People v. Feerick ( 1998 )

OPINION OF THE COURT

Per Curiam.

In a 30-count indictment, Police Lieutenant Feerick and Police Officers DeVito, Rosario and Schultz of the 25th Precinct were charged with various crimes arising out of their conduct on September 26, 1990, in connection with their search for a lost police radio belonging to DeVito. On the morning of September 26th, defendants went to an apartment building in the Taino Tower complex in upper Manhattan to pursue a lead regarding the radio, which had been lost during a drug arrest in the area several days earlier. Defendants pushed their way into two apartments, ransacking both and, with weapons drawn, unlawfully detained the individuals encountered within (Denise Jackson, Theresa Johnson, Maribel Delgado and Ben Stokes). Defendants threatened them with arrest and other punitive repercussions if they did not cooperate in helping to find the radio. In searching the second apartment, where they encountered Stokes, defendants discovered 591 vials of crack cocaine in a paper bag; Feerick said they would “forget” about the crack if the radio were returned. Jackson was further threatened that large quantities of drugs would be “found” in her apartment if the radio were not promptly returned.

Upon returning to the precinct that afternoon, Officer DeVito vouchered the 591 crack vials and, in completing various forms, indicated that the drugs had been recovered in an alleyway behind the building, where he saw Ben Stokes drop them and flee, eluding apprehension. Late that same night, the lost radio was turned over to security personnel at the building complex by an unidentified individual and returned to the police.

Sometime after defendants left the building, Denise Jackson called 911 to report the incident, and Detective Miller of the Internal Affairs Division (IAD) began an investigation. He visited Jackson’s apartment late that afternoon and photographed the damage evident throughout, including a message scrawled across one wall, “We want the radio.” Jackson, Johnson, Delgado and Stokes, as well as members of building security, were interviewed, and the identity of the four officers was quickly ascertained; their memo books were seized and other relevant police records obtained. While Delgado was somewhat reluctant to become involved in the matter, Stokes, who gave Miller an account of what had transpired that day, was completely unwilling to cooperate in any criminal prosecution.

A newly formed unit of the Manhattan District Attorney’s office, the Official Corruption Unit, headed by Assistant District Attorney (ADA) Stephens, was kept apprised of developments in the investigation, but by early January 1991, ADA Stephens decided not to pursue criminal charges against defendants. Although he believed the allegations and considered them to be serious, he had “philosophical” reservations about the new unit pursuing the matter. Stokes’s unwillingness to cooperate was only a minor factor in his decision.

By letter dated January 7, 1991, he informed the Police Department of his decision, detailing the evidence accumulated against the defendants and urging that the Department pursue the appropriate disciplinary action against them. In light of this decision, the Police Department commenced administrative proceedings against the defendants by conducting hearings pursuant to Patrol Guide (PG) section 118-9; at such hearings (also referred to as “GO 15s”), an officer is compelled to answer questions under penalty of dismissal. On January 17, 1991, a PG 118-9 hearing was held for Feerick; on January 18, 1991, a hearing was conducted for Rosario. Hearings for DeVito and Schultz were conducted on January 24th. Feerick was questioned a second time on March 27th about related events, but not about her actions on September 26th.

Each defendant was represented by counsel, and each gave essentially the same statement, denying any wrongdoing. They claimed that they had canvassed the building in question in search of leads to recover the lost radio; that they encountered Jackson and Johnson only, in Jackson’s apartment; and that they saw Stokes only in the alleyway when he dropped the drugs. In the course of Rosario’s PG 118-9 hearing, he disclosed that he had arrested Stokes on January 5, 1991, for possession of those drugs. (Without advising the narcotics prosecutor of the investigation into the events of September 26th, Rosario proceeded to testify in the Grand Jury on January 11th regarding that arrest.)

Sometime after his arraignment on these drug possession charges, Stokes contacted Delgado for Detective Miller’s number; Stokes was angry that defendants had not kept their part of the “bargain” that they would “forget” about the crack if the radio were returned. Stokes tried to reach Miller on January 18th, but Miller had left for the day. When Miller arrived at work on January 21st, having been off the previous two days, he found a message that Stokes had called on the 18th and would call again. He also found on his desk a copy of an arrest report relating to Stokes’s January 5th arrest, which apparently had been faxed to the LAD office sometime on January 18th. Stokes did call Miller later on the morning of the 21st from the hospital prison ward where he was incarcerated on the drug charges, complaining about his arrest and advising Miller that he was now ready to cooperate in the investigation.

Later that week, after Miller had spoken to Stokes several times, the District Attorney’s office was apprised of Stokes’s status. Its investigation was reopened and, ultimately, testimony was presented to a Grand Jury, resulting in the instant indictment in March 1992. Following a jury trial, each defendant was found guilty of four counts of unlawful imprisonment in the second degree; one count of coercion in the second degree; one count of criminal trespass in the second degree (except two counts as to Feerick); and one count of official misconduct (except two counts as to Feerick and DeVito). Rosario was also convicted of perjury in the first degree, and DeVito was convicted of falsifying business records in the first degree. Prior to sentencing, defendants moved pursuant to CPL 330.30 to set aside the verdict, alleging improper use of their PG 118-9 statements in connection with the indictment and trial, as well as various Rosario violations. The trial court denied the motion, with leave to renew postjudgment. Thereafter, defendants’ motion pursuant to CPL 440.10 to vacate the judgment on the same grounds was denied on January 10, 1995. Defendants’ appeal from that denial was consolidated with their direct appeal.

By order of this Court entered August 29, 1996 (230 AD2d 689), the appeals from their judgments of conviction were held in abeyance, in order for the Kastigar hearing court to determine if certain documents constituted Rosario material and, if necessary, take additional evidence and make a de novo Kastigar ruling. By that order, we also reversed the denial of the CPL 440.10 motion, the same Kastigar/Rosario claim having been raised therein. The matter having now been returned to us with a de novo ruling, and the parties having submitted supplemental briefs and further written argument, we turn to the substance of defendants’ claims.

Among the numerous issues raised on this appeal, defendants challenge the sufficiency of the trial evidence, the court’s charge on unlawful imprisonment, alleged inconsistencies in the jury verdict and the court’s restriction on cross-examination of certain witnesses. We find that the evidence was more than sufficient to sustain the jury’s verdicts of guilt, that all the elements of the crimes charged were established and that the guilty verdicts as to certain counts and not guilty verdicts as to others are not inconsistent with one another. Cross-examination regarding Jackson’s drug use was not improperly limited by the court, and any error in the charge on unlawful imprisonment was harmless under the circumstances, given the absence of any evidence to support defendants’ claim that their conduct in restraining the apartments’ occupants was prompted by legitimate safety concerns.

In sum, while defendants continue to claim that, at worst, their conduct constituted no more than an impermissible search for which there is no criminal liability, and that to uphold the guilty verdicts would be to seriously “chill” the ability and good-faith efforts of law enforcement to protect the public, the evidence before the jury amply demonstrated that defendants far exceeded the bounds of permissible police conduct and that they committed the crimes of which they were found guilty.

Defendants also claim that various Kastigar and Rosario violations require reversal and dismissal of the indictment. First, they claim that the police and the prosecution made use of their PG 118-9 hearing testimony both for purposes of obtaining an indictment and at trial. Indeed, the defense goes so far as to allege the existence of a “concerted effort” and an “agreement” between the prosecution and police to violate defendants’ Kastigar rights.

It is well established that because, as previously noted, testimony at a PG 118-9 hearing is compulsory, such testimony may not be used against an officer in any subsequent criminal proceeding, i.e., neither the substance of the statement nor anything derived from that statement (such as the existence of other evidence or the identity of witnesses) may be used (Kastigar v United States, 406 US 441; People v Corrigan, 80 NY2d 326). The burden upon the prosecution is a heavy one to demonstrate that the evidence upon which it relied was derived from sources entirely independent of defendants’ immunized statements. Mere denial is insufficient; the prosecution must affirmatively show how it acquired the evidence (United States v Montoya, 45 F3d 1286, 1292, cert denied 516 US 814). With respect to the indictment before us, as the hearing court has now twice concluded, and we agree, the prosecution met that burden.

A Kastigar hearing was conducted, at which the prosecution called Detective Miller, and the defense called ADA Stephens, Lieutenant Foley (Miller’s supervisor) and Deputy Inspector DeMartini (Miller’s commanding officer). The court also had in its possession transcripts of the PG 118-9 hearings (neither the transcripts nor the tapes of these hearings were turned over to the prosecution at the hearing). By written decision dated August 6, 1993, the hearing court first rejected outright the notion of a “conspiracy” between the District Attorney’s office and LAD to violate defendants’ Kastigar rights. The court proceeded to review the evidence and concluded that the prosecution was well aware of the relevant information in defendants’ statements, with the exception of Rosario’s reference to Stokes’s January 5th arrest, long before the hearings were conducted. Indeed, as the court noted, ADA Stephens’s letter of January 7, 1991 provided a detailed account of the substantial evidence in the possession of the prosecution and LAD not long after the events in question and prior to the hearings. Thus, as to virtually all the evidence, the People satisfied their burden by establishing that it was in their possession prior to the administrative hearings (People v Grim, 166 AD2d 264, lv denied 76 NY2d 986, cert denied sub nom. Goodacre v New York, 499 US 976).

With respect to the fact of Stokes’s arrest, despite defendants’ insistence that the source of this information was Rosario’s PG 118-9 hearing testimony, the prosecution established an independent source for this information as well, namely, the phone calls Stokes made to Detective Miller while incarcerated on January 18th and 21st, complaining of his arrest and volunteering his cooperation. As a general matter, the prosecution also established that Miller and his superiors were aware that the criminal and administrative proceedings must be kept entirely separate; that Miller did not look at the documents generated by those proceedings, which were kept in the desk drawer of his superior officer, Lieutenant Foley; and that no one discussed those proceedings with him. Thus, the record supports the hearing court’s conclusion that no Kastigar violation occurred in securing the indictment.

Pursuant to our order remanding the matter, the hearing court inspected numerous police documents in camera and turned over six to defense counsel as Rosario material. Having heard further testimony in connection with that material, and extended legal argument, the court also reviewed the original transcript and all Aosiigor-related material. In a de novo ruling dated February 3, 1997, the court again concluded that neither the prosecution nor the police had made prohibited use of the immunized testimony to secure the indictment. This conclusion was fully supported by the credible evidence before the court, and we find no error in the manner in which the court conducted this hearing. In this regard, we note that the hearing was conducted not only in accordance with our previous order but also with the request, as expressed by one defendant’s brief, that the Kastigar hearing “at the very least, should be re-opened.” Moreover, in defendants’ motion for clarification of our remand order (seeking two separate hearings), the reopening of the Kastigar hearing, as directed in that order, was not challenged.

In sum, despite defendants’ protracted arguments to the contrary, the record before us amply establishes that shortly after the events in question, the prosecution and police possessed almost all of the evidence ultimately used against defendants, with few exceptions. As to those, the prosecution more than adequately demonstrated an independent source as well.

We note that an indictment is not fatally tainted merely because someone involved in the criminal prosecution may have been exposed to a portion or all of a defendant’s immunized statement, although clearly precautions should be taken—and stringently observed—to prevent such occurrence. For example, in People v Corrigan (80 NY2d 326, supra), dismissal of criminal charges against a police officer was not warranted solely because when the officer testified in the Grand Jury, the prosecutor had in his possession a copy of the officer’s immunized administrative hearing statement. In that case, the Court of Appeals observed that there was no evidence that defendant was in any way affected or prejudiced, or indeed that he knew the prosecutor had the statement; there was also “ample evidence” in the record “to sustain the charges independent of anything that could be attributed to the immunized statement.” (Supra, at 331.) The Court cautioned, however, that “the practice should be avoided” (supra, at 332).

The result in Corrigan does not in any way lighten the burden on the prosecution. It does, however, serve as a reminder of the nature of a Kastigar inquiry: whether the prosecution made any use whatsoever of a defendant’s immunized testimony, not whether it had access to it. As the hearing court correctly concluded, the answer to that inquiry in the case before us is no.

With respect to the issue of Kastigar violations in connection with the trial, defendants’ CPL 440.10 motion was properly denied. First, as the trial court noted in its decision, with respect to the alleged discovery of certain witnesses through the PG 118-9 testimony, defendants failed to raise a Kastigar claim when those witnesses testified at trial for the prosecution. The claim is thus unpreserved for review (see, People v Padro, 75 NY2d 820). In any event, the trial court correctly concluded that the prosecution, through its responding affidavits, had demonstrated an independent source for the identity of the two witnesses. Indeed, the source was defendants’ pleadings in their unsuccessful lawsuits against the prosecutors (and others) to enjoin their trial on the instant indictment (Matter of Feerick v Sudolnik, 186 AD2d 1097, lv denied 81 NY2d 702; Feerick v Sudolnik, 816 F Supp 879 [SD NY], affd 2 F3d 403). Defendants’ remaining claims with respect to Kastigar violations at trial are similarly unpreserved and without merit. We further note that, contrary to defendants’ argument, an evidentiary hearing is not required in order to satisfy the prosecution’s burden; in certain circumstances, such as here, where court documents constitute the independent source, the submission of affidavits may suffice (see, United States v Montoya, supra).

We turn to defendants’ final joint claim that the prosecution’s failure to turn over Rosario material at trial requires reversal. This claim relates to numerous reports generated by Detective Miller in the course of his investigation. At the Kastigar hearing, defendants were given an index listing all the reports relevant to the investigation (144 in number), and indicating their date and subject matter. Counsel’s request for the entire file as Rosario material for purposes of the hearing was properly denied by the hearing court, since the People’s obligation is to turn over only material relating to the witness’s direct testimony (see, e.g., People v Barclift, 228 AD2d 194, 195, lv denied 88 NY2d 980; People v Stern, 226 AD2d 238, 239-240, lv denied 88 NY2d 969; People v Melendez, 178 AD2d 366, 367, lv denied 79 NY2d 950); even material bearing on the witness’s credibility must relate to the witness’s direct testimony in order to qualify as Rosario material (People v Stern, supra). Thus, for purposes of the hearing, which had a particular, narrow focus, only certain of Miller’s worksheets were turned over to defendants. Subsequently, additional material was provided to the defense in connection with a Wade hearing and then at trial. When the material was noted for the record at trial, the defense questioned only why a particular document had not been turned over at the Kastigar hearing. Later, in the context of a defense argument about redactions the prosecution had made on certain Rosario material, the People responded that they were aware of and had met their Rosario obligations.

Following trial, defendants claimed in their CPL 440.10 motion that they had not been given all existing Rosario material; they now further specifically claim that at least three of the worksheets turned over as a result of this Court’s August 29, 1996 remand order constituted trial Rosario material. In response, the People contend that defendants have not preserved the issue for appellate review, and that, in any event, of the three documents cited in defendants’ supplemental brief, one had been turned over at trial, and the other two are not Rosario material. Under the particular circumstances before us, we are persuaded that defendants have indeed failed to preserve this claim for review.

It is unquestionably the People’s burden to locate and produce Rosario material (see, e.g., People v Ranghelle, 69 NY2d 56, 64), and “defense efforts, or lack thereof, are irrelevant on the issue of the prosecutor’s affirmative obligation” to do so (People v Ramos, 201 AD2d 78, 86). Nevertheless, there are circumstances under which a defendant will be held to have waived a Rosario claim (People v Graves, 85 NY2d 1024; People v Rogelio, 79 NY2d 843; People v Tamayo, 222 AD2d 321, lv denied 88 NY2d 886). This is true where the existence of such material is known to the defense, but is not specifically requested and no relief is sought from the court for its nonproduction (People v Graves, supra; People v Rogelio, supra), or where the defense raises a particular objection, the issue is deferred by the court and defendant fails to raise it again (see, e.g., People v Spencer, 219 AD2d 259, 265, lv denied 88 NY2d 1024). As we have previously observed, the purpose of the Rosario rule is to “protect counsel who would ordinarily have no knowledge of the material and no other means of obtaining it (see, People v Jones, 70 NY2d 547, 550, 552). Once the existence of Rosario material is disclosed in open court, it behooves counsel to seek sanctions for belated disclosure or nonproduction, or else the claim for violation is deemed abandoned (People v Graves, 85 NY2d 1024)” (People v Tamayo, 222 AD2d 321, 322, lv denied 88 NY2d 886, supra).

In the instant case, defendants’ demand for Miller’s entire file at the Kastigar hearing does not “carry over” to the trial proceedings for purposes of raising or preserving the claim (see, People v Ward, 241 AD2d 767, 770, lv denied 91 NY2d 837). The issues at a pretrial hearing are not necessarily identical to those at trial; therefore, what constitutes Rosario material in connection with a witness’s direct testimony at such hearing may well differ from what constitutes Rosario material for trial purposes. In addition, as was the case here, such proceedings are not even necessarily conducted by the same Justice. Thus, whatever is requested or provided at a pretrial proceeding is not dispositive of what may be requested or provided, or necessary to provide, at any subsequent proceeding.

More important, as the trial court noted in denying the CPL 440.10 motion, from the time of the Kastigar hearing, the defense was in possession of a list of the contents of Miller’s file, detailing not only the actual number of reports but also their subject matter. It is precisely because defendants were in possession of this index—a list of 144 “potential” Rosario items—that their failure to seek additional items or request sanctions for nonproduction of any item on that index must be viewed as a failure to preserve their present claim. Moreover, given the general tone that permeates the voluminous transcripts and substantial briefs generated in this case, defendants can hardly maintain in this Court that, to quote the language of one brief, they were “lulled” into believing that they had received all existing Rosario material by the prosecutor’s say-so.

A further claim is raised by defendant Rosario alone. He contends that when he testified in the Grand Jury concerning Stokes’s possession of drugs in the alleyway on September 26th, he acquired transactional immunity for crimes arising out of his (Rosario’s) conduct inside the apartment complex that day. His pretrial motion to dismiss the charges on this ground was denied. The motion court concluded that, despite the broad scope of immunity conferred by New York State statutes, they were not intended to confer immunity on a police officer who “effects a false arrest, initiates a grand jury proceeding and then gives completely untruthful testimony.”

The relevant statutes are CPL 190.40 (2), which provides that “[a] witness who gives evidence in a grand jury proceeding receives immunity,” and CPL 50.10 (1), which provides the following definition of “immunity”: “A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivision, be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses ‘immunity’ from any such conviction, penalty or forfeiture.” The same subdivision also provides that a witness who acquires such immunity “may nevertheless be convicted of peijury as a result of having given false testimony in such legal proceeding.” Thus, the immunity claimed by Rosario would not extend to the perjury charges of which he was also found guilty.

Pursuant to these statutes, the relevant inquiry is whether Rosario’s testimony that he saw Stokes drop the drugs in the alleyway constitutes “evidence” concerning the “transaction, matter or thing” for which Rosario was later indicted, i.e., his conduct inside Jackson’s apartment. (He was acquitted of crimes committed in the second apartment, where Stokes and the drugs were actually found.) In scrutinizing the testimony given, the test has been recognized to be whether “ ‘there is a reasonable possibility of prosecution, and that the testimony, though falling short of proving the crime in its entirety, will prove some part or feature of it, will tend to a conviction when combined with proof of other circumstances which others may supply’ (Matter of Doyle, 257 NY 244, 256, supra).” (People v Williams, 81 AD2d 418, 424, affd on opn below 56 NY2d 916.) According to Williams, in order to determine if the test has been met, it is “the context of the circumstances which ultimately governs” (supra, at 425), and the Court of Appeals has more recently observed that a witness acquires “full transactional immunity for any topic discussed by the witness within the scope of the proceeding” (People v Chin, 67 NY2d 22, 33, n 4).

We note at the outset that, in applying these standards, the good faith or ignorance on the part of the prosecutor is irrelevant; the fact that the prosecutor handling the drug case had no idea that the crimes with which Rosario was later charged had even been committed, and that, due to Rosario’s silence about the pending investigations, the prosecutor had no reason to suspect his story or have reservations about anything he might say in the Grand Jury, have no bearing on the immunity issue. Nor is the brevity of the testimony here relevant, since it is the subject matter, not the quantity, that is significant.

Here, a reading of Rosario’s testimony—that he saw Stokes drop the bag that was found to contain drugs—and an examination of the charges later brought against Rosario lead us to conclude that he did not testify about the “transaction, matter or thing” for which he was later indicted or about a “topic” that formed the basis of the indictment; therefore, he did not acquire immunity.

Of course, the testimony falls far short of proving “the crime in its entirety,” since there is not the slightest reference to the actual events and conduct on which the indictment was based. Nor can the testimony be said to “tend” to a conviction in combination with some other proof. Rosario’s alleged observation of Stokes outside the building does not “tend” to convict Rosario of crimes arising out of his conduct earlier that day in Jackson’s apartment. The mere fact that the testimony concerned Stokes, as well as the day and general location of Rosario’s crimes, does not suffice to transform the subject matter into the very “transaction, matter or thing” for which Rosario was indicted, nor, put another way, can it fairly be said that his conduct inside Jackson’s apartment was the “topic” discussed in the Grand Jury. In People v Petgen (92 AD2d 693), a defendant was denied immunity for a homicide where he had told a Grand Jury investigating a different crime that he knew the manner of decedent’s death and the whereabouts of decedent’s vehicle on the day he was killed—in front of defendant’s own home (see also, People v Weisman, 231 AD2d 131, lv denied 90 NY2d 1015; Matter of Gelinas v Barrett, 147 AD2d 293); that testimony was insufficient to link him to or tend to convict him of the killing with which he was later charged. In the instant case, moreover, any connection between what transpired inside Jackson’s apartment and, allegedly, in the alleyway, is all the more tenuous given the completely false nature of Rosario’s Grand Jury testimony.

We note the dissent’s contention that, with respect to all the defendants’ convictions for official misconduct, the People failed to show that defendants intended to obtain a “benefit,” defined in Penal Law § 10.00 (17) to be “any gain or advantage.” We agree with the trial court’s finding that the return of defendant DeVito’s radio was a specific, personal benefit to these defendants as well as a benefit to the Police Department. According to the defense, the radio was blatantly being used by drug dealers to taunt the police officers and to monitor and thwart police activity in the area (including the actions of these defendants), thereby not only causing them embarrassment but also placing them in jeopardy. Unlike People v Esposito (160 AD2d 378, 379, lv denied 76 NY2d 787), where we found that the benefit, alleged to have accrued only to that defendant’s employer, was “ill-defined,” here the indictment alleged and the proof supported a specific benefit. Moreover, while the dissent views an attempt to recover police property to be irreconcilable with any “culpable” motive on defendants’ part and thus inconsistent with the “benefit” element of the statute, the detailed record of defendants’ egregious conduct clearly demonstrates that the statute was satisfied in every respect.

With respect to the dissent’s argument that the convictions of unlawful imprisonment as to Maribel Delgado must be reversed because she could have been arrested for two crack vials found in her possession, the jury was entitled to determine, as it did, that she was forcibly restrained not for the vials (discovered after she was forcibly pulled into the apartment) but for the same reason as the others—in the attempt to recover the lost radio at all cost. While the dissent further finds the verdict to be inconsistent to the extent that defendants were found not guilty of burglary but guilty of criminal trespass and official misconduct, we note first that the issue is unpreserved. In any event, it is not within the province of an appellate court to speculate on the jury’s deliberative process, so long as the verdicts are not repugnant, which they are not.

This jury was entitled to conclude, for example, based on the evidence before it, that defendants unlawfully entered the premises in question without intent to commit a crime therein, but did engage in conduct constituting official misconduct once inside (see generally, People v Gaines, 74 NY2d 358, 363).

Finally, as to each defendant, we perceive no abuse of discretion with respect to the sentences imposed by the trial court.

Accordingly, the judgments of Supreme Court, New York County (Joan Sudolnik, J., at Kastigar hearing; Bonnie Wittner, J., at jury trial and sentence), rendered October 3, 1994 as to defendants Feerick and Rosario, and October 6, 1994 as to defendants DeVito and Schultz, convicting each defendant of unlawful imprisonment in the second degree (four counts), coercion in the second degree (one count), criminal trespass in the second degree (one count as to each defendant except two counts as to Feerick), and official misconduct (one count as to Rosario and Schultz and two counts as to Feerick and DeVito); and convicting Rosario of perjury in the first degree and DeVito of falsifying business records in the first degree; and sentencing Feerick to concurrent terms of one year or less on all convictions except coercion, for which she was sentenced to a consecutive one-year term; sentencing Rosario to 1 to 3 years on the perjury conviction and lesser concurrent terms on all other convictions; sentencing DeVito to eight concurrent one-year terms, and one concurrent six-month term; sentencing Schultz to three years’ probation; and ordering all defendants to pay restitution to one complainant, and ordering Feerick alone to pay restitution to another complainant, should be affirmed. The matter should be remanded to Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (5).