each accident resulting in personal injury or property damage in excess of $100, was required to submit to re-examination pursuant to said statute. He failed the road test and his license was revoked.' Thereafter he commenced this proceeding, claiming that his failure was due to hostility on the part of the examiner arising out of an argument between the latter and a friend of petitioner in whose car petitioner had come to take the test, the argument being with respect to the absence of an inspection sticker on the friend’s car. At the hearing petitioner testified that the examiner evidenced his antagonism by his hostile tone of voice. Except for this testimony, no evidence of hostility was adduced. Such proof is wholly insufficient to support a finding that the examiner was arbitrary and capricious (Matter of Muscarella v. Macduff, 281 App. Div. 565). Nolan, P. J., Ughetta, Christ and Pette, JJ., concur; Brennan, J., not voting.

Cardona, PJ. Appeal from an order of the Supreme Court (Ferradino, J.), entered July 28, 2006 in Saratoga County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint. Plaintiff, a state and federally-licensed wildlife rehabilitator, and his wife own an approximately 2.5-acre improved parcel of land in the Town of Clifton Park, Saratoga County, which is zoned for both residential (R-l) and land conservation (L-C) uses. The property, purchased in 1999, is surrounded by other residential dwellings such as single-family homes. As relevant herein, the parcel is roughly 108,900 square feet, with nearly two thirds, or approximately 72,000 square feet, in the L-C zone and designated as protected wetlands. There is a pond on the parcel and it is undisputed that plaintiff has provided a home for several disabled or rare ducks and geese, as well as a pair of Mute Swans. In August 2003, plaintiff submitted an application to defendant’s Zoning Board of Appeals for an area variance, seeking to conduct “small-scale poultry husbandry” on his property. This application was premised upon Town of Clifton Park Zoning Code § 208-10 (B) (1) (a), which requires a minimum lot size of five acres for a resident to keep poultry.1 In September 2003, after a public hearing, plaintiffs application was denied and he did not appeal that determination. Thereafter, defendant’s employees inspected plaintiffs property, upon complaints received from plaintiff’s neighbors,2 and issued an appearance ticket charging plaintiff with violating Town of Clifton Park Zoning Code § 208-10 (B) (1) (a). Plaintiff was determined to be in *982violation of that provision and fined. Subsequently, plaintiff received a written demand to remove the resident waterfowl. Plaintiff failed to comply and, due to additional complaints from plaintiff’s neighbors, defendant’s zoning enforcement officer performed another inspection in January 2005, which resulted in the issuance of the appearance ticket for violating the Town of Clifton Park Zoning Code by “keeping domestic ducks in an R-l zone on less than five acres.” In February 2005, plaintiff commenced this action seeking a declaration that the harboring of domestic ducks and geese on his property was permitted because the resident watérfowl were not “poultry” under defendant’s zoning code and, additionally, since a portion of his property was located in a L-C zone, he was allowed to maintain a nature preserve as “a habitat for wild birds, including ducks and geese.” In July 2005, Supreme Court denied plaintiff’s motion for summary judgment, finding that the ducks and geese fit within the definition of “poultry” as contemplated by defendant’s zoning code.3 Subsequently, plaintiff retained new counsel and moved again for summary judgment, specifically seeking a declaration that (1) he is legally entitled to maintain ducks and geese on his property, (2) he may create a nature preserve on the L-C portion of his property without seeking further approval from defendant, and (3) his activities do not violate defendant’s zoning code. Defendant cross-moved for summary judgment dismissing the complaint, arguing that the wetlands on plaintiffs property cannot legally be used as a “nature preserve.” Supreme Court denied plaintiff’s second motion for summary judgment and granted defendant’s cross motion, directing plaintiff to remove the resident ducks, geese and swans from the property. This appeal ensued. Plaintiff maintains that because utilization of L-C district land as a nature preserve is a permitted “use” under the Town of Clifton Park Zoning Code, his activities consistent with such a purpose may not be restricted. We do not agree. While there is no question that the establishment of a nature preserve, game preserve or similar use is allowed pursuant to Town of Clifton Park Zoning Code § 208-69.2 (A) (1), the plain language of a different provision, namely Town of Clifton Park Zoning Code § 208-70, states specifically that the uses delineated in section *983208-69.2 require a threshold area of 100,000 square feet of property in a L-C district (see Town of Clifton Park Zoning Code § 208-70 [A]). Since it is undisputed that only 72,000 square feet of plaintiffs property is in the L-C district, his property cannot meet this requirement. Inasmuch as the plain language of defendant’s zoning code is unambiguous, unless the Zoning Board’s interpretation of a provision of the zoning code is irrational or unreasonable, its interpretation is entitled to deference (see Matter of Frishman v Schmidt, 61 NY2d 823, 825 [1984]; Matter of Town of Johnsburg v Town of Johnsburg Zoning Bd. of Appeals, 299 AD2d 796, 799 [2002]). Here, we conclude that application of the area requirements contained in Town of Clifton Park Zoning Code § 208-70 (A) to plaintiffs property is not unreasonable and, in fact, is a rational and proper interpretation of the zoning code (see Matter of Frishman v Schmidt, supra at 825; Matter of Town of Johnsburg v Town of Johnsburg Zoning Bd. of Appeals, supra at 799). Accordingly, Supreme Court did not err in awarding summary judgment to defendant. Plaintiff’s remaining arguments, including his contention that the interpretation of the zoning code advanced by defendant will result in an unconstitutional taking of his property, have been examined and found to be unpersuasive. Finally, given our conclusion that Supreme Court properly granted summary judgment dismissing the complaint, we modify its order to the sole extent of issuing a declaration in defendant’s favor (see Gordon v Urbach, 252 AD2d 94, 98 [1998], lv denied 93 NY2d 804 [1999]). Mercure, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, without costs, by declaring that the Town of Clifton Park Zoning Code does not permit plaintiff to harbor ducks and geese on his property or maintain a nature preserve therein and, as so modified, affirmed. . Specifically, Town of Clifton Park Zoning Code § 208-10 (B) (1) (a) provides that, in an R-l district, “The following uses are prohibited on lots smaller than five acres in size: [1] Keeping livestock or poultry, such as hogs, cows, horses, goats or chickens.” . A separate private nuisance action regarding these activities, commenced by plaintiff’s neighbors, is not at issue herein. . Although the final order dismissing the complaint brings up for review all interlocutory orders (see Madden v Dake, 30 AD3d 932, 935 n 2 [2006]), plaintiff does not challenge on appeal Supreme Court’s finding regarding the definition of “poultry” for purposes of defendant’s zoning code, therefore, we deem that issue to be abandoned.

Mercure, J. Appeal from an order and decree of the Surrogate’s Court of Albany County (Doyle, S.), entered November 18, 2005, which granted petitioner’s motion for a determination of the validity, construction and effect of the disposition of certain property contained in decedent’s last will and testament. Frederick A. Scale (hereinafter the testator) died on June 4, 2002. His last will and testament, dated April 3, 2002, was duly admitted to probate on July 30, 2002, and letters testamentary were issued to petitioner, as the named executor. Petitioner seeks a determination of the validity, construction and effect of the disposition of property contained in paragraph 2F of the testator’s will, in which the testator devised 10% of his residuary estate to “The Audubon Society of New York State.” Both respondent Audubon Society of New York State, Inc. (doing business as Audubon International) (hereinafter the state organization) and respondent National Audubon Society, Inc. (doing business as Audubon New York) (hereinafter the national organization) claim that they were the intended beneficiary. Finding a latent ambiguity in the clause, Surrogate’s Court admitted extrinsic evidence and concluded that the testator intended to make a gift to the national organization. Specifically, the court relied upon an affidavit of the will drafter stating that, although the testator had “quickly, without reservation” stated upon inquiry that he intended to benefit the state organization, the testator was confused and actually intended to benefit the national organization. The state organization now appeals, arguing that Surrogate’s Court improperly relied upon the drafter’s affidavit and allegations of public confusion regarding the identity of the organizations to create an ambiguity when the will is unambiguous on its face. We agree. It is well established that “in a will construction proceeding, the search is for the decedent’s intent and not for that of the draft[er]” (Matter of Cord, 58 NY2d 539, 544 [1983] [citations omitted] [superseded by statute on other grounds]; see Matter of Carmer, 71 NY2d 781, 785 [1988]; Matter of McCabe, 269 AD2d 727, 728 [2000]). All rules of interpretation are subordinated to the requirement that we give effect to the testator’s dominant purpose or plan for distribution as manifested in the will, and that “task is not furthered by rote ascription of technical meanings to terms regardless of context; instead, ‘a sympathetic reading of the will as an entirety’ is required” (Matter of Carmer, supra at 785, quoting Matter of Fabbri, 2 NY2d 236, 240 [1957]; see Matter of Bieley, 91 NY2d 520, 525 [1998]). Nevertheless, *985the best indicator of the testator’s intent is found in the clear and unambiguous language of the will itself and, thus, where no ambiguity exists, “[e]xtrinsic evidence is inadmissible to vary the terms of a will” (Matter of Wickwire, 270 AD2d 659, 661 [2000], lv dismissed and denied 95 NY2d 824 [2000]; see Matter of Cord, supra at 544; Matter of Goldstein, 46 AD2d 449, 450 [1975], affd 38 NY2d 876 [1976]; see generally W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). When two charitable organizations claim to be the beneficiary named in a will, extrinsic evidence is admissible only if an examination “ ‘of the name[s] of the two corporations and of their general character and purposes as declared by the laws of their creation’ ” reveals a latent ambiguity (Union Trust Co. v St. Luke’s Hosp., 74 App Div 330, 333 [1902], affd 175 NY 505 [1903], quoting Saint Luke’s Home v Association for Indigent Females in City of N.Y., 52 NY 191, 194 [1873]; see Matter of Seabury, 107 Misc 705, 707-708 [1919], affd 191 App Div 889 [1920], affd sub nom. Matter of Wentworth, 229 NY 636 [1920]). Here, the testator’s will designated “The Audubon Society of New York State” and “The World Wildlife Fund” as beneficiaries of his residuary estate, with each receiving 10% of the residuary. Although the national organization and the Attorney General in his statutory capacity under EPTL 8-1.1 (f) argue that there is no entity named “The Audubon Society of New York State,” it is undisputed that the state organization is named “The Audubon Society of New York State, Inc.” In our view, the testator’s failure to include “Inc.” in naming his beneficiary does not render the will ambiguous (see Union Trust Co. of N.Y. v St. Luke’s Hosp., supra at 334). Moreover, a review of the certificates of incorporation and consolidation of the state and national organizations—as well as their history—reveals that the general character and purpose of both is to promote understanding, conservation and preservation of wildlife, natural resources and the environment through research and public education.1 Indeed, despite its criticism of the state organization’s sustainable development and resource management *986programs, the national organization concedes that the state organization sponsors a local bird conservation project, the New York Loon Conservation Project. Thus, reading the will as a whole in view of the surrounding “facts and circumstances” (Matter of Fabbri, supra at 240) and accepting the argument that the will evinces the testator’s intent to donate money to charitable entities that benefit both wildlife generally and avian wildlife in particular, there is nothing on the face of the will to support the claim that the testator intended to donate to the national organization, rather than the state organization that he expressly named in the will (see Union Trust Co. of N.Y. v St. Luke’s Hosp., supra at 334). We reject the arguments of the national organization and the Attorney General that the use of the phrase “Audubon Society” by many charities creates a latent ambiguity in this will or, presumably, any will in which money is bequeathed to a charity bearing the “Audubon Society” designation.2 Those parties rely upon the national organization’s prior lawsuit commenced against the state organization for unfair competition due to its use of the phrase “Audubon Society” as well as affidavits from two employees of the national organization indicating that there is public confusion over the organizations’ names. We note, however, that Supreme Court, New York County (Arber, J.), dismissed the national organization’s claims in the prior action. As the court explained in rejecting the national organization’s assertion that it had been harmed due to confusion over the similar names, “[courts] . . . must . . . assume that the public will use reasonable intelligence and discrimination with reference to the names of corporations with which they are dealing or intend to deal” (Police Conference of N.Y. v Metropolitan Police Conference of E. N.Y., 66 AD2d 441, 445 [1979], affd 48 NY2d 780 [1979] [internal quotation marks and citation omitted]). Similarly here, we cannot say that the use of the phrase “Audubon Society” by a large number of charities or the allegations of public confusion in the record give rise to a latent ambiguity justifying the admission of “[p]arol evidence ... to show that the testat[or] did not mean what [he] has said in words” (Dwight v Fancher, 245 NY 71, 74 [1927]; see Matter of Lezotte, 108 AD2d 1052, 1052-1053 [1985]; Union Trust Co. of N.Y. v St. Luke’s Hosp., supra at 334-335; cf. Matter of Van Vliet, 224 NY *987572, 572 [1918]; Matter of Patterson, 139 Misc 872, 874-875 [1931]; Matter of Seabury, supra at 707-708). Accordingly, we agree with the state organization that Surrogate’s Court erred in relying upon the affidavit of the will drafter, in which he speculated based upon his discussions with the testator that, notwithstanding the testator’s unequivocal statement that he wished to donate to the state organization, the testator actually intended to benefit the national organization.3 In this regard, we note that “if courts should permit the substitution of the draft[er’s] recollection of what the testator told him [or her], for the language of the will itself, the instrument would cease to be the repository of the decedent’s testamentary program” (Matter of Storrs, 18 Misc 2d 941, 944 [1959]; see Matter of Campbell, 171 Misc 2d 892, 902-903 [1997]). Rather, as we have previously explained, “extrinsic evidence may not be used in this fashion to create an ambiguity in a will where none [exists]” (Matter of Wickwire, 270 AD2d 659, 662 [2000], supra). In short, as the will unambiguously dictates, the legacy must be paid to the state organization expressly named therein. The state organization’s remaining argument has been rendered academic by our decision. Cardona, EJ., Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order and decree is reversed, on the law and the facts, with one bill of costs, and matter remitted to the Surrogate’s Court of Albany County for further proceedings not inconsistent with this Court’s decision. . The national organization was founded in 1905 and works to preserve habitat for the benefit of birds, wildlife and people through science, education, advocacy initiatives and bioregional conservation programs. The state organization was incorporated in 1987 by a former employee of the national organization and seeks to foster more sustainable development and land management, with emphasis on improving protection of watersheds and biodiversity, for the benefit of birds, wildlife and people. In addition to bird conservation and the management of a wildlife sanctuary in Selkirk, Albany County, the state organization assists the owners of public and private property including golf courses, in improving environmental management practices and maintain*986ing incidental refuge capacity that is environmentally hospitable to birds and other wildlife. . The national organization and Attorney General rely heavily on evidence in the record that as of July 2004, there were 34 organizations with the phrase “Audubon Society” in their names registered with the New York State Department of State, Division of Corporations. . Even if we were to consider the affidavit as the Attorney General and national organization urge, the drafter’s speculative assertion—based upon the observation of a third party that the mother had literature from the national organization in the family home—that the testator’s mother “ [apparently . . . had contributed to this organization at some points during her life” does not establish a prior relationship or connection between the national organization and the testator or his mother.

In an action to establish by prescription a driveway easement over a portion of defendant’s property and to enjoin interference with such easement, defendant appeals from a judgment of the Supreme Court, Nassau County, rendered July 22, 1960, after a nonjury trial, declaring the existence of such easement and directing defendant to remove a fence erected by her in the driveway. Judgment reversed on the law and the facts, without costs, and complaint dismissed. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. The parties are owners of adjoining properties, on each of which is a dwelling with a garage in the rear. Between the dwellings is an unpaved driveway 19.27 feet in width, of which 8.39 feet is on plaintiffs’ property and 10.88 feet is on defendant’s property. In our opinion, the evidence does not establish reciprocal adverse user by the adjoining landowners, or that the use of the disputed portion of the driveway by plaintiffs and their predecessors in title was adverse and under a claim of right (Kopp v. Niemetz, 11 A D 2d 739; Norwick v. Edelman, 204 Misc. 915, 917, and cases cited). Nor can plaintiffs “tack” their alleged adverse user of 13% years onto that of their predecessors in title to make up the required 15 years, since the deed to plaintiffs does not contain the alleged driveway easement, and there is no proof that their grantor intended to include such easement therein (Melbourne v. Kukla, 237 App. Div. 834; Rogoff v. Vanderbilt Sons’ Corp., 263 App. Div. 841, affd. 290 N. Y. 666; Van Roo v. Van Roo, 268 App. Div. 170, 175, affd. 294 N. Y. 731; Meerhoff v. Rouse, 4 A D 2d 740). Beldock, Acting P. J., Ughetta, Kleinfeld and Pette, JJ., concur; Brennan, J., concurs in the result. [24 Misc 2d 726.]

In an action to recover damages for personal injuries, the three defendant corporations (other than the New York City Housing Authority, which has not been served with process and did not appear), appeal from a judgment of the Supreme Court, Kings County, entered January 7, 1960, in favor of plaintiff against said three defendant corporations, after a nonjury trial. The judgment is based upon a decision and opinion rendered by the trial court. The judgment is for the total sum of $98,843.39, which includes $98,-482.20 as the damages computed and fixed by the trial court in its decision; $147.69 interest on the damages; and $213.50 costs. Judgment modified on the facts by reducing the damages from $98,482.20 to $70,000 and by reducing the interest and the total amount of the judgment accordingly. As so modified, the judgment is affirmed, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. In our opinion, the award made by the trial court to the plaintiff for his damages is excessive. We find an award of $70,000 to be fair and adequate for all the damages and injuries suffered by the plaintiff. Nolan, P. J., Beldock, Christ, Pette and Brennan, JJ., concur. [24 Misc 2d 270.]

Feters, J. Appeal from an order of the Supreme Court (Relihan, Jr., J.), entered January 17, 2006 in Tompkins County, *988which denied defendants’ motion for summary judgment dismissing the complaint. In April 2002, plaintiff Donna Tenkate (hereinafter plaintiff) was injured in a slip-and-fall accident at a store operated by defendant Tops Markets, LLC (hereinafter defendant) in the City of Ithaca, Tompkins County. Plaintiff entered defendant’s store at approximately 1:00 p.m. to buy lunch at the deli counter. After picking up her items, she walked down the main aisle toward the front of the store which was adjacent to its floral department and flower display. Realizing that she also sought to purchase another item, she stopped, turned, walked “less than a foot” and then slipped and fell. Plaintiff contended that she slipped in a puddle of water. Plaintiff and her husband, derivatively, commenced this action against defendants,* alleging serious personal injuries. Following discovery, defendants moved for summary judgment, which motion was denied by Supreme Court. Defendants appeal. Defendants had the initial burden of establishing that they neither created the alleged dangerous condition nor had actual or constructive notice of it (see e.g. Londner v Big V Supermarkets, 309 AD2d 1122, 1123 [2003]; Altieri v Golub Corp., 292 AD2d 734, 734 [2002]; Mueller v Hannaford Bros. Co., 276 AD2d 819, 819 [2000]; Sosa v Golub Corp., 273 AD2d 762, 763 [2000]). Defendants’ proffer consisted of an affidavit from Brian Bush, the assistant store manager, as well as his deposition testimony. It established that it was his responsibility to inspect the premises, having walked through the area where plaintiff claims to have fallen at approximately 1:00 p.m. when he went to purchase his lunch at the deli counter. He stated that all employees, including himself, were trained to “look for anything that needed to be done.” He further alleged that when he got to the accident location with plaintiff, the floor was dry. Finally, Bush averred that he questioned five employees, none of whom had any knowledge of any water on the floor before or after plaintiffs fall. Finding this proffer sufficient to establish a lack of notice as a matter of law (see CPLR 3212 [b]; Londner v Big V Supermarkets, supra at 1123; Sosa v Golub Corp., supra at 763; Richardson-Dorn v Golub Corp., 252 AD2d 790, 791 [1998]; compare Mancini v Quality Mkts., 256 AD2d 1177, 1178 [1998]), the burden shifted to plaintiffs to raise a triable issue of fact (see Mueller v Hannaford Bros. Co., supra at 819; Sosa v Golub Corp., supra at 764). *989Plaintiffs submitted photos of the area where plaintiff fell, which depicted tiered floral displays on one side of the main aisle. Plaintiffs deposition testimony supports her pleading that the puddle of water on which she fell “was a trail that came from the flowers.” Bush explained, in his testimony, that there are numerous “pod units” along the main aisle, and that none of the plants has any drain pans to collect water; only a cellophane wrap is used. He confirmed that there is no matting on the floors in the floral area and that the watering of the plants is typically done between 10:00 a.m. and 1:00 p.m. from a pressurized unit which is transported to the location of the plants. Bush’s testimony also highlighted that, due to the absence of the store manager on that day, it was his responsibility to manage the entire store. Recognizing that he was required to monitor the store for spills during the day, “roughly guess [ing]” that he would do so approximately once an hour if there were no other responsibilities, he stated that on this particular day, he probably inspected the aisles a total of three times prior to 2:00 p.m. However, no written records were maintained. Viewing the evidence, in its totality, in a light most favorable to plaintiffs and according them the benefit of every reasonable inference, we find that plaintiffs raised a triable issue of fact that defendant created the condition upon which plaintiff fell (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]), thus negating the claim of a lack of notice (see Roundpoint v V.N.A., Inc., 207 AD2d 123, 126 [1995]). Bush’s testimony concerning the daily timing for the watering of the plants, the magnitude of the floral display, its proximity to plaintiffs fall, and the fact that the plants tiered upon these pods failed to have drain pans to collect water after a watering supports the contention that defendant created this condition (see Ohanessian v Chase Manhattan Realty Leasing Corp., 193 AD2d 567, 567 [1993]), if we accept plaintiffs account of the accident, as we must, on a motion of this kind (see Herman v Powers, 103 AD2d 992, 992-993 [1984]). With the goal of a motion for summary judgment being issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Macri v Smith, 12 AD3d 896, 898 [2004]), we affirm the denial of defendants’ motion for summary judgment for the reasons stated herein. Mercure, J.E, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs. On the date of the incident, defendant ARP Lansing, LLC was the lessor of the supermarket premises and defendant GSF Realty, Inc. was its managing agent.

In an action to recover damages for malpractice, defendant appeals from an order of the Supreme Court, Richmond County, dated March 4, 1958, which denies his motion to strike the action from the Trial Calendar on the ground that plaintiff had failed to furnish him with an authorization to obtain hospital records, as required by subdivision (d) of section 3 of the Statement of Readiness Rule of this court, applicable to the Supreme Court in the counties within the Second Judicial Department (Rules App. Div. [2d Dept.], special rule, eff. Jan. 15, 1957, as amd.). Order reversed; without costs, and motion granted unless, within 20 days after entry of the order hereon, plaintiff shall furnish to defendant an authorization to obtain copies of plaintiff’s hospital records; if plaintiff complies with this condition, the order denying defendant’s motion shall be deemed affirmed, without costs. In our opinion, subdivision (d) of section 3 of our Statement of Readiness Rule does not violate the Fourteenth Amendment of the Federal Constitution by denying equal protection of the laws (cf. Gair v. Peck, 6 N Y 2d 97, cert. denied 361 U. S. 374); it does not conflict with sections 352 and 354 of the Civil Practice Act; it is in harmony with the modern trend toward compulsory pretrial disclosure of parties’ claims; it is consistent with the complex of statutes and rules adopted to achieve the salutary effects flowing from such pretrial disclosure (cf. Civ. Prac. Act, §§ 288, 296-a, 306; Rules Civ. Prac., rules 116, 117, 121-a); and it is within the court’s inherent and statutory power to control the order of its business, and to so conduct its business as to safeguard the rights of all litigants, to preclude unfair procedural advantage to any party, and to prevent needless disruption of orderly court procedures (see Kriger v. Holland Furnace Co., 12 A D 2d 44). Beldock, Acting P. J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.

Mercure, J.E Appeal from an order of the Supreme Court (Reilly Jr., J.), entered September 16, 2006 in Schenectady County, which denied defendants’ motion for summary judgment dismissing the complaint. In November 2003, plaintiffs were injured when the vehicle in which they were traveling struck Schenectady Police Officer Michael Glasser’s police cruiser. Glasser was in the process of making a left-hand turn into the southbound lane of Rosa Road in the City of Schenectady, Schenectady County, at the time of the accident, which occurred at approximately 11:00 p.m. He had stopped at a stop sign on Mader Street and then, although construction blocked his view of Rosa Road, pulled forward into the intersection to make the turn without activating his lights or siren. When he saw plaintiffs’ car approaching him in the northbound lane, Glasser stopped his vehicle in that lane, hoping that the car would either stop or proceed around him. Road conditions were wet due to a drizzling rain, however, and plaintiff Roy Muniz, the driver of the other vehicle, was unable to stop before colliding with the front driver’s side of Glasser’s cruiser. Plaintiffs then commenced this action, alleging that defendants are vicariously liable for Glasser’s actions. Following joinder of issue, defendants moved for summary judgment dismissing the complaint, asserting that Glasser was entitled to qualified immunity under Vehicle and Traffic Law § 1104 because he was responding to a police dispatch at the time of the accident and his conduct was not reckless. Supreme Court denied the motion and defendants now appeal, asserting that the court erred in finding a triable issue of fact regarding whether Glasser’s operation of his patrol vehicle was reckless. Vehicle and Traffic Law § 1104 (a) exempts the drivers of authorized emergency vehicles from the requirements of certain traffic laws when they are “involved in an emergency operation.” As relevant here, the statute “precludes the imposition of liability for otherwise privileged conduct except where the *991conduct rises to the level of recklessness” (Saarinen v Kerr, 84 NY2d 494, 497 [1994]; see Vehicle and Traffic Law § 1104 [e]; Campbell v City of Elmira, 84 NY2d 505, 510 [1994]; O’Banner v County of Sullivan, 16 AD3d 950, 952 [2005]). The parties do not dispute that Glasser was driving an emergency vehicle engaged in an emergency operation within the meaning of section Vehicle and Traffic Law § 1104 (a) at the time of the accident (see Criscione v City of New York, 97 NY2d 152, 157-158 [2001]); the sole question presented for our review is whether Glasser’s conduct at the time of the accident rises to the level of recklessness. In order to demonstrate reckless disregard for the safety of others, a plaintiff must show that the defendant “ ‘has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, supra at 501, quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]; see Lupole v Romano, 307 AD2d 697, 698 [2003]). Upon our review of the record, we agree with Supreme Court that questions of fact exist regarding whether Glasser’s conduct was reckless. We note that “[w]hile the nature of the underlying police call or the officer’s perception of its urgency is irrelevant for purposes of ascertaining whether the officer was engaged in an emergency operation [within the meaning of the statute], ‘the nature of the call nevertheless is relevant in determining whether a responding officer’s conduct was in reckless disregard for the safety of others’ ” (O’Banner v County of Sullivan, supra at 952, quoting Allen v Town of Amherst, 8 AD3d 996, 997 [2004]). Here, Glasser testified at his examination before trial that although he was responding to a routine, nonemergency call, he began his turn onto Rosa Road despite his limited visibility. Moreover, the accident occurred at approximately 11:00 p.m. and road conditions were wet, but he did not activate his siren or emergency lights. Rather than completing his turn into the southbound lane of Rosa Road—which was free from traffic—he stopped in plaintiffs’ lane of travel when their vehicle was only 20 to 30 yards away. Under these circumstances, questions of fact remain regarding whether Glasser consciously disregarded a grave risk that his actions would cause a collision and probable harm to plaintiffs (see O’Banner v County of Sullivan, supra at 952; Lupole v Romano, supra at 698; Rouse v Dahlem, 228 AD2d 777, 779-780 [1996]; cf. Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]). Accordingly, Supreme Court properly denied defendants’ motion for summary judgment. Crew III, Spain, Mugglin and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

In an action to recover amounts allegedly due under a separation agreement between plaintiff and defendant, formerly husband and wife, in which the *627complaint pleads two causes of action, the defendant husband appeals: (1) from so much of an order of the County Court, Westchester County, dated June 30, 1959, as grants plaintiff’s motion for summary judgment on the second cause of action, pursuant to rule 113 of the Rules of Civil Practice; and (2) from an order of the same court, dated July 29, 1959, denying his motion for reargument. Order, dated June 30, 1959, insofar as appealed from, reversed, without costs; and plaintiff’s motion for summary judgment with respect to the second cause of action, denied. Although defendant’s affidavits fail to state facts which would constitute a defense to the causes of action alleged against him, plaintiff’s affidavit and the other affidavit and papers submitted are insufficient to warrant the court, as a matter of law, in directing judgment in favor of plaintiff as to the second cause of action (see Rules Civ. Prac., rule 113). Appeal from order, dated July 29, 1959, denying reargument, dismissed, without costs, as academic. Nolan, P. J., Beldock, Christ and Pette, JJ., concur; Brennan, J., not voting.

In an action by a wife against her husband to annul their marriage by reason of his premarital fraudulent concealment of a mental illness with which he was afflicted prior to the marriage, plaintiff appeals: (1) from so much of an order of the Supreme Court, Kings County, dated June 1, 1960, as grants defendant’s motion (to vacate plaintiff’s notice to examine him before trial) to the extent of striking out certain items specified in said notice, and as denies, without prejudice to renewal upon the trial, the plaintiff’s cross motion to compel defendant to pay her $750 for her counsel fee and disbursements in the prosecution of the action; and (2) from so much of an order of the same court, dated June 23, 1960, resettling the prior order, as makes the same disposition of the respective motions. Appeal from the original order, dated June 1, 1960, dismissed, without costs, as academic. It has been superseded by the resettled order. Resettled order, dated June 23, 1960, modified: (a) by striking out from its first and second decretal paragraphs the provisions striking out from plaintiff’s notice of examination Item 1, Item 2, Item 3, a portion of Item 4, Item 5, Item 6, Item 7 and a portion of Item 8; and (b) by denying in toto defendant’s motion to vacate plaintiff’s notice of examination; and, as so modified, order insofar as appealed from, affirmed, with $10 costs and disbursements to plaintiff, unless, within 20 days after the entry of the order hereon, the attorneys for the respective parties, pursuant to section 354 of the Civil Practice Act, shall sign and file a written stipulation waiving, for the purposes of this action, defendant’s statutory privilege under section 352 of the Civil Practice Act with respect to the testimony as a witness of every doctor who treated or attended him prior to the commencement of this action. In the event such stipulation be filed within the time prescribed, the resettled order, insofar as appealed from, is affirmed, without modification and without costs. Examinations before trial are allowed in actions for annulment based on concealment of mental or physical conditions (Wolin v. Wolin, 266 App. Div. 742, appeal dismissed 290 N. Y. 923; Cook v. Cook, 8 A D 2d 964). However, the defendant here, may obviate the examination if he authorizes his attorney to sign the stipulation, pursuant to section 354 of the Civil Practice Act, to waive defendant’s statutory privilege as to the testimony of his doctors (cf. Geis v. Geis, 116 App. Div. 362; Yelin v. Yelin, 142 Misc. 533). With respect to the examination before trial of the defendant upon the portion of Item 4 and upon the portion of Item 8 as to which no appeal has been taken, such examination shall proceed on a date to be fixed by plaintiff in a notice served at least 20 days prior thereto or on *628any other date mutually fixed by the parties. In the event the stipulation waiving the statutory privilege be not filed, the examination shall proceed at the same time with respect to all the items specified in the notice of examination. Beldock, Acting P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.

Carpinello, J. Appeal from an order of the Supreme Court (Coccoma, J), entered April 10, 2006 in Otsego County, which, inter alia, denied plaintiffs motion to dismiss defendants’ affirmative defenses of release and assumption of risk. On November 7, 2004, plaintiff paid a fee to participate in a “fun day” at a cycle park operated by defendants. While riding his motocross bike around the course, he collided with a utility vehicle being driven by one of defendants’ employees. It is undisputed that the collision occurred on the blind side of a jump near the finish line. According to plaintiff, the first time he saw the utility vehicle was when he hit the ground following this final jump. He attempted to avoid the collision, to no avail. No yellow warning flag had been waved to warn plaintiff of this hazard. In this action commenced by plaintiff to recover for the injuries he sustained that day, defendants’ answer contained numerous affirmative defenses, only two of which are at issue, namely, that the action is barred by a release executed by him on the morning of the accident and assumption of risk. Plaintiff moved to dismiss these affirmative defenses and also sought partial summary judgment on the issue of liability. Supreme Court denied the motion, prompting this appeal. Plaintiff contends that the release he signed on the morning of the practice session is void as against public policy by operation of statute (i.e., General Obligations Law § 5-326) and, therefore, Supreme Court erred in denying his motion to dismiss the affirmative defense of release. We agree. General Obliga*993tions Law § 5-326, by its express terms, is applicable to an owner or operator of a recreational facility who receives a fee from a user of such facility. Here, the cycle park was a place of amusement or recreation within the meaning of the statute and plaintiff paid a fee to defendants to participate in the scheduled “fun day.” Therefore, the release executed by him is void as against public policy and wholly unenforceable (see e.g. Williams v City of Albany, 271 AD2d 855, 856 [2000]; Petrie v Bridgehampton Rd. Races Corp., 248 AD2d 605, 605-606 [1998]; Owen v R.J.S. Safety Equip., 169 AD2d 150, 152-154 [1991], affd 79 NY2d 967 [1992]; Green v WLS Promotions, 132 AD2d 521 [1987], lv dismissed 70 NY2d 951 [1988]; Miranda v Hampton Auto Raceway, 130 AD2d 558 [1987]). Next, plaintiff contends that the assumption of risk doctrine does not preclude recovery by him because the presence of the utility vehicle on the blind side of a jump was a concealed and an unreasonably increased risk resulting in a dangerous condition over and above the usual dangers inherent in motocross racing. To be sure, the Court of Appeals has held that a participant in a sporting or recreational activity “will not be deemed to have assumed the risks of . . . concealed or unreasonably increased risks” (Morgan v State of New York, 90 NY2d 471, 485 [1997] [citations omitted]; see Sharrow v New York State Olympic Regional Dev. Auth., 307 AD2d 605, 608 [2003]). Here, we find that questions of fact exist concerning whether plaintiff assumed the injury-producing risk such that this defense should not have been dismissed and summary judgment was inappropriate for either side (see Williams v City of Albany, supra; Owen v R.J.S. Safety Equip., supra). To be sure, plaintiff was an experienced rider who was aware of the dangers inherent in the sport of motocross and who was also aware of the potential for the presence of other riders and vehicles on the track. In particular, he admitted seeing the subject utility vehicle cross the track while participants were operating their bikes on it. Defendants, however, conceded that utility vehicles on the track typically pose a danger to riders and that their employees are instructed to cross the track with such vehicles only if necessary and then only with caution. With respect to plaintiffs accident, defendants’ employee acknowledged that he had lost control of the utility vehicle causing it to roll backward onto the track. He was then unable to get it off the track before plaintiff came over the final jump. As noted, the vehicle was stalled on the blind side of a jump and no flag was utilized in time to warn plaintiff. Given these facts, we find that a jury should decide whether plaintiff assumed the risk of *994this particular injury (see id.) see also Turcotte v Fell, 68 NY2d 432, 439 [1986]). Cardona, EJ., Spain, Rose and Kane, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied plaintiffs motion to dismiss the affirmative defense of release; motion granted to that extent and said affirmative defense dismissed; and, as so modified, affirmed.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was observed by a female correction officer exposing his genitals and masturbating while on the telephone. As a result, he was charged in a misbehavior report with lewd exposure and harassment. He was found guilty of the charges following a tier III disciplinary hearing and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued. We confirm. The misbehavior report and petitioner’s own testimony, in which he admitted that he used the telephone for over 20 minutes without reaching anyone, constitute substantial evidence supporting the determination of guilt (see Matter of Lamage v Selsky, 26 AD3d 699, 700 [2006]; Matter of Guerin v Miller, 16 AD3d 799 [2005]). Petitioner’s claim of retaliation presented a question of credibility for the Hearing Officer to resolve (see Matter of Carrington v Goord, 20 AD3d 835, 835 [2005]). His assertion that he was not provided with an adequate Spanish-speaking interpreter is belied by the record (see Matter of Quintana v Goord, 284 AD2d 758, 758 [2001], lv denied 97 NY2d 605 [2001]). Petitioner’s remaining contentions have not been preserved for our review. Cardona, EJ., Peters, Spain, Mugglin and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Per Curiam. Respondent was admitted to practice by this Court in 1988 and maintains a law office in the Town of Liberty, Sullivan County. Petitioner commenced this disciplinary proceeding against respondent as the result of a complaint filed by a client who respondent represented in a custody matter. Petitioner charged respondent with neglecting her client’s case (see 22 NYCRR 1200.30 [a] [3]), failure to communicate with her client (see 22 NYCRR 1200.3 [a] [5]), failure to cooperate with petitioner’s investigations (see 22 NYCRR 1200.3 [a] [5]) and failure to comply with a subpoena issued by this Court (see 22 NYCRR 1200.3 [a] [5]; 806.4 [e]). Respondent’s failure to answer the petition prompted this motion by petitioner for a default judgment. Respondent has filed an affirmation and several letters in opposition to the motion. Notwithstanding respondent’s submissions, she has failed to provide any explanation for not timely filing and serving an answer to the petition. Moreover, a review of the record reveals that respondent failed to cooperate with petitioner in disclosing status reports concerning her representation of her client and failed to pay stenographic charges for her July 21, 2006 subpoena examination which were due August 11, 2006. Accordingly, petitioner’s motion for a default judgment is granted with respect to charge IVJ specification 5, failure to provide petitioner with updated information concerning her handling of her client’s case, and specification 6, failure to pay the stenographic fee incurred as a result of respondent’s July 21, 2006 subpoena examination, and respondent is found guilty of those specifications. Based on the above, we conclude that respondent should be suspended from the practice of law for six months, effective immediately, with the suspension stayed upon the following conditions: (1) that respondent remit $227 to petitioner for the outstanding stenographer’s bill within 30 days of the date of this decision; (2) that respondent file an attorney registration statement with the Office of Court Administration, pay the required registration fee, and provide petitioner with proof of such compliance within 30 days of the date of this decision; and (3) that respondent not be the subject of further professional discipline during the period of the stayed suspension. If respondent fails to remit the stenographer’s fee to petitioner, or fails to register and pay the required registration fee within the time *996required, petitioner shall promptly apply to this Court for an unconditional order of suspension. Mercure, J.P., Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that petitioner’s motion for a default judgment is granted to the extent that respondent is found guilty of charge iy specifications 5 and 6 as set forth in the petition; and it is further ordered that respondent is suspended from the practice of law for a period of six months, effective immediately, and until further order of this Court, which suspension is stayed upon the terms and conditions set forth in this decision.

Mugglin, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.), rendered March 10, 2006, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. Defendant appeals from a judgment of conviction for both possession and sale of a controlled substance (cocaine) in the third degree. At trial, the jury heard the testimony of the confidential informant, who made the purchase, and the testimony of several police officers—employed either by the City of Amsterdam, Montgomery County, or the State Police—who witnessed the controlled buy. Sentenced as a second felony offender to two concurrent eight-year prison terms, defendant appeals, claiming Rosario violations, Brady violations resulting in *997spoliation of exculpatory evidence, prosecutorial misconduct, police perjury and ineffective assistance of counsel. In response to a posttrial subpoena duces tecum, the State Police turned over certain investigative reports, a continuation sheet, supplemental reports, an arrest report and the report of the impoundment of defendant’s pickup truck. None of these documents was furnished to defendant prior to trial. Contrary to defendant’s argument, a Rosario violation no longer constitutes per se error requiring reversal of the conviction and a new trial (see CPL 240.75; People v Nelson, 1 AD3d 796, 797 [2003], lv denied 1 NY3d 631 [2004]; People v Felix-Torres, 286 AD2d 784, 784 [2001], lv denied 97 NY2d 681 [2001]). Instead, reversal is only required when the defendant affirmatively demonstrates a reasonable possibility that the nondisclosure materially contributed to the guilty verdict (see CPL 240.75). After meticulous review of the record, we are persuaded that the probative value of the State Police investigative reports and the vehicle impound report not turned over by the People was so insubstantial as to eliminate any reasonable possibility that their nondisclosure contributed to the verdict, compelling the conclusion that the failure to produce these items is harmless as a matter of law. Next, we reject defendant’s claim of spoliation of evidence as a result of claimed Brady violations. In essence, defendant’s claim is that when the police impounded his truck, they confiscated certain records and his cell phone from the cab of the truck and gave them to his daughter, from whom he is estranged, and that these items have disappeared. In particular, defendant claims that it would be possible to retrieve from his cell phone information which would prove that the confidential informant did not—as he testified he did—call him on the day of the controlled buy. While due process does require that the People provide a defendant with all requested exculpatory evidence relating to guilt or punishment (see Brady v Maryland, 373 US 83 [1963]; People v Scott, 88 NY2d 888, 890 [1996]), defendant has confused evidence which might be useful in affecting the credibility of a prosecution witness with evidence that is truly exculpatory—that is, that would establish his innocence. Moreover, defendant’s claim that the police photographed the controlled buy but intentionally failed to produce the photographs at trial is wholly speculative and finds no record support. We have examined defendant’s remaining contentions of *998prosecutorial misconduct, police perjury* and the ineffective assistance of counsel and find these equally unpersuasive. Crew III, J.E, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed. An Amsterdam detective who signed for the receipt of defendant’s truck from the towing company testified on cross-examination that he did not participate in the seizure of the truck.

Crew III, J.E Appeals (1) from a judgment of the County Court of Sullivan County (LaBuda, J.), rendered June 17, 2002, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the second degree and criminal possession of marihuana in the first degree, and (2) from a judgment and amended judgment of said court, rendered May 12, 2006 and June 21, 2006, which resentenced defendant. In January 2002, defendant was indicted and charged with one count each of criminal sale of a controlled substance in the first and second degrees, one count each of criminal possession of a controlled substance in the first and second degrees, criminal possession of a controlled substance in the third degree (two counts), criminal possession of marihuana in the first degree, criminal possession of a weapon in the third degree (two counts) and criminal use of drug paraphernalia in the second degree (two counts). Pursuant to a negotiated plea agreement, defendant pleaded guilty to criminal possession of a controlled substance in the second degree and criminal possession of marihuana in the first degree in full satisfaction of the indictment and was sentenced to SVs years to life in prison on his conviction of criminal possession of a controlled substance in the second degree and 3 to 9 years in prison for his conviction of criminal possession of marihuana in the first degree, said sentences to run concurrently. In July 2005, defendant moved to set aside or modify his sentence on his conviction for criminal possession of a controlled substance in the second degree pursuant to the provisions of the Drug Law Reform Act of 2005 (see L 2005, ch 643). Following a resentencing hearing, County Court vacated defendant’s sentence and resentenced him to a determinate sentence of 8V3 years in prison together with five years of postrelease supervision. Defendant now appeals from the original judgment of conviction, as well as the judgment and amended judgment resentencing him. We affirm. While there is merit to defendant’s claim that he did not effectively waive his right to appeal at the time of his *999plea and sentencing in 2002, our review of the record reveals that defendant knowingly and intelligently waived such right at the time of resentencing. Nevertheless, were we to consider his argument that the abbreviated sentence imposed was harsh and excessive, we would reject such contention. Defendant’s sentence of 3 to 9 years for his conviction of criminal possession of marihuana in the first degree and his resentence to a determinate prison term of 8V3 years for his conviction of criminal possession of a controlled substance in the second degree clearly were within the permissible statutory range, and we find no abuse of discretion or extraordinary circumstances warranting a reduction thereof (see People v Thompson, 33 AD3d 1131, 1131 [2006]). Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgments and amended judgment are affirmed.

Rose, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered November 21, 2003, upon a verdict convicting defendant of the crimes of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Defendant was arrested and interviewed by police in connection with a shooting that seriously wounded one victim and killed another. Although he had been identified by the wounded victim, he was not arraigned until some 13 hours later, after he gave a statement that he had fired the shots in self-defense. Defendant was indicted for murder in the second degree (two counts), attempted murder in the second degree, assault in the first degree, reckless endangerment in the first degree and crim- *1000inal possession of a weapon in the second and third degrees. His motion to suppress his confession was denied, the case proceeded to trial and, near the end of the second day of deliberations, the jury informed County Court that it had reached a unanimous verdict of guilty on the last two counts of the indictment, but was deadlocked as to the other charges. After consulting with counsel, County Court accepted the partial verdict and instructed the jury to continue deliberations. The jury later acquitted defendant of the remaining charges. Defendant’s motion to suppress his statement as involuntary was properly denied because, contrary to his contention, his arraignment was not unnecessarily delayed in violation of CPL 140.20 (1). Even though the surviving victim promptly identified defendant as the shooter, further investigation was necessary because he initially claimed an alibi that could not readily be verified, and police were attempting to locate and interview additional witnesses (see People v Haywood, 280 AD2d 282, 282 [2001], lv denied 97 NY2d 641 [2001]; People v White, 259 AD2d 508, 508 [1999], lv denied 93 NY2d 981 [1999]). In any event, the length of the delay is not the determinative factor, particularly where, as here, defendant was duly advised of his rights and admittedly waived them in his initial interview with police, he was then in continuous custody but not continuously interrogated or threatened, and he was not deprived of food, water or rest (see People v Jackson, 178 AD2d 851, 852-853 [1991], lv denied 79 NY2d 1002 [1992]; People v Benitez, 128 AD2d 628, 628 [1987]; People v Van Buren, 115 AD2d 185, 185 [1985], lv denied 67 NY2d 766 [1986]). In short, there is no evidence of coercion here and, inasmuch as this delay was justified, the testimony of one of the investigating officers that he wanted another interview with defendant before arraignment does not establish unnecessary delay (see People v Ortlieb, 84 NY2d 989, 990 [1994]; People v Prude, 2 AD3d 1318, 1319 [2003], lv denied 3 NY3d 646 [2004]; People v White, supra at 508; see also People v Ramos, 99 NY2d 27, 37 [2002]). Nor do we find merit in defendant’s alternate contention that the 11-hour delay between Miranda warnings and his confession was so excessive as to require a repetition of the warnings (see People v Lee, 30 AD3d 760, 762 [2006], lv denied 7 NY3d 850 [2006]; People v Manley, 40 AD2d 907, 907 [1972]; see also People v Zappulla, 282 AD2d 696, 697-698 [2001]). Defendant also contends that County Court abused its discretion in accepting the partial verdict and then directing the jury to continue deliberations. We note, however, that this issue was not preserved for our review by an objection made on the record *1001(see People v Hooks, 305 AD2d 166, 167 [2003], lv denied 100 NY2d 562 [2003]). In any event, even if we were to review it, we would conclude that defendant has failed to demonstrate an abuse of the broad discretion conferred by CPL 310.70 (1) (b) (see People v Wincelowicz, 258 AD2d 602, 603 [1999], lv denied 93 NY2d 930 [1999]). We have considered defendant’s remaining contentions, including his claim of ineffective assistance of counsel, and find them also without merit. Cardona, EJ., Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed.

Cardona, P.J. Appeals (1) from a judgment of the County Court of Broome County (Smith, J.), rendered February 20, 2004, upon a verdict convicting defendant of the crimes of murder in the second degree and conspiracy in the second degree, and (2) from a judgment of said court, rendered July 20, 2004, which resentenced defendant. At defendant’s behest, Jahsib Headley and Craig Alexander fired numerous shots at Ronnie Davis as he stood on Chenango Street in the City of Binghamton, Broome County, resulting in *1002his death. In fact Headley1 and Alexander2 shot the wrong man; the intended victim was Ratike Wimberly, who defendant claimed had shown him “disrespect” at a nightclub. Following a jury trial, defendant was convicted of murder in the second degree and conspiracy in the second degree. He was sentenced to consecutive prison terms of 25 years to life on the murder charge and 8 to 16 years on the conspiracy charge. Defendant argues that the verdict was not supported by legally sufficient evidence. We do not agree. Several witnesses testified that defendant was angry at Wimberly and had stated that he was bringing up some people from New York City to take care of him. Defendant’s neighbor, Lisa Mack, indicated that she drove defendant to a Western Union office where he wired money to Headley and Alexander, who arrived in Binghamton the following day. Mack thereafter declined defendant’s request to drive Headley and Alexander to Chenango Street where they would shoot someone. Defendant then threatened to have her boyfriend shot and to kill her if she said anything. Mack and another person, accomplice Matthew Young, each overheard Headley and Alexander discussing with defendant plans to “get” Wimberly. Young also testified that on the night of the shooting he drove Headley and Alexander to the vicinity of the crime. They exited the car and moments later Young heard gunshots. Headley and Alexander returned to the car and Young drove them to his niece’s house where they hid two guns. According to Young, defendant arrived half an hour later and told them that they shot the wrong man, to which Headley responded that they shot the man defendant showed to them. Several days later, defendant called Young and asked him to bring his guns to him in New York City—the same guns used in the shooting. Viewed in the light most favorable to the People (see People v Plaisted, 2 AD3d 906, 907 [2003], lv denied 2 NY3d 744 [2004]), the evidence sufficiently establishes that defendant intended Wimberly’s death, he solicited, requested or commanded Headley and Alexander to shoot him, and he intentionally aided them in that undertaking (see Penal Law §§ 20.00, 125.25 [1]; *1003People v Rosado, 26 AD3d 532, 533 [2006], lv denied 7 NY3d 762 [2006]; People v Andrews, 274 AD2d 835, 837 [2000], lv denied 95 NY2d 960 [2000]; People v Rosado, 244 AD2d 772, 773 [1997], lv denied 91 NY2d 977 [1998]). Contrary to defendant’s contention, the People were not required to prove that defendant intended to kill Davis, only that “[w]ith intent to cause the death of another person, he cause [d] the death of such person or of a third person” (Penal Law § 125.25 [1] [emphasis added]; see People v Fernandez, 88 NY2d 777, 781-782 [1996]). The evidence also sufficiently proves defendant’s participation in the conspiracy to commit murder (see Penal Law §§ 105.15, 105.20; People v Faccio, 33 AD3d 1041, 1043 [2006]). Despite defendant’s argument to the contrary, the People were not required to prove that the object of the conspiracy was attained, only that an overt act, such as defendant directing Headley and Alexander to travel to Binghamton, was completed in furtherance of the conspiracy (see People v Arroyo, 93 NY2d 990, 991-992 [1999]; People v Ribowsky, 77 NY2d 284, 292-293 [1991]). Furthermore, upon our own independent review of the record, we conclude that the verdict is supported by the weight of the evidence (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Doherty, 37 AD3d 859, 860 [2007]). Next, we are unpersuaded by defendant’s contention that County Court should not have allowed the admission of certain evidence of uncharged crimes. Specifically, defendant challenges Mack’s testimony regarding defendant’s attempts to cover up his role in the murder, and Young’s testimony regarding his transport of defendant’s guns to Brooklyn and his transport of cocaine to Binghamton for sale on defendant’s behalf. We find the evidence to be inextricably intertwined with the charged crimes and highly probative of defendant’s complicity in the murder and the conspiracy, outweighing any claim of prejudice (see People v Faccio, supra at 1042; People v Williams, 28 AD3d 1005, 1008 [2006], lv denied 7 NY3d 819 [2006]). Defendant also contends that County Court should have given the jury an interested witness charge with respect to Young, since Young was testifying pursuant to a favorable arrangement with the People. However, that charge was not requested at trial and, to the extent defendant claims that defense counsel’s failure to request it constituted ineffective assistance, we note that defendant was not prejudiced herein since the court charged the jury on both credibility and accomplice testimony. Taken together, those charges were sufficient to inform the jury of the need to scrutinize Young’s testimony (see People v Inniss, *100483 NY2d 653, 658-659 [1994]; People v Walker, 274 AD2d 600, 601 [2000], lv denied 95 NY2d 908 [2000]). Defendant’s challenges to his sentence are likewise unavailing. Consecutive sentences were permitted here (see Penal Law § 70.25 [1], [2]), and nothing in the record indicates that those sentences were imposed in retaliation for defendant’s protestations of innocence (see People v Chappelle, 14 AD3d 728, 729 [2005], lv denied 5 NY3d 786 [2005]; People v Fletcher, 309 AD2d 1085, 1086 [2003], lv denied 1 NY3d 571 [2003]) or that any extraordinary circumstances exist warranting modification in the interest of justice (see People v Hansen, 290 AD2d 47, 57 [2002], affd 99 NY2d 339 [2003]). Defendant’s remaining contentions, advanced in his pro se brief, are unpreserved and, in any event, without merit. Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the judgments are affirmed. . Headley was convicted at a separate trial of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree stemming from Davis’s murder (People v Headley, 38 AD3d 1007 [2007] [decided herewith]). . Alexander was convicted, upon his guilty plea, of manslaughter in the first degree stemming from Davis’s murder (People v Alexander, 21 AD3d 1223 [2005], lv denied 5 NY3d 881 [2005]).

Mugglin, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered June 24, 2004, upon a verdict convicting defendant of the crime of murder in the second degree. On this appeal from a verdict convicting him of murdering his mother, defendant makes four arguments urging reversal. First, he argues that the police lacked probable cause to effect his warrantless arrest and, therefore, his statements and certain physical evidence should have been suppressed. We disagree. The officer who ordered defendant’s arrest knew that the victim’s granddaughter had called the victim’s residence and someone picked up the telephone, but did not speak; the granddaughter heard defendant (her uncle) shout “m . . . f . . . , get away from it” and the granddaughter then heard a loud crash and hung up. When she attempted to call back, the line was busy; alarmed, she called both her boyfriend and her brother (who also lived at the premises with the victim and defendant). The boyfriend saw defendant, wearing dark clothing and carrying a blue duffle bag, leaving the rear of the premises. The brother entered the premises and, after discovering the victim’s body, armed himself with a knife and set out to find defendant. While searching for defendant, he stopped at a police station and reported his findings and asked the police to go to the premises. When the brother returned to the premises, the police were there and had observed the victim—who had suffered a gaping wound to the head and neck—lying next to the telephone and the receiver had not been recradled. Such evidence is adequate for the police to reasonably believe that a crime was committed and that defendant committed it (see CPL 140.10 [1] [b]; People v Curry, 294 AD2d 608, 610 [2002], lv denied 98 NY2d 674 [2002]; People v Hill, 146 AD2d 823, 824 [1989], lv denied 73 NY2d 1016 [1989]). Although neither arresting officer personally possessed sufficient knowledge, their fellow officer who ordered the arrest did (see People v Ketcham, 93 NY2d 416, 419 [1999]; People v Whitehead, 23 AD3d 695, 696 [2005], lv denied 6 NY3d 840 [2006]). Moreover, when approached, defendant fled and attempted to hide. While this alone would not establish probable cause, it adds to the body of knowledge of the arresting officers (see People v Tillie, 239 AD2d 670, 672 [1997], lv denied 91 NY2d 881 [1997]). Second, defendant argues that County Court’s Sandoval ruling resulted in an unfair trial. Although defendant’s rape and robbery convictions were approximately 20 years old, their age *1006does not automatically preclude use on cross-examination, particularly where a Sandoval compromise is employed (see People v Teen, 200 AD2d 785, 786 [1994], lv denied 83 NY2d 859 [1994]). Notably, defendant had been released from prison as a result of these convictions only nine months prior to the present offense. Given this fact and the court’s decision to preclude any inquiry into the underlying facts of the convictions, we discern no error (see People v Layman, 284 AD2d 558, 560 [2001], lv denied 96 NY2d 903 [2001]), since the prior convictions were probative of defendant’s willingness to place his own interests above that of others, making them probative of his credibility (see People v Dunbar, 31 AD3d 895, 896 [2006], lv denied 7 NY3d 867 [2006]). Third, by the application of well-established standards (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Khuong Dinh Pham, 31 AD3d 962, 964 [2006]; People v Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]; People v Walton, 16 AD3d 903, 904 [2005], lv denied 5 NY3d 796 [2005]), we find no merit to defendant’s argument that his conviction was not supported by legally sufficient evidence or that it was against the weight of the evidence. In this regard, we first note that defendant does not point to conflicts in the record, but argues the absence of any eyewitness testimony, the absence of clear evidence of motive and the lack of any definitive admission of guilt. We are unpersuaded. In addition to the evidence supporting the issue of probable cause—hereinabove described—which the People introduced at trial, the People also established that defendant told police that he was arguing with his mother and the next thing he knew she was bleeding from her head and he had taken away her pain. Also, the physical evidence established that the victim died as a result of a blow from a sharp, blunt instrument, the police recovered an axe from behind the residence, and DNA found on the head of the axe and on the clothing that defendant was seen wearing as he left the premises was that of the victim. Lastly, defendant argues that County Court denied him a fair trial by allowing into evidence autopsy photographs and photographs of a sickle, hammer and a red baseball glove, as the autopsy photographs were too inflammatory and the other photographs were irrelevant and, therefore, prejudicial. No objection to the photograph of the glove was made so that issue is unpreserved (see People v Brown, 23 AD3d 703, 705 [2005], lv denied 6 NY3d 810 [2006]). The photographs of the sickle and hammer were corroborative of the testimony of one of the People’s witnesses and were, therefore, admissible in the court’s *1007discretion (see People v Hicks, 20 AD3d 695, 697 [2005], lv denied 5 NY3d 828 [2005]). The autopsy photographs were not admitted for the sole purpose of arousing the emotions of the jury (see People v Wood, 79 NY2d 958, 960 [1992]; People v Pobliner, 32 NY2d 356, 369-370 [1973]; People v Mastropietro, 232 AD2d 725, 726 [1996], lv denied 89 NY2d 1038 [1997]), but tended to prove a material fact in issue (see People v Stevens, 76 NY2d 833, 835 [1990]). Notably, only three of approximately 30 autopsy photographs were used and, showing the severity of the wound, they were probative on the issue of defendant’s intent to kill. Cardona, EJ., Mercure, Carpinello and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Cardona, EJ. Appeal from a judgment of the County Court of Broome County (Smith, J), rendered March 10, 2004, upon a verdict convicting defendant of the crimes of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. Mistakenly believing Ronnie Davis to be a man called Ratike, defendant and another man, Craig Alexander, fired numerous rounds from a 9mm handgun and a .32 caliber handgun at Davis as he stood outside a Vinny Mart in the City of Binghamton, Broome County. Davis died as a result of his injuries. Following a jury trial, defendant was convicted of murder in the second degree, conspiracy in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree, and sentenced to an aggregate prison term of 33 years to life. Defendant argues that the verdict is against the weight of the evidence. Specifically, he contends that accomplice Matthew Young’s testimony should be discredited because he was testifying pursuant to an agreement with the District Attorney’s office, that police informant Lisa Mack should be disbelieved because she had previously sold marihuana for defendant’s brother, Devaughn Ballard,1 and had received favorable treatment from the District Attorney’s office, and that police *1008investigator Brett Surace either coerced defendant’s oral confession or concocted it to conform with the other evidence in the case. At trial, Young testified that several weeks before the shooting, he overheard defendant, Ballard and Alexander2 discussing plans to kill Ratike, who Ballard claimed had been disrespectful to him. On the night of the shooting, Young drove defendant and Alexander to the vicinity of the shooting and parked the car; defendant and Alexander exited the car and Young heard gunshots moments later. When they returned to the car, Young drove them to his niece’s house where they hid the guns. Ballard arrived shortly thereafter and told them they had shot the wrong man. Mack testified, among other things, that she saw Young, Alexander, defendant and Ballard together in Ballard’s apartment around 8:00 p.m. on the night of the shooting. She never saw defendant or Alexander after that, but Ballard was subsequently in telephone contact with her. Those conversations were taped after she spoke with the police. Surace testified that when defendant was picked up in Brooklyn and taken to the local precinct for questioning, he first denied involvement in the shooting; then, after other officers left the room, he began to cry and evinced concern for his young daughter. Defendant then admitted, among other things, that Ballard sent him after Ratike and that he fired the .32 caliber handgun. Surace testified that the oral confession was not taped because, due to crowding at the precinct, the interview took place in an office not equipped with recording equipment. When he left the office and returned with paper, defendant refused to execute a written confession and instead asked for an attorney. We note that credibility determinations are within the province of the jury (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Doherty, 37 AD3d 859, 860 [2007]; People v Hargett, 11 AD3d 812, 814 [2004], lv denied 4 NY3d 744 [2004]). According due deference to those determinations, upon our independent review of the record we conclude that the verdict was not against the weight of the evidence (see People v Bleakley, supra at 495; People v Doherty, supra at 860). Finally, defendant contends that his conviction of criminal possession of a weapon in the third degree (see Penal Law *1009§ 265.02 [former (4)]) should, be reversed because that crime is a lesser included offense of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [former (2)]), of which he was also convicted. This argument is without merit (see People v Okafore, 72 NY2d 81, 89 n 3 [1988]; People v Johnson, 24 AD3d 958, 959 [2005], lv denied 6 NY3d 814 [2006]). Furthermore, under the circumstances of this case, we decline to reverse the conviction in the interest of justice. Peters, Spain, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed. . Ballard was convicted at a separate trial of murder in the second degree and conspiracy in the second degree stemming from Davis’s murder (People v Ballard, 38 AD3d 1001 [2007] [decided herewith]). . Alexander was convicted, upon his guilty plea, of manslaughter in the first degree stemming from Davis’s murder (People v Alexander, 21 AD3d 1223 [2005], lv denied 5 NY3d 881 [2005]).

Carpinello, J. Appeal from a judgment of the County Court of Broome County (Mathews, J.), rendered August 29, 2005, convicting defendant upon his plea of guilty of the crime of criminal sale of a controlled substance in the third degree. On December 15, 2004, a seven-count indictment was handed up against defendant charging him with numerous drug-related offenses. The first two counts stem from his involvement in the sale of cocaine to a confidential informant on August 7, 2003 while inside a vehicle that his girlfriend was driving. The following day, a search warrant was executed on this vehicle at which time defendant was found to be in possession of a substantial amount of cash and his girlfriend was found to be in possession of a substantial amount of cocaine. At this time, defendant’s girlfriend provided police with a particular Broome County address as her residence and consented to a search of it where additional quantities of cash, cocaine and drug paraphernalia were discovered. This residence had recently been leased by defendant. The remaining five counts of the indictment stem from defendant’s involvement in the possession and sale of these particular drugs and drug paraphernalia. The December 2004 indictment was the third indictment handed up against defendant. The first indictment, which only *1010contained offenses pertaining to the August 8, 2003 seizure of drugs and drug paraphernalia, was dismissed for legally insufficient evidence before the grand jury, as well as inadequate jury instructions. Approximately one week later, the People were granted permission to resubmit the case, which resulted in a second indictment. The second indictment again only contained charges pertaining to the August 8, 2003 seizure of drugs and drug paraphernalia. This indictment was thereafter superceded by the December 2004 indictment, which, as noted, contained the two additional charges pertaining to the August 7, 2003 sale of cocaine to the confidential informant. Following various unsuccessful pretrial motions (including a motion to suppress the evidence seized from the subject residence, a motion for release from custody and motions to dismiss the second and third indictments based on speedy trial violations), defendant agreed to plead guilty to one count of criminal sale of a controlled substance in the third degree in satisfaction of the third indictment, as well as another indictment charging him with tampering with a witness, in exchange for a 10-year sentence and three years of postrelease supervision. In pleading guilty, defendant allocuted to the August 7, 2003 sale of cocaine to the confidential informant. Following an unsuccessful motion to withdraw this plea, he was sentenced in accordance with the agreement and now appeals. We affirm. Defendant claims that his constitutional right to a speedy trial was violated with respect to those charges in the third indictment pertaining to the August 7, 2003 sale of cocaine to the confidential informant. In weighing the factors relevant to such a determination (see People v Taranovich, 37 NY2d 442, 445 [1975]), we find the motion to dismiss was properly denied. According to the People, in an effort to protect the confidential informant, they chose not to submit the subject charges to the grand jury. Upon learning in early December 2004 that defendant knew of this person’s identity—indeed, he had made a threat against her—and upon confirming her willingness to testify, they indicted on the sale, which was well within the statute of limitations (see People v Cintron, 7 AD3d 827, 828 [2004]). Notably, County Court credited this explanation and found it to be legitimate under the circumstances (see People v Kirkley, 295 AD2d 759, 760 [2002], lv denied 98 NY2d 711 [2002]; cf. People v Townsend, 270 AD2d 720, 721 [2000]). Upon our review of the record, we agree that good cause has been demonstrated by the People (see People v Morris, 25 AD3d 915, 916 [2006], lv denied 6 NY3d 851 [2006]). To this end, we note that “[fin ascertaining the reasonable*1011ness of a delay in a particular case, we consider not only the length and professed explanation for the delay, but also the nature of the underlying charge, the duration of the defendant’s related incarceration and any impairment to the defense resulting from the delay” (id. at 916). Here, the subject charges were indeed serious (see id.; People v Hawkins, 290 AD2d 320, 321 [2002]), defendant’s incarceration was not in any way attributable to these charges (see e.g. People v Williams, 16 AD3d 980, 981 [2005], lv denied 5 NY3d 771 [2005]; People v Cintron, supra; People v Hawkins, supra) and County Court was unconvinced that there had been significant prejudice to the defense case as a result of the delay. We find no basis upon which to quarrel with this latter assessment. In short, upon a careful balancing of all relevant factors, we are unable to conclude that County Court erred in finding that defendant’s right to a speedy trial was not violated (see e.g. People v Faulkner, 36 AD3d 1009, 1010 [2007]; People v Morris, supra at 917; People v Alger, 23 AD3d 706, 706-707 [2005], lv denied 6 NY3d 845 [2006]; People v Cintron, supra; People v Johnson, 226 AD2d 806, 807-808 [1996], lv denied 88 NY2d 937 [1996]). We are also unpersuaded by defendant’s claim that the motion to suppress evidence seized from his residence should have been granted because his girlfriend was coerced into signing a consent form for the search and because she did not have actual or apparent authority to so consent. Evidence adduced at the suppression hearing, and specifically credited by County Court, established that defendant’s girlfriend willingly and voluntarily signed the consent form—i.e., her execution of it was free of coercive police conduct (see People v Gonzalez, 39 NY2d 122, 128 [1976] )—and that the circumstances reasonably indicated that she had the authority to so consent (see People v Adams, 53 NY2d 1, 8 [1981], cert denied 454 US 854 [1981]). Although defendant’s girlfriend gave conflicting testimony on this issue, we find County Court’s credibility determination to be supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977] ). Next, by pleading guilty, defendant forfeited the right to appeal certain issues, namely, that the failure to release him from custody following dismissal of the first indictment requires dismissal of the subsequent indictments, that his statutory right to a speedy trial was violated and that the second indictment should have been dismissed for legally insufficient evidence (see e.g. People v Hansen, 95 NY2d 227, 230-233 [2000]; People v Taylor, 65 NY2d 1, 5-6 [1985]). To be sure, these rights were forfeited notwithstanding the misstatement made by County *1012Court that defendant would have the right to appeal “any” issue that had been decided prior to the plea (see People v DiDonato, 87 NY2d 992 [1996]; People v O’Brien, 56 NY2d 1009, 1010 [1982]; People v Attanasio, 240 AD2d 877 [1997]). In any event, were we to review each of these contentions, we would find that none has merit. Defendant’s remaining contentions, including the claims that County Court erred in denying his motion to withdraw his guilty plea and that the agreed-upon sentence of 10 years in prison is harsh and excessive, have been reviewed and found to be without merit. Mercure, J.E, Peters, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed.

Carpinello, J. Appeal from a judgment of the County Court of Schenectady County (Catena, J.), rendered January 6, 2005, upon a verdict convicting defendant of the crime of robbery in the first, degree. A convenience store clerk was robbed at gunpoint one evening by a man wearing boots, a shiny black jacket with zippers, dark pants, a black “skully” hat, gloves and a bandana covering most of his face. The robber was short and skinny. The clerk placed between $700 and $800 in cash inside a bag, which included a single $100 bill. After stealing two packages of cigarettes, the robber fled on foot toward a pedestrian tunnel. The clerk immediately contacted police and gave a description of the suspect, as well as the direction in which he fled. Several police officers, with the assistance of a trained police dog who tracked the suspect’s scent, surrounded the area. Approximately 25 minutes after the robbery, defendant was found hiding on the ground behind a garage wearing a reversible tan jacket. Within a few minutes thereafter, the clerk identified him as the robber by his clothing, height and skin *1013complexion. The clerk specifically identified the black side of the reversible jacket as being that worn by the robber. Following his arrest, over $250 in cash was found on defendant, including a $100 bill. Moreover, gloves and a black hat were found on the ground in close proximity to where he was hiding. At trial, defendant did not deny that he was running from police that evening. He claimed, however, that he had been smoking marihuana and did not want to be caught. He denied being inside the store or robbing it. He was indicted on robbery in the first degree and found guilty as charged by a jury. He now appeals. Defendant asserts that the verdict was not supported by legally sufficient evidence and was also against the weight of the evidence. Specifically, defendant argues that the People failed to establish that he was the actual perpetrator, pointing out that, upon his arrest, the police never retrieved a gun, cigarettes or a money bag and also pointing out that he had considerably less cash on his person than that stolen. A jury verdict is supported by legally sufficient evidence when “there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury” (People v Bleakley, 69 NY2d 490, 495 [1987]). Although a bandana covered most of the perpetrator’s face, the clerk identified defendant as the robber by the clothing he wore that night, as well as his general body size and skin tone. The clerk also identified the gloves and black hat recovered near where defendant was hiding as those worn by the robber. Notably, defendant himself admitted that these items belonged to him. In addition to the clerk’s testimony, several officers testified about the search that ensued immediately following the robbery and their ultimate apprehension of defendant hiding behind the garage a short distance from the store. There was also evidence that defendant admitted to a police detective that he was in the store that night. Given this evidence, we conclude that there is a valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury, namely, that defendant was the person who held up the store (see People v Hutcherson, 25 AD3d 912, 914 [2006], lv denied 6 NY3d 849 [2006]; People v Ponder, 19 AD3d 1041, 1042 [2005], lv denied 5 NY3d 809 [2005]; People v Lewis, 287 AD2d 888, 889 [2001], lv denied 97 NY2d 684 [2001]). We further conclude, after weighing the relative probative force of the conflicting testimony and inferences drawn therefrom (see People v Bleakley, supra at 495), that the verdict is not against the weight of the evidence. Although defendant denied *1014committing the robbery and offered an explanation for why he ran and hid from police that night, the jury obviously did not credit his testimony. Even assuming that a different verdict would not have been unreasonable, we conclude that there is no basis upon which to determine that the jury failed to give the evidence the weight it should be accorded (see People v Bleakley, supra; see also People v Hutcherson, supra; People v Ponder, supra; People v Lewis, supra). Defendant’s remaining claims, to the extent properly before us, have been reviewed and rejected as being without merit. Cardona, EJ., Peters, Spain and Kane, JJ., concur. Ordered that the judgment is affirmed.

Spain, J. Appeal from a judgment of the Supreme Court (Main, Jr., J.), rendered September 14, 2005 in Franklin County, convicting defendant upon his plea of guilty of the crime of reckless endangerment in the first degree and driving while intoxicated. Defendant waived indictment in Supreme Court and pleaded guilty to a superior court information charging him with reckless endangerment in the first degree and driving while intoxicated with the understanding that the People would be recommending a sentence of 2 to 4 years in prison, but the court was making no sentencing commitment. Sentencing was deferred, however, to allow defendant to participate in a Drug Court program which—should he successfully complete the program—presented defendant with the opportunity to withdraw his felony plea and, instead, plea to a misdemeanor. Defendant failed to comply with the program requirements and was sentenced on his guilty plea to 2 to 6 years in prison. On this appeal, defendant maintains that he was denied the effective assistance of counsel and the court improperly denied his motion to withdraw his guilty plea because it was not knowingly and voluntarily entered. We affirm. Initially, we note that a sentencing court is not bound by the People’s recommendation and must exercise its discretion in determining an appropriate sentence (see People v McKenzie, 28 AD3d 942, 943 [2006], lv denied 7 NY3d 759 [2006]). Defendant contends that his plea was not informed because the plea proposal and Drug Court participation contract erroneously stated that he was pleading guilty to a class E felony and subject only to a 2- to 4-year maximum sentence. A review *1015of the record reveals that, after defendant signed these documents and prior to his plea, Supreme Court fully informed defendant that he was pleading to a class D felony which carried a potential maximum sentence of seven years, emphasizing that the 2- to 4-year sentence was a recommendation by the People to which the court had made no commitment (cf. People v Martin, 17 AD3d 775, 775-776 [2005]). Following that admonition, defendant assured the court that he understood the ramifications of entering a guilty plea. Indeed, defendant’s unequivocal responses during his entire plea colloquy reveal his willingness to voluntarily and knowingly enter into that agreement. As such, we find no basis to disturb the court’s discretionary decision to deny defendant’s motion to withdraw his plea (see People v Bowman, 34 AD3d 935, 937 [2006]; People v Cherry, 12 AD3d 949, 949 [2004], lv denied 4 NY3d 797 [2005]). Defendant’s contention regarding the effectiveness of his counsel, who negotiated an advantageous plea agreement on his behalf that included a squandered opportunity for defendant to have his felony conviction reduced to a misdemeanor via the successful completion of his Drug Court program, is similarly unpersuasive (see People v Nugent, 31 AD3d 976, 977 [2006]). Mercure, J.P., Crew III, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed.

Spain, J. Appeal from a judgment of the County Court of Chenango County (Sullivan, J.), rendered September 16, 2005, upon a verdict convicting defendant of the crime of criminal possession of stolen property in the third degree. Defendant was charged with burglary in the third degree, grand larceny in the third degree and criminal possession of stolen property in the third degree after several motorcycles, tools and various other items—which had been reported stolen from the property of a seasonal neighbor of defendant—were found in and around defendant’s trailer. After the victim of the burglary reported the items missing, the police interviewed an acquaintance of the victim who told police that, the day prior to the burglary, he had taken defendant to the victim’s property to ride dirt bikes and defendant had been inquisitive about the victim’s possessions. Thereafter, the police sought to question defendant at his home. Defendant lived on a 40-acre parcel of land belonging to his mother which accommodated numerous trailers, including one owned by defendant. When the police knocked at defendant’s door, they heard movement within, followed by a loud noise from the back of the trailer. The officers went around to the back and found a window open and surmised that someone had vacated the trailer through the window and gone into the woods. In the course of their visit, the officers noticed several motorcycles and other items which matched the description of the property reported stolen. These items were later identified by the victim. The next day, the police returned with a search warrant and recovered more stolen property and found, in the trailer, boots belonging to defendant bearing a distinctive pattern on the sole which matched the pattern of a boot print found at the scene of the burglary. When police returned with a warrant for defendant’s arrest the following day, defendant was outside the trailer and escaped into the woods. Approximately one week later, defendant surrendered to police. Following a jury trial, defendant was acquitted of the burglary and larceny counts, but convicted of criminal possession of stolen property in the third degree and sentenced to 2 to 6 years in prison. On defendant’s appeal, we now affirm. The conviction is supported by legally sufficient evidence. “A person is guilty of criminal possession of stolen property in the third degree when he [or she] knowingly possesses stolen property, with intent to benefit himself [or herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars” (Penal Law § 165.50). When the evidence is *1017considered in the light most favorable to the prosecution, the conviction must be upheld on appeal if there exists “any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged” (People v Bleakley, 69 NY2d 490, 495 [1987] [citation omitted]; see People v Khuong Dinh Pham, 31 AD3d 962, 964 [2006]). At this juncture, defendant does not dispute that the property recovered at defendant’s trailer was stolen or that its value exceeded the $3,000 threshold amount. Further, defendant’s knowledge and intent are properly inferable from record evidence demonstrating his control of the premises where the property was recovered, the fact that one of the motorcycles was discovered in the process of being “stripped” of its identifying attributes, and his flight from police (see People v Manini, 79 NY2d 561, 573-574 [1992]; People v Baskerville, 60 NY2d 374, 382 [1983]; People v Arrington, 31 AD3d 801, 803 [2006], lvs denied 7 NY3d 865, 868 [2006]; People v Mangual, 13 AD3d 734, 736 [2004], lv denied 4 NY3d 800 [2005]). Defendant’s contention that the verdict is against the weight of the evidence is also unavailing. As a different verdict would not have been unreasonable, we must, “like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” and determine whether the trier of fact gave the evidence the weight it should be accorded (People v Bleakley, supra at 495, quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]). Here, ample evidence introduced at trial established that defendant controlled and occupied the premises where the stolen items were recovered. Although defendant and other interested witnesses testified that other individuals had been staying in defendant’s trailer at the time the stolen items were recovered, given the inconsistencies in this testimony, the interest of the witnesses, and evidence of their criminal histories and/or drug use, we conclude that the jury reasonably resolved this credibility determination and found that defendant knowingly and unlawfully possessed the items which had been recently stolen from his neighbor’s property (see People v Abuiz, 31 AD3d 889, 889-890 [2006]; People v Boodrow, 30 AD3d 758, 759 [2006], lv denied 7 NY3d 900 [2006]; People v Jackson, 282 AD2d 830, 832 [2001], lv denied 96 NY2d 902 [2001]). As defendant’s remaining contentions on appeal, including those raised in his pro se submission to this Court, were not *1018preserved for appellate review by an appropriate objection at trial, we address them only in the context of deciding whether defendant was afforded the effective assistance of counsel (see CPL 470.05 [2]; People v Singh, 16 AD3d 974, 977 [2005], lv denied 5 NY3d 769 [2005]; People v Van Guilder, 282 AD2d 773, 773 [2001], lv denied 96 NY2d 836 [2001]).* First, defense counsel’s failure to request an additional circumstantial evidence charge in light of the fact that the evidence pertaining to the criminal possession of stolen property count was entirely circumstantial—although a significant oversight (see People v Brian, 84 NY2d 887, 889 [1994]; People v David, 234 AD2d 787, 790 [1996], lv denied 89 NY2d 1034 [1997])—did not render defense counsel’s assistance ineffective. Indeed, given the strong evidence of defendant’s guilt on the possession charge and the fact that the court in all other respects properly instructed the jury concerning the use of circumstantial evidence—including the fact that any inference of guilt to be drawn from circumstantial evidence must be an inference of guilt beyond a reasonable doubt—we conclude that had the specific charge been given, “there was not a reasonable likelihood that the error alone changed the outcome of the case” (People v Gunney, 13 AD3d 980, 983 [2004], lv denied 5 NY3d 789 [2005]; see People v Brian, supra at 889; People v Lopez, 28 AD3d 234, 235 [2006], lv denied 7 NY3d 758 [2006]; People v Douglas, 296 AD2d 656, 657-658 [2002], lv denied 99 NY2d 535 [2002]). That defense counsel’s performance resulted in a less than perfect trial did not amount to ineffective assistance of counsel where the error was not completely dispositive of the case and “the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see People v Sieber, 26 AD3d 535, 536 [2006], lv denied 6 NY3d 853 [2006]; People v Glanda, 18 AD3d 956, 960 [2005], lvs denied 6 NY3d 754 [2005], 6 NY3d 848 [2006]; People v Martinez [Cruz], 9 AD3d 679, 681 [2004], lv denied 3 NY3d 705, 709 [2004]; People v Wright, 5 AD3d 873, 877 [2004], lv denied 3 NY3d 651 [2004]; cf. People v Turner, 5 NY3d 476, 480 [2005]; People v Smith, 30 AD3d 693, 693-694 [2006]). The representation proffered by counsel was clearly meaningful; he presented a plausible defense supported by the testimony of five witnesses, successfully voiced objections during trial and, most significantly, succeeded in *1019obtaining a not guilty verdict on the two more serious charges for which defendant was charged. Defendant’s remaining challenges to County Court’s charge to the jury are without merit. Likewise, defendant’s contention that he was deprived of a fair trial due to prosecutorial misconduct is unavailing as the comments made by the prosecutor during voir dire and during summation with which defendant takes issue were either appropriate or, if improper, not so prejudicial to defendant as to render counsel’s failure to object to them evidence of ineffective assistance of counsel (see People v Barnes, 80 NY2d 867, 868 [1992]; People v Jordan, 34 AD3d 927, 930-931 [2006]; People v Stasiak, 25 AD3d 1025, 1026-1027 [2006]; People v McCombs, 18 AD3d 888, 890 [2005]; People v Greene, 13 AD3d 991, 993 [2004], lv denied 5 NY3d 789 [2005]; People v Wright, 5 AD3d 873, 875 [2004], lv denied 3 NY3d 651 [2004]). Finally, we discern no error in counsel’s failure to pursue those arguments raised by defendant in his pro se submissions to this Court because we conclude that they are without merit. Cardona, EJ., Carpinello, Rose and Kane, JJ., concur. Ordered that the judgment is affirmed. Defendant’s single preserved contention of trial error—that the court erred in refusing to admit certain documentary evidence—is moot as County Court ultimately reversed its decision and admitted the exhibit.

Lahtinen, J. Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered October 4, 2005, upon a verdict convicting defendant of the crimes of attempted murder in the second degree and assault in the first degree. In the early morning hours of October 30, 2004, defendant encountered the victim and three of the victim’s friends while walking in the City of Oneonta, Otsego County and, for no apparent reason, stabbed the victim in the neck causing him to sustain a serious injury. Although defendant fled the scene, he was identified by witnesses and apprehended soon after the *1020incident. He was indicted for attempted murder in the second degree and assault in the first degree. A jury found him guilty of both charges, rejecting his affirmative defense of lack of culpability by reason of mental disease or defect (see Penal Law § 40.15). He was sentenced to two concurrent prison terms of 20 years with five years of postrelease supervision. Defendant appeals. Defendant contends that he did not receive the effective assistance of counsel because, among other reasons, the People’s expert purportedly had superior credentials to the witnesses called by his counsel to address the issue of his mental infirmity. The well-established measure is whether “the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]). “ [C]ounsel’s efforts should not be second-guessed with the clarity of hindsight’ and . . . our Constitution ‘guarantees the accused a fair trial, not necessarily a perfect one’ ” (People v Turner, 5 NY3d 476, 480 [2005], quoting People v Benevento, 91 NY2d 708, 712 [1998]). Counsel pursued the reasonable trial strategy of attempting to establish that defendant suffered a mental infirmity that negated his criminal culpability. Two witnesses were produced in support of this defense, a social worker and psychologist. While these witnesses may have had less experience than the expert called by the People, they had worked with defendant since prior to this incident, they were aware of his condition, and their testimony supported defendant’s affirmative defense. The decision to call these witnesses certainly did not reflect ineffective assistance and, upon review of the record, it is readily apparent that defendant received meaningful representation as his counsel pursued a legitimate trial strategy and effectively participated in all aspects of the case, from pretrial through trial to sentencing. Next, defendant asserts that the verdict was against the weight of the evidence. The jury was presented with conflicting proof on the issue of defendant’s capacity and, ultimately, was not convinced that defendant had established his affirmative defense by a preponderance of the evidence (see Penal Law § 25.00 [2]). After weighing the conflicting testimony, the strength of conflicting inferences from such testimony and the other proof presented at trial, we are not persuaded that the jury’s determination should be disturbed (see generally People v Bolarinwa, 258 AD2d 827, 831-832 [1999], lv denied 93 NY2d 1014 [1999]). Finally, although the prosecutor referenced an uncharged *1021crime at sentencing, there is no indication that such comment affected County Court’s sentence, which was less than the maximum (see People v Orengo, 97 NY2d 739, 739 [2002]; People v Neish, 232 AD2d 744, 746-747 [1996], lv denied 89 NY2d 927 [1996]; cf. People v Gardner, 28 AD3d 1221, 1223 [2006], lv denied 7 NY3d 812 [2006]; People v Bratcher, 291 AD2d 878, 879 [2002], lv denied 98 NY2d 673 [2002]). Mercure, J.P., Peters, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed.

Spain, J. Appeal from a judgment of the Supreme Court (Spargo, J.), entered February 7, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to compel respondent to seal an indictment contained in petitioner’s criminal record. In this proceeding, petitioner—a pro se inmate at Fishkill Correctional Facility in Dutchess County—challenges the propriety of a determination by the Division of Criminal Justice Services (hereinafter DCJS) refusing petitioner’s request to seal all references to indictment No. 315-83 contained in his criminal history report (also known as rap sheet). The convictions for which petitioner is currently imprisoned arose from events occurring in 1982 for which petitioner was originally charged under indictment No. 4919-82, which apparently included and incorporated indictment No. 4920-82. Indictment No. 4919-82 was subsequently superceded by separate indictments—No. *1022315-83 and No. 365-83. Indictment No. 315-83 resulted in petitioner’s 1984 convictions of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, for which petitioner was sentenced to two concurrent prison terms of 20 years to life. The convictions were upheld on appeal and the Court of Appeals denied petitioner leave to further appeal (People v Rodriguez [Olivo], 121 AD2d 928 [1986], lvs denied 68 NY2d 815, 816 [1986]). Indictment No. 365-83 resulted in a November 1984 conviction of possession of a shotgun or rifle in violation of a local law, but that conviction was reversed on appeal and the indictment dismissed (People v Olivo, 120 AD2d 466, 466 [1986]). In 2001, DCJS sealed all references to indictment No. 365-83 in petitioner’s criminal history report as a result of the reversal of this conviction, in accordance with CPL 160.50. In 2004, petitioner requested DCJS to seal any use of or reference to indictment No. 315-83 as well. DCJS denied the request and, following an unsuccessful administrative appeal, petitioner commenced this proceeding. Supreme Court dismissed the petition, prompting this appeal by petitioner. We affirm. Whether we analyze the petition as a mandamus to compel DCJS to seal references to indictment No. 315-83 or a mandamus to review DCJS’s determination, petitioner’s claims fail in that he has neither identified a clear legal right entitling him to the relief he seeks nor demonstrated that DCJS’s determination was arbitrary and capricious or an abuse of discretion (see CPLR 7803 [1], [3]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-758 [1991]). Petitioner relies on CPL 160.50, which provides that records of criminal actions that terminate “in favor” of the defendant shall be sealed. Under no stretch of the imagination could it be said that the criminal action stemming from indictment No. 315-83—resulting in petitioner’s current incarceration— terminated in his favor. His argument that upon the sealing of indictment No. 365-83 it was also necessary to seal indictment No. 315-83—because those indictments arose out of the same transaction and, as a result, shared some docket numbers and a connection to the original indictment Nos. 4919-82 and 4920-82—is unavailing. The indictments relate to separate criminal actions, involving different charges, separate trials and resulting in independent dispositions. Neither the statutory language of CPL 160.50, nor purpose or legislative history, supports petitioner’s argument that the ultimate dismissal of indictment No. 365-83 entitles him to have references to indictment No. 315-83 sealed, regardless of the fact that they superceded the *1023same initial indictment and arose out of the same underlying transaction of events (see generally Matter of Katherine B. v Cataldo, 5 NY3d 196, 202-205 [2005]). Nor can we accept petitioner’s contention that the order sealing indictment No. 365-83 operated to seal references to indictment No. 315-83 simply because the seal order referenced docket numbers shared by the two indictments at issue. Petitioner’s reliance on alleged procedural defects which, he asserts, deprived him of due process, including improprieties in the grand jury proceedings, prosecutorial misconduct and lack of arraignment, are not properly raised within the context of this CPLR article 78 proceeding (see Matter of Reed v Travis, 19 AD3d 829, 830 [2005], lv denied 5 NY3d 708 [2005]; Matter of Ferguson v Cheeseman, 138 AD2d 852, 853 [1988]). Indeed, petitioner had a full opportunity to raise these contentions on his direct appeal of the convictions stemming from indictment No. 315-83 (People v Rodriguez, supra). We have considered petitioner’s remaining arguments and find no basis for the relief which he seeks in this proceeding. Cardona, P.J., Peters, Carpinello and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review a determination of respondent Superintendent of Southport Correctional Facility which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in a misbehavior report with making false statements and refusing a direct order. Following a tier II disciplinary hearing, he was found guilty of both charges. After an administrative appeal, the determination was affirmed. Petitioner commenced this CPLR article 78 proceeding challenging the determination. The misbehavior report, together with the testimony of the nurse who investigated the matter, provide substantial evidence supporting the determination of guilt (see Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]; Matter of Vizcaino v Selsky, 26 AD3d 574 [2006], lv denied 7 NY3d 708 [2006]). Petitioner’s procedural objections are unpersuasive. Petitioner was not improperly denied a Spanish-speaking assistant as his records *1024indicate that he speaks English (see 7 NYCRR 251-4.1 [a] [1]; see also Matter of Encarnacion v Goord, 34 AD3d 1175 [2006]). Furthermore, inasmuch as petitioner’s noninmate witness did not return the Hearing Officer’s telephone call, petitioner was not deprived of his right to call witnesses (see Matter of Williams v Goord, 242 AD2d 842 [1997]). The record demonstrates that the hearing was conducted in a fair and impartial manner and the determination did not flow from any alleged bias on the part of the Hearing Officer (see Matter of Cayenne v Goord, 16 AD3d 782, 783-784 [2005]; Matter of Sanchez v Selsky, 8 AD3d 846, 846 [2004]). Petitioner’s remaining contentions, to the extent preserved, have been reviewed and determined to be without merit. Cardona, PJ., Mercure, Crew III, Peters and Carpinello, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Following a tier III disciplinary hearing, petitioner was found guilty of possession of a controlled substance, smuggling and refusing a direct order. As set forth in the misbehavior report, petitioner, during a strip search, removed an object from his underwear and, when a correction officer ordered him to drop it, he attempted to place the object in his mouth. The object, a balloon, was filled with a substance that, upon testing, was determined to be heroin. At the disciplinary hearing, the misbehavior report, which was authored by the correction officer who confiscated the balloon, was read into the record. Additionally, testimony was given by the officer who conducted the NIK testing on the substance *1025that established that it was heroin. Upon an administrative appeal following the determination of guilt, the determination was modified only to the extent of reducing the penalty imposed, prompting petitioner to commence this CPLR article 78 proceeding. We confirm. The misbehavior report, along with the testimony of the officer who conducted the NIK tests of the substance and obtained the positive results of such tests, provide substantial evidence supporting the determination of guilt (see Matter of Excell v Goord, 35 AD3d 946 [2006]; Matter of Johnson v Goord, 4 AD3d 582, 584 [2004], lv denied 2 NY3d 708 [2004]). While petitioner attacks the fact that one particular NIK test was not performed on the substance in the balloon prior to the three other NIK tests which established it was heroin, the reason therefor was adequately explained by the correction officer who performed such tests. We also find lacking in merit petitioner’s argument that the misbehavior report was defective because it was authored by the correction officer who confiscated the balloon rather than by the officer who tested its contents. The officer who tested the contents and determined that the substance was heroin did, in fact, testify at his hearing. Mercure, J.P., Spain, Carpinello, Mugglin and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Superintendent of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner was charged in a misbehavior report with making *1026false statements, misuse of state property and sale or exchange of medications based upon the possession of a bottle of a prescription medication and the exchange of that medication with other inmates. After a tier II disciplinary hearing, petitioner was found not guilty of making false statements and guilty of the other two charges. Petitioner commenced this CPLR article 78 proceeding after the determination was affirmed on administrative appeal. Petitioner first contends that the determination must be annulled because it was based upon a theory of guilt different from that set forth in the misbehavior report. The misbehavior report states that an investigation was initiated based upon the possibility that inmates had mistakenly been issued bottles of medication. The report also states that, after an investigation, it was determined that petitioner did in fact have possession of a bottle of pills and exchanged the pills with other inmates. The Hearing Officer found that, while there was insufficient proof that petitioner had been mistakenly issued a bottle of pills from the facility infirmary, the proof did establish that petitioner had possession of a bottle of pills and had exchanged the pills with other inmates. We find that the misbehavior report as a whole gave petitioner adequate notice of the nature of the charges to allow him to prepare a defense (see Matter of Abdur-Raheem v Mann, 85 NY2d 113, 123 [1995]; Matter of Williams v Goord, 23 AD3d 972 [2005]). Petitioner also argues that the information provided by the confidential informant was unreliable. A disciplinary determination may be based upon hearsay confidential information if it is sufficiently detailed to enable the Hearing Officer to make an independent assessment of the informant’s reliability (see Matter of Debose v Selsky, 12 AD3d 1003, 1004 [2004]). Here, our review of the in camera testimony reveals that, although the Hearing Officer did not personally interview the confidential informant, he made adequate inquiries of the sergeant who received the confidential information and prepared the misbehavior report (see Matter of Shicon v Goord, 27 AD3d 811, 812 [2006]). Furthermore, the confidential information was sufficiently detailed and probative for the Hearing Officer to independently assess the reliability and credibility of it (see Matter of Brown v Goord, 286 AD2d 843, 843 [2001]; Matter of Peters v Goord, 280 AD2d 738, 739 [2001]). In light of the foregoing, we conclude that the finding of petitioner’s guilt is supported by substantial evidence (see Matter of Peters v Goord, supra). Cardona, P.J., Mercure, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Carpinello, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered April 26, 2006 in Delaware County, which denied defendant’s motion for summary judgment dismissing the complaint. Plaintiffs live near Bull Run Creek in the Village of Margaretville, Delaware County. During the summer of 2001, reconstruction work was performed on the creek to repair damage to its walls caused by a 1996 flood. According to plaintiffs, after completion of this work and for the first time ever, water began infiltrating into their basements in substantial quantities and has continued to do so on a regular basis. This water seepage has allegedly caused mold to accumulate, weakened their house foundations, destroyed their basements, which were once usable spaces, and diminished the overall value of their homes. Plaintiffs then commenced this action against defendant to recover for these damages. The crux of their complaint is that defendant negligently performed the reconstruction work. At issue on appeal is an order of Supreme Court denying defendant summary judgment. We affirm. In moving for summary judgment, defendant argued that it was entitled to governmental immunity with respect to any liability resulting from the decision to reconstruct the creek or the design of the reconstruction project itself. While stating an accurate rule of law (see e.g. Searles v Town of Horicon, 116 AD2d 93, 94-95 [1986]; E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599, 601-602 [1984]), defendant’s motion did not address the crux of the complaint against it, namely, that it negligently performed and/or supervised the reconstruction project which, in turn, caused the leakage. On this critical point, defendant’s motion was silent (see Searles v Town of Horicon, supra). This being the case, defendant failed to meet its prima facie burden of demonstrating entitlement to summary judgment and thus the burden to raise a triable issue of fact never shifted to plaintiffs (see Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 272 AD2d 818, 821 [2000]). Mercure, J.E, Peters, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules. Petitioner, while an inmate at Sullivan Correctional Facility in Sullivan County, was charged in a misbehavior report with violating various prison disciplinary rules arising out of an argument with a fellow inmate and his subsequent failure to obey an order of and his assault upon a correction officer. At a tier III disciplinary hearing, petitioner pleaded guilty with an explanation to creating a disturbance and refusing a direct order and not guilty to assaulting a staff member, engaging in violent conduct and interfering with an employee. At the conclusion of the hearing, he was found guilty of all charges. After that determination was affirmed on administrative appeal and his subsequent request for reconsideration proved unsuccessful, petitioner commenced this CPLR article 78 proceeding. With respect to the charges of creating a disturbance and refusing a direct order, we note that petitioner’s guilty plea precludes any challenge to that portion of the determination sustaining these charges (see Matter of Ramirez v Goord, 32 AD3d 601, 601 [2006]; Matter of Jiminez v Selsky, 29 AD3d 1246,1246 [2006]). As to the remaining charges, the misbehavior report and related documentation, along with the testimony of the correction officer who witnessed the incident and authored the report, provide substantial evidence supporting the determination of guilt (see Matter of Williams v Goord, 36 AD3d 1033 [2007]; Matter of Thomas v Goord, 34 AD3d 1143 [2006]). Finally, we find unpersuasive or unpreserved for our review petitioner’s remaining contentions, including his arguments that the Hearing Officer was biased (see Matter of Davis v Smith, 32 AD3d 1096, 1097 [2006]), that he was erroneously precluded from calling as witnesses two individuals who had no direct knowledge of the incident (see Matter of Townes v Goord, 32 AD3d 1136, 1136 [2006]), and that he was improperly denied the right to call as a witness the other inmate involved in the incident by virtue of the Hearing Officer’s allegedly inadequate inquiry into the inmate’s refusal to testify (see Matter of Williams v Goord, supra; Matter of Price v Goord, 29 AD3d 1203, 1204 [2006]). Cardona, P.J., Crew III, Spain, Mugglin and Lahtinen, JJ., *1029concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed September 15, 2005, which ruled that Twin-Tex Corporation was liable for additional unemployment insurance contributions on remuneration paid to claimant and others similarly situated. Claimant worked as a salesperson for Twin-Tex Corporation, a wholesale distributor of textiles, for approximately one year. After leaving the company, he applied for unemployment insurance benefits. The Department of Labor issued an initial determination finding that Twin-Tex was liable for additional unemployment insurance contributions based on remuneration paid to claimant and others similarly situated. Twin-Tex objected, asserting that claimant was an independent contractor. Following a hearing, an Administrative Law Judge determined that an employment relationship existed between Twin-Tex and claimant, and this decision was upheld by the Unemployment Insurance Appeal Board. Twin-Tex now appeals. We affirm. The evidence adduced at the hearing reveals that Twin-Tex exercised a sufficient degree of control over important aspects of claimant’s work to establish an employment relationship (see e.g. Matter of Aubrey [NGT Lib., Inc.—Commissioner of Labor], 8 AD3d 803, 804 [2004]). Specifically, Twin-Tex provided claimant with fabric samples, office supplies, business cards, a desk and a telephone, paid the telephone bill, established the price range for the fabrics, prohibited claimant from selling competing fabrics and gave claimant a list of potential customer contacts to assist him in his sales. Although claimant was to be compensated from commissions based upon his sales, Twin-Tex provided him with a $700 per week advance toward such commissions during the first six months of his employment and *1030changed this compensation arrangement only after claimant was unable to generate sufficient sales. Notwithstanding the existence of factors bolstering Twin-Tex’s assertion that claimant was an independent contractor, substantial evidence nonetheless supports the Board’s decision (see id. at 805; Matter of Kienle [Hunter Eng’g Co.—Commissioner of Labor], 261 AD2d 769, 770 [1999]). Mercure, J.E, Crew III, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the decision is affirmed, without costs.

*1031Appeal from a judgment of the Supreme Court (Stein, J.), entered June 15, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release. Petitioner was convicted in 1979 of two counts of murder in the second degree and was sentenced to concurrent terms of 15 years to life in prison. In June 2005, he made his seventh appearance before the Board of Parole requesting parole release. At the conclusion of the hearing, the Board denied his request and ordered him held for an additional 24 months. Petitioner then commenced this CPLR article 78 proceeding challenging the Board’s decision. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued. We affirm. Contrary to petitioner’s claim, the Board considered the appropriate factors set forth in Executive Law § 259-i in making its decision, including not only the serious nature of petitioner’s crimes, but also his program accomplishments, disciplinary history and postrelease plans (see Matter of Mojica v Travis, 34 AD3d 1155, 1156 [2006]; Matter of Vasquez v State of N.Y. Exec. Dept., Div. of Parole, 20 AD3d 668, 669 [2005]). The Board was not required to place equal emphasis upon each of the statutory factors and could, as it did, give more weight to the seriousness of the crimes (see Matter of Rivera v Dennison, 25 AD3d 856, 857 [2006]; Matter of Watford v Travis, 16 AD3d 850, 851 [2005]). Moreover, there is nothing to indicate that the Board’s decision is the product of an informal executive policy of denying parole to violent felons (see Matter of Wood v Dennison, 25 AD3d 1056, 1057 [2006]). Petitioner’s remaining contentions are similarly unavailing. Inasmuch as the Board’s decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it. Crew III, J.E, Peters, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

Peters, J. Appeal from an order of the Court of Claims (Hard, J.), entered September 27, 2005, which granted defendant’s motion to dismiss the claim. Claimant commenced this action on May 19, 2004 by filing and serving a claim alleging damages resulting from the garnishment of her wages following her default on a student loan. According to claimant, her claim accrued on November 9, 1992. Defendant thereafter moved to dismiss the claim on the grounds that it was untimely and, in any event, without merit. The Court of Claims agreed that the claim was untimely and, thus, granted defendant’s motion. This appeal by claimant ensued. We affirm. It was incumbent upon claimant to file and serve, within 90 days of the date of accrual, either a claim or a written notice of intention to file a claim (see Court of Claims Act § 10; Pizarro v State of New York, 19 AD3d 891, 892 [2005], lv denied 5 NY3d 717 [2005]). Inasmuch as claimant never filed and served a notice of intention to file a claim and failed to file and serve the actual claim until approximately HV2 years after the date on which, by her own admission, the claim accrued, the Court of Claims correctly dismissed this action as untimely (see Pizarro v State of New York, supra at 892). With respect to claimant’s assertion that she was unable to oppose the underlying motion because of her unsuccessful attempt at hiring an attorney, we note that such a contention does nothing to alter the uncontroverted facts, as set forth above, establishing that the claim was time-barred. Mercure, J.E, Mugglin and Kane, JJ., concur. Ordered that the order is affirmed, without costs.