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Appeal from a judgment of the Yates County Court (Dennis F. Bender, J.), rendered November 10, 2005. The judgment convicted defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree (two counts) and criminal sale of a controlled substance in the fourth degree (four counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of two counts of criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), and four counts of criminal sale of a controlled substance in the fourth degree (§ 220.34 [1]). Contrary to the contention of defendant, she was not denied effective assistance of counsel (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Defendant failed to preserve for our review her further contention that she was denied a fair trial based on prosecutorial misconduct on summation (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Contrary to defendant’s further contention, we conclude that County Court did not err in refusing to suppress a book concerning prescription drugs found in *1212defendant’s automobile when it was impounded and its contents were inventoried. The record establishes that there was a sufficient basis to conclude that defendant’s automobile was used in the commission of a crime (see People v White, 262 AD2d 122 [1999], lv denied 93 NY2d 1029 [1999]). We agree with defendant, however, that the sentence is unduly harsh and severe. Thus, as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]), we modify the judgment by reducing the sentence imposed on each count of criminal sale of a controlled substance in the third degree to an indeterminate term of incarceration of 4 to 12 years. Present— Hurlbutt, J.P, Martoche, Centra, Fahey and Green, JJ.

*1213Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered February 24, 2006 in a personal injury action. The order, insofar as appealed from, denied in part defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when his left hand was crushed after being drawn into a paper processing machine. Supreme Court properly denied those parts of defendants’ motion for summary judgment seeking dismissal of the negligence and strict products liability causes of action. Those theories of liability are predicated on plaintiffs allegations that the machine was defectively designed and manufactured by defendants and that defendants failed to warn users of the dangers of the machine. With respect to defective design and manufacture, the affidavit of plaintiffs expert submitted in opposition to the motion raises triable issues of fact concerning the origin of the machine and whether it had been substantially modified after it was manufactured (cf. Baum v Eco-Tec, Inc., 5 AD3d 842 [2004]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). With respect to failure to warn, it is well settled that the “adequacy of the warning in a products liability case based on a failure to warn is, in all but the most unusual circumstances, a question of fact to be determined at trial” (Cooley v Carter-Wallace Inc., 102 AD2d 642, 642 [1984]). Here, defendants failed to establish that the danger that a worker’s hand could become entangled in the paper and then drawn into the rolls of the machine is obvious as a matter of law (see Frederick v Niagara Mach. & Tool Works, 107 AD2d 1063 [1985]). Present— Hurlbutt, J.R, Martoche, Centra, Fahey and Green, JJ.

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered February 2, 2005. The judgment convicted defendant, after a nonjury trial, of criminal possession of stolen property in the fourth degree and unauthorized use of a vehicle in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a bench trial, of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]) and unauthorized use of a vehicle in the second degree (§ 165.06), defendant contends that the evidence is legally insufficient to support his conviction of criminal possession of stolen property in the fourth degree because the People did not establish the value of the vehicle. Defendant did not specifically direct his dismissal motions to that alleged error and thus that contention is not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]). We also reject the contention of defendant that he did not receive effective assistance of counsel. Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v Benevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]). Present—Hurlbutt, J.P., Martoche, Centra, Fahey and Green, JJ.

Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered December 19, 2005 in a personal injury action. The order granted the motions of defendants for summary judgment dismissing the amended complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying in part the motion of defendant Douglas Górecki and reinstating the failure to warn and derivative claims against him and as modified the order is affirmed without costs. Memorandum: Joshua J. Hill, plaintiff’s 18-year-old son, sustained personal injuries when he fell from a cliff located at the edge of property owned by defendants Richard J. Górecki and Christine Górecki (Goreckis). Hill was on the property attending a party hosted by the Goreckis’ 20-year-old son, defendant Douglas Górecki, while the Goreckis were out of town. At the party, Hill had been drinking alcohol that was unlawfully *1215purchased by Douglas at a store operated by defendant 2230 South Park Avenue Limited Partnership, doing business as Consumer’s Beverages (Consumer’s Beverages). When a fight broke out inside the Goreckis’ residence during the party, Douglas asked everyone to move outside, where the fight continued. At that point, a neighbor telephoned the police because of the noise. When the police arrived, many partygoers, including Hill, scattered. Hill ran through the backyard of the Goreckis’ property, with which he was unfamiliar, and which suddenly terminates in a cliff after a stretch of dense foliage. Plaintiff thereafter commenced this action and now appeals from an order insofar as it granted the motions of defendants for summary judgment dismissing the amended complaint against them. We conclude that Supreme Court properly granted the Goreckis’ motion for summary judgment. Although the Goreckis failed to establish as a matter of law that the cliff was a readily observable geographic feature (cf. Tushaj v City of New York, 258 AD2d 283, 283-284 [1999], lv denied 93 NY2d 818 [1999]; see generally Coote v Niagara Mohawk Power Corp., 234 AD2d 907, 908 [1996]; Diven v Village of Hastings-On-Hudson, 156 AD2d 538, 539 [1989]), we conclude as a matter of law that Hill’s “presence [on the property] at the particular time and place of the injury” was not reasonably foreseeable to the Goreckis, and thus, that they owed no legal duty to Hill (Basso v Miller, 40 NY2d 233, 241 [1976]; see Di Ponzio v Riordan, 89 NY2d 578, 585 [1997]; see also Stevens v Kirby, 86 AD2d 391, 394 [1982]; see generally Palsgraf v Long Is. R.R. Co., 248 NY 339, 344 [1928], rearg denied 249 NY 511 [1928]; Butler v E.M.D. Enters., 261 AD2d 842 [1999]). The Goreckis were not present at the party (cf. Lane v Barker, 241 AD2d 739, 740 [1997]), nor did they give their consent for it (cf. Comeau v Lucas, 90 AD2d 674 [1982]). Indeed, the record establishes that the Goreckis had expressly forbidden Douglas from having people in the house while they were away and that they did not allow him to drink or serve alcohol in their home. The court also properly granted the motion of Consumer’s Beverages for summary judgment. Plaintiff asserts that Consumer’s Beverages is liable pursuant to General Obligations Law §§ 11-100 and 11-101 because its unlawful sale of beer to Douglas allegedly contributed to the intoxication of Douglas, rendering Douglas unable to control the party and resulting in Hill’s injuries. We conclude as a matter of law, however, that “[u]nder the circumstances presented here, there is no reasonable or practical connection between the alleged unlawful sale *1216of alcohol to [Douglas] and [Hill’s] resulting injuries” (Beyrle v Finneron [appeal No. 2], 199 AD2d 1023, 1023 [1993]). In addition, plaintiff contends that Consumer’s Beverages’ unlawful sale of beer to Douglas contributed to Douglas’s failure to warn Hill of the cliff. That contention is raised for the first time on appeal and is thus not preserved for our review (see Giangrosso v Kummer Dev. Corp., 8 AD3d 1037, 1038 [2004]; Gorman v Ravesi, 256 AD2d 1134, 1135 [1998]). We further conclude that the court properly granted that part of the motion of Douglas for summary judgment dismissing the claim that Douglas failed to supervise or control the other partygoers. In view of the lengthy and tenuous chain of causation, the court properly concluded as a matter of law that there was no proximate cause between Douglas’s alleged failure to supervise or control the partygoers and Hill’s ultimate injuries (see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]). We agree with plaintiff, however, that the court erred in granting that part of the motion of Douglas for summary judgment dismissing the claim of failure to warn, and we therefore modify the order accordingly. It is well settled that both owners and occupiers owe a duty of reasonable care to maintain property in a safe condition and to give warning of unsafe conditions that are not open and obvious (see Brzostowski v Coca-Cola Bottling Co., 16 AD2d 196, 201 [1962]; see generally Czorniewy v Mosera, 298 AD2d 352, 352-353 [2002]; Williams v Chenango County Agric. Socy., 272 AD2d 906 [2000]; Bombard v Central Hudson Gas & Elec. Co., 205 AD2d 1018, 1020 [1994], lv dismissed 84 NY2d 923 [1994]). Here, Douglas, undisputedly an occupier of the property, failed to establish as a matter of law that the cliff was an open and obvious geographic feature. We therefore conclude that there are issues of fact with respect to Douglas—in contrast to his parents—on the issues of foreseeability and the scope of his duty to warn. We have examined plaintiff’s remaining contention and conclude that it is lacking in merit. Present— Hurlbutt, J.B, Martoche, Centra, Fahey and Green, JJ.

Proceeding pursuant to CPLR article 78 (initiated in the Appellate Division of the Supreme Court in the Fourth Judicial Department pursuant to CPLR 506 [b] [1]) seeking, inter alia, to compel respondent to seal petitioner’s sentencing minutes pursuant to CPL 160.50 and 160.55 and to resentence petitioner. *1217It is hereby ordered that said petition be and the same hereby is unanimously dismissed without costs. Memorandum: In January 1990 petitioner was convicted following a jury trial of murder in the second degree (Penal Law § 125.25 [1]), and was sentenced to a term of imprisonment of 20 years to life. On appeal from his judgment of conviction, petitioner did not raise any issues with respect to the propriety of his sentence, and the judgment of conviction was affirmed by this Court (People v Platten, 175 AD2d 561 [1991], lv denied 78 NY2d 1129 [1991]). Thereafter, petitioner brought several post-trial motions contending that County Court “illegally enhanced” his sentence after improperly considering two inaccurate entries in the presentence report concerning the disposition of prior charges against petitioner. Most recently, petitioner moved pursuant to CPL 160.50 and 160.55 to seal the sentencing minutes containing references to those prior charges and to be resentenced. In an order dated May 23, 2006, respondent denied that motion and no appeal has been taken from that order. Petitioner then commenced this CPLR article 78 proceeding seeking, inter alia, to compel respondent to seal petitioner’s sentencing minutes pursuant to CPL 160.50 and 160.55, and to compel respondent to resentence petitioner. “Mandamus lies to compel the performance of a purely ministerial act where there is a clear legal right to the relief sought” (Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). Mandamus “will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion” (Klostermann v Cuomo, 61 NY2d 525, 539 [1984], quoting Matter of Gimprich v Board of Educ. of City of N.Y., 306 NY 401, 406 [1954] [internal quotation marks omitted]). We conclude that the extraordinary remedy of mandamus does not lie in this instance because petitioner has failed to establish a clear legal right to the relief sought or that the relief sought involves the performance of a purely ministerial act (see CPL 160.50, 160.55 [3]). Contrary to the contentions of petitioner, neither CPL 160.50 nor 160.55 mandates that his sentencing minutes be sealed or that he be resentenced. We further conclude that mandamus is not appropriate here because petitioner is essentially seeking relief from an appealable order (see Matter of Fontani v Hershowitz, 12 AD3d 672, 673 [2004]; see also People v Anonymous, 7 AD3d 309, 310 [2004]). Moreover, petitioner has failed to establish why the instant contentions were not raised in his direct appeal from the judgment of conviction (see Platten, 175 AD2d 561 [1991]). In any event, we conclude that petitioner is collaterally estopped from relitigat*1218ing the contentions raised in his petition (see generally Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349-350 [1999]; Summer v Marine Midland Bank, 227 AD2d 932, 934 [1996]). Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.

Appeal from an adjudication of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), rendered October 16, 2003. Defendant was adjudicated a youthful offender upon a jury verdict finding her guilty of assault in the first degree and endangering the welfare of a child. It is hereby ordered that the adjudication so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a youthful offender adjudication upon a jury verdict finding her guilty of assault in the first degree (Penal Law § 120.10 [3]) and endangering the welfare of a child (§ 260.10 [1]). Contrary to the contention of defendant, Supreme Court did not abuse its discretion in denying her request for an adjournment of the trial in order to obtain her own expert medical witness (see generally People v Patterson, 177 AD2d 1042 [1991], lv denied 79 NY2d 1052 [1992]). Defendant has not shown that her delay in seeking an expert was not a contributing factor in her request for the adjournment (see People v Arroyave, 49 NY2d 264, 271 [1980]). We note in addition that there was no evidence to suggest that the testimony of a medical expert obtained by defendant “would be ‘material, noncumulative and favorable to the defense’ ” (People v Canada, 28 AD3d 1230, 1231 [2006]). Defendant failed to preserve for our review her contention with respect to the alleged legal insufficiency of the evidence (see People v Gray, 86 NY2d 10, 19 [1995]), and we reject her further contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). It cannot be said that the testimony of the People’s wit*1219nesses was incredible as a matter of law (see People v Woods, 26 AD3d 818, 819 [2006], lv denied 7 NY3d 765 [2006]), and the “jury [was] ‘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]). Defendant failed to preserve for our review her further contention that her constitutional right of confrontation was violated when the court allowed the Medical Examiner to testify to hearsay information that she used in formulating her expert opinion, and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Chambers, 20 AD3d 928, 929 [2005], lv denied 5 NY3d 804 [2005]; People v Craig, 15 AD3d 919, 919-920 [2005], lv denied 4 NY3d 852, 5 NY3d 761 [2005]). Finally, viewing the evidence, the law, and the circumstances of this case in totality and as of the time of the representation, we conclude that defendant received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]; People v Gagliardo, 283 AD2d 964 [2001], lv denied 96 NY2d 901 [2001]). The failure of defense counsel to obtain the testimony of an expert does not constitute ineffective assistance of counsel because defendant has not shown that “such testimony was available, that it would have assisted the jury in its determination or that [defendant] was prejudiced by its absence” (People v Castricone, 224 AD2d 1019, 1020 [1996]; see People v Prince, 5 AD3d 1098 [2004]). In any event, that alleged single error in failing to obtain expert testimony was not “so ‘egregious and prejudicial’ as to deprive . . . defendant of [her] constitutional right [to effective assistance of counsel]” (People v Turner, 5 NY3d 476, 480 [2005]; see People v Prue, 26 AD3d 671, 671-672 [2006], lv denied 7 NY3d 816 [2006]). Present— Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Family Court, Oneida County (Frank S. Cook, J.), entered December 16, 2005 in a proceeding pursuant to Family Court Act article 5. The order denied and dismissed the motion of petitioner to vacate an order of filiation entered upon his default. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the order dated February 14, 2005 *1220is vacated and the matter is remitted to Family Court, Oneida County, for further proceedings on the petition. Memorandum: Petitioner, an inmate at a correctional facility, appeals from an order in a proceeding pursuant to Family Court Act article 5 that denied and dismissed his motion to vacate an order of filiation entered upon his default. Based on the record before us, we conclude that petitioner met his burden of establishing a reasonable excuse for the default by averring that he did not refuse to be produced for the court appearance but failed to appear because the correctional facility had no record of the proceeding (see CPLR 5015 [a] [1]). Furthermore, in requesting that a genetic marker test be ordered, petitioner is thereby deemed to assert the defense that he is not the father at issue in this proceeding and thus we conclude that petitioner made the requisite showing of a meritorious defense to the proceeding (see generally Matter of Precyse T., 13 AD3d 1113, 1113-1114 [2004]). Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.

*1221Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered October 7, 2005. The order, insofar as appealed from, denied in part defendants’ motion for, inter alia, dismissal of the amended complaint or, alternatively, for summary judgment dismissing the amended complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motion insofar as it sought dismissal of paragraph 23 of the first cause of action and dismissing that paragraph and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action alleging that defendants breached the “Stipulation and Agreement of Settlement” (settlement agreement) relating to the remediation of certain real property with residual soil and groundwater contamination. Defendants moved for dismissal of the amended complaint pursuant to CPLR 3211 (a) (1) or, alternatively, for summary judgment dismissing the amended complaint, and they sought attorneys’ fees and costs. By the order in appeal No. 1, Supreme Court granted the motion only in part by, inter alia, dismissing the first cause of action in part and refusing to dismiss the third cause of action or to award attorneys’ fees or costs. Plaintiffs subsequently moved for summary judgment dismissing the counterclaims and, by the order in appeal No. 2, the court denied the motion. Defendants appeal from the order in appeal No. 1, and plaintiffs appeal from the order in appeal No. 2. With respect to the order in appeal No. 1, we conclude that the court properly denied defendants’ motion insofar as it sought dismissal of paragraphs 19 through 22 of the first cause of action pursuant to CPLR 3211 (a) (1) or, in the alternative, sought summary judgment dismissing those paragraphs. Plaintiffs essentially allege therein that defendants failed to use their “best efforts to implement and complete” the remediation plan. Although defendants were required pursuant to the settlement agreement to use their “best efforts,” that term is not defined in the settlement agreement and defendants did not otherwise establish the meaning of that term in support of their motion. We thus conclude on the record before us that defendants did not establish their entitlement to dismissal of those paragraphs based on a defense founded on documentary evidence, pursuant to CPLR 3211 (a) (1). Nor are defendants entitled to summary judgment dismissing those paragraphs. The determination whether the “obligation [to use ‘best ef*1222forts’] has been fulfilled will almost invariably, as here, involve a[n issue] of fact,” rendering summary judgment inappropriate (Kroboth v Brent, 215 AD2d 813, 814 [1995]). The court erred, however, in denying defendants’ motion insofar as it sought dismissal of paragraph 23 of the first cause of action, which was withdrawn by plaintiffs’ counsel before argument of defendants’ motion. We therefore modify the order in appeal No. 1 accordingly. We further conclude that the court properly refused to dismiss the third cause of action, seeking a declaration of the parties’ rights and obligations under the settlement agreement. According to defendants, that cause of action is premature because the field activities necessary to determine their obligations have not been completed. Contrary to defendants’ contention, however, a “justiciable controversy” exists to the extent that plaintiffs seek a declaration concerning defendants’ obligations under the settlement agreement with respect to completing an operation, maintenance and monitoring plan (CPLR 3001; see generally Ramunno v Skydeck Corp., 30 AD3d 1074 [2006]). Also contrary to the contention of defendants, the court properly denied that part of their motion for attorneys’ fees. “ Tn New York the general rule is that each litigant is required to absorb the cost of his own attorney’s fees ... in the absence of a contractual or statutory liability’ ” (Umfrey v NeMoyer, 184 AD2d 1047, 1048 [1992]). Defendants do not rely on any statutory basis for their request, and the settlement agreement does not warrant the imposition of liability for attorneys’ fees incurred by defendants at this juncture in the litigation. Pursuant to the settlement agreement, attorneys’ fees “shall be recoverable by Sellers[, i.e., defendants,] or Plaintiffs ... to the extent such party prevails on the merits with regard to any litigation arising from or related to this Settlement Agreement.” Because the court dismissed only a portion of the amended complaint and the litigation remains ongoing, it cannot be said that defendants have prevailed on the merits. Finally, with respect to the order in appeal No. 2, we conclude that the court erred in denying that part of plaintiffs’ motion for summary judgment dismissing the first counterclaim, for tortious interference with contract. “[0]nly a stranger to a contract, such as a third party, can be liable for tortious interference with a contract,” and here plaintiffs are parties to the settlement agreement (Koret, Inc. v Christian Dior, S.A., 161 AD2d 156,157 [1990], lv denied 76 NY2d 714 [1990]; see Winicki v City of Olean, 203 AD2d 893, 894 [1994]). We therefore modify the order in appeal No. 2 accordingly. Present—Gorski, J.P, Smith, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Surrogate’s Court, Oneida County (John G. Ringrose, S.), entered December 23, 2005. The order denied petitioner’s motion for summary judgment dismissing respondent’s notices of election and granted respondent’s cross motion for summary judgment dismissing the petition. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner, executor of the estate of decedent Henry F. Britcher, commenced this proceeding to determine the validity of the notices of election of respondent, decedent’s widow, to take against decedent’s will. Surrogate’s Court properly denied petitioner’s motion for summary judgment dismissing the notices of election and properly granted respondent’s cross motion for summary judgment dismissing the petition. It is undisputed that, although respondent and decedent entered into a separation agreement in 1988 that included a waiver of estate rights, they never divorced and in fact reconciled and resumed their marital relationship in 1995. From 1995 through decedent’s death in 2004, respondent and decedent lived together as a married couple and, in doing so, manifested their intention “to void the [separation] agreement in its entirety” (Matter of Wilson, 50 NY2d 59, 66 [1980]). We reject the contention of petitioner that General Obligations Law § 15-301 (2) requires enforcement of the separation agreement provision providing that the agreement shall not be invalidated without a subsequent writing, and therefore that the waiver of estate rights provision remains valid because there is no such writing. The provision in the separation agreement providing that the agreement shall not be invalidated without a subsequent writing is itself void and cannot be taken to render specific provisions of the agreement independently enforceable where, as here, the “agreement itself, rather than any of its components, is brought to an end” (Wilson, 50 NY2d at 66). Present—Gorski, J.E, Smith, Lunn, Peradotto and Pine, JJ.

Appeal by the employer and its carrier from a decision and award of the Workmen’s Compensation Board. The claimant worked as a *717draftsman from 8:00 a.m. to 4:30 p.m. When work was available he worked for the employer herein from 6:00 p.m. to 2:00 a.m. While working at this latter job the claimant sustained injuries to his face and back. He was unable to perform the work which he did for the employer herein but he has continued to work as a draftsman. The board found “dual and dissimilar” employments (cf. Matter of Brannigan v. Terzakis, 285 App. Div. 980, affd. 309 N. Y. 892). The only question raised here is the correctness of the determination of the claimant’s average weekly wage. The claimant had worked 42 days in the year preceding the accident for this employer, earning $1,269.36 or $30.23 per day. The board utilized subdivision 3 of section 14 of the Workmen’s Compensation Law in arriving at the average weekly wage. Thus the daily wage was multiplied by 200 and divided by 52. The board arrived at $154.73 which as the appellants point out should have been $116.27 but in any event the award would be at the maximum rate of $36. The appellants’ objection is to the use of subdivision 3 of section 14 and they contend that the claimant’s actual earnings should govern which would give him an average weekly wage of $24.41. The board could clearly find that neither subdivisions 1 nor 2 of section 14 could fairly or reasonably be applied here so that subdivision 3 could properly be used. This court has recently upheld awards in two similar cases where by using subdivision 3 of section 14 the amount of the award exceeded the claimant’s earnings. (Matter of Chromey v. Argentieri, 10 A D 2d 749; Matter of Batal v. Mayersohn, 11 A D 2d 857.) While the result in such cases appears to be contrary to section 15 (subd. 6, par. [a]) which provides that compensation when combined with decreased earnings or earning capacity shall not exceed the wages the employee was receiving at the time of the accident, it is the result reached by using the formula set forth in subdivision 3 of section 14 which has been considered a legislative mandate (Matter of Terry v. City of Glens Falls, 2 A D 2d 625, motion for leave to appeal denied l N Y 2d 644). The only limitation would appear to be when the employee has limited his participation in the labor market as in Matter of Derion v. Gilford Mfg. Co. (282 App. Div. 788); Matter of Winter v. Camp Seatico (7 A D 2d 812) and such was not the case here. The claimant testified that he worked whenever there was work, the payroll records indicate that he worked at all times of the year and that he was employed when his seniority would permit. Decision and award affirmed, with costs to the Workmen’s Compensation Board. Bergan, P. J., Coon, Gibson and Reynolds, JJ., concur; Herlihy, J., dissents, in the following memorandum, and votes to reverse and remit: The claimant’s principal occupation was working for the Mergenthaler Linotype Company where for the year immediately preceding the accident he received wages of $4,176.38. In the Summer and on other occasions — primarily around the holiday season when extra help was required — he worked for the appellant. In 1957 he earned $527; in 1956 a total of $853; in 1955 a total of $656; in 1954 a total of $1,917. In August, 1957, while in the employ of the appellant, he received injuries which caused a continuous causally related partial disability. The sole issue here concerns the compensation rate to be paid claimant for such partial disability. The Referee, using the combined wages of the claimant for the year prior to the accident and his earnings following return to work thereafter for the one employer, determined his reduced earnings to bé $8.88 per week. Upon review, the board reversed and determined that pursuant to subdivision 3 of section 14, his average weekly wage was $154.73 which was based solely on his earnings with the brewery and determined his other employment was dissimilar. The board also found that his earnings subsequent to the accident with the Linotype Company could not be used as a factor. On this basis the board fixed his reduced earnings rate at $36 per week which, when translated into yearly earnings, constituted more than claimant earned when actually work*718ing for the brewery — one year excepted. Subdivision 6 of section 15, captioned “Maximum and minimum compensation for disability” after reciting certain formulae, concludes “In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.” The intended purpose of section 14, with which we all agree, was to insure that the claimant receive a proper sum for compensation benefits. With reference to subdivision 3 thereof, this court stated in Matter of Derion v. Gilford Manufacturing Co. (282 App. Div. 788): “ The basic command of the Legislature in setting up the omnibus machinery of subdivision 3 is that the board shall have regard to the previous earnings of the employee and shall attempt to evaluate reasonably his earning capacity.” It is difficult here to conclude that the award is a reasonable evaluation by the board of claimant’s earning capacity. In actuality it leads to the inevitable conclusion that the claimant, who is entitled to compensation, is being overly compensated to the extent that while the award is supposed to be for a partial disability, in reality it is for a full disability. This in no way refers to his full-time employment by the Linotype Company. It may be argued that the amount determined by the Referee would not fairly compensate the claimant but it is obvious it was not the intent of the Legislature to have subdivision 3 applied so as to violate subdivision 6 of section 15. We have recently reviewed several cases (refer to the majority decision) where a similar result to the one here was found and which leads me to conclude that the board is erroneously using the provisions of subdivision 3 of section 14 for arriving at compensation rates in many instances in excess of the claimant’s actual earnings. You cannot blandly pass over subdivision 6 of section 15 by referring to Matter of Terry v. City of Glens Falls (2 AD 2d 625, motion for leave to appeal denied 1 N Y 2d 644). (See Matter of Crawley v. Failla, 6 N Y 2d 57, 61.) The provisions of subdivision 3 are actually self-defeating. The forepart states that “ annual average earnings ” shall “ reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the accident ” but the proviso says they “ shall consist of not less than two hundred times the average daily wage * * * in such employment ”. It is impossible in most eases to satisfy both requirements. But the Legislature surely did not intend its application to be used so as to arrive at an absurd result; to wit, that the compensation to be paid would amount to more than the earnings of the claimant at the time of the injury. The purpose of subdivision 6 of section 15 is to act as a “ stop gap ” in such situations. Such procedure must have been the intent of the Legislature and accordingly should be adhered to. For these various reasons I vote to reverse and remit with instructions to the board to apply subdivision 3 of section 14 where necessary but in such event the award is to be leveled at a point where the amount will not exceed the wages that were being earned at the time of the accident. In this case, the earnings for the year prior to the claimant’s accident were $1,269.36. The rate that has been fixed by the board of $36 per week would amount to $1,872 per year or $602.64 more than his actual earnings. Under such circumstances subdivision 6 of section 15 mandates that $1,269.36 be the maximum and the wage rate of the claimant herein accordingly should be $24.41 per week.

Appeal from an order of the Supreme Court, Jefferson County (Joseph D. McGuire, J.), entered March 9, 2006. The order, among other things, granted the motion of defendants Donald R. Smith and Carol A. Smith for summary judgment dismissing the complaint against them. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking, inter alia, to rescind an easement that allows Donald R. Smith and Carol A. Smith (defendants) to cross plaintiffs property in order to access the roadway from their landlocked property. Supreme Court properly granted the motion of defendants for summary judgment dismissing the complaint against them. The parties entered into an “easement agreement” wherein plaintiff agreed to convey the subject easement to defendants. After the easement agreement was signed by the parties, it was recorded and thereby became the instrument granting the easement to defendants. We reject plaintiffs contention that the easement agreement violates General Obligations Law § 5-703 (2) by failing to recite the consideration supporting it. That section applies to contracts to lease or sell an interest in real property. Section 5-703 (2) does not apply here, however, because the easement agreement was fully performed when it was recorded and became the actual conveyance (see generally Knight v Kirker, 203 AD2d 785, 786 [1994]). As a conveyance of an interest in real property, the easement agreement is governed by section 5-703 (1), which does not require that the writing express the consideration. Even assuming, arguendo, that plaintiff may raise a lack of consideration in entering into the easement agreement, we nevertheless reject plaintiffs contention that the agreement was invalid for a lack of consideration. Legally sufficient consider*1225ation does not necessarily entail a benefit flowing to the promisor (see Holt v Feigenbaum, 52 NY2d 291, 296 [1981]). A “promisee who has incurred a specific, bargained for legal detriment may enforce a promise against the promisor, notwithstanding the fact that the latter may have realized no concrete benefit as a result of the bargain” (Holt, 52 NY2d at 299; see Anand v Wilson, 32 AD3d 808 [2006]). Here, defendants established in support of their motion that they paid $61,500 for the parcel of land adjacent to plaintiffs property in reliance upon plaintiffs promise, reflected by the easement agreement, to grant them the easement, and plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We thus conclude that, insofar as the easement agreement constituted the agreement to convey the easement to defendants, it was supported by legally sufficient consideration. We have considered plaintiffs remaining contentions and conclude that they are without merit. Present—Gorski, J.P., Smith, Lunn, Peradotto and Pine, JJ.

*1226Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered November 17, 2005. The order denied plaintiff’s motion for summary judgment and granted the cross motion of defendant-intervenor for summary judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the cross motion is denied, the amended complaint is reinstated, the motion is granted, plaintiff is granted judgment against defendants and the matter is remitted to Supreme Court, Onondaga County, for a hearing in accordance with the following memorandum: Plaintiff commenced this action alleging, inter alia, that defendant Jarvis Real Estate Holdings, LLC (Jarvis) defaulted on its promissory note to plaintiff and that defendant Lynn K. Dew defaulted as the guarantor on two promissory notes. It is undisputed that both notes were in default. According to defendants, however, plaintiff executed two subordination agreements at the closing of the sale of his business to Bruce J. Dew, Jr., and plaintiff therefore is not entitled to pursue his remedies against defendants because his interests were thereby subordinated to the interests of defendant-intervenor, Manufacturers and Traders Trust Company (M & T). Supreme Court erred in granting the cross motion of M & T for summary judgment seeking dismissal of the amended complaint as well as judgment on its counterclaim against plaintiff “in an amount to be determined” by the court, and we conclude that the court instead should have granted plaintiffs motion for summary judgment. The purchase agreement between plaintiff and Bruce Dew, Jr. provided that Bruce Dew, Jr. would obtain bank financing and that plaintiff “agrees to execute the subordination document(s) requested by Buyer’s lender” as a condition of closing. Plaintiff signed two subordination agreements at the closing, one listing plaintiff as the “CREDITOR,” M & T as the “LENDER” and Bruce Dew, Jr. as the “BORROWER,” and the other listing plaintiff as the “CREDITOR,” M & T as the “LENDER” and Kinville, Ltd. as the “BORROWER.” Each agreement defines the term subordinated obligations in relevant part as “any and all obligations owed by Borrower to Creditor whether now existing or hereafter incurred of every kind and character, whether such obligations are . . . direct, indirect, primary, absolute, secondary, contractual, tortious, liq*1227uidated, unliquidated, contingent, secured, unsecured, matured or unmatured, by guarantee or otherwise” (emphasis added). In addition, section 7 of each agreement requires that “Creditor will not, unless and until the Primary Obligations are fully paid and satisfied and all financial and other arrangements between Lender and Borrower have been terminated: (i) accelerate, request, demand, take, accept, or receive from or on behalf of Borrower, by setoff or in any other manner, any monies representing all or any part of the Subordinated Obligations,” with exceptions not relevant herein (emphasis added). It is a fundamental rule of contractual interpretation that “circumstances extrinsic to [an unambiguous contract] will not be considered when the intention of the parties can be gathered from the instrument itself’ (West, Weir & Bartel v Mary Carter Paint Co., 25 NY2d 535, 540 [1969], rearg denied 26 NY2d 883 [1970], mot to amend remittitur granted 26 NY2d 969 [1970]). In addition, it is well established that, “[a]bsent some indicia of fraud or other circumstances warranting equitable intervention, it is the duty of a court to enforce rather than reform the bargain struck” (Grace v Nappa, 46 NY2d 560, 565 [1979], rearg denied 47 NY2d 952 [1979]). “It is not for the court to enlarge the meaning of the words in the contract so as to correct [an] oversight” (Firtell v Crest Bldrs., 159 AD2d 352, 352 [1990]). “Under . . . New York law, a guarantee agreement is separate and distinct from the contract between lender and borrower” (Marcus Dairy v Jacene Realty Corp., 225 AD2d 528, 528 [1996]). Here, according to the terms of the subordination agreements, plaintiff, as creditor, was not entitled to “initiate or participate” in any action against the borrowers, Bruce Dew, Jr. and Kinville, Ltd. “[I]t does not follow[, however,] that the guarantor[, Lynn Dew,] is similarly immune from suit” (Standard Brands v Straile, 23 AD2d 363, 367 [1965]), nor does it follow that Jarvis, a separate legal entity from Bruce Dew, Jr., is immune from suit based on the subordination agreements, which contain no reference to Jarvis. The subordinated obligations are those of borrowers Bruce Dew, Jr. and Kinville, Ltd. to plaintiff, and the obligations of Jarvis and Lynn Dew to plaintiff are separate and distinct from the obligations of the “borrowers” defined in the subordination agreements. While M & T could have required plaintiff to execute subordination agreements that covered the obligations of Jarvis and Lynn Dew, M & T failed to do so. We further conclude that section 7 of each agreement does not warrant granting M & T’s cross motion. The guarantees executed by Lynn Dew are obligations separate and distinct from *1228the obligations of the borrowers referenced in the subordination agreements, and thus section 7 does not preclude plaintiff from demanding payment from Lynn Dew or Jarvis because neither is a borrower within the meaning of that section. We therefore reverse the order, deny M & T’s cross motion, reinstate the amended complaint, grant plaintiff’s motion, grant plaintiff judgment against defendants and remit the matter to Supreme Court for a hearing on damages, including attorneys’ fees. Present—Gorski, J.E, Lunn, Peradotto and Pine, JJ.

Proceeding under article 78 of the Civil Practice Act to review a determination of the Commissioner of Motor Vehicles which suspended for 30 days petitioner’s operator’s license after a hearing and upon a finding that petitioner operated his automobile “ in a manner showing a reckless disregard for life and property of others in Sullivan County, N. Y. on 4/20/59 ”, in violation of Vehicle and Traffic Law (§ 71, subd. 3, par. [e]) then in effect. The Referee found that petitioner, pro*719eeeding on a four-lane highway divided by a mall on a clear dry day (the time being about 11:15 a.m.) and when, as he admitted, he could see several hundred feet ahead, observed a tractor and a tank trailer, painted white, in the right lane, in which he was traveling; and, assuming the tractor and trailer were moving he continued in the right lane, although there was no traffic in the left lane, until 50 to 75 feet from the rear of the trailer when, realizing that it was stopped, he veered to avoid it but nevertheless collided with it. The tractor driver testified that he turned on eight lights on the rear of the trailer when he left it 10 minutes before and the Referee found that the lights were on. This driver was fined for stopping on the pavement. Petitioner testified that he watched the trailer as he travelled several hundred feet and was 100 feet away when he observed that it was stopped. The petition states that petitioner’s car was “ demolished ” and that he and his wife sustained “ severe personal injuries The Referee particularized the violation as petitioner’s failure to observe the vehicle in front of him and to use the unused portion of the highway to avoid striking the rear of that vehicle. Petitioner’s argument is addressed in considerable measure to the evidence, but its weight and credibility were, of course, for the Commissioner and, in fact, the findings were based in large part upon petitioner’s testimony. Petitioner also argues forcefully that the negligence of the tractor operator was such as to relieve petitioner, at least from the charge of “reckless disregard for life or property”; but, of course, we may not assay comparative negligence nor may we apply contributory negligence as a bar. The inquiry was not directed to responsibility for the accident but to the manner of petitioner’s operation. It is entirely conceivable that all the operators involved in an accident may be guilty of such highly reckless conduct as to constitute gross negligence in extreme degree on the part of each. Upon this record, the finding was well within the area of factual determination committed to the Commissioner. “Where casual, or slight negligence ends, and gross negligence begins may be difficult to determine, but essentially the issue is predominantly one of fact and not of law. Where there is room for the trier of the facts to draw diffierent conclusions certainly the issue is one of fact.” (Matter of Kelley v. Kelly, 5 A D 2d 913, 914.) It is true that momentary failure of attentiveness and of control, resulting in accident, may in some circumstances constitute no more than ordinary negligence; but to relax attention and control while operating upon a modern, high-speed, divided highway at the rate of speed reasonably inferable from the facts of this case is to invite catastrophe of extreme severity. Negligence being relative, it seems to us that as risk and danger are thus magnified the degree of culpability is increased in proportion. It is also true, as the dissenting memorandum points out, that a driver may not expect to find a truck standing upon the pavement of a highway such as this; but temporary obstructions or impediments to travel in the outside lane are clearly foreseeable; and equally clear is the duty to be prepared, in such eases, to move to the passing lane. In previous cases, failure to observe and to avoid have been recognized as determinative factors in the Commissioner’s evaluation and his action upon a finding of reckless driving was in each instance affirmed. (See Matter of Cohn v. Fletcher, 297 N. Y. 851; Matter of Deutsch v. Hults, 10 A D 2d 724.) Determination confirmed, without costs. Coon, Gibson, Herlihy and Reynolds, JJ., concur; Bergan, P. J., dissents, in the following memorandum: There are several cardinal principles of safety on high-speed thruways and other limited access roads. One of them is that no vehicle capable of moving is ever brought to a dead stop on the pavement. Drivers used to operating vehicles on these modem roads must watch out for certain expected dangers; but the danger of a single vehicle at a dead stop on the pavement is so unusual a situation as to lie beyond all reasonable expectation of danger based on experience. One might drive for years and for many thousands of miles on turnpikes and thruways without actually encountering *720any such thing. And at high speeds the careful driver looks out for certain things which need quick action and adjustment; hut even the most careful driver does not expect to find a truck stopped dead on the pavement with no one standing near it and with no warning, flare or sign. It is easy to believe that a truck in a travelled lane ahead is moving. It is quite understandable, therefore, that although petitioner saw the truck a considerable distance ahead of him, he thought, as anyone would, that it “was rolling at the time”. To see the truck ahead and to see that it was at a dead stop are quite different things. Of course, whether the truck was stopped or moving, petitioner theoretically ought to have been able to avoid striking it; but at high speeds approaches occur very quickly and much more rapidly with an object standing still than moving in the same direction; and it is easy to understand how a mistake of judgment might occur in such a situation as this. A driver proceeding at a high speed behind a truck would normally go through an almost automatic calculation of making a move to pass the truck; but if he suddenly realized the truck was stopped rather than moving, the readjustment would have to be very rapid and it is obvious petitioner did not make it fast enough. The mistake that petitioner made is that he was not aware until too close to the situation, that a grossly and deceptively dangerous situation had been created on the road ahead of him. This may, or many not, be ordinary negligence for which a civil liability might result; but in the view I take of this record, it is not as a matter of law a “ reckless disregard of life and property of others ” which would warrant suspension of petitioner’s license. (Matter of Jenson v. Fletcher, 277 App. Div. 454.) The determination ought to be annulled.

Appeal and cross appeal from a judgment of the Supreme Court, Jefferson County (Joseph D. McGuire, J.), entered December 13, 2005 in a personal injury action. The judgment was entered upon a jury verdict awarding plaintiff zero damages for past and future pain and suffering. *1229It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by denying the motion for a directed verdict in part and as modified the judgment is affirmed without costs, and a new trial is granted on the issue of negligence only in accordance with the following memorandum: Plaintiff commenced this action to, inter alia, recover damages for personal injuries sustained by his infant child when a vehicle driven by defendant ran over the child. The child was allegedly playing in a driveway while defendant was backing the vehicle out of the driveway. Following the close of evidence, plaintiff moved for a directed verdict on the issue of liability. Supreme Court granted the motion and submitted to the jury only the issue of damages for past and future pain and suffering. The jury awarded no damages for past or future pain and suffering. Thereafter, plaintiff moved to set aside the verdict as contrary to the weight of the evidence. The court granted the motion to the extent of ordering a new trial on the issue of damages for past pain and suffering. Subsequently, a judgment was entered upon the jury verdict awarding zero damages. Defendant appeals, and plaintiff cross-appeals, from that judgment. We reject defendant’s contention that the court erred in granting that part of plaintiffs motion to set aside the verdict and for a new trial on past damages. The jury’s failure to award damages for past pain and suffering deviates materially from what would be reasonable compensation, and courts are bound to correct plainly inadequate verdicts (see CPLR 5501 [c]; Kriesel v May Dept. Stores Co., 261 AD2d 837 [1999]; Pitts v Columbus McKinnon Corp., 75 AD2d 1002, 1003 [1980]). Plaintiff has not pursued in his brief any issue with respect to the jury’s verdict awarding zero damages for future pain and suffering, and we therefore deem that issue abandoned (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). We agree with defendant, however, that the court erred in granting that part of plaintiffs motion for a directed verdict pursuant to CPLR 4401 on the issue of defendant’s negligence. Plaintiff had the burden of showing that the evidence, viewed in the light most favorable to defendant, established as a matter of law that there was no rational process by which the jury could find in favor of defendant (see Szczerbiak v Pilot, 90 NY2d 553, 556 [1997]; Borawski v Huang, 34 AD3d 409 [2006]). On this record, plaintiff failed to meet that burden. Accepting the testimony of defendant as true and affording it every favorable inference, a jury could have rationally found that she exercised reasonable care in backing her vehicle out of the driveway (see *1230e.g. Kelley v Kronenberg [appeal No. 2], 2 AD3d 1406, 1408 [2003]). The evidence at trial established that defendant did not see any children prior to getting into her vehicle and that defendant did not see any children prior to backing up the vehicle, despite turning to look behind the vehicle and looking in the vehicle’s mirrors. Further, there were disputed factual issues concerning the occurrence of the accident that can only be resolved after a jury assesses the credibility of the witnesses (see Matter of Scarozza v Tudor Plaza, 306 AD2d 927, 928 [2003]). Thus, we modify the judgment accordingly. During the pendency of the appeal, a second trial was held on damages for past pain and suffering. We therefore grant a new trial before a different justice on the issue of defendant’s negligence only. Present—Gorski, J.E, Smith, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment (denominated order) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered December 21, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is granted in part in accordance with the following memorandum: Petitioners commenced this CPLR article 78 proceeding against respondent Town of Newport (Town), the members of its Zoning Board of Appeals (ZBA), and Humpf Sanitation, LLC (Humpf), the owner of two parcels of property adjacent to petitioners’ property. Petitioners sought, inter alia, to annul the determination of the ZBA confirming the Town Building Code Enforcement Officer’s issuance of a building permit allowing Humpf to construct a new 18,000-square-foot, 35-foot-high “Sanitation/Transfer Station” on one of the two parcels. In confirming the issuance of the building permit, the ZBA agreed with the determination of the Building Code Enforcement Officer that Humpf was legally continuing, and not illegally expanding, a prior nonconforming use of that parcel as a solid waste transfer facility. Supreme Court erred in dismissing the petition in its entirety inasmuch as the construction of the new building by Humpf for *1231use as a solid waste transfer facility violated the pertinent provisions of the zoning ordinance and common-law principles governing prior nonconforming uses. “A use of property that existed before the enactment of a zoning restriction that prohibits the use is a legal nonconforming use, but the right to maintain a nonconforming use does not include the right to extend or enlarge that use” (Matter of McDonald v Zoning Bd. of Appeals of Town of Islip, 31 AD3d 642, 642-643 [2006]; see Matter of P.M.S. Assets v Zoning Bd. of Appeals of Vil. of Pleasantville, 98 NY2d 683, 685 [2002]; Matter of Rudolf Steiner Fellowship Found, v De Luccia, 90 NY2d 453, 458 [1997]; Matter of Toys “R” Us v Silva, 89 NY2d 411, 417 [1996]). “Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination” (Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison, 1 NY3d 561, 562 [2003]; see Toys “R” Us, 89 NY2d at 417). Therefore, “the courts, in keeping with the sound public policy of eventually extinguishing all nonconforming uses of property, will enforce municipal ordinances which restrict a landowner’s ability to expand or intensify a prior existing nonconforming use” (Matter of Smith v Board of Appeals of Town of Islip, 202 AD2d 674, 676 [1994]; see Matter of Syracuse Aggregate Corp. v Weise, 72 AD2d 254, 257-258 [1980], affd 51 NY2d 278 [1980]; Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160, 164 [1972]). Here, there is substantial evidence in the record that the parcel not designated for construction of the building was devoted to use for the hauling and transfer of solid waste when the zoning ordinance was enacted, in December 1978. We conclude, however, that the ZBA’s determination that the parcel upon which the building was constructed was then so used lacks a rational basis and is not supported by substantial evidence (see Town of Canaan v S.C.L. Form Co., Inc., 32 AD3d 619 [2006], lv denied 7 NY3d 714 [2006]; Matter of Watral v Scheyer, 223 AD2d 711, 712 [1996]; see generally Toys “R” Us, 89 NY2d at 423) and, indeed, we note that Humpfs predecessor in interest did not purchase that parcel until 1986. In any event, Humpf’s building does not meet the definition of a “NonConforming Building” under the zoning ordinance, which requires that the building have “lawfully existed at the time [of the] enactment of this ordinance” (Town of Newport Zoning Ordinance, art II, § 3). Moreover, under common-law principles, the construction of a building to enclose even a valid nonconforming use previously conducted outdoors would result in an unlawful expansion or intensification of such use (see Matter of Saladino v Fernan, 204 AD2d 554, 555 [1994]; see also Matter of *1232Mueller v Zoning Bd. of Appeals of Town of Southold, 10 AD3d 687, 690 [2004]; see generally Smith, 202 AD2d at 676). Under the circumstances of this case, a use variance was required. We therefore reverse the judgment and grant the petition in part by annulling the ZBA’s determination. Present—Gorski, J.P., Smith, Lunn, Peradotto and Pine, JJ.

*1233Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered July 9, 2004. The judgment convicted defendant, upon a jury verdict, of assault in the first degree and burglary in the first degree (two counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reversing those parts convicting defendant of two counts of burglary in the first degree and dismissing counts two and three of the indictment and as modified the judgment is affirmed. Memorandum: On appeal from a judgment convicting him upon a jury verdict of two counts of burglary in the first degree (Penal Law § 140.30 [2], [3]) and one count of assault in the first degree (§ 120.10 [1]), defendant contends that his conviction of the two counts of burglary in the first degree is not supported by legally sufficient evidence. We agree, and therefore modify the judgment accordingly. The People proceeded to trial under the theory that defendant remained unlawfully in the dwelling with the intent to commit a crime therein. As the Court of Appeals observed in People v Gaines (74 NY2d 358 [1989]), “[t]he word ‘remain’ in the phrase ‘enter or remain’ is designed to be applicable to cases in which a person enters with ‘license or privilege’ but remains on the premises after termination of such license or privilege” (id. at 362 [internal quotation marks omitted]; see People v Licata, 28 NY2d 113, 117 [1971]). The evidence failed to establish that defendant’s license or privilege to be in the dwelling términated, and therefore is legally insufficient to establish that defendant unlawfully remained therein (see People v Bowen, 17 AD3d 1054, 1055 [2005], lv denied 5 NY3d 759 [2005]; People v Konikov, 160 AD2d 146, 152-153 [1990], lv denied 76 NY2d 941 [1990]). Defendant failed to move to strike the testimony of the victim or to take exception to Supreme Court’s ruling allowing the victim to invoke his Fifth Amendment right against self-incrimination when questioned about his drug use on cross-examination, and thus defendant failed to preserve for our review his contention that he was deprived of his right of confrontation by the court’s failure to strike the victim’s testimony (see People v Burnett, 270 AD2d 901, 902 [2000], lv denied 95 NY2d 851 [2000]; People v Owusu, 234 AD2d 893 [1996], lv denied 89 NY2d 1039 [1997]). In any event, “the invocation of the privilege with respect to one question did not deprive defendant of his right of confrontation because the question related to a collateral matter, i.e., credibility” (Burnett, 270 AD2d at 902). Defendant also failed to preserve for our review *1234his contention that the People improperly elicited testimony concerning his uncharged criminal activity without first requesting a hearing as to its admissibility (see People v Powell, 303 AD2d 978 [2003], lv denied 100 NY2d 565, 1 NY3d 541 [2003]; People v Trembling, 298 AD2d 890, 891-892 [2002], lv denied 99 NY2d 540 [2002]). In any event, the “testimony was relevant to defendant’s motive and ... its prejudicial effect did not outweigh its probative value” (People v Orbaker, 302 AD2d 977, 977 [2003], lv denied 100 NY2d 541 [2003]). Furthermore, “the testimony was necessary to complete the narrative of the victim’s account of the events underlying the crime” (id.). The sentence is not unduly harsh or severe. We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Scudder, EJ., Martoche, Smith, Peradotto and Pine, JJ.

Order unanimously reversed and proceeding remitted to the Brie County Court for a hearing in accordance with the memorandum. Memorandum: The defendant maintains that he was prevented from mailing a notice of appeal within the 30-day period from the date of his sentence because the authorities in the State prison refused to provide postage or to allow him to borrow against future credit a sum sufficient to pay for the postage for the mailing of the notice of appeal. In support of his contention, the defendant submitted upon this appeal, with the consent of the District Attorney, a photostatic copy of a notice of appeal prepared in time and authenticated by a notary public at the State prison. Under the circumstances, a hearing should be held by the County Court to develop the facts. We do not undertake to determine at this time whether coram nobis or habeas corpus or an original motion in this court is the proper remedy, if it should be found that the defendant was wrongfully prevented from serving a notice of appeal (cf. People v. Guhr, 5 A D 2d 688; People v. Hill, 9 A D 2d 451). (Appeal from order of Erie County Court denying defendant’s application for writ of error coram nobis.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.

Appeal from a judgment of the Erie County Court (Michael L. D’Amico, J.), rendered February 16, 2005. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: On appeal from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [3]), defendant contends that County Court erred in determining that he was ineligible for youthful offender status and in denying his request for such status. Contrary to defendant’s contention, the record establishes that the court did not determine that defendant was ineligible for youthful offender status and thus did not fail to exercise its discretion in denying defendant’s request. Rather, the record establishes that the court exercised its discretion in denying defendant’s request for such status. Contrary to the further contention of defendant, he validly waived his right to appeal (see People v Gilbert, 17 AD3d 1164 [2005], lv denied 5 NY3d 762 [2005]) and, to the extent that defendant contends that the court abused its discretion in denying his request for youthful offender status, the waiver encompasses that contention (see People v Scott, 31 AD3d 1190 [2006]). Present—Scudder, PJ., Martoche, Smith, Peradotto and Pine, JJ.

Order unanimously reversed and proceeding remitted to the Onondaga County Court for a hearing. Memorandum: Petitioner alleges that he stands convicted, on his plea of guilty, of the crime of sodomy in the second degree, whereas he was indicted for that crime in the first degree only. Sodomy, second degree, is not necessarily an included crime or an inferior degree of the crime of sodomy, first degree (People v. Cipolla, *7237 A D 2d 698, affd. as to this ground and reversed in part on other grounds 6 N Y 2d 922). He may well have been convicted of a crime of which he had not been indicted contrary to the provisions of section 6 of article I of the 'Constitution of the State of New York. The appropriate remedy in this situation, if there is any, is unclear under the authorities (Matter of Lyons v. Ward, 272 App. Div. 120, affd. 297 N. Y. 617, affd. sub nom. Paterno v. Lyons, 334 U. S. 314; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Englese, 7 N Y 2d 83, 87; People ex rel. Guido v. Calkins, 10 A D 2d 510; People ex rel. Tracker v. Martin, 268 App. Div. 955; People ex rel. Hornbeck v. Jackson, 6 A D 2d 924; People ex rel. Tesseyman v. Murphy, 8 A D 2d 682; Tesseyman v. State of New York, 21 Misc 2d 534; People ex rel. Cooper v. Martin, 5 A D 2d 736; People v. Paterno, 187 Misc. 56). No counsel was assigned in the proceeding by the trial court or by this court upon appeal. A hearing should be held, counsel assigned, if requested, and the facts and the law fully explored at the trial level. (Appeal from order of Onondaga County Court denying defendant’s application for writ of error coram, nobis.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.

Appeal from a judgment of the Orleans County Court (James E Punch, J.), rendered August 22, 2005. The judgment revoked defendant’s sentence of probation and imposed a sentence of imprisonment. It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Orleans County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment revoking the sentence of probation imposed upon his conviction of attempted criminal possession of a weapon in the third degree (Penal Law §§ 110.00, 265.02 [1]). Defendant contends that the evidence at the probation violation hearing is insufficient to support the determination that he violated the conditions of his probation because the People failed to establish by a preponderance of the evidence that he failed to report to his probation officer. We reject defendant’s contention. The People presented uncontroverted evidence that defendant missed several appointments with his probation officer and did not offer a reasonable explanation for missing those appointments (see generally CPL 410.70 [3]; People v Misita [appeal No. 1], 26 AD3d 815 [2006], lv denied 6 NY3d 836 [2006]). We agree with defendant, however, that there is an error with respect to his sentence. Although defendant is designated as a violent felony offender on each sentence and commitment with respect to both the underlying plea and the violation of probation, they each indicate that he was convicted of attempted *1235criminal possession of a weapon under Penal Law § 265.02 (1), a nonviolent felony offense (see § 70.02 [1] [d]). We note that the certificate of conviction for that underlying conviction is not included in the record on appeal. County Court imposed an indeterminate term of imprisonment of U/s to 4 years, which sentence may properly be imposed for either a nonviolent or a violent class E felony offense (see § 70.00 [2], [3]; § 70.02 [2] [c] [i], [ii]). We are unable to determine on the record before us whether the designation of defendant as a violent felony offender on each sentence and commitment is merely a clerical error (see People v Martinez, 37 AD3d 1099 [2007]), whether the court improperly designated defendant as a violent felony offender and sentenced him accordingly, or whether defendant was in fact convicted of attempted criminal possession of a weapon as a violent felony and each sentence and commitment contains a clerical error with respect to the subdivision of that offense (see § 70.02 [1] [d]). We therefore hold the case, reserve decision and remit the matter to County Court to determine whether the errors are clerical in nature or whether defendant was improperly sentenced as a violent felony offender. Present—Scudder, PJ., Martoche, Smith, Peradotto and Pine, JJ.

Order unanimously affirmed. Memorandum: Upon the defendant’s application for leave to appeal on handwritten papers, permission was granted but counsel was not assigned. It appeared that the petitioner had in his possession all of the papers upon which the application for a writ of error coram nobis had been heard in the court below. The only question raised by the defendant is whether he was properly advised by his attorneys at the time he pleaded guilty to murder, second degree. That is a question upon which access to papers would not be material or relevant and we have, therefore, felt it proper to proceed to a disposition of the case (People v. Breslin, 4 N Y 2d 73; People v. McCallum, 8 N Y 2d 155). The defendant’s contention affords no ground to disturb the judgment of conviction; therefore we affirm. In the defendant’s brief in this court the defendant attempts to raise a question concerning his mental condition at the time of his plea but nothing was said about that question in his petition. The question is not before us and we do not pass upon it. (Appeal from order of Monroe County Court denying defendant’s motion to vacate judgment of March 15, 1955 convicting defendant of the crime of murder, second degree.) Present — Williams, P. J., Bastow, Halpern, McClusky and Henry, JJ.

Appeal from a decree of the Surrogate’s Court, Monroe County (Edmund A. Calvaruso, S.), entered December 14, 2005. The decree, insofar as appealed from, settled the final account of a trust established in 1926. It is hereby ordered that the decree so appealed from be and *1236the same hereby is unanimously reversed on the law without costs and the matter is remitted to Surrogate’s Court, Monroe County, for further proceedings in accordance with the following memorandum: In appeal No. 1, Elizabeth McNabb, the intervenor herein, appeals from a decree that settled the final account of a trust established by Florence S. Woodward (grantor) in 1926 for the benefit of her daughter, Barbara W. Piel, and in appeal No. 2, Elizabeth appeals from a decree that settled the final account of a trust established by the grantor in 1963, also for the benefit of Barbara. The 1926 trust provided, in relevant part, for distribution of income from the trust to “Barbara Woodward” during her lifetime and for distribution of the principal in equal shares to her “descendants” after her death. The 1963 trust provided for distribution of income from the trust to “Barbara W. Piel” during her lifetime and, upon her death, the principal was to be divided in equal shares, one “for each then living child of hers.” The income of each child’s share was to be distributed to the child during his or her lifetime, and the principal of that share was to be distributed at the time of the child’s death to the child’s “living issue” per stirpes. Barbara died on July 2, 2003, thereby triggering the distribution provisions of both trusts. Elizabeth was born out-of-wedlock to Barbara in 1955 and was adopted out shortly after her birth. Barbara thereafter married and had two more daughters, respondents Stobie Piel and Lila Piel-Ollmann, who were born in 1959 and 1961, respectively. We agree with Elizabeth that the Surrogate erred in approving the final accounts, both of which exclude her from sharing in the proceeds of the trusts. As of September 8, 2004, the aggregate principal balance of the trusts was over $9.5 million. The Surrogate erred in relying upon Matter of Best (66 NY2d 151 [1985], rearg denied 66 NY2d 1036 [1985], cert denied sub nom. McCollum v Reid, 475 US 1083 [1986]) in determining that, because Elizabeth was adopted out of the family, she is not a “descendant” or “child” of Barbara and is therefore not included within the class of intended remainderpersons or beneficiaries of the trusts. Domestic Relations Law § 117 was amended in 1963, effective in 1964, to limit the right of an adopted-out child to inherit from and through the adoptive parents (see § 117 [1], [2]), rather than permitting the adopted-out child to inherit from and through both the biological and adoptive parents (see former § 117). The statute as amended implemented the intent of the Legislature “that the adopted child be severed from the biological family tree and be engrafted *1237upon new parentage” (Best, 66 NY2d at 155). The statute was further amended in 1966 to clarify that the 1964 amendments limited only the intestacy rights of the adopted-out child, and not the right of the child to take pursuant to a will or an inter vivos trust (see NY Cons Laws Serv, Book 8, Domestic Relations Law § 117, Note at 478). The trusts at issue herein were executed when Domestic Relations Law former § 117 was in effect, while Matter of Best was decided in 1985 and concerned a will executed in 1973 (see Best, 116 Misc 2d 365 [1982]), well after the effective dates of the amendments to Domestic Relations Law § 117 in 1964 and 1966. We thus conclude that the policy considerations and reasoning set forth in Matter of Best do not apply to this case. It is axiomatic that the intent of the grantor controls in construing a trust instrument and that such intent generally must be ascertained from the four corners of the instrument (see generally Mercury Bay Boating Club v San Diego Yacht Club, 76 NY2d 256, 267 [1990]; Sankel v Spector, 33 AD3d 167, 171 [2006]). However, the “[u]se of the term issue in a dispositive instrument has always been viewed as ambiguous, with its meaning depending on the intent of the decedent as derived from the content of the entire [instrument]” (Best, 66 NY2d at 154), and so too, here, we are unable to discern from the content of the trust instruments whether the grantor intended to include Elizabeth as a “descendant” or “child” (see generally Matter of Cord, 58 NY2d 539, 544 [1983], rearg denied 60 NY2d 586 [1983]). Nor can the grantor’s intent be ascertained by considering “the facts and circumstances surrounding the execution” of the trust instrument (Matter of Leventritt, 92 Misc 2d 598, 603 [1977]). We note that, although Elizabeth contends that she was known to Barbara and is known to Barbara’s marital children, there is nothing in the record indicating whether the grantor knew Elizabeth or, indeed, whether she was aware that Elizabeth had been born and had been adopted. Also relevant in determining the intent of the grantor is the law in effect when the trust was executed (see Matter of Vought, 29 AD2d 97, 102 [1967], appeal dismissed 21 NY2d 957 [1968]; Matter of Kellogg, 36 Misc 2d 1064, 1065 [1962]). The grantor is presumed to have known the law when she executed the trusts (see generally Cord, 58 NY2d at 545; Leventritt, 92 Misc 2d at 603) and, construing the terms of the trusts pursuant to the law then in effect (see Domestic Relations Law § 117 [3]; see generally Matter of Gardiner, 113 AD2d 651, 662 [1985], affd 69 NY2d 66 [1986]), we conclude that the status of Elizabeth as an adopted-out child does not exclude her from the class of *1238Barbara’s descendants or children (cf. Best, 66 NY2d at 154-155). We reject petitioner’s contention that, regardless of the status of Elizabeth as an adopted-out child, her status as a nonmarital child prevents her inclusion in the class of Barbara’s descendants or children. We recognize that, at the time the trusts were executed, the laws with respect to descent and distribution gave preference to the legal rights of marital or “lawful” children over the rights of nonmarital children, and the burden was on the nonmarital child to prove that the testator or grantor intended to include the nonmarital child in the class of descendants, children or issue (see Matter of Hoffman, 53 AD2d 55, 57 [1976]). We also recognize “the ancient concept that [a nonmarital] child was indeed ... a child of nobody,. . . without legal status” (id.). We nevertheless conclude that the status of Elizabeth as a nonmarital child does not prevent her inclusion in the class of Barbara’s descendants or children. Former Decedent Estate Law § 83 (13), which in 1926 was section 89, was in effect when the trusts at issue herein were executed, and that statute recognized the status of a nonmarital child as the descendant of his or her mother, albeit through the provision that such child shall inherit only in the event that no “lawful issue” existed. In addition, Domestic Relations Law former § 117 specifically provided that adopted-out children may inherit from and through their biological as well as their adoptive parents. We therefore conclude that, because the laws of devise and distribution in effect when the trusts herein were executed recognized that nonmarital children were included, at least to some extent, in the class of descendants or children of their parents, Elizabeth is not excluded from the class of Barbara’s descendants and children. Thus, in each appeal, we reverse the decree and remit the matter to Surrogate’s Court for further proceedings consistent with this decision. Present—Scudder, EJ., Martoche, Smith, Peradotto and Pine, JJ.

Appeal from an order (denominated judgment) of the Supreme Court, Orleans County (James E Punch, A.J.), dated October 13, 2005 in a breach of contract action. The order denied plaintiffs motion for an order on an issue of fact. It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs. Memorandum: In this breach of contract action, plaintiff appeals from an order denying his “Motion for an Order on Issue of Fact.” The order is not appealable as of right, and we decline to grant plaintiff leave to appeal sua sponte (see CPLR 5701 [a], [c]). We therefore dismiss the appeal. It is well settled that an order that does not involve some part of the merits or affect a substantial right of the parties is not appealable as of right (see CPLR 5701 [a] [2] [iv], [v]; see generally Shahram v St. Elizabeth School, 21 AD3d 1377, 1378 [2005]; Schaner v Mercy Hosp. of Buffalo, 16 AD3d 1095, 1097 [2005]; Scalp & Blade v Advest, Inc., 309 AD2d 219, 224-225 [2003]). In addition, “[t]he courts of New York do not issue advisory opinions for the fundamental reason that in this State [t]he giving of such opinions is not the exercise of the judicial function. The role of the judiciary is to give the rule or sentence, and thus the courts may not issue judicial decisions that can have no immediate effect and may never resolve anything” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988] [citations and internal quotation marks omitted]). Based upon the record before us, we are unable to conclude that the denial of plaintiff’s motion affected a substantial right of the parties or that the motion sought a determination resolving an actual controversy involving the merits of this action. Present—Scudder, P.J., Martoche, Smith, Peradotto and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County *1241(Patrick H. NeMoyer, J.), entered June 15, 2006 in a personal injury action. The order, insofar as appealed from, denied the motion of defendant Gernatt Asphalt Products, Inc. for summary judgment dismissing the supplemental complaint and cross claims against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff slipped and fell on the sidewalk of premises owned by defendants Country Fair, Inc., Prime Realty, Inc. and Prime Realty II, Inc. (collectively, Country Fair), and she commenced this action, individually and on behalf of her infant son, to recover damages for her own injuries resulting from that fall as well as those resulting from the premature birth of her son. Country Fair had contracted with Gernatt Asphalt Products, Inc. (defendant) to plow snow from the parking lot of the premises and, following discovery, defendant moved for summary judgment dismissing the “supplemental” complaint and cross claims against it. We conclude that Supreme Court properly denied defendant’s motion. Although “a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party” (Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]; see Church v Callanan Indus., 99 NY2d 104, 111 [2002]; Cooper v Time Warner Entertainment-Advance/Newhouse Partnership, 16 AD3d 1037 [2005]), one exception to that general rule is “where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, Taunche[s] a force or instrument of harm’ ” (Espinal, 98 NY2d at 140; see Anderson v Jefferson-Utica Group, Inc., 26 AD3d 760, 760-761 [2006]). Here, defendant failed to meet its burden on the motion because it failed to establish as a matter of law that it “did not perform any snow removal operations with respect to the condition that caused . . . plaintiff’s injury [or those of plaintiff’s son], or, alternatively, that if [it] did perform such operations, those efforts did not create or exacerbate a dangerous condition” (Prenderville v International Serv. Sys., Inc., 10 AD3d 334, 337 [2004]). Indeed, by submitting evidence that defendant’s snowplow operator plowed snow onto the sidewalk where plaintiff fell, defendant submitted evidence that its snowplow operator “create[d] an unreasonable risk of harm to others, or increase[d] that risk” (Church, 99 NY2d at 111; see e.g. Reznicki v Strathallan Hotel, Inc., 12 AD3d 156, 157 [2004]; Dappio v Port Auth. of N.Y. & N.J., 299 AD2d 310, 311-312 [2002]). Thus, because defendant failed to meet its initial burden, the burden never shifted to plaintiff to raise a triable issue of fact (see gen*1242erally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Scudder, EJ., Martoche, Smith, Peradotto and Pine, JJ.

Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.), rendered January 5, 2004. The judgment convicted defendant, upon his plea of guilty, of robbery in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of robbery in the first degree (Penal Law § 160.15 [4]). We reject defendant’s contention that the sentence is unduly harsh or severe. Where, as here, defendant “effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for” (People v Chambers, 123 AD2d 270, 270 [1986]; see People v McCullers, 40 AD2d 796, 797 [1972], affd 33 NY2d 806 [1973]; People v Northrup, 23 AD3d 1102 [2005], lv denied 6 NY3d 757 [2005]). We agree with defendant, however, that County Court erred in setting the expiration date of the order of protection without taking into account the jail-time credit to which he is entitled (see People v Hare, 27 AD3d 1171, 1172 [2006], lv denied 6 NY3d 894 [2006]; People v Newman, 21 AD3d 1343, 1343-1344 [2005]). Although defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment by amending the order of protection, and we remit the matter to County Court to determine the jail-time credit to which defendant is entitled and to specify in the order of protection an expiration date that is three years from the date of expiration of the maximum term of the sentence (see People v Grice, 300 AD2d 1005, 1006 [2002], lv denied 99 NY2d 654 [2003]). Present—Scudder, P.J., Gorski, Centra, Green and Pine, JJ.

*1243Appeal from an order of the Supreme Court, Monroe County (Frank E Geraci, Jr., A.J.), entered February 22, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Based upon the total risk factor score on the risk assessment instrument, defendant was presumptively classified as a level one risk (see generally People v Brown, 302 AD2d 919, 920 [2003]), and the Board of Examiners of Sex Offenders (Board) recommended an upward departure to level two. The Board’s recommendation was based in part upon evidence that, “when [defendant] becomes non-compliant with his prescribed medications, ... he decompensates to a dangerous, psychotic level with sexually aggressive features.” Supreme Court concluded, however, that defendant is presumptively a level three risk based upon the presumptive override for “mental abnormality,” i.e., “a clinical assessment that the offender has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 3 [Nov. 1997]). Alternatively, the court concluded that an upward departure from defendant’s presumptive risk level was warranted because “there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” (id. at 4). Contrary to defendant’s contention, clear and convincing evidence supports the court’s conclusions that the presumptive override applies and that an upward departure to level three is warranted (see People v Seils, 28 AD3d 1158 [2006], lv denied 7 NY3d 709 [2006]; see generally Brown, 302 AD2d at 920). The Feople established that defendant has a “mental abnormality” and the failure of defendant to take prescribed medication, coupled with his tendency to self-medicate with drugs and alcohol, decreases his ability to control his impulsive sexual behavior (see People v Marinconz, 178 Misc 2d 30, 38 [1998]; cf. *1244People v Perkins, 35 AD3d 1167, 1168 [2006]; People v Zehner, 24 AD3d 826, 827 [2005]), causing defendant to pose a serious risk to public safety and justifying his classification as a level three risk (see Seils, 28 AD3d 1158 [2006]). Present—Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

Appeal from a judgment of the Wyoming County Court (Mark H. Dadd, J.), rendered May 12, 2005. The judgment convicted defendant, upon a jury verdict, of promoting prison contraband in the first degree (three counts) and criminal possession of a weapon in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law and a new trial is granted on counts one, two, three and five of the indictment. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts of promoting prison contraband in the first degree (Penal Law § 205.25 [2]) and one count of criminal possession of a weapon in the third degree (§ 265.02 [1]). We reject the contentions of defendant that the evidence is legally insufficient to establish the element of intent with respect to the conviction of criminal possession of a weapon in the third degree (see People v Duran, 6 AD3d 809, 811 [2004], lv denied 3 NY3d 639 [2004]), and the evidence is legally insufficient to establish his knowing and unlawful possession of three items of dangerous contraband with respect to the conviction of promoting prison contraband in the first degree (see People v Mendoza, 244 AD2d 815 [1997], lv denied 91 NY2d 943 [1998]). We agree with defendant, however, that reversal is required because County Court erred in denying defendant’s request to charge the affirmative defense of entrapment (see Penal Law § 40.05). A correction officer testified that he agreed to obtain a television set for defendant in exchange for information concerning weapons in the correctional facility where defendant was an *1246inmate, and the correction officer further proposed that defendant could turn over a weapon to him as a “show of good faith.” When defendant later handed a weapon to the correction officer, the correction officer told him that he wanted more information and that “this is the beginning.” The correction officer arranged for defendant to pick up his television set the following day. A short time thereafter, other correction officers searched defendant’s cell and discovered the three homemade weapons underlying the conviction herein. In our view, “the evidence adduced at trial reasonably and sufficiently supports an inference that ‘(1) [defendant] was actively induced or encouraged to commit the offense by a public official; and (2) such inducement or encouragement created a “substantial risk” that the offense[s] would be committed by defendant who was not otherwise disposed to commit [them]’ ” (People v Delaney, 309 AD2d 968, 970 [2003], quoting People v Brown, 82 NY2d 869, 871 [1993]). The court therefore should have granted defendant’s request to charge the affirmative defense of entrapment (see generally People v Fuller, 130 AD2d 840, 841-842 [1987]; People v Navarro, 104 AD2d 958, 959 [1984]). Present—Scudder, P.J., Gorski, Centra, Green and Pine, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered July 12, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree and assault in the second degree and, upon his plea of guilty, of criminal possession of a weapon in the third degree (two counts) and escape in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of assault in the second degree (Penal Law § 120.05 [2]) and other offenses arising out of events that occurred on July 2, 2003, and also convicting him upon his plea of guilty of three offenses arising out of events that occurred on June 5, 2004. The indictment alleged that, on or about July 2, 2003, defendant, inter alia, assaulted a man with a dangerous instrument and attempted to murder another man. The indictment further alleged that, on or about June 5, 2004, defendant, inter alia, possessed a loaded firearm. Before trial, Supreme Court granted defendant’s motion to sever counts 1 through 4 from counts 5 through 7. We reject the contention of defendant that the court erred in summarily denying his motion for substitution of assigned counsel. “Contrary to the contention of defendant, his allegations did not establish a serious complaint concerning defense counsel’s representation and thus did not suggest a serious possibility of good cause for substitution [of counsel]” (People v Randle [appeal No. 2], 21 AD3d 1341, 1341 [2005], lv denied 6 NY3d 757 [2005] [internal quotation marks omitted]; see People v Lawrence, 27 AD3d 1120 [2006], lv denied 6 NY3d 850 [2006]; see generally People v Sides, 75 NY2d 822, 824 [1990]). Contrary to the further contention of defendant, “[t]he court properly exercised its discretion in denying defendant’s request to introduce expert testimony on identification . . ., particularly since [four] of the . . . identifying witnesses knew defendant for many years” (People v Miller, 8 AD3d 176, 176 [2004], mod on other grounds 6 NY3d 295 [2006]), and thus the proposed expert testimony would not “ ‘aid a lay jury in reaching a verdict’ ” (People v Lee, 96 NY2d 157, 162 [2001], quoting People v Taylor, 75 NY2d 277, 288 [1990]; see People v Paccione, 295 AD2d 451 [2002], lv denied 98 NY2d 771 [2002]). Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support the conviction of assault in the second degree (see People v Gray, 86 NY2d 10, 19 [1995]). Defendant contends that the verdict on counts 1 through 4 is against the weight of the evidence on the sole ground that he was not the individual who committed the offenses. We reject that contention. In support of his contention, defendant relies on the testimony of two witnesses that defendant was with them that night and the testimony of another witness that he did not see defendant that night in the area in which the crimes occurred. Several witnesses testified, however, that they had known defendant for significant periods of time and that he was the man who committed the offenses at issue in the *1248jury trial. “Great deference is to be accorded to the [jury’s] resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony” (People v Valencia, 263 AD2d 874, 876 [1999], lv denied 94 NY2d 799 [1999]; see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Roman, 17 AD3d 1166, 1167 [2005], lv denied 5 NY3d 768 [2005]), and we see no basis to disturb the jury’s resolution of credibility issues in this case. Defendant contends that the court erred in denying his motion to suppress evidence obtained on June 5, 2004 because the police lacked reasonable suspicion “to justify [the] pursuit of [him].” We reject that contention. “[T]he police may forcibly stop or pursue an individual if they have information which, although not yielding the probable cause necessary to justify an arrest, provides them with a reasonable suspicion that a crime has been, is being, or is about to be committed” (People v Martinez, 80 NY2d 444, 447 [1992]). Reasonable suspicion is defined as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (People v Cantor, 36 NY2d 106, 112-113 [1975]; see People v Woods, 98 NY2d 627, 628 [2002]; Martinez, 80 NY2d at 448). In this case, an officer observed a group of young people on the porch of a house known to be occupied by elderly people. The officer had arrested one man in the group two weeks earlier on the same city block for narcotics offenses and trespassing on a porch. While observing the group, the officer noticed “high traffic” entering and leaving the porch. When the officer approached the group, one man admitted to possessing marihuana, and the officer recovered a large bag containing multiple smaller bags of what appeared to be marihuana. Defendant fled the scene when the officer asked to speak with him, and the officer pursued him. We thus conclude that the police had the requisite reasonable suspicion that criminal activity was at hand to justify the pursuit of defendant. Because we are affirming that part of the judgment convicting defendant of counts 1 through 4, we reject his contention that his plea of guilty on counts 5 through 7 must be vacated (see People v Van Every, 1 AD3d 977, 979 [2003], lv denied 1 NY3d 602 [2004]; People v Cato, 306 AD2d 914 [2003], lv dismissed 1 NY3d 569 [2003]; People v McCullough, 278 AD2d 915, 918 [2000], lv denied 96 NY2d 803 [2001]; cf. People v Fuggazzatto, 62 NY2d 862, 863 [1984]). Contrary to defendant’s final contention, the sentence is not unduly harsh or severe. Present—Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

Appeal from an order of the Family Court, Seneca County (Dennis F. Bender, J.), entered February 16, 2006 in a proceeding pursuant to Family Court Act article 6. The order vacated a prior order of the court dated January 3, 2006, granted petitioner visitation and set a visitation schedule. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner appeals from an order setting forth his visitation schedule with the parties’ child. Family Court had refused six weeks earlier to modify the existing joint custody arrangement pursuant to which respondent had physical placement of the child upon determining that petitioner failed to establish a sufficient change of circumstances, and had ordered that the court would establish a visitation schedule in the event that the parties were unable to reach an agreement with respect to visitation. The record on appeal covers the proceedings concerning both orders. Assuming, arguendo, that this appeal from the order setting a visitation schedule brings up for review the court’s prior order with respect to physical placement of the child (see generally Family Ct Act § 1118; CPLR 5501 [a] [1]), we conclude that the court’s determination with respect to physical placement is supported by a sound and substantial basis in the record and thus will not be disturbed (see Matter of Amy L.W. v Brendan K.H., 37 AD3d 1060 [2007]; Sorce v Sorce, 16 AD3d 1077 [2005]). We reject petitioner’s further contention that the court erred in failing to conduct a hearing before setting the visitation schedule. The court’s hearing with respect to petitioner’s request for a change in physical placement assured that the court “ ‘possessed sufficient information to render an informed determination that was consistent with the child’s best interests’ ” (Matter of Bogdan v Bogdan, 291 AD2d 909, 909 [2002]; see Matter of Marmolejo v Calabrese, 23 AD3d 1122, 1123 [2005]). We have reviewed petitioner’s remaining contention and conclude that it is without merit. Present—Scudder, PJ., Gorski, Centra, Green and Pine, JJ.

Appeal from an order of the Family Court, Oneida County (John E. Flemma, J.H.O.), entered August 3, 2005 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition of respondents for custody of the child and granted sole custody of the child to petitioner. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacat*1250ing the fourth ordering paragraph and as modified the order is affirmed without costs. Memorandum: Family Court properly granted the petition to modify a prior order of custody and visitation by restricting the visitation of respondents with their granddaughter, petitioner’s daughter, and properly denied respondents’ cross petition seeking custody of the child. There is sufficient evidence in the record to support the court’s determination that respondents’ continued unsupervised visitation with the child is not in her best interests (Domestic Relations Law § 72 [1]). With respect to their cross petition, respondents failed to establish that petitioner relinquished his parental right to custody because of surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006], Iv denied 7 NY3d 717 [2006]; Matter of Gary G. v Roslyn B, 248 AD2d 980, 981 [1998]). In any event, there is no evidence in the record to support a determination that the best interests of the child warrant a change in custody from petitioner to respondents. We conclude, however, that the court erred in ordering that respondents may not make any further application to the court regarding the custody and visitation of the child without the approval of the child’s counselor. The counselor should not be required to pass upon the merits of respondents’ petitions (see Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We therefore modify the order accordingly. We have reviewed the remaining contentions on appeal and conclude that they are without merit. Present— Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

*1252Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Cayuga County [Mark H. Fandrich, A.J.], entered October 24, 2006) to review a determination of respondent. The determination terminated petitioner’s employment with the New York State Division of State Police. It is hereby ordered that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed. Memorandum: The sole issue raised by petitioner in this CPLR article 78 proceeding is whether the penalty of termination of his employment with the New York State Division of State Police (State Police) imposed upon the finding that he was guilty of six of the eight charges filed against him is shocking to one’s sense of fairness. We note at the outset that, although Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g) because petitioner does not raise a substantial evidence issue, we address the merits of the issue raised by petitioner in the interest of judicial economy (see Matter of Moulden v Coughlin, 210 AD2d 997 [1994]). “A police force is a quasi-military organization demanding strict discipline . . . and much deference is to be accorded the internal discipline of, and the penalties imposed upon, its members” (Richichi v Galligan, 136 AD2d 616, 616 [1988]). The determination that any penalty short of termination would discredit the integrity of the State Police and damage the trust and confidence of the public in the State Police is entitled to great deference. We thus conclude that the penalty of termination is not so disproportionate to the misconduct as to be shocking to one’s sense of fairness (see generally Matter of Kelly v Safir, 96 NY2d 32, 38 [2001], rearg denied 96 NY2d 854 [2001]). Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Green, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered March 22, 2005. The judgment, upon a jury verdict, convicted defendant of burglary in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). We reject the contention of defendant that he was sentenced as a persistent felony offender in violation of the ruling in Apprendi v New Jersey (530 US 466 [2000]) and its progeny (see People v West, 12 AD3d 152 [2004], affd 5 NY3d 740 [2005], cert denied 546 US 987 [2005]; People v Rivera, 5 NY3d 61, 66-68 [2005], cert denied 546 US 984 [2005]; People v Nelson, 16 AD3d 1172 [2005], lv denied 5 NY3d 766 [2005], cert denied 546 US 1043 [2005]). Supreme Court properly denied that part of defendant’s omnibus motion seeking dismissal of the indictment pursuant to CPL 30.30. “[A] statement of readiness made contemporaneously with the filing of the indictment can be effective to stop the ‘speedy trial’ clock if the indictment is filed at least two days before the CPL 30.30 period ends” (People v Carter, 91 NY2d 795, 798 [1998]). Here, the indictment was so filed, and the prosecutor thereafter promptly notified defense counsel of the statement of readiness (see People v Smith, 1 AD3d 955, 956 [2003], lv denied 1 NY3d 634 [2004]; see generally People v Kendzia, 64 NY2d 331, 337 n [1985]; People v Anderson, 252 AD2d 399 [1998], lv denied 92 NY2d 1027 [1998]). The evi*1254dence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction (see People v Salvatore, 178 AD2d 566, 567 [1991]; see also People v Reeves, 195 AD2d 950 [1993]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The verdict is not against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Because the conviction is supported by legally sufficient evidence at trial, the contention of defendant in his pro se supplemental brief that the court erred in denying that part of his omnibus motion seeking dismissal of the indictment based upon the alleged insufficiency of the evidence before the grand jury is not reviewable on appeal (see CPL 210.30 [6]; People v Smith, 4 NY3d 806, 808 [2005]; People v Trammell, 19 AD3d 1157, 1158 [2005]). Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Green, JJ.

Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered July 18, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of assault in the first degree (Penal Law § 120.10 [4]). Contrary to the contention of defendant, his waiver of the right to appeal is valid. When defendant informed County Court that he did not understand the terms of the plea and the waiver, the court explained the terms and ascertained that defendant understood them. The court then asked defendant to execute a written waiver of the right to appeal, and defendant did so. Thus, we conclude that defendant “knowingly, voluntarily and intelligently waived his right to appeal as part of the plea bargain” (People v Jefferson, 203 AD2d 908, 908 [1994], lv denied 83 NY2d 968 [1994]), and we conclude that the waiver was obtained under “constitutionally acceptable circumstances” (People v Callahan, 80 NY2d 273, 283 [1992]). The valid waiver by defendant of the right to appeal encompasses his challenge to the severity of the sentence and also “includes waiver of the right to invoke [this Court’s] interest-of-justice jurisdiction to reduce the sentence” (People v Lopez, 6 NY3d 248, 255 [2006]). Contrary to the contention raised by defendant in his pro se supplemental brief, the court did not violate CPL *1255200.70 in granting the People’s motion to amend the indictment. The amendment is of no moment inasmuch as defendant pleaded guilty to a lesser included offense of the initially charged felony murder count, as authorized by CPL 220.10 (4) (see generally People v Glover, 57 NY2d 61, 64 [1982]). To the extent that the further contention of defendant in his pro se supplemental brief that he was denied effective assistance of counsel was not forfeited by his plea of guilty and survives his waiver of the right to appeal (see People v Rivera, 30 AD3d 1019 [2006], lv denied 7 NY3d 870 [2006]), we conclude that he received meaningful representation (see generally People v Ford, 86 NY2d 397, 404 [1995]). We reject as factually inaccurate and meritless defendant’s pro se contentions that the court did not conduct further inquiry to ensure that the capacity of defendant to plead guilty was not being affected by his psychiatric medication (see People v Yoho, 24 AD3d 1247, 1248 [2005]), and that the court did not fulfill its duty of further inquiry with respect to a possible intoxication defense (see People v Zodarecky, 15 AD3d 861, 862 [2005]). Finally, we reject the contention of defendant that he was coerced into accepting the plea by the fact that the court gave him only a short time to consider the plea offer (see People v Lesame, 239 AD2d 801, 802 [1997], lv denied 90 NY2d 941 [1997]; People v Berezansky, 229 AD2d 768, 770 [1996], lv denied 89 NY2d 919 [1996]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered December 1, 2003. The judgment convicted defendant, upon a jury verdict, of assault in the second degree (three counts), reckless endangerment in the first degree (three counts) and criminal possession of a weapon in the second degree (four counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of three counts of assault in the second degree (Penal Law § 120.05 [2]) and various other crimes arising out of his involvement in three separate shootings. Defendant contends that the conviction is not supported by legally sufficient evidence and that the verdict is against the weight of the evidence. Defendant preserved his contention concerning the legal sufficiency of the evidence only insofar as he alleges that there is no evidence of physical injury to support his conviction of assault in the second degree (see People v Gray, 86 NY2d *125610, 19 [1995]). We conclude that the evidence is legally sufficient to support the conviction of assault in the second degree (see People v Snyder, 294 AD2d 381 [2002], lv denied 98 NY2d 702 [2002]). The verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to the further contention of defendant, he was not denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defendant’s statements to the police were properly received in evidence as party admissions (see Prince, Richardson on Evidence § 8-203 [Farrell 11th ed]). Finally, the sentence is not unduly harsh or severe. Present— Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti, J.), rendered July 8, 2003. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20 [1]). We reject the contention of defendant that Supreme Court erred in denying his request for a missing witness charge. Defendant failed to establish that the individuals who were the subject of the requested charge would be expected to provide noncumulative testimony favorable to the prosecution (see People v Hilts, 191 AD2d 779, 780-781 [1993], lv denied 81 NY2d 1074 [1993]; People v Williams, 186 AD2d 469, 469-470 [1992], lv denied 81 NY2d 849 [1993]). Indeed, the two eyewitnesses testified that those individuals were accomplices, and “the People should not be required to call a witness whose testimony would be ‘presumptively suspect’ ” (People v Arnold, 298 AD2d 895, 895 [2002], lv denied 99 NY2d 580 [2003]; see also People v Karas, 21 AD3d 1360 [2005], lv denied 5 NY3d 886, 6 NY3d 814 [2005]). Also contrary to the contention of defendant, the court properly denied his Batson challenge. “The court was in the best position to observe the demeanor of the prospective juror[ ] *1257and the prosecutor,” and its determination that the prosecutor’s explanation for exercising a peremptory challenge with respect to that prospective juror was not a pretext for discrimination is entitled to great deference (People v Williams, 13 AD3d 1214, 1215 [2004], lv denied 4 NY3d 857 [2005]; see People v Lawrence, 23 AD3d 1039 [2005], lv denied 6 NY3d 835 [2006]). We reject the further contention of defendant that the court’s Sandoval ruling, pursuant to which the People were allowed to cross-examine defendant with respect to a prior attempted robbery conviction, constitutes an abuse of discretion (see People v Gilliam, 36 AD3d 1151 [2007]; People v Parris, 30 AD3d 1108 [2006], lv denied 7 NY3d 816 [2006]; People v Jamison, 278 AD2d 100 [2000], lv denied 96 NY2d 784 [2001]). Contrary to defendant’s contention, “an exercise of a trial court’s Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning . . . , particularly where, as here, the basis of the court’s decision may be inferred from the parties’ arguments” (People v Walker, 83 NY2d 455, 459 [1994]). The sentence is not unduly harsh or severe, and there is no indication in the record that the sentence imposed was the product of vindictiveness (see People v White, 12 AD3d 1200 [2004], lv denied 4 NY3d 768 [2005]). “The mere fact that a sentence imposed after trial is greater than that offered in connection with plea negotiations is not proof that defendant was punished for asserting his right to trial” (People v Simon, 180 AD2d 866, 867 [1992], lv denied 80 NY2d 838 [1992]; see People v Pena, 50 NY2d 400, 411-412 [1980], rearg denied 51 NY2d 770 [1980], cert denied 449 US 1087 [1981]). We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

*1258Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.), rendered November 13, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree (two counts). It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by directing that the sentence imposed for criminal possession of a weapon in the second degree shall run concurrently with the sentence imposed for murder in the second degree and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon in the second degree (former § 265.03 [2]), and two counts of criminal possession of a weapon in the third degree (§ 265.02 [4], [7]). Contrary to defendant’s contention, Supreme Court did not err in admitting in evidence recordings of telephone calls made by defendant from jail, nor did it err in admitting in evidence computer records of the dates, times, durations, and target numbers of those telephone calls. The People established by clear and convincing evidence the circumstances under which the voice recordings were generated and obtained, and they established that the voice recordings were genuine and in an unchanged condition (see People v Ely, 68 NY2d 520, 527-528 [1986]; People v Connelly, 35 NY2d 171, 174 [1974]; People v Franks, 35 AD3d 1286 [2006]; People v Bell, 5 AD3d 858, 861-862 [2004]). In addition, a police investigator sufficiently identified the voices heard therein (see People v Williams, 281 AD2d 933 [2001], lv denied 96 NY2d 869 [2001]; People v Fuschino, 278 AD2d 657, 659 [2000], lv denied 96 NY2d 800 [2001]; see generally Ely, 68 NY2d at 527-528). We further conclude that the People established the necessary foundation for the admission of the computer records as business records by establishing that their contents were recorded contemporaneously with the events in the regular course of the business of the telephone service provider (see CPLR 4518 [a]; People v Cratsley, 86 NY2d 81, 89-91 [1995]; People v Kennedy, 68 NY2d 569, 575-578 [1986]). Also contrary to the contention of defendant, the court properly refused to allow his aunt to testify that his cousin had admitted to shooting the victim. “There was insufficient evidence to assure the trustworthiness and reliability” of the declaration to warrant its admission as a declaration against penal *1259interest (People v Fowler, 31 AD3d 784, 785 [2006], lv denied 7 NY3d 867 [2006]; see People v Wallace, 270 AD2d 823, 824 [2000], lv denied 95 NY2d 806 [2000]; see generally People v Brensic, 70 NY2d 9, 14-16 [1987], mot to amend remittitur granted 70 NY2d 722 [1987]; People v Settles, 46 NY2d 154, 167 [1978]). We agree with defendant that the sentence imposed for criminal possession of a weapon in the second degree must run concurrently with the sentence imposed for murder in the second degree, and we therefore modify the judgment accordingly. Given the element of intent to use the weapon unlawfully against another and the lack of any evidence that defendant intended to use his weapon unlawfully against another apart from its use in the shooting, the crimes of criminal possession of a weapon in the second degree and murder must be regarded as a “single act or omission” (Penal Law § 70.25 [2]; see People v Hamilton, 4 NY3d 654, 657-658 [2005]; People v Boyer, 31 AD3d 1136, 1139 [2006], lv denied 7 NY3d 865 [2006]; People v Rudolph, 16 AD3d 1151, 1152-1153 [2005], lv denied 5 NY3d 809 [2005]; cf. People v Salcedo, 92 NY2d 1019, 1021-1022 [1998]). We further conclude, however, that the sentences imposed for criminal possession of a weapon in the third degree, which crimes were completed prior to the shooting, may run consecutively to the sentence imposed for murder in the second degree (see People v Hall, 309 AD2d 511 [2003], lv denied 1 NY3d 572 [2003], 3 NY3d 641 [2003]; People v Willson, 272 AD2d 959, 960 [2000], lv denied 95 NY2d 873 [2000]; People v Peterson, 216 AD2d 32 [1995], lv denied 86 NY2d 800 [1995]; People v Simpson, 209 AD2d 281, 282 [1994]; see generally Salcedo, 92 NY2d at 1021-1022). The sentence, as so modified, is not unduly harsh or severe. With respect to the contentions of defendant in his pro se supplemental brief, we conclude that the conviction is supported by legally sufficient evidence and that the verdict is not against the weight of the evidence on the issue of defendant’s homicidal intent (see generally People v Bleakley, 69 NY2d 490, 495 [1987]); that the court did not err in charging the jury or in composing the verdict sheet; and that defendant was not denied effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.

Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered November 10, 2004. The judgment convicted defendant, upon a jury verdict, of sexual abuse in the first degree and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of sexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see People v Peckham, 8 AD3d 1121 [2004], lv denied 3 NY3d 679 [2004]; People v Pope [appeal No. 1], 6 AD3d 1128 [2004], lv denied 3 NY3d 645 [2004]; People v Jackson, 4 AD3d 848, 849 [2004], Iv denied 2 NY3d 801 [2004]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to his further contention, defendant was not deprived of effective assistance of counsel. “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defendant’s] attorney provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see generally People v Henry, 95 NY2d 563, 565 [2000]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

Appeal from an amended judgment of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered January 24, 2006. The amended judgment, upon a jury verdict in favor of plaintiff and against defendant, awarded plaintiff the amount of $18,945.15. It is hereby ordered that the amended judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action alleging that defendant’s property, which was contiguous to her property, was used by drug users and sellers who engaged in, inter alia, offensive and illegal behavior. Plaintiff further alleged that defendant refused to comply with her demand that he discontinue such use of his property, and she asserted a claim for private nuisance. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint and, following a jury trial, an amended judgment was entered in favor of plaintiff. Contrary to the contention of defendant, the court properly denied his motion for summary judgment dismissing the *1262complaint. The elements of a claim for private nuisance are “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” (Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977], rearg denied 42 NY2d 1102 [1977]). “ ‘An invasion of another’s interest in the use and enjoyment of land is intentional when the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his [or her] conduct’ ” (id. at 571; see Higgins v Village of Orchard Park, 277 AD2d 989, 990 [2000]). Even assuming, arguendo, that defendant met his initial burden on the motion, we conclude that plaintiff raised triable issues of fact concerning the degree of interference with her use and enjoyment of her property and whether defendant knew or should have known that he was interfering with plaintiffs interest in the use and enjoyment of plaintiffs property (see Murray v Young, 97 AD2d 958 [1983]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The contention of defendant that his motion should have been granted based on the disparity between the deposition testimony of plaintiff and her tax receipts is lacking in merit. That disparity merely raised an issue of credibility, and it is not the function of the court to resolve credibility issues in the context of a motion for summary judgment (see Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]; Rivera v State of New York, 19 AD3d 1030, 1031 [2005]; Gedon v Bry-Lin Hosps., 286 AD2d 892, 894 [2001], lv denied 98 NY2d 601 [2002]). Contrary to defendant’s further contentions, the verdict is not against the weight of the evidence with respect to liability or damages (see Vacca v Valerino, 16 AD3d 1159 [2005]; see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]), and the award of damages for loss of rental income, reduced by the court and to which plaintiff stipulated, does not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

Appeal from an order and judgment (one paper) of the Supreme Court, Yates County (W. Patrick Falvey, A.J.), entered August 21, 2006. The order and judgment dismissed the petitions. *1263It is hereby ordered that the order and judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioners commenced these consolidated proceedings pursuant to RPTL article 7 to challenge the assessments on their residential property for the 2004 and 2005 tax years. In appeal No. 1, petitioners appeal from an order and judgment dismissing the petition for the 2004 tax year on the merits following a hearing, and dismissing the second petition based on the ruling at the outset of the hearing that petitioners’ appraisal report for 2005 was inadmissible in view of the appraiser’s failure to utilize the correct taxable status date for that tax year. In appeal No. 2, petitioners appeal from an order denying their posthearing motion to reopen the record to accept a soil analysis report. We conclude in appeal No. 1 that Supreme Court properly dismissed the petitions. Petitioners failed to meet their burden of establishing by a preponderance of the evidence that the assessments for the tax years at issue were excessive (see Matter of Rosewood Prop. Co. v Board of Assessment Review for Town of Hamburg, 309 AD2d 1163 [2003], lv denied 2 NY3d 704 [2004]). The court’s ultimate finding concerning the value of the property is within the range of the expert testimony and supported by substantial evidence, and the court adequately explained the basis for its ultimate finding (see Matter of Universal Packaging v Assessor of City of Saratoga Springs, 259 AD2d 875 [1999]; Matter of Alexander’s Dept. Store of Val. Stream v Board of Assessors, 227 AD2d 549, 551 [1996]; Matter of Krebs v Board of Assessors, 225 AD2d 625 [1996]; Matter of O’Dwyer v Robson, 103 AD2d 1036 [1984]). We further conclude in appeal No. 1 that the court properly excluded the appraisal evidence with respect to the 2005 tax year based on the appraiser’s use of the incorrect taxable status date (see RPTL 301, as amended by L 2004, ch 733, § 1; 302 [1]; Matter of SKM Enters. v Town of Monroe, 2 Misc 3d 1004[A], 2004 NY Slip Op 50138[U], *3-4; see also Matter of Northville Indus. Corp. v Board of Assessors of Town of Riverhead, 143 AD2d 135, 136 [1988]). We have considered petitioners’ remaining contention in appeal No. 1 and conclude that it is without merit. Finally, we conclude with respect to appeal No. 2 that the court did not abuse its discretion in denying petitioners’ posthearing motion to reopen the record. Although a court has discretion to grant leave to reopen a matter to allow additional proof (see Kay Found, v S & F Towing Serv. of Staten Is., Inc., *126431 AD3d 499, 501 [2006]; Matter of Dutchess County Dept. of Social Servs. v Shirley U., 266 AD2d 459, 460 [1999]), that discretion should be exercised sparingly (see Kay Found., 31 AD3d at 501; Lindenman v Kreitzer, 7 AD3d 30, 33 [2004]; King v Burkowski, 155 AD2d 285, 286 [1989]). Here, the motion was made belatedly (see Noga v Noga, 235 AD2d 1002 [1997]; Shapiro v Shapiro, 151 AD2d 559, 560-561 [1989]), and “[t]his is not an instance in which a party [sought] ‘to reopen and supply defects in evidence which have inadvertently occurred’ ” (Matter of Radisson Community Assn., Inc. v Long, 28 AD3d 88, 91 [2006], quoting Dutchess County Dept. of Social Servs., 266 AD2d at 460). Present—Hurlbutt, J.E, Martoche, Smith, Fahey and Green, JJ.

*1265Appeal from an order of the Supreme Court, Monroe County (Harold L. Galloway, J.), entered February 8, 2006. The order, inter alia, denied the cross motion of defendant Patrie Doyle for summary judgment dismissing the amended complaint against him. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying those parts of the motion with respect to the cause of action for breach of contract and the claim for negligent misrepresentation, providing in the third ordering paragraph that plaintiffs are awarded judgment on the cause of action for conversion in the amount of $57.50, granting the cross motion in part and dismissing the cause of action for unjust enrichment and the claim for negligent misrepresentation against defendant Patrie Doyle and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action asserting causes of action for breach of contract, conversion, unjust enrichment, and fraud or negligent misrepresentation and seeking to recover health care insurance benefits paid to the former wife of Patrie Doyle (defendant). According to plaintiffs, defendant’s former wife submitted medical claims and received benefits in the approximate sum of $66,276.13 between the years 1997 and 2002 despite the fact that she had become ineligible for benefits under defendant’s insurance plan upon her divorce from defendant in 1984. Supreme Court granted those parts of plaintiffs’ motion with respect to the causes of action for breach of contract and conversion and on the claim for negligent misrepresentation against defendant and denied the cross motion of defendant for summary judgment dismissing the amended complaint against him. We agree with defendant that the court erred in granting that part of plaintiffs’ motion with respect to the cause of action for breach of contract, and we therefore modify the order accordingly. Even assuming, arguendo, that plaintiffs met their initial burden on the motion, we conclude that defendant raised issues of fact by his affidavit submitted in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We note that the court improperly resolved credibility issues on a motion for summary judgment when it determined *1266that the deposition testimony of defendant and his former wife was not credible (see Town Bd. of Town of Ellicott v Lee, 241 AD2d 958, 959 [1997]; see also Rivera v State of New York, 19 AD3d 1030 [2005]; cf. Sexstone v Amato, 8 AD3d 1116, 1117 [2004], lv denied 3 NY3d 609 [2004]). The court properly granted that part of plaintiffs’ motion with respect to the cause of action for conversion, but the court should have awarded plaintiffs only the amount of $57.50 with respect to that cause of action, and we therefore further modify the order accordingly. Plaintiffs established their “ ‘legal ownership or an immediate superior right of possession to [that] specific identifiable [amount]’ . . . [over which] defendant exercised an unauthorized dominion” (Meese v Miller, 79 AD2d 237, 242-243 [1981]; see Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 124 [1990], lv denied 77 NY2d 803 [1991]). The court erred, however, in granting that part of plaintiffs’ motion with respect to the claim for negligent misrepresentation and should have granted that part of the cross motion of defendant for summary judgment dismissing that claim against him, and we therefore further modify the order accordingly. The parties had only an ordinary business relationship, not the requisite “special relationship of trust or confidence” that would support a claim for negligent misrepresentation (H & R Project Assoc. v City of Syracuse, 289 AD2d 967, 969 [2001]; see Kimmell v Schaefer, 89 NY2d 257, 263-264 [1996]; Wright v Selle, 27 AD3d 1065, 1066-1067 [2006]). In addition, the claim for negligent misrepresentation fails as a matter of law because it is not based on circumstances extraneous to the performance of the contract, i.e., the contractual duty of defendant to disclose to the insurance fund any changes in his marital status (see Rocco v Town of Smithtown, 229 AD2d 1034, 1035 [1996], appeal dismissed 88 NY2d 1065 [1996]). Finally, we conclude that the court erred in denying that part of the cross motion of defendant for summary judgment dismissing the cause of action for unjust enrichment against him, and we therefore further modify the order accordingly. “The existence of a valid and enforceable written contract governing a particular subject matter precludes recovery in quasi-contract or unjust enrichment for occurrences or transactions arising out of the same matter” (Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1202-1203 [1998]; see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572 [2005]). Here, the contract between the parties governs the ongoing duty of defendant to inform plaintiffs of any changes in his marital status. Present— Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered July 14, 2006. The order granted the motion of defendant for leave to renew its prior motion for summary judgment dismissing the complaint and, upon renewal, granted the motion. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Almost three years after a fire on premises containing security systems installed by defendant, plaintiff, the owner of the premises, commenced this action seeking to recover damages allegedly arising from, inter alia, the failure of the security systems to prevent or mitigate the fire damage to the property. Plaintiff appeals from an order granting the motion of defendant for leave to renew its prior motion for summary judgment dismissing the complaint and, upon renewal, granting the motion for summary judgment on the ground that the action is time-barred pursuant to the one-year limitations period set forth in the parties’ contract. We conclude that Supreme Court properly granted the motions. Contrary to plaintiffs contention, defendant is not estopped from asserting the one-year limitations period in the contract. It cannot be said that plaintiff was “induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449 [1978]; see Ragno v Nationwide Assoc., Inc., 35 AD3d 321 [2006]; Garcia v Peterson, 32 AD3d 992, 993 [2006]; Herman v Depinies, 273 AD2d 146, 147 [2000]). Present—Hurlbutt, J.P, Martoche, Smith, Fahey and Green, JJ.

*1268Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Mark H. Dadd, A.J.], entered October 11, 2006) to review a determination of respondent. The determination found after a tier III hearing that petitioner violated various inmate rules. It is hereby ordered that the determination be and the same hereby is unanimously annulled on the law without costs, the petition is granted, and respondent is directed to expunge from petitioner’s institutional record all references to the charges underlying the determination. Memorandum: Petitioner commenced this CPLR article 78 proceeding challenging the determination that he violated various inmate rules by, inter alia, conspiring to possess alcohol or intoxicants, conspiring to possess drugs, and engaging in inmate telephone abuse. Petitioner alleged, inter alia, that his due process rights were violated based on the fact that the misbehavior report was issued 21 months after the commission of the acts underlying the charges. He also alleged that his due process rights were violated because he was not afforded the opportunity to view photographs of the contraband and the package containing the contraband, nor was he afforded the opportunity to listen to an audiotape of his telephone conversations from the correctional facility. 7 NYCRR 251-3.1 (a) provides that “[e]very incident of inmate misbehavior involving danger to life, health, security or property must be reported, in writing, as soon as practicable.” While significant events occurred during the 21-month period between the time of the acts underlying the charges and the date on which the misbehavior report was issued, i.e., petitioner was charged, tried and convicted of a previously unsolved murder and was sentenced to a term of imprisonment of 25 years to life, there was still an unexplained seven-month delay between the date of the murder conviction and the issuance of the misbehavior report. Respondent correctly concedes that the determination should be annulled but contends that a new hearing should be conducted based on the failure to afford petitioner the right to view the photographs and to listen to the audiotape. We conclude, however, that annulment is required without remittal for a new hearing, based on the lengthy and unexplained delay in the issuance of the misbehavior report, in violation of *1269petitioner’s due process rights (see Matter of Di Rose v New York State Dept. of Correctional Servs., 276 AD2d 842, 843 [2000], appeal dismissed 96 NY2d 850 [2001]). We therefore annul the determination, grant the petition, and direct respondent to expunge from petitioner’s institutional record all references to the charges underlying the determination. Present—Gorski, J.E, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from a judg*1270ment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered December 20, 2004. The judgment convicted defendant, upon his plea of guilty, of attempted assault in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon a plea of guilty, of attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [3]). “[I]n the absence of a showing of good cause for substitution of counsel, [Supreme] Court did not abuse its discretion in denying defendant’s request for that relief’ (People v Hilken, 6 AD3d 1109, 1110 [2004], lv denied 3 NY3d 641 [2003]; see People v Sides, 75 NY2d 822, 824 [1990]; People v Welch, 2 AD3d 1354, 1355 [2003], lv denied 2 NY3d 747 [2004]). Contrary to the contention of defendant, the general and conclusory allegations in his form motion papers did not establish the requisite good cause for substitution (see People v Randle [appeal No. 2], 21 AD3d 1341 [2005], lv denied 6 NY3d 757 [2005]; Welch, 2 AD3d at 1355). While it appears that defendant was dissatisfied with the unresolved status of his pending federal charges, the record establishes that the lack of progress in the federal matter was not the responsibility of defense counsel herein. Present—Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Erie County Court (Michael E Pietruszka, J.), rendered December 13, 2005. The judgment convicted defendant, upon his plea of guilty, of assault in the second degree and driving while intoxicated. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by amending *1271the order of protection and as modified the judgment is affirmed, and the matter is remitted to Erie County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him upon his guilty plea of, inter aha, assault in the second degree (Penal Law § 120.05 [4]), defendant contends that his waiver of the right to appeal was not knowingly, intelligently and voluntarily entered. We reject that contention (see People v Calvi, 89 NY2d 868, 871 [1996]). The valid waiver by defendant of the right to appeal does not encompass his contention with respect to the severity of the sentence, however, because the record establishes that defendant waived his right to appeal before County Court advised him of the potential periods of imprisonment that could be imposed (see People v McLean, 302 AD2d 934 [2003]; see generally People v Lococo, 92 NY2d 825, 827 [1998]). We conclude that the sentence is not unduly harsh or severe. We agree with defendant, however, that the court erred in setting the expiration date of the order of protection without “taking into account [the] jail time credit to which defendant is entitled” (People v Viehdeffer, 288 AD2d 860, 860 [2001]). Although defendant failed to preserve that contention for our review (see People v Nieves, 2 NY3d 310, 315-317 [2004]), we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We therefore modify the judgment by amending the order of protection, and we remit the matter to County Court to determine the jail time credit to which defendant is entitled and to specify in the order of protection an expiration date in accordance with CPL 530.12 (5). Present—Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Steuben County Court (Joseph W. Latham, J.), rendered November 16, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree, attempted assault in the second degree, assault in the second degree, criminal possession of a weapon in the third degree, criminal mischief in the fourth degree, petit larceny and tampering with physical evidence. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting *1272him upon a jury verdict of, inter alia, attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [1]) and assault in the second degree (§ 120.05 [2]). Defendant contends that he received ineffective assistance of counsel because his first assigned counsel did not inform the People that defendant wanted to testify before the grand jury. We reject that contention (see People v Wiggins, 89 NY2d 872, 873 [1996]; People v Dixon, 19 AD3d 131, 131-132 [2005], lv denied 5 NY3d 805 [2005]; People v Gibson, 2 AD3d 969, 973 [2003], lv denied 1 NY3d 627 [2004]). Viewing the evidence, the law and the circumstances of this case, in totality and as of the time of the representation, we conclude that defendant received meaningful representation (see generally People v Baldi, 54 NY2d 137, 147 [1981]). We reject the further contention of defendant that County Court erred in allowing the People to introduce evidence of his prior drug dealing activity. That evidence was relevant with respect to the issue of defendant’s motive for the assault, and the probative value of that evidence outweighed its prejudicial effect (see People v Till, 87 NY2d 835, 836-837 [1995]; People v Smith, 12 AD3d 1106 [2004], lv denied 4 NY3d 767 [2005]). We also reject defendant’s contention that the persistent felony offender statutes are unconstitutional (see People v Rivera, 5 NY3d 61, 63 [2005], cert denied 546 US 984 [2005]; People v Rosen, 96 NY2d 329, 334-335 [2001], cert denied 534 US 899 [2001]), and we conclude that the court properly adjudicated defendant a persistent felony offender. The sentence is not unduly harsh or severe. We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Gorski, J.E, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Erie County Court (Timothy J. Drury, J.), rendered January 21, 2004. The judgment convicted defendant, upon a jury verdict, of grand larceny in the fourth degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of grand larceny in the fourth degree *1273(Penal Law § 155.30 [4]). Defendant contends that he was denied effective assistance of counsel because defense counsel failed to seek suppression of the victim’s showup identification of defendant on the ground that defendant had been unlawfully arrested in his home without a warrant (see generally Payton v New York, 445 US 573, 576 [1980]). We reject that contention. The showup identification was made outside defendant’s home and thus was not “the product of’ the alleged Payton violation (New York v Harris, 495 US 14, 19 [1990]; see People v Jones, 2 NY3d 235, 240 [2004]; see also People v Robinson, 8 AD3d 131, 132 [2004], lv denied 3 NY3d 680 [2004]). “[T]he evidence, the law, and the circumstances of [this] case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation” (People v Baldi, 54 NY2d 137, 147 [1981]; see generally People v Henry, 95 NY2d 563, 565 [2000]). Contrary to defendant’s further contentions, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. Present—Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Order unanimously reversed and proceeding remitted to Jefferson County Court for a hearing. Memorandum: In May, 1951, defendant was indicted for assault, second degree, with intent to commit the crime of rape. The defendant waived the right to a jury trial and was convicted following a trial before the court. Thereafter the court in an apparent attempt to comply with section 2189-a of the Penal Law directed a psychiatric examination. Of course, pursuant to that section, the report to be submitted by the examiners should have been one including “all facts and findings *731necessary to assist the court in imposing sentence.” The examiners made a report that defendant was insane. Thereupon, an order was made committing defendant to Matteawan State Hospital with directions that he be returned if later he became sane. (Cf. Code Crim. Pro., § 662-b.) Some months later defendant was returned upon a certification that he had regained his sanity and then, instead of retrying the defendant, the court sentenced him to Elmira Reformatory for a term of not less than one day and not more than his natural life. Subsequently, for reasons unnecessary here to explore, that sentence was invalidated and defendant was again sentenced to an indeterminate term of 2% to 5 years in prison. Defendant is now serving a sentence imposed upon a subsequent conviction. He sought relief by way of coram nobis seeking to vacate the first judgment of conviction. His application was denied without a hearing. In our opinion, this was error and appellant should be given a hearing to determine his mental condition as of the time of the trial (cf. People v. Nickerson, 283 App. Div. 854). The record before us does not conclusively demonstrate that defendant’s allegations are false (People v. Guariglia, 303 N. Y. 338). To the contrary the record discloses that within eight days after the trial the court had before it a report finding that defendant was insane. Moreover, before the trial commenced the court apparently was alerted to defendant’s mental condition. Prom the prosecutor’s brief we learn that prior to trial defense counsel submitted proof from a psychiatrist that appellant was mentally ill. The trial proceeded because the District Attorney produced an affidavit stating that while the defendant was not mentally ill “he was a psychopath and could readily become mentally ill.” The remedy of coram, nobis is available to defendant. (People v. Smyth, 3 N Y 2d 184, 187; People v. Boehm, 309 N. Y. 362, 366, 367.) If he was tried and convicted while insane, then the judgment of conviction should be vacated. The order appealed from should be reversed and the proceeding remitted for a hearing at which counsel should be assigned, if requested. (Appeal from order of Jefferson County Court denying defendant’s application for writ of error coram nobis.) Present — Williams, P. J., Bastow, Halpem, McClusky and Henry, JJ.

Appeal from a judgment of the Steuben County Court (Marianne Furfure, J.), rendered November 21, 2005. The judgment convicted defendant, upon his plea of guilty, of grand larceny in the second degree (three counts), falsifying business records in the first degree (three counts), and scheme to defraud in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of three counts each of grand larceny in the second degree (Penal Law § 155.40 [1]) and falsifying business records in the first degree (§ 175.10), and one count of scheme to defraud in the first degree (§ 190.65 [1]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]; People v Farnsworth, 32 AD3d 1176 [2006], lv denied 7 NY3d 867 [2006]; People v Abdallah, 23 AD3d 1116 [2005], lv denied 6 NY3d 845 [2006]), and this case does not come within the narrow exception to the preservation rule (see Lopez, 71 NY2d at 666; Farnsworth, 32 AD3d at 1177). In any event, defendant entered an Alford plea to the three counts of falsifying business records, and “it is well settled that ‘an Alford plea . . . does not involve a recitation of guilt’ ” (People v Smith, 26 AD3d 746, 747 [2006], lv denied 7 NY3d 763 [2006]). We conclude that *1274the plea allocution is factually sufficient with respect to the remaining counts (see generally Farnsworth, 32 AD3d at 1177). Defendant also contends that the plea was not voluntarily entered because there was an impermissible shift in the prosecution’s theory of larceny based on the reference in the plea colloquy to larceny by “unlawful taking” rather than to larceny by “false pretenses.” That contention is not preserved for our review (see generally People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]) and, in any event, it is not supported by the record. Finally, the contention of defendant that he was denied effective assistance of counsel does not survive his plea of guilty inasmuch as “ ‘[t]here is no showing that the plea bargaining process was infected by any allegedly ineffective assistance or that defendant entered the plea because of his attorney[’s] allegedly poor performance’ ” (People v Barnes, 32 AD3d 1250, 1251 [2006], quoting People v Burke, 256 AD2d 1244 [1998], lv denied 93 NY2d 851 [1999]). Present— Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Judgment of conviction unanimously affirmed. Memorandum: It appeared upon the trial that a physician who had attended the complainant shortly after the alleged assault was no longer residing in this State. The People offered in evidence, pursuant to section 374-a of the Civil Practice Act, a written statement made by the physician and filed in the hospital where complainant was examined. The defense consented “ to the admission of the hospital record as a record kept in the ordinary course of business ” but objected to any medical history, diagnosis or prognosis as being hearsay and opinion evidence and not subject to cross-examination. Thereupon the trial court struck from the exhibit the history given to the doctor by the complainant and the “ recommendations ” of the physician and received the remainder of the document. In view of the concession of the defendant, we find it unnecessary to pass upon the present contention of appellant that the exhibit as revised was inadmissible. (See, however, Johnson v. Lutz, 253 N. Y. 124; People v. Kohlmeyer, 284 N. Y. 366; Matter of Coddington, 307 N. Y. 181; Kelly v. Wasserman, 5 N Y 2d 425.) (Appeal from judgment of Erie County Court convicting defendant of the crimes of sodomy, first degree, and rape, first degree.) Present — Williams, P. J., Bastow, Halpem, McClusky and Henry, JJ.

Order denying motion to punish for contempt unanimously affirmed, without costs of this appeal to any party. Order resettling judgment, insofar as appealed from, unanimously reversed in the exercise of discretion, without costs, and action remitted to Special Term for further proceedings in accordance with memorandum. Memorandum: This action was purportedly settled during trial. The stipulation placed upon the record attempted to establish a boundary line between the properties of the respective parties. The stipulation, however, was ambiguous, confused and ineffective to accomplish the purpose of settling the dispute between the parties. Subsequently plaintiff sought to resettle the judgment entered upon the stipulation. Plaintiffs appeal from the resettled judgment and the order directing such resettlement. In our opinion, the motion should have been referred to the Justice who presided at the trial when the stipulation was made. Upon the present record, it well may be that upon such referral the Trial Justice may not be able to resettle the judgment with an intelligent result in view of the ambiguous stipulation. In such event consideration should be given as to whether the original judgment should be vacated and the trial proceed de novo. Upon the present record we are unable to pass upon this question. The order denying the application to punish for contempt should be affirmed. (Appeal from part of an order of Monroe Special Term resettling judgment; also appeal from order of same court and Justice denying plaintiffs’ motion to punish defendant John P. Koshney for contempt.) Present — Williams, P. J., Bastow, Halpern and McClusky, JJ.

Appeal from an amended order of the Erie County Court (Shirley Troutman, J.), entered September 13, 2005. The amended order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. It is hereby ordered that the amended order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Defendant appeals from an amended order determining, following his release from incarceration for sex crimes of which he was convicted in 1988, that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). The Board of Examiners of Sex Offenders (Board) recommended that defendant be classified as a level three risk based on an override factor, i.e., that defendant had “a prior felony conviction for a sex crime,” and it further recommended that no “departure from the presumptive risk level is warranted.” Contrary to the contention of defendant, the People met their burden of proving by clear and convincing evidence that he is a level three risk based on their submission of the certificate of conviction from defendant’s 1982 felony conviction of, inter alia, sodomy in the first degree (Penal Law former § 130.50 [1]) and rape in the first degree (§ 130.35 [1]). Once the People established the basis for the presumptive override by clear and convincing evidence, “[i]t [was] then the duty of the *1275sentencing court to ‘review any victim’s statement and any relevant materials and evidence submitted by the [defendant] and the district attorney and the recommendation and any materials submitted by the [B]oard’ and to make a final determination of the defendant’s risk level based on clear and convincing evidence” (People v Brown, 302 AD2d 919, 920 [2003], quoting Correction Law § 168-n [3]). Here, County Court reviewed the facts underlying the 1988 conviction and defendant’s extensive criminal history, including a conviction of a burglary that was committed after defendant was released from incarceration on the 1988 underlying offense, and defendant’s commission of a sexual offense while on parole for the earlier sexual offense. “Upon our review of the record, we conclude that the court’s determination of defendant’s risk level was properly based on clear and convincing evidence related to the statutory factors” (id. at 921). We note that the Board erred in failing to complete the entire risk assessment instrument (see e.g. People v Dolan, 30 AD3d 697 [2006]; People v Sass, 27 AD3d 968, 969 [2006]; People v Sanchez, 20 AD3d 693, 694 [2005]). That instrument must be properly completed regardless of the existence of an override factor (see Sass, 27 AD3d at 969; Sanchez, 20 AD3d at 694). That error is harmless, however, because the court reviewed the relevant evidence and made “a final determination of the defendant’s risk level based on clear and convincing evidence” (Brown, 302 AD2d at 920; cf. Sass, 27 AD3d at 969). Present— Gorski, J.E, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered June 26, 2006 in a proceeding pursuant to Social Services Law § 384-b. The order, insofar as appealed from, terminated the parental rights of respondent Melanie M. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Family Court properly terminated the rights of respondent mother (respondent). Respondent contends that remittal is required because the court terminated her parental rights along with those of respondent father based on “their” mental illness and failed to make individual findings with respect to her. We conclude, however, that any failure of the court to set forth individual findings with respect to respondent “does not require remittitur because the record is sufficient for this [C]ourt to make its own findings” (Matter of Jennifer D., 172 AD2d 1023, 1023 [1991]; see Matter of Leon G., 7 AD3d 524, 525 [2004]). Here, petitioner met its burden of establishing “by clear and convincing evidence that respondent, by reason of mental illness, is presently and for the foreseeable future unable to provide proper and adequate care for her children” (Matter of Jarred R., 236 AD2d 888, 889 [1997]; see Matter of Charles Emanuel M., 293 AD2d 477 [2002]; Matter of Anthony C., 280 AD2d 1000, 1001 [2001]). The court-appointed psychologist testified that respondent suffers from severe anxiety and disabling depression, as well as a personality disorder not otherwise specified, and that respondent is mentally ill. The psychologist based her conclusions on respondent’s reported history and test results, together with the psychologist’s clinical observations of respondent, both alone and with her children. The psychologist further testified that the children would be in danger of neglect and possible abuse for the foreseeable future if they were returned to respondent. The only witness presented by respondent was her counselor, who testified that respondent had made “dramatic progress” in counseling, but the counselor conceded *1277that respondent could not properly parent the two-year-old child as of the time of the hearing on the petition. We note in addition that the conclusion of the counselor that respondent was able to care for her other child was not based on the counselor’s observation of respondent with her children but, rather, was based only on respondent’s statement to the counselor to that effect. Present—Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Supreme Court, Genesee County (Robert C. Noonan, A.J.), entered August 2, 2006. The order denied defendant’s motion to vacate an order granting a default judgment. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is granted and the order dated December 6, 2006 is vacated. Memorandum: Plaintiff commenced this action seeking “supplementary uninsured/underinsured motorists coverage” for injuries that she allegedly sustained in a motor vehicle collision. Supreme Court erred in denying the motion of defendant to vacate the order granting a default judgment against it. The court determined that defendant established a reasonable excuse for the default but denied the motion upon its further determination that defendant failed to make the requisite showing of the existence of a meritorious defense (see CPLR 5015 [a] [1]; Quis v Bolden, 298 AD2d 375 [2002]). We reverse. “The quantum of proof required to prevail [on a motion to vacate a default order or judgment] is not as great as is required to oppose summary judgment” (Clark v MGM Textiles Indus., 307 AD2d 520, 521 [2003]). Here, defendant met its burden by establishing “ ‘that there is support in fact for [its] . . . defenses’ ” (Callahan Hydraulics v Mechanical Man Car Wash Mfg. Co., 43 AD2d 896, 897 [1974]). Where the moving party meets that burden, courts have a liberal policy with respect to vacating defaults (see Cavallaro v Cavallaro, 278 AD2d 812, 813 [2000], lv dismissed 96 NY2d 792 [2001]). In support of its motion, defendant established that plaintiff may have been primarily if not solely at fault for the occurrence of the accident, having exited her driveway into the path of a vehicle traveling with the right of way. Moreover, defendant established that plaintiff *1278suffered from preexisting medical conditions and thus that the injuries allegedly sustained in the accident may not meet the serious injury threshold under Insurance Law § 5102 (d). Defendant also established that the accident may not have been a proximate cause of the injuries allegedly sustained in the accident. We thus conclude that the court erred in denying defendant’s motion, particularly in view of “the judicial preference for resolving cases on their merits” (Cavagnaro v Frontier Cent. School Dist., 17 AD3d 1099 [2005]). Present—Gorski, J.P, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered April 7, 2006 in a personal injury action. The order denied the motion of defendant Bruce Builders, Inc. for dismissal of the complaint against it or, in the alternative, for summary judgment dismissing the complaint against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint against defendant Bruce Builders, Inc. is dismissed. Memorandum: Plaintiff Donald E. McGrath was injured when he tripped and fell on a clump of dirt or clay in a recently graded front yard while delivering a refrigerator to a house under construction by Bruce Builders, Inc. (defendant). Supreme Court erred in denying the motion of defendant insofar as it sought in the alternative summary judgment dismissing the complaint against it. Defendant established its entitlement to judgment as a matter of law by establishing that the premises were not in an unreasonably dangerous condition, either based on the fact that the driveway was blocked with paving equipment while it was being paved or based on the fact that the dirt in the front yard was spread to its final grade, in preparation for raking and seeding, and plaintiffs failed to raise a triable issue of fact to defeat the motion (see O’Rourk v Menorah Campus, Inc., 13 AD3d 1154 [2004]; Zalko v Sunrise Adult Health Care Ctr., 7 AD3d 616, 617 [2004]). Indeed, we note that plaintiffs improp*1279erly relied upon a theory of liability raised for the first time in opposition to defendant’s motion, i.e., that defendant may be liable as a third-party beneficiary of its contract with defendant Vernon Coon. Plaintiffs “ ‘cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability ... for the first time in opposition to [defendant’s] motion’ ” (Marchetti v East Rochester Cent. School Dist., 26 AD3d 881, 881 [2006]; see Matacale v County of Steuben, 289 AD2d 949, 950 [2001]). Present—Gorski, J.E, Centra, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered February 2, 2006 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition seeking to annul the determination granting the application of respondents Joseph Cattalani and Susan Cattalani (applicants) for area variances allowing them to erect certain fencing on their residential property. In considering the application, respondent Town of Irondequoit Zoning Board of Appeals (ZBA) was required to weigh the bene*1280fit to the applicants of granting the variances against any detriment to the health, safety and welfare of the neighborhood or community affected thereby, taking into account the five factors set forth in Town Law § 267-b (3) (b) (see Matter of Ifrah v Utschig, 98 NY2d 304, 307-308 [2002]; Matter of Sasso v Osgood, 86 NY2d 374, 382 [1995]; Matter of Homeyer v Town of Skaneateles Zoning Bd. of Appeals, 302 AD2d 941, 941-942 [2003]), and we conclude that the ZBA did so here. We note that the ZBA is afforded “broad discretion” in determining whether to grant the requested variances (Ifrah, 98 NY2d at 308), and judicial review is limited to whether the determination was illegal, arbitrary or an abuse of discretion (see id., citing Matter of Fuhst v Foley, 45 NY2d 441, 444 [1978]; see also Sasso, 86 NY2d at 386). A reviewing court may not substitute its judgment for that of the ZBA, even if there is substantial evidence supporting a contrary determination (see Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 613 [2004]; Matter of DeGroote v Town of Greece Bd. of Zoning Appeals, 35 AD3d 1177 [2006]; Homeyer, 302 AD2d at 942). Upon our review of the record, we conclude that the determination of the ZBA is not illegal, arbitrary or capricious or an abuse of discretion (see Ifrah, 98 NY2d at 308-309; Matter of Orchard Michael, Inc. v Falcon, 65 NY2d 1007, 1009 [1985]; Homeyer, 302 AD2d at 941-942). Finally, we reject petitioner’s contention that the ZBA did not grant the minimum variance necessary to meet the applicants’ needs while at the same time preserving and protecting the character of the neighborhood and the health, safety, and welfare of the community (see Town Law § 267-b [3] [c]; Matter of Welsh v Town of Amherst Zoning Bd. of Appeals, 270 AD2d 844, 845 [2000]). Present—Gorski, J.E, Centra, Peradotto and Pine, JJ.

Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered September 17, 2003. The judgment convicted defendant, upon a jury verdict, of robbery in the second degree and grand larceny in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: On appeal from a judgment convicting him, following a jury trial, of robbery in the second degree (Penal Law § 160.10 [3]) and grand larceny in the third degree (§ 155.35), defendant contends that County Court erred in denying that part of his omnibus motion seeking to suppress the *1283statement that he made to a police officer on the ground that he was in custody when he made the statement but had not received his Miranda warnings. Although we agree with defendant that the court should have suppressed the statement, we nevertheless conclude that the error is harmless beyond a reasonable doubt (see generally People v Crimmins, 36 NY2d 230, 237 [1975]). Defendant was stopped by the police while driving a stolen vehicle, and he fled from the police after leaving the vehicle. When he was apprehended following a foot chase, he was immediately transported to the scene of the crime where he was identified by the victim. Thus, the evidence of defendant’s guilt is overwhelming, and there is no reasonable possibility that the erroneous admission of the statement at issue, i.e., that defendant ran from the police because he had no driver’s license, contributed to the conviction (see generally id.; People v Bastian, 294 AD2d 882, 884 [2002], lv denied 98 NY2d 694 [2002]). Similarly, although we agree with defendant that the court erred in denying his request to charge the jury with respect to the voluntariness of the statement, we conclude that the error is harmless beyond a reasonable doubt (see generally Crimmins, 36 NY2d at 237). Finally, defendant contends that the People failed to establish that he forcibly stole property and thus that the evidence is legally insufficient to support the robbery conviction. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The victim testified that defendant pushed her with such force that she stepped backward, allowing defendant to enter her vehicle (see People v Woodridge, 30 AD3d 898, 900 [2006], lv denied 7 NY3d 852 [2006]). Additionally, the victim testified that, when she attempted to prevent defendant from driving off in her vehicle, he broke her grip on him by driving off, thereby using physical force for the purpose of overcoming her resistance (see Penal Law § 160.00 [1]; People v Santiago, 62 AD2d 572, 579-580 [1978], affd 48 NY2d 1023 [1980]). Present—Hurlbutt, J.E, Martoche, Lunn, Peradotto and Green, JJ.

*1284Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), rendered September 14, 2005. The judgment convicted defendant, upon a jury verdict, of rape in the first degree and criminal sexual act in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified as a matter of discretion in the interest of justice and on the law by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury and as modified the judgment is affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of rape in the first degree (Penal Law § 130.35 [1]) and criminal sexual act in the first degree (§ 130.50 [1]). We agree with defendant that the judgment must be modified by reversing that part convicting him of rape because he was indicted on a single count of rape and the People presented evidence at trial establishing two distinct acts of sexual intercourse between defendant and the victim. Although defendant failed to preserve his contention for our review, we exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]; People v Bracewell, 34 AD3d 1197, 1198 [2006]). The first count of the indictment charged defendant with rape in the first degree, “in that he . . . on or about the 5th day of April, 2004 . . . engaged in sexual intercourse with [the victim], by forcible compulsion.” However, according to the testimony of the victim at trial, there were two separate acts of sexual intercourse. Although the two acts apparently were separated by only a brief period of time, they cannot be considered “part and parcel of the [same] continuous conduct culminating in [a single] rape” (People v Grant, 108 AD2d 823, 823 [1985]), because “each act of intercourse is a separate and distinct offense” (People v Pries, 81 AD2d 1039, 1039-1040 [1981]; see People v Jiminez, 239 AD2d 360 [1997], lv denied 90 NY2d 906 [1997]). “ ‘Reversal [and dismissal of that count] is required because the jury may have convicted defendant of an unindicted rape, resulting in the usurpation by the prosecutor of the exclusive power of the [g]rand [j]ury to determine the charges’ ” (People v Comfort, 31 AD3d 1110, 1111 [2006], lv denied 7 NY3d 847 [2006], quoting People v McNab, *1285167 AD2d 858, 858 [1990]; see People v Grega, 72 NY2d 489, 495-496 [1988]). We therefore modify the judgment by reversing that part convicting defendant of rape in the first degree and dismissing count one of the indictment without prejudice to the People to re-present any appropriate charges under that count of the indictment to another grand jury (see Bracewell, 34 AD3d at 1199; People v Dathan, 27 AD3d 575 [2006], lv denied 7 NY3d 787 [2006]; People v Levandowski, 8 AD3d 898, 899-900 [2004]). Contrary to defendant’s further contention, the verdict is not against the weight of the evidence. The testimony of the victim was not so inconsistent or unbelievable as to render it incredible as a matter of law (see People v Shedrick, 104 AD2d 263, 274 [1984], affd 66 NY2d 1015 [1985], rearg denied 67 NY2d 758 [1986]; People v Baker, 30 AD3d 1102 [2006], lv denied 7 NY3d 846 [2006]; People v Drake, 247 AD2d 855, 855-856 [1998], lv denied 92 NY2d 851 [1998]), and there is no basis on the record before us to disturb the jury’s resolution of credibility issues (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We also reject defendant’s contention that County Court erred in refusing to charge the complete definition of forcible compulsion set forth in Penal Law § 130.00 (8). The court properly “tailored its [charge] to the case before it” (People v Grega, 72 NY2d 489, 497 [1988]), and the court omitted the portion of the definition set forth in Penal Law § 130.00 (8) (b) concerning threats that place a person in fear of immediate death or physical injury because there was no evidence that defendant had threatened the victim. Defendant failed to preserve for our review his further contention that the court erred in failing to include the definition of “intentionally” in its instructions to the jury. In any event, any alleged error in the court’s failure to so instruct the jury is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant also failed to preserve for our review his contention that his right of confrontation was violated when the victim testified concerning hearsay statements made by her neighbor (see CPL 470.05 [2]; People v Wegman, 2 AD3d 1333 [2003], lv denied 2 NY3d 747 [2004]). Moreover, defendant waived that contention when he elicited the same hearsay statements of the neighbor in cross-examining the victim (see generally People v Carr, 267 AD2d 1062, 1063 [1999], lv denied 95 NY2d 833 [2000]; People v Santos-Sosa, 233 AD2d 833 [1996], lv denied 89 NY2d 988 [1997]). We further conclude that the court did not err in failing to give defendant notice of a note from the jury asking to review the medical records and in failing to afford defendant an opportunity to respond to that note. We note that *1286defense counsel and the prosecutor had previously agreed to allow the jury to examine those records and, in any event, the jury’s note did not constitute a request for substantive information implicating defendant’s right to notice of the request (see People v Damiano, 87 NY2d 477, 487 [1996]; People v Green, 37 AD3d 1131 [2007]). Defendant failed to preserve for our review his further contention that he was deprived of a fair trial as a result of prosecutorial misconduct on summation (see CPL 470.05 [2]; People v Caleb, 273 AD2d 881 [2000], lv denied 95 NY2d 864 [2000]). In any event, the comments, considered in context, were not so egregious or improper as to deny defendant a fair trial (see People v Hopkins, 58 NY2d 1079, 1083 [1983]; People v Spirles, 275 AD2d 980, 982 [2000], lv denied 96 NY2d 807 [2001]; People v Tobias, 273 AD2d 925, 926 [2000], lv denied 95 NY2d 908 [2000]). Defendant also failed to preserve for our review his contention that he was deprived of a fair trial based on various instances of judicial misconduct (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.P, Martoche, Lunn, Peradotto and Green, JJ.

Appeals from the order of October 2, 1958 and from the decree of judicial settlement of February 27, 1959 dismissed as not timely and also in accordance with Matter of Beach (9 A D 2d 636). All other orders appealed from are unanimously affirmed, with $25 costs and disbursements to respondents. The motion to designate Robert L. Collins as sole attorney of record for the purpose of the argument of this appeal and for the propose of carrying on this litigation to its final conclusion in the appellate courts and in the Surrogate’s Court is denied. Memorandum: At the time of argument it was stipulated by attorney Harry J. Coman that attorney Robert L. Collins might argue the appeals that were pending in this court. Thus the rights of the appellant were protected and there was no dispute between such attorneys upon the argument and presentation of these appeals. It is therefore unnecessary for this court to pass upon the motion for substitution and designation. The motion is denied without prejudice to the rights of the respective attorneys and Mrs. Beach to submit ail matters relating to substitution, fees, liens and the like, to the Surrogate for determination. (Appeal from order of Oneida Surrogate’s Court denying petitioner’s motion to vacate the order judicially settling the accounts of the estate of decedent; also appeal from order of the same court denying petitioner’s right to question the jurisdiction of the Surrogate’s Court in special appearance; also appeal from decree of the same court settling the accounts of the estate and from the order denying the motion to reargue the motion to vacate.) Present — Williams, P. J., Bastow, Goldman, Halpern and Henry, JJ.

Order unanimously reversed, with $25 costs and disbursements to appellant and motion granted to the extent set forth in the memorandum. Memorandum: Plaintiff complied with the demand by service of a bill of particulars. We find no authority for the return of the bill of particulars as was done by defendants’ attorneys. If the defendants took the position that the bill of particulars was defective or insufficient, they were required to resort to the procedure provided for in rule 115 of the Rules of Civil Practice. In our view, at this stage of the action, there has been compliance with defendants’, demand by service of the bill of particulars. Because of the unauthorized and unrecognized procedure resorted to by defendants, we treat the return of the bill of particulars as a nullity. Defendants are given 10 days after service of the order to be entered herein in which to make a motion against the bill of particulars, if they are so advised. If defendants shall fail to do so within such period, the plaintiff is entitled forthwith to refile his note of issue which was vacated without prejudice upon motion of the defendants, if plaintiff can comply with the certificate of readiness in all respects other than the bill of particulars requirement. (Appeal from order of Onondaga Supreme Court denying plaintiff’s motion to compel defendants to accept a bill of particulars.) Present —Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), rendered November 28, 2005. The judgment convicted defendant, after a nonjury trial, of sexual abuse in the first degree and endangering the welfare of a child. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of sexual abuse in the first degree (Penal Law § 130.65 [3]) and endangering the welfare of a child (§ 260.10 [1]). Contrary to defendant’s contention, the verdict is not against the weight of the evidence (see generally People v *1287Bleakley, 69 NY2d 490, 495 [1987]). “The credibility determinations of [Supreme Court] are entitled to great deference . . . , and there is no basis to conclude that the court failed to give the evidence the weight that it should be accorded” (People v Scott, 289 AD2d 974, 975 [2001], lv denied 97 NY2d 733 [2002]). The court properly denied defendant’s motion to dismiss the indictment pursuant to CPL 30.20 based upon its balancing of the appropriate factors (see People v Taranovich, 37 NY2d 442, 445 [1975]; People v Rogers, 8 AD3d 888, 889-890 [2004]; People v Carrillo, 191 AD2d 812, 813 [1993], lv denied 81 NY2d 1070 [1993]). Present—Hurlbutt, J.P., Martoche, Lunn, Peradotto and Green, JJ.

Order unanimously reversed and relator remanded to County Court of Seneca County for further proceedings, in accordance with the memorandum. Memorandum: The relator was convicted and sentenced for assault, second degree, in Seneca County Court in June of 1944. In 1955, he was convicted of assault, second degree, and sentenced as a second offender in the County Court of Onondaga County. 'Thereafter he petitioned for the issuance of a writ of habeas corpus claiming that before the pronouncement of sentence under the 1944 conviction, the court failed to comply with section 480 of the Code of Criminal Procedure. In his petition for the writ.he asks “-that he be ordered remanded to the Court of Seneca County at Ovid, N. Y., to the end that there be compliance with section 480 of the Code of Criminal Procedure consonant with due process of law.” After a hearing in that proceeding County Judge John S. Conable, of Wyoming County, found that section 480 had not been complied with, and ordered that the relator be remanded to Seneca County for further proceedings upon the 1944 conviction. Upon his appearance, the Seneca County Court reversed and expunged the 1944 judgment of conviction and dismissed the indictment and ordered that relator be remanded to Onondaga County Court for sentence as a first offender upon the 1955 conviction. The record is silent as to just what happened after the order of Seneca County. However, that order was erroneous. The failure of that court to comply with section 480 upon the original sentence did not nullify the conviction, and sentence should have been reimposed after compliance with said section 480. (People ex rel. La Shombe v. Jackson, 7 N Y 2d 345; People ex rel. Emanuel v. McMann, 7 N Y 2d 342; People ex rel. Miller v. Martin, 1 N Y 2d 406.) The order appealed from must be reversed and relator remanded to County Court, Seneca County upon the 1944 conviction for resentenee, after which relator should be remanded to the County Court, Onondaga County, for sentence upon the 1955 conviction as a second offender if, in fact, he was sentenced as a. first offender in accordance with the direction contained in the Seneca County Court order appealed from. (Appeal from order of Seneca County Court directing that the conviction of relator and sentence imposed June 12,1944, be reversed and expunged and that relator be returned to Onondaga County Court for sentence as a second offender.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered August 21, 2006 in a breach of contract action. The order, among other things, granted the motion of defendant The Charter Oak Fire Insurance Company to dismiss plaintiff’s claim for consequential damages. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action alleging that defendants breached the terms of the insurance policy issued to her by failing, inter alia, to pay certain claims for losses arising from an armed robbery at plaintiffs jewelry store. By stipulation of the parties, the action was dismissed against all defendants except The Charter Oak Fire Insurance Company (Charter Oak). Supreme Court properly granted Charter Oak’s motion to dismiss plaintiffs claim for consequential damages, including future lost profits after December 28, 2001 and future sale value of the business. The court also properly granted Charter Oak’s motion to preclude plaintiffs expert from testifying with regard to that claim and denied plaintiffs cross motion seeking partial summary judgment determining that the expert’s testimony was admissible at trial. The insurance policy expressly excludes coverage for the consequential damages claimed by plaintiff (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 37 AD3d 1184 [2007]; J.R. Adirondack Enters. v Hartford Cas. Ins. Co., 292 AD2d 771, 772 [2002]; Crawford Furniture Mfg. Corp. v Pennsylvania Lumbermens Mut. Ins. Co., 244 AD2d 881 [1997]). Present—Hurlbutt, J.P, Martoche, Lunn, Peradotto and Green, JJ.

Order, entered on October 5, 1960, striking the cause from the calendar, staying the plaintiff from taking any steps in the action except to move to restore the action, further staying the plaintiff from instituting any other matrimonial action against the defendant and directing the defendant to pay plaintiff the sum of $600 per month as temporary alimony, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of striking the provision for the payment of temporary alimony, and, as so modified, the said order is affirmed, without costs. In the absence of any request by plaintiff for the fixation of temporary alimony and of any evidence as to the income or resources of defendant husband, there was no basis for the allowance of temporary alimony. As is implicit in the ruling made by the trial court upon that branch *738of defendant’s oral motion seeking to stay plaintiff from instituting any other matrimonial action against defendant, she may move to vacate said stay upon a showing that she is ready and able to bring and prosecute promptly some other matrimonial action that could be instituted appropriately and in good faith in view of the pendency of the present separation action. Concur — Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

Appeal from a judgment of the Supreme Court, Erie County (John F. O’Donnell, J.), rendered March 1, 2006. The judgment convicted defendant, after a nonjury trial, of menacing in the second degree, stalking in the fourth degree, and aggravated harassment in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5). Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of menacing in the second degree (Penal Law § 120.14 [2]), stalking in the fourth degree (§ 120.45 [2]), and aggravated harassment in the second degree (§ 240.30 [2]). Defendant made only a general motion to dismiss and thus failed to preserve for our review his contentions concerning the alleged legal insufficiency of the evidence (see People v Gray, 86 NY2d 10, 19 [1995]). In any event, the evidence, viewed in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), is legally sufficient to support the conviction (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Contrary to defendant’s further contention, the sentence is not unduly harsh or severe. Present—Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Appeal from a judgment of the Herkimer County Court (Patrick L. Kirk, J.), rendered January 11, 2006. The judgment convicted defendant, upon his plea of guilty, of attempted sexual abuse in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted sexual abuse in the first degree (Penal Law §§ 110.00, 130.65 [3]). Following his guilty plea and prior to sentencing, defendant was arrested, in *1290violation of a condition of the plea agreement. Inasmuch as the record establishes that “ ‘the information supporting the arrest was reliable and accurate,’ ” we conclude that County Court properly imposed an enhanced sentence by refusing to afford defendant youthful offender status and to allow defendant to withdraw his plea (People v Williams, 35 AD3d 1198, 1199 [2006]). Defendant failed to preserve for our review his challenge to the factual sufficiency of the plea allocution (see People v Lopez, 71 NY2d 662, 665 [1988]), and this case does not fall within the narrow exception to the preservation requirement (see id. at 666). Finally, the sentence is not unduly harsh or severe. Present—Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Ap*1291peal from a judgment of the Monroe County Court (John J. Connell, J.), rendered March 31, 2004. The judgment convicted defendant, upon his plea of guilty, of rape in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of rape in the third degree (Penal Law § 130.25 [2]) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of burglary in the third degree (§ 140.20). As defendant correctly concedes, he failed to preserve for our review his contention that County Court erred in imposing enhanced sentences in each appeal upon being informed that defendant had exposed himself to the probation officer who prepared the presentence report (see People v Brandel, 20 AD3d 927 [2005], lv denied 5 NY3d 826 [2005]; People v Lovett, 8 AD3d 1007, 1008 [2004], lv denied 3 NY3d 677 [2004]). In any event, the record establishes that defendant agreed to the imposition of the enhanced sentences. Finally, the sentence imposed in each appeal is not unduly harsh or severe. Present—Scudder, RJ., Smith, Centra, Fahey and Pine, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Ronald H. Tills, A.J.), rendered January 10, 1996. The judgment convicted defendant, upon a jury verdict, of burglary in the first degree (two counts), attempted robbery in the first degree (two counts), attempted assault in the first degree and criminal possession of a weapon in the third degree. *1292It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of two counts of burglary in the first degree (Penal Law § 140.30 [4]), two counts of attempted robbery in the first degree (§§ 110.00, 160.15 [2], [4]), and one count each of attempted assault in the first degree (§§ 110.00, 120.10 [1]) and criminal possession of a weapon in the third degree (§ 265.02 [1]). Contrary to the contention of defendant, Supreme Court properly denied his request to charge attempted assault in the second degree as a lesser included offense of attempted murder in the first degree. Attempted assault in the second degree pursuant to sections 110.00 and 120.05 (2) has the element of “a deadly weapon or a dangerous instrument,” which is not an element of attempted murder in the first degree pursuant to sections 110.00 and 125.27 (1) (a) (see People v Smith, 13 AD3d 1121, 1122 [2004], lv denied 4 NY3d 803 [2005]; People v Martinez, 134 AD2d 458, 459 [1987], lv denied 70 NY2d 957 [1988]). It is thus possible to commit attempted murder in the first degree without concomitantly, by the same conduct, committing attempted assault in the second degree (see generally People v Glover, 57 NY2d 61, 63 [1982]). While we agree with defendant that attempted assault in the first degree pursuant to Penal Law §§ 110.00 and 120.10 (1) also is not a lesser included offense of attempted murder in the first degree under sections 110.00 and 125.27 (1) (a), defendant correctly concedes that, by affirmatively requesting the charge on that lesser included offense, he waived any right to complain of the error (see People v Ford, 62 NY2d 275, 283 [1984]; Smith, 13 AD3d at 1123). We reject the further contention of defendant that he was denied a fair trial by the People’s failure to turn over a copy of the complete NYSIS report with respect to a prosecution witness. The People complied with CPL 240.45 (1) (c) by informing defendant of the only pending criminal action against that witness of which they were aware (see People v Graham, 289 AD2d 417, 418 [2001], lv denied 97 NY2d 754 [2002]). The verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), and the sentence is not unduly harsh or severe. Present—Scudder, P.J., Smith, Centra, Fahey and Pine, JJ.

Appeal from a judgment of the Erie County Court (Michael F. Pietruszka, J.), rendered June 2, 2005. The judgment convicted defendant, upon a jury verdict, of assault in the second degree, *1293criminal possession of a weapon in the fourth degree and unlawfully possessing noxious material. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: In appeal No. 1, defendant appeals from a judgment convicting her following a jury trial of assault in the second degree (Penal Law § 120.05 [2]), criminal possession of a weapon in the fourth degree (§ 265.01 [2]) and unlawfully possessing noxious material (§ 270.05 [2]). We reject defendant’s contention that the verdict is against the weight of the evidence. Defendant testified at trial that she acted in self-defense, while the complainant testified that defendant was the aggressor. The complainant’s testimony was corroborated by a passerby who observed part of the incident. It was for the jury to weigh the credibility of the witnesses, and it cannot be said that the jury failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In view of our determination in appeal No. 1, we reject the contention of defendant in appeal No. 2 that we should vacate her plea of guilty pursuant to People v Rogers (48 NY2d 167, 175 [1979]). Contrary to defendant’s further contention in appeal No. 2, “[t]he facts and circumstances surrounding defendant’s plea colloquy establish that the waiver of the right to appeal is valid” (People v Nichols, 32 AD3d 1316, 1317 [2006]; see People v Lopez, 6 NY3d 248, 256 [2006]). Despite defendant’s waiver of the right to appeal in appeal No. 2, we are not foreclosed from reviewing defendant’s challenge to the severity of the sentence imposed because County Court did not advise defendant of the potential periods of incarceration before she waived her right to appeal (see People v Lococo, 92 NY2d 825, 827 [1998]; People v Trisvan, 8 AD3d 1067 [2004], lv denied 3 NY3d 682 [2004]; People v Webb, 299 AD2d 955 [2002], lv denied 99 NY2d 565 [2002]). In addition, defendant challenges the severity of the sentence imposed in appeal No. 1. We conclude that the sentence in each appeal is not unduly harsh or severe. We have considered the contentions raised by defendant in her pro se supplemental “brief,” and we conclude that they either are without merit or cannot be addressed on direct appeal because they are based on matters outside the record (see e.g. People v Smith, 32 AD3d 1291 [2006]; People v Leno, 21 AD3d 1399 [2005], lv denied 5 NY3d 883 [2005]). Present—Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Appeal from a judgment of the Wayne County Court (Dennis M. Kehoe, J.), rendered February 1, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree, attempted robbery in the first degree, and assault in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [3] [felony murder]), attempted robbery in the first degree (§§ 110.00, 160.15 [1]), and assault in the third degree (§ 120.00 [1]). It is undisputed that the victim died from injuries that he sustained when he fell and hit his head on the pavement after defendant punched him in the head. Defendant contends that the verdict is against the weight of the evidence because the People failed to establish that he intended to rob the victim. We reject that contention (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Several witnesses testified *1295that defendant made statements in which he referred to robbing the victim, both before and after he struck the victim, and the jury was entitled to credit that testimony (see generally People v Walek, 28 AD3d 1246 [2006], lv denied 7 NY3d 764 [2006]). We reject defendant’s further contention that County Court abused its discretion in refusing to permit several witnesses to testify that they heard another witness repeat a remark allegedly made by the victim to that witness. The defense theory at trial was that defendant struck the victim because the victim made an offensive remark to one of defendant’s companions when the companion asked the victim for money, not because defendant intended to rob the victim. Contrary to defendant’s contention, the testimony was hearsay inasmuch as it was offered for the truth of the facts asserted in the statement of defendant’s companion, i.e., that the victim made the offensive remark (see generally People v Huertas, 75 NY2d 487, 491-492 [1990]), and the testimony does not fall within an exception to the hearsay rule (cf. People v Matthews, 16 AD3d 135, 137 [2005] , lv denied 4 NY3d 888 [2005]). We reject defendant’s further contention that the court erred in ruling that a defense witness could testify that defendant admitted that he struck the victim but could not testify that defendant stated that he did so because the victim made an offensive remark. Contrary to the contention of defendant, the exculpatory portion of the statement was not admissible as part of his complete statement inasmuch as the inculpatory portion of the statement had not been offered against him (see Prince, Richardson on Evidence § 8-210 [Farrell 11th ed]). Rather, the statement “was essentially a factual assertion of his innocence constituting hearsay” (People v Villanueva, 35 AD3d 229, 230 [2006] ; see People v Reynoso, 73 NY2d 816, 819 [1988]; see also People v Pearson, 28 AD3d 587 [2006], lv denied 7 NY3d 793 [2006]). By failing to object to the court’s ultimate Sandoval ruling, defendant failed to preserve for our review his contention that the court abused its discretion in ruling that the People could cross-examine him with respect to previous convictions of petit larceny, criminal possession of stolen property and burglary, all of which had occurred within the previous five years (see generally People v Alston, 27 AD3d 1141, 1141-1142 [2006], lv denied 6 NY3d 892 [2006]). In any event, we conclude that those convictions involve “acts of individual dishonesty” (People v Sandoval, 34 NY2d 371, 377 [1974]), and the court’s ruling thus does not constitute an abuse of discretion (see Alston, 27 AD3d at 1142). *1296Finally, the sentence is not unduly harsh or severe. Present— Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Appeal from a judgment of the Court of Claims (Nicholas V Midey, Jr., J.), entered November 14, 2005 in a personal injury action. The judgment awarded claimant, after a trial, damages in the amount of $195,675. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Claimant commenced this action seeking damages for injuries he sustained when he attempted to negotiate a curve in the road while riding his motorcycle. Following a trial, the Court of Claims apportioned liability 75% to defendant based on its findings that defendant was negligent and that such negligence was a proximate cause of the accident. Contrary to defendant’s contention, the court properly found that defendant’s failure to post a speed limit advisory of 25 miles per hour was a proximate cause of the accident. “Generally, the absence of a warning sign cannot be excluded as a cause of an ensuing accident unless it is found that the accident would nevertheless have happened. This finding can only be made if the driver’s awareness of the physical conditions prescribed the same course of action as the warning sign would have, if the driver, by reason of his recollection of prior trips over the same road, ‘actually had the danger in mind’ as he ap*1297proached it on the highway, or if other signs gave adequate warning of the danger” (Koester v State of New York, 90 AD2d 357, 362 [1982]). Here, the court was entitled to credit the testimony of claimant that he was driving at the posted speed limit of 30 miles per hour as he approached the curve, that he was unfamiliar with the road, and that he would have reduced his speed further in response to a speed advisory (see generally Burton v State of New York, 283 AD2d 875, 877 [2001]). The testimony of claimant and the photographs of the approach to the curve showing that a building blocked the view of its latter portion effectively rebutted defendant’s theory at trial that the curve was plainly visible from a distance of over 800 feet (cf. Stanford v State of New York, 167 AD2d 381 [1990], lv denied 78 NY2d 856 [1991]). Present—Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered July 25, 2006. The order, among other things, denied defendant’s motion to vacate the note of issue and to compel plaintiff to provide certain authorizations and to appear at a supplemental examination and granted plaintiffs cross motion for a protective order. *1298It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action on behalf of her son, alleging that he sustained injuries as the result of his exposure to lead-based paint in a house owned by defendant, where plaintiff resided with her son. Defendant moved to vacate plaintiffs note of issue, and also moved to compel plaintiff to provide authorizations for her own educational records and to compel her to appear at a supplemental examination to be conducted by a neuropsychologist for questioning concerning her family background. Plaintiff opposed both motions and cross-moved for a protective order. Supreme Court properly denied defendant’s motions and granted plaintiffs cross motion. Although plaintiffs educational records “are not encompassed by any privilege, they are not discoverable unless the party seeking their production establishes their relevance and materiality for discovery purposes” (McGuane v M.C.A., Inc., 182 AD2d 1081, 1082 [1992]). Here, defendant failed to make the requisite factual showing that those records are relevant and material to the injuries sustained by plaintiffs son (see Ward v County of Oneida, 19 AD3d 1108 [2005]; McGuane, 182 AD2d at 1082). Defendant also failed to establish that plaintiffs family background is relevant and material to the injuries sustained by plaintiffs son (see McGuane, 182 AD2d at 1082). We have examined defendant’s remaining contentions and conclude that they are without merit. Present—Scudder, EJ., Smith, Centra, Fahey and Pine, JJ.

Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (Richard C. Kloch, Sr., A.J.), entered November 1, 2004. The order, insofar as appealed from, denied that part of defendant’s motion pursuant to CPL 440.20 to set aside the sentence. It is hereby ordered that the order so appealed from be and *1299the same hereby is unanimously modified on the law by granting the motion in part and directing that the sentences imposed for robbery in the first degree shall run concurrently with the sentences imposed for murder in the second degree under counts one and two of the indictment and as modified the order is affirmed. Memorandum: Defendant appeals from that part of an order denying his motion pursuant to CPL 440.20 seeking to set aside the sentence imposed with respect to his conviction of four counts of murder in the second degree (Penal Law § 125.25 [1], [3] [two counts of intentional murder and two counts of felony murder]), and two counts each of attempted murder in the second degree (§§ 110.00, 125.25 [1]), assault in the first degree (§ 120.10 [1]) and robbery in the first degree (§ 160.15 [1]). The conviction arises from the robbery of a store in which the two store owners were killed and an employee and a customer were injured. We agree with defendant, and the People correctly concede, that Supreme Court erred in directing that the sentences on the two counts of robbery run consecutively to the sentences imposed on the two counts of intentional murder. Penal Law § 70.25 (2) requires the imposition of concurrent sentences where “a single act or omission . . . itself constituted one of the offenses and also was a material element of the other.” Here, the act constituting each count of intentional murder, i.e., stabbing the victims, is the same act that caused the serious physical injury for purposes of each robbery conviction (see People v Laureano, 87 NY2d 640, 644 [1996]; People v Kimble, 289 AD2d 1062, 1063 [2001], lv denied 98 NY2d 638 [2002]; People v Pringle, 216 AD2d 863, 864 [1995], lv denied 86 NY2d 845 [1995]). Thus, we conclude that the court erred in failing to direct that the sentences imposed for robbery in the first degree, counts 9 and 10 of the indictment, run concurrently with the sentences imposed for intentional murder, counts one and two of the indictment. We therefore modify the order accordingly. We reject defendant’s further contention that the sentences imposed on the attempted murder counts must run concurrently with the sentences imposed on the intentional murder counts. Where, as here, separate acts are committed against different victims during the same criminal transaction, the court may properly impose consecutive sentences in the exercise of its discretion (see People v Brathwaite, 63 NY2d 839, 843 [1984]; People v Parris, 30 AD3d 1108, 1109 [2006], lv denied 7 NY3d 816 [2006]; People v Williams, 22 AD3d 256, 257 [2005], lv denied 6 NY3d 760 [2005]). *1300As defendant correctly contends in his pro se supplemental brief, the court directed that the sentences imposed for felony murder, counts three and four, run concurrently with the sentences imposed for robbery in the first degree, counts 9 and 10. We reject defendant’s contention, however, that the aggregate minimum sentence is therefore reduced from 75 years to 25 years inasmuch as the aggregate minimum sentence of 75 years includes concurrent sentences with respect to the felony murder counts. We note that the certificate of conviction erroneously states that the sentences imposed on counts three and four are to run consecutively to the sentences imposed on counts 9 and 10, and it must therefore be amended to reflect that the sentences are to run concurrently (see generally People v Adams, 37 AD3d 1055 [2007]). Present—Centra, J.E, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Erie County Court (Michael L. D’Amico, J.), rendered October 27, 2005. The judgment convicted defendant, after a nonjury trial, of grand larceny in the fourth degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her, following a nonjury trial, of grand larceny in the fourth degree (Penal Law § 155.30 [1]). Defendant failed to preserve *1302for our review her contention that the evidence is legally insufficient to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]; People v Lozada, 35 AD3d 969 [2006]). In any event, that contention is without merit. The evidence, when viewed in the light most favorable to the People, is legally sufficient to establish defendant’s theft of property, i.e., money (Penal Law § 155.00), by false pretenses (see § 155.05 [2] [a]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The People presented evidence establishing that employees of Kaufmann’s Department Store (Kaufmann’s) were induced to give defendant cash in the amount of $1,101.97 for the “return” of two men’s suits and a bathrobe that were not the property of Kaufmann’s. Defendant’s knowledge that the items had not been purchased from Kaufmann’s was established by the employees’ testimony that the tags identifying the brand names had been removed from the merchandise and that the price tags stapled on the merchandise were attached in a manner different from the manner in which Kaufmann’s price tags were usually attached (see generally People v Williams, 84 NY2d 925, 926 [1994]). Finally, the element of intent was established by the circumstances under which the return was arranged by defendant’s accomplice and carried out by defendant (see generally id.). Present— Centra, J.P, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Wyoming County Court (Mark H. Dadd, J.), entered March 29, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Defendant appeals from an order determining that he is a level three risk under the Sex Offender Registration Act (Correction Law § 168 et seq.). Although defendant is correct that the People failed to present clear and convincing evidence that he refused treatment while confined and that his conduct while confined was unsatisfactory, we conclude that the People presented clear and convincing evidence of the other risk factors for which he was assessed points (see generally Correction Law § 168-n [3]). Even reducing defendant’s score on the risk assessment instrument by the points that were improperly assessed, we conclude that defendant’s score nevertheless remains within the range of a level three risk (see People v Lujan, *130334 AD3d 1346, 1347 [2006], lv denied 8 NY3d 805 [2007]; People v McDaniel, 27 AD3d 1158 [2006], lv denied 7 NY3d 703 [2006]). We also note that, although defendant had been released from prison for eight years at the time of the redetermination hearing, he was properly assessed 15 points for being released from prison without supervision (see generally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 16 [Nov. 1997]). Contrary to the further contention of defendant, he failed to present clear and convincing evidence of special circumstances justifying a downward departure from his presumptive risk level (see People v Mason, 35 AD3d 569 [2006]; People v Marks, 31 AD3d 1142, 1143 [2006], lv denied 7 NY3d 715 [2006]; McDaniel, 27 AD3d at 1159). Finally, County Court did not err in failing to address “ ‘the extent, if any, to which [defendant’s] behavior since his . . . initial registration makes the risk of reoffense more or less likely’ ” (People v Price, 31 AD3d 1114, 1115 [2006]), inasmuch as defendant offered no competent evidence of his behavior since his release from prison. Present— Centra, J.E, Lunn, Peradotto and Pine, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Russell E Buscaglia, A.J.), rendered January 19, 2005. The judgment convicted defendant, upon a jury verdict, of robbery *1304in the second degree and, upon a plea of guilty, of attempted forgery in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by reducing the conviction of robbery in the second degree (Penal Law § 160.10 [2] [a]) to robbery in the third degree (§ 160.05) and vacating the sentence imposed on count one of the indictment and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Erie County, for sentencing on the conviction of robbery in the third degree. Memorandum: On appeal from a judgment convicting him following a jury trial of, inter alia, robbery in the second degree (Penal Law § 160.10 [2] [a]), defendant contends that the evidence of physical injury is legally insufficient to support the robbery conviction. We agree. The victim testified that, during the course of the robbery, she sustained bruising to her right arm, swelling of two fingers on her left hand and a bump on her head. She testified that her right arm was “sore,” “bruised and painful,” and “black and blue” for “[a]bout a week.” She further testified that she experienced pain in her two fingers for “[a] couple of weeks” and was not able to move those fingers for “[a]bout two weeks.” When asked whether she could pursue her normal activities in the days following the robbery, the victim answered, “Not with my left hand, it was swollen.” With respect to the bump on her head, the victim testified that the bump remained for “[ajbout a week” and was painful. She described the pain as “[a]n ache.” The victim did not receive any medical treatment for her injuries, and the police report stated that she was not injured. We agree with defendant that the evidence is legally insufficient to establish that the victim suffered either “impairment of [a] physical condition” or “substantial pain” (Penal Law § 10.00 [9]). Although the victim testified that she could not move her two swollen fingers for approximately two weeks, that testimony was not further explained and thus is legally insufficient to establish the manner in which the victim’s activities were curtailed or limited (see People v Windbush, 163 AD2d 591, 592-593 [1990], lv denied 76 NY2d 945 [1990]; see also People v Carney, 179 AD2d 818 [1992], lv denied 80 NY2d 894 [1992]; cf. People v Driver, 248 AD2d 172, 172-173 [1998], lv denied 92 NY2d 851 [1998]). The victim failed to testify with respect to the degree of pain she experienced (see Matter of Philip A., 49 NY2d 198, 200 [1980]; Carney, 179 AD2d at 818; People v Dorsey, 112 AD2d 536, 537 [1985], lv denied 66 NY2d 763 [1985]; cf. People v Jackson, 232 AD2d 193, 194 [1996], lv denied 89 NY2d *1305924 [1996]; People v Williams, 127 AD2d 718 [1987], lv denied 69 NY2d 1011 [1987]), nor does the testimony concerning the injuries sustained by the victim support the inference that she experienced substantial pain (cf. People v Evans, 250 AD2d 484 [1998], lv denied 92 NY2d 924 [1998]). We therefore modify the judgment by reducing the conviction of robbery in the second degree to robbery in the third degree (Penal Law § 160.05; see CPL 470.15 [2] [a]) and vacating the sentence imposed on count one of the indictment, and we remit the matter to Supreme Court for sentencing on the conviction of robbery in the third degree (see CPL 470.20 [4]; People v Adams, 309 AD2d 648 [2003]). In view of our decision, we need not address defendant’s contention that the sentence imposed on that count of the indictment is unduly harsh and severe. Defendant failed to preserve for our review his contention that the court committed reversible error when it failed to conduct an inquiry of two jurors who, according to defendant, were asleep during portions of the trial (see People v Sanabria, 266 AD2d 41, 42 [1999], lv denied 94 NY2d 884 [2000]; People v Daughtry, 254 AD2d 193, 194 [1998], lv denied 93 NY2d 872 [1999] ; People v Gonzalez, 247 AD2d 328, 329 [1998]; People v Fenderson, 203 AD2d 585 [1994], lv denied 84 NY2d 825 [1994]). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject the further contention of defendant that the verdict is against the weight of the evidence because there was no physical evidence linking him to the crimes. The victim and an eyewitness identified defendant as the man who robbed the victim, and we cannot say that the jury failed to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Present—Centra, J.E, Lunn, Feradotto and Fine, JJ.

*1306Appeal from a judgment of the Monroe County Court (Richard A. Keenan, J.), rendered March 8, 2004. The judgment convicted defendant, upon a jury verdict, of possession of an imitation controlled substance with intent to sell it. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Monroe County Court for proceedings pursuant to CPL 460.50 (5). Memorandum: Defendant appeals from a judgment convicting him, following a jury trial, of possession of an imitation controlled substance with intent to sell it (Public Health Law § 3383 [2]). Defendant contends that the evidence is legally insufficient to support the conviction because the substance was tested in the field by the arresting officer but no laboratory examination was conducted. We reject that contention. Viewing the evidence in the light most favorable to the People, we conclude that there is a valid line of reasoning and permissible inferences that could lead a rational person to the conclusion reached by the jury (see People v Conway, 6 NY3d 869, 872 [2006]; People v Williams, 84 NY2d 925, 926 [1994]). The arresting officer testified that he conducted three field tests on the substance in defendant’s possession and that the results of those tests were negative. Another witness testified that, just moments before defendant’s arrest, defendant had tried to sell a similarly packaged baggie to him and had represented to him that the substance was cocaine. That witness, an addict who was familiar with the taste of cocaine and who had previously purchased imitation cocaine, testified that he had refused to complete the sale because he tasted the substance and had determined that it was not cocaine. Although defendant contends that the arresting officer tested a substance from a different baggie than the one rejected by the witness, the opinion of the witness was nevertheless probative with respect to the identity of the substance contained in the baggies found on defendant’s person when defendant was arrested. Defendant further contends that County Court erred in denying his motion for a mistrial on the ground that the court’s Molineux ruling was violated during the cross-examination of a *1307prosecution witness. When defense counsel asked the witness whether defendant was “a man that you said on direct examination you’d seen several times in the neighborhood,” the witness responded, “[a]nd dealt with,” and the witness repeated that response when asked a similar question. Even assuming, arguendo, that the responses violated the court’s Molineux ruling, we conclude that the court properly denied defendant’s motion for a mistrial. Defendant declined the court’s offer to issue a prompt curative instruction (see People v Young, 48 NY2d 995, 996 [1980], rearg dismissed 60 NY2d 644 [1983]; People v Montgomery, 293 AD2d 369, 371 [2002], lv denied 98 NY2d 712 [2002]; People v Jackson, 288 AD2d 52, 52-53 [2001], lv denied 97 NY2d 729 [2002]), and any prejudice that might have resulted was alleviated when the court struck the responses of the witness and thereafter charged the jury to ignore any stricken testimony during its deliberations. It is well settled that the jury is presumed to have followed the court’s instructions (see People v Iannone, 2 AD3d 1283, 1284 [2003], lv denied 2 NY3d 741 [2004]). Present—Centra, J.E, Lunn, Peradotto and Pine, JJ.

*1308Appeal from a judgment (denominated order) of the Supreme Court, Ontario County (John J. Ark, J), entered April 20, 2006 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the negative declaration issued by respondent pursuant to the State Environmental Quality Review Act (ECL art 8) in connection with the proposal of respondent-intervenor to expand a residential development overlooking Canandaigua Lake. We conclude that Supreme Court properly dismissed the petition on the ground that petitioner lacks standing to bring this proceeding. Petitioner lives one mile from the residential development, on the opposite side of the lake, and he did not demonstrate that he “will suffer an environmental impact in fact [as a result of the proposed expansion], i.e., one that is in some way different from that of the public at large” (Matter of Piela v Van Voris, 229 AD2d 94, 95 [1997]; see Matter of Buerger v Town of Grafton, 235 AD2d 984, 984-985 [1997], lv denied 89 NY2d 816 [1997]; Matter of Schulz v Warren County Bd. of Supervisors, 206 AD2d 672, 674 [1994] , lv denied 85 NY2d 805 [1995]; see generally Matter of Gerdts v State of New York, 210 AD2d 645, 646-647 [1994], appeal dismissed 85 NY2d 856 [1995], lv denied 85 NY2d 810 [1995] ; Matter of Otsego 2000 v Planning Bd. of Town of Otsego, 171 AD2d 258, 259-260 [1991], lv denied 79 NY2d 753 [1992]). Petitioner’s assertions of potential injury are speculative and conclusory and thus are lacking in probative value (see Matter of Noslen Corp. v Ontario County Bd. of Supervisors, 295 AD2d 924, 925 [2002]; see also Buerger, 235 AD2d at 985). In any event, were we to address the merits of the petition, we would conclude that respondent properly identified the relevant potential environmental impacts of the proposed expansion, took the requisite hard look at those impacts, and made a reasoned elaboration of the basis for its negative declaration (see generally Matter of Kahn v Pasnik, 90 NY2d 569, 574 [1997]; Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]). Present—Centra, J.P, Lunn, Peradotto and Pine, JJ.

*1309Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered June 1, 2006 in a personal injury action. The order denied the motion of defendants Barrett T.B. Inc., doing business as Barrett Brothers Management, KFC of America, Inc., Delta Sonic Carwash Systems, Inc. and Nathan Benderson, individually and doing business as Bender-son Development Company, Inc., for summary judgment and granted plaintiffs’ cross motion seeking permission to conduct additional discovery after filing the note of issue and statement of readiness. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the cross motion and as modified the order is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Joel Lopez (plaintiff) during a robbery at a restaurant owned and/or operated by Barrett T.B. Inc., doing business as Barrett Brothers Management, EEC of America, Inc., Delta Sonic Carwash Systems, Inc. and Nathan Benderson, individually and doing business as Benderson Development Company, Inc. (collectively, defendants). Contrary to the contention of defendants, Supreme Court properly denied their motion seeking, inter alia, summary judgment dismissing the complaint against them. Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised triable issues of fact whether, based on past experience, defendants “knew or should have known of the probability of conduct on the part of third persons which was likely to endanger the safety of those lawfully on the premises” (Farrell v Vega, 303 AD2d 716, 717 [2003]; see Jacqueline S. v City of New York, 81 NY2d 288, 294 [1993], rearg denied 82 NY2d 749 [1993]). We further conclude that the likelihood of criminal conduct was not so extraordinary and unforeseeable as to break the causal connection between plaintiffs injuries and defendants’ conduct as a matter of law (cf. Flores v Dearborne Mgt., Inc., 24 AD3d 101, 102 [2005]; Buckeridge v Broadie, 5 *1310AD3d 298 [2004]; Cerda v 2962 Decatur Ave. Owners Corp., 306 AD2d 169, 169-170 [2003]; Rivera v New York City Hous. Auth., 239 AD2d 114, 115 [1997]). We conclude, however, that the court erred in granting the cross motion of plaintiffs seeking permission to conduct additional discovery after they “inadvertently” filed the note of issue and statement of readiness, and we therefore modify the order accordingly. “[W]here, as here, additional discovery is sought after plaintiff[s] ha[ve] filed a note of issue, the party seeking additional discovery must demonstrate that ‘unusual or unanticipated circumstances develop [ed] subsequent to the filing . . . which require additional pretrial proceedings to prevent substantial prejudice’ ” (Kephart v Burke, 306 AD2d 924, 925 [2003], quoting 22 NYCRR 202.21 [d]; see Di Matteo v Grey, 280 AD2d 929, 930 [2001]). Plaintiffs failed to meet that burden with respect to the discovery sought in the cross motion. Present—Centra, J.E, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered January 5, 2006 in a personal injury action. The order, among other things, granted the motion of defendant Marcia Massaro and the cross motion of defendant City of Niagara Falls for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by plaintiff Terri Marie *1311Guadagno when she tripped and fell on an uneven sidewalk that crossed the driveway of the abutting landowner, defendant Marcia Massaro. Supreme Court properly granted the motion of Massaro and the cross motion of defendant City of Niagara Falls (City) for summary judgment dismissing the complaint. With respect to Massaro’s motion, it is well established that, as an abutting landowner, Massaro is not liable for injuries sustained as the result of a defect in the sidewalk unless the special use doctrine applies, i.e., the sidewalk was constructed in a special manner for her benefit, or unless she affirmatively created the defective condition or negligently constructed or repaired the sidewalk or there is a local ordinance charging her with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from her failure to do so (see Hausser v Giunta, 88 NY2d 449, 453 [1996]; Montes v City of Buffalo, 295 AD2d 896, 896-897 [2002], lv denied 99 NY2d 504 [2002]). Massaro met her initial burden by establishing that those exceptions do not apply to this case, and plaintiffs failed to raise an issue of fact sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We reject plaintiffs’ contention that the conduct of Massaro in driving across the portion of the sidewalk that crosses her driveway constitutes a special use of that sidewalk. As noted, the special use doctrine applies only if the sidewalk was specifically constructed in a special manner for the benefit of the abutting landowner (see Kaufman v Silver, 90 NY2d 204, 207 [1997]; Minott v City of New York, 230 AD2d 719, 720 [1996]), and that is not the case here. With respect to the City’s cross motion, the City met its initial burden by establishing as a matter of law that it did not receive prior written notice of the defective condition as required by section 5.14 of the Niagara Falls City Charter, which provides in relevant part that no civil action shall be maintained against the City based on, inter alia, an alleged defective condition of a sidewalk unless prior written notice of that condition was given to the Director of Operations and Technical Services. The City further established that the two exceptions to the prior written notice requirement do not apply, i.e., the City did not create the alleged defective condition and there is no special use of the sidewalk that confers a benefit on the City (see Oswald v City of Niagara Falls, 13 AD3d 1155, 1156-1157 [2004]; see generally Amabile v City of Buffalo, 93 NY2d 471, 475-476 [1999]). Although plaintiffs presented evidence establishing that a City employee may have had actual knowledge of the defective condition, it is well settled that actual or constructive notice does not override the prior written notice requirement (see Amabile, 93 *1312NY2d at 475-476; Oswald, 13 AD3d at 1157; Zimmerman v City of Niagara Falls, 112 AD2d 17 [1985]). Present—Centra, J.P, Lunn, Peradotto and Pine, JJ.

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered April 27, 2006 in a medical malpractice and wrongful death action. The order denied plaintiff’s motion for leave to amend the summons and complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this medical malpractice and wrongful death action and thereafter sought leave to amend the summons and complaint to add Eastern Great Lakes Pathology, EC. (Great Lakes) as a defendant. In support of her motion, plaintiff asserted that the proposed amended complaint against Great Lakes relates back to the action commenced against defendant Young T. Zhou, M.D. Supreme Court properly denied plaintiffs motion. Where, as here, the statute of limitations has expired, “the three-prong test to determine the applicability of the relation back doctrine” must be applied, and we conclude that the third prong of that test is not met (Cole v Tat-Sum Lee, 309 AD2d 1165, 1167 [2003]). Fursuant to the third prong, plaintiff must establish that “the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well” (id. [internal quotation marks omitted]; see Buran v Coupal, 87 NY2d 173, 178 [1995]; Williams v Majewski, 291 AD2d 816, 817 [2002]). It is well established that “the ‘linchpin’ of the relation back doctrine [is] notice to the [proposed] defendant within the applicable limitations period” (Cole, 309 AD2d at 1167). Here, plaintiff failed to present evidence establishing that Great Lakes knew or should have known that the action would have been brought against it within the limitations period but for a mistake by plaintiff concerning its identity. Indeed, plaintiff failed to present any evidence establishing that Great Lakes had notice that an action had been commenced against either named defendant. We reject plaintiffs contention that notice of the action should be imputed to Great Lakes based solely on the fact that Dr. Zhou was an *1313employee of Great Lakes (cf. Yaniv v Taub, 256 AD2d 273, 275 [1998]). Present—Centra, J.E, Lunn, Peradotto and Pine, JJ.

Order entered December 1, 1960, denying motion for consolidation, unanimously modified in the exercise of discretion so as to direct a joint trial of the actions pursuant to section 96-a of the Civil Practice Act; and as so modified, the order is affirmed, without costs. Both actions involve the matter of brokers’ commissions concerning the sale of Pier 13, North River, to the City of New York and the actions have common issues upon which the same witnesses will testify. Although the trial of the Vogel action is imminent, and, in the Fuss action a note of issue has not yet been filed, it appears that the examinations before trial in the latter action have been completed. Hence, no prejudicial delay will result if a joint trial is directed, whereas the interest of justice, the conservation of the time of the courts and the convenience of the parties and witnesses will be served by such procedure. The joint trial is ordered on condition that the moving defendants immediately file a statement of readiness and note of issue in the Fuss action, waive all further preliminary proceedings therein, and that both actions be tried when the Vogel action is reached for trial, with the right of the plaintiff in Action No. 1 to open and close at the joint trial. Settle order accordingly, containing provision for the joint trial in the February Term of the court. Concur— Botein, P. J., Valente, Stevens, Eager and Bergan, JJ.

Appeal from a judgment of the Supreme Court, Monroe County (John J. Brunetti, A.J.), rendered May 6, 2005. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree and two traffic infractions. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]), speeding (Vehicle and Traffic Law § 1180 [d]), and failing to signal (§ 1163 [b]). Contrary to the contention of defendant, the police had probable cause to stop the vehicle that he was driving based upon his commission of traffic violations (see People v Robinson, 97 NY2d 341, 348-349 [2001]; People v Garcia, 30 AD3d 833 [2006]). Defendant’s general motion to dismiss did not preserve for our review any challenge to the alleged legal insufficiency of the evidence advanced on appeal (see People v Gray, 86 NY2d 10, 19 [1995]; People v Sweeney, 15 AD3d 917 [2005], lv denied 4 NY3d 891 [2005]) and, contrary to defendant’s further contention, the verdict is not against the weight of the evidence despite discrepancies in the testimony of the police officers concerning the timing of events (see People v Green, 35 AD3d 1197 [2006]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Davis, 260 AD2d 726, 728-729 [1999], lv denied 93 NY2d 968 [1999]). Finally, because defendant committed the crimes herein before the effective date of the Drug Law Reform *1314Act, the indeterminate term of imprisonment imposed by Supreme Court is legal (see People v Utsey, 7 NY3d 398, 403-404 [2006]). Present—Hurlbutt, J.P, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from a judgment of the Monroe County Court (Elma A. Bellini, J.), rendered October 6, 2003. The judgment convicted defendant, upon a jury verdict, of murder in the second degree and robbery in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of murder in the second degree (Penal Law § 125.25 [3] [felony murder]) and robbery in the first degree (§ 160.15 [4]). Contrary to defendant’s contention, County Court properly permitted, after a Ventimiglia hearing, evidence of a previous encounter involving defendant and the victim (see People v Davis, 220 AD2d 682 [1995], lv denied 87 NY2d 900 [1995]). Contrary to the further contention of defendant, the court properly refused to grant a mistrial and avoided any possible violation pursuant to People v McNab (167 AD2d 858 [1990]) by striking the testimony with respect to acts constituting an unindicted robbery, giving the jury curative instructions with respect to that testimony and, most importantly, instructing the jury that the People were required to prove only the elements of the indicted robbery in order to find defendant guilty of robbery and felony murder (see People v Whitfield, 255 AD2d 924 [1998], lv denied 93 NY2d 981 [1999]). Also contrary to the contention of defendant, because there was no reasonable view of the evidence that defendant was merely present at the crime scene, the court properly refused to give a jury charge on accessorial liability (see CJI2d[NY] Accessorial Liability [rev Aug. 3, 2004]). We also reject the contention of defendant that the court erred *1315in refusing to suppress his photograph taken by the police at the crime scene. The police lawfully stopped defendant based on a founded suspicion that he had been involved in a crime (see generally People v De Bour, 40 NY2d 210, 223 [1976]), and the police obtained defendant’s consent before taking the photograph. The sentence is not unduly harsh or severe. Present— Hurlbutt, J.P, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from a judgment of the Monroe County Court (John J. Connell, J.), rendered July 11, 2003. The judgment convicted defendant, upon a jury verdict, of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree and criminally using drug paraphernalia in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]). We reject defendant’s contention that reversal is required based on County Court’s refusal to disclose the identity of a confidential informant. “[T]he strongest case for disclosure is made out when it appears that the informant was an eyewitness or a participant in the alleged crime .... When[,] however[,] he [or she] has played a marginal part by, for instance, merely furnishing a tip or some information to the police, the privilege should prevail absent an extremely strong showing of relevance” (People v Goggins, 34 NY2d 163, 169-170 [1974], cert denied 419 US 1012 [1974]). Defendant failed to make that showing. Defendant was arrested in an apartment following a police officer’s purchase of drugs at that location, and the confidential informant provided information concerning the presence of drugs in that apartment a week earlier. Thus, the information provided by the confidential informant had no bearing on the is*1316sue whether defendant possessed drugs on the date of his arrest (see People v Rice, 30 AD3d 172 [2006], lv denied 7 NY3d 817 [2006]; see generally People v Johnson, 21 AD3d 1395 [2005], lv denied 5 NY3d 883 [2005]). Contrary to the further contention of defendant, the court properly refused to admit in evidence the certificate of conviction of another person arrested at the crime scene inasmuch as the proffered evidence had only slight probative value and strong potential for undue prejudice and confusion (see People v Primo, 96 NY2d 351, 356-357 [2001]). Defendant failed to meet his burden of establishing that he was entitled to a missing witness charge with respect to a police officer. The record establishes that the officer’s testimony would have been cumulative, and thus a missing witness charge was not warranted (see People v Comfort, 31 AD3d 1110, 1112 [2006], lv denied 7 NY3d 847 [2006]). Finally, defendant contends that the court erred in permitting a police officer to provide expert testimony concerning the operation of drug houses in Rochester because the People failed to establish a foundation for the admission of that testimony (see People v Radesi, 11 AD3d 1007, 1008 [2004], lv denied 3 NY3d 760 [2004]). Defendant failed to preserve that contention for our review (see CPL 470.05 [2]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Present— Hurlbutt, J.P, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from a judgment of the Oneida County Court (Michael L. Dwyer, J.), rendered March 15, 2005. The judgment convicted defendant, upon a jury verdict, of reckless endangerment in the first degree and criminal possession of a weapon in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of reckless endangerment in the first degree (Penal Law § 120.25) and criminal possession of a weapon in the second degree (former § 265.03 [2]). Contrary to the contentions of defendant, the evidence, viewed in the light most favorable to the People, is legally sufficient to establish the element of intent to support the conviction of criminal possession of a weapon in the second degree, and the verdict is not against the weight of the evidence with respect to either crime (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Great *1317deference is accorded to the jury’s resolution of credibility issues (see id.) and, although the testimony of the prosecution witnesses was inconsistent in some respects, it cannot be said that their testimony was incredible as a matter of law (see People v Halwig, 288 AD2d 949 [2001], lv denied 98 NY2d 710 [2002]; People v Jordan, 239 AD2d 947 [1997], lv denied 90 NY2d 940 [1997]). Finally, the sentence is not unduly harsh or severe. Present—Hurlbutt, J.E, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from an order of the Family Court, Cattaraugus County (Michael L. Nenno, J.), entered November 7, 2005 in a proceeding pursuant to Family Court Act article 6. The order continued joint custody of the child and awarded primary physical custody to respondent and visitation to petitioner. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: “A custody determination by the trial court must be accorded great deference (see, Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]) and should not be disturbed where . . . it is supported by a sound and substantial basis in the record” (Matter of Green v Mitchell, 266 AD2d 884, 884 [1999]). Here, Family Court’s determination that the best interests of the child will be served by awarding primary physical custody to respondent is supported by a sound and substantial basis in the record. Contrary to the contention of petitioner, the fact that she had primary physical custody of the child for five years prior to her relocation to Florida “is not entitled to the same weight to which it would have been entitled had the child remained with petitioner” (Matter of Coryea v Allen, 262 AD2d 1023, 1024-1025 [1999], lv denied 94 NY2d 751 [1999]; see Matter of Johnston v Bridenbecker, 300 AD2d 1062, 1063 [2002]). Present—Hurlbutt, J.E, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from an order of the Family Court, Monroe County (John J. Rivoli, J.), entered January 25, 2006 in a proceeding pursuant to Family Co.urt Act article 6. The order granted respondent’s motion to dismiss the amended petition. *1318It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstating the amended petition insofar as it alleges that respondent was interfering with petitioner’s telephone contact with the parties’ children and as modified the order is affirmed without costs, and the matter is remitted to Family Court, Monroe County, for further proceedings on that part of the amended petition. Memorandum: We agree with petitioner that Family Court erred in granting respondent’s motion to dismiss the amended petition insofar as it alleges that respondent was interfering with his telephone contact with the parties’ children. The order of protection dated September 23, 2003 expressly provides that petitioner may have monitored telephone contact with the children twice weekly, and neither respondent nor the Law Guardian disputes that such contact has not been occurring. There is no basis in the record for the statement of the court in its bench decision that those telephone calls are to be made solely at the discretion of the children. Liberally construing the amended petition in favor of petitioner, as we must on a motion to dismiss for failure to state a cause of action (see Matter of Stefanel Tyesha C., 157 AD2d 322, 325 [1990]), we conclude that petitioner has stated a cause of action for the enforcement of the telephone contact provisions set forth in the order of protection. We therefore modify the order accordingly. In view of the language in the order of protection, we emphasize that the wishes of the children with respect to contact with petitioner are not controlling (see generally Matter of Kristine Z. v Anthony C., 21 AD3d 1319, 1321 [2005], lv dismissed 6 NY3d 772 [2006]; Matter of Casolari v Zambuto, 1 AD3d 1031 [2003]; Matter of Jordan v Jordan, 288 AD2d 709, 710 [2001]; Matter of Iadicicco v Iadicicco, 270 AD2d 721, 722 [2000]). Present—Hurlbutt, J.E, Gorski, Fahey, Peradotto and Green, JJ.

Appeal and cross appeal from an order of the Supreme Court, Monroe County (Elma A. Bellini, A.J.), entered January 6, 2006. The order, among other things, granted the parties joint physical custody of their children and distributed the marital assets. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court granted plaintiff a divorce and, by the order on appeal, the court decided the remaining issues *1319in the divorce action. Contrary to the contention of plaintiff, the court did not err in refusing to award her primary physical custody of the parties’ children. Both parties sought primary physical custody, and the court’s determination that joint physical custody is in the children’s best interests “ ‘is supported by a sound and substantial basis in the record’ and thus will not be disturbed” (Matter of Amy L.W. v Brendan K.H., 37 AD3d 1060 [2007]; see Matter of Westfall v Westfall, 28 AD3d 1229, 1230 [2006], lv denied 7 NY3d 706 [2006]; Sorce v Sorce, 16 AD3d 1077 [2005]). Also contrary to plaintiffs contention, the record establishes that the court carefully weighed the appropriate factors, and the determination of the court, “which [was] in the best position to evaluate the character and credibility of the witnesses, must be accorded great weight” (Matter of Paul C. v Tracy C., 209 AD2d 955, 956 [1994]; see Matter of Pinkerton v Pensyl, 305 AD2d 1113, 1113-1114 [2003]; see generally Eschbach v Eschbach, 56 NY2d 167, 171-174 [1982]). Plaintiff further contends that the court abused its discretion in refusing to award her sole legal custody of the children, i.e., the sole decision-mating authority with respect to them, and that the court abused its discretion by instead setting forth the separate areas of sole decision-mating authority in the children’s lives. In particular, the court granted plaintiff decision-mating authority with respect to religion, finances, counseling/therapy, and summer activities, and the court granted defendant decision-mating authority with respect to education, medical/ dental care, and extracurricular activities. As the court noted, joint legal custody was not a realistic possibility in this case, given the parties’ past acrimony and the predictions of the experts and plaintiff herself that the parties would be unable to agree on major decisions concerning their children (see Bliss v Ach, 56 NY2d 995, 998 [1982]; Matter of Brown v Marr, 23 AD3d 1029, 1030 [2005]). The court thus did not err in determining that it was appropriate to divide the decision-mating authority with respect to the children (see Matter of Ring v Ring, 15 AD3d 406 [2005]). We further reject plaintiffs contention that the court erred in applying the Child Support Standards Act (CSSA) percentage to all of the combined parental income, which was approximately $130,000. The record establishes that the court articulated a proper basis for applying the CSSA to the combined parental income in excess of $80,000 (see Domestic Relations Law § 240 [1-b] [c] [2], [3]; Terrell v Terrell, 299 AD2d 810, 812 [2002]; Corasanti v Corasanti, 296 AD2d 831 [2002]). We have considered the contentions raised by defendant on *1320his cross appeal and conclude that they are lacking in merit. Present—Hurlbutt, J.E, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered December 14, 2005 in a legal malpractice action. The judgment granted defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this legal malpractice action against defendant Brian R. Welsh, the attorney who represented him in a matrimonial action, and defendant Siegel, Kelleher & Kahn, Welsh’s law firm. Plaintiff alleged, inter alia, that Welsh engaged in negligent and improper conduct in connection with the appointment of a custodian for certain accounts established for plaintiff’s children. Supreme Court properly granted defendants’ motion seeking summary judgment dismissing the complaint. “In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that [plaintiff is] unable to prove at least one [of the] necessary element[s] of a legal malpractice action” (Potter v Polozie, 303 AD2d 943, 943 [2003]), i.e., “that [defendants] failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community, that [their] negligence was a proximate cause of the loss sustained by [plaintiff], and that [plaintiff] incurred damages as a direct result of [defendants’] actions” (Attonito v La Mirage of Southampton, 276 AD2d 454, 454 [2000]). Here, defendants met their burden with respect to each necessary element, and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Hurlbutt, J.P., Gorski, Peradotto and Green, JJ.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Erie County (John M. Curran, J.), entered December 7, 2005 in a proceeding pursuant to CPLR article 78. The judgment granted the petition and annulled respondents’ determination. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination that petitioner is operating an adult care facility within the meaning of Social Services Law § 2 (21) and therefore is subject to sanctions for failing to obtain an operating certificate. Supreme Court denied respondents’ motion to dismiss the petition based on the failure of petitioner to exhaust its administrative remedies. Although the court concluded that the letter notifying petitioner of the determination was not final and binding because the requisite administrative hearing to determine whether petitioner was in fact operating an adult care facility had not been conducted (see § 460-d [9] [a3; 18 NYCRR 486.5 [b] [2]; 493.10 [f] [23), the court nevertheless denied the motion because it deemed itself bound by the decision in Matter of Alterra Healthcare Corp. v Novello (306 AD2d 787 [2003]). We reverse. Following the entry of the judgment on appeal herein, the First Department concluded in Cambridge Dev., LLC v Novello (26 AD3d 220 [2006]) that, unlike the determination letter in Alterra Healthcare Corp., the determination letter in the case before it “merely informed petitioners of DOH’s view that they require an operating certificate and of the penalties they faced should they be found after a hearing to be operating without a required operating certificate” (id. at 221). Thus, although the determination letter in Alterra Healthcare Corp. “was a final determination that commenced the four-month statute of limitations,” the letter in Cambridge Dev., LLC was different because it made clear that there was an available administrative process for litigating the licensing issue before any final determination was made (id.). That analysis applies equally to the letter in this proceeding, and we thus conclude under the circumstances of this case that it is inappropriate for this Court to interfere with the per*1322formance of respondents’ statutory duties (see id.). Present— Hurlbutt, J.E, Gorski, Fahey, Eeradotto and Green, JJ.

Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered December 16, 2005 in a personal injury action. The order, among other things, granted the motion of defendant Diversified Automotive, Inc. for summary judgment dismissing the complaint against it and the cross motion of defendant Northtown Hyundai, Inc. for summary judgment dismissing the complaint and any cross claims against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained in a motor vehicle collision. At the time of the accident, the vehicle in which plaintiff was a passenger was traveling eastbound on Sheridan Drive in the Town of Amherst, and the three eastbound lanes were blocked by a car carrier owned by defendant Diversified Automotive, Inc. (Diversified) and driven by a Diversified employee. The car carrier had been backed out of the driveway of defendant Northtown Hyundai, Inc. (Northtown) with the assistance of a Northtown employee. Plaintiff was injured when the vehicle in which she was a passenger was rear-ended by a vehicle driven by defendant Dale R. Pohl. Supreme Court properly granted the motion of Diversified for summary judgment dismissing the complaint against it and the cross motion of Northtown for summary judgment dismissing the complaint and any cross claims against it. The evidence establishes that the vehicle in which plaintiff was a passenger was able to stop without striking the car carrier and that the injuries sustained by plaintiff resulted from the rear-end collision with the vehicle driven by Pohl. “Under the circumstances, any alleged negligence on the part of [Diversified and North-town] was not a proximate cause of plaintiffs injuries” (Robinson v Day, 265 AD2d 916, 918 [1999]; see Coffey v Baker, 34 AD3d 1306, 1307-1308 [2006], Iv dismissed in part and denied in part 8 NY3d 867 [2007]; Rzepecki v Yauch, 277 AD2d 984 *1324[2000]). Present—Hurlbutt, J.P, Gorski, Fahey, Peradotto and Green, JJ.

Appeal from a judgment of the Steuben County Court (Marianne Furfure, J.), rendered August 16, 2004. The judgment convicted defendant, upon a jury verdict, of burglary in the second degree (two counts), grand larceny in the second degree and grand larceny in the third degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of two counts of burglary in the second degree (Penal Law § 140.25 [2]), and one count each of grand larceny in the second degree (§ 155.40 [1]) and grand larceny in the third degree (§ 155.35). Contrary to the contention of defendant, County Court did not abuse its discretion in granting the People’s request for a missing witness charge (see generally People v Savinon, 100 NY2d 192, 197 [2003]). The significance of the missing witness did not become apparent until a defense witness testified, and the People requested the charge “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]; see People v Badine, 301 AD2d 178, 181 [2002]). Contrary to defendant’s contentions, there was no basis for the court to conclude that the missing witness was “likely to invoke” his Fifth Amendment privilege against self-incrimination if called as a witness (People v Macana, 84 NY2d 173, 177 [1994]), and the fact that the missing witness might have been in federal custody did not conclusively establish his unavailability (see Savinon, 100 NY2d at 198 n 5; see also CPL 670.10 [1]). *1325On the record before us, there is no constitutional double jeopardy violation (see People v Lennon, 80 AD2d 672, 672-673 [1981]; see also People v Abbamonte, 43 NY2d 74, 81 [1977]), and defendant’s contention concerning statutory double jeopardy is not preserved for our review (see People v Biggs, 1 NY3d 225, 231 [2003]; People v Dodson, 48 NY2d 36, 38 [1979]; People v Michallow, 201 AD2d 915 [1994], lv denied 83 NY2d 874 [1994]). Similarly, defendant failed to preserve for our review his contention concerning the prosecutor’s use of the term “professional thief’ to describe defendant (see People v Gates, 6 AD3d 1062, 1063 [2004], lv denied 3 NY3d 659 [2004]). We decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Indeed, we note with respect to the contention concerning the use of the term “professional thief’ that defendant used that term when asked to provide his occupation to police officers during the booking process after his arrest. Finally, the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]), defendant’s contentions concerning the alleged legal insufficiency of the evidence are not preserved for our review (see People v Gray, 86 NY2d 10, 19 [1995]), and we conclude that the alleged Rosario and Brady violations would constitute harmless error in light of the overwhelming evidence of defendant’s guilt (see People v Vilardi, 76 NY2d 67, 77 [1990]; People v Robinson, 267 AD2d 981 [1999], lv denied 95 NY2d 838 [2000]). We thus conclude that the court properly denied defendant’s motion to set aside the verdict pursuant to CPL 330.30 on those grounds. Present—Scudder, EJ., Hurlbutt, Centra, Fahey and Green, JJ.

Appeal from a judgment of the Erie County Court (Shirley Troutman, J.), rendered November 3, 2005. The judgment convicted defendant, after a nonjury trial, of assault in the first degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a nonjury trial of assault in the first degree (Penal Law § 120.10 [1]). We agree with defendant that County Court erred in admitting evidence of an uncharged crime without conducting a Ventimiglia hearing. We conclude, however, that the error is harmless (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]). Defendant failed to preserve for our review his contention that the People improperly impeached their own witness (see People v Picente, 35 AD3d 1210, 1211 [2006]; People *1326v Willis, 303 AD2d 936 [2003], lv denied 100 NY2d 544 [2003]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). We reject defendant’s further contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). The court’s resolution of credibility issues is entitled to great deference, and it cannot be said that the court failed to give the evidence the weight it should be accorded (see People v Lane, 7 NY3d 888 [2006]; People v Britt, 298 AD2d 984 [2002], lv denied 99 NY2d 556 [2002]). Contrary to the further contention of defendant, he received effective assistance of counsel (see generally People v Baldi, 54 NY2d 137, 147 [1981]). Defense counsel “made appropriate and comprehensive pretrial motions, conducted pretrial hearings and examination of witnesses at the trial, [and] made timely and appropriate objections and attacks on the People’s proof’ (People v Fells, 279 AD2d 706, 711 [2001], lv denied 96 NY2d 758 [2001]), and defense counsel’s decision not to call certain witnesses to testify was a matter of strategy (see People v Botting, 8 AD3d 1064, 1066 [2004], lv denied 3 NY3d 671 [2004]; see generally People v Rivera, 71 NY2d 705, 708-709 [1988]). Finally, the sentence is not unduly harsh or severe. Present—Scudder, PJ., Hurlbutt, Centra, Fahey and Green, JJ.

*1327Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.), rendered May 27, 2004. The judgment convicted defendant, upon his plea of guilty, of manslaughter in the second degree and driving while intoxicated. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of manslaughter in the second degree (Penal Law § 125.15 [1]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). Contrary to the contention of defendant, County Court did not abuse its discretion in denying his motion to withdraw his guilty plea (see generally CPL 220.60 [3]; People v Alexander, 97 NY2d 482, 485 [2002]). Defendant alleged in support of his motion that he had been threatened by another inmate and was therefore coerced into pleading guilty, and the court determined following a hearing that defendant’s testimony concerning the alleged coercion was incredible as a matter of law. “ ‘Issues of credibility are primarily for the hearing court and its findings should be upheld unless they are clearly erroneous’ ” (People v Stephens, 6 AD3d 1123, 1124 [2004], lv denied 3 NY3d 663, 682 [2004]), and here the court’s findings are supported by the record. Contrary to the further contentions of defendant, a waiver of the right to appeal is not against public policy (see People v Aguayo, 37 AD3d 1081 [2007]; People v Peterson, 35 AD3d 1195 [2006]; see generally People v Muniz, 91 NY2d 570, 573-575 [1998]), and his waiver of the right to appeal was knowingly, intelligently and voluntarily entered (see People v Lopez, 6 NY3d 248, 256 [2006]). Although defendant’s contention that the plea was not knowingly, intelligently and voluntarily entered survives the waiver of the right to appeal (see People v DeJesus, 248 AD2d 1023 [1998], lv denied 92 NY2d 878 [1998]), that contention likewise is without merit. The record establishes that the court carefully reviewed the consequences of the plea with defendant and that defendant indicated that he understood the consequences of pleading guilty. Finally, we reject the contention of defendant that the court erred in denying his pro se motion for substitution of counsel. Defendant failed to establish “ ‘good cause for a substitution,’ such as a conflict of interest or other irreconcilable conflict with counsel” (People v Sides, 75 NY2d 822, 824 [1990]). Present—Scudder, PJ., Hurlbutt, Centra, Fahey and Green, JJ.

Appeal from a *1328judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), rendered January 10, 2005. The judgment convicted defendant, upon a jury verdict, of attempted murder in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting her upon a jury verdict of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]). We conclude that Supreme Court properly denied defendant’s Batson challenge because defendant failed to meet her “ultimate burden of persuading the court” that the People’s race-neutral reasons for exercising a peremptory challenge with respect to an African-American juror were pretextual (People v Smocum, 99 NY2d 418, 422 [2003]). The court’s credibility determination on that issue is entitled to great deference (see Hernandez v New York, 500 US 352, 364 [1991]; People v Crawford, 299 AD2d 848 [2002], lv denied 99 NY2d 581, 653 [2003]), and we see no reason to disturb it. Defendant further contends that the court erred in denying her motion for a mistrial based on the alleged improper readback of testimony to the jury. The record establishes, however, that defense counsel consented to the readback before the court responded to the jury’s request and registered an objection only after the jury had announced that it had reached a verdict. Under those circumstances, we conclude that defendant’s contention is not preserved for our review (see People v Starling, 85 NY2d 509, 516 [1995]; see also People v Tolbert, 283 AD2d 930 [2001], lv denied 96 NY2d 908 [2001]). In addition, defendant failed to preserve for our review her contentions concerning the alleged legal insufficiency of the evidence to support the conviction (see People v Gray, 86 NY2d 10, 19 [1995]; People v Nickels, 37 AD3d 1110 [2007]). We reject defendant’s further contention that the verdict is against the weight of the evidence on the issue of intent. It is well settled that intent to kill may be inferred from defendant’s conduct as well as the circumstances surrounding the crime (see People v Price, 35 AD3d 1230 [2006]; see also People v Smith, 79 NY2d 309, 315 [1992]), and on this record we conclude that the jury did not fail to give the evidence the weight it should be accorded (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We further conclude that, based on the theory of the defense that defendant’s acts were accidental or negligent rather than intentional, the court properly instructed the jury concerning motive (see generally People v Seppi, 221 NY 62, 70-71 [1917]; People v Giordano, 213 NY 575, 583-584 [1915]; People v *1329Ryan, 240 AD2d 775, 776 [1997], lv denied 90 NY2d 910 [1997]). Because defendant and the victim were not members of the same family or household (see CPL 530.11 [1]), the court properly refused to sentence defendant pursuant to Penal Law § 60.12. Finally, the sentence is not unduly harsh or severe. Present—Scudder, PJ., Hurlbutt, Centra, Fahey and Green, JJ.

Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang J.), rendered March 21, 2005. The judgment convicted defendant, upon a jury verdict, of murder in the second degree. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him after a jury trial of murder in the second degree (Penal Law § 125.25 [1] [intentional murder]). We reject defendant’s contention that the evidence is legally insufficient to support the conviction. The People presented evidence that defendant actively concealed the victim’s death at the house he shared with the victim and that he attempted to dispose of parts of her body, and that conduct constitutes “unmistakable evidence of his consciousness of guilt” (People v Karen, 17 AD3d 865, 866 [2005], lv denied 5 NY3d 764 [2005]; see People v Bierenbaum, 301 AD2d 119, 138-139 [2002], lv denied 99 NY2d 626 [2003], cert denied 540 US 821 [2003]). In addition, the People presented evidence that the victim had been strangled, that defendant while incarcerated had admitted that he killed her, that the victim had planned to leave defendant, and that they had a physically abusive relationship. Viewing the evidence in the light most favorable to the People, we conclude that there is a valid line of reasoning and permissible inferences supporting the jury’s findings of the elements of murder in the second degree (see generally People v Williams, 84 NY2d 925, 926 *1330[1994]; People v Bleakley, 69 NY2d 490, 495 [1987]). Also contrary to defendant’s contention, the verdict is not against the weight of the evidence (see Bleakley, 69 NY2d at 495). We reject the further contention of defendant that he was denied a fair trial when Supreme Court admitted in evidence photographs of the victim’s severed limbs and mutilated body. Photographic evidence should be excluded “only if its sole purpose is to arouse the emotions of the jury and to prejudice the defendant” (People v Pobliner, 32 NY2d 356, 370 [1973], rearg denied 33 NY2d 657 [1973], cert denied 416 US 905 [1974]) and, here, the photographs were relevant with respect to the efforts of defendant to dispose of the victim’s body and the issue of his intent. We also conclude that the court did not err in admitting evidence that defendant committed uncharged acts of postmortem mutilation. The probative value of that evidence with respect to the crime charged outweighed its prejudicial effect (see generally People v Wright, 167 AD2d 959 [1990], lv denied 77 NY2d 845 [1991]). Contrary to defendant’s further contention, the court did not abuse its broad discretion to control and restrict the scope of voir dire examination when it precluded questioning of the sworn jurors following the disclosure that a jailhouse informant would testify at trial (see generally People v Boulware, 29 NY2d 135, 140 [1971], rearg denied 29 NY2d 670 [1971], cert denied 405 US 995 [1972]). The sentence is not unduly harsh or severe. We have examined defendant’s remaining contentions and conclude that they are without merit. Present—Scudder, EJ., Hurlbutt, Centra, Fahey and Green, JJ.

*1332Appeal from an order of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered May 25, 2006. The order, among other things, directed that plaintiff’s share of defendant’s federal employment retirement system benefits be calculated as if defendant had opted for the highest benefit option and determined that plaintiff is entitled to an equitable share of any cost of living adjustments paid to defendant. It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion with respect to calculation of plaintiffs share of defendant’s federal employment retirement system benefits and as modified the order is affirmed without costs. Memorandum: In this divorce action, defendant contends that Supreme Court erred in granting that part of plaintiffs post-judgment cross motion seeking a qualified domestic relations order directing that plaintiff’s share in defendant’s federal employment retirement system (FERS) benefits is to be calculated as if defendant had opted for the highest benefit option available. We agree. According to the terms of the parties’ separation agreement, which was incorporated but not merged in the judgment of divorce, defendant’s FERS pension was to be divided in accordance with Majauskas v Majauskas (61 NY2d 481 [1984]). Defendant remarried following the divorce and, upon his retirement, he opted for a distribution plan that created a survivor benefit for his second wife and reduced the benefits that he would have received if he had opted for the self-only distribution plan. We agree with defendant that the court erred in directing that plaintiff’s share of the FERS pension benefits be calculated as if defendant had opted for the highest benefit option, i.e., the self-only distribution plan, inasmuch as there was no express provision in the separation agreement requiring him to do so (see Von Buren v Von Buren, 252 AD2d 950 [1998]), and we therefore modify the order accordingly. Contrary to defendant’s further contention, the court properly determined that plaintiff was entitled to an equitable share of the monthly retirement supplement benefits and any cost of living adjustments as part of the pension benefits despite the absence of an express provision to that effect in the separation agreement (see Pagliaro v Pagliaro, 31 AD3d 728, 730 [2006]). *1333We have reviewed defendant’s remaining contentions and conclude that they are without merit. Present—Scudder, PJ., Hurlbutt, Centra, Fahey and Green, JJ.

Judgment in favor of plaintiff-respondent in the sum of $5,220 in an action for personal injuries, reversed, on the law, on the facts and in the exercise of discretion, *751and a new trial ordered, with costs to defendant-appellant. Plaintiff-respondent’s assigned reasons for calling as a witness defendant-appellant’s trial counsel are specious. Where, as here, prejudicial testimony is clearly inadmissible, objections to the questions should have been sustained. The subsequent striking of the testimony did not eliminate possible prejudice, which should always be guarded against and here was unnecessarily introduced. Concur — Valente, J. P., McNally and Eager, JJ.; Stevens and Bergan, JJ., dissent and vote to affirm in the following memorandum by Stevens, J.: The trial here was for assessment of damages, summary judgment having been granted by a prior order entered May 25, 1960. There is no prohibition against the calling as a witness by an attorney of his adversary’s counsel. I agree that the questions asked are irrelevant and immaterial and objections thereto should have been sustained. However, in the view I take, there is no showing by defendant of prejudice resulting therefrom. The court may take judicial notice that under chapter 655 of the Laws of 1956 former section 93-b of the Vehicle and Traffic Law (now § 312) required that commencing January 1, 1957 all vehicles have insurance. The accident claimed in the instant case allegedly occurred on May 3, 1957, and even if defendant’s contention is correct (which plaintiff disputes) it is difficult to see how he was prejudiced thereby.

Appeal from an order of the Supreme Court, Seneca County (W. Patrick Falvey, A.J.), entered November 17, 2005 in a personal injury action. The order, insofar as appealed from, denied the motion of defendant County of Seneca for summary judgment dismissing the amended complaint against it. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action seeking dam*1334ages for injuries sustained by plaintiff Brenden S. Flynn when the vehicle he was driving was struck by the vehicle driven by defendant Lisa R. Compton. It is undisputed that Compton failed to yield the right of way at an intersection. The County of Seneca (defendant) correctly concedes that it was negligent in its failure to use appropriate signage in the area of the intersection, but it nevertheless contends that Supreme Court erred in denying its motion seeking summary judgment dismissing the amended complaint against it on the ground that its negligence was not a proximate cause of the accident. Even assuming, arguendo, that defendant met its initial burden on the motion, we conclude that plaintiffs raised an issue of fact with respect to proximate cause sufficient to defeat the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Plaintiffs submitted the affidavit of their expert, who disagreed with defendant’s expert that the yield sign is visible at a distance of 1,055 feet and instead averred that “the intersection is visible and the yield sign may be visible” at a distance of 300 feet from the intersection. Plaintiffs also submitted photographs of the roadway approaching the intersection demonstrating that the yield sign and intersection were not clearly visible at a distance of 300 feet, but were clearly visible at a distance of 148 feet. Despite the error in the variable used by plaintiffs’ expert and despite the deposition testimony of Compton that she did not see either the sign or the intersection, we conclude that plaintiffs raised an issue of fact whether Compton’s actions were “a normal or foreseeable consequence of the situation created by the defendant’s negligence” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980], rearg denied 52 NY2d 784 [1980]; see Pomeroy v Buccina, 289 AD2d 944, 945 [2001]). Present—Scudder, PJ., Hurlbutt, Centra, Fahey and Green, JJ.

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered August 18, 2006. The order denied defendant’s motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs. Memorandum: Plaintiff was employed by defendant from 1978 until his termination from employment in 2001. Plaintiff commenced this action alleging that defendant unlawfully discriminated against him by discharging him from employment based upon his actual or perceived disability and refusing to provide him with reasonable accommodations with respect to his disability (see Executive Law § 296 [1] [a]; [3] [a]). Plaintiff further alleges that he was harassed and subjected to a hostile work environment because of his actual or perceived disability (see generally Novak v Royal Life Ins. Co. of N.Y., 284 AD2d 892, 892-893 [2001]). Supreme Court properly denied defendant’s motion seeking summary judgment dismissing the complaint. Contrary to defendant’s contention, there is a triable issue of fact whether, “upon the provision of reasonable accommodations, [plaintiff was qualified to hold his position and to] perforad ] in a reasonable manner” the essential function of that position (Executive Law § 292 [21]; see Matter of McEniry v Landi, 84 NY2d 554, 560 [1994]; Engelman v Girl Scouts-Indian Hills Council, Inc., 16 AD3d 961, 962 [2005]). In addition, there is a triable issue of fact whether, in light of the totality of the circumstances, the conduct of plaintiff’s supervisors and the plant physician was sufficiently severe or pervasive as to have created a hostile work environment (see generally Novak, 284 AD2d at 892-893; Vitale v Rosina Food Prods., 283 AD2d 141, 143 [2001]; Jordan v Bates *1336Adv. Holdings, Inc., 11 Misc 3d 764, 772-773 [2006]). Finally, we reject the contention of defendant that plaintiffs cause of action asserting that it refused to provide reasonable accommodations is barred by the doctrine of collateral estoppel based on the prior dismissal of plaintiffs employment discrimination action in federal court (Dietrich v E.I. du Pont de Nemours & Co., 2004 WL 2202656 [WD NY, Sept. 28, 2004]). In its decision, the federal court expressly declined to exercise jurisdiction over plaintiffs claims under the Human Rights Law and dismissed those claims without prejudice (id. at *14), and the discussion of reasonable accommodations in a footnote in the decision was not essential to the federal court’s determination (see Jordan v Bates Adv. Holdings, 292 AD2d 205, 206-207 [2002]; Lamontagne v Board of Trustees of United Wire, Metal & Mach. Pension Fund, 183 AD2d 424, 426 [1992], lv denied 80 NY2d 759 [1992]). Present—Scudder, P.J., Hurlbutt, Centra, Fahey and Green, JJ.