author: Hancock, Jr., J. Bellacosa, J. Chief Judge Wachtler

text:
    The People of the State of New York, Appellant, v Robert Dozier, Respondent.
    Argued May 29, 1991;
    decided July 2, 1991

      POINTS OF COUNSEL

      Robert M. Morgenthau, District Attorney (Anne Marie N. Vagra and Patricia Curran of counsel), for appellant.
    Defendant was properly sentenced as a second violent felony offender. (People v Love, 71 NY2d 711; People v Orr, 57 AD2d 578; People v Bell, 138 AD2d 298, 73 NY2d 153; People v Floyd J., 61 NY2d 895; People v Cruz, 48 NY2d 419; People v Graham, 55 NY2d 144; People v Catalanotte, 72 NY2d 641; People v Salemi, 309 NY 208, 350 US 950.)

      Jonathan Heller and Philip L. Weinstein for respondent.
    The falsity of respondent’s rape conviction bars use of his imprisonment thereon as a device for tolling the 10-year limitation period of Penal Law § 70.04. (People v Love, 71 NY2d 711; United States v Tucker, 404 US 443; Burgett v Texas, 389 US 109; Townsend v Burke, 334 US 736; Sanders v Sullivan, 863 F2d 218; Mesarosh v United States, 352 US 1; People v Rensing, 14 NY2d 210; Jackson v Virginia, 443 US 307; People v Salemi, 309 NY 208, 350 US 950.)
   OPINION OF THE COURT

Hancock, Jr., J.

Section 70.04 of the Penal Law provides that second violent felony offenders must receive enhanced sentences. In order for a prior violent felony to be effective as a predicate for enhanced sentencing under section 70.04, the sentence on the prior felony must have been imposed no more than 10 years before commission of the felony on which the defendant is being sentenced (§ 70.04 [1] [b] [iv]). For the purpose of determining whether this 10-year limitation has been exceeded, the statute provides for exclusion of any period of time that the defendant was incarcerated for any reason between the time of commission of the previous felony and the commission of the current felony. For such period of incarceration, section 70.04 (1) (b) (v) extends and thereby tolls the 10-year limitation.

The question here is whether section 70.04 (1) (b) (v) operates to toll the 10-year limitation during a period of incarceration when the conviction on which the incarceration was based was vacated for newly discovered evidence under CPL 440.10 (1) (g) and the indictment subsequently dismissed on the District Attorney’s affirmation that the People would not be able to establish defendant’s guilt on a new trial. The Appellate Division, with two dissenters, vacated defendant’s sentence and remanded the matter for resentencing as a first felony offender. The majority of that court concluded that the time defendant had served for the invalid conviction could not be effective to extend the 10-year limitation and thus result in enhancing defendant’s punishment by making him a second felony offender. In their appeal to this Court, the People give the words "incarcerated for any reason” in section 70.04 (1) (b) (v) a literal interpretation. They argue that incarceration for any reason at all other than for an unconstitutional conviction tolls the limitation period — even where, as here, the defendant has been imprisoned by the State under an invalid conviction and the State’s own agent moves to dismiss the indictment conceding that there is not enough proof of defendant’s commission of the crime to warrant a new trial. We disagree and, for reasons which follow, affirm the order of the Appellate Division.

I

On June 3, 1987, defendant pleaded guilty to two counts of first degree robbery conditioned upon his right to challenge at sentencing his alleged status as a second violent felony offender. At the time of sentencing, the People offered as the predicate for defendant’s second violent felony offender status his December 28, 1972 conviction for robbery in the second degree. The People claimed that although more than 10 years had elapsed between the imposition of sentence for the 1972 conviction and the commission of the current felonies, the period of limitation was tolled pursuant to the provisions of section 70.04 (1) (b) (v) by reason of defendant’s incarceration from April 1, 1977 to March 13, 1979 and from September 10, 1979 to November 17, 1982. Defendant maintained that the period from September 10, 1979 to November 17, 1982 could not be effective to extend the 10-year period because that incarceration was pursuant to a prosecution under an indictment that was dismissed after the conviction had been vacated by the court under CPL 440.10 (1) (g). Because without the tolling of this period of incarceration the 1972 conviction would be beyond the 10-year period, defendant argued that he cannot be sentenced as a second violent felony offender. Supreme Court disagreed and sentenced defendant to concurrent indeterminate terms of imprisonment of 9 to 18 years.

The critical period of incarceration from September 10, 1979 to November 17, 1982 stems from the prosecution and conviction in 1980 of defendant for the allegedly forcible rape and sodomy of a female student at Cornell University where defendant was also enrolled. The incident occurred on August 18, 1979 in a graduate dorm in the room of the complaining witness, a casual acquaintance of defendant. The trial turned entirely on the credibility of defendant and complainant on the issue of consent. The jury accepted the complainant’s evidence and defendant was convicted. The Appellate Division affirmed (People v Dozier, 85 AD2d 846), with one Justice dissenting, who maintained that the proof was insufficient to establish defendant’s guilt beyond a reasonable doubt and that the verdict was against the weight of the credible evidence (see, dissenting opn of Main, J., id., at 846-847).

The crucial evidence which ultimately led to the vacatur of defendant’s 1980 rape and sodomy convictions came to light following the arrest of the complaining witness in July 1982 in New York City on arson charges. In connection with her defense on these charges, the complaining witness’s lawyer made available to the Manhattan District Attorney’s office the records of complainant’s extensive and continuing history of emotional disturbances and psychiatric counseling dating from 1972.

The Manhattan District Attorney’s office sent the records to the District Attorney of Tompkins County where defendant had been tried and convicted on the basis of complainant’s testimony. The records contain reports of complainant’s interviews with a social worker, a psychiatrist and a psychiatric social worker, demonstrating that "the complainant suffered from psychological disorders which would have had serious impact on the veracity of her allegations against defendant” (People v Dozier, 163 AD2d 220, 221) and that "the complainant was confused about her sexual identity, had distorted perceptions of her encounters with men and had a pattern of perceiving herself as a victim.” (Id., at 221-222.) In particular, the records detailed complainant’s sexual intimacy with another woman and "revealed that the complainant had extreme behavioral reactions to rejection and would attempt to avenge or reverse the other person’s rejection of her.” (Id., at 222.)

Based on this theretofore unknown information, defendant moved for vacatur of his conviction on the grounds of newly discovered evidence under CPL 440.10 (1) (g). Tompkins County Judge Friedlander — before whom defendant had been tried and convicted in 1980 — ordered a full scale hearing on the motion at which the therapists who had treated the complainant and other witnesses were called to testify.

In light of the newly revealed psychiatric and other evidence, the Trial Judge vacated defendant’s conviction and ordered a new trial, concluding that the evidence was of such a nature as to have probably changed the 1980 verdict. The Judge believed that the revelations about complainant’s sexual relationship would raise an inference that complainant may have instigated the encounter with defendant in order to instill jealousy in her lover who had recently spurned her. Judge Friedlander also observed that complainant’s "history of serious psychiatric and perceptual disorders * * * challenges her motives, her credibility, her perceptions, and perhaps even her competence as a witness” and that the records "establish a direct discrepancy between material trial testimany and pretrial accounts which may have amounted to perjury”.

Following the vacatur of defendant’s conviction, the Tompkins County District Attorney made a written motion to dismiss the indictment. In his application, the District Attorney alluded to the newly adduced evidence concerning the complaining witness’s psychiatric problems as well as to critical evidence at the 1980 trial, summarized in Justice Main’s dissent at the Appellate Division (People v Dozier, 85 AD2d, at 846-847, supra), leading to the conclusion that complainant’s sexual encounter with defendant had been entirely consensual. The District Attorney concluded his application with this:

"It is my opinion that the People would not be able to prove beyond a reasonable doubt that Robert Dozier raped and sodomized [the complainant] on August 19, 1979, under all of the facts now presented to the court. I will not retry Mr. Dozier.”

Judge Friedlander dismissed the indictment "in the interests of justice”. This resulted in defendant’s release from Attica Correctional Facility on November 17, 1982 after three years and 68 days of incarceration on the vacated conviction.

II

Notwithstanding the vacatur of defendant’s 1980 conviction and the dismissal of the indictment on motion of the District Attorney, the People maintain that the three years and 68 days during which defendant was confined in Attica on the invalid 1980 conviction should be used to extend the 10-year limitation so as to make him subject to an enhanced sentence as a second violent felony offender based on the 1972 conviction. Their argument comes to this. Section 70.04 (1) (b) (v), they emphasize, provides for tolling of the 10-year limitation for "any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony”. (Emphasis added.) Reading this language literally, they contend that the tolling effect of subdivision (1) (b) (v) applies even when a defendant has been illegally incarcerated on an invalid and ultimately vacated conviction; such a conviction, they insist, would certainly be the reason for, or at least, the immediate cause of defendant’s illegal incarceration. It, thus, satisfies the statutory test of "incarceration for any reason”. Citing our decision in People v Love (71 NY2d 711), they argue that there is only one circumstance when section 70.04 (1) (b) (v) is not to be given this stringent application. They read People v Love (supra) as flatly ruling out any exception to the tolling provision of subdivision (1) (b) (v) save incarceration pursuant to a conviction which has been unconstitutionally obtained. Because defendant’s 1980 conviction, although concededly invalid, was not held to be unconstitutional and vacated for that precise reason, the argument goes, his confinement in Attica on the invalid conviction must be used to extend the 10-year limitation.

Defendant’s argument is twofold: first, that his conviction was unconstitutional and second, that, in any event, the Legislature could never have intended that section 70.04 (1) (b) (v) be given the harsh interpretation that the People urge; that nothing in the statute or in People v Love (supra) suggests that result. In support of the argument that his conviction and incarceration were unconstitutional defendant cites several Federal decisions (see, e.g., Jackson v Virginia, 443 US 307, 316 ["an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense”]; Townsend v Burke, 334 US 736 [uncounseled defendant who was sentenced on the basis of assumptions concerning his criminal record which were materially untrue, whether caused by carelessness or design, is deprived of due process of law]; Sanders v Sullivan, 863 F2d 218, 224 [2d Cir 1988], citing Durley v Mayo, 351 US 277 [a State’s failure to act to cure a conviction founded on a credible recantation by an important and principal witness exhibits sufficient State action to constitute a due process violation]).

We need not pass on the merit of defendant’s constitutional arguments, however, because we hold that section 70.04 (1) (b) (v) should not be given the strict reading that the People propose. In People v Love (71 NY2d 711, supra), in construing Penal Law § 70.06 (1) (b) (v) together with CPL 400.21 (7) (b), the Court decided that incarceration on a conviction that had been unconstitutionally obtained should not be used to extend the 10-year limitation. In so holding, the Court stated that "when the statute says that incarceration 'for any reason’ extends the limitations period, it contemplates at least that the defendant has not been imprisoned without reason or unconstitutionally.” (Id., at 716 [emphasis added].) The Court noted that the legislative history did "not indicate a contrary intent as the People suggested]” (id., at 716). Contrary to the People’s argument, we believe that our holding in People v Love (supra) compels a similar application of the tolling provision here, since, at the very least, defendant has been "imprisoned without reason” (id., at 716 [emphasis added]).

If the People’s argument limiting the holding in Love to situations where a conviction has been held to be unconstitutional is credited, it must follow that the Legislature intended that the application of section 70.04 (1) (b) (v) to extend the 10-year period for an unjustified incarceration should depend on the difficult and sometimes blurred differences between a conviction that is invalid but not unconstitutional and one that is invalid and constitutional. Suffice it to say that nothing in the statute, in the legislative history or in People v Love lends support for the notion that the Legislature contemplated that the heavy consequences of treating a defendant as a second violent felony offender should turn on such jurisprudential niceties. Moreover, as defendant properly points out, the People’s position that the tolling must apply for every incarceration except for those pursuant to unconstitutional convictions can produce results that are bizarre, to say the least. The incarceration of a defendant on a conviction which has been vacated because new evidence has conclusively established. his innocence of the crime will, nevertheless, serve to toll the 10-year limitation so as to make him subject to enhanced sentencing as a second violent felony offender. On the other hand, a period of incarceration of a guilty defendant whose conviction has been reversed for a constitutional reason having nothing to do with his actual guilt of the crime will not be effective as a toll under section 70.04 (1) (b) (v); such an earlier conviction beyond the 10-year limitation could not be used to make that defendant a second violent felony offender.

On any analysis, the State’s position here appears, at best, incongruous. To someone like defendant who is being subjected to enhanced punishment because of the tolling for a period of a patently unjustified imprisonment, the State’s position must appear as the ultimate irony. The prior conviction on which he was incarcerated was vacated. The prosecution conceded that it could not establish his guilt. It is virtually certain that if the newly discovered evidence had been available earlier, the prosecution would never have been commenced. If it had not been, defendant would be sentenced as a first felony offender. Yet, because of what is now known to have been an unwarranted prosecution and the invalid sentence and incarceration which it produced, defendant, the State insists, must be sentenced as a second violent felony offender. The State’s explanation? The statute says "incarcerat[ion] for any reason” and the defendant was incarcerated for a reason — the invalid conviction which the State obtained.

We reject this position as being plainly unreasonable. We do not believe the Legislature intended section 70.04 (1) (b) (v) to be employed to permit the State to extend the 10-year limitation on prior violent felonies for an unjustified period of incarceration resulting from a flawed conviction under an indictment which was ultimately dismissed. (Accord, People v Beard, 143 AD2d 101; see generally, McKinney’s Cons Laws of NY, Book 1, Statutes §§ 141, 143, 145, 146, 148 [to the effect that statutes should be construed to avoid results which are absurd, unreasonable or mischievous or produce consequences that work a hardship or an injustice].)

The order of the Appellate Division should be affirmed.

Bellacosa, J.

(concurring). Incarcerations based on convictions which are nullified because of Federal constitutional violations may not be used to toll or extend the 10-year limitation period for enhancement of sentence purposes under the holding of People v Love (71 NY2d 711). The Love principle should be extended and applied to this case, where the net effect of and reasons for the judicial and prosecutorial decisions to vacate the predicate conviction at issue, to dismiss the indictment, and not to reprosecute are restoration of the accused to the protected sanctuary of a person presumed innocent for all time as to that accusation. I am unable to join the majority opinion because it extends the rationale of Love far more than necessary to decide this case. Indeed, the rationale of this case seems to swallow the narrow exception of Love and virtually eliminates the phrase "for any reason” from the statute.

Defendant’s predicate conviction was more than 10 years old and therefore unavailable for sentence enhancement in the matter now before us unless the 10-year period is extended by a period of incarceration. The conviction for which defendant was incarcerated was reversed for newly discovered evidence of such a fundamental nature that it ultimately prompted the District Attorney to withdraw the charges and to decline to prosecute the accused at all. The People nevertheless seek to salvage the incarceration upon which the conviction was based for predicate sentencing purposes by application of the tolling clause of Penal Law § 70.04 (1) (b) (v), thus adding new insult to the old injury. The defendant, restored to the status quo ante of a presumed innocent person, should not suffer the enhanced sentence at issue by imputation of a period of incarceration rendered a nunc pro tune nullity because the prosecution that led to it was ultimately demonstrated to be totally unwarranted in the first instance. For if the People cannot use an incarceration period premised on a conviction that was flawed under the Federal Constitution, they surely cannot use an incarceration of a person who has been restored to the status of presumed innocent for all time as to the accusation which produced that incarceration.

The Legislature’s breadthless phrase "for any reason” in Penal Law § 70.04 (1) (b) (v) has already been qualified, in effect, by our construction in Love (71 NY2d 711, supra). That clause, read and understood in the context of Love, must likewise be restricted here because the Legislature did not apparently intend, or could not reasonably be deemed to have intended, to allow a tolling in circumstances as are presented in this case. Otherwise, the People’s position in this case, if sustained, would produce an absurd result.

Accordingly, on the narrowest possible factual and statutory construction grounds coupled with the inexorable analysis and application of People v Love (supra), I concur separately and vote to affirm the order of the Appellate Division.

Chief Judge Wachtler

(dissenting). I would reverse the order of the Appellate Division and reinstate the sentence imposed by the trial court.

Defendant is a recidivist robber who claims he should not have been sentenced as a recidivist. The question is whether he is entitled to a statutory dispensation because of the amount of time that elapsed between the prior conviction and the present one.

The Penal Law generally and logically provides that a repeat offender should receive a greater sentence than a first offender (see generally, Penal Law §§ 70.04, 70.06, 70.08, 70.10). An exception is granted in cases where the prior conviction occurred more than 10 years ago and the defendant has not been incarcerated in the interim (Penal Law § 70.04 [1] [b] [iv]). If the defendant has been incarcerated "for any reason,” that period must be excluded from the calculation (Penal Law § 70.04 [1] [b] [v]). Here the defendant was convicted of robbery in 1972 and again in 1987. The prior conviction was for robbery in the second degree, and the present conviction is for two counts of robbery in the first degree. Although more than 10 years have elapsed between the first robbery conviction and the latter ones, defendant was incarcerated on a rape conviction during this time. When this period of incarceration is excluded from the calculation, the present robbery convictions occurred less than 10 years after the first one and the defendant is entitled to no dispensation from the statute authorizing the court to impose enhanced punishment on recidivists.

Defendant contends that he is entitled to credit for the time he spent in prison because the rape conviction was later set aside based on newly discovered evidence and the prosecutor decided not to reprosecute. He relies on People v Love (71 NY2d 711), in which we held that a period of incarceration based on a conviction obtained in violation of a defendant’s Federal constitutional rights cannot serve to toll the running of the 10-year period. That decision, however, was based on a separate statute which expressly provided that a conviction obtained in violation of a defendant’s rights under the Federal Constitution cannot be used to enhance a subsequent sentence (see, CPL 400.21 [7] [b]). That statute has no application here because defendant’s rape conviction was not set aside for a Federal constitutional violation, and there is no other provision of law which requires or permits the court to reduce his sentence by treating him as a first offender.

The majority’s contrary conclusion, that the trial court lacked the power to sentence the defendant as a recidivist, is based largely on a broad construction of certain language taken out of context from the Love decision. But in construing statutes, it is the statutory language which remains controlling. Here, the statute clearly provides that a prior conviction serves to enhance a subsequent sentence unless the defendant has spent 10 years or more as a law-abiding citizen outside of prison.

The Legislature could have broadly provided that a defendant’s ability to comply with the law should also take into account his conduct in prison whenever the underlying conviction has been set aside and the charge dismissed. But it chose instead to adopt a more limited dispensation applicable to convictions set aside for violations of the defendant’s Federal constitutional rights, and only adopted this exception in response to Supreme Court decisions (see, People v Love, supra, at 715, citing Burgett v Texas, 389 US 109; United States v Tucker, 404 US 443).

This modest exception cannot be construed in such a way as to apply to all convictions set aside for any reason, and to construe other statutory terms as creating such an all-encompassing exception renders the narrow exception a nullity. There would be no need for the Legislature to enact a specific, limited exception for convictions set aside on Federal constitutional grounds if it had provided elsewhere for a broad exception encompassing all periods of incarceration based on convictions set aside for State constitutional violations, newly discovered evidence or any other cause.

The Court apparently finds it difficult to believe that the Legislature actually intended to do what it "literally” did— create a single exception to the general rule excluding periods of incarceration from the 10-year calculation — because that might produce harsh results in cases where an innocent person was erroneously convicted and imprisoned. That, however, overstates the facts of this case. Here the defendant had intercourse with a woman suffering from mental illness which cast doubt on her credibility. But a woman suffering from such a disability may, in fact, be a rape victim. The prosecutor’s decision to drop this charge once her condition came to light simply reflects the fact that in such cases it is often impossible to convince a jury of the defendant’s guilt beyond a reasonable doubt.

It bears emphasis, furthermore, that the enhanced sentence sought to be imposed here is predicated on defendant’s prior robbery conviction, not on the rape conviction. The only relevance of the rape conviction is in determining whether the concededly valid robbery conviction is outdated under the recidivist sentencing criteria.

In any event, if the statute is capable of producing harsh results, the Court’s role is limited to calling the matter to the Legislature’s attention; it may not assume the legislative role and rewrite the statute to satisfy its own sense of justice (Pajak v Pajak, 56 NY2d 394, 397-398). This is a principle of ancient lineage which this Court has consistently applied in all types of cases (see generally, McKinney’s Cons Laws of NY, Book 1, Statutes § 73, and cases cited). In this case, nevertheless, the Court finds this principle intolerable and resorts instead to a liberal reading and generous rewriting of the statute to avoid the "harsh” result of sentencing the defendant as a recidivist, as the statute literally requires.

Judges Kaye, Alexander and Titone concur with Judge Hancock, Jr.; Judge Bellacosa concurs in result in a separate opinion; Chief Judge Wachtler dissents and votes to reverse in another opinion in which Judge Simons concurs.

Order affirmed.

      . The sentence enhancement from a defendant’s status as a second violent felony offender involves both the maximum and minimum of the particular mandatory indeterminate sentence prescribed by the Penal Law. For example, the permitted range of the maximum term for a B felony first offender is from 6 to 25 years (Penal Law § 70.02 [3]); for a second violent felony offender the permitted maximum sentence must be from 12 to 25 years (Penal Law § 70.04 [3]). The mandatory minimum term for a first time violent felony offender is one third of the maximum sentence imposed (§ 70.02 [4]). The mandatory minimum term for a second violent felony offender is one half of the maximum (§ 70.04 [4]).

      . Section 70.04 (1) (b) (v) reads: "In calculating the ten year period under subparagraph (iv), any period of time during which the person was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony shall be excluded and such ten year period shall be extended by a period or periods equal to the time served under such incarceration.” (Emphasis added.)

      . Judge Friedlander’s lengthy decision contains detailed summaries of the testimony of three therapists, including the social worker’s conclusion that the complainant "reacted with rage when she felt she had been rejected by a female lover” and that she made "efforts to regain their intimacy by * * * deliberate seduction of her male rival.”

      . After his release defendant brought a civil action in the Court of Claims for damages based on his unjust imprisonment. The trial court dismissed the action but the Appellate Division reinstated the claim. In so doing, the appellate court made this comment concerning the evidence adduced before Judge Friedlander in the CPL 440.10 hearing:
      "The psychiatric evidence on its face supports the inference that the complainant pathologically lied about the nature of her encounter with claimant and admitted as much to her therapists. Thus, claimant has submitted facts going well beyond a general attack on the complainant’s credibility.” (Dozier v State of New York, 134 AD2d 759, 761.)

      . The dissent, curiously, chooses to ignore these arguments raised by defendant. Under its view that only unconstitutional convictions may be avoided by the section 70.04 (1) (b) (v) toll, it appears it must reach and reject defendant’s constitutional arguments (see, CPL 400.21 [7] [b]) in order to find the time to be excludable.

      . Penal Law § 70.06 (1) (b) (v) which deals with second felony offenders contains language that is identical to Penal Law § 70.04 (1) (b) (v) which deals with second violent felony offenders.

       Notwithstanding the majority’s repeated characterization of defendant’s rape conviction as "invalid,” there is no indication in the record of any constitutional violation, defendant did not claim a constitutional violation when he sought vacatur of the conviction, and the vacatur was based on newly discovered evidence (CPL 440.10 [1] [g]), not upon constitutional grounds (see, CPL 440.10 [1] [d], [h]).


source: Caselaw Access Project

author: Chief Judge Wachtler. Kaye, J.

license: Public Domain

text:
    Diane Nykorchuck et al., Appellants, v Edgar Henriques et al., Respondents.
    Argued May 30, 1991;
    decided July 9, 1991

      POINTS OF COUNSEL

      W. Farley Jones and E. Stewart Jones for appellants.
    I. Under the circumstances of this case, a continuous course of omissions may serve as a basis for the application of the continuous treatment doctrine. (Massie v Crawford, 160 AD2d 447, 76 NY2d 851; Borgia v City of New York, 12 NY2d 151; McDermott v Torre, 56 NY2d 399; Werner v Kwee, 148 AD2d 701; Kearney v GVGHA, 125 Misc 2d 716; Richardson v Orentreich, 64 NY2d 896; Greene v Greene, 56 NY2d 86; Coyne v Bersani, 61 NY2d 939; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Shumway v DeLaus, 152 AD2d 951.) II. Plaintiffs breast lump was related to other conditions such that treatment of the other conditions tolls the statute as to the treatment of the breast lump. (Borgia v City of New York, 12 NY2d 151; McDermott v Torre, 56 NY2d 399; Fonda v Paulsen, 46 AD2d 540; Bikowicz v Nedco Pharmacy, 114 AD2d 708; Fish v Ardan, 130 Misc 2d 596; Rizk v Cohen, 73 NY2d 98; Lomber v Farrow, 91 AD2d 725.)

      Christine Kirwin Krackeler for respondents.
    I. The court below properly found that the undisputed facts of this case entitle defendants to summary judgment. (Werner v Kwee, 148 AD2d 701; Massie v Crawford, 160 AD2d 447; Rizk v Cohen, 73 NY2d 98.) II. Treatment of plaintiff by defendants for endometriosis and infertility may not be applied to effectively extend the Statute of Limitations with respect to defendants' alleged failure to monitor plaintiff’s breast condition. (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427; Duffy v Horton Mem. Hosp., 66 NY2d 473; Borgia v City of New York, 12 NY2d 151; Rizk v Cohen, 73 NY2d 98; McDermott v Torre, 56 NY2d 399; Charalambakis v City of New York, 46 NY2d 785; Fish v Ardan, 130 Misc 2d 596; Ciciless v Lane, 129 AD2d 759; Richardson v Orentreich, 64 NY2d 896; Edmonds v Getchonis, 150 AD2d 879.) III. Failure to diagnose or monitor a condition does not constitute continuous treatment as that theory and CPLR 214-a have been construed by New York courts for Statute of Limitations purposes. (McDermott v Torre, 56 NY2d 399; Delaney v Muscillo, 138 AD2d 258; Davis v City of New York, 38 NY2d 257; Grellet v City of New York, 118 AD2d 141.)
   OPINION OF THE COURT

Chief Judge Wachtler.

This action for medical malpractice arises out of the defendant doctor’s alleged failure to properly diagnose and monitor a lump in plaintiff’s right breast. Plaintiff was ultimately diagnosed as having breast cancer, which required surgery and chemotherapy.

The question presented on the appeal is whether this suit, which was commenced more than eight years after the lump was first brought to defendant’s attention and more than four years after plaintiff’s last appointment with defendant in connection with another medical condition, is barred by the 21/i-year Statute of Limitations for medical malpractice (see, CPLR 214-a). In opposition to defendants’ motion to dismiss the complaint as time barred, plaintiff claimed the benefit of the "continuous treatment doctrine,” which, when applicable, tolls the running of the Statute of Limitations until the end of the course of treatment for the particular medical condition (see, id.; McDermott v Torre, 56 NY2d 399; Borgia v City of New York, 12 NY2d 151).

Supreme Court denied the motions to dismiss, perceiving questions of fact as to whether the continuous treatment doctrine was applicable. The Appellate Division held, however, that the doctrine was inapplicable because plaintiff’s allegations did not establish that defendant doctor had undertaken any treatment for plaintiff’s breast condition (153 AD2d 316).

We agree with the Appellate Division that the continuous treatment doctrine is inapplicable to the facts of this case as alleged by plaintiff and that, accordingly, the action is time barred.

Plaintiff first began seeing Dr. Henriques in 1974 for infertility problems, which were determined to be secondary to endometriosis. The doctor treated plaintiff for that condition over a period of years, culminating in surgery in April 1982. During an office visit in July 1979, plaintiff brought to the doctor’s attention a lump in her right breast. After examining the breast, he allegedly told plaintiff that the lump was attributable to noncancerous fibrocystic disease and that "we will have to keep an eye on it.” In addition, lumps in both breasts were noted during an examination of plaintiff conducted by an unspecified person upon plaintiff’s admission to the hospital for the April 1982 surgery. No further evaluation was performed at that time.

After the surgery, plaintiff saw the doctor three times, the last time in September 1983, for postoperative care and adjustment of estrogen replacement medication. The doctor phoned in renewals of plaintiff’s prescriptions in 1984 and in June 1985. In December 1985, plaintiff scheduled an appointment with the doctor because she had detected enlargement of the mass in her right breast. The doctor examined defendant in January 1986 and immediately referred her to an oncologist, who diagnosed breast cancer. This action was commenced in December 1987.

A medical malpractice claim generally accrues on the date of the alleged wrongful act or omission and is governed by a 214-year Statute of Limitations (Davis v City of New York, 38 NY2d 257, 259; CPLR 214-a). Under the continuous treatment doctrine exception, however, the 214-year period does not begin to run until the end of the course of treatment " 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (McDermott v Torre, supra, at 405, quoting Borgia v City of New York, supra, at 155). The purpose of the doctrine is to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure” (McDermott v Torre, supra, at 408). The doctrine rests on the premise that it is in the patient’s best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because "the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so.” (Id.)

Thus, essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit. We have held that neither the mere "continuing relation between physician and patient” nor "the continuing nature of a diagnosis” is sufficient to satisfy the requirements of the doctrine (id,., at 405, 406). In the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify the patient’s delay in bringing suit.

Here, plaintiff has failed to allege facts which would support a finding that a course of treatment was established in connection with her breast condition. The only course of treatment alleged was related to a separate medical condition, endometriosis. Under the relevant statute and case law, this is not sufficient. CPLR 214-a explicitly requires that, for the toll to apply, the continuous treatment must be "for the same illness, injury or condition which gave rise to the * * * act, omission or failure” complained of (see also, McDermott v Torre, supra, at 405; Borgia v City of New York, supra, at 155 [the course of treatment must be "related to the same original condition or complaint”]). No connection between plaintiff’s breast condition and the course of treatment for endometriosis has been alleged.

Nor do the isolated breast examinations, only one of which is alleged to have been performed by defendant doctor during the relevant period, establish a course of continuous treatment with respect to plaintiff’s breast condition (see, Davis v City of New York, 38 NY2d 257, supra). In Davis, we held that two diagnostic examinations, conducted a year apart, were "discrete and complete” and did not constitute continuous treatment (38 NY2d, at 260). The examinations in this case were equally "discrete and complete” and were separated by an even greater period of time.

A holding that the continuous treatment doctrine is applicable to these facts would fundamentally extend and alter the doctrine. The gravamen of plaintiff’s claim is not that the doctor performed certain negligent acts or omissions during a course of treatment for her breast condition, but rather that the doctor was negligent in failing to establish a course of treatment at all. While the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.

For these reasons, we conclude that the continuous treatment doctrine is inapplicable and that the action is time barred.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Kaye, J.

(dissenting). In my view, plaintiff has made a sufficient factual showing of continuous treatment by her gynecologist — who treated her throughout more than 12 years —to avoid dismissal of her complaint as a matter of law on Statute of Limitations grounds. I would reverse the Appellate Division order and reinstate Supreme Court’s holding that there is an issue of fact as to defendant doctor’s continuous treatment of the plaintiff.

Plaintiff first consulted defendant in September 1974. When, during plaintiff’s regularly scheduled visit in July 1979, defendant diagnosed fibrocystic disease in plaintiff’s right breast, he told her that "we will have to keep an eye on it.”

Defendant saw plaintiff regularly over the next several years, including consultation for a "bump” near her left breast and a hysterectomy which he performed in April 1982; examination at that time revealed a cyst on her right breast and masses in each breast. After defendant performed the hysterectomy, he prescribed hormone replacements, including estrogen, for plaintiff at least through June 1985, the date he last approved refills of her prescriptions. Then, in defendant’s own words, "On January 13, 1986, the plaintiff came to my office for a gynecological check-up. Upon examining the plaintiff, I detected a mass in her right breast. In accordance with proper medical practices, I immediately consulted with Dr. Frederick Lane, an oncologist surgeon at Albany Medical Center Hospital. Dr. Lane saw the plaintiff that same day and performed a biopsy which showed the right breast to be cancerous. Dr. Lane subsequently performed a mastectomy on the plaintiff.”

On these allegations, there is at least an issue of fact as to the timeliness of plaintiff’s suit commenced in December 1987, less than two years after the diagnosis of breast cancer and well within the Statute of Limitations.

Plaintiff has alleged that her gynecologist diagnosed a breast disease that he apparently felt at the time could be treated by close monitoring (unlike his later reference to an oncologist surgeon). According to plaintiff, defendant assured her that he would "keep an eye on [her disease],” thus "lulling [her] into a false sense of security by an apparent lack of concern about her breast mass.” Despite his awareness of breast lumps or masses in 1979, 1980 and 1982, he at no time recommended any further testing, evaluation or consultation during her periodic contacts with him. Clearly, these acts of alleged negligence, combined with wrongful omissions, may constitute a continuous course of treatment, separate and apart from any treatment for endometriosis (see, Borgia v City of New York, 12 NY2d 151, 155).

Indeed, the majority’s pivotal assumption throughout its writing that plaintiff was being treated by her gynecologist solely for the separate condition of endometriosis ignores the evidence of additional gynecological treatment — for example, defendant’s diagnosis of breast disease, his assertion that he would monitor the disease, the later consultation for a breast lump, and the hysterectomy (the hospital admission examination revealing "bilateral mobile masses in the upper quadrant of each breast”).

"[W]here the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress,” the requirements of the continuous treatment doctrine are satisfied (Richardson v Orentreich, 64 NY2d 896, 898). Plaintiff’s allegations of additional malpractice regarding the estrogen — failure to use caution in prescribing estrogen given her history and fibrocystic breast disease, and prescribing estrogen to plaintiff for more than a year without a baseline mammogram or physical examination — bring the last date of treatment well within the Statute of Limitations.

I agree wholeheartedly with the majority that one of the policy grounds underlying the continuous treatment doctrine is that a patient should not have to choose between continuing an ongoing course of treatment and bringing suit for malpractice — a policy fully applicable to the present case. The course of treatment continued over a period of years, during which time plaintiff claims she relied upon her physician to monitor her condition of fibrocystic breast disease and during which time she developed breast cancer. The continuous treatment doctrine, properly applied, should relieve plaintiff of the burden of challenging her doctor’s expertise during this time.

On this record, I would not deny the plaintiff her day in court.

Judges Simons, Alexander, Titone and Bellacosa concur with Chief Judge Wachtler; Judge Kaye dissents and votes to reverse in a separate opinion in which Judge Hancock, Jr., concurs.

Order affirmed, with costs.

       "Plaintiff” refers to plaintiff Diane Nykorchuck. The other plaintiff in this action is her husband, who sues for derivative damages.


author: Simons, J. Hancock, Jr., J.

text:
    The People of the State of New York, Respondent, v Louis Sweet, Appellant.
    Argued May 31, 1991;
    decided July 9, 1991

      POINTS OF COUNSEL

      Thomas F. Gleason and Mary Beth Hynes for appellant.
    The trial court committed reversible error by declining to hold that Ms. Graves was an accomplice as a matter of law, whose testimony required corroboration. (People v Hudson, 51 NY2d 233; People v Daniels, 37 NY2d 624; People v Jones, 44 NY2d 76; People v Seaberg, 74 NY2d 1; People v Goggins, 34 NY2d 163; Brady v Maryland, 373 US 83; Berger v United States, 295 US 78; People v Basch, 36 NY2d 154; People v Cona, 49 NY2d 26; B. R. DeWitt, Inc. v Hall, 19 NY2d 141.)

      Kevin M. Dillon, District Attorney (J. Michael Marion and John J. DeFranks of counsel), for respondent.
    I. The issue raised by defendant on appeal was not preserved for judicial review. (People v Lipton, 54 NY2d 340; People v Cobos, 57 NY2d 798; People v La Mieux, 51 NY2d 981.) II. The trial court properly instructed the jury to decide if the principal prosecution witness was an accomplice as a matter of fact. (People v Cobos, 57 NY2d 798; People v Francis, 38 NY2d 150; People v Clairborne, 29 NY2d 950; People v Berkowitz, 50 NY2d 333.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals a judgment convicting him of robbery in the second degree (Penal Law § 160.10) and criminal possession of a weapon in the third degree (Penal Law § 265.02). He asserts error in the court’s refusal to instruct the jury that the prosecution’s witness, Terri Jo Graves, was an accomplice as a matter of law and, therefore, that her testimony had to be corroborated. The issue is whether Graves, who previously pleaded guilty to aiding the defendant’s crime as a result of a favorable plea bargain, could create a question of fact as to her accomplice status at defendant’s trial by forswearing complicity. We agree with defendant that she may not and, therefore, reverse the order of the Appellate Division and remit the matter for a new trial.

The charges arise out of an early morning robbery of Horace Young, an acquaintance of Graves. Young told police he met Graves one evening at a local bar where she introduced him to defendant and requested that Young drive them home in his automobile. Graves got in the front passenger seat while defendant rode in the back seat. When the three arrived at defendant’s residence, defendant struck Young in the face with a bottle, robbed him of $200 and pushed him out of the car. He and Graves drove away in the victim’s automobile.

Young identified Graves to the police and they subsequently arrested her and charged her with robbery in the second degree. Based on Graves’ statements, the police arrested defendant but Young was unable to identify him as the robber. Thereafter, Graves waived immunity and testified against defendant before the Grand Jury. Following her Grand Jury testimony, she entered a plea of guilty to the misdemeanor of criminal facilitation in the fourth degree (Penal Law § 115.00) in full satisfaction of the charge of robbery, second degree. As she acknowledged at trial, her plea was the result of an agreement with the prosecution that she would be permitted to plead guilty to the misdemeanor in exchange for testifying against the defendant.

Graves repeated her testimony against defendant at trial. In response to extended questioning by the prosecutor, she claimed she had been an unknowing and unwilling participant in the robbery. She pleaded guilty to facilitation, she said, because she felt "responsible” for the crime. Notwithstanding this testimony, defendant urged that Graves be considered an accomplice as a matter of law because of her guilty plea and her agreement with the prosecution to testify against him in exchange for a reduction of her charges. The trial court ruled against defendant and submitted Graves’ accomplice status to the jury. The Appellate Division, applying the rule in People v Basch (36 NY2d 154), affirmed. It concluded that notwithstanding Graves’ plea to facilitation, her assertion of innocence at trial was sufficient to take the issue to the jury because her testimony allowed different inferences to be drawn about her complicity.

CPL 60.22 (2) provides that an accomplice is a witness who, according to evidence adduced at trial, "may reasonably be considered to have participated” in the offense charged or an offense based upon the same or some of the same facts or conduct which constitute the offense charged. Graves acknowledged, by her plea of guilty to facilitation, that she "believed it probable” that she was aiding defendant in the commission of the crime of robbery in the second degree (see, Penal Law § 115.00 [1]). She was, therefore, a witness who could reasonably be considered to have participated in an offense based on some of the same facts or conduct which constituted the offense of which defendant was charged. Nevertheless, the People claim that because she denied guilt at trial her accomplice status was for the jury under the rule in Basch.

In People v Basch (36 NY2d 154, 157, supra), we held that "[i]f the undisputed evidence establishes that a witness is an accomplice, the jury must be so instructed but, if different inferences may reasonably be drawn from the proof regarding complicity * * * the question should be left to the jury for its determination” (see also, People v Cobos, 57 NY2d 798, 801; People v Beaudet, 32 NY2d 371, 376). The holding was consistent with the general rule that where there exists a conflict in the evidence as to the truth of a witness’s testimony, the issue of credibility is for the trier of fact. Such was the case in People v Basch (supra) which involved a young man who allegedly had remained on a hill 100 yards away while his fellow snowmobilers burglarized a vacant Kiwanis clubhouse. At the time of trial the witness’ guilt or innocence was unresolved and the evidence that he knew the intentions of his companions or that he agreed to act as a lookout was conflicting. Recognizing that the testimony of the various witnesses not only conflicted but also was susceptible of various interpretations, we held that it was for the jury to resolve those conflicts, draw the appropriate inferences and determine defendant’s accomplice status after doing so (see, People v Basch, 36 NY2d 154, supra).

In the present case there is no conflict in the evidence of Graves’ activities the night of defendant’s crime. She and the victim, the only witnesses to the crime, agree that she introduced defendant to Young and requested Young to take them home; that she was in the car when the robbery occurred and that she drove away from the scene with defendant. The open question was her awareness of defendant’s intentions. She answered that by pleading guilty to helping defendant obtain a ride believing he intended to rob Young. That plea was unassailable. Nothing about it or the proceedings at which it was taken suggest that Graves was innocent or mistakenly pleaded guilty. Indeed, the People do not contend now that she was innocent or that she pleaded guilty for any reason except to obtain the benefit of a bargain for her testimony. On this state of the record there were no inferences to be drawn from incomplete or inconsistent trial evidence: the only conflict on Graves’ accomplice status was a conflict she created at trial by disavowing her prior plea. Thus, this case is factually distinguishable from People v Basch (36 NY2d 154, supra). Moreover, there are strong policy reasons why the Basch rule of conflicting inferences should not be applied in these circumstances.

First, the practice undermines the rule requiring corroboration. The law recognizes that accomplice testimony is inherently untrustworthy because those charged with a crime often seek to escape the consequences and curry favor with officials by implicating others (see, People v Hudson, 51 NY2d 233, 238; People v Cona, 49 NY2d 26, 35-36; see generally, 7 Wigmore, Evidence § 2057 [Chadbourn rev 1978]). Corroboration is required to "protect the defendant against the risk of a motivated fabrication” by insisting on proof "other than that alone which originates from a possibly * * * self-interested accomplice” (see, People v Hudson, supra, at 238). Often the motivation for accomplice testimony is a matter of surmise but there is no need to speculate here on whether Graves was attempting to curry favor with officials by her testimony. Both she and the prosecutor acknowledged the price of her assistance: she obtained a substantially reduced charge in exchange for a promise to implicate the defendant (see, People v Daniels, 37 NY2d 624, 629; People v Kress, 284 NY 452, 459).

There could be no stronger or more persuasive evidence of complicity than Graves’ unimpeached plea of guilt but the legal effect of it was vitiated by her testimony at trial. By simply disavowing the plea, an inherently unreliable witness was able to submit herself to the jury as a reliable witness, thus allowing the prosecutor to avoid the corroboration required to protect defendant’s conviction solely on evidence that could be fabricated.

Nor should the People be permitted to embrace both of Graves’ contradictory claims. It is familiar doctrine that a prosecutor serves a dual role as advocate and public officer charged with the duty not only to seek convictions but to see that justice is done (see, Brady v Maryland, 373 US 83, 87-88; People v Pelchat, 62 NY2d 97, 105-106). He must not only prosecute the guilty but also ensure that the innocent do not suffer (see, People v Jones, 44 NY2d 76, 80). In this case, the prosecutor in seeking the former appeared careless of the latter. Before trial, he sought Graves’ unequivocal admission of guilt but at trial he elicited a denial of guilt from her. Thus, in summation, he was required to explain to the jury the inconsistency between Graves’ plea and her trial testimony. He did so by suggesting that Graves was not really guilty (although he had charged her as a principal and she had been convicted as a facilitator); that she may have been coerced into committing the crime or acted out of fear of defendant (although she did not claim coercion); and, finally, that she was telling the truth at the trial and had pleaded guilty only out of a sense of moral responsibility for the harm done to Young, her former friend. Needless to say, such an argument, given the People’s prior position on Graves’ guilt, does substantial damage to the integrity of the criminal justice process and intensifies the common distrust of accomplice testimony by creating the perception that Graves, in exchange for her plea to a reduced charge, may have promised not only testimony against defendant but also to disavow her guilty plea at trial.

That is not to say that a witness’s guilty plea is always conclusive on the question of guilt in a criminal case involving another party. Our decision rests not on principles of collateral estoppel, as contended by the dissent, but rather on the policy reasons which underlie the corroboration requirement of the statute. The rule stated is limited to situations where a witness, who is an alleged accomplice under CPL 60.22, has given an unqualified plea to a lesser crime, supported by unchallenged evidence of guilt, in exchange for inculpatory testimony against a defendant. Having sought that result, the People may not thereafter assist the witness to disavow guilt thereby obtaining the benefit of a lesser quantum of proof of defendant’s guilt by avoiding the need for corroboration. Under such circumstances, the witness should be considered an accomplice as a matter of law and the prosecution should be required to come forward with corroborating testimony in accordance with CPL 60.22.

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Hancock, Jr., J.

(dissenting). I would affirm for the reasons stated in the opinion by Justice James H. Boomer at the Appellate Division (155 AD2d 61). The majority purports to rely on the policy considerations underlying the corroboration requirement. As I read the decision, however, its essential rationale is collateral estoppel — a doctrine that is itself based largely on policy considerations (see, Kaufman v Lilly & Co., 65 NY2d 449, 455; see also, Matter of Halyalkar v Board of Regents, 72 NY2d 261) and one which cannot apply here.

Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone and Bellacosa concur with Judge Simons; Judge Hancock, Jr., dissents and votes to affirm in a separate opinion.

Order reversed, etc.

       The superior court information charged that Terri Jo Graves "believing it probable that she was rendering aid to Louis Sweet to commit the crime of Robbery in the Second Degree by providing him with a ride with the victim, Horace Young, thus provided the said Louis Sweet with the means and opportunity for the commission of such crime and, in fact, aided the said Louis Sweet to commit a felony.”


author: Titone, J.

text:
    The People of the State of New York, Respondent, v John O’Rama, Appellant.
    Argued April 23, 1991;
    decided June 6, 1991

      POINTS OF COUNSEL

      Elaine Jackson Stack for appellant.
    I. The trial court’s refusal to show defense counsel and appellant a jury note deprived appellant of his State and Federal constitutional rights to be present at all phases of his trial and violated the statutory mandate of CPL 310.10. (United States v Ronder, 639 F2d 931; People v Mehmedi, 69 NY2d 759; People v Miller, 163 AD2d 491; People v Carballo, 158 AD2d 701; People v Mullen, 44 NY2d 1; People v Ahmed, 66 NY2d 307; People v Harris, 76 NY2d 810; People v Coons, 75 NY2d 796; Rogers v United States, 422 US 35; People v Ciaccio, 47 NY2d 431.) II. The trial court’s restriction of defense counsel’s cross-examination of police witnesses was unduly prejudicial. (People v Gonzalez, 131 AD2d 873; Davis v Alaska, 415 US 308; People v Bethune, 105 AD2d 262; People v Kennedy, 70 AD2d 181; People v Fogel, 97 AD2d 445; People v Memminger, 126 AD2d 752; People v Brinkworth, 112 AD2d 799, 66 NY2d 614; People v Allen, 67 AD2d 558, 50 NY2d 898; Alford v United States, 282 US 687.) III. Evidence of refusal should have been suppressed because the information given to appellant was erroneous. (People v Gursey, 22 NY2d 224; Matter of Gargano v New York State Dept. of Motor Vehicles, 118 AD2d 859, 68 NY2d 606; People v Boone, 71 AD2d 859.) IV. The trial court abused its discretion by improperly delivering supplemental instructions. (Allen v United States, 164 US 492; People v Ali, 65 AD2d 513, 47 NY2d 920; People v Rodriguez, 71 NY2d 214; People v Sheldon, 136 AD2d 761; People v Brooks, 152 AD2d 591; Matter of Plummer v Rothwax, 63 NY2d 243; People v Pagan, 45 NY2d 725; People v Ali, 47 NY2d 920; People v Robinson, 84 AD2d 732; People v Crimmins, 36 NY2d 230.)

      Denis Dillon, District Attorney (Lawrence J. Schwarz and Bruce E. Whitney of counsel), for respondent.
    I. Nisi prius properly admitted into evidence defendant’s refusal to submit to a breathalyzer test. (People v Tutt, 38 NY2d 1011; People v Charleston, 54 NY2d 622; People v De Mauro, 48 NY2d 892; People v Boudreau, 115 AD2d 652; Matter of Gargano v New York State Dept. of Motor Vehicles, 118 AD2d 859; People v Philbert, 110 Misc 2d 1042; People v Gursey, 22 NY2d 224; People v Shaw, 72 NY2d 1032; Matter of Du Pree v Foschio, 89 AD2d 800; People v Martin, 143 Misc 2d 341.) II. Nisi prius properly sustained objections to questions posed during cross-examination by defendant. (People v Fernandez, 72 NY2d 827; People v Dickman, 42 NY2d 294; United States v Blackwood, 456 F2d 526; Delaware v Van Arsdall, 475 US 673; People v Tice, 131 NY 651; People v Bethune, 105 AD2d 262; People v Allen, 50 NY2d 898.) III. Nisi prius’s supplemental instructions were correct; moreover, nisi prius did not violate any of defendant’s statutory or constitutional rights in failure to disclose fully the text of a jury note before or after responding to it. (Allen v United States, 164 US 492; People v Allen, 69 NY2d 915; People v Holzer, 52 NY2d 947; People v Gruttola, 43 NY2d 116; People v Vidal, 26 NY2d 249; People v Albanese, 19 NY2d 965; People v Pacheco, 156 AD2d 593; People v Torres, 133 AD2d 713; People v Brooks, 152 AD2d 591; People v Faber, 199 NY 256.)
   OPINION OF THE COURT

Titone, J.

Following a jury trial, defendant was convicted of driving while under the influence of alcohol as a felony (see, Vehicle and Traffic Law § 1192 [3]; § 1193 [1] [c]). His appeal requires us to decide the extent to which the specific contents of jurors’ notes must be disclosed to the defendant and defense counsel before a response is given. In the circumstances of this case, where the juror’s note was substantive and referred to difficulties the jury was having in reaching a verdict, we hold that the trial court committed reversible error when it failed to disclose the note’s contents before responding with an Allen charge.

The incident leading to defendant’s arrest began when the automobile defendant was driving hit another automobile that was traveling in the same direction. Defendant was arrested after the police officer who responded to the accident scene concluded from defendant’s behavior that he was intoxicated. At the police station, defendant refused to take a breathalyzer test, but consented to participate in a number of performance tests designed to measure the degree to which his motor skills, balance and reflexes had been impaired.

The People’s trial evidence consisted principally of the results of these performance tests, as well as the arresting officer’s testimony about defendant’s behavior at the accident scene and his postarrest refusal to take a breathalyzer test. The defense concentrated its efforts on impeaching the police officer’s expertise and challenging the reliability of his conclusions as to defendant’s sobriety. The defense also called a longtime acquaintance of defendant’s family to the witness stand and elicited the fact that defendant had suffered severe back and leg injuries in a prior automobile accident.

After approximately five hours of deliberations and a recharge on the meaning of "intoxication,” the jury sent out a note informing the Judge that it was "stalemated” and wished to know "how [to] proceed.” The court responded by sending the jury to dinner and to a hotel for the night. On the following day, the jury deliberated at length and made several requests for evidence and instruction, but was still unable to reach a verdict. On the third day of deliberations, the court received another deadlock note in which the foreman stated "I don’t see us ever reaching a unanimous verdict.” At that point, the court gave its first Allen charge (see, Allen v United States, 164 US 492).

Before the jury returned to resume deliberations, one of the jurors asked permission to speak to the Judge but was told to put his query in the form of a note. After receiving this juror’s note, the Judge brought the jury and counsel back into the courtroom and had the note marked as a court exhibit. The Judge declined to read the note aloud, however, because, in his view, reading it "would [not] serve any particular purpose * * * at this point.” Instead, the Judge summarized the "substance” of the note’s contents, stating that it "indicates that there are continued disagreements among the jurors.” After questioning five of the jurors and eliciting from four of them that a unanimous verdict was still possible, the Judge "implor[ed]” the jurors to try again and administered another Allen charge. When the jury was ushered out of the courtroom, the Judge elaborated upon his reasons for withholding the precise contents of the individual juror’s note, stating that he did not read it because "it indicate[d w]hat the present posture is as far as votes”. Defense counsel then unsuccessfully sought disclosure of the note’s contents.

The jury deliberated for the remainder of the afternoon, returning to the courtroom for one more testimonial readback. At 5:08 p.m., the jury brought in its guilty verdict. Defendant was subsequently sentenced to a one-to-three-year term of imprisonment. He now appeals, by permission of a Judge of this Court, from an order of the Appellate Division, Second Department, which affirmed the judgment of conviction. The primary issue he raises on this appeal is whether the trial court’s actions in relation to the individual juror’s note constitute reversible error.

We begin our analysis of this issue with CPL 310.30, which provides that a deliberating jury may request additional information or instruction "with respect to any * * * matter pertinent to [its] consideration of the case.” The statute further provides that "[u]pan such a request, the court must direct that the jury be returned to the courtroom and, after notice to both the people and counsel for the defendant * * * must give such requested information or instruction as the court deems proper” (emphasis supplied). CPL 310.30 thus imposes two separate duties on the court following a substantive juror inquiry: the duty to notify counsel and the duty to respond. It has been held that the latter duty requires the court to give a response that is "meaningful” (see, e.g., People v Malloy, 55 NY2d 296, 301; People v Gonzalez, 293 NY 259, 262). We have not, however, previously addressed the separate, albeit related, question raised in this appeal — i.e., the scope of the court’s CPL 310.30 duty to provide counsel with "notice.”

The People have asked us to hold that the notice provision of the statute requires only that the court inform counsel of the existence of a juror inquiry and, perhaps, convey the inquiry’s basic substance. Thus, the People argue, the court’s obligation was satisfied here because counsel knew that a note had been sent out of the jury room and was advised that, in substance, it concerned the jurors’ "continuing] disagreements”. We cannot agree, however, that the statutory mandate should be read so narrowly.

The requirement that "notice” be given to counsel is not a mere formality or a procedural device designed only to ensure counsel’s presence in the courtroom when the court gives its response to the jurors’ request for information or instruction (see generally, People v Ramsey, 40 AD2d 837, 838; People v Merrill, 286 App Div 307). While that is undoubtedly one of the statute’s purposes, an equally important purpose is to ensure that counsel has the opportunity to be heard before the response is given (see, Rogers v United States, 422 US 35, 39; United States v Ronder, 639 F2d 931, 934; United States v Robinson, 560 F2d 507, 516 [en banc], cert denied 435 US 905). Such an opportunity is essential to counsel’s ability to represent the client’s best interests and, further, to ensure the protection of the client’s constitutional and statutory rights at these critical postsubmission proceedings (see, People v Ciaccio, 47 NY2d 431, 436 [supplemental instructions, which are given in direct response to the jurors’ own questions, "may well be determinative of the outcome”]). Thus, just as CPL 310.30’s requirement that juror inquiries be answered mandates a "meaningful” response (see, People v Malloy, supra, at 301), so too does that statute’s "notice” requirement mandate notice that is meaningful.

We conclude that "meaningful” notice in this context means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given. Indeed, the precise language and tone of the juror note may be critical to counsel’s analysis of the situation in the jury room and ability to frame intelligent suggestions for the fairest and least prejudicial response. Concomitantly, the Trial Judge’s summary of the "substance” of an inquiry cannot serve as a fair substitute for defense counsel’s own perusal of the communication, since it is defense counsel who is best equipped and most motivated to evaluate the inquiry and the proper responses in light of the defendant’s interests (cf., People v Jones, 70 NY2d 547, 550; People v Perez, 65 NY2d 154, 158).

We further hold that, in most cases, this requirement of meaningful notice is best served by following the procedure that was outlined in United States v Ronder (639 F2d 931, 934, supra; accord, People v Miller, 163 AD2d 491). Under this procedure, jurors’ inquiries must generally be submitted in writing, since, as the trial court in this case recognized, written communications are the surest method for affording the court and counsel an adequate opportunity to confer. Further, whenever a substantive written jury communication is received by the Judge, it should be marked as a court exhibit and, before the jury is recalled to the courtroom, read into the record in the presence of counsel. Such a step would ensure a clear and complete record, thereby facilitating adequate and fair appellate review. After the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses. As the court noted in Ronder (supra, at 934), the trial court should ordinarily apprise counsel of the substance of the responsive instruction it intends to give so that counsel can seek whatever modifications are deemed appropriate before the jury is exposed to the potentially harmful information. Finally, when the jury is returned to the courtroom, the communication should be read in open court so that the individual jurors can correct any inaccuracies in the transcription of the inquiry and, in cases where the communication was sent by an individual juror, the rest of the jury panel can appreciate the purpose of the court’s response and the context in which it is being made (id.).

To be sure, there are special circumstances in which the foregoing procedures will need to be modified or tailored to ensure the integrity of the deliberative process. For example, there may be situations in which the contents of an individual juror’s note cannot be shared with the rest of the jury because its substance is too personal or would exacerbate existing tensions. In such cases, alternatives such as redaction, paraphrasing and in camera colloquy may be considered (see, United States v Ronder, supra, at 934). In the final analysis, the choice of methods to be used to address particular idiosyncratic situations is a matter to be entrusted to the sound discretion of the trial courts, since it is impossible to predict or prescribe for the myriad of problems that may arise during the course of a jury’s deliberations. The point of the Ronder decision and our own decision here is not to mandate adherence to a rigid set of procedures, but rather to delineate a set of guidelines calculated to maximize participation by counsel at a time when counsel’s input is most meaningful, i.e., before the court gives its formal response. Accordingly, where there exist unique articulable circumstances that make the foregoing steps impractical, modified procedures that are equally conducive to participation by defense counsel are permissible.

Viewed in light of these principles, the trial court’s actions in this case were clearly inadequate. While the court initially acted properly by directing the individual juror who expressed difficulty to put his concerns in writing, the court’s subsequent decision to withhold the contents of the juror’s note fell outside the acceptable bounds of its discretion. A court can neither serve the goal of maximizing counsel’s participation nor satisfy the CPL 310.30 requirement that meaningful notice be given when counsel is not afforded a verbatim account of a juror’s communication and is thereby deprived of an advance opportunity to suggest a response. Indeed, given the importance of counsel’s participation in this context (see, Rogers v United States, supra), it is difficult to imagine a situation in which a court would be justified in declining to show or read a juror’s note to counsel. Certainly, a concern such as that expressed by the trial court in this case, i.e., that the note’s contents might convey the status of the jury’s deliberations, cannot furnish an acceptable justification for the complete exclusion of the defendant’s attorney from the process of formulating a supplementary charge.

Having concluded that the trial court’s decision to withhold the contents of the juror’s note in this case constituted error, we turn now to the question of whether that error presents a ground for reversal. As a threshold matter, we note that the court’s error in failing to disclose the contents of the note had the effect of entirely preventing defense counsel from participating meaningfully in this critical stage of the trial and thus represented a significant departure from " ’the organization of the court or the mode of proceedings prescribed by law’ ” (People v Coons, 75 NY2d 796, 797, quoting People v Patterson, 39 NY2d 288, 295, affd 432 US 197; see, People v Mehmedi, 69 NY2d 759, 760; People v Ahmed, 66 NY2d 307, 310). Accordingly, the error presents a ’’question of law” within the meaning of CPL 470.05 (2), notwithstanding that defense counsel did not object to the court’s procedure until after the supplementary charge had been given.

Similarly, we reject the People’s argument that reversal is not required here because of the absence of specific prejudice (see generally, People v Agosto, 73 NY2d 963, 966; People v Lourido, 70 NY2d 428, 435; People v Miller, 6 NY2d 152, 156). Manifestly, defendant was prejudiced by the court’s actions, since the decision to withhold the contents of the juror’s note deprived him of the opportunity to have input, through counsel or otherwise, into the court’s response to an important, substantive juror inquiry. This case is thus distinguishable from People v Agosto (73 NY2d 963, supra), in which our Court found no prejudice, and therefore no cause for reversal, where a Trial Judge failed to respond to a juror inquiry, or even to notify defense counsel, before accepting the jury’s verdict. This Court held in Agosto that, in view of the Judge’s prior response pattern, his 20-minute delay in responding to the juror’s note, which requested early dismissal for Sabbath observance, could not have been construed by the jurors as a tacit denial of that request and therefore could not have operated, even subtly, to pressure the jury into a premature verdict. Since there was no supplementary instruction given in Agosto and the absence of a response was not itself capable of creating a "significant probability” of prejudice, the exclusion of counsel from the Judge’s decision-making process was also not prejudicial. The same certainly cannot be said where, as here, the trial court did respond to the juror’s inquiry with a substantive Allen instruction that was, unquestionably, intended to have an effect on the deliberative process. In this context, the court’s failure to notify counsel of the note’s contents, which resulted in a denial of the right to participate in the charging decision, was inherently prejudicial (cf., People v Jones, supra; People v Perez, supra).

Inasmuch as there must be a new trial because of the court’s error in handling the juror’s inquiry, we need not comment on most of defendant’s other claims of trial error. With respect to defendant’s complaint about the trial court’s denial of his pretrial motion to preclude evidence that he refused to take a breathalyzer test, we conclude that the ruling was not, as a matter of law, erroneous. The record supports the finding that defendant was afforded an adequate opportunity to consult with counsel (see, People v Gursey, 22 NY2d 224, 229) and was accurately apprised of the consequences of his refusal to submit to the test (see, Vehicle and Traffic Law § 1194 [2] [f]). When viewed in the context of defendant’s statement to police that his attorney could not be contacted for several hours, the police officer’s statement to him that his insistence on waiting for his attorney constituted a refusal was not misleading or inaccurate (see, People v Gursey, supra). Moreover, although the officer’s additional statement that defendant’s license would be revoked upon his refusal and would be restored only by order of a court was inaccurate (see, Vehicle and Traffic Law § 1194 [2] [d] [1]; 15 NYCRR 136.1 et seq. [license to be restored only at discretion of Commissioner of Motor Vehicles]), the erroneous information was not material for these purposes and, consequently, could not have had an influence on defendant’s decision to refuse. Thus, there was no impropriety in the use of defendant’s refusal to take a breathalyzer test as part of the People’s evidence-in-chief (cf., People v Boone, 71 AD2d 859).

Accordingly, for the reasons stated above, the order of the Appellate Division should be reversed and a new trial ordered.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Hancock, Jr., and Bellacosa concur.

Order reversed, etc.

      . Defendant indicated that he would not submit to a breathalyzer test without first speaking with his attorney. However, when he was offered an opportunity to telephone his attorney, defendant declined, stating that it was too late to get in touch with the attorney at that point.

      . The juror’s note was as follows:
      "Your honor,
      "I feel I am having problems and need more direction than you and or the court is giving me.
      "I have listened as a reasonable person and have a great deal of respect for the opinions of the people in the room.
      "I do however believe that there are people who are so set including myself who are looking at the same evidence in such opposite ways that it doesn’t seem that I am going to change my mind (either side).

        "Repeating (the evidence so many times just pushes people further apart.) Other aspects are coming into play * * * people’s attitudes and actions. I don’t feel I can honestly come up with a different decision than I have. I am not the only one on the jury who feels this way but may be the only one that has conviction enough to say so.
      "We are split down the middle HELP 6/6.” (Emphasis in original.)

      . Inasmuch as we rest our decision on the fact that defendant’s attorney was denied a meaningful opportunity to participate in this critical stage of the proceeding thereby depriving defendant of his fundamental right to be represented effectively by counsel, we need not consider defendant’s alternative argument that the court’s actions violated his own CPL 310.30 right to be present during supplementary instruction proceedings (cf., People v Rodriguez, 76 NY2d 918).